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[casi] Analysis of 5 Nov US - UK Draft SCR (Author - Nathaniel Hurd)



TITLE: ANALYSIS OF 5 NOVEMBER 2002 US/UK DRAFT SECURITY COUNCIL RESOLUTION
(SCR).

Author: NATHANIEL HURD, Consultant, UN Iraq Policy, Mennonite Central
Committee UN Office.  Hurd is a former Iraq Sanctions Project Associate,
Center for Economic and Social Rights (New York City, US).  Hurd has written
the following document in a strictly personal capacity.

ABSTRACT:

* For full US/UK Draft SCR 5 November 2002 text see:
http://www.washingtonpost.com/wp-dyn/articles/A17239-2002Nov6.html

This document:

* focuses on some possible “trigger mechanisms” that the US might
potentially use to justify large-scale military force against Iraq, before
or during resumed non-conventional weapons inspections in Iraq.

* comments and background information are intended to be somewhat
comprehensive “food for thought”.  The document is long but intended to be
thorough.  It assesses the SCR paragraph by paragraph and usually inserts
the relevant primary source text before the commentary.

* presents some of Hurd’s analysis and some that  is culled from contacts
(some sourced and others not).  Please also see Glen Rangwala, “Comments on
the US-UK draft resolution of 5 November 2002”, 7 November
2002,http://middleeastreference.org.uk/commentson021105.html

[Dr. Rangwala is a Lecturer in Politics, Newnham College, Cambridge
University (UK) and co-author with Alan Simpson (MP) of “The Dishonest Case
for War on Iraq”, http://www.labouragainstthewar.org.uk/link5.html), a
critique of official statements regarding Iraq’s non-conventional weapons,
Iraq as a non-conventional weapons threat, and the potential use of large
scale force against Iraq.]

Also see Colin Rowat, “US, French and Russian SCR Drafts on Iraq”, CASI
Discussion List, 2 November 2002,
http://www.casi.org.uk/discuss/2002/msg01971.html

[Dr. Rowat is a Lecturer in Economics at the University of Birmingham (UK)
and a former Iraq Sanctions Project Coordinator, Center for Economic and
Social Rights (US).]

* assumes that the draft SCR does not explicitly constrain the potential US
use of force.  It seems that the draft has been deliberately aimed to be
ambiguous so as to neither constrain nor authorize the use of force.  “‘It
is a masterpiece of creative ambiguity,’” said a council diplomat.” (Maggie
Farley, “Compromise Reported on Iraq Resolution at U.N.”, Los Angeles Times,
6 November 2002.
(http://www.latimes.com/news/nationworld/world/la-fg-uniraq6nov06021420,0,601429.story?coll=la-headlines-world)
This lack of constraint seems consistent with US objectives and draft
interpretations.
E.g., “Nothing in this resolution handcuffs the [US] President”. (White
House Press Secretary Ari Fleischer, press briefing, 6 November 2002,
http://www.whitehouse.gov/news/releases/2002/11/20021106-1.html)
E.g., “Senior U.S. officials insisted that the new resolution formally
presented to the council today preserves Bush's authority to wage war
against Iraq.” (Colum Lynch, “U.S. Presses U.N. to Back Tough New Iraq
Resolution”, Washington Post, 7 November 2002,
http://www.washingtonpost.com/wp-dyn/articles/A19704-2002Nov6.html)

* is formatted for plain text distribution.

*  For past official and unofficial SCRs, see
http://www.cam.ac.uk/societies/casi/info/scriraq.html and
http://www.cam.ac.uk/societies/casi/whatsnew.html

* Preambulatory paragraphs provide background to the actions that the
Council will later detail in operative paragraphs.  Operative paragraphs
list Council ordered, requested, etc. actions.

* Unless otherwise noted, a “para.” refers to “operative paragraph”.
* For US legislation, the included date refers to date on which the US
President signed it into public, not when the Congress passed it.

[begin]

I. US/UK draft SCR, 5 November 2002, preambulatory para. 1

I A) Along with relevant SCRs, the Security Council “Recall[s]...all the
relevant statements of its President”.  Sometimes Iraq-related Presidential
Statements contain language stronger than SCR language (e.g., “gross” or
“clear” “violation”, or “material breach” of SCRs).  On occasion, usually to
address a specific matter, a Presidential Statement will be issued when
there is no SCR.  Presidential Statements may reflect opinion present in the
Council, but they are non-binding.  Only SCRs are binding.

This paragraph section seems like an attempt to make up for language not
included in SCRs or for the absence of an SCR.

E.g., see Statement of the Security Council President, S/23643, 26 February
1992, in which the Security Council President declares Iraq to be in
“material breach” of relevant SCRs.

For a partial list of Presidential Statements see
http://www.un.org/documents/pstatesc.htm


II. US/UK draft SCR, 5 November 2002, preambulatory para. 4, 5, 10 and 11

[begin]

Recalling that its resolution 678 (1990) authorized member states to use all
necessary means to uphold and implement its resolution 660 (1990) of 2
August 1990 and all relevant resolutions subsequent to Resolution 660 (1990)
and to restore international peace and security in the area, [preambulatory
para. 4]

Further recalling that its resolution 687 (1991) imposed obligations on Iraq
as a necessary step for achievement of its stated objective of restoring
international peace and security in the area, [preambulatory para. 5]

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, including the obligations on Iraq contained therein,
[preambulatory para 10]

Determined to ensure full and immediate compliance by Iraq without
conditions or restrictions with its obligations under resolution 687 (1991)
and other relevant resolutions and recalling that the resolutions of the
Council constitute the governing standard of Iraqi compliance [preambulatory
para. 11]

[end]

II A) These paragraphs seem to contribute or add up to a trigger mechanism.

II B) SCR 678 force authorization ended with SCR 687 and the ceasefire
condition therein: Iraq had to officially accept SCR 687’s provision.  The
ceasefire did not depend on other SCR 687 provisions, even those relating to
Iraq’s non-conventional weapons.  SCR 687 did not authorize Member States to
use force once the ceasefire was in effect.  In sum, neither SCR 678 nor SCR
687 (nor for that matter SCR 688 which is woven in preambulatory para. 9)
authorized the use of force.  See below details.

II C) The US seems to want to make the currently discussed SCR as consistent
as possible with US legislation, particularly pertaining to SCR 678.
Clinton and G.W. Bush Administrations, along with the US Congress, have
incorrectly used SCR 678 as a pretext to use force against Iraq, in a
post-SCR 687 (Gulf War ceasefire) era.

