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.”
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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