The Report
of the Iraq Inquiry
Gulf War
[1991] cease-fire”. That position had been reflected in
Mr Straw’s remarks in
the House
of Commons on 25 November. The FCO expected most members of
the
Security
Council to take a similar view.
94.
Consistent
with the advice sent to Sir David on 15 and 29 November, the
FCO
wrote that
there were two broad areas where Iraqi behaviour could amount to a
material
breach:
•
Non-compliance
with its disarmament obligations – if Iraq
concealed WMD.
Evidence
might take the form of discovery of WMD material not included in
the
declaration
or evidence which Iraq could not satisfactorily explain which
clearly
pointed to
a concealed WMD programme (e.g. a yellowcake receipt).
•
Non-co-operation
with UNMOVIC/IAEA – if Iraq’s
behaviour demonstrated
that it had
no intention of co-operating fully with UNMOVIC in fulfilling
its
mandate
under resolution 1441 (2002) or other relevant resolutions.
Evidence
might
comprise a single incident such as denying access to a particular
site,
information
or personnel. Evidence of coaching witnesses or
smuggling
information
out of potential sites would be “pretty damming”. Attempts to
impede
the removal
and destruction of WMD or related material would potentially
be
a material
breach.
95.
The FCO view
was that there would be no need for “a single specific
instance”.
A “pattern
of lower level incidents” could amount to a demonstration of
non-co-operation
sufficiently
serious to constitute a material breach. Indications of concealment
could
include “a
series of unanswered questions identified by UNMOVIC/IAEA
which
suggested a
concealed WMD programme” or “failure … to demonstrate
convincingly
that the
WMD material identified by UNSCOM [United Nations Special
Commission]
in 1998 had
been destroyed and properly accounted for”; “Much would depend on
the
circumstances
and whether the incidents demonstrated deliberate
non-co-operation
rather than
inefficiency or confusion.”
96.
The FCO
concluded that there were:
“… bound to
be grey areas over whether Iraqi failures are sufficiently serious
to
constitute
a material breach. There is no agreement in the Council on the
precise
criteria.
We would need in each case to look at the particular
circumstances.
Moreover,
some incidents of non-compliance may be susceptible to remedial
action
by
UNMOVIC/IAEA (e.g. by destroying weapons etc). In such cases, those
seeking
to trigger
enforcement action would need to explain how such action would
be
necessary
to enforce Iraqi compliance.”
20