Disarmament Diplomacy

The Security Council's Dilemma in Iraq
By Douglas Scott

As of the time of writing (26 January 1999), the Security Council finds itself faced with the problem of searching for a way to arrange for weapons inspectors to be allowed back into Iraq. It appears that Council members are anxiously deliberating a half-dozen proposals, including ones from France, Russia, the US and Canada. In a break with custom, several Council members have apparently decided to inform the public of the broad outline of their proposals. Possibly, this display of openness is an invitation to the public to come forth with some comments and ideas of its own.

The dilemma facing the facing arose because, immediately following the US/UK air strikes in December, Iraq announced that UNSCOM was dead and could not be revived. This has been generally interpreted as meaning that Iraq has no plans for allowing any inspectors back into the country. All of the proposals currently on the table seem to be based on the unspoken assumption that some concessions must be made to Iraq in order to persuade it to permit any kind of inspection on its territory, or more specifically to admit the inspectors needed under Resolution 687 (3 April 1991). (1) It will be remembered that this was the resolution adopted following the Gulf war for the purpose of establishing a regime of inspection and disarmament relating to weapons of mass destruction (WMD). The resolution created a body of inspectors known as UNSCOM - the United Nations Special Commission - with a mandate to search and destroy chemical and biological weapons as well as long-range missiles. For nuclear weapons, Resolution 687 gave a similar mandate to the International Atomic Energy Agency (IAEA).

The Proposals

Saddam's refusal to re-admit the inspectors has produced a variety of proposals from Council members, most of which involve offering incentives intended to persuade Saddam to relent and allow the inspectors to re-enter.

The proposal from France seems to be getting most of the attention. With support from Russia, France has proposed that Iraq be offered a package of incentives including the following:

1. There would be a new control commission whose independence would be ensured and whose professionalism would be strengthened. (Presumably this would mean that UNSCOM would be terminated - a key Iraqi demand - not merely provided with a new Executive Chairman to replace Richard Butler.)
2. There would be a new inspection mandate which would no longer be retrospective but would become preventive.
3. Within this mandate, the inspectors would be permitted to undertake surprise inspections.
4. When these arrangements are in place, the oil embargo would be lifted. (This has been Iraq's primary demand for some time.)
5. There would be an arrangement, undetailed as yet, whereby the UN would monitor the monies received by Iraq through the sale of oil.
6. There would be an arrangement, yet to be specified, whereby the existing controls over Iraq's imports of dual-use items would be strengthened.
7. In the event of Iraq's failure to cooperate, it would be understood that the Security Council would consider imposing new sanctions.
8. Similarly, if Iraq complied with all Security Council resolutions, the Council would consider progressively lifting the remaining sanctions.

The proposal put forth by the United States also contains incentive elements, albeit less generous than France's:

1. The existing ceiling in the Oil-for-Food programme whereby Iraq's exports are limited to $5.25 billion per half-year would be removed. (This gesture is largely symbolic since the dilapidated state of Iraq's oil industry restricts its exports to slightly more than half the current ceiling; nevertheless, the gesture emphasises that the Oil-for-Food programme has transformed the oil embargo into a regime of a different type - a regime that channels all oil exports through the UN.)
2. Under the Oil-for-Food programme, the process for approving contracts for the purchase of food and humanitarian commodities would be streamlined. (Iraq has long complained about delays in this area.)
3. Under the Oil-for-Food programme, the escrow fund that was established by the UN for receiving the proceeds of oil sales and for purchasing humanitarian commodities for Iraq would be augmented either by allowing it to borrow from the fund for compensating losses incurred as a result of the invasion of Kuwait, or by calling for voluntary loans or donations to the fund.
4. Under the Oil-for-Food programme, it has been reported that the US has been blocking approval of certain contracts for the purchase of spare parts for the oil industry on the grounds that the items have a possible use in the making of armaments; the proposal includes an offer to permit the approval of many of these contracts.

