FOM ‘9-11’ TO THE ‘IAQ WA 2003’ This book is a tale of two towers, two wars and two visions. It is concerned with whether the world was changed by the terrorist attacks on the two towers of the World Trade Centre in New York on ‘-’. It explores the two wars after ‘-’–the War on Terrorism and the War on Iraq. It considers the principal international law and international order issues involved in the two Wars. Specific attention is given to the application of international humanitarian and international human rights law in the wars. Among the issues discussed are the relationship between war and the international legal order; how the international debate on the Iraq War was conducted and why; the relationship between moral and international legal debates; the US approach to international law and the international legal system after ‘-’; the post-war situation in Iraq; the consequences of the two wars for the Middle East; and their implications for world order in the twenty-first century. There is also a broader assessment of whether the post- system of international laws and organisations can survive. What vision of international order will emerge in the twenty first century? The book also introduces the idea of ‘complexity theory’ as a possible framework for understanding the events and issues it considers.
FOM ‘9-11’ TO THE ‘IAQ WA 2003’ INTENATIONAL LAW IN AN AGE OF COMPLEXITY
DOMINIC McGOLDRICK, Professor of Public International Law, Director of the International and European Law Unit, Liverpool Law School
OXFORD AND PORTLAND, OREGON 2004
Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services NE Hassalo Street Portland, Oregon - USA © Dominic McGoldrick Dominic McGoldrick has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford Telephone: + () or Fax: + () e-mail:
[email protected] WEBSITE: http//www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN ––– (paperback)
Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain on acid-free paper by Biddles Ltd, www.biddles.co.uk
This book is dedicated to Agnes, April, Jessica, Christina and Isabella
Acknowledgments This book arose out of a series of seminars given under the auspices of the International and European Law Unit, University of Liverpool. I am grateful to my colleagues in the Unit for providing an enriching intellectual atmosphere in which to work. I also presented some of the ideas in the book in seminars at Oxford University, the University of the West of England and the International Institute for Humanitarian Law in San emo. I would like to record my thanks to a number of persons: obert Cryer (Nottingham University) and Therese O’Donnell (Strathclyde University) read and commented on the whole manuscript; Steve Wheatley (Leeds University) commented on the first draft of chapter four; Colin Warbrick (Durham University) commented on the last draft of chapter four; Jessica and Christina McGoldrick commented on various parts and on the design of the front cover; John McGoldrick commented on various parts; Eric Donnelly (International and European Law Unit, University of Liverpool) commented on the whole manuscript and provided invaluable research assistance; Stephen Cooper (University of Liverpool) provided expert technical support; and the library staff at the University of Liverpool provided unfailing support. I am also grateful for the continued encouragement of the McGoldrick and Owen families. The book takes account of information available to me as of February . esponsibility for any errors or omissions, whether simple or complex, is mine alone. Dominic McGoldrick Liverpool February,
Contents Acknowledgments Introduction
War and the International Legal Order
. The Paradoxical International Legal Order of the Twentieth Century . The oles of International Law and of International Lawyers . An Age of Complexity? . ‘-’: A Turning or Tipping Point?
From ‘-’ to the ‘Iraq War ’
. The Attacks on the United States on September . The Iraq War .. Shifting the Focus .. The Debate in the United Kingdom .. ‘New’ Europe and ‘Old’ Europe .. Crisis in NATO .. Worldwide Protests .. International Lawyers .. Operation Iraqi Freedom . The Link Between ‘-’ and the ‘Iraq War ’ .. Making the Link .. The US Perspective . The Legal Categorisation of the Attacks on the US on September . ‘-’ as a Turning or Tipping Point . ‘-’ as a Turning Point for International Law?
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CONTENTS
International Law and the Wars on Terrorism and on Iraq
. . . . . . . .
The ‘War on Terrorism’ The Security Council’s Counter-Terrorism Committee Action by egional Organisations International Instruments and Institutions on Terorrism The Objectives of the War on Terrorism Strategies in the War on Terrorism The ‘Axis of Evil’ The Applicability of International Humanitarian Law to the War on Terror Human ights and Humanitarian Law in the War on Terrorism .. Enemy Detainees .. The Establishment of Military Tribunals .. The Patriot Act .. Extradition to Third States Anti-Terrorist Laws in Other States Monitoring of Human ights in National Emergency Laws International Humanitarian Law and the War on Iraq International Human ights Law and the War on Iraq Interpreting Human ights Law in Conflict Situations
International Law and the Iraq War
.
The Debate on the Iraq War .. Law and Morality Moral and Political Arguments The Legal Arguments on the War on Iraq .. Context .. Legal Bases Legality Based on Security Council esolutions .. Security Council Authorisation .. The Combination of SC esolutions .. esolution .. esolution .. The ‘Material Breach’ Argument .. Automaticity
.
. . . . .
.. .. ..
CONTENTS
..
. .
.
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.. The ‘Second esolution’ .. An Appraisal of the Legality Argument Legality Based on Self-Defence .. Self-Defence and the US’s National Security Strategy: Pre-emptive Self-Defence .. Critics of Pre-emptive Self-Defence .. The UK and Pre-emptive Self-Defence .. The esponses of Other States to the Idea of Pre-emptive Self-Defence .. An Assessment of Pre-emptive Self-Defence Legality Based on Humanitarian Intervention The Legal Argument Against the War in Iraq .. No Security Council Authorisation .. esolution .. The Absence of a Second esolution Conclusion
The United States and the International Legal System
The Value of International Law and International Institutions . State esponsibility and ogue States . The Interpretation of International Law ights: Pre-emptive Self-Defence . The Interpretation of Security Council esolutions . The Global esponsibilities of the United States . Multilateralism and Institutionalism . The ole of Evidence and of International Inspectors .. Public Discussion .. The Evidence of the International Inspectors .. The Evidence of the UK and the US .. The Evaluation of the Evidence .. The Credibility of the UK Evidence: the ‘Sexed Up’ Dossier? .. The Hutton Inquiry .. The Credibility of the US Evidence .. The Importance of Evidence . The International ole of the European Union . Nation States and Foreign Policy . Conclusion
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Winning the Peace: An Iraq For the Iraqis
. . . .
The esponsibilities of the Victors ‘egime Change’—A Post–Saddam Hussein Iraq Security in Iraq The Future of Iraq .. The New Iraq .. The Coalition as Occupying Powers .. SC esolutions on Post-War Iraq .. The ole of the United Nations .. The Attack on the United Nations . Political Organisation in Iraq .. De-Baathification .. The Iraqi Governing Council .. The New Plan for Iraq . Economic Organisation in Iraq .. The Economic Challenges .. Humanitarian elief .. Economic econstruction .. International Economic Aid . Human ights in Iraq .. The United Nations and Human ights .. The UN’s Model of Human ights . Accountability for the Past .. Dealing With The Past .. The Iraqi Special Tribunal .. The Capture of Saddam Hussein .. Prosecutions versus Truth Commissions . Weapons Inspections . Measuring Success in Post-War Iraq . Conclusion
World Order(s) for the Twenty-First Century
. . . . .
Introduction Challenges to the Post- Legal Order Complexity and World Order Terrorism and World Order The Clash of Civilisations .. Islamic Fundamentalism
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. . . . . . . . . . . . .
CONTENTS
xiii
.. The Iraq War as a Clash of Civilisations? .. Terrorism versus Liberalism .. Assessing Islamic Fundamentalism The efah Partisi Case .. The Position under Turkish Law .. The Challenge under the European Convention on Human ights .. Democracy, eligion and the European Convention on Human ights .. A Plurality of Legal Systems .. The Sharia and Democracy .. eligious States and Secular States Change in the Middle East After Iraq, Who is Next? Post-‘-’ Developments in the Middle East Democratisation in the Middle East The Effects of the War on Terrorism and the War on Iraq on International Security The Effects of the War on Terrorism and the War on Iraq on International Legal Order What Future for the United Nations? Did the War on Iraq Harm the War on Terrorism? The Iraq War—The Judgments of History A New American Empire? Did ‘-’ Change the World? Not Another War—The ‘War of Ideas’ The Day the World Shook
DOCUMENTS Appendix I: President Bush’s Address to the United Nations General Assembly in , November Appendix II: The United States President’s State of the Union Address , January Appendix III: The National Security Strategy of the United States of America, September Appendix IV: Iraq’s Weapons of Mass Destruction: The Assessment of the British Government, September
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Appendix V: Presentation of Colin Powell, United States Secretary of State, to the United Nations Security Council, on ‘Iraq—Failing to Disarm’, February Appendix VI: Hans Blix (Chairman of UNSCOM): Briefing to the Security Council, February Appendix VII: The Advice of the United Kingdom Attorney-General, Lord Goldsmith, on ‘The Legal Basis for the Use of Force against Iraq’, March Appendix VIII: Iraq: Legal Basis for the Use of Force, Foreign and Commonwealth Office Memorandum, March Appendix IX: United Kingdom Prime Minister’s Statements on Iraq to the House of Commons on February and March Appendix X: President Bush’s Address to the United Nations General Assembly in , September Appendix XI: emarks by the President Bush at Whitehall Palace, November . Appendix XII: Observations in the eport of the Secretary-General [on Iraq] pursuant to paragraph of resolution () and paragraph of resolution (), December . Appendix XIII: Selected Security Council esolutions on Iraq – Security Council esolution (), August Security Council esolution (), November Security Council esolution (), April Security Council esolution , (), April Security Council esolution (), March Security Council esolution (), December Security Council esolution (), December Security Council esolution (), March Security Council esolution (), April Security Council esolution (), May Security Council esolution (), July
CONTENTS
Security Council esolution (), August Security Council esolution (), October Security Council esolution (), November Appendix XIV: Selected Security Council esolutions on Terrorism – Security Council esolution (), October Security Council esolution (), September Security Council esolution (), September Security Council esolution (), November Security Council esolution (), December Security Council esolution (), January Security Council esolution (), January Security Council esolution (), January Index
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Introduction ,
This book is a tale of two towers, two wars and two visions. The ‘two towers’ are those of the World Trade Centre in New York, destroyed by a terrorist attack on September . The ‘two wars’ are the War on Terrorism and the War on Iraq. The wars are linked inasmuch the War on Iraq was portrayed as part of the War on Terrorism.1 The ‘two visions’ are of the possible international legal and political order for the twenty-first century. This book explores the two wars after ‘-’—the War on Terrorism and the War on Iraq—and their relation to the attacks on ‘-’. Chapter outlines how the relationship between war and the international legal order has evolved. It also introduces the idea of ‘complexity theory’ as a possible framework for understanding the events and issues considered in this book. Chapter considers the pattern of events from the attacks on the US on - to the Iraq War . Chapter addresses the issues of law and morality involved in the War on Terrorism and the War on Iraq. Chapter specifically focuses on the moral and legal debate on the War on Iraq. Chapter considers the systemic consequences on international law doctrine and practice. It gives particular weight to US policy and approaches and how other states have responded to them. Chapter appraises the post-war situation in Iraq in terms of political and economic organisation and human rights. It also assesses the consequences of the status of post-war Iraq for the wider region. Chapter considers the 1 ‘The battle of Iraq is one victory in a war on terror that began on September the th, , and still goes on’ GW Bush, ‘A Crucial Advance in the Campaign against Terror’, televised address from the aircraft carrier USS Abraham Lincoln, Thursday May , . The same idea is evident in P McGeough, Manhattan to Baghdad: Dispatches from the Frontline in the War on Terror (Crows Nest, NSW, Allen & Unwin, ).
F O M ‘ - ’ T O T H E ‘ I A Q WA ’
possible implications of the War on Terrorism and the War on Iraq for world order in the twenty-first century.
The book has number of themes. First, it considers the principal international law and international order issues involved in the War on Terrorism2 and in the War on Iraq in .3 Specific attention is given to the application of international humanitarian and international human rights law in the wars. Secondly, how was the international debate on the Iraq War conducted and why? Thirdly, can the post- system of international laws and organisations survive and in what form? 4 It must be acknowledged that the analysis of some of these matters is necessarily speculative.5 Nevertheless, this book seeks to identify the kind of questions that need to be asked, as much as to proffer answers to them. Hilary Charlesworth has warned that there are dangers in seeking to determine systemic answers in the middle of crises.6 Nonetheless, it is submitted that the issues involved in the War on Terrorism and the War on Iraq are of fundamental importance because they are likely to define the shape of international order for the twenty-first century. Before the War in Iraq, US Senator obert Byrd suggested that: This coming battle, if it materializes, represents a turning point in U.S. foreign policy and possibly a turning point in the recent history of the world.7
2 See H Duffy, esponding to September : The Framework of International Law (London, Interights, ) ; ‘The Attack on the World Trade Centre: Legal esponses’ discussion forum at . 3 See N Lemann, ‘The New World Order’ in ML Sifry and C Cerf, The Iraq War eader: History, Documents, Opinions (New York, Touchstone, ) (hereinafter Iraq War eader). 4 ‘[I]t may well be the extension of the war to Iraq that is most likely to lead to such a crisis of legitimacy’ A Hurrell, ‘“There are no ules” (George W Bush): International Order after September ’ () () International elations at . 5 See K Booth and T Dunne (eds), Worlds in Collision: Terror and the Future of Global Order (Basingstoke, Palgrave/Macmillan, ). 6 H Charlesworth, ‘International Law: A Discipline of Crisis’ () ML . 7 Byrd, ‘Sleepwalking through History’ in Iraq War eader, n above, .
COMMUNITY IN LEGAL THEOY
After the War in Iraq, the UK Foreign Affairs Committee acknowledged that, ‘The war in Iraq . . . changed the international environment in which the “war on terrorism” is being fought’.8 We begin with an examination of how the relationship between war and international legal order has evolved historically and how we might approach the events and issues considered in this book.
8 UK Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism, Tenth eport, Session –, Hansard HC , para ( July ).
1 War and the International Legal Order .
Although the twentieth century has been described as the ‘most violent century in human history’,1 it was also a remarkable one in terms of the legal regulation of war and armed conflict.2 It is in this sense that Martti Koskenniemi has described the role of international law in the period – as being that of The Gentle Civilizer of Nations.3 For the jus ad bellum (law of war), The League of Nations Covenant (), the General Treaty for the enunciation of War () and the United Nations Charter () were the major legal signposts.4 For the jus in bellum (law in war), the Hague Declarations () and Conventions (), the Geneva Conventions () and the two Additional Protocols () highlight the considerable effort that has gone into regulating armed conflicts when they occur.5 As the end of the twentieth century approached, the fall of the Berlin Wall in , the international community’s response to Iraq’s invasion of Kuwait,6 and the disintegration of the Union of Soviet Socialist epublics marked what has been described as the ‘liberal moment’ of hope for international law and a new world order.7 1 William Goulding, Nobel Laureate, cited in E Hobsbawm, Age of Extremes: The History of the Short Twentieth Century – (London, Abacus, ) . 2 See M Howard, The Invention of Peace: eflections on War and International Order (London, Profile Books, ). 3 M Koskenniemi, The Gentle Civilizer of Nations: The ise and Fall of International Law (Cambridge, CUP, ). 4 See C Gray, International Law and the Use of Force (Oxford, OUP, ). 5 See G Best, ‘Peace Conferences and the Century of Total War: The Hague Conference and What Came After’ () () International Affairs ; A oberts and Guelff (eds), Documents on the Laws of War, rd edn (Oxford, OUP, ). 6 See C Greenwood, ‘New World Order or Old? The Invasion of Kuwait and the ule of Law’ () Modern Law Review . 7 See AM Slaughter-Burley, ‘International Law and International elations’ () eceuil des Cours –.
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History had supposedly ‘ended’ in a triumph of liberal order and capitalism.8 For the critics this was all an illusion: The moment of euphoria at the end of the Cold War generated an illusion of harmony, which was soon revealed to be exactly that . . . The one harmonious world paradigm is clearly far too divorced from reality to be a useful guide to the post-war world.9
Nonetheless, it was unarguable that there were many positive developments in the international political and legal order. The US, with its historic commitment to the rule of law—both national and international—was an apparently benign hegemon in a unipolar world.10 That at least was how it saw itself. The feared ‘Clash of Civilisations’, particularly with Muslim fundamentalists, was avoidable and being avoided.11 ‘International Human ights’ had triumphed ideologically and the focus for the new century would be on implementation instead of theory. A century of international law making ended with the adoption in of the Statute of an International Criminal Court (ICC).12 The ICC was to be the first international institution of the new century. On a philosophical level it purported to signify global justice, human rights and the rule of law as universal values. However, in an ominous sign that all was not well in the international legal order, the US was, and has continued to be, a committed opponent of the ICC in the form that it was agreed.13
See F Fukuyama, The End of History and the Last Man (New York, Free Press, ). S Huntingdon, The Clash of Civilizations and the emaking of World Order (New York, Simon and Schuster, ) –. 10 See M Byers and G Nolte (eds), United States Hegemony and the Foundations of International Law (Cambridge, CUP, ); S Smith, ‘The End of the Unipolar Moment? September and the Future of World Order’ () () International elations . 11 See Huntingdon, n above; Z Sadar and MW Davies, Why Do People Hate America? (Duxford, Icon Books, ). The UN General Assembly declared to be the ‘Year of Dialogue Among Civilisations’ UNGA es / ( November ). See Williamson, ‘Dialogue of Civilisations? A Key Priority for the Twenty-First Century’ Conference eport, . (The concept of a “Dialogue among Civilisations’ can thus be seen as an antidote to the thesis of a “Clash of Civilisations” [as expounded by Samuel Huntingdon, n above], para ). 12 () ILM . See A Cassese et al (eds), The ome Statute for an International Criminal Court (Oxford, Oxford University Press, ); L Sadat, The ICC and the Transformation of International Law (Ardsley, NY, Transnational, ). 13 See D McGoldrick, ‘Political and Legal esponses to the ICC’ Part , in D McGoldrick, P owe and E Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Oxford, Hart, ). 8 9
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.
International lawyers have a vested interest in international law, the international system and the international order.14 Increased international laws and more international institutions are seen as an international social good. The inter-state system becomes increasingly regulated and constitutionalised. The anarchic, Hobbesian ‘state of nature’ of sovereign states is constrained. The most advanced example of this is the phenomenon of the European Union. This is an international organisation that is avowedly designed to limit the power of individual sovereign states. It aims to do things differently—the Community way or the Union way. This method embodies order, rules, laws, institutions and courts. It guides its members towards a Kantian notion of perpetual peace and to a political environment in which the idea of conflict between EU Member States is unthinkable.15 The War on Terror and the War on Iraq have raised many challenges for international lawyers. Occasionally, the profession of an international lawyer can appear to be like that of an undertaker. Business is bad if no one is dying. No one wants one until there is a crisis and here was an international crisis of epochal proportions. As Frederic Mégret has commented: The thrust of September from the point of view of the international lawyers is that it creates an irresistible pressure to rise to the event. If one sees international lawyers as suffering from a chronic complex about the unreality of their discipline, then the destruction of the towers, in all its shattering brutality, seems to be the one event they cannot afford to miss, at the risk of otherwise being exiled to the labour camps of utopians and dreamers for decades to come.16
How then would international law and lawyers rise to the challenge of the attacks of -, the War on Terror and the War on Iraq?17 What were the 14 See D Kennedy, ‘The Forgotten Politics Of International Governance’ () European Human ights Law eview . 15 See P Capps, ‘The Kantian Project in Modern International Legal Theory’ () European Journal of International Law . 16 F Mégret, ‘Justice in Times of Violence’ () EJIL at . 17 See P Eden and T O’Donnell (eds), September : A Turning Point In International and Domestic Law? (New York, Transnational, , forthcoming); AM Slaughter-Burley and WW Burke-White, ‘Legal esponses to Terror: An International Constitutional Moment’ () Harvard International Law Journal .
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distinct disciplinary responses that could be offered? What conceptual categorisations such as war, crimes, justice and human rights could be provided to assist in understanding the event and to condition responses to it? International lawyers have had to defend the relevance of international law and efficacy of the international institutional system in the face of severe scrutiny.18 In the wake of the Iraq War , Tom Franck asked ‘what is the proper role of the lawyer?’19 His answer is that they ‘should stand tall for the rule of law’. They ‘should zealously guard their professional integrity for a time when it can again be used in the service of the common weal’.20 ..
As the twentieth century was drawing to a close, social and political scientists were searching for new concepts and frameworks within which to comprehend, understand and explain the operation of global processes in the world. There was a move through theories of chaos and into globalisation.21 It was described as the ‘Post-Cold War’ period or the ‘New World Order’. However, the former merely expresses the idea of being ‘after’ something, rather than being ‘in’ something, while the latter only expresses the idea that something is not the ‘old’, but tells us nothing about the ‘new’. To not even have a name for the period represented a minor identity crisis for the world. On one current view, we are in an age of ‘Global Complexity’: In coupling together the ‘global’ and ‘complexity’, the aim is to show that the former comprises a set of emergent systems possessing properties and patterns that are often far from equilibrium. Complexity emphasizes that there are often diverse networked time-space paths, that there are often massive disproportionalities between causes and effects, and that unpredictable and yet irreversible patterns seem to characterize all social and physical systems.22 18
Domestic lawyers have had analogous challenges. See T Franck, ‘What Happens Now? The United Nations after Iraq’ () American Journal of International Law at . 20 Ibid. 21 See Huntingdon, n above, ; J Stiglitz, Globalisation and its Discontents (London, Allen Lane, ). 22 J Urry, Global Complexity (Cambridge, Polity, ) –. 19
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For Martti Koskenniem: The vision of a single social space of ‘the international’ has been replaced by a fragmented or kaleidoscopic understanding of the world where the new configurations of time and space have completely mixed up what is particular and what universal.23
An important idea within complexity theory is that of ‘tipping points’ or ‘turning points’. As John Urry explains: Tipping points involve three notions: that events and phenomena are contagious, that little causes can have big effects, and that changes can happen in a non-linear way but dramatically at a moment when the system switches.24
The use of complexity theory has grown rapidly since ‘-’.25 Some of the analysis has specifically focused on anti-terrorist strategies.26 . ‘-’:
Were the attacks on the US on September a tipping or turning point? Did the attacks change the world? Did they change the international legal system? If so, when will we know for certain? Where do we go from here? 27 To begin to address these questions we now turn consider the pattern of events from the attacks on the US on ‘-’ through to the ‘Iraq War ’.
23 24
.
Koskenniemi, n above, . Urry, n above, . For his references to September see x, , , and
25 See The Use of Complexity: A Survey of Federal Agencies, Private Foundations, Universities, and Independent Education and esearch Centers (Washington DC, Washington Center for Complexity and Public Policy, ) 26 See E Elliot and L Douglas-Kiel, ‘A Complex Systems Approach for Developing Public Policy toward Terrorism: An Agent-based Approach’ () () Chaos, Solitons & Fractals . 27 See V Lowe, ‘The Iraq Crisis: What Now?’ () International and Comparative Law Quarterly .
2 From ‘9-11’ to the ‘Iraq War 2003’ .
On September (‘-’)1 the US was attacked.2 Two aeroplanes were hijacked and deliberately flown into the twin towers of the World Trade Centre in New York.3 The images of the attacks were almost surreal—more cinematic than realistic. The attacks challenged any rationalist behavioural assumptions. The new millennium had begun with hope and optimism. In an instant, it had been redefined by some of the elements of modernity that had offered such hope—the complexity and technological sophistication of the aeroplane, which had opened the global village, and the normality of international travel for millions of people.4 Through the global media the world watched as the towers collapsed within an hour of the initial attacks.5 The scene resembled that of a ‘nuclear winter’.6 The mushroom cloud over the city evoked memories of the nuclear bombing of Hiroshima and Nagasaki. Some , people from different countries were killed or remain missing. The site of the disaster became known as Ground Zero, the military name given to the area on the ground where a bomb hits.7 Two symbols of Western 1
’.
In the US the number of the month is put before the day, hence Americans refer to ‘-
2 See F Halliday, Two Hours that Shook the World: September , : Causes and Consequences (London, Saqi Books, ); BBC News Team, The Day that Shook the World (London, BBC Consumer Publishing, ); S Talbott and N Chanda (eds), The Age of Terror: America and the World after September (New York, Basic Books Press, ). 3 See SD Murphy, ‘Terrorist Attacks on the World Trade Centre and Pentagon’ () AJIL ; FL Kirgis, ‘Terrorist Attacks on the World Trade Center and the Pentagon’ (and subsequent comments and addendums) (September ) American Society of International Law Insights, . 4 J Gray, Al Qaeda and What It Means To Be Modern (London, Faber, ). 5 See -: A Tribute (Cobham, TAJ Books, ). 6 P McGeough, Manhattan to Baghdad: Dispatches from the Frontline in the War on Terror (Crows Nest, NSW, Allen & Unwin, ) . 7 See S Berkoff ’s poem, equiem for Ground Zero ().
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capitalism and civilisation had been destroyed.8 A third plane was flown into the heart of the world’s superpower—the US Department of Defense’s Pentagon building. A fourth plane, possibly aimed at the Capitol Building in Washington—the political soul of the world’s superpower, crashed in the state of Pennsylvania, killing everyone on board.9 The attacks were perceived as attacks on the Western world in particular.10 There had been a succession of terrorist attacks on US forces, ships and embassies outside of the US in the s—on US marines in Mogadishu in , a truck bombing in iyadh in , the bombing of the Khobar Towers in Dharan in , the bombing of US embassies in East Africa in and the attack on the USS Cole in . However, the attacks on - were the first on US mainland territory by foreign forces since .11 The attackers were from a global terrorist network Al-Qaeda (sometimes spelt Al-Qaida),12 led by Osama Bin Laden.13 As of January , Bin Laden was believed to still be alive. He has released occasional videos through the Arab news organisation, Al-Jazeera.14 The US responded to the ‘-’ attacks with ‘Operation Enduring Freedom’—the use of force against Afghanistan, which had been the principal base for Al-Qaeda.15 The operation was originally entitled ‘Infinite Justice’ but this was changed out of sensitivity to Muslims who believe that only Allah can dispense infinite justice. The US relied on its right of self-defence under Article of the United Nations Charter.16 Other states did not challenge the US’s right of 8 From the twin towers it was possible to see many of the symbols that define America in the eyes of the world as the capital of Western civilisation, eg, the Statue of Liberty, the Chrysler Building and Wall Street. A visitor to Ground Zero poignantly remarked that there was nothing to see. 9 There were also rumours that one of the planes was destined for the UN building in New York. 10 See Editorial, ‘Nous sommes touts américains’ Le Monde ( September ). 11 See N Chomsky, ‘-’ (New York, Seven Stories, ). P Berman, Terror and Liberalism (London, Norton, ) , notes that there was an invasion of Texas in by Pancho Villa. 12 Gunaratna, Inside Al Qaeda: Global Network of Terror (London, Hurst, ). 13 See PL Bergen, Holy War Inc: The Secret World of Osama Bin Laden (New York, Free Press, ). In a video, Osama Bin Laden described the US as ‘the modern world’s symbol of paganism’ cited in P Berman, Terror and Liberalism (London, Norton, ) . 14 ‘Bin Laden Tape Probably Authentic, Says CIA’ The Times ( January ). 15 See McGeough, n above, –. 16 See EPJ Myers and N White, ‘The Twin Towers Attack: Unlimited ight of SelfDefence’ Journal of Conflict and Security Law () ; Y Arai-Takayashi, ‘Shifting Boundaries of the ight of Self-Defence—Appraising the Impact of the September
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self-defence but some questioned its tactics and targeting.17 The US President declared that with the attacks, the terrorists and their supporters had declared war on the US.18 In response a ‘War on Terrorism’ has been undertaken.19 A leading authority on Al-Qaeda has suggested that, ‘The global fight against Al-Qaeda will be the defining conflict of the early st century’.20 President George W Bush portrayed the war on terrorism as a protracted global fight for civilisation: Americans should not expect one battle, but a lengthy campaign unlike any other we have ever seen . . . What is at stake is not just America’s freedom. This is not just America’s fight. This is civilisation’s fight. This is the fight of all those who believe in progress and pluralism, tolerance and freedom.21 . ‘ ’
.. Shifting The Focus In – attention shifted to Iraq and its alleged possession and development of weapons of mass destruction (nuclear, chemical and biological weapons).22 ‘egime change’ and ‘leadership change’23 in Attacks on Jus Ad Bellum’ () International Lawyer () ; J Delbrück, ‘The Fight Against Global Terrorism: Self-Defense or Collective Security as International Police Action? Some Comments on the International Legal Implications of the “War against terrorism” ’ () German Yearbook of International Law . Quaere how long can the right of selfdefence last after the attacks? 17 See M Byers, ‘International Law, Terrorism, the Use of Force and International Law after September’ () ICLQ ; UNSC res () and UNSC (). For a recent appraisal of the situation in Afghanistan see ‘eport of the Security Council Mission to Afghanistan, October to November ’ S//. 18 GW Bush, ‘Address to a Joint Session of Congress and the American People’ September , . 19 See F Mégret, ‘ “War”? Legal Semantics and the Move to Violence’ () EJIL ; A Sofaer, ‘Terrorism as War’ () ASIL Proceedings . 20 Gunaratna, n above, . 21 GW Bush, ‘Address to Joint Session of Congress’, n above. 22 On the US strategy to persuade others that Saddam Hussein needed to be confronted see S ampton and JC Stauber, Weapons of Mass Deception: The Uses of Propaganda in Bush’s War on Iraq (London, Constable and obinson, ) –. On the increasing difficulties of regulating WMD see DP Fidler, ‘Weapons of Mass Destruction and International Law’ (February ), ASIL Insights, . 23 See M ai, War Plan Iraq: Ten easons Against the War on Iraq (London, Verso, ) –.
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Iraq were openly discussed in the US.24 Particularly significant in the political shift was the address by President Bush to the UN General Assembly on September (a year and a day after ‘-’).25 This primarily focused on Iraq.26 The speech clearly turned attention to the UN Security Council (SC) and how it would deal with Iraq. The SC has primary responsibility for maintaining international peace and security.27 The functioning and responsibilities of the SC became a daily subject of political and legal debate.28 In late and early , the passage of SC resolutions appeared to become the principal object of international diplomacy. Even when passed, the correct interpretation of any SC resolutions was bitterly contested.29 .. The Debate in the United Kingdom The Iraq crisis caused major political divisions within states. The UK, led by the Prime Minister, Tony Blair, was the leading ally of the US.30 Historically the UK has sided with the Atlanticists (those who favour maintaining the special US–UK relationship) rather than the Europeans.31 Blair argued that: There cannot be a continual power struggle between Europe and the United States. If that is what others want, we will not be part of it.32
He argued that the UK’s ‘special relationship’ with the US could allow it to exercise a moderating influence on its actions and guide it
24 See ML Sifry and C Cerf (eds), The Iraq War eader: History, Documents, Opinions (New York, Touchstone, ) (hereinafter Iraq War eader) –; LH Lanham, ‘egime Change’ ibid . 25 See Appendix I below. It is interesting to contrast this with his speech to the GA in , see Appendix X below. See generally B Woodward, Bush at War (London, Simon and Schuster, ). 26 . 27 See K Wellens, ‘The UN Security Council and New Threats to the Peace: Back to the Future’ () JCSL (on the notion of peace in the SC). 28 An indication of their importance is that a number of the meetings of the SC were held at the level of Foreign Ministers, rather than Ambassadors. 29 See ch and . below on the interpretation of the SC resolutions on Iraq. 30 See P Stothard, Days: A Month at the Heart of Blair’s War (London, Harper Collins, ); W Shawcross, Allies: The United States, Britain, Europe and the War in Iraq (London, Atlantic, ). See also Appendix I below. 31 See C Longley, Chosen People: The Big Idea that Shapes England and America (London, Hodder & Stoughton, ); C Grant, ‘Blair’s Five Wars’ (October ) Prospect Magazine. 32 Stothard, n above, .
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towards a more multilateralist approach.33 The British Government faced mass political, trade union and popular opposition. There was the largest rebellion in the United Kingdom Parliament by members of the governing party (Labour) in over years.34 One hundred and thirty nine Labour Members of Parliament voted against their own party. The overall vote was two to one in favour of the government’s position on Iraq. Some have argued that the vote in the UK Parliament established an important constitutional precedent: It was the first time Parliament, rather than the government of the day, had decided whether or not the country should go to war. So it turned into an important constitutional precedent: if and when Britain fights another war, ordinary MP’s rather than the government will have the final say.35
Subsequently, there were resignations by obin Cook,36 the Leader of the House of Commons, and Clare Short, the Secretary of State for International Development.37 .. ‘New’ Europe and ‘Old’ Europe The European Union and its applicant members were openly split.38 The Prime Ministers of Spain, Italy, Portugal, Denmark (all existing members), and those of the Czech epublic, Hungary and Poland (applicant members) published an ‘Open Letter’ on January thanking the US and the UK for their leadership on Iraq.39 Meanwhile, France and Germany remained bitterly opposed to any 33 See generally Longley, n above. For a sceptical view of the special relationship see C Gearty, ‘How Did Blair Get Here?’ (2003) () London eview of Books ( February). 34 See House of Commons Debate and votes on Iraq, Hansard HC vol cols – ( March ). 35 J Simpson, The Wars against Saddam: Taking the Hard oad to Baghdad (London, Macmillan, ) . 36 For his resignation speech to the House of Commons see Hansard, HC vol cols – ( March ). In October , obin Cook published a critical account of the actions of the UK government and of the Prime Minister in particular, see Cook Point of Departure (London, Simon & Schuster, ); E MacAskill and Norton-Taylor, ‘How Blair was Puzzled by his Predicament on the Eve of War with Iraq’ The Guardian ( October ). 37 For her resignation speech to the House of Commons see Hansard, HC vol cols – ( May ). 38 ‘Statement on Iraq’ European Council, March ; A Arnull, ‘War Torn’ () EL . 39 .
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war. The states due to join the EU in were broadly supportive of the ‘new’ Europe rather than the ‘old’ Europe of France and Germany.40 The ‘New Europe/ Old Europe’ characterisation was that of the US Secretary of Defense, Donald umsfeld. It hit a raw nerve. John Simpson has suggested that: ‘Old Europe’, in American parlance, meant the Europe which appeased and eventually capitulated to Hitler. Maybe there was a faint accusation of anti-Semitism about it, too.41
France berated EU applicant states for siding with the US. In the face of unbridgeable political divisions on a major matter of foreign and security policy the EU could only maintain the barest figment of formal unity.42 .. Crisis in NATO Not surprisingly, these political divisions within the EU were similarly reflected in NATO.43 There was a major political crisis in NATO in January when the US asked NATO to provide Patriot missile batteries and airborne warning and control system (AWACS) aircraft to protect Turkey in the event of a possible attack from Iraq, in the event of war. The US also requested that forces from other European nations replace US troops, currently committed in the Balkans and around the Mediterranean, to free them for military action in the Gulf. France, Germany and Belgium vetoed the request in the North Atlantic Council essentially because of their opposition to any war on Iraq. They argued that such moves would lock NATO into a ‘logic of war’ at a time when the UN was still seeking a peaceful resolution to the crisis. However, the objections caused what the US described as a ‘crisis of confidence’ in NATO because the idea of imposing conditions on a request for military 40 Further evidence of the new politics in the EU on enlargement was the failure to agree on an EU Constitutional Treaty at the Brussels Summit in December . This was principally because Poland (part of New Europe) refused to agree to German and French (part of Old Europe) demands for a reduction in its voting rights. 41 Simpson, n above, . 42 See the Conclusion of the General Affairs and External elations Council, January ; Extraordinary European Council, Conclusions, February , Doc / ‘We are committed to the United Nations remaining at the centre of international order . . . Force should only be used as a last resort’ . 43 See UK Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism, Tenth eport, Session –, Hansard HC , paras – ( July ).
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assistance from a NATO member struck at the very heart of the key aim of NATO of providing collective defence. The crisis was eventually resolved when the wording of the resolution was amended slightly and NATO’s Military Planning Committee, in which France was not represented, adopted the decision. .. Worldwide Protests Divisions within the UN were widespread and very public. Security Council debates were held in public and relayed around the world. Opposition to war in Iraq was expressed by other international organisations and associations including the non-aligned movement (NAM),44 the Heads of State or Government of the African Union,45 the Arab League,46 the Organisation of the Islamic Conference,47 the Caribbean Community (CAICOM),48 and at a ‘French–African’ summit in Paris. There was popular opposition on a massive scale. In February , there were worldwide anti-war demonstrations by millions of people in more than cities.49 The scale of protest was unprecedented. For example: The peace demonstration in the centre of London on February was the largest gathering of people anywhere in British history, and of one the largest at any time anywhere in the world.50
44 ‘Statement on Iraq’ (on behalf of the member Non-Aligned Movement) Kuala Lumpur Summit, February , . 45 See ‘Declaration of the Central Organ of the Mechanism for Conflict Prevention, Management and esolution of the African Union on the Iraqi Crisis’ Addis Ababa, February , . 46 Sharm El-Sheikh, ( March ). 47 See ‘Communiqué on Iraq’ and ‘Declaration on Palestine’ OIC Summit, Doha, Qatar, March , . 48 ‘Statement on Iraq’ Conference of Heads of Government of the Caribbean Community, Port-of-Spain, February , . 49 Those demonstrations were often referred to in the SC debates, see eg, representative of Malaysia, UN Doc S/PV/ (esumption I) p ( February ). The representative also noted that the SC had ‘never authorized the use of force on the basis of a potential threat of violence’ ibid. 50 Simpson, n above, . See also ai, n above, xiii–.
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.. International Lawyers The opinion of international lawyers was sought on the legality of any military conflict. The Guardian published a letter from leading academic lawyers. They argued that on the basis of the information publicly available, there was no justification under international law for the use of military force against Iraq. A decision to undertake military action in Iraq without proper Security Council authorisation would seriously undermine the international rule of law. Even with that authorisation, serious questions would remain. A lawful war was not necessarily a just, prudent or humanitarian war.51 In a letter to The Australian newspaper, international lawyers stated that war would be illegal.52 The ‘Iraq Crisis’ had become the leading issue on the world agenda. The credibility of the system of international laws and organisations established at the end of the Second World War in the United Nations Charter () was seemingly at stake.53 .. Operation Iraqi Freedom Despite all of the public and institutional opposition, the War on Iraq began on March .54 The US military operation was entitled ‘Operation Iraqi Freedom’.55 The UK, Australia and Poland provided military support. The inter-state conflict lasted only a few weeks.56 As well as the overwhelming military might of the coalition there was an extensive intelligence and communications exercise to ensure that the ‘War would be Illegal’ The Guardian ( March ), and the front page article of that date. J Albrechtsen, ‘Academics Fail Court’ The Australian ( March ); P Slevin, ‘Legality of War is a Matter of Doubt’ Washington Post ( March ). 53 See Editorial, ‘New World Order’ The Guardian ( March ) (The Iraqi dispute could mark a potentially fatal rupture to the UN’s founding principles. Iraq is but a harbinger of things to come. It is a watershed event. A renewed imaginative commitment to international cooperation was the way ahead). 54 amesh (ed), The War We Could Not Stop (London, The Guardian, ); BBC News, The Battle for Iraq (London, BBC Worldwide, ); SD Murphy, ‘Use of Military Force to Disarm Iraq’ () AJIL ; The Iraq War eader, n above. In September , a US and UK airstrike had destroyed a major Iraqi airbase (H-) in Western Iraq. It was ostensibly done as part of the enforcement of the southern no-fly zone, but it was the biggest coalition airstrike in years, and prepared the way for war in . 55 US Dept of Defense, st Century Guide to Operation Iraqi Freedom: The Second Gulf War (Two CD-OM Set, Progressive Management Publishers, ). For the UK it was called operation TELIC. 56 W Murray and H Scales, The Iraq War: A Military History (Cambridge MA, Harvard University Press, ). See also euters Journalists, Days to Baghdad: A Chronicle of 51
52
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Iraqi military did not fight.57 The Iraqi epublican Guard mainly disappeared, although an estimated , were killed. Much of the Iraqi Air Force had inadequate aircraft but even what was good, including over MiG fighters, stayed on the ground. The taking control of Saddam Hussein’s home city of Tikrit on April effectively marked the end of the major military conflict. President Bush announced the end of ‘major combat operations’ on May .58 Military casualties on the coalition side were minimal. Some estimates of Iraqi civilian casualties put the number injured at ,.59 Since May , there have been regular attacks on occupation forces (over US soldiers had been killed as of mid-December ), the Iraqi police and those cooperating with coalition forces. There were also sabotage attacks on fuel pipelines, electricity grids and on water and other supplies.60 In addition there have been major suicide attacks on the UN Headquarters in Baghdad, the Jordanian Embassy in Baghdad and the International ed Cross (ICC) Headquarters in Baghdad. In the first eleven days of February , over persons were killed in three suicide bombings. . -
.. Making the Link Although there was no evidence of any involvement by Iraq in the attacks on the US on September ,61 the situation in Iraq had become the focus of world attention.62 The UK Prime Minister, the Iraq War (London, euters Books, ); NBC News, Operation Iraqi Freedom (iverside, NJ, Andrews McMeel/Simon & Schuster, ). 57 See E Harriman, ‘Treachery: How Iraq Went to War against Saddam’ The Times ( January ). 58 GW Bush, ‘A Crucial Advance in the Campaign against Terror’ televised address from the aircraft carrier USS Abraham Lincoln, Thursday May , . A huge banner of the ship read ‘Mission Accomplished’. Although it was a stage-managed event, the US Administration subsequently made it clear that they had not organised this banner. 59 See A Cawthorne, ‘Iraq War’s , Wounded Civilians Ignored’ euters ( August ). See also Human ights Watch, Hearts and Minds: Post-War Civilian Deaths in Baghdad Caused by US Forces (October ) (alleging failure to conduct proper investigations) . 60 See ch below on the post-war situation in Iraq. 61 See ai, n above, –; ampton and Stauber, n above, –. 62 See Editorial, ‘War and After: A Conflict that Could Not Be Avoided after September ’ The Times ( March ).
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Tony Blair, stated that there was a serious risk that rogue states, like Iraq, were developing and proliferating weapons of mass destruction, and would supply them to terrorist organisations to which it had links, like Al-Qaeda.63 Iraq’s alleged WMD represented a clear and present danger, if not necessarily an imminent one.64 The link back to September was clearly expressed by US President Bush in a televised White House Press Conference on March : The attacks of September the th, showed what the enemies of the United States did with four airplanes. We will not wait to see what terrorists or terrorist states could do with weapons of mass destruction.65
As Charles Krauthammer has noted, neither weapons of mass destruction nor rogue states are unique, but the conjunction of them is.66 September had also challenged the fundamental assumptions of the doctrine of nuclear deterrence and its basis in mutually assured destruction: Throughout the s, it had been assumed that WMD posed no emergency because traditional concepts of deterrence would hold. September revealed the possibility of future WMD-armed enemies being both undeterrable and possibly undetectable. The / suicide bombers were undeterrable; the author of the subsequent anthrax attacks had proven undetectable. The possible alliance of rogue states with such undeterrables and undetectables—and the possible transfer to them of weapons of mass destruction—presents a new strategic situation that demands a new strategic doctrine.67
.. The US Perspective This ‘September ’ link had become an orthodox part of American political commentary and debate.68 Before the UN Security Council, Colin Powell, the US Secretary of State, stated that: 63 See Transcript of interview on Newsnight, February , ; <www.number.gov.uk>. 64 See Iraq’s Weapons of Mass Destruction: the Assessment of the British Government . 65 . 66 C Krauthammer, ‘The Unipolar Moment evisited: America, the Benevolent Empire’ in Iraq War eader, n above, at . North Korea would also fit into this conjunction. See also W Laqueur, The New Terrorism: Fanaticism and the Arms of Mass Destruction (Oxford, OUP, ); L Feinstein and AM Slaughter, ‘A Duty to Prevent’ () () Foreign Affairs . 67 Krauthammer, ibid. 68 See ‘The Impact of September th’ Iraq War eader, n above, –.
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Leaving Saddam Hussein in possession of weapons of mass destruction for a few months or years is not an option—not in a post-September world’.69
One of the preambular paragraphs of the Joint esolution of US Congress ‘To Authorize the Use of United States Armed Forces Against Iraq’ stated that: [T]he attacks on the United States of September , , underscored the gravity of the threat posed by the acquisition of weapons of mass destruction by international terrorist organizations.70
There was strong support from the neo-conservative wing of US political thought for action to be taken against Iraq.71 Among the alleged motivations for the Bush administration to take action against Iraq was control of oil resources that were essential for national security. Iraq has the second largest reserves of oil in the Middle East. Cheap and accessible oil is fundamental to the US economy. US control of Iraq weakens the power of the oil producing countries (OPEC) and lessens any need to depend on ussian oil. Others pointed to US hegemonic ambitions in the Middle East, broader imperial designs72 and the prevention of any ‘peer competitor to the US emerging anywhere in the world by means of unilateral world domination through absolute military sovereignty’.73 A number of the leading members of the US Administration, including Paul Wolfowitz and Donald umsfeld, had been part of the ‘Project For The New American Century’. The aim of the Project was to promote American global leadership.74 On January , the Project had issued an open letter to President Clinton urging him to remove Saddam Hussein from power.75 Additional personal factors UN Doc S/PV/ ( February ). HJ esolution , in Iraq War eader, n above, . 71 See Kagan and W Kristol, ‘What to Do about Iraq’ in Iraq War eader, n above, ; K Pollack, The Threatening Storm: The Case for Invading Iraq (New York, andom House, ) (arguing that deterrence was the riskiest strategy of all as regards Iraq). For alternative views see JJ Mearsheimer and SM Walt, ‘An Unnecessary War’ ( Jan / Feb, ) Foreign Policy; W Pitt and S itter, War on Iraq: What Team Bush Doesn’t Want You to Know (London, Profile Books, ). 72 See DH Dunn, ‘Myths, Motivations and “Misunderestimations”: The Bush egime and Iraq’ () International Affairs . 73 D amsbotham, ‘Operation Overstretch’ () () London eview of Books ( February). 74 See ampton and Stauber, n above, –. 75 The letter is reproduced in Iraq War eader, n above, –. Of the eighteen persons who signed the letter, eleven held posts in the US Administration in March . A September Project letter is also reproduced ibid at –. 69 70
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that were suggested included the unfinished business of the first President Bush in the Gulf War in . The UK Poet Laureate, Andrew Motion, listed the alleged motives in a poem entitled ‘Causa Belli’: elections, money, empire, oil and Dad.76
However, it is perhaps fair to acknowledge that assessing motives, rather than intent, knowledge or interests, is always difficult.77 .
The attacks on the World Trade Centre were categorised by the then UN High Commissioner for Human ights, Mary obinson, as a ‘crime against humanity’.78 This is one of the core crimes within the jurisdiction of the International Criminal Court (ICC), although it has no retrospective jurisdiction.79 The ICC only has jurisdiction over a limited number of crimes.80 Aggression is within its jurisdiction but may only be prosecuted when a definition has been agreed. Terrorist related offences were not included because of objections from some major states including the US and the UK. Their argument was that the offences were better dealt with by national systems operating in cooperation with other states.81 Since , states which had wanted terrorist offences included in the ICC Statute have again pressed their case.82 . ‘-’
In terms of complexity theory the attacks on the US might be considered as a ‘turning point’ or ‘tipping point’.83 In a debate on Iraq, the UK Prime Minister stated that: Cited in Simpson, n above, . See also ai, n above, –. See H Kissinger, Diplomacy (New York, Simon & Schuster, ). 78 See JD Fry, ‘Terrorism as a Crime against Humanity and Genocide: The Backdoor to Universal Jurisdiction’ () University of California, Los Angeles Journal of International Law and Foreign Affairs . 79 Art , ICC Statute. 80 The UK is party to the ICC Statute, but the US and Iraq are not. 81 See N Boister, ‘The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed ICC’ () Journal of Armed Conflict Law () . 82 Eg, Turkey. 83 See ch .–. above. 76 77
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What happened on September has changed the psychology of America—that is clear—but it should have changed the psychology of the world.84
The scale and significance of the attack was such that there is a serious debate as to whether the world after those attacks is different than the one before.85 The world and its order, or disorder, are conceived of differently thereafter. Geoffrey Wheatcroft has described September as ‘a day when consciousness changed’ and as a ‘turning point’.86 The UN Secretary-General, Kofi Annan, described the attacks of September as: an attack on the rule of law—that is, on the very principle that enables nations and individuals to live in peace, by following agreed rules and settling their disputes through agreed procedures.87
The US Ambassador for War Crimes, Pierre-ichard Prosper, commented that: It is clear that September th has changed the world and the way we look at transnational threats and crimes. The tragic events of September th have forced us to re-examine our traditional notions of security, our understanding of our attackers, and our approaches to bringing the perpetrators to justice.88
For some observers, ‘-’ destroyed any ideas of triumphs for liberalism, human rights or capitalism and ended any notions of the ‘End of History’.89 For Steve Smith, one of the implications: [I]s that the events of September shatter the key assumptions of many proponents of globalization that the conveyor belt of economic development and the spread of liberal democracy were in some way
House of Commons, ‘Debate on Iraq’ March , Hansard HC vol col . See J Strawson (ed), Law After Ground Zero (Sydney, Glass House Press, ); M Cox (ed), ‘September and After’ () () International elations; ‘The New Era in World Politics after September ’ (October ) () World Politics; ‘International Law After September ’ () ASIL Proceedings ; ‘International Affairs in the post-September Era’ () () Cambridge eview of International Affairs. 86 G Wheatcroft, ‘Two Years of Gibberish’ (September ) Prospect Magazine. 87 ‘Address by Secretary-General to the UN General Assembly’ ( September ) UN Doc Press elease SG/SM/. 88 ‘Address at The Hague’ Dec . He also dealt with US Military Commissions, the possible use of federal courts, and gave statistics on use of military tribunals. 89 The idea made famous by F Fukuyama’s, The End of History and the Last Man (New York, Free Press, ). 84 85
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inevitable, irreversible and universal. They are not, and notions of a direction, even a teleology, to history are simply wrong.90
For Michael Ignatieff, ‘The question after September is whether the era of human rights has come and gone?’91 For Michael Howard, ‘The era of –, years of intimate cooperation and mutual dependence with like-minded if sometimes cantankerous allies, is now history’.92 Andrew Hurrell was more cautious in his assessment and fitted the attacks into emerging trends: The attacks on September did not usher in a new age. They reinforced powerful tendencies that were already visible in the postcold war order of the s but also exacerbated the tensions and contradictions within that order.93 . ‘-’
Has (or will) ‘-’ and the subsequent Wars on Terror and on Iraq change the international legal system? Vaughan Lowe is more doubtful that anything has changed after September . He asked two questions: Did the September attacks, as ‘private’, non-State acts of violence on a scale previously thought to be the preserve of states, break the bonds of traditional legal analysis? Do we need a radical revision of the conceptual foundations of international law?94
His first response was that it was not clear that there was any need for any new conceptual framework to cope with the war on terrorism. If there was such a need though, the nature of it needed to be clearly spelled out. Secondly, there was nothing in relation to the war on Iraq that suggested the need for a new conceptual framework to deal with it. Ian Brownlie also cautioned against assuming that the recent 90 S Smith, ‘The End of the Unipolar Moment? September and the Future of World Order’ () () International elations at . 91 M Ignatieff, ‘Is the Human ights Era Ending?’ New York Times ( February ). 92 M Howard, ‘The Bush Doctrine: it’s a Brutal World, so Act Brutally’ The Sunday Times ( March ). His comment needs to be understood in the context of previous European history. 93 A Hurrell, ‘“There are no ules” (George W Bush): International Order After September ’ () International elations () at . See also C Brown, ‘The “Fall of the Towers” and International Order’ ibid (the crimes of - will not be seen as of world-historical import). 94 V Lowe, ‘The Iraq Crisis: What Next?’ () ICLQ at .
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dramatic events will affect the survival of the international legal system any more than previous dramatic events have. The analytical process is inevitably a hostage to the facts, which may emerge after some delay, if at all. The problem of the efficacy of the law has long been with us. The system of international law will survive, as it has done before, both terrorism and breaches of international law by powerful states. Similarly, national legal systems usually survive both civil strife and corruption. In the long run, it is the attitude of the actors to the rule of law, and not to the rules as such, which is the source of threat.95
The next chapters examine the attitude of the actors to the rule of law, and to the rules, in the two wars. The first and continuing war after ‘-’, the War on Terrorism, and the second war, the War on Iraq in .
95 I Brownlie, ‘Preface’ to Principles of Public International Law th edn (Oxford, OUP, ).
3 International Law and the Wars on Terrorism and on Iraq . ‘ ’
Since September a ‘War on Terrorism’ has been undertaken.1 It has been led by the US and supported by a coalition of over countries countries.2 It has been backed by SC obligations. SC esolution () imposed extensive obligations on all states to cooperate against terrorism,3 including in the exchange of information.4 It called for suppression of financing of terrorism and for more international cooperation.5 It called on states, inter alia, to deny all forms of financial support for terrorist groups; suppress the provision 1 See C Greenwood, ‘International Law and the “War against Terrorism”’ () International Lawyer ; P owe, ‘esponses to Terror: the New “War”’ () Melbourne Journal of International Law ; J Delbrück, ‘The Fight against Global Terrorism: SelfDefense or Collective Security as International Police Action? Some Comments on the International Legal Implications of the “War against Terrorism”’ () German Yearbook of International Law . For a useful bibliography on the War on Terrorism see . 2 See Falk, The Great Terror War (Northampton, MA, Olive Branch Press/ Interlink, ); ‘Campaign against Terrorism: A Coalition Update’ All members of the UN now report to the SC on their counterterrorist measures, see section 3. below. 3 See M Happold, ‘SC esolution and the Constitution of the United Nations’ () Leiden Journal of International Law (submitting that the resolution was ultra vires because the SC was purporting to legislate by laying down a series of general and abstract rules); PC Szasz ‘The Security Council Starts Legislating’ () AJIL (welcoming esolution ). 4 See M Herman, ‘ September: Legitimizing Intelligence’ () () International elations (noting the shift to non-state-entities, semi-states and rogue states). 5 A selection of resolutions is reproduced in Appendix XIV below. See generally I Bantekas, ‘The International Law of Terrorist Financing’ () AJIL ; A Aust, ‘Counter-Terrorism: A New Approach: The International Convention for the Suppression of Terrorist Financing’ () Max Planck Yearbook of United Nations Law ; M Kantor, ‘Effective Enforcement of Obligations to Suppress the Financing of Terror’ (September ), ASIL Task Force Paper, ; P Eden, ‘International Measures to Prevent and Suppress The Financing Of Terrorism’ in P Eden and T O’Donnell (eds), September : A Turning Point in International and Domestic Law? (New York, Transnational, , forthcoming).
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of safe haven, sustenance or support for terrorists; share information with other governments on any groups practising or planning terrorist acts; cooperate with other governments in the investigation, detection, arrest and prosecution of those involved in such acts; criminalise active and passive assistance for terrorism in domestic laws and bring violators of these laws to justice; and to become party as soon as possible to the relevant international conventions and protocols relating to terrorism. Between September and May , the international community froze over $ million in suspected terrorist funds.6 countries—virtually every member of the international community—have expressed political support for the anti-terrorist financial measures. Over countries have acted to freeze terrorist assets. The US has frozen the assets of terrorist organisations. The UK has taken action to freeze the assets of over groups and individuals. Among the areas in which those groups and individuals have been situated are the West Bank and Gaza, Colombia and South Asia. . ’ -
esolution () created a SC Committee—the CounterTerrorism Committee (CTC)—to monitor implementation on the basis of reports from states.7 In its guidance on state reports, the CTC stated that its aim was to strengthen the infrastructure needed to fight terrorism.8 Every state submitted at least one report and by July , the CTC had received reports.9 The CTC has established cooperation with some international, regional or subregional organisations. By October , the CTC was moving from ‘Stage A’ of its work which was concerned with ensuring that anti-terrorist legislation had been adopted to ‘Stage B’ which was concerned with the real implementation of that legislation. The Chair of the CTC has 6 See E osand, ‘SC esolution , the Counter-Terrorism Committee, and the Fight against Terrorism’ () AJIL . 7 See See C A Ward, ‘Building Capacity to Combat Terrorism’ () JCSL . The G countries have established the Counter-Terrorism Action Group to assist the CTC. The SC has also established a number of sanctions committees, one of which was directed against al-Qaeda, the Taliban and their associates. See UNSC Resolutions () through to resolution (). 8 See . 9 See UN SC es (), S/PV and esumption ; E Katselli and S Shah, ‘September and the UK esponse’ () ICLQ .
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expressed concern that after only two years states were already becoming complacent about terrorism.10 In April , Sir Jeremy Greenstock, the outgoing Chair of the CTC, suggested to the SC that the CTC might perhaps, one day, become a full-time, professional and global body of experts, working with the Council, but following up all avenues which resolution had opened.11 .
Among the regional organisations that have counter terrorism strategies and anti-terrorist activities are Asia–Pacific Economic Cooperation (APEC), Association of South East Asian Nations (ASEAN), Council of Europe, European Union (EU), Financial Action Task Force (FATF), G, International Atomic Energy Agency (IAEA), Interpol— International Criminal Police Organisation (ICPO), North Atlantic Treaty Organisation (NATO), Organisation of American States (OAS), Offshore Group of Banking Supervisors (OGBS), Organisation for the Prohibition of Chemical Weapons (OPCW), Organisation for Security and Co-operation in Europe (OSCE).12 Some of these strategies specifically acknowledge human rights standards. For example, the Committee of Ministers of the Council of Europe has adopted ‘Guidelines on Human ights and the Fight Against Terrorism’.13 .
Pressures from the CTC and the SC clearly had some immediate legal effects. In September , only two states were parties to the major international conventions and protocols relating to terrorism.14 See UN S/PV/ ( October ). UNSC ‘Summaries of Statements at April Security Council Meeting on Terrorism’ Press elease SC/ . 12 See ; ‘OSCE Commitments and International Legal Instruments elating to Terrorism’ (OSCE, July ). 13 See . The Council of Europe has a Counter-Terrorism Task Force. See . 14 The are as follows: Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December ; International Convention 10 11
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By December , the number had risen to over . This pace was almost certainly due to CTC and SC pressures. It has never been possible for the international community to agree on a definition of terrorism.15 A major issue has been whether the actions of those fighting against foreign occupation (eg the Palestinians against Israel) are terroristic.16 The General Assembly’s Sixth Committee is considering a draft Comprehensive Convention on International Terrorism that would include a definition of terrorism.17 One suggestion has been that there may need to be a permanent international counterterrorism organisation similar to the IAEA in Vienna a United Nations counter-terrorism coordinator, who might help to better focus and streamline enhanced activities to counter terrorism on a global basis.18
against the Taking of Hostages, adopted by the General Assembly of the United Nations on December ; International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December ; International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December ; Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on September ; Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December ; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September ; Convention on the Physical Protection of Nuclear Material, signed at Vienna on March ; Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February ; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at ome on March ; Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at ome on March ; Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal on March . 15 See J Dugard, ‘The Problem of the Definition of Terrorism in International Law’ in Eden and O’Donnell n above. The absence of definition is another part of the explanation for terrorist offences not being included in the Statute of the International Criminal Court, see ch . above. 16 See JM Sorel, ‘Some Questions about the Definition of Terrorism and the Fight against its Financing’ () EJIL ; J Klabbers, ‘ebel with a Cause? Terrorists and Humanitarian Law’ ibid . 17 See ; N ostow, ‘Before and After: The Changed UN esponse to Terrorism since September th’ () Cornell International Law Journal . 18 UNSC ‘Security Council Calls on Counter-Terrorism Committee To Help Increase Means Available To States To Combat Terrorism’ UN Doc S/PV/ ( October ) Press elease SC/.
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.
The idea of a ‘War on Terrorism’ is problematic because ‘terrorism’ is an undefined set of tactics and ideologies rather than a defined enemy.19 Terry Jones has asked,‘ “How do you wage war on an abstract noun? It’s rather like bombing murder” ’.20 The UK defined the objective of the War on Terrorism as, ‘the elimination of terrorism as a force in international affairs’.21 Given this objective, and the amorphous nature of the enemy, it is almost by definition a permanent or semi-permanent war.22 As Nicholas Lemann has commented, ‘Traditional wars are fought by military means and have definite endings. Metaphoric wars don’t’.23 Orthodox political and military thought is to the effect that a war on terrorism is, in its own terms, ‘unwinnable’ and ‘unendable’.24 Slavoj Zizek has argued that the War on Terrorism has replaced the Cold War—September constructed the image of Bin Laden, the Islamic fundamentalist, and Al-Qaeda, his invisible network.25 This has given the West in general, and the US in particular, a new and singular ‘enemy’: The figure of the enemy [has undergone] fundamental change: it is no longer the Evil Empire, i.e. another territorial entity but an illegal secret, almost virtual worldwide network in which lawlessness (criminality) coincides with ‘fundamentalist’ ethico-religious fanaticism— 19 See the public debate in ‘The War on Terrorism: Is There an Alternative’ (2002) 24 London eview of Books ( May ). 20 T Jones, ‘Why Grammar Is the First Casualty of War’ Daily Telegraph ( January ). 21 See ‘Defeating International Terrorism: Campaign Objectives’ . See Foreign Policy Aspects of the War against Terrorism, Foreign Affairs Committee, Second eport, Hansard HC ( December ) and the Government’s esponse, Cm (February ). 22 See ‘The Morality of War’ in J Baggini, Making Sense (Oxford, OUP, ) –. 23 N Lemann, ‘The War on What?’ in ML Sifry and C Cerf (eds), The Iraq War eader: History, Documents, Opinions (New York, Touchstone, ) at . 24 ‘The global war on terrorism as presently defined and conducted is strategically unfocused, promises much more than it can deliver, and threatens to dissipate US military and other resources in an endless and hopeless search for absolute security’, S Goldenberg, ‘Bush Besieged by War College’ The Guardian ( January ), citing a US War College study by Jeffrey ecord. See also S ampton and JC Stauber, Weapons of Mass Deception: The Uses of Propaganda in Bush’s War on Iraq (London, Constable and obinson, ) –. 25 See S Zizek, ‘Are We in a War? Do We Have an Enemy?’ () London eview of Books ( May). The eport by Jeffrey ecord, cited in n above, concludes that the war on terror has designated so many fronts and enemies that it is ‘fundamentally unwinnable’.
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and since this entity has no positive legal status, the new configuration entails the end of international law which, at least from the outset of modernity, regulated relations between states.26
John Humphrys has suggested that the language of war was used in error: The phrase ‘war on terror’ may have simple been a rhetorical flourish intended to match the horror of /, but it was what philosophers call a conceptual error. It may now exact a political price: the evaporation of support for the war. There are many who wish terrorism had been spoken of as an evil that must be contained rather than as an enemy who must be defeated.27
The language of ‘war’ can create positive notions of unity and collectivity of purpose. However, it can also have particularly negative connotations for human rights protection. Bruce Ackerman has described the language of the ‘war on terrorism’ as an, ‘an extravagant metaphor blocking responsible thought about a serious problem’. 28 He suggested that one purpose of the language of ‘war’ is that it can create a natural setting for the imposition of ‘restrictions on freedom comparable to those tolerated during the Second World War’.29 In February , Eric Hobsbawm wrote that, ‘The world as a whole has not been at peace since , and it is not at peace now’.30 If there is to be a permanent war on terrorism to preserve peace and security then an Orwellian condition has been reached in which ‘War is Peace’,31 and an ‘emergency’ is ‘normality’.32 If this proves to be the case there will be negative consequences for international human rights protection.33
26
Ibid. J Humphrys, ‘The Biggest Casualty in This Global War on Terror is us’ Sunday Times ( December ). 28 B Ackerman, ‘Don’t Panic’ () () London eview of Books ( February). 29 Ibid. 30 E Hobsbawm, ‘War and Peace in the th Century’ () () London eview of Books ( February). 31 The phrase appears a number of times in George Orwell’s book . 32 In the Iraq War context see ampton and Stauber, n above, – on ‘doublespeak’. 33 See ch .–. below. 27
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.
The War on Terrorism has been multifaceted involving both nonmilitary and military aspects. The non-military aspects include repressive or punitive measures such as criminal litigation, economic sanctions on states or terrorist groups. It also includes positive measures aimed at reducing the purported causes of terrorism, such as increases in development aid, economic assistance, and technical assistance in implementing human rights. In these broad areas there are well-established international principles of jurisdiction and international legal institutions which guide the behaviour of states.34 The coalition against terrorism involves both military and criminal law enforcement aspects supported by extensive international intelligence operations.35 It requires extensive cooperation from states and international organisations and the exercise of multiple levers of power and influence. Joseph Nye has likened the current structure of world power to a three dimensional chessboard—military, economic and transnational relations that cross borders outside of governmental control.36 Each dimension has a critical role to play in the War on Terror. However, while seeking, and often appearing to demand cooperation from other states, the US has rejected and actively opposed the newest international organisation, the ICC.37 Despite US opposition, the ICC was inaugurated on March . None of ‘axis of evil’ states are a party to the ICC Statute.38 The supporters of the ICC see it an instrument of the very kind of global order and cooperation that the coalition against terrorism requires. The UK Foreign Secretary, Jack Straw, noted the apparent inconsistencies in the US position. He warned the US that it should not take a stand on the ICC if it wished to bolster a relationship floundering on differ34 See SD Murphy ‘International Law, the United States, and the Non-military “War” against Terrorism’ () EJIL . 35 See JB Steinberg, M Graham and A Eggers, Building Intelligence to Fight Terrorism, Policy Brief No (New York, Brookings Institute, ). 36 See J Nye, ‘The New ome Meets the New Barbarians’ The Economist ( March ) –; ibid ‘The American National Interest and Global Public Goods’ () International Affairs . 37 See M Weller, ‘UN Security Council Action on the ICC’ () () International Affairs . The US is one of only two members of the UN that are not party to the Convention on the rights of the Child. It is not a party to the ICESC or to the CEDAW. 38 Interestingly, a lot of states that have signed the Statute have not ratified the Chemical Weapons Convention or the major anti-terrorist Conventions.
