UN Weapons Inspections Begin in Iraq

December 2002

By Paul Kerr

United Nations weapons inspectors returned to Iraq this month for the first time since December 1998 after the UN Security Council passed Resolution 1441 November 8 requiring Iraq to admit inspectors. Following months of debate over how to disarm Iraq, the Security Council approved the new resolution by a vote of 15-0, but differences remain between Washington and the United Nations over future Iraq policy.

The first team of UN Monitoring, Verification, and Inspection Commission (UNMOVIC) and International Atomic Energy Agency (IAEA) inspectors arrived in Iraq November 25, with inspections scheduled to start November 27. The inspectors will update the Security Council on their progress 60 days later. Iraq must submit a “currently accurate, full, and complete declaration of all aspects of its [weapons of mass destruction] programmes” by December 8, according to the resolution.

The inspection teams have a strong mandate under the resolution, which specifies that Iraq must allow “immediate, unimpeded, unconditional and unrestricted access” to “facilities, buildings, equipment, records, and means of transport which they wish to inspect.” To prevent Iraq from moving weapons materials, the resolution grants UN inspectors the authority to prohibit the movement of vehicles and aircraft around sites to be inspected. Inspectors also have the right to interview anyone they choose, without Iraqi officials present, in any location they wish, including outside Iraq. Additionally, the resolution mandates access to “presidential sites,” superceding a 1998 memorandum of understanding between Baghdad and UN Secretary-General Kofi Annan that had placed special conditions on inspections of such sites. (See ACT, November 2002.)

The new resolution also encourages governments to provide “any information related to prohibited programmes or other aspects of their mandates,” an apparent reference to national intelligence data.

Baghdad accepted the new resolution in a November 13 letter to Annan from Iraqi Foreign Minister Naji Sabri despite an Iraqi parliament vote the day before to reject the new resolution. The letter included anti-American rhetoric and assertions that Iraq does not possess weapons of mass destruction. Iraq sent a second letter, dated November 23, reiterating Iraqi charges that it has complied with weapons inspections in the past and that the United States is in violation of past UN resolutions. The letter also argued that Resolution 1441 simply provides cover for Washington to use force against Iraq.

IAEA Director-General Mohamed ElBaradei said in a November 19 press conference that Iraqi officials agreed to comply with the resolution after he and UNMOVIC Executive Chairman Hans Blix met with them in Baghdad November 18-19. ElBaradei added that UN economic sanctions on Iraq could be suspended within a year if Baghdad cooperates.

In a November 20 press conference, Blix said that Baghdad had agreed to submit the required declaration by December 8 although it is concerned about the short time frame and disclosing information about “peaceful industries.” National Security Adviser Condoleezza Rice suggested in a November 21 interview on The NewsHour with Jim Lehrer that an Iraqi denial that it possesses weapons of mass destruction would “be a signal that [Iraq is] not ready to cooperate.” Blix told the Security Council November 25 that Iraq maintains it does not have weapons of mass destruction programs.

“Material Breach” Still an Issue

The product of weeks of bargaining among Security Council members, the new resolution is different from a previous U.S.-U.K. draft resolution in several important ways. Some council members had balked at language that declared Iraq in “material breach” of past Security Council resolutions, fearing it could provide an automatic trigger for a military attack. As a result, Resolution 1441 declares that Iraq “remains in material breach” of past resolutions but explains that the council had decided to “afford Iraq…a final opportunity to comply with its disarmament obligations.”

Other language in the earlier U.S.-U.K. draft resolution was changed in an attempt to ensure that the Security Council has a significant role determining what constitutes an Iraqi violation of the resolution. Paragraph 4 of the earlier draft was amended to require that inspectors or UN member states report to the Security Council about potential Iraqi noncompliance that could constitute “material breach.” Additionally, a paragraph stating that “the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations” was moved from the beginning of the resolution’s mandates and placed after the paragraphs requiring the Security Council to reconvene.

Nevertheless, differing interpretations of the Security Council’s role in determining violations of the resolution remain. During a November 10 interview on FOX News Sunday, Rice said that, in the event that inspectors report instances of Iraqi noncompliance, the Security Council would meet “for a discussion of the circumstances” but that such a discussion would not be “about whether there has been a material breach…[but] a discussion of serious consequences following a material breach.” In a November 8 briefing, a senior administration official argued that the “facts” determine a material breach of the resolution but did not say who would determine the facts.

