THE DANGERS OF COURT ACTION IN RESPONSE TO WAR IN IRAQ
'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. We cannot absolutely rule out that some state strongly opposed to military action might try to bring such a case. It is also possible that CND may try to bring further action to stop military action in the domestic courts. Two further 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.'
Lord Goldsmith warns explicitly of the dangers of launching a military strike without clear authorisation. He says Tony Blair could face prosecution under common law in the UK courts. The UK, and by implication British troops, could even find themselves tried for murder.
REGIME CHANGE AND A PROPORTIONATE RESPONSE
'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. 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.'
Lord Goldsmith is warning Tony Blair against using excessive force in achieving his aim. He says there are legal implications for Britain launching a full-scale invasion without curbing its fire power in the interests of 'proportionality'. The Attorney General was effectively saying that to flatten Saddam Hussein's palaces, or the homes of his supporters, or to bomb the whole country into submission, could be regarded as a disproportionate response. He then tells Mr Blair to watch what he says. A slip of the tongue suggesting that the use of military force was designed for anything more than ridding Iraq of WMD could land him in hot water legally. It seems Mr Blair did not take the Attorney General's advice on this point too literally. Asked about the advice yesterday, he said: 'I took the view then, [and] I take the view now that it was better for this country's security and the security of the world to remove Saddam and put him in prison rather than have him in power.'
'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. In my opinion there must be some degree of imminence. 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.'
This may go to the heart of the claim made by Tony Blair that Saddam could deploy weapons of mass destruction within 45 minutes of an order to do so. The claim was discredited after it was revealed that it was based on intelligence that was subsequently withdrawn. Lord Goldsmith raises caveats about claiming that invading Iraq is a form of self protection and effectively knocks it down as a legal justification for force. On the US doctrine of preemptive self defence, he says: 'This is not a doctrine which, in my opinion, exists or is recognised in international law.'
WHO JUDGES WHEN IRAQ IS IN 'MATERIAL BREACH' OF UN RESOLUTIONS?
'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. …