5 |
Advice on the legal basis for military action, November 2002 to
March 2003
identified
a key question to be whether or not there was a need for an
assessment
of whether
Iraq’s conduct constituted a failure to take the final opportunity
or a
failure
fully to co-operate within the meaning of OP4, such that the basis
of the
cease-fire
was destroyed.
921.
Lord
Goldsmith wrote (paragraph 26): “A narrow textual reading of
the
resolution
suggested no such assessment was needed because the
Security
Council had
pre-determined the issue. Public statements, on the other hand,
say
otherwise.”
922.
While Lord
Goldsmith remained “of the opinion that the safest legal
course
would be to
secure a second resolution”, he concluded (paragraph 28)
that
“a reasonable
case can be made that resolution 1441 was capable of
reviving
the authorisation
in resolution 678 without a further resolution”.
923.
Lord
Goldsmith wrote that a reasonable case did not mean that if the
matter
ever came
to court, he would be confident that the court would agree with
this
view. He
judged a court might well conclude that OPs 4 and 12 required a
further
Security
Council decision in order to revive the authorisation in resolution
678.
924.
Lord
Goldsmith noted that on a number of previous occasions,
including
in relation
to Operation Desert Fox in Iraq in 1998 and Kosovo in 1999, UK
forces
had
participated in military action on the basis of advice from
previous Attorneys
General
that (paragraph 30) “the legality of the action under international
law was
no more
than reasonably arguable”.
925.
Lord
Goldsmith warned Mr Blair (paragraph 29):
“… the
argument that resolution 1441 alone has revived the
authorisation
to use
force in resolution 678 will only be sustainable if there are
strong
factual
grounds for concluding that Iraq failed to take the final
opportunity.
In other
words, we would need to be able to demonstrate hard evidence
of
non‑compliance
and non-cooperation … the views of UNMOVIC and the
IAEA
will be
highly significant in this respect.”
926.
Lord
Goldsmith added:
“In the
light of the latest reporting by UNMOVIC, you will need to
consider
extremely
carefully whether the evidence of non-cooperation and
non-
compliance
by Iraq is sufficiently compelling to justify the conclusion that
Iraq
has failed
to take its final opportunity.”
927.
Mr Straw,
Mr Hoon, Dr Reid and the Chiefs of Staff had all seen
Lord
Goldsmith’s
advice of 7 March before the No.10 meeting on 11 March, but it is
not
clear how
and when it reached them.
165