Executive
Summary
810.
The following
key findings are from Section 5:
•
On 9
December, formal ‘instructions’ to provide advice were sent to
Lord
Goldsmith.
They were sent by the FCO on behalf of the FCO and the MOD
as
well as
No.10. The instructions made it clear that Lord Goldsmith should
not
provide an
immediate response.
•
Until 27
February, No.10 could not have been sure that Lord Goldsmith
would
advise that
there was a basis on which military action against Iraq could
be
taken in
the absence of a further decision of the Security
Council.
•
Lord
Goldsmith’s formal advice of 7 March set out alternative
interpretations
of the
legal effect of resolution 1441. While Lord Goldsmith remained “of
the
opinion
that the safest legal course would be to secure a second
resolution”, he
concluded
(paragraph 28) that “a reasonable case can be made that
resolution
1441 was
capable of reviving the authorisation in resolution 678 without a
further
resolution”.
•
Lord
Goldsmith wrote that a reasonable case did not mean that if the
matter
ever came
to court, he would be confident that the court would agree with
this
view. He
judged a court might well conclude that OPs 4 and 12 required a
further
Security
Council decision in order to revive the authorisation in resolution
678.
•
At a
meeting on 11 March, there was concern that the advice did not
offer a
clear
indication that military action would be lawful. Lord Goldsmith was
asked,
after the
meeting, by Admiral Boyce on behalf of the Armed Forces, and by
the
Treasury
Solicitor, Ms Juliet Wheldon, in respect of the Civil Service, to
give a
clear‑cut
answer on whether military action would be lawful rather than
unlawful.
•
Lord
Goldsmith concluded on 13 March that, on balance, the “better view”
was
that the
conditions for the operation of the revival argument were met in
this
case,
meaning that there was a lawful basis for the use of force without
a further
resolution
beyond resolution 1441.
•
Mr Brummell
wrote to Mr Rycroft on 14 March:
“It is an
essential part of the legal basis for military action without a
further
resolution
of the Security Council that there is strong evidence that Iraq
has
failed to
comply with and co‑operate fully in the implementation of
resolution
1441 and
has thus failed to take the final opportunity offered by the
Security
Council in
that resolution. The Attorney General understands that it
is
unequivocally
the Prime Minister’s view that Iraq has committed
further
material
breaches as specified in [operative] paragraph 4 of
resolution
1441, but
as this is a judgment for the Prime Minister, the Attorney
would
be grateful
for confirmation that this is the case.”
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