5 | Advice on the legal basis for military action, November 2002 to March 2003

819. The FCO paper stated that the preambular paragraphs of resolution 1441:

• confirmed “once more” by the reference to resolution 678 “that that resolution

was still in force”;

• “recognised the threat which Iraq’s non-compliance … posed to international

peace and security”; and

• “recalled” that resolution 687 “imposed obligations on Iraq as a necessary

step for the achievement of its objective of restoring international peace and

security”.356

820. The paper stated that operative paragraph one (OP1) of resolution 1441 decided

that “Iraq ‘has been and remains in material breach’ of its obligations” and, paraphrasing

the resolution, added:

“The use of the term ‘material breach’ is of the utmost importance because the

practice of the Security Council during the 1990s shows that it was just such a

finding of material breach by Iraq which served to revive the authorisation of force …

“On this occasion, however, the Council decided (paragraph two) to offer Iraq a

‘final opportunity to comply with its disarmament obligations’. Iraq was required to

produce an accurate, full and complete declaration of all aspects of its prohibited

programmes (paragraph three), and to provide immediate and unrestricted

access to UNMOVIC and IAEA (paragraph five). Failure by Iraq to comply with

the requirements of SCR 1441 was declared to be a further material breach of

Iraq’s obligations (paragraph four), in addition to the continuing breach identified in

paragraph one. In the event of a further breach (paragraph four), or interference by

Iraq with the inspectors or failure to comply with any of the disarmament obligations

under any of the relevant resolutions (paragraph 11), the matter was to be reported

to the Security Council. The Council was then to convene ‘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’ (paragraph 12). The Council warned Iraq

(paragraph 13) that ‘it will face serious consequences as a result of its continued

violations of its obligations’.”

821. The paper stressed that the authority to use force did not revive immediately

and there had been “no ‘automaticity’”. The provision “for any failure by Iraq to be

‘considered’ by the Security Council” did not:

“… mean that no further action can be taken without a new resolution. Had that been

the intention, it would have provided that the Council would decide what needed to

be done … not that it would consider the matter. The choice of words was deliberate;

a proposal that there should be a requirement for a decision by the Council … was

356 Paper FCO, 17 March 2003, ‘Iraq: Legal Basis for the Use of Force’.

147