The Report
of the Iraq Inquiry
47.
Mr Geoff
Hoon, the Defence Secretary, did not regard the position that
“we
would know
a material breach when we see it” as a suitable basis for
planning.
Mr Hoon’s
view was that agreement with the US on what constituted a trigger
for
military
action was needed quickly.
48.
The papers
produced before Mr Straw’s meeting held in his Private Office
on
20 November
recognised that Lord Goldsmith’s advice would be needed to
clarify
those
issues; and that it would be useful to seek Lord Goldsmith’s advice
sooner
rather than
later.
49.
There is,
however, no evidence of a discussion about the right timing
for
seeking
Lord Goldsmith’s views.
50.
A debate on
what might constitute a material breach and what actions by Iraq
might
trigger a
military response had begun in the US before the adoption of
resolution 1441.
The concept
of “material breach” is central to the revival
argument.
Material
breach is a term derived from Article 60 of the Vienna Convention
on the Law of
Treaties,
1969. In that context a material breach is said to consist in a
repudiation of the
treaty or a
violation of a provision essential to the accomplishment of the
object or purpose
of the
treaty.
A material
breach of a bilateral treaty by one of the parties entitles the
other to invoke the
breach as a
ground for terminating the treaty or suspending its operation in
whole or in
part.
A material
breach of a multilateral treaty by one of the parties entitles the
other parties
by
unanimous agreement to suspend the operation of the treaty in whole
or in part, or
to terminate
it either in relations between themselves and the defaulting State
or entirely.
Resolution
707 (1991) was the first resolution in relation to Iraq to use the
formulation,
condemning:
“Iraq’s
serious violation of a number of its obligations under section C
of
resolution 687
(1991) and of its undertakings to cooperate with the
Special
Commission
and the International Atomic Energy Agency, which constitutes
a
material
breach of the relevant provisions of that resolution 687 which
established
a
cease-fire and provided the conditions essential to the restoration
of peace and
security in
the region.”
51.
On 7 November,
reporting conversations with senior officials in the
US
Administration,
Mr Tony Brenton, Deputy Head of Mission at the British
Embassy
Washington,
said that the hawks in Washington saw the resolution as a defeat
and
warned that
they would be “looking for the least breach of its terms as a
justification
for resuming
the countdown to war”.9
9
Minute
Brenton to Gooderham, 7 November 2002, ‘Iraq’.
12