II C 1) In SCR 678 (29 November 1990) the Security Council

[begin]

Demands that Iraq comply fully with resolution 660 (1990) and all subsequent
relevant resolutions, and decides, while maintaining all its decisions, to
allow Iraq one final opportunity, as a pause of goodwill, to do so [para. 1]

Authorizes Member States co-operating with the Government of Kuwait, unless
Iraq on or before 15 January 1991 fully implements, as set forth in
paragraph 1 above, the foregoing resolutions, to use all necessary means to
uphold and implement resolution 660 (1990) and all subsequent relevant
resolutions and to restore international peace and security in the area
[para. 2]

Requests all States to provide appropriate support for the actions
undertaken in pursuance of paragraph 2 of the present resolution [para. 3]

[end]

II C 1 a)  In SCR 660 the Council “Condemns the Iraqi invasion of Kuwait”
and “Demands that Iraq withdraw immediately and unconditionally all its
forces to the positions in which they were located on 1 August 1990” (para.
1 and 2).  In SCR 678 para. 1, the Council seemed to order Iraq to comply
with SCR 660 and all relevant post-SCR 660 resolutions and grant Iraq until
15 January 1991 (a deadline) to fully implement relevant SCRs.

II C 1 b) SCR 678’s “Foregoing resolutions” (para. 2) seemed to refer to
relevant resolutions passed before 15 January 1991.  In practice this was
SCRs 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, 677 and 678, a total
of 12 SCRs.  The Council seemed to authorize the use of force, but only if
Iraq didn’t implement relevant SCRs 660-678 by 15 January 1991.

II C 1 c) SCR 678’s “subsequent relevant resolutions” seem to refer to SCR
660 and relevant resolutions beyond 15 January 1991, if Iraq did not
implement relevant SCRs by 15 January 1991.  Thus the Council seemed to in
advance authorize the use of force to enforce SCR 686’s (2 March 1991)
terms.  Note that SCR 686 “Demands that Iraq implements its acceptance of
all [of the SCR 686-noted] resolutions” (para. 2), and  “Decides that Iraq
shall notify the Secretary-General and the Security Council when it has
taken [SCR 686 demanded] actions”. (para 7) But SCR 686 does not state that
implementation will by definition trigger a ceasefire.  SCR 686 seems to be
the last SCR for which Council force authorization applied.

II C 1 d) SCR 687 (8 April 1991) “Affirms all thirteen resolutions noted
above, except as expressly changed below to achieve the goals of this
resolution, including a formal cease-fire”. (para. 1)  To clarify the SCR
language, one the goals of “this resolution” (687) is “a formal ceasefire”.

Also in SCR the Council “Declares that, upon official notification by Iraq
to the Secretary-General and to the Security Council of its acceptance of
the provisions above, a formal cease-fire is effective between Iraq and
Kuwait and the Member States cooperating with Kuwait in accordance with
resolution 678 (1990)”. (para. 33)

The Council noted “the restoration to Kuwait of its sovereignty,
independence and territorial integrity and the return of its legitimate
Government”. (preambulatory para. 2)  The Council had achieved its
ostensible main goal in response to Iraq’s invasion.  The subsequent
ceasefire depended on Iraq accepting SCR 687’s provisions.  Once Iraq
officially accepted said provisions, a ceasefire would exist between Iraq
and Kuwait and “the Member States cooperating with Kuwait in accordance with
resolution 678”.

Two key points: One, the Council linked Member State cooperation with Kuwait
to SCR 678, and the related exclusive Charter-based Council purview
regarding the use of force.  Two, Iraq’s acceptance was the ceasefire’s
pre-requisite.  The ceasefire effectiveness did not depend on, e.g., other
Council-determined “obligations” regarding Iraq’s non-conventional weapons.

The Charter states that

Source: UN Charter, article 51,
http://www.un.org/aboutun/charter/chapter7.htm

[begin]

Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security.  Measures taken by Members in the
exercise of this right of self-defence shall be immediately reported to the
Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore
international peace and security.

[end]

Thus, once Iraq committed its armed attack against Kuwait, Kuwait and/or
other Member States could use armed force to defend Kuwait.  However, the
Charter only permitted Kuwait and Member States to act without Security
Council authorization “until the Security Council [took] measures necessary
to maintain international peace and security.”  Once the Security Council
officially acted on 2 August 1990 (SCR 660), then, according to the UN
Charter, the Council had authority over Kuwait and supporting Member States.
  It was thereafter up to the Council to determine when Member States (and
presumably Kuwait) could use force to force Iraq’s withdrawal from Kuwait.
In SCR 678 the Council authorized Member States to use force to “uphold and
implement resolution 660 (1990) and all subsequent relevant resolutions to
restore international peace and security in the area”, (para. 2) if Iraq had
not implemented relevant SCRs by 15 January 1991.  Having officially acted
on 2 August 1990, Charter-wise the Council alone could (and did) authorize
the use of force regarding Iraq.  By SCR 687 (8 April 1991), the Council was
“seized of the matter”.  This meant that just as Charter-wise the Council
could exclusively authorize the use of force vis à vis Iraq, so to could the
Council exclusively declare a formal ceasefire.  Member States cooperating
with Kuwait, who earlier used force under Council authority, would
thereafter have to cease using force and abide by the ceasefire.  SCR 687’s
ceasefire replaced SCR 678’s force permission.

SCR 687 (para. 33) lays out only one prerequisite for the Council to declare
that a ceasefire is in effect: Iraq had to officially notify the
Secretary-General and the Council that Iraq accepted SCR 687’s provisions.
The Council might have linked lifting sanctions to it determining that Iraq
had fulfilled all Council-required “all actions”. (para. 22)  But
ceasefire-wise the Council did not condition the ceasefire upon the Council
determining that Iraq partially or fully complied with SCR 687’s provisions
(other than para. 33 regarding acceptance).  Effectively, the Council
identified Iraq’s non-conventional weapons as a peace and security issue
that ostensibly concerned the Council.  In SCR 687 the Council detailed
related actions that the Council ordered Iraq to undertake.  Those orders
and to-be-undertaken actions seem to be at least one primary, ostensible
reason why the Council “Decide[d] to remain seized of the matter and to take
such further steps as may be required for the implementation of the present
resolution and to secure peace and security in the area.” (para. 34)  Iraq
as a peace and security issue, and the continuing seizure and further steps
are separate from the ceasefire and use of force authorization ending
therein.  Charter-wise, the Council would have to later authorize (not
re-authorize relating to the ceasefire) the use of force against Iraq.

