Comments on the US-UK draft resolution of 5 November 2002

These comments are designed to assist United Nations delegations
in
analysing the new draft resolution put to the Security Council
on 5
November 2002 by the United Kingdom and United States. They
provide an
overview of how the draft needs to be altered in order to create
a viable
regime that will achieve the verifiable disarmament of Iraq's
non-
conventional weapons. At present, the UK-US draft, if accepted,
is unlikely
to achieve this goal. It is unnecessarily provocative, in that
it attempts
to establish mechanisms and criteria that are unrelated to the
effective
disarmament of Iraq but which will be a cause of considerable
tension
between the UN and Iraq. It attempts to legitimise prior UK-US
military
action, in contravention of the legal opinion of almost all
other members of
the United Nations, by falsifying history and by
misappropriating and even
misquoting past Security Council resolutions.

The draft of 5 November drops some of the more preposterous
elements of the
earlier two US drafts that have made their way into the public
arena (2
October and 25 October), such as the granting of rights for P5
members to
place their selected personnel on inspections teams (para.5 of
the 2
October draft), and for any member of the UN to unilaterally
declare a
material breach of the resolution and use military force against
Iraq
(para.10 of the 2 October draft). These may have been
provisions that US
diplomats knew would never be backed by the Council, and so
designed to act
as negotiating devices; they could be dropped to demonstrate
"compromise"
at the UN. What is left in the draft resolution remains harmful
and
counterproductive enough for achieving a peaceful solution to
the Iraq
crisis.

PP1: "Recalling ... 688 (1991)". In its first operative
paragraph, the
draft resolution brings SCR688 -- demanding that Iraq
"immediately end" ...
"the repression of the Iraqi civilian population" -- into a
resolution
purportedly on Iraq's disarmament. By incorporating mention of
SCR688 into a
resolution setting out the new standard for Iraqi compliance,
the US and UK
may be leaving the way open to claim that Iraq is not in
compliance with
the new resolution, even if there is full progress on the
disarmament
agenda.

SCR688 was adopted as a non-Chapter VII resolution during a
civil war; its
applicability for the present day is tenuous at best. This has
not stopped
successive US administrations from using SCR688 as a partial
justification
for ongoing military action against Iraq, in opposition to
mainstream
international legal opinion. The October 2002 Joint Resolution
to Authorize
the Use of United States Armed Forces Against Iraq, passed by
the US
Congress, grants the authority of Congress to use military force
to "achieve
the goals of [SCR] 688". The mention of SCR688 in the draft
resolution
seems to be designed to broaden the causus belli in line with
the
Congressional stance. This hampers the possibility of a peaceful
resolution
to the Iraq crisis.

It is worth noting that the Council has not made reference to
SCR688 in its
previous resolutions on Iraq's disarmament -- for example,
SCR1284,
establishing UNMOVIC, does not mention SCR688. That there has
now been a
change of US-UK policy in this regard is an immediate cause for
concern.

PP2: "Recalling also .. 1382 (2001) .. and its intention to
implement it
fully". The new reference to 1382, the only resolution
mentioned in this
paragraph and unmentioned in the previous drafts, is puzzling.
Its renewal
of the oil-for-food programme expired in May 2002 and has been
supplanted
by 1409 (2002), so the implementation clause is not a
commitment to
continue the oil-for-food programme. 1382 does not commit the
Council to
lift economic sanctions -- either the import or the export
prohibition --
upon Iraqi compliance with its disarmament obligations:
preambular
paragraph 2 of 1382 only lists compliance in disarmament as a
necessary,
not sufficient, condition for the lifting of sanctions.

It is possible that Council members have been mis-sold this part
of the
resolution. According to reports, certain Council members
wanted to relink
Iraq's effective and verifiable disarmament to the lifting of
sanctions.
The US and UK may present this preambular paragraph as a
concession to this
argument, but in reality it is no concession at all.

