5 | Advice on the legal basis for military action, November 2002 to March 2003

52. Sir David Manning, Mr Blair’s Foreign Policy Adviser and Head of the Cabinet Office

Overseas and Defence Secretariat (OD Sec), subsequently spoke to Dr Condoleezza

Rice, President Bush’s National Security Advisor, on 15 November.10 Sir David stated

that the UK and the US should not be drawn on “hypothetical scenarios” about what

would constitute a material breach. Reflecting Mr Blair’s words to President Bush at

Camp David on 7 September that, “If Saddam Hussein was obviously in breach we

would know”, Sir David added that “the Security Council would know a material breach

when it saw it”. He reported that the US Administration would continue to insist on

“zero tolerance” to keep up the pressure on Saddam Hussein.

53. 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 (and to Sir Jeremy Greenstock

on 15 November.11

54. The 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 Hans Blix, the Executive Chairman of the UN Monitoring, Verification

and Inspection Commission (UNMOVIC), 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”.

55. The FCO paper stated that the US was “becoming more and more inclined to

interpret the 1441 definition downwards” and that: “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 the UNMOVIC) as triggers for the use of

force, more recently DoD [Department of Defense] have indicated that they want to test

Saddam early.” It 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.

56. 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”.

10 Letter Manning to McDonald, 15 November 2002, ‘Iraq: Conversation with Condi Rice’.

11 Letter Sinclair to Manning, 15 November 2002, ‘Iraq: Material Breach’ attaching Paper, ‘Iraq:

A Material Breach’.

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