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

73. Sir Jeremy proposed that “When the time came”, the UK should put down a draft

resolution and, “if we could show that we had done everything possible, then we would

be in the best possible position if – in the end – there were no resolution”.

74. Sir David suggested that France should be invited to co-sponsor the resolution.

Mr Straw agreed.

75. Sir Jeremy advised that “the real strength” of resolution 1441 lay in its first two

operative paragraphs: OP1 reaffirming Iraq’s material breach up to the adoption of 1441,

and OP2 suspending that material breach to give Iraq a final opportunity. Sir Jeremy

stated that OP4 (and 11 and 12) were, therefore, not needed to reach the “serious

consequences” in OP13. He was already using that argument in the Security Council

and cautioned Mr Straw that focusing too much on OP4 brought a danger of weakening

OPs 1 and 2.

76. Sir Michael Jay took a different view, advising that the UK could use all the OPs

in resolution 1441. Mr Straw agreed that it would be a mistake to focus exclusively on

OPs 1 and 2.

77. Given the reference to “London” and the content of Sir Jeremy’s advice to Mr Straw

in the Private office meeting on 20 November, the unsigned and undated document

‘Background on material breach’ was most probably produced in the UK Mission in

New York.

78. When the House of Commons debated Iraq on 25 November, it voted to

“support” resolution 1441 and agreed that if the Government of Iraq failed

“to comply fully” with its provisions, “the Security Council should meet in order

to consider the situation and the need for full compliance”.

79. Mr Straw assured Parliament that a material breach would need to be serious.

80. Mr Straw’s interpretation was consistent with the advice given to him by FCO

Legal Advisers, and properly recognised the need for a material breach to be

sufficiently serious to undermine the basis for the cease-fire in resolution 687

(1991).

81. But Mr Straw explicitly did not address the role of the Security Council in

assessing whether any report of non-compliance or obstruction would amount

to a material breach.

82. Mr Straw’s reference to a judgement having “to be made against the real

circumstances that arise” highlighted the problem created by the drafting of that

clause in OP4 of resolution 1441.

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