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ences in the war on terrorism and trade policy.39 US objections to the ICC have to be weighed against the need to preserve the coalition against terrorism.40 The US now appears to accept the reality of the ICC and has focused on gaining agreements with states that will make its citizens immune from its jurisdiction. Considerable effort has been made to explain that the ‘War On Terrorism’ was not a war against Islam.41 The US and the UK often stress that their intervention in Kosovo in was to protect Muslims, as were previous interventions in Somalia and Bosnia. The explanations have often failed to convince.42 In many parts of the world the War on Terrorism is effectively one against Islamic terrorist groups and perceived as such.43 The possibility of inter-state conflict in the War on Terror was vividly illustrated by the military action against Afghanistan in –44 and by the Iraq War in .45 . ‘ ’
In the US warned that, ‘any nation that continues to harbor or support terrorism will be regarded by the US as a hostile regime’.46 The states referred to by the US could be weak or failed states with little executive or administrative authority, such as Tajikistan. Or they could be ‘rogue’ or ‘outlaw’ states. In his State of the Union address in , President Bush identified Iran, Iraq and North Korea as an ‘axis of evil arming to threaten the peace of the world’.47 Statement on March . See D McGoldrick, ‘Political and Legal esponses to the ICC’ in D McGoldrick, P owe and E Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Oxford, Hart, ). 41 See ; K Dalacoura, ‘Violence, September and the Interpretations of Islam’ () () International elations ; ampton and Stauber, n above, –. 42 See P Krugman, ‘A Wilful Ignorance’ New York Times ( October ) (moderate Islamic leaders deeply distrustful of American intentions in war on terrorism). 43 See ‘The Battle for Hearts and Minds’ The Economist ( November ). 44 On continuing terrorist activity in Afghanistan see UNSC eport of the Security Council Mission to Afghanistan, October to November , UN Doc S//, paras –. 45 See ch below. 46 GW Bush, ‘Address to a Joint Session of Congress and the American People’, September , 47 GW Bush, ‘State of the Union Address’, January , (emphasis added), reproduced in Appendix II below. 39 40
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Sheldon ampton and John Stauber comment that this use of language is also misleading: The concept of an ‘axis’, of course, evokes memories of the ‘Axis powers’ of World War II and functions to prepare the public for acceptance of war against nations that purportedly belong to the axis. However, the use of this term is misleading. It suggests an alliance or confederation of states that pose a significant danger precisely because of their common alignment—a menace greater than the sum of the parts. In fact, Iran and Iraq have been bitter adversaries for decades, and there is no pattern of collaboration between North Korea and the other two states.48 .
With respect to the military aspects of the War on Terror, the application of international humanitarian law is complicated.49 On one view, it is not an ‘international armed conflict’ because it is not between two states. The four Geneva Conventions of apply: to all cases of declared war or of any other armed conflict which may arise between two or more of the high contracting Parties. . .’.50
Neither is the War on Terror a ‘non-international armed conflict’ in the terms of Article of Additional Protocol II to the Geneva Conventions of . That would leave the War on Terror to be, at best, regulated by some minimal rules of customary international law.51
ampton and Stauber, n above, –. See JJ Paust, ‘There is no Need to evise the Laws of War in the Light of September th’ () ASIL Task Force Paper ; ‘oundtable: The New War: What ules Apply?’ () () Ethics and International Affairs; GL Neuman, ‘Humanitarian Law and Counterterrorist Force’ () EJIL ; HP Gasser, ‘Acts of Terror, “Terrorism” and International Humanitarian Law’ () International eview of the ed Cross . 50 See Art of each Convention. 51 See A Cassesse, ‘International Law—The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ () EJIL . 48 49
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.
International human rights treaties allow for derogations from certain articles in time of war or other public emergencies.52 However, some of the US actions in responding to terrorism appear to be inconsistent with some of its international human rights and humanitarian obligations.53 We consider a series of problematic areas in turn. .. Enemy Detainees First, its treatment and categorisation of alleged terrorists as ‘enemy detainees’ or ‘illegal combatants’54 and their detention in the US military base in Guantanamo Bay in Cuba so as to avoid the protections of US constitutional law and international human rights law.55 In a rare public statement the International Committee of the ed Cross (ICC) has expressed concern about the legal situation of and the impact of the seemingly open-ended detention on the internees.56 A number of the detained persons were nationals of US allies, including the UK and Australia. In an equally rare expression of judicial criticism, the English Court of Appeal castigated the legal black hole in which those detained were placed and expressed the view that the 52 See Art of the European Convention on Human ights () and Art ICCP (). 53 The US has not derogated from Art of the ICCP (). See Lawyers Committee for Human ights, Imbalance of Powers: How Changes to Law and Policy Since / Erode Human ights and Civil Liberties (New York, March ); K oth, ‘Human ights, The Bush Administration, and the Fight against Terrorism: The Need for a Positive Vision’ in C Brown (ed), Lost Liberties (New York, New Press, ). 54 See JJ Paust, ‘Judicial Power to Determine the Status and ights of Persons Detained without Trial’ () () Harv ILJ ; K Goldman and BD Tittemore, ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and ights under International Humanitarian and Human ights Law’, ASIL Taskforce Paper () ; K oth, ‘The Law of War in the Law on Terror’ () () Foreign Affairs 2. 55 As of December , some persons are detained from countries. inmates have been released. See Decision elating to Detainees at Guantanamo Bay, Cuba, InterAmerican Commission on Human ights, () ILM ; Wilde, ‘The Detainees in Guantanamo Bay and the Concept of Jurisdiction in International Human ights Law’ in Eden and O’Donnell, n above. 56 See ‘Guantanamo Bay: Overview of the ICC’s Work for Internees’ ; NA Lewis, ‘ed Cross Criticizes Indefinite Detention in Guantanamo Bay’ New York Times ( October ).
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US courts might be able to remedy the situation.57 In an extra-judicial statement Lord Steyn, a UK Law Lord, described the situation as a ‘monstrous failure of justice’: The world’s most powerful democracy is detaining hundreds of suspected foot soldiers of the Taliban in a legal black hole at the American naval base at Guantanamo Bay, Cuba, where they await trial on capital charges by military tribunals. As matters stand, courts in America would refuse to hear a prisoner who produces credible medical evidence that he has been tortured. How prisoners have been treated we do not know, although what we do know is not reassuring. The same courts would refuse to hear prisoners who assert that they were not combatants at all or that they were simply soldiers in the Taliban army and knew nothing about Al-Qaeda. The blanket presidential order deprives them of any rights whatsoever. As a lawyer brought up to admire the ideals of American justice, I have to say that I regard this as a monstrous failure of justice. It is a recurring theme in history that in times of war, armed conflict or perceived national danger, even liberal democracies adopt measures infringing human rights in ways that are wholly disproportionate to the crisis . . . The official American website records attempted suicides by prisoners at Guantanamo. Officials were reported as saying that the techniques of interrogation are ‘not quite torture, but as close as you can get’. Ought our government to make plain our condemnation of this utter lawlessness? John Donne gave the context of the question four centuries ago: ‘No man is an Island, entire of itself; every man is a piece of the Continent, a part of the main . . . any man’s death diminishes me, because I am involved in Mankind; And therefore never send to know for whom the bell tolls; it tolls for thee’.58
Negotiations continued between the UK and the US over the UK nationals detained in Guantanamo Bay. A particular problem for the UK is that if they are returned to the UK, there may be insufficient evidence to try them. The alternative of detention without trial under the powers contained in the Anti-Terrorism Crime and Security Act is not possible because those powers do not apply to UK nationals.59 In January , there were suggestions from the US that it would allow the return of the UK nationals to the UK as long as they were ‘man57 See (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [] EWCA Civ , [] UKH . 58 J Steyn, ‘In the Dock of Guantanamo Bay’ (th FA Mann Lecture) The Times ( November ); J Steyn, ‘Guantanamo Bay: The Legal Black Hole’ () ICLQ . 59 See K oth, ‘America’s Guilt: The Prisoners in a Legal Black Hole’ The Times ( November ).
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aged’ by the British security services. This could mean keeping them under surveillance rather than prosecution or detention.60 The return of five of the nine UK nationals was announced on February . Attempts to persuade US courts to exercise protective jurisdiction over detained persons have continued. In March , a US Court of Appeals rejected an application to exercise their jurisdiction from detainees on the basis that they were foreign nationals outside US territory. In November , the US Supreme Court agreed to hear the cases. Petition was granted only on the following question: Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.61
In December 2003, a US Federal Court in New York held that it did have jurisdiction over a US national, Jose Padillo, who had been declared to be an enemy combatant and detained at a US military establishment in Virginia. One the same day, a Federal Court in San Francisco declared that the Administration’s policy of imprisoning some 600 non-citizens captured in the Afghan war at Guantanamo Bay, Cuba, without access to US legal protections was unconstitutional and a violation of international law.62 .. The Establishment of Military Tribunals The US has established military tribunals to try terrorists with no right of appeal.63 Anne Marie Slaughter has noted that military 60 F Gibb, ‘Guantanamo Britons “Home Within Weeks”’ The Times ( January ). The suggestion that the individuals be subject to constant surveillance posed legal and resource difficulties for the UK, see M Evans and D McGrory, ‘Dispute with US Delays elease of Detained Britons’ The Times ( January ). 61 See Shafiq asul et al v George W. Bush, Case No -// ( November ), Al Odah et al v United States, Case No -// ( November ). 62 See NA Lewis and W Glaberson, ‘US Courts eject Detention Policy in Terror Cases’ New York Times ( December ); Editorial, ‘The Padilla Decision’ ibid. In December , the US Supreme Court agreed to determine the legal issue of jurisdiction in the second case. See D Johnston, ‘In Debate on Antiterrorism, The Courts Assert Themselves’ New York Times ( December ). 63 See ‘Instructions for Military Commissions on Trying Aliens Charged with Terrorism’ () AJIL ; JJ Paust, ‘Anti-Terrorism Military Commissions: Courting Illegality’ () () Michigan Journal of International Law ; ‘Agora: Military Commissions’ () AJIL ; F Mégret, ‘Justice in Times of Violence’ () EJIL ; D Vagts, ‘Which Courts Should Try Persons Accused of Terrorism?’ () EJIL ; MA Drumbl,
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tribunals have historically been used to try spies and saboteurs. She argued that that a stronger system of criminal justice would help to prosecute this new form of war. The new realities of war, with undeclared terrorist attacks by stateless attackers, called for refinements in how we think about war and criminal justice.64 For many states, prosecution before an ICC would be a better alternative than the kind of secret military tribunals established by the US. For those states that see the ICC as another human rights instrument, or as another instrument of law that could be used against international terrorists,65 the US position appears inconsistent at worst, and hypocritical at best. .. The Patriot Act A third concern has been the US’s treatment of thousands of terrorist suspects in the US. The United And Strengthening America by Providing Appropriate Tools equired to Intercept and Obstruct Terrorism Act ,66 (often referred to as the USA Patriot Act) granted broad new powers to the US Attorney General to detain individuals suspected of aiding terrorism.67 A number of constitutional challenges to the Patriot Act have been brought.68 It has also been alleged that the Administration is using the Patriot Act in criminal investigations that have little or no connection to terrorism.69
‘Judging the September Terrorist Attack’ () Human ights Quarterly ; Wedgwood, ‘Tribunals and the Events of September ’ (December ) ASIL Insights 64 See AM Slaughter, ‘Tougher than Terror’ ( January ) The American Prospect . For an opposing view see AP ubin, ‘Legal esponse to Terror: An International Criminal Court?’ () Harv ILJ . 65 See D Scheffer, ‘International Court would Help in Fight against Terrorism’ St Louis Post-Dispatch ( February ); G Barthos, ‘Fight Terror with Law, not Fury’ (ICC as a hedge against anarchy) Toronto Star ( January ). 66 Pub. L. –, th Congress, 1st Session, H. . 3162, United States. 67 See JW Whitehead and SH Aden, ‘Forfeiting Enduring Freedom for Homeland Security: A Constitutional Analysis of the USA Patriot Act and the Justice Department’s Anti-Terrorism Initiatives’ () American University Law eview . See also ampton and Stauber, n above, –; LH Lanham, ‘egime Change’ in Iraq War eader, n above, . 68 See Dworkin, ‘Terror & the Attack on Civil Liberties’ () () New York eview of Books ( November). 69 See E Lichtblau, ‘US Uses Terror Law to Pursue Crimes from Drugs to Swindling’ New York Times ( September ).
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.. Extradition to Third States A fourth concern has been the US’s extradition or surrendering of individuals to third states such as Saudi Arabia and Syria where standards of detention are poor and ill-treatment of prisoners is common.70 These actions have tarnished the US’s reputation for international human rights protection. . -
Other states have also taken the opportunity to respond to September by introducing extensive anti-terrorist laws and introducing limitations and restrictions on human rights: In lowering its own human rights standards, the United States has encouraged other governments, though often inadvertently, to lower the standards of human rights around the world.71
For example, the principal legislative response in the UK was the Anti-Terrorism, Crime and Security Act . The powers of detention under the Act were upheld by the Court of Appeal as compatible with the ECH in A, X, and Y v Secretary of State for the Home Department.72 Lord Carlisle favourably reviewed their operation in March 73 and the UK Parliament renewed the powers in the same month. There was political and legal controversy in October when the anti-terrorist powers were used in a non-terrorist context against political protesters in London. However, the use of those powers was upheld in the courts.74 As of December , persons were in indefinite detention in high-security prisons. Two had voluntarily left the UK. Amnesty International has strongly criticised the powers in the Act as inconsistent with the UK’s international human rights treaty obligations. It called the position of the detainees as ‘Kafkaesque’75 and accused the UK of having a 70 See Amnesty International, USA: Deporting for Torture (AI Index AM //, November ). 71 Imbalance of Powers, n above. 72 [] EWCA Civ , [] UKH . See also the decisions of the Special Immigration Appeals Commission on the merits of cases ( October ). 73 . 74 (Gillan) v Commissioner of the Police of the Metropolis and Another, QBD, The Times, November . 75 The classic work of reference is F Kafka, The Trial (; English translation, London, Gollancz, ).
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‘Guantanamo Bay in its own backyard’. It described the system as one of ‘justice perverted’.76 In December , a Committee of Privy Councillors (the Newton Committee) reviewed the Act and recommended ending the powers of detention. Their view was rejected by the UK Home Secretary. He did so on the basis that he was not convinced that the current threat left any option but to use the powers. He also noted that, as of December , the Special Immigration Appeals Commission had reviewed of the cases and that in each case the certification by the Home Secretary had been upheld.77 Also in December the detention powers were criticised by the Archbishop of Canterbury because he feared that their use would alienate moderate Muslims.78 As of December , over Islamic suspects have been arrested in the UK since ‘-’. have been charged with terrorist offences. Another have been charged with offences including fraud and identity theft. face deportation. Only two have been convicted of terrorist offences. Israel has also increased its reliance on the use of force against Palestinian terrorists often relying on identical US arguments relating to the war on terrorism.79 Paul Berman has argued that: The attacks on the United States [on -] brought American interests into play, and America’s defence required Israel not to yield an inch in the face of terrorist bombs—if only to prevent anyone from supposing that America, too, might yield an inch in the face of suicide attacks.80
The ussian Federation has acted similarly in Chechnya. .
After ‘-’ and in response to SC esolution , many states have adopted or extended emergency laws. SC esolution only 76 ‘Justice Perverted under the Anti-Terrorism, Crime and Security Act ’ AI-Index // ( December ) 77 ‘esponse to eport of the Anti-Terrorism, Crime and Security Act eview ’ . 78 C Morgan, ‘Williams Voices Doubt on Terror Detentions’ The Sunday Times ( December ). 79 See FL Kirgis, ‘Israel’s Intensified Military Campaign against Terrorism’ (December ) ASIL Insights Since September the death toll has been Palestinians and Israelis, UN Special Coordinator for the Middle East, ( March ) UN Doc SC/. 80 P Berman, Terror and Liberalism (London, Norton, ) .
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referred to human rights in the context of taking ‘measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts’. However, a Ministerial Declaration attached to SC esolution called on states to protect human rights in the fight on terrorism. The SC’s Counter-Terrorism Committee’s policy on human rights is as follows: the Counter-Terrorism Committee is mandated to monitor the implementation of resolution (). Monitoring performance against other international conventions, including human rights law, is outside the scope of the Counter-Terrorism Committee’s mandate. But we will remain aware of the interaction with human rights concerns, and we will keep ourselves briefed as appropriate. It is, of course, open to other organizations to study States’ reports and take up their content in other forums.81
International human rights organs have reviewed many of the measures adopted by states within their monitoring and reporting procedures. For example, in its Concluding Observations on states’ reports, the Human ights Committee (HC) (the body that monitors the International Covenant on Civil and Political ights) has stressed that, ‘The State party is under an obligation to ensure that counter-terrorism measures taken under Security Council resolution () are in full conformity with the Covenant’.82 In June , Professor Nigel odley, a member of the HC, gave a briefing to the Security Council’s Counter-Terrorism Committee on ‘Human ights and Counter-Terrorism Measures’. He stated that: Far from being an unwelcome fetter on the combat against terrorism, respect for human rights is an integral component of an effective universal counter-terrorist strategy.
The same general line of the HC has been taken by the UN Human ights Commission and by other international human rights treaty organs.83 However, there is no doubt that the multifaceted responses of states in the War on Terrorism will strain established international 81 ‘Statement by Chairman of CTC in his briefing to the Security Council’ January , UN Doc S/PV/. 82 CCP/C/CO//MDA, para (Moldova). 83 See S Von Schorlemer, ‘Human ights: Substantive and Institutional Implications of the War against Terrorism’ () EJIL .
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human rights norms and interpretations.84 In December , the International Bar Association’s Task Force on Terrorism published a set of universal standards and principles governing the fight against international terrorism.85 Bruce Ackerman has argued that, ‘a carefully controlled state of emergency may be the best hope for civil liberties in the st century’.86 .
It is clear that international humanitarian law (IHL) applied to the military conflict with Iraq in .87 As with the Gulf conflict in , there was an international armed conflict.88 IHL is indirectly aimed at human rights protection but there remain a lot of misconceptions about the nature of international humanitarian law and the protection it offers.89 The applicable laws are generally permissive and extend to states a wide discretion in the methods and means of warfare.90 However, short conflicts in Iraq (), Kosovo () and Afghanistan (–), with relatively low military and civilian casualties (or at least their visibility), and partly conducted with precision, laser-guided weapons bombs, have created an unreal sense of the virtual war.91 Political and diplomatic concerns and the immediacy of modern media (the ‘CNN’ effect) have made states hypersen84 For an excellent analysis see J Fitzpatrick, ‘Speaking Law to Power: The War against Terrorism and Human ights’ () EJIL . 85 See International Terrorism: Legal Challenges and esponses . 86 Ackerman, n above. 87 Among the early issues that arose was that of the showing on television of images of captured prisoners of war, see Art of the Third Geneva Convention. 88 See P owe (ed), The Gulf War – in International and English Law (London, outledge, ); H Burkhalter, ‘Geneva Conventions’ ASIL oundtable on ‘Old ules, New Threats’ () . 89 See A Dworkin, ‘Which Way to War’ The Guardian ( February ), G, at –. He cited the view of Professor Greenwood to the effect that claims that US war practice is outside the law are ‘grossly exaggerated’ and that ‘there are no grounds for thinking that US tactics in Iraq will depart in any major way from generally accepted interpretations of the law’. 90 See C Jochnick and Normand, ‘The Legitimization of Violence: A Critical History of the Laws of War’ () () Harvard ILJ ; APV ogers, Law On The Battlefield nd edn, (Manchester, Manchester University Press, ). 91 See M Ignatieff, Virtual War: Kosovo and Beyond (London, Chatto and Windus, ). It is estimated that % of smart weapons miss because their guidance systems fail. The US acknowledged that it used napalm bombs in Iraq in , see A Buncombe, ‘U.S. Admits It Used Napalm Bombs In Iraq’ The Independent ( August ).
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sitive to civilian casualties.92 Parts of the War on Iraq were televised in real time to worldwide audiences. Live news makes it difficult for journalists and newscasters to address historical context and political sensitivities. Moreover, the televised war, of course, was a sanitised version. Horrific injuries were not shown.93 The Arab news channel, Al-Jazeera, did broadcast more of the actual destruction and death involved in the war.94 In Doha, the US built a $. million press centre. journalists were ‘embedded’ with coalition forces.95 John Simpson cited a figure of , journalists reporting the Iraq War.96 He also noted the anxieties of John Donvan of ABC News: [T]he networks were so enthusiastic about the prospect of covering the war in this excitingly close-up fashion that it coloured their entire attitude to the war itself. They wanted it to take place, because they knew how effective the reporting of it would be, and how large the audiences would be. And that meant . . . that they largely ignored the anti-war protests in the United States and around the world as freakish and irrelevant.97
The effect of this intense international media presence is that military targeting is being conditioned firstly by legal considerations but secondly by powerful political considerations. Nonetheless, in relation to Kosovo, NATO forces were accused by a group of law professors and NGOs of multiple violations in human rights law in their bombing campaign. They instigated a complaint to the International Criminal Tribunal for the Former Yugoslavia (ICTY) Prosecutor. The Prosecutor examined whether there was sufficient evidence to indict any of those who took part in the NATO action in Kosovo. On the basis of a report by an expert committee she decided that there ‘was no basis for opening an investigation into any of those allegations or into other incidents related to NATO 92 See N J Wheeler, ‘Dying for Enduring Freedom: Accepting esponsibilities for Civilian Casualties in the War against Terrorism’ () () International elations . 93 ampton and Stauber, n above, –. 94 Ibid –. 95 See amesh (ed), The War We Could Not Stop (London, The Guardian, ); B Katovsky and T Carlson (eds), Embedded: The Media at War in Iraq (Guilford, CT, Lyons Press, ); J Simpson, The Wars against Saddam: Taking the Hard oad to Baghdad (London, Macmillan, ) –. 96 Ramesh, ibid at . Sixteen journalists were killed, some in the conflict, some by friendly fire and some in accidents, ibid, at for the list. 97 Ibid at .
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bombing’.98 Similar criticisms have been made of the campaigns in Afghanistan and in Iraq. In January , a group of more than legal experts stated in a letter to President Bush that violations of international humanitarian law had been committed in Kosovo and Afghanistan and warned against violations in Iraq. Among the examples cited were indiscriminate methods of attack, the use of cluster bombs, fuel-air explosives, and attacks on electricity supplies and dams.99 A number of communications concerning the Iraq War were sent to the ICC Prosecutor in . The Prosecutor’s response was as follows: Thirty-eight communications express the view that a crime of aggression took place in the context of the war in Iraq. The Court cannot exercise jurisdiction over alleged crimes of aggression until the crime is defined and the conditions for the exercise of jurisdiction are set out. The Assembly of States Parties of the International Criminal Court may adopt such a provision at a review conference to be convened in . Thus, the alleged crime to which these communications refer does not fall within the jurisdiction of the Court.100 .
Given the relatively advanced corpus of established international human rights law through the major UN treaties, it might be thought that the applicability of this law would be relatively straightforward issue. In fact, it is not so simple. One argument is that no ‘human rights’ law applies where there is an armed conflict. ather, ‘international humanitarian law’ (IHL) applies. Israel has argued this in the West Bank.101 The US has argued it in relation to in Afghanistan and, 98 See ; ‘Final eport of the Prosecutor by the Committee Established to eview the NATO Bombing Campaign Against the FY’ ( June ), () ILM . For comment see WJ Fenrick, ‘Targeting and Proportionality During the NATO Bombing Campaign Against Yugoslavia’ () EJIL ; P Benvenuti, ‘The ICTY Prosecutor and the eview of the NATO Bombing Campaign Against the Federal epublic of Yugoslavia’ ibid ; M Bothe, ‘The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on the eport to the Prosecutor of the ICTY’ ibid . 99 See ‘Lawyers Warn Bush that Attack on Iraq Could Lead to War Crimes Prosecutions’ AFX European Focus, New York, January . Some of these matters were considered in the Prosecutors’ eport, n above. 100 ‘Communications eceived by the Office of the Prosecutor’ ICC, Press elease, July , . 101 See O Ben-Naftali and Y Shany, ‘Living in Denial: The Application of Human ights in the Occupied Territories’ () () Israel Law Review.
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by extension, to persons detained by it in Cuba. This approach has been rejected by bodies like Human ights Committee (the body which monitors the ICCP). It takes the view that if a state has effective control then the human rights treaties apply: [T]he Committee emphasizes that the applicability of the rules of humanitarian law does not by itself impede the application of the Covenant or the accountability of the state under article , paragraph , for the actions of its authorities. The Committee is therefore of the view that, under the circumstances, the Covenant must be held applicable to the occupied territories and those areas of Southern Lebanon and West Bekaa where Israel exercises effective control.102
Some human rights treaties, like the International Covenant on Civil and Political ights (ICCP) and the European Convention on Human ights (ECH), have jurisdictional provisions that limit their application. For example, under () ICCP: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction (se trouvant sur leur territoire et relevant de leur jurisdiction) the rights recognized in the present Covenant, without distinction of any kind, ...
Article ECH provides that: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms . . . in this Convention.
The meaning of the phrase ‘within its jurisdiction’ arose in the Bankovic case before the European Court of Human ights.103 The applicants complained about the bombing of a television and radio building in Belgrade on April by NATO forces. The Court was satisfied that: [F]rom the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law 102 See UN Doc CCP/C//Add , para . Israel has had the same dispute with the CED Committee about the applicability of human rights conventions in an armed conflict situation. The Committee follows the ‘effective control’ approach, Concluding observations of the CED, UN Doc CED/C//Add , CED/C/S, , (). See generally D McGoldrick, ‘The Extra-territorial Application of the International Covenant on Civil and Political ights’ in M Kamminga and F Coomans (eds), The Extra-territorial Application of Human ights Treaties (Antwerp, Intersentia, ). 103 Bankovic and Others v Belgium and other NATO States (No./), ECtH December , () ILM . See M Happold, ‘Bankovic v Belgium and the Territorial Scope of the European Convention on Human ights’ () () Human ights Law eview .
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does not exclude a State’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States.104
For the Court the responsibility of a contracting state was exceptionally capable of being engaged when as a consequence of military action (lawful or unlawful) it exercised effective control of an area outside its national territory.105 ecognition of the exercise of extraterritorial jurisdiction by a contracting state was exceptional: the Court has given such recognition when the respondent state: [T]hrough the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.106
Given that the analysis in Bankovic was founded on principles of public international law, relied on state practice which would be equally relevant to the interpretation of the ICCP, that the Court did not find sufficient support for an alternative interpretation in the text of other international human rights instruments or the jurisprudence under them,107 and that the decision was unanimous,108 it would be surprising if the interpretation of the ICCP was different. In Bankovic the Court found that state practice in the application of the ECH since its ratification was indicative of a lack of any apprehension on the part of the contracting states of their extra-territorial responsibility in contexts similar to the case under consideration. In a number of military missions involving contracting states acting extra-territorially (inter alia, in the Gulf, in Bosnia and Herzegovina and in the FY), no State had indicated a belief that its extraBankovic (n 103) para (emphasis added). Ibid para , as exemplified by Loizidou v Turkey, ECtH, March , preliminary objections, () EH , eports of Judgments and Decisions –VI, No. () EH ; Cyprus v Turkey (No./) ECtH, May () EH (both cases concerning Turkish control of Northern Cyprus). Turkey paid compensation to Loizidou only in December , see M Theodoulou, ‘Payout for Cypriot efugee Brings Turkey Closer to Europe’ The Times ( December ). 106 Bankovic (n ), para . 107 Ibid para . 108 Cf Al-Adsani v UK, (No /), ECtH, November , () EH , on state immunity preventing a remedy for alleged victims of torture, where the decision on Art was by a – majority. 104 105
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territorial actions involved an exercise of jurisdiction within the meaning of Article ECH by making a derogation pursuant to Article of the Convention.109 Where the state concerned was also a party to the ICCP then that practice on derogations is equally relevant for the interpretation of the ICCP. The consequence of the Bankovic approach is that applicants could not complain to the European Court of Human ights about a bombing campaign on Iraq in or other aspects of military attacks. Once prisoners of war were taken and other persons were detained then, in principle, the ECH came into play on the basis that those persons were within the effective control of the detaining state (assuming it is a state party to the ECH).110 The UK submission in Bankovic appeared to concede this point. In relation to a post-conflict situation in Iraq, this was covered by the reference to ‘effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation’. .
Whatever human rights law applies in an armed conflict situation, whether based on treaty or customary international law, it still has to be interpreted. The armed conflict context does make a difference because the interpretation of the human rights law may be conducted through the prism of IHL. The International Court of Justice made this clear in its opinion on the Legality of the Threat or Use of Nuclear Weapons in : Some of the proponents of the illegality of the use of nuclear weapons have argued that such use would violate the right to life as guaranteed in Article of the International Covenant on Civil and Political ights, as well as in certain regional instruments for the protection of human rights. Article , paragraph , of the International Covenant provides as follows: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” In reply, others contended that the International Covenant on Civil and Political ights made no mention of war or weapons, and it had Bankovic (n ), para . See also the decision of the European Court of Human ights in Ocalan v Turkey (No /) ECtH, December . (Ocalan was arrested in Kenya by Turkish state agents acting in cooperation with Kenyan authorities). 109 110
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never been envisaged that the legality of nuclear weapons was regulated by that instrument. It was suggested that the Covenant was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict. The Court observes that the protection of the International Covenant of Civil and Political ights does not cease in times of war, except by operation of Article of the Covenant whereby certain provisions may be derogated from in a time of national emergency. espect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. 111
IHL thus provides the lex specialis for determining whether the right to life is violated.112 The same approach might well apply to other human rights standards. The next chapter examines in greater detail the moral and legal debates relating to the second war after ‘-’—the War on Iraq.
The Legality of the Threat or Use of Nuclear Weapons, ICJ ep () , paras –. For criticism of the ICJ’s narrow approach see V Gowlland-Debbas, ‘The ight to Life and Genocide: the Court and International Public Policy’ in L Boisson De Chazournes and P Sands (eds), International Law, the ICJ and Nuclear Weapons (Cambridge, CUP, ) . 111 112
4 International Law and the Iraq War 2003 The arguments for and against the war in Iraq were extensively canvassed in SC debates, international fora, international and national public debate and in legal challenges.1 As well as raising the narrow issue of the legality of the Iraq war, the debate has a wider compass and significance The military action against Iraq in spring is one of the few events of the UN Charter period holding the potential for fundamental transformation, or possibly even destruction, of the system of law governing the use of force that had evolved during the twentieth century.2 .
.. Law and Morality An interesting feature of the political debate on the Iraqi crisis was the prominence assumed by issues of legitimacy and by the ‘moral’ case for war.3 Doctrines of ‘just war’ have been part of international law in earlier centuries but have long fallen out of favour.4 The concept has not been considered to be part of modern international law 1 See G Farebrother and N Kollerstrom (eds), The Case against War (Hailsham, The Legal Inquiry Steering Group, ); Seventh eport from the UK’s Foreign Affairs Committee (FAC), Session –, Foreign Policy Aspects of the War against Terrorism—‘War against Terrorism’ HC ( June ); Second eport from the FAC, Session –, Foreign Policy Aspects of the War against Terrorism, HC ( December ); Ninth eport, FAC, Session –, The Decision to go to War in Iraq, HC –I ( July ). 2 LF Damrosch and BH Oxman, ‘Editor’s Introduction’ () AJIL . 3 ‘on Iraq the right has no moral clarity and the left has lost its moral compass’, M Berube, ‘The Peace Puzzle’ in ML Sifry and C Cerf (eds), The Iraq War eader: History, Documents, Opinions (New York, Touchstone, ) . 4 See J von Elbe, ‘The Evolution of the Concept of Just War in International Law’ () AJIL ; S Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law (Oxford, OUP, ).
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though it has increasingly been invoked on the legal debates on intervention in Kosovo in and in Sierra Leone in .5 However, the idea of ‘just war’ continues to be discussed by other disciplines and has become an important part of a national and international political debate.6 This is what happened with the Iraq crisis in . In broad, and admittedly simplified terms, the possible law/morality axes of a military conflict with Iraq were as follows: (i) Lawful and morally justified. This was the position of the US7 and the UK. Tony Blair, the UK Prime Minister, stated that, ‘The moral case against war has a moral answer: it is the moral case for removing Saddam Hussein’.8 Jack Straw, the UK Foreign Secretary, made the moral case for war in the following terms: So small evils went unchecked, tyrants became emboldened, then greater evils were unleashed. At each stage good men and women said ‘not now—wait, the evil is not big enough to challenge’. Then, before their eyes, the evil became too big to challenge. We had slipped down a slope, never noticing how far we had gone until it was too late. We owe it to our history as well as to our future not to make the same mistake again.9
The statement seems to allude to the appeasement of Adolf Hitler by Neville Chamberlain in :10 Those who were trying to avoid this war called for containment, a throwback to the strategies of the Cold War when much of the world divided into two camps and what was thought to go on within the borders of any country was tolerated in the belief that the East–West 5 See MJ Glennon, ‘The New Interventionism: The Search for a Just International Law’ (May/June, ) Foreign Affairs ; JL Holzgrefe and O Keohane (eds), Humanitarian Intervention: Ethical Legal and Political Dilemmas (Cambridge, CUP, ). 6 ‘eiterated over time, our arguments and judgments shape what I want to call the moral relativity of war, that is, all those experiences of which moral language is descriptive or within which it is necessarily employed’, M Waltzer, Just and Unjust Wars (London, Allen Lane, ) . See also I Holliday, ‘Ethics of Intervention: Just War Theory and the Challenge of the st Century’ () International elations ; LH Gelb and JA osenthal, ‘The ise of Ethics in Foreign Policy’ () () Foreign Affairs . 7 See Wedgwood, ‘The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defence’ () AJIL . 8 Speech to the Labour Party Conference, February , cited in ‘Unpopularity is the Price of Leadership’ The Guardian ( February ). 9 House of Commons, ‘Debate on Iraq’ Hansard HC vol col ( February ). 10 See E Hobsbawm, Age of Extremes: The History of the Short Twentieth Century – (London, Abacus, ) –, –.
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balance kept an effective lock on it. Those who wanted war cried appeasement, harking back to the global lack of will that allowed Adolf Hitler to march into World War II, the clash from which we emerged into half a century of manageable twilight that came to be known as the Cold War. Their equation was simple: Saddam Hussein equals Adolf Hitler.11
(ii) Possibly lawful but not morally justified. This was seemingly the position of the Pope, the Head of the oman Catholic Church. In March , the Holy See maintained that: [T]here are still peaceful avenues within the context of the vast patrimony of international law and institutions which exist for that purpose. A decision regarding the use of military force can only be taken within the framework of the United Nations . . . [and that] . . . to resort to force would not be just.12
(iii) Unlawful but morally justified. Some states and some international lawyers took this position in respect of the use of force against Yugoslavia in Kosovo in .13 The SC would not authorise the use of force in Kosovo, but nor would it condemn it.14 It subsequently established a UN Administration in Kosovo,15 although many states made it quite clear 11 P McGeough, Manhattan to Baghdad: Dispatches from the Frontline in the War on Terror (Crows Nest, NSW, Allen & Unwin, ) . 12 UN Doc S/PV/ (esumption I) pp – (Archbishop Martino); 13 See A Cassese, ‘E iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ () EJIL ; A Cassese, ‘International Law—A Follow-up: Forcible Humanitarian Countermeasures and opinio necessitatis’ () EJIL ; N Krisch, ‘International Law Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo’ () EJIL (); DH Joyner, ‘The Kosovo Intervention: Legal Analysis and a More Persuasive Paradigm’ () EJIL ; ‘NATO’s Kosovo Intervention’ () AJIL ; M Koskenniemi, ‘“The Lady Doth Protest Too Much” Kosovo, and the Turn To Ethics In International Law’ () ML (‘Intervention remains a political act no matter how much it is dressed up in the language of moral compulsion or legal technique’ at ); A Orford, ‘Muscular Humanitarianism: eading the Narrative of the New Interventionism’ () EJIL . 14 The Independent International Commission on Kosovo found that the action was ‘illegal, but legitimate’ The Kosovo eport: Conflict, International esponse, Lessons Learned () –. To similar effect was the view of the UK House of Common’s Foreign Affairs Committee, Session –, Fourth eport, Kosovo HC –I paras – ( June ). See also Falk, ‘What Future for the UN Charter System of War Prevention?’ () AJIL . 15 See SC UN es (); UNSC ‘eport of the SG on the UN Interim Administration in Kosovo’ ( June ) UN Doc SC// .
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that this was without prejudice to their views on the legality of the Kosovo intervention. It has been suggested that Kosovo demonstrated deficiencies in the SC system and that international law needed be developed so that the morally justified action was lawful.16 (iii) Unlawful and not morally justified. This was the position of many states and of the various anti-war campaigners. It also appeared to be the position of the Archbishop of Canterbury, the Head of the Church of England.17 Public statements at the time of the conflict focussed on moral doubts.18 However, in August , the Archbishop was amongst church leaders who told the UK Prime Minister that an attack on Iraq was both ‘immoral and illegal’.19 In a lecture at oyal Institute for International Affairs in October , the Archbishop’s view was more fully and clearly stated. He rejected the use of the ‘just war’ theory to justify the American and British case for going to war with Iraq. The case for pre-emptive action could not be accommodated easily within the traditional Christian tradition. He argued that America had lost the power of self-criticism and become trapped in a ‘self-referential morality’: But, granting the weakness of international legal institutions and the practical difficulties entailed in activating them credibly, it is important to allow that no government can simply be judge in its own case in this respect . . . Indeed, this issue takes us back to one of the absolute fundamentals of just war theory: violence is not to be undertaken by private persons. If a state or administration acts without due and visible attention to agreed international process, it acts in a way analogous to a private person. It purports to be judge of its own interest.20
The Archbishop accepted the argument that the present UN Security Council framework was inadequate and called for a standing com16 See AM Slaughter, ‘Good easons for Going Around the U.N.’ New York Times ( March ) (US war against Iraq may be illegal but could still be legitimate). 17 ‘It is our considered view that an attack on Iraq would be both immoral and illegal’, Archbishop Williams and others, ‘Christian Declaration’ ( July ) cited in M ai, War Plan Iraq: Ten easons Against the War on Iraq (London, Verso, ) xiii. 18 ‘The events of recent days show that doubts still persist about the moral legitimacy as well as the unpredictable humanitarian consequences of a war with Iraq’, Joint Statement of The Archbishop of Canterbury and the Archbishop of Westminster, February . See also the academic statements, ch . . above. 19 Cited in Gledhill, ‘Attack on Iraq “Cannot Be Defended as Just War”’ The Times ( October ). 20 Ibid.
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mission on security within the UN that could advise and recommend UN intervention where necessary. .. Moral and Political Arguments The Security Council is composed of political actors who have power to act in a legal capacity. It can impose binding legal obligations on states but this is technically different from legislating.21 What is most curious is that within the debate on Iraq, the SC became the litmus test of international morality. Vaughan Lowe has pointed to the difference between moral and political arguments and the tendency to conflate them: The difference is crucial. Moral arguments can be universalised. Political arguments cannot. ooting the development of international law in the soil of common morality is necessary in order to sustain its claim to legitimacy; the rooting of international law in the exigencies of national political objectives, on the other hand, is one of the defining objectives of imperialism. One of the central problems of the current Iraq crisis is, it seems to me, precisely this conflation of moral and political argument.22
One argument that was often made was that moral legitimacy depended on legality in terms of Security Council authorisation.23 For an organ that is the locus classicus of political and diplomatic power this seemed strange indeed.24 uth Wedgwood has commented that: Legitimacy—and legality—represent a complex cultural process not confined to the Council Chamber.25
That is perfectly true but Security Council legitimation is regarded as important by all states when they want it.
21 Cf P Szasz, ‘The Security Council Starts Legislating’ () AJIL ; M Happold, ‘Security Council esolution and the Constitution of the United Nations’ () Leiden JIL . 22 V Lowe, ‘The Iraq Crisis: What Next?’ () ICLQ at . See also N White and EPJ Myjer, ‘The Use of Force against Iraq’ () JCSL . 23 Cf HLA Hart, The Concept of Law, nd edn (Oxford, Clarendon Press, ) –. 24 See I Johnstone, ‘Security Council Deliberations: The Power of the Better Argument’ () EJIL . 25 Wedgwood, ‘NATO’s Campaign in Yugoslavia’ () AJIL at .
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.
.. Context No laws in any legal system are applied in the abstract. They are always context dependent. Arguing for a certain context can thus be an important part of a particular legal argument. The legal argument for the war in Iraq stresses a context which: [I]ncluded the naked aggression by Iraq against its neighbors, its efforts to obtain weapons of mass destruction, its record of having used such weapons, Security Council action under Chapter VII of the United Nations Charter, and continuing Iraqi defiance of the Council’s requirements. On August , , Iraq invaded Kuwait. It is easy to forget the wantonness of Iraq’s invasion, which was unprovoked and carried out with particular cruelty, and the horror with which the world received news of it. That invasion rightly shaped, forever after, the way the world would look at Saddam Hussein’s Iraq.26
This last point is particularly important to bear in mind. In the eyes of the international community, Iraq’s invasion of Kuwait in had made it different from other states in terms of the level of threat from Iraq that was tolerable. .. Legal Bases Assessment of possible legal bases for military action is not always easy because states often stress their political arguments for action. They do not necessarily present their legal arguments with the precision that international lawyers would like. There are policy reasons for this approach. The US, in particular, often presents a variety of possible legal justifications and leaves them to be considered singly or in combination. Sometimes it downplays the significance of legal niceties in favour of considerations of power and interests. Tom Franck has observed that in relation to the Iraq War American leaders all but discarded the fig leaf of legal justification.27 In relation to the Iraq War, Sean Murphy has observed that the: 26 WH Taft and TF Buchwald, ‘Preemption, Iraq, and International Law’ () AJIL at –. 27 T Franck, ‘What Happens Now? The United Nations after Iraq’ () AJIL .
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[L]egal theory articulated by the Australian, Spanish, US and UK governments was not predicated on self-defence, but on SC resolutions.28
However, in discussing the legality of the Iraq War, the US Legal Adviser to the State Department, and others have referred to the Iraq War being an example of the pre-emptive use of force and this can be read as asserting an extended right to self-defence.29 The right is considered accordingly. So too is the doctrine of humanitarian intervention although this remains more controversial. The following structure, therefore, probably represents current international law orthodoxy on the use of force—namely that there are only three arguable justifications—SC authorisation, self-defence and humanitarian intervention. These could provide one or more independent legal bases for the use of military force in Iraq or be used cumulatively. .
.. Security Council Authorisation The principal legal argument was that various SC resolutions, or more accurately, combinations of them, provided a legal authorisation for the use of force.30 The UK Attorney-General, Lord Goldsmith, advised that there was legal authority under SC 28 SD Murphy, ‘Use of Military Force to Disarm Iraq’ () AJIL at . See also SD Murphy, ‘Assessing the Legality of Invading Iraq’ () () Georgetown Law Journal Part (forthcoming). 29 Damrosch and Oxman interpret Taft and Buchwalds’ views (n above) in this way, stating that they ‘justify the military action in Iraq as a continuation of lawful collective self-defence stemming from Iraq’s attack on Kuwait and Iraq’s persistent breaches of the cease-fire terms established in ’, n above at . John Yoo, ‘International Law and the War in Iraq’ () AJIL , expressly relies on the self-defence argument, and Miriam Sapiro, ‘Iraq: Shifting Sands of Preemptive Self-Defence’ () AJIL , describes the war in Iraq as the US acting on the basis of a doctrine of preventive war, at . These views are considered in ch . below. 30 See US letter to President of SC, UN Doc S// ( March ), Australia’s letter S//, UK’s letter UN Doc S//; Wedgwood, ‘The Enforcement of Security Council esolution : The Threat of Force against Iraq’s Weapons of Mass Destruction’ () AJIL ; D Leurdijk and Siekmann, ‘The Legal Basis for Military Action against Iraq’ () International Peacekeeping ; FL Kirgis, ‘SC esolution on Iraq’s Final Opportunity to Comply with Disarmament Obligations’ (November ) ASIL Insights, http://www.asil.org>; Hofman, ‘International Law and the Use of Military Force against Iraq’ () German Yearbook of International Law ; Wedgwood, n above.
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resolutions to use force against Iraq.31 It is helpful to read the Attorney-General’s advice alongside the Foreign and Commonwealth Office’s Memorandum on ‘Iraq: The Legal Basis for the Use of Force’ (hereinafter FCO Memorandum) which was provided to the UK Foreign Affairs Committee.32 Lord Goldsmith summarised the legal basis for the use of force as follows: Authority to use force against Iraq exists from the combined effect of resolutions , and . All of these resolutions were adopted under Chapter VII of the UN Charter, which allows the use of force for the express purpose of restoring international peace and security.33
His process of reasoning was as follows: . In resolution the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area. . In resolution , which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. esolution suspended but did not terminate the authority to use force under resolution . . A material breach of resolution revives the authority to use force under resolution . . In resolution the Security Council determined that Iraq has been and remains in material breach of resolution , because it has not fully complied with its obligations to disarm under that resolution. . The Security Council in resolution gave Iraq ‘a final opportunity to comply with its disarmament obligations’ and warned Iraq of the ‘serious consequences’ if it did not. 31 See Appendix VII below. In a Parliamentary Answer on November the Solicitor-General made it clear that the Attorney-General’s Advice had not been disclosed but rather, ‘In view of the high level of public interest in this issue, the Attorney-General, exceptionally, made a written statement in Parliament on March , setting out his view of the legal basis for the use of force against Iraq’, Hansard, House of Commons vol col W. Some have deduced from the fact that the statement was that of the AttorneyGeneral only, rather than that of the Law Officers, that the Solicitor-General did not concur in the advice. 32 Appendix VIII below. The Memorandum is dated March . According to media reports a Deputy Legal Adviser at the FCO Legal Advisers, Elizabeth Wilmshurst, resigned in principle because of disagreement with the advice given. The principle was presumably based on the argument that SC esolution () had changed the legal position. See also ‘US Stars Hail Iraq War Whistleblower’ The Observer ( January ). 33 Statement of Lord Goldsmith, House of Lords, March , Hansard HL vol cols WA–WA, followed by a debate on legality, cols –.
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. The Security Council also decided in resolution that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution , that would constitute a further material breach. . It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution and continues to be in material breach. . Thus, the authority to use force under resolution has revived and so continues today. . esolution would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.
.. The Combination of SC esolutions This is a complex legal argument which combines at least SC esolutions (adopted November ), (adopted by April ) and (adopted by unanimity on November ) and an emphasis on implementing SC resolutions.34 esolution (adopted on August ) demanded Iraq’s withdrawal from Kuwait). esolution authorised all member states cooperating with the Government of Kuwait to use ‘all necessary means’ to uphold and implement resolution and all subsequent resolutions and to restore international peace and security in the area (emphasis added). In the SC debates the expression ‘all necessary means’ was understood to include the use of force. The extensive terms of esolution , viz, ‘and . . . to restore international peace and security in the area’ have been relied upon by the US to justify the no-fly zones in Northern and Southern Iraq. The UK had continued to enforce those zones with the US but it has also relied on SC esolution (condemning civilian repression by Iraq) and a customary international law doctrine of humanitarian intervention.35 In the early
34 In particular, UNSC es and . In total some resolutions on Iraq had been adopted over the twelve-year period –. A selection of resolutions is reproduced in Appendix XIII below. 35 See ‘UK Materials on International Law’ () British Yearbook of International Law . France stopped participating when it considered that the operation had changed from surveillance to the use of force.
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years at least the actions by the US and the UK were not opposed by other states.36 esolution ( April ) was the so-called ‘ceasefire resolution’. This decided that Iraq should unconditionally accept, inter alia, the destruction, removal or rendering harmless, under international supervision, of all chemical and biological weapons and all ballistic missiles with a range of greater than kilometres. Iraq also unconditionally agreed not to acquire or develop nuclear weapons. There was to be an inspections regime (UNSCOM) to monitor and verify Iraq’s compliance with the disarmament regime. An extensive sanctions regime was maintained in place with some exemptions. esolution : [D]id not repeal the authorisation to use force in resolution . On the contrary, it confirmed that SC remained in force. The authorisation was suspended for so long as Iraq complied with the conditions of the ceasefire. But the authorisation could be revived if the Council determined that Iraq was acting in material breach of the requirements of SC .37
The SC had repeatedly condemned Iraq for violations of esolution . Military action was taken in and under the revived authority of resolution to deal with the threat to international peace and security posed by those violations.38 The FCO Memorandum specifically cited the support of the UN SecretaryGeneral for the military action being taken under the authority of esolution .39 The then Secretary-General, Boutros BoutrosGhali, had stated that the: []aid was carried out in accordance with a mandate from the Security Council under resolution (), and the motive for the raid was Iraq’s violation of that resolution, which concerns the ceasefire. As Secretary-General of the United Nations, I can tell you that 36 Subsequently, other members of the SC rejected the legality of the actions by the US and the UK in the no-fly zones, see C Gray, ‘After the Ceasefire: Iraq, the Security Council and the Use of Force’ () BYIL ; C Gray, ‘From Unity to Polarisation: International Law and the Use of Force against Iraq’ () EJIL . 37 FCO Memorandum, n above, para . The US takes the view that whether there has been a material breach is a question of objective fact and it is not necessary for the SC to so determine or state this on each occasion. See M Matheson, ‘Legal Authority for the Possible Use of Force against Iraq’ () AJIL at . 38 FCO Memorandum ibid paras –. See C Gray, International Law and the Use of Force (Oxford, OUP, ) –. 39 Ibid para .
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the action taken was in accordance with the resolutions of the Security Council and the Charter of the United Nations.40
The FCO Memorandum also cited UK parliamentary statements in and relying on the argument of material breach of esolution : In relation to the action in , the Minister of State at the Foreign and Commonwealth Office wrote: ‘The Security Council determined in its statements of and January that Iraq was in material breach of resolutions and its related resolutions, and warned Iraq that serious consequences would ensue from continued failure to comply with its obligations. esolution lays down the terms for the formal ceasefire between the coalition states and Iraq at the end of the hostilities mandated by the Security Council in resolution . These terms are binding in themselves but have also been specifically accepted by Iraq as a condition for the formal ceasefire to come into effect. In the light of Iraq’s continued breaches of Security Council resolution and thus of the ceasefire terms, and the repeated warnings given by the Security Council and members of the coalition, their forces were entitled to take necessary and proportionate action in order to ensure that Iraq complies with those terms . . . In relation to the military action undertaken in , the then Parliamentary Under-Secretary of State (now Minister of State) at the Foreign and Commonwealth Office, Baroness Symons of Vernham Dean stated: ‘In our previous discussions in this House some of your Lordships asked about the legality of our action. Any action involving UK forces would be based on international law. The Charter of the United Nations allows for the use of force under the authority of the Security Council. The Security Council resolution adopted before the Gulf conflict authorised the use of force in order to restore international peace and security in the region. Iraq is in clear breach of Security Council resolution which laid down the conditions for the ceasefire at the end of the conflict. Those conditions included a requirement on Iraq to eliminate its weapons of mass destruction under international supervision. Those conditions have been broken’.41
40 Transcript of press conference by Secretary-General Boutros Boutros-Ghali, Following Diplomatic Press Club Luncheon, Paris, January , UN Doc SG/SM//ev.. 41 FCO Memorandum, n above, paras and .
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.. esolution The first foundation of the argument that the Iraq war was authorised by SC resolutions is that esolution ’s authorisation to use force had not expired or been terminated. Where the SC has ended an authorisation to use force it has either expressly terminated it, as in esolution () concerning Bosnia, or put in an up-front time limit, as in esolution () on Somalia.42 The weapons inspectors remained until when they left because of the lack of cooperation by Iraq.43 The US and the UK responded with ‘Desert Fox’—a four-day bombing campaign against Iraq.44 The Inspectors returned in November as the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC),45 under the authority of SC esolution (). That resolution strengthened and enhanced the inspection regime but Iraq did not allow the inspectors to return until three years after its adoption. .. esolution What became esolution () was worked on in the seven weeks between President Bush’s address to the General Assembly on September and its adoption on November .46 Its central importance justifies reciting almost the full text of the resolution (emphasis has been added to highlight crucial aspects of the wording): The Security Council, ecalling all its previous relevant resolutions, in particular its resolutions () of August , () of November 42 See also UNSC es () on Haiti in which the SC expressly reserved to itself the decision on whether conditions for termination had been established. 43 See UN Doc S// ( December ); C de Jonge Oudraat, ‘UNSCOM: Between Iraq and a Hard Place?’ () EJIL . 44 See President Clinton’s ‘Address to the Nation’, December , in Iraq War eader, n above, ; Gray, n above, –, –. 45 Along with the International Atomic Energy Authority (IAEA), which found, ‘no evidence of ongoing prohibited nuclear or nuclear-related activities in Iraq’, S/PV/, p . UNMOVIC’s status is that of a subsidiary body of the SC. As of January , UNMOVIC and the IAEA had staff members from different countries. 46 It is notable that Syria, the only Arab state on the SC, voted for the resolution. On SC es see S Chesterman and S von Einsiedel, ‘Dual Containment: The United States, Iraq, and the UN Security Council’ in P Eden and T O’Donnell (eds), September : A Turning Point in International and Domestic Law? (New York, Transational, , forthcoming).
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, () of March , () of April , () of April , () of August , () of October , () of April , and () of December , and all the relevant statements of its President, ecalling also its resolution () of November and its intention to implement it fully, ecognizing the threat Iraq’s noncompliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security, ecalling that its resolution () authorized Member States to use all necessary means to uphold and implement its resolution () of August and all relevant resolutions subsequent to esolution () and to restore international peace and security in the area, Further recalling that its resolution () imposed obligations on Iraq as a necessary step for achievement of its stated objective of restoring international peace and security in the area, Deploring the fact that Iraq has not provided an accurate, full, final, and complete disclosure, as required by resolution (), of all aspects of its programmes to develop weapons of mass destruction and ballistic missiles . . . Deploring further that Iraq repeatedly obstructed immediate, unconditional, and unrestricted access to sites designated by the United Nations Special Commission (UNSCOM) and the International Atomic Energy Agency (IAEA), failed to cooperate fully and unconditionally with UNSCOM and IAEA weapons inspectors, as required by resolution (), and ultimately ceased all cooperation with UNSCOM and the IAEA in , Deploring the absence, since December , in Iraq of international monitoring, inspection, and verification, as required by relevant resolutions, of weapons of mass destruction and ballistic missiles, in spite of the Council’s repeated demands that Iraq provide immediate, unconditional, and unrestricted access to the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), established in resolution () as the successor organization to UNSCOM, and the IAEA; and regretting the consequent prolonging of the crisis in the region and the suffering of the Iraqi people, Deploring also that the Government of Iraq has failed to comply with its commitments pursuant to resolution () with regard to terrorism, pursuant to resolution () to end repression of its civilian population and to provide access by international humanitarian organizations to all those in need of assistance in Iraq, and pursuant to resolutions (), (), and () to return or
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cooperate in accounting for Kuwaiti and third country nationals wrongfully detained by Iraq, or to return Kuwaiti property wrongfully seized by Iraq, ecalling that in its resolution () the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein, Determined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution () and other relevant resolutions and recalling that the resolutions of the Council constitute the governing standard of Iraqi compliance, ecalling that the effective operation of UNMOVIC, as the successor organization to the Special Commission, and the IAEA, is essential for the implementation of resolution () and other relevant resolutions, Noting the letter dated September from the Minister for Foreign Affairs of Iraq addressed to the Secretary-General is a necessary first step toward rectifying Iraq’s continued failure to comply with relevant Council resolutions, Noting further the letter dated October from the Executive Chairman of UNMOVIC and the Director-General of the IAEA to General Al-Saadi of the Government of Iraq laying out the practical arrangements, as a follow-up to their meeting in Vienna, that are prerequisites for the resumption of inspections in Iraq by UNMOVIC and the IAEA, and expressing the gravest concern at the continued failure by the Government of Iraq to provide confirmation of the arrangements as laid out in that letter, eaffirming the commitment of all Member States to the sovereignty and territorial integrity of Iraq, Kuwait, and the neighbouring States, Commending the Secretary General and members of the League of Arab States and its Secretary General for their efforts in this regard, Determined to secure full compliance with its decisions, Acting under Chapter VII of the Charter of the United Nations, . Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution (), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs to of resolution (); . Decides, while acknowledging paragraph above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disar-
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mament process established by resolution () and subsequent resolutions of the Council; . Decides that, in order to begin to comply with its disarmament obligations, in addition to submitting the required biannual declarations, the Government of Iraq shall provide to UNMOVIC, the IAEA, and the Council, not later than days from the date of this resolution, 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 . . . 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 paragraph and below; . Decides that Iraq shall provide UNMOVIC and the IAEA immediate, unimpeded, unconditional, and unrestricted access to any and all, including underground, areas, facilities, buildings, equipment, records, and means of transport which they wish to inspect, as well as immediate, unimpeded, unrestricted, and private access to all officials and other persons whom UNMOVIC or the IAEA wish to interview in the mode or location of UNMOVIC’s or the IAEA’s choice pursuant to any aspect of their mandates; further decides that UNMOVIC and the IAEA may at their discretion conduct interviews inside or outside of Iraq, may facilitate the travel of those interviewed and family members outside of Iraq, and that, at the sole discretion of UNMOVIC and the IAEA, such interviews may occur without the presence of observers from the Iraqi government; and instructs UNMOVIC and requests the IAEA to resume inspections no later than days following adoption of this resolution and to update the Council days thereafter; ... . Decides further that, in view of the prolonged interruption by Iraq of the presence of UNMOVIC and the IAEA and in order for them to accomplish the tasks set forth in this resolution and all previous relevant resolutions and notwithstanding prior understandings, the Council hereby establishes the following revised or additional authorities, which shall be binding upon Iraq, to facilitate their work in Iraq: . . . . 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; . equests the Secretary General immediately to notify Iraq of this
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resolution, which is binding on Iraq; demands that Iraq confirm within seven days of that notification its intention to comply fully with this resolution; and demands further that Iraq cooperate immediately, unconditionally, and actively with UNMOVIC and the IAEA; . equests all Member States to give full support to UNMOVIC and the IAEA in the discharge of their mandates, . . . . 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; . Decides to convene immediately upon receipt of a report in accordance with paragraphs or 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; . ecalls, 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 obligations; . Decides to remain seized of the matter.
The preambular reference in SC esolution to SC esolution is evidence that it remains in force.47 Neither SC esolutions or contained the expression ‘all necessary means’, that was so crucial in esolution .48 An earlier draft of what became paragraph of esolution had stated that ‘such breach authorizes member states to use all necessary means to restore international peace and security to the area’. This text did not appear in the adopted resolution, principally because of objections from France and ussia. Paragraph of the draft resolution had stated that the purpose of reconvening of the SC after a report of non-compliance was to ‘restore’ international peace, following the language of esolution . This was changed to ‘secure’ international peace. .. The ‘Material Breach’ Argument The legal argument based on these resolutions is to the effect that the combination of resolutions , and provided a legal basis FCO Memorandum, n above, para . K Starmer, ‘Sorry Mr Blair but Does Not Authorise Force’ The Guardian ( March ). 47 48
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for the use of force. The second foundation of the argument that the Iraq war was authorised by SC resolutions is that the ‘material breach’ by Iraq resuscitated the authority of esolution in the same way that a material breach by a state of a ceasefire in an inter-state conflict resuscitates the right of the other state to use force.49 This was at least one of the ‘serious consequences’ to which esolution referred.50 This approach views the so-called ‘ceasefire-resolution’, esolution , as similar to an armistice.51 Article of the Hague egulations especting the Laws and Customs of War on Land, October , provides that, ‘any serious violation of the armistice by one of the parties gives the other party the right of denouncing it’ and in cases of urgency of resuming hostilities.52 In esolution and a series of subsequent resolutions the SC had stated that Iraq was in ‘material breach’ of SC esolution . The language of material breach is drawn from that in Article of the Vienna Convention on the Law of Treaties (). Using Article by analogy, it would be necessary to determine which states are ‘specially affected’ by the material breach or whether the material breach radically changed the position of the parties. The argument would be that at least the members of the coalition against Iraq would be so specially affected.53 William Taft and Todd Buchwald submit that: [A]ll agreed that a Council determination that Iraq had committed a material breach would authorize individual states to use force to secure compliance with Council resolutions’.54
With respect this seems to be exactly what the states in the SC were not agreed. FCO Memorandum, n above, para . Material breaches had been met with the use of force in and . ‘The phrase “serious consequences” has been widely understood to include the use of force’, FL Kirgis, n above. See also SC esolution warning Iraq of the ‘severest consequences’ for violation of esolution . See N Blokker, ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and the Willing’ () EJIL . 51 See J Yoo, n above at –. 52 The egulations’ requirement that Iraq be warned of the resumption of hostilities would clearly seem to have been satisfied. 53 This assumes that those states are parties to the ceasefire/armistice agreement, rather than the SC or the UN being the other party. See Franck n above. An alternative argument is that, as a Chapter VII SC resolution is binding, a material breach of it is a material breach of the UN Charter, see Hofman, n above, ; Kirgis, n above. 54 Taft and Buchwald, n above, . Yoo, n above at takes the same view. 49 50
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.. Automaticity A crucial part of the debate on the interpretation of esolution turned on the issue of ‘automaticity’. When the resolution was adopted a number of states stressed that they had only supported it on the basis that there was no automaticity in esolution , that is, it did not automatically authorise the use of force in the event of a material breach by Iraq.55 The UK accepted the point on automaticity but had a different understanding (than the majority of th other members of the SC) of the resolution’s requirement that any failure by Iraq be considered by the SC: It is important to stress that SC did not revive the authorisation immediately on its adoption. There was no ‘automaticity’. The resolution afforded Iraq a final opportunity to comply and it provided for any failure by Iraq to be ‘considered’ by the Security Council (under paragraph of the resolution). The paragraph does not, however, mean that no further action can be taken without a new resolution of the Council. Had that been the intention, it would have provided that the Council would decide what needed to be done to restore international peace and security, not that it would consider the matter. The choice of words was deliberate; a proposal that there should be a requirement for a decision by the Council, a position maintained by several Council members, was not adopted. Instead the members of the Council opted for the formula that the Council must consider the matter before any action is taken.56
It seems quite clear the UK and the US specifically refused to agree to the language in the draft resolution that had stated that the Council would convene ‘to decide any measure to ensure full compliance with’ its resolutions. The necessary consideration had taken place regularly since esolution . No member of the Council questioned that Iraq had not complied with its disarmament obligations.57 55 See UN Doc S/PV/ ( November ) USA, p , UK, p , Mexico, p , Ireland, p , ussian Federation, p , Bulgaria, p , Syria, p , Colombia, p , China, pp –. See also the Joint Statement issued by China, France and the ussian Federation upon the adoption of UNSC res , which stressed the exclusion of automaticity in the use of force, and their joint declaration on March , ; The Legal Department of the Ministry of Foreign Affairs of the ussian Federation, ‘Legal Assessment of the Use of Force against Iraq’ () ICLQ . 56 FCO Memorandum, n above, para . The US took the same view, see UN Doc S/PV/ at (); Taft and Buchwald, n above, at –. 57 On March the Inspectors had published a -page document containing different areas in which they had been unable to obtain information. See .
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Iraq remained in material breach. Therefore, ‘In these circumstances, the authorisation to use force contained in SC esolution revives’.58 Similarly for the US: In adopting the ‘material breach’ language, the resolution established that Iraq’s violations had crossed the threshold that earlier practice had established for coalition forces to use force consistently with resolution .59
Wedgwood comments that: The debate over esolution was thus a draw, and did not purport to revoke or amend the prior authority of esolutions and .60
.. The ‘Second esolution’ The UK had politically committed itself to seeking a second resolution (in the sense of following esolution ) but Prime Minister Blair had reserved the right to act without it if the resolution was subject to what was referred to as an ‘unreasonable’ use of the veto.61 There is no legal doctrine of unreasonable use of the veto. A vetoed resolution simply has no legal effect in international law. All of the permanent members of the SC have used the veto.62 In any event, the UK consistently asserted that a ‘second resolution’ was not legallyrequired.63 FCO Memorandum, n above, para . Taft and Buchwald, n above, at . Wedgwood, n above, also notes that ‘ussia and France had strenuously resisted a finding of material breach in the crisis because of a perceived linkage to the use of force’, at . 60 Wedgwood, n above, at . 61 See UK Prime Minister, House of Commons, March , Hansard, vol , col on what would constitute an unreasonable veto. The US had similarly agreed to discuss any material breach with the SC but without prejudicing its freedom to act, see ‘emarks on the passage of a UN SC esolution on Iraq’, () Weekly Compendium of Presidential Documents ( November ) . Quaere would the US’s veto of a SC resolution renewing the UN’s mandate in Bosnia in (because of its objections to the ICC) be regarded as an unreasonable veto? 62 Since the veto has been used by the US ( times), USS (), ussia (), UK () and China (). 63 See Second eport from the Foreign Affairs Committee, Session –, Foreign Policy Aspects of the War against Terrorism, HC ( December ) paras – and the accompanying memorandum from Professor oberts, Ev . See also A oberts, ‘Law and the Use of Force after Iraq’ (Summer ) Survival . The US asserted the same view, see FL Kirgis, ‘Armed Force in Iraq’ (March ) ASIL Insights . Wedgwood comments that, ‘equiring a second resolution or (as some would have it) an ‘eighteenth resolution’ was a reduction ad absurdum for multilaterists who wish the Council’s substantive mandates to be treated seriously’, n above at . 58 59
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There is also the precedent of SC esolution itself. Adopted in November , it authorised the use of ‘all necessary means’ to uphold and implement SC esolution (demanding Iraq’s withdrawal from Kuwait) and subsequent resolutions, and to restore international peace and security in the area. However, it also afforded Iraq ‘one final opportunity’ to comply with the SC’s resolutions by a deadline of January . The SC did not make any subsequent determination that Iraq had not taken advantage of that final opportunity. ather, ‘Member states made that judgment themselves and relied on the Security Council’s November decision (esolution ] as authority to use force’.64 In this way: The language of esolution tracked the language of resolution , and the resolution operated in the same way to authorize coalition forces to bring Iraq into compliance with its obligations.65
.. An Appraisal of the Legality Argument The legality argument based on SC resolutions is admittedly sophisticated, but it is legally tenable and defensible. If the members of the SC were agreed that the SC resolutions could be interpreted in this way then, in principle, the terms ‘material breach’ and ‘serious consequences’ could be added to ‘all necessary means’ and be equally understood as authorising the use of force.66 There would be no credible argument that the SC was acting unlawfully. In a Memorandum to the Foreign Affairs Committee, Professor Adam oberts submitted that there was ‘some substance’ to the AttorneyGeneral’s argument. However, he noted that the ‘concept of “continuing authority” had not been widely accepted’ and that the greatest difficulty with ‘continuing authority’ in the light of events in Iraq in concerned not so much the proposition itself, which was fundamentally strong, but its particular invocation in this crisis:67 Problems that have emerged have included the question of what consequences flowed from the Iraq breaches: in particular, even if the US and partners have continuing authority to use force, it remained a Taft and Buchwald, n above. Ibid . 66 See T Weiner, ‘Threats and esponses’ New York Times ( October ) (Frenchcirculated text omitted the words ‘material breach’ because France considered that they would be treated as a tripwire for authorising the use of force). 67 Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism, Tenth eport, Session –, Hansard HC , para ( July ). 64 65
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question whether that entitles them to launch a full-scale attack to achieve regime change. In addition the notion of ‘continuing authority’ might seem to be undermined by the doubtful quality of the evidence that Iraq still possessed weapons of mass destruction in significant quantities. Some unconvincing US and UK reports and presentations before the war weakened the case. There was, inevitably, scope for disagreement as to whether the UN verification system operating under esolution should have been set aside in favour of a use of force when the inspectors were able to visit sites throughout Iraq and the disarmament process had produced at least some results. As circumstances change after the war, it is possible that ex post facto other justifications for resort to force will look more convincing.68
Finally, it is also interesting to note that in a UK Foreign Affairs Committee eport, the following paragraph was not agreed to: We conclude that in the course of this Inquiry, we have seen no evidence to contradict the Attorney General’s view that the military action against Iraq was in conformity with international law.69
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.. Self-Defence and the US’s National Security Strategy: Pre-emptive Self-Defence As noted above, ‘legal theory articulated by the Australian, Spanish, US and UK governments was not predicated on self-defence, but on SC resolutions’.70 Nonetheless, self-defence has been asserted by politicians and commentators, including the Legal Adviser to the US Department of State, as one of the legality arguments for the War on Iraq.71 Michael eisman has also argued that: Analytically, the claim to engage, in certain circumstances, in a ‘regime change’ is a corollary of pre-emptive self-defence. For if a regime that is animated by unlawful ambitions against its neighbours 68 Ibid at n . See Ch . below on the use of humanitarian intervention as an ex post facto justification. 69 Ibid on draft para . 70 See Murphy, text to n above. 71 See Taft and Buchwald, n above; C Greenwood, ‘International Law and the Preemptive Use of Force: Afghanistan, Al Qaida and Iraq’ () San Diego International Law Journal .
