8.5.1        British Legal Constraints

(This is an archived extract from the book Patterns of Power: Edition 2)

Lord Goldsmith (Britain’s Attorney General) told the Chilcot Inquiry that he was committed to complying with international law.[1]  His evidence included an explanation of the argument that Resolution 1441, which was adopted on 2 November 2002, "constituted authority for the use of force provided that such a factual situation had occurred, namely that Iraq had failed to comply with and cooperate fully in the implementation of the resolution".[2]  This ingenious argument depended upon reviving Resolution 678 – which had authorised the use of force if Iraq failed to comply with the terms of the 1991 ceasefire after it had been ejected from Kuwait (in the context of "cooperating with the government of Kuwait").[3]

He confirmed that he had given the Prime Minister “the green light” to invade, but he acknowledged that Britain and America were alone in their interpretation of international law.[4] The main difference from other interpretations lay in their assumption that any member State was legally permitted to decide to enforce Security Council Resolutions without the agreement of other members (8.4.2).

© PatternsofPower.org, 2014

[1] The Attorney General, Lord Goldsmith, confirmed his commitment to international law in his testimony to the Chilcot Inquiry (para. 2.9):

“I felt that Jack Straw shared my commitment to the position that the UK would only act in accordance with international law.”

His testimony was available in January 2014 at http://www.iraqinquiry.org.uk/media/50118/lord-goldsmith-statement-to-the-inquiry.pdf.

[2] He explained his interpretation of Resolution 1441 in his testimony (ibid, para. 5.7).  The full text of Resolution 1441 was available in April 2014 at http://www.guardian.co.uk/world/2002/dec/20/iraq.foreignpolicy2.

[3] The text of UN Security Council Resolution 678 was available in April 2014 at http://www.fas.org/news/un/iraq/sres/sres0678.htm.

[4] In Lord Goldsmith's testimony to the Chilcot Inquiry (para. 5) he was asked to confirm a statement which he had made to the Prime Minister on 7 March 2003:

"Law Officers have advised in the past that, provided the conditions are made out, the revival argument does provide a sufficient justification in international law for the use of force against Iraq.... However, the UK has consistently taken the view... that as the ceasefire conditions were set by the Security Council in resolution 687, it is for the Council to assess whether any such breach of those obligations has occurred.  The US have a rather different view: they maintain that the fact of whether Iraq is in breach is a matter of objective fact which may therefore be assessed by individual Member States.  I am not aware of any other state which supports this view.  This is an issue of critical importance when considering the effect of resolution 1441."

At paragraph 29 of the above advice he was quoted as saying to the Prime Minister:

"you will need to consider extremely carefully whether the evidence of non-co-operation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity."

In effect he was saying that Member States could determine for themselves whether or not a breach was a matter of objective fact, so that they could dispense with the need to return to the UN Security Council to agree how to proceed, and furthermore that it was for the Prime Minister to decide whether the breach had occurred.

His testimony was available in January 2014 at http://www.iraqinquiry.org.uk/media/50118/lord-goldsmith-statement-to-the-inquiry.pdf.