5 |
Advice on the legal basis for military action, November 2002 to
March 2003
525.
Lord Goldsmith
noted:
“… Previous
practice of the Council and statements made by Council
members
during the
negotiation of resolution 1441 demonstrate that the phrase
‘material
breach’
signifies a finding by the Council of a sufficiently serious breach
of the
cease-fire
conditions to revive the authorisation in resolution 678 and that
‘serious
consequences’
is accepted as indicating the use of force.”
526.
Lord Goldsmith
wrote:
“ … I
disagree, therefore, with those commentators and lawyers who
assert
that
nothing less than an explicit authorisation to use force in a
Security Council
resolution
will be sufficient.”
527.
Having
accepted the validity of the revival argument Lord
Goldsmith
addressed
the question of whether resolution 1441 was sufficient to revive
the
authorisation
in resolution 678 without an assessment by the Security
Council
that the
basis of the cease-fire established in resolution 687 had been
destroyed.
528.
Lord Goldsmith
wrote:
“In order
for the authorisation to use force in resolution 678 to be revived,
there
needs to be
a determination by the Security Council that there is a violation
of the
conditions
of the cease-fire and that the Security Council considers it
sufficiently
serious to
destroy the basis of the cease-fire. Revival will not, however,
take place,
notwithstanding
a finding of violation, if the Security Council has made clear
either
that action
short of the use of force should be taken to ensure compliance
with
the terms
of the cease-fire, or that it intends to decide subsequently what
action
is required
to ensure compliance.”
“Notwithstanding
the determination of material breach in OP1 of resolution
1441,
it is clear
that the Council did not intend that the authorisation in
resolution 678
should
revive immediately following the adoption of resolution 1441, since
OP2
of the
resolution affords Iraq a ‘final opportunity’ to comply with its
disarmament
obligations
under previous resolutions by co-operating with the enhanced
inspection
regime
described in OPs 3 and 5-9. But OP2 also states that the Council
has
determined
that compliance with resolution 1441 is Iraq’s last chance before
the
cease-fire
resolution will be enforced.”
530.
On that basis,
Lord Goldsmith expressed the view that:
“OP2 has
the effect therefore of suspending the legal consequences of the
OP1
determination
of material breach which would otherwise have triggered the
revival
95