1. The resolution must lift the embargo under paragraph 22 of Resolution 687 (which refers to the eventual lifting of the prohibition against the purchase of products originating in Iraq).
2. Although there is no mention of inspection, the resolution would establish a "Monitoring Centre" with an office in Baghdad. It would be under the direct control of the Security Council through a supervisory committee comprised of all Council members.
3. The mandate of the Monitoring Centre would be to monitor "the relevant sites on the territory of Iraq," with assistance from "satellite and air observation" supplied by member States.
4. The resolution should make "the OMV [Ongoing Monitoring and Verification] system fully functional for all disarmament files."
5. The resolution would establish an "Export-Import Control Group" to deal with the dual-purpose goods and technologies imported by Iraq. The existing arrangements in this connection should be strengthened.
6. "Iraq must enact the required WMD legislation."
7. Iraq must join the Chemical Weapons Convention (CWC).
8. "In case of substantive evidence that Iraq might have renewed proscribed military programmes, the [supervisory] Committee shall recommend the Security Council to re-impose the export sanctions in part or in full."

As of the time of writing, the Canadian proposal is being actively considered by the Council. If adopted, it seems likely that the Council would make no final decision on an approach to Iraq until it receives the two reports. No doubt this would delay the date for the re-establishment of an inspection team; the two committees would likely need several weeks to review the materials and agree on a report. However, the merit of the proposal is precisely its intention to clarify the situation before a decision is made, unlike the French and Russian proposals which appear to be based in part on several factual assumptions whose validity is not entirely clear.

The UN's Altered Situation

It seems that most Council members consider the bargaining position of the Council with Iraq to be considerably weaker than it was immediately before the US/UK bombardment. The inspectors at that time were still in Iraq carrying out most of their operations, although subject to certain obstructions. On 15 December, UNSCOM Chairman Richard Butler filed a report with the Security Council (UN document S/1998/1172; reproduced in Documents and Sources in this issue) in which he explained that the obstructions faced by the inspectors were important because they made it impossible to reach any firm conclusions on several important matters. The report suggested three alternative courses of action that the Security Council might wish to consider, all of which reflected a stronger bargaining position than that which exists today. The US and UK, however, interpreted the Butler report as indicating a crisis situation - serious enough to warrant them taking independent military action to correct that situation.

If the air strikes had not occurred, the inspectors would still be in Iraq and they would still be performing most of their inspection duties. There would no doubt be negotiations in progress with Iraq with a view to removing the obstructions that had been placed in the way of the inspectors. Negotiations to the same end are currently in progress, but the UN's bargaining position is seriously compromised. The proposals outlined above make it apparent that the Council is compelled to go cap-in-hand to Saddam with a series of incentives in the hope of persuading him to return to a position that would be as favourable to the UN as its position prior to the air strikes.

The New Importance of Sanctions

It should be clear now that the US/UK air strikes in December have backfired. Instead of moving Iraq closer to compliance with UN resolutions, they have had the opposite effect.

The US and UK hoped to show that their military approach was needed because sanctions had failed. It is true that they were careful to explain that the objective was not specifically to facilitate the work of the inspectors but only to "diminish and degrade" Saddam's military capability. Nevertheless, the fact remains that the strikes made things worse for the inspectors. Also, after launching the air strikes, the US and UK were justifying them on the basis that they were necessary because the inspectors were being prevented from doing their work properly and that the whole inspection system was approaching the point of being useless. (2) Despite the limited nature of the declared objective, by justifying their actions in this broader way it is a fair conclusion to draw that the intention of the air strikes was not merely to degrade Iraq's military capability but also to demonstrate that military measures were needed because, with only sanctions at its disposal, the Security Council was incapable of handling the situation.

