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Introduction
The predicament now facing the Security Council over Iraq is largely due to the bombing campaign conducted by the US and Britain in December 1998. Prior to the bombing, the UN inspectors had been in Iraq since mid-November. They were withdrawn on December 15 by the UNSCOM, the body responsible for administering the inspectors. UNSCOM chair, Richard Butler, ordered the inspectors to withdraw after he was warned that the US and Britain were about to start bombing Baghdad. Butler feared that the Iraqi authorities might seize the inspectors and use them as human shields. The purpose of the bombing was to deal with Iraq's continuing obstruction of the inspection process. But the tactic backfired. When the bombing stopped, Iraq announced that it would never again co-operate with UNSCOM and that there would be no further inspections.
Iraq continues to refuse to allow the inspectors to re-enter except on condition that the UN terminate the sanctions immediately and permanently. Faced with Iraq's resolute position on the matter, the Security Council has been wrestling with the problem of deciding what kind of resolution it should adopt with a view to gaining readmission for the inspectors.
If it were suggested that the Council should accept Iraq's position and terminate the sanctions as the price of gaining readmission for the inspectors, most Council members would likely oppose the suggestion. They would likely reason that, after the inspectors were readmitted, the UN would have no way of maintaining pressure on Iraq to cooperate with the inspectors. Without sanctions, the Council would have no way of motivating Iraq except through military action. It can be assumed that most Council members are of the opinion that the use of military force for the purpose of gaining Iraqi cooperation, even if authorized by the Security Council, is impractical. When that tactic was tried in December, it was a total failure.
Having only sanctions to bargain with, the Security Council finds itself in a difficult position. It is not surprising therefore that almost a year has passed while Council has been wrestling with the problem. The pressure on the Security Council to find a solution is becoming intense. With every passing week, Iraq has more opportunity to rebuild its weapons of mass destruction.
By midsummer, it became clear that the discussions in the Security Council were focussing on two draft resolutions, one sponsored by France and the other by Britain and the Netherlands. The two draft resolutions take very different approaches to the problem of gaining readmission for the inspectors.
Rumour has it that Russia and China are supporting the French draft resolution at least in a general way, and that the US, Canada and several other non-permanent members of Council are leaning towards the British/Dutch draft. In accordance with common practice, the sponsors of the draft resolutions have made neither draft available to the public. Copies of both drafts, however, apparently authentic, have appeared on the Internet.1
Although reports about the two drafts have appeared in the media, they have contained only sketchy information about the many points in these documents. Furthermore, the information presented in the media has not been entirely accurate. The misperceptions among the media are possibly forgivable in view of the obscure language normally used in Security Council resolutions, which is especially noticeable in the two draft resolutions in this case. This paper attempts to bring some clarity to the situation by summarizing the main points of the two draft resolutions in language that can be more easily understood than the original.
As of this writing, the final version of the resolution had not yet been adopted by the Security Council. The summary appearing below is based on the draft resolutions as they appeared on the Internet in midsummer. When the Security Council finally decides on the wording of the resolution, this summary may still be useful, because it seems likely that the final resolution will contain some of the elements contained in the two drafts discussed in this paper. Also, it is hoped that the analytical framework presented in this summary will assist readers in interpreting the final resolution and understanding its implications.
Both the British/Dutch draft resolution and the French draft would abolish the existing commission, UNSCOM, and would create a new commission having a mandate similar in many respects to the mandate of UNSCOM. The British/Dutch draft refers to the new commission as the United Nations Commission on Inspection and Monitoring (UNCIM). The French draft does not use any specific name; it speaks only of a control commission. Neither proposal indicates who would be chosen as chair of the new commission.
The British/Dutch proposal would continue the present arrangement whereby the chair of the Control Commission reports directly to the Security Council. The French proposal would require the chair to report to the Secretary-General and all reports on the activities of the Commission would be made through the Secretary-General.
Commission's Inspection Rights
Both proposals call for a "reinforced system of ongoing monitoring and verification" which would be based on the report of the panel on disarmament established by the Security Council in January 1999. The panel's report calls for "[a] reinforced ongoing monitoring and verification [system that] would be, if anything, more intrusive than the [system] practised so far". Among other things, the report recommends that "full access [be given] to location, individuals and information as well as the right to implement any relevant technology". Also recommended is "the use of fixed and rotary wing aircraft".
Both proposals call for a plan to be developed that would incorporate these recommendations. The plan would presumably contain additional detail as to inspection procedures and would be submitted to the Security Council for approval. As between the two proposals, there are minor differences in the manner in which the matter of inspection rights is dealt with, but neither contains anything that would curtail the very broad inspection rights already contained in the existing resolutions and agreements.
