5 |
Advice on the legal basis for military action, November 2002 to
March 2003
that, while
it was preferable, it was not essential for the Security Council to
adopt
a second
resolution.”
27.
Lord Goldsmith
told Mr Straw it “seemed implicit” in resolution 1441 that, in
the
event of
non-compliance, “it would be for the Security Council to decide
whether Iraq”
was in
“material breach”.
28.
Mr Straw
suggested that “the reality was that members of the Security
Council had
had to
agree and ‘coalesce’ around a particular form of words … to the
effect that, if
there were
to be a breach, it would be for the Security Council to meet to
discuss and
consider
what should be done”. That “allowed for ‘a range of possibilities’,
including:
•
“the
possibility that there would have to be a second resolution;
and
•
“the
possibility that there might be a general consensus or desire
[amongst
the five
Permanent Members of the Security Council] for military
action,
but a
preference (in particular by Russia) that there should be no
second
resolution
…”
29.
Mr Straw
again suggested that:
“… it was
necessary to look at the negotiating background. For example
…
[President]
Jaques Chirac had originally insisted on there being a ‘lock’
against the
use of
force unless this had been authorised by the Security Council by a
second
resolution.
But this … did not appear in the resolution … [W]hat France and
Russia
were
virtually saying was that they understood that there might well be
a breach, but
while they
would in fact support the need for military action, they would not
be able
to support
a resolution in terms authorising the use of force.”
30.
Lord Goldsmith
responded that:
“… the
position remained that only the Security Council could decide on
whether
there had
been a material breach (and whether the breach was such as
to
undermine
the conditions underpinning the cease-fire) and/or whether all
necessary
means were
authorised. The question of whether there was a serious breach or
not
was for the
Security Council alone. It was not possible to say that the
unreasonable
exercise of
the veto by a particular member of the Security Council would
be
ineffectual
…”
31.
Mr Straw
“said that there would be a danger in going for a second
resolution”
because,
“if it were not obtained, then we would be in a worse position”. He
“wondered
if there
was any alternative option” between a general discussion in the
Security Council
and the
adoption of a resolution determining a material
breach.
32.
Lord Goldsmith
said that it “could be possible for a valid determination to be
made
by means of
a Presidential Statement”.
9