ElBaradei had a different interpretation. During a November 14 speech at a conference held by the Carnegie Endowment for International Peace, he said that “the Security Council will decide…material breach.” The relevant portion of the resolution, paragraph 4, reads: “False statements or omissions in the declarations submitted by Iraq…and failure by Iraq at any time to comply with…this resolution shall constitute a…further material breach…and will be reported to the Council for assessment in accordance with paragraphs 11 and 12.” Those paragraphs state that inspectors are to report “any” instances of Iraqi noncompliance and that the Security Council should meet to “consider the situation.”

There are also differences over how serious and frequent Iraqi violations would have to be to constitute a “material breach.” “If we see a pattern of lack of cooperation, then we obviously have to report to the Security Council,” ElBaradei stated during the November 14 conference. A senior Bush administration official stated during the November 8 briefing that the Security Council should act if there is a “pattern of noncompliance” with the resolution. However, Rice stated in the November 10 interview that Washington needs to have a “zero-tolerance” policy.

The no-fly zones enforced by the United States and United Kingdom over Iraq could also provide a trigger for war. The United States, the United Kingdom, and France established the no-fly zones after the Persian Gulf War over the northern and southern thirds of the country. Iraq has fired repeatedly on coalition planes patrolling the zones since the UN resolution was passed, according to a November 20 Department of Defense briefing.

White House Deputy Press Secretary Scott McClellan said November 18 that firing on coalition aircraft is a “material breach” of the resolution. McClellan said that Washington reserves the right to take such incidents to the Security Council but had no immediate plans to do so. Annan stated that it was unlikely that the Security Council would consider shooting at U.S. planes a material breach of the resolution, according to a November 19 Associated Press report.

The United States argues that paragraph 8 of Resolution 1441 supports the U.S. case. That paragraph reads: “Iraq shall not take or threaten hostile acts directed against any representative or personnel…of any Member State taking action to uphold any Council resolution.” Resolution 1441 does not specifically mention no-fly zones, however.

Washington argues that the no-fly zones implement Security Council resolutions because they protect Iraq’s minority populations, prevent Iraq from threatening its neighbors, and monitor cease-fire conditions on Iraq. Specifically, the United States cites Resolutions 678, 687, 688, and 949. This position is controversial; none of the resolutions mention no-fly zones, and Annan stated July 5 after a meeting with Iraqi officials that the no-fly zones are not Security Council policy. Iraq has long opposed the zones, saying they violate its sovereignty and the UN Charter.

Other Security Council members’ views on the matter are mixed. Russia argued in a November 19 statement from the Foreign Ministry that the zones are not covered by any Security Council resolutions and that Washington’s arguments with respect to Resolution 1441 “have no international-legal foundation.” A spokesperson for the French Foreign Ministry would not take a position on the zones’ legality or Washington’s contention that Iraqi threats to coalition aircraft constitute a material breach of the resolution, according to a November 19 statement. China had no comment on Washington’s interpretation of the resolution, according to a November 21 Agence France-Presse report.

The use of intelligence is another potential area of controversy. Although the resolution allows for UN member states to provide intelligence data to inspectors, both Blix and ElBaradei expressed concern that the integrity of the inspections process be preserved. Blix stated in the November 14 issue of Time that “UNSCOM lost its legitimacy in the eyes of the world by [having] too close a relationship with the intelligence agencies.” He added, “We have to examine [intelligence data] critically because there’s a lot [of] disinformation around the world, and the more information you have, the better you’re able to compare.”

Washington’s Decision

Although the Bush administration praised the Security Council resolution, senior administration officials indicated during a November 8 background briefing that the United States retained the option of acting unilaterally, saying President George W. Bush “has given up none of his…authority to act to implement [Security Council] resolutions or to protect the United States working with like-minded nations.”

The status of the U.S. “regime change” policy remains unclear. The administration indicated last month that Iraq’s compliance with the UN resolution would be sufficient to meet Washington’s standard for regime change. McClellan said November 14 that Bush “seeks a peaceful resolution. War is a last resort.” A senior administration official indicated during the November 8 briefing that, “if the Iraqi regime did everything…to comply with all of the UN resolutions, it would be a changed regime.”

However, the official also indicated that other UN Security Council resolutions cover issues unrelated to weapons inspections, such as Baghdad’s human rights record and use of chemical weapons against Iraq’s Kurdish minority and Iran in the 1980s. Additionally, a senior administration official stated during the same briefing that Saddam Hussein could still be tried for war crimes, even if he complies with Resolution 1441. The officials also explained that the policy of regime change was “determined by the previous administration, and by the Congress” in 1998, an apparent reference to the Iraq Liberation Act, which says it is U.S. policy to replace the current government in Iraq.