Revealed:
UK Government's Secret Legal Advice on Iraq War

RICHARD NORTON-TAYLOR The Guardian (UK) 28apr2005

Attorney general feared court challenge / Weapons evidence was crucial / Warnings never given to cabinet

Tony Blair was told by the government's most senior law officer in a confidential minute less than two weeks before the war that British participation in the American-led invasion of Iraq could be declared illegal. In a legal opinion Mr Blair has repeatedly refused to publish and never seen by the cabinet, Lord Goldsmith, the attorney general, spelled out the dangers of going to war, including the prospect of Britain losing a case in an international court.

He warned that while he could argue a "reasonable case" in favour of military action, he was not confident a court would agree. Indeed, a court "might well conclude" that a new UN resolution was needed before military action could be undertaken.

The attorney general warned Mr Blair that Britain might be able to argue it could go to war on the basis of past UN resolutions, but only if there were "strong factual grounds" that Iraq was still in breach of its disarmament obligations.

Lord Goldsmith's 13-page minute was sent to Mr Blair on March 7 2003. On that day, Hans Blix, the chief UN weapons inspector, declared that Iraq had made "substantial" progress in destroying its long-range missiles, and he had found no evidence of biological or chemical weapons.

The fact that Lord Goldsmith's legal opinion was not seen by the cabinet is an apparent breach of the official code covering ministerial behaviour.

It is in contrast to the parliamentary answer issued by Lord Goldsmith 10 days later, which was shown to the cabinet. In his answer, which contained none of the earlier caveats, he said it was "plain" that Iraq was in breach of its UN disarmament obligations.

Lord Goldsmith last night said he stood by his opinion that it was legal for Britain to go to war in Iraq. The document "stood up" the government's case that he had not changed his opinion between giving Mr Blair private advice on March 7 and his statement to parliament.

In a statement, he said the document showed how he had gone through the complex arguments over the legality of military action before concluding that it would be lawful. "The document... so far from standing up the case of the government's critics, stands up the case the government has been making all along.

"Contrary to the allegations that have persistently been made, it does not say the war was unlawful but confirms the conclusion I reached was that a sufficient basis for the use of force was established without a second resolution."

In 2003, Lord Goldsmith asked Downing Street for Mr Blair's view. No 10 replied that it was "indeed, the prime minister's unequivocal view" that Iraq was still in breach.

But, according to extracts from his confidential minute of March 7, the attorney general warned Mr Blair:

• "The language of resolution 1441 [the last UN resolution on Iraq before the war] leaves the position unclear";
• "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";
• "We would need to be able to demonstrate hard evidence of [Iraqi] non-compliance and non-cooperation";
• "In the light of the latest reporting by Unmovic [UN weapons inspectors] 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".

According to the Butler report on the use of intelligence in the run-up to war, ministers failed to ask Britain's intelligence agencies to look again at their assessments of Iraq's weapons programme despite the UN inspectors' failure to find any.

In his minute, Lord Goldsmith revealed that his predecessors had advised that the legality of British bombing of Iraq in Operation Desert Fox in 1998, and of Kosovo the following year, was "no more than reasonably arguable".

In a pointed warning to the prime minister, he added: "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."

A court "might well conclude", Lord Goldsmith said, that the wording of resolution 1441 required a second resolution to trigger military action.

A "counter view" could be reasonably maintained, Lord Goldsmith said. "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."

He also dismissed the government's claim that by threatening to veto a new UN resolution France was behaving unreasonably, and this somehow negated the need for a new resolution: "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 reason ableness which can be read into the power of veto conferred on the permanent members of the security council by the UN charter."

"In any event," he added, "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 disclosure of extracts was seized on last night by constitutional experts as well as opposition politicians. Anthony Lester QC, a Liberal Democrat peer, described it as a "devastating blow to the government's credibility".

Peter Hennessy, a professor of political history at London University, said: "The whole thing reeks. Even if the prime minister wins handsomely on polling day this will stain him and his premiership as long as people remember it, just as Anthony Eden's name is forever associated with the Suez crisis."

The Liberal Democrat leader, Charles Kennedy, said: "What is abundantly clear is not only that the prime minister made the wrong political judgment but he went about justifying that judgment in a seriously misleading way."

source: http://www.guardian.co.uk/Iraq/Story/0,2763,1471977,00.html 19may2005

Full text:
Summary of Attorney General's Legal Advice on March 7 2003

Wednesday April 27, 2005

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 ceasefire 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 the 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.

source: http://www.guardian.co.uk/Iraq/Story/0,2763,1471655,00.html 19may2005