PP4: "Recalling that its resolution 678 (1990) authorized member
states to
use all necessary means to uphold and implement its resolution
660 (1990)
.. and all relevant resolutions subsequent to Resolution 660
(1990) and to
restore international peace and security in the area". This
paragraph is a
clear attempt to provide post hoc legal justification for the
bombing of
Iraq since 1991. It suggests that resolution 678 authorised the
use of force
to implement all resolutions on Iraq from 1990 to the present
day. This is
clearly untrue: 678 only justifies the use of force to
implement
resolutions on Iraq passed between 2 August and 29 November
1990. This is a
position that has been repeated by Council members ad nauseum
since 1991,
with no states but the UK and US holding anything other than a
literal and
meaningful construction of SCR678. If this draft resolution is
passed, every
country that has provided legal criticisms of US and UK bombing
since 1991
will now be acknowledging that their past criticism was
misconceived, and
that US-UK bombing was legally justifiable after all.

PP7: "Deploring further that Iraq .. ultimately ceased all
cooperation with
UNSCOM and the IAEA in 1998". This is a wholly disingenuous
claim, in that
it presents the termination of inspections in Iraq as a
consequence of
Iraq's cessation of cooperation with UNSCOM. The only period in
which Iraq
ceased all cooperation with UNSCOM in the period between 1991
and 16
December 1998 was for two weeks from 31 October to 14 November
1998. This
period of non-cooperation began on the day that the US
President signed
into law the Iraq Liberation Act of 1998, to further the
long-held goal of
overthrowing the Iraqi regime, in defiance of Security Council
resolutions
which affirm the sovereignty and political independence of
Iraq. Iraq
reannounced its intention to cooperate fully with UNSCOM in a
letter of 14
November; the US response to incomplete but extensive Iraqi
cooperation was
to order weapons inspectors to leave Iraq on 16 December. For
the draft
resolution to portray the termination of UNSCOM's work in terms
of the
earlier and unrelated brief Iraqi stance is to misrepresent the
history of
the inspections process entirely.

PP8: ".. in spite of the Council's repeated demands that Iraq
provide ..
access to [UNMOVIC]". This is a pure fabrication: the Council
has not made
"repeated demands" that Iraq comply with UNMOVIC -- it has only
made one
such demand, in resolution 1284 (1999). No resolution
subsequent to its
creation even mentions UNMOVIC.

".. regretting the consequent ... suffering of the Iraqi
people". The draft
resolution states here that because Iraq has not complied with
its
disarmament obligations, the Iraqi people have suffered. This
seems to be
the most frank acknowledgement yet by the US and UK that
economic sanctions
have caused suffering.

PP10: "Recalling that in its resolution 687 (1991) the Council
declared that
a ceasefire would be based on acceptance by Iraq of the
provisions of that
resolution.." This is an even more egregious re-writing of
history than
those cited above: the draft resolution simply misquotes the
Security
Council's earlier resolution. The ceasefire was not based on
Iraq's
acceptance of the provisions of resolution 687: it was based on
"official
notification by Iraq to the Secretary-General and to the
Security Council of
its acceptance" of that resolution (resolution 687, para.33).
The
difference is highly significant: the US-UK draft text implies
that the
ceasefire would no longer be operative if Iraq is taken by them
as no
longer accepting its full disarmament obligations, thus leaving
open the
justification to use force against Iraq without further Council
authorisation. The ceasefire is thus portrayed as continually
conditional
upon Iraqi compliance. This is contrary to the position of every
other
Council member since 1991: this consistent position has been
that the
ceasefire can only be terminated if there is new Council
authorisation to
use force. Through this paragraph, the US-UK are attempting to
award
themselves the legal right to use force if they alone perceive
Iraq as
non-compliant; the abandonment of the specific authorisation to
use force
that was in earlier drafts is thus resuscitated in an oblique
but legally
equivalent form here.

