5 |
Advice on the legal basis for military action, November 2002 to
March 2003
In essence,
the statement was an explicit acknowledgement that the authority to
use force
in
resolution 678 (1990) had been “revived”.
From June
1997, Iraq had begun to interfere with the activities of the UN
Special
Commission
(UNSCOM), which had been established to monitor Iraq’s WMD.
Reports
of Iraqi
failures to comply with the obligations in resolution 687 (1991)
were made by
UNSCOM to
the UN Security Council (see Section 2.2). Several resolutions were
adopted
and
Presidential Statements were issued condemning Iraqi
actions.
In March
1998, the Security Council adopted resolution 1154, stating that
the Council was
acting
under Chapter VII of the Charter, and stressing the need for Iraq
to comply with its
obligations
to provide access to UNSCOM in order to implement resolution 687
(1991).
It stated
that “any violation would have severest consequences for Iraq”.
That resolution
did not,
however, make a finding that Iraq was in breach of its
obligations.
In October
1998, Dr Richard Butler, UNSCOM’s Executive Chairman, reported to
the
Security
Council that Iraq had suspended its co-operation; Iraq’s decision
to suspend
co-operation
made it “impossible for the Commission to implement its disarmament
and
monitoring
rights and responsibilities”.33
On 5
November, the Security Council adopted resolution 1205, condemning
Iraq’s
decision to
cease co-operation with UNSCOM as a “flagrant violation” of
resolution 687
(1991) and
other relevant resolutions. In the final paragraph of the
resolution the Security
Council
decided “in accordance with its primary responsibility under the
Charter for the
maintenance
of international peace and security, to remain actively seized of
the matter”.
Diplomatic
contact between the UN and Iraq continued, as did discussions
within the
Security
Council, but on 16 December 1998, the US and UK launched air
attacks against
Iraq,
Operation Desert Fox.
Mr John
Morris (Attorney General from 1997 to 1999), supported by Lord
Falconer
(as Solicitor
General), advised Mr Blair in November 1997:
“Charles
[Lord Falconer] and I remain of the view that, in the
circumstances
presently
prevailing, an essential precondition of the renewed use of force
to
compel
compliance with the cease-fire conditions is that the Security
Council has,
in whatever
language – whether expressly or impliedly – stated that there has
been
a breach of
the cease-fire conditions and that the Council considers the
breach
sufficiently
grave to undermine the basis or effective operation of the
cease-fire.”34
108.
Recognising
that “final decisions” could “only be made in the light of
circumstances
at the time
(including what transpires in the Council)”, Mr Wood addressed
the
provisions
of the resolution and the rules for their interpretation. As
regards the latter,
he wrote:
“The rules
for treaty interpretation set out in Articles 31 to 33 of the
Vienna
Convention
on the Law of Treaties are a useful starting point, but these have
to be
applied in
a way that takes into account the different nature of resolutions
of the
33
Letter
Executive Chairman of UNSCOM to President of the Security Council,
2 November 1998,
‘S/1998/1032’.
34
Minute
Goldsmith to Prime Minister, 30 July 2002, ‘Iraq’.
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