5 |
Advice on the legal basis for military action, November 2002 to
March 2003
of force
in advance if there was a failure by Iraq to comply and co-operate
fully
with the
implementation of the resolution”.
179.
Considering
the words “for assessment under paragraphs 11 and 12”,
which
had been
added at the end of OP4, Lord Goldsmith observed that they “must
mean
something”.
He wrote that it was “hard not to read these words as indicating
that it is
for the
Council [to] assess if an Iraqi breach is sufficiently significant
in light of all the
circumstances”.
180.
Lord Goldsmith
explained that “three principal factors” had led him to
that
conclusion:
•
The words
“for assessment” implied the “need for a substantive
assessment”.
The view
that OP12 required “merely a Council discussion … would
reduce
the
Council’s role to a procedural formality, so that even if the
majority of the
Council’s
members expressed themselves opposed to the use of force
this
would have
no effect”.
•
It was
“accepted that” OP4 did “not mean that every Iraqi breach
would
trigger the
use of force, so someone must assess whether or not the
breach
is
‘material’”. It was “more consistent with the underlying basis of
the revival
argument”
to interpret OP4 as meaning that it was “for the Council to carry
out
that
assessment”.
•
He did not
find the “contrary arguments concerning the meaning of
‘for
assessment’
sufficiently convincing”.
181.
While Lord
Goldsmith described the fact that French and Russian attempts
to
“make it
plain” that a further breach would “only be ‘material’ when
assessed as such
by the
Council” had not been accepted as the “strongest” point in favour
of the view that
a
determination by the Council was not required, he
cautioned:
“But what
matters principally in interpreting a resolution is what the text
actually
says, not
the negotiation which preceded its adoption.”
182.
Lord Goldsmith
added that he did “not find much difference” between the
French
proposals
and the final text of the resolution.
183.
Addressing the
Explanations of Vote (EOVs) provided when resolution 1441
was
adopted on
8 November 2002, Lord Goldsmith wrote that they “did not assist
greatly
in determining
the correct interpretation of the text of OPs 4 and
12”.
184.
Lord Goldsmith
concluded:
“… my
opinion is that resolution 1441 does not revive the authorisation
to use of [sic]
force
contained in resolution 678 in the absence of a further decision of
the Security
Council.
The difference between this view of the resolution and the approach
which
argues that
no further decision is required is narrow, but key.
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