Executive
Summary
456.
In the absence
of Lord Goldsmith’s formal advice, uncertainties about
the
circumstances
in which the UK would be able to participate in military action
continued,
although
the possibility of a second resolution remained.
457.
Lord Goldsmith
provided formal written advice on 7 March.
458.
Lord
Goldsmith’s formal advice of 7 March set out alternative
interpretations of
the legal
effect of resolution 1441. He concluded that the safer route would
be to seek
a second
resolution, and he set out the ways in which, in the absence of a
second
resolution,
the matter might be brought before a court. Lord Goldsmith
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 operative paragraph 4, such that the basis of the
cease‑fire
was destroyed.
459.
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.”
460.
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”.
461.
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.
462.
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”.
463.
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‑co-operation
... the views of UNMOVIC and the IAEA will be highly
significant
in this
respect.”
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