Analysis: SCRes 1441and the Potential Use

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Security Council Resolution
1441 and the Potential Use
of Force Against Iraq

Nathaniel Hurdഊ–2–


Table of Contents–––––––––––––––––––––––––––––––––––––
Introduction…………………………………………………… 2
Table of contents……………………………………… 2
About the Author……………………………………… 2
Synopsis……………………………………………….. 2
Abbreviations………………………………………….. 3
Principal Sources………………………………………. 3
The UN Charter framework, the 1991 ceasefire
and the preemptive use of force……………………………… 4
SCR 1441 and the US position on whether SCR 1441
constrains potential US use of force against Iraq……………… 6
How the US might use SCR 1441 to domestically
and internationally justify using force against Iraq…………….. 6
Endnotes………………………………………………………. 19
6 December 2002

The Author––––––––––––––––––––––––––––––––––––––––––––
Nathaniel Hurd is a New York City-based consultant on United Nations Iraq policy for the
Mennonite Central Committee (MCC) UN Office.∗ Formerly he was an associate on an Iraq
sanctions project at the Center for Economic and Social Rights (CESR). He is on the Board
of Directors of the Education for Peace in Iraq Center (EPIC). He can be reached via email
at or telephone at 917-407-3389.

This document discusses several specific issues that arise from Security Council Resolution
(SCR) 1441, unanimously passed on 8 November 2002. Owing to the resolution’s relevance
to the possible (although not inevitable) US use of force against Iraq, the aim of this
document is to discuss and/or detail:
Section 1: The past SCR and UN Charter context for evaluating SCR 1441.
Section 2: What US officials say about SCR 1441 and potential US use of force against

∗ The author is solely responsible for the contents of this document. The views expressed in this document are
solely the author’s and do not necessarily represent those of the Mennonite Central Committee.ഊ–3–
Section 3: How US might use certain paragraphs to justify using force against Iraq (also
contains US officials’ quotes regarding using force against Iraq). What
paragraphs the US might be more likely to use. How the US might try to
undermine the inspection process and/the inspectors.

The analysis draws several main conclusions, based in part on statements by US officials:
• The UN Charter, 1991 ceasefire with Iraq and SCR 1441 together prohibit all
member states from using force against Iraq without Security Council authorization
or Iraq actually attacking a member state.
• US officials and the US Congress have ignored the UN Charter and misinterpreted
the 1991 ceasefire and other SCRs, including SCR 1441, to argue that the US is free
to use force against Iraq.
• The US seems likely to use the Government of Iraq’s internal repression of civilians
to supplement main US pretexts to use force, notwithstanding US policies that have
played a primary role in Iraq’s ongoing humanitarian crisis and US inaction regarding
the Iraqi Government’s suppression.
• SCR 1441’s words (three paragraphs in particular) may be structured to position the
US to undermine the weapons inspectors and/or weapons inspections process, so
that the US may argue that the only way to disarm Iraq is to use force.

SCR: Security Council Resolution
PP: Preambulatory paragraph. PPs are the paragraphs unnumbered in the SCRs
OP: Operative Paragraph. OPs are the paragraphs numbered in the SCRs.
Para.: Paragraph
Art.: Article
Fn.: Footnote
Sec.: Section
Pg.: Page

Principal Sources––––––––––––––––––––––––––––––––––––––––
SCR 1441:
UN Charter, Chapter VII:
Other Iraq-related SCRs:ഊ–4–

1. The UN Charter Framework, the 1991 Ceasefire
and the Preemptive Use of Force

The UN Charter framework
Chapter VII of the UN Charter is the primary framework for Council force authorization
and the use of force by UN member states. It is also the primary framework for this SCR
1441 analysis. The Council determines “the existence of any threat to the peace, breach of
the peace, or act of aggression”.1 It may recommend or decide “what measures shall be maintain or restore international peace and security”.2 Permissible authorized
measures include the use of force.3 There are only two instances when a member state may
use force without Council authorization: to defend itself only after an armed attack has
already occurred against it (“individual self-defense”) or to assist a member state that itself
has already been attacked (“collective self-defense”)4 and requests assistance. Regarding
“collective self-defense”, a member state may not use force to assist an attacked member
state, unless the attacked state requests and permits assistance. If the attacked state prohibits
a particular member state from assisting it, the barred member state is not allowed to
unilaterally attempt to provide assistance.