In other words, the Council laid out a ceasefire condition: Iraq had to
officially accept SCR 687’s provisions.  It did, on 6 April 1991 (S/22456).
The ceasefire was in effect.  The Council stated that Iraq was a peace and
security issue in relation to which the Council wished to remained seized.
Since SCR 687 the Council has remained seized of that issue and has taken
steps.  The ceasefire is still in effect.  If the Council authorizes the use
of force against Iraq, it will be an act separate from the ceasefire.
However, the authorization will not necessarily be separate from SCR 687
provisions that pertained to the period following the ceasefire declaration
and/or Iraq as a peace and security issue.
To read more on ceasefires and why they constitute issue-specific use of
force termination, rather than suspension (to be relatedly resumed at any
time), see Dr. Glen Rangwala, “Does a “Material Breach” of SCR 687 Justify
an Invasion?”, CASI discussion list, 22 August 2002,
http://www.casi.org.uk/discuss/2002/msg01239.html

II C 2) On 3 January 1991, a full US Congressional “Joint Resolution to
authorize the use of United States Armed Forces pursuant to United Nations
Security Council Resolution 678” became “US public law” (Passed as H.J. Res.
77 and signed into law as US Public Law 102-1, “Authorization for Use of
Military Force Against Iraq Resolution”, 14 January 1991).  This resolution
“pursuant” to SCR 678 was consistent with the UN Charter’s Chapter VII
regarding peace and security, the Security Council, the use of force and
Member States.

II C 3) As suggested above, Council authorization for Member States to use
force against Iraq ended with SCR 687 and Iraq’s officially accepting SCR
687.  Nevertheless, the US Congress passed a joint Resolution that
incorrectly states that

Source: Passed as H.R. 4655 and signed into law as Public Law 105-338, “Iraq
Liberation Act of 1998, 31 October 1998, sec. 2

[begin]

Hostilities in Operation Desert Storm ended on February 28, 1991, and Iraq
subsequently accepted the ceasefire conditions specified in United Nations
Security Council Resolution 687 (April 3, 1991) requiring Iraq, among other
things, to disclose fully and permit the dismantlement of its weapons of
mass destruction programs and submit to long-term monitoring and
verification of such dismantlement.

[end]

Later, in mid-December 1998, President Bill Clinton incorrectly stated that
SCR 678 and SCR 687 effectively authorized US to use force against Iraq
during “Operation Desert Fox”:

Source: “Text of a Letter from the President to the Speaker of the House of
Representatives and the President Pro Tempore of the Senate,” Office of the
White House Press Secretary, 18 December 1998,
http://www.fas.org/news/iraq/1998/12/18/981218-wh1.htm

[begin]

At approximately 5:00 p.m. eastern standard time on December 16, 1998, at my
direction, U.S. military forces conducted missile and aircraft strikes in
Iraq in response to Iraqi breaches of its obligations under resolutions of
the United Nations Security Council...It is consistent with and has been
taken in support of numerous U.N. Security Council resolutions, including
Resolutions 678 and 687, which authorize U.N. Member States to use “all
necessary means” to implement the Security Council resolutions and to
restore peace and security in the region and establish the terms of the
cease-fire mandated by the Council, including those related to the
destruction of Iraq’s WMD programs.

[end]

II C 4)  The 19 September 2002 White House, “Joint Resolution to Authorize
the Use of United States Armed Forces against Iraq” discussion draft invoked
US Public Law 102-1 (1991) and SCR 678 and 687 therein, and US Public Law
102-90 (1991) and SCR 687 and SCR 688 respectively therein, to support
potential US use of force against Iraq.

Source: White House, “Joint Resolution to Authorize the Use of United States
Armed Forces against Iraq”, discussion, draft, 19 September 2002,
preambulatory para. 11.

[begin]

Whereas Congress in the Authorization for Use of Military Force Against Iraq
Resolution (Public Law 102-1) has authorized the President to use the Armed
Forces of the United States to achieve full implementation of Security
Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and
677, pursuant to Security Council Resolution 678;
Whereas Congress in section 1095 of Public Law 102 190 has stated that it
“supports the use of all necessary means to achieve the goals of Security
Council Resolution 687 as being consistent with the Authorization for Use of
Military Force Against Iraq (Public Law 102-1),” that Iraq’s repression of
its civilian population violates United Nations Security Council Resolution
688 and “constitutes a continuing threat to the peace, security, and
stability of the Persian Gulf region,” and that Congress “supports the use
of all necessary means to achieve the goals of Resolution 688”

[end]

US Public Law 102-190 (1991) invoked SCR 687 and SCR 688 (5 April 1991) to
authorize the potential use of force against Iraq.  SCR 688 “Condemn[ed] the
repression of the Iraqi civilian population in many parts of Iraq, including
most recently in Kurdish populated areas, the consequences of which threaten
international peace and security in the region” (para. 1).  SCR 688
primarily “demande[d]” that the Government of Iraq end this repression,
grant access to international humanitarian organizations, requested the
Secretary-General to report on the civilian repression-related humanitarian
situation, “Appeal[ed] to all Member States and to all humanitarian
organizations to contribute to these humanitarian relief efforts”, and
“Demand[ed] that Iraq cooperate with the Secretary-General to these ends”
(para. 2-4 and 6-7).

Notably, in SCR 688 the Council does not act under UN Charter’s Chapter VII,
the pre-requisite for Council force authorization.  Thus, it is incorrect
for the US to suggest that SCR 688 legitimates the “no-fly zones” (e.g.,
Richard Boucher, briefer, “Daily Press Briefing”, US Department of State, 16
June 2000,
http://secretary.state.gov/www/briefings/0006/000616db.html) (and the
therein use of force) or potential US military actions against Iraq.

As an aside, in contrast, when addressing Iraq, SCR 660 onward, the Council
almost always acts under Chapter VII (although its force authorization has
not applied since SCR 687 and the ceasefire therein).  By SCR 688, the Iraqi
Government continued to repress Iraqi civilians, especially Kurds, just as
it did throughout the 1980s.  During the 1980s the UN Commission on Human
Rights (HRC) Working Group on Enforced or Involuntary Disappearances
reported on thousands of unaccounted disappearances in Iraq.  The Commission
also appointed a Special Rapporteur on “summary or arbitrary executions”,
and Iraq was one of the focus countries.  Additionally, Amnesty
International, other organizations and the press reported on Government of
Iraq repressing (including killing on mass scales) Kurd, Shias and other
individuals and groups.  But almost certainly because of Iran-Iraq War
considerations, neither the General Assembly nor the Security Council
condemned or acted in response to the Iraqi Government’s human rights
violation during the 1980s.  In fact, the Council did not condemn the
internal repression in resolution form until SCR 688(and then it did not
invoke Chapter VII), while the GA first issued a relevant resolution on 17
December 1991 (A/RES/46/134).  All condemnation only followed Iraq’s
invasion of Kuwait.

