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.
Lord Goldsmith’s advice of 7 March 2003
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.”