The 1991 ceasefire
In SCR 678 (29 November 1990) the Council invoked Chapter VII and “[a]uthorize[d]
Member States co-operating with the Government of use all necessary means to
uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to
restore international peace and security in the area”, if Iraq failed to fully implement SCR
678 and previous Council SCRs by 15 January 1991. 5 Iraq failed to comply and cooperating
member states began to use force against Iraq on 16 January 1991. 6 On 27 February 1991
the President of the Security Council confirmed that Iraq had withdrawn all of its forces
from Kuwait.7 SCR 687 (2 April 1991) established the ceasefire terms. It stated that once
Iraq officially notified the Secretary-General and the Council that Iraq accepted SCR 687’s
provisions, then an official ceasefire would be in effect between Iraq and
Kuwait/cooperating member states acting as SCR 678 authorized.8 Iraq’s only ceasefire
obligation was official notification. SCR 687 contains no other ceasefire conditions. Iraq
officially notified the required parties on 6 April 1991. 9 Since then, a ceasefire has been in
The Council had achieved its originally stated primary peace and security objective: Iraq’s
military forces were out of Kuwait. However, the Council decided in SCR 687 that Iraq’s
pre-Gulf War non-conventional ∗ weapons development and use made Iraq a continuing
∗ For the Council, in Iraq’s case, “non-conventional” refers to biological, chemical and nuclear weapons, along
with ballistic missiles with a range greater than 150 KM. “Non-conventional” also seems to cover related
“materials” and “all related subsystems and components and all research, development, support and
manufacturing facilities”. Note that the Security Council uses the term “weapons of mass destruction”.
(Security Council Resolution 687, S/RES/687, 3 April 1991, OPs 8 and 12)ഊ–5–
threat to “international peace and security.” SCR 687 mentioned other issues, but non-conventional
weaponry was the primary one. SCR 687 details Iraq’s forthgoing non-conventional
disarmament “obligations”. These “obligations” were not ceasefire conditions.
Rather, they were actions, in addition to the ceasefire term, that the Council required Iraq to
take in the name of “international peace and security”. Because Iraq has not gained Council
“...agreement that Iraq has completed all [relevant] actions”,10 the Council has continued to
remain “seized” of Iraq as an “international peace and security issue”. Nevertheless,
Council authorization for member states to use against Iraq ended with the ceasefire.
Member states would have had continued force authorization only if Iraq had failed to
execute its ceasefire obligation.
The ceasefire has been authorized. In a hypothetical scenario, even if there were other SCR
687 ceasefire conditions and Iraq broke them, a member state (even if it once acted in
cooperation with Kuwait) would violate standard international law if it used force on the
basis that Iraq violated the ceasefire terms. Pre-1945, an “armistice” was the accepted
practice between combatants. The armistice was a suspension of force, not an end. If a
party violated the armistice terms, then the other party could once again use force, unless the
armistice explicitly stated that it could not. Since 1945, the “ceasefire” has replaced the
armistice. A ceasefire is a binding end to force, not a suspension. If a party violates the
ceasefire terms, other signatories may not legitimately use force merely because there has
been a ceasefire violation.11

Preemptive use of force
The Charter also does not seem to permit unauthorized preemptive attacks. The
International Court of Justice (ICJ), the world’s highest court and a principal UN organ,
seemed to support this conclusion in a 1986 decision:
“[F]or one State to use force against regarded as lawful, by way
of exception, only when the wrongful act provoking the response was an
armed attack....In the view of the Court, under international law in force
today – whether customary international law or that of the United Nations
system – States do not have a right of ‘collective’ armed response to acts
which do not constitute an ‘armed attack.’”12 ∗
Note that the 1986 US Public Law 99-433 requires every US President to transmit to
Congress an annual report on the “National Security Strategy of the United States of
America”.13 US President George W. Bush’s required report, released in September 2002,
includes US preemptive force as a pillar of his Administration’s “national security doctrine”.1
∗ In this SCR 1441 analysis the author has made some words bold. Where words are bold they were
not bold in the original text.
1 “The United States has long maintained the option of preemptive actions to counter a sufficient threat to our
national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case
for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of theഊ–6–
As a related aside, it may be worth noting that according to the US Constitution, “...all
Treaties made, or which shall be made, under the Authority of the United States, shall be the
supreme Law of the Land”.14 The UN Charter is such a treaty.
Summary of the UN Charter and the Use of Force Against
There are now only two scenarios in which the UN Charter would permit a state to use force
against Iraq: One, Iraq would have to attack a member state. Or, two, the Council would
have to explicitly authorize force under Chapter VII.

2. SCR 1441 and the US Position on Whether SCR
1441 Constrains Potential US Use of Force
Against Iraq
Just prior to the SCR 1441 vote, White House Press Secretary Ari Fleischer said “[n]othing
in this resolution handcuffs the [US] President”.15 Reportedly, “[s]enior U.S. officials insisted
that the new resolution formally presented to the council [on 7 November] preserve[d]
Bush’s authority to wage war against Iraq.”16 When explaining the US vote in favor of SCR
1441, US Permanent Representative to the UN Ambassador John Negroponte stated that
“[i]f the Security Council fails to act decisively in the event of a further Iraqi violation, this
resolution does not constrain any member state from acting to defend itself against the
threat posed by Iraq, or to enforce relevant UN resolutions and protect world peace and
security.”17 In mid-November, US President George W. President Bush said that “...the
interesting thing about the U.N. Security Council resolution is all countries are free to act.”18
All of these statements seem to ignore the UN Charter and 1991 ceasefire, and related
prohibitions on the use of force.

