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_______________________________________________________________________

This is a reformatted exact copy of the "Goldsmith Memo" (dated 7 March 2003) on the legal basis of military

action against Iraq. Released by the government of the U.K. on 28 April 2005 and accessed on that date at

http://www.pm.gov.uk/files/pdf/Iraq%20Resolution%201441.pdf. The scanned version of the original

memo as released by the Prime Minister's office on 28 April 2005 is available at

http://www.comw.org/warreport/fulltext/0303goldsmith1441.pdf.

________________________________________________________________________

PRIME MINISTER

IRAQ: RESOLUTION 1441

1. You have asked me for advice on the legality of military action against Iraq without a

further resolution of the Security Council. This is, of course, a matter we have discussed

before. Since then I have had the benefit of discussions with the Foreign Secretary and

Sir Jeremy Greenstock, who have given me valuable background information on the

negotiating history of resolution 1441. In addition, I have also had the opportunity to hear

the views of the US Administration from their perspective as co-sponsors of the

resolution. This note considers the issues in detail in order that you are in a position to

understand the legal reasoning. My conclusions are summarized at paragraphs 26 to

31 below.

Possible legal basis for the use of force

2. As I have previously advised, there are generally three possible bases for the

use of force:

(a) self-defence (which may include collective self-defence);

(b) exceptionally, to avert overwhelming humanitarian catastrophe; and

(c) authorisation by the Security Council acting under Chapter VII of the UN

Charter.

3. Force may be used in self-defence if there is an actual or imminent threat of an armed

attack; the use of force must be necessary, ie the only means of averting an attack; and

the force used must be a proportionate response. It is now widely accepted that an

imminent armed attack will justify the use of force if the other conditions are met. The

concept of what is imminent may depend on the circumstances. Different considerations

may apply, for example, where the risk is of attack from terrorists sponsored or harboured

by a particular State, or where there is a threat of an attack by nuclear weapons. However,

in my opinion there must be some degree of immanence. I am aware that the USA

has been arguing for recognition of a broad doctrine of a right to use force to pre-empt

danger in the future. If this means more than a right to respond proportionately to an

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imminent attack (and I understand that the doctrine is intended to carry that connotation)

this is not a doctrine which, in my opinion, exists or is recognised in international law.

4. The use of force to avert overwhelming humanitarian catastrophe has been

emerging as a further, and exceptional, basis for the use of force. It was relied on by the

UK in the Kosovo crisis and is the underlying justification for the No-Fly Zones. The

doctrine remains controversial, however. I know of no reason why it would be an

appropriate basis for action in present circumstances.

5. Force may be used where this authorised by the UN Security Council acting under

Chapter VII of the UN Charter. The key question is whether resolution 1441 has the

effect of providing such authorisation.

Resolution 1441

6. As you are aware, the argument that resolution 1441 itself provides the authorisation to

use force depends on the revival of the express authorisation to use force given in 1990

by Security Council resolution 678. This in turn gives rise to two questions:

(a) is the so-called "revival argument" a sound legal basis in principle?

(b) is resolution 1441 sufficient to revive the authorisation in resolution 678?

I deal with these questions in turn. It is a trite, but nonetheless relevant observation given

what some commentators have been saying, that if the answer to these two questions is

"yes", the use of force will have been authorised by the United Nations and not in

defiance of it.

The revival argument

7. Following its invasion and annexation of Kuwait, the Security Council authorised the

use of force against Iraq in resolution 678 (1990). This resolution authorised coalition

forces to use all necessary means to force Iraq to withdraw from Kuwait and to restore

international peace and security in the area. The resolution gave a legal basis for

Operation Desert Storm, which was brought to an end by the cease-fire set out by the

Council in resolution 687 (1991). The conditions for the cease-fire in that resolution (and

subsequent resolutions) imposed obligations on Iraq with regard to the elimination of

WMD and monitoring of its obligations. Resolution 687 suspended, but did not

terminate, the authority to use force in resolution 678. Nor has any subsequent resolution

terminated the authorisation to use force in resolution 678. It has been the UK's view that

a violation of Iraq's obligations under resolution 687 which is sufficiently serious to

undermine the basis of the ceasefire can revive the authorisation to use force in resolution

678.