Source: Passed as H.R. 2100 and signed into law as US Public Law 102-190,
“National Defense Authorization Act for Fiscal Years 1992 and 1993,” 5
December 1991, sec. 1095

[begin]

the Congress supports the use of all necessary means to achieve the goals of
Security Council Resolution 687 as being consistent with the Authorization
for Use of Military Force Against Iraq Resolution (Public Law 102-1).

[end]

Source: Passed as H.R. 2100 and signed into law as US Public Law 102-190,
“National Defense Authorization Act for Fiscal Years 1992 and 1993”, 5
December 1991, sec. 1096

[begin]

the Congress supports the use of all necessary means to achieve the goals of
United Nations Security Council Resolution 688 consistent with all relevant
United Nations Security Council Resolutions and the Authorization for Use of
Military Force Against Iraq Resolution (Public Law 102-1).

[end]

The recently processed US Public Law 107-243 includes the standard US
legislative language that incorrectly suggests that SCRs 678, 687 and 688
authorize to use force against Iraq.

Source: Passed as H.J.RES.114 and signed into law as Public Law 107-243,
“Authorization for Use of Military Force against Iraq Resolution of 2002”,
16 October 2002

[begin]

Whereas United Nations Security Council Resolution 678 (1990) authorizes the
use of all necessary means to enforce United Nations Security Council
Resolution 660 (1990) and subsequent relevant resolutions and to compel Iraq
to cease certain activities that threaten international peace and security,
including the development of weapons of mass destruction and refusal or
obstruction of United Nations weapons inspections in violation of United
Nations Security Council Resolution 687 (1991), repression of its civilian
population in violation of United Nations Security Council Resolution 688
(1991), and threatening its neighbors or United Nations operations in Iraq
in violation of United Nations Security Council Resolution 949 (1994);
Whereas in the Authorization for Use of Military Force Against Iraq
Resolution (Public Law 102-1), Congress has authorized the President ‘to use
United States Armed Forces pursuant to United Nations Security Council
Resolution 678 (1990) in order to achieve implementation of Security Council
Resolution 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677’;
Whereas in December 1991, Congress expressed its sense that it ‘supports the
use of all necessary means to achieve the goals of United Nations Security
Council Resolution 687 as being consistent with the Authorization of Use of
Military Force Against Iraq Resolution (Public Law 102-1),’ that Iraq’s
repression of its civilian population violates United Nations Security
Council Resolution 688 and ‘constitutes a continuing threat to the peace,
security, and stability of the Persian Gulf region,’ and that Congress,
‘supports the use of all necessary means to achieve the goals of United
Nations Security Council Resolution 688’;

[end]


III. US/UK draft SCR, 5 November 2002, preambulatory para. 8.

[begin]

Deploring the absence, since December 1998, in Iraq of international
monitoring, inspection, and verification, as required by relevant
resolutions, of weapons of mass destruction and ballistic missiles, in spite
of the Council’s repeated demands that Iraq provide immediate,
unconditional, and unrestricted access to the United Nations Monitoring,
Verification and Inspection Commission (UNMOVIC), established in resolution
1284 (1999) as the successor organization to UNSCOM, and the IAEA, and
regretting the consequent prolonging of the crisis in the region and the
suffering of the Iraqi people,

[end]

III A) The SCR seems to allude to long-standing Council economic sanctions
on Iraq and link those sanctions to the suffering therein.  But it suggests
that Iraq’s failure to “provide immediate, unconditional, and unrestricted
access to the United Nations Monitoring, Verification and Inspection
Commission (UNMOVIC)” is the exclusive reason for “the suffering of the
Iraqi people”.  This argument ignores Council responsibility for its
actions’ foreseeable consequences.  Since SCR 661 (6 August 1990) the
Security Council has linked Iraq’s humanitarian situation and Iraq as a
peace and security issue.  The Council has used measures that predictably
damaged Iraq’s economy and largely contributed to Iraq’s humanitarian
crisis.  Consistently, the Council conditioned ending these measures upon
the Government of Iraq fully complying (in Council judgment) with Council
SCRs.  At no point has the Council de-linked its ostensible peace and
security objectives from Iraqi civilians and their humanitarian crisis.

Relatedly, publicly available information and conversations with contacts
close to the process suggest that through diplomatic, economic and other
means, the US has long used a multi-lateral mechanism (the UN and Security
Council) to maintain a unilateral policy (economic sanctions on Iraq).  If
the US decided to argue that economically-damaging measures on Iraq should
end, it seems almost certain that no Council Members, particularly other
permanent Members, would seriously contest the conclusion.  Council Members,
especially permanent Members China, France and Russia, have no real
economic, political or other desire to maintain economic sanctions on Iraq.
However, these States have decided that it is not in their short-term and/or
long term “interests” to really oppose the US to the point where they
publicly insist that the Council separate humanitarian issues from and
Security ones and end Council measures that foreseeably will damage Iraq’s
economy and lead to humanitarian consequences.  Unsurprisingly, the calculus
seems to be that national and/or personal economic, political and other
costs, real or imaginary, override the consequences that Council actions
have for Iraqi civilians.

III B) Economic sanctions’ foreseeable consequences, Secretary-General Kofi
Annan, the Security Council’s own 1999 Humanitarian Panel, UNICEF Executive
Director Carol Bellamy, the UN High Commission on Human Rights, the UN
Committee on Economic, Social and Cultural Rights and other UN bodies, some
with a human rights and others with a humanitarian focus, all link Council
economic sanctions to Iraq’s long standing and well documented humanitarian
situation.  Former Secretary-General Boutros Boutros-Ghali generally linked
sanctions to economic damage and conflicting with UN development objectives.
  Foreseeable and/or documented consequences suggest more about “regret”,
and establish responsibility for outcomes, far more than oral/written
rhetoric regarding regret and/or intent.

