The Report
of the Iraq Inquiry
of the
authorisation in resolution 678. The narrow but key question is: on
the true
interpretation
of resolution 1441, what has the Security Council decided will be
the
consequences
of Iraq’s failure to comply with the enhanced regime.”
531.
Lord Goldsmith
told the Inquiry:
“… without
a firebreak, they [members of the Security Council] understood from
past
practice,
from what happened in 1998 after resolution 1205, that the United
States
and the
United Kingdom, and perhaps other states, would have then taken
that as
saying ‘We
now have the authority of the United Nations to move
today’.”214
532.
Lord Goldsmith
identified OPs 4, 11 and 12 as the provisions relevant to
the
question of
whether or not Iraq had taken the final opportunity:
“It is
clear from the text of the resolution, and is apparent from the
negotiating
history,
that if Iraq fails to comply, there will be a further Security
Council discussion.
The text
is, however, ambiguous and unclear on what happens
next.”
533.
On that
question, Lord Goldsmith identified and summarised the “two
competing
arguments”:
•
“that
provided there is a Council discussion, if it does not reach a
conclusion,
there
remains an authorisation to use force”; or
•
“that
nothing short of a further Council decision will be a legitimate
basis for the
use of
force”.
534.
The first line
of argument maintained that, provided there was a
Council
discussion,
whether conclusive or not, there remained an authorisation to use
force.
535.
It relied on
the following steps:
•
Iraq had
been found to be in material breach of relevant resolutions
including
resolutions
678 and 687. Its violations were therefore, in principle,
sufficient to
revive the
authorisation to use force in resolution 678.
•
Iraq had
been given a final opportunity to comply and had been warned that
it
would face
serious consequences if it did not do so.
•
OP4 of
resolution 1441 had the effect of determining in advance that any
false
statements
by Iraq in its declaration and failure by Iraq at any time to
comply
with and
co-operate fully in the implementation of the resolution would
constitute
a further
material breach and would thus revive the authority which had
been
suspended
without any further determination by the Security
Council.
214
Public
hearing, 27 January 2010, page 84.
96