BBC News Online – 2005-04-28 22:59:13
“If every member of the Cabinet had seen a copy of that legal advice others may have resigned along with Robin Cook”
— Sir Menzies Campbell
“What the public must now have an answer to is this: what, or who, changed the attorney general’s mind?”
— Michael Howard
Blair Ignored Warning Iraq Invasion Was Illegal
BBC News Online
(April 28, 2005) — The attorney general cast doubt on the legality of the war against Iraq without a second UN resolution, a leaked document says.
In the document, seen by the BBC and from Lord Goldsmith to Tony Blair, he says a second resolution was the “safest legal course”. Ten days later his advice raised no such concerns about legality.
Lord Goldsmith issued a statement saying the document backed up the government’s position.
Tory leader Michael Howard has queried the prime minister’s honesty, but Mr Blair insists he has not lied. And — in a BBC interview — he has received the public backing of chancellor Gordon Brown. But the Lib Dems said the House of Commons would not have voted for war if the earlier legal advice had been known about.
The extract obtained by the BBC was sent to Mr Blair on 7 March 2003, a fortnight before the war took place.
In it Lord Goldsmith argues relying on the original resolution 1441 — which required Iraq to disarm — as authorisation for the use of force needed “strong factual grounds” that it had been breached.
The views of UNMOVIC, the UN inspection team led by Hans Blix, and the IAEA, the nuclear inspection team led by Mohammed ElBaradei would be “highly significant”, the attorney general reportedly said.
Mr Blair has steadfastly resisted pressure to release the full advice of the attorney general.
In the newly-leaked document, retyped from its original form, Lord Goldsmith says: “I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force…
“I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution…
“However, 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 has failed to take the final opportunity.”
The advice from 10 days later
The legal advice was issued on the same day UN weapons inspector Hans Blix said more time was needed to disarm Iraq, that the country had accelerated its co-operation but that it could not be described as “immediate compliance”
The document concludes by saying: “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 circumstances at the time.”
In his statement, Lord Goldsmith said the document “stands up the case that the government has been making all along”.
“What this document does, as in any legal advice, is to go through the complicated arguments that led me to this view.
“Far from showing I reached the conclusion that to go to war would be unlawful, it shows how I took account of all the arguments before reaching my conclusion.”
And he said the war in Iraq was legal, adding that this was what he had said to government, to Cabinet and in public at the time.
Foreign Secretary Jack Straw told BBC News: “What changed between 7, when that advice was written, and 17 March when the attorney general came to his very clear decision that military action without a second resolution was justified was the circumstances.” This included evidence that had been given to Lord Goldsmith and others that Iraq was in breach of resolution 1441.
But it is understood the 7 March document, with its caveats, was never shown to a full Cabinet meeting. Instead, Lord Goldsmith’s later advice, described by Foreign Secretary Jack Straw as “unequivocal”, was shown to the Cabinet on 17 March and made public in an answer in the House of Lords.
The war started on 20 March.
Mr Howard said: “It is now obvious from this legal advice that on 7 March 2003, the attorney general raised specific reservations about the legality of war in Iraq.
“But Mr Blair has said that the attorney general’s advice to the Cabinet on 17 March was ‘very clear’ that the war was legal, and that the attorney general had not changed his mind. It is obvious that he did. “So what the public must now have an answer to is this: what, or who, changed the attorney general’s mind?”
The Lib Dems want a full public inquiry into the war and want voters to punish the Tories as well as Labour, as both supported the war, and choose their party instead.
Lib Dem foreign affairs spokesman Sir Menzies Campbell said: “If the House of Commons had known of the contents of this advice it wouldn’t have voted to endorse military action. I strongly suspect that if every member of the Cabinet had seen a copy of this advice, others would have resigned, along with Robin Cook.”
Former international development secretary Clare Short, an opponent of the war, said the leak would “confirm everything that I have been saying — it’s very serious”.
BBC political editor Andrew Marr said the document would greatly fuel suspicions but was not the “smoking gun” that opponents of the war were looking for. But supporting his leader, and asked if he would have taken Britain to war, Mr Brown said: “It was a team decision, a collective decision.”
He added: “The central issue was should you allow Saddam Hussein to continue to ignore for year after year the decisions of the international community. The war was right.”
• 7 March: Early legal advice sent to Mr Blair
• 7 March: Hans Blix says Iraq accelerating co-operation
• 17 March: Final legal advice given to Cabinet
• 17 March: Advice revealed in House of Lords
• 20 March: War starts
Full Text: Attorney General’s Advice to Blair
Here is the full text of the leaked document from Attorney General Lord Goldsmith to Tony Blair over the legality of the war against Iraq, dated 7 March 2003.
26.To sum up, the language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the legal effect of the resolution.
Arguments can be made on both sides.
A key question is whether there is in truth a need for an assessment of whether Iraq’s conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that situation, it would be for the Council to make it.
A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has predetermined the issue. Public statements, on the other hand, say otherwise.
27. In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. […]
The key point is that it should establish that the Council has concluded that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.
28. Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.
29. However, 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 has 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.
Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect.
In the light of the latest reporting by UNMOVIC, you will need to consider very 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.
30. In reaching my conclusion, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable.
But a “reasonable case” does not mean that if the matter ever came before a court I would be confident that the court would agree with the view.
I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678.
But equally I consider that the counter view can be reasonably maintained.
However, it must be recognised that 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 as great as it is today.
31.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, I do not believe that there is any basis in law for arguing that there is an implied condition of reasonableness which can be read into the power of veto conferred on the permanent members of the Security Council by the UN Charter.
So 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”.
The legal analysis may, however, be affected by the course of events over the next week or so, eg 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 circumstances at the time.
Possible consequences of acting without a second resolution[…] ”
Full text: Written Answer on Iraq Advice
“I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. ”
On 17 March 2003, Attorney-General Lord Goldsmith gave a written answer to parliament in response to a question asking his view of the legal basis for the Iraq war, posed by Baroness Ramsay of Cartvale.
It came 10 days after he sent a document to the prime minister weighing up the legalities of Britain becoming involved in military conflict in Iraq, a document which was leaked to the BBC and Channel 4 on 27 April 2005.
Here is the full text of the 17 March response:
• Authority to use force against Iraq exists from the combined effect of Resolutions 678, 687 and 1441.
All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security:
• In Resolutions 678, the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.
• In Resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under Resolution 678.
• A material breach of Resolution 687 revives the authority to use force under Resolution 678.
• In Resolution 1441, the Security Council determined that Iraq has been and remains in material breach of Resolution 687, because it has not fully complied with its obligations to disarm under that resolution.
• The Security Council in Resolution 1441 gave Iraq “a final opportunity to comply with its disarmament obligations” and warned Iraq of the “serious consequences” if it did not.
• The Security Council also decided in Resolution 1441 that, if Iraq failed at any time to comply with and co-operate fully in the implementation of Resolution 1441, that would constitute a further material breach.
• It is plain that Iraq has failed so to comply and therefore Iraq was at the time of Resolution 1441 and continues to be in material breach.
• Thus, the authority to use force under Resolution 678 has revived and so continues today.
• Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that Resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.
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