III B 1)  Former Secretary-General Boutros Boutros-Ghali:

Source: [Annual] Report of the Secretary-General on the Work of the
Organization, “Supplement to an Agenda for Peace: Position Paper of the
Secretary-General on the Occasion of the Fiftieth Anniversary of the United
Nations”, A/50/60 - S/1995/1, 3 January 1995, para. 70,
http://www.un.org/Docs/SG/agsupp.html

[begin]

Sanctions, as is generally recognized, are a blunt instrument. They raise
the ethical question of whether suffering inflicted on vulnerable groups in
the target country is a legitimate means of exerting pressure on political
leaders whose behavior is unlikely to be affected by the plight of their
subjects. Sanctions also always have unintended or unwanted effects. They
can complicate the work of humanitarian agencies by denying them certain
categories of supplies and by obliging them to go through arduous procedures
to obtain the necessary exemptions. They can conflict with the development
objectives of the Organization and do long-term damage to the productive
capacity of the target country.

[end]

III B 2)  Secretary-General Kofi Annan: “..the people of Iraq continue to
suffer from the effects of sanctions.” ([Annual] Report of the
Secretary-General on the Work of the Organization, A/55/1, 30 August 2000,
para. 143,
http://www.un.org/documents/sg/report00/a551e.pdf) “[S]anctions...are
causing so many hardships for the Iraqi people.” (UN Secretary-General Kofi
Annan, address to UN General Assembly, SG/SM/8378 and GA/10045, 12 September
2002, http://www.un.org/News/Press/docs/2002/SGSM8378.doc.htm)

III B 3) 1999 Security Council-appointed Humanitarian Panel:

Source: Report of the Second Panel Established Pursuant to the Note by the
President of the Security Council of 30 January 1999 (S/1999/100),
Concerning the Current Humanitarian Situation in Iraq”, Annex II of
S/1999/356, 30 March 1999, para. 45,
http://www.cam.ac.uk/societies/casi/info/panelrep.html

[begin]

Even if not all suffering in Iraq can be imputed to external factors,
especially sanctions, the Iraqi people would not be undergoing such
deprivations in the absence of the prolonged measures imposed by the
Security Council and the effects of war.

[end]

III B 4) UNICEF Director Carol Bellamy:  When Bellamy introduced the UNICEF
1999 Iraq Child and Maternal Mortality Surveys

Source: UNICEF, “1999 Iraq Child and Maternal Mortality Surveys”, 12 August
1999, http://www.unicef.org/reseval/pdfs/irqu5est.pdf

[begin]

Ms. Bellamy noted that if the substantial reduction in child mortality
throughout Iraq during the 1980s had continued through the 1990s, there
would have been half a million fewer deaths of children under-five in the
country as a whole during the eight year period 1991 to 1998. As a partial
explanation, she pointed to a March statement of the Security Council Panel
on Humanitarian Issues which states: “Even if not all suffering in Iraq can
be imputed to external factors, especially sanctions, the Iraqi people would
not be undergoing such deprivations in the absence of the prolonged measures
imposed by the Security Council and the effects of war.”

[end]

III B 5)  Office of the UN High Commissioner for Human Rights:

Source: “Background Paper prepared by the Office of the High Commissioner
for Human Rights for the meeting of the Executive Committee on Humanitarian
Affairs”, Office of the High Commissioner for Human Rights, 5 September
2000, para. 14,
http://www.cam.ac.uk/societies/casi/info/undocs/sanct31.pdf

[begin]

“OHCHR believes that the current sanctions regime is having a
disproportionately negative impact on the enjoyment of human rights by the
Iraqi population.”

[end]

Also see OHCHHR’s document for a comprehensive summary of UN bodies’
comments regarding sanctions generally and sanctions on Iraq specifically.

III B 6)  UN Committee on Economic, Social and Cultural Rights (CESCR)
(founded in 1985 by the UN Economic and Social Council (ECOSOC) (a main UN
organ)) on economic sanctions generally:

Source: E/C.12/1997/8, “CESCR General Comment 8: The Relationship between
Economic Sanctions and Respect for Economic, Social and Cultural Rights”, 12
December 1997,
http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/974080d2db3ec66d802565c5003b2f57?Opendocument

[begin]

While the impact of sanctions varies from one case to another, the Committee
is aware that they almost always have a dramatic impact on the rights
recognized in the [International] Covenant [on Economic, Social and Cultural
Rights (1966)].

[end]

III B 7)  Economic sanctions damage a target economy.

III B 7 a)  Economic damage is why economic sanctions’ architects design and
implement economic sanctions, ostensibly to force State and/or non-State
actors to change their actions.

III B 7 b)  Economic sanctions fail to do cause economic damage only when
they are completely ineffective.

III B 7 c)  The damage extent and type depend on the sanctions particulars
(specific measures, enforcement, comprehensiveness, etc.) and the target
economy (the Iraqi economy was for well chronicled reasons (e.g., reliance
on revenue generated from a single export, reliance on imports for
nutritional and infrastructural inputs) particularly vulnerable).

III B 8) By definition, economic damage leads to suffering.

III B 8 a)  Civilians are most vulnerable.

III B 8 b)  Vulnerable civilians (women, children, the sick, the elderly and
the poor) are most likely to bear the suffering brunt.

III B 8 c)  The extent and type of suffering depends on the economic damage
and individual vulnerability.

III B 9) Applied economic sanctions will lead to economic damage and
subsequent civilian suffering – this is inevitable and foreseeable.

III B 9 a) For some potential, predictable economic sanctions-related
outcomes, see Dr. Eric Hoskins, “The Impact of Sanctions: A Study of
UNICEF’s Perspectives”,
February 1998, http://www.unicef.org/emerg/Sanctions.htm and particularly
Table 3 http://www.unicef.org/emerg/ImpactSanctions.htm

III B 9 b) Thus, if one accepts the above hypothesis, one may argue it is
inaccurate to state that applied economic sanctions do not have a primary
role in Iraq’s economic damage and civilian suffering.  The policy has
clear, inevitable, foreseeable economic and civilian consequences.  Thus,
those who make, and especially those who maintain, such a policy have a
responsibility for its reasonably foreseeable and/or documented outcomes.


IV. US/UK draft SCR, 5 November 2002, preambulatory para. 9

[begin]

Deploring also that the Government of Iraq has failed to comply with its
commitments pursuant to resolution 687 (1991) with regard to terrorism,
pursuant to resolution 688 (1991) to end repression of its civilian
population and to provide access by international humanitarian organizations
to all those in need of assistance in Iraq...

[end]

IV A) To varying degrees, President G.W. Bush and numerous Administration
officials have tried to link Iraq to al Qaeda, and thus to 11 September 2001
or a potential repeat of it. H.J.RES.114, signed into law as Public Law
107-243 also tries to establish this link.  (H.J.RES.114, signed into law as
Public Law 107-243, “Authorization for Use of Military Force against Iraq
Resolution of 2002”, 16 October 2002).

