5 |
Advice on the legal basis for military action, November 2002 to
March 2003
•
the
difficulty of relying on the assertions of US officials that the
French knew
and
accepted what they were voting for when there was little “hard
evidence
beyond a
couple of telegrams recording admissions by French negotiators
that
they knew
the US would not accept a resolution which required a further
Council
decision”;
•
“the
possibility remains that the French and others accepted OP12
because
in their
view it gave them a sufficient basis on which to argue that a
second
resolution
was required (even if that was not made expressly clear)”;
and
•
the
statements made on adoption of the resolution indicated that “there
were
differing
views within the Council as to the legal effect of the
resolution”.182
460.
Lord Goldsmith
was advised to state that he remained “of the view that the
safest
legal
course would be to secure a further Security Council resolution”
which, as he had
advised the
FCO, need not explicitly authorise the use of force as long as it
made clear
that the
Council had “concluded that Iraq has not taken its final
opportunity”.
461.
Ms Adams
advised that he should further state:
“Nevertheless,
having regard to the further information on the negotiating
history
which I
have been given and to the arguments of the US administration
which
I heard in
Washington, I am prepared to accept – and I am choosing my
words
carefully
here – that a reasonable case can be made that resolution 1441 is
capable
of reviving
the authorisation in 678 without a further resolution if there are
strong
factual
grounds for concluding that Iraq has failed to take the final
opportunity.
In other
words we would need to demonstrate hard evidence of
non-compliance
and non-co-operation.”
462.
Lord Goldsmith
was also advised:
•
that a
court “might well conclude” that OPs 4 and 12 did “require a
further
Council
decision”, but that “the counter view can reasonably be
maintained”;
•
that the
analysis applied “whether a second resolution fails to be
adopted
because of
a lack of votes or because it is vetoed. I do not see any
difference
between the
two cases”; and
•
it was
“important that in the course of negotiations on the second
resolution
we do not
give the impression that we believe it is legally required. That
would
undermine
our case for reliance on resolution 1441”.
463.
There is no
No.10 record of the 27 February meeting.
464.
In his record
of a telephone call from Lord Goldsmith reporting the
meeting,
Mr Brummell
wrote that Lord Goldsmith “confirmed that he had deployed in full”
the lines
prepared by
Ms Adams, with the exception of the reference to the fact that “on
a number
182
Minute
Adams to Attorney General, 27 February 2003, ‘Iraq: Lines to Take
for No 10 Meeting’.
83