3. How the US Might Use SCR 1441 to
Domestically and Internationally Justify Using
Force Against Iraq
There are many possibilities. This document below focuses on three. The possibility
presented in Section 3(iii) focuses on what might be the most important paragraphs in SCR
(i) US Officials might continue to ignore the 1991 ceasefire and UN Charter, and
incorrectly interpret SCR 1441 warning language.
enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary,
act preemptively.” (US President George W. Bush, “The National Security Strategy of the United States of
America”, September 2002, pg. 15,ഊ–7–
The context for SCR 1441 is the UN Charter and its use of force provisions, along with the
1991 ceasefire. Iraq has not attacked a member state since it invaded Kuwait. Since the SCR
678 authorization and later ceasefire that ended the authorization, the Council has not
authorized member states to use force against Iraq. In SCR 678 the Council
“...[a]uthorize[d] Member States co-operating with the Government of use all
necessary restore international peace and security in the area”.19 Notably, the 2
October US/UK SCR draft proposed that a “further material breach of Iraq's
obligations...authorizes member states to use all necessary means to restore international
peace and security in the area”.2 SCR 1441 on the other hand contains no “all necessary
means” language, or, for that matter, any text which authorizes member states to use force
against Iraq. However, SCR 1441 is filled with strong language that US officials often invoke.
In SCR 1441, the Council:
“Recogniz[es] the threat Iraq’s non-compliance with Council resolutions and
proliferation of weapons of mass destruction and long-range missiles poses
to international peace and security”20
“Decides that Iraq has been and remains in material breach of its
obligations under relevant resolutions”21
“ afford Iraq, by this resolution, a final opportunity to comply
with its disarmament obligations under relevant resolutions of the Council”22
“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”23
“Decides to convene immediately upon receipt of a report in accordance
with paragraphs 4 or order to consider the situation and the need for
2 [“The Security Council...Acting under chapter VII of the Charter of the United Nations,] [d]ecides that false
statements or omissions in the declaration submitted by Iraq to the Council and failure by Iraq at any time to
comply and cooperate fully in accordance with the provisions laid in this resolution, shall constitute a further
material breach of Iraq's obligations, and that such breach authorizes member states to use all necessary
means to restore international peace and security in the area”. (US/UK, draft Security Council Resolution, 2
October 2002, OP 10, Note that this was the
first draft SCR that the US/UK circulated to other Security Council permanent members. The US/UK never
formally tabled it.)ഊ–8–
full compliance with all of the relevant Council resolutions in order to
secure international peace and security”24
“Recalls, in that context, that the Council has repeatedly warned Iraq that it
will face serious consequences as a result of its continued violations of its
US officials seem willing to use SCR 1441 language to suggest that SCR 1441 simultaneously
validates and frees the US to use force against Iraq, while acknowledging that it does not give
the US explicit authorization. They seem argue that the Charter is extraneous, that the
ceasefire had conditions other than the actual one, and that SCR 1441 contains strong
warning language and does not explicitly prohibit the use of force. Thus, they seem to
conclude the US is at liberty to use force against Iraq.
US President George W. Bush has, on several occasions, referred to SCR 1441 as a “final
test”26 and has suggested that “[a]ny act of defiance or delay will indicate that [Saddam
Hussein] is taking the path of deception once again, and this time the consequences would
be severe”,
27 thereby drawing from the phrases “final opportunity” and “serious
consequences”. He has also stated that “[t]he United States has agreed to discuss any
material breach with the Security Council, but without jeopardizing our freedom of action to
defend our country. If Iraq fails to fully comply, the United States and other nations will
disarm Saddam Hussein.”28
US Secretary of State Colin Powell has also similarly used SCR 1441 language. A few days
after SCR 1441 was passed, Powell wrote a newspaper opinion piece in which he stated:
“Every member of the Security Council understands that if Hussein fails to
comply with Resolution 1441, there must be serious consequences...The
Security Council has confronted Saddam Hussein and his regime with a
moment of truth. If they meet it with more lies, they will not escape the
Secretary Powell has also said:
“[Saddam Hussein] hasn't complied in the past, and that's why we put it in
this resolution that this is a last chance, because if he doesn't comply this
time, that lack of compliance goes right to the Security Council, who are to
convene immediately to consider what should be done. And serious
consequences are held out within this current resolution.” 30
Perhaps even more explicitly than the US President, Powell has attributed to the US
President the belief that the “international community” is obliged to take actions that the USഊ–9–
President believes are necessary, and that the US will use force against Iraq without Security
Council authorization.
“I can assure you if [Saddam Hussein] doesn't comply this time, we are going
to ask the U.N. to give authorization for all necessary means. If the U.N. isn't
willing to do that, the United States, with like-minded nations, will go and
