PART TWO:
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,
Jennings: "The resolution leaves no room for mistakes or errors of any kind in its implementation. This approach is unrealistic and unlikely to achieve the Council's wishes, unless the desired result is war."
Recalling that the effective operation of UNMOVIC, as the successor organization to the Special Commission, and the IAEA is essential for the implementation of resolution 687 (1991) and other relevant resolutions,
Noting the letter dated 16 September 2002 from the Minister for Foreign Affairs of Iraq addressed to the Secretary General is a necessary first step toward rectifying Iraq's continued failure to comply with relevant Council resolutions,
Noting further the letter dated 8 October 2002 from the Executive Chairman of UNMOVIC and the Director General of the IAEA to General Al-Saadi of the Government of Iraq laying out the practical arrangements, as a follow-up to their meeting in Vienna, that are prerequisites for the resumption of inspections in Iraq by UNMOVIC and the IAEA, and expressing the gravest concern at the continued failure by the Government of Iraq to provide confirmation of the arrangements as laid out in that letter,
Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of Iraq, Kuwait, and the neighbouring States,
Commending the Secretary General and members of the League of Arab States and its Secretary General for their efforts in this regard,
Determined to secure full compliance with its decisions,
Acting under Chapter VII of the Charter of the United Nations,
1. 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);
Michael Ratner, President of the Center for Constitutional Rights : "Stating that Iraq 'has been and remains' in material breach of prior UN resolutions including 687, the cease fire resolution gives the U.S. government what it wants. It can then argue that because of this 'material breach' the cease fire is no longer in effect, and that 678, the 1990 use of force resolution, governs."
Rangwala: "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 fulfill 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 labeling 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."
Mahajan: "Iraq is certainly technically in 'material breach' of the obligations stated in 687 and other resolutions. Its compliance or lack thereof cannot be considered in a vacuum, however -- the United States has from the beginning breached both the spirit and the letter of the resolutions creating the inspection regime and of international law. These breaches include its original declaration (affirmed throughout the past decade by officials like Madeleine Albright, Bill Richardson, and even by Bill Clinton) that it would not be bound by 687, but would keep the sanctions on until Saddam was removed from power -- the resolution says clearly that sanctions will be lifted after the weapons inspectors are satisfied. Next, the establishment of the 'no-fly zones' violated Iraq's sovereignty, something explicitly guaranteed by every Security Council resolution on Iraq. The infiltration of spies into UNSCOM, the previous weapons inspection commission (openly admitted now by Rolf Ekeus, its first head), was a further violation of the inspections process -- and among the information they collected was anything that could help target Saddam Hussein for assassination, in violation of both international law and domestic executive order. With Richard Butler as head of UNSCOM, the U.S. used inspections explicitly to provoke crises, and colluded with him to present a rather innocuous report in December 1998 as a justification for armed attack. Ekeus has noted a pattern of bombing attacks on sites visited by UNSCOM, more evidence that the United States is illegitimately using inspections for its own national purposes. Without a declaration of all these material breaches, it's impossible to put Iraq's comparatively trivial breaches in proper perspective."
2. 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;
Rangwala: "This recognizes 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 U.S. and U.K. can no longer claim that they are trying to ensure Iraq's compliance with resolutions dating back to 1991."
Ratner: "The resolution arguably does limit the right of the U.S. to go to war immediately by 'afford[ing]' Iraq 'a final opportunity' to comply with the disarmament resolutions and sets up an enhanced inspection regime to achieve this. But, and it is a big but, the resolution goes on in numbered paragraph (4) to state that any 'false statement' or 'omission' in Iraqi declarations or failure to comply with the new resolution constitutes a further 'material breach' and will be reported to the Security Council. Thus, even the most minor omission or disagreement with the inspectors is considered a material breach. Once that is the case, the U.S. can argue not only that Iraq has materially breached the new resolution, but that there is no longer any 'final opportunity' for Iraq to cure its alleged past breaches of resolutions. This then opens the way for the U.S. to make the argument referred to above."
3. 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;
Paul: "This list could be interpreted to mean any chemical or biological product that could be used in a modern economy. Can you imagine the U.S. government being able to producing a list of this type of its holdings in 30 days? The next paragraph of the resolution, which says that any omissions constitute 'material breach,' puts Iraq in a ridiculous bind. Also, according to press reports, the U.S. government will be coming forward with its own lists of what weapons Iraq has. It's possible that we could have a very short inspections process, where the 'evidence' against Iraq's statement is not a finding of the inspectors, but a document from the U.S. government -- or possibly planted 'evidence' somewhere in Iraq, which the U.S. government will know the precise location of."