Whatever success the air strikes may have had in degrading Iraq's military resources, they were a total failure in moving Iraq toward compliance. In fact, it could be said that what the operation demonstrated above all was that henceforth military action in any form currently available, whether threatened or carried out, should be regarded as incapable of influencing the Iraqi leadership in the direction of compliance. The only role remaining for military action is to supply a naval blockade for the purpose of enforcing the oil embargo. Authority for this action was given by the Security Council prior to the Gulf War. (3) With this sole exception, military measures can no longer be relied upon to assist in the enforcement of UN resolutions against Iraq.

All of this points to the conclusion that the only way to enforce the UN resolutions is through sanctions. Military measures have proved themselves useless - even as a backup to the sanctions.

The Effectiveness of Sanctions

Sanctions have received rough treatment by the media and by much of the academic community. It is often said that sanctions target the general populace and leave the leadership untouched and therefore cannot hope to influence policy. For a long time, this argument seemed to have some validity in the case of Iraq because, until recently, there was very little talk about the lifting of sanctions and Saddam appeared, despite rhetorical condemnations, content to have them continue indefinitely. This impression was reinforced in 1996 when Saddam agreed to allow the UN to set up the highly complex long-term machinery for administering the Oil-for-Food programme. In the last few months, however, there has been a subtle change in Saddam's behaviour. His more strident demands to be rid of the sanctions are a clear indication that he is feeling the pressure.

Even the existing stand-off provides evidence of this pressure. Now that Saddam has demonstrated that he cannot be moved towards compliance by military action, one might ask what is preventing him from revoking Iraq's consent to be bound by Resolution 687? (4) Why has he not taken over the inspectors' headquarters in the Canal Hotel in Baghdad? Why is he laying down conditions for negotiations? Why is he even considering negotiations? Why did Iraq's parliament recently defer action on a motion to repudiate the border with Kuwait? (5) Obviously Saddam still feels compelled to continue working with the UN. Absent military measures, the force compelling him in this direction can only be the sanctions.

Although the fact is rarely referred to in the media, the inspections that have occurred over the last eight years have achieved a very large part of their goal of disarming Iraq. Acting on instructions from the inspectors and under their supervision, Saddam has been persuaded to destroy the vast majority of his weapons of mass destruction. Saddam would not have allowed the inspectors to find those weapons nor would they have been destroyed had it not been for the pressure of sanctions. No doubt some will argue that the key factor was not sanctions but the threat of military action. That can be argued both ways, but it should now be clear that the factor now motivating Saddam to deal with the UN is his determination to be rid of the sanctions.

Even before the December bombardment, there were indications that Saddam was more concerned about sanctions than about military action. It will be recalled that there was a substantial military build-up in November 1998 culminating in an order from President Clinton to begin an attack. Admittedly, the result on that occasion was a concession of some substance, persuading President Clinton to revoke his order: Saddam allowed the inspectors substantially more freedom of action than they had previously enjoyed. But a close look at the facts indicates that Saddam's concession was not motivated by the military threat. On the morning (Baghdad time) of 14 November, when the letter announcing the key concession was dispatched to Kofi Annan, it appears likely that Saddam was unaware of the US President's order. (6) Indeed, the Pentagon later made clear that it had taken care not to forewarn Iraq of the attack and was surprised when the letter to Annan arrived at the crucial moment. (7) Rather than the military threat, the letter to Annan seemed to indicate that the key factor was pressure from Russia. The letter states that its concessions were being made "on the basis" of a number of factors including a letter from President Yeltsin and Prime Minister Primakov, whom Iraq considered to be among its "friends". This letter has never been made public. It could be that it contained a warning to Saddam that the inspectors must be re-admitted or Russia would not oppose a move in the Security Council to strengthen the sanctions. Whatever the specifics of the Russian letter, it is too glib and shallow to look back on the November crisis - and the February crisis before that - as classic examples of the threat of force having worked.

Some Advice for the Security Council

Whatever course of action the Council chooses, it should be premised on the fact that, with the sanctions, it possesses a powerful instrument of enforcement and that the power of that instrument is growing and not diminishing. The Council should not be persuaded to abandon the sanctions by the humanitarian claims made for the French and Russian proposals.