Furthermore, neither draft would interfere with the existing provisions stipulating that the entire inspection nor monitoring regime is to continue indefinitely until the Security Council decides otherwise.2 Nor does either draft introduce any suggestion that the Council might consider terminating or reducing the UN's inspection and monitoring activities when the point is reached when Iraq has fully complied with its disarmament obligations so as to qualify for the termination of sanctions. As matters now stand, there is no link between the end of sanctions and the end of inspections.
In essence, both drafts rule out any abatement in the rigorous inspection regime stipulated under the existing resolutions and agreements.
Both draft resolutions provide that the existing limit of US$5.26 billion in oil sales per 180 days would be removed altogether. The provision would take effect immediately without pre-conditions upon adoption of the resolution by the Security Council and would continue on a permanent basis.
Responding to Iraq's constant clamouring against the delays involved in getting the UN to approve its purchases under the Oil-for-Food programme, both draft resolutions contain provisions for accelerating the approval procedure.
Money for Humanitarian Purposes
One of the few obvious benefits offered to Iraq is a proposal contained in both drafts whereby a larger portion of the Oil-for-Food money would be available to be spent for humanitarian purposes. Instead of diverting 30% of the oil revenues to the Compensation Fund for the victims of the invasion of Kuwait, one-third of the amount would be loaned on a fully reimbursable basis to the UN escrow account to be used for humanitarian purposes. Neither draft contains any indication of the period during which this arrangement would continue or any of the other terms of reimbursement.
Both proposals contain provisions aimed at enabling foreigners to invest in Iraq's petroleum industry. The Secretary-General would prepare a plan and the approval of the Security Council would be required before the plan went into operation.
The provision in the British/Dutch draft contains little detail beyond a requirement that, before the Security Council gives its approval for the plan, Iraq would have to demonstrate full cooperation with the control commission for a period of 120 days. The French draft contains no such pre-condition, but specifies that a portion of the profits realized by the foreign companies on their investment in Iraq would have to be paid to the UN escrow account to be used for humanitarian purposes.
Both drafts would suspend sanctions for renewable periods, and both would provide that the suspension could be terminated through the use of a veto-free mechanism. Both provide pre-conditions for commencement of the suspension, which will include Iraq's full cooperation with the new control commission. After a report to that effect is submitted to the Security Council, in order to bring the suspension into effect, the Council would have to vote in favour of suspension. The draft resolution (in both cases) provides that the Security Council expresses its intention to suspend the sanctions upon receipt of the report. Under the British/Dutch draft, the report would come from the chair of the new control commission, while under the French draft it would come from the Secretary-General.
The British/Dutch proposal specifies an additional pre-condition for suspension. Iraq must complete certain "key remaining tasks" towards fulfilment of its disarmament obligations. The exact nature of these tasks will not be known until a later date when the control commission submits a list of them. The earliest date for suspension under the British/Dutch proposal would be 240 days after the inspection/monitoring system had been certified as fully operational. Under the French proposal, the earliest date would be 60 days after the system was certified as operational.
The British/Dutch Draft stipulates that the suspension is to terminate automatically and the sanctions re-imposed if either the chair of the control commission reports at any time that Iraq is no longer co-operating with the inspectors or if the initial period of 120 days expires without being renewed by a vote of Council.
Thus, at the end of the initial 120-day period, any permanent member of the Council, by exercising its right to veto a resolution to extend the suspension, would be able to cause the sanctions to be re-imposed, even though no report had been received indicating that Iraq was failing to cooperate.
The situation under the French draft is similar, but with these differences:
* The initial period is 100 days instead of 120;
* The report on Iraqi cooperation would come from the Secretary-General rather than the chair of the control commission;
* Although under both drafts, any one of the five permanent members would be able to block a renewal of the suspension, under the French draft, they will be under some pressure to refrain from exercising this right if the Secretary-General has reported that Iraq is continuing to cooperate with the inspectors; (the draft resolution provides that the Council "expresses its intention to extend the suspension… for further periods of 100 days… upon receipt of a report of the Secretary-General" stating that Iraq is continuing to cooperate);
* The French draft speaks of successive periods of suspension, whereas the British/Dutch mentions only one; this would appear to be an oversight, which is likely to be corrected.
* There are minor differences in the provisions in the two drafts that refer to the details of Iraqi cooperation.
