5 |
Advice on the legal basis for military action, November 2002 to
March 2003
•
It was
necessary, however, for the Security Council to meet “to consider
the
situation.
•
As the
resolution had not specified that the Security Council should
“decide”
what action
should be taken, such a meeting would provide an opportunity
for
further
action by the Security Council, but it was not essential that it
reach a
decision.
Once the procedural requirement was satisfied, the authority to
take
military
action in resolution 678 was, once again, fully
revived.
536.
The second
line of argument focused, by contrast, on the words in OP4
(“and
will be
reported to the Council for assessment in accordance with
paragraphs 11 and
12 below”)
and on the requirement in OP12 for the Security Council to
“consider the
situation
and the need for full compliance with all of the relevant Council
resolutions
in order to
secure international peace and security”. According to the second
line of
argument,
these provisions implied a return to the Security Council for a
decision.
537.
Lord Goldsmith
wrote that one view in support of the second line of
argument
was that
the wording of OP4 “indicated the need for an assessment by the
Security
Council of
how serious any Iraqi breaches [were] and whether any Iraqi
breaches [were]
sufficiently
serious to destroy the basis of the cease-fire”. He pointed out
that this had
been the
position taken by Mr Straw when he told Parliament on 25
November that
“material
breach means something significant; some behaviour or pattern of
behaviour
where any
single action appears relatively minor but the action as a whole
adds up to
something
more deliberate and significant: something that shows Iraq’s
intention not
to comply”.
If that was so, the question was by whom such an assessment was to
be
carried
out. Lord Goldsmith noted that, according to the UK view of the
revival argument,
it could
only be the Security Council.
538.
Lord Goldsmith
set out the counter position as:
“If OP4
means what it says: the words ‘co-operate fully’ were included
specifically
to ensure
that any instances of non-co-operation would amount to material
breach.
This is the
US analysis of OP4 and is undoubtedly more consistent with the view
that
no further
decision of the Council is necessary to authorise force, because it
can be
argued that
the Council has determined in advance that any failure will be a
material
breach.”
539.
Lord Goldsmith
advised that the critical issue was, nonetheless, what was
to
happen when
a report came to the Security Council under OP4 or OP11. “In
other
words”, he
wrote, “what does OP12 require”.
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