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continues to develop the ABC weapons [atomic, biological and chemical], and especially if it does so in violation of international commitments, the deprivation of those weapons in a single instance may only reinforce the regime’s intentions to try even harder the next time to develop and deploy the weapons so that it can then paralyse subsequent efforts to control it.72
This self-defence argument was premised on the extensive doctrine of self-defence articulated by the US in its National Security Strategy.73 In , the US President issued a new National Security Strategy that asserted a right of ‘pre-emptive defence’, which appeared to go beyond any previous understanding of the scope of self-defence.74 In particular, it extended beyond the narrow terms of an ‘armed attack’ under Article of the UN Charter75 and beyond any doctrine of anticipatory self-defence which relies on a notion of ‘imminence’.76 The orthodox test for self-defence is that in the Caroline Case, there must be evidence of ‘a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation’.77 The ICJ in the Nicaragua Case used the language of imminence,78 although it was in the context of stating that the issue was not before it. The SC condemned Israel’s pre-emptive attack on the Osirak nuclear reactor in Iraq in .79 The National Security Strategy argued that, ‘We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries’.80 In assessing imminence it would be irresponsible to ignore that today’s adversaries: M eisman, ‘Assessing Claims to evise the Laws of War’ () AJIL at . ‘The National Security Strategy of the United States’, Part V (September ) , reproduced in Appendix III below. See MP Leffler, ‘/ and the Past and Future of American Foreign Policy’ () International elations . 74 See ME O’Connell, ‘The Myth of Preemptive Self-Defence’, WH Taft, ‘Old ules New Threats’, I Daalder, ‘Policy Implications of the Bush Doctrine on Preemption’, Papers of the ASIL Task Force on Terrorism () ; ‘oundtable: Evaluating the Preemptive Use of Force’ () () Ethics and International Affairs; FL Kirgis, ‘Preemptive Action to Forestall Terrorism’ ASIL Insight, June , ; Iraq War eader, n above, –. See also the National Security Strategy to Combat Weapons of Mass Destruction (December ) . 75 See Gray, n above, ch . 76 See M eisman, ‘Assessing Claims to evise the Laws of War’ () AJIL . 77 () British and Foreign State Papers –. 78 [] ICJ eps . 79 UNSC es / (although the US indicated that it shared the Israeli view of selfdefence). 80 ‘National Security Strategy’, n above, . See Gray, n above, –. 72 73
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[]ely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning.81
Abraham Sofaer has argued that the narrow standard in Article applies only when the potential victim state can rely on the police powers of the state from which a prospective attack is anticipated. A more flexible standard for determining necessity was appropriate for situations in which the state from which attacks are anticipated is either unwilling or unable to prevent the attacks, or is even responsible for them.82 William Taft and Todd Buchwald argue that: In the end, each use of force must find legitimacy in the facts and circumstances that the state believes have made it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it. While nations must not use pre-emption as a pretext for aggression, to be for or against pre-emption in the abstract is a mistake. The use of force pre-emptively is sometimes lawful and sometimes not.83
The UK’s Foreign Affairs Committee agreed that, the notion of imminence should be reconsidered in the light of new threats to international peace and security’.84 However, the UK Government was opposed to any attempt to reach consensus internationally on the precise circumstances in which military action in anticipatory selfdefence may be taken by states.85 John Yoo has argued that: Preventing a terrorist attack using WMD may require that the United States and its allies take advantage of a window of opportunity that opens before a rogue state has transferred WMD to terrorist groups.86
Similarly, uth Wedgwood has stated that: To a strategist, September thus teaches that the keystone doctrines of the Cold War confrontation—namely, deterrence and containment have ceased to be reliable. ather, one must consider acting against 81
Ibid. AD Sofaer, ‘On the Necessity of Pre-Emption’ () EJIL . 83 Taft and Buchwald, n above. 84 Second eport from the Foreign Affairs Committee, Session –, Foreign Policy Aspects of the War against Terrorism, Hansard HC , ( December ) para . See also Mullerson, ‘Jus ad bellum: Plus ça change (le monde) plus c’est la même chose (le droit)’ () JCSL . 85 esponse of the Secretary of State for Foreign Affairs to Second FAC eport on Foreign Policy Aspects of the War against Terrorism, n above, p (Cm , Session –). 86 Yoo, n above. 82
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terrorist capability before it is employed and, better yet, before it is acquired.87
Under the terms of the US’s National Security Strategy, Iraq represented a threat to the US and the US was justified in taking pre-emptive action against it. John Yoo has explicitly argued that the right of self-defence recognised in Article of the UN Charter provided authority for the use of force in Iraq. The essential argument is that the traditional requirements for self-defence need to be re-interpreted in the modern context of WMD, rogue states and international terrorism. John Yoo submits that: Factors to be considered should now include the probability of an attack; the likelihood that this probability will increase, and therefore the need to take advantage of a limited window of opportunity; whether diplomatic alternatives are practical; and the magnitude of the harm that could result from the threat . . .
Applying the reformulated test for using force in anticipatory selfdefence to the potential use of force against Iraq reveals that the threat of a WMD attack by Iraq, either directly or through Iraq’s support for terrorism, was sufficiently ‘imminent’ to render the use of force necessary to protect the United States, its citizens and its allies. The force used was proportionate to the threat posed by Iraq; in other words, it was limited to that which is needed to eliminate the threat, including the destruction of Iraq’s WMD capability and removing the source of Iraq’s hostile intentions and actions, Saddam Hussein.88 uth Wedgwood has submitted that: the question remains whether a state can ever resort to the use of preventive force in unique cases—when intelligence is reliable and timing is sensitive, multilateral authorization is not practically available, and a state is sponsoring or hosting a network acquiring weapons of mass destruction. The national security white paper issued by George W. Bush is a political doctrine, not a legal exegesis, and as a declaratory doctrine may intimate more than it would deliver. However, the abstract answer to many strategists is yes—a given regime might have a record of conduct so irresponsible and links to terrorist groups so troubling that the acquisition of WMD capability amounts to an unreasonable danger that cannot be abided.89
87 88 89
Wedgwood, n above at . Yoo, n above, . Wedgwood, n above at .
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She also stresses the need to read Article of the UN Charter as a practical tool for states and in its historical context. She recalls the precedent of the Cuban missile crisis in when the US acted in preventive self-defence but justified it under the veneer of an authorisation from the Organisation of American States. At the time of the crisis, there was in her view a similar disjunct beween the US’s actions perceived legality (doubtful) and their legitimacy (widely accepted). .. Critics of Pre-emptive Self-Defence In contrast to this view, ichard Gardner has strongly argued that the National Security Strategy goes too far and represents neither good law nor good policy.90 The US, ‘can protect itself in this new age of suicidal terrorism and nuclear proliferation without resorting to the Bush doctrine’.91 He rejects the example of the Cuban nuclear missile crisis precisely because even in midst of it the US recognised that the limits on careful pre-emption should not be stretched. To do so would open a Pandora’s box: The considerations that led us to avoid enlarging the concept of pre-emptive self-defence in are just as valid today. The Bush doctrine, if it is intended to assert a new right available to the United States alone, is obviously unacceptable. If it is intended to assert a new legal principle of general application, its implications are so ominous as to justify universal condemnation.92
The critics of the Iraq War argued that the action could not be justified as self-defence within Article of the Charter. For ichard Falk: The facts did not support the case for preemption, as there was neither imminence nor necessity. As a result, the Iraq War seemed, at best, to qualify as an instance of preventive war, but there are strong legal, moral and political reasons to deny both legality and legitimacy to such a use of force. Preventive war is not an acceptable exception to the Charter system, and no effort was made by the U.S. government to claim such a right . . .93 N Gardner, ‘Neither Bush nor the “Jurisprudes” ’ () AJIL . Ibid at . 92 Ibid at . The alternative might be to view pre-emptive self-defence as an America only ‘Doctrine’ like the ‘Monroe Doctrine’. 93 Falk, ‘What Future for the UN Charter System of War Prevention?’ () AJIL at . 90 91
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Miriam Sapiro similarly acknowledged that: It would also have been difficult to justify the invasion of Iraq as an exercise of classic self-defence . . . Preventive war therefore became the primary political justification used to explain its action against Iraq, despite the absence of support in international law and the risk that preventive war could lead to an unraveling of the constraints governing force.94
Sapiro draws attention to the significant risks in adopting a doctrine of preventive war.95 She argued that the US should find opportunities to narrow the scope of the doctrine and to emphasise the traditional requirements of self-defence. The existing rules are more helpful to, than constraining of, US interests. Foresaking them will make it harder to invoke them against others. She concludes by suggesting that: Perhaps Iraq will be the case that highlights the risks of adopting a new doctrine of preventive war, while persuading sceptics that the constraints governing the more traditional justifications of anticipatory self-defence make sense. Although the war in Iraq would not have fit the criteria of anticipatory self-defence, it helps demonstrate why these constraints represent the right balance between addressing new threats to security and avoiding the pitfalls of an expansive new doctrine.96
For Tom Franck, ‘the facts of the situation that existed in March are hard to fit within any plausible theory of imminence’.97 He also notes the absence of any reference to self-defence in the legal justification offered by the UK. After discussing the National Security Strategy he concludes that it, ‘aims at ending all collective control over the U.S. recourse to force’.98 In January , a eport published by the Carnegie Endowment for International Peace concluded, inter alia, that: . The National Security Strategy’s dismissal of the utility of deterrence against ‘rogue’ and other potential enemy states merits a focused national debate that has not taken place.
M Sapiro, n above, at . Ibid –. 96 Ibid at . 97 See T Franck, ‘What Happens Now? The United Nations after Iraq’ () AJIL at . 98 Ibid . 94 95
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. The National Security Strategy should be revised to eliminate a U.S. doctrine of unilateral, preemptive war in the absence of imminent threat (that is, preventive war).99
.. The UK and Pre-emptive Self-Defence The UK’s Dossier of Evidence on Iraq’s WMD in September stressed that the threat from Saddam Hussein was ‘serious and current’ rather than immediate or imminent.100 The UK appreciated the dangers of the wide approach to self-defence advocated by the US. The UK’s legal justification for the use of force against Iraq, considered in Part above, made no mention of self-defence or preemptive self-defence. The UK’s Foreign Affairs Committee recognised that, ‘international law must evolve to meet new challenges such as the unprecedented terrorist threat’.101 It considered that if states relied on an expanded doctrine of ‘pre-emptive self-defence’, there was a, ‘serious risk that this will be taken as legitimising the aggressive use of force by other, less law-abiding states’.102 The response of the UK Government ignored the issue of risk and stated that, ‘The Government has made it clear that it regards military action as a last resort, and that anything we did would be in accordance with international law’.103 More helpful was the government’s response regarding its policy on pre-emptive self-defence and whether it had been reviewed after the US published its National Security Strategy: It is well established in international law that the right to take necessary and proportionate military action in self-defence applies not only where an attack has occurred but also pre-emptively where an attack is imminent. The Government supports the view that this right applies as much to imminent threats from terrorism as to the more conventional threats of the past. The UK’s consistent position has 99 J Cirincione, JT Mathews, G Perkovich with A Orton, WMD in Iraq: Evidence and Implications (Washington, D.C., Carnegie Endowment for International Peace, ) . 100 . The Dossier included a claim that some of Iraq’s chemical and biological weapons ‘are deployable within minutes of an order to use them’, Dossier, p . Subsequently severe doubts about the meaning and credibility of this claim emerged. 101 See n above (Second eport) above, para . 102 Ibid para . This is a classic ‘floodgates’ argument. 103 esponse, n above, p .
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been that we would only take military action in these circumstances as a matter of last resort. The Government has not considered it necessary to review its policy on this issue following publication of the US document.104
This reply suggests that the US document can be read consistently with existing international law. However, the literal breadth of the doctrine partly explains the UK’s strong preference for following the SC approval route. One way of restricting the wider right would be to make it contingent on a SC determination that the actions of the target state represent a threat to international peace and security. This kind of ‘evidential’ use of SC resolutions was also attempted in relation to the situation in Kosovo in .105 For example, if a finding of gross or severe human rights violations is a condition for a customary international law doctrine of humanitarian intervention, then a SC resolution determining that such violations have taken place can provide the necessary evidence to satisfy that condition.106 One problem with this approach is that it could discourage the members of the SC from agreeing resolutions in the first place if such evidential use was going to be made of them (which takes us back to the idea of an unreasonable veto). There would be pressure to craft SC resolutions more narrowly with more precise limits in their temporal and material scope. .. The esponses of Other States to the Idea of Pre-emptive Self-Defence Other states have made reference to the idea of pre-emptive selfdefence. After the bombings in Bali in October , Australia asserted a similar doctrine but it seemed to accept that this went beyond existing international law and required international law to develop.107 In February , the Japanese Defence Minister was 104 105
).
esponse, n above, p . See K Booth (ed), The Kosovo Tragedy: The Human ights Dimensions (London, Cass,
106 See The esponsibility to Protect: eport of the International Commission on Intervention and State Sovereignty (Canada: IDC, December ), which seeks to identify threshold and precautionary criteria for intervention, See also Falk, ‘What Future for the UN Charter System of War Prevention?’ () AJIL . 107 See LaForgia and G Niemann, ‘Try Culprits at ICC’ The Australian ( October ); ‘Australia Supports Pre-Emptive Self-Defence’ The Guardian ( December ). For a wider critique of Australian foreign policy see H Charlesworth, ‘If Big Nations Go it Alone, it’s Back to a Free-for-All’ Sydney Morning Herald ( July ).
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reported as stating that he would seek crisis legislation to permit Japan to launch a pre-emptive strike on North Korea108 and that Japan had to develop an independent means of preventing missile attack.109 In Japan, defence spending is rising rapidly, and more external military activities (notionally as peacekeeping) being undertaken while consideration is being given to revising Article of the Constitution which states, inter alia, that the right of belligerency of the state will not be recognised. In November there was the first Japanese military deployment since World War Two. The attacks of ‘-’ have heightened Japanese concerns about security and the regional balance of power.110 On December , in a landmark decision, the Japanese Cabinet approved a controversial plan for despatching non-combat troops, known as self-defence forces, to Iraq in .111 In October , Israel bombed an alleged terrorist training ground in the village of Ain Al Sahib in Syria. It claimed that Syria was affording terrorist organisations safe harbour and training facilities, directing acts of terrorism and providing financial support for terrorists. The attack came a day after a suicide bombing in Haifa had killed over twenty people. The Israeli attack was the first such attack in twenty years. In an emergency meeting of the SC most of the representatives considered the attack to be illegal and unacceptable.112 The US representative stated that Syria was on ‘the wrong side’ of terrorism and that it had been warned to stop harbouring and supporting terrorist groups.113 .. An Assessment of Pre-emptive Self-Defence There is little doubt that the right to self-defence under Article has been interpreted by powerful states to include, for example, the protection of nationals where the territorial state is unable or unwilling to do so.114 One justification for that wide reading was that the SC system did not operate effectively during the Cold-War period and so an essential The Times, ( February ). The Times, ( February ). 110 See EA Matthews, ‘Japan’s New Nationalism’ () () Foreign Affairs . 111 See ‘Japan and Iraq’ The Times ( December ); Lloyd Parry, ‘Troops from Japan Cannot Help Coalition Partners under Fire’ The Times ( January ). 112 See UN Doc S/PV/, UN Press elease SC/. 113 Syria denied the allegations. 114 This is not to say that the argument has always been accepted by other states. See Franck, ch n below, ch . 108 109
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element of the UN Charter design had been missing.115 However, as Gardner has observed, one systemic problem of following the US approach is that it grants a very wide, unilateral right to states. Michael Howard has recalled the precedent of , when Austria–Hungary launched what it argued was a ‘preventive war’ against Serbia, whose growing strength it saw as a threat to its own integrity. He suggested that the true casus belli of the War on Iraq was the pre-emption of an attack that Saddam might one day launch against the US.116 Such a wide unilateral right of self-defence is inconsistent with the post- international legal order: What this doctrine does is to destroy the goal of a world in which states consider themselves subject to law, particularly in the matter of standards for the use of violence. That concept would be replaced by the notion that there is no law but the discretion of the President of the United States.117
The post- order has been premised on de-escalating conflicts through a high threshold requirement for self-defence—‘armed attack’118 and elaborate legal and diplomatic schemes for the peaceful settlement of disputes. Under a pre-emption doctrine, conflicts will almost certainly escalate. This gives rise to great instability where there are existing disputes between states, for example, as is the case with India and Pakistan (both nuclear weapons states). Other examples are China and Taiwan, Israel and its neighbouring Arab states, ussia and Georgia. Indeed, Iraq could arguably have invoked the US doctrine to justify an attack on the US itself. If there are genuinely new threats to international peace and security then the argument from the UN Charter scheme is that recourse should be had to the Security Council rather than expanding the unilateral use of force by states.119 See Gray, n above, chs –. M Howard, ‘The Bush Doctrine: it’s a Brutal World, so Act Brutally’ The Sunday Times ( March ). 117 Al Gore, ‘Against a Doctrine of Pre-Emptive War’ in Iraq War eader, n above, at . See also C Gray, ‘The US National Security Strategy and the New “Bush Doctrine”’ () Chinese Journal of International Law . 118 In the Nicaragua Case, [] ICJ ep, the International Court of Justice made it clear that not every ‘use of force’ against a state in breach of Art. () of the UN Charter would give rise to a right of self-defence under Art. of the Charter. Effectively, states could not use force to respond to uses of force that did not constitute an armed attack. See C Gray, ‘The Use and Abuse of the International Court of Justice: Cases Concerning the Use of Force after Nicaragua’ () () EJIL . 119 See M Bothe, ‘Terrorism and the Legality of Pre-emptive Force’ () EJIL ; C Henderson, ‘The Bush Doctrine: From Theory to Practice’ () JCSL (forthcoming). 115 116
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.
Saddam Hussein and his Baath Party fitted the stereotype of the dictatorial leader of a tyrannical and totalitarian regime.120 The human rights situation in Iraq had been very poor for decades. The human rights situation in Iraq was addressed in the UK dossier on Iraq’s Weapons of Mass Destruction: the Assessment of the British Government121 and by the US’s presentation of evidence in the Security Council.122 However, the legal debate on the Iraqi crisis was not conducted by states in terms of the doctrine of humanitarian intervention.123 That doctrine had been invoked by the UK for its military intervention in Kosovo in .124 For the US ‘regime change’ in Iraq was an explicit war objective.125 The UK initially focused on the disarmament obligations in the SC resolutions.126 It was reported that the UK government had received legal advice that the use of force against Iraq to achieve a change of regime would be ‘contrary to international law’.127 However, on March , the UK Prime Minister accepted that if the only way to disarm Iraq was to change the regime then regime change was indeed a war objective.128 As 120 See D Hiro, Iraq: A eport from the Inside (London, Granta, ); P Berman, Terror and Liberalism (London, Norton, ) –. 121 reproduced in Appendix IV below. 122 See UN Doc S/PV/ ( February ). 123 ‘neither the current nor the previous administrations elected to justify its actions on the basis of humanitarian intervention’, Sapiro, n above, .The doctrine was discussed by Lord Goodhart, House of Lords, February , Hansard HL vol cols –. See also the speeches on human rights abuses in Iraq by Anne Clwyd, MP, House of Commons, February , Hansard HC vol cols – and Baroness Nicholson, House of Lords, February , Hansard HL cols –; D Clark, ‘Iraq has Wrecked our Case for Humanitarian Intervention’ The Guardian ( August ). For a recent academic assessment see NK Tsagourias, Jurisprudence of International Law: The Humanitarian Dimension (Manchester, Manchester University Press, ). 124 See Gray, n above, –; D Kritsiosis, ‘The Kosovo Crisis and NATO’s Application of Armed Force against the Federal epublic of Yugoslavia’ () ICLQ ; n above. 125 See also the US’s Iraqi Liberation Act. 126 See Prime Minister’s Statements on Iraq, House of Commons, February , March , Hansard HC vol cols – (stressing the objective of disarmament); ‘Iraq: the Military Campaign Objectives’ ; T Garden, ‘Services now Need to Be Told their War Objectives’ The Times ( February ). 127 The Guardian ( October ), p . 128 ‘It is the case that if the only means of achieving the disarmament of Iraq of weapons of mass destruction is the removal of the regime, then the removal of the regime of course has to be our objective’, Prime Minister, House of Commons, March , Hansard HC vol , col .
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noted above, he also considered that there was a moral case for removing Saddam Hussein.129 A number of states made statements in the SC debates to the effect that action aimed at regime change was contrary to international law.130 It is interesting to note that the humanitarian intervention argument has become more prevalent in the debates on the Iraq War as clear evidence weapons of mass destruction has not been found. Such retroactive justifications should be treated with much caution.131 However, arguments stretching international law can and do have a rapid transforming effect: Not long ago the last conservative government agonised about whether to intervene in Bosnia. Genocide loomed, but did we have the right to intervene in the affairs of a sovereign nation? The question now seems laughable? We have intervened since in Albania, Macedonia, Kosovo, Sierra Leone, Afghanistan and Iraq. Increasingly, the objectives include regime change. It’s a breathtaking development yet in every case except Iraq the shift enjoyed international support, and even in Iraq the US was far from alone.132
This case for humanitarian intervention may be overstated (some were not based on humanitarian intervention and some were based on consent) but it does illustrate just how fast the legal, political and moral debate on humanitarian intervention has moved.133 .
.. No Security Council Authorisation Many of the arguments against the legality of the war are simply a reversal of the arguments for war.134 On the evidence there was no 129 See text to n above; G Monbiot, ‘Tony Blair’s New Friend’ The Guardian ( October ) (accusing the Prime Minister of hypocrisy given its support for the allegedly brutal regime in Uzbekistan). 130 See eg, S/PV UN Doc , p (League of Arab States) p (Libya). See J Mertus, ‘The Law(?) of egime Change’ . 131 See Falk, ‘What Future for the UN Charter System of War Prevention?’ () AJIL at –. 132 M Portillo, ‘Bush Has a Brave Vision and it is Working Just Fine’ Sunday Times ( December ). 133 See JL Holzgrefe, ‘The Humanitarian Intervention Debate’ in Holzgrefe and Keohane, n above, . 134 See AJ Bellamy, ‘International Law and the War with Iraq’ () () Melbourne Journal of International Law ; Farebrother and Kollerstrom n above; M ai, War Plan Iraq: Ten easons Against the War on Iraq (London, Verso, ) –; Murphy, n above.
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justification under self-defence or humanitarian intervention. Moreover, it is quite clear that most of the members of the SC were not agreed that the relevant SC resolutions could be interpreted in the way put forward by the UK and the US. For example, ussia argued that the: []esolutions considered in their entirety and in combination with other resolutions on Iraq, official statements of States on their interpretation and provisions of the UN Charter which were the basis for their adoption, show that the Security Council did not authorise Member States in this case to use force against Iraq.135
The argument against the legality interpretation is that the authority of esolution had effectively lapsed altogether or, at best, could only be resuscitated by the SC itself, as it remained actively ‘seized’ of the matter.136 The authority of esolution could not be resuscitated by the individual members of the coalition (the states that cooperated with Kuwait).137 Indeed, one could tenably argue that the coalition no longer existed. Adam oberts expressed the argument as follows: [T]he post-charter legal order creates a presumption against the use of force by states; that the decision to resume hostilities should be in the hands of the Security Council, especially in circumstances where the legitimacy of the use of force before the cease-fire depended significantly on the authorization by the Security Council; and that, although the cease-fire was between Iraq and the coalition which had fought against it, the Security Council had defined the terms of the cease-fire, was itself a party to it, and should determine how to respond to violations.138
.. esolution There was no subsequent resolution and no ‘second esolution’ following esolution , which included the expression ‘all necessary See the ussian legal assessment, n above. See, eg, UNSC es . See T Franck, ‘What Happens Now? The United Nations after Iraq’ () AJIL at –. 137 This would imply that they considered the uses of force by the US and the UK in and to be illegal as well. See texts to nn – above. 138 Memorandum by A oberts to FAC, ‘International Law and the Iraq War’ June , written evidence to the Tenth eport of FAC, Session –, . See also A oberts, ‘Counter-Terrorism, Armed Force And The Laws Of War’ () Survival . Tom Franck has argued that it was the SC and the UN, and not the individual members who are parties, with Iraq, to the cease-fire agreement, T Franck, n above, at . That view seems unduly formalistic and unrealistic. 135 136
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means’. The SC had used this expression in a number of resolutions since esolution .139 Given that recent SC practice, there was no room for a doctrine of implied authorisation.140 The intention of esolution was that the SC alone would determine whether the ‘serious consequences’ that Iraq would face would include the use of force. That there was no ‘automaticity’ in esolution have been made clear by the members of the SC, including the US and the UK, in the debate when esolution was adopted.141 The UK’s Foreign Affairs Committee considered that esolution , ‘would not provide unambiguous authorisation for military action’.142 The reference to esolution in the preamble to esolution was not a revival of the authorisation of member states to use force. It was only a warning to Iraq that the decision on the revival of such an authorisation could be taken by the Security Council. Vaughan Lowe has described the revival doctrine as flawed: There is the fact that esolution , on its face, patently does not authorize the use of force against Iraq and does not indicate that the authorization to the States acting in coalition with Kuwait could possibly be revived. There is the fact that there is no known doctrine of the revival of authorisations in Security Council resolutions, on which some implied revival could be based. There is the wording of later resolutions, such as the much-overlooked esolution , and esolution , which suggest that the authorisation to use force was given only for the duration of the operation to expel Iraq from Kuwait and that it is for the Security Council to decide what, if any, further action is to be taken against Iraq. There is the fact that, far from having abandoned interest in the matter the Security Council was itself actively seized of the matter at all critical times. And there are the express views of the Security Council members set out in the debates on esolution which make it clear that, in contrast to the view of the United States, some Members required a second resolution See UNSC es (Bosnia), (Somalia), (Haiti), (wanda). See J Lobel and M atner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection egime’ () AJIL . 141 See n above. See also Blokker, n above, on the debate on the automaticity of UNSC es . 142 See n above (Second eport, –), para . See (on the application of Campaign for Nuclear Disarmament) v. Prime Minister [] EWHC ; The Times, December (court had no jurisdiction to declare the true interpretation of an international instrument (esolution ) that had not been incorporated into English domestic law and which it was unnecessary to interpret for the purposes of determining a person’s rights or duties under domestic law). 139 140
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explicitly granting an authorisation to use force, before force could be used against Iraq. Furthermore, for the ‘revival’ argument to succeed it would have to be explained what the limits were upon the authorisation to states acting in coalition with Kuwait . . .143
.. The Absence of a Second esolution On February , the US, the UK and Spain had presented a draft SC resolution (regularly referred to as the ‘second resolution’) that would have made a Chapter VII decision that Iraq has ‘failed to take the final opportunity afforded it in esolution ()’.144 Amendments were considered under which Iraq could have a final chance to comply by March , or shortly thereafter, to reply to a series of unanswered questions.145 A Security Council resolution requires nine votes out of fifteen to pass, with no permanent member exercising a veto.146 An abstention by a permanent member does not operate as a veto. However, on March , when it became clear that the resolution might not attract the support of a majority of the SC,147 and that in any event France would veto it, the draft resolution was withdrawn.148 As a consequence, there was no express or implied authorisation for the use of force against Iraq.149 Vaughan Lowe has argued that the failure to secure a second resolution was legally significant: [T]he United Kingdom was quite right to press hard for a second resolution from the Security Council explicitly authorising the use of
143 Lowe, n above at – (notes omitted); Adjudication by V Lowe, ‘BBC’s Shadow “Judicial eview” by the Today Programme’, in Farebrother and Kollerstrom, n above, . 144 The draft is reproduced in Iraq War eader, n above, –. 145 The US also agreed to the publication of a Middle East ‘oadmap’ which it wanted to delay until after the war with Iraq. This was an attempt to secure wider political support for its position on Iraq. 146 Art UN Charter. 147 Wedgwood, n above at cites a ‘veteran American diplomat’ to the effect that a resolution reaffirming the use of force could have gained votes. 148 ‘Iraq’s Disarmament can be Achieved by Peaceful Means’ Statement by the Foreign Ministers of France, ussia and Germany in response to US–UK draft resolution, March , Iraq War eader, n above, . 149 See also T Franck, ‘Legal Authority for the Possible Use of Force Against Iraq’ () ASIL Proceedings .
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force against Iraq; and having failed to secure one, the invasion lacked legal justification in my view.150
Even though the second resolution did not contain any reference to force or to ‘all necessary measures’ a number of states made clear in advance that they would oppose it because of a perception that almost any second resolution would be misinterpreted as authorising force to be used against Iraq, ‘France will not allow any resolution to be adopted that authorises the automatic use of force’.151 For this reason President Chirac of France committed France to vetoing any second resolution irrespective of its terms.152 The language used was unfortunate and left France open to the criticism that it had rejected a draft resolution even before Iraq itself had. This seemed a difficult position to justify. In reality, however, it was clear that France was making known its opposition to any second resolution which expressly or implicitly authorised the use of force either immediately at the end of a specified period or in the event of specified failures by Iraq (that is, an ultimatum). It would not commit itself to any such ultimatum. The idea of some relatively short but unspecified delay always seems attractive. However, France and everyone else were acutely aware that, in terms of military preparedness, this would have had severe consequences. Given the climatic conditions in Iraq and the size of the coalition forces, ‘The French position meant abandoning the use of military ground against Iraq for the foreseeable future’.153 ussia also committed itself to vetoing any second resolution for the same reasons France. Germany, a non-permanent member of the SC, was also opposed.154 The opposition of France, Germany and ussia has to be evaluated on its own merits but the domestic political position of France and Germany was clearly significant. Jacques Chirac had been elected President in May with a large majority over the National Front Leader Jean-Marie Le Pen. That unusual election had occurred because the French socialists had not turned out to vote. They were left between with a choice between Chirac, whom they detested, and Le Pen, who they detested even more. They chose the former. There was strong popular opposition to the war and Chirac followed this. Lowe, n above, . UN Doc S/PV/, p. (representative of France). 152 See . 153 Wedgwood, n above, . 154 See UN Doc S/PV/, pp – (Fischer, Vice Chancellor and Minister for Foreign Affairs of Germany). 150 151
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In the run up to the general elections in Germany in September , Gerhard Schroeder’s Social Democrats looked in danger of losing power. He resorted to an anti-President Bush and anti-war policy and secured victory. Having done so, he could not then support the US in the Iraq War. Of the three major anti-war states, ussia’s opposition appears to be the most principled. To return to the merits of the dispute with Iraq, it was to open to those three states, and to the majority of the members of the SC, to take the view that, even though Iraq was in material breach, it did not pose an immediate threat, that the inspections regime was producing results and needed to be continued and that the risks of action were greater than those of inaction.155 For example, the representative of France stated that: In unanimously adopting resolution () we collectively expressed our agreement with the two-stage approach proposed by France: disarmament through inspections and, if this strategy should fail, consideration by the Security Council of all the options, including resorting to force. Clearly, it was in the event that inspections failed, and only in that case, that a second resolution could be justified.156
France was strongly opposed to the use of military force. President Chirac stated that: War can only lead to the development of terrorism . . . The war will break up the international coalition against terrorism.157
The victors of any war would be, ‘those who want a clash of civilisations, cultures and religions’.158 This broader perspective was 155 See eg, UN Doc S/PV/ ( March ) (representatives of Syria, ussia, France, China). ichard Falk has argued that the SC’s withholding of the mandate ‘represented a responsible exercise of constitutional restraint’, Falk, ‘What Future for the UN Charter System of War Prevention?’ () AJIL at . See also G Monbiot, ‘Dreamers and Idiots’ The Guardian ( November ) (arguing that the US deliberately avoided a peaceful solution in Iraq). 156 UN Doc S/PV/, p ( February ). See also the French statements in UN Doc S/PV/, pp –, UN Doc SPV/, pp –. 157 Cited in ‘Britain sets new tests for Saddam’ The Guardian ( March ). ‘. . . extremism stands to benefit enormously from an ill-calculated adventure in Iraq’, UN Doc S/PV/, p (representative of Iran, February ). 158 Ibid. See Huntingdon, ch , n above. For a striking judicial affirmation of where cultures can clash see European Court of Human ights, efah (The Welfare Party) v Turkey, (Application Nos. /, and others), February , para () EH 1 ECtH (holding that application of the proposed sharia system was incompatible with the fundamental principles of democracy). The case is discussed in ch . below.
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also reflected in the comments of the French Foreign Minister, Dominique de Villepin. He stated that: [T]he choice is indeed between two visions of the world. To those who chose the use of force and thought they could resolve the world’s complexity through swift preventive action, France offered, in contrast, resolute action over time.159
When the SC discussions finally broke down in March , France, ussia and Germany remained strongly opposed to the use of force.160 The UK’s Foreign Affairs Committee accepted that: [T]he divisions that emerged among Security Council members between January and March over how to deal with the threat from Iraq are likely to have been a consequence of genuinely different assessments of the nature and extent of that threat.161
Many states in the SC recorded their concern at the humanitarian catastrophe the war might cause for the Iraqi civilian population,162 the effect of conflict on the geo-political map of the whole of the Middle East, the global instability that any military conflict might cause and the massive costs of war that could be better spent on humanitarian aid across the world. The representative of Nigeria commented that: Is it not disturbing that, while the coffers of the Global Fund to Fight AIDS, Tuberculosis and Malaria . . . are empty, there are some Members in our midst that can afford tens of billions of dollars to deploy forces of , . . .163
Asked whether an attack on Iraq without Security Council authorisation would violate the UN Charter, the UN Secretary-General, in an unusual intervention, stated that, ‘If the US and others were to go outside the Council and take military action, it would not be in conformity with the Charter’. 164 Asked whether the Secretary-General could interpret the UN Charter, a UN Spokesman said it was his UN Doc S/PV/ ( March ) (emphasis added). See UN Doc S/PV/ ( March ). See also the earlier Memorandum to the SC from France, ussia and Germany, February . 161 Ninth eport, FAC, Session –, n above, para . 162 One estimate put the number of persons that could be dependant on food aid at million, briefing by Under-Secretary-General for Humanitarian Affairs, UN, New York, February . See also UN Doc S/PV/ ( March ). 163 UN Doc S/PV/ (esumption I) p . Cf the arguments in H Charlesworth, ‘International Law: A Discipline of Crisis’ () ML . 164 Press Conference, Monday March (UN). 159 160
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duty to defend the Charter, so he needed to interpret it, and had legal advisers to assist him in that effort. The comments of the SecretaryGeneral in suggest that he takes a different view on legality of the use of force against Iraq than his predecessor did on .165 In any event, the use of force in had a much more plausible connection with the purposes of resolution . .
It has been submitted above that the legality argument of the US and the UK based on SC resolutions is a tenable and defensible one.166 However, the US and the UK could not persuade the other members of the SC that the relevant SC resolutions could be interpreted in this way.167 Similarly, a majority member states of the UN have rejected their interpretation. The coalition of over states that the US cited in support of its action did not express support for the legal views of the US and the UK in public (although many of them may have done so in private). Unless we have an international legal system in which all states ultimately, rather than merely initially, exercise a right of auto-interpretation, then one is forced to the conclusion that the better view of international law in is that the US and the UK acted illegally.168 One suspects that this would be the view of the International Court of Justice if the issue ever came before it. If there were a right of auto-interpretation for states then, presumably, it would have been open to Iraq as well. That would seem to make nonsense of the whole legal case. If the US and the UK acted illegally that does not end debate on the issue. At the very least, it places a very heavy moral and ethical burden on them to justify their actions. See text to n above. See Ch .. above. 167 There have been differences in the past about the correct interpretation of, eg, the sanctions resolution on Iraq, UNSC esolution (). See also C Stahn, ‘Enforcement of the Collective Will After Iraq’ () American Journal of International Law . 168 See Murphy, n above; Sifris, ‘Operation Iraqi Freedom: The Legality of the War’ () () Melbourne Journal of International Law (concluding that the use of force against Iraq was probably not legal, but also contending that the combined threat of weapons of mass destruction and terrorism, as well as the changing values of the international community, are precipitating a paradigm shift in international law): ‘Whilst the use of force against Iraq was probably illegal according to the traditional understanding of international law, the law is in the process of changing. What remains undetermined is whether, ultimately, change will be propelled by US might or by a global consensus on what is right’, ibid . 165 166
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There is also a more general legitimacy argument related to the idea of international law as a discipline of law. After considering the legality arguments Vaughan Lowe made what he describes as a ‘more basic point’ about the discussions of the legality of the Iraq War: It is simply unacceptable that a step as serious and important as a massive military attack upon a State should be launched on the basis of a legal argument dependent upon dubious inferences drawn from silences in esolution and the muffled echoes of earlier resolutions, unsupported by any contemporary authorisation to use force. No domestic court or authority in the United States or the United Kingdom would tolerate governmental action based upon such flimsy arguments.169
It is difficult to disagree with this view. It also informs us of law’s place in legitimacy.
169
Lowe, n above, .
5 The United States and the International Legal System The legal and political arguments addressed in the previous chapters can only be understood in the context of the US approach to international law and the international legal system after September. Although some aspects of this approach were evident before September , since then the US has raised some hard questions about the functions and purposes of that law and system.1 Christopher Hill suggested that, Henceforth the foreign policy of the world’s only superpower will start from a wholly new set of assumptions.2 .
The US won’t necessarily accept that more international laws and more international institutions are necessarily a good thing. At one extreme there was the immediate political response of President Bush to the - attacks. At one point he answered that in the face of attacks such as those of September, ‘There are no rules’.3 That conveyed a natural sense of frustration and a political determination to respond to the attacks. However, it should not be taken too literally. Under the ‘rules’ of international law the US clearly had a right of self-defence and it exercised it. On October , the member See SD Murphy, United States Practice in International Law (Cambridge, CUP, ). C Hill, ‘ September : Perspectives From International elations’ () () International elations ; G Monbiot, ‘A Wilful Blindness’ The Guardian ( March ) (generally viewing the Iraq crisis as part of the attempt by a superpower to reshape the world to suit itself and specifically suggesting that, ‘It has also used its national tragedy as an excuse for developing new nuclear and biological weapons, while ripping up the global treaties designed to contain them’). 3 Press Conference, September , cited in A Hurrell, ‘“There are no ules” (George W Bush): International Order after September ’ () International elations () . 1 2
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states of NATO formally invoked Article of the NATO Treaty (the mutual defence provision) for the first time.4 SC resolutions also acknowledged the US’s right of self-defence.5 Nonetheless, the current US approach does evidence a hard-nosed look at existing and prospective international agreements and institutions.6 The advocates of those laws and institutions have the burden of proof. There are a number of examples of the US’s more critical approach. First, in March , the US took the view that the Kyoto Protocol to ‘The United Nations Framework Convention on Climate Change’ was poor environmental thinking and bad economics.7 The US did receive a convincing response either from other states or from the environmental community. For example, in August , a eport of the UK’s Institute for Public Policy esearch, Fair Share of Atmosphere iIs Only Solution to Climate Change, described the Kyoto Treaty as fundamentally flawed and as having no chance of working.8 A second example is the Anti-Ballistic Missile Treaty with ussia. This was considered by the US to be outdated and outmoded in the light of new threats and a policy of missile defence.9 Thirdly, between and , the US’s opposition to the International Criminal Court (ICC) hardened into a sustained diplomatic campaign against it. In April , the US made international legal history by becoming the first state ever to ‘unsign’ a treaty, the ICC Statute. There was a legal consequence to this in terms of releasing the US from any obligation not to act inconsistently with the object and purpose of the ICC Statute.10 4 See T Lansford, All for One: Terrorism, NATO and the United States (Aldershot, Ashgate, ). 5 See M Byers, ‘International Law, Terrorism, the Use of Force and International Law after September’ () ICLQ . 6 See P Sands, ‘American Unilateralism’ () ASIL Proceedings . 7 See . 8 See . In December it was reported that ussia would follow suit, pleading the economic costs of the Kyoto Protocol, see B Maddox, ‘ussian Death Knell for Kyoto Treaty is Echoed in EU Forecast’ The Times ( December ). 9 See . It was replaced by the Moscow Treaty on Strategic Offensive eductions (May ). See Mullerson, ‘International Law, The ABM Treaty: Changed Circumstances, Extraordinary Events, Supreme Interests and International Law’ () ICLQ ; FL Kirgis, ‘Proposed Missile Defenses and the ABM Treaty’ (May ) ASIL Insights (the President appears to have decided that the events of September , together with preexisting concerns about possible terrorist missile attacks, are extraordinary events related to the subject matter of the ABM treaty which have jeopardised US supreme interests). 10 See Art Vienna Convention on the Law of Treaties (); T Aust, letter to The Times ( April ).
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Since the US has asserted a more extensive doctrine of state responsibility. It warned that, ‘any nation that continues to harbor or support terrorism will be regarded by the US as a hostile regime’.11 In addition, it has displayed a reduced willingness to tolerate the activities of ‘rogue’ or ‘outlaw’ states or ‘states of concern’.12 uth Wedgwood has submitted that: esolution , adopted within two weeks after the terrorist attacks (of September ) also fundamentally alters the standards of state responsibility, announcing that states will be held liable for any assistance to international terrorist groups. Going well beyond the standards of the Nicaragua and Tadic cases, the Council has decided that the failure to police the provision of logistics, finances, asylum, or matériel to an international terrorist group is delictual state conduct.13
In June , the US State Department declared that the term ‘rogue’ as applied to nations would be dropped and the more discriminating term ‘states of concern’ would be used, examples being those identified in President GW Bush’s speech to the General Assembly on the ‘Axis of Evil’: Iraq, Iran and North Korea.14 They would no longer be able to hide behind the veil of sovereignty. In some circumstances, as with Iraq, regime change would be an explicit goal because it was the only way to achieve the relevant goals, in that case, the elimination of weapons of mass destruction.15 Where smart sanctions or even long-term sanctions were proving ineffective in changing the behaviour of states, and were merely harming the civilian population,16 consideration needed to be given to using force to 11 GW Bush, ‘Address to a Joint Session of Congress and the American People’ September , ; Byers, n above. 12 See ‘ogue States: Isolation versus Enlargement in the st Century’ () () Journal of International Affairs; GJ Simpson, Great Powers and Outlaw States in the International Legal Order (Cambridge, CUP, , forthcoming). 13 Wedgwood, ‘The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defence’ () AJIL at . 14 See ch . above. 15 See ML Sifry and C Cerf (eds), The Iraq War eader: History, Documents, Opinions (New York, Touchstone, ) (hereinafter Iraq War eader) –; LH Lanham, ‘egime Change’ ibid . 16 See J Simpson, The Wars Against Saddam: Taking the Hard oad to Baghdad (London, Macmillan, ) –; P McGeough, Manhattan to Baghdad: Dispatches from the Frontline in the War on Terror (Crows Nest, NSW, Allen & Unwin, ) –. Cf A Tostensen and B Bull, ‘Are Smart Sanctions Feasible?’ () World Politics .
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achieve regime change.17 This is part of a broader US policy to expand the zone of democratic states on the rationalisation that such states are less likely to support terrorism and the proliferation of weapons of mass destruction.18 The pro-democracy policy appears sensible and coherent but the practicalities are always more complex. For example, Pakistan represents a particularly problematic case for the US policy. It is one of the worlds’ largest democracies but its leader achieved power in a military coup.19 Al-Qaeda had operated extensively from its territory. It has been developing its nuclear weapon capability and been a source of proliferation. However, it has also been a key US ally in the war on terrorism. As for US policy on Iraq, this was open to the criticism that other states presented a greater threat in the context of the proliferation of weapons of mass destruction, particularly Pakistan and North Korea.20 North Korea was concerned that any action against Iraq would be followed by action against it. In October , it had admitted having a covert nuclear programme in violation of a agreement. The US and its allies suspended fuel shipments. North Korea retaliated by expelling UN monitors, withdrawing from the Nuclear Non-Proliferation Treaty21 and restarting a nuclear reactor. In , North Korea test-fired missiles into the Sea of Japan, violated its sea border with South Korea and its military aircraft surrounded an unarmed US spy plane.22 There have also been suggestions that it would be willing to sell fissile nuclear material or a nuclear device.23 The broader political context is that North Korea 17 ‘The crumbling of sanctions was one of the motives for the Bush administration’s move towards war’ K Betts, ‘Suicide from Fear of Death’ () () Foreign Affairs . Of course, the effects of the sanctions made military victory much easier. 18 See ‘The National Security Strategy of the United States’, Part VII entitled ‘Expand the Circle of Development by Opening Societies and Building the Infrastructure of Democracy’ (September ) reproduced in Appendix III below. 19 Some degree of legitimation was achieved by President Musharraf in January when he won a vote of confidence from Pakistan’s national and provincial assemblies. The vote, which opposition leaders boycotted, allows the military ruler to stay in power until . 20 See J Schell, ‘Pre-Emptive Defeat, or How Not to Fight Proliferation’ in The Iraq War eader, n above, ; B Maddox, ‘ogue Scientists Hold Key to Pakistan’s Illicit Nuclear Trade’ The Times ( January ); G Allison, ‘How To Stop Nuclear Terror’ () () Foreign Affairs . There is also the separate problem of the safe management of nuclear material in the former USS, see ‘Facing the Danger’, (November ) Nature . 21 See FL Kirgis, ‘North Korea’s Withdrawal from the Nuclear Nonproliferation Treaty’ ( January ) ASIL Insights, 22 See L Parry, ‘ogue State Sets World a Puzzle’ The Times ( March ). 23 See Wedgwood, n above, at .
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wants a non-aggression treaty and economic aid from the United States. However, the US has taken the view that the United Nations Security Council should handle the nuclear problem. In August , North Korea agreed to multilateral negotiations but its policies seemed to be subject to frequent change and diplomatic mind games. The third state in the alleged ‘Axis of Evil’—Iran—was subjected to intense diplomatic pressure, particularly from the EU, in relation to its nuclear development programme. It claimed that this was purely for civilian use but was unwilling to accept an enhanced IAEA inspections regime to monitor this. In October an IAEA resolution imposing a deadline for cooperation was initially rejected by Iran but in the end an agreement was reached on cooperation and inspections. . : - -
The US has vigorously asserted an extensive interpretation of its rights under international law. These include the scope of selfdefence in the context of the War on Terror.24 The US has articulated a right of ‘pre-emptive’ self-defence. This was considered at length in chapter .25 .
As considered in chapter , the first legality argument in the War on Iraq was based on SC resolutions. From the US perspective, SC resolutions dealing with threats to international peace and security were to be widely interpreted. This raises the preliminary question: how SC resolutions should be interpreted?26 The SC regards itself as the 24 See EPJ Myers and N White, ‘The Twin Towers Attack: Unlimited ight of SelfDefence’ () JCSL ; Y Arai-Takayashi, ‘Shifting Boundaries of the ight of SelfDefence—Appraising the Impact of the September Attacks on Jus Ad Bellum’ () () International Lawyer ; J Delbrück, ‘The Fight against Global Terrorism: SelfDefense or Collective Security as International Police Action? Some Comments on the International Legal Implications of the “War Against Terrorism”’ () German Yearbook of International Law . 25 See ch . above. 26 See M Wood, ‘The Interpretation of SC esolutions’ Max Planck Yearbook of United Nations Law .
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master of the interpretation of its own resolutions. In the Namibia Case, the ICJ stated that: The language of a resolution of the Security Council should be carefully analyzed . . . having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences.27
An SC resolution is not the same a multilateral treaty, but are analogous tools of interpretation to be used? The use of treaty concepts like ‘material breach’ in SC resolutions suggests that the law of treaties can provide helpful guidance. If so, then interpretation would follow the terms of Articles – of the Vienna Convention on the Law of Treaties. Attention would focus on an interpretation ‘in good faith in accordance with the ordinary meaning to be given to the terms’ in the ‘light of their object and purpose’. The VCLT also refers to, ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. In practice, this approach of looking to subsequent practice has become increasingly important.28 This would suggest that subsequent agreement on the interpretation of the resolution and subsequent practice in its application could be taken account of. The preparatory work could also be consulted as a supplementary means of interpretation in the terms of Article VCLT (). This approach is broadly realistic but obviously it has to be adapted to the context. By definition, resolutions are not legislation and are not treaties. There are a wide variety of SC resolutions in terms of their content but ‘most provisions of SC’s are not intended to create rights and obligations binding on states’.29 They do not need the consent of the states against whom they are applied. The drafting record of resolutions can be minimal or non-existent and ‘most of the negotiating history of a resolution is not on the public record’.30 States more often make statements after rather than before the adoption of a resolution. These are often political statements though they may refer to legal points. SC resolutions are often compromise texts that are left deliberately ambiguous.31 In some circumstances, the same can be said of treaties. Much of the SC’s work is done in 27 28 29 30 31
[] ICJ eps , . This is evident, eg, in the jurisprudence of the International Court of Justice. Wood, n above, . Ibid. Ibid.
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private meetings. The preamble to an SC resolution may assist in determining the object and purpose of the resolution but: there is no conscious effort to ensure that the object and purpose of each operative provision is reflected in the preamble.32
There may or may not be subsequent practice of the SC which establishes its agreement on the interpretation of a resolution. Most SC resolutions are part of a series and have to be read in the context of each other. Finally, although resolutions are usually drafted in English, and occasionally in French, formally there are six authentic language versions to consider. Who interprets SC resolutions? Michael Wood, the UK Foreign Office’s Legal Adviser, has noted that SC resolutions fall to be interpreted by a wide range of authorities and individuals but that: Only the Security Council, or some body authorized to do so by the Council, may give an authentic interpretation in the true sense.33
But what should be the approach if there is a serious disagreement between the members of the SC as to the meaning of SC resolutions? This is exactly what happened in the Iraq crisis.34 Should the search be for a consensus meaning? A majority meaning? Can the VCLT’s interpretation approach regime be effectively applied in the sanctions context without the Charters’ sanctions system breaking down? Another element of difference between treaties and SC resolutions is that the membership of the SC is continually changing as five of the ten non-permanent members change every year.35 Such issues have raised practical problems. For example, there were significant differences of interpretation between SC members on the sanctions resolutions against Iraq and on the conditions for their being lifted.36 Ibid . Ibid . He cites the Advisory Opinion of the Permanent International Court of Justice in the Jaworzina Case, December , PCIJ ep Series B No , : ‘it is an established principle that the right of giving an authoritative interpretation of a legal rule (le droit d’interpréter authentiquement) belongs solely to the person or body who has power to modify or suppress it’. 34 See ch . above. 35 As of January , the composition of the SC was: US, UK, China, ussian Federation and France (permanent members); Angola, Bulgaria, Cameroon, Chile, Germany, Guinea, Mexico, Pakistan, Spain, Syria (non-permanent members). The nonpermanent members serve a two-year period. The composition changed again on January . 36 See D Cortright and GA Lopez, The Sanctions Decade: Assessing UN Strategies in the s (Boulder, Colorado, einner, ) –. 32 33
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.
Another aspect of the US’s approach to international law and the international system after September has been to highlight the consequences of its global responsibilities and its sole superpower status.37 This is one aspect of American exceptionalism.38 If the international community wanted the US to continue its assumed role, then these global responsibilities had to be properly taken into account.39 In some contexts states would be forced to choose. For example, did they want an ICC that could exercise jurisdiction over American service personnel or officials or did they want US payment for and contribution to peacekeeping? In , the issue was fudged in a controversial SC resolution that granted a one-year immunity to: [C]urrent or former officials from a contributing state not a party to the ome Statute over acts and omissions relating to a United Nations established or authorized operations . . .’.40
In a rare public debate in the SC, over states criticised the SC resolution and many categorised it as illegal.41 The SC expressed an intention to renew the resolution for further -month periods for as long as may be necessary. In June , the immunity was renewed in SC resolution (). The ‘war on terrorism’ is clearly not one of the ‘United Nations established or authorized operations’ as such. Whether the military action against Iraq in would be a ‘United Nations established or authorized operations’ assumed central importance as a political and diplomatic issue. In the event it was not.42
37 See the eport of the ‘Project for a New American Century’ , discussed in J Bookman, ‘The President’s eal Goal In Iraq’ in Iraq War eader, n above, . 38 See C Longley, Chosen People: The Big Idea that Shapes England and America (London, Hodder & Stoughton, ). 39 See ‘The Future of Pax Americana’ in Iraq War eader, n above, –. 40 See UNSC es (); C Stahn, ‘The Ambiguities of Security Council esolution ()’ () EJIL . 41 M Weller, ‘UN Security Council Action on the ICC’ () () International Affairs . 42 One interesting point in relation to SC resolution is that it appears that the ICC will have jurisdiction to determine what is or is not a ‘United Nations established or authorized operations’.
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.
The US considers that global responsibilities of the US have to be reflected in the work of international institutions. If the paths of multilateralism and institutionalism are to be followed by the US, then the UN in general, and the SC in particular, had to prove that it would take responsibility.43 If the SC did not effectively deal with Iraq then other states, like North Korea, and states engaged in the proliferation of WMD, would not take the UN seriously.44 The UN Secretary-General clearly appreciated this. during the Iraq crisis he regularly stated that it would be much better if the SC took responsibility and acted together: All around the world these last few months, we have seen what an immense significance not only states, but their peoples, attach to the legitimacy provided by the UN, and by the Security Council, as the common framework for securing peace.45
During the Iraq crisis, international institutional pressures were operating strongly. UN member states, and in particular those on the SC, realised that it was imperative to maintain the unity, authority and legitimacy of the SC.46 Immense political and diplomatic capital was expended in the pursuit of this objective.47 States repeatedly emphasised how critical the SC response to the crisis in Iraq was for the future of the UN and for world order:48 A core question in the aftermath of September is whether international institutions born and shaped by one political era—the Cold War—can adapt themselves to that of another.49 43 See B Fassbender, ‘Uncertain Steps into a Post-Cold War World: The ole and Functioning of the UN Security Council after a Decade of Measures against Iraq’ () EJIL . 44 See L Damrosch, ‘The Permanent Five as Enforcers of Controls on Weapons of Mass Destruction: Building on the Iraq “Precedent”?’ () EJIL . 45 K Annan, ‘Keep the UN United’ Wall Street Journal ( March ); K Annan, ‘I Stand before You Today a Multilateralist’ Speech to General Assembly on September , in Iraq War eader, n above, . 46 See eg, UN Doc S/PV/, , and (esumption I), , (esumption I). See AM Slaughter-Burley, ‘The Will to Make it Work’ Washington Post ( March ). 47 See ‘Last Dance at the UN’ in Iraq War eader, n above, –. 48 See eg, UN Doc S/PV/ (esumption I), pp – (Thailand). 49 Editorial, ‘War and After–A Conflict that Could not be Avoided after September ’ The Times ( March ).
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Although the US has challenged international institutions such as the SC to take their responsibilities seriously, many states take the view that it has been hypocriticial in its approach. During the Iraq crisis the US made it clear that if it could not secure SC approval it would act without it anyway.50 Some states saw this as the US prejudging the decisions of the SC or even as destabilising the possibility of the SC making decisions. Either international institutions do what the US wishes, or they will be ignored. Even after the Iraq crisis, the US continues to formally profess its commitment to multilateralism.51 .
.. Public Discussion What was also remarkable in the Iraq crisis was the degree to which the evidence on Iraq was presented and discussed in public. Open meetings were held in the SC so that a larger number of states could express their views on the legality and legitimacy of any military action.52 Almost all of the statements favoured the peaceful settlement of the dispute and were anti-war in their emphasis. The representative of Malawi remarked that: Wars begin in the minds of men and women, and it is in the minds of the same architects of war that the defences of peace must start.53
.. The Evidence of the International Inspectors The interpretation of the evidence in the successive reports to the SC from Mr Blix, the Executive Chairman of UNSCOM, and from Mr El Baradei, Director General of the International Atomic Energy 50 For the argument that this represents a longer historical practice of the US see M Dunne, ‘The United States, the United Nations and Iraq’ () International Affairs . 51 C Powell, ‘Why America Takes the Path of Enlightened Self-Interest’ The Times ( January ); Watson, ’Powell Admits Errors in War on Terror’ The Times ( January ). 52 See eg the statements of representatives in UN Docs S/PV/ ( March ) and S/PV/ (esumption I) ( March ), and of representatives in S/PV/ ( February ) and SP/PV/ (esumption I) ( February ). 53 UN Doc S/PV/ (esumption I), p .
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Agency, assumed a pivotal role.54 On December , Iraq submitted a , page declaration as required by paragraph of resolution . The United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) was not satisfied with the declaration.55 No state argued that Iraq had provided the: [C]urrently accurate, full, and complete declaration of all aspects of its programmes to develop chemical, biological, and nuclear weapons, ballistic missiles, and other delivery systems’
to the Inspectors or the full and complete cooperation required by esolution . Iraq consistently maintained that it had no weapons of mass destruction and that it was difficult for it to prove a negative, that is, their non existence—‘an empty hand has nothing to give’.56 The Head of UNMOVIC took the view that Iraq had not presented credible evidence of the destruction of weapons, for example, by way of documentary evidence and the testimony of staff. The member states of the UN were presented by UNMOVIC and the IAEA with complex information and highly nuanced assessments.57 Both the evidence and the assessment of the evidence were disputed. .. The Evidence of the UK and the US In September the UK published a Dossier of evidence on Iraq’s Weapons of Mass Destruction: The Assessment of the British Government.58 In February , a second UK Dossier was published on Iraq—Its Infrastructure of Concealment, Deception and Intimidation.59 This was partly discredited when it emerged that parts of it had been simply copied from academic articles.60 In October , the US Central 54 See ; UN Docs S/PV/, , ; Appendix VI below. 55 See UN Doc S/PV/, pp – (Blix). 56 epresentative of Iraq, UN Doc S/PV/, p . 57 See also P McGeough, Manhattan to Baghdad: Dispatches from the Frontline in the War on Terror (Crows Nest, NSW, Allen & Unwin, ) – on weapons of mass propaganda (The truth was that Bahgdad’s weapons of mass destruction were an unknown quantity) at . 58 See reproduced in Appendix IV below. For an influential non-governmental assessment see Iraq’s Weapons of Mass Destruction: A Net Assessment, The International Institute for Strategic Studies, September ; N Dombey, ‘What Has He Got?’ () () London eview of Books ( October). 59 See UN Doc S/PV/ ( February ). 60 M White and B Whitaker, ‘UK War Dossier a Sham’ The Guardian ( February ).
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Intelligence Agency had published a report on Iraq’s Weapons of Mass Destruction.61 In February , the US Secretary of State, Colin Powell, went to the SC and publicly presented its evidence against Iraq.62 The presentation included the playing of audio tapes, and the screening of video and satellite images. The evidence related to Iraq’s failure to disarm and to its alleged links with terrorist organisations, including Al-Qaeda.63 President Bush’s ‘State of the Union’ address in made reference to information from British intelligence concerning alleged Iraqi purchases of uranium from Niger. This intelligence subsequently turned out to be based on forged documents.64 .. The Evaluation of the Evidence Ultimately, the US and the UK did not succeed in persuading many other states or world opinion of its case. As the process continued, states disagreed in a number respects. First, in assessing the degree of cooperation on process and on substance that was being provided by Iraq. Comparison was frequently made with the disarmament process in South Africa in the s. Given the positive political decision by the South African Government, the process had been successfully completed in less than two years. In Iraq accepted an offer of talks with disarmament experts from South Africa.65 Secondly, states disagreed on the issue of temporal extensions for the international inspectors—did the inspectors need more time and, if so, how long? While some states stressed the history of the whole process of twelve years, others focused only on the short period of months since SC esolution in November . France, supported by Germany, proposed enhancing further the inspection regime with more inspectors, more regional offices, a surveillance body for sites and areas
61
See UN Doc S/PV/ ( February ), reproduced in Appendix V below. Iraq replied at the same meeting, pp –. 63 See also the letter from CIA Director George Tennet to Senator Bob Graham, in Iraq War eader, n above, . In broad political terms Al-Qaeda is opposed to non-Islamic regimes like that which existed in Iraq. 64 See J Simpson, The Wars against Saddam: Taking the Hard oad to Baghdad (London, Macmillan, ) –. 65 Nuclear disarmament had also been positively effected in recent years by the Ukraine and Kazakhstan. 62
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already inspected, increased capabilities for monitoring, collecting and processing information on Iraqi territory. They also argued for the inspectors to be given additional time.66 Thirdly, states differed as to whether the diplomatic and political processes had been exhausted and whether the time for force, as the last resort, had been reached. The representative of Indonesia stated that: War must be a final entry in the dictionary of their deliberations: a decision to be made by the Council only as a last, inescapable recourse.67
.. The Credibility of the UK Evidence: the ‘Sexed Up’ Dossier? The publication of evidence by the UK and the US was widely acclaimed at the time as progressive. However, particularly in the UK, the evidence subsequently became subject to severe scrutiny both in terms of the accuracy of its content and the mode of its preparation. The UK’s Secret Intelligence Service (MI) was unhappy at the publication of intelligence information as part of the political process.68 The UN Inspectors subsequently disagreed with some of the evidence in the UK’s September Dossier. More damagingly, a report by a British Broadcasting Corporation reporter, Andrew Gilligan, suggested that the September Dossier69 had been ‘sexed up’ on the instruction of Alastair Campbell, the Prime Minister’s Special Adviser and Director of Communications. The government had thereby effectively misled the UK Parliament and the UK public into supporting the decision to go to war. In particular, it was suggested that the Dossier had been changed in the week before publication by the insertion of the suggestion that Iraqi forces were able to deploy chemical or biological weapons within minutes of receiving an order to do so. Mr Gilligan’s source was described as ‘one of the senior officials in charge of drawing up the report’. These were grave allegations. Government officials strongly denied the claims and there was a major public dispute between the government and the BBC. UN Doc S/PV/ ( February ), p . UN Doc S/PV/ ( March ), p . 68 See Simpson, n above, –, who comments that, ‘Fundamentally, the problem lay in mixing up intelligence with public relations’ at . 69 See n above. 66 67
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In July , the UK Parliament’s Foreign Affairs Committee (FAC) published a lengthy report entitled The Decision to go to War in Iraq.70 This largely exonerated the government and its officials on the issues of substance but expressed criticism of some of the procedures used and some of the restrictions it faced on investigating the issues.71 The government justified the restrictions on the basis of a separate inquiry by an Intelligence and Security Committee. This is a Committee of both Houses of Parliament that is appointed by the Prime Minister and which meets in private. The key conclusions and recommendations of the FAC’s eport are sufficiently important to justify their recitation at length. They deal with questions of evidence, accuracy and procedure: . We conclude that it appears likely that there was only limited access to reliable human intelligence in Iraq, and that as a consequence the United Kingdom may have been heavily reliant on US technical intelligence, on defectors and on exiles with an agenda of their own. . We conclude that the March assessment of Iraq’s WMD was not ‘suppressed’, as was alleged, but that its publication was delayed as part an iterative process of updating and amendment, which culminated in the September Dossier. . We conclude that it is too soon to tell whether the Government’s assertions on Iraq’s chemical and biological weapons will be borne out. However, we have no doubt that the threat posed to United Kingdom forces was genuinely perceived as a real and present danger and that the steps taken to protect them taken were justified by the information available at the time. . We recommend that in its response to this eport the Government set out whether it still considers the September Dossier to be accurate in what it states about Iraq’s chemical and biological weapons programmes, in the light of subsequent events. . We recommend that, in its response to this eport, the Government give its current assessment of the status of the Al Samoud missile infrastructure. We further recommend that in its response to this eport the Government set out whether it still considers the September Dossier to be accurate in what it states about Iraq’s ballistic missile programme generally, and the retained al-Hussein missiles in particular, in the light of subsequent events. . We conclude that the accuracy of most of the claims in relation to Iraq’s nuclear weapons programme can only be judged once the Ninth eport of Session –, Hansard HC HC – ( July ). There was some disagreement within the FAC, see its Formal Minutes, eport, p ff. 70 71
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Survey Group has gained access to the relevant scientists and documentation. . We recommend that the Foreign Secretary provide the Committee with the date on which the British intelligence community were first informed by the CIA that forged documentation in relation to Iraqi purchases of uranium from Niger existed, as soon as he has found this out. . We conclude that it is very odd indeed that the Government asserts that it was not relying on the evidence which has since been shown to have been forged, but that eight months later it is still reviewing the other evidence. The assertion ‘. . . that Iraq sought the supply of significant amounts of uranium from Africa . . .’ should have been qualified to reflect the uncertainty. We recommend that the Government explain on what evidence it relied for its judgment in September that Iraq had recently sought significant quantities of uranium from Africa. We further recommend that in its response to this eport the Government set out whether it still considers the September Dossier to be accurate in what it states about Iraq’s attempts to procure uranium from Africa, in the light of subsequent events. . We conclude that the minutes claim did not warrant the prominence given to it in the Dossier, because it was based on intelligence from a single, uncorroborated source. We recommend that the Government explain why the claim was given such prominence. . We further recommend that in its response to this eport the Government set out whether it still considers the September Dossier to be accurate in what it states about the minute claim, in the light of subsequent events. . We conclude that Alastair Campbell did not play any role in the inclusion of the minutes claim in the September Dossier. . We conclude that it was wrong for Alastair Campbell or any Special Adviser to have chaired a meeting on an intelligence matter, and we recommend that this practice cease. . We conclude that on the basis of the evidence available to us Alastair Campbell did not exert or seek to exert improper influence on the drafting of the September Dossier. . We conclude that the claims made in the September Dossier were in all probability well founded on the basis of the intelligence then available, although as we have already stated we have concerns about the emphasis given to some of them. We further conclude that, in the absence of reliable evidence that intelligence personnel have either complained about or sought to distance themselves from the content of the Dossier, allegations of politically inspired meddling cannot credibly be established.
