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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 agenda. 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. -- References: Draft resolution of 2 October in part at: http://www.guardian.co.uk/international/story/0,3604,803436,00.html Draft resolution of 23 October at: http://www.accuracy.org/un/ Draft resolution of 25 October at: http://www.cam.ac.uk/societies/casi/info/usdraftscr021025.pdf Draft resolution of 11 November at: http://www.casi.org.uk/discuss/2002/msg02002.html _______________________________________________ Sent via the discussion list of the Campaign Against Sanctions on Iraq. 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