The Report
of the Iraq Inquiry
“The
further decision need not be in the form of a further resolution.
It is possible that
following a
discussion under OP12 of the resolution, the Council could make
clear
by other
means, e.g. a Presidential statement, that it believes force is now
justified
to enforce
the cease-fire.”
185.
Addressing the
principle of proportionality, Lord Goldsmith emphasised
that:
“Any force
used pursuant to the authorisation in resolution 678:
––
must have
as its objective the enforcement of the terms of the
cease-fire
contained
in resolution 687 (1990) [sic] and subsequent relevant
resolutions;
––
be limited
to what is necessary to achieve that objective; and
––
must be
proportionate to that objective, i.e. securing compliance with
Iraq’s
disarmament
objectives.
“That is
not to say that action may not be taken to remove Saddam Hussein
from
power if it
can be shown that such action is necessary to secure the
disarmament
of Iraq and
that it is a proportionate response to that objective. But regime
change
cannot be
the objective of military action. This should be borne in mind in
making
public
statements about any campaign.”
186.
As he had
promised following the meeting on 22 October, when Mr Blair
had asked
about the
consequences of a perverse or unreasonable veto “of a second
resolution
intended to
authorise the use of force”, Lord Goldsmith also addressed other
legal bases
for
military action.
187.
In her minute
of 14 October 2002, Ms Adams had drawn Lord Goldsmith’s
attention
to the Law
Officers’ advice to Mr Blair in 1997 which identified the
possibility that there
could
be:
“…
exceptional circumstances in which although the Council had not
made a
determination
of material breach it was evident to and generally accepted by
the
international
community as a whole that Iraq had in effect repudiated the
cease-fire
and that a
resort to military force to deal with the consequences of Iraq’s
conduct
was the
only way to ensure compliance with the cease-fire
conditions.”70
“I
understand this passage was included in the advice to cover the
sort of situation
where the
Council was unable to act. But of course the counter view would be
that
if the
Council has rejected a resolution authorising the use of force,
then under the
scheme of
the Charter, it cannot be said that force is legally
justified.”
70
Minute
Adams to Attorney General, 14 October 2002, ‘Iraq: Meeting with
David Manning, 14 October’.
40