disarm him forcefully. And the president has made this clear...the president
has made it clear that he believes it is the obligation of the international
community, in the face of new non-compliance, to take whatever actions the
president feels necessary to remove those weapons of mass destruction. And
if the U.N. does not act, then the president is prepared to act. He's made it
clear for months.”31
US Deputy Secretary of Defense Paul Wolfowitz echoed a similar theme in mid-November
when he stated that “I think the president has made it clear [that] if we can get the support
of the United Nations, that’s great, and if we can't get it, we’re not going to have our hands
(ii) US officials (with help from UK officials) may invoke the Government of Iraq’s internal
repression (explicitly mentioned in SCR 1441) when they domestically seek to justify US
force against Iraq.
Additionally, US officials may incorrectly misinterpret SCR 678, SCR 687 and SCR 687 and
state that those resolutions authorize the US to use force against Iraq. US Public Laws have
also misinterpreted those resolutions. Primarily for a domestic audience, US officials might
invoke US Public Law, in addition or as a supplement to SCRs, to justify using force against
US public laws that misinterpret SCR 678, SCR 687 and
SCR 688
SCR 1441 explicitly invokes SCR 678 and SCR 688 (5 April 1991)33 and purports to
paraphrase SCR 687. 34 It seems more than incidental that several US Public Laws 3 and US
officials incorrectly interpret some combination of SCR 678, SCR 687 and SCR 688. These
misinterpretations, as explained below, are seemingly primarily aimed at a domestic US
The SCR 678 misinterpretation is that SCR 678 authorizes member states to use force (at
their discretion) against Iraq to “enforce” or “support” SCR 678 and all post-SCR 678 Iraq-related
SCRs (including SCR 687 and beyond).35
The SCR 687 misinterpretation is that the ceasefire depended on Iraq acting in addition to
officially notifying the required parties that Iraq accepted SCR 687. 36
3 Namely US Public Law 102-190, “National Defense Authorization Act for Fiscal Years 1992 and 1993,” 5
December 1991, section 1095-1096, US Public Law 105-338, “Iraq Liberation Act of 1998”, 31 October 1998,
section 2 and US Public Law 107-243, “Authorization for Use of Military Force against Iraq Resolution of
2002”, 16 October 2002ഊ–10–
The SCR 688 misinterpretation is that SCR 688 authorized force against Iraq.37
SCR 688 context
On 29 February 1991, retreating Iraqi troops and Iraqi civilians began an uprising against the
Government of Iraq.38 This uprising may have been in part spurred by then US President
George H.W. Bush’s 15 February 1991 remarks (and the Iraqi civilian and military conclusion
that the US would thus help their efforts): “There is another way for the bloodshed to stop:
And that is, for the Iraqi military and the Iraqi people to take matters into their own hands
and force Saddam Hussein, the dictator, to step aside and then comply with the United
Nations’ resolutions and rejoin the family of peace-loving nations”.39 “Iraqi troops and
security services acted with great brutality in quelling the uprising”40 and created massive
internal displacement and external refugee flows. It was in this context that over a month
after the uprising and related repression began, the Security Council passed SCR 688.
In SCR 688, the Council stated that the Council was
“Gravely concerned by the repression of the Iraqi civilian population in many parts of Iraq,
including most recently in Kurdish populated areas, which led to a massive flow of refugees
towards and across international frontiers and to cross-border incursions, which threaten
international peace and security in the region”. It “Condemn[ed] the repression of the Iraqi
civilian population”, stated that “[those] consequences...threaten international peace and
security in the region” and “demande[d]” that the Government of Iraq end this repression”
and grant full access to humanitarian aid agencies.41
SCR 688’s primary impetus, repression of civilians during an uprising and resulting refugee
flows, no longer exists. After ending the 1991 uprising, the Government of Iraq has
continued to repress Iraqi civilians, albeit in a non-uprising context.42 The Council has
omitted this differently contextualized repression from the set of Iraq issues on which the
Council has acted. Whenever the Council has passed an Iraq-related resolution, it has
“[r]ecall[ed] its previous relevant resolutions” and then noted particular resolutions that are
important to the one that it just passed. Until SCR 1441, and strong indications that the US
may wish to go to war with Iraq, the Council has not singled out for attention SCR 688 and
the Government of Iraq’s internal repression. While talking generally about why the US may
use force against Iraq, the US President and other US officials sometimes mention that the
Government of Iraq represses its civilian population.43 One may imagine similar references
to internal repression if the US decides to use force against Iraq. Such references would
probably be aimed at the US public and designed to garner support for US military action
against Iraq.
Select past and present US role in Iraqi human rights
SCR 1441 deplores the Iraqi Government’s refusal to readmit weapons inspectors and
“regret[s] the consequent prolonging of the crisis in the region and the suffering of the Iraqi
people”.44 Successive US Administrations have stated that the Iraqi Government’s non-ഊ–11–
compliance and/or ostensible failures to fully utilize sanctions exceptions (namely the “oil-for-
food program”) are to blame for Iraq’s humanitarian crisis. However, irrespective of the
