No. 437 September 2000
The UN Security Council and International Law
Ten years ago the UN Security Council imposed upon Iraq some very specific requirements for disarmament. After Iraq had been expelled from Kuwait, the Council decided unanimously that Iraq may not have nuclear, chemical, or biological weapons; or missiles which could fly beyond 150 km. The Security Council’s decisions were taken with the full authority of international law.
The UN Charter is actually the largest multilateral treaty in existence. Virtually every country in the world is a participant in it, and when they sign up, they sign up to the UN’s law-making ability as spelled out in the Charter. In many parts of the United Nations there is no law-making ability, such as in the General Assembly, whose decisions are only recommendations. But in the Security Council there is a distinct law-making ability and every decision that the Council took on Iraq was taken under Chapter VII of the Charter, and pursuant to Article 25 which states that the decisions of the Security Council are binding upon all States. The decisions taken on Iraq were taken under that law-making ability.
What was the mechanism to be used to make Iraq comply? The mechanism was that Iraq would have to declare all of its illegal weapons, and then UNSCOM, the body created by the Security Council, which I came to lead, was to verify whether these declarations were true or not. It would then “destroy, remove, or render harmless” the weapons that were so discovered. The remaining part of the mechanism was that Iraq’s future activities would be monitored to see that it did not make these weapons again.
The basic fact is that Iraq was told with crystal clarity what weapons should be removed. This was done under the full force of law, and a mechanism was created to accomplish the task. Saddam Hussein was legally required to cooperate and the requirements were backed up by sanctions. In the end, in the case of Iraq, the mechanism did not work. The UN needs to reexamine its mechanisms to see whether there is a better way to achieve compliance with the law by recalcitrant, outlaw states.
Iraqi Resistance and Deception
From the beginning, Saddam decided to refuse to obey the law. From the beginning, the Iraqis concealed weapons and made false declarations about those they had decided to declare. This was deception on two fundamental levels.
When UNSCOM tried to deal with this resistance, mainly through the process of inspection, it was repeatedly blocked and prevented from doing its job. Tariq Aziz, Saddam’s deputy, was put in charge of dealing with UNSCOM. He should have been called the Minister for Disarmament Resistance because Iraq created an anti-UNSCOM industry of a size and degree of organization second only to its military.
UNSCOM complained to Aziz at one stage about this resistance, saying that Iraq had caused UNSCOM to be more forensic than it should have been. Its job was not to investigate Iraq in detail. It was supposed to be to verify basically honest declarations. When Iraq prevented inspectors from going to a certain place, it was obvious that this was because inspection may have discovered undeclared weapons. Had Iraq not done that, but rather laid out its weapons on the table, UNSCOM would not have had to seek to visit a large range of sites in Iraq. It would have been able to do its job of verification without becoming Sherlock Holmes. So when Aziz complained about UNSCOM’s inspections as being too intrusive, the fact is, UNSCOM’s actions had originated from Iraq’s basic refusal to obey the law. Aziz frequently rejected this connection and the suggestion that Iraq was refusing to obey the law.
What UNSCOM Accomplished
In spite of phony declarations and concealment and resistance, UNSCOM was actually able to accomplish quite a bit, in areas that are very important to persons who live in Israel. We were able to slow down the development of Iraq’s weapons of mass destruction. That may sound lame, but imagine the circumstances that would prevail today had we not been there and done this work. Imagine where Saddam and Iraq would be if there had been no such mechanism – if from 1991 until the present it had been uninspected, unmonitored, and had just proceeded down the track of making weapons of mass destruction in the way that, it is clear, Saddam is interested in. The circumstances we would face today would be horrendous.
In addition, we were actually able to find and get rid of a substantial quantity of weapons that had already been created. Tens of thousands of chemical weapons were destroyed. The main place where they had been making biological weapons was demolished. We slowed down their missile production. In the nuclear field Iraq was caught red-handed, six months away from making an atomic bomb, and this remains a problem. There were good concrete results, but we were not permitted to finish the job.
The Consensus Begins to Break
In 1998, the political situation in the Security Council had changed greatly. From 1991, when this work began, to 1997-1998, there had been a consensus within the Security Council that Iraqi disarmament had to be achieved. There had been repeated challenges to inspections, but on all occasions the five permanent members of the Security Council had hung together and told Iraq that it still had to obey the law. In order to encourage it to do so, the Council had insisted that sanctions would have to be continued.
