Main points of British legal advice on Iraq war

LONDON - Bowing to public pressure a week before the British general election, Prime Minister Tony Blair's office on Thursday released the full pre-war advice he had received from his top law officer on the legality of the invasion of Iraq.
Following are excerpts from the summary portion of a 13-page secret minute sent to him by Attorney General Lord Peter Goldsmith on March 7, 2003:

After dismissing the possible arguments of self-defense and threat of humanitarian catastrophe, Goldsmith focused on whether war would be authorized by the UN Security Council acting under Chapter VII of the UN Charter:

-- "The language of (UN Security Council) resolution 1441 (adopted in 2002) 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 (operating paragraph) OP 4 such that the basis of the cease-fire (following the 1991 Gulf war to liberate Kuwait) 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."

-- "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."

-- "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 (the 1990 UN Security Council resolution) 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. 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 (weapons inspection regimes) will be highly significant in this respect."

-- "In reaching my conclusions, I have taken account of the fact that on number of previous occasions, including in relation to Operation Desert Fox (Iraq) 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."

-- "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."

-- "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 (GA) 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."

-- "The International Criminal Court (ICC) 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 ICC would only be able to exercise jurisdiction over UK personnel if it considered that the UK prosecuting authorities were unable or unwilling to investigate and, if appropriate, prosecute the suspects themselves."

04/28/2005 14:31 GMT