Government of Iraq’s actions, the US does have policy alternatives. There is responsibility
that comes from continuing to drive (with UK support) the Council to link Iraq’s
humanitarian situation to ostensible non-conventional weapons objectives, and thus maintain
economic sanctions on Iraq that have had and continue to have forseeably grave
consequences for Iraqi civilians. It is true that Chapter VII permits the Council to authorize
and impose economic sanctions,45 but there seems to be a growing sense that economic
sanctions may be at odds with the rest of the UN Charter.46
By definition, effective economic sanctions forseeably damage a target economy, which in
turn predictably leads to civilian suffering.47 Economic sanctions play a role in this suffering,
regardless of why decision-makers apply them or what target governments do in response to
them. UN Secretary-General Kofi Annan,48 UNICEF Executive Director Carol Bellamy,49
the Security Council’s 1999 Humanitarian Panel,50 and even the Security Council itself 51
(among others) have noted the link between Council sanctions and Iraq’s humanitarian crisis.
The UN High Commission on Human Rights concluded in 2000 that “the current sanctions
regime is having a disproportionately negative impact on the enjoyment of human rights by
the Iraqi population.”52 The estimated 500,000 extra dead children under the age of five
(1991-1998),53 among many other systematically estimated and anecdotally observed
indicators, certainly seem to support the High Commission’s conclusion.54
On the possible impact that a war might have on Iraqi civilians, several organizations and
experts have written on the potentially large-scale, devastating and deadly consequences.55
The recently released UK “dossier”56 on the Iraqi Government’s human rights violations
might also be viewed as part of this use of force mobilization. Reportedly the
“document...contained no new material”.57 In response to the question, “[b]ut it has been
happening, Prime Minister, for a very long time in Iraq, hasn't it? Saddam Hussein has been
in power now for more than 20 years, why only now?”, UK Prime Minister Tony Blair
responded “[b]ecause the issue of weapons of mass destruction is there and that is the basis
on which the international community is acting.”58 “Richard Bunting, a spokesman for the
human rights group Amnesty, said: “We are afraid this is opportunistic and selective. Iraq’s
human rights record is appalling but we have been saying this for years.” “The British and
US are being selective, conveniently ignoring other countries and using that record to drive
forward foreign and military goals.”59
Past US inattention and inaction regarding the Government of Iraq’s human rights
violations,60 US-propelled Council economic sanctions, and the seemingly likely humanitarian
catastrophe that a US war on Iraq would cause, all seem to point to the Amnesty
International Secretary General’s conclusion that “[t]he human rights situation in Iraq is
being invoked with unusual frequency by some western political leaders to justify military
SCR 1441 and the US/UK “No-Fly Zones”
The US and UK often invoke SCR 688 to argue that it authorizes them to “support” or
“enforce” (these are common US and/or UK official buzzwords on this topic) SCR 688
through their use of force the US/UK “no-fly zones”.4 “However, unlike the military
campaign to expel Iraqi forces from Kuwait, the no-fly zones were not authorised by the UN
and they are not specifically sanctioned by any Security Council resolution....the resolution
[688] did not say the Security Council was acting under Chapter VII of the UN Charter,
which provides for enforcement action...nor did it say that all necessary means could be
In SCR 1441 the Council “Decides further that Iraq shall not take or threaten hostile acts
directed against any representative or personnel of the United Nations or the IAEA or of
any Member State taking action to uphold any Council resolution”.63 Reportedly, “Russia’s
deputy U.N. ambassador, Gennady Gatilov said Wednesday [20 November] that during
negotiations for Resolution 1441, the council received assurances from British diplomats -including
British Ambassador Jeremy Greenstock - that the resolution did not refer to the
no-fly zone patrols. ‘He said, absolutely no, we don’t mean that,’ Gatilov recalled
Greenstock as saying. A British diplomat confirmed that.”64 White House Deputy Press
Secretary Scott McClellan stated at a mid-November press briefing that “the United States
believes that firing upon our aircraft in the no-fly zone or British aircraft is a violation, it is a
material breach. And what that -- what the U.N. resolution allows us to do is it gives us the
option, if we choose, to take that to the Security Council.”65
That and select other Administration comments notwithstanding, reportedly “[t]he
administration also appeared to be acknowledging that it would be difficult to use
confrontations between allied planes and Iraqi forces on the ground in the no-flight zones –
the equivalent of a low-level war that has been going on for years – as the sole reason for
taking new military action against Saddam Hussein...faced with the near certainty that Russia
and some other countries would not agree that Iraq's firing on the patrol planes violated the
resolution, administration officials said they would not bring the issue before the Security
Council for the moment.”66 It seems unlikely that the US will use events in the US/UK “no-fly
zones” as a pretext to use force against Iraq. What seems more likely is that the US will
have another pretext and include Iraqi actions in those “zones” as part of a broader,
