The Report
of the Iraq Inquiry
540.
Lord Goldsmith
noted that the language of OP12 was a compromise and
was
unclear.
But it did provide that there should be a meeting of the Council
“to consider
the
situation and the need for compliance in order to secure
international peace and
security”.
541.
Thus, Lord
Goldsmith observed, the Security Council was provided with
an
opportunity
to take a further decision expressly authorising the use of force
or,
“conceivably,
to decide that other enforcement measures should be used”. If it
did not do
so,
however, he stated that the “clear US view” was that “the
determination” of material
breach in
OPs 1 and 4 would remain valid, thus authorising the use of force
without
a further
decision.
542.
Lord Goldsmith
wrote that his view was:
“… that
different considerations apply in different circumstances. The
OP12
discussion
might make clear that the Council view is that military action
is
appropriate
but that no further decision is required because of the terms of
resolution
1441. In
such a case, there would be good grounds for relying on the
existing
resolution
as the legal basis for any subsequent military action. The more
difficult
scenario is
if the views of Council members are divided and a further
resolution
is not
adopted either because it fails to attract 9 votes or because it is
vetoed.”
543.
Lord Goldsmith
rehearsed the arguments for and against the view that, in
those
circumstances,
no further decision of the Security Council was needed to authorise
the
use of
force.
544.
He identified
the principal argument in favour of this interpretation to be that
the
word
“consider” had been chosen deliberately and that French and Russian
proposals
to amend
this provision so that the Security Council should be required to
“decide” what
was to
happen had not been accepted.
545.
Lord Goldsmith
wrote that he had been impressed by the strength and
sincerity
of the
views of the US Administration on this point. At the same time,
“the difficulty” was
that the UK
was “reliant” on US “assertions” that France and
others:
“… knew and
accepted that they were voting for a further discussion and
no
more. We
have very little evidence of this beyond a couple of telegrams
recording
admissions
by French negotiators that they knew the US would not accept
a
resolution
which required a Council decision. The possibility remains that the
French
and others
accepted OP12 because in their view it gave them a sufficient basis
on
which to
argue that a second resolution was required (even if that was not
made
expressly
clear).”
98