5 |
Advice on the legal basis for military action, November 2002 to
March 2003
387.
Mr Straw
added that he “had an intense appreciation” of the negotiating
history
of resolution
1441 and “an acute understanding” of what France, Russia and China
had
said in
their EOVs and the subsequent Ministerial meetings of the Security
Council and
“crucially
– what they had not said”. That needed to be “weighed in the
balance before
a decision”.
“Once the
Attorney General had uttered on this question, that would have been
the
end of the
matter; as on any other similar legal question. It would be wholly
improper
of any
Minister to challenge, or not accept, such an Attorney General
decision,
whatever it
was. But we were not at that stage.”
389.
The Inquiry
asked a number of witnesses to comment on Mr Straw’s assertion
that
international
law was an uncertain field and there was no international court to
decide
matters.
390.
Mr Straw
emphasised that it meant the responsibility rested on Lord
Goldsmith’s
shoulders.
391.
Addressing
that point, Sir Michael Wood told the Inquiry:
“… he is
somehow implying that one can therefore be more flexible, and
that
I think
is probably the opposite of the case … because there is no court,
the Legal
Adviser and
those taking decisions based on legal advice have to be all the
more
scrupulous
in adhering to the law … It is one thing for a lawyer to say,
‘Well, there
is an
argument here. Have a go. A court, a judge, will decide in the
end’. It is quite
different
in the international system where that’s usually not the case. You
have
a duty
to the law, a duty to the system. You are setting precedents by the
very fact
of saying
and doing things.”152
392.
Ms Wilmshurst
took a similar view: “I think that, simply because there are
no
courts, it
ought to make one more cautious about trying to keep within the
law, not
393.
On the
question of whether international law was an uncertain field, Lord
Goldsmith
stated:
“I didn’t
really agree with what he was saying about that. There obviously
are areas
of
international law which are uncertain, but this particular issue,
at the end of the
day, was:
what does this resolution mean?”154
152
Public
hearing, 26 January 2010, pages 33-34.
153
Public
hearing, 26 January 2010, page 9.
154
Public
hearing, 27 January 2010, page 94.
71