However, early in 1998, following the attempt by the Secretary General of the United Nations to reach an accommodation with Saddam Hussein – an attempt which failed almost immediately – it became clear that the politics within the Security Council had changed to the point that one could no longer expect consensus among the five permanent members to continue to pressure Saddam.
Part of the politics surrounding the sanctions was an immensely successful propaganda campaign waged by Iraq and its supporters, with great impact especially in the democracies where ordinary people increasingly decided to tell their governments that they thought sanctions were harming ordinary Iraqis too much, had gone on for too long, and should therefore be lifted. It was clear that this pressure towards the lifting of sanctions, which was enhanced through the media in the democracies, was becoming thoroughly disconnected from Iraq’s disarmament obligations.
Above all, it was clear that the Security Council consensus on doing this job had ended, in particular when Russia decided to depart from that consensus and become the advocate for the interests of Saddam Hussein at the Security Council. I was under enormous political pressure to solve the problem. For example, Russian Foreign Minister Yevgeny Primakov implored me to find a way to let Iraq off the hook. He said to me, “lower the bar, lower the standards, let Iraq out of jail. Don’t be so fastidious.”
The Requirements for Ending Sanctions
As Executive Chairman of UNSCOM, after consulting with experts on all of the weapons, I drew up a list of final disarmament requirements that I knew to be accurate, that I knew were the irreducible minimum for declaring, with any safety, that Iraq was disarmed. If these requirements were met, the Council might take the decision to lift sanctions. The Council had a difficult debate on these requirements, but in the end it did not dissuade me from doing what I had proposed to do.
In June 1998, I returned to Baghdad and gave the list to Aziz. He was unhappy with it, but, in the end, agreed to work on it. In the missile field there were two main requirements – an account of 500 tons of Scud-specific rocket fuel and an account of their domestic production of Scud equivalents. In the chemical field an accounting was required of a quantity of mustard gas artillery shells and bombs, and of how much VX nerve agent Iraq had made. In the biological field, a whole new honest declaration from Iraq was demanded because this was an area somewhat like a “black hole,” where they had absolutely lied to us about their biological weapons capability. I told the Iraqis that if they gave an accounting of these weapons in a way that was credible, I would hope to be in a position to tell the Security Council that Iraq was as disarmed as we could get it. The Council could then consider lifting the sanctions.
Aziz accepted this proposal and said Iraq would work with us on it for six weeks and produce the information and materials required, and that I should come back in August 1998 to settle the matter. I made very clear to Aziz that what I proposed to Iraq were the necessary conditions for affirming its disarmament. Whether they would prove to be sufficient conditions depended on the quality of the answers given by Iraq. I authorized the UNSCOM staff to make intensive efforts to get these answers, but within a week it was clear that Iraq was not cooperating. We continued our efforts for 5-6 weeks and then I went to Baghdad.
Iraq Ejects UNSCOM
On the morning of August 3, 1998, Aziz invited me to the Foreign Ministry to discuss the status of this final list of requirements. We met in a slightly darkened room in which the only adornments were a picture of Saddam and an Iraqi flag. Video cameras recorded everything. Aziz requested that I begin. I reminded him that six weeks earlier I had brought a list of UNSCOM requirements. I had ordered our staff to work on these things with all energy. The result was that UNSCOM had been given nothing. The rocket fuel was unaccounted for, as were the production of missiles, mustard gas shells, VX, and above all, the biological weapons. Aziz then terminated the meeting and told me to come back that evening when, he stated rather formally, he would give me the “decision of the leadership of the government of the Republic of Iraq” (obviously meaning Saddam).
That night Aziz told me that it was the decision of the leadership of the government of the Republic of Iraq that Iraq was disarmed and that, therefore, Iraq was unwilling to cooperate any further. Iraq would not permit UNSCOM to conduct any further disarmament inspections, nor would it give UNSCOM any further materials, because, as he had stated, the country was already disarmed. He then accused UNSCOM of being prejudiced against Iraq. He said that it was my sole duty to return to New York and tell the Security Council that Iraq was disarmed.
I responded that I would not do what he demanded of me because I could not do so – because Iraq had refused to give the evidence and materials required which would enable me to do so. This is how Iraq shut down UNSCOM, bringing an end to the business of calling Iraq and its weapons of mass destruction to account.
Iraq reacted this way because it knew that the UNSCOM list was accurate. The information I was asking for involved precisely those weapons which Iraq wished to maintain. Had we got hold of them and destroyed them, Iraq would, effectively, have been disarmed of its weapons of mass destruction. This is precisely what Iraq did not want.
