The Iraq Inquiry on Wednesday released details of former Attorney General Goldsmith’s legal advice, given to Tony Blair prior to the invasion of Iraq, after the documents were de-classified.
Copies of Goldmith’s draft legal advice were previously kept secret despite calls for it to be published.
This legal advice revealed that Goldsmith’s considered opinion was that without a second UN resolution, war with Iraq would be illegal.
However, the Attorney-General changed his mind after a visit to the United States and discussions with leading Bush administration officials and lawyers.
The Cabinet Office, on 25th June 2010, said it had decided to de-classify it because of the ‘very exceptional’ nature of the inquiry.
In his evidence to the Iraq Inquiry in January, Goldsmith acknowledged he had changed his mind on whether a second UN resolution was needed ahead of military action in March 2003.
He had thought one was needed but had ultimately concluded, shortly before the war began, that military action was authorised by existing UN agreements dating back to 1991.
He denied that this came as a result of political pressure from No 10 or anyone else.
The Labour government published the details of Goldsmith’s final legal advice to the Cabinet, issued on 7th March, in 2005.
The declassified document reveals that on February 12th Goldsmith told Blair that, should military action be taken without further approval by the UN Security Council, he expected ‘the government to be accused of acting unlawfully’.
Goldsmith wrote on February 12th: ‘It is clear that resolution 1441 (2002) does not expressly authorise the use of force.
‘It follows that the resolution may only be relied on as providing the legal basis for military action if it has the effect of reviving the authorisation to use force contained in resolution 678 (1990).
‘My predecessors have advised that it may be argued that the authorisation in resolution 678 revives where the Security Council has determined that there has been a breach of the ceasefire conditions imposed on Iraq by resolution 687 (1991) which is sufficiently grave to undermine the basis of the ceasefire (the so-called “revival argument”).
‘I agree with this advice, although the arguments are not straightforward.
‘However, I do not believe that the revival argument would be defensible if, in a particular case, the council has made it clear either that action short of the use of force should be taken to ensure compliance with the terms of the ceasefire or that it intends to decide subsequently what action is required to ensure compliance.’
He added: ‘Certain aspects of resolution 1441 indicate that the Security Council intended to revive the authorisation in resolution 678.’
He said there was a ‘reasonable case’ for saying that UN resolution 1441 of November 2002 could be used to authorise war without a further resolution.
Goldsmith added: ‘However, if action were to be taken without a further security council decision, particularly if the UK had tried and failed to secure the adoption of a second resolution, I would expect the government to be accused of acting unlawfully.
‘Therefore, if these circumstances arise, it will be important to ensure that the government is in a position to put up a robust defence.
‘This means that there must be very strong factual grounds for concluding that Iraq has failed to take the final opportunity granted by the council.’
On 12 February, Goldsmith also said: ‘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.
‘But 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.’
However, he said that following a visit to Washington in early 2003, he was ‘prepared to accept that a reasonable case’ could be made that military action was authorised by existing resolutions, including resolution 1441.
He cited the fact that British forces had undertaken military action in Iraq as recently as in 1998, and Kosovo in 1999, when his predecessors had given the go-ahead on the basis that doing so was ‘no more than reasonably arguable’.
In an earlier letter to Blair on 30 January, the text of which has also been published, Goldsmith had said he ‘remained of the view that the correct legal interpretation of resolution 1441 is that it does not authorise the use of military force without a further determination by the Security Council’.
Also contained in the declassified documents on Wednesday was a minute of a meeting in Downing Street on 19th December 2002.
The then prime minister’s chief of staff, Jonathan Powell Powell, and others were discussing what might happen next after resolution 1441 has been passed.
Powell outlined three scenarios. The first involved the UN weapons inspectors finding a ‘material breach’ and authorising the use of force, and the second involved the inspectors catching Saddam out in some way but the security council not passing a second resolution.
Powell suggested that both would lead to war.
The third scenario was: ‘The US become frustrated with the UN process and decide to take military action regardless, ie without UN support.’
The minute, written by a member of Goldsmith’s team, goes on: ‘There would be no question of the UK supporting military action in the event of scenario (three). In the absence of UK support, however, it was unlikely that the US would proceed.’
Several government lawyers have told the Iraq Inquiry that they believed the invasion was unlawful without explicit UN authorisation.
In a letter explaining his decision to de-classify the documents, head of the civil service Sir Gus O’Donnell said it was a ‘long-standing convention’ that legal advice to ministers was not published so as not to compromise their ability to provide ‘full, frank and candid advice’.
But he said arguments over the legality of the war in Iraq had a ‘unique status’.
O’Donnell wrote to Iraq Inquiry chair Chilcot: ‘The government’s actions with respect to the decision to use military force in Iraq, have in part, contributed to a widely-held view that the public and Parliament are entitled to some explanation for the legal basis for the decision.’
At the inquiry on Wednesday afternoon, Iain Macleod, who was a Foreign Office lawyer, but on attachment to the British mission at the UN in New York, gave evidence.
His witness statement said: ‘The advice on the legality of the action against Iraq has been severely criticised by some, and the revival argument dismissed out of hand. But given the pedigree of the revival argument in the UN system and in the UK (see paragraphs 18 to 20) this criticism seems unduly harsh.’
In his oral evidence, Macleod said that if 1441 did not contain the provisions to authorise war without a second UN resolution, it would not have taken the UN so long to negotiate this.
This is a point Goldsmith also made in his evidence.
Sir Roderic Lyne asked Macleod why Britain tried to get a second UN resolution when the government thought it was not necessary.
Macleod said that was a political decision: ‘It would have made a huge difference politically to have had a further resolution from the security council.’
Lyne asked whether seeking a second resolution undermined the claim that it was not necessary. Macleod replied that he could see that argument.
Lyne added: ‘Would it have been wiser not to try for a second resolution?’
Macleod says this was all about politics in London: ‘I don’t think going for a second resoluton was our idea.’
