5 |
Advice on the legal basis for military action, November 2002 to
March 2003
•
decided
[draft OP1] that Iraq had “failed to take the final opportunity
afforded to
it in
resolution 1441 (2002)”.172
438.
Sir Jeremy
reported that he had told Ambassador Negroponte that the draft
“was
thin on
anything with which Council members could argue and would be less
frightening
to the
middle ground”. It did not refer to “serious consequences” and that
“instead of
relying on
OP4 of 1441”, the draft resolution “relied on OP1 of 1441,
re-establishing
the material
breach suspended in OP2”.173
439.
Sir Jeremy
added that issuing the draft would signal the intent to move to a
final
debate,
which they should seek to focus “not on individual elements of
co-operation
but on the
failure by Iraq to voluntarily disarm” and avoid being “thrown off
course by
individual
benchmarks or judgement by Blix”. It should be accompanied by a
“powerful
statement
about what 1441 had asked for” which had “been twisted into
partial,
procedural,
and grudging co-operation from Iraq”; and that “substantive, active
and
voluntary
co-operation was not happening”.
440.
In response to
a question from the US about whether the “central premise”,
that
the final
opportunity was “now over”, would be disputed, Sir Jeremy said
that:
“… was
where we would have to define our terms carefully: voluntary
disarmament
was not
happening.”
441.
Ms Adams wrote
to Mr Grainger on 20 February. She thanked him for
drawing
her
attention to the telegrams from Sir Jeremy
Greenstock.174
She pointed
out that
Lord
Goldsmith did “not agree with the legal analysis” in Sir Jeremy
Greenstock’s first
telegram.
Lord Goldsmith considered:
“… that OP4
of resolution 1441 is highly relevant to determining whether or not
Iraq
has taken
the final opportunity granted by OP2 … Moreover, PP5 of the draft
text
uses
language drawn from OP4 to establish the fact that Iraq has failed
to comply …
the
Attorney does not consider that it is accurate to say that the
draft text relies on
OP1 …
rather than OP4.”
442.
On the draft
text, Ms Adams wrote that Lord Goldsmith considered:
“… it would
be preferable for any resolution to indicate as clearly as possible
that
the
resolution is intended to authorise the use of force. The clearer
the resolution,
the easier
it will be to defend legally the reliance on the ‘revival
argument’, which
… is …
controversial. A resolution which included the terms ‘material
breach’ and
‘serious
consequences’ … would therefore be desirable … However, the
Attorney
has
previously advised that it is not essential in legal terms for a
second resolution
172
Telegram
288 UKMIS New York to FCO London, 20 February 2003, ‘Iraq: 19
February:
Draft Resolution’.
173
Telegram
287 UKMIS New York to FCO London, 20 February 2003, ‘Iraq: 19
February’.
174
Letter
Adams to Grainger, 20 February 2003, ‘Iraq: Second
resolution’.
79