Russia, France, and China
How was it possible for Iraq to get away with this? It was possible because the Russians, in particular, told the Iraqis that Russia would support them at the Security Council. Russia had decided, for its own reasons, that it was more important to use the Iraqi situation as a way of getting back a toehold on the superpower stage. Russia also wanted to be repaid the money it was owed for military equipment it had sent to Iraq. These things were more important to Russia than its duty as a permanent member of the Security Council to ensure that Iraq was disarmed. The Iraqis made their break-out because they knew that they would get political support. One of the basic requirements now is for the United States to make it very clear that the business of old-fashioned Cold War client statism, and patronizing a country like Iraq, is simply not acceptable in today’s world.
France and China are also guilty, to some extent, of not enforcing their own laws. France, like Russia, does not think that Iraq’s weaponry threatens them. It also has deep interests in Iraqi oil and is preserving what it sees as its traditional influence in the Arab world. China sees all proposed multilateral intervention in political situations as holding the prospect that one day this will be applied against them in Tibet or Taiwan. In each case, countries that have been given an extraordinary responsibility to act on behalf of all of us are choosing instead to use their position to further their own national interests rather than carry out their collective responsibility.
There are those who accept that international relations is about political interests rather than about law, and that we should just accept that reality. I believe that international relations can be improved by a combination of law and interests. In the case of Saddam Hussein and his weapons of mass destruction, I fail to understand why anyone would have an interest in the failure of the law that was made against Saddam’s weapons.
The Security Council took an entire year, all of 1999, to decide to create a new organization, UNMOVIC, to succeed UNSCOM. It has been in existence for over six months but has never visited Iraq. The prospect is dim that these new inspectors will be accepted into Iraq in the future.
The Truth About the Sanctions
The regime in Baghdad has become awash with money through the black market and through the progressive elevation of the ceiling up to which Iraq is legally able to pump oil. The condition of ordinary Iraqis remains largely as difficult as it has been for the last ten years, but the regime now does not lack for money to pursue its weapons of mass destruction objectives. The general standard of living or access to medicine and food had declined for a great many ordinary Iraqis due to the sanctions. The assumption that, if sanctions were lifted tomorrow, ordinary Iraqis would see an immediate improvement of life and access to food and medicine is questionable. My expectation would be that Saddam would reason that, now that the sanctions are lifted, his first task would be to rebuild the nation, meaning the military.
In addition, one should look carefully at the impact of the sanctions imposed upon Iraq. Was the ordinary Iraqi suffering because Iraq was prevented from pumping as much oil as it wanted to and that the flow of money into the country and trade was restricted? Clearly, this did have an impact on the people. But there was also the impact of the Iraqi government’s stance on the oil-for-food program, which, initially, it refused to accept. There was also evidence that the Iraqi government controlled the flow of food and medicine to the ordinary Iraqi. UNSCOM inspectors saw warehouses filled with medicine destined for the people which instead appeared to be channeled to the military.
It is a typical pattern in countries such as Iraq that the leadership lives well while the ordinary people suffer the privation of sanctions. Sanctions would be more effective in obliging conformity with the law if they were targeted on the leadership. Sanctions are one of the mechanisms the Security Council needs to review.
Iraq is Back in Business
In the almost two years since my last meeting with Aziz, evidence has repeatedly surfaced to the effect that Iraq is continuing to develop its missile capabilities. Recently Iran tested a long-range missile which, presumably, will spur on Iraq even more to want to acquire long-range missile capabilities.
Furthermore, Iraq has recalled its nuclear weapons design team and has gathered them in one place where they can work again on that objective. Iraq knows how to make an atomic bomb. What was discovered is that its design was actually quite advanced. Yet Iraq has very poor indigenous uranium sources. If it were to acquire the required core of highly enriched uranium or plutonium, it could make a bomb in twelve months.
Iraq has also rebuilt its chemical and biological weapons capabilities following the bombings of 1998. So, to state it simply, Iraq is back in the business of making weapons of mass destruction.
