5 |
Advice on the legal basis for military action, November 2002 to
March 2003
explicit in
its terms” if it established that the Council had “concluded” that
Iraq had “failed
to take the
final opportunity offered by resolution 1441”.
555.
Lord Goldsmith
added:
“Nevertheless,
having regard to the information on the negotiating history
which
I have
been given and to the arguments of the US Administration which I
heard in
Washington,
I accept that a reasonable case can be made that resolution 1441
is
capable in
principle of reviving the authorisation in 678 without a further
resolution.”
556.
Lord Goldsmith
added that that would:
“… only be
sustainable if there are strong factual grounds for concluding that
Iraq
has failed
to take the final opportunity. In other words, we would need to be
able
to
demonstrate hard evidence of non-compliance and non-co-operation.
Given the
structure
of the resolution as a whole, the views of UNMOVIC and the IAEA
will be
highly
significant in this respect. In the light of the latest reporting
by UNMOVIC,
you will
need to consider extremely carefully whether the evidence … is
sufficiently
compelling
to justify the conclusion that Iraq has failed to take the final
opportunity.”
557.
Lord Goldsmith
wrote:
“In
reaching my conclusions, I have taken account of the fact that on a
number of
previous
occasions, including in relation to Operation Desert Fox in
December 1998
and Kosovo
in 1999, UK forces have participated in military action on the
basis of
advice from
my predecessors that the legality of the action under international
law
was no more
than reasonably arguable.
“But a
‘reasonable case’ does not mean that if the matter ever came before
a court
I would be
confident that the court would agree with this view. I judge that,
having
regard to
the arguments on both sides, and considering the resolution as a
whole in
the light
of the statements made on adoption and subsequently, a court might
well
conclude
that OPs 4 and 12 do require a further Council decision in order to
revive
the
authorisation in resolution 678. But equally I consider that the
counter view can
reasonably
be maintained.
“However,
it must be recognised that on previous occasions when military
action
was taken
on the basis of a reasonably arguable case, the degree of public
and
Parliamentary
scrutiny of the legal issue was nothing like as great as it is
today.”
558.
Lord
Goldsmith’s advice of 7 March did not present the “reasonable
case”
as stronger
or “better” than the opposing case.
559.
Nevertheless,
in making that judgement, Lord Goldsmith took
responsibility
for a
decision that a reasonable case was sufficient to provide the legal
basis for
the UK
Government to take military action in Iraq.
101