5 |
Advice on the legal basis for military action, November 2002 to
March 2003
189.
In the “lines
to take” provided for Lord Goldsmith’s meeting with
Mr Blair,
Ms Adams
wrote:
“It is
impossible to give a firm view on this now. We should certainly not
plan on
being able
to rely on such a justification. There does not seem to [be] wide
support
for
military action among the wider international community at
present.”71
190.
In his draft
advice of 14 January 2003, Lord Goldsmith wrote that:
“In ruling
out the use of force without a further decision of the Council, I
am not
saying that
other circumstances may not arise in which the use of force may
be
justified
on other legal grounds, eg if the conditions for self-defence or
humanitarian
intervention
were met. However, at present, I have seen nothing to suggest
there
would be a
legal justification on either of these bases.”72
191.
In relation to
the “Kosovo Option”, Lord Goldsmith wrote that the UK had
been
“able to
take action … because there was an alternative legal base which
could be
relied on
which did not depend on Council authorisation, namely intervention
to avert
an overwhelming
humanitarian catastrophe”.
192.
Lord Goldsmith
did not, however, address whether any other
“exceptional
circumstances”
could arise which might provide the basis for action against
Iraq.
193.
Lord Goldsmith
also addressed the question of whether, in the event
that,
“following
a flagrant violation by Iraq”, one of the five Permanent Members
(P5) of the
Council
“perversely or unreasonably vetoed [a] further Council decision
intended to
authorise
the use of force”, the Coalition would be justified in acting
without Security
Council
authorisation.
194.
Lord Goldsmith
wrote that the scheme of the UN Charter clearly envisaged
“the
possibility
of a P5 veto” and did “not provide that such vetoes may only be
exercised on
‘reasonable
grounds’”. In those circumstances, he did not believe that there
was:
“… room for
arguing that a condition of reasonableness can be implied as
a
precondition
for the lawful exercise of a veto. Thus, if one of the P5 were to
veto
a further
Council decision pursuant to OPs 4 and 12 of resolution 1441, there
would
be no
Council authorisation for military action.”
71
Minute
Adams to Attorney General, 22 October 2002, ‘Iraq: Meeting with the
Prime Minister, 22 October’
attaching
‘Lines to Take’.
72
Minute
[Draft] [Goldsmith to Prime Minister], 14 January 2003, ‘Iraq:
Interpretation of Resolution 1441’.
41