5 |
Advice on the legal basis for military action, November 2002 to
March 2003
251.
Sir Jeremy
Greenstock wrote to Sir David Manning on 24 January with
his
perspective
on the discussion with Lord Goldsmith.96
252.
Sir Jeremy
recorded that the “central issue” debated was whether the
wording
of OP4
“meant that the Council had something substantive to do in the
second stage
(viz
determining that a breach was material and deciding on consequent
action) before
action
could be taken on the further material breach; or whether further
discussion/
consideration
in the Council … sufficed”.
253.
Sir Jeremy
said he had told Lord Goldsmith that:
•
the
negotiations had “settled the wording of OPs 11-13 before a draft
OP4 was
ever
proposed”;
•
in that
“tussle”, the “French/Russians/ Chinese lost (their … EOVs
were
indicative
in this respect) an explicit requirement for a new decision by
the
Council”;
•
France
“wanted ‘further material breach, when assessed’, and accepted
with
difficulty
the final wording. This suggested they saw the difference between
the
two”;
•
the US had
come to the UN “to give the Security Council a further
opportunity
to be
the channel for action”; and
•
the
“intention of the sponsors was that the fact of a further material
breach would
be
established in a report from the inspectors”.
254.
Sir Jeremy had
argued that Lord Goldsmith’s draft advice “took insufficient
account
of the
alternative routes to OP12 … The fact that OP4 was a late addition
was an
indication
that the route through OPs 1, 2, 11, 12 and 13 had separate
validity.”
There was
“no question in the co-sponsors’ minds of … conceding that the
Council had
to assess
what was a breach”.
255.
Sir Jeremy’s
view was that “the natural interpretation of ‘assessment’ … was
that
the Council
would assess the options for the next steps … after a material
breach had
occurred”.
256.
Lord
Goldsmith’s position had been to argue “the opposite case, that the
late
addition of
‘assessment’ … must add something significant”.
257.
Sir Jeremy
identified “an intermediate interpretation, whereby the fact
of
the
material breach particularly if reported by the inspectors as
directed in OP11,
automatically
brought the final opportunity to an end”. Sir Jeremy suggested
that
“interpretation
was … given weight by the absence of clear wording in OP12
on
the need
for a further decision. And it had a close precedent in the US/UK
action on
16 December
1998 …”
96
Letter
Greenstock to Manning, 24 January 2003, [untitled].
51