[Last update: 7 November 2002]

Letter to Security Council Ambassadors on US draft resolution on Iraq

by douglas foxvog

Dear Ambassador,

The draft of the US resolution on Iraq that was presented to the Security Council on 6 November 2002 has many faults that need to be corrected before passage. I urge you to modify the sections of the draft mentioned below to repair these flaws.

The draft recalls that "Resolution 678 (1990) authorized member states to use all necessary means to uphold and implement its Resolution 660." Resolution 660 ordered Iraq to withdraw its forces from Kuwait. As such forces were withdrawn in 1991, the authorization granted in Resolution 660 is currently null and void, and as such should not be referred to in the draft. This paragraph (the fourth) should be excised from the draft resolution.

The proposed resolution's action section addresses inspections of Iraq's chemical, biological, and nuclear weapons programs and means of delivery of such weapons. The basis for these action must logically relate to such Iraqi programs or to prior inspections. As such, several of the paragraphs in the prologue are unrelated to the action section and thus should be removed, the prologue stating the reasons for the decisions taken in the action section. Paragraph 9 of the prologue, regarding Iraq's relationship to terrorism, repression, humanitarian organizations, and detainees, is immaterial to the action section, and thus should be excised from the draft resolution.

Paragraph 10 of the prologue recalls "that in its Resolution 687 (1991) the Council declared that a cease- fire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein." Iraq did accept that resolution and the obligations that it placed upon Iraq. As a result of this acceptance, the cease-fire did come into effect. This paragraph implies that later material breaches of 687 may invalidate the cease-fire. Although this is not part of the action section, such an implication is untoward, and could be seized upon by any nation state to wage war against Iraq. Unless the intention of this resolution is to authorize any state that was engaged in war against Iraq in 1991 to restart attacks upon Iraq, this text must be excised from the draft resolution.

Paragraph 11 of the prologue recalls "that the resolutions of the Council constitute the governing standard of Iraqi compliance." This may be a standard form in diplomatic language, but the meaning is unclear to the layman.

Although much of the language of this resolution is carefully crafted, other parts are overly broadly worded. The wording in such sections must be made more precise.

In paragraph 3 of the action section, the declaration required of Iraq is to include the "locations and work of ... all other chemical [and] biological ... programs." The term "all other" is incredibly broad, as the meanings of the terms "chemical programs" and "biological programs" is not defined. Certainly, this would include any chemical plants and pharmaceutical plant. However, arguably, any farm's usage of chemical pesticides could be considered a "chemical program". Any private company or home producing yogurt could be considerd to have a "biological program". Stretching the terminology even further, recognizing that any restaurant or bakery has a program of producing chemical and/or biological changes in foodstuffs through cooking, a state could argue that each such program is a biological or chemical program. Recognizing that any omissions (paragraph 4 of the action section) from the report discussed in this paragraph would be considered a material breach of the resolution, the paragraph must be edited to make very clear what types of biological and chemical programs must be reported.

Paragraph 4 of the action section predecides that future actions would consitute material breaches of the resolution, which is contrary to the UN Charter's requirements that material breaches of resolutions be determined by the Security Council itself. Such pre-decisions concerning future actions are not authorized by the UN Charter and must be removed from this paragraph. Any such determination must be made after the action which constitutes the breach has occurred.

Paragraph 4 states that "omissions" -- without qualification, no matter how trivial the omission -- will be considered a violation of the required report in paragraph 3. Since no document is perfect, this seems designed to indicate that the report required in paragraph 3 would be impossible to produce. If the intent of the resolution is to achieve inspections and disarmament of Iraq, the resolutions should require actions that are possible. If the intent is to authorize military attacks on Iraq, the resolution should clearly state that. If the intent is to mask an authorization of military attacks on Iraq by placing impossible requirements on Iraq, that is unconscionable.

Paragraph 4 of the action section says that "false statements or omissions ... will be reported to the Council." Who is required to make such reports? This needs to be reworded to specify who is required to make such reports. The paragraph also does not state who determines if there are false statements or omissions in the report to be submitted by Iraq. The paragraph should make clear that a finding that such a problem exists should be made by UNMOVIC or the IAEA and that it is up to the Security Council to determine whether there is such a false statement or omission.

Paragraph 5 of the action section permits UNMOVIC and the IAEA to interview anybody at a location of their choice and to remove such people and their family members from Iraq. This is a great and unnecessary violation of Iraqi sovereignty. This should be reworded to permit the inspection agencies to interview people in the location of their choice within the region of Iraq where the interviewees are located. By keeping such interviews private from the Iraqi government, and by making a significant number of interviews, the danger of reprisals against individuals compelled by UNMOVIC or IAEA to sumbit to interviews would be alleviated.

The first "authority" under paragraph 7 of the action section allows UNMOVIC and the IAEA to determine the composition of their teams. It leaves out the crucial requirement that all members of such teams be employees of the agencies themselves, and not employees of any member state of the UN. This "authority" should be rewritten to make the requirement for such employment clear.

The fifth "authority" under paragraph 7 requres that "[s]ecurity of UNMOVIC and IAEA facilities shall be ensured by sufficient UN security guards." It is impossible to have sufficent guards for the security of a facility if the armed forces of the state in which they are present are considered an enemy. This should be rewritten to require Iraq to guarentee the security of such facilities in portions of the country in which their armed forces have control (i.e., excluding the Kurdish regions) and permitting a limited UN guard force for the facility as a secondary security force.

The sixth "authority" under paragraph 7 of the action section should specify that exclusion zones around facilities to be inspected be limited to a few hundred meters. Otherwise such zones could be used for harassment, closing down a city during "rush hour" or blocking all traffic on major highways unrelated to the inspection site.

The seventh "authority" under paragraph 7 of the action section should specify that the aircraft and reconnaissance vehicles be unarmed. This purpose of this section is to facilitate inspections, not to facilitate military attacks.

Paragraph 8 of the action section prohibits Iraq from hostile acts against any member state taking [military] action [against Iraq] to uphold any Council resolution. The Security Council has not authorized any such military action. It is up to the Security Council to authorize any such action. If an when the Security Council authorizes such action, it could include in that authorization a prohibition of Iraq defending itself from attack. This prohibition should be excised from the current resolution.

Paragraph 10 of the action section requests member states to provide information "on Iraqi attempts since 1998 to acquire prohibited items." This should be upgraded to direction that such states provide all such information which they have of such Iraqi attempts since the beginning of 1980. Iraq acquired such items in the 1980s for its war against Iran. All information that any member state has of such attempts to acquire such items should be provided to the inspection agencies.

Paragraph 12 of the action section, on a further meeting of the Security Council, states that such meeting be "to consider the situation and the need for full compliance." The most important purpose of such a meeting is omitted. This paragraph should state that a purpose of the meeting is "to consider the situation, the need for full compliance..., and authorization of any enforcement action by member states."

Paragraph 13 of the action section is a "RECALLS" paragraph and should thus be relegated to the prologue section.

Thank you for your close consideration of these points.

Sincerely,

  douglas foxvog
  11400 Barrington Way
  Austin, TX 78759-4406
  


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