5 |
Advice on the legal basis for military action, November 2002 to
March 2003
in the use
of force on the basis of a reasonable or respectable case that
action
is
authorised by a UNSCR or self defence or humanitarian intervention
and my
understanding
was and is that this is a sufficient basis.”226
575.
Lord
Goldsmith reiterated the categorical advice, previously expressed
in his
14 January
draft, that there were no grounds for arguing that “an
unreasonable
veto” would
permit the US and UK to ignore such a veto.
576.
Addressing the
effect of an “unreasonable” veto, Lord Goldsmith
stressed:
“The
analysis set out above applies whether a second resolution fails to
be adopted
because of
a lack of votes or because it is vetoed. As I have said before …
there are
no grounds
for arguing that an ‘unreasonable veto’ would entitle us to proceed
on
the basis
of a presumed Security Council authorisation. In any event, if the
majority
of world
opinion remains opposed to military action, it is likely to be
difficult on the
facts to
categorise a French veto as ‘unreasonable’.”
577.
Lord
Goldsmith stressed the importance of the circumstances at the
time
a decision
was taken.
578.
Addressing the
importance of circumstances, Lord Goldsmith concluded:
“The legal
analysis may, however, be affected by the course of events over the
next
week or so,
e.g. the discussions on the draft second resolution. If we fail to
achieve
the
adoption of a second resolution, we would need to consider urgently
at that
stage the
strength of our legal case in the light of the circumstances at
that time.”
579.
Lord
Goldsmith recognised that there was a possibility of a legal
challenge.
580.
Lord Goldsmith
set out the possible consequences of acting without a
further
resolution,
in particular the ways in which the matter might be brought before
a court,
some of
which he described as “fairly remote possibilities”.
581.
Lord Goldsmith
outlined the potential risks of action before both International
and
UK Courts,
concluding:
“… it would
not be surprising if some attempts were made to get a case of
some
sort off
the ground. We cannot be certain that they would not succeed. The
GA route
[the
General Assembly of the United Nations requesting an advisory
opinion on
the
legality of the military action from the International Court of
Justice] may be
the most likely
…”
226
Statement,
4 January 2011, paragraph 6.5.
105