OP1: "Decides that Iraq .. remains in material breach of its
obligations ..
in particular through Iraq's failure to cooperate with United
Nations
inspectors.." This claim is made without any legal basis. Iraq,
through the
letter of its Foreign Minister of 16 September 2002, has made
an
unconditional offer to allow inspectors into Iraq in order to
fulfil all
their tasks in line with existing resolutions. Iraq simply does
not "remain"
in breach -- material or otherwise -- of any obligations
relating to
cooperation with weapons inspectors, as it has fully accepted
the existing
terms for the re-entry of inspectors. By labelling compliance
as violation,
the message from the Council to Iraq is that acting in
accordance with the
terms of the Council's resolutions is a purposeless and
unproductive
activity.

OP2: "..decides to set up an enhanced inspection regime.." The
draft
resolution recognises that the new resolution is creating a
different
inspections regime from that agreed in 1991. As such, the
resolution is
explicitly imposing new obligations on Iraq, in addition to
those already
accepted. Therefore, the US and UK can no longer claim that they
are trying
to ensure Iraq's compliance with resolutions dating back to
1991.

OP3: "Decides that .. the Government of Iraq shall provide ..,
not later
than 30 days from the date of this resolution, a currently
accurate, full,
and complete declaration of all aspects of its programmes to
develop ..
other delivery systems such as unmanned aerial vehicles and
dispersal
systems designed for use on aircraft, including any holdings
and precise
locations of such weapons, components, sub- components, stocks
of agents,
and related material and equipment, the locations and work of
its research,
development and production facilities, as well as all other
chemical,
biological, and nuclear programmes, including any which it
claims are for
purposes not related to weapon production or material" This long
paragraph,
firstly, raises the barrier for Iraqi compliance; and secondly,
may make
compliance impossible to achieve at all. It raises the barrier
by including
items in the list of weapons open to disclosure that were not
previously
regarded as prohibited. Iraq has not been prohibited from
developing aerial
vehicles or dispersal systems. The draft resolution compels
Iraq now to
disclose not only these items but also sub-components and
"related
material" of these items.

It may make compliance impossible because it, if read literally,
is asking
for Iraq to provide a full "declaration of all aspects of its
programmes"
in the chemical field, including those activities not relating
to weapons
issues. If this draft is accepted, Iraq would be compelled to
produce
within 30 days a full inventory of all the activities of all the
chemical
facilities throughout the country, including those engaged in
relatively
trivial and harmless activities. It is difficult to see how any
country
could possibly compile and guarantee the validity of such a
declaration,
given the logistical problems that would be encountered. Any
inaccuracies
in this declaration would, in accordance with OP4, constitute a
"material
breach" by Iraq of this resolution. As such, this paragraph
ensures that the
resolution cannot be complied with. At the very least, the
final clause
needs to be re-written or removed.

In this context, the comments of Hans Blix, UNMOVIC's Executive
Chairman, to
the Security Council should be noted: "A declaration regarding
weapons
programme should be possible within 30 days and the same should
be true for
declaring remaining permitted peaceful nuclear programmes
(op.3). To
declare all other chemical programmes in a country with a
fairly large
chemical industry, as well as other biological programmes might
be more
problematic in a short time." (Hans Blix, "Notes for the
Briefing to The
Security Council", 28 October 2002, para. 7).

OP5: "Decides that Iraq shall provide UNMOVIC and the IAEA ..
private access
to all officials and other persons whom UNMOVIC and the IAEA
wish to
interview ... . further decides that UNMOVIC and the IAEA may
at their
discretion conduct interviews inside or outside of Iraq, may
facilitate the
travel of those interviewed and family members outside of
Iraq".

