The Report
of the Iraq Inquiry
519.
Lord
Goldsmith posed and answered two questions. First, he
considered
whether the
revival argument was a sound legal basis in principle. Second,
he
considered
the question of whether resolution 1441 had the effect of reviving
the
authority
to use military force in resolution 678 (1990).
520.
Lord Goldsmith
set out the basic principles of the revival argument and
described
how, in
January 1993 (following UN Presidential Statements condemning
particular
failures by
Iraq to observe the terms of the cease-fire resolution) and again
in December
1998 (for
Operation Desert Fox), following a series of Security Council
resolutions,
notably
1205 (1998), the use of force had relied on the revival
argument.
“Law
Officers have advised in the past that, provided the conditions are
made out,
the revival
argument does provide a sufficient justification in international
law for the
use of
force against Iraq.”
522.
Having
referred to the opinion, expressed in August 1992, by then UN
Legal
Counsel,
Carl-August Fleischauer, as supportive of the UK view, Lord
Goldsmith
continued:
“However,
the UK has consistently taken the view (as did the Fleischauer
opinion)
that as the
cease-fire conditions were set by the Security Council in
resolution 687,
it is for
the Council to assess whether any such breach of those obligations
has
occurred.
“The US
have a rather different view: they maintain that the fact of
whether Iraq is in
breach is a
matter of objective fact which may therefore be assessed by
individual
Member
States. I am not aware of any other state which supports this view.
This is
an issue of
critical importance when considering the effect of resolution
1441.”
523.
Lord Goldsmith
concluded:
“The
revival argument is controversial. It is not widely accepted among
academic
commentators.
However, I agree with my predecessors’ advice on this
issue.
Further, I
believe that the arguments in support of the revival argument are
stronger
following
adoption of resolution 1441.”
524.
Lord Goldsmith
explained that this was because of the terms of the
resolution
and the
negotiations which led to its adoption. He noted that PPs 4, 5 and
10 of the
resolution
recalled “the authorisation to use force in resolution 678 and that
resolution
687 imposed
obligations on Iraq as a necessary condition of the cease‑fire”;
that OP
1 provided
that Iraq had been and remained in material breach of relevant
resolutions
including
resolution 687; and that OP13 recalled that Iraq had been “warned
repeatedly”
that
“serious consequences” would “result from continued violations of
its obligations”.
94