The Report
of the Iraq Inquiry
560.
Lord Goldsmith
told the Inquiry that it was:
“… very
clear that the precedent in the United Kingdom was that a
reasonable case
was a
sufficient lawful basis for taking military action … I checked this
at the time,
because
this is what I had been told by my officials – it was the basis for
the action
in Kosovo,
it was also the basis for the action in 1998 … as a matter of
precedent
it was
standard practice to use the reasonable case basis for deciding on
the
lawfulness
of military action.”215
561.
Lord Goldsmith
added that he was saying that it was “the right test to use”,
and
that:
“… as a
matter of precedent it was standard practice to use the reasonable
case
basis for
deciding on the lawfulness of military action.”
562.
Asked to
explain the meaning of the word “reasonable”, Lord Goldsmith told
the
Inquiry:
“It means a
case which not just has some reasoning behind it, put in
practical
terms, it
is a case that you would be content to argue in court, if it came
to it, with
a reasonable
prospect of success. It is not making the judgment whether it is
right
563.
Asked whether
the reference in his 7 March advice to action being taken in Iraq
in
Operation
Desert Fox in 1998 and in Kosovo in 1999 on the basis that the
legality of the
action was
“reasonably arguable” was a “somewhat lesser standard” than others
that he
might have
liked to present, Lord Goldsmith replied that the distinction he
was making:
“… was
between the authority based on the assessment that there was
a
reasonable
case that it was lawful, to authority which is based upon having
balanced
all the
arguments and come down on one side or the other, is it, in fact,
lawful?”217
564.
Lord Goldsmith
added:
“I had
originally been not that instinctively in favour of this
‘reasonable case’
approach,
but these precedents were helpful, because, although Kosovo was
a
different
legal basis, the point was that the British Government had
committed itself
to military
action on the basis of legal advice that there was a reasonable
case.
That was
the precedent. It had been pressed upon me that that was the
precedent in
the
past.
215
Public
hearing, 27 January 2010, page 97.
216
Public
hearing, 27 January 2010, pages 97-98.
217
Public
hearing, 27 January 2010, pages 169-170.
102