No credible source seems to have substantiated these claims.  They certainly
do not constitute a basis for the Security Council to authorize force
against Iraq.

See especially Sebastian Rotella, “Allies Find No Links between Iraq, Al
Qaeda”, Los Angeles Times, 4 November 2002,
http://www.latimes.com/news/nationworld/nation/la-fg-noqaeda4nov04.story

IV B) The SCR 688 invocation also seems designed to establish more SCR
continuity with US Public Law 102-90 (1991).


V.  General Preamble comments

A) Preamble does not recall SCR 687 (1991), para. 14., which “Takes note
that the actions to be taken by Iraq in paragraphs 8, 9, 10, 11, 12 and 13
of the present resolution represent steps towards the goal of establishing
in the Middle East a zone free from weapons of mass destruction and all
missiles for their delivery and the objective of a global ban on chemical
weapons”.


VI. US/UK draft SCR, 5 November 2002, operative para. 1

[begin]

Decides that Iraq has been and remains in material breach of its obligations
under relevant resolutions, including resolution 687 (1991), in particular
through Iraq’s failure to cooperate with United Nations inspectors and the
IAEA, and to complete the actions required under paragraphs 8 to 13 of
resolution 687 (1991);

[end]

VI A)  “Material breach” seems to be a primary trigger mechanism.

VI A 1)  On whether “material breach” alone is enough to “justify and
invasion, please see Glen Rangwala, “Does a “Material Breach” of SCR 687
Justify an Invasion?”, CASI discussion list, 22 August 2002,
http://www.casi.org.uk/discuss/2002/msg01239.html

VI A 2)  SCR 707 (1991) is the only SCR in which the Council states that
Iraq is in “material breach”.  Some Security Council Presidential statements
have declared that Iraq is in “material breach” (e.g., Statement of the
Security Council President, S/23643, 26 February 1992).  But SCRs are
ostensibly binding, while Security Council Presidential are non-binding.

Source: SCR 707, 15 August 1991, para.1

[begin]

Condemns Iraq's serious violation of a number of its obligations under
section C of resolution 687 (1991) and of its undertakings to cooperate with
the Special Commission and the IAEA, which constitutes a material breach of
the relevant provisions of resolution 687 which established a cease-fire and
provided the conditions essential to the restoration of peace and security
in the region

[end]


VII. US/UK draft SCR, 5 November 2002, operative para. 2

[begin]

Decides, while acknowledging paragraph 1 above, to afford Iraq, by this
resolution, a final opportunity to comply with its disarmament obligations
under relevant resolutions of the Council; and accordingly decides to set up
an enhanced inspection regime with the aim of bringing to full and verified
completion the disarmament process established by resolution 687 (1991) and
subsequent resolutions of the Council

[end]

A)  “Final opportunity to comply” seems to be the key phrase.  Like much SCR
language, it is not tightly defined.  Does the Council order perfect
compliance?  Is perfect compliance possible, given the mass of information
and number of individuals involved in declaring and disarming?  If UNSCOM
reports a minor infraction and the Council determines that the individual,
Ministry, etc. connected to the reported infraction has either intentionally
or unintentionally erred, has the Council determined in advance (via this
paragraph) that Iraq squandered its “final opportunity”?  If so, is “final
opportunity” the textual cover (although not authorization) for the US to
use force against Iraq?


VIII. US/UK draft SCR, 5 November 2002, operative para. 3

[begin]

Decides that, in order to begin to comply with its disarmament obligations,
in addition to submitting the required biannual declarations, the Government
of Iraq shall provide to UNMOVIC, the IAEA, and the Council, 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 chemical,
biological, and nuclear weapons, ballistic missiles, and 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;

[end]

VIII A)  “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”, draft, 28
October 2002”, para. 7,
http://www.cam.ac.uk/societies/casi/info/blix021028.pdf)

VIII B) [Hans Blix] “said... it would be impossible for Iraq to meet a
30-day deadline to declare every component of its civilian chemical and
biological industries.” (Colum Lynch, “U.S. Presses U.N. to Back Tough New
Iraq Resolution”, Washington Post, 7 November 2002,
http://www.washingtonpost.com/wp-dyn/articles/A19704-2002Nov6.html)

VIII C) Inherent in every somewhat modern economy and national
infrastructure are at least some biological, chemical and other materials
with potential, non-conventional military application.  Declaring within 30
days all biological and chemical programs, materials and equipment with
potential non-conventional utility may be impossible, for they all qualify
as having said potential.  If Iraq is unable to make these programmatic et
al declarations because of an unrealistic timetable, will the US then be
better positioned to declare that Iraq has not complied and thereafter
initiate military action against Iraq?

VIII D)  Suppose that a declaration contains a genuine mistake.
Technically, a document with an error is not “currently accurate, full, and
complete”.  Will such a mistake be a pretext for military action, in the
name of non-compliance?

IX. US/UK draft SCR, 5 November 2002, operative para. 4

[begin]

Decides that false statements or omissions in the declarations submitted by
Iraq pursuant to this resolution and failure by Iraq at any time to comply
with, and cooperate fully in the implementation of, this resolution shall
constitute a further material breach of Iraq's obligations and will be
reported to the Council for assessment in accordance with paragraph 11 or 12
below;

[end]

IX A)  Perhaps the most overt trigger mechanism.  The trigger would follow
inspections’ resumption.

IX B)  As with previous paragraphs, this paragraph does not seem to allow
for unintentional mistakes or unintentional declaration delays.

IX C)  Does not define or distinguish between major and minor “false
statements or omissions”.

IX D) A contact noted that when commenting on a similar paragraph in the 25
October 2002 US/UK draft, Jeremy Greenstock, UK Permanent Ambassador to the
UN, emphasized the “and”, in between “this resolution” and “failure”.
Greenstock argued that Iraq would have to provide “false statements or
omissions” AND fail “at any time to comply with, and cooperate fully in the
implementation of this resolution”, in order for it to “constitute a further
material breach of Iraq’s obligations”.  That seems like a flawed
explanation.  One might argue that the antecedent (including “false
statements or omissions”) to the relevant “and” in operative para. 4 is part
of “this resolution”.  Therefore, what follows “and” is also what precedes
it.  Greenstock’s post-“and” is thus redundant and “false statements or
omissions” stands as enough to constitute a “further material breach”.

IX E) Determines a poorly defined “material breach” before actions take
place.  Past Security Council policy has been to categorize an action as a
material breach after the action occurs.