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. We conclude that without access to the intelligence or to those who handled it, we cannot know if it was in any respect faulty or misinterpreted. Although without the Foreign Secretary’s degree of knowledge, we share his confidence in the men and women who serve in the agencies. . We conclude that the language used in the September Dossier was in places more assertive than that traditionally used in intelligence documents. We believe that there is much value in retaining the measured and even cautious tones which have been the hallmark of intelligence assessments and we recommend that this approach be retained. . We conclude that continuing disquiet and unease about the claims made in the September Dossier are unlikely to be dispelled unless more evidence of Iraq’s weapons of mass destruction programmes comes to light. . We conclude that the degree of autonomy given to the Iraqi Communications Group chaired by Alastair Campbell and the Coalition Information Centre which reported to him, as well as the lack of procedural accountability, were contributory factors to the affair of the ‘dodgy Dossier’. . The Committee also concludes that the process of compiling the February Dossier should have been more openly disclosed to Parliament. ... . We conclude that the effect of the February Dossier was almost wholly counter-productive. By producing such a document the Government undermined the credibility of their case for war and of the other documents which were part of it. . We further conclude that by referring to the document on the floor of the House as ‘further intelligence’ the Prime Minister—who had not been informed of its provenance, doubts about which only came to light several days later—misrepresented its status and thus inadvertently made a bad situation worse. . We conclude that it is wholly unacceptable for the Government to plagiarise work without attribution and to amend it without either highlighting the amendments or gaining the assent of the original author. We further conclude that it was fundamentally wrong to allow such a document to be presented to Parliament and made widely available without ministerial oversight. . We recommend that any paper presented to Parliament— whether laid on the Table, made available in the Vote Office or placed in the Library—for the purpose of explaining the Government’s foreign policy be signed off by a FCO Minister. We further recommend that any FCO document presented to Parliament which draws on
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unofficial sources should include full transparency of sources, and attribution where appropriate. . We recommend that there should be clarity over which Department has lead responsibility for groups such as the CIC. That Department should then be accountable to the relevant select committee. This would avoid the situation where nobody is prepared to take responsibility for certain interdepartmental groups. . We recommend that Andrew Gilligan’s alleged contacts be thoroughly investigated. We further recommend that the Government review links between the security and intelligence agencies, the media and Parliament and the rules which apply to them. . We conclude that the continuing independence and impartiality of the Joint Intelligence Committee is of utmost importance. We recommend that Ministers bear in mind at all times the importance of ensuring that the JIC is free of all political pressure. . We recommend that the Intelligence and Security Committee be reconstituted as a select committee of the House of Commons. . We conclude that continued refusal by Ministers to allow this committee access to intelligence papers and personnel, on this inquiry and more generally, is hampering it in the work which Parliament has asked it to carry out. . We recommend that the Government accept the principle that it should be prepared to accede to requests from the Foreign Affairs Committee for access to intelligence, when the Committee can demonstrate that it is of key importance to a specific inquiry it is conducting and unless there are genuine concerns for national security. We further recommend that, in cases where access is refused, full reasons should be given. . We conclude that the September Dossier was probably as complete and accurate as the Joint Intelligence Committee could make it, consistent with protecting sources, but that it contained undue emphases for a document of its kind. We further conclude that the jury is still out on the accuracy of the September Dossier until substantial evidence of Iraq’s weapons of mass destruction, or of their destruction, is found. . We conclude that the February Dossier was badly handled and was misrepresented as to its provenance and was thus counter-productive. The furore over the process by which the document was assembled and published diverted attention from its substance. This was deeply unfortunate, because the information it contained was important. . Consistent with the conclusions reached elsewhere in this eport, we conclude that Ministers did not mislead Parliament.
The eport was strongly critical of many aspects of the preparation and use of the dossiers and the accuracy of the information contained
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in them. It will be interesting to see whether in any future situation a UK government will consider it appropriate to publish intelligence information in support of its case. In November , the government published its response to the FAC’s eport.72 The government maintained that: The September Dossier was based primarily on British intelligence including human sources. Much of the intelligence came from within Iraq. Where US-derived intelligence was used, the UK made its own independent assessment of the content.
As to the evidence on WMD, several judgments in the Dossier had been borne out. These included Iraq’s illegal programme to extend the range of the Al Samoud missile, Iraq’s illegal programme to produce even longer range missiles, concealment of documents at the homes of personnel associated with WMD Programmes, undeclared Unmanned Aerial Vehicle (UAV) capabilities, refurbished equipment, proscribed by UNSCOM as being part of prohibited CW programme, was also found at al-Qa qa. This was slated for destruction by UNMOVIC. It also noted that the progress report of the Iraq Survey Group presented in September reported the discovery, inter alia, of viable seed stocks of clostridium botulinum organisms, which could produce botulinum toxin, and covert laboratories working on assassination techniques using WMD-related materials, all of which were concealed from the UN. The Iraq Survey Group had reported systematic Iraqi concealment of nuclear weaponsrelated materials, personnel and capabilities. On the FAC’s points – on the Dossier and the minute claim, the Government indicated that it would await Lord Hutton’s report before responding on these points. (see ch .. below) As for language used in the September Dossier, the government’s view was that: The September Dossier was a different type of document from intelligence assessments used internally in Whitehall. Nevertheless, the language in it was equally carefully considered and reflected the authors’ assessment of the relevant information. When judgements were offered, the dossier described them accordingly (for example in the opening paragraph of the Executive Summary). 72 esponse of the Secretary of State for Foreign and Commonwealth Affairs to the Ninth eport of the Foreign Affairs Committee, Session –, The Decision to go to War in Iraq, (Cm , November ).
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As for the idea of reconstituting the Intelligence and Security Committee as a select committee of the House of Commons, the government saw no reason to change the current arrangements. .. The Hutton Inquiry Mr Gilligan’s source was subsequently identified as Dr David Kelly. He was not strictly an intelligence official and had had only limited involvement in drawing up the September Dossier. His role was limited to providing background information on the weapons inspections regime. He appeared before the FAC and was subjected to public criticism and humiliation.73 Shortly after his appearance before the FAC, Dr Kelly committed suicide. The Prime Minister immediately appointed a Law Lord, Lord Hutton, to conduct an inquiry into the circumstances of his death.74 The inquiry was held in public and extensive oral and written evidence was given.75 One of the most striking disclosures was by ichard Dearlove, the Head of the Secret Intelligence Service. He revealed to the Hutton Inquiry that there had been a misunderstanding relating to the minute claim.76 As noted above, the Dossier had included a claim that some of Iraq’s chemical and biological weapons ‘are deployable within minutes of an order to use them’.77 The readers of the eport had not understood that the claim related to ‘battlefield weapons only’. It is somewhat remarkable that no one in the government or the administration had sought to correct that misunderstanding. Lord Hutton’s eport, Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly C.M.G., was published on
73
‘I reckon you are chaff; you have been thrown up to divert our probing. Have you ever felt like a fall-guy? You have been set up, have you not?’ Andrew Mackinlay, Q, Foreign Affairs Committee, –i, July , Hansard, HC Session –. 74 Lord Hutton was one of the Law Lords who decided the Pinochet Case, see v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (No.) [] AC . 75 Some written evidence was provided by the government, the BBC, Mr Gilligan and the Kelly family after the close of the oral hearings and was not immediately published. 76 See ch .. above. 77 Dossier, n above, at .
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January .78 Its main conclusions relating to evidence and reporting were as follows: () On the issues relating to the preparation of the Government’s dossier of September entitled Iraq’s Weapons Of Mass Destruction, my conclusions are as follows: (i) The dossier was prepared and drafted by a small team of the assessment staff of the JIC. Mr John Scarlett, the Chairman of the JIC, had the overall responsibility for the drafting of the dossier. The dossier, which included the minutes claim, was issued by the Government on September with the full approval of the JIC. (ii) The minutes claim was based on a report which was received by the SIS from a source which that Service regarded as reliable. Therefore, whether or not at some time in the future the report on which the minutes claim was based is shown to be unreliable, the allegation reported by Mr Gilligan on May that the Government probably knew that the minutes claim was wrong before the Government decided to put it in the dossier, was an allegation which was unfounded. (iii) The allegation was also unfounded that the reason why the minutes claim was not in the original draft of the dossier was because it only came from one source and the intelligence agencies did not really believe it was necessarily true. The reason why the minutes claim did not appear in draft assessments or draft dossiers until September was because the intelligence report on which it was based was not received by the SIS until August and the JIC assessment staff did not have time to insert it in a draft until the draft of the assessment of September . (iv) The true position in relation to the attitude of ‘the Intelligence Services’ to the minutes claim being inserted in the dossier was that the concerns expressed by Dr Jones were considered by higher echelons in the Intelligence Services and were not acted upon, and the JIC, the most senior body in the Intelligence Services charged with the assessment of intelligence, approved the wording in the dossier. Moreover, the nuclear, chemical and biological weapons section of the Defence Intelligence Staff, headed by Dr Brian Jones, did not argue that the intelligence relating to the minutes claim should not have been included in the dossier but they did suggest that the wording in which the claim was stated in the dossier was 78 The Hutton Inquiry: Investigation into the Circumstances surrounding the Death of Dr David Kelly, . The dossier is discussed in chapter six of the report. For critical commentary see ‘The Hutton eport’ The Guardian, January .
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too strong and that instead of the dossier stating ‘we judge’ that ‘Iraq has: military plans for the use of chemical and biological weapons, including against its own Shia population. Some of these weapons are deployable within minutes of an order to use them’, the wording should state ‘intelligence suggests’. (v) Mr Alastair Campbell made it clear to Mr Scarlett on behalf of the Prime Minister that Downing Street wanted the dossier to be worded to make as strong a case as possible in relation to the threat posed by Saddam Hussein’s WMD, and Downing Street made written suggestions to Mr Scarlett as to changes in the wording of the draft dossier which would strengthen it. But Mr Campbell recognised, and told Mr Scarlett that Downing Street recognised, that nothing should be stated in the dossier with which the intelligence community were not entirely happy. (vi) Mr Scarlett accepted some of the drafting suggestions made to him by Downing Street but he only accepted those suggestions which were consistent with the intelligence known to the JIC and he rejected those suggestions which were not consistent with such intelligence and the dossier issued by the Government was approved by the JIC. (vii) As the dossier was one to be presented to, and read by, Parliament and the public, and was not an intelligence assessment to be considered only by the Government, I do not consider that it was improper for Mr Scarlett and the JIC to take into account suggestions as to drafting made by Downing Street and to adopt those suggestions if they were consistent with the intelligence available to the JIC. However I consider that the possibility cannot be completely ruled out that the desire of the Prime Minister to have a dossier which, whilst consistent with the available intelligence, was as strong as possible in relation to the threat posed by Saddam Hussein’s WMD, may have subconsciously influenced Mr Scarlett and the other members of the JIC to make the wording of the dossier somewhat stronger than it would have been if it had been contained in a normal JIC assessment. Although this possibility cannot be completely ruled out, I am satisfied that Mr Scarlett, the other members of the JIC, and the members of the assessment staff engaged in the drafting of the dossier were concerned to ensure that the contents of the dossier were consistent with the intelligence available to the JIC. (viii) The term ‘sexed-up’ is a slang expression, the meaning of which lacks clarity in the context of the discussion of the dossier. It is capable of two different meanings. It could mean that the dossier was embellished with items of intelligence known or believed to be false or unreliable to make the case against Saddam Hussein
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stronger, or it could mean that whilst the intelligence contained in the dossier was believed to be reliable, the dossier was drafted in such a way as to make the case against Saddam Hussein as strong as the intelligence contained in it permitted. If the term is used in this latter sense, then because of the drafting suggestions made by Downing Street for the purpose of making a strong case against Saddam Hussein, it could be said that the Government ‘sexed-up’ the dossier. However in the context of the broadcasts in which the ‘sexing-up’ allegation was reported and having regard to the other allegations reported in those broadcasts, I consider that the allegation was unfounded as it would have been understood by those who heard the broadcasts to mean that the dossier had been embellished with intelligence known or believed to be false or unreliable, which was not the case. () On the issues relating to Dr Kelly’s meeting with Mr Andrew Gilligan in the Charing Cross Hotel on May my conclusions are as follows: (i) In the light of the uncertainties arising from Mr Gilligan’s evidence and the existence of two versions of his notes made on his personal organiser of his discussion with Dr Kelly on May it is not possible to reach a definite conclusion as to what Dr Kelly said to Mr Gilligan. It may be that Dr Kelly said to Mr Gilligan that Mr Campbell was responsible for transforming the dossier, and it may be that when Mr Gilligan suggested to Dr Kelly that the dossier was transformed to make it ‘sexier’, Dr Kelly agreed with this suggestion. However I am satisfied that Dr Kelly did not say to Mr Gilligan that the Government probably knew or suspected that the minutes claim was wrong before that claim was inserted in the dossier. I am further satisfied that Dr Kelly did not say to Mr Gilligan that the reason why the minutes claim was not included in the original draft of the dossier was because it only came from one source and the intelligence agencies did not really believe it was necessarily true. In the course of his evidence, which I have set out in paragraphs , and , Mr Gilligan accepted that he had made errors in his broadcasts in the Today programme on May . The reality was that the minutes claim was based on an intelligence report which the SIS believed to be reliable and the minutes claim was inserted in the dossier with the approval of the JIC, the most senior body in the United Kingdom responsible for the assessment of intelligence. In addition the reason why the minutes claim was not inserted in the first draft of the dossier was because the intelligence on which it was based was not received by the SIS in London until August . Therefore the allegations
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reported by Mr Gilligan that the Government probably knew that the minutes claim was wrong or questionable and that it was not inserted in the first draft of the dossier because it only came from one source and the intelligence agencies did not really believe it was necessarily true, were unfounded. (ii) Dr Kelly’s meeting with Mr Gilligan was unauthorised and in meeting Mr Gilligan and discussing intelligence matters with him, Dr Kelly was acting in breach of the Civil Service code of procedure which applied to him. (iii) It may be that when he met Mr Gilligan, Dr Kelly said more to him than he had intended to say and that at the time of the meeting he did not realise the gravity of the situation which he was helping to create by discussing intelligence matters with Mr Gilligan. But whatever Dr Kelly thought at the time of his meeting with Mr Gilligan, it is clear that after Mr Gilligan’s broadcasts on May Dr Kelly must have come to realise the gravity of the situation for which he was partly responsible by commenting on intelligence matters to him and he accepted that the meeting was unauthorised, as he acknowledged in a telephone conversation with his friend and colleague Ms Olivia Bosch after his meeting with Mr Gilligan. () On the issues relating to the BBC arising from Mr Gilligan’s broadcasts on the BBC Today programme on May my conclusions are as follows: (i) The allegations reported by Mr Gilligan on the BBC Today programme on May that the Government probably knew that the minutes claim was wrong or questionable before the dossier was published and that it was not inserted in the first draft of the dossier because it only came from one source and the intelligence agencies did not really believe it was necessarily true, were unfounded. (ii) The communication by the media of information (including information obtained by investigative reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information is subject to the qualification (which itself exists for the benefit of a democratic society) that false accusations of fact impugning the integrity of others, including politicians, should not be made by the media. Where a reporter is intending to broadcast or publish information impugning the integrity of others the management of his broadcasting company or newspaper should ensure that a system is in place whereby his editor or editors give careful consideration to the wording of the report and to whether it is right in all the
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circumstances to broadcast or publish it. The allegations that Mr Gilligan was intending to broadcast in respect of the Government and the preparation of the dossier were very grave allegations in relation to a subject of great importance and I consider that the editorial system which the BBC permitted was defective in that Mr Gilligan was allowed to broadcast his report at .am without editors having seen a script of what he was going to say and having considered whether it should be approved. (iii) The BBC management was at fault in the following respects in failing to investigate properly the Government’s complaints that the report in the .am broadcast was false that the Government probably knew that the minutes claim was wrong even before it decided to put it in the dossier. The BBC management failed, before Mr Sambrook wrote his letter of June to Mr Campbell, to make an examination of Mr Gilligan’s notes on his personal organiser of his meeting with Dr Kelly to see if they supported the allegations which he had made in his broadcast at .am. When the BBC management did look at Mr Gilligan’s notes after June it failed to appreciate that the notes did not fully support the most serious of the allegations which he had reported in the .am broadcast, and it therefore failed to draw the attention of the Governors to the lack of support in the notes for the most serious of the allegations. (iv) The e-mail sent by Mr Kevin Marsh, the editor of the Today programme on June to Mr Stephen Mitchell, the Head of adio News, which was critical of Mr Gilligan’s method of reporting, and which referred to Mr Gilligan’s ‘loose use of language and lack of judgment in some of his phraseology’ and referred also to ‘the loose and in some ways distant relationship he’s been allowed to have with Today,’ was clearly relevant to the complaints which the Government was making about his broadcasts on May, and the lack of knowledge on the part of Mr Sambrook, the Director of News, and the Governors of this critical e-mail shows a defect in the operation of the BBC’s management system for the consideration of complaints in respect of broadcasts. (v) The Governors were right to take the view that it was their duty to protect the independence of the BBC against attacks by the Government and Mr Campbell’s complaints were being expressed in exceptionally strong terms which raised very considerably the temperature of the dispute between the Government and the BBC. However Mr Campbell’s allegation that the BBC had an anti-war agenda in his evidence to the FAC was only one part of his evidence. The Government’s concern about Mr Gilligan’s broadcasts on May was a separate issue about which specific complaints had
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been made by the Government. Therefore the Governors should have recognised more fully than they did that their duty to protect the independence of the BBC was not incompatible with giving proper consideration to whether there was validity in the Government’s complaints, no matter how strongly worded by Mr Campbell, that the allegations against its integrity reported in Mr Gilligan’s broadcasts were unfounded and the Governors failed to give this issue proper consideration. The view taken by the Governors, as explained in evidence by Mr Gavyn Davies, the Chairman of the Board of Governors, that they had to rely on the BBC management to investigate and assess whether Mr Gilligan’s source was reliable and credible and that it was not for them as Governors to investigate whether the allegations reported were themselves accurate, is a view which is understandable. However this was not the correct view for the Governors to take because the Government had stated to the BBC in clear terms, as had Mr Campbell to the FAC, that the report that the Government probably knew that the minutes claim was wrong was untruthful, and this denial was made with the authority of the Prime Minister and the Chairman of the JIC. In those circumstances, rather than relying on the assurances of BBC management, I consider that the Governors themselves should have made more detailed investigations into the extent to which Mr Gilligan’s notes supported his report. If they had done this they would probably have discovered that the notes did not support the allegation that the Government knew that the minutes claim was probably wrong, and the Governors should then have questioned whether it was right for the BBC to maintain that it was in the public interest to broadcast that allegation in Mr Gilligan’s report and to rely on Mr Gilligan’s assurances that his report was accurate. Therefore in the very unusual and specific circumstances relating to Mr Gilligan’s broadcasts, the Governors are to be criticised for themselves failing to make more detailed investigations into whether this allegation reported by Mr Gilligan was properly supported by his notes and for failing to give proper and adequate consideration to whether the BBC should publicly acknowledge that this very grave allegation should not have been broadcast. ()(A) On the issue whether the Government behaved in a way which was dishonourable or underhand or duplicitous in revealing Dr Kelly’s name to the media my conclusions are as follows: (i) There was no dishonourable or underhand or duplicitous strategy by the Government covertly to leak Dr Kelly’s name to the media. If the bare details of the MoD statement dated July ,
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the changing drafts of the Q and A material prepared in the MoD, and the lobby briefings by the Prime Minister’s official spokesman on July are looked at in isolation from the surrounding circumstances it would be possible to infer, as some commentators have done, that there was an underhand strategy by the Government to leak Dr Kelly’s name in a covert way. However having heard a large volume of evidence on this issue I have concluded that there was no such strategy on the part of the Government. I consider that in the midst of a major controversy relating to Mr Gilligan’s broadcasts which had contained very grave allegations against the integrity of the Government and fearing that Dr Kelly’s name as the source for those broadcasts would be disclosed by the media at any time, the Government’s main concern was that it would be charged with a serious cover up if it did not reveal that a civil servant had come forward. I consider that the evidence of Mr Donald Anderson MP and Mr Andrew Mackinlay MP, the Chairman and a member respectively of the FAC, together with the questions put by Sir John Stanley MP to Dr Kelly when he appeared before the FAC, clearly show that the Government’s concern was well founded. Therefore I consider that the Government did not behave in a dishonourable or underhand or duplicitous way in issuing on July , after it had been read over to Dr Kelly and he had said that he was content with it, a statement which said that a civil servant, who was not named, had come forward to volunteer that he had met Mr Gilligan on May. (ii) The decision by the MoD to confirm Dr Kelly’s name if, after the statement had been issued, the correct name were put to the MoD by a reporter, was not part of a covert strategy to leak his name, but was based on the view that in a matter of such intense public and media interest it would not be sensible to try to conceal the name when the MoD thought that the press were bound to discover the correct name, and a further consideration in the mind of the MoD was that it did not think it right that media speculation should focus, wrongly, on other civil servants. (iii) It was reasonable for the Government to take the view that, even if it sought to keep confidential the fact that Dr Kelly had come forward, the controversy surrounding Mr Gilligan’s broadcasts was so great and the level of media interest was so intense that Dr Kelly’s name as Mr Gilligan’s source was bound to become known to the public and that it was not a practical possibility to keep his name secret. ()(B) On the issue whether the Government failed to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself my conclusion is as follows:
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(i) Once the decision had been taken on July to issue the statement, the MoD was at fault and is to be criticised for not informing Dr Kelly that its press office would confirm his name if a journalist suggested it. Although I am satisfied that Dr Kelly realised, once the MoD statement had been issued on Tuesday July, that his name would come out, it must have been a great shock and very upsetting for him to have been told in a brief telephone call from his line manager, Dr Wells, on the evening of July that the press office of his own department had confirmed his name to the press and must have given rise to a feeling that he had been badly let down by his employer. I further consider that the MoD was at fault in not having set up a procedure whereby Dr Kelly would be informed immediately his name had been confirmed to the press and in permitting a period of one and a half hours to elapse between the confirmation of his name to the press and information being given to Dr Kelly that his name had been confirmed to the press. However these criticisms are subject to the mitigating circumstances that () Dr Kelly’s exposure to press attention and intrusion, whilst obviously very stressful, was only one of the factors placing him under great stress; () individual officials in the MoD did try to help and support him in the ways which I have described in paragraphs and ; and () because of his intensely private nature, Dr Kelly was not an easy man to help or to whom to give advice.
On any fair reading of the report, the government and the relevant officials had been exonerated from the grave and serious allegations made against it. However, there was severe criticism at the failings of the BBC. The Chairman of the Board of Governors and the Director General of the BBC resigned immediately. Lord Hutton had not addressed the issue of whether the intelligence information justified the war in Iraq because he considered this to be outside his terms of reference: There has been a great deal of controversy and debate whether the intelligence in relation to weapons of mass destruction set out in the dossier published by the Government on September was of sufficient strength and reliability to justify the Government in deciding that Iraq under Saddam Hussein posed such a threat to the safety and interests of the United Kingdom that military action should be taken against that country. This controversy and debate has continued because of the failure, up to the time of writing this report, to find weapons of mass destruction in Iraq. I gave careful consideration to the view expressed by a number of public figures and commentators that my terms of reference required or, at least, entitled me to
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consider this issue. However I concluded that a question of such wide import, which would involve the consideration of a wide range of evidence, is not one which falls within my terms of reference (chapter , paragraph ).
In February , after the US had announced an inquiry into the intelligence failures of the Iraq crisis, Prime Minister Blair announced a similar inquiry. .. The Credibility of the US Evidence To some embarrassment, the Executive Chairman of UNSCOM, Mr Blix, publicly expressed doubts about some of the claims made by the US Secretary of State before the SC, specifically challenging one piece of US evidence relating to the possible cleaning of a site before inspection.79 After the Iraq War there was increasing criticism of the intelligence evidence relied upon by the US to justify the war.80 In September , a eport of the US bi-partisan House Intelligence Committee criticised the intelligence information used by the US government to justify its case for war with Iraq.81 In January a very damning report entitled WMD in Iraq—Evidence and Implications, was issued by the Carnegie Endowment for International Peace.82 The report was critical of the intelligence material and its use by the US administration. Among the most significant conclusions of the eport were that: . Prior to , the intelligence community appears to have overestimated the chemical and biological weapons in Iraq but had a generally accurate picture of the nuclear and missile programs. . The dramatic shift between prior intelligence assessments and the October National Intelligence Estimate (NIE), together with the creation of an independent intelligence entity at the Pentagon and other steps, suggest that the intelligence community began to be unduly influenced by policymakers’ views sometime in . UN Doc S/PV/, p . See also Appendix VI below. S ampton and JC Stauber, Weapons of Mass Deception: The Uses of Propaganda in Bush’s War on Iraq (London, Constable and obinson, ). 81 See T eid, ‘Bush under Fire for his Flawed Case on Iraq’ The Times ( September ). 82 J Cirincione, JT Mathews, G Perkovich with A Orton, WMD in Iraq: Evidence and Implications, (Washington D.C., Carnegie Endowment for International Peace, ) . 79 80
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. There was and is no solid evidence of a cooperative relationship between Saddam’s government and Al Qaeda. . There was no evidence to support the claim that Iraq would have transferred WMD to Al Qaeda and much evidence to counter it. . The notion that any government would give its principal security assets to people it could not control in order to achieve its own political aims is highly dubious. . Administration officials systematically misrepresented the threat from Iraq’s WMD and ballistic missile programs, beyond the intelligence failures noted above, by: • Treating nuclear, chemical, and biological weapons as a single ‘WMD threat.’ • The conflation of three distinct threats, very different in the danger they pose, distorted the cost/benefit analysis of the war. • Insisting without evidence—yet treating as a given truth—that Saddam Hussein would give whatever WMD he possessed to terrorists. • outinely dropping caveats, probabilities, and expressions of uncertainty present in intelligence assessments from public statements. • Misrepresenting inspectors’ findings in ways that turned threats from minor to dire. . While worst case planning is valid and vital, acting on worst case assumptions is neither safe nor wise. . The assertion that the threat that became visible on / invalidated deterrence against states does not stand up to close scrutiny. Saddam’s responses to international pressure and international weakness from the war onward show that while unpredictable he was not undeterrable. . The UN inspection process appears to have been much more successful than recognized before the war. Nine months of exhaustive searches by the U.S. and coalition forces suggest that inspectors were actually in the process of finding what was there. Thus, the choice was never between war and doing nothing about Iraq’s WMD. . In addition to inspections, a combination of international constraints—sanctions, procurement investigations, and the export/ import control mechanism—also appears to have been considerably more effective than was thought. . The knowledge, prior experience in Iraq, relationships with Iraqi scientists and officials, and credibility of UNMOVIC experts represent a vital resource that has been ignored when it should be being fully exploited.
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. To reconstruct an accurate history of Iraq’s WMD programs, the data from the seven years of UNSCOM/IAEA inspections are absolutely essential. The involvement of the inspectors and scientists who compiled the more-than--million-page record is needed to effectively mine it. Considering all the costs and benefits, there were at least two options clearly preferable to a war undertaken without international support: allowing the UNMOVIC/IAEA inspections to continue until obstructed or completed, or imposing a tougher program of “coercive inspections” backed by a specially designed international force. . Even a war successful on other counts could leave behind three significant WMD threats: lost material, “loose” scientists, and the message that only nuclear weapons could protect a state from foreign invasion.
Despite the Carnegie report, the US continued to defend its intelligence assessments.83 However, in Februrary , President Bush announced an independent inquiry into intelligence failures behind the Iraq War. .. The Importance of Evidence Matters of evidence may seem very much the stuff of lawyers. There are issues of credibility, authenticity, reliability, cogency, admissibility, and corroboration. However, the idea of evidenced-based action by states is crucial to world order. If states don’t defend their actions be reference to evidence then the resulting order will simply be anarchic. .
The US has increasingly pressed the EU to determine what international roles it wished to assume. What did the EU stand for? What was it willing to do?84 While peace and harmony reigned internally and 83 See J Bone, ‘Americans Scale Back Hunt for Weapons’ The Times ( January ). See also the Testimony of Dr David Kay to US Senate Armed Services Committee, January (he had found no evidence of large or small stockpiles of weapons of mass destruction; almost all the assumptions concerning Iraq’s weapons capabilities had been false and blame for the misinformation lay squarely with the intelligence community); S Davoudi and G Dinmore, ‘US “almost all wrong” about Iraq Weapons’ Financial Times ( January ). 84 See S Peers, ‘EU esponses to Terrorism’ () ICLQ .
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the idea of conflict between EU member states was unthinkable, what about the anarchy outside? Was the EU externalising its approach to dispute resolution? EU spending on defence and security was massively less than that of the US. Was the EU reaching the point that it could not advocate the use force in any situation because it was losing the capability to use force? The US has consistently observed that EU members were opposed to spending money on expanding their military capabilities. The EU has been able to reap the Cold War peace dividend in terms of economic benefits and it looks to continue this with expansion to the East. However, if EU states do not have the capacity to use force, then they must argue that non-military devices are more important because they are the only ones they have. The familiar critique is that the EU appears to want the US to make the dinner while the EU does the washing up.85 The challenge for the EU was set out in an editorial in the Guardian newspaper: The EU is continuing to do what it was set up to do: building a world peace by watering down national sovereignty, and expanding the network of international institutions and laws. Multilateralism and peaceful internationalism has [sic] become a kind of European white man’s burden, a mission civilisatrice. The ICC is as much part of EU idealism as of the UN. It cuts little ice with the ussians or the Chinese, but Europeans believe in it. It is a fine ideal, and if the whole world were like Western Europe it would work very well. Alas, our peaceful EU is not well equipped to deal with gangsters—before they come to court. Against a Milosevic it proved to be useless. Only American power saved millions of Bosnian lives. However, now that the ussians are down and out, the natural deference to American leadership is harder to maintain. For an alliance to work, you need a common enemy. And many Europeans don’t see Iraq as a common enemy. Instead, that nagging fear of being dragged into wars by bellicose America, of being rudely wrenched from our peaceful dreams, is growing. But this is the fear of the powerless bystander. One reason for wanting the US to be part of the ICC, or other international institutions, is to check its power and curb its excesses. Perhaps even to pacify it. At the same time, we expect the US to do the dirty work for us. As long as this contradiction persists, we cannot expect the Americans to be keen on our European civilising mission. There is 85 See W Wallace, ‘As Viewed from Europe: Transatlantic Sympathies, Transatlantic Fears’ () () International elations (September may be seen in retrospect to have weakened the transatlantic partnership, not strengthened it).
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only one way out of this dilemma, which is to rebuild European military power. We cannot match the US, but we can share more of its burden. If we want the Americans to sign up to the ICC, we too must do the dirty work and take the risk of being accountable.86
In , both the EU and NATO agreed to expand.87 The newer members of both the EU and NATO appear much closer to US thinking than the existing members.88 This may be their relative lack of experience of the US as their governing superpower but it is current reality nonetheless. The UK Foreign Secretary explicitly warned about the danger of EU members being in disagreement over Iraq: We will reap a whirlwind if we push the Americans into a unilateral position in which they are at the centre of a unipolar world.89
In an article that attracted wide publicity, obert Kagan suggested that global US power was actually necessary for the survival of the European legal paradise: Today’s transatlantic problem, in short, is not a George Bush problem. It is a power problem. American military strength has produced a propensity to use that strength. Europe’s military weakness has produced a perfectly understandable aversion to the exercise of military power. Indeed, it has produced a powerful European interest in inhabiting a world where strength doesn’t matter, where international law and international institutions predominate, where unilateral action by powerful nations is forbidden, where all nations regardless of their strength have equal rights and are equally protected by commonly agreed-upon international rules of behavior. Europeans have a deep interest in devaluing and eventually eradicating the brutal laws 86 ‘Why We Must Share America’s Dirty Work’ The Guardian ( July ). See also S Erlanger, ‘America the Invulnerable? The World Looks Again’ New York Times ( July ). 87 The NATO Summit in Prague in also agreed to a new military concept for defence against terrorism, Detailed plans are being drawn up to implement the concept, see ‘NATO’s Military Concept for Defence against Terrorism’ . See ch . . above on the idea of an ‘Old Europe’ and ‘New Europe’. See also M Cremona (ed), The Enlargement of The European Union (Oxford, OUP, ). 88 See C Krauthammer, ‘Our eal Friends in Europe: To Find Them Start at the Iron Curtain and Go East’ () () The Weekly Standard ( August). 89 Statement to the UK Foreign Affairs Committee, March . He also noted that ‘the risk for America is that by appearing too indifferent to world opinion and unrestrained in its exercise of power it finds itself and its objectives defeated through a mixture of hostility and lack of support’. See AM Slaughter-Burley, ‘The Future of International Law: Ending the US–Europe Divide’ .
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of an anarchic, Hobbesian world where power is the ultimate determinant of national security and success.90
The EU is obviously not unaware of its limitations. The EU Council meeting in Cologne in accepted that: [T]he Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises . . .91
The UK’s FAC investigated the process leading to the Iraq War and concluded that the: [D]isagreements that surfaced within the EU over Iraq have raised serious questions about EU member states’ capacities to resolve differences over matters of foreign policy and of the feasibility of a CFSP [Common Foreign and Security Policy] on matters of controversy among the members of the EU.92
Proposals for further development of the EU’s defence caused controversy at the EU Summit in Brussels in December .93 However, the European Council did manage to adopt an ‘EU Security Strategy’.94 As a crucial element of the security strategy, it also adopted the ‘EU Strategy against the proliferation of Weapons of Mass Destruction’. The fundamental and continuing tension within the EU is the degree to which EU defence can really be developed without prejudicing the central role of NATO. .
The US Administration’s view is that foreign policy was back for nation states.95 The international agenda in - was full of classical foreign policy issues: EU–US divisions,96 the role of France and ‘Power and Weakness’ ( June–July ) Policy eview . Presidency Conclusions, Annex III, . 92 See FAC eport, n above, para . 93 See ‘Presidency Conclusions’, Brussels European Council, December , paras –. 94 Ibid paras –. 95 See H Kissinger, Does the US Need a Foreign Policy? (New York, Simon and Schuster, ). 96 See Kagan, Of Paradise and Power: America and Europe in the New World Order (New York, Knopf, ); European Council Declaration on Transatlantic elations, Presidency Conclusions, Brussels European Council, Annex A, December . 90 91
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Germany within the EU and as world powers,97 asserted divisions between old and new Europe,98 the EU–NATO relationship, the degree to which Turkey would be supported by the US in the contexts of its desire to join the EU and in its opposition to the Kurds in the north of Iraq, the role of ussia, the effect of any conflict on Iran and the resolution of the Israeli–Palestinian dispute. These great questions of foreign policy were for states in general, and for the great powers in particular, to resolve.99 This approach highlighted the contrast between the US and the EU’s approaches to foreign policy. Henry Kissinger has argued that the differences can be seen, for example, in EU and US reactions to the International Criminal Court: America defines its national interests in more strategic terms. Europe defers worries about the operation of such new institutions as the ICC partly because of the lower priority it gives to foreign policy altogether. The US in concerned with the immediate impact of an institution with a vague charter, unsettled procedures and subject to no system of checks and balances, which can affect the many Americans engaged in global responsibilities.100
From the US’s perspective, whatever the systems and processes of globalisation and civil societies, states were the principal international actors and they had to take responsibility for global order.101 They could not just delegate their responsibilities to international institutions and organisations and hope that everything would turn out all right. .
The first few decades of the twenty-first century will be an important testing ground for the US’s policies on international law. As the sole 97 See P Millar, ‘Don’t Mention the Power Shift–Germany is Sensitive’ The Times ( December ); quoting Michel Audetat, ‘There is a gulf separating the reality of France from the idea that it has of itself . . . The would be teacher is ill-educated’. On the alleged decline of France see N Bavarez, La France qui tombe () which attracted a lot of international attention. 98 See ch .. above. 99 See C ice, ‘Promoting the National Interest’ () Foreign Affairs , stressing that ‘statecraft matters’. 100 H Kissinger, ‘NATO at the Crossroads; NATO’s Uncertain Future in a Troubled Alliance’ San-Diego Union-Tribune ( December ). 101 Cf B ajagopal, International Law from Below (Cambridge, CUP, ) on the emergence of transnational social movements as major actors in international politics.
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superpower, its approach to international legal order will have fundamental consequences for all other states. Superpowers have tested international law before and will do so again.102 Ultimately, it will always be the interest of even a superpower for the system of international law to survive. Fundamental to that system is the idea of an agreed rule of law. The challenge for the US is to remedy what it sees as the defects of the current system without destroying the credibility and effectiveness of the system itself. The US needs to be part of the solution, not the problem. To do that it will have to understand that: There is a difference between being a leader and a boss. If the US fails to see that difference or does see it but makes the wrong choice, the result could be the consolidation of exactly the sort of international consensus we do not want—a consensus on the part of every country on earth except for the US that American power is a problem for the entire world, a problem to be managed, offset and, to borrow a phrase from another era . . . to be contained. That . . . would be bad for everyone.103
102 See I Brownlie, ‘Preface’ to Principles of Public International Law th edn (Oxford, OUP, ); JE Alverez, ‘Hegemonic International Law Revisited’ () American Journal of International Law . 103 S Talbott, ‘War in Iraq—evolution in America’ () International elations at .
6 Winning the Peace: An Iraq For the Iraqis .
With the advent of virtual wars it has become an orthodoxy that winning the peace can be more difficult than winning the war.1 It is also more expensive. The conflict with Iraq in was different than normal inter-state conflict. It was more the regime that was being attacked than the state. The US and the UK, having won, had to be replace the regime. The conflict would have been pointless if a new regime could have maintained the policies and practices of the defeated one. The US and the UK stressed that they were committed to Iraq for the long term. Opponents of the Iraq conflict stressed the responsibilities borne by the US and the UK. The Archbishop of Canterbury put it in these terms: We should pray too for those who have to keep on at the task of rebuilding when the dramas of conflict have faded—for our leaders, here and in the US, whose commitment to remaking a deeply traumatised nation has been clearly and repeatedly expressed. Today is an opportunity for leaders and people alike to renew their promises about this; we have made ourselves accountable for peace and justice in Iraq, and leaders and people alike will indeed be called to account for it.2
The challenges for the coalition in building a new Iraq were daunting.3 The Iraq War was over so fast that the agenda quickly turned to 1 The post-conflict situation in Bosnia is an excellent example of this. See D McGoldrick, ‘The Tale of Yugoslavia: Lessons for Accommodating National Identity in National and International Law’ in S Tierney (ed), Accommodating National Identity (The Hague, Kluwer, ) . 2 ‘Archbishop of Canterbury’s Address to Iraq Service’ on October , The Times ( October ). 3 In some respects they appeared similar to the post World War II challenges. See JG McGinn, America’s ole in Nation-Building: From Germany to Iraq (Santa Monica, CA, and,
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reconstructing Iraq—its governance, its political and economic organisation and its human rights systems.4 All of this had to be done in what proved to be a deteriorating security context.5 In the months immediately after the major military conflict, ‘the lack of security affected every aspect of life in Iraq—personal, political, economic, financial, institutional’.6 The oppressive nature of the organisation of the previous regime meant that rebuilding an internal security system was a massive practical problem.7 In addition, many states were still bitter about the illegitimacy of the military action by the US and the UK and did not want to do anything that appeared to legitimise their actions. Even while the war in Iraq was continuing there were major political disputes within the EU as to what any post war regime would look like. What would be the role for the EU in a post conflict Iraq? Would that role be limited to EU members who had supported military action? France and Germany, in particular, were reluctant to be seen as endorsing the War in any way. . ‘ ’— -
The human rights situation in Iraq had been very poor.8 Notwithstanding this, as we noted in chapter , the debate on the Iraqi crisis was not conducted by states in terms of the doctrine of humanitarian intervention.9 That doctrine had been invoked by the ), Iraq is dealt with at –.Cf S Zaharna, ‘epeat: Iraq is Not a Modern-Day Germany’ Christian Science Monitor ( August ). See also Governing Iraq (International Crisis Group eport, August ). 4 See KM Pollack, ‘After Saddam: Assessing the econstruction of Iraq’ () () Foreign Affairs (forthcoming). 5 See P Beaumont, ‘Chaos eigns as Saddam’s Plan Unfolds’ The Observer ( August ). 6 ‘eport of the Secretary-General [on Iraq] pursuant to paragraph of SC esolution ()’ ( July ) UN Doc S//, Part IV (hereinafter Secretary-General’s First eport); ‘eport of the Secretary-General [on Iraq] pursuant to paragraph of resolution () and paragraph of resolution (), December (hereinafter Secretary-General’s Second eport). 7 See G Day and C Freeman, ‘Policekeeping is the Key: ebuilding the Internal Security Architecture of Postwar Iraq’ () International Affairs . 8 The human rights situation in Iraq was addressed in the UK Dossier on Iraq’s Weapons of Mass Destruction: The Assessment of the British Government and by the US’s presentation of evidence in the Security Council, see UN Doc S/PV/, p ( February ). 9 See ch . above.
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UK for its military intervention in Kosovo in .10 While for the US ‘regime change’ was an explicit war objective,11 the UK initially focused on the disarmament obligations in the SC resolutions.12 The UK government received legal advice that the use of force against Iraq to achieve a change of regime would be ‘contrary to international law’.13 However, on March , the UK Prime Minister accepted that: It is the case that if the only means of achieving the disarmament of Iraq of weapons of mass destruction is the removal of the regime, then the removal of the regime of course has to be our objective.14
In the SC debates preceding the Iraq War, a number of states made statements to the effect that actions aimed at regime change were contrary to international law.15 For them, if there was to be regime change, then this needed the endorsement or approval of the SC. After extensive negotiations lasting weeks a number of SC resolutions were passed to regulate the post-war political and economic development of Iraq. Given that the SC did not explicitly authorise military intervention in Iraq in , there was a subsequent political debate as to whether the SC should seek to assume a controlling role as it did in Kosovo. Would there be a major UN Administration or UN Protectorate like those for Kosovo,16 Afghanistan17 and East Timor?18 As noted, a number of states were reluctant to appear to legitimise the actions of the US and the UK.19 The UN was in a lose-lose situation.20 If it stayed out of Iraq it would be failing in its many humanitarian responsibilities. If it went to Iraq it faced risks, uncertainties, dangers to its staff and being perceived as being supportive of the invasion and the subsequent occupation. See C Gray, International Law and the Use of Force (Oxford, OUP, ) –. See also the US’s Iraqi Liberation Act. 12 See Prime Minister’s ‘Statements on Iraq’ House of Commons, February , March , Hansard HC vol cols – (stressing the objective of disarmament). 13 The Guardian ( October ) p . 14 Prime Minister, House of Commons, March , Hansard HC vol , col . 15 See eg, S/PV/, p (League of Arab States), p (Libya). 16 See UNSC es (). See ‘The UN and administration of territory’, ASIL Proceedings, –. 17 SC esolutions (), (), () and (). 18 See UNSC es (), (), () and (); ‘Symposium: State econstruction after Civil Conflict’ () AJIL . 19 See UN Doc S/PV/ ( March ), especially the statements by Syria and ussia. 20 See S Jenkins, ‘Ten easons why the UN Should Stay Out of Iraq’ The Times ( September ). 10 11
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None of the SC resolutions that were adopted explicitly approved of the Iraq War. While the UK was keen to involve the UN, the US was rather more reluctant to do so. However, the US was subjected to heavy criticism for its failure to plan properly for the post-war occupation. In June , the US sent a five-member team of independent experts to Iraq to examine its strategy. Somewhat remarkably given its general sensitivity to be seen to be concerned with the domestic jurisdiction of member states, the UN itself became involved in planning for a post-Saddam Iraq. In March , a -page UN plan was leaked. This envisaged a UN Assistance Mission (UNAMI) rather than an UN Administration.21 After the major military conflict was over the UN Secretary-General expressed the hope that the UN would play an effective role in post-war Iraq and thereby increase the legitimacy of any governmental authority established in Iraq.22 Even before the war there was extensive discussion of a post–Saddam Hussein Iraq.23 There were assurances that the territorial integrity and sovereignty of Iraq would be preserved.24 There were diplomatic efforts to ensure that the four million Kurds in the North of Iraq would not use any military conflict to advance their claims for an independent Kurdistan.25 Such efforts do not appear to be politically realistic. As with Kosovo, it will be very difficult for the international community to take the position that the Kurds must stay as part of a state that has historically subjected them to extreme repression.26 Indeed, the Kurdish population had been the victims of the use of chemical weapons and suffered heavily under sanctions. These were one of the weapons of mass destruction in whose name 21 ‘UN Leaders Draw Up Secret Blueprint for Postwar Iraq’ The Times ( March ). See M Light, ‘The esponse to . and the Lessons of History’ in () () International elations (warning against the prolonged intervention of foreign forces). 22 See ‘eport of the Secretary-General Pursuant To esolutions (), () and ()’ UN Doc S//. 23 See eg, ‘A Vision for Iraq and the Iraqi People’ a Paper published by the UK Government which will be delivered in written and video form to the region in the event of military action being taken, March , ; ‘The Future of Iraq’ in ML Sifry and C Cerf, The Iraq War eader: History, Documents, Opinions (New York, Touchstone, ) –. 24 See ‘Statement on Iraq’ at the Azores Summit (US, UK and Spain), March ; UNSC es () and (). 25 ‘. . . the region claimed for Kurdistan is about twice the size of the region that the two [Kurdish] parties control today’, T Judah, ‘In Iraqi Kurdistan’ in Iraq War eader, n above, . 26 ‘The large number of communities and religions in Iraq itself increases the danger of a potential break up’, UN Doc S/PV/, p (representative of France).
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the conflict was fought. The neighbouring states that have Kurdish populations, Turkey, Syria and Iran, are extremely concerned that the establishment of any recognised Kurdish territory will be a precursor to irredentist claims against their territory. Diplomatic hopes that Turkey would not threaten to send its forces into northern Iraq were destroyed within a few days of the war in Iraq beginning. Turkey asserted that it would take action to forestall any humanitarian crisis and terrorist problems. The situation of the Shia Muslims in the south of Iraq, the majority group (%) in Iraq, would not be dissimilar to that of the Kurds in the north if they preferred, for example, to be part of Iran.27 By the end of , there were already reports that religious groups were seeking strict enforcement of Islamic laws in the south of Iraq. epressive action was taken against modern music and against alcohol in ways that were reminiscent of the Taliban extremists in Afghanistan.28 One nightmare scenario would be for Iraq to follow the path of the Former Yugoslavia29 and disintegrate in the absence of a strong oppressive centre: [F]or all his many faults, the history of Iraq suggested that Saddam Hussein could be the Tito of the Middle East. Take him out of the equation and it could require years, billions of dollars and tens of thousands of troops to democratise the country and to stop the region from imploding as the neighbours moved in for the kill.30
Simon Jenkins has suggested that Iraq’s future might be as a state divided into three and held together by brute force.31 .
In the immediate months after the major military conflict, the security situation in Iraq was poor.32 There was extensive violence and See Y Nakash, ‘The Shi’ites and the Future of Iraq’ () () Foreign Affairs . See ‘In This City of Poets, Secret Militias are Driving Musicians Underground’ The Times ( December ); S Farrell, ‘Smiles for British Troops Masks Bigotry in Basra’ The Times ( January ). 29 See McGoldrick, n above. 30 P McGeough, Manhattan to Baghdad: Dispatches from the Frontline in the War on Terror (Crows Nest, NSW, Allen & Unwin, ) . 31 S Jenkins, ‘The Only Hope is to Divide Iraq into Three’ The Times ( December ). 32 Coalition Provisional Administration Order of May sought to regulate weapons control. It prohibited heavy weapons and controlled small arms. 27 28
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looting.33 Much of this was predictable and expected. Eventually, the US and the UK got the SC to back its efforts to provide security. In esolution 34 the SC determined that: [T]he provision of security and stability is essential to the successful completion of the political process . . . and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution () . . .35
It then authorised: [A] multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure.36
Although the resolution didn’t expressly state this, the ‘unified command’ was, of course, to be provided by the US, which was to report to the SC on the efforts and progress of the force every six months. The resolution urged member states to contribute assistance under the United Nations mandate, including contributing military forces to the multinational force.37 The SC was to: []eview the requirements and mission of the multinational force . . . not later than one year from the date of this resolution, and that in any case the mandate of the force shall expire upon the completion of the political process as described in paragraphs through and [of esolution ].38
The resolution emphasised: [T]he importance of establishing effective Iraqi police and security forces in maintaining law, order, and security and combating terrorism consistent with paragraph of resolution (), and calls upon Member States and international and regional organizations to 33 J Simpson, The Wars against Saddam: Taking the Hard oad to Baghdad (London, Macmillan, ) –. 34 Adopted unanimously on October . 35 UNSC es () para . 36 Ibid. 37 Ibid para . 38 Ibid para .
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contribute to the training and equipping of Iraqi police and security forces.39
Even as the US and the UK secured the passage of esolution , a number of states, for example, Germany and Pakistan, indicated that they would provide neither troops nor financial support.40 However, the multinational nature of the force did grow. As of September , there were over , service members from other countries than the US.41 There were two multinational divisions led by the British and the Poles. Also by that date, , Iraqi citizens were under arms as part of police, border and security forces. .
.. The New Iraq There were a series of fundamental questions to be answered. Could Iraq be maintained as a single state? If so, what kind of political and organisation would it have? Would a new Constitution be adopted and, if so, by whom? Would these and other problems be perceived as problems for the Iraqi people or for the military occupiers?42 The prospect of prolonged military occupation led to analogies being drawn with the post Second World War experience of Germany and Japan.43 After , both Japan and Germany adopted new Constitutions under Allied direction, and subsequently became strong democracies: There was a time when many said that the cultures of Japan and Germany were incapable of sustaining democratic values. Well, they were wrong. Some say the same of Iraq today. They are mistaken. The nation of Iraq—with its proud heritage, abundant resources and 39 Ibid para . The UK and Syria have played important roles in training army, police and security forces. Syria is also training junior diplomats. 40 UNSC ( October ) Press elease SC/. See also the Joint Statement of ussian Federation, France and Germany that they would not contribute funding or troops. 41 GW Bush, ‘Presidential Address’, September , . 42 See J Fallows, ‘The Fifty-First State’ (November ) The Atlantic Monthly in Iraq War eader, n above, . 43 See D Hiro, ‘The Post-Saddam Problem’ in Iraq War eader, n above, ; McGinn, n above, chs (Germany) and ( Japan) .
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skilled and educated people—is fully capable of moving toward democracy and living in freedom.44
Another part of the post-war discourse focused on the idea that occupied Iraq might be the first step in the creation of a US Empire. Comparisons have been drawn with the experience of some of the great Empires of the past—oman, British, Dutch, and Spanish.45 Would Iraq be shaped as part of a Pax Americana (an American peace)? 46 .. The Coalition as Occupying Powers International law imposes a number of responsibilities and obligations on occupying powers in Iraq.47 The principal governing instruments are Hague Convention IV () especting The Laws and Customs of War on Land and the Geneva Convention elative to the Protection of Civilian Persons in Time of War ().48 They bear primary responsibility for the welfare of the Iraqi people, including the provision of public services, and restoring conditions of security and stability. The US-run provisional governmental authority was referred to as the Coalition Provisional Administration (CPA).49 It had an Office for Legal Counsel to provide legal advice on the law of occupation, which is a difficult area of law with little recent practice. Procedures were established for the pre-promulgation scrutiny of legislative and other legal acts of the CPA. The US Civil Administrator of the CPA was L. Paul Bremer III.50 The British Special Envoy was John Sawyer, who was in turn replaced by Jeremy Greenstock in 44 GW Bush, ‘Iraq is Fully Capable of Living in Freedom’ in Iraq War eader, n above, . Cf The view that ‘There Isn’t a Society in Iraq to Turn Into a Democracy’ cited in Fallows, n above. 45 See K Phillips, ‘Hegemony, Hubris and Overreach’ in Iraq War eader, n above, , who notes that the US is the world’s largest debtor. 46 See ‘The Future of Pax Americana’ in Iraq War eader, n above, –; ch . below. 47 See JJ Paust, ‘The U.S. as Occupying Power over Portions of Iraq and elevant esponsibilities under the Laws of War’ ASIL Insights, April Iraq: esponsibilities of Occupying Powers, Amnesty International, April . LC Green, The Contemporary Law of Armed Conflict, nd edn (Manchester, MUP, ) –; DJ Scheffer, ‘Beyond Occupation Law’ () American Journal of International Law . 48 See JS Pictet (ed), Commentary to Geneva Convention IV (Geneva, ICC, ). 49 See CPAOD of June on the ‘Status of Coalition, Foreign Liaison Missions, Their Personnel and Contractors’, granting wide-ranging immunities from jurisdiction . 50 He replaced Jay Gardner who acted as Head of the Office for econstruction and Humanitarian Assistance for one month.
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September .51 As of May , the CPA had around , staff working in Baghdad and in regional offices.52 The CPA issued a series of Orders, egulations, Public Notices and Directives.53 .. SC esolutions on Post-War Iraq With the passage of successive SC resolutions, particularly and , those resolutions rather than the law of occupation increasingly governed the post-war legal situation. SC esolutions , and reaffirmed the commitment of all UN members to the sovereignty and territorial integrity of Iraq. esolutions and were predicated upon two of the basic conceptions of selfdetermination—namely, the right of the Iraqi people freely to determine their own political future and control their own natural resources.54 Under SC esolution () the SC granted wide interim governing powers to the CPA.55 The resolution did not impose any specific time limit. The authority was to continue until: [A]n internationally recognised, representative government is established by the people of Iraq and assumes the responsibilities of the Authority.56
Frederic Kirgis has argued that the references in esolution to representative government may be seen as a further step in the development of the principle of democratic governance.57 The SC made provision for the Secretary-General to keep it informed on 51 An interesting historical twist is that Jeremy Greenstock was the UK Ambassador to the UN and thus a key player in the sanctions regime against Iraq. He was also the first chair of the SC’s Counter-Terrorism Committee under UNSC es (). 52 The UK seconded over officials. 53 See . 54 See FL Kirgis, ‘SC esolution on the ebuilding of Iraq’ (May ) ASIL Insights . 55 The resolution was adopted on May by votes to none, with Syria not participating in the vote. See UN Doc S/PV/; SD Murphy, ‘Security Council ecognition of US Post War ole in Iraq’ () AJIL ; A Orakhelashvili, ‘The Post-War Settlement in Iraq: The UNSC Resolution () and General International Law’ () Journal of Conflict and Security Law . See also CPAEG on the CPA, . 56 The assumption is that democracy in Iraq must be representative rather than majoritarian. If a majoritarian system operated, the Shi’as would win as they constitute % of the population. There were internal disputes within the Shia community, see N MacFarquhar, ‘Shiite Clerics Clashing over How to reshape Iraq’ New York Times ( August ). 57 Kirgis, n above.
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implementation of the resolution and for the US and the UK to be encouraged to do so. There was to be a review of its implementation within twelve months. esolution reaffirmed: [T]he sovereignty and territorial integrity of Iraq, and underscores, in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognized and set forth in resolution (), which will cease when an internationally recognized, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority, inter alia through steps envisaged in paragraphs through and below.
.. The ole of the United Nations The Secretary-General described the UN’s task as ensuring that: the people of Iraq—men and women—are able, as soon as possible, through a transparent and impartially managed political process, to form a free and representative government of their own choosing’.58
He stressed that, ‘There is a pressing need to set out a clear and specific sequence of events leading to the end of military occupation’.59 esolution did not make the UN responsible for running Iraq but it did give the UN a potentially important post-conflict role. It was given ‘a broad mandate, in a wide range of critical activities and in a unique set of circumstances’.60 esolution made provision for a Special epresentative for Iraq to be appointed by the UN Secretary-General. An indication of the importance attached to the appointment was that the person appointed in May was Vieira de Mello, the UN’s High Commissioner for Human ights.61 He had extensive experience in post-conflict situations having been the UN Transitional Administrator in East Timor and the Special epresentative in Kosovo. In esolution () the SC established a UN Assistance Mission in Iraq (UNAMI) to support the 58
‘What’s Happening’ Secretary-General’s First eport, n above, para . 60 Secretary-General’s First eport, n above, para . See also Secretary-General’s Second eport, n above, paras – on ‘The Way Forward for The United Nations’. 61 He arrived in Baghdad on June . He took leave of absence from his post for four months. See TD Grant, ‘The Security Council and Iraq: An incremental practice’ () American Journal of International Law . 59
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UN Secretary-General in his mission. The resolution was adopted by --, with Syria abstaining.62 The UNAMI was composed of representatives of a number of UN Offices and had a staff of over , half of whom were international. The responsibilities of the Special epresentative included coordination of UN activities in post-conflict processes in Iraq, particularly between the UN and international agencies engaged in humanitarian assistance and reconstruction activities and, in coordination with the Authority, assisting the people of Iraq.63 The Special epresentative was also to work with the Authority and the people of Iraq to advance the establishment of national and local institutions for representative government. The initial team of the Special epresentative was composed of representatives from a number of UN departments—peacekeeping, political, development and information along with officials from his own Office. The Secretary-General was to report to the SC at regular intervals on the work of the Special epresentative. The Special epresentative consulted with a wide spectrum of Iraqi society on the role of the UN. In his first report the Secretary-General noted that: There was an overwhelming demand for the early restoration of democracy and the message was conveyed that democracy could not be imposed from outside’.64
Political organisation was already highly developed in the Kurdish areas in the North. The Special epresentative also recognised the regional dimension of Iraqi reconstruction by consulting with the leaders of neighbouring states. The Special epresentative was tasked to encourage international efforts to rebuild the capacity of the Iraqi civilian police and to promote legal and judicial reform.65 The court and prison systems had ceased to function. Extensive training and capacity-building were needed.66 Similarly, support was needed for the development of a national mass media. It is interesting to note See UN Doc S/PV/ ( August ). See Grant n above. See CPAEG establishing a ‘Council for International Coordination’, . 64 ‘eport of the SG Pursuant to paragraph of SC esolution ()’ para ( July ) UN Doc S//. See also A Dawisha and K Dawisha, ‘How to Build a Democratic Iraq’ () () Foreign Affairs (emphasising the presence of an educated middle class and an earlier history of political pluralism). 65 A Council of Judges began work in October on supervising Iraq’s judicial and prosecutorial systems. 66 See CPAOD of June on the ‘Central Criminal Court of Iraq’, 62 63
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that much of the basis of Iraqi law was provided by the British Government after World War I and in the early s. For example, a lot of the basic criminal law was imported from British India. Under esolution , the SC resolved that the UN and the UNAMI should strengthen its vital role in Iraq.67 .. The Attack on the United Nations On August , the Headquarters of the UN’s Assistance Mission in Iraq was the subject of a suicide bombing.68 The UN Special epresentative, Sergio de Mello,69 and UN staff were killed and over persons were injured.70 The political effect was devastating: The truck bomb that destroyed the UN headquarters in Baghdad on th August has been as shocking to the UN as a political community as the events of th September were to most Americans.71
The attacks seemed irrational. However, the UN is associated by most Iraqis with the imposition and continuation of sanctions and, by some Iraqis, with implicitly supporting the occupation of Iraq.72 Those sanctions have had a devastating effect on Iraq’s social and economic health.73 As a consequence of the attack, the UN’s UNSC es (), para . See Secretary-General’s Second eport, n above, paras –. The questions raised in para are particularly important for the UN. The SC responded with esolution () on the ‘Protection of Humanitarian and United Nations Personnel’. This characterised the attack as a violation of international humanitarian law. On the possibilities of exercising jurisdiction over the perpetrators see FL Kirgis, ‘SC esolution on the Protection of Humanitarian and United Nations Personnel’ ASIL Insights, September , . 69 See CJ Williams, ‘A Life Devoted to the Victims, the Hungry and the Silenced’ Los Angeles Times ( August ). 70 See J Huggler, ‘A War Without End?: Any Illusion that the Occupation Might Be Working Lies in the uins of the UN’s HQ’ The Independent ( August ). 71 D eiff, ‘Hope Is Not Enough’ () Prospect Magazine (October). 72 MK Stack, ‘To Many Arabs, the U.S. and U.N. are One Entity’ Los Angeles Times ( August ) (the United Nations’ status has become so thoroughly degraded in the Arab world that many people here no longer draw a distinction between the international body and the United States. It has long been criticised as puny and has traditionally been mistrusted in these parts, but the UN’s inability to stop the war in Iraq has sowed new seeds of resentment). 73 See M ai, War Plan Iraq: Ten easons Against The War On Iraq (London, Verso, ) –. On the legality of the sanctions see T O’Donnell, ‘Iraqi Sanctions, Human Rights and the Security Council’ in P Eden and T O’Donnell (eds), September : A Turning Point in International and Domestic Law? (New York, Transnational, , forthcoming); 67 68
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international staff of was largely withdrawn because of safety concerns.74 After an attack on the International Committee of the ed Cross, the ed Cross and other international organisations also withdrew personnel. There was also a bombing of the Jordanian Embassy in Baghdad. .
.. De-Baathification Under CAP Order of May on ‘De-Baathification of Iraqi Society’, there was an extensive purge of members of the previous Ba’ath regime.75 However, this proved difficult because party membership was often a condition of employment and security.76 The , member Iraqi Army was disbanded but the CPA paid them monthly stipends. This created massive additional unemployment and worsened the security situation. It was increasingly recognised that it was sensible to re-train many members of the Iraqi security forces and have them working constructively from the inside rather than destructively from the outside. CPA egulation also prohibited any displays of Saddam Hussein or symbols of the Baath party. CPA Order of May dissolved a number of Iraqi political entities. These included a number of ministries—Defence, Information, Military Affairs, the Intelligence Service, three Security organisations, a number of military and paramilitary organisations— and a number of other political organisations.77 74 Secretary-General’s Second eport, n above, paras , –. See also the eport of the Independent Panel on the Safety and Security of UN Personnel In Iraq ( October ) . The report is heavily critical of UN security systems and procedures. As of , the UN had over , staff deployed on what are designated as hazardous missions. Diplomatic efforts continue to persuade the UN to restart operations to Baghdad, see M Evans and Beeston, ‘Blair Envoy Seeks To Draw UN Back into Baghdad’ The Times ( January ). 75 CPAOD , CPA Order dealt with the property of the Baath Party and Order made provision for the establishment of a ‘De-Baathification Council’. On de-natizification of Germany after see T O’Donnell, ‘Executioners, Bystanders and Victims: Collective Guilt, the Legacy of (De)Nazism and the Birth of th Century Transitional Justice’ (manuscript, Strathcylde University, ). 76 See J Steele, ‘U.S. Decree Strips Thousands of Their Jobs’ The Guardian ( August ) (on the effect of Order No on psychiatrists and academics). 77 CPAOD , Annex.
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.. The Iraqi Governing Council Among the first steps taken by representatives of the Iraqi people were political declarations adopted in Nasiriyah ( April ) and in Baghdad ( April ).78 Early elections were practically impossible. As a first step towards the establishment of an internationally recognised representative government, an Iraqi ‘Governing Council’ was established on July . An agreed document between the CPA and the Governing Council stated that ‘The Governing Council is the principal body of the interim administration of Iraq called for in SC esolution ()’. In esolution the SC determined: [T]hat the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the Authority.79
esolution called upon: [T]he Authority, in this context, to return governing responsibilities and authorities to the people of Iraq as soon as practicable . . .80
The Governing Council was broadly representative but it has to be acknowledged that the CPA chose the members, though with the Special epresentative playing an active role.81 It was initially composed of members, three of whom were women. It had a small Shi’ah majority and an equal representation of Kurds and Sunnis. There were additional representatives of Christians and Turkmen. Three members of the Governing Council, Akila al-Hashimi, Ahmed Chalabi and Adnan Pachachi, addressed the SC in July .82 There were attacks on members of the Governing Council and on other religious leaders. One of the most tragic cases was that of Ayatollah Mohammed Baqer al-Hakim. He was the head of the Supreme Council for 78 See ‘Nasariyah Declaration’ US Dept of State Press elease, April , . See Grant, n above. 79 UNSC es (), para . 80 UNSC es (), para . 81 See CJ Williams, ‘Iraqi Council’s Most Pressing Task: Legitimacy’ Los Angeles Times ( August, ). 82 See UN Doc SC/PV/ ( July ).