The British/Dutch proposal would provide that all prohibitions relating to Iraq's exports would be suspended but its oil revenues would continue to be funnelled through the UN escrow account in order to ensure that they were used solely for humanitarian purposes and not for the purchase of weapons. In other words, the Oil-for-Food programme would remain in effect. The only result of the suspension would be to allow Iraq to export non-petroleum commodities, such as dates. In the three years prior to the Gulf War, Iraq's exports of these commodities accounted for 2.5% of Iraq's total exports.3
Under the French proposal, the suspension would apply to both Iraq's exports and imports, but the import of weapons (whether mass destruction or conventional) would continue to be prohibited. In addition, the Oil-for-Food programme would be suspended, to be replaced by one having a variety of features including the following:
* Those purchasing petroleum from Iraq would be required to pay the full purchase price into a new account to be known as the transparent account, which would replace the existing UN escrow account.
* Money in the transparent account would be used for the following purposes
- 20% would be paid to the Compensation Fund for victims of the invasion of Kuwait (reduced from the current 30%).
- The costs of administering the suspension regime would be paid.
- The balance would be available to pay for commodities imported by Iraq. There would be no requirement that the money be spent solely on humanitarian items (as with Oil-for-Food).
It should be noted that the proposal contains nothing similar to the existing provisions in the Oil-for-Food programme whereby part of the oil revenues is used to pay UNSCOM inspection expenses.
Before any money could be paid out of the account to pay for Iraqi imports, there would have to be a purchase contract which would have to be notified to the Secretary-General, but the draft resolution is not specific as to whether the Secretary-General is to have the power to deny approval of the contract where the items referred to are armaments or dual-use items. The wording on this matter is ambiguous.
Under this arrangement, in the case of the humanitarian products that Iraq chose to purchase with its oil revenues, the UN would cease to monitor the manner in which they were distributed. For instance, the UN would no longer be entitled to put monitors into the field in Iraq to ensure that the humanitarian goods were reaching their intended beneficiaries (as the UN is currently doing under Oil-for-Food).4
In an effort to provide additional assurance that Iraq's oil revenues are not used to buy armaments, the draft resolution provides for the stationing of "custom experts to monitor, at Iraqi borders,[certain dual-use items] and to prevent any entry into Iraq [of armaments]".
Many of the provisions appearing in this summary leave unanswered important questions as to their purpose and affect. What follows is an analysis of the two draft resolutions in an attempt to discover the real meaning of the two strategies so as to make it possible to assess them and their chances of success. It is hoped that this will further clarify the issues that are separating the two sides.
The two draft resolutions are approximately equivalent in respect of the more important immediate benefits that they would confer upon Iraq such as removing the $US5.26 billion limit on oil sales under the Oil-for-Food programme; accelerating the approval of purchases under the Oil-for-Food programme; and reducing temporarily the 30% currently allocated to the Compensation Fund to 20%.
The provision in the French proposal whereby the chair of the Control Commission would no longer report directly to the Security Council would appear to give the UN Secretariat the responsibility for supervising the chair and controlling the manner in which he was implementing the Security Council's directives. This would represent a substantial change from the existing system in which the inspection regime was implemented by a separate agency independent of the Secretary-General.
Looking at the provisions for allowing foreign companies to invest in the Iraqi oil industry, the relative merits of the two drafts are difficult to evaluate since much will depend on the details of the plan that is finally approved by the Security Council. Nevertheless, Iraq would probably find the French draft preferable if only because it is not tied to a favourable report on Iraq's compliance with the inspection procedures.
The big difference between the two draft resolutions is to be found in their provisions dealing with suspending the sanctions. Under the British/Dutch proposal, since the suspension is tied to Iraq's prior completion of key remaining tasks, the offer to suspend is meaningless as long as the list remains unknown. Moreover, even if the list of tasks turns out to be relatively easy for Iraq to fulfill (which would make it possible for the suspension to go into effect in the near future), the benefit to Iraq, as noted above, would be minimal, because the scope of the suspension would be extremely limited. The net result of the suspension would be that Iraq would be entitled to start exporting dates and other non-petroleum commodities which would add less than 5% to Iraq's export revenues.5
The French proposal will predictably be more attractive to Iraq. The only pre-condition for the start of the suspension would be Iraq's cooperation with the inspection regime for a period of 60 days followed by a favourable vote of the Security Council. Moreover, once commenced, the scope of the suspension is considerably more generous than in the British/Dutch draft. In addition to exports, it covers all imports except armaments.