domestically-focused, justification for why the US must use force against Iraq.
Summary of a potential US Public Law argument
SCR 678’s force authorization ended with the ceasefire, when Iraq officially notified the
designated parties that Iraq accepted SCR 687’s provisions. Nevertheless, US officials may
ignore the actual ceasefire details and repeat misinterpretations from US Public Law and
4 “USCENTCOM [US Central Command] continues to enforce UN Security Council resolutions 688 and 949
in order to protect Iraq's population from their own government, deter enhancement of Iraq's military
capability, and prevent Iraqi aggression against its neighbors. To accomplish this, our Joint Task Force-Southwest
Asia (JTF-SWA) enforces a no-fly zone over southern Iraq”. (US Central Command Commander
General Tommy Franks, statement to US House of Representatives Armed Services Committee, 27 February
other sources. Most likely, the language will focus on the US “Congress”, rather than
“Public Law”.5 The argument may goes as follows:
Some combination of SCRs 678, 678 and 688 authorizes the US to use force against Iraq at
US discretion, post ceasefire.
US Public Law is consistent with SCRs 678, 687 and 688.
US Public Law (or the US “Congress”) has authorized the US President to use force against
The Public Law argument would probably be almost exclusively for a domestic US audience.
It might be worth noting that authorization in international law does not depend on
domestic law.
(iii) Regarding the potential US use of force against Iraq, OPs 4, 11 and 12 may be the most
interpretationally and consequentially serious. Together they determine a “further material
breach” in advance of the Council actually determining that there has been a “further
material breach”. They may also circumvent UNMOVIC/IAEA as the exclusive “reporting”
agents regarding a “further material breach”. Additionally, the Council must consider and
act in response to a “report” from alternative sources such as a member state. Thus, the
Council may potentially receive “reported” Iraqi “false statements” or “omissions” from a
member state (most likely the US) and base related Council actions on such a “report”,
rather than UNMOVIC/IAEA “reports” alone. The US may also use the “reporting”
system, in conjunction with UNMOVIC/IAEA’s mandate, to undermine inspections and/or
the inspectors as mechanisms in Iraq’s non-conventional disarmament.
There are many paragraphs that may be consequentionally problematic. For example, OP 3
gives Iraq until 8 November to submit to UNMOVIC/IAEA and the Council
“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, subcomponents, 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”.
5 E.g., “With tonight’s vote in the United States Senate, America speaks with one voice. The Congress has
spoken clearly to the international community and the United Nations Security Council. Saddam Hussein and
his outlaw regime pose a grave threat to the region, the world, and the United States. Inaction is not an option,
disarmament is a must. I commend members of the Senate for the strong bipartisan vote authorizing the use
of force, if necessary. The Senate, like the House, conducted this important debate and vote in the finest
traditions of our democracy.” (US President George W. Bush, statement, Office of the Press Secretary, 11 October
In his 28 October Security Council briefing notes UNMOVIC Executive Chairman Hans
Blix wrote that “[a] declaration regarding weapons programme should be possible within 30
days and the same should be true for declaring remaining permitted peaceful nuclear
programmes...To declare all other chemical programmes in a country with a fairly large
chemical industry, as well as other biological programmes might be more problematic in a
short time.”67 Blix repeated on 25 November “I had said here as you probably know that
with a country having petrochemical industry to declare all the programmes they may have in
chemistry might be difficult within 30 days”.68 If Iraq submits an 8 December declaration
regarding its ostensibly civilian biological and/or chemical facilities, and the declaration is
incomplete because the 30 time period was insufficient, will the US then contend that
“omissions” are grounds for military action?
OP 4, OP 11 and OP 12 text
The paragraph though to which one perhaps ought to pay closest attention may be OP 4, in
conjunction with OP 11 and OP 12.
OP 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
OP 11: Directs the Executive Chairman of UNMOVIC and the Director-General of
the IAEA to report immediately to the Council any interference by Iraq with
inspection activities, as well as any failure by Iraq to comply with its
disarmament obligations, including its obligations regarding inspections
under this resolution
OP 12: Decides to convene immediately upon receipt of a report in accordance with
paragraphs 4 or 11 above, in order to consider the situation and the need for
full compliance with all of the relevant Council resolutions in order to secure
international peace and security
The safety net with a hole: “two parts” that may be only
UK Foreign Secretary Jack Straw stated before the UK House of Commons on 25
November “the operational Paragraph 4 makes it clear that a material breach is a failure of
disclosure and other failure to comply. So there are two parts of it.”69 A “Senior US
Official” told reporters on 8 November that failure to cooperate and comply meant “failure
to cooperate with the inspectors”.70 Reportedly, “[t]he use of ‘and’ rather than ‘or’ was
intensively debated by the security council, and was a condition for its unanimous support