IX F) Is a “false statement or omission” sufficient cause to wage war on
Iraq, with all the reasonable foreseeable/likely resulting consequences?

IX G) “Other council members, though, might not be willing to go to war over
an incomplete list.” (Maggie Farley, “Compromise Reported on Iraq Resolution
at U.N.”, Los Angeles Times, 6 November 2002,
http://www.latimes.com/news/nationworld/world/la-fg-uniraq6nov06021420,0,601429.story?coll=la-headlines-world


X. US/UK draft SCR, 5 November 2002, operative para. 5.

[begin]

Decides that Iraq shall provide UNMOVIC and the IAEA immediate, unimpeded,
unconditional, and unrestricted access to any and all, including
underground, areas, facilities, buildings, equipment, records, and means of
transport which they wish to inspect, as well as immediate, unimpeded,
unrestricted, and private access to all officials and other persons whom
UNMOVIC or the IAEA wish to interview in the mode or location of UNMOVIC's
or the IAEA's choice pursuant to any aspect of their mandates; 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, and that, at the sole discretion of
UNMOVIC and the IAEA, such interviews may occur without the presence of
observers from the Iraqi government

[end]

X A) Source: Hans Blix, “Notes for the Briefing to The Security Council”,
draft, 28 October 2002”, para. 9,
http://www.cam.ac.uk/societies/casi/info/blix021028.pdf)

[begin]

The [25 October 2002 US/UK] draft resolution prescribes that Iraq shall
provide UNMOVIC and the IAEA access to officials or other persons for
interviews pursuant to any aspect of their mandates and that this shall
occur in the mode or location chosen by the organizations.  I understand
this to mean that we can request Iraq to find the relevant persons and
assist in bringing them to a place of our choice for the interview and that
it is open to us to decide to hold the interview without any official
present to avoid any risk of intimidation. We are aware, however, that, for
various possible reasons, some of the persons thus asked for interviews
might decline to speak with us in private or to speak at all.

I understand that the provision (in op. 5) under which UNMOVIC or the IAEA
might ‘facilitate the travel of those interviewed and family members outside
of Iraq’ is an authorization rather than a mandate.  There would be great
practical difficulties in using such authority, unless there was cooperation
by the Iraqi side.

[end]

X B) “Blix...reiterated his concern about a U.S. proposal to grant him the
power to interview Iraqi scientists and their families outside the country.”
(Colum Lynch, “U.S. Presses U.N. to Back Tough New Iraq Resolution”,
Washington Post, 7 November 2002,
http://www.washingtonpost.com/wp-dyn/articles/A19704-2002Nov6.html)

X C) “U.N. chief weapons inspector Hans Blix has questioned the measure's
practicality – how many family members and colleagues would the U.N. need to
take for each expert, and once they left, would they face even more
harassment upon their return? Or would they automatically become refugees?”
(Maggie Farley, “Compromise Reported on Iraq Resolution at U.N.”, Los
Angeles Times, 6 November 2002,
http://www.latimes.com/news/nationworld/world/la-fg-uniraq6nov06021420,0,601429.story?coll=la-headlines-world)

X D) Giving UNMOVIC discretion to take Iraqis out of the country may be
designed to trigger Iraq rejecting the SCR.  If Iraq rejects the resolution,
then the US might claim a pretext for using large scale military force
against Iraq.

X E) This sentences authorizing UNMOVIC to interview people out of Iraq may
be designed to poison the inspections process once it begins.  E.g., UNMOVIC
may refuse to exercise the SCR-granted authority.  The US might argue that
such interviews are essential for effective disarmament.  UNMOVIC might
disagree.  The US might then explore ways to disrupt inspections.  Or, the
US might argue that less-than-optimal inspections and disarmament are
insufficient to disarm Iraq to a standard that it determines.  The US would
then argue that it therefore has no choice but to use force against Iraq to
secure Iraq’s disarmament.

X F) If potential interviewees and/or their family members refused (either
voluntarily or under duress) to leave Iraq, how would the Council respond?
Would the US use it as a pretext to use force against Iraq?


XI.  US/UK draft SCR, 5 November 2002, operative para. 8

[begin]

Decides further that Iraq shall not take or threaten hostile acts directed
against any representative or personnel of the United Nations or of any
Member State taking action to uphold any Council resolution

[end]

XI A) The Government of Iraq often makes hyperbolic statements, either
through officials or official/government-affiliated media, that include the
threat of force.  In future would such statements be a pretext for military
action against Iraq?

XI B) The US often incorrectly claims that it was the authority to “support”
SCR 688 by using aerial munitions in the so-called “no-fly zones”.  If the
Iraqi Government states that its air defenses will attack such US planes
that are not authorized by the Council, will the US utilize its SCR 688
“support” claim to argue that Iraq has violated this paragraph.

XI C) If an Iraqi guard with too much bravado starts waving around his gun
during an inspection detail, will this be a pretext for the use of force
against Iraq?


XII. US/UK draft SCR, 5 November 2002, operative para. 9

[begin]

Requests the Secretary General immediately to notify Iraq of this
resolution, which is binding on Iraq; demands that Iraq confirm within seven
days of that notification its intention to comply fully with this
resolution; and demands further that Iraq cooperate immediately,
unconditionally, and actively with UNMOVIC and the IAEA

[end]

XII A) “The U.N.'s chief weapons inspector, Hans Blix, cited several
problems with the U.S. text of the resolution. He said that a seven-day
deadline for Iraq to accept the terms of the resolution was unnecessary”
(Colum Lynch, “U.S. Presses U.N. to Back Tough New Iraq Resolution”,
Washington Post, 7 November 2002,
http://www.washingtonpost.com/wp-dyn/articles/A19704-2002Nov6.html)


XIII. US/UK draft SCR, 5 November 2002, operative para. 10

[begin]

Requests all Member States to give full support to UNMOVIC and the IAEA in
the discharge of their mandates, including by providing any information
related to prohibited programmes or other aspects of their mandates,
including on Iraqi attempts since 1998 to acquire prohibited items, and by
recommending sites to be inspected, persons to be interviewed, conditions of
such interviews, and data to be collected, the results of which shall be
reported to the Council by UNMOVIC and the IAEA

[end]

XIII A)  Source: Hans Blix, “Notes for the Briefing to The Security
Council”, draft, 28 October 2002”, para. 13,
http://www.cam.ac.uk/societies/casi/info/blix021028.pdf

[begin]

“The provision I have referred to [in the 25 October 2002 US/UK draft SCR,
operative para. 10] touches upon some of the most sensitive and difficult
parts of our future activities.  Access to sites is vital but it must be
coupled with information about what sites may be relevant.  We have much
information ourselves, from the past, from satellite images, from the
recently delivered semi-annual monitoring declarations and from open
sources.  However, this information needs to be supplemented by
recommendations from Member States’ intelligence.

