5 |
Advice on the legal basis for military action, November 2002 to
March 2003
•
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.”
•
Mr Rycroft
replied to Mr Brummell on 15 March:
“This is to
confirm that it is indeed the Prime Minister’s unequivocal view
that Iraq
is in
further material breach of its obligations, as in OP4 [operative
paragraph 4]
of UNSCR
1441, because of ‘false statements or omissions in the
declarations
submitted
by Iraq pursuant to this resolution and failure to comply with,
and
co‑operate
fully in the interpretation of, this resolution’.”
•
Senior
Ministers should have considered the question posed in
Mr Brummell’s
letter of
14 March, either in the Defence and Overseas Policy Committee or
a
“War
Cabinet”, on the basis of formal advice. Such a Committee should
then have
reported
its conclusions to Cabinet before its Members were asked to endorse
the
Government’s
policy.
•
Cabinet was
provided with the text of Lord Goldsmith’s Written Answer to
Baroness
Ramsey
setting out the legal basis for military action.
•
That document
represented a statement of the Government’s legal position – it
did
not explain
the legal basis of the conclusion that Iraq had failed to take “the
final
opportunity”
to comply with its disarmament obligations offered by resolution
1441.
•
Cabinet was
not provided with written advice which set out, as the advice of 7
March
had done,
the conflicting arguments regarding the legal effect of resolution
1441 and
whether, in
particular, it authorised military action without a further
resolution of the
Security
Council.
•
The advice
should have been provided to Ministers and senior officials
whose
responsibilities
were directly engaged and should have been made available
to
Cabinet.
3.
On 8 November
the United Nations Security Council unanimously
adopted
resolution 1441
(2002).
•
a
description of the negotiation of the resolution;
5