Susan Wright, co-author of "Preventing a Biological Arms Race and editor of Biological Warfare and Disarmament: New Problems/New Perspectives": "Will we now see the UN inspections being used for 'regime change' through the back door of some claimed failure of the inspections? Since no clear end game was ever defined by 687 and since it is impossible to prove definitively that Iraq does not have any weapons of mass destruction, this is certainly a grim possibility."
Rangwala: "This 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 programs' in the chemical field, including those activities not relating to weapons issues.... 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. 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."
Bennis: "This seems to be an effort to ensure Iraq's inability -- regardless of intent -- to comply with these very stringent terms. This is asking Iraq to essentially do the initial work of the inspection team itself, cataloguing its entire WMD programs as well as programs never included in the earlier demands. The original inspections mandated in resolution 687 did not include, for example, 'delivery systems, such as unmanned aerial vehicles and dispersal systems designed for use on aircraft, including any holdings and precise locations of such weapons' etc. Resolution 687 also included only long-range missiles, with a range over 150 km, not 'all' ballistic missiles. The terms are significantly stricter here."
4. 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 paragraphs 11 and 12 below;
Ratner: "This will be used by the United States as an authorization by it, acting alone and without further UN approval, to go to war with Iraq. It will not, according to the U.S., require another resolution by the UN to go to war. By labeling alleged past violations of the inspection regime as 'material breaches,' by deeming any further omissions or non-cooperation by Iraq with any of the new inspection regime as 'material breaches' and by repeating the warning of 'serious consequences' for past failures, the U.S. will interpret this resolution as a green-light for war.... The U.S. has basically put a gun to the UN and said if you don't approve, we will do it anyway. That is not approval the UN Charter requires; it is coercion."
Bennis: "This sets Iraq up with a 'damned if you do, damned if you don't' situation. If they claim they have no WMD material to declare, Washington will find that evidence of the 'continuing breach' based on the [unproved but functionally unchallenged] U.S. assertion that Iraq does have viable WMD programs. If Iraq actually declares viable WMD programs, it similarly proves the U.S. claim of continuing breach of resolution 687."
Jennings: "Articles 1 and 2 contain language more or less certain to guarantee a new war if anything goes wrong with the UNMOVIC mission. Language finding Iraq already in 'material breach' and being given 'a final opportunity' to come clean is a rather ominous way of predetermining the outcome, especially when linked with articles 3 and 4 demanding a full and complete accounting and forbidding any misstatement. This opens the possibility that any missing document page or any evasive statement by any official could trigger a war."
John Burroughs, executive director of the Lawyers' Committee on Nuclear Policy: "As interpreted by the United States government, this assumes that any Iraqi non-compliance with the demand for a declaration of its weapons, materials, equipment, etc., or with the requirements of the inspection regime, would amount to a material breach justifying war by the United States. This is contrary to basic principles of law. In an ordinary contract, if there has been a material breach, the injured party has the option of declaring the contract void. Here the injured party would be the Security Council, not the United States. And under the UN Charter, it is the Security Council that is responsible for the maintenance of international peace and security, the Security Council that is charged with determining whether there is a threat to international peace and security, and the Security Council that is charged with deciding whether use of force is necessary and appropriate to respond to such a threat?. It is for the Security Council to decide, unambiguously and specifically, that force is required for enforcement of its requirements. In the weeks and months to come, the burden is on those who claim use of force is necessary. It is fundamental that the UN Charter gives priority to the peaceful settlement of disputes and the non-use of force. The Security Council has never authorized force based on a potential, non-imminent threat such as that the United States contends is posed by alleged Iraqi development of nuclear weapons. All past authorizations have been in reponse to actual invasion, large-scale violence, or humanitarian emergency (Korea, Kuwait, Somalia, Haiti, Rwanda, and Bosnia)."
5. 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; and instructs UNMOVIC and requests the IAEA to resume inspections no later than 45 days following adoption of this resolution and to update the Council 60 days thereafter;
Rangwala: "This accords 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. This accords 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 U.S. 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."