Let us look specifically at the French proposal, because it contains more features intended to deal with the problems involved in lifting the oil embargo. France claims that the oil embargo is hurting the Iraqi people, but it does not explain how the Iraqi people would benefit from its proposal. Under the Oil-for-Food scheme, the embargo has already been lifted more than enough to allow Iraq to sell all the oil it can physically produce. (8) Terminating the embargo entirely will not increase the amount of oil sold by Iraq - either now or at any time in the future. This will become even more evident if and when the US offer is taken up whereby the current earnings-ceiling of $5.25 billion per half-year would be removed.

Terminating the oil sanction under the French proposal will only mean that Iraq's oil sales will no longer be channelled through the UN and the UN will no longer control how the revenues are spent. The only way the Iraqi people could benefit from the French proposal would be through a reduction in the proportion of the oil revenues allotted to compensating those suffering loss as a result of the invasion of Kuwait, currently set at 30%. The proposal contains a vague provision that this allotment would continue but seems to leave open the possibility that it could be reduced. Unless the proposal is clarified to specify a reduction, there would be no benefit to the Iraqi population. However, even if there is such a reduction, its benefit is likely to be offset by Iraq's diversion of oil revenues from the humanitarian sector to armaments.

A Proposal for Lifting the Sanctions with a Safety Net

Perhaps the best that can be said for the French and Russian proposals is that they may be based on the belief that, while the sanctions have been responsible for the progress made to date in disarming Iraq, nevertheless the process has slowed down to such an extent that the time has come to try a new tactic: lift the oil embargo and re-impose it if necessary. Possibly the rationale is that such a tactic would demonstrate to Iraq that it can soon be free of all sanctions and that this may encourage it to decide to come clean and allow the disarmament process to be completed. In other words, give Iraq a taste of freedom but clamp down again if there is any trouble.

This tactic might be successful if it were possible to overcome the problem of the veto in relation to the subsequent resolution that would be needed to re-establish the oil embargo. In order to deal with this problem and circumvent the veto, one possibility worth exploring would be to enact a resolution that would stipulate that the existing resolutions on sanctions would cease to have effect during a period that would commence immediately and would terminate upon notice being given to the Secretary-General by a special committee to be composed of all members of the Council which would be authorized to decide the matter by vote of a specified majority, possibly two-thirds. The Council has delegated authority to make important decisions on other matters. For instance, in 1991, having established a "Compensation Fund" for payments to be made to entities suffering loss as a result of the invasion of Kuwait, the Council then established a body to make decisions on the validity of claims filed for compensation. This body was to be composed of all members of the Council, but it does not function as the Council, since it was given authority to make decisions by a majority of nine votes. (9)

Alternative Strategies

If this tactic is not acceptable, the Council should continue with the sanctions in their present form for as long as it takes to persuade Saddam to agree to a resumption of inspections. The Council should not allow itself to be influenced by the fact that a policy of continuing the existing sanctions happens to be the policy advocated by two of its members who have just completed an illegal warlike operation that has done great damage to the Security Council's ongoing efforts to bring Iraq into compliance. The decision of the US and UK to launch the air strikes was obviously a serious error in judgment. Not only was it an illegal interference with the Security Council's efforts towards compliance, it was a breach of the UN Charter and an act of aggression. (10) All the same, it must be admitted that the motives of the US and the UK were worthy - at least in so far as the objective of the air strikes was to move Iraq closer to compliance. It should also be said that the US and UK have shown a higher level of responsibility for dealing with the Iraqi issue than other Council members. Their judgment on the matter of air strikes was seriously flawed; their judgment on the matter of continuing the sanctions happens to be sound.

The policy of continuing the sanctions in their present form will call for patience. Nevertheless, it may be possible for the Council to shorten the period of waiting by adopting resolutions intended to strengthen the sanctions and improve their operation. For instance, the existing resolutions dealing with the freezing of assets do not cover the personal assets of the leadership personnel. (11) Even though there are problems with this kind of freeze, a resolution to this effect would still be helpful - if only because of the message it would send to Saddam and his supporters.

