5 |
Advice on the legal basis for military action, November 2002 to
March 2003
“If the
answer is yes to the above, can it be assumed that the Attorney
will be able
to confirm
formally at the time that CDS’s order to implement the planned
operation
would be a
lawful order (anybody subject to military law commits an offence if
he
disobeys
any lawful command).
“Comment:
Notwithstanding the current uncertainties, when it comes to the
crunch,
CDS will
need to be assured that his orders are lawful. As the Attorney
points out
in his
letter, ‘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’.”
612.
A minute from
Mr Rycroft to Mr Blair described confirmation of the
viability of the
overall
military plan as the “main purpose of the meeting”.245
613.
The record of
the meeting on 11 March stated that Mr Blair had started
by
addressing
the legal basis for military action. He stated that Lord
Goldsmith’s “advice
made it
clear that a reasonable case could be made” that resolution 1441
was “capable
of
reviving” the authorisation of resolution 678 (1990), “although of
course a second
resolution
would be preferable”.246
614.
Other points
recorded by Mr Rycroft included:
•
Admiral
Boyce said he “would need to put a short paragraph in his
directive
to members
of the Armed Forces”.
•
The
paragraph “should be cleared with the Attorney
General”.
•
The UK
would send the US a positive reply on its request to use Diego
Garcia
and RAF
Fairford “in a day or two, with the usual conditions
attached”.
•
Mr Hoon
and Adm Boyce advised that “once we had given our approval, the
US
might give
very little notice before the start of the campaign”.
•
Sir Andrew
Turnbull asked whether a legal basis for military action was
required
for civil
servants, as well as for members of the Armed Forces.
•
Mr Hoon
asked whether the Attorney General’s legal advice was ever
disclosed.
•
Mr Blair
asked for a quick study into the precedents for that.
•
Adm Boyce
told the meeting that he was “confident that the battle plan
would
work”.
•
Mr Blair
stated that “we must concentrate on averting unintended
consequences
of military
action. On targeting, we must minimise the risks to
civilians.”
615.
A letter,
formally confirming the UK’s agreement to US use of Diego Garcia
and
RAF
Fairford for operations to enforce Iraqi compliance with the
obligations on WMD
245
Minute
Rycroft to Prime Minister, 11 March 2003, ‘Iraq Military: 1300
Meeting’.
246
Letter
Rycroft to McDonald, 11 March 2003, ‘Iraq: Legal and Military
Aspects’.
111