8. In reliance on this argument, force has been used on certain occasions. I am advised by

the Foreign Office Legal Advisers that this was the basis for the use of force between 13

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and 18 January 1993 following UN Presidential Statements on 8 and 11 January 1993

condemning particular failures by Iraq to observe the terms of the cease-fire resolution.

The revival argument was also the basis for the use of force in December 1998 by the US

and UK (Operation Desert Fox). This followed a series of Security Council resolutions,

notably, resolution 1205 (1998).

9. 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. That view is supported by an opinion given in August 1992 by the then

UN Legal Counsel, Carl-August Fleischauer. However, the UK has consistently taken the

view (as did the Fleischauer opinion) that, as the cease-fire 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.

10. The revival argument is controversial. It is not widely accepted among academic

commentators. However, I agree with my predecessors' advice on this issue. Further, I

believe that the arguments in support of the revival argument are stronger following

adoption of resolution 1441. That is because of the terms of the resolution and the course

of the negotiations which led to its adoption. Thus, preambular paragraphs 4, 5 and 10

recall the authorization to use force in resolution 678 and that resolution 687 imposed

obligations on Iraq as a necessary condition of the cease-fire. Operative paragraph (OP) 1

provides that Iraq has been and remains in material breach of its obligations under

relevant resolutions, including the resolution 687. OP13 recalls that Iraq has been warned

repeatedly that "serious consequences" will result from continued violations of its

obligations. The previous practice of the Council and statements made by Council

members during the negotiation of resolution 1441 demonstrate that the phrase "material

breach" signifies a finding by the Council of a sufficiently serious breach of the cease-fire

conditions to revive the authorisation in resolution 678 and that "serious consequences" is

accepted as indicating the use of force.

11. I disagree, therefore, with those commentators and lawyers, who assert that nothing

less than an explicit authorisation to use force in a Security Council resolution will be

sufficient.

Sufficiency of resolution 1441

12. In order for the authorisation to use force in resolution 678 to be revived, there needs

to be a determination by the Security Council that there is a violation of the conditions of

the cease-fire and that the Security Council considers it sufficiently serious to destroy the

basis of the cease-fire. Revival will not, however, take place, notwithstanding a finding of

violation, if the Security 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 cease-fire, or that it

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intends to decide subsequently what action is required to ensure compliance.

Notwithstanding the determination of material breach in OP1 of resolution 1441, it is

clear that the Council did not intend that the authorisation in resolution 678 should revive

immediately following the adoption of resolution 1441, since OP2 of the resolution

affords Iraq a "final opportunity" to comply with its disarmament obligations under

previous resolutions by cooperating with the enhanced inspection regime described in

OPs 3 and 5-9. But OP2 also states that the Council has determined that compliance with

resolution 1441 is Iraq's last chance before the cease-fire resolution will be enforced. OP2

has the effect therefore of suspending the legal consequences of the OP1 determination of

material breach which would otherwise have triggered the revival of the authorisation in

resolution 678. The narrow but key question is: on the true interpretation of resolution

1441, what has the Security Council decided will be the consequences of Iraq's failure to

comply with the enhanced regime.

13. The provisions relevant to determining whether or not Iraq has taken the final

opportunity given by the Security Council are contained in OPs 4, 11 and 12 of the

resolution.

- OP4 provides that false statements or omissions in the declaration to be submitted by

Iraq under OPS and failure by Iraq at any time to comply with and cooperate fully in the

implementation of resolution 1441 will constitute a further material breach of Iraq's

obligations and will be reported to the Council for assessment under paragraphs 11 and

12 of the resolution.

