5 |
Advice on the legal basis for military action, November 2002 to
March 2003
344.
Mr Wood
had warned Mr Straw on 24 January that “without a further
decision
by the
Council, and absent extraordinary circumstances”, the UK would not
be
able
lawfully to use force against Iraq.
345.
Mr Wood
wrote to Mr Straw on 22 and 24 January about the terms of
the
discussions
on a second resolution.
346.
Commenting on
advice to Mr Straw for his visit to Washington, Mr Wood
wrote:
“The
Foreign Secretary will know that the legal advice is that a second
resolution
authorising
the use of force is needed before any force may lawfully be
employed
against
Iraq to enforce the WMD obligations in the SCRs. If a draft
resolution fails
because of
a veto (or indeed because it does not receive nine positive votes),
the
fact that
the veto (or failure to vote in favour) is ‘unreasonable’ is
neither here nor
there from
a legal point of view. Further, who is to judge what is
‘unreasonable’?”132
347.
In his second
minute, Mr Wood expressed concern about Mr Straw’s
reported
remarks to
Vice President Cheney.133
348.
Mr Wood
wrote that Kosovo was “no precedent”: the legal basis was the need
to
avert an
overwhelming humanitarian catastrophe; no draft resolution had been
put to the
Security
Council; and no draft had been vetoed. He hoped there
was:
“… no doubt
in anyone’s mind that without a further decision of the Council,
and
absent
extraordinary circumstances (of which at present there is no sign),
the United
Kingdom
cannot lawfully use force against Iraq to ensure compliance with
its SCR
WMD
obligations. To use force without Security Council authority would
amount to
the crime
of aggression.”
349.
Mr Straw
told Mr Wood he did not accept that view and that there was
a
strong case
for a different view.
350.
Mr Straw
discussed the advice with Mr Wood on 28
January.134
351.
Mr Straw
wrote to Mr Wood the following day: “I note your advice, but I
do not
352.
Quoting his
experiences as Home Secretary, Mr Straw stated that, “even
on
apparently
open and shut issues”, he had been advised: “there could be a
different view,
honestly
and reasonably held. And so it turned out to be time and
again.”
132
Minute Wood
to PS [FCO], 22 January 2003, ‘Iraq: Legal
Position’.
133
Minute Wood
to PS [FCO], 24 January 2003, ‘Iraq: Legal Basis for Use of
Force’.
134
Manuscript
comment McDonald to Wood, 28 January 2003, on Minute Wood to PS
[FCO],
24 January 2002,
‘Iraq: Legal Basis for Use of Force’.
135
Minute
Straw to Wood, 29 January 2003, ‘Iraq: Legal Basis for Use of
Force’.
65