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Islamic evolution in Iraq. His life story captured much of the violent history of Iraq: ‘I was born in Iraq, went to a madrasah in Iraq, went to prison in Iraq, was tortured in Iraq . . . I was married when I was eighteen; when the monarchy was toppled I was nineteen. I had grown up in a kind of poor family, but at the same time it was respected. I grew up during the Second World War, and I saw demonstrations in the streets over the establishment of Palestine’—he meant Israel. ‘I saw the arrival of Communist ideas. I was pulled by a rope through the streets when I was twenty years old. And . . . things have moved this way until now. All this period was characterized by killings, imprisonments, and I was tortured. I was burned with cigarettes, electroshocked. My head was put into a metal vise; I was beaten very harshly and imprisoned in a cell where I couldn’t distinguish between night and day. All of this happened when I was in my youth. When I was an older man, five of my brothers and nine of my nephews were killed. Fifty of my relatives were killed or disappeared. I’ve had seven assassination attempts against me, but I depend on the Almighty to cleanse my soul, and I am not tired, I will continue’.83
The Ayatollah returned to Iraq and became an influential member of the Governing Council.84 In August , a bombing at a sacred Shite Muslim shrine in Najaf killed the Ayatollah and scores of others.85 The Governing Council had the right to set policies and take decisions, in cooperation with the CPA. The emphasis of its initial powers was on foreign affairs, finance, security and the constitutional process. The budget for was subject to its approval. It appointed a twenty-five member preparatory constitutional committee to recommend to it a process by which a new Constitution would be prepared and approved. The UN Special epresentative and a number of Iraqi leaders discussed the issue of a Constitution. The Governing Council quickly appointed a preparatory constitutional committee. The Governing Council envisaged a Constitution that was democratic, pluralistic and federal. A new Constitution was not just a legal issue. Constitutions are an expression of national identity:
JL Anderson, ‘Dreaming of Baghdad’ The New Yorker ( February ). See ‘Ayatollah Mohammed Baqir al-Hakim: Spiritual and Political Leader of the Iraqi Shias‘ The Guardian ( August ). 85 See A Shadid and D Williams, ‘Bombing at Iraqi Shrine Appears Carefully Planned’ Washington Post ( August ). 83 84
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A constitution should embody the core principles of a nation, including the extent and manner of the exercise of its sovereign powers. It follows that it must be wholly produced and owned by the people of Iraq. The document should take into consideration the views and aspirations of all Iraqis on relevant issues, including the structure of Iraq’s Government, the role of religion and the articulation of a set of fundamental rights and principles by which Iraqis wish to be governed.86
Moreover, the CPA initially took the view that the full restoration of national sovereignty would only come after the drafting of the new Constitution and the holding of national elections. In resolution the SC invited: [T]he Governing Council to provide to the Security Council, for its review, no later than December , in cooperation with the Authority and, as circumstances permit, the Special epresentative of the Secretary-General, a timetable and a programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution.87
The pressure for a timetable had come from states that had opposed the war and wanted to speed up the return of sovereignty to the Iraqis. Domestic pressures in the US were also for an earlier exit strategy. The resolution noted the intention of the Governing Council to hold a constitutional conference and committed the UN to assisting this process. In addition, the UN soon deployed its extensive experience in election assistance. A team from the Electoral Assistance Division of the Department of Political Affairs was dispatched to Iraq from July to August . A fact-finding mission was sent in February . .. The New Plan for Iraq The CPA found itself under immense domestic and international political pressure to speed up the return of power and sovereignty to Iraq. Added to the pressure were a high level of killings and casualties caused by anti-coalition groups— were killed in November alone (as of mid-January , US soldiers had been killed). Although there was initial resistance, there was a change of policy. On November 86 See Secretary-General’s Second eport, n above, para . McGoldrick, n above, –. So too are the colours and symbols on the adoption of a national flag. The Iraqi Governing Council adopted a new flag for Iraq. 87 UNSC es (), para .
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there was agreement on a new transfer plan with a series of deadlines. A transitional law was to be passed by February . By May , eighteen provincial caucuses in Iraq were to select a Transitional Legislative Assembly to appoint a provisional government. The members of the Transitional Legislative Assembly were to be appointed by a variety of methods.88 Sovereignty was to be formally turned over to the Transitional National Assembly by June .89 The plan was for a Constitutional Convention to be elected in the early months of , a new Constitution to be completed by the end of . Direct elections to chose a new government based on the Constitution would take place two years later. The expectation was that there would be an approving SC resolution and a new status of forces agreement to regulate the position of the coalition forces once the transitional Iraqi administration was in power.90 Formally, those forces would be there with the consent of the new Iraqi government. On February , UNSG declared that there was a consensus that elections were the best option but that they could not be held before June , the transfer date. An interim government would be needed. .
.. The Economic Challenges The economic challenges for Iraq were at least the equal of the political ones. Despite the oil wealth, the Baath regime and UN sanctions had raked havoc with the Iraqi economy. There were regular acts of sabotage on economic assets.91 The US and the UK were adamant 88 See Secretary-General’s Second eport, n above, paras –. The non-use of direct elections remained a contentious issue. The majority Shias were calling for direct elections. See C Philp and E Monaghan, ‘Shia Leader Insists on Early Direct Elections’ The Times ( January ); S Farrell ‘Sistani Supporters Take to Streets in Call for Elections’ The Times ( January ); A Cockburn, ‘US Baffled by Shia Leader who efuses to Cut a Deal’ ibid; Editorial, ‘True Democracy—Hasty Elections Would Ensure Long-Term Instability in Iraq’ ibid. 89 ‘America Agrees Timetable for Leaving Iraq’ Sunday Times ( November ). The critics argued that Iraq was being abandoned in haste: ‘If America and Britain have not the guts to stay, then it is to the United Nations and not a cartload of Iraqi stooges that control should pass.’ M Parris, ‘Six Months and Counting Till the Day We Abandon Iraq’ The Times ( January ) (drawing parallels with the colonial abandonment of the Belgian Congo and of India). 90 See Foreign Secretary, Evidence to UK Foreign Affairs Committee, FAC, Foreign Policy Aspects of the War against Terrorism, Minutes of Uncorrected Oral Evidence, December , p . 91 See J Huggler, ‘Sabotage Threatens Iraq’s Economy‘ The Independent ( August ).
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that the conflict had not been motivated by their interest in securing oil resources for themselves. However, they had to answer the question of how would Iraq’s resources be protected so that they could benefit the people of Iraq?92 Their answer was that the proceeds from oil sales would be placed in a trust fund for the people of Iraq.93 Iraq had massive debts to countries such as France, Germany, ussia and Japan. How would these debts, including war reparations due to Kuwait, be dealt with? How would third-party property rights be dealt with?94 The oppressive reparations imposed on Germany after the First World War are now generally considered to have been a mistake and a factor in the rise of Nazism. The ‘Paris Club’ was involved in seeking a solution to the Iraqi debt problem. The US wanted Iraq’s huge debts of some $ billion to be largely written off but there was strong resistance from France, Germany and ussia. Eventually the US did secure agreement on a massive writing off of debts.95 Another issue was how would Iraq’s cultural heritage be protected? 96 In the early post-war period there was extensive looting of Iraqi museums and galleries. .. Humanitarian elief The obvious priority was to ensure the continuation of humanitarian relief. The first resolution to be agreed by the SC after the war, esolution , was appropriately concerned with such relief.97 Even political agreement on this was not easy to secure. It took six weeks and the negotiations were complicated and heated. Members of the SC were reluctant to appear to legitimise the intervention by 92 See Dobie Langenkamp and J Zedila, ‘What Happens to the Iraqi Oil?: Some Thoughts on Some Significant Unexamined International Legal Questions egarding Occupation of Oil Fields’ () EJIL ; E Benvenisti, ‘Water Conflicts during the Occupation of Iraq’ () American Journal of International Law . 93 See Azores statements, n above, stressing that the natural resources of Iraq belonged to the Iraqi people; M enner, ‘Post-Saddam Iraq: Linchpin of a New Oil Order’ Iraq War eader, n above, . 94 See PHF Bekker, ‘The Legal Status of Foreign Economic Interests in Occupied Iraq’ (July ) ASIL Insights . 95 President Bush appointed former Secretary of State James Baker as an envoy to negotiate with the debtor countries. See M Newman, ‘Bush Sending Baker to Iraq to Deal with its Debt Problem’ New York Times ( December ). 96 See UNSC es () para ; A Khan, ‘The Obligation of the Coalition Provisional Authority to Protect Cultural Heritage’ ( July ) ASIL Insights . 97 See Secretary-General’s Second eport, n above, paras –. Generally see .
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the US and the UK and did not wish to lift sanctions until Iraq was declared free of WMD. Eventually, SC esolution () was sponsored by of the fifteen members—the exception being Syria. It was unanimously adopted on March . It modified the ‘Oil for Food’ programme under which oil was sold to buy food and humanitarian supplies.98 The programme had been the only source of sustenance for per cent of Iraqis.99 The resolution extended for days the authority of the Secretary-General to run the programme. Pakistan, Syria and ussia, stressed that their acceptance of the resolution should not be interpreted as legitimising the invasion or the occupation of Iraq. Nonetheless, the unanimous adoption of the resolution was an important sign that the SC was finding a limited degree of unity and was assuming some responsibility for the future of Iraq.100 In May , the Secretary-General’s authority was extended for another six months, that is, until November , on which date the programme transferred to the CPA.101 esolution noted the responsibilities of the occupying powers under Article of the Fourth Geneva Convention on the Protection of Civilians: to the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.102
esolution : []eaffirmed the respect for the right of the people of Iraq to determine their own political future and to control their own natural resources.
It also lifted the trade and financial sanctions against Iraq that had operated for thirteen years. The arms embargo remained. 98 See UNSC es (). As of May , $ billion worth of humanitarian supplies and equipment had been delivered under the programme. An additional $ billion was in the production and delivery pipeline. 99 The total population is . million. In May , malnutrition among children under five was estimated at . %, as compared with % before the war. Most other health indicators were within seasonal norms. 100 See UN Doc S/PV/ ( March ), and esumption ( May ). 101 See UN Doc UNSC es (). The timetable was adhered to, see UN Press elease IK/ ( November ); Secretary-General’s Second eport, n above, paras –. The programme had managed some $ billion worth of humanitarian assistance, supplies and projects. 102 Preamble to UNSC es . See also UNSC es ().
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In June , a revised inter-agency humanitarian appeal for Iraq requested $. billion to provide for humanitarian assistance and emergency rehabilitation. This is the largest request in the history of the UN. Half of this sum was to come from the ‘Oil for Food’ programme. By July , $ billion had been made available. The major donors were the US, UK, Japan, Australia, Canada, Italy, Netherlands, EU and Germany. A major donor conference was held in Spain in October . The UK committed £ million. Alongside the food sector the major needs related to the basic health system, nutrition support, education and mine clearing. In the early months relief activities were inhibited by lack of security.103 There were a small number of attacks on UN workers and facilities.104 .. Economic econstruction The UN Secretary-General appointed a representative to an International Advisory and Monitoring Board, which was to audit a ‘Development Fund for Iraq’.105 This was a trust fund into which per cent of oil and other revenues were to be paid.106 The funds were to be disbursed at the discretion of the CAP for humanitarian and economic reconstruction and for other costs. esolution required the Special epresentative to promote economic reconstruction. The UN carries with it an economic orthodoxy based on reform, transition to the market economy, poverty reduction, sound currency arrangements, transparent revenue collection and governmental expenditure management, a macroecomomic policy framework consistent with the goals of limiting inflation and maintaining a manageable balance-of-payments position, and the provision of a favourable environment for private-sector-led growth and the creation of employment.107 The Secretary-General recognised that ‘Such a profound transformation of the economy will have farreaching social implications’, for which read mass unemployment and reductions in social services, and that, ‘for the transition process to be successful, its goals and methods must be inclusive and command See Secretary-General’s First eport, n above, Part IV. In November , seven Spanish intelligence officers were killed. 105 The Board held its first meeting in December . See 106 The CPA established the DFI on June . See also CPAEG on the ‘DFI’ and CPAEG on the ‘Program eview Board’ . 107 See Secretary-General’s First eport, n above, Part IX. 103 104
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broad-based Iraqi political support’.108 Laws introduced by the CPA allowed for the privatisation of Iraq’s non-oil assets.109 These have been criticised as inconsistent with Iraq’s right to economic selfdetermination, which was asserted in SC esolutions and .110 The UK’s Secretary of State for Foreign and Commonwealth Affairs was asked in the House of Commons: [W]hat assessment he has made of whether UN Security Council esolution permits the per cent purchase by foreign companies of all Iraqi economic sectors, excluding only natural resources.
The answer given was as follows: esolution authorises the Coalition to undertake activities to promote economic reconstruction in Iraq, in co-ordination with the Special epresentative of the UN Secretary General CPA Order on Foreign Direct Investment permits up to per cent participation in a new or existing business in Iraq, but does not allow for foreign direct and indirect ownership of the natural resources sector involving primary extraction and initial processing. In addition, this Order does not apply to banks and insurance companies. Foreign direct investment is an important means of promoting employment opportunities and improving social welfare. This Order creates the conditions for much needed capital to enter the Iraqi economy. The Government are therefore satisfied that Security Council esolution provides a sound legal basis for the policy goals of the CPA Foreign Investment Order. We have also satisfied ourselves through UK officials working within the CPA, and the office of the UK Special epresentative for Iraq that co-ordination with the UN has taken place, in consultation with the International Financial Institutions. The Order was approved by the Governing Council and had the support of the Minister of Finance.111
Trade tariffs and taxes were reduced and the Central Bank of Iraq was made operationally independent.112 A number of Orders and Ibid para . ‘Iraq Asset-Stripping Warning’ The Observer ( October ); M Adler, ‘Let Iraqis Decide What to Privatize‘ Washington Post ( August ). 110 See S Williams, ‘The Seeds of Iraq’s Future Terror’ The Guardian ( October ) (arguing that privatisation might sow the kind of resentment that is the seedbed of future terrorism). 111 Commons Written Answers, Mr. ammell, House of Commons, November , Hansard, HC Deb vol col W. See also Mr Benn, ‘Statement on econstruction of Iraq’ November , Hansard HC vol col W. 112 See CPAOD of June on ‘Trade Liberalisation Policy’, and the public notice of the same date, . A new currency was introduced. 108 109
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egulations of the CPA dealt with economic matters such as licensing telecommunications services and equipment, and trade liberalisation policy.113 By January , an increasing number of hospital and schools had opened and were functioning, and over newspapers or political publications were available on the streets of Baghdad. A Press Council was established to try and regulate some of their excesses and advocacy of racial hatred. Some semblance of daily normality and order was returning to much of Iraq. .. International Economic Aid The US administrations’ budget request to Congress for Iraq for was a staggering $ billion. The request, which was approved, covered ongoing military and intelligence operations and economic reconstruction. An international conference on reconstruction in Iraq was held in October .114 The amounts committed were $ billion (in addition to $ billion pledged by the US).115 In December , the US caused political controversy when it announced that it would not allow contracts, worth $. billion of US moneys committed for the reconstruction of Iraq, to be awarded to states that had opposed the Iraq war.116 The Memorandum listed the states that were eligible.117 The US argued world trade organisation agreements had not been broken because that the CPA was not subject to international trade procurement obligations. .
.. The United Nations and Human ights On his appointment, the Special epresentative for Iraq commented that he considered, ‘the development of a culture of human rights in See Orders and respectively, . See ‘World Bank President Pleased With Iraq Donor Pledges’ . 115 Ibid. See EA Wayne, ‘Economic and Financial Reconstruction in Iraq’ ( Feb. ) . 116 See ‘Iraq econstruction Contracts for Firms from Supporting Nations’ and ‘Whitehouse Defends its econstruction Policy in Iraq’ ( December ) . 117 Ibid. The US subsequently softened its line, see Watson, ‘US Softens Line over Iraqi Contracts’ The Times ( January ). 113 114
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Iraq as fundamental to stability and to peace’.118 He stressed the importance of women’s rights and the need for their full participation in consultative and political processes that lay ahead. An extensive number of UN specialised agencies, for example, UN Development Programme, High Commissioner for efugees, WHO, UNICEF, WFP, and the international financial institutions, were quickly back at work in Iraq. So too were more than thirty non-governmental organisations and the EU. The humanitarian programme was managed by the US Department of Defence. This was purportedly to ensure clarity on who held overall authority and to ensure coordination between diverse actors and institutions. However, a number of NGOs such as Save the Children insisted that their agreements with the US government included a provision to the effect that they would only engage with and report to civilian agencies. In July , the US did turn to the UN for assistance with peacekeeping and humanitarian assistance. However, many states (eg France, ussia and India) were politically unwilling or legally unable for constitutional reasons (Germany) to assist in the absence of a SC mandate to do so. The EU Foreign Ministers also insisted on the need for a central UN role in the process of reconstruction.119 There was a strong political argument that a SC mandate increased the legitimacy and the perceived impartiality of the peacekeeping and humanitarian activities. The UN also has extensive expertise on post-conflict situations that cannot be matched by individual states. .. The UN’s Model of Human ights Once the UN is involved then its general model of human rights protection—genuine elections, democracy and gender equality— followed. At least in respect of Afghanistan all the parties were involved in negotiating the Bonn Agreement on the future of the country. However, many parts of the general UN model are contested by existing states in the Middle East region. It was clearly understood that a realistic transition in Iraq to a stable democracy, supported by effective institutions, would take decades and cost billions of dollars.120 In that transition, the UN could have a powerful 118
See ‘EU Foreign Ministers Statement on Iraq econstruction’ July . The European Commission proposed to set up two development funds for Iraq. 120 See also Y Ghai, Building Democracy in Iraq (London, Minority ights Group, ) and the bibliography at 119
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influence. It has a lot of experience in protecting civilians in post conflict situations and addressing crucial thematic issues such as access to vulnerable populations, separation of civilian and armed elements, rule of law, justice and reconciliation, and gender based violence.121 The UK’s Foreign Affairs Committee acknowledged that Afghanistan and Iraq had demonstrated, ‘the profound difficulties inherent in post-conflict stabilisation and reconstruction operations’.122 It considered that the success of both operations was of central importance to the success of the ‘war against terrorism’.123 The CPA held a meeting with Iraqi women’s groups in June and a one-day conference on gender issues in July. It also supported an independently run radio station for women. The UN Special epresentative appointed Mona ishmawi as his Special Adviser on Human ights and Women’s Issues. esolution required the Special epresentative to promote the protection of human rights and the safe, orderly and voluntary return of refugees and displaced persons. The Office of the UN High Commissioner for efugees estimated that there may be , Iraqi refugees worldwide, million internally displaced people and more than , refugees from other countries who were living in Iraq. The Secretary-General advocated a ‘carefully phased and gradual approach to returns’.124 CPA Order dealt with the control of borders, ports and airports.125 A number of the Orders of the CPA had a human rights dimension, for example, Number on the ‘Management of Detention and Prison Facilities’.126 Similarly the CPA issued a ‘Notice egarding Incitements to Violence’ and a ‘Memorandum for Commanders, Coalition Forces on “Implementation of Public Notice egarding Incitements to Violence”’.127 This stressed that one of the objectives of the CPA was to promote a free and responsible media. It set out guidelines relating to incitements to violence. 121 See the ‘Third eport of the UN Secretary General on the Protection of Civilians in Armed Conflict’ UN Doc S//. 122 FAC eport, Foreign Policy Aspects of the War against Terrorism, Tenth eport of Session –, HC ( July ) para . 123 Ibid. 124 Secretary-General’s First eport, n above, paras –. CEDAW has expressed concerns at measures taken by the Iraqi Governing Council. 125 See This regulated transit and movement to and from Iraq. 126 CPAOD of June , . 127 June , .
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There were also a number of human rights issues that arose directly out of the actions of coalition forces. Among them were the insensitive exercise of stop and search powers over people and houses, detention powers,128 the mistreatment of detainees, house demolitions as a collective punishment129 and civilian deaths. 130 .
.. Dealing With The Past SC esolution affirmed, ‘the need for accountability for crimes and atrocities committed by the previous Iraqi regime’. One of the first meetings organised by the Special epresentative was a national human rights workshop. This was held in Baghdad from June to July . This brought together Iraqi lawyers and human rights activists with experts from the international community to discuss justice for past human rights violations in Iraq. After the war began, the US deployed a special army unit to Iraq to gather evidence on Iraqi war crimes.131 The Governing Council was going to have to decide how to deal with Iraq’s past for example, by trials, amnesties, truth commissions or some combination of these.132 Or it could have decided to simply bury the past by ignoring it. The number of disappeared or missing persons was simply unknown but estimates of , are considered to be credible. Over mass graves were unearthed in many parts of the country. .. The Iraqi Special Tribunal On December , the Iraqi Governing Council approved the establishment of the Iraqi Special Tribunal—a war crimes court to try 128 As of January , an estimated , persons were held in detention without charge. In January , a number of minor violators were released under an amnesty, see S Farrell, ‘Confusion over Amnesty as Prisoners are Freed’ The Times ( January ). 129 On house demolitions see the concerns expressed by Amnesty International in . 130 See Human ights Watch, Hearts and Minds: Post-War Civilian Deaths in Baghdad Caused by US Forces (October ) (alleging failure to conduct proper investigations) . 131 See also ‘Ensuring Justice for Iraq: Evidence Preservation and Fair Trials’ . 132 See L Sadat, ‘What Would US Do With Saddam’ St Louis Post Dispatch ( March ); D Scheffer, ‘Justice in the Aftermath’ Washington Post ( March ).
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leading members of Saddam Hussein’s Baath party regime for genocide, mass killings and other crimes against humanity committed between July and May .133 The governing law was based on Iraqi and international legislation. In terms of the international crimes covered, it is similar to the Statute of the International Criminal Court.134 There was provision for international observers, but the judges were all to be Iraqis. The courtroom was located in a former museum and the estimated costs of establishing the court are $ million.135 The new Iraqi law on war crimes trials allowed for trials of Iraqi nationals and residents responsible for crimes committed between and May . It allowed for trial in absentia and the application of the death penalty.136 Possible offences are murder, disappearances, torture the use of chemical weapons in the Iran–Iraq War and against the Kurds.137 There will be strong political pressure on Iraq to ensure that the trial is fair and accords with international human rights standards.138 Saddam Hussein could potentially be subjected to the death penalty. General Tommy Franks, the American military commander, suspended Iraq’s death penalty after the coalition took Iraq in April, but it remained on the statute books.139 It was for the Iraqi Governing Council to determine whether it should be reinstated. The death penalty presents a problem for states such as the UK, which have adopted a position of principle against the death penalty. The UK would require assurances that anyone transferred will not face the death penalty. Human ights Watch expressed concern that the law would allow people to be prosecuted merely for having been
133 See J Hider, ‘War Crimes Court Will Try Saddam Henchmen’ The Times ( December ). 134 See EM Lederer, ‘New Iraqi War Crimes Tribunal Emulate the International Court US Opposes’ Associated Press ( December ). Professor Bassiouni, a leading proponent of the ICC, drafted the Iraqi law on the Special Tribunal. The law also included a number of offences under Iraqi law. 135 F Gibb and Beeston, ‘US Sets Aside $ m for Putting Saddam On Trial’ The Times ( January ). 136 See J Hider and S Farrell, ‘Saddam and His Henchmen to Face War Crime Death Penalty’ The Times ( December ). 137 The crime of aggression is another possibility but it is legally controversial and there is no agreed definition, eg, in the context of the International Criminal Court. 138 See, in particular, Art of the International Covenant on Civil and Political ights (). 139 See section of CPAOD of June on the ‘Penal Code’, .
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members of the Baath party or the toppled Government, regardless of whether they had committed specific crimes.140 The first defendants to appear before the tribunal would be from the Iraqis named on the ‘deck of cards’ drawn up by the US identifying its most-wanted members of the former regime. The coalition was holding of them in high-security jails inside Iraq, while another four were dead. They include military leaders such as Ali Hassan al-Majid, Saddam’s cousin, also known as ‘Chemical Ali’ for his use of poison gases against Kurds, which killed tens of thousands of people, and Tariq Aziz, the former Deputy Prime Minister. The trials were unlikely to start before the scheduled handover of sovereignty by the coalition authority in mid-. .. The Capture of Saddam Hussein The ‘Ace of Spades’ in the US deck of cards, Saddam Hussein, remained the focus of a huge manhunt for eight months. He was finally captured on December , hiding in a hole in his home city of Tikrit.141 He surrendered without a fight.142 His dishevelled and broken image while under medical examination was flashed around the world. Under the Fourth Geneva Convention, Prisoners of War must be protected against ‘public curiosity’. This would normally prohibit such media images being shown. A one-off showing could be justified on the basis of the importance of the person concerned, the argument that the knowledge of their capture could convince others to stop fighting and that the images showed him being medically examined and properly treated—an image that is in the interest of the POW. 143 The counter argument is that the images of him were humiliating for a former leader and were intended as such by the US.
140 ‘Iraq: Law Protecting War Crimes Tribunal Flawed’ see also ‘Iraq: Tribunal Established Without Consultation’ Amnesty International, . 141 ‘Saddam Captured’ The Times ( December , pp –). 142 It is interesting to note that the US immediately stated that he would be treated as a prisoner of war and dealt with in accordance with the Geneva Convention elative to the Treatment of Prisoners of War (). The Convention sets out detailed rules for the treatment of POW’s, including judicial proceeding against them. 143 See Art of the Geneva Convention elative to the Treatment of Prisoners of War (). He was visited by the ICRC in February .
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Saddam Hussein could now be tried before the new war crimes court.144 The era of the ‘dictator of mass destruction’, as he was ironically styled, was definitively over. It was a huge psychological victory for the coalition. The symbolic downfall of Saddam that had been reflected in the destruction of his statue in Baghdad in April 145 had become a physical reality: arely do the monsters of history have to account for their crimes. Hitler shot himself. Stalin died of a stroke. Pol Pot ran off into the jungle. Not since Eichmann faced a court in Jerusalem has a mass murderer on the scale of Saddam Hussein been captured alive and put on trial. The importance of this cannot be overestimated. The man who for thirty years systematically terrorised his country, gassed the Kurds and buried the Shia in mass graves, who led Iraq into three disastrous wars and ruined a once flourishing country into a turned wasteland, will finally have to answer for the evil that he perpetrated. The man who dreamt of being a second Saladin, a hero to the Arabs and a champion of the Muslims, was captured without heroics—dirty, bedraggled, cowering and submissive and although armed, was taken without a shot being fired.146
Tim Hames described the capture as a, ‘moment of destiny’.147 Any possibility of the Saddam Hussein regime returning had been extinguished. The political hope was that his political supporters inside and outside of Iraq would recognise this. If those political forces go elsewhere or decide that it is in their interests to play more within the system, then the attacks against the coalition forces, the UN and aid agencies would reduce accordingly. In addition to information from Saddam Hussein himself, other members of the former regime may be more forthcoming with information on weapons of mass destruction and human rights violations. Saddam Hussein’s capture attracted mixed responses from states in the Middle East, adding in particular to the vulnerability felt by Syria and Libya.148 144 See F Gibb, ‘War Crimes Court likely to Try Former Dictator’ The Times ( December ). 145 That destruction was a stage-managed event. The head was covered in a US flag for a short time. The square in Baghdad was largely empty. The US military had to assist in pulling the statue down. See S ampton and JC Stauber, Weapons of Mass Deception: The Uses of Propaganda in Bush’s War on Iraq (London, Constable and obinson, ) –. 146 Editorial, ‘Captured’ The Times ( December ). 147 T Hames, ‘This was a Moment of Destiny: Now it is All Changed’ The Times ( December ). 148 See Beeston, ‘Middle East States Give Mixed esponse amid Fear Other States are Vulnerable’ The Times ( December ).
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.. Prosecutions Versus Truth Commissions The trials of Saddam Hussein and other leading members of the Baath party could have a cathartic effect of Iraq. It will have to demonstrate the effectiveness of its new judicial system in the eyes of the world.149 However, there are attendant risks and dangers. Defendants may seek to turn the proceedings into show trials, present a justification for their political ideology and expose the political hypocrisy of states who previously supported the Iraqi regime.150 These are the tactics adopted by Former Yugoslav and Serbian President Milosevic.151 Legal trials have a life of their own and cannot be politically controlled in the way that states like.152 If states do seek to control them they are inevitably criticised for interfering into what are properly judicial matters. It is almost political and social orthodoxy that traumatised societies have to find ways of dealing with past rather than just burying it.153 The value and purpose of prosecutions for gross or systematic atrocities has been much debated.154 In favour it is argued that prosecutions can assist with the coming to terms with events and can reduce bitterness. Lack of accountability for crimes encourages perpetrators, fuels resentment and perpetuates violence. Justice is attainable with-
149 See LA Casey and DB ivkin, ‘Saddam’s Judge and Jury: An Iraqi Court Should Try the Tormentor’ Washington Post ( March ); AM Slaughter, ‘Not the Court of First esort’ Washington Post ( December ). 150 See C Marquis, ‘umsfeld Made Iraq Overture in ‘ Despite Chemical aids’ New York Times ( December ) (on US assistance to Iraq in Iran–Iraq War). 151 See D McGoldrick, ‘The Trial of Slobodan Milosevic: A Twenty-First Century Trial?’ in A Melikan, The Trial in History: International and Domestic Trials Vol II (Manchester, Manchester University Press, ) –. 152 S Jenkins, ‘It’s Simple: The Only Good Saddam is a Dead One’ The Times ( December ). 153 NJ Kritz, ‘Accountability for International Crimes and Serious Violations of Fundamental Human ights: Coming to Terms with Atrocities: A eview of Accountability Mechanisms for Mass Violations of Human ights’ () Law and Contemporary Problems . 154 See M Minow, Between Vengeance and Forgiveness: Facing History After Genocide, (Beacon Press, Boston, ) –; M Osiel, Mass Atrocity, Collective Memory and the Law (New Brunswick, NJ, Transaction, ); M Osiel, ‘Why Prosecute? Critics of Punishment for Mass Atrocity‘ () Human ights Quarterly ; ‘Conference on War Crimes Tribunals’ () American University International Law eview; J MalamudGoti, ‘Transitional Governments in the Breach: Why Punish State Criminals?’ () Human ights Quarterly ; J Golson (ed), Memory and Justice on Trial (outledge, London, ).
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out sacrificing peace.155 History must be faced.156 Prosecutions can contribute to the restoration of international peace and security.157 Depending on the particular case and the approach of the particular court, prosecutions can provide a detailed historical record of the broader social and political context for mass crimes. This social process may be a necessary and significant part of reconciliation. From this perspective, trials are not just a means to punish, but also a narrative that rescues the memory and truth in a given society about what happened, and provide a solid basis for real reconciliation. However, prosecutions are not necessarily the best or most appropriate policy choice. Critics argue that prosecutions are ad hoc, selective,158 politicised,159 deliver partial justice, usually by the victors, perpetuate bitterness and prevent social and ethnic reconstruction. Peoples and societies must decide for themselves and their decisions to choose alternative mechanisms for dealing with the past should be respected.160 The value of prosecutions in achieving accountability has to be judged besides other mechanisms and institutions. ‘Truth and econciliation Commissions’ have emerged as an alternative societal technique for coming to terms with atrocities. The generic reference to ‘truth’ is notable and they have involved elements of confession and storytelling, the involvement of victims and, in some cases, the granting of amnesty under certain conditions. The commissions in South Africa, Chile, Argentina, Brazil and Uruguay are the most famous but various forms and models have been developed in an increasing number of states.161 One of the most recently established 155 P Akhavan, ‘Justice and econciliation in the Great Lakes egion of Africa: The Contribution of the International Criminal Tribunal for wanda’ () Duke Journal of International and Comparartive Law ; P Akhavan, ‘Justice in The Hague, Peace in the Former Yugoslavia?’ () Human ights Quarterly . 156 See Minow, n above, ch . 157 This was explicitly stated in the SC resolutions establishing the ICTY and the ICT. 158 See TLH McCormack, ‘Selective eaction to Atrocity: War Crimes and the Development of International Criminal Law’ () Albany Law eview . 159 See G Simpson, ‘War Crimes: A Critical Introduction‘ in TLH McCormack and GJ Simpson (eds), The Law of War Crimes: National and International Approaches (The Hague, Kluwer, ). 160 Many of these arguments were also raised in the context of the Spanish proceedings against General Pinochet of Chile and the related UK proceedings for his extradition. See v Bow Street Magistrate and others, ex parte Pinochet Ugarte (Amnesty International and others Intervening) [] All E ; Brody and M atner (eds), The Pinochet Papers: The Case against Augusto Pinochet in Spain and Britain (Kluwer, The Hague, ). 161 See PB Hayner, ‘Fifteen Truth Commission’s, –: A Comparative Assessment’ () Human ights Quarterly ; PB Hayner, Unspeakable Truth: Facing the
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is that in Sierra Leone.162 In December , the Iraqi Governing Council announced that a truth commission would be created.163 .
Apart from a small number of long-range missiles, Iraq did not use any of the weapons it claimed it never had. The immediate priorities of the occupying forces were on securing security and stability and defeating remaining regime elements. Nonetheless, the ‘Iraq Survey Group’ (ISG) was established by the US to continue the search for weapons of mass destruction (WMD). This was composed of scientific and technical experts. Significant findings were trailed by its leader, Dr Kay. The Survey Group published its first report on October .164 Although no weapons of mass destruction had been found, it considered that it was still too early to say that they did not exist. The search had been hindered by an elaborate concealment operation, the deliberate destruction of evidence and by intimidation. It found substantial evidence of research on WMD and that a capability to produce biological weapons had also been maintained. There had probably been no chemical weapons programme since . There was no evidence of efforts to produce nuclear weapons in recent years. Iraq had, with illegal foreign assistance, been developing missile systems whose range would have breached UN resolutions. The US responded to the report by tripling the budget of the ISG to $ billion, allowing an additional staff to be recruited. However, it withdrew the Joint Captured Material Exploitation Group, a specialist unit that searched sites for missile launchers that might have been used with banned weapons. In December , the leader of the ISG, Dr Kay, announced that he would not be continuing in that role. This was interpreted by some as an implicit acknowledgment that no significant new evidence of WMD would Challenge of Truth Commissions (New York, outledge, ); NJ Kritz (ed), Transitional Justice: How Emerging Democracies eckon with Former egimes, vols (Washington DC, United States Institute of Peace Press, ); A McAdams (ed), Transitional Justice and the ule of Law (Notre Dame, University of Notre Dame Press, IN, ); Teitel, Transitional Justice (New York, OUP, ); JD Tepperman, ‘Truth and Consequences’ () () Foreign Affairs (noting M Ignatieff ’s comments that TC’s can reduce the number of lies). 162 See Second eport of the SG Pursuant to SC esn (), S// ( January ). Commissions are under consideration for Bosnia and Indonesia. 163 For issues to be considered in establishing a truth commission see . 164 See the reports in The Times ( October ).
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be found. This was confirmed by Dr Kay in evidence to the US Senate Armed Services Committe on January . esolution stated that the mandates of the UNMOVIC and the IAEA were to be revisited. esolution did not address these mandates. In January , it was revealed that blister gas had been found but that it had been buried for ten years. . -
It was widely recognised that the War in Iraq would be assessed against a wider range of criteria than mere military success: The ultimate success of this conflict will depend on . . . three other factors. These are the sensitivity with which the Iraqi people are treated during the war itself; the political blueprint adopted for Iraq once Saddam Hussein has been overthrown and Washington’s skill in refining the concept of ‘pre-emption’ so as to reassure the lawabiding; and its speed in addressing the Palestinian question.165
The experience of the Iraq conflict and of post-war Iraq undoubtedly reflects back on its legitimacy and legality. The Iraq Survey Group’s eport served to rekindle the debates about the legality of the conflict with both sides relying on the report to justify their positions. So too did the September eport of the US bi-partisan House Intelligence Committee that criticised the intelligence information used by the US government to justify its case for war with Iraq.166 Further criticism that the US had misled the public came in a report from the Carnegie Endowment for International Peace in January .167 .
‘Winning the Peace’ in Iraq was always going to be difficult and so it is proving.168 The developments considered in this chapter amount 165 Editorial, ‘War and After: A Conflict that Could Not Be Avoided after September ’ The Times ( March ). 166 See T eid, ‘Bush Under Fire for His Flawed Case on Iraq’ The Times ( September ). 167 See J Cirincione, JT Mathews, G Perkovich with A Orton, WMD in Iraq: Evidence and Implications, (Washington D.C., Carnegie Endowment for International Peace, ) ; J Bone, ‘Americans Scale Back Hunt for Weapons’ The Times ( January ). 168 See the Observations of the UN Secretary-General in Secretary-General’s Second eport, n above, reproduced in Appendix XII below.
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to a revolution in Iraq. evolutions have a life of their own and a tendency to the unpredictable. The coalition states have given themselves a heavy responsibility for the future of Iraq. If they are to succeed, they will need the support of the international community of states and of international non-governmental organisations. But ultimately the people of Iraq will determine the future of Iraq. After decades of oppression it is perhaps the political and religious leaders in Iraq who bear the heaviest responsibilities of all. The challenges the leaders faced were vividly illustrated in the space of two days in March 2004. On 1 March, the Iraqi Governing Council reached a unanimous agreement on an ambitious interim constitution, which will remain in place until an elected government can draw up a permanent constitution. It described Islam as the state religion and ‘a source’ for civil law in Iraq, rather than ‘the’ source. It also declared that no laws will contradict Islam. It sets out basic democratic rights for individual Iraqis, including freedom of expression, religious freedom and due process. It stated, but did not mandate, that women should make up 25 per cent of the legislature. It also spelled out the principle of the separation of powers and declared that Iraq will be a federal republic. The Kurds were granted the right to maintain a high degree of self-rule until a permanent constitution can be finalised. Elections were to be held by the end of 2004 or in January 2005 at the latest. The interim constitution was widely hailed as landmark. It was to be officially signed on 2 March, which is the holiest day in the Shia calendar. However, signature was delayed because of a series of coordinated terrorist bombings on that date of Shia pilgrims in their holy city of Karbala and in Baghdad. Some 145 persons were killed and hundreds were injured. James Hider captured the essence of the tragedy in this way: A woman’s body lay near the shrine, wrapped in the black all-over dress favoured by the Shia. A security guard picked up her head and placed it on her corpse . . .
Al-Qaeda was again suspected of orchestrating the bombings in an attempt to incite a civil war in Iraq.
169
J. Hider, ‘Slaughter of the Faithful’ The Times, 3 March 2004.
7 World Order(s) for The Twenty-First Century .
This book has considered the principal international law and order issues in the War on Terrorism and the War on Iraq. It has argued that those issues are of fundamental importance because they seem likely to define the shape of international order for the twenty-first century. This chapter considers some of alternative visions of world order. There is inevitably a wide spectrum of possibilities and some crossovers between them. Nonetheless, it is interesting to compare the differences in visions. In chapters – we considered the US vision of international law and its impact on a number of areas of international law and institutions. France has offered an alternative vision to that of the US. As we noted in chapter , during the SC debates on the Iraq crisis, the French Foreign Minister stated that: [T]he choice is indeed between two visions of the world. To those who chose the use of force and thought they could resolve the world’s complexity through swift preventive action, France offered, in contrast, resolute action over time.1
Jocelyn Coulon has described the French vision as a ‘multipolar vision of the world, with a multilateral framework for the actions of all its players’.2 France plays out its vision with the European Union but wishes to extend its operation to the global framework. . -
Chapter explained how the twentieth century was marked both the paradox of more extensive international legal regulation and more 1 UN Doc S/PV/ ( March ) (emphasis added). See also Dominique de Villepin, French Foreign Minister, Dimbleby Lecture, October . 2 J Coulon, ‘How Unipolarity Died in Baghdad’ () European Foreign Affairs eview .
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extensive conflict. The twenty-first century has not begun any more auspiciously. The Wars on Terrorism and on Iraq are its first two wars. So will the twenty-first century also be another century of conflict? Paul Hurst has envisaged another century of conflict, different from the twentieth century, but no less brutal.3 If there are continuing conflicts, will there be more or less legal regulation? Will the current system of international laws and organisations survive? It seems to be undeniable that the post- legal order is under severe scrutiny and challenge. In October , Louise Frenchette, the UN Deputy Secretary-General, stated that: [T]he war in Iraq and its aftermath have brought us all face to face with a host of fundamental questions of principle and practice—on the rule of law, the use of force, evolving notions of sovereignty, and the principles that have helped preserve us from another world war since .4
The questions raised for international lawyers by the War on Terror ism and the War on Iraq are formidable. How far can the ‘war on terrorism’ be accommodated within existing legal frameworks and rules? 5 Will the existing international legal rules on, for example, statehood and selfdetermination be affected by action against rogue states and ideas of regime change? Will self-defence be radically modified or adapted to deal with new threats and policies? How will states and international institutions respond to more extensive claims for self-defence and for the wider interpretation of SC resolutions? To what extent can the worlds only superpower (famously described by a former French Foreign Minister as a ‘hyperpower’) be constrained by the most fundamental norms of international law and the most significant of multilateral institutions?: Laws, formal treaties, the customs of civilized nations, the legitimacy of international institutions—these were the dross of the past, and Bush was plunging into the future. And, as he plunged, he had no idea, nobody in his administration seemed to have any idea, that international law, human rights, ‘Europe’, and humanitarianism had willynilly become the language of liberal democracy around the world.6 3 See PQ Hurst, ‘Another Century of Conflict?: War and the International System in the st Century’ () International elations . 4 Address to International Crisis Group, (October ). 5 See A Cassese, ‘International Law: Terrorism is also Disrupting Some Crucial Legal Categories of International Law’ () EJIL ; T Franck, ecourse to Force (Cambridge, CUP, ); A Cassese, ‘Terrorism and the ight to Self-Defence’ () AJIL . 6 See P Berman, Terror and Liberalism (London, Norton, ) –.
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There are also broader questions of order and security. Will the responses by the US and its various coalitions produce Huntingdon’s much feared ‘clash of civilizations’?7 Will the two wars actually stimulate an increase in international terrorism and support for Al-Qaeda? 8 Will the ‘War on Iraq’ erode the ‘War on Terrorism’? Will there be beneficial effects from the regime change and reconstruction in Iraq? For example, will there be a spread of enforced democracy in the Middle East? Will future defence spending be determined more by fighting the war on terrorism rather than any idea of inter-state war such as that on Iraq?9 Will the world be more secure than before? .
Assumptions of what constitutes ‘world order’ may be very limited. For example, it may mean a mere absence of disorder. Or it may be much more substantive. For example, the presence of a certain kind and quality of order—marked by fairness, justice, equality, democracy, human rights or other political, economic or environmental values.10 Complexity theory might challenge the very notion that there is any ‘Order’, legal or otherwise, in the first place.11 There are massive disproportionalities between causes and effects, and social systems are characterised by unpredicatable and yet irreversible patterns.12 In relation to problems of predictability, complexity theory thus warns against making any assumptions about cause and effect or of predicting rational outcome from the two wars.13 James Fallows has noted that: [S]mall disturbances to complex systems can have unpredictably large effects . . . If we can judge from past wars, the effects we can’t
7 See SP Huntingdon, The Clash of Civilizations and the emaking of World Order (New York, Simon and Schuster, ); D Hiro, Iraq: A eport From the Inside (Granta, London, ). 8 See D van Nattta, ‘Calls to Jihad are Said to Lure Hundreds of Muslims into Iraq’ New York Times ( November ). 9 See Delivering Security in a Changing World, UK Ministry of Defence, White Paper, Cm –I and II (December ). 10 % of world’s population lives on less than $ a day, UN High epresentative for Lesser Developed Countries (). 11 J Urry, Global Complexity (Cambridge, Polity, ). 12 Ibid . 13 See the contributions in ‘After Saddam’ () () Foreign Affairs.
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imagine when the fighting begins will prove to be the ones that matter most’.14
Sometimes disastrous effects are presumed that simply do not come to pass.15 For example, the War in Iraq did not did not plunge the world into economic recession as some had predicted.16 After considering US motivations in the War on Terrorism and the absence of ‘any appeal to higher motives of a liberal civilization’, Paul Berman observed that: Here, in any case, was the great, frightening truth of all modern history, laid out for everyone to inspect again—the great truth that vast consequences flow from inconsequential-seeming causes, and that a systemic logic does not govern world events, and that chance occurrences frame the largest of phenomena: in this case, the chance occurrence that, at a moment of supreme crisis, the world’s most powerful person happened to be George W. Bush.17 .
Are the terrorists challenging world order? It may be possible to find rationalist ideological explanations for terrorism and the tactics of terrorists.18 In September , the UN Secretary-General stated that it had been: []ightly pointed out that terrorist are often rational and intentional actors who develop deliberate strategies to achieve political objectives. We should not pretend that all terrorists are simply insane, or that the decision to resort to terrorism is unrelated to the political, social and economic situation in which people find themselves. But we are also mistaken if we assume, equally, that terrorists are mere products of their environment. The phenomenon is more complex than that.19 14 J Fallows, ‘The Fifty-First State’ in ML Sifry and C Cerf, The Iraq War eader: History, Documents, Opinions (New York, Touchstone, ) (hereinafter Iraq War eader) at . 15 See Editorial, ‘After Saddam: The Middle East has Changed for the Better’ The Times ( January ). 16 See A Lieven, ‘The Push for War’ () () London eview of Books ( October); M ai, War Plan Iraq: Ten easons Against the War on Iraq (London, Verso, ) –. 17 Berman n above, . 18 Gunaratna, Inside Al Qaeda: Global Network of Terror (London, Hurst, ); A ichards, Socio-Economic oots of adicalism? Towards Explaining the Appeal of Islamic adicals (Carlisle, PA, Strategic Studies Institute, US Army War College, July ); Berman, n above, on the idea of ‘an aesthetic act of terror’. 19 Conference on ‘Fighting Terrorism for Humanity: A Conference on the oots of Evil’ New York, September , .
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However, particularly in its extreme form, some modern terrorism represents the pursuit of a fundamentalist ideology, which simply appears to be at odds with existing conceptions of world order. AntiAmericanism is extensive in many parts of the world, even in the West.20 Among the objectives being pursued is the destruction of the existing modern world order. That order is dominated by the US and its allies, and founded on state structures and international institutions. The attack is on the increasing globalisation of the vision of political and social order that is represented by Western civilisation in general, and by the US in particular. The ‘-’ attacks can thus be seen as an attack on the existing world order that is dominated by Western civilization. Thus John Gray has argued that: The suicide warriors who attacked Washington and New York on September th, , did more than kill thousands of civilians and demolish the World Trade Centre. They destroyed the West’s ruling myth.21
oger Scruton has sought to analyse what constitutes the defining elements of Western civilization.22 He stressed the historical and political importance of the idea of the social contract between a state and its citizens. The social contract emphasises membership rather than religion. Western civilisation is held together by political processes. The law is detached from the processes of religion. He also observes that the idea of state boundaries is a very European conception. Modern democratic states have a pre-political loyalty. In his view, this explains the enduring failure of Middle Eastern states to acquire legitimacy. Scruton’s conclusions are that the West should focus on what has contributed to its relative civilizational success: [T]he West must, I believe, do what it can to reinforce the nation state, which has brought the great benefits that distinguish the West from the rest, including the benefits of personal government, citizenship under a territorial jurisdiction, and government answerable to the people. This means that we must constrain the process of globalization, so as to neutralize its perceived image as a threat from the West to the rest.23 20 See Berman, n above, –; M Sardar and MW Davies, Why do People Hate America? (Cambridge, Icon, ). 21 J Gray, Al Qaeda and What It Means To Be Modern (London, Faber, ) . 22 Scruton, The West and the est: Globalization and the Terrorist Threat (London, Continuum Books, ). 23 Ibid . Among the specific areas he proposes for re-examination are: the failure to adjust immigration policies to the goal of integration; our acceptance of multiculturalism as
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.
.. Islamic Fundamentalism In chapter we observed that considerable effort has been made to explain that the ‘War on Terrorism’ was not a war against Islam.24 Nonetheless, in many parts of the world the war on terrorism is perceived to be one against Islamic terrorism. Indeed, for some commentators the war should be against Islamic fundamentalists. Mohamed Sifaoui has argued that, ‘Islamic fundamentalism remains a scourge that needs to be eradicated, a form of fascism which must be fought’.25 .. The Iraq War as a Clash of Civilisations? During the War on Iraq in , the US and the UK explained repeatedly that it was not a war against Muslims. The US and the UK had stressed that previous interventions in Somalia, Bosnia and Kosovo had been to protect Muslims. Nonetheless, many states and people perceived the Iraq War to be an anti-Islamic war. As with the First Gulf War in , many Muslim or Muslim dominated states were opposed to the very idea of Western intervention in an Islamic state.26 In that general sense it is possible to locate conflicts within the ‘clash of civilizations’ approach. However, the specifics of the conduct of Iraq appear to have little to do with Islamic civilisation in any genuine cultural or religious sense.27 Nor was it an intervention in an intracivilisational war: In the coming era . . . the avoidance of major intercivilizational wars requires core states to refrain from intervening in conflicts in other civilizations . . . This abstention rule that core states abstain from an education and political goal; the commitment to free trade conceived as a way of compelling other countries to remove barriers that defend perceived local interests; the acceptance of multinational corporations as legitimate legal persons; predatory litigation and bureaucratic legislation form elsewhere; and our devotion to prosperity. 24 See ; K Dalacoura, ‘Violence, September and the Interpretations of Islam’ () () International elations . 25 M Sifaoui, Inside Al Qaeda (London, Granta, ) –. 26 On reactions to the First Gulf War see Huntingdon, n above, –. 27 See also Berman, n above, – rejecting the clash of civilisations as explaining recent US interventions.
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intervention in conflicts in other civilizations is the first requirement of peace in a multicivilizational, multipolar world.28
In as much as the Iraq War was a continuation of the War on Terror,29 the larger war is also not a civilisational war in the Huntingdon sense. In chapter above, we cited the words of President Bush a week after the ‘-’ attack that the war on terrorism was ‘civilization’s fight. This is the fight of all those who believe in progress and pluralism, tolerance and freedom’.30 In this sense he stated that there was no room for neutrality of the middle ground in the war against terrorism as ‘You are with us or you are against us in the fight against terror’.31 .. Terrorism Versus Liberalism Paul Berman views the War on Terrorism as a continuation of the historical one between terror and liberalism. He comments that: The reality of the Terror War, then –the real life vista that first became evident in those early days of Afghan War—was neither policelike, nor civilizational, nor cosmic. It was an event in the twentiethcentury mode. It was a clash of ideologies. It was the war between liberalism and the apocalyptic and phantasmagorical movements that have risen up against liberal civilization ever since the calamities of the First World War.32
.. Assessing Islamic Fundamentalism It is important to take a balanced and realistic view of Islamic fundamentalism. There has been a worldwide ‘Islamic resurgence’.33 The Huntingdon, n above, . See the ‘Introduction’ to this book. 30 GW Bush, Address to Joint Session of Congress, September Similarly, the then Mayor of New York, udolph Guiliani, stated that ‘You’re either with civilization or you’re with terrorism’, cited in P McGeough, Manhattan to Baghdad: Dispatches from the Frontline in the War on Terror (Crows Nest, NSW, Allen & Unwin, ) . 31 GW Bush, Joint News Conference with President Chirac, November . 32 Berman, n above, –. 33 The expression is that of Huntingdon, n above, –. See also Berman, n above, – on the Islamists Movement since the s. 28 29
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forces of Islam cannot be homogenised.34 The term ‘Muslim fundamentalist’ is widely used but it is often imprecise and misleading. There are millions of devout Muslims around the world who reject the values and the actions of the terrorists who purport to act in the name of their religion. They reject the ‘politics of slaughter’ from which Al Qaeda emerged.35 They maintain their religious beliefs while positively contributing to multicultural and democratic societies.36 Indeed, the majority of world’s Muslims live in democracies.37 The number of them is growing. Samuel Huntingdon cited a demographic estimate that in , per cent of the world’s population will be Muslim.38 It is unarguable that Islamic thinking represents an important challenge for many cultures. For example, it creates difficulties for the idea of a universal human rights law. Major issues have concerned the status of women and unbelievers, family rights and duties, religious rights and criminal punishments.39 Ideas of privacy do not fit well with a Muslim belief system, which embraces all aspects of life with no public / private distinction.40 The liberal idea of church / state separation is anathema.41 Nonetheless, Islamic beliefs are probably better understood than at any time in history. The clash of civilisations is not really new. There has long been a struggle between Christianity and the Islamic empire.42 It was often a military struggle but it has always been a struggle over ideas and values. Such struggles are normal, even healthy. Moreover, some scholars have argued that the theoretical challenges, for example to universal human rights law,
34 See T Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity (London, Verso, ). 35 The expression is that of Berman, n above, –. 36 See ‘Tough on Terror: Muslim Leaders Have a Duty to Condemn Extremism’ The Times ( December ). 37 Comments of James Woolsey, former CIA Director (September ) Prospect Magazine. I leave aside the definition of what is a democracy. 38 Huntingdon, n above, . Interestingly, in the US the number of converts to the Islamic faith has risen since ‘-’. 39 ‘The emancipation of women, more than any other single issue, is the touchstone of the difference between modernization and Westernization’, B Lewis, What Went Wrong?: Western Impact and the Middle East esponse (London, Weidenfeld and Nicolson, ) . Kuwait was ‘liberated’ in but women still do not have the vote there. 40 See Berman, n above, on the ‘notion of Islam as totality’. Many other faiths have a religious code which seeks to govern private as well as public conduct. 41 Ibid . 42 I use ‘empire’ in the limited sense of wide and disparate geographical location.
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often turn out to be much reduced in practice.43 In that practice, there is an enormous variety in the interpretation of Islamic law. It is not at all unusual for one Islamic state to deny the validity of the interpretations of another, for example, on criminal punishment such as amputation of limbs and stoning. Equally, it must be admitted that there can be some severe tensions between Islamic beliefs and the organisation of modern democratic states. These were graphically illustrated by the decision of the Grand Chamber of the European Court of Human ights in the efah Partisi case against Turkey, in February .44 .
.. The Position under Turkish Law Under Article of the Turkish Constitution the epublic of Turkey is, ‘a democratic, secular and social State . . .’. In efah Partisi (The Welfare Party) And Others v Turkey,45 the case was brought by a Turkish political party, efah Partisi (hereinafter ‘efah’) and three Turkish nationals. The applicants alleged that the dissolution of efah by the Turkish Constitutional Court and the suspension of certain political rights of the other applicants, who were leaders of efah at the material time, had breached various Articles of the Convention. efah was a political party founded in . It took part in a number of general and local elections and was increasingly successful. The results of the general election made efah the largest political party in the Turkish parliament with a total of seats in the Grand National Assembly (which had members at the material time). On June , efah came to power by forming a coalition government. In January , the Constitutional Court dissolved efah on the ground that it had become a ‘centre of activities contrary to the principle of secularism’. The Turkish Constitutional Court 43 See M Baderin, ‘A Macroscopic Analysis of the Practice of Muslim State Parties to International Human ights Treaties: Conflict or Congruence’ () Nottingham Human ights Law Journal ; M Baderin, International Human ights and Islamic Law (Oxford, OUP, ). 44 Another instance of the tension is the announcement in December by the French government that it intends to ban the wearing of headscarves by Muslim girls in state schools. The law was passed by the National Assembly in February . 45 Application nos /, /, / and / ECH, February .
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upheld the dissolution. It observed that secularism was one of the indispensable conditions of democracy: In Turkey the principle of secularism was safeguarded by the Constitution, on account of the country’s historical experience and the specific features of Islam. The rules of sharia were incompatible with the democratic regime. The principle of secularism prevented the State from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law. Intervention by the State to preserve the secular nature of the political regime had to be considered necessary in a democratic society. The Constitutional Court further observed that in a plurality of legal systems, as proposed by efah, society would have to be divided into several religious movements; each individual would have to choose the movement to which he wished to belong and would thus be subjected to the rights and obligations prescribed by the religion of his community. The Constitutional Court pointed out that such a system, whose origins lay in the history of Islam as a political regime, was inimical to the consciousness of allegiance to a nation having legislative and judicial unity. It would naturally impair judicial unity since each religious movement would set up its own courts and the ordinary courts would be obliged to apply the law according to the religion of those appearing before them, thus obliging the latter to reveal their beliefs. It would also undermine legislative and judicial unity, the preconditions for secularism and the consciousness of nationhood, given that each religious movement would be empowered to decree what legal rules should be applicable to its members.46
.. The Challenge under the European Convention on Human ights The applicants alleged that the dissolution of efah Partisi (The Welfare Party), and the temporary prohibition barring its leaders from holding similar office in any other political party, had infringed their right to freedom of association, guaranteed by Article of the Convention, the relevant parts of which provide: . Everyone has the right to freedom of peaceful assembly and to freedom of association . . . . No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the pre46
Refah Case, ibid para .
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vention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others . . .
There was no question but that efah’s dissolution and the measures which accompanied it amounted to an interference with the applicants’ exercise of their right to freedom of association. The key question was whether the interference was justified. .. Democracy, eligion and the European Convention on Human ights The Grand Chamber held that the interferences were justified. On the question of the relationship between democracy and the Convention, the Court recalled its judgment in United Communist Party of Turkey and Others v Turkey as follows: Democracy is without doubt a fundamental feature of the ‘European public order’ . . . That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights . . . The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention . . .; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society . . . In addition, Articles , , and of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘necessary in a democratic society’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘democratic society’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.47
The Court also referred to its case-law concerning the place of religion in a democratic society and a democratic state: 47
§ .
Judgment of January , eports of Judgments and Decisions –I, pp –,
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Moreover, in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis v. Greece . . . § ). The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs (see, mutatis mutandis, Cha’are Shalom Ve Tsedek v. France [GC], no. /, § , ECH –VII) and that it requires the State to ensure mutual tolerance between opposing groups (see, mutatis mutandis, Metropolitan Church of Bessarabia and Others v Moldova, no. /, § , ECH –XII).48
.. A Plurality of Legal Systems On the merits, the Court saw no reason to depart from the Chamber’s conclusion that a plurality of legal systems, as proposed by efah, could not be considered to be compatible with the Convention system. In its judgment, the Chamber gave the following reasoning: [T]he Court considers that efah’s proposal that there should be a plurality of legal systems would introduce into all legal relationships a distinction between individuals grounded on religion, would categorise everyone according to his religious beliefs and would allow him rights and freedoms not as an individual but according to his allegiance to a religious movement. The Court takes the view that such a societal model cannot be considered compatible with the Convention system, for two reasons. Firstly, it would do away with the State’s role as the guarantor of individual rights and freedoms and the impartial organiser of the practice of the various beliefs and religions in a democratic society, since it would oblige individuals to obey, not rules laid down by the State in the exercise of its above-mentioned functions, but static rules of law imposed by the religion concerned. But the State has a positive obligation to ensure that everyone within its jurisdiction enjoys in full, and without being able to waive them, the rights and freedoms 48
efah, para .
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guaranteed by the Convention (see, mutatis mutandis, the Airey v. Ireland judgment of October , Series A no. , p. , § ). Secondly, such a system would undeniably infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy. A difference in treatment between individuals in all fields of public and private law according to their religion or beliefs manifestly cannot be justified under the Convention, and more particularly Article thereof, which prohibits discrimination. Such a difference in treatment cannot maintain a fair balance between, on the one hand, the claims of certain religious groups who wish to be governed by their own rules and on the other the interest of society as a whole, which must be based on peace and on tolerance between the various religions and beliefs (see, mutatis mutandis, the judgment of July in the ‘Belgian linguistic’ case, Series A no. , pp. –, §§ and , and the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment, Series A no. , pp. –, § ).49
.. The Sharia and Democracy The Court similarly concurred in the Chamber’s view that sharia was incompatible with the fundamental principles of democracy, as set forth in the Convention: Like the Constitutional Court, the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. The Court notes that, when read together, the offending statements, which contain explicit references to the introduction of sharia, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts. . . . In the Court’s view, a political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention.50 49 50
Ibid para . Ibid para .
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.. eligious States and Secular States The decision in efah is a challenging piece of jurisprudence. Turkey is relatively unusual in adopting the model of a secular state. As we have noted, many Muslims can successfully and freely practise their faith in democratic states. However, for the European Court of Human ights, the adoption of a wholly Islamic state system is incompatible with European democracy. Will the new Iraq follow the Turkish model? .
One of the most unexpected outcomes of the War on Terrorism and the War on Iraq has been the focus on the relative political and social development of the Middle East. Arguably the concentration on the Israeli–Palestinian situation has obscured the importance of such a focus. In the Arab world there are million people in states but no democracies.51 The UN Development Programme’s Arab Human Development eport () highlighted the restrictions on freedom of expression, the limited access to knowledge and the lack of empowerment of women.52 Before ‘-’, many Arab states had no anti-terrorism strategies at all.53 Some analysts have sought to put the general situation of Islam and the Middle East in particular in broader historical perspective. Geoffrey Wheatcroft has argued that: Islamic terrorism is not a function of success but of failure. As a culture and society, Islam enjoyed a glorious golden age between the th and th centuries, but it has been in decline for many centuries past, some would say since the first fall of Baghdad.54
Bernard Lewis concluded a historical analysis of the Western impact on the Middle East with these words: Comments of James Woolsey, former CIA Director (September ) Prospect Magazine. 52 . 53 See the Security Council’s Counter-Terrorism Committee’s website has nothing on regional action for the Arab region, see ; see the Arab Convention for the Suppression of Terrorism (), English translation at . 54 G Wheatcroft, ‘Two Years of Gibberish’ (September ) Prospect Magazine. 51
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If the peoples of the Middle East continue on their present path, the suicide bomber may well become a metaphor for the whole region, and there will be no escape from the downward path of hate and spite, rage and self-pity, poverty and oppression, culminating sooner or later in yet another alien domination; perhaps from a new Europe reverting to old ways, perhaps from a resurgent ussia, perhaps from some new, expanding superpower in the East. It they abandon grievance and victimhood, settle their differences, and join their talents, energies, and resources in a common creative endeavor, they can once again make the Middle East, in modern times as it was in antiquity and in the Middle Ages, a major center of civilisation. For the time being, the choice is their own.55
This passage was written before ‘-’. With the War on Iraq, it is tempting to wonder whether the time for choice in the Middle East has now passed? . ,
In his State of the Union address in , President Bush identified Iran, Iraq and North Korea as an ‘axis of evil arming to threaten the peace of the world’.56 We have considered Iraq in chapters and above. As noted in chapter , North Korea was concerned that any action against Iraq would be followed by action against it because of its nuclear weapons programme.57 North Korea was seeking a bilateral non-aggression treaty with the US. However, the US would only take part in multilateral negotiations. Moreover, it would only contemplate what they described as an agreement with a small ‘a’, in which a coalition of neighbouring powers and the US would give assurances to North Korea.58 North Korea’s policies were subject to frequent change and diplomatic mind games. The third state in the alleged ‘Axis of Evil’—Iran—was subjected to intense diplomatic pressure in relation to its nuclear development programme, particularly under the European Union’s policy of constructive engagement. It claimed that this was purely for civilian use but was unwilling to accept an enhanced IAEA inspections regime to B Lewis, n above, –. GW Bush, ‘State of the Union Address’, January , . 57 See ch . above. 58 See O August, ‘Bush Yields a little over North Korea’ The Times ( October ). 55 56
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monitor this. In early October , an IAEA resolution imposing a deadline for cooperation was rejected by Iran. Failure to comply with the deadline would have raised the spectre of the SC imposing sanctions on Iran. However, on October , Iran agreed to accept IAEA inspections, to suspend all uranium enrichment and processing, and to sign an Additional Protocol to the Nuclear Non-Proliferation Treaty allowing inspectors to visit suspected sites without permission.59 The agreements were evidence of the severe political and diplomatic pressure on Iran. The EU was offering the prospect of a valuable trade agreement. It also seems clear that Iran did not want to be perceived to be in the category of pariah states. . -‘-’
Charles Glass has suggested that the real objective in the War on Iraq was to contain Syria.60 As we noted in chapter , an alleged terrorist training ground in Syria was bombed by Israel in October .61 Israel alleged that Syria was affording terrorist organisations safe harbour and training facilities, was directing acts of terrorism and providing financial support for terrorists. The US representative described Syria as being on ‘the wrong side’ of terrorism.62 It had been warned by the US to stop harbouring and supporting terrorist groups. In addition, there are strong internal pressures on Syria to democratise. These will be exacerbated if and when a democratic Iraq develops next door. In December , the US President signed into law the ‘Syria Accountability and Lebanese Sovereignty Act of ’. Section of the Act purports to impose upon the President requirements to take certain actions against Syria unless the President either determines and certifies to the Congress that the government of Syria has taken specific actions, or determines that it is in the national security interest of the United States to waive such requirements and reports the reasons for that determination to the Congress. Section of the Act requires an officer in the executive branch to furnish 59 ‘Iran Steps Back in Nuclear Stand-Off with the West’ The Times ( October ). In November , the Director of the IAEA warned the UN General Assembly that the nuclear non-proliferation regime was increasingly under stress as states had not carried out their legal obligations to bring safeguard agreements into force, UN Doc A//, discussed in A//PV.. 60 C Glass, ‘Is Syria Next?’ () () London eview of Books ( July). 61 See ch . above. 62 See UN Doc S/PV/ ( October ).
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information to the Congress on various subjects involving Syria and terrorism. The EU is using negotiations on an Association Agreement with Syria to pressure it to accept controls on its development of WMD.63 An early sign of the effects of pressure on Syria is Charles Glass’s suggestion that Syria will now acquiesce in any arrangements made by the Palestinians reached with the Israelis.64 While a non-permanent member of the SC, Syria also did not vote against the key resolutions on Iraq—, and . In December , Syria announced that it had seized $. million apparently intended for Al Qaeda. The situation in Saudi Arabia also looks fragile.65 Fifteen of the nineteen hijackers on September came from Saudi Arabia, as did Osama bin Laden himself. Although those terrorists opposed the ruling regime, Saudi Arabia has faced severe criticism for its support, toleration and financing of terrorist groups. In an official US report on the attacks on ‘-’, a -page section on Saudi Arabia was kept confidential.66 Saudi Arabia thus faces strong pressure to reform. An early sign was that elections for regional authorities were announced in agreed in October . John Bradley has suggested that: [N]o other country is going to change more dramatically, and with greater consequences for the world community, than Saudi Arabia.67
There are other snippets of evidence on changes in the Middle East that contradicts those who predicted that the Iraq War would greatly destabilise the Middle East: A year ago many diplomats and strategic analysts gave noisy warnings that a military attack on Iraq would provoke anti-Western riots across the Muslim world, destabilise moderate Arab rulers and be the starting-point of a cataclysm. A year later, the Middle East has changed in a way utterly unexpected by the pessimists. Those countries most viscerally hostile to the West, Iran and Libya, have just signed long-term agreements to open up their nuclear programmes to international inspection and, in Libya’s case, to dismantle 63 See I Black, ‘UK Plans to Pressure Syria on Weapons’ The Guardian ( December ). Syria is not a party to the Chemical Weapons Convention (). 64 Glass, n above. 65 See MS Doran, ‘The Saudi Paradox’ () () Foreign Affairs . 66 See G Leupp, ‘On Terrorism, Methodism, Saudi “Wahhabism” and the Censored - eport’ Counterpunch ( August ); S ampton and JC Stauber, Weapons of Mass Deception: The Uses of Propaganda in Bush’s War on Iraq (London, Constable and obinson, ) –. 67 J Bradley, ‘Are the Saudis Sunk?’ (September ) Prospect Magazine.