The threat from Iraq is three-fold. First, as it continues to develop weapons of mass destruction, Iraq will certainly threaten other countries in the region. Saddam has made it very clear that his prime enemies are Israel and Iran. Secondly, as Saddam continues to get away with disobeying the law and developing these weapons, the result will be a crumbling of the non-proliferation regimes that have been relatively effective in the world as a whole. The main concern of the treaty partners has been what would happen if someone breaks the rules, and today Saddam Hussein is breaking the rules and the response is proving inadequate. Thirdly, as long as Iraq manufactures the substances it has made in the past, the chances are exceedingly high that these will end up in terrorist hands. Indeed, this is one of the greatest threats.
Biological Weapons Aimed at Israel
In one of my private conversations with Tariq Aziz, he chose to tell me, not as a result of any questioning by me, that Iraq had developed biological weapons – to deal with the Zionist entity. He could not say the word “Israel.” He made very clear that the justification for Iraq’s manufacturing of biological weapons was to deal with the Jews. It was a statement of a genocidal character.
No people and no country should be compelled to tolerate defenselessness or annihilation. The right of self-defense is also listed in the UN Charter as a fundamental right. The peculiar circumstances surrounding Israel and its history have unjustly drawn attention away from Israel’s right to defend itself. I would not criticize the right or desire of any state to defend itself, including Iraq, but weapons of mass destruction are another matter.
What Does the Future Hold?
I would like to think that the solution will be found for Israel – a peace settlement with secure borders – and that then there will be wider progress in the Middle East on an overall reduction in weapons of mass destruction. The step after that is that if the great nuclear weapons states do what they have promised and progressively reduce their nuclear weapons, then there might come a day when the small nuclear weapons states would also come to the table – first Britain and France, then China and Israel, and then India and Pakistan. That is the desirable scenario.
What does the future hold with regard to Iraq? The problem begins with the success of an outlaw in facing down the law. Everything that was done with respect to the required disarmament of Iraq was legal, and without ambiguity. The Security Council has invested all of its political and legal authority in this matter, but Saddam has been determined to oppose these requirements, determined to be an outlaw, a rogue. Iraq will probably continue to ignore the law. The Iraqis have certainly made clear that they will not accept renewed inspection and monitoring arrangements.
This would constitute a crisis in the management of global security. When such an ultimate law-making and law-enforcing authority as the UN Security Council establishes clear requirements and then the subject of those obligations says that it will not obey, in any language, that is a crisis and its implications are far-reaching.
We are not talking about a matter of trade or some common diplomatic disagreement. We are talking about weapons of mass destruction. Iraq is succeeding in ignoring the central authority under international law for the maintenance of international peace and security. This is very serious, and Iraq’s ability to do so is being fundamentally supported by Russia, because of Russia’s deep despair at losing its superpower status since the end of the Cold War. The thinking seems to be that, by supporting Iraq, perhaps Russia can regain some of its status because of the absence of influence on Iraq by the United States. Yet there is an absence here of any moral judgment by Russia about the character of the Saddam regime. This is not what is expected of a permanent member of the Security Council.
There is also the question of United States policy. The U.S. has no equal today in terms of power and authority, but it is not using that power and authority to keep the Russians from siding so unashamedly with Saddam. It would seem that the United States has not made it sufficiently clear to the Russians that what they are doing is incompatible with good relations with the U.S. as it seeks to restore arms control in Iraq.
The remedy is in superpower unity. If the five permanent members of the Security Council were to stand together as they did in 1991-1992 and tell Saddam Hussein that they are not prepared to tolerate his development of these weapons or other aspects of his behavior, then there is a reasonable chance that we could rein in, if not eliminate, this threat. The reverse is certainly true, that when the permanent members of the Security Council do not stand together on an issue such as this, then the outlaw, the rogue, gets away with it.
Saddam is back in business, and it is important to all countries in the region, and most especially to Israel, to bear in mind Tariq Aziz’s justification for Iraq having biological weapons.
The United Nations mechanism, which is anything but perfect, was created at the end of the war against Hitler – a catastrophe which brought about great historic change. We should not wait for another catastrophe. The system that was created in 1945 in San Francisco has the clear and sufficient mandate to say to another outlaw, like Saddam, that he and his activities will not be tolerated. We should use that system and insist that those who have been made responsible for global security fulfill their obligations.
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Ambassador Richard Butler of Australia is former Executive Chairman of UNSCOM, the UN Monitoring Agency on Iraq. He is now Diplomat in Residence at the Council on Foreign Relations, New York. This Jerusalem Letter is based on his presentation in Jerusalem on July 17, 2000, under the auspices of the Jerusalem Center for Public Affairs and the New Atlantic Initiative of the American Enterprise Institute.