3.2 |
Development of UK strategy and options, January to April 2002 –
“axis of evil” to Crawford
to use
force was not explicit. Reliance on it now would be unlikely to
receive
293.
The FCO also
identified a difference in the view of the UK and US about the role
of
the
Security Council in determining any breach of the cease-fire
enshrined in resolution
687 (1991).
It stated:
“As the
cease-fire was proclaimed by the Council … it is for the Council to
assess
whether any
breach of those obligations has occurred. The US have a
rather
different
view: they maintain that the assessment of a breach is for
individual
Member
States. We are not aware of any other State which supports this
view.”
294.
In relation to
the possible legal grounds for the use of force set out in the
FCO
note, Sir
Michael Wood, the FCO Legal Adviser from 1999 to 2006, told the
Inquiry:
“I think
the legal position was pretty straightforward and pretty
uncontroversial.
The first
possible basis would be self-defence and it was clear to all the
lawyers
concerned
that … a factual basis for self-defence was not present
unless
circumstances
changed …
“The second
possibility would have been the exceptional right to use force in
the
case of an
overwhelming humanitarian catastrophe. This was the Kosovo
argument,
the
argument we used in 1999, and also used for the No-Fly Zones. Apart
from the
No-Fly
Zones, it was clear that there was no basis, using that rather
controversial
argument,
for the use of force in 2001/2002.
“So that
left the third possible basis, which was with authorisation by the
Security
Council.
There we had had a series of resolutions culminating in 1205 of
1998,
which was
seen as the basis for Operation Desert Fox … so there was a
slight
question
whether that finding of a serious breach still had some
force.
“But I
think all the lawyers who looked at it … were very clearly of the
view that it
was not,
and that if we sought to rely on that resolution of some years
before, we
wouldn’t
have a leg to stand on.”99
295.
The Cabinet
Office paper stated that for the P5 and the majority of the
Security
Council to
take the view that Iraq was in breach of the cease-fire provisions
of resolution
687
(1991):
“•
they would
need to be convinced that Iraq was in breach of its
obligations
regarding
WMD, and ballistic missiles. Such proof would need to
be
incontrovertible
and of large-scale activity. Current intelligence is
insufficiently
robust to
meet this criterion …; or
98
Paper FCO,
[undated], ‘Iraq: Legal Background’, attached to Paper Cabinet
Office, 8 March 2002,
‘Iraq: Options
Paper’.
99
Public
hearing, 26 January 2010, pages 12-14.
439