Bennis: "The effect of moving scientists and their families outside of Iraq would be to have UN arms inspectors acting as asylum officers. Certainly many, perhaps most scientists would jump at the opportunity right now to leave Iraq with their families and be granted asylum somewhere else. They are living, after all, in a country not only devastated by 12 years of crippling economic sanctions and the ravages of a repressive political regime, but also facing the likely possibility of imminent war. There are certainly legitimate reasons why many Iraqi scientists would want to live and work somewhere with greater safety and political freedom. There is also, however, the consequent and understandable likelihood of scientists exaggerating the level of Iraq's military or WMD programs as well as their own role in those programs, in the hope of persuading international immigration officials of their importance."
Jennings: "Enforced capture and transport of Iraqi citizens and their families, meaning if necessary without their consent, as in the Afghan War's Guantanamo Bay detention camp, violates both the Geneva Conventions and the Universal Declaration of Human Rights. The U.S. is bound by treaty to uphold these agreements as part of its international obligations."
Majahan: "Depriving Iraq of its scientifically and technically-trained people is what this amounts to -- once they have been seized, removed from the country, and debriefed, they will not feel safe in Iraq. Iraq has already suffered massive 'brain drain' since the Gulf War -- the four million expatriates are disproportionately educated and technical people. It has had a 'lost decade' in terms of education as well - the sanctions are responsible for the fact that Iraq, unlike any other country in the world, actually experienced a decrease in literacy in the 1990's. Any more and Iraq's ability to redevelop and reconstruct may be impaired for another generation."
6. Endorses the 8 October 2002 letter from the Executive Chairman of UNMOVIC and the Director General of the IAEA to General Al-Saadi of the Government of Iraq, which is annexed hereto, and decides that the contents of the letter shall be binding upon Iraq;
Bennis: "This letter asserts a set of arrangements allegedly agreed to by Iraq, without confirmation from Iraq that it did indeed accept those arrangements."
7. Decides further that, in view of the prolonged interruption by Iraq of the presence of UNMOVIC and the IAEA and in order for them to accomplish the tasks set forth in this resolution and all previous relevant resolutions and notwithstanding prior understandings, the Council hereby establishes the following revised or additional authorities, which shall be binding upon Iraq, to facilitate their work in Iraq:
Bennis: "In general, sidelining existing resolutions and agreements made between Iraq and the United Nations undermines the legitimacy, consistency and coherence of UN resolutions."
Jennings: "Article 7 adds several new and important grants of authority to UNMOVIC, all of which seem perfectly designed not to work. For example, 'immediate, unimpeded, unconditional, and unrestricted access' to any site is unrealistic in an operational sense, given conditions on the ground in Iraq. The same article cancels presidential sites immunity previously granted in SCR 1154 (1998). The issue of the number of UN guards is not addressed in the resolution, perhaps deliberately, meaning that a creeping military occupation could be the outcome, with any resistance leading to war. The size of 'exclusion zones' is left undefined, possibly leaving another opening for an outbreak of conflict. The open-ended range and extent of searches of 'subsystems, records, and materials' may further complicate UNMOVIC's relationships with Iraqi officialdom. If UNMOVIC searches are conducted in a more aggressive manner than UNSCOM's searches (as the U.S. and Britain insist, and which Iraq claimed were often unreasonable), then trouble is bound to ensue. This sampling of items raises the question of whether this resolution was designed to succeed or to fail."
-- UNMOVIC and the IAEA shall determine the composition of their inspection teams and ensure that these teams are composed of the most qualified and experienced experts available;
Mahajan: "The restrictions on UNMOVIC personnel put in place by Security Council Resolution 1284 were placed because so many UNSCOM personnel were essentially employed by the intelligence agencies of the English bloc (the U.S., U.K., Canada, Australia, New Zealand) and acting as their agents, illegitimately transmitting all collected data back to those governments. The clear, and obviously fair, remedy was to require participation from a much broader group of countries and to require lack of any overt links to domestic intelligence agencies of any government."
-- All UNMOVIC and IAEA personnel shall enjoy the privileges and immunities, corresponding to those of experts on mission, provided in the Convention on Privileges and Immunities of the United Nations and the Agreement on the Privileges and Immunities of the IAEA ;
Bennis: "Sidelining the existing terms of 1154 (which set special arrangements, including diplomatic accompaniment, for inspection of the eight designated 'presidential sites') undermines the legitimacy of UN decision-making."
END PART TWO |
