Summary: Attorney General’s note to Blair
The Government has published the full text of the letter sent by the Attorney General to Tony Blair, after exerts of the letter were leaked to the press.
The letter is 13 pages long and concludes by warning the Prime Minister that “regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign.”
Dated March 7, ten days before Lord Goldsmith’s statement to the House of Lords that the war would be legal, the letter states that if no second resolution is adopted “we would need to consider urgently at that stage the strength of our legal case in the light of circumstances at that time.”
The advice also warns that going to war without a second UN resolution could leave the UK open to legal challenges in both internationally and in the domestic courts.
It says that the “safest legal course” would be to secure a second resolution authorising the use of force, but says “a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution”.
But Lord Goldsmith also warned that “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 this view.”
And he argues that without a second resolution there must be “strong factual grounds” for concluding that Iraq has failed to take the final opportunity with “hard evidence of non-compliance and non-cooperation”.
Lord Goldsmith’s summary
Summary
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 OP 4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that sort, 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 pre-determined 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. I have already advised that I do not believe that such a resolution need be explicit in its terms. 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 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.
30. In reaching my conclusions, 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 this 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 and12 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 like 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 that time.
Possible consequences of acting without a second resolution
32. In assessing the risks of acting on the basis of a reasonably arguable case, you will wish to take account of the ways in which the matter might be brought before a court. There are a number of possibilities. First, the General Assembly could request an advisory opinion on the legality of the military action from the International Court of Justice (ICJ). A request for such an opinion could be made at the request of a simple majority of the States within the GA, so the UK and US could not block such action. Second, given that the United Kingdom has accepted the compulsory jurisdiction of the ICJ, it is possible that another State which has also accepted the Court’s jurisdiction might seek to bring a case against us. This, however, seems a less likely option since Iraq itself could not bring a case and it is not easy to see on what basis any other State could establish that it had a dispute with the UK. But we cannot absolutely rule out that some State strongly opposed to military action might try to bring such a case. If it did, an application for interim measures to stop the campaign could be brought quite quickly (as it was in the case of Kosovo).
33. The International Criminal Court at present has no jurisdiction over the crime of aggression and could therefore not entertain a case concerning the lawfulness of any military action. The ICC will however have jurisdiction to examine whether any military campaign has been conducted in accordance with international humanitarian law. Given the controversy surrounding the legal basis for action, it is likely that the Court will scrutinise any allegations of war crimes by UK forces very closely. The Government has already been put on n
