April 27, 2005

Attorney General less than confident about war on March 7th 2003.

Writing about web page http://www.channel4.com/news/special-reports/special-reports-storypage.jsp?id=91

I've just been watching Channel 4 news and they're somehow managed to procure a copy of an earlier version of advice from the Attorney General than that which had hitherto been available, which suggests that the legal justification for the Iraq war was not as unequivocal as the government has been claiming.

For example:

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.
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. (Emphasis added).
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 requ1re 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 a 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."

Not altogether surprising, but I'm surprised that even this government managed to get 'go right ahead' out of that.


- One comment

  1. The whole Channel 4 news appeared to be about this, apart from a French airline head going "eet is bullsheet" (on a completely unrelated story).

    27 Apr 2005, 20:59


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