The Report
of the Iraq Inquiry
expressly
or revive the authorisation in resolution 678 (1990)”, to be “the
better analysis
of the
resolution”.
115.
Commenting on
the way in which Mr Wood had addressed the “second view”,
that
resolution
1441 had conditionally authorised the use of force, Ms Adams wrote:
“I am not
convinced
that he puts the arguments in support of this view at their
strongest.”
116.
Setting out an
alternative analysis, Ms Adams wrote that “one thing is
clearer
following
adoption” of resolution 1441:
“… the
existence of the ‘revival argument’ did not seem to be doubted
within the
Security
Council. The whole basis of the negotiation … was that the words
‘material
breach’ and
‘serious consequences’ were code for authorising the use of
force.
There is
now therefore a much sounder basis for relying on the revival
argument
than
previously.
“… [T]he
question of whether resolution 1441 alone satisfies the conditions
for
reviving
the authorisation in resolution 678 without a further decision of
the Council
is far from
clear from the text … It is therefore not easy to ascertain the
intention of
the
Security Council.”
“What
advice you give … may therefore depend on the view you take as to
your role
in advising
on use of force issues. For example, you might give a different
answer
to the
question: what is the better interpretation of resolution 1441?
than to the
question:
can it reasonably be argued that resolution 1441 is capable of
authorising
the use of
force without a further Council decision?
“You have
previously indicated that you are not entirely comfortable with
advising
that ‘there
is a respectable argument’ that the use of force is lawful, given
your
quasi-judicial
role in this area. Previous Law Officers have of course advised
in
these terms
…”
“For my own
part, I think that the first view is the better interpretation, but
that the
arguments
in favour of the second view are probably as strong as the legal
case
for relying
on the revival argument in December 1998 when the UK participated
in
Operation
Desert Fox.”
119.
Ms Adams wrote
that she understood the statement that Lord Goldsmith’s
advice
was not
“required now” reflected Mr Straw’s views, and:
“While it
is certainly true that definitive advice could not be given at this
stage on
whether a
further Council decision is required (because such advice would
need
to take
account of all the circumstances at the time, including further
discussions
in the
Council), there is no reason why advice could not be given now on
whether
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