Decassifesl fe areas Rive Abuisey Seeeer a te datos Dr IRAQ: INTERPRETATION OF RESOLUTION 1441 1, kis lear that reoolution 1441 containe no express authorisation by the Securty Council for the use of Torte AA PaTIY US Graft authorioed Siates to “use all necessary means to restore interSaWomal peace and secunty in the area’, ut this wording wat deleted during the negotiations ei, ne ui oe cic (i tyre whee he Secon ha EE TSE fn oe coe cane ee ee Foor ehar se SHERI Eae to dademine ean aha setceiee (ts sealed terial weument) “ke soa arsemece Oot teen relied on by the United Kinglorn aa te legal baaie fr the ac of ] SES (eatin, soe eran canes ta eats pee nae Lue Secreta oe Se ie pe Bina | decide subsequently what action is requircé to cnsurc compliance, ’ ae ee ae Pee ee Sa Seagate gre ey cas hl rece © cet Sete ees Gene creas eee 4, In order to answer this question, it is necessary to anclyse the terms of resolution 1441 as a whole to see whether it satislies the conditions necessary to revive the authorisation to use force in resolution 678, 4, recall the authorisation to 1se force In resolution 676 and that resolution $87 imposed obligations on Iraq as fa necessary condition of the ceasefire. These paragraphs suggest that the Council had the revival argument in mind when adopting the resolution. OP 1 provides that Iraq has been and remains in material breach of previous resolutions, including the ceasefire resclation, The previous [practice of the Coundil ard statements made by Counc! members duringDECIASS, fredl CONPIDENTIAL DRAFT the negotiation of resolution 1441 demonstrate that the phrase “material breach signifies a finding by the Council ofa sufficiently serious breach of the ceasefire conditions to revive the authorisation in resolution 678, OP? affords (raq a “final opporcunity’ to camply with its disarmament obligations by ‘cooperating with the enhanced inspection regime described in OPe 3 and 5.0. Although thia paragraph indicates that the finding of material breach in OPI doce not smmodiately trigger revival of the authorisation in resolution 678, it also implies that the Council hae determined that compliance with resolution 1441 is Iraq's last chance before the ceaserire resolution wil he enforced OP4 provides that false statements or omissions in the dectaration to be submitted by Iraq under OFS and failure by Iraq at any time to comply with and cooperate fully in the implementation of resolution 1431 will, constitute a further material breach of the ceasefire resolution and will be reported to the Council for assessment, The of the first of OPA euageste that the Council has already determined that any faire by Iraq to comply with oF cooperate in the implementation of the resolution WITTOTRGte a material breach. However, the paragraph goes.on 19 include rail be tenant tothe ceS.on to include a further requicement: “and all be Fenorted tot Coun sessment under paragraphs 11 and ie key qu is ToCeTUT jor a Councii discussion (the stated US/UK position), or cerns te west for a determination of some sort by the Securlly” Council Whether expreaiti-in terms of @Turther resolution or by some other means, Chat force is now justified, rami ‘Gusti the use aL ICE eign C= VY nar itringement of the {ems of the resoluGon, “THE Fore Secretary stated in Fariiament on 25 Noveraber that “material breach means something significant: some bbehaviour or paticm of behaviour that is serous. Among such breaches could be action by the Government or rag seriously to obstruct oF smpede the inspectors, to intimidate witnesses, or & pattern of behaviour where any single action appears relatively minor but the action as a ‘whole add up to something deliberate and more significant: something that shows Iraq's intention not to comply". If this isthe ease, then any Iraq) misconduct must be assessed to determine whether itis sufficiently Serious to constitute a material breach. The question then arises as to who is to make that assessmnent P12 provides that the Council will convene immediately on receipt of a report ofa further material breach “in order to consider che situation andHeciass fed ‘CONFIDENTIAL DRAFT the need for compliance with all elevant resolutions in order to secure international peace and security’. This does not siate expressly that 2 further Couneil decision is required. It is also evident from the negotiating history that proposals to amend this paragraph which would hhave made clear thet a further decision was required were rejected, )P13 makes clear that “serious consequences” will follow a further failure to comply. The previous practice of the Council and statements made during the negotietion of the resolution demonstrate that this phrase is accepted as indicating the use of force. 5. ‘The critical questions in my mind are: {a) whether it would be legitimate to rely on the revival argument; and {} what are the conditions for revival. As Giscussed above in relation to OP1 of the resolution, I sonsider thas the previous ‘of the Council and the negotiating hist resg{ution indicate that a finding of -matenal breach’ con acted ‘Of the terms of the ceasafre resolution to revive the authorisation to use for in resolution 678. If OPS had stopped at the words “breach of Iraq's obligations", there would have been a good argument that the Security Council was authorising the use of force in advance if there was a failure by iraq to comply and cooperate fully with the implementation of the resolution. But the additional words | in OPS muse Se ee ©. OP links the assessment to the terms of OPs L1 and 12. That Suggests that the assessment 18 10 be carried out by the Bxecutive Chairman of UNMOVIC and the Director-General of the IAEA and by the Security Council itself, which is to “consider the situation and the need for compliance with all of the relevant Council resolutions ia order 10 secure international peace and security". These words reflect the language of Article 39 of the UN Charter which confer a the Security Council the power to take measures to maintain and restore international peace and security. In view of thi, find it hard pat in re indicating that itis for she Council assess ifn Ir including the need to secure international peace and—secwnty, 10 constitute « matetial breach and thus revive the authorisation ta use force. 7. Three principal factors lead me to this conclusion,