The Report
of the Iraq Inquiry
•
the issue
of whether a further resolution would be needed to
authorise
force;
and
•
the
implications of a veto.
64.
The papers
produced before Mr Straw’s meeting on 20 November
recognised
that
Lord Goldsmith’s advice would be needed to clarify those
issues.
65.
A paper on
what might constitute a material breach, which highlighted “a
number
of
difficult questions … on which we will need to consult the Attorney
General”,
was
prepared by the FCO and sent to Sir David Manning,
Sir Jeremy Greenstock,
Sir Christopher
Meyer and Mr Watkins on 15 November.20
66.
The FCO paper
stated that “Most, if not all members of the Council will be
inclined”
to take the
view that a “material breach” should be interpreted in the light of
the Vienna
Convention.
Dr Blix had “made it clear” that he would “be using a similar
definition for
the
purposes of reporting under OP11”. The paper stated that it was not
for Dr Blix to
determine
what constituted a material breach, “but his decision (or not) to
report to the
Council and
the terms in which he reports” would “be influential”.
67.
The FCO stated
that the US was “becoming more and more inclined to
interpret
the 1441
definition downwards”: “Although, some weeks ago, NSC [National
Security
Council]
indicated that they would not regard trivial omissions in Iraq’s
declaration
[or minor
problems encountered by UNMOVIC] as triggers for the use of
force,
more
recently DoD [Department of Defense] have indicated that they want
to test
Saddam early.”
68.
The FCO also
drew attention to President Bush’s remarks on 8 November,
which
it
described as “zero tolerance” and his warning against “unproductive
debates” about
what would
constitute an Iraqi violation.
69.
An examination
of past practice on seven separate occasions since 1991
showed
that the
Council had determined Iraq to be in material breach of its
obligations where
there
seemed “to have been a conviction that an Iraqi act would seriously
impede
inspectors
in the fulfilment of their mandate and therefore undermine an
essential
condition
of the cease‑fire”.
70.
Against that
background, the FCO listed the following incidents as ones which
the
UK would
consider to be material breaches:
•
“[A]ny
incident sufficiently serious to demonstrate that Iraq had no real
intention
of
complying” such as “an Iraqi decision to expel UNMOVIC, or to
refuse access
to a
particular site, parts of a site or important information”,
“discovery by
20
Letter
Sinclair to Manning, 15 November 2002, ‘Iraq: Material Breach’,
attaching Paper [FCO],
[undated],
‘Iraq: A Material Breach’.
16