It might also be worth exploring the idea of expanding the arrangement made some years ago whereby oil is shipped from Iraq to Jordan provided the price is not paid in cash but is used to pay the debt owed by Iraq to Jordan. Iraq is heavily indebted to Russia. If the Jordanian 'oil-for-debt' scheme were expanded to include other countries, Russia might benefit and might become more supportive of efforts to make Iraq behave.

The Council could further increase the pressure on the Iraqi leadership if it were to re-introduce the travel ban. In 1997, the Council adopted three resolutions imposing a ban on travel by any Iraqi officials responsible for non-compliance with certain aspects of the inspection and monitoring system. (12) These resolutions were greeted with intense hostility by Iraq. They were never actually implemented and they were eventually allowed to lapse in May 1998 due to a (rather unconvincing) report by Chairman Butler to the effect that Iraq had complied with the necessary conditions for their termination.

Conclusion

It is precisely because Saddam is becoming more desperate every day to get rid of sanctions that they should be continued. If he delays too long in readmitting the inspectors, the Council's response should be to strengthen the sanctions and to take other steps to make the sanctions regime look more permanent. If there are further troubles after the inspectors resume their duties, the response should be the same. Since Russia and France are likely to veto any moves in this direction, a way must be found to challenge them to demonstrate a more responsible attitude to the problem of Iraqi obstructionism.

Canada and the other non-permanent members of the Council should be warning the Council not to look for a near-term solution, but to look instead for a sustainable long-term policy of containment with a view to achieving a solution at some time in the future. Continuation of the sanctions is the obvious choice.

Notes and References

1. Prior to the air strikes, in addition to Resolution 687 inspectors, there were also present in Iraq numerous other inspectors required for the purpose of administering the Oil-for-Food programme. It is only Resolution 687 inspectors that are currently being excluded; the others are still at work in Iraq.

2. See for instance the statement made by UK Ambassador Sir Jeremy Greenstock to the Security Council on 16 December 1998 - www.britain-info.org/bis/ukmis

3. UN Security Council Resolution 665, 25 August 1990.

4. Iraq's consent was given by the Iraqi National Assembly on 6 April 1991; UN document S/22480.

5. "Iraq's Parliament Puts Off Vote On Defiance Against UN," New York Times, 11 January 1999, p. A4.

6. Letter from Deputy Prime Minister Tariq Aziz to Secretary-General Annan dated 14 November 1998 - www.iraqi-mission.org

7. "Timely Iraq Backdown Sparks Supsicions Of A Tipoff," Yahoo News, 17 November 1998, 3.47 p.m. (AFP)

8. "The Practical Effect Of The Oil-For-Food Program," Disarmament Diplomacy, Issue No. 25, April 1998, p. 10.

9. UN document S/22559 (2 May 1991), paragraph 10.

10. The legality issue is discussed in the article "The Legality of Military Action Against Iraq" on The Markland Group website - www.hwcn.org/link/mkg/index2.html

11. UN Security Council Resolution 661 (6 August 1990), paragraph 4.

12. UN Security Council Resolutions 1115 (21 June 1997), 1134 (23 October 1997) and 1137 (12 November 1997).

Douglas Scott is a lawyer living in Ancaster, Ontario, Canada. He is President of The Markland Group which is concerned with the enforcement of disarmament treaties. Information on The Markland Group can be seen on its website at http://www.hwcn.org/link/mkg

Editor's note: On 30 January, the Security Council decided to accept much of the Canadian proposal outlined in Douglas Scott's article. It established the two panels suggested by Canada and added a third, which will deal with Kuwaitis missing after the Gulf war. All three panels will be chaired by Brazilian Ambassador Celso Amorim, the President of the Council for the month of January. See next issue for details and reaction.

© 1998 The Acronym Institute.

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