The Report
of the Iraq Inquiry
•
The first
part of OP4, that false statements or omissions in the Iraqi
declaration
and failure
to comply with and co-operate fully in the implementation
of
resolution
1441 would “constitute a further material breach”, suggested that
the
Council had
“determined that any failure by Iraq to comply with or co-operate
in
the
implementation of the resolution will be a material
breach”.
•
The later
reference in OP4 to a requirement to report that breach “to the
Council
for
assessment under paragraphs 11 and 12” raised the “key question” as
to
whether
that was “merely a procedural requirement for a Council
discussion
(the stated
US/UK position)” or whether it indicated “the need for a
determination
of some
sort … that force was now justified”.
•
It appeared
“to be accepted that only serious cases of non-compliance
would
constitute
a material breach, on the basis that it would be difficult to
justify
the use of
force in relation to a very minor infringement of the terms of
the
resolution”.
•
Mr Straw
had told Parliament on 25 November that a material breach
would
need “as a
whole to add up to something deliberate and more
significant:
something
that shows Iraq’s intention not to comply”.
•
If that was
the case, “then any Iraqi misconduct must be assessed to
determine
whether it
is sufficiently serious as to constitute a material
breach”.
•
The
question then was “who is to make that assessment”.
•
In the
event of a reported breach, OP12 stated that the Council would
“consider
the
situation and the need for compliance with all relevant resolutions
in order to
secure
international peace and security”.
•
Proposals
to amend OP12 “which would have made clear that a further
decision
was
required were rejected”.
•
“The
previous practice of the Council and statements made during
the
negotiation”
of resolution 1441 demonstrated that the phrase
“serious
consequences”
in OP13 was “accepted as indicating the use of force”.
177.
In the light
of that examination, Lord Goldsmith identified two critical
questions:
“(a)
whether it would be legitimate to rely on the revival argument;
and
(b) what
are the conditions for revival.”
178.
Lord Goldsmith
wrote:
•
He
considered “in relation to OP1” that “a finding of ‘material
breach’”
constituted
a “determination of a sufficiently serious breach of the terms of
the
cease‑fire
resolution [resolution 687] to revive the authorisation to use
for[ce]
in resolution 678”.
•
If OP4 had
stopped after the words “breach of Iraq’s obligations”, there
“would
have been a
good argument that the Security Council was authorising the
use
38