for the resolution. Despite hints to the contrary from Tony Blair, British governmentഊ–15–
officials say the declaration alone will not provide a justification for military action. The US
state department privately agrees.”71
It seems to actually be unclear that “failure by Iraq at any time to comply with, and
cooperate fully in the implementation of, this resolution” is in fact specific to inspections
and/or entirely distinct from “false statements or omissions in the declarations submitted by
Iraq pursuant to this resolution”. Although OP 11 (to which OP 4 refers) refers to
“inspections” and “inspection activities”, it also refers to “any failure by Iraq to comply with
its disarmament obligations”. SCR 1441-wise, “disarmament obligations” presumably
include “a currently accurate, full, and complete declaration”. The US might potentially
argue that “reported” declaration “false statements or omissions” ARE “failure[s]
comply with...and cooperate fully in the implementation of...this resolution” or “failure[s] by
Iraq to comply with its disarmament obligations”. Thus, the US might contend that a
declaration-related “report” alone is sufficient to constitute a “further material breach”.ഊ–16–
A “further material breach” seems to be already
OP 4 seems to preemptively determine “further material breach”. This is certainly how the
US seems to interpret it. US Secretary of State Colin Powell stated a few days after the SCR
1441 vote that “[OP 4] says clearly that if there is this violation, that very fact of a violation
is a material breach, not a judgment to be made by somebody else, either by Dr. Blix or the
head of UNMOVIC or by the Security Council. It is a material breach.”72 In other words,
there is no latitude given for judgment by UNMOVIC/IAEA or by the Security Council.
There is no opportunity for the Security Council to review a “report” and then decide
whether the “reported” Iraqi action actually constitutes a further material breach. There is
no caveat that a “reported” Iraqi action will be a “further material breach” only after the
Council assesses and establishes it to be as such.
Why is it so potentially important that SCR 1441 determines in advance that a “reported”,
unreviewed, unjudged action is a “further material breach”? Why is it perhaps so
consequentially relevant that a “further material breach” is a foregone conclusion and that
the only question is “what next”? The importance exists because the US may use it as a
pretext to use force against Iraq and minimize debate about force usage. US President
George W. Bush has said “the world must not lapse into unproductive debates over whether
specific instances of Iraqi noncompliance are serious. Any Iraqi noncompliance is serious”.73
Powell further stated on 10 November “at that point, it is referred to the Security Council
under Paragraph 12 for the Security Council to make a judgment as to what should be done.
While the Security Council is doing that, the United States will also be reviewing the nature
of this breach and making a judgment as to whether it should prepare or begin to prepare to
take military action either as part of the U.N. effort, if the U.N. decides to do that, or
separately with like-minded nations if that turns out to be the direction in which we’re
OP 4 seems to suggest that only “reported”, rather than “reported”, reviewed and
established “failure [including declaration “false statements and omissions” and inspections]
by Iraq at any time to comply with, and cooperate fully in the implementation of, this
resolution shall constitute a further material breach”. Given the potential for the US to use a
“reported” “failure” to justify using force against Iraq, “reporting” takes on increased
UNMOVIC/IAEA do not seem to be the exclusive Council
“reporters”: a member state may “report”
A 23 October French draft SCR (OP 10) suggest that the Council “[d]irects the Executive
Chairman of UNMOVIC and the Director General of IAEA to report immediately to the
Council any serious failure by Iraq to comply with its disarmament obligations, including its
obligations regarding inspections, under this resolution”.75 The French draft (OP 11) wentഊ–17–
on to propose that the Council “[d]ecides to convene immediately, upon reception of a
report in accordance with paragraph 10 above, in order to consider the situation and the
needed steps to ensure full compliance with all of the relevant Security Council resolutions
in order to restore international peace and security”. In the French draft, it seems that
UNMOVIC/IAEA are the exclusive “reporters” to the Council, regarding “serious” Iraqi
non-compliance. Only after the Council receives an UNMOVIC/IAEA “report” will the
Council “convene”. The Council will only review an UNMOVIC/IAEA “report”. The
Council will decide on future action, based on the UNMOVIC/IAEA “report”.
In SCR 1441, UNMOVIC/IAEA do not seem to be the exclusive “reporters” to the
Council. OP 4 states that “...will be reported to the Council for assessment in accordance
with paragraphs 11 and 12 below”. Note the “and” in between “paragraphs 11 and 12”. OP
11 directs UNMOVIC/IAEA to “report” to the Council. In OP 12 the Council “[d]ecides
to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11”.
Note the use of the phrase“a report”. Further, note the reference to “paragraphs 4 [OR]
11”. OP 11 refers to UNMOVIC/IAEA. This means that OP 12 refers to a “report” from
UNMOVIC/IAEA OR some other source, perhaps a member state.
When explaining the US SCR 1441 vote on 8 November, US Permanent Representative to
the UN Ambassador John Negroponte stated that “If there is a further Iraqi breach,
reported to the Council by UNMOVIC, the IAEA, or a member state, the matter will