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all weapons of mass destruction. In Sudan, a -year civil war that has killed two million people and made four million homeless is close to final resolution, with the unprecedented signing of an oil-sharing agreement between the Muslim North and the Christian South. Democracy movements are asserting themselves from Morocco to the Gulf. And even Syria, whose blinkered intransigence has set it firmly apart from the new mood in the Middle East, has belatedly realised the need to soften its tough posture: the Syrians arrested and returned to Turkey the suspects in the Istanbul bombings, President Assad has just made the first state visit to Turkey since Syria became independent in , and Damascus has offered to restart peace talks with Israel.68
There is some evidence that the imposition of sanctions for over a decade and occasional bombings by the US and the UK appear to have changed Libya’s support for international terrorism. In , Libya accepted ‘general responsibility’ for terrorist bombings over Lockerbie and agreed compensation with the UK (and in January with France for the terrorist bombing of a French aircraft). The SC responded by lifting sanctions against it.69 In December , there was an astonishing series of announcement from Libya. After nine months of secret international diplomacy it announced that it was going to scrap its WMD programmes under the supervision of the International Atomic Energy Authority (IAEA).70 It would also adopt the UN Chemical Weapons Convention and respect the Missile Technology Control egime, which limits states to missiles that can carry a warhead of kg over a range of miles.71 Libya’s actions were significant for a number of reasons. First, it showed that diplomacy, largely conducted by the UK in this instance, could be successful.72 Secondly, Libya has clearly sought to move from pariah state status to being a responsible member of the international community again. The response of the US and the UK was that this kind
68 Editorial, ‘After Saddam: The Middle East has Changed for the Better’ The Times ( January ). 69 See UNSC es (). There is a longer diplomatic story including the conviction of a Libyan official before a special international court created in The Hague. Sanctions against Libya had been increasingly breached before they were lifted. 70 ‘Libya to Scrap Nuclear and Chemical Arms’ The Times ( December ). 71 Beeston, ‘UN Nuclear Teams will be Sent to Libya within Days’ The Times ( December ). 72 See A Whittam-Smith, ‘Why Carrots for Libya, but only Sticks for Iraq’ The Independent ( December ).
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of move was possible for a state.73 Thirdly, some would draw the conclusion that the military action in Iraq had had a salutary and beneficial effect on Libya and on other states in the Middle East. Libya was putting itself on the right side of the post-‘-’ world.74 For the critics of the Iraq war, the different treatment of Libya simply highlighted the weakness and hypocrisy of the coalition’s arguments.75 There were a series of other positive developments in the Middle Eastern states and in the surrounding states. Hamas and Islamic Jihad groups announced a temporary ceasefire against Israel in .76 That at least pointed to the possibility of a political settlement of the Israeli–Palestinian situation. Of course, to all of these there are always alternative interpretations of the same events along with counterbalancing trends and actions: [T]his argument, that the war [on Iraq] has had an overall beneficial geostrategic and security effect, remains fundamentally flawed nevertheless. The reasons may be found in Iraq itself. By invading Iraq, which had no WMD, the US and its allies, bogged down there indefinitely, have been rendered less able to respond to a real ‘rogue’ state WMD crisis. By invading Iraq, Mr Bush appears, predictably, to have exacerbated the terrorist threat—the second of the two ‘great objectives’ of his axis of evil speech. In truth, al-Qaida’s creeping menace is more pervasive than ever. By invading Iraq, Mr Bush has not advanced peace or democracy in the Middle East. The reverse may be more nearly true, given the political unrest in Iran, unresolved tensions between Israel, the Palestinians and Syria, violence in Saudi Arabia, Iraq’s ongoing, potentially splintering instability and the deeply paradoxical US refusal to agree to the Iraqi Shia majority’s demand for free elections. In point of fact, the Libyan shift was in train well before Mr Bush went after Saddam; North Korea would likely have started talking sooner, but for bellicose US posturing. By its heavy-handed pursuit of evil, the US has undermined the western alliance, the UN, international law and civil rights—what might be called the ‘axis of good’. While there has been some 73 T Allen-Mills and D Cracknell, ‘Focus: From Tyrant to Statesman’ Sunday Times ( December ); Editorial, ‘A Gift from Gadaffi’ Sunday Times ( December ). 74 A Gumbel, ‘Neo-Conservatives Jubilant Over WMD Agreement’ The Independent, December . 75 See Whittam-Smith, n above. 76 To understand the scale of operation it is interesting to note that the Lebanese Hezbollah group is estimated to have an annual budget of $ million, Berman, n above, .
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progress, Mr Bush’s reliance on force has made it even harder overall to realise the aims he set out in .77
Nonetheless, the overall trend of political developments in the Middle East was arguably positive.78 There were not been too many times in the twentieth century when such a statement could have been made. Resolution of the Israeli-Palestinian conflict remains of central importance to the Middle East. .
At the beginning of the twenty-first century, there were around democracies in the world. In the last quarter of the twentieth century the number and proportion of them increased rapidly.79 However, in the global spread of democratisation, the Middle East has proved to be something of a black-hole. President Bush has described the invasion of Iraq as the start of a ‘global democratic revolution’ in which dictatorships in the Middle East and elsewhere will crumble: Time after time, observers have questioned whether this country, or that people, or this group, are ‘ready’ for democracy—as if freedom were a prize you win for meeting our own Western standards of progress. In fact, the daily work of democracy itself is the path of progress. It teaches cooperation, the free exchange of ideas, and the peaceful resolution of differences. As men and women are showing, from Bangladesh to Botswana, to Mongolia, it is the practice of democracy that makes a nation ready for democracy, and every nation can start on this path. It should be clear to all that Islam—the faith of one-fifth of humanity is consistent with democratic rule. Democratic progress is found in many predominantly Muslim countries in Turkey and Indonesia, and Senegal and Albania, Niger and Sierra Leone. Muslim men and women are good citizens of India and South Africa, of the nations of Western Europe, and of the United States of America. More than half of all the Muslims in the world live in freedom under democratically constituted governments. They succeed in Editorial, ‘The Axis in Practice’ The Guardian ( January ). See Beeston, ‘How Tyrant’s Fall is Giving a Little Chance in the Middle East’ The Times ( January ) reporting on post-Saddam political steps by Israel, Turkey, Tunisia, Libya, Iraq, Iran, Sudan, Egypt, Syria and Saudi Arabia. 79 See the ‘The Warsaw Declaration: Toward a Community of Democracies’, adopted at the First Ministerial Conference of The Community of Democracies, on June , and the ‘Seoul Plan of Action-Democracy: Investing for Peace and Prosperity’, adopted at the Second Ministerial Conference of The Community of Democracies, on November . 77 78
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democratic societies, not in spite of their faith, but because of it. A religion that demands individual moral accountability, and encourages the encounter of the individual with God, is fully compatible with the rights and responsibilities of self-government.80
The essential US idea is that, ‘Everywhere that freedom takes hold, terror will retreat’.81 In an address in London in November , President Bush stated that: The United States and Great Britain share a mission in the world beyond the balance of power or the simple pursuit of interest. We seek the advance of freedom and the peace that freedom brings.82
A new Iraq, as a first Arab democracy, could have seismic geopolitical effects on the region.83 The idea of building a liberal society in Iraq is ‘an extremely radical idea’.84 More generally, it is would be part of a process aimed at reversing the excesses of Islamic fundamentalism. Launching some sort of liberal revolution in the Middle East has been described by Paul Berman as a, ‘chance to undo the whole of Muslim totalitarianism’.85 Although there are pressures on Arab states to democratise some observers will inevitably be sceptical. For example, Charles Glass has suggested that: Syrian democrats are not waiting for democracy as a care package from the American Armed Forces so much as wanting to seize it themselves as a weapon with which to confront the American Empire.86
He also asks some difficult questions: Does the United States really want democracy for Syria and the rest of the Arab world? Should it? Since , when the CIA staged the first of the Arab world’s many military coups in Syria, America has helped to repress democratic movements throughout the Middle East. 80 ‘emarks by the President at the th Anniversary of the National Endowment for Democracy’, Washington D.C., November . . See also ‘Bush’s address at the Banqueting Hall’, Whitehall, UK on November , The Times ( November ) (‘Lasting peace is gained as justice and democracy advance’), reproduced in Appendix XI below. 81 GW Bush, ‘Presidential Address’, September , ; ‘[We] will raise up an ideal of democracy’, ‘President Bush’s Address at the Banqueting Hall’, Whitehall, UK on November , The Times ( November ). 82 ‘Bush Address at the Banqueting Hall’, ibid. 83 Iraq is bordered by six states—Kuwait, Saudi Arabia, Jordan, Syria, Turkey and Iran. In February the surrounding states declared their support for Iraq’s territorial integrity. 84 Berman, n above, . 85 Ibid . 86 Glass, n above.
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. . . will American rule in the Middle East founder on the contradiction of a ‘democratisation’ that ignores the people?87
Similarly, Anatol Lieven has argued that: Belief in the spread of democracy through American power isn’t usually consciously insincere. On the contrary, it is inseparable from American national messianism and the wider ‘American creed’. However, this same messianism has also proved immensely useful in destroying or crippling rivals of the United States, the Soviet Union being the outstanding example.88
Some would argue for democracy simply on its own merits as a political system or on human rights grounds. Others would suggest that a democratic system has more likelihood of responding to claims for justice, equality human rights, and economic development. The argument is that if Arab states do not address these claims, and are not given international support in doing so, then those states may continue to be the breeding grounds for future terrorists. John Norton Moore has stressed the importance of democracy for Iraq in terms of the ‘democratic peace’ argument.89 He submits that the broader paradigm of democratic peace—liberal democracy, the rule of law, and human freedom—should be long-term objectives. .
The War on Terrorism has attracted broad international support.90 The support has been secured by some idea of common interests and by the use of strong diplomatic, political and economic pressures. It has also been maintained by the continuance of international terrorism in many parts of the world. Since September , there have been some eighteen serious terrorist attacks including ones in Tunisia, Pakistan, Spain, Kenya, Yemen, Colombia, Saudi Arabia, 87 Glass, n above. On US interventions around the world see C Prestowitz, ogue Nation: American Unilateralism and the Failure of Good Intentions (New York, Basic Books, ). 88 A Lieven, n above. 89 See JN Moore, ‘Solving the War Puzzle’ () AJIL . He also argues that ‘This Gulf War II is clearly a product of a post / broader war against terrorism and it is likely that it would not have occurred but for the / attacks against the US’, ibid , n . The democratic peace argument remains a controversial one. 90 See chs – above.
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the Philippines, India, Israel, Indonesia, Turkey (on synagogues, the UK’s General Consulate and the HSBC Bank), Russia and Pakistan (an attempted assassination of the President).91 There have been regular terrorist attacks in Iraq. The was an estimated resistance network of between , and , 92 with some limited degree of involvement from volunteers from other countries—Saudi Arabia, Sudan, Syria and Yemen.93 Some of the volunteers had links with Al Qaeda.94 Has the War on Iraq has increased the US’s or world’s security? William Pfaff has argued that it did not: The intensification of violence in Iraq is the logical outcome of the Bush administration’s choice in to treat terrorism as a military problem with a military solution—a catastrophic oversimplification. Choosing to invade two Islamic states, Afghanistan and Iraq, neither of which was responsible for the attacks of Sept. , , inflated the crisis, in the eyes of millions of Muslims, into a clash between the United States and Islamic society. The two wars did not destroy Al Qaeda. They won it new supporters. The United States is no more secure than it was before.95
It was clearly a diplomatic failure for the US and the UK that so many states and international organisations were opposed to the War on Iraq,96 although the same was true for Kosovo.97 However, that is the price of real multilateral diplomacy. It is a question of convincing others on evidence or on political judgment: In essence, the Iraqi crisis was not primarily about what to do but, rather, who decides . . . the invasion of Iraq is more accurately sees as a repudiation of the central decision-making premise of the Charter system than as a genuine opening to reform, unless by reform is meant See on ‘The isk of Terrorism when Traveling Abroad’. See P Beaumont, ‘Chaos eigns as Saddam’s Plan Unfolds’ The Observer ( August ). 93 See M Howard, ‘Foreign Fighters Blamed for Day of Carnage’ The Guardian ( October ) (in minutes, a series of apparently choreographed attacks left Iraqi police officers and civilians dead, and at least injured). 94 See T al-Issawi, ‘At Least Arrested in Deadly Iraq Blast’ Associated Press ( August ). 95 W Pfaff, ‘The Philosophers of Chaos eap a Whirlwind’ International Herald Tribune ( August ). See also J Stern, ‘How America Created a Terrorist Haven’ New York Times ( August ). 96 See chs – above; JP ubin, ‘Stumbling Into War’ () () Foreign Affairs . 97 See D Leurdijk and D Zandee, Kosovo: From Crisis to Crisis (Aldershot, Ashgate, ). 91 92
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the reconstitution of the international system along the lines of an American global protectorate.98
Franck continues by submitting that the US is out to disable the UN.99 It will only have recourse to it when convenient and in its interests, ‘This is not system transformation but system abrogation’.100 One interesting phenomenon evidenced again in the Iraq War is that states can be against a conflict before it happens, but are willing to be more supportive of it once it has begun. When a resolution was put to the SC condemning the action taken in Kosovo in , it was defeated by twelve votes to three. This was an almost exact reversal of what would have been expected given the stated opposition to the use of force by NATO states. With respect to the Iraq War, the US has claimed that over forty states were supportive of the use of military force against Iraq.101 It is interesting then to speculate how many members of the SC would actually have voted for a resolution condemning the War on Iraq. The probability is that only a small minority would have done so despite their real unhappiness. .
The significance of the Iraq crisis for larger questions of international legal order was appreciated by states on both sides of the debate. The representative of Malaysia, speaking on behalf of the non-aligned movement stated that: The decision that the Security Council is about to take will undoubtedly transcend the immediate issue of Iraq. It appears to us that we are no longer debating the situation in Iraq and that country’s full compliance with resolution (), but that we are currently defining a new international order that will determine how the international community addresses conflict situations in the future. This is an extremely serious issue
98
.
T Franck, ‘What Happens Now? The United Nations after Iraq’ () AJIL ,
Ibid –. Ibid . 101 See claiming a -member coalition. Cf ‘Critics Deride US Claim of a Broad Coalition’ The Times ( March ). 99
100
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that needs careful consideration and that will have far-reaching implications as we progress into a new millennium.102
The representative of the Arab League stated that: We are at a historic juncture that will determine the destiny of succeeding generations and the future of international legitimacy for a long time to come. The war that is being planned against Iraq will be a prelude to other wars. Humanity will revert to the pre- period: principles and values will collapse, the strong will dominate the weak and chaos will reign supreme.103
For Lebanon, the unilateral launching of a war against Iraq would represent a departure from United Nations resolutions, a contravention of international legality and an end to existing world order, which had guaranteed international peace and security since the Second World War.104 For Yemen: Military invasion, . . . would lead to a further destabilisation of the region. That would constitute a threat to peace and security throughout the world. It would also take international relations back to the policy of force and the logic of military blocs and military solutions. That would be inconsistent with the spirit and the letter of the United Nations Charter.105
The states that took part in the War on Iraq were equally conscious of the legal order issues. At a pre-war US, UK and Spain Summit in the Azores, President Bush stated that: It’s important for the UN to be able to function well if we are going to keep the peace. And I will work hard to see to it that at least from our perspective, that the UN is able to be—able to be a responsible body, and when it says something, it means it, for the sake of peace and the sake of security, for the capacity to win the first war of the st century, which is the war against terrorism and weapons of mass destruction in the hands of dictators.106
The UK Foreign Secretary, Jack Straw stated that it was: [A] moment of choice for this institution, the United Nations. The pre-war predecessor of the United Nations—the League of Nations— 102 103
ance). 104 105 106
S/PV/ p ( March ) (emphasis added). Id p . See also Australia (p —architecture of peace and security hangs in the balUN Doc S/PV/ (esumption I) p . UN Doc S/PV/, p . .
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had the same fine ideals as the United Nations. But the League failed because it could not create actions from its words. It could not back diplomacy with a credible threat and, where necessary, the use of force . . .107
It was partly this appreciation of the world order issues, and the need to demonstrate an evenhandedness in dealing with the Middle East, that explains why the US and the UK, even at the time of the War on Iraq, made diplomatic efforts to restart the Israeli–Palestinian negotiations. Many states in the SC had pointed to the hypocrisy in enforcing SC resolutions against Iraq, but not against Israel.108 The Azores Summit endorsed the publication of a ‘oadmap’ on resolving the conflict that had been endorsed by the quartet of the US, EU, ussia and the UN.109 However, terrorist activities by rejectionist groups throughout and Israel’s activities, such as assassinations, continued settlements in occupied territories and the building of a ‘security fence/ wall’ on the West Bank,110 made progress impossible. In February the legality of the wall was challenged before the Israeli Supreme Court and the ICJ. Most states are convinced that roots of much international terrorism lie in Israel’s occupation of Palestine and thus the root problem must be dealt with.111 .
What future is there for the UN? 112 Mary obinson, the former UN High Commissioner for Human ights, put the issues in this way: Will the normative system that restored peace and security after the Second World War be seen by future generations as an idealistic dream that was unable to respond to the realities of a changing 107 UN Doc S/PV/ ( February ). See also C Krauthammer, ‘Let the UN Go the Way of the League of Nations’ The Miami Herald ( March ). 108 See eg, UN Doc S/PV/ (esumption I) p (representative of Lebanon); UN Doc S/PV/, p, (Libya), p (Egypt). 109 For the oadmap see , endorsed by the SC in UNSC es (). A non-governmental peace plan, the ‘Geneva Accord’ was also published in Geneva in November . 110 See A Berg, ‘A Failed Israeli Society Collapses while its Leaders emain Silent’ Forward ( August ). 111 For recent assessments see B Wasserstein, Israel and Palestine: Why They Fight and Why They Can’t Stop (Profile, London, ); Berman, n above, – (which also deals with the relationship between terrorism and the popularity of political causes). 112 See TJ Farer, ‘The Prospect for International Law and Order in the Wake of Iraq’ () AJIL .
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international landscape? Or will it instead be viewed as the essential foundation of a more just and secure world based on respect for the international rule of law? The answer, of course, depends on the choices we make, the priorities we set and the values we seek to uphold . . . In the end we face a fundamental choice. We can choose to rescue, rebuild and reform the international system that has been built up over the past half century and place more emphasis on the values, expressed through international law, which should underpin it. Or instead, we can choose to fall in on a conception of national security and national interest that sees the world as a place requiring more wall of separation between nations and peoples rather than more bridges of trust and shared responsibilities.113
The UN’s work and values go beyond peace and security issues. For example, in , the UN’s World Food Programme fed million people in countries including most of the world’s refugees and internally displaced peoples.114 Nonetheless, maintaining international peace and security is the fundamental basis on which the UN was founded and on which the vast range of its work rests.115 So the question remains: will the War in Iraq be a ‘turning point’116 that destroys the credibility of the UN in general and the SC in particular? In answering this question, much depends on how ‘unique’ the Iraq case was in its combination of facts, law, personalities and SC resolutions.117 There are various ways in which Iraq can be distinguished from other rogue states, even those in the ‘Axis of Evil’. There is also the point that militarily Iraq was ‘do-able’ in a way that, for example, Iran or Syria would not be.118 Iraq had virtually no air force, extensive but inferior military equipment, and had powerful internal political and religious divisions. Though Saddam had some popularity for being the only Arab leader to stand 113 M obinson, ‘Shaping Globalization: The ole of the ule of Law’ th Grotius Annual Lecture, () Proceedings of the th Meeting of the American Society of International Law , . 114 See . 115 D Sarooshi, The United Nations and the Development of Collective Security (Oxford, OUP, ). 116 ‘We are at a turning point’, GW Bush, ‘Television address from the Whitehouse’, March , in Iraq War eader, n above, –. In the SC, the representative of Sudan referred to the ‘crisis in international relations at this turning point’, UN Doc S/PV/, p (emphasis added). On ‘turning points’ or ‘tipping points’ see ch . and . above. 117 See Farer n above, comparing the Iraq precedent with that of Kosovo in . See also TD Grant, ‘The Security Council and Iraq: An Incremental Practice’ () American Journal of International Law . 118 See J Simpson, The Wars against Saddam: Taking the Hard oad to Baghdad (London, Macmillan, ) –.
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up to the Americans,119 Iraq was, in some ways, a political embarrassment to its Arab neighbours. Was the Iraq crisis such a catastrophe for the United Nations system that it will generate change?120 Can the UN Charter’s system of war prevention survive?121 The answer to these questions will depend, in part, on what balance the US strikes between acting unilaterally and acting multilaterally. This is never a black and white picture but is subject to constant evolution. The Bush Administration is not the simple unilateralist regime that some critics pretend.122 Formally at least, the US continues to profess its faith in multilateralism.123 But how much will the US even seek to work through the Charter system?124 Does the US have a strategy for peace?125 How much of the core of the UN Charter’s prohibition on the use of force remains?126 For those that saw the Iraq War as clearly illegal, it appears mere sophistry to argue that it may have a transformative effect on the law or the UN127 or to affect any idea of major states working ‘through’ the Charter system.128 The US, in particular, emphasised that it acted as it did precisely because of its view that the Charter system was not working as it saw fit. The opponents of the US and the UK largely based their opposition on their acting outside of the UN Charter framework and rules. In their view, the SC did not fail. It operated exactly as was intended to do.129 However, even as the War in Iraq had begun, many states in the SC stressed that the SC remained relevant. It had a continuing responsibility to restore international peace and security and to deal with the humanitarian crisis.130 In its post-war resolutions on Iraq, See Huntingdon, n above, –. ‘The tried generator of historical change has been catastrophe’, Butler, ‘Catastrophe as the Generator of Historical Change’ in Iraq War eader, n above, . 121 See Falk, ‘What Future For The UN Charter System of War Prevention?’ () AJIL on possible outcomes. 122 M Portillo, ‘Bush Has a Brave Vision and it is Working Just Fine’ Sunday Times ( December ); Byers and Nolte, ch n above. 123 See C Powell, ‘Why America Takes the Path of Enlightened Self-Interest’ The Times ( January ); C Powell, ‘A Strategy of Partnerships’ () () Foreign Affairs . 124 See S Tharoor, ‘Why America Still Needs The United Nations’ () () Foreign Affairs . 125 See TC Sorenson, ‘What Bush Could Have Learned from JFK’ (November ) The American Prospect. 126 See J Stromseth, ‘Law and Force after Iraq: A Transitional Moment’ () AJIL ; MJ Glennon, ‘Why the SC Failed’ () () Foreign Affairs ; Murphy, ch n above. 127 See AM Slaughter, ‘Chance to eshape the UN’ Washington Post ( April ). 128 See Franck, n above, . 129 See Coulon, n above. 130 UN Doc S/PV/ ( March ) (representative of Pakistan). 119 120
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the SC asserted a growing degree of responsibility for the future of Iraq and largely did so by consensus.131 Publicly, the UK remains committed to the UN. However, it accepts the: need to be realistic about the limitations of the UN and the difficulties of translating broad consensus on goals into specific actions, particularly where proactive military intervention is concerned.132
Is a Security Council structure created in relevant and appropriate in the face of the challenges of the twenty-first century?133 As a starter here, it might be legitimately asked how much credibility did the SC and the UN really have anyway. The SC had not operated effectively during the Cold War and was largely irrelevant to major international disputes during that time. Even in the s it had faced severe criticism for not acting, or not acting early enough, in the Former Yugoslavia, in wanda, and Kosovo. Even when the UN did act its record was mixed and the UN was not always perceived as impartial, particularly if UN sanctions had been imposed on a state or region.134 Does the Iraq crisis perhaps show that it was Kosovo that was the ‘turning point’ rather than ‘-’?135 Iraq had been failing to fully cooperate for over a decade. The UK representative on the SC described the years since resolution as ‘a period of humiliation for the SC’.136 There was a general consensus that it was only the military pressure of a quarter of a million troops surrounding it, and the diplomatic pressure from the SC, that made Iraq increase its cooperation with the international inspectors. As is so often the case, states inside and outside of the SC were happier with the threat of force rather than the use of force. The UN as an organisation is dedicated towards peace. Not unnaturally, it finds it difficult to embrace conflict as necessary. Vaughan Lowe, after expressing the view that the use of force against Iraq was unlawful, accepted that:
See ch above, especially ..–... Delivering Security, n above, . See also the supporting essay on ‘International Organisations’ in Vol II. 133 See MJ Glennon, ‘Why the Security Council Failed’ () () Foreign Affairs (arguing that the Charter system is unrealistic); AM Slaughter, ‘Good easons for Going Around the UN’ New York Times ( March ). 134 See L Polman, We Did Nothing: Why the Truth Doesn’t Always Come Out When the UN Goes In (London, Penguin, ). 135 See ch . at (iii). 136 UN Doc S/PV/, p (representative of UK). 131 132
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[T]he episode reveals deep flaws in the workings of the UN. A major problem if the handling of the Iraq crisis was the failure of those States Member of the Council who opposed, and those who were unwilling to support, the USA and the UK to advance any other course of action.137
The Archbishop of Canterbury also accepted that the present Security Council framework was inadequate. He called for a standing commission on security within the UN that could advise and recommend UN intervention where necessary.138 In terms of the future possibilities for the UN, David eiff has argued that: There are three ways the UN can now go, excluding dissolution. The first is to continue as it is, with all the obvious risks of a slide into irrelevancy; the second is to become the de facto servant of US foreign policy; and the third is to undertake realistic reform.139
However, he acknowledged that: It is not clear how to rebuild an international system that is faced simultaneously by the unheard-of challenges of a unipolar world in terms of state power, but also a world in which even the most powerful state is vulnerable to attack by small groups armed with weapons that alter strategic reality. The UN was established in . There is nothing in its founding documents or institutional structures that are relevant to the current crisis.140
The UN Secretary-General, Kofi Annan, acknowledged that events had ‘shaken the international system’ and that ‘radical reform’ of the UN system might be needed if the UN was to regain its authority. Proposals to reform the SC have been under consideration at the UN for over a decade. Nothing has been agreed beyond procedural reforms and a greater degree of transparency. In November , the UN Secretary-General established a -member ‘High-Level Panel on Threats, Challenges and Change’.141 This was tasked with examining the: [M]ajor threats and challenges the world faces in the broad field of peace and security, including economic and social issues insofar as V Lowe, ‘The Iraq Crisis: What Next?’ () ICLQ at . Cited in Gledhill, ‘Attack on Iraq Cannot Be Defended as Just War’ The Times ( October ). 139 D eiff, ‘Hope Is Not Enough’ (October ) Prospect Magazine. 140 Ibid. 141 See UN Doc SG/A/, November . 137 138
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they relate to peace and security, and making recommendations for the elements of a collective response.
The Panel is specifically tasked to: ecommend the changes necessary to ensure effective collective action, including but not limited to a review of the principal organs of the United Nations’.
This will clearly cover the Security Council.142 Given the critical responses of many states to the US policies on Iraq, there has at least to be some irony that, in July of , many of the same states and the UN Secretary-General were calling on the US to deploy limited military forces in Liberia in support of ECOWAS (Economic Community of West African States). There was recognition that even limited US involvement was crucial in the face of a civil conflict within which indiscriminate attacks were causing a large number of civilian casualties. There was also a fear that instability would spread to neighbouring states whose stability already looked precarious.143 The appeals to the US were essentially based on the idea that it did have global responsibilities that other states did not have.144 .
Many states and commentators predicted that the War on Iraq would harm the War on Terrorism by causing deep divisions between states, undermining the authority of the SC and by providing a breeding ground for more terrorists.145 Although there were worldwide protests, widespread unrest on the ‘Arab Street’ did not materialise during the war. Jane Corbin, appearing before the Foreign Affairs Committee: [D]etected a real ambivalence in the Middle East on this whole question of Iraq, at street level people were angry at American 142 Huntingdon suggests that ‘each major civilization should have at least one permanent seat on the Security Council’, n above, . It is interesting to speculate as to how such a reformed SC would have dealt with the Iraq crisis. 143 See ‘eport of SC Mission to West Africa, June– July ’, ( July ) UN Doc SC//. 144 See ch . above. 145 See J Burke, ‘New Terror Army Fulfils Prophecy’ The Observer ( August ) (on theatres of jihad).
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intervention, angry that their rulers had not stood up against it. In the middle-classes, many of whom were business people who understood what the regime had done and knew about human rights abuses and had lost family members there was a feeling they wanted him out but they did not want to say so openly.146
Determining the view on the so-called ‘Arab Street’ is notoriously difficult but a common thematic Arab response to the US-led occupation was that of humiliation. There was general humiliation in an Arab and Muslim country being occupied by the coalition.147 For some it was seen as a: Second Palestine, not so much because it was a foreign conquest of another Arab country, but because, via the Bush administration’s neoconservative hawks, it was at least as much Israeli in inspiration and purpose as it was American.148
For the Iraqis there were also the daily personal humiliations of being under occupation restrictions and subject to house and personal searches.149 In April , the UK’s Foreign and Commonwealth Office considered that: In the longer term . . . al Qaeda’s stance on Iraq will be undermined by the benefits of disarming Iraq of weapons of mass destruction, the removal of the current Iraqi regime and evidence that the international community is making a renewed effort to advance the Middle East Peace process.150 ... Since the conclusion of the Iraq war, the Israeli–Palestinian situation has taken a number of positive steps, in spite of continuing violence. The appointment of a Palestinian Prime Minister, Mahmoud Abbas, and the subsequent publication of the Quartet oad Map, offer hope of progress towards a two-state solution to the crisis. Israeli Prime Minister Ariel Sharon met Mahmoud Abbas on June in Aqaba, Jordan, at a summit attended by US Secretary of State Colin Powell and National Security Adviser Condoleezza ice. Secretary Powell 146 Third eport of the Foreign Affairs Committee on Foreign Policy Aspects of the War against Terrorism, Tenth eport, Session, –, HC para ( July ). 147 See B Herbert, ‘A Price Too High’ New York Times ( August ). 148 D Hirst, ‘Bush Has Thrown Open Pandora’s Box in a Paradise for International Terrorists’ The Guardian ( December ). 149 See A Shadid, ‘A Villager Attacks U.S. Troops, But Why?’ Washington Post ( August ). 150 Third eport of the Foreign Affairs Committee on Foreign Policy Aspects of the War Against Terrorism, Tenth eport, Session, –, Hansard HC para ( July ).
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said after the meeting that ‘a degree of trust was built up’ between Prime Ministers Sharon and Abbas. Prime Ministers Abbas and Sharon met again on July, shortly after the conclusion of an agreement between the parties to the conflict, according to which the Palestinian Authority was to assume ‘security responsibility’ for the Gaza Strip, and after the declaration by Hamas and Islamic Jihad of ‘suspension of the military operations against the Zionist enemy for three months. Violence continues, but there are also signs of progress.151
In July , the UK’s Foreign Affairs Committee (FAC) concluded that ‘al Qaeda has dangerously large numbers of “foot soldiers”, and has demonstrated an alarming capacity to regenerate itself ’ and that it continued to pose a substantial threat to British citizens in the UK and abroad.152 The FAC asked the Foreign and Commonwealth Office (FCO) whether international co-operation against terrorism had been disrupted by the substantial international divisions over how to address the threat from Iraq. The FCO replied that: There is no evidence that international co-operation against terrorism has been disrupted by disagreement over Iraq. There is continuing widespread and close international co-operation on the security, intelligence, law enforcement, military, and diplomatic fronts which is severely disrupting terrorist operations and leading to further arrests. This includes continuing close and useful co-operation with countries that have been critical of Coalition action in Iraq. The effectiveness of counter-terrorism work in the UN and in other multilateral fora such as the EU and G has similarly been unaffected by disagreement over Iraq. We believe that the strength of the international community’s collective interest in defeating terrorism will ensure that such efforts are not derailed by short-term political differences. In the medium and longer term, disarming Iraq of weapons of mass destruction should help to reduce the threat from international terrorism.153
The FAC’s conclusions were that: The Government’s comments on non-proliferation reflect the complexity of security threats which face the United Kingdom, almost two years after the beginning of the ‘war against terrorism’. We cannot conclude that these threats have diminished significantly, in spite of ‘regime change’ in Iraq and progress in capturing some of the 151 152 153
Ibid para (notes omitted). Ibid paras , . Ibid para .
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leaders of al Qaeda. In the wake of the Iraq war, we recommend that the Government make it a priority to work towards restoring the cohesion of the United Kingdom’s international partnerships, better to face the daunting challenges of the continuing ‘war against terrorism’. 154
During the Hutton Inquiry155 it emerged that there had been intelligence assessments which said that the risk of terrorist attacks would go up if there were a war on Iraq.156 The UK Prime Minister’s response was that it was simply a matter of balancing the risks of acting and of not acting. The UK Foreign Secretary Jack Straw, stated before the Foreign Affairs Committee in December that: [W]hen I listen to such claims I sometimes think that in the mind of the person claiming it there is some subconscious view that September took place in not in , whereas if you go back before military action was embarked upon in Iraq there is five or six years at least of very serious al Qaeda activity, including the attacks on the US Embassies in Nairobi and Dar Es Salaam, culminating in September and then a series of further attacks. So my overall judgment is that the world is a safer place as a result of our military action in Iraq and it goes without saying, if you have one organisation as ruthless as Saddam’s at inflicting terror on the residents and population, there is unlikely to be space for two, and that was the situation up to the removal of Saddam. But I am also clear that almost certainly, and history will show this, there have been over time fewer people who have lost their lives subsequent to our main military action as would have been victims of Saddam in the previous period, and one only has to look at the level of just the numbers of people declared dead or missing to have some idea of that calculation.157
The Foreign Secretary also asserted that in the post-war terrorist attacks in Iraq the dominant role had been taken by groups that were part of the former Iraqi regime.158 The US has claimed that twothirds of Al-Qaeda’s senior operatives have been captured or Hansard HC para . See ch .. above. 156 ‘The Joint Intelligence Committee assessed that Al Qaeda and associated groups continued to represent by far the greatest threat to western interests and that threat would be heightened by military action in Iraq’, ISC’s eport, para , cited by Sir John Stanley in FAC, Foreign Policy Aspects of the War Against Terrorism, Minutes of Uncorrected Oral Evidence, December . 157 Ibid p ( December ) 158 Ibid p . 154 155
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killed.159 One consequence of this is that it has become even more decentralised.160 Not surprisingly, there has been a tendency to blame every subsequent act of terrorist violence in the world on AlQaeda.161 In December , the Security Council’s Monitoring Group on sanctions against Al-Qaeda, the Taliban and their associates and associated entities reported that: The al-Qaida ideology has continued to spread, raising the spectre of further terrorist attacks and further threats to international peace and security. . . . More and more of these attacks are being carried out by suicide bombers. No region has been spared from such terrorist activities. Iraq has become a fertile ground for al-Qaida. It is readily accessible to al-Qaida followers anxious to take up the battle against the coalition forces and other ‘Crusaders’ . . . Progress is being made, worldwide, by law enforcement agencies, and military and security forces, in dealing with al-Qaida and in hunting down and neutralising its operatives and supporters. The Group has reiterated in each of its reports the importance the United Nations Consolidated List plays in the implementation of the measures provided for in the resolutions. While this list has grown in numbers, it has not kept pace with the actions taken, or the increased intelligence and other information available, concerning al-Qaida, the Taliban and associated individuals and entities. The current list contains a total of names of individuals and entities. This represents only a small subset of individuals and entities associated with the alQaida network. It reflects a continuing reluctance on the part of many states to provide such names to the Al-Qaida and Taliban Sanctions Committee (Committee). In many cases States have preferred to share such information, only through bilateral channels. . . . Important progress has been made toward cutting off al-Qaida financing. A large part of their funds have been located and frozen, and many of their key financial managers have been incarcerated. The international financial community is devoting significantly increased resources to this effort. Yet, many of the al-Qaida sources of funding remain uncovered, and al-Qaida continues to receive funds it needs from charities, deep pocket donors, and business and criminal activities, including the drug trade. Extensive use is still being made of alternative remittance systems, and al-Qaida has shifted much of its financial activities to areas in Africa, the Middle East and Southeast 159 GW Bush, ‘Presidential Address’, September . 160 See J Stern ‘The Protean Enemy’ ( July/August ) Foreign Affairs . 161 See ‘Iraq Invasion Fuels Terrorism’ .
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Asia that lack the resources or the resolve to closely regulate such activity. The G- sponsored Counter-terrorism Action Group (CTAG) is beginning to address this issue. Controlling charities used, or abused, for purposes that support terrorism is proving extremely difficult. The close association of such charities to both religious and humanitarian relief purposes has made government regulation and oversight very sensitive. One important example of the use by al-Qaida of charities, and the difficult task in dealing therewith touches directly on the activities of one of the largest Islamic charities—The International Islamic elief Organization (IIO). Most IIO activities relate to religious, educational, social and humanitarian programs. But, the IIO, and some of its constituent organizations, have also been used to assist in al-Qaida financing. Concern has also surfaced regarding the activities of the Al Haramain Charitable Foundation. The Somalia and Bosnia branches of Al Haramain have already been designated for their al-Qaida funding activities. Questions have now also arisen concerning the activities of other Al Haramain branches. Even when charities have been designated, it has proven difficult to shut them down . . . The use of shell companies and offshore trusts to hide the identity of individuals or entities engaged in terrorism financing is also a difficult problem. They serve to mask potential terrorist financing activities, and make it difficult to locate and deal with terrorist relatedfinancial assets other than bank accounts. This issue is complicated further by a reluctance of States to freeze tangible assets such as business or property . . . The risk of al-Qaida acquiring and using weapons of mass destruction also continues to grow. They have already taken the decision to use chemical and bio-weapons in their forthcoming attacks. The only restraint they are facing is the technical complexity to operate them properly and effectively. Their possible use of a ‘dirty bomb’ is also of great concern. Following its intensive review of the implementation of the measures provided for in the resolutions, the Group has concluded that further steps are required to strengthen the measures and their application. Without a tougher and more comprehensive resolution—a resolution which obligates states to take the mandated measures—the role played by the United Nations in this important battle risks becoming marginalized.162 162 Second eport of the Monitoring Group, pursuant to resolution () and as extended by resolutions () and () on Sanctions against al-Qaida, the Taliban and their associates and associated entities, Executive Summary, .
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The War on Terrorism is enormously expensive.163 The shape of future defence spending by states may be determined more by fighting the war on terrorism rather than any idea of inter-state war such as that on Iraq.164 A premium will be placed on ‘the characteristics of speed, precision, agility, deployability, reach and sustainability’.165 These need to be allied to sophisticated intelligence and advanced technology. The UK’s White Paper on Delivering Security in a Changing World asserted that: Whereas in the past it was possible to regard military force as a separate element in crisis resolution, it is now evident that the successful management of international security problems will require ever more integrated planning of military, diplomatic and economic instruments at both national and international levels.166 . —
The UK has supported the US in both the War on Terrorism and the War on Iraq. During the Iraq War, the UK Prime Minister, Tony Blair, stated that history would be the judge of whether he made the right choice in relation to the Iraq War.167 If that is correct, then the developments in Iraq considered in chapter will provide a critical reflection back on the war. A new Iraq, which is strong, stable, successful, prosperous and democratic, will push the historical judgement towards the positive. This judgment will be enhanced if these positive attributes spread to other Arab states in the Middle East. By contrast, if an Iraq emerges which is weak, unstable, failing, poor and undemocratic, then that will push the historical judgement towards the negative. In the light of the failure to find WMD after the Iraq War a fundamental questions remains: Why didn’t Iraq hand over all the relevant information and proof to the international inspectors? We will never know. It could just have been his personal psychology. The Chairman of 163 As of December , the overall UK figure for the War on Iraq and the War on Terrorism was . billion pounds. In January , John Humphrys cited an estimate of $ billion for the War on Terrorism, ‘Get Used To a State of Siege: It Can Only Get Tighter Still’ The Times ( January ). 164 See Delivering Security, n above. 165 Ibid . 166 See n above. 167 ‘History Will Be My Judge’ The Guardian ( March ). See P Stothard, Days: A Month At The Heart of Blair’s War (London, Harper Collins, ) –. See also J Habermas, ‘Interpreting the Fall of a Monument’ () () German Law Journal.
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UNSCOM, Hans Blix, has suggested that Iraq never wanted the US to have the certainty that Iraq did not have WMD. Absent that certainty, the US would be deterred from attacking Iraq.168 If so, this was yet another of Saddam’s fatal miscalculations. .
What a new kind of legal order emerge in the twenty-first century? Will there be a New American Empire?169 Many commentators fear this. Anatol Lieven is among the critics of the US failure to use of its superpower status in a more constructive manner: Twice now in the past decade, the overwhelming military and economic dominance of the US has given it the chance to lead the rest of the world by example and consensus. It could have adopted (and to a very limited degree under Clinton did adopt) a strategy in which this dominance would be softened and legitimised by economic and ecological generosity and responsibility, by geopolitical restraint, and by ‘a decent respect to the opinion of mankind’, as the US Declaration of Independence has it. The first occasion was the collapse of the Soviet superpower enemy and of Communism as an ideology. The second was the threat displayed by al-Qaida. Both chances have been lost—the first in part, the second it seems conclusively. What we see now is the tragedy of a great country, with noble impulses, successful institutions, magnificent historical achievements and immense energies, which has become a menace to itself and to mankind.170
The First Gulf War and Afghanistan were explicable to most people but why the Iraq War? It did not appear to represent a sudden danger. The evidence on WMD was doubtful at best.171 This book has argued that the key factor was the attack on the US on ‘-’.172 The attacks changed American thinking and psychology. The minimal and containable degree of danger that Iraq had hitherto represented was transformed into an intolerable danger because of its potential J Simpson, n above, –. See M Ignatieff, Empire Lite: Nation Building in Bosnia, Kosovo, Afghanistan (Toronto, Canada, Penguin/Minerva, ); Morgan ‘A Debate over U.S. “Empire” Builds in Unexpected Circles’ Washington Post ( August ); JE Alvarez, ‘Hegemonic International Law evisited’ () American Journal of International Law (on hegemonic power in the SC). 170 A Lieven, n above. 171 See ch . above. 172 See ch above. 168 169
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links with Al-Qaeda or other future terrorist groups. For the Administration, the Iraq War was one of the first successes of the ‘New American Century Project’ that began in the s?173 Many members of that project form part of the US Administration. The War on Terrorism gives an unmissible opportunity for that ideology to be played out on the world stage. The War on Terror, and the War on Iraq, have re-established US ‘credibility’.174 No one will mess with them again in the same way. However, there are some commentators who see great danger in the Bush Presidency and the neo-conservative administration. For example, John Simpson has argued that the Iraq War happened because there had been a change: What changed was that a new and crusading set of people were in government, with a new and crusading approach to American power.175
For such critics, the Bush Administration is heavily ideologically driven and has strong religious overtones.176 In January , some evidence supporting this view was provided in by Paul O’Neill, the former US Treasury Secretary in the Bush Administration. He revealed that it had always been part of agenda of the neo-conservatives in the Bush Administration’s to attack Iraq. Those plans existed from the beginning of . The attacks on ‘-’ simply served as a convenient catalyst for these plans.177 He also expressed the view that he had never seen anything that he would characterise as evidence of weapons of mass destruction. John Simpson has also suggested another explanation for the Iraq War. This reverts back to ‘-’, but sees the Iraq War in US domestic political terms rather than in international terms: Saddam Hussein’s Iraq, then, was the test-bed for a new America, which was determined to act up to its full presumed power. The fact that he was genuinely the nastiest dictator on earth had become less important than the fact that the Bush administration had chosen him 173
. See Berman, n above, –, . 175 Simpson, n above, . 176 President Bush’s speeches often end up with a reference to God, eg, ‘and may God continue to bless America’. The separation of Church and state in the US Constitution can give a misleading impression of US culture. See C Longley, Chosen People: The Big Idea that Shapes England and America (London, Hodder & Stoughton, ) explaining how American exceptionalism is partly founded on religion. 177 See M Kettle, ‘“Topic A” and How the Iraq Game was Given Away’ The Guardian ( January ). The administration dismissed O’Neill’s views. 174
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to demonstrate America’s strength. Not so much to the outside world, which featured very little in Washington’s thinking, but to Americans themselves. They had been very thoroughly scared and unsettled by the attacks of September . The war against Saddam in was President Bush’s way of assuring them that everything was still all right.178
As we noted in chapter , part of the post-Iraq War discourse focused on the idea of the creation of a US Empire. Comparisons were drawn with the experience of some of the great Empires of the past— oman, British, Dutch, and Spanish.179 Would Iraq be shaped as part of a Pax Americana (an American peace)?180 Much of the ‘Empiric’ and ‘Imperialist’ debate has been rather simplistic. In particular, it largely ignores a US domestic opinion and culture that is strongly against the very notion of empires and imperialism. ‘-’ has not changed that opposition. More constructive have been those analysts who look at the lessons to be learned from previous empires: The United States can learn useful lessons about a strategy of providing public goods from the history of the Pax Britannica. An Australian analyst may be right in her view that if the US plays its cards well and acts not as a soloist but as the leader of a concert of nations, the Pax Americana, in terms of duration, might . . . become more like the Pax omana than did the Pax Brittanica. If so, American soft power [the power of attraction that is associated with ideas, cultures and policies] will play a major role. As Henry Kissinger has argued, the test of history for the United States will be whether we can turn our current predominant power into international consensus and our own principles into widely accepted international norms. That was the greatness achieved by the ome and Britain in their times.181
The next few decades will be an important testing ground for the US’s policies on international law and its views on the international legal order that we considered in chapter . More generally though, 178 Simpson, n above, . On the internal effect of the Iraq War and Guantanamo Bay see J Morris, ‘Can You Hear Us, Mister President’ The Times, Weekend eview, December (the values of the people and the values of the State have grown sadly apart). 179 See K Phillips, ‘Hegemony, Hubris and Overreach’ in Iraq War eader, n above, , who notes that the US is the world’s largest debtor. 180 See ‘The Future of Pax Americana’ in Iraq War eader, n above, –; DK Simes, ‘America’s Imperial Dilemma’ () () Foreign Affairs . In an address at the American University in , President JF Kennedy asked ‘What kind of peace do we seek?’ His answer was ‘Not a Pax Americana enforced on the world by American weapons of war’. 181 J Nye, ‘The American National Interest and Global Public Goods’ () International Affairs at (footnotes omitted).
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the anti-imperial critique fails to recognise that any US imperialist military designs are limited by its own political culture of being formed out of anti-imperialism,182 and by fear of casualties and longterm overseas military engagements. The Iraq War may show that ‘-’ has operated to reduce some of these fears, but they do appear to be deeply embedded in American political and social culture.183 Already by the end of , the US had adopted a strategy that would see a quicker handover of power to Iraqis and a consequent reduction in US engagement.184 There will also be the inevitable rise of other world powers. David Smith has suggested that the story of the twenty-first century is going to be one of a marked shift of economic power to the east as the Chinese economy will grow to overtake Britain by and that of the US in the s.185 The rise of other powers and civilizations necessarily reduces the relative power of Western states and Western civilization. Samuel Huntingdon has argued for the need to ‘preserve Western civilisation in the face of declining Western power’.186 He also warned that it was important to recognise that: Western intervention in the affairs of other civilizations is probably the single most dangerous source of instability and potential global conflict in a multicivilizational world.187
To the extent that this analysis is correct, it would need to be demonstrated that international terrorism and the proliferation of weapons of mass destruction represented a more ‘dangerous source of instability and potential global conflict’ than Western intervention.
182
The US had limited experience as a colonial power in the Phillipines. J Steele, ‘Only the UN Can Give Iraq Security and Sovereignty’ The Guardian ( August ) (one out of every four Americans wants US forces to withdraw from Iraq now, according to a Gallup poll). 184 See ch above. 185 D Smith, ‘World Tilts Towards the East’ The Sunday Times ( October ), p . He notes that the huge populations of China and India mean that they will not become richer than the US. See also Huntingdon, n above, –, –. A reflection of the dynamic economic evolution of China is that, in December , the Chinese National Congress was considering a constitutional amendment that would protect private property. Also in , after years, China stopped receiving international food aid. 186 See Huntingdon, n above, . 187 Ibid . 183
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. ‘-’
This book considered how international law and lawyers have responded to the events of ‘-’ and in particular to the War on Terrorism and the War on Iraq. The question in much of the subtext of the discussions has been whether the world changed on ‘-’. If the world did change, then perhaps legal changes and adaptations inevitably follow.188 In assessing many of the arguments presented in this book it is important to consider who is arguing that there has been change. Also, why are they arguing for change? Could it be that some who are arguing that the world has changed do so because they want a changed world? Or could it be that those who are arguing that the world has not changed do so because they do not want a changed world? Michael eisman has commented on the instinctive preference of international lawyers for the argument that nothing has changed: Specialists in international law tend to rally behind the inherited arrangements; they assume that because the international system is weak, a principal duty is to defend existing prescriptions, whatever the consequence. Thus, international lawyers frequently respond to the appearance of a discrepancy between existing and emerging legal arrangements by heatedly rejecting the new ‘with a fury of virtuous unanimity [against] the evil whose name is Change’.189 Lost in the righteous fury is a dispassionate assessment of the extent to which the old arrangements are likely to work in contexts different from those in which they were originally established or the extent to which the new arrangements may better secure, in possible future conflicts, law’s fundamental goals.190
. — ‘ ’
The War on Terrorism is partly ideological—it is a war of ideas.191 The War on Terrorism is often portrayed as a battle between good
188 See P Sands, ‘- and the Transformation of International Law’ in P Eden and T O’Donnell (eds), September : A Turning Point in International and Domestic Law? (New York, Transnational, , forthcoming). 189 Citing H Tawney, eligion and the ise of Capitalism () . 190 M eisman, ‘Assessing Claims to evise the Laws of War’ () AJIL at . 191 See Berman, n above, – on ‘Mental War’.
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and evil. The UN Secretary-General has addressed the importance of seeing why the fight against terrorism is being fought: We should also remember that, in the fight against terrorism, ideas matter. We must articulate a powerful and compelling global vision that can defeat the vivid, if extreme, visions of terrorist groups. We must make clearer, by word and deed, not only that we are fighting terrorists, but that we are also standing, indeed fighting, for something—for peace, for resolution of conflict, for human rights and development.192
It is hard to underestimate the significance and effects of ‘-’. Yet it is also important to keep it in perspective. On one level, ‘-’ changed nothing for most of the world’s population. As the eport of the Commission on Human Security () put it: / didn’t, in fact, change much in the lives of most people on the planet. Human insecurity, alas, was a daily reality before / for the hundreds of millions who live in absolute poverty or in zones of conflict, and remain so. For these people, insecurity is not equated with where a terrorist might strike, but instead, where tomorrow’s only meal will come from, or how a job will be found that will provide enough income to provide shelter for a family or purchase life saving medicines for a dying child.193
One can accept and appreciate all of these sentiments. For most people in most places the most important thing is daily survival. However, no matter how passionately one is concerned with poverty, economic and social inequality, hunger, ill-health, and the myriad effects of globalisation, the ways of the terrorists provide no solution.194 All of these issues can best be addressed in a peaceful and stable global order. In that limited sense, President Bush was correct when he stated that there was no room for neutrality of the middle ground in the war against terrorism, ‘You are with us or you are against us in the fight against terror’.195 There is a natural modern 192 emarks at Conference, ‘Fighting Terrorism for Humanity: A Conference on the oots of Evil’ (New York, September ) . See also S ampton and JC Stauber, Weapons of Mass Deception: The Uses of Propaganda in Bush’s War on Iraq (London, Constable and obinson, ) –. 193 Cited in M obinson, ‘Shaping Globalization: The ole of the ule of Law’ th Grotius Annual Lecture, () Proceedings of the th Meeting of the American Society of International Law ; . 194 See B Barber, Jihad vs. McWorld (London, Corgi, ) who stresses, inter alia, the role of civil society in the defeat of terrorism and the establishment of democracies. 195 GW Bush, Joint News Conference with President Chirac, November .
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intellectual tendency to avoid such black and white positions on anything. The preference is for relativism. Benjamin Barber responded to President Bush’s statement in this way: Americans may appreciate the impulse to divide the world into good and evil (though some will think it smack of the Manicheanism for which Americans excoriate their fundamentalist adversaries), but America’s enemies (and for more than a few of it friends) are likely to find this discourse unfortunate and misleading if not hubristic. An America that comprehends the realities of interdependence and wishes to devise a democratic architecture to contain its global disorder cannot ask others to either join it or else ‘suffer the consequences’.196
Worldwide, there are many critics of the US, the current US Administration, President Bush himself. One can maintain all of those views and yet still be unequivocally opposed to terrorism. .
This book has sought to identify the principal international law and international order issues at stake. Complexity theory would suggest that we must continue to seek and identify the unexpected consequences of unanticipated events. No event in world history was more unanticipated than the attacks on ‘-’. The war on Afghanistan was perhaps an expected consequence of that unanticipated event. But one of the unintended consequences of removing the Taliban regime in Afghanistan was that opium production soared. The money from that trade finances terrorists and criminal activities.197 The lines between terrorists and criminals (particularly drug traffickers) have become increasingly blurred.198 Would the War on Iraq have happened without the attacks on ‘-’? Now we will never know, but the answer is probably not. The Iraq War is thus a classic example of an unexpected consequence of an unanticipated event. In , Chou En Lai, Chinese Premier and second in command to Mao Zedong, was asked by Henry Kissinger whether the French Barber, n above, xxi. See‘Opium Production Soars In Post-Taleban Afghanistan’ ; eport of the Security Council Mission to Afghanistan, October to November S//, para . 198 See W Laqueur, The New Terrorism: Fanaticism and the Arms of Mass Destruction (Oxford, OUP, ) –. 196 197
WOLD ODE(S) FO THE 21ST CENTUY
evolution in had benefited humanity? After considering the matter for a while he replied that, ‘it is too soon to tell’. It is, of course, also too soon to determine the effects ‘-’ on the world legal order.199 However, it seems unlikely that we will have to wait as long as Chou En Lai considered necessary before we more fully understand the full effect of ‘-’. Two of the first books on ‘-’ described it as shaking the world.200 The world legal order after ‘-’ may prove not to be a different one. It may, however, prove to be a badly shaken one.
199
See ‘New World Order?’ . See F Halliday, Two Hours that Shook the World: September , : Causes and Consequences (London, Saqi Books, ); BBC News Team, The Day that Shook the World (BBC Consumer Publishing, London, ). 200
DOCUMENTS
Appendix I President Bush’s Address to the United Nations General Assembly in November U.N. Headquarters New York, New York Thank you. Mr. Secretary General, Mr. President, distinguished delegates, and ladies and gentlemen. We meet in a hall devoted to peace, in a city scarred by violence, in a nation awakened to danger, in a world uniting for a long struggle. Every civilized nation here today is resolved to keep the most basic commitment of civilization: We will defend ourselves and our future against terror and lawless violence. The United Nations was founded in this cause. In a second world war, we learned there is no isolation from evil. We affirmed that some crimes are so terrible they offend humanity, itself. And we resolved that the aggressions and ambitions of the wicked must be opposed early, decisively, and collectively, before they threaten us all. That evil has returned, and that cause is renewed. A few miles from here, many thousands still lie in a tomb of rubble. Tomorrow, the Secretary General, the President of the General Assembly, and I will visit that site, where the names of every nation and region that lost citizens will be read aloud. If we were to read the names of every person who died, it would take more than three hours. Those names include a citizen of Gambia, whose wife spent their fourth wedding anniversary, September the th, searching in vain for her husband. Those names include a man who supported his wife in Mexico, sending home money every week. Those names include a young Pakistani who prayed toward Mecca five times a day, and died that day trying to save others. The suffering of September the th was inflicted on people of many faiths and many nations. All of the victims, including Muslims, were killed with equal indifference and equal satisfaction by the terrorist leaders. The terrorists are violating the tenets of every religion, including the one they invoke. Last week, the Sheikh of Al-Azhar University, the world’s oldest Islamic institution of higher learning, declared that terrorism is a disease, and that Islam prohibits killing innocent civilians. The terrorists call their cause holy, yet, they fund it with drug dealing; they encourage murder and suicide in the name of a great faith that forbids both. They dare to ask God’s blessing as they set out to kill innocent men, women and children. But the God of Isaac and Ishmael would never answer such a prayer. And a murderer is not a martyr; he is just a murderer. Time is passing. Yet, for the United States of America, there will be no forgetting September the th. We will remember every rescuer who died in honor. We will remember every family that lives in grief. We will remember the fire and ash, the last phone calls, the funerals of the children. And the people of my country will remember those who have plotted against us. We are learning their names. We are coming to know their faces. There is no corner of the Earth
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distant or dark enough to protect them. However long it takes, their hour of justice will come. Every nation has a stake in this cause. As we meet, the terrorists are planning more murder—perhaps in my country, or perhaps in yours. They kill because they aspire to dominate. They seek to overthrow governments and destabilize entire regions. Last week, anticipating this meeting of the General Assembly, they denounced the United Nations. They called our Secretary General a criminal and condemned all Arab nations here as traitors to Islam. Few countries meet their exacting standards of brutality and oppression. Every other country is a potential target. And all the world faces the most horrifying prospect of all: These same terrorists are searching for weapons of mass destruction, the tools to turn their hatred into holocaust. They can be expected to use chemical, biological and nuclear weapons the moment they are capable of doing so. No hint of conscience would prevent it. This threat cannot be ignored. This threat cannot be appeased. Civilization, itself, the civilization we share, is threatened. History will record our response, and judge or justify every nation in this hall. The civilized world is now responding. We act to defend ourselves and deliver our children from a future of fear. We choose the dignity of life over a culture of death. We choose lawful change and civil disagreement over coercion, subversion, and chaos. These commitments—hope and order, law and life—unite people across cultures and continents. Upon these commitments depend all peace and progress. For these commitments, we are determined to fight. The United Nations has risen to this responsibility. On the th of September, these buildings opened for emergency meetings of the General Assembly and the Security Council. Before the sun had set, these attacks on the world stood condemned by the world. And I want to thank you for this strong and principled stand. I also thank the Arab Islamic countries that have condemned terrorist murder. Many of you have seen the destruction of terror in your own lands. The terrorists are increasingly isolated by their own hatred and extremism. They cannot hide behind Islam. The authors of mass murder and their allies have no place in any culture, and no home in any faith. The conspiracies of terror are being answered by an expanding global coalition. Not every nation will be a part of every action against the enemy. But every nation in our coalition has duties. These duties can be demanding, as we in America are learning. We have already made adjustments in our laws and in our daily lives. We’re taking new measures to investigate terror and to protect against threats. The leaders of all nations must now carefully consider their responsibilities and their future. Terrorist groups like al Qaeda depend upon the aid or indifference of governments. They need the support of a financial infrastructure, and safe havens to train and plan and hide. Some nations want to play their part in the fight against terror, but tell us they lack the means to enforce their laws and control their borders. We stand ready to help. Some governments still turn a blind eye to the terrorists, hoping the threat will pass them by. They are mistaken. And some governments, while pledging to uphold the principles of the U.N., have cast their lot with the terrorists. They support them and harbor them, and they will find that their welcome guests are parasites that will weaken them, and eventually consume them. For every regime that sponsors terror, there is a price to be paid. And it will be paid. The allies of terror are equally guilty of murder and equally accountable to justice. The Taliban are now learning this lesson—that regime and the terrorists who support it are now virtually indistinguishable. Together they promote terror abroad and impose a reign of terror on the Afghan people. Women are executed in Kabal’s soccer stadium. They can be beaten for wearing socks that are too thin. Men are jailed for missing prayer meetings. The United States, supported by many nations, is bringing justice to the terrorists in Afghanistan. We’re making progress against military targets, and that is our objective. Unlike the enemy, we seek to minimize, not maximize, the loss of innocent life.
APPENDIX I
I’m proud of the honorable conduct of the American military. And my country grieves for all the suffering the Taliban have brought upon Afghanistan, including the terrible burden of war. The Afghan people do not deserve their present rulers. Years of Taliban misrule have brought nothing but misery and starvation. Even before this current crisis, million Afghans depended on food from the United States and other nations, and millions of Afghans were refugees from Taliban oppression. I make this promise to all the victims of that regime: The Taliban’s days of harboring terrorists and dealing in heroin and brutalizing women are drawing to a close. And when that regime is gone, the people of Afghanistan will say with the rest of the world: good riddance. I can promise, too, that America will join the world in helping the people of Afghanistan rebuild their country. Many nations, including mine, are sending food and medicine to help Afghans through the winter. America has air-dropped over . million packages of rations into Afghanistan. Just this week, we air-lifted , blankets and over tons of provisions into the region. We continue to provide humanitarian aid, even while the Taliban tried to steal the food we send. More help eventually will be needed. The United States will work closely with the United Nations and development banks to reconstruct Afghanistan after hostilities there have ceased and the Taliban are no longer in control. And the United States will work with the U.N. to support a post-Taliban government that represents all of the Afghan people. In this war of terror, each of us must answer for what we have done or what we have left undone. After tragedy, there is a time for sympathy and condolence. And my country has been very grateful for both. The memorials and vigils around the world will not be forgotten. But the time for sympathy has now passed; the time for action has now arrived. The most basic obligations in this new conflict have already been defined by the United Nations. On September the th, the Security Council adopted Resolution . Its requirements are clear: Every United Nations member has a responsibility to crack down on terrorist financing. We must pass all necessary laws in our own countries to allow the confiscation of terrorist assets. We must apply those laws to every financial institution in every nation. We have a responsibility to share intelligence and coordinate the efforts of law enforcement. If you know something, tell us. If we know something, we’ll tell you. And when we find the terrorists, we must work together to bring them to justice. We have a responsibility to deny any sanctuary, safe haven or transit to terrorists. Every known terrorist camp must be shut down, its operators apprehended, and evidence of their arrest presented to the United Nations. We have a responsibility to deny weapons to terrorists and to actively prevent private citizens from providing them. These obligations are urgent and they are binding on every nation with a place in this chamber. Many governments are taking these obligations seriously, and my country appreciates it. Yet, even beyond Resolution , more is required, and more is expected of our coalition against terror. We’re asking for a comprehensive commitment to this fight. We must unite in opposing all terrorists, not just some of them. In this world there are good causes and bad causes, and we may disagree on where the line is drawn. Yet, there is no such thing as a good terrorist. No national aspiration, no remembered wrong can ever justify the deliberate murder of the innocent. Any government that rejects this principle, trying to pick and choose its terrorist friends, will know the consequences. We must speak the truth about terror. Let us never tolerate outrageous conspiracy theories concerning the attacks of September the th; malicious lies that attempt to shift the blame away from the terrorists, themselves, away from the guilty. To inflame ethnic hatred is to advance the cause of terror. The war against terror must not serve as an excuse to persecute ethnic and religious minorities in any country. Innocent people must be allowed to live their own lives, by their own customs, under their own religion. And every nation must have avenues for the
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peaceful expression of opinion and dissent. When these avenues are closed, the temptation to speak through violence grows. We must press on with our agenda for peace and prosperity in every land. My country is pledged to encouraging development and expanding trade. My country is pledged to investing in education and combatting AIDS and other infectious diseases around the world. Following September th, these pledges are even more important. In our struggle against hateful groups that exploit poverty and despair, we must offer an alternative of opportunity and hope. The American government also stands by its commitment to a just peace in the Middle East. We are working toward a day when two states, Israel and Palestine, live peacefully together within secure and recognize borders as called for by the Security Council resolutions. We will do all in our power to bring both parties back into negotiations. But peace will only come when all have sworn off, forever, incitement, violence and terror. And, finally, this struggle is a defining moment for the United Nations, itself. And the world needs its principled leadership. It undermines the credibility of this great institution, for example, when the Commission on Human Rights offers seats to the world’s most persistent violators of human rights. The United Nations depends, above all, on its moral authority—and that authority must be preserved. The steps I described will not be easy. For all nations, they will require effort. For some nations, they will require great courage. Yet, the cost of inaction is far greater. The only alternative to victory is a nightmare world where every city is a potential killing field. As I’ve told the American people, freedom and fear are at war. We face enemies that hate not our policies, but our existence; the tolerance of openness and creative culture that defines us. But the outcome of this conflict is certain: There is a current in history and it runs toward freedom. Our enemies resent it and dismiss it, but the dreams of mankind are defined by liberty—the natural right to create and build and worship and live in dignity. When men and women are released from oppression and isolation, they find fulfillment and hope, and they leave poverty by the millions. These aspirations are lifting up the peoples of Europe, Asia, Africa and the Americas, and they can lift up all of the Islamic world. We stand for the permanent hopes of humanity, and those hopes will not be denied. We’re confident, too, that history has an author who fills time and eternity with his purpose. We know that evil is real, but good will prevail against it. This is the teaching of many faiths, and in that assurance we gain strength for a long journey. It is our task—the task of this generation—to provide the response to aggression and terror. We have no other choice, because there is no other peace. We did not ask for this mission, yet there is honor in history’s call. We have a chance to write the story of our times, a story of courage defeating cruelty and light overcoming darkness. This calling is worthy of any life, and worthy of every nation. So let us go forward, confident, determined, and unafraid. Thank you very much.