The French proposal could be interpreted as conferring an even more important benefit upon Iraq. Although the wording is unclear, the French draft resolution contains a provision suggesting that the financial sanctions could be suspended in such a way as to allow foreign financial institutions to make loans to Iraq for the purpose of financing the purchase of non-military goods over and above goods purchased with oil revenues. If this interpretation of the resolution were confirmed, the benefit to Iraq could be substantial, depending on the willingness of foreign lenders. The wording of the draft, although elliptical, would certainly allow this interpretation.
It is difficult to envisage Iraq accepting the arrangement proposed in the British/Dutch draft. The offer to suspend sanctions is likely to be viewed by the Iraqi authorities as a sham. The other three benefits offered to Iraq (listed above under some points of comparison) are meaningful but hardly enough to attract Iraq's consent to the resolution.
Given its lack of appeal to Iraq, one might wonder what purpose would be served for the Council to adopt a resolution of this nature. Possibly the thinking of the sponsors is that, if adopted unanimously, the Resolution would send a message to Iraq that the Council has only limited concessions to offer and beyond that, the Council is offering nothing more than a system similar to the one in effect before the December bombing, and is prepared to wait until Iraq has had enough of the sanctions and is ready to adopt a fundamental change in policy and start co-operating fully with the Security Council.
The French draft offers some meaningful enticements to Iraq. The suspension arrangement not only allows for unrestricted exports and imports (except armaments); it also replaces the Oil-for-Food programme with something less offensive to the Iraqi regime. In addition, the plan contains several other benefits intended to make life easier for Iraq.
The plan seeks to ensure Iraqi cooperation through the threat of re-imposing sanctions. Accordingly, the mechanism by which the sanctions could be re-imposed is a key element in the plan. The role of the Secretary-General in the process for determining whether or not sanctions should be re-imposed is more important than it might appear at first glance.
He is required to submit a report on Iraqi cooperation every 30 days. In the event of a negative report, the sanctions regime would be re-imposed automatically within five days, unless the Security Council decides otherwise. As long as his monthly reports were positive, it is likely that the suspension would continue. This is because it would be difficult for a permanent member to act against the Secretary-General's opinion by vetoing a resolution to continue the suspension. The Secretary-General's reports would probably deter any member from vetoing a resolution to continue the suspension.
Thus if the Secretary-General is of the opinion that the sanctions should be re-imposed, his decision will prevail - unless the Security Council decides otherwise. If the Secretary-General is of the opinion that the suspensions should continue, his determination, although not binding, again is likely to prevail.
This issue as to whether sanctions should be re-imposed is likely to be highly controversial and it is questionable whether it is wise to give the Secretary-General such a large portion of the responsibility for deciding this issue.
The French proposal seems to be predicated on the assumption that the resolution would be adopted only if Iraq had previously indicated that it would accept it. In this event, the chair of the Control Commission would be appointed immediately and the inspectors would enter Iraq in a matter of days.
Once the suspension regime begins, however it may be wondered whether there will be sufficient pressure on Iraq to motivate it to continue co-operating with the inspectors. The motivation, of course, would consist of Iraq's desire to avoid the re-imposition of sanctions. By comparison, the motivation under the British/Dutch plan would be the desire to get rid of the sanctions completely. Supporters of the French plan would argue that the type of motivation provided under the British/Dutch plan has been in effect for eight-and-a-half years, and although it has yielded some impressive results, it has never produced anything like total cooperation; the time has come to try another approach.
Each of the plans has its merits. The British/Dutch plan is the bolder of the two. It seems to be based on the assumption that Iraq will not be particularly interested in the suspension regime, since the regime has so little to offer, but will accept the plan when it decides it is ready to decide on a monumental change in its policy on cooperation with the inspectors. The theory seems to be that, having decided on such a policy change, Iraq would lose no time in allowing the inspectors to re-enter and would make every effort to demonstrate fulfilment of all the requirements for disarmament and thus qualify not only for the suspension but probably the complete termination of sanctions.
The sponsors seem to be relying on the possibility that, when Iraq sees all its friends on the Council voting for the resolution, it will accept the fact that its only hope for getting rid of the sanctions is to make that fateful decision for a monumental change in policy. Theoretically, since the government of Iraq is in essence under the direction of one man, a fundamental change in policy could occur quite suddenly. This seems to be the aim of the British/Dutch draft.
The French draft is less ambitious. Instead of aiming at victory for the UN's disarmament scheme in a single step, it contemplates an interim period of suspension during which Iraq can decide whether it wants to take the final step and accept the fundamental policy change needed to bring about the absolute termination of sanctions.
