March 7th, 2003: British attorney general Lord Goldsmith set out his advice to the prime minister on the legality of military action against Iraq in a 13-page opinion which the government published yesterday, via the prime minister's office, No 10 Downing Street.
In the document, dated March 7th, 2003, he advised that there were three possible bases for the use of force - self-defence; action to avert overwhelming humanitarian catastrophe; or authorisation by the Security Council acting under Chapter VII of the United Nations Charter.
On self-defence, he argued that there must be "some degree of imminence" to the threat to justify action.
He acknowledged that the United States had been arguing for "a broad doctrine of a right to use force to pre-empt danger in the future". But Lord Goldsmith said: "If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in law."
On action to avert an overwhelming humanitarian catastrophe, he said that he knew of no reason why it would apply in the prevailing circumstances.
On Security Council authorisation, he said that the question was whether resolution 1441, which gave Iraq a final opportunity to co-operate with the UN weapons inspectors (UNMOVIC), revived the explicit authorisation to use force as stated in resolution 678 which was passed in 1990 after Saddam Hussein invaded Kuwait.
Lord Goldsmith said that the "revival argument" had been used to justify air strikes by Britain and the US against Iraq in 1993 and 1998.
"The revival argument is controversial. It is not widely accepted among academic commentators. However, I agree with my predecessors' advice on this issue," he said.
"I disagree, therefore, with those commentators and lawyers who assert that nothing less than an explicit authorisation to use force in a Security Council resolution will be sufficient."
On the issue of whether 1441 was sufficient to revive the authorisation for the use of force, he said the text made clear that if Iraq failed to comply with its requirement, there had to be further discussion in the Security Council. "The text is, however, ambiguous and unclear on what happens next," he said.
He said there were two competing arguments - that if the council failed to reach a conclusion the authorisation to use force remained, or that nothing short of a new resolution would provide a legitimate basis for the use of force.
He noted that in the negotiations which led to 1441, it had been an "essential negotiating point" for the US that they should not concede the need for a second resolution and that they were convinced they had succeeded.
"I was impressed by the strength and sincerity of the views of the US administration which I heard in Washington on this point," he said.
"However, the difficulty is that we are reliant on their assertions for the view that the French (and others) knew and accepted that they were voting for a further discussion and no more.
"We have very little hard evidence of this beyond a couple of telegrams recording admission by French negotiators that they knew the US would not accept a resolution which required a further council decision.
"A further difficulty is that, if the matter ever came before a court, it is very uncertain to what extent the court would accept evidence of the negotiating history to support a particular interpretation of the resolution, given that most of the negotiations were conducted in private and there are no agreed or official records."
In his summary, Lord Goldsmith said that the language of 1441 left the position unclear.
"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," he said.
"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."
He emphasised that the argument was only sustainable if there were "strong factual grounds" for concluding that Iraq had failed to take its final opportunity to comply.
"In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-co-operation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA (International Atomic Energy Agency) will be highly significant in this respect," he said.
"In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-co-operation and non-compliance by Iraq is sufficient to justify the conclusion that Iraq has failed to take its final opportunity."
He cautioned: "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.
"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."
He also warned that there was "no basis in law" for arguing that an "unreasonable veto" by the French in the Security Council would entitle Britain to proceed on the basis of "presumed Security Council authorisation".
"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 the circumstances at that time," he said.
Lord Goldsmith warned that there were a number of ways in which opponents of military action could seek to bring a legal action - either internationally or through the domestic courts - against the UK, members of the government or British military personnel.
"Some of these seem fairly remote possibilities, but given the strength of opposition to military action against Iraq, it would not be surprising if some attempts were made to get
a case of some sort off the ground," he said. "We cannot be certain that they would not succeed."
He emphasised that any military action must be "proportionate" to the objective of securing Iraqi compliance with its obligations to disarm.
"That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq," he said.
"But regime change cannot be an 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."
The full text of Lord Goldsmith's advice may be read on The Irish Times website, www.ireland.com, as well as the 10 Downing Street website, www.number-10.gov.uk/output/Page1.asp
10 days later: Lord Goldsmith outlines final opinion
Ten days after his March 7th advice to the prime minister, the attorney general outlined his final opinion in a parliamentary answer as quoted in Hansard, the official record of proceedings in the Houses of Parliament.
In this written parliamentary answer, Lord Goldsmith said that authority to use force against Iraq existed from the combined effect of resolutions 678, 687 and 1441. He continued:
1. In Resolution 678, the Security Council authorised force against Iraq, to eject it from Kuwait.
2. Resolution 687. . . imposed continuing obligations on Iraq to eliminate its weapons of mass destruction.
3. A material breach of resolution 687 revives the authority to use force under resolution 678.
4. Resolution 1441. . . determined that Iraq has been and remains in material breach of 687, because it has not fully complied with its obligations to disarm under that resolution.
5. Resolution 1441 gave Iraq "a final opportunity to comply with its disarmament obligations" and warned Iraq of "serious consequences" if it did not.
6. The Security Council also decided in resolution 1441 that if Iraq failed at any time to comply with and co-operate fully . . . that would constitute a further material breach.
7. It is plain that Iraq has failed to comply and therefore Iraq was at the time of resolution 1441 and continues to be in breach.
8. Thus, the authority to use force under resolution 678 has revived and so continues today.
9. 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.