The Report
of the Iraq Inquiry
added at a
late stage, but noted that it was substituted for other language
“which would
clearly
have had the effect of making any finding of material breach
subject to a further
Council
decision”. He wrote:
“It is
clear … that any Iraqi conduct which would be sufficient to trigger
a report
from the
inspectors under OP11 would also amount to a failure to comply with
and
co‑operate
fully in the implementation of the resolution and would thus be
covered
by OP4. In
addition, the reference to paragraph 11 in OP4 cannot be ignored.
It is
not
entirely clear what this means, but the most convincing explanation
seems to be
that it is
a recognition that an OP11 inspectors’ report would also constitute
a report
of a
further material breach within the meaning of OP4 and would thus be
assessed
by the
Council under OP12.”
551.
Addressing
whether the differences between the US and UK objectives had
any
impact on
the interpretation of resolution 1441, Lord Goldsmith
wrote:
“I have
considered whether this difference in the underlying legal view
means that
the effect
of the resolution might be different for the US than for the UK,
but I have
concluded
that it does not affect the position. If OP12 of the resolution,
properly
interpreted,
were to mean that a further Council decision was required before
force
was
authorised, this would constrain the US just as much as the UK. It
was therefore
an
essential negotiating point for the US that the resolution should
not concede the
need for a
second resolution. They are convinced that they
succeeded.”
552.
In paragraphs
headed “Summary”, Lord Goldsmith set out his
conclusions.
553.
He wrote that
the language of resolution 1441:
“… leaves
the position unclear and the statements made on adoption of
the
resolution
suggest that there were differences of view within the Council as
to the
legal
effect of the resolution. Arguments can be made on both
sides.
“A key
question is whether there is … a need for an assessment of whether
Iraq’s
conduct
constitutes a failure to take the final opportunity or has
constituted a failure
fully to
co-operate within the meaning of OP4 such that the basis of the
cease-fire
is
destroyed. If an assessment is needed of that sort, it would be for
the Council to
make
it.
“A narrow
textual reading of the resolution suggests that sort of assessment
is not
needed,
because the Council has pre-determined the issue. Public
statements, on
the other
hand, say otherwise.”
554.
Lord Goldsmith
wrote that he remained “of the opinion that the safest legal
course
would be to
secure the adoption of a further resolution to authorise the use of
force”,
and that he
had “already advised” that he did “not believe that such a
resolution need be
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