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[casi] Comments on the US-UK draft resolution of 11/05/02

I'd greatly appreciate suggestions before tomorrow morning on these
comments on the draft resolution circulated earlier today - it's for wider
distribution from tomorrow morning. Thanks. Glen.


Comments on the US-UK draft resolution of 11/05/02

The draft of 11/5 drops some of the more preposterous elements of the
earlier three US drafts that have made their way into the public arena (2
October, 23 October and 25 October), such as the installation 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. 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.

I go through these points below. In many provisions, the US-UK draft
attempts to re-write history and past resolutions of the Council; I have
cited these points below as well, as this is one consistent practice of the
US and UK in their policy towards Iraq that I find particularly repugnant,
intellectually indefensible and ultimately highly dangerous.

PP1: "Recalling .. 688 (1991)". In its first operative paragraph, the draft
SCR brings SCR688 ? demanding that Iraq "immediately end" ... "the
repression of the Iraqi civilian population" ? into a resolution
purportedly on Iraq's disarmament. By including 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

It is worth noting that the SC 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, element 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
an argument that has been repeated by Council members ad nauseum since
1991, with no state 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 claiming 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. 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
that those cited above. 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. The difference is highly significant: the
US-UK draft text implies that the ceasefire would no longer be operative if
Iraq is seen to no longer accept 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, which 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 oblique 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.

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
openly 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 previously not 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 full "declaration of all aspects of its programmes" in
the chemical field, including those 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 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. 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.

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 leader, 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 is to
set reasonable and achievable standards for cooperation.

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 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. Secondly it would
demonstrate that agreements with the UN are without legitimacy, 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 standards of legality
in its own resolutions 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 inspections bodies
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.


Draft resolution of 2 October in part at:,3604,803436,00.html
Draft resolution of 23 October at:
Draft resolution of 25 October at:
Draft resolution of 11 November at:

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