Appendix II The United States President’s State of the Union Address January Thank you very much. Mr. Speaker, Vice President Cheney, members of Congress, distinguished guests, fellow citizens: As we gather tonight, our nation is at war, our economy is in recession, and the civilized world faces unprecedented dangers. Yet the state of our Union has never been stronger. We last met in an hour of shock and suffering. In four short months, our nation has comforted the victims, begun to rebuild New York and the Pentagon, rallied a great coalition, captured, arrested, and rid the world of thousands of terrorists, destroyed Afghanistan’s terrorist training camps, saved a people from starvation, and freed a country from brutal oppression. The American flag flies again over our embassy in Kabul. Terrorists who once occupied Afghanistan now occupy cells at Guantanamo Bay. And terrorist leaders who urged followers to sacrifice their lives are running for their own. America and Afghanistan are now allies against terror. We’ll be partners in rebuilding that country. And this evening we welcome the distinguished interim leader of a liberated Afghanistan: Chairman Hamid Karzai. The last time we met in this chamber, the mothers and daughters of Afghanistan were captives in their own homes, forbidden from working or going to school. Today women are free, and are part of Afghanistan’s new government. And we welcome the new Minister of Women’s Affairs, Doctor Sima Samar. Our progress is a tribute to the spirit of the Afghan people, to the resolve of our coalition, and to the might of the United States military. When I called our troops into action, I did so with complete confidence in their courage and skill. And tonight, thanks to them, we are winning the war on terror. The man and women of our Armed Forces have delivered a message now clear to every enemy of the United States: Even , miles away, across oceans and continents, on mountaintops and in caves—you will not escape the justice of this nation. For many Americans, these four months have brought sorrow, and pain that will never completely go away. Every day a retired firefighter returns to Ground Zero, to feel closer to his two sons who died there. At a memorial in New York, a little boy left his football with a note for his lost father: Dear Daddy, please take this to heaven. I don’t want to play football until I can play with you again some day. Last month, at the grave of her husband, Michael, a CIA officer and Marine who died in Mazur-e-Sharif, Shannon Spann said these words of farewell: ‘Semper Fi, my love.’ Shannon is with us tonight. Shannon, I assure you and all who have lost a loved one that our cause is just, and our country will never forget the debt we owe Michael and all who gave their lives for freedom. Our cause is just, and it continues. Our discoveries in Afghanistan confirmed our worst fears, and showed us the true scope of the task ahead. We have seen the depth of our enemies’ hatred in videos, where they laugh about the loss of innocent life. And the depth of their hatred is equaled by the madness of the destruction they design. We have
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found diagrams of American nuclear power plants and public water facilities, detailed instructions for making chemical weapons, surveillance maps of American cities, and thorough descriptions of landmarks in America and throughout the world. What we have found in Afghanistan confirms that, far from ending there, our war against terror is only beginning. Most of the men who hijacked planes on September the th were trained in Afghanistan’s camps, and so were tens of thousands of others. Thousands of dangerous killers, schooled in the methods of murder, often supported by outlaw regimes, are now spread throughout the world like ticking time bombs, set to go off without warning. Thanks to the work of our law enforcement officials and coalition partners, hundreds of terrorists have been arrested. Yet, tens of thousands of trained terrorists are still at large. These enemies view the entire world as a battlefield, and we must pursue them wherever they are. So long as training camps operate, so long as nations harbor terrorists, freedom is at risk. And America and our allies must not, and will not, allow it. Our nation will continue to be steadfast and patient and persistent in the pursuit of two great objectives. First, we will shut down terrorist camps, disrupt terrorist plans, and bring terrorists to justice. And, second, we must prevent the terrorists and regimes who seek chemical, biological or nuclear weapons from threatening the United States and the world. Our military has put the terror training camps of Afghanistan out of business, yet camps still exist in at least a dozen countries. A terrorist underworld—including groups like Hamas, Hezbollah, Islamic Jihad, Jaish-i-Mohammed—operates in remote jungles and deserts, and hides in the centers of large cities. While the most visible military action is in Afghanistan, America is acting elsewhere. We now have troops in the Philippines, helping to train that country’s armed forces to go after terrorist cells that have executed an American, and still hold hostages. Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy. Our Navy is patrolling the coast of Africa to block the shipment of weapons and the establishment of terrorist camps in Somalia. My hope is that all nations will heed our call, and eliminate the terrorist parasites who threaten their countries and our own. Many nations are acting forcefully. Pakistan is now cracking down on terror, and I admire the strong leadership of President Musharraf. But some governments will be timid in the face of terror. And make no mistake about it: If they do not act, America will. Our second goal is to prevent regimes that sponsor terror from threatening America or our friends and allies with weapons of mass destruction. Some of these regimes have been pretty quiet since September the th. But we know their true nature. North Korea is a regime arming with missiles and weapons of mass destruction, while starving its citizens. Iran aggressively pursues these weapons and exports terror, while an unelected few repress the Iranian people’s hope for freedom. Iraq continues to flaunt its hostility toward America and to support terror. The Iraqi regime has plotted to develop anthrax, and nerve gas, and nuclear weapons for over a decade. This is a regime that has already used poison gas to murder thousands of its own citizens—leaving the bodies of mothers huddled over their dead children. This is a regime that agreed to international inspections—then kicked out the inspectors. This is a regime that has something to hide from the civilized world. States like these, and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world. By seeking weapons of mass destruction, these regimes pose a grave and growing danger. They could provide these arms to terrorists, giving them the means to match their hatred. They could attack our allies or attempt to blackmail the United States. In any of these cases, the price of indifference would be catastrophic. We will work closely with our coalition to deny terrorists and their state sponsors the materials, technology, and expertise to make and deliver weapons of mass destruction. We will develop and deploy effective missile defenses to protect America and our allies from
APPENDIX II
sudden attack. And all nations should know: America will do what is necessary to ensure our nation’s security. We’ll be deliberate, yet time is not on our side. I will not wait on events, while dangers gather. I will not stand by, as peril draws closer and closer. The United States of America will not permit the world’s most dangerous regimes to threaten us with the world’s most destructive weapons. Our war on terror is well begun, but it is only begun. This campaign may not be finished on our watch—yet it must be and it will be waged on our watch. We can’t stop short. If we stop now—leaving terror camps intact and terror states unchecked—our sense of security would be false and temporary. History has called America and our allies to action, and it is both our responsibility and our privilege to fight freedom’s fight. Our first priority must always be the security of our nation, and that will be reflected in the budget I send to Congress. My budget supports three great goals for America: We will win this war; we’ll protect our homeland; and we will revive our economy. September the th brought out the best in America, and the best in this Congress. And I join the American people in applauding your unity and resolve. Now Americans deserve to have this same spirit directed toward addressing problems here at home. I’m a proud member of my party—yet as we act to win the war, protect our people, and create jobs in America, we must act, first and foremost, not as Republicans, not as Democrats, but as Americans. It costs a lot to fight this war. We have spent more than a billion dollars a month—over $ million a day—and we must be prepared for future operations. Afghanistan proved that expensive precision weapons defeat the enemy and spare innocent lives, and we need more of them. We need to replace aging aircraft and make our military more agile, to put our troops anywhere in the world quickly and safely. Our men and women in uniform deserve the best weapons, the best equipment, the best training—and they also deserve another pay raise. My budget includes the largest increase in defense spending in two decades—because while the price of freedom and security is high, it is never too high. Whatever it costs to defend our country, we will pay. The next priority of my budget is to do everything possible to protect our citizens and strengthen our nation against the ongoing threat of another attack. Time and distance from the events of September the th will not make us safer unless we act on its lessons. America is no longer protected by vast oceans. We are protected from attack only by vigorous action abroad, and increased vigilance at home. My budget nearly doubles funding for a sustained strategy of homeland security, focused on four key areas: bioterrorism, emergency response, airport and border security, and improved intelligence. We will develop vaccines to fight anthrax and other deadly diseases. We’ll increase funding to help states and communities train and equip our heroic police and firefighters. We will improve intelligence collection and sharing, expand patrols at our borders, strengthen the security of air travel, and use technology to track the arrivals and departures of visitors to the United States. Homeland security will make America not only stronger, but, in many ways, better. Knowledge gained from bioterrorism research will improve public health. Stronger police and fire departments will mean safer neighborhoods. Stricter border enforcement will help combat illegal drugs. And as government works to better secure our homeland, America will continue to depend on the eyes and ears of alert citizens. A few days before Christmas, an airline flight attendant spotted a passenger lighting a match. The crew and passengers quickly subdued the man, who had been trained by al Qaeda and was armed with explosives. The people on that plane were alert and, as a result, likely saved nearly lives. And tonight we welcome and thank flight attendants Hermis Moutardier and Christina Jones.
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Once we have funded our national security and our homeland security, the final great priority of my budget is economic security for the American people. To achieve these great national objectives—to win the war, protect the homeland, and revitalize our economy— our budget will run a deficit that will be small and short-term, so long as Congress restrains spending and acts in a fiscally responsible manner. We have clear priorities and we must act at home with the same purpose and resolve we have shown overseas: We’ll prevail in the war, and we will defeat this recession. Americans who have lost their jobs need our help and I support extending unemployment benefits and direct assistance for health care coverage. Yet, American workers want more than unemployment checks—they want a steady paycheck. When America works, America prospers, so my economic security plan can be summed up in one word: jobs. Good jobs begin with good schools, and here we’ve made a fine start. Republicans and Democrats worked together to achieve historic education reform so that no child is left behind. I was proud to work with members of both parties: Chairman John Boehner and Congressman George Miller. Senator Judd Gregg. And I was so proud of our work, I even had nice things to say about my friend, Ted Kennedy. I know the folks at the Crawford coffee shop couldn’t believe I’d say such a thing—but our work on this bill shows what is possible if we set aside posturing and focus on results. There is more to do. We need to prepare our children to read and succeed in school with improved Head Start and early childhood development programs. We must upgrade our teacher colleges and teacher training and launch a major recruiting drive with a great goal for America: a quality teacher in every classroom. Good jobs also depend on reliable and affordable energy. This Congress must act to encourage conservation, promote technology, build infrastructure, and it must act to increase energy production at home so America is less dependent on foreign oil. Good jobs depend on expanded trade. Selling into new markets creates new jobs, so I ask Congress to finally approve trade promotion authority. On these two key issues, trade and energy, the House of Representatives has acted to create jobs, and I urge the Senate to pass this legislation. Good jobs depend on sound tax policy. Last year, some in this hall thought my tax relief plan was too small; some thought it was too big. But when the checks arrived in the mail, most Americans thought tax relief was just about right. Congress listened to the people and responded by reducing tax rates, doubling the child credit, and ending the death tax. For the sake of longterm growth and to help Americans plan for the future, let’s make these tax cuts permanent. The way out of this recession, the way to create jobs, is to grow the economy by encouraging investment in factories and equipment, and by speeding up tax relief so people have more money to spend. For the sake of American workers, let’s pass a stimulus package. Good jobs must be the aim of welfare reform. As we reauthorize these important reforms, we must always remember the goal is to reduce dependency on government and offer every American the dignity of a job. Americans know economic security can vanish in an instant without health security. I ask Congress to join me this year to enact a patients’ bill of rights— to give uninsured workers credits to help buy health coverage— to approve an historic increase in the spending for veterans’ health—and to give seniors a sound and modern Medicare system that includes coverage for prescription drugs. A good job should lead to security in retirement. I ask Congress to enact new safeguards for K and pension plans. Employees who have worked hard and saved all their lives should not have to risk losing everything if their company fails. Through stricter accounting standards and tougher disclosure requirements, corporate America must be made more accountable to employees and shareholders and held to the highest standards of conduct. Retirement security also depends upon keeping the commitments of Social Security, and we will. We must make Social Security financially stable and allow personal retirement accounts for younger workers who choose them.
APPENDIX II
Members, you and I will work together in the months ahead on other issues: productive farm policy—a cleaner environment— broader home ownership, especially among minorities—and ways to encourage the good work of charities and faith-based groups. I ask you to join me on these important domestic issues in the same spirit of cooperation we’ve applied to our war against terrorism. During these last few months, I’ve been humbled and privileged to see the true character of this country in a time of testing. Our enemies believed America was weak and materialistic, that we would splinter in fear and selfishness. They were as wrong as they are evil. The American people have responded magnificently, with courage and compassion, strength and resolve. As I have met the heroes, hugged the families, and looked into the tired faces of rescuers, I have stood in awe of the American people. And I hope you will join me—I hope you will join me in expressing thanks to one American for the strength and calm and comfort she brings to our nation in crisis, our First Lady, Laura Bush. None of us would ever wish the evil that was done on September the th. Yet after America was attacked, it was as if our entire country looked into a mirror and saw our better selves. We were reminded that we are citizens, with obligations to each other, to our country, and to history. We began to think less of the goods we can accumulate, and more about the good we can do. For too long our culture has said, ‘If it feels good, do it.’ Now America is embracing a new ethic and a new creed: ‘Let’s roll.’ In the sacrifice of soldiers, the fierce brotherhood of firefighters, and the bravery and generosity of ordinary citizens, we have glimpsed what a new culture of responsibility could look like. We want to be a nation that serves goals larger than self. We’ve been offered a unique opportunity, and we must not let this moment pass. My call tonight is for every American to commit at least two years—, hours over the rest of your lifetime—to the service of your neighbors and your nation. Many are already serving, and I thank you. If you aren’t sure how to help, I’ve got a good place to start. To sustain and extend the best that has emerged in America, I invite you to join the new USA Freedom Corps. The Freedom Corps will focus on three areas of need: responding in case of crisis at home; rebuilding our communities; and extending American compassion throughout the world. One purpose of the USA Freedom Corps will be homeland security. America needs retired doctors and nurses who can be mobilized in major emergencies; volunteers to help police and fire departments; transportation and utility workers well-trained in spotting danger. Our country also needs citizens working to rebuild our communities. We need mentors to love children, especially children whose parents are in prison. And we need more talented teachers in troubled schools. USA Freedom Corps will expand and improve the good efforts of AmeriCorps and Senior Corps to recruit more than , new volunteers. And America needs citizens to extend the compassion of our country to every part of the world. So we will renew the promise of the Peace Corps, double its volunteers over the next five years—and ask it to join a new effort to encourage development and education and opportunity in the Islamic world. This time of adversity offers a unique moment of opportunity—a moment we must seize to change our culture. Through the gathering momentum of millions of acts of service and decency and kindness, I know we can overcome evil with greater good. And we have a great opportunity during this time of war to lead the world toward the values that will bring lasting peace. All fathers and mothers, in all societies, want their children to be educated, and live free from poverty and violence. No people on Earth yearn to be oppressed, or aspire to servitude, or eagerly await the midnight knock of the secret police. If anyone doubts this, let them look to Afghanistan, where the Islamic ‘street’ greeted the fall of tyranny with song and celebration. Let the skeptics look to Islam’s own rich history,
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with its centuries of learning, and tolerance and progress. America will lead by defending liberty and justice because they are right and true and unchanging for all people everywhere. No nation owns these aspirations, and no nation is exempt from them. We have no intention of imposing our culture. But America will always stand firm for the non-negotiable demands of human dignity: the rule of law; limits on the power of the state; respect for women; private property; free speech; equal justice; and religious tolerance. America will take the side of brave men and women who advocate these values around the world, including the Islamic world, because we have a greater objective than eliminating threats and containing resentment. We seek a just and peaceful world beyond the war on terror. In this moment of opportunity, a common danger is erasing old rivalries. America is working with Russia and China and India, in ways we have never before, to achieve peace and prosperity. In every region, free markets and free trade and free societies are proving their power to lift lives. Together with friends and allies from Europe to Asia, and Africa to Latin America, we will demonstrate that the forces of terror cannot stop the momentum of freedom. The last time I spoke here, I expressed the hope that life would return to normal. In some ways, it has. In others, it never will. Those of us who have lived through these challenging times have been changed by them. We’ve come to know truths that we will never question: evil is real, and it must be opposed. Beyond all differences of race or creed, we are one country, mourning together and facing danger together. Deep in the American character, there is honor, and it is stronger than cynicism. And many have discovered again that even in tragedy—especially in tragedy—God is near. In a single instant, we realized that this will be a decisive decade in the history of liberty, that we’ve been called to a unique role in human events. Rarely has the world faced a choice more clear or consequential. Our enemies send other people’s children on missions of suicide and murder. They embrace tyranny and death as a cause and a creed. We stand for a different choice, made long ago, on the day of our founding. We affirm it again today. We choose freedom and the dignity of every life. Steadfast in our purpose, we now press on. We have known freedom’s price. We have shown freedom’s power. And in this great conflict, my fellow Americans, we will see freedom’s victory. Thank you all. May God bless. The United States Capitol Washington, D.C.
Appendix III The National Security Strategy of the United States of America September The White House Washington Table of Contents Introduction I. Overview of America’s International Strategy II. Champion Aspirations for Human Dignity III. Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against Us and Our Friends IV. Work with others to Defuse Regional Conflicts V. Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction VI. Ignite a New Era of Global Economic Growth through Free Markets and Free Trade VII. Expand the Circle of Development by Opening Societies and Building the Infrastructure of Democracy VIII. Develop Agendas for Cooperative Action with the Other Main Centers of Global Power IX. Transform America’s National Security Institutions to Meet the Challenges and Opportunities of the Twenty-First Century Introduction The great struggles of the twentieth century between liberty and totalitarianism ended with a decisive victory for the forces of freedom—and a single sustainable model for national success: freedom, democracy, and free enterprise. In the twenty-first century, only nations that share a commitment to protecting basic human rights and guaranteeing political and economic freedom will be able to unleash the potential of their people and assure their future prosperity. People everywhere want to be able to speak freely; choose who will govern them; worship as they please; educate their children—male and female; own property; and enjoy the benefits of their labor. These values of freedom are right and true for every person, in every society—and the duty of protecting these values against their enemies is the common calling of freedom-loving people across the globe and across the ages. Today, the United States enjoys a position of unparalleled military strength and great economic and political influence. In keeping with our heritage and principles, we do not use our strength to press for unilateral advantage. We seek instead to create a balance of power that favors human freedom: conditions in which all nations and all societies can choose for
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themselves the rewards and challenges of political and economic liberty. In a world that is safe, people will be able to make their own lives better. We will defend the peace by fighting terrorists and tyrants. We will preserve the peace by building good relations among the great powers. We will extend the peace by encouraging free and open societies on every continent. Defending our Nation against its enemies is the first and fundamental commitment of the Federal Government. Today, that task has changed dramatically. Enemies in the past needed great armies and great industrial capabilities to endanger America. Now, shadowy networks of individuals can bring great chaos and suffering to our shores for less than it costs to purchase a single tank. Terrorists are organized to penetrate open societies and to turn the power of modern technologies against us. To defeat this threat we must make use of every tool in our arsenal—military power, better homeland defenses, law enforcement, intelligence, and vigorous efforts to cut off terrorist financing. The war against terrorists of global reach is a global enterprise of uncertain duration. America will help nations that need our assistance in combating terror. And America will hold to account nations that are compromised by terror, including those who harbor terrorists— because the allies of terror are the enemies of civilization. The United States and countries cooperating with us must not allow the terrorists to develop new home bases. Together, we will seek to deny them sanctuary at every turn. The gravest danger our Nation faces lies at the crossroads of radicalism and technology. Our enemies have openly declared that they are seeking weapons of mass destruction, and evidence indicates that they are doing so with determination. The United States will not allow these efforts to succeed. We will build defenses against ballistic missiles and other means of delivery. We will cooperate with other nations to deny, contain, and curtail our enemies’ efforts to acquire dangerous technologies. And, as a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed. We cannot defend America and our friends by hoping for the best. So we must be prepared to defeat our enemies’ plans, using the best intelligence and proceeding with deliberation. History will judge harshly those who saw this coming danger but failed to act. In the new world we have entered, the only path to peace and security is the path of action. As we defend the peace, we will also take advantage of an historic opportunity to preserve the peace. Today, the international community has the best chance since the rise of the nation-state in the seventeenth century to build a world where great powers compete in peace instead of continually prepare for war. Today, the world’s great powers find ourselves on the same side— united by common dangers of terrorist violence and chaos. The United States will build on these common interests to promote global security. We are also increasingly united by common values. Russia is in the midst of a hopeful transition, reaching for its democratic future and a partner in the war on terror. Chinese leaders are discovering that economic freedom is the only source of national wealth. In time, they will find that social and political freedom is the only source of national greatness. America will encourage the advancement of democracy and economic openness in both nations, because these are the best foundations for domestic stability and international order. We will strongly resist aggression from other great powers—even as we welcome their peaceful pursuit of prosperity, trade, and cultural advancement. Finally, the United States will use this moment of opportunity to extend the benefits of freedom across the globe. We will actively work to bring the hope of democracy, development, free markets, and free trade to every corner of the world. The events of September , , taught us that weak states, like Afghanistan, can pose as great a danger to our national interests as strong states. Poverty does not make poor people into terrorists and murderers. Yet poverty, weak institutions, and corruption can make weak states vulnerable to terrorist networks and drug cartels within their borders. The United States will stand beside any nation determined to build a better future by seeking the rewards of liberty for its people. Free trade and free markets have proven their
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ability to lift whole societies out of poverty—so the United States will work with individual nations, entire regions, and the entire global trading community to build a world that trades in freedom and therefore grows in prosperity. The United States will deliver greater development assistance through the New Millennium Challenge Account to nations that govern justly, invest in their people, and encourage economic freedom. We will also continue to lead the world in efforts to reduce the terrible toll of HIV/AIDS and other infectious diseases. In building a balance of power that favors freedom, the United States is guided by the conviction that all nations have important responsibilities. Nations that enjoy freedom must actively fight terror. Nations that depend on international stability must help prevent the spread of weapons of mass destruction. Nations that seek international aid must govern themselves wisely, so that aid is well spent. For freedom to thrive, accountability must be expected and required. We are also guided by the conviction that no nation can build a safer, better world alone. Alliances and multilateral institutions can multiply the strength of freedom-loving nations. The United States is committed to lasting institutions like the United Nations, the World Trade Organization, the Organization of American States, and NATO as well as other longstanding alliances. Coalitions of the willing can augment these permanent institutions. In all cases, international obligations are to be taken seriously. They are not to be undertaken symbolically to rally support for an ideal without furthering its attainment. Freedom is the non-negotiable demand of human dignity; the birthright of every person—in every civilization. Throughout history, freedom has been threatened by war and terror; it has been challenged by the clashing wills of powerful states and the evil designs of tyrants; and it has been tested by widespread poverty and disease. Today, humanity holds in its hands the opportunity to further freedom’s triumph over all these foes. The United States welcomes our responsibility to lead in this great mission. George W. Bush THE WHITE HOUSE, September ,
I. Overview of America’s International Strategy ‘Our Nation’s cause has always been larger than our Nation’s defense. We fight, as we always fight, for a just peace—a peace that favors liberty. We will defend the peace against the threats from terrorists and tyrants. We will preserve the peace by building good relations among the great powers. And we will extend the peace by encouraging free and open societies on every continent.’ President Bush West Point, New York June , The United States possesses unprecedented—and unequaled—strength and influence in the world. Sustained by faith in the principles of liberty, and the value of a free society, this position comes with unparalleled responsibilities, obligations, and opportunity. The great strength of this nation must be used to promote a balance of power that favors freedom. For most of the twentieth century, the world was divided by a great struggle over ideas: destructive totalitarian visions versus freedom and equality. That great struggle is over. The militant visions of class, nation, and race which promised utopia and delivered misery have been defeated and discredited. America is now threatened less by conquering states than we are by failing ones. We are menaced less by fleets and armies than by catastrophic technologies in the hands of the embittered few. We must defeat these threats to our Nation, allies, and friends.
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This is also a time of opportunity for America. We will work to translate this moment of influence into decades of peace, prosperity, and liberty. The U.S. national security strategy will be based on a distinctly American internationalism that reflects the union of our values and our national interests. The aim of this strategy is to help make the world not just safer but better. Our goals on the path to progress are clear: political and economic freedom, peaceful relations with other states, and respect for human dignity. And this path is not America’s alone. It is open to all. To achieve these goals, the United States will: champion aspirations for human dignity; strengthen alliances to defeat global terrorism and work to prevent attacks against us and our friends; work with others to defuse regional conflicts; prevent our enemies from threatening us, our allies, and our friends, with weapons of mass destruction; ignite a new era of global economic growth through free markets and free trade; expand the circle of development by opening societies and building the infrastructure of democracy; develop agendas for cooperative action with other main centers of global power; and transform America’s national security institutions to meet the challenges and opportunities of the twenty-first century.
II. Champion Aspirations for Human Dignity ‘Some worry that it is somehow undiplomatic or impolite to speak the language of right and wrong. I disagree. Different circumstances require different methods, but not different moralities.’ President Bush West Point, New York June , In pursuit of our goals, our first imperative is to clarify what we stand for: the United States must defend liberty and justice because these principles are right and true for all people everywhere. No nation owns these aspirations, and no nation is exempt from them. Fathers and mothers in all societies want their children to be educated and to live free from poverty and violence. No people on earth yearn to be oppressed, aspire to servitude, or eagerly await the midnight knock of the secret police. America must stand firmly for the nonnegotiable demands of human dignity: the rule of law; limits on the absolute power of the state; free speech; freedom of worship; equal justice; respect for women; religious and ethnic tolerance; and respect for private property. These demands can be met in many ways. America’s constitution has served us well. Many other nations, with different histories and cultures, facing different circumstances, have successfully incorporated these core principles into their own systems of governance. History has not been kind to those nations which ignored or flouted the rights and aspirations of their people. America’s experience as a great multi-ethnic democracy affirms our conviction that people of many heritages and faiths can live and prosper in peace. Our own history is a long struggle to live up to our ideals. But even in our worst moments, the principles enshrined in the Declaration of Independence were there to guide us. As a result, America is not just a stronger, but is a freer and more just society.
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Today, these ideals are a lifeline to lonely defenders of liberty. And when openings arrive, we can encourage change—as we did in central and eastern Europe between and , or in Belgrade in .When we see democratic processes take hold among our friends in Taiwan or in the Republic of Korea, and see elected leaders replace generals in Latin America and Africa, we see examples of how authoritarian systems can evolve, marrying local history and traditions with the principles we all cherish. Embodying lessons from our past and using the opportunity we have today, the national security strategy of the United States must start from these core beliefs and look outward for possibilities to expand liberty. Our principles will guide our government’s decisions about international cooperation, the character of our foreign assistance, and the allocation of resources. They will guide our actions and our words in international bodies. We will: speak out honestly about violations of the nonnegotiable demands of human dignity using our voice and vote in international institutions to advance freedom; use our foreign aid to promote freedom and support those who struggle non-violently for it, ensuring that nations moving toward democracy are rewarded for the steps they take; make freedom and the development of democratic institutions key themes in our bilateral relations, seeking solidarity and cooperation from other democracies while we press governments that deny human rights to move toward a better future; and take special efforts to promote freedom of religion and conscience and defend it from encroachment by repressive governments. We will champion the cause of human dignity and oppose those who resist it.
III. Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against Us and Our Friends ‘Just three days removed from these events, Americans do not yet have the distance of history. But our responsibility to history is already clear: to answer these attacks and rid the world of evil. War has been waged against us by stealth and deceit and murder. This nation is peaceful, but fierce when stirred to anger. The conflict was begun on the timing and terms of others. It will end in a way, and at an hour, of our choosing.’ President Bush Washington, D.C. (The National Cathedral) September , The United States of America is fighting a war against terrorists of global reach. The enemy is not a single political regime or person or religion or ideology. The enemy is terrorism— premeditated, politically motivated violence perpetrated against innocents. In many regions, legitimate grievances prevent the emergence of a lasting peace. Such grievances deserve to be, and must be, addressed within a political process. But no cause justifies terror. The United States will make no concessions to terrorist demands and strike no deals with them. We make no distinction between terrorists and those who knowingly harbor or provide aid to them. The struggle against global terrorism is different from any other war in our history. It will be fought on many fronts against a particularly elusive enemy over an extended period of time. Progress will come through the persistent accumulation of successes—some seen, some unseen. Today our enemies have seen the results of what civilized nations can, and will, do against regimes that harbor, support, and use terrorism to achieve their political goals. Afghanistan
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has been liberated; coalition forces continue to hunt down the Taliban and al-Qaida. But it is not only this battlefield on which we will engage terrorists. Thousands of trained terrorists remain at large with cells in North America, South America, Europe, Africa, the Middle East, and across Asia. Our priority will be first to disrupt and destroy terrorist organizations of global reach and attack their leadership; command, control, and communications; material support; and finances. This will have a disabling effect upon the terrorists’ ability to plan and operate. We will continue to encourage our regional partners to take up a coordinated effort that isolates the terrorists. Once the regional campaign localizes the threat to a particular state, we will help ensure the state has the military, law enforcement, political, and financial tools necessary to finish the task. The United States will continue to work with our allies to disrupt the financing of terrorism. We will identify and block the sources of funding for terrorism, freeze the assets of terrorists and those who support them, deny terrorists access to the international financial system, protect legitimate charities from being abused by terrorists, and prevent the movement of terrorists’ assets through alternative financial networks. However, this campaign need not be sequential to be effective, the cumulative effect across all regions will help achieve the results we seek. We will disrupt and destroy terrorist organizations by: direct and continuous action using all the elements of national and international power. Our immediate focus will be those terrorist organizations of global reach and any terrorist or state sponsor of terrorism which attempts to gain or use weapons of mass destruction (WMD) or their precursors; defending the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of selfdefense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country; and denying further sponsorship, support, and sanctuary to terrorists by convincing or compelling states to accept their sovereign responsibilities. We will also wage a war of ideas to win the battle against international terrorism. This includes: using the full influence of the United States, and working closely with allies and friends, to make clear that all acts of terrorism are illegitimate so that terrorism will be viewed in the same light as slavery, piracy, or genocide: behavior that no respectable government can condone or support and all must oppose; supporting moderate and modern government, especially in the Muslim world, to ensure that the conditions and ideologies that promote terrorism do not find fertile ground in any nation; diminishing the underlying conditions that spawn terrorism by enlisting the international community to focus its efforts and resources on areas most at risk; and using effective public diplomacy to promote the free flow of information and ideas to kindle the hopes and aspirations of freedom of those in societies ruled by the sponsors of global terrorism. While we recognize that our best defense is a good offense, we are also strengthening America’s homeland security to protect against and deter attack. This Administration has proposed the largest government reorganization since the Truman Administration created the National Security Council and the Department of Defense. Centered on a new Department of Homeland Security and including a new unified military command and a fundamental reordering of the FBI, our comprehensive plan to secure the homeland encompasses every level of government and the cooperation of the public and the private sector.
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This strategy will turn adversity into opportunity. For example, emergency management systems will be better able to cope not just with terrorism but with all hazards. Our medical system will be strengthened to manage not just bioterror, but all infectious diseases and masscasualty dangers. Our border controls will not just stop terrorists, but improve the efficient movement of legitimate traffic. While our focus is protecting America, we know that to defeat terrorism in today’s globalized world we need support from our allies and friends. Wherever possible, the United States will rely on regional organizations and state powers to meet their obligations to fight terrorism. Where governments find the fight against terrorism beyond their capacities, we will match their willpower and their resources with whatever help we and our allies can provide. As we pursue the terrorists in Afghanistan, we will continue to work with international organizations such as the United Nations, as well as non-governmental organizations, and other countries to provide the humanitarian, political, economic, and security assistance necessary to rebuild Afghanistan so that it will never again abuse its people, threaten its neighbors, and provide a haven for terrorists. In the war against global terrorism, we will never forget that we are ultimately fighting for our democratic values and way of life. Freedom and fear are at war, and there will be no quick or easy end to this conflict. In leading the campaign against terrorism, we are forging new, productive international relationships and redefining existing ones in ways that meet the challenges of the twenty-first century.
IV. Work with others to Defuse Regional Conflicts ‘We build a world of justice, or we will live in a world of coercion. The magnitude of our shared responsibilities makes our disagreements look so small.’ President Bush Berlin, Germany May , Concerned nations must remain actively engaged in critical regional disputes to avoid explosive escalation and minimize human suffering. In an increasingly interconnected world, regional crisis can strain our alliances, rekindle rivalries among the major powers, and create horrifying affronts to human dignity. When violence erupts and states falter, the United States will work with friends and partners to alleviate suffering and restore stability. No doctrine can anticipate every circumstance in which U.S. action—direct or indirect— is warranted. We have finite political, economic, and military resources to meet our global priorities. The United States will approach each case with these strategic principles in mind: The United States should invest time and resources into building international relationships and institutions that can help manage local crises when they emerge. The United States should be realistic about its ability to help those who are unwilling or unready to help themselves. Where and when people are ready to do their part, we will be willing to move decisively. The Israeli–Palestinian conflict is critical because of the toll of human suffering, because of America’s close relationship with the state of Israel and key Arab states, and because of that region’s importance to other global priorities of the United States. There can be no peace for either side without freedom for both sides. America stands committed to an independent and democratic Palestine, living beside Israel in peace and security. Like all other people, Palestinians deserve a government that serves their interests and listens to their voices. The United States will continue to encourage all parties to step up to their responsibilities as we seek a just and comprehensive settlement to the conflict.
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The United States, the international donor community, and the World Bank stand ready to work with a reformed Palestinian government on economic development, increased humanitarian assistance, and a program to establish, finance, and monitor a truly independent judiciary. If Palestinians embrace democracy, and the rule of law, confront corruption, and firmly reject terror, they can count on American support for the creation of a Palestinian state. Israel also has a large stake in the success of a democratic Palestine. Permanent occupation threatens Israel’s identity and democracy. So the United States continues to challenge Israeli leaders to take concrete steps to support the emergence of a viable, credible Palestinian state. As there is progress towards security, Israel forces need to withdraw fully to positions they held prior to September , . And consistent with the recommendations of the Mitchell Committee, Israeli settlement activity in the occupied territories must stop. As violence subsides, freedom of movement should be restored, permitting innocent Palestinians to resume work and normal life. The United States can play a crucial role but, ultimately, lasting peace can only come when Israelis and Palestinians resolve the issues and end the conflict between them. In South Asia, the United States has also emphasized the need for India and Pakistan to resolve their disputes. This Administration invested time and resources building strong bilateral relations with India and Pakistan. These strong relations then gave us leverage to play a constructive role when tensions in the region became acute. With Pakistan, our bilateral relations have been bolstered by Pakistan’s choice to join the war against terror and move toward building a more open and tolerant society. The Administration sees India’s potential to become one of the great democratic powers of the twentyfirst century and has worked hard to transform our relationship accordingly. Our involvement in this regional dispute, building on earlier investments in bilateral relations, looks first to concrete steps by India and Pakistan that can help defuse military confrontation. Indonesia took courageous steps to create a working democracy and respect for the rule of law. By tolerating ethnic minorities, respecting the rule of law, and accepting open markets, Indonesia may be able to employ the engine of opportunity that has helped lift some of its neighbors out of poverty and desperation. It is the initiative by Indonesia that allows U.S. assistance to make a difference. In the Western Hemisphere we have formed flexible coalitions with countries that share our priorities, particularly Mexico, Brazil, Canada, Chile, and Colombia. Together we will promote a truly democratic hemisphere where our integration advances security, prosperity, opportunity, and hope. We will work with regional institutions, such as the Summit of the Americas process, the Organization of American States (OAS), and the Defense Ministerial of the Americas for the benefit of the entire hemisphere. Parts of Latin America confront regional conflict, especially arising from the violence of drug cartels and their accomplices. This conflict and unrestrained narcotics trafficking could imperil the health and security of the United States. Therefore we have developed an active strategy to help the Andean nations adjust their economies, enforce their laws, defeat terrorist organizations, and cut off the supply of drugs, while—as important—we work to reduce the demand for drugs in our own country. In Colombia, we recognize the link between terrorist and extremist groups that challenge the security of the state and drug trafficking activities that help finance the operations of such groups. We are working to help Colombia defend its democratic institutions and defeat illegal armed groups of both the left and right by extending effective sovereignty over the entire national territory and provide basic security to the Colombian people. In Africa, promise and opportunity sit side by side with disease, war, and desperate poverty. This threatens both a core value of the United States— preserving human dignity— and our strategic priority—combating global terror. American interests and American principles, therefore, lead in the same direction: we will work with others for an African continent that lives in liberty, peace, and growing prosperity. Together with our European
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allies, we must help strengthen Africa’s fragile states, help build indigenous capability to secure porous borders, and help build up the law enforcement and intelligence infrastructure to deny havens for terrorists. An ever more lethal environment exists in Africa as local civil wars spread beyond borders to create regional war zones. Forming coalitions of the willing and cooperative security arrangements are key to confronting these emerging transnational threats. Africa’s great size and diversity requires a security strategy that focuses on bilateral engagement and builds coalitions of the willing. This Administration will focus on three interlocking strategies for the region: countries with major impact on their neighborhood such as South Africa, Nigeria, Kenya, and Ethiopia are anchors for regional engagement and require focused attention; coordination with European allies and international institutions is essential for constructive conflict mediation and successful peace operations; and Africa’s capable reforming states and sub-regional organizations must be strengthened as the primary means to address transnational threats on a sustained basis. Ultimately the path of political and economic freedom presents the surest route to progress in sub-Saharan Africa, where most wars are conflicts over material resources and political access often tragically waged on the basis of ethnic and religious difference. The transition to the African Union with its stated commitment to good governance and a common responsibility for democratic political systems offers opportunities to strengthen democracy on the continent.
V. Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction ‘The gravest danger to freedom lies at the crossroads of radicalism and technology. When the spread of chemical and biological and nuclear weapons, along with ballistic missile technology—when that occurs, even weak states and small groups could attain a catastrophic power to strike great nations. Our enemies have declared this very intention, and have been caught seeking these terrible weapons. They want the capability to blackmail us, or to harm us, or to harm our friends—and we will oppose them with all our power.’ President Bush West Point, New York June , The nature of the Cold War threat required the United States—with our allies and friends— to emphasize deterrence of the enemy’s use of force, producing a grim strategy of mutual assured destruction. With the collapse of the Soviet Union and the end of the Cold War, our security environment has undergone profound transformation. Having moved from confrontation to cooperation as the hallmark of our relationship with Russia, the dividends are evident: an end to the balance of terror that divided us; an historic reduction in the nuclear arsenals on both sides; and cooperation in areas such as counterterrorism and missile defense that until recently were inconceivable. But new deadly challenges have emerged from rogue states and terrorists. None of these contemporary threats rival the sheer destructive power that was arrayed against us by the Soviet Union. However, the nature and motivations of these new adversaries, their determination to obtain destructive powers hitherto available only to the world’s strongest states, and the greater likelihood that they will use weapons of mass destruction against us, make today’s security environment more complex and dangerous.
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In the s we witnessed the emergence of a small number of rogue states that, while different in important ways, share a number of attributes. These states: brutalize their own people and squander their national resources for the personal gain of the rulers; display no regard for international law, threaten their neighbors, and callously violate international treaties to which they are party; are determined to acquire weapons of mass destruction, along with other advanced military technology, to be used as threats or offensively to achieve the aggressive designs of these regimes; sponsor terrorism around the globe; and reject basic human values and hate the United States and everything for which it stands. At the time of the Gulf War, we acquired irrefutable proof that Iraq’s designs were not limited to the chemical weapons it had used against Iran and its own people, but also extended to the acquisition of nuclear weapons and biological agents. In the past decade North Korea has become the world’s principal purveyor of ballistic missiles, and has tested increasingly capable missiles while developing its own WMD arsenal. Other rogue regimes seek nuclear, biological, and chemical weapons as well. These states’ pursuit of, and global trade in, such weapons has become a looming threat to all nations. We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends. Our response must take full advantage of strengthened alliances, the establishment of new partnerships with former adversaries, innovation in the use of military forces, modern technologies, including the development of an effective missile defense system, and increased emphasis on intelligence collection and analysis. Our comprehensive strategy to combat WMD includes: Proactive counterproliferation efforts. We must deter and defend against the threat before it is unleashed. We must ensure that key capabilities—detection, active and passive defenses, and counterforce capabilities—are integrated into our defense transformation and our homeland security systems. Counterproliferation must also be integrated into the doctrine, training, and equipping of our forces and those of our allies to ensure that we can prevail in any conflict with WMD-armed adversaries. Strengthened nonproliferation efforts to prevent rogue states and terrorists from acquiring the materials, technologies, and expertise necessary for weapons of mass destruction. We will enhance diplomacy, arms control, multilateral export controls, and threat reduction assistance that impede states and terrorists seeking WMD, and when necessary, interdict enabling technologies and materials. We will continue to build coalitions to support these efforts, encouraging their increased political and financial support for nonproliferation and threat reduction programs. The recent G- agreement to commit up to $ billion to a global partnership against proliferation marks a major step forward. Effective consequence management to respond to the effects of WMD use, whether by terrorists or hostile states. Minimizing the effects of WMD use against our people will help deter those who possess such weapons and dissuade those who seek to acquire them by persuading enemies that they cannot attain their desired ends. The United States must also be prepared to respond to the effects of WMD use against our forces abroad, and to help friends and allies if they are attacked. It has taken almost a decade for us to comprehend the true nature of this new threat. Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our
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adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first. In the Cold War, especially following the Cuban missile crisis, we faced a generally status quo, risk-averse adversary. Deterrence was an effective defense. But deterrence based only upon the threat of retaliation is less likely to work against leaders of rogue states more willing to take risks, gambling with the lives of their people, and the wealth of their nations. In the Cold War, weapons of mass destruction were considered weapons of last resort whose use risked the destruction of those who used them. Today, our enemies see weapons of mass destruction as weapons of choice. For rogue states these weapons are tools of intimidation and military aggression against their neighbors. These weapons may also allow these states to attempt to blackmail the United States and our allies to prevent us from deterring or repelling the aggressive behavior of rogue states. Such states also see these weapons as their best means of overcoming the conventional superiority of the United States. Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents; whose so-called soldiers seek martyrdom in death and whose most potent protection is statelessness. The overlap between states that sponsor terror and those that pursue WMD compels us to action. For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning. The targets of these attacks are our military forces and our civilian population, in direct violation of one of the principal norms of the law of warfare. As was demonstrated by the losses on September , , mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction. 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 the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. The United States will not use force in all cases to preempt emerging threats, nor should nations use preemption as a pretext for aggression. Yet in an age where the enemies of civilization openly and actively seek the world’s most destructive technologies, the United States cannot remain idle while dangers gather. We will always proceed deliberately, weighing the consequences of our actions. To support preemptive options, we will: build better, more integrated intelligence capabilities to provide timely, accurate information on threats, wherever they may emerge; coordinate closely with allies to form a common assessment of the most dangerous threats; and continue to transform our military forces to ensure our ability to conduct rapid and precise operations to achieve decisive results. The purpose of our actions will always be to eliminate a specific threat to the United States or our allies and friends. The reasons for our actions will be clear, the force measured, and the cause just.
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VI. Ignite a New Era of Global Economic Growth through Free Markets and Free Trade ‘When nations close their markets and opportunity is hoarded by a privileged few, no amount-no amount-of development aid is ever enough. When nations respect their people, open markets, invest in better health and education, every dollar of aid, every dollar of trade revenue and domestic capital is used more effectively.’ President Bush Monterrey, Mexico March ,
A strong world economy enhances our national security by advancing prosperity and freedom in the rest of the world. Economic growth supported by free trade and free markets creates new jobs and higher incomes. It allows people to lift their lives out of poverty, spurs economic and legal reform, and the fight against corruption, and it reinforces the habits of liberty. We will promote economic growth and economic freedom beyond America’s shores. All governments are responsible for creating their own economic policies and responding to their own economic challenges. We will use our economic engagement with other countries to underscore the benefits of policies that generate higher productivity and sustained economic growth, including: pro-growth legal and regulatory policies to encourage business investment, innovation, and entrepreneurial activity; tax policies—particularly lower marginal tax rates—that improve incentives for work and investment; rule of law and intolerance of corruption so that people are confident that they will be able to enjoy the fruits of their economic endeavors; strong financial systems that allow capital to be put to its most efficient use; sound fiscal policies to support business activity; investments in health and education that improve the well-being and skills of the labor force and population as a whole; and free trade that provides new avenues for growth and fosters the diffusion of technologies and ideas that increase productivity and opportunity. The lessons of history are clear: market economies, not command-and-control economies with the heavy hand of government, are the best way to promote prosperity and reduce poverty. Policies that further strengthen market incentives and market institutions are relevant for all economies—industrialized countries, emerging markets, and the developing world. A return to strong economic growth in Europe and Japan is vital to U.S. national security interests. We want our allies to have strong economies for their own sake, for the sake of the global economy, and for the sake of global security. European efforts to remove structural barriers in their economies are particularly important in this regard, as are Japan’s efforts to end deflation and address the problems of non-performing loans in the Japanese banking system. We will continue to use our regular consultations with Japan and our European partners—including through the Group of Seven (G-)—to discuss policies they are adopting to promote growth in their economies and support higher global economic growth. Improving stability in emerging markets is also key to global economic growth. International flows of investment capital are needed to expand the productive potential of
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these economies. These flows allow emerging markets and developing countries to make the investments that raise living standards and reduce poverty. Our long-term objective should be a world in which all countries have investment-grade credit ratings that allow them access to international capital markets and to invest in their future. We are committed to policies that will help emerging markets achieve access to larger capital flows at lower cost. To this end, we will continue to pursue reforms aimed at reducing uncertainty in financial markets. We will work actively with other countries, the International Monetary Fund (IMF), and the private sector to implement the G- Action Plan negotiated earlier this year for preventing financial crises and more effectively resolving them when they occur. The best way to deal with financial crises is to prevent them from occurring, and we have encouraged the IMF to improve its efforts doing so. We will continue to work with the IMF to streamline the policy conditions for its lending and to focus its lending strategy on achieving economic growth through sound fiscal and monetary policy, exchange rate policy, and financial sector policy. The concept of ‘free trade’ arose as a moral principle even before it became a pillar of economics. If you can make something that others value, you should be able to sell it to them. If others make something that you value, you should be able to buy it. This is real freedom, the freedom for a person—or a nation—to make a living. To promote free trade, the Unites States has developed a comprehensive strategy: Seize the global initiative. The new global trade negotiations we helped launch at Doha in November will have an ambitious agenda, especially in agriculture, manufacturing, and services, targeted for completion in . The United States has led the way in completing the accession of China and a democratic Taiwan to the World Trade Organization. We will assist Russia’s preparations to join the WTO. Press regional initiatives. The United States and other democracies in the Western Hemisphere have agreed to create the Free Trade Area of the Americas, targeted for completion in . This year the United States will advocate market-access negotiations with its partners, targeted on agriculture, industrial goods, services, investment, and government procurement. We will also offer more opportunity to the poorest continent, Africa, starting with full use of the preferences allowed in the African Growth and Opportunity Act, and leading to free trade. Move ahead with bilateral free trade agreements. Building on the free trade agreement with Jordan enacted in , the Administration will work this year to complete free trade agreements with Chile and Singapore. Our aim is to achieve free trade agreements with a mix of developed and developing countries in all regions of the world. Initially, Central America, Southern Africa, Morocco, and Australia will be our principal focal points. Renew the executive-congressional partnership. Every administration’s trade strategy depends on a productive partnership with Congress. After a gap of years, the Administration reestablished majority support in the Congress for trade liberalization by passing Trade Promotion Authority and the other market opening measures for developing countries in the Trade Act of . This Administration will work with Congress to enact new bilateral, regional, and global trade agreements that will be concluded under the recently passed Trade Promotion Authority. Promote the connection between trade and development. Trade policies can help developing countries strengthen property rights, competition, the rule of law, investment, the spread of knowledge, open societies, the efficient allocation of resources, and regional integration—all leading to growth, opportunity, and confidence in developing countries. The United States is implementing The Africa Growth and Opportunity Act to provide market-access for nearly all goods produced in the countries of sub-Saharan Africa. We will make more use of this act and its equivalent for the Caribbean Basin and continue to work with multilateral and regional institutions to help poorer countries take advantage of these opportunities. Beyond market access, the most important area where trade intersects
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with poverty is in public health. We will ensure that the WTO intellectual property rules are flexible enough to allow developing nations to gain access to critical medicines for extraordinary dangers like HIV/AIDS, tuberculosis, and malaria. Enforce trade agreements and laws against unfair practices. Commerce depends on the rule of law; international trade depends on enforceable agreements. Our top priorities are to resolve ongoing disputes with the European Union, Canada, and Mexico and to make a global effort to address new technology, science, and health regulations that needlessly impede farm exports and improved agriculture. Laws against unfair trade practices are often abused, but the international community must be able to address genuine concerns about government subsidies and dumping. International industrial espionage which undermines fair competition must be detected and deterred. Help domestic industries and workers adjust. There is a sound statutory framework for these transitional safeguards which we have used in the agricultural sector and which we are using this year to help the American steel industry. The benefits of free trade depend upon the enforcement of fair trading practices. These safeguards help ensure that the benefits of free trade do not come at the expense of American workers. Trade adjustment assistance will help workers adapt to the change and dynamism of open markets. Protect the environment and workers. The United States must foster economic growth in ways that will provide a better life along with widening prosperity. We will incorporate labor and environmental concerns into U.S. trade negotiations, creating a healthy ‘network’ between multilateral environmental agreements with the WTO, and use the International Labor Organization, trade preference programs, and trade talks to improve working conditions in conjunction with freer trade. Enhance energy security. We will strengthen our own energy security and the shared prosperity of the global economy by working with our allies, trading partners, and energy producers to expand the sources and types of global energy supplied, especially in the Western Hemisphere, Africa, Central Asia, and the Caspian region. We will also continue to work with our partners to develop cleaner and more energy efficient technologies. Economic growth should be accompanied by global efforts to stabilize greenhouse gas concentrations associated with this growth, containing them at a level that prevents dangerous human interference with the global climate. Our overall objective is to reduce America’s greenhouse gas emissions relative to the size of our economy, cutting such emissions per unit of economic activity by percent over the next years, by the year . Our strategies for attaining this goal will be to: remain committed to the basic U.N. Framework Convention for international cooperation; obtain agreements with key industries to cut emissions of some of the most potent greenhouse gases and give transferable credits to companies that can show real cuts; develop improved standards for measuring and registering emission reductions; promote renewable energy production and clean coal technology, as well as nuclear power—which produces no greenhouse gas emissions, while also improving fuel economy for U.S. cars and trucks; increase spending on research and new conservation technologies, to a total of $. billion—the largest sum being spent on climate change by any country in the world and a $ million increase over last year’s budget; and assist developing countries, especially the major greenhouse gas emitters such as China and India, so that they will have the tools and resources to join this effort and be able to grow along a cleaner and better path.
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VII. Expand the Circle of Development by Opening Societies and Building the Infrastructure of Democracy In World War II we fought to make the world safer, then worked to rebuild it. As we wage war today to keep the world safe from terror, we must also work to make the world a better place for all its citizens.’ President Bush Washington, D.C. (Inter-American Development Bank) March , A world where some live in comfort and plenty, while half of the human race lives on less than $ a day, is neither just nor stable. Including all of the world’s poor in an expanding circle of development—and opportunity—is a moral imperative and one of the top priorities of U.S. international policy. Decades of massive development assistance have failed to spur economic growth in the poorest countries. Worse, development aid has often served to prop up failed policies, relieving the pressure for reform and perpetuating misery. Results of aid are typically measured in dollars spent by donors, not in the rates of growth and poverty reduction achieved by recipients. These are the indicators of a failed strategy. Working with other nations, the United States is confronting this failure. We forged a new consensus at the U.N. Conference on Financing for Development in Monterrey that the objectives of assistance—and the strategies to achieve those objectives—must change. This Administration’s goal is to help unleash the productive potential of individuals in all nations. Sustained growth and poverty reduction is impossible without the right national policies. Where governments have implemented real policy changes, we will provide significant new levels of assistance. The United States and other developed countries should set an ambitious and specific target: to double the size of the world’s poorest economies within a decade. The United States Government will pursue these major strategies to achieve this goal: Provide resources to aid countries that have met the challenge of national reform. We propose a percent increase in the core development assistance given by the United States. While continuing our present programs, including humanitarian assistance based on need alone, these billions of new dollars will form a new Millennium Challenge Account for projects in countries whose governments rule justly, invest in their people, and encourage economic freedom. Governments must fight corruption, respect basic human rights, embrace the rule of law, invest in health care and education, follow responsible economic policies, and enable entrepreneurship. The Millennium Challenge Account will reward countries that have demonstrated real policy change and challenge those that have not to implement reforms. Improve the effectiveness of the World Bank and other development banks in raising living standards. The United States is committed to a comprehensive reform agenda for making the World Bank and the other multilateral development banks more effective in improving the lives of the world’s poor. We have reversed the downward trend in U.S. contributions and proposed an percent increase in the U.S. contributions to the International Development Association (IDA)—the World Bank’s fund for the poorest countries—and the African Development Fund. The key to raising living standards and reducing poverty around the world is increasing productivity growth, especially in the poorest countries. We will continue to press the multilateral development banks to focus on activities that increase economic productivity, such as improvements in education, health, rule of law, and private sector development. Every project, every loan, every grant must be judged by how much it will increase productivity growth in developing countries.
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Insist upon measurable results to ensure that development assistance is actually making a difference in the lives of the world’s poor. When it comes to economic development, what really matters is that more children are getting a better education, more people have access to health care and clean water, or more workers can find jobs to make a better future for their families. We have a moral obligation to measure the success of our development assistance by whether it is delivering results. For this reason, we will continue to demand that our own development assistance as well as assistance from the multilateral development banks has measurable goals and concrete benchmarks for achieving those goals. Thanks to U.S. leadership, the recent IDA replenishment agreement will establish a monitoring and evaluation system that measures recipient countries’ progress. For the first time, donors can link a portion of their contributions to IDA to the achievement of actual development results, and part of the U.S. contribution is linked in this way. We will strive to make sure that the World Bank and other multilateral development banks build on this progress so that a focus on results is an integral part of everything that these institutions do. Increase the amount of development assistance that is provided in the form of grants instead of loans. Greater use of results-based grants is the best way to help poor countries make productive investments, particularly in the social sectors, without saddling them with ever-larger debt burdens. As a result of U.S. leadership, the recent IDA agreement provided for significant increases in grant funding for the poorest countries for education, HIV/AIDS, health, nutrition, water, sanitation, and other human needs. Our goal is to build on that progress by increasing the use of grants at the other multilateral development banks. We will also challenge universities, nonprofits, and the private sector to match government efforts by using grants to support development projects that show results. Open societies to commerce and investment. Trade and investment are the real engines of economic growth. Even if government aid increases, most money for development must come from trade, domestic capital, and foreign investment. An effective strategy must try to expand these flows as well. Free markets and free trade are key priorities of our national security strategy. Secure public health. The scale of the public health crisis in poor countries is enormous. In countries afflicted by epidemics and pandemics like HIV/AIDS, malaria, and tuberculosis, growth and development will be threatened until these scourges can be contained. Resources from the developed world are necessary but will be effective only with honest governance, which supports prevention programs and provides effective local infrastructure. The United States has strongly backed the new global fund for HIV/AIDS organized by U.N. Secretary General Kofi Annan and its focus on combining prevention with a broad strategy for treatment and care. The United States already contributes more than twice as much money to such efforts as the next largest donor. If the global fund demonstrates its promise, we will be ready to give even more. Emphasize education. Literacy and learning are the foundation of democracy and development. Only about percent of World Bank resources are devoted to education. This proportion should grow. The United States will increase its own funding for education assistance by at least percent with an emphasis on improving basic education and teacher training in Africa. The United States can also bring information technology to these societies, many of whose education systems have been devastated by HIV/AIDS. Continue to aid agricultural development. New technologies, including biotechnology, have enormous potential to improve crop yields in developing countries while using fewer pesticides and less water. Using sound science, the United States should help bring these benefits to the million people, including million children, who still suffer from hunger and malnutrition.
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VIII. Develop Agendas for Cooperative Action with the Other Main Centers of Global Power ‘We have our best chance since the rise of the nation-state in the th century to build a world where the great powers compete in peace instead of prepare for war.’ President Bush West Point, New York June , America will implement its strategies by organizing coalitions—as broad as practicable—of states able and willing to promote a balance of power that favors freedom. Effective coalition leadership requires clear priorities, an appreciation of others’ interests, and consistent consultations among partners with a spirit of humility. There is little of lasting consequence that the United States can accomplish in the world without the sustained cooperation of its allies and friends in Canada and Europe. Europe is also the seat of two of the strongest and most able international institutions in the world: the North Atlantic Treaty Organization (NATO), which has, since its inception, been the fulcrum of transatlantic and interEuropean security, and the European Union (EU), our partner in opening world trade. The attacks of September were also an attack on NATO, as NATO itself recognized when it invoked its Article V self-defense clause for the first time. NATO’s core mission— collective defense of the transatlantic alliance of democracies—remains, but NATO must develop new structures and capabilities to carry out that mission under new circumstances. NATO must build a capability to field, at short notice, highly mobile, specially trained forces whenever they are needed to respond to a threat against any member of the alliance. The alliance must be able to act wherever our interests are threatened, creating coalitions under NATO’s own mandate, as well as contributing to mission-based coalitions. To achieve this, we must: expand NATO’s membership to those democratic nations willing and able to share the burden of defending and advancing our common interests; ensure that the military forces of NATO nations have appropriate combat contributions to make in coalition warfare; develop planning processes to enable those contributions to become effective multinational fighting forces; take advantage of the technological opportunities and economies of scale in our defense spending to transform NATO military forces so that they dominate potential aggressors and diminish our vulnerabilities; streamline and increase the flexibility of command structures to meet new operational demands and the associated requirements of training, integrating, and experimenting with new force configurations; and maintain the ability to work and fight together as allies even as we take the necessary steps to transform and modernize our forces. If NATO succeeds in enacting these changes, the rewards will be a partnership as central to the security and interests of its member states as was the case during the Cold War. We will sustain a common perspective on the threats to our societies and improve our ability to take common action in defense of our nations and their interests. At the same time, we welcome our European allies’ efforts to forge a greater foreign policy and defense identity with the EU, and commit ourselves to close consultations to ensure that these developments work with NATO. We cannot afford to lose this opportunity to better prepare the family of transatlantic democracies for the challenges to come.
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The attacks of September energized America’s Asian alliances. Australia invoked the ANZUS Treaty to declare the September was an attack on Australia itself, following that historic decision with the dispatch of some of the world’s finest combat forces for Operation Enduring Freedom. Japan and the Republic of Korea provided unprecedented levels of military logistical support within weeks of the terrorist attack. We have deepened cooperation on counterterrorism with our alliance partners in Thailand and the Philippines and received invaluable assistance from close friends like Singapore and New Zealand. The war against terrorism has proven that America’s alliances in Asia not only underpin regional peace and stability, but are flexible and ready to deal with new challenges. To enhance our Asian alliances and friendships, we will: look to Japan to continue forging a leading role in regional and global affairs based on our common interests, our common values, and our close defense and diplomatic cooperation; work with South Korea to maintain vigilance towards the North while preparing our alliance to make contributions to the broader stability of the region over the longer term; build on years of U.S.-Australian alliance cooperation as we continue working together to resolve regional and global problems—as we have so many times from the Battle of the Coral Sea to Tora Bora; maintain forces in the region that reflect our commitments to our allies, our requirements, our technological advances, and the strategic environment; and build on stability provided by these alliances, as well as with institutions such as ASEAN and the Asia-Pacific Economic Cooperation forum, to develop a mix of regional and bilateral strategies to manage change in this dynamic region. We are attentive to the possible renewal of old patterns of great power competition. Several potential great powers are now in the midst of internal transition—most importantly Russia, India, and China. In all three cases, recent developments have encouraged our hope that a truly global consensus about basic principles is slowly taking shape. With Russia, we are already building a new strategic relationship based on a central reality of the twenty-first century: the United States and Russia are no longer strategic adversaries. The Moscow Treaty on Strategic Reductions is emblematic of this new reality and reflects a critical change in Russian thinking that promises to lead to productive, long-term relations with the Euro-Atlantic community and the United States. Russia’s top leaders have a realistic assessment of their country’s current weakness and the policies—internal and external—needed to reverse those weaknesses. They understand, increasingly, that Cold War approaches do not serve their national interests and that Russian and American strategic interests overlap in many areas. United States policy seeks to use this turn in Russian thinking to refocus our relationship on emerging and potential common interests and challenges. We are broadening our already extensive cooperation in the global war on terrorism. We are facilitating Russia’s entry into the World Trade Organization, without lowering standards for accession, to promote beneficial bilateral trade and investment relations. We have created the NATO-Russia Council with the goal of deepening security cooperation among Russia, our European allies, and ourselves. We will continue to bolster the independence and stability of the states of the former Soviet Union in the belief that a prosperous and stable neighborhood will reinforce Russia’s growing commitment to integration into the Euro-Atlantic community. At the same time, we are realistic about the differences that still divide us from Russia and about the time and effort it will take to build an enduring strategic partnership. Lingering distrust of our motives and policies by key Russian elites slows improvement in our relations. Russia’s uneven commitment to the basic values of free-market democracy and dubious record in combating the proliferation of weapons of mass destruction remain matters of great concern. Russia’s very weakness limits the opportunities for cooperation.
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Nevertheless, those opportunities are vastly greater now than in recent years—or even decades. The United States has undertaken a transformation in its bilateral relationship with India based on a conviction that U.S. interests require a strong relationship with India. We are the two largest democracies, committed to political freedom protected by representative government. India is moving toward greater economic freedom as well. We have a common interest in the free flow of commerce, including through the vital sea lanes of the Indian Ocean. Finally, we share an interest in fighting terrorism and in creating a strategically stable Asia. Differences remain, including over the development of India’s nuclear and missile programs, and the pace of India’s economic reforms. But while in the past these concerns may have dominated our thinking about India, today we start with a view of India as a growing world power with which we have common strategic interests. Through a strong partnership with India, we can best address any differences and shape a dynamic future. The United States relationship with China is an important part of our strategy to promote a stable, peaceful, and prosperous Asia-Pacific region. We welcome the emergence of a strong, peaceful, and prosperous China. The democratic development of China is crucial to that future. Yet, a quarter century after beginning the process of shedding the worst features of the Communist legacy, China’s leaders have not yet made the next series of fundamental choices about the character of their state. In pursuing advanced military capabilities that can threaten its neighbors in the Asia-Pacific region, China is following an outdated path that, in the end, will hamper its own pursuit of national greatness. In time, China will find that social and political freedom is the only source of that greatness. The United States seeks a constructive relationship with a changing China. We already cooperate well where our interests overlap, including the current war on terrorism and in promoting stability on the Korean peninsula. Likewise, we have coordinated on the future of Afghanistan and have initiated a comprehensive dialogue on counterterrorism and similar transitional concerns. Shared health and environmental threats, such as the spread of HIV/AIDS, challenge us to promote jointly the welfare of our citizens. Addressing these transnational threats will challenge China to become more open with information, promote the development of civil society, and enhance individual human rights. China has begun to take the road to political openness, permitting many personal freedoms and conducting village-level elections, yet remains strongly committed to national one-party rule by the Communist Party. To make that nation truly accountable to its citizen’s needs and aspirations, however, much work remains to be done. Only by allowing the Chinese people to think, assemble, and worship freely can China reach its full potential. Our important trade relationship will benefit from China’s entry into the World Trade Organization, which will create more export opportunities and ultimately more jobs for American farmers, workers, and companies. China is our fourth largest trading partner, with over $ billion in annual two-way trade. The power of market principles and the WTO’s requirements for transparency and accountability will advance openness and the rule of law in China to help establish basic protections for commerce and for citizens. There are, however, other areas in which we have profound disagreements. Our commitment to the self-defense of Taiwan under the Taiwan Relations Act is one. Human rights is another. We expect China to adhere to its nonproliferation commitments. We will work to narrow differences where they exist, but not allow them to preclude cooperation where we agree. The events of September , , fundamentally changed the context for relations between the United States and other main centers of global power, and opened vast, new opportunities.With our long-standing allies in Europe and Asia, and with leaders in Russia, India, and China, we must develop active agendas of cooperation lest these relationships become routine and unproductive. Every agency of the United States Government shares the challenge. We can build fruitful habits of consultation, quiet argument, sober analysis, and common action. In the
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long-term, these are the practices that will sustain the supremacy of our common principles and keep open the path of progress.
