5 |
Advice on the legal basis for military action, November 2002 to
March 2003
made by the
Iraqis … there will be no decision to be made. The Security
Council
will
undoubtedly then act.”
•
Would there
be a second Security Council resolution if military action
proved
necessary?
Mr Straw stated: “the moment there is any evidence of a
material
breach …
there will be a meeting of the Security Council at which it is …
open
for any
member to move any resolution … Our preference is for a
Security
Council
resolution, and I hope we would move it.”
•
If military
action was necessary, would the House of Commons be able to
vote
on it and,
if so, when? Mr Straw stated: “No decision on military action
has yet
been taken
… and I fervently hope that none will be necessary … Any
decision
… to take
military action will be put to the House as soon as possible after
it has
been taken
… the Government have no difficulty about the idea of a
substantive
motion on
military action … at the appropriate time … [I]f we can and if it
is safe
to do so,
we will propose a resolution seeking the House’s approval of
decisions
… before
military action takes place.”21
88.
The FCO
advised on 6 December that there was no agreement in the
Security
Council on
precise criteria for what would constitute a material breach. Each
case
would need
to be considered in the light of the circumstances.
89.
The UK
position remained that deficiencies in Iraq’s declaration on its
WMD
programmes
could not constitute a casus belli but if an “audit” by the
inspectors
subsequently
discovered significant discrepancies in the declaration, that
could
constitute
a material breach.
90.
The FCO
position was, increasingly, shifting from a single
specific
incident
demonstrating a material breach, to the need to establish a pattern
of
non‑co‑operation
over time demonstrating that Iraq had no intention of
complying
with its
obligations.
91.
In response to
a request from Sir David Manning on 29 November, Mr Straw’s
office
provided
advice on handling the Iraqi declaration.22
The FCO
also provided a refined
version of
the advice in its letter to Sir David of 15 November about what
might comprise
a material
breach.
92.
That was
further refined in a letter from Mr Straw’s office on 6
December responding
to Sir
David’s request for further advice on what would constitute a
“trigger” for action.23
93.
The FCO stated
that a material breach could not “be a minor violation but
must
be a
violation of a provision essential to achieving the object or
purpose of the original
21
House of
Commons, Official
Report, 25
November 2002, column 49.
22
Letter
Sinclair to Manning, 29 November 2002, ‘Iraq: 8 December
Declaration’.
23
Letter
McDonald to Manning, 6 December 2002, ‘Iraq: Material
Breach’.
19