The providers of such information can legitimately require that we be
organized and operate in such a fashion that there are no leakages and that
no sources are endangered.  They cannot, however, expect us to conform to a
common two-way pattern of exchange.  We are not engaged in some quid pro quo
activities.  Their governments have a direct interest in our going the most
interesting sites and objects for inspection.  This is the most important
gain that what we and they can get out of our cooperation.
To achieve this, we must, as we have noted earlier, be able at least to have
a dialogue in which we tell our providers what particular information we are
interested in.  What goes beyond that is difficult to define and must, I
think, be left to our judgement to decide in particular matters.  It is
clear that our mandate is limited to weapons of mass destruction and that we
have no business to look for conventional weapons other than when they are
relevant for WMDs, e.g. bombs or warheads as munitions for WMDs.

[end]

XIII B)  Source: Hans Blix, “Notes for the Briefing to The Security
Council”, draft, 28 October 2002”, para. 12,
http://www.cam.ac.uk/societies/casi/info/blix021028.pdf)

[begin]

I welcome that Member States are recommended to give full support to UNMOVIC
and the IAEA, inter alia, by providing information and recommendation of
sites to be inspected and persons to be interviewed.  I think we might be
able to determine, without guidance, the conditions of the interviews and
what data to collect.  I take it that, as in the past, only significant
results will be reported to the Council.

[end]


XIV. US/UK draft SCR, 5 November 2002, operative para. 11

[begin]

Directs the Executive Chairman of UNMOVIC and the Director General of the
IAEA to report immediately to the Council any interference by Iraq with
inspection activities, as well as any failure by Iraq to comply with its
disarmament obligations, including its obligations regarding inspections
under this resolution

[end]

XIV A)  This does not distinguish between varyingly serious and type of
“interference” or “failure to comply”.  An earlier French draft SCR “directs
the Executive Chairman of UNMOVIC and the Director General of the IAEA to
report immediately to the Council any serious failure by Iraq to comply with
its disarmament obligations, including its obligations regarding
inspections, under this resolution” (French draft SCR, operative para. 10).
The French draft SCR at least qualifies “failure by Iraq to comply” with
“serious”.

XIV B) Blix has long stated that “Our reports must be as accurate and
objective as is at all possible.  However, I will not agree with an
interpretation suggesting that we have peace and war in our hands. We
report. It is the Security Council and its Members who decide.” (Hans Blix,
“Notes for the Briefing to The Security Council”, draft, 28 October 2002”,
para. 14,
http://www.cam.ac.uk/societies/casi/info/blix021028.pdf)  What if there is a
disagreement between UNMOVIC and the US over what constitutes “any
interference” or “failure by Iraq to comply”?  UNMOVIC might conclude that a
situation is not worth reporting, while the US might conclude that it
qualified as “any interference” or “failure to comply”.  The US might argue
that the Government of Iraq is not letting UNMOVIC do its job, even if
UNMOVIC doesn’t report an incident as per the 5 November 2002 draft SCR
(para. 11) provisions.

XIV C)  The US might cite an incident, unreported by UNMOVIC, to argue that
Iraq is interfering or not complying to US satisfaction.  This would
incident would be the pretext for the use force against Iraq.


XV. US/UK draft SCR, 5 November 2002, operative para. 12

[begin]

Decides to convene immediately upon receipt of a report in accordance with
paragraphs 4 or 11 above, in order to consider the situation and the need
for full compliance with all of the relevant Council resolutions in order to
restore international peace and security

[end]

XV A)  This paragraph binds Council Member States to do no more than meet
and discuss the relevant situation, following “upon receipt of a report in
accordance with paragraphs 4 or 11 above”.  US Permanent Representative to
the UN John Negroponte stated that “the resolution does not prejudge what
might happen after that stage.” (Ambassador John D. Negroponte, United
States Permanent Representative to the United Nations, Remarks  following
the Consultations on the Iraq Resolution, at the Security Council Stake-out,
6 November 2002, http://www.un.int/usa/02_183.htm)  Paragraph 11 does not
mean that Member States could only use force after explicit Council
authorization in the form of a second SCR, following Council considerations
and discussions.  In fact, the US could have already begun its military
operations against Iraq by the time the Council convenes.

XV B)  The French for long insisted that Council-approved force usage could
only follow a second SCR.  In the second SCR, the Council would have to
first find Iraq to be in “material breach” over actions that UNMOVIC
reported.  The Council would then in the SCR have to explicitly authorize
Member States to use force to secure Iraq’s SCR compliance.

XV C)  The US has consistently and publicly stated that Council force
authorization would be optimal but that it reserved the right to act without
Council approval.  Conversations with contacts confirmed that during SCR
negotiations, US negotiators made it clear that the US would not accept a
resolution that constrained the US ability to use force against Iraq.

XV D) “Security Council diplomats said they did not believe either US
President George W. Bush or Jacques Chirac, his French counterpart, had
scored a clean victory in the negotiations. The French were unable to force
the US to commit to a two-resolution process, but Washington had failed to
persuade the Security Council to back its demands for immediate authority to
go to war, they said.” (Caroline Daniel, Robert Graham, Carola Hoyos, Andrew
Jack and James Kynge, “Washington Confident of Wide Support for its Iraq
Resolution”, Financial Times, 7 November 2002)


XVI. US/UK draft SCR, 5 November 2002, operative para. 13

[begin]

Recalls, in that context, that the Council has repeatedly warned Iraq that
it will face serious consequences as a result of its continued violations of
its obligations

[end]

XVI A) “Warned” and “serious consequences” seem to be additional and rather
straight-forward trigger mechanisms, should the US and/or the Council
declare that Iraq is further non-compliant (without or without UNMOVIC
reporting as such).  Following such a determination, the US would probably
quote such a paragraph to justify its military actions against Iraq.

Suggested reading: Carola Hoyos and Alan Beattie, “Nations Ponder Expense of
US Stance at UN”, Financial Times, 6 November 2002,
http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=1035873057605&p=1031119383196

[end]

Nathaniel Hurd
90 7th Ave.
Apt. #6
Brooklyn, NY  11217
Tel. (M): 917-407-3389
Tel. (H): 718-857-7639
Fax: 718-504-4224




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