By Michael Smith
A DRAMATIC increase in US and British attacks on Iraq?s air defences in May 2002 ?to put pressure on the regime? was illegal under international law, according to leaked Foreign Office legal advice.
The deliberate decision to use ?spikes of activity? to goad the Iraqis into reacting and giving the allies an excuse for war was disclosed in the so-called Downing Street Memo, published by the Sunday Times shortly before the General Election.
It has since become a cause celebre in the United States with Democratic congressmen claiming last week that the evidence it contains is grounds for the impeachment of President Bush.
The memo recorded the minutes of a meeting of Tony Blair?s war cabinet held on 23 July 2002, quoting Geoff Hoon, Defence Secretary, as saying that ?the US had begun ?spikes of activity? to put pressure on the regime?.
MoD figures for bombs dropped on southern Iraq, obtained by the Liberal Democrats through Parliamentary Written Questions, show that the ?spikes in activity? began in May and that despite Hoon?s claim, the RAF was just as involved as the Americans.
But the Foreign Office legal advice appended to the Cabinet Office briefing paper for the July meeting made it clear that allied aircraft could only patrol the No-Fly Zones in order to deter attacks by Saddam?s forces on Iraq?s Kurdish and Shia minorities.
They had no power to use military force to put pressure of any kind on the regime because the resolution authorising their deployment did not allow the use of military action to enforce its demands.
The increased attacks on Iraqi installations, which senior US officers admitted were designed to ?degrade? the Iraqi air defences, began in May, six months before the UN passed resolution 1441, which the allies say authorized military action.
Lord Goodhart, Vice-President of the International Commission of Jurists, and a world-renowned expert on international law, said that if it were true that the ?spikes of activity? were designed to put pressure on the regime, they were illegal.
UN Resolution 688, used by the allies to justify the allied patrols over the so-called no-fly zones was not adopted under Chapter VII of the UN Charter, the chapter that deals with all matters authorising military force, he said.
"Putting pressure on Iraq is not something that would be a lawful activity in my view, ? said Lord Goodhart, who is also Liberal Democrat shadow Lord Chancellor. ?If it was intended to put pressure on Iraq then that is not authorised
The Foreign Office legal advice, which was provided to ministers in March 2002, noted that the Americans had ?on occasion? claimed that the allied aircraft were there to enforce compliance with both resolutions 688 and 687, which ordered Iraq to destroy its WMD.
?This view is not consistent with resolution 687, which does not deal with the repression of the Iraqi civilian population, or with resolution 688, which was not adopted under Chapter VII of the UN Charter, and does not contain any provision for enforcement,? it said.
Elizabeth Wilmshurst, one of the Foreign Office law officers who wrote the report, resigned in March 2003 in protest at the decision to go to war without a UN resolution specifically authorising military force.
General Peter Pace, who as vice-chairman of the joint chiefs was the deputy head of the US Armed Forces, told a Pentagon briefing on 16 September 2002, that ?the recent strikes have degraded the air defence capabilities?.
Donald Rumsfeld, US Defence Secretary, told the same briefing that he authorised the increase in bombing ?less than six months and more than a month ago?, coinciding with the May increase revealed in the MoD figures.
Asked if this was laying the groundwork for an attack on Iraq, Rumsfeld replied: ?Well it can?t hurt. I directed it.?
But by that point, the figures reveal, there had been another much larger increase in the number of bombs dropped, with the amount of ordnance used rising from around 10 tons a month to 54.6 tons in September, as the allies began what was in effect the air war.
The use of the allied patrols to begin the air war, known in the Pentagon as the Blue Plan, followed a meeting of the US National Security Council at the White House on 5 August 2002.
General Tommy Franks, the allied commander, recalled in his autobiography American Soldier, that he rejected a call from Condoleezza Rice, US National Security Adviser, to cut the patrols because he wanted to use them to make Iraq?s defences ?as weak as possible?.
More than 100 aircraft took part in one raid on September 5, which targeted a major air defence complex at the very western extreme of the southern no-fly zone, far away from any of the persecuted minorities that might have been subject to attack from Saddam?s forces.
The move to an air war was also illegal, Lord Goodhart said. "If as Franks seems to suggest the purpose was to soften up Iraq for a future invasion or even to intimidate Iraq, the coalition forces were acting without lawful authority,? he said.
Although legality has been more of an issue in Britain, the revelations suggest President Bush also acted illegally, since Congress did not authorise military action until 11 October 2002, five months after the spikes of activity began and six weeks after the start of the air war.
A swathe of recent US polls have shown popular opinion moving against the war, while spurred by the leaked memos, Democratic congressmen held a hearing last week to examine whether there was good cause to investigate whether Bush committed impeachable offences.
Reg Keys, the father of L/Cpl Tom Keys, one of six Royal Military Policemen killed in the Iraqi town of Majar al-Kabir in June 2003, traveled to Washington to take part in the hearing. Keys stood against Blair at the election, receiving more than 4,000 votes.
Congressman John Conyers, who chaired the hearing, later delivered a petition containing 540,000 names to the White House, demanding that Bush respond to the more than 100 congressmen who have asked him to say whether the Downing Street memo is accurate.
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