IX. Transform America’s National Security Institutions to Meet the Challenges and Opportunities of the Twenty-First Century ‘Terrorists attacked a symbol of American prosperity. They did not touch its source. America is successful because of the hard work, creativity, and enterprise of our people.’ President Bush, Washington, D.C. (Joint Session of Congress) September , The major institutions of American national security were designed in a different era to meet different requirements. All of them must be transformed. It is time to reaffirm the essential role of American military strength. We must build and maintain our defenses beyond challenge. Our military’s highest priority is to defend the United States. To do so effectively, our military must: assure our allies and friends; dissuade future military competition; deter threats against U.S. interests, allies, and friends; and decisively defeat any adversary if deterrence fails. The unparalleled strength of the United States armed forces, and their forward presence, have maintained the peace in some of the world’s most strategically vital regions. However, the threats and enemies we must confront have changed, and so must our forces. A military structured to deter massive Cold War-era armies must be transformed to focus more on how an adversary might fight rather than where and when a war might occur. We will channel our energies to overcome a host of operational challenges. The presence of American forces overseas is one of the most profound symbols of the U.S. commitments to allies and friends. Through our willingness to use force in our own defense and in defense of others, the United States demonstrates its resolve to maintain a balance of power that favors freedom. To contend with uncertainty and to meet the many security challenges we face, the United States will require bases and stations within and beyond Western Europe and Northeast Asia, as well as temporary access arrangements for the longdistance deployment of U.S. forces. Before the war in Afghanistan, that area was low on the list of major planning contingencies. Yet, in a very short time, we had to operate across the length and breadth of that remote nation, using every branch of the armed forces. We must prepare for more such deployments by developing assets such as advanced remote sensing, long-range precision strike capabilities, and transformed maneuver and expeditionary forces. This broad portfolio of military capabilities must also include the ability to defend the homeland, conduct information operations, ensure U.S. access to distant theaters, and protect critical U.S. infrastructure and assets in outer space. Innovation within the armed forces will rest on experimentation with new approaches to warfare, strengthening joint operations, exploiting U.S. intelligence advantages, and taking full advantage of science and technology. We must also transform the way the Department of Defense is run, especially in financial management and recruitment and retention. Finally, while maintaining near-term readiness and the ability to fight the war on terrorism, the goal must be to provide the President with a wider range of military options to discourage aggression or any form of coercion against the United States, our allies, and our friends. We know from history that deterrence can fail; and we know from experience that some enemies cannot be deterred. The United States must and will maintain the capability to defeat any attempt by an enemy—whether a state or non-state actor—to impose its will on
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the United States, our allies, or our friends. We will maintain the forces sufficient to support our obligations, and to defend freedom. Our forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equaling, the power of the United States. Intelligence—and how we use it—is our first line of defense against terrorists and the threat posed by hostile states. Designed around the priority of gathering enormous information about a massive, fixed object—the Soviet bloc—the intelligence community is coping with the challenge of following a far more complex and elusive set of targets. We must transform our intelligence capabilities and build new ones to keep pace with the nature of these threats. Intelligence must be appropriately integrated with our defense and law enforcement systems and coordinated with our allies and friends. We need to protect the capabilities we have so that we do not arm our enemies with the knowledge of how best to surprise us. Those who would harm us also seek the benefit of surprise to limit our prevention and response options and to maximize injury. We must strengthen intelligence warning and analysis to provide integrated threat assessments for national and homeland security. Since the threats inspired by foreign governments and groups may be conducted inside the United States, we must also ensure the proper fusion of information between intelligence and law enforcement. Initiatives in this area will include: strengthening the authority of the Director of Central Intelligence to lead the development and actions of the Nation’s foreign intelligence capabilities; establishing a new framework for intelligence warning that provides seamless and integrated warning across the spectrum of threats facing the nation and our allies; continuing to develop new methods of collecting information to sustain our intelligence advantage; investing in future capabilities while working to protect them through a more vigorous effort to prevent the compromise of intelligence capabilities; and collecting intelligence against the terrorist danger across the government with allsource analysis. As the United States Government relies on the armed forces to defend America’s interests, it must rely on diplomacy to interact with other nations. We will ensure that the Department of State receives funding sufficient to ensure the success of American diplomacy. The State Department takes the lead in managing our bilateral relationships with other governments. And in this new era, its people and institutions must be able to interact equally adroitly with non-governmental organizations and international institutions. Officials trained mainly in international politics must also extend their reach to understand complex issues of domestic governance around the world, including public health, education, law enforcement, the judiciary, and public diplomacy. Our diplomats serve at the front line of complex negotiations, civil wars, and other humanitarian catastrophes. As humanitarian relief requirements are better understood, we must also be able to help build police forces, court systems, and legal codes, local and provincial government institutions, and electoral systems. Effective international cooperation is needed to accomplish these goals, backed by American readiness to play our part. Just as our diplomatic institutions must adapt so that we can reach out to others, we also need a different and more comprehensive approach to public information efforts that can help people around the world learn about and understand America. The war on terrorism is not a clash of civilizations. It does, however, reveal the clash inside a civilization, a battle for the future of the Muslim world. This is a struggle of ideas and this is an area where America must excel. We will take the actions necessary to ensure that our efforts to meet our global security commitments and protect Americans are not impaired by the potential for investigations,
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inquiry, or prosecution by the International Criminal Court (ICC), whose jurisdiction does not extend to Americans and which we do not accept. We will work together with other nations to avoid complications in our military operations and cooperation, through such mechanisms as multilateral and bilateral agreements that will protect U.S. nationals from the ICC. We will implement fully the American Servicemembers Protection Act, whose provisions are intended to ensure and enhance the protection of U.S. personnel and officials. We will make hard choices in the coming year and beyond to ensure the right level and allocation of government spending on national security. The United States Government must strengthen its defenses to win this war. At home, our most important priority is to protect the homeland for the American people. Today, the distinction between domestic and foreign affairs is diminishing. In a globalized world, events beyond America’s borders have a greater impact inside them. Our society must be open to people, ideas, and goods from across the globe. The characteristics we most cherish—our freedom, our cities, our systems of movement, and modern life—are vulnerable to terrorism. This vulnerability will persist long after we bring to justice those responsible for the September attacks. As time passes, individuals may gain access to means of destruction that until now could be wielded only by armies, fleets, and squadrons. This is a new condition of life. We will adjust to it and thrive—in spite of it. In exercising our leadership, we will respect the values, judgment, and interests of our friends and partners. Still, we will be prepared to act apart when our interests and unique responsibilities require. When we disagree on pazrticulars, we will explain forthrightly the grounds for our concerns and strive to forge viable alternatives. We will not allow such disagreements to obscure our determination to secure together, with our allies and our friends, our shared fundamental interests and values. Ultimately, the foundation of American strength is at home. It is in the skills of our people, the dynamism of our economy, and the resilience of our institutions. A diverse, modern society has inherent, ambitious, entrepreneurial energy. Our strength comes from what we do with that energy. That is where our national security begins.
Appendix IV Iraq’s Weapons Of Mass Destruction: The Assessment Of The British Government* September CONTENTS Foreword by the Prime Minister Executive Summary Part One: Iraq’s Chemical, Biological, Nuclear and Ballistic Missile Programmes Chapter : The role of intelligence Chapter : Iraq’s programmes – Chapter : The current position – Part Two: History of UN Weapons Inspections Part Three: Iraq under Saddam Hussein
FOREWORD BY THE PRIME MINISTER, THE RIGHT HONOURABLE TONY BLAIR MP The document published today is based, in large part, on the work of the Joint Intelligence Committee (JIC). The JIC is at the heart of the British intelligencemachinery. It is chaired by the Cabinet Office and made up of the heads of the UK’s three Intelligence and Security Agencies, the Chief of Defence Intelligence, and senior officials from key government departments. For over years the JIC has provided regular assessments to successive Prime Ministers and senior colleagues on a wide range of foreign policy and international security issues. Its work, like the material it analyses, is largely secret. It is unprecedented for the Government to publish this kind of document. But in light of the debate about Iraq and Weapons of Mass Destruction (WMD), I wanted to share with the British public the reasons why I believe this issue to be a current and serious threat to the UK national interest. In recent months, I have been increasingly alarmed by the evidence from inside Iraq that despite sanctions, despite the damage done to his capability in the past, despite the UN Security Council Resolutions expressly outlawing it, and despite his denials, Saddam Hussein is continuing to develop WMD, and with them the ability to inflict real damage upon the region, and the stability of the world. Gathering intelligence inside Iraq is not easy. Saddam’s is one of the most secretive and dictatorial regimes in the world. So I believe people will understand why the Agencies cannot be specific about the sources, which have formed the judgements in this document, and why we cannot publish everything we know. We cannot, of course, publish the detailed raw intelligence. I and other Ministers have been
* On September , Prime Minister Tony Blair published the following dossier on the case against Saddam Hussein. This is a text-only version of the dossier. Certain elements including images have been removed. The text remains the same as published.
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briefed in detail on the intelligence and are satisfied as to its authority. I also want to pay tribute to our Intelligence and Security Services for the often extraordinary work that they do. What I believe the assessed intelligence has established beyond doubt is that Saddam has continued to produce chemical and biological weapons, that he continues in his efforts to develop nuclear weapons, and that he has been able to extend the range of his ballistic missile programme. I also believe that, as stated in the document, Saddam will now do his utmost to try to conceal his weapons from UN inspectors. The picture presented to me by the JIC in recent months has become more not less worrying. It is clear that, despite sanctions, the policy of containment has not worked sufficiently well to prevent Saddam from developing these weapons. I am in no doubt that the threat is serious and current, that he has made progress on WMD, and that he has to be stopped. Saddam has used chemical weapons, not only against an enemy state, but against his own people. Intelligence reports make clear that he sees the building up of his WMD capability, and the belief overseas that he would use these weapons, as vital to his strategic interests, and in particular his goal of regional domination. And the document discloses that his military planning allows for some of the WMD to be ready within minutes of an order to use them. I am quite clear that Saddam will go to extreme lengths, indeed has already done so, to hide these weapons and avoid giving them up. In today’s inter-dependent world, a major regional conflict does not stay confined to the region in question. Faced with someone who has shown himself capable of using WMD, I believe the international community has to stand up for itself and ensure its authority is upheld. The threat posed to international peace and security, when WMD are in the hands of a brutal and aggressive regime like Saddam’s, is real. Unless we face up to the threat, not only do we risk undermining the authority of the UN, whose resolutions he defies, but more importantly and in the longer term, we place at risk the lives and prosperity of our own people. The case I make is that the UN Resolutions demanding he stops his WMD programme are being flouted; that since the inspectors left four years ago he has continued with this programme; that the inspectors must be allowed back in to do their job properly; and that if he refuses, or if he makes it impossible for them to do their job, as he has done in the past, the international community will have to act. I believe that faced with the information available to me, the UK Government has been right to support the demands that this issue be confronted and dealt with. We must ensure that he does not get to use the weapons he has, or get hold of the weapons he wants.
EXECUTIVE SUMMARY . Under Saddam Hussein Iraq developed chemical and biological weapons, acquired missiles allowing it to attack neighbouring countries with these weapons and persistently tried to develop a nuclear bomb. Saddam has used chemical weapons, both against Iran and against his own people. Following the Gulf War, Iraq had to admit to all this. And in the ceasefire of Saddam agreed unconditionally to give up his weapons of mass destruction. . Much information about Iraq’s weapons of mass destruction is already in the public domain from UN reports and from Iraqi defectors. This points clearly to Iraq’s continuing possession, after , of chemical and biological agents and weapons produced before the Gulf War. It shows that Iraq has refurbished sites formerly associated with the production of chemical and biological agents. And it indicates that Iraq remains able to manufacture these agents, and to use bombs, shells, artillery rockets and ballistic missiles to deliver them. . An independent and well-researched overview of this public evidence was provided by the International Institute for Strategic Studies (IISS) on September. The IISS report also
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suggested that Iraq could assemble nuclear weapons within months of obtaining fissile material from foreign sources. . As well as the public evidence, however, significant additional information is available to the Government from secret intelligence sources, described in more detail in this paper. This intelligence cannot tell us about everything. However, it provides a fuller picture of Iraqi plans and capabilities. It shows that Saddam Hussein attaches great importance to possessing weapons of mass destruction which he regards as the basis for Iraq’s regional power. It shows that he does not regard them only as weapons of last resort. He is ready to use them, including against his own population, and is determined to retain them, in breach of United Nations Security Council Resolutions (UNSCR). . Intelligence also shows that Iraq is preparing plans to conceal evidence of these weapons, including incriminating documents, from renewed inspections. And it confirms that despite sanctions and the policy of containment, Saddam has continued to make progress with his illicit weapons programmes. . As a result of the intelligence we judge that Iraq has: • continued to produce chemical and biological agents; • military plans for the use of chemical and biological weapons, including against its own Shia population. Some of these weapons are deployable within minutes of an order to use them; • command and control arrangements in place to use chemical and biological weapons. Authority ultimately resides with Saddam Hussein. (There is intelligence that he may have delegated this authority to his son Qusai); • developed mobile laboratories for military use, corroborating earlier reports about the mobile production of biological warfare agents; • pursued illegal programmes to procure controlled materials of potential use in the production of chemical and biological weapons programmes; • tried covertly to acquire technology and materials which could be used in the production of nuclear weapons; • sought significant quantities of uranium from Africa, despite having no active civil nuclear power programme that could require it; • recalled specialists to work on its nuclear programme; • illegally retained up to al-Hussein missiles, with a range of km, capable of carrying chemical or biological warheads; • started deploying its al-Samoud liquid propellant missile, and has used the absence of weapons inspectors to work on extending its range to at least km, which is beyond the limit of km imposed by the United Nations; • started producing the solid-propellant Ababil-, and is making efforts to extend its range to at least km, which is beyond the limit of km imposed by the United Nations; • constructed a new engine test stand for the development of missiles capable of reaching the UK Sovereign Base Areas in Cyprus and NATO members (Greece and Turkey), as well as all Iraq’s Gulf neighbours and Israel; • pursued illegal programmes to procure materials for use in its illegal development of long range missiles; • learnt lessons from previous UN weapons inspections and has already begun to conceal sensitive equipment and documentation in advance of the return of inspectors. . These judgements reflect the views of the Joint Intelligence Committee (JIC). More details on the judgements and on the development of the JIC’s assessments since are set out in Part of this paper.
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. Iraq’s weapons of mass destruction are in breach of international law. Under a series of UN Security Council Resolutions Iraq is obliged to destroy its holdings of these weapons under the supervision of UN inspectors. Part of the paper sets out the key UN Security Council Resolutions. It also summarises the history of the UN inspection regime and Iraq’s history of deception, intimidation and concealment in its dealings with the UN inspectors. . But the threat from Iraq does not depend solely on the capabilities we have described. It arises also because of the violent and aggressive nature of Saddam Hussein’s regime. His record of internal repression and external aggression gives rise to unique concerns about the threat he poses. The paper briefly outlines in Part Saddam’s rise to power, the nature of his regime and his history of regional aggression. Saddam’s human rights abuses are also catalogued, including his record of torture, mass arrests and summary executions. . The paper briefly sets out how Iraq is able to finance its weapons programme. Drawing on illicit earnings generated outside UN control, Iraq generated illegal income of some $ billion in .
Part One: Iraq’s Chemical, Biological, Nuclear and Ballistic Missile Programmes CHAPTER : THE ROLE OF INTELLIGENCE . Since UN inspectors were withdrawn from Iraq in , there has been little overt information on Iraq’s chemical, biological, nuclear and ballistic missile programmes. Much of the publicly available information about Iraqi capabilities and intentions is dated. But we also have available a range of secret intelligence about these programmes and Saddam Hussein’s intentions. This comes principally from the United Kingdom’s intelligence and analysis agencies— the Secret Intelligence Service (SIS), the Government Communications Headquarters (GCHQ), the Security Service, and the Defence Intelligence Staff (DIS). We also have access to intelligence from close allies. . Intelligence rarely offers a complete account of activities which are designed to remain concealed. The nature of Saddam’s regime makes Iraq a difficult target for the intelligence services. Intelligence, however, has provided important insights into Iraqi programmes and Iraqi military thinking. Taken together with what is already known from other sources, this intelligence builds our understanding of Iraq’s capabilities and adds significantly to the analysis already in the public domain. But intelligence sources need to be protected, and this limits the detail that can be made available. . Iraq’s capabilities have been regularly reviewed by the Joint Intelligence Committee (JIC), which has provided advice to the Prime Minister and his senior colleagues on the developing assessment, drawing on all available sources. Part of this paper includes some of the most significant views reached by the JIC between and .
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CHAPTER IRAQ’S PROGRAMMES: – . Iraq has been involved in chemical and biological warfare research for over years. Its chemical warfare research started in at a small, well guarded site at Rashad to the north east of Baghdad. Research was conducted there on a number of chemical agents including mustard gas, CS and tabun. Later, in a dedicated organisation called al-Hasan Ibn al-Haitham was established. In the late s plans were made to build a large research and commercial-scale production facility in the desert some km north west of Baghdad under the cover of Project . This was to become Muthanna State Establishment, also known as al-Muthanna, and operated under the front name of Iraq’s State Establishment for Pesticide Production. It became operational in –. It had five research and development sections, each tasked to pursue different programmes. In addition, the al-Muthanna site was the main chemical agent production facility, and it also took the lead in weaponising chemical and biological agents including all aspects of weapon development and testing, in association with the military. According to information, subsequently supplied by the Iraqis, the total production capacity in was , tonnes of agent per annum, but we assess it could have been higher. Al-Muthanna was supported by three separate storage and precursor production facilities known as Fallujah , and near Habbaniyah, north west of Baghdad, parts of which were not completed before they were heavily bombed in the Gulf War. . Iraq started biological warfare research in the mid-s. After small-scale research, a purpose-built research and development facility was authorised at al-Salman, also known as Salman Pak. This is surrounded on three sides by the Tigris river and situated some km south of Baghdad. Although some progress was made in biological weapons research at this early stage, Iraq decided to concentrate on developing chemical agents and their delivery systems at alMuthanna. With the outbreak of the Iran–Iraq War, in the early s, the biological weapons programme was revived. The appointment of Dr Rihab Taha in , to head a small biological weapons research team at al-Muthanna, helped to develop the programme. At about the same time plans were made to develop the Salman Pak site into a secure biological warfare research facility. Dr Taha continued to work with her team at al-Muthanna until when it moved to Salman Pak, which was under the control of the Directorate of General Intelligence. Significant resources were provided for the programme, including the construction of a dedicated production facility (Project ) at al-Hakam. Agent production began in and weaponisation testing and later filling of munitions was conducted in association with the staff at Muthanna State Establishment. From mid, other civilian facilities were taken over and some adapted for use in the production and research and development of biological agents. These included: • al-Dawrah Foot and Mouth Vaccine Institute which produced botulinum toxin and conducted virus research. There is some intelligence to suggest that work was also conducted on anthrax; • al-Fudaliyah Agriculture and Water Research Centre where Iraq admitted it undertook aflatoxin production and genetic engineering;
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• Amariyah Sera and Vaccine Institute which was used for the storage of biological agent seed stocks and was involved in genetic engineering. . By the time of the Gulf War Iraq was producing very large quantities of chemical and biological agents. From a series of Iraqi declarations to the UN during the s we know that by they had produced at least: • , litres of botulinum toxin, , litres of anthrax, , litres of aflatoxin and were working on a number of other agents; • , tonnes of mustard gas, tonnes of tabun, tonnes of sarin and cyclosarin, and . tonnes of VX. . Iraq’s nuclear programme was established under the Iraqi Atomic Energy Commission in the s. Under a nuclear co-operation agreement signed with the Soviet Union in , a nuclear research centre, equipped with a research reactor, was built at Tuwaitha, the main Iraqi nuclear research centre. The research reactor worked up to . The surge in Iraqi oil revenues in the early s supported an expansion of the research programme. This was bolstered in the mid-s by the acquisition of two research reactors powered by highly enriched uranium fuel and equipment for fuel fabrication and handling. By the end of Iraq was self-sufficient in uranium ore. One of the reactors was destroyed in an Israeli air attack in June shortly before it was to become operational; the other was never completed. . By the mid-s the deterioration of Iraq’s position in the war with Iran prompted renewed interest in the military use of nuclear technology. Additional resources were put into developing technologies to enrich uranium as fissile material (material that makes up the core of a nuclear weapon) for use in nuclear weapons. Enriched uranium was preferred because it could be more easily produced covertly than the alternative, plutonium. Iraq followed parallel programmes to produce highly enriched uranium (HEU), electromagnetic isotope separation (EMIS) and gas centrifuge enrichment. By one EMIS enrichment facility was nearing completion and another was under construction. However, Iraq never succeeded in its EMIS technology and the programme had been dropped by . Iraq decided to concentrate on gas centrifuges as the means for producing the necessary fissile material. Centrifuge facilities were also under construction, but the centrifuge design was still being developed. In August Iraq instigated a crash programme to develop a single nuclear weapon within a year. This programme envisaged the rapid development of a small machine gas centrifuge cascade to produce weapons-grade HEU using fuel from the Soviet research reactor, which was already substantially enriched, and unused fuel from the reactor bombed by the Israelis. By the time of the Gulf War, the crash programme had made little progress. . Iraq’s declared aim was to produce a missile warhead with a -kiloton yield and weapons designs were produced for the simplest implosion weapons. These were similar to the device used at Nagasaki in . Iraq was also working on more advanced concepts. By the programme was supported by a large body of Iraqi nuclear expertise, programme documentation and databases and manufacturing infrastructure. The International Atomic Energy Agency (IAEA) reported that Iraq had: • experimented with high explosives to produce implosive shock waves; • invested significant effort to understand the various options for neutron initiators; • made significant progress in developing capabilities for the production, casting and machining of uranium metal.
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. Prior to the Gulf War, Iraq had a well-developed ballistic missile industry. Many of the missiles fired in the Gulf War were an Iraqi modified version of the SCUD missile, the al-Hussein, with an extended range of km. Iraq had about imported SCUD-type missiles prior to the Gulf War plus an unknown number of indigenously produced engines and components. Iraq was working on other stretched SCUD variants, such as the al-Abbas, which had a range of km. Iraq was also seeking to reverse-engineer the SCUD engine with a view to producing new missiles. Recent intelligence indicates that they may have succeeded at that time. In particular, Iraq had plans for a new SCUD-derived missile with a range of km. Iraq also conducted a partial flight test of a multistage satellite launch vehicle based on SCUD technology, known as the al-Abid. Also during this period, Iraq was developing the Badr-, a –km range twostage solid propellant missile (based on the Iraqi part of the s CONDOR- programme run in co-operation with Argentina and Egypt). There were plans for –km range solid propellant follow-on systems. The use of chemical and biological weapons . Iraq had made frequent use of a variety of chemical weapons during the Iran–Iraq War. Many of the casualties are still in Iranian hospitals suffering from the long-term effects of numerous types of cancer and lung diseases. In Saddam also used mustard and nerve agents against Iraqi Kurds at Halabja in northern Iraq (see box on p). Estimates vary, but according to Human Rights Watch up to , people were killed. . Iraq used significant quantities of mustard, tabun and sarin during the war with Iran resulting in over , Iranian casualties. A month after the attack on Halabja, Iraqi troops used over tonnes of sarin against Iranian troops on the al-Fao peninsula. Over the next three months Iraqi troops used sarin and other nerve agents on Iranian troops causing extensive casualties. . From Iraqi declarations to the UN after the Gulf War we know that by Iraq had produced a variety of delivery means for chemical and biological agents including over , free-fall bombs and over , artillery rockets and shells. Iraq also admitted to the UN Special Commission (UNSCOM) that it had chemical and biological warheads available for its ballistic missiles.
The use of ballistic missiles . Iraq fired over SCUD-type missiles at Iran during the Iran–Iraq War at both civilian and military targets, and SCUD-type missiles during the Gulf War. The latter were targeted at Israel and Coalition forces stationed in the Gulf region. . At the end of the Gulf War the international community was determined that Iraq’s arsenal of chemical and biological weapons and ballistic missiles should be dismantled. The method chosen to achieve this was the establishment of UNSCOM to carry out intrusive inspections within Iraq and to eliminate its chemical and biological weapons and ballistic missiles with a range of over km. The IAEA was charged with the abolition of Iraq’s nuclear weapons programme. Between and UNSCOM succeeded in identifying and destroying very large quantities of chemical weapons and ballistic missiles as well as associated production facilities. The IAEA also destroyed the infrastructure for Iraq’s nuclear weapons programme and removed key nuclear materials.
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This was achieved despite a continuous and sophisticated programme of harassment, obstruction, deception and denial (see Part ). Because of this UNSCOM concluded by that it was unable to fulfil its mandate. The inspectors were withdrawn in December . . Based on the UNSCOM report to the UN Security Council in January and earlier UNSCOM reports, we assess that when the UN inspectors left Iraq they were unable to account for: • up to tonnes of bulk chemical warfare agent, including . tonnes of VX nerve agent; • up to , tonnes of precursor chemicals, including approximately tonnes which, in the Iraqi chemical warfare programme, were unique to the production of VX; • growth media procured for biological agent production (enough to produce over three times the , litres of anthrax spores Iraq admits to having manufactured); • over , special munitions for delivery of chemical and biological agents. . The departure of UNSCOM meant that the international community was unable to establish the truth behind these large discrepancies and greatly diminished its ability to monitor and assess Iraq’s continuing attempts to reconstitute its programmes.
CHAPTER THE CURRENT POSITION: – . This chapter sets out what we know of Saddam Hussein’s chemical, biological, nuclear and ballistic missile programmes, drawing on all the available evidence. While it takes account of the results from UN inspections and other publicly available information, it also draws heavily on the latest intelligence about Iraqi efforts to develop their programmes and capabilities since .
The main conclusions are that: • Iraq has a useable chemical and biological weapons capability, in breach of UNSCR , which has included recent production of chemical and biological agents; • Saddam continues to attach great importance to the possession of weapons of mass destruction and ballistic missiles which he regards as being the basis for Iraq’s regional power. He is determined to retain these capabilities; • Iraq can deliver chemical and biological agents using an extensive range of artillery shells, free-fall bombs, sprayers and ballistic missiles; • Iraq continues to work on developing nuclear weapons, in breach of its obligations under the Non-Proliferation Treaty and in breach of UNSCR . Uranium has been sought from Africa that has no civil nuclear application in Iraq; • Iraq possesses extended-range versions of the SCUD ballistic missile in breach of UNSCR which are capable of reaching Cyprus, Eastern Turkey, Tehran and Israel. It is also developing longer-range ballistic missiles; • Iraq’s current military planning specifically envisages the use of chemical and biological weapons; • Iraq’s military forces are able to use chemical and biological weapons, with command, control and logistical arrangements in place. The Iraqi military are able to deploy these weapons within minutes of a decision to do so; • Iraq has learnt lessons from previous UN weapons inspections and is already taking steps to conceal and disperse sensitive equipment and documentation in advance of the return of inspectors; • Iraq’s chemical, biological, nuclear and ballistic missiles programmes are well-funded.
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CHEMICAL AND BIOLOGICAL WEAPONS Joint Intelligence Committee (JIC) Assessment: – . Since the withdrawal of the inspectors the JIC has monitored evidence, including from secret intelligence, of continuing work on Iraqi offensive chemical and biological warfare capabilities. In the first half of the JIC noted intelligence on Iraqi attempts to procure dual-use chemicals and on the reconstruction of civil chemical production at sites formerly associated with the chemical warfare programme. Iraq had also been trying to procure dual-use materials and equipment which could be used for a biological warfare programme. Personnel known to have been connected to the biological warfare programme up to the Gulf War had been conducting research into pathogens. There was intelligence that Iraq was starting to produce biological warfare agents in mobile production facilities. Planning for the project had begun in under Dr Rihab Taha, known to have been a central player in the pre-Gulf War programme. The JIC concluded that Iraq had sufficient expertise, equipment and material to produce biological warfare agents within weeks using its legitimate bio-technology facilities. . In mid- the JIC assessed that Iraq retained some chemical warfare agents, precursors, production equipment and weapons from before the Gulf War. These stocks would enable Iraq to produce significant quantities of mustard gas within weeks and of nerve agent within months. The JIC concluded that intelligence on Iraqi former chemical and biological warfare facilities, their limited reconstruction and civil production pointed to a continuing research and development programme. These chemical and biological capabilities represented the most immediate threat from Iraqi weapons of mass destruction. Since Iraqi development of mass destruction weaponry had been helped by the absence of inspectors and the increase in illegal border trade, which was providing hard currency. . In the last six months the JIC has confirmed its earlier judgements on Iraqi chemical and biological warfare capabilities and assessed that Iraq has the means to deliver chemical and biological weapons.
Recent intelligence . Subsequently, intelligence has become available from reliable sources which complements and adds to previous intelligence and confirms the JIC assessment that Iraq has chemical and biological weapons. The intelligence also shows that the Iraqi leadership has been discussing a number of issues related to these weapons. This intelligence covers: • Confirmation that chemical and biological weapons play an important role in Iraqi military thinking: intelligence shows that Saddam attaches great importance to the possession of chemical and biological weapons which he regards as being the basis for Iraqi regional power. He believes that respect for Iraq rests on its possession of these weapons and the missiles capable of delivering them. Intelligence indicates that Saddam is determined to retain this capability and recognises that Iraqi political weight would be diminished if Iraq’s military power rested solely on its conventional military forces. • Iraqi attempts to retain its existing banned weapons systems: Iraq is already taking steps to prevent UN weapons inspectors finding evidence of its chemical and biological weapons programme.
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Intelligence indicates that Saddam has learnt lessons from previous weapons inspections, has identified possible weak points in the inspections process and knows how to exploit them. Sensitive equipment and papers can easily be concealed and in some cases this is already happening. The possession of mobile biological agent production facilities will also aid concealment Saddam is determined not to lose the capabilities that he has been able to develop further in the four years since inspectors left. • Saddam’s willingness to use chemical and biological weapons: intelligence indicates that as part of Iraq’s military planning Saddam is willing to use chemical and biological weapons, including against his own Shia population. Intelligence indicates that the Iraqi military are able to deploy chemical or biological weapons within minutes of an order to do so.
Chemical and biological agents: surviving stocks . When confronted with questions about the unaccounted stocks, Iraq has claimed repeatedly that if it had retained any chemical agents from before the Gulf War they would have deteriorated sufficiently to render them harmless. But Iraq has admitted to UNSCOM to having the knowledge and capability to add stabiliser to nerve agent and other chemical warfare agents which would prevent such decomposition. In UNSCOM also examined some munitions which had been filled with mustard gas prior to and found that they remained very toxic and showed little sign of deterioration. . Iraq has claimed that all its biological agents and weapons have been destroyed. No convincing proof of any kind has been produced to support this claim. In particular, Iraq could not explain large discrepancies between the amount of growth media (nutrients required for the specialised growth of agent) it procured before and the amounts of agent it admits to having manufactured. The discrepancy is enough to produce more than three times the amount of anthrax allegedly manufactured.
Chemical agent: production capabilities . Intelligence shows that Iraq has continued to produce chemical agent. During the Gulf War a number of facilities which intelligence reporting indicated were directly or indirectly associated with Iraq’s chemical weapons effort were attacked and damaged. Following the ceasefire UNSCOM destroyed or rendered harmless facilities and equipment used in Iraq’s chemical weapons programme. Other equipment was released for civilian use either in industry or academic institutes, where it was tagged and regularly inspected and monitored, or else placed under camera monitoring, to ensure that it was not being misused. This monitoring ceased when UNSCOM withdrew from Iraq in . However, capabilities remain and, although the main chemical weapon production facility at al-Muthanna was completely destroyed by UNSCOM and has not been rebuilt, other plants formerly associated with the chemical warfare programme have been rebuilt. These include the chlorine and phenol plant at Fallujah near Habbaniyah. In addition to their civilian uses, chlorine and phenol are used for precursor chemicals which contribute to the production of chemical agents. . Other dual-use facilities, which are capable of being used to support the production of chemical agent and precursors, have been rebuilt and re-equipped.
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New chemical facilities have been built, some with illegal foreign assistance, and are probably fully operational or ready for production. These include the Ibn Sina Company at Tarmiyah (see figure ), which is a chemical research centre. It undertakes research, development and production of chemicals previously imported but not now available and which are needed for Iraq’s civil industry. The Director General of the research centre is Hikmat Na’im al-Jalu who prior to the Gulf War worked in Iraq’s nuclear weapons programme and after the war was responsible for preserving Iraq’s chemical expertise. . Parts of the al-Qa’qa’ chemical complex damaged in the Gulf War have also been repaired and are operational. Of particular concern are elements of the phosgene production plant at al-Qa’qa’. These were severely damaged during the Gulf War, and dismantled under UNSCOM supervision, but have since been rebuilt. While phosgene does have industrial uses it can also be used by itself as a chemical agent or as a precursor for nerve agent. . Iraq has retained the expertise for chemical warfare research, agent production and weaponisation. Most of the personnel previously involved in the programme remain in country. While UNSCOM found a number of technical manuals (so called ‘cook books’) for the production of chemical agents and critical precursors, Iraq’s claim to have unilaterally destroyed the bulk of the documentation cannot be confirmed and is almost certainly untrue. Recent intelligence indicates that Iraq is still discussing methods of concealing such documentation in order to ensure that it is not discovered by any future UN inspections.
Biological agent: production capabilities . We know from intelligence that Iraq has continued to produce biological warfare agents. As with some chemical equipment, UNSCOM only destroyed equipment that could be directly linked to biological weapons production. Iraq also has its own engineering capability to design and construct biological agent associated fermenters, centrifuges, sprayer dryers and other equipment and is judged to be self-sufficient in the technology required to produce biological weapons. The Problem of Dual-Use Facilities Almost all components and supplies used in weapons of mass destruction and ballistic missile programmes are dual-use. For example, any major petrochemical or biotech industry, as well as public health organisations, will have legitimate need for most materials and equipment required to manufacture chemical and biological weapons. Without UN weapons inspectors it is very difficult therefore to be sure about the true nature of many of Iraq’s facilities. For example, Iraq has built a large new chemical complex, Project Baiji, in the desert in north west Iraq at al-Sharqat (see figure ). This site is a former uranium enrichment facility which was damaged during the Gulf War and rendered harmless under supervision of the IAEA. Part of the site has been rebuilt, with work starting in , as a chemical production complex. Despite the site being far away from populated areas it is surrounded by a high wall with watch towers and guarded by armed guards. Intelligence reports indicate that it will produce nitric acid which can be used in explosives, missile fuel and in the purification of uranium.
Biological agent: production capabilities . We know from intelligence that Iraq has continued to produce biological warfare agents.
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As with some chemical equipment, UNSCOM only destroyed equipment that could be directly linked to biological weapons production. Iraq also has its own engineering capability to design and construct biological agent associated fermenters, centrifuges, sprayer dryers and other equipment and is judged to be self-sufficient in the technology required to produce biological weapons. The experienced personnel who were active in the programme have largely remained in the country. Some dual-use equipment has also been purchased, but without monitoring by UN inspectors Iraq could have diverted it to their biological weapons programme. This newly purchased equipment and other equipment previously subject to monitoring could be used in a resurgent biological warfare programme.
Facilities of concern include: • the Castor Oil Production Plant at Fallujah: this was damaged in UK/US air attacks in (Operation Desert Fox) but has been rebuilt. The residue from the castor bean pulp can be used in the production of the biological agent ricin; • the al-Dawrah Foot and Mouth Disease Vaccine Institute: which was involved in biological agent production and research before the Gulf War; • the Amariyah Sera and Vaccine Plant at Abu Ghraib: UNSCOM established that this facility was used to store biological agents, seed stocks and conduct biological warfare associated genetic research prior to the Gulf War. It has now expanded its storage capacity. . UNSCOM established that Iraq considered the use of mobile biological agent production facilities. In the past two years evidence from defectors has indicated the existence of such facilities. Recent intelligence confirms that the Iraqi military have developed mobile facilities. These would help Iraq conceal and protect biological agent production from military attack or UN inspection.
Chemical and biological agents: delivery means . Iraq has a variety of delivery means available for both chemical and biological agents. These include: • free-fall bombs: Iraq acknowledged to UNSCOM the deployment to two sites of freefall bombs filled with biological agent during –. These bombs were filled with anthrax, botulinum toxin and aflatoxin. Iraq also acknowledged possession of four types of aerial bomb with various chemical agent fills including sulphur mustard, tabun, sarin and cyclosarin; • artillery shells and rockets: Iraq made extensive use of artillery munitions filled with chemical agents during the Iran–Iraq War. Mortars can also be used for chemical agent delivery. Iraq is known to have tested the use of shells and rockets filled with biological agents. Over , artillery munitions remain unaccounted for by UNSCOM; • helicopter and aircraft borne sprayers: Iraq carried out studies into aerosol n of biological agent using these platforms prior to . UNSCOM was unable to account for many of these devices. It is probable that Iraq retains a capability for aerosol dispersal of both chemical and biological agent over a large area; • al-Hussein ballistic missiles (range km): Iraq told UNSCOM that it filled warheads with anthrax, botulinum toxin and aflatoxin. Iraq also developed chemical agent warheads for al-Hussein. Iraq admitted to producing chemical warheads for al-Hussein which were intended for the delivery of a mixture of sarin and cyclosarin.
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However, technical analysis of warhead remnants has shown traces of VX degradation product which indicate that some additional warheads were made and filled with VX; • al-Samoud/Ababil- ballistic missiles (range km plus): it is unclear if chemical and biological warheads have been developed for these systems, but given the Iraqi experience on other missile systems, we judge that Iraq has the technical expertise for doing so; • L- remotely piloted vehicle programme. We know from intelligence that Iraq has attempted to modify the L- jet trainer to allow it to be used as an Unmanned Aerial Vehicle (UAV) which is potentially capable of delivering chemical and biological agents over a large area.
Chemical and biological warfare: command and control . The authority to use chemical and biological weapons ultimately resides with Saddam but intelligence indicates that he may have also delegated this authority to his son Qusai. Special Security Organisation (SSO) and Special Republican Guard (SRG) units would be involved in the movement of any chemical and biological weapons to military units. The Iraqi military holds artillery and missile systems at Corps level throughout the Armed Forces and conducts regular training with them. The Directorate of Rocket Forces has operational control of strategic missile systems and some Multiple Launcher Rocket Systems. Chemical and biological weapons: summary . Intelligence shows that Iraq has covert chemical and biological weapons programmes, in breach of UN Security Council Resolution and has continued to produce chemical and biological agents. Iraq has:
• chemical and biological agents and weapons available, both from pre-Gulf War stocks and more recent production; • the capability to produce the chemical agents mustard gas, tabun, sarin, cyclosarin, and VX capable of producing mass casualties; • a biological agent production capability and can produce at least anthrax, botulinum toxin, aflatoxin and ricin. Iraq has also developed mobile facilities to produce biological agents; • a variety of delivery means available; • military forces, which maintain the capability to use these weapons with command, control and logistical arrangements in place. NUCLEAR WEAPONS Joint Intelligence Committee (JIC) Assessments: – . Since the JIC has monitored Iraq’s attempts to reconstitute its nuclear weapons programme. In mid- the JIC assessed that Iraq had continued its nuclear research after . The JIC drew attention to intelligence that Iraq had recalled its nuclear scientists to the programme in . Since Iraq hadbeen trying to procure items that could be for use in the construction of centrifuges for the enrichment of uranium.
Iraqi nuclear weapons expertise . Paragraphs and of Chapter describe the Iraqi nuclear weapons programme prior to the Gulf War. It is clear from IAEA inspections and Iraq’s own declarations that by
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considerable progress had been made in both developing methods to produce fissile material and in weapons design. The IAEA dismantled the physical infrastructure of the Iraqi nuclear weapons programme, including the dedicated facilities and equipment for uranium separation and enrichment, and for weapon development and production, and removed the remaining highly enriched uranium. But Iraq retained, and retains, many of its experienced nuclear scientists and technicians who are specialised in the production of fissile material and weapons design. Intelligence indicates that Iraq also retains the accompanying programme documentation and data. . Intelligence shows that the present Iraqi programme is almost certainly seeking an indigenous ability to enrich uranium to the level needed for a nuclear weapon. It indicates that the approach is based on gas centrifuge uranium enrichment, one of the routes Iraq was following for producing fissile material before the Gulf War. But Iraq needs certain key equipment, including gas centrifuge components and components for the production of fissile material before a nuclear bomb could be developed. . Following the departure of weapons inspectors in there has been an accumulation of intelligence indicating that Iraq is making concerted covert efforts to acquire dual-use technology and materials with nuclear applications. Iraq’s known holdings of processed uranium are under IAEA supervision. But there is intelligence that Iraq has sought the supply of significant quantities of uranium from Africa. Iraq has no active civil nuclear power programme or nuclear power plants and therefore has no legitimate reason to acquire uranium. . Intelligence shows that other important procurement activity since has included attempts to purchase: • vacuum pumps which could be used to create and maintain pressures in a gas centrifuge cascade needed to enrich uranium; • an entire magnet production line of the correct specification for use in the motors and top bearings of gas centrifuges. It appears that Iraq is attempting to acquire a capability to produce them on its own rather than rely on foreign procurement; • Anhydrous Hydrogen Fluoride (AHF) and fluorine gas. AHF is commonly used in the petrochemical industry and Iraq frequently imports significant amounts, but it is also used in the process of converting uranium into uranium hexafluoride for use in gas centrifuge cascades; • one large filament winding machine which could be used to manufacture carbon fibre gas centrifuge rotors; • a large balancing machine which could be used in initial centrifuge balancing work. . Iraq has also made repeated attempts covertly to acquire a very large quantity (, or more) of specialised aluminium tubes. The specialised aluminium in question is subject to international export controls because of its potential application in the construction of gas centrifuges used to enrich uranium, although there is no definitive intelligence that it is destined for a nuclear programme.
Nuclear weapons: timelines . In early , the JIC assessed that UN sanctions on Iraq were hindering the import of crucial goods for the production of fissile material. The JIC judged that while sanctions remain effective Iraq would not be able to produce a nuclear weapon. If they were removed or prove ineffective, it would take Iraq at least five years to produce sufficient fissile material for a weapon indigenously.
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However, we know that Iraq retains expertise and design data relating to nuclear weapons. We therefore judge that if Iraq obtained fissile material and other essential components from foreign sources the timeline for production of a nuclear weapon would be shortened and Iraq could produce a nuclear weapon in between one and two years.
BALLISTIC MISSILES Joint Intelligence Committee (JIC) Assessment: – . In mid- the JIC drew attention to what it described as a ‘step-change’ in progress on the Iraqi missile programme over the previous two years. It was clear from intelligence that the range of Iraqi missiles which was permitted by the UN and supposedly limited to kms was being extended and that work was under way on larger engines for longer-range missiles. . In early the JIC concluded that Iraq had begun to develop missiles with a range of over ,kms. The JIC assessed that if sanctions remained effective the Iraqis would not be able to produce such a missile before . Sanctions and the earlier work of the inspectors had caused significant problems for Iraqi missile development. In the previous six months Iraqi foreign procurement efforts for the missile programme had been bolder. The JIC also assessed that Iraq retained up to al-Hussein missiles from before the Gulf War.
The Iraqi ballistic missile programme since . Since the Gulf War, Iraq has been openly developing two short-range missiles up to a range of km, which are permitted under UN Security Council Resolution . The al-Samoud liquid propellant missile has been extensively tested and is being deployed to military units. Intelligence indicates that at least have been produced. Intelligence also indicates that Iraq has worked on extending its range to at least km in breach of UN Security Resolution . Production of the solid propellant Ababil- (Figure ) is also underway, probably as an unguided rocket at this stage. There are also plans to extend its range to at least km. Compared to liquid propellant missiles, those powered by solid propellant offer greater ease of storage, handling and mobility. They are also quicker to take into and out of action and can stay at a high state of readiness for longer periods. . According to intelligence, Iraq has retained up to al-Hussein missiles (Figure ), in breach of UN Security Council Resolution . These missiles were either hidden from the UN as complete systems, or re-assembled using illegally retained engines and other components. We judge that the engineering expertise available would allow these missiles to be maintained effectively, although the fact that at least some require re-assembly makes it difficult to judge exactly how many could be available for use. They could be used with conventional, chemical or biological warheads and, with a range of up to km, are capable of reaching a number of countries in the region including Cyprus, Turkey, Saudi Arabia, Iran and Israel. . Intelligence has confirmed that Iraq wants to extend the range of its missile systems to over km, enabling it to threaten other regional neighbours.
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This work began in , although efforts to regenerate the long-range ballistic missile programme probably began in . Iraq’s missile programmes employ hundreds of people. Satellite imagery (Figure ) has shown a new engine test stand being constructed (A), which is larger than the current one used for al-Samoud (B), and that formerly used for testing SCUD engines (C) which was dismantled under UNSCOM supervision. This new stand will be capable of testing engines for medium range ballistic missiles (MRBMs) with ranges over km, which are not permitted under UN Security Council Resolution . Such a facility would not be needed for systems that fall within the UN permitted range of km. The Iraqis have recently taken measures to conceal activities at this site. Iraq is also working to obtain improved guidance technology to increase missile accuracy. . The success of UN restrictions means the development of new longer-range missiles is likely to be a slow process. These restrictions impact particularly on the: • availability of foreign expertise; • conduct of test flights to ranges above km; • acquisition of guidance and control technology. . Saddam remains committed to developing longer-range missiles. Even if sanctions remain effective, Iraq might achieve a missile capability of over km within years (Figure shows the range of Iraq’s various missiles). . Iraq has managed to rebuild much of the missile production infrastructure destroyed in the Gulf War and in Operation Desert Fox in (see Part ). New missile-related infrastructure is also under construction. Some aspects of this, including rocket propellant mixing and casting facilities at the al-Mamoun Plant, appear to replicate those linked to the prohibited Badr- programme (with a planned range of –km) which were destroyed in the Gulf War or dismantled by UNSCOM. A new plant at al-Mamoun for indigenously producing ammonium perchlorate, which is a key ingredient in the production of solid propellant rocket motors, has also been constructed. This has been provided illicitly by NEC Engineers Private Limited, an Indian chemical engineering firm with extensive links in Iraq, including to other suspect facilities such as the Fallujah chlorine plant. After an extensive investigation, the Indian authorities have recently suspended its export licence, although other individuals and companies are still illicitly procuring for Iraq. . Despite a UN embargo, Iraq has also made concerted efforts to acquire additional production technology, including machine tools and raw materials, in breach of UN Security Council Resolution . The embargo has succeeded in blocking many of these attempts, such as requests to buy magnesium powder and ammonium chloride. But we know from intelligence that some items have found their way to the Iraqi ballistic missile programme. More will inevitably continue to do so. Intelligence makes it clear that Iraqi procurement agents and front companies in third countries are seeking illicitly to acquire propellant chemicals for Iraq’s ballistic missiles. This includes production level quantities of near complete sets of solid propellant rocket motor ingredients such as aluminium powder, ammonium perchlorate and hydroxyl terminated polybutadiene. There have also been attempts to acquire large quantities of liquid propellant chemicals such as Unsymmetrical Dimethylhydrazine (UDMH) and diethylenetriamene. We judge
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these are intended to support production and deployment of the al-Samoud and development of longer-range systems. . The UN has sought to restrict Iraq’s ability to generate funds for its chemical, biological and other military programmes. For example, Iraq earns money legally under the UN Oil For Food Programme (OFF) established by UNSCR , whereby the proceeds of oil sold through the UN are used to buy humanitarian supplies for Iraq. This money remains under UN control and cannot be used for military procurement. However, the Iraqi regime continues to generate income outside UN control either in the form of hard currency or barter goods (which in turn means existing Iraqi funds are freed up to be spent on other things). . These illicit earnings go to the Iraqi regime. They are used for building new palaces, as well as purchasing luxury goods and other civilian goods outside the OFF programme. Some of these funds are also used by Saddam Hussein to maintain his armed forces, and to develop or acquire military equipment, including for chemical, biological, nuclear and ballistic missile programmes. We do not know what proportion of these funds is used in this way. But we have seen no evidence that Iraqi attempts to develop its weapons of mass destruction and its ballistic missile programme, for example through covert procurement of equipment from abroad, has been inhibited in any way by lack of funds. The steady increase over the last three years in the availability of funds will enable Saddam to progress the programmes faster.
UN Sanctions UN sanctions on Iraq prohibit all imports to and exports from Iraq. The UN must clear any goods entering or leaving. The UN also administers the Oil for Food (OFF) programme. Any imports entering Iraq under the OFF programme are checked against the Goods Review List for potential military or weapons of mass destruction utility. . These illicit earnings go to the Iraqi regime. They are used for building new palaces, as well as purchasing luxury goods and other civilian goods outside the OFF programme. Some of these funds are also used by Saddam Hussein to maintain his armed forces, and to develop or acquire military equipment, including for chemical, biological, nuclear and ballistic missile programmes. We do not know what proportion of these funds is used in this way. But we have seen no evidence that Iraqi attempts to develop its weapons of mass destruction and its ballistic missile programme, for example through covert procurement of equipment from abroad, has been inhibited in any way by lack of funds. The steady increase over the last three years in the availability of funds will enable Saddam to progress the programmes faster.
Part Two: History of UN Weapons Inspections . During the s, beginning in April immediately after the end of the Gulf War, the UN Security Council passed a series of resolutions [see box] establishing the authority of UNSCOM and the IAEA to carry out the work of dismantling Iraq’s arsenal of chemical, biological and nuclear weapons programmes and long-range ballistic missiles. UN Security Council Resolutions relating to Weapons of Mass Destruction
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• UNSCR , April created the UN Special Commission (UNSCOM) and required Iraq to accept, unconditionally, ‘the destruction, removal or rendering harmless, under international supervision’ of its chemical and biological weapons, ballistic missiles with a range greater than km, and their associated programmes, stocks, components, research and facilities. The International Atomic Energy Agency (IAEA) was charged with abolition of Iraq’s nuclear weapons programme. UNSCOM and the IAEA must report that their mission has been achieved before the Security Council can end sanctions. They have not yet done so. • UNSCR , August , stated that Iraq must provide full, final and complete disclosure of all its programmes for weapons of mass destruction and provide unconditional and unrestricted access to UN inspectors. For over a decade Iraq has been in breach of this resolution. Iraq must also cease all nuclear activities of any kind other than civil use of isotopes. • UNSCR , October approved plans prepared by UNSCOM and IAEA for the ongoing monitoring and verification (OMV) arrangements to implement UNSCR . Iraq did not accede to this until November . OMV was conducted from April to December , when the UN left Iraq. • UNSCR , March stated that Iraq must declare the shipment of dual-use goods which could be used for mass destruction weaponry programmes. These resolutions were passed under Chapter VII of the UN Charter which is the instrument that allows the UN Security Council to authorise the use of military force to enforce its resolutions. . As outlined in UNSCR , Iraq’s chemical, biological and nuclear weapons programmes were also a breach of Iraq’s commitments under: • The Geneva Protocol which bans the use of chemical and biological weapons; • the Biological and Toxin Weapons Convention which bans the development, production, stockpiling, acquisition or retention of biological weapons; • the Nuclear Non-Proliferation Treaty which prohibits Iraq from manufacturing or otherwise acquiring nuclear weapons. . UNSCR obliged Iraq to provide declarations on all aspects of its weapons of mass destruction programmes within days and accept the destruction, removal or rendering harmless under international supervision of its chemical, biological and nuclear programmes, and all ballistic missiles with a range beyond km. Iraq did not make a satisfactory declaration within the specified time-frame. Iraq accepted the UNSCRs and agreed to co-operate with UNSCOM. The history of the UN weapons inspections was characterised by persistent Iraqi obstruction.
Iraqi Non-Co-operation with the Inspectors . The former Chairman of UNSCOM, Richard Butler, reported to the UN Security Council in January that in a decision was taken by a highlevel Iraqi Government committee to provide inspectors with only a portion of its proscribed weapons, components, production capabilities and stocks. UNSCOM concluded that Iraqi policy was based on the following actions: • to provide only a portion of extant weapons stocks, releasing for destruction only those that were least modern; • to retain the production capability and documentation necessary to revive programmes when possible; • to conceal the full extent of its chemical weapons programme, including the VX nerve agent project; to conceal the number and type of chemical and biological warheads for proscribed long-range missiles; • and to conceal the existence of its biological weapons programme.
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. In December Richard Butler reported to the UN Security Council that Iraq had created a new category of sites, ‘Presidential’ and ‘sovereign’, from which it claimed that UNSCOM inspectors would henceforth be barred. The terms of the ceasefire in foresaw no such limitation. However, Iraq consistently refused to allow UNSCOM inspectors access to any of these eight Presidential sites. Many of these so-called ‘palaces’ are in fact large compounds which are an integral part of Iraqi counter-measures designed to hide weapons material (see photograph on p). UNSCOM and the IAEA were given the remit to designate any locations for inspection at any time, review any document and interview any scientist, technician or other individual and seize any prohibited items for destruction.
Iraq’s policy of deception Iraq has admitted to UNSCOM to having a large, effective, system for hiding proscribed material including documentation, components, production equipment and possibly biological and chemical agents and weapons from the UN. Shortly after the adoption of UNSCR in April , an Administrative Security Committee (ASC) was formed with responsibility for advising Saddam on the information which could be released to UNSCOM and the IAEA. The Committee consisted of senior Military Industrial Commission (MIC) scientists from all of Iraq’s weapons of mass destruction programmes. The Higher Security Committee (HSC) of the Presidential Office was in overall command of deception operations. The system was directed from the very highest political levels within the Presidential Office and involved, if not Saddam himself, his youngest son, Qusai. The system for hiding proscribed material relies on high mobility and good command and control. It uses lorries to move items at short notice and most hide sites appear to be located close to good road links and telecommunications. The Baghdad area was particularly favoured. In addition to active measures to hide material from the UN, Iraq has attempted to monitor, delay and collect intelligence on UN operations to aid its overall deception plan.
Intimidation . Once inspectors had arrived in Iraq, it quickly became apparent that the Iraqis would resort to a range of measures (including physical threats and psychological intimidation of inspectors) to prevent UNSCOM and the IAEA from fulfilling their mandate. . In response to such incidents, the President of the Security Council issued frequent statements calling on Iraq to comply with its disarmament and monitoring obligations.
Obstruction . Iraq denied that it had pursued a biological weapons programme until July . In July , Iraq acknowledged that biological agents had been produced on an industrial scale at al-Hakam. Following the defection in August of Hussein Kamil, Saddam’s son-in-law and former Director of the Military Industrialisation Commission, Iraq released over two million documents relating to its mass destruction weaponry programmes and acknowledged that it had pursued a biological programme that led to the deployment of actual weapons. Iraq admitted producing biological weapons with a reserve of agent to fill considerably more.
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. Iraq tried to obstruct UNSCOM’s efforts to investigate the scale of its biological weapons programme. It created forged documents to account for bacterial growth media, imported in the late s, specifically for the production of anthrax, botulinum toxin and probably plague. The documents were created to indicate that the material had been imported by the State Company for Drugs and Medical Appliances Marketing for use in hospitals and distribution to local authorities. Iraq also censored documents and scientific papers provided to the first UN inspection team, removing all references to key individuals, weapons and industrial production of agents.
Iraqi obstruction of UN weapons inspection teams • firing warning shots in the air to prevent IAEA inspectors from intercepting nuclear related equipment (June ); • keeping IAEA inspectors in a car park for days and refusing to allow them to leave with incriminating documents on Iraq’s nuclear weapons programme (September ); • announcing that UN monitoring and verification plans were ‘unlawful’ (October ); • refusing UNSCOM inspectors access to the Iraqi Ministry of Agriculture. Threats were made to inspectors who remained on watch outside the building. The inspection team had reliable evidence that the site contained archives related to proscribed activities; • in – Iraq objected to UNSCOM using its own helicopters and choosing its own flight plans. In January it refused to allow UNSCOM the use of its own aircraft to fly into Iraq; • refusing to allow UNSCOM to install remote-controlled monitoring cameras at two key missile sites (June–July ); • repeatedly denying access to inspection teams (–December ); • interfering with UNSCOM’s helicopter operations, threatening the safety of the aircraft and their crews (June ); • demanding the end of U overflights and the withdrawal of US UNSCOM staff (October ); • destroying documentary evidence of programmes for weapons of mass destruction (September ).
Inspection of Iraq’s biological weapons programme In the course of the first biological weapons inspection in August , Iraq claimed that it had merely conducted a military biological research programme. At the site visited, al-Salman, Iraq had removed equipment, documents and even entire buildings. Later in the year, during a visit to the al-Hakam site, Iraq declared to UNSCOM inspectors that the facility was used as a factory to produce proteins derived from yeast to feed animals. Inspectors subsequently discovered that the plant was a central site for the production of anthrax spores and botulinum toxin for weapons. The factory had also been sanitised by Iraqi officials to deceive inspectors. Iraq continued to develop the al-Hakam site into the s, misleading UNSCOM about its true purpose. Another key site, the Foot and Mouth Disease Vaccine Institute at al-Dawrah which produced botulinum toxin and probably anthrax was not divulged as part of the programme. Five years later, after intense pressure, Iraq acknowledged that tens of tonnes of bacteriological warfare agent had been produced there and at al-Hakam. As documents recovered in August were assessed, it became apparent that the full disclosure required by the UN was far from complete.
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Successive inspection teams went to Iraq to try to gain greater understanding of the programme and to obtain credible supporting evidence. In July Iraq refused to discuss its past programme and doctrine forcing the team to withdraw in protest. Monitoring teams were at the same time finding undisclosed equipment and materials associated with the past programme. In response, Iraq grudgingly provided successive disclosures of its programme which were judged by UNSCOM and specially convened international panels to be technically inadequate. In late Iraq acknowledged weapons testing the biological agent ricin, but did not provide production information. Two years later, in early , UNSCOM discovered evidence that Iraq had produced ricin. . Iraq has yet to provide any documents concerning production of agent and subsequent weaponisation. Iraq destroyed, unilaterally and illegally, some biological weapons in and making accounting for these weapons impossible. In addition, Iraq cleansed a key site at al-Muthanna, its main research and development, production and weaponisation facility for chemical warfare agents, of all evidence of a biological programme in the toxicology department, the animal-house and weapons filling station. . Iraq refused to elaborate further on the programme during inspections in and , confining discussion to previous topics. In July Tariq Aziz personally intervened in the inspection process stating that the biological programme was more secret and more closed than other mass destruction weaponry programmes. He also played down the significance of the programme. Iraq has presented the biological weapons programme as the personal undertaking of a few misguided scientists. . At the same time, Iraq tried to maintain its nuclear weapons programme via a concerted campaign to deceive IAEA inspectors. In the IAEA Director General stated that the IAEA was ‘severely hampered by Iraq’s persistence in a policy of concealment and understatement of the programme’s scope’.
Inspection achievements . Despite the conduct of the Iraqi authorities towards them, both UNSCOM and the IAEA Action Team have valuable records of achievement in discovering and exposing Iraq’s biological weapons programme and destroying very large quantities of chemical weapons stocks and missiles as well as the infrastructure for Iraq’s nuclear weapons programme. . Despite UNSCOM’s efforts, following the effective ejection of UN inspectors in December there remained a series of significant unresolved disarmament issues. In summarising the situation in a report to the UN Security Council, the UNSCOM Chairman, Richard Butler, indicated that: • contrary to the requirement that destruction be conducted under international supervision ‘Iraq undertook extensive, unilateral and secret destruction of large quantities of proscribed weapons and items’; • and Iraq ‘also pursued a practice of concealment of proscribed items, including weapons, and a cover up of its activities in contravention of Council resolutions’. Overall, Richard Butler declared that obstructive Iraqi activity had had ‘a significant impact upon the Commission’s disarmament work’.
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Withdrawal of the inspectors . By the end of UNSCOM was in direct confrontation with the Iraqi Government which was refusing to co-operate. The US and the UK had made clear that anything short of full co-operation would make military action unavoidable. Richard Butler was requested to report to the UN Security Council in December and stated that, following a series of direct confrontations, coupled with the systematic refusal by Iraq to co-operate, UNSCOM was no longer able to perform its disarmament mandate. As a direct result on December the weapons inspectors were withdrawn. Operation Desert Fox was launched by the US and the UK a few hours afterwards.
Operation Desert Fox (– December ) Operation Desert Fox targeted industrial facilities related to Iraq’s ballistic missile programme and a suspect biological warfare facility as well as military airfields and sites used by Iraq’s security organisations which are involved in its weapons of mass destruction programmes. Key facilities associated with Saddam Hussein’s ballistic missile programme were significantly degraded.
UNSCOM and IAEA achievements UNSCOM surveyed sites in Iraq, carrying out separate inspections. Despite Iraqi obstruction and intimidation, UN inspectors uncovered details of chemical, biological, nuclear and ballistic missile programmes. Major UNSCOM/IAEA achievements included: • the destruction of , munitions for chemical weapons, , tonnes of chemical precursors and tonnes of chemical warfare agent; • the dismantling of Iraq’s prime chemical weapons development and production complex at al-Muthanna and a range of key production equipment; • the destruction of SCUD-type missiles, mobile launchers and sites, warheads filled with chemical agents, and conventional warheads; • the destruction of the al-Hakam biological weapons facility and a range of production equipment, seed stocks and growth media for biological weapons; • the discovery in of samples of indigenously-produced highly enriched uranium, forcing Iraq’s acknowledgement of uranium enrichment programmes and attempts to preserve key components of its prohibited nuclear weapons programme; • the removal and destruction of the infrastructure for the nuclear weapons programme, including the al-Athir weaponisation/testing facility. The situation since . There have been no UN-mandated weapons inspections in Iraq since . In an effort to enforce Iraqi compliance with its disarmament and monitoring obligations, the UN Security Council passed Resolution in December . This established the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) as a successor organisation to UNSCOM and called on Iraq to give UNMOVIC inspectors ‘immediate, unconditional and unrestricted access to any and all areas, facilities, equipment, records and means of transport’. It also set out the steps Iraq needed to take in return for the eventual suspension and lifting of sanctions. A key measure of Iraqi compliance would be full co-operation with UN inspectors, including unconditional, immediate and unrestricted access to any and all sites, personnel and documents.
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. For the past three years, Iraq has allowed the IAEA to carry out an annual inspection of a stockpile of nuclear material (depleted natural and low-enriched uranium). This has led some countries and western commentators to conclude erroneously that Iraq is meeting its nuclear disarmament and monitoring obligations. As the IAEA has pointed out in recent weeks, this annual inspection does ‘not serve as a substitute for the verification activities required by the relevant resolutions of the UN Security Council’. . Dr Hans Blix, the Executive Chairman of UNMOVIC, and Dr Mohammed El- Baradei, the Director General of the IAEA, have declared that in the absence of inspections it is impossible to verify Iraqi compliance with its UN disarmament and monitoring obligations. In April an independent UN panel of experts noted that ‘the longer inspection and monitoring activities remain suspended, the more difficult the comprehensive implementation of Security Council resolutions becomes, increasing the risk that Iraq might reconstitute its proscribed weapons programmes’. . The departure of the inspectors greatly diminished the ability of the international community to monitor and assess Iraq’s continuing attempts to reconstitute its chemical, biological, nuclear and ballistic missile programmes.
PART THREE: IRAQ UNDER SADDAM HUSSEIN Introduction . The Republic of Iraq is bounded by Turkey, Iran, Kuwait, Saudia Arabia, Jordan, Syria and the Persian Gulf. Its population of around million is ethnically and religiously diverse. Approximately % are Arabs. Sunni Muslims form around % of the Arab population and dominate the government. About % of Iraqis are Shias and % are Kurds. The remaining % of the population consists of Assyrians, Turkomans, Armenians, Christians and Yazidis. . Public life in Iraq is nominally dominated by the Ba’ath Party (see box on p). But all real authority rests with Saddam and his immediate circle. Saddam’s family, tribe and a small number of associates remain his most loyal supporters. He uses them to convey his orders, including to members of the government. . Saddam uses patronage and violence to motivate his supporters and to control or eliminate opposition. Potential rewards include social status, money and better access to goods. Saddam’s extensive security apparatus and Ba’ath Party network provides oversight of Iraqi society, with informants in social, government and military organisations. Saddam practises torture, execution and other forms of coercion against his enemies, real or suspected. His targets are not only those who have offended him, but also their families, friends or colleagues. . Saddam acts to ensure that there are no other centres of power in Iraq. He has crushed parties and ethnic groups, such as the communists and the Kurds, which might try to assert themselves. Members of the opposition abroad have been the targets of assassination attempts conducted by Iraqi security services. . Army officers are an important part of the Iraqi government’s network of informers. Suspicion that officers have ambitions other than the service of the President leads to immediate execution.
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It is routine for Saddam to take preemptive action against those who he believes might conspire against him. Saddam Hussein’s rise to power Saddam Hussein was born in in the Tikrit district, north of Baghdad. In he joined the Ba’ath Party. After taking part in a failed attempt to assassinate the Iraqi President, Abdul Karim Qasim, Saddam escaped, first to Syria and then to Egypt. In his absence he was sentenced to years imprisonment. Saddam returned to Baghdad in when the Ba’ath Party came to power. He went into hiding after the Ba’ath fell from power later that year. He was captured and imprisoned, but in escaped and took over responsibility for Ba’ath security. Saddam set about imposing his will on the Party and establishing himself at the centre of power. The Ba’ath Party returned to power in . In Saddam became Vice-Chairman of the Revolutionary Command Council, Deputy to the President, and Deputy Secretary General of the Regional Command of the Ba’ath. In he joined the Party’s National Command and in was elected Assistant Secretary General. In July , he took over the Presidency of Iraq. Within days, five fellow members of the Revolutionary Command Council were accused of involvement in a coup attempt. They and others were summarily executed.
Saddam Hussein’s security apparatus Saddam relies on a long list of security organisations with overlapping responsibilities. The main ones are: • The Special Security Organisation oversees Saddam’s security and monitors the loyalty of other security services. Its recruits are predominantly from Tikrit. • The Special Republican Guard is equipped with the best available military equipment. Its members are selected on the basis of loyalty to the regime. • The Directorate of General Security is primarily responsible for countering threats from the civilian population. • The Directorate of General Intelligence monitors and suppresses dissident activities at home and abroad. œ The Directorate of Military Intelligence’s role includes the investigation of military personnel. • The Saddam Fidayeen, under the control of Saddam’s son Udayy, has been used to deal with civil disturbances.
The Iraqi Ba’ath Party The Ba’ath Party is the only legal political party in Iraq. It pervades all aspects of Iraqi life. Membership, around ,, is necessary for self-advancement and confers benefits from the regime. Internal Repression—the Kurds and the Shias . Saddam has pursued a long-term programme of persecution of the Iraqi Kurds, including through the use of chemical weapons. During the Iran–Iraq war, Saddam appointed his cousin, Ali Hasan al-Majid, as his deputy in the north. In –, al-Majid led the ‘Anfal’ campaign of attacks on Kurdish villages. Amnesty International estimates that more than , Kurds were killed or disappeared during this period.
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. After the Gulf War in Kurds in the north of Iraq rose up against Baghdad’s rule. In response the Iraqi regime killed or imprisoned thousands, prompting a humanitarian crisis. Over a million Kurds fled into the mountains and tried to escape Iraq. . Persecution of Iraq’s Kurds continues, although the protection provided by the northern No-Fly Zone has helped to curb the worst excesses. But outside this zone the Baghdad regime has continued a policy of persecution and intimidation. . The regime has used chemical weapons against the Kurds, most notably in an attack on the town of Halabja in (see Part Chapter paragraph ). The implicit threat of the use of chemical weapons against the Kurds and others is an important part of Saddam’s attempt to keep the civilian population under control. . The regime has tried to displace the traditional Kurdish and Turkoman populations of the areas under its control, primarily in order to weaken Kurdish claims to the oil-rich area around the northern city of Kirkuk. Kurds and other non-Arabs are forcibly ejected to the three northern Iraqi governorates, Dohuk, Arbil and Sulaimaniyah, which are under de facto Kurdish control. According to the United Nations Commission on Human Rights (UNCHR) Special Rapporteur for Iraq, , individuals have been expelled since . Agricultural land owned by Kurds has been confiscated and redistributed to Iraqi Arabs. Arabs from southern Iraq have been offered incentives to move into the Kirkuk area. . After the revolution that ousted the Shah in Iran, Saddam intensified a campaign against the Shia Muslim majority of Iraq, fearing that they might be encouraged by the new Shia regime in Iran. . On March , in the wake of the Gulf War, riots broke out in the southern city of Basra, spreading quickly to other cities in Shia-dominated southern Iraq. The regime responded by killing thousands. Many Shia tried to escape to Iran and Saudi Arabia. . Some of the Shia hostile to the regime sought refuge in the marshland of southern Iraq. In order to subjugate the area, Saddam embarked on a large-scale programme to drain the marshes to allow Iraqi ground forces to eliminate all opposition there. The rural population of the area fled or were forced to move to southern cities or across the border into Iran.
Saddam Hussein’s Wars . As well as ensuring his absolute control inside Iraq, Saddam has tried to make Iraq the dominant power of the region. In pursuit of these objectives he has led Iraq into two wars of aggression