Both plans are hobbled by serious weaknesses, but it is quite apparent that, unless a different solution appears, one of them will have to be chosen, because Iraq, regrettably, is in a very strong bargaining position.
It was the December bombing campaign that put Iraq in this highly favourable situation. The campaign very likely proved to the Iraqi leadership that it can withstand any military attack of the kind likely to be launched in the future for the purpose of compelling it to cooperate with the Security Council's inspection regime. In the final analysis, the December bombing of Baghdad may have helped to establish a more general theorem: that military measures are rarely, if ever, a practical means of enforcing disarmament.
These stark facts seem to be getting through to the policy-makers in the US and Britain. Given the absence of any threatening gestures contained in either the British/Dutch resolution or in any of the recent statements made by the US, it seems that the US and Britain have accepted the fact that military measures must now be regarded as useless for the purpose of assisting with the task of gaining readmission and cooperation for the inspection regime.
Since there is little prospect of any military pressure being exerted on Iraq either by the US or by the Security Council, the issue will have to be dealt with entirely through the Security Council's use of sanctions. Fortunately, the Council is in a position to use them either as a carrot or as a stick. Its ability to use sanctions as a carrot arises from the fact that the sanctions are already in place and the Council is able to lift them - either wholly or partially. The draft resolution advanced by France would have the Council opt for the carrot approach, with the stick in reserve. The British/Dutch draft relies entirely on the stick - assuming that the type of suspension offered can be regarded as next to useless.
Given the fundamental weaknesses of both, choosing between the two draft resolutions is not easy. On balance, however, the French plan should be the one chosen because it offers a motivating force of a type that has not yet been tried.
But before it is adopted, several changes should be made in the French draft resolution.
Since there is no provision for payment of expenses of the inspectors and the control commission, the resolution should be altered so that those expenses are financed out of the oil revenues flowing into the "transparent account".
The resolution should specify clearly whether or not Iraq would be entitled to receive foreign loans.
The resolution should also be more specific as to the steps to be taken in the event that the contracts presented for payment out of the transparent account provide for the purchase of armaments. Presumably the Secretary-General should be entitled to the right to refuse approval of such contracts.
With these changes in place, the resolution would have much to offer. Assuming that it is adopted with Iraq's consent, it will allow the inspectors back into the country with little delay. If it proves to be unsuccessful in producing the dramatic change of policy that would be required of Iraq for the total success of the disarmament programme, nothing is lost. If Iraq repeats its obstructive behaviour and it becomes necessary to re-impose the sanctions, it would be possible to revert to the British/Dutch plan at that point.
The weakest part of the French plan lies in its provision for preventing Iraq from using its oil revenues for the purchase of armaments. The two arrangements noted above for dealing with this problem - the requirement for purchase contracts to be notified to the Secretary-General and the stationing of monitors at border crossing points - are not convincing. The sponsors no doubt would point out that the plan would leave in place two existing Security Council resolutions, one of which prohibits member states from selling armaments to Iraq,6 while the other requires them to notify the Secretary-General of any intended sales of certain dual-use items.7 Even if these measures were fortified by the addition of the arrangement recommended above whereby the Secretary-General would be entitled to refuse approval of contracts to purchase armaments, it seems likely there would be instances where Iraq was able to circumvent these various devices. Even so, the risk is worth taking because the alternative plan (British/Dutch) involves a greater risk: that the waiting period before Iraq capitulates may continue indefinitely, during which time Iraq will be able to rebuild a large part of its weapons arsenal.
On balance, provided the changes noted above are made, there is enough to be gained through the French plan to make it worth a try; and if it fails, there is relatively little to be lost.
Notes and references:
1. The text of the British/Dutch draft can be found at http://www.cns.miis.edu/research/iraq/uncim/draft2.htm
and the text of the French draft can be found at http://www.cns.miis.edu/research/iraq/uncim/draft3.htm
2. S/RES/715, para. 1; S/22871, Rev. 1, para. 27; S/22872, Rev. 1, para. 42.
3. UN Department of Economic and Social Affairs, Statistics Division: International Trade Statistics Yearbook, 1996, Vol. 1, p. 511.
4. For a report on the current activities of these monitors, see UN Doc. S/1999/896. August 19, 1999, para. 20ff.
5. See footnote 3.
6. S/RES/Security Council 687 para. 24.
7. S/RES/1051, para. 5.
Douglas Scott is a lawyer and president of the Markland Group, which is concerned with the enforcement of disarmament treaties.
© 1999 The Acronym Institute.