5 |
Advice on the legal basis for military action, November 2002 to
March 2003
61.
An undated,
unsigned document, headed ‘Background on material breach’
and
received in
No.10 around 20 November 2002, raised the need to address three,
primarily
legal,
issues:
•
the need to
clarify whether OP4 “must be construed” in the light of the
Vienna
Convention
and past practice as that suggested “a much higher bar than
the
US”;
•
the need to
seek Lord Goldsmith’s advice “on how OPs 1 and 2 (and 13)
and
the
declaration of material breach they contain – affect the legal
situation of Iraq
and our
authority to use force”; and specifically whether it could be
argued that
“1441 itself
(especially OPs 1, 2 and 13 taken together) contains a
conditional
authority
to use force … which will be fully uncovered once that
Council
discussion
has taken place”; and
•
“What
happens if a second resolution is vetoed?”12
62.
The document
appears to have drawn on the analysis in the FCO paper
of
15 November.
63.
On the second
issue, the author wrote:
“If this
[the argument that 1441 contains a conditional authority to use
force] has
merit (and
the most we can hope for in the absence of an express Chapter
VII
authorisation
is a reasonable argument) it would be helpful to know that
now.
We would
not have to impale ourselves and Ministers on the difficult point
of
what happens
if the US/UK try and fail to get an express
authorisation.
“… we think
London seriously needs to consider revising its thinking on
1441.
“… from the
point of view of OP4 the question is ‘What does Iraq have to do to
put
itself
beyond the protection of the law? At what point does its conduct
amount to
material
breach?’ Innocent until proved guilty.
“But if you
come at it through OPs 1 and 2 the question is ‘When has Iraq blown
its
last
chance? (regardless of whether OP4 is ever breached)’. Compliance
with OP4
is strictly
irrelevant: Iraq is guilty but released on a suspended
sentence/parole.
This seems
to us to have huge presentational angles – as well as whatever
legal
deductions
can be made. If we are
not careful, we are in danger of losing the
key
advantage of the resolution and turning a provision which we
thought of
deleting as
unnecessary into the main operational paragraph of the text
…”
64.
Someone in
No.10 wrote: “Is this, tho’ a hidden trigger? (We and the US denied
that
there was
one in 1441.)”13
12
Paper
[unattributed and undated], ‘Background on material
breach’.
13
Manuscript
comment on Paper [unattributed and undated], ‘Background on
material breach’.
15