Issue No. 41, November 1999
Getting The Inspectors Back Into Iraq
Editor's note: By December 10 it appeared unlikely that a
third competing draft "comprehensive resolution" on re-establishing
inspections in Iraq would be adopted by the Security Council.
Accordingly further rounds can be expected in which event the
French proposal is likely to be given fresh consideration since it
offers a greater likelihood of acceptance by Iraq.
By Douglas Scott
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 They were withdrawn on December 15 by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
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
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.
A New Control
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
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
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
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
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.
Termination of the
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
* 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
* 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.
Scope of the
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
* 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
* Money in the transparent account would be used for the
- 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
- 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
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]".
Assessing The Two Approaches
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
Points of Comparison
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
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
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
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
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
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
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
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
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
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.
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
© 1999 The Acronym Institute.
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