This is perhaps the key "deal-breaker" in the resolution. The
Council would
be according to UNMOVIC and the IAEA the right to transport
anyone --
seemingly without his or her permission -- outside the country.
For
example, the resolution would allow UNMOVIC the right to order
senior
governmental officials, including the Iraqi President, to leave
the country
at their discretion. The Council, if it endorses this draft,
would be
according to UNMOVIC the legal right to abduct individuals with
their
families, and to take them abroad. It would be wholly
implausible to expect
cooperation with such an unchecked range of powers. Even if
UNMOVIC does
use this power in a responsible way, the resolution would
enable the US to
encourage senior Iraqi scientists to defect once they have been
taken
outside the country. To expect open-ended cooperation from the
Iraqi
government in such a matter is not plausible. The only way to
reach a
resolution to the conflict, and to reach the verifiable
disarmament of Iraq
of its non-conventional weapons, is to set reasonable and
achievable
standards for cooperation. This is impossible to reconcile with
provisions
for taking Iraqi individuals outside the country.

OP7, sub-paragraph (iii): "immediate, unimpeded, unconditional,
and
unrestricted access to Presidential sites equal to that at
other sites".
This provision does away with resolution 1154, which endorsed
the memorandum
of understanding (MoU) that created special procedures for the
inspection
of eight defined and delineated Presidential sites. If this
provision is
accepted, it firstly causes a new and unnecessary arena for
conflict
between the UN and the Government of Iraq: the presidential
sites can be
inspected already under the terms of the MoU. Secondly it would
demonstrate
that agreements with the UN are without value, in that one party
to the
agreement has acquired a habit of nullifying them when it no
longer suits
its interests. For the UN to abandon the principle that the
agreements that
it makes can be overridden to the detriment of the other party
would be to
cast a grave aspersion on the United Nations and the fabric of
international law.

OP7, sub-paragraph (v): "sufficient UN security guards". There
is no
description of the number or composition of these "guards". Iraq
is being
asked to accept a resolution that permits a foreign military
presence on its
soil, without knowing the nature of that military presence.

OP7, sub-paragraph (vi): "UNMOVIC and the IAEA shall have the
right to
declare .. exclusion zones, in which Iraq will suspend ground
and aerial
movements". This provision again grants to the weapons
inspectorate an
extensive range of unchecked powers. For example, UNMOVIC could
declare
large areas of Iraq to be "exclusion zones" for an indefinite
period of
time. Limitations on the authority of inspectors need to be
worked into the
resolution to preserve a sense of the inspectors' legitimate
role, with an
obligation imposed on the inspectorate to limit the use of this
measure to
the environs of specific buildings and only for the duration of
a specific
inspection. Without such a provision, long- term cooperation
between the
parties is likely to be subject to periodic crises that would
threaten to
derail the on-going work of the inspectorate.

The experience of the weapons inspectorate - whose actions were
discredited
through the manipulation of their work by one outside party -
demonstrated
to the Security Council's own panel on disarmament and
monitoring (the
first Amorim Panel report, 1999) that an accountable system
must be devised
that can retain its rigorous standards for the implementation of
Iraq's
disarmament obligations. Without amendments of the form
suggested above,
progress in the field of disarmament is likely to remain
elusive.
--

References:
1. Draft resolution of 2 October in part at:
 http://www.guardian.co.uk/international/story/0,3604,803436,00.html
2. Draft resolution of 25 October at:
 http://www.cam.ac.uk/societies/casi/info/usdraftscr021025.pdf
3. Draft resolution of 11 November at:
 http://www.casi.org.uk/discuss/2002/msg02002.html
4. Hans Blix, "Notes for the Briefing to The Security Council",
28 October
2002",
 http://www.cam.ac.uk/societies/casi/info/blix021028.pdf
5. The Amorim Panel report on Disarmament and Monitoring, 27
March 1999

 http://www.un.org/Depts/UNMOVIC/documents/Amorim%20Report.htm

Comments prepared by Dr. Glen Rangwala, University of Cambridge,
United
Kingdom. Dr. Rangwala can be contacted at:

Tel: 44 (0)7930 627944
Fax: 44 (0)7092 330826
Email:  gr10009@hermes.cam.ac.uk