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5  |  Advice on the legal basis for military action, November 2002 to March 2003
546.  Lord Goldsmith added:
“A further difficulty is that, if the matter ever came before a court, it is very uncertain
to what extent the court would accept evidence of the negotiating history to support
a particular interpretation of the resolution, given that most of the negotiations were
conducted in private and there are no agreed or official records.”
547.  Lord Goldsmith identified three arguments in support of the view that a further
decision was needed:
The word “assessment” in OP4 and the language of OP12 indicated that the
Council would be assessing the seriousness of any Iraqi breach.
There was special significance in the words “in order to secure international
peace and security” reflecting the responsibility of the Security Council under
Article 39 of the UN Charter and it could be argued that the Council was to
exercise a determinative role on the issue.
Any other construction reduced the role of the Security Council to a formality.
548.  Lord Goldsmith wrote:
“Others have jibbed at this categorisation, but I remain of the opinion that this
would be the effect in legal terms of the view that no further resolution is required.
The Council would be required to meet, and all members of the Council would be
under an obligation to participate in the discussion in good faith, but even if an
overwhelming majority of the Council were opposed to the use of force, military
action could proceed regardless.”
549.  Lord Goldsmith pointed out that the statements made by Security Council
members on the adoption of resolution 1441, which might be referred to in
circumstances when the wording of the resolution was not clear, were not conclusive.
He wrote:
“Only the US explicitly stated that it believed that the resolution did not constrain the
use of force by States ‘to enforce relevant United Nations resolutions and protect
world peace and security’ regardless of whether there was a further Security Council
decision. Conversely, two other Council members, Mexico and Ireland, made clear
that in their view a further decision of the Council was required before the use
of force would be authorised. Syria also stated that the resolution should not be
interpreted, through certain paragraphs, as authorising any State to use force.”
Other arguments rejected
550.  Lord Goldsmith rejected the argument that it was possible to establish that Iraq
had failed to take its final opportunity through the procedures in OPs 11 and 12 without
regard to the words “for assessment” in OP4. He accepted that the words “and shall be
reported to the Council for assessment in accordance with paragraphs 11 and 12” were
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