return to the Council for discussions as required in paragraph 12.”76 If a member state
“reports” an Iraqi “failure”, an act of ostensible non-compliance, regarding declaration
and/or inspections, OP 4 and 12 establishes the “reported” “failure” as a “further material
breach” and requires the Council to “convene immediately upon receipt of [such] a order to consider the situation and the need for full compliance with all of the
relevant Council resolutions in order to secure international peace and security”. The
“further material breach” and “conven[ing]” could all take place even if UNMOVIC/IAEA
doesn’t “report” an Iraqi compliance “failure” to the Council.
What if a member state “reports” and UNMOVIC/IAEA do
A situation might develop where UNMOVIC/IAEA and a “reporting member state actually
disagree over ostensible Iraq non-compliance, regarding the declaration and/or inspections.
OP 5 “requests” that UNMOVIC/IAEA update the Council no later than 95 days post-8
November. UNMOVIC/IAEA thus have to submit “an updating report” to the Council by
27 January 2003. 77 But otherwise, OP 4 and OP 11 seem to suggest that UNMOVIC/IAEA
are only supposed to “report” to the Council if UNMOVIC/IAEA observe a “failure by
Iraq at any time to comply with...and cooperate fully in the implementation of [SCR 1441]”,
be the failure related to Iraq’s declaration, inspections or other Iraqi “disarmament
It seems as though pre-“updating report”, UNMOVIC/IAEA are not mandated to “report”
Iraqi inspections compliance or on the 8 December declaration, unless UNMOVIC/IAEA
observe “any failure by Iraq to comply with its disarmament obligations”. Supposeഊ–18–
UNMOVIC/IAEA observe no Iraqi “failure” and thus do not “report” to the Council, post-8
December declaration and pre-UNMOVIC/IAEA updating “report”.
Suppose that pre-UNMOVIC/IAEA “updating report” the US “reports” that Iraq’s 8
December declaration has “false statements or omissions” and/or that there has
“interference by Iraq with inspection activities”. If UNMOVIC/IAEA have not
independently concluded the same, will the US “report” stand alone as the only “evidence”
of “further material breach”? It would seem as if the only likely way that
UNMOVIC/IAEA could even address the Council would be if a Council member requested
that UNMOVIC/IAEA brief the Council. What would happen if another Council member,
particularly a permanent member like the US moved to block an UNMOVIC/IAEA
briefing? In terms of OP 12, would a requested UNMOVIC/IAEA briefing have the same
weight as a member state “report”? If UNMOVIC/IAEA disagreed with or at least did not
support the “report” findings, where would this leave the Council, given the “reporting”
mechanism ambiguity?
The “reporting” mechanism and how the US might
undermine UNMOVIC/IAEA by withholding “intelligence”
Since member states may “report”, it might be easier for the US to use the “reporting”
“system” to try to discredit and undermine UNMOVIC/IAEA. The purpose of such tactics
would be to argue that the use of force is the only way to successfully disarm Iraq. For
example, SCR 1441 requests that member states “provid[e] [to UNMOVIC/IAEA] any
information related to prohibited programmes or other aspects of their mandates, including
on Iraqi attempts since 1998 to acquire prohibited items”.78 “Some experts believe the US
will produce new intelligence to prove Iraqi concealment in the December 8 declaration but
others say the agencies have suspicions rather than facts.”79 Regardless of whether the
“intelligence” is “new” or a collection of “suspicions rather than facts”, the US might
withhold “intelligence” from UNMOVIC/IAEA. As of 5 December, the US
Administration reportedly suggested that it had evidence that Iraq has non-conventional
weapons, contrary to Iraqi officials stating that Iraq dual-use equipment but no non-conventional
weapons.80 Whether the US has shared this information with
UNMOVIC/IAEA, per the SCR 1441 request, seems to be unclear.
OPs 4 and 12 would allow the US to formally “report” its “evidence” directly to the Council
as a “further material breach”. The Council would then have to consider the “report”.
Council members then might ask UNMOVIC/IAEA to brief the Council on the US
“report”. If allowed to do so, UNMOVIC/IAEA may state that they were unaware of the
“report” contents. The US might then argue that this lack of awareness confirms that
UNMOVIC/IAEA are unable to fully “confirm the evidence of voluntary and total
The “reporting” mechanism and the US potentially arguing
that UNMOVIC/IAEA are insufficiently “aggressive” to
fulfill their disarmament mandate
Furthermore, if the US alone “reports” that Iraq is failing to comply with inspections and is
thus in “further material breach”, the US as the “reporter” may partially frame the issue as
being part of a bigger issue: UNMOVIC/IAEA timidity. SCR 1441 (OP 5) authorizes
UNMOVIC/IAEA to conduct interviews outside Iraq and states that UNMOVIC/IAEA
“may facilitate the travel of those interviewed and family members outside of Iraq”. On 8
November US Permanent Representative to the UN Negroponte stated “To the Secretary-General,
Dr. Blix, and [IAEA Director General] Dr. El-Baradei: We urge you to make full
use of the tools given to you in this resolution”.82
In his 28 October notes for his then-soon Security Council briefing regarding the latest draft
SCR, Blix wrote “I understand that the provision (in op. 5) under which UNMOVIC or the
IAEA might ‘facilitate the travel of those interviewed and family members outside of Iraq’ is
an authorization rather than a mandate. There would be great practical difficulties in usi [snip - maximum size exceeded]

-- andreas
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