- OP11 directs the Executive Chairman of UNMOVIC and the Director-General of the

IAEA to report immediately to the Council any interference by Iraq with inspection

activities, as well as any failure by Iraq to comply with its disarmament obligations,

including the obligations regarding inspections under resolution 1441.

- OP12 provides that the Council will convene immediately on receipt of a report in

accordance with paragraphs 4 or 11 "in order to consider the situation and the need for

compliance with all of the relevant Council resolutions in order to secure international

peace and security".

It is clear from the text of the resolution, and is apparent from the negotiating history, that

if Iraq fails to comply, there will be a further Security Council discussion. The text is,

however, ambiguous and unclear on what happens next.

14. There are two competing arguments:

(i) that provided there is a Council discussion, if it does not reach a conclusion,

there remains an authorisation to use force;

(ii) that nothing short of a further Council decision will be a legitimate basis for

the use of force.

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The first argument

15. The first argument is based on the following steps:

(a) OP1, by stating that Iraq "has been and remains in material breach" of its obligations

under relevant resolutions, including resolution 687 amounts to a determination by the

Council that Iraq's violations of resolution 687 are sufficiently serious to destroy the basis

of the cease-fire and therefore, in principle, to revive the authorisation to use force in

resolution 678;

(b) the Council decided, however, to give Iraq "a final opportunity" (OP 2) but because of

the clear warning that it faced "serious consequences as a result of its continued

violations" (OP 13) was warning that a failure to take that "final opportunity" would lead

to such consequences;

(c) further, by OP 4, the Council decided in advance that false statements or omissions in

its declaration and "failure by Iraq at any time to comply with, and cooperate fully in the

implementation of, this resolution" would constitute "a further material breach"; the

argument is that the Council's determination in advance that particular conduct would

constitute a material breach (thus reviving the authorisation to use force) is as good as its

determination after the event;

(d) in either event, the Council must meet (OP 12) "to consider the situation and the need

for full compliance with all of the relevant Council resolutions in order to secure

international peace and security'; but the resolution singularly does not say that the

Council must decide what action to take. The Council knew full well, it is argued, the

difference between "consider" and "decide" and so the omission is highly significant.

Indeed, the omission is especially important as the French and Russians made proposals

to include an express requirement for a further decision, but these were rejected precisely

to avoid being tied to the need to obtain a second resolution. On this view, therefore,

while the Council has the opportunity to take a further decision, the determinations of

material breach in OPs 1 and 4 remain valid even if the Council does not act.

The second argument

16. The second argument focuses, by contrast, on two provisions in particular of the

resolution: first, the final words in OP 4 ("and will be reported to the Council for

assessment in accordance with paragraphs 11 and 12 below") and, second,, the

requirement in OP 12 for the Council to "consider the situation and the need for full

compliance with all of the relevant Council resolutions in order to secure international

peace and security". Taken together, it is argued, these provisions indicate that the

Council decided in resolution 1441 that in the event of continued Iraqi non-compliance,

the issue should return to the Council for a further decision on what action should be

taken at that stage.

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Discussion

17. So far as OP4 of the resolution is concerned, one view is that the words at the end of

this paragraph indicate the need for an assessment by the Security Council of how serious

any Iraqi breaches really are and whether they are sufficiently serious to destroy the basis

of the cease-fire. This argument is supported by public statements to the effect that only

serious cases of noncompliance will constitute a further material breach. Thus, the

Foreign Secretary stated in Parliament on 25 November that "material breach means

something significant; some behaviour or pattern of behaviour that is serious. Among

such breaches could be action by the Government of Iraq seriously to obstruct or impede

the inspectors, to intimidate witnesses, or a pattern of behaviour where any single action

appears relatively minor but the action as a whole add up to something deliberate and

more significant: something that shows Iraq's intention not to comply". If that is right,

then the question is who makes the assessment of what constitutes a sufficiently serious

breach. On the UK view of the revival argument (though not the US view) that can only

be the Council, because only the Council can decide if a violation is sufficiently serious

to revive the authorisation to use force.

18. It is right to say, however, that such an argument has less force if OP 4 operates

automatically. Thus, the wording of OP4 indicates that any failure by Iraq to comply with

and cooperate fully in the implementation of the resolution will constitute a further

material breach (leaving aside the question of whether false statements or omissions in

the OPS declaration is an additional requirement). If OP4 means what it says: the words

"cooperate fully" were included specifically to ensure that any instances of non-

cooperation would amount to a further material breach. This is the US analysis of OP4

and is undoubtedly more consistent with the view that no further decision of the Council

is necessary to authorise force, because it can be argued that the Council has determined

in advance that any failure will be a material breach.

19. It has been suggested that it is possible to establish that Iraq has failed to take its final

opportunity through the procedures in OPs 11 and 12 without regard to OP4, in which

case it is unnecessary to consider the effect of the words "for assessment". I do not

consider that this argument really assists. First, the resolution must be read as a whole.

Second, I accept that it is possible that a Council discussion under OP12 may be triggered

by a report from Blix and El-Baradei under OP11 and that this may have the effect of

establishing that Iraq has failed to lake the final opportunity granted by OP2. But I do not

consider that it can be argued seriously that OP4 does not apply in these circumstances. It

is clear from a comparison of the wording of paragraphs 4 and 11 that any Iraqi conduct

which would be sufficient to trigger a report from the inspectors under OP11 would also

amount to a failure to comply with and cooperate fully in the implementation of the

resolution and would thus also be covered by OP4. In addition, the reference to paragraph

11 in OP4 cannot be ignored. It is not entirely clear what this means, but the most

convincing explanation seems to be that it is a recognition that an OP11 inspectors' report

would also constitute a report of further material breach within the meaning of OP4 and

would thus be assessed by the Council under OP12. Moreover, the US see OP4 as an

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essential part of the mechanism for establishing that Iraq has failed to take its final

opportunity.

20. It has also been suggested that the final words of OP4 were chosen carefully to avoid

the implication that it was for the Security Council to assess whether Iraqi conduct

constituted a further material breach. The French proposed to amend OP4 so that Iraqi

conduct would only amount to a further material breach "when assessed" as such by the

Council, but this amendment was not accepted. I am not wholly convinced by this

argument: if, for the reasons discussed in paragraph 17 above, OP4 requires an

assessment of Iraq's conduct by the Council, the alternative language makes little

difference. However, I do accept that the negotiating history indicates that the words at

the end of OP4 "and shall be reported to the Council for assessment in accordance

with paragraphs 11 and 12" were added at a late stage, but in substitution for

other language which would clearly have had the effect of making any finding of

further material breach subject to a further Council decision.

21. Whether a report comes to the Council under OP4 or OP11, the critical issue is what

action the Council is required to take at that point. In other words, what does OP12

require. It is clear that the language of OP12 was a compromise by the US from their

starting position that the Council should authorise in advance the use of all necessary

means to enforce the cease-fire resolution in the event of continued violations by Iraq. It

is equally clear, however, that the language does not expressly provide that a further

Council decision is necessary to authorise the use of force. The paragraph indicates

that in the event of a report of a further material breach (whether under OP4 or OP11)

there will be a meeting of the Council to consider the situation and the need for

compliance in order to secure international peace and security. The Council thus has the

opportunity to take a further decision expressly authorising the use of force or,

conceivably, to decide that other enforcement means should be used. But the Council

might fail to act. The resolution does not state what is to happen in those circumstances.

The clear US view is that, whatever the reason for the Council's failure to act, the

determination of material breach in OPs 1 and 4 would remain valid, thus authorising the

use of force without a further decision. My view is that different considerations apply in

different circumstances. The OP12 discussion might make clear that the Council's view is

that military action is appropriate but that no further decision is required because of the

terms of resolution 1441. In such a case, there would be good grounds for relying on the

existing resolution as the legal basis for any subsequent military action. The more

difficult scenario is if the views of Council members are divided and a further resolution

is not adopted either because it fails to attract 9 votes or because it is vetoed.

22. The principal argument in favour of the view that no further decision is required to

authorise force in these circumstances is that the language of OP12 (ie "consider") was

chosen deliberately to indicate the need for a further discussion, but not a decision. As I

have indicated, it is contended that this interpretation is supported by the negotiating

history. The French and Russians both made proposals to amend OP12 to include an

express requirement for a further decision, but these proposals were not accepted. The

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US Administration insist that they made clear throughout that they would not accept a

text which subjected the use of force to a further Council decision. The French (and

others) therefore knew what they were voting for. The US are confident that in accepting

OPs 4 and 12, they were conceding a Council discussion and no more. The US, of course,

approached the negotiation of resolution 1441 from a different starting point because, as I

explained in paragraph 9 above, they have always taken the view that "material breach" is

a matter of objective fact and does not require a Security Council determination.

(By contrast, the UK position taken on the advice of successive Law Officers, has been

that it is for the Security Council to determine the existence of a material breach of the

cease-fire.) Therefore, while the US objective was to ensure that the resolution did not

constrain the right of action which they believed they already had, our objective was to

secure a sufficient authorisation from the Council in the absence of which we would have

had no right to act. I have considered whether this difference in the underlying legal view

means that the effect of the resolution might be different for the US than for the UK, but I

have concluded that it does not affect the position. If OP12 of the resolution, properly

interpreted, were to mean that a further Council decision was required before force was

authorised, this would constrain the US just as much as the UK. It was therefore an

essential negotiating point for the US that the resolution should not concede the need for

a second resolution. They are convinced that they succeeded.

23. 1 was impressed by the strength and sincerity of the views of the US Administration

which I heard in Washington on this point. However, the difficulty is that we are reliant

on their assertions for the view that the French (and others) knew and accepted that they

were voting for a further discussion and no more. We have very little hard evidence of

this beyond a couple of telegrams recording admissions by French negotiators that they

knew the US would not accept a resolution which required a further Council decision.

The possibility remains that the French and others accepted OP 12 because in their

view it gave them a sufficient basis on which to argue that a second resolution was

required (even if that was not made expressly clear). A further difficulty is that, if the

matter ever came before a court, it is very uncertain to what extent the court would accept

evidence of the negotiating history to support a particular interpretation of the resolution,

given that most of the negotiations were conducted in private and there are no agreed or

official records.

24. The counter view of OP 12 is that this paragraph must imply a decision by the

Council. Three particular arguments support that approach:

(i) when taken with the word "assessment" in OP 4, the language of OP 12 indicates that

the Council will be assessing the seriousness of any Iraqi breach; this is especially

powerful if in truth some assessment is necessary;

(ii) there is a special significance in the words "in order to secure international peace and

security". They reflect not only the special responsibility of the Security Council under

Article 39 of the UN Charter ("The Security Council shall determine the existence of any

threat to the peace, breach of the peace, or acts of aggression and shall make

recommendations, or decide what measures shall be taken to maintain or restore

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international peace and security"), but also pick up the language of both resolution 678

(which authorised the use of force "to restore international peace and security in the

area") and resolution 687 (which referred to the objective of "restoring international

peace and

security in the area as set out in its recent resolutions"). The clear inference, it will be

argued, is that this shows the Council was to exercise a deliberative role on that issue, ie

to determine what it is necessary to secure international peace arid security;

(iii) any other construction reduces the role of the Council discussion under OP12 to a

procedural formality. Others have jibbed at this categorisation, but I remain of the

opinion that this would be the effect in legal terms of the view that no further resolution

is required. The Council would be required to meet, and all members of the Council

would be under an obligation to participate in the discussion in good faith, but even if an

overwhelming majority of the Council were opposed to the use of force, military action

could proceed regardless.

25. Where the meaning of a resolution is unclear from the text, the statements made by

members of the Council at the lime of its adoption may be taken into account in order to

ascertain the Council's intentions. The statements made during the debate on 8 November

2002 are not, however, conclusive. The US and UK stated that further breaches would be

reported to the Council "for discussion". Jeremy Greenstock then added that we would

then expect the Council to "meet its responsibilities", although (implicitly) we would be

prepared to act without Council backing to ensure that the task of disarmament is

completed. Only the US explicitly stated that it believed that the resolution did not

constrain the use of force by States "to enforce relevant United Nations resolutions and

protect world peace and security" regardless of whether there was a further Council

decision. Conversely, two other Council members, Mexico and Ireland, made clear that in

their view a further decision of the Council was required before the use of force would be

authorised. Syria also stated that "the resolution should not be interpreted, through certain

paragraphs, as authorising any State to use force". Most other Council members were less

clear in their comments. The joint statement of France, Russia and China is somewhat

opaque, but seems to imply that a further decision is required. Many delegations

welcomed the fact that there was "no automaticity" in the resolution with regard to the

use of force. But it is not clear what they meant by this. It could indicate that they did not

consider that the resolution authorised the use of force in any circumstances by means of

the revival argument. On the other hand there is some evidence from the negotiating

history that their main concern was that the resolution should not authorise force

immediately following its adoption on the basis of "material breach" in OP1 plus "serious

consequences" in OP13. The UK and US indicated that "no automaticity" meant that

there would be a Council discussion before force was used.

Summary

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

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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 OP

4 such that the basis of the cease-fire 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.

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. I have

already advised that I do not believe that such a resolution need be explicit in its

terms. 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 extremely 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 conclusions, 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 this 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 like as great as it is today.

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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 that time.

Possible consequences of acting without a second resolution

32. 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 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. If it did, an

application for interim measures to stop the campaign could be brought quite quickly (as

it was in the case of Kosovo).

33. The International Criminal Court 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 Government has

already been put on notice by CND that they intend to report to the ICC Prosecutor any

incidents which their lawyers assess to have contravened the Geneva Conventions. 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.

34. It is also possible that CND may try to bring further action to stop military action in

the domestic courts, but I am confident that the courts would decline jurisdiction as they

did in the case brought by CND last November. Two further, though probably more

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remote possibilities, are an attempted prosecution for murder on the grounds that the

military action is unlawful and an attempted prosecution for the crime of aggression.

Aggression is a crime under customary international law which automatically forms part

of domestic law. It might therefore be argued that international aggression is a crime

recognised by the common law which can be prosecuted in the UK courts.

35. In short, there are a number of ways in which the opponents of military action might

seek to bring a legal case, internationally or domestically, against the UK, members of

the Government or UK military personnel. Some of these seem fairly remote possibilities,

but given the strength of opposition to military action against Iraq, it would not be

surprising if some attempts were made to get a case of some sort off the ground. We

cannot be certain that they would not succeed. The GA route may be the most likely, but

you are in a better position than me to judge whether there are likely to be enough States

in the GA who would be willing to vote for such a course of action in present

circumstances.

Proportionality

36. Finally, I must stress that the lawfulness of military action depends not only on the

existence of a legal basis, but also on the question of proportionality. Any force used

pursuant to the authorisation in resolution 678 (whether or not there is a second

resolution):

-- must have as its objective the enforcement the terms of the cease-fire contained in

resolution 687 (1990) and subsequent relevant resolutions;

-- be limited to what is necessary to achieve that objective; and

-- must be a proportionate response to that objective, ie securing compliance with Iraq's

disarmament obligations.

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.

Signed:

Lord [Peter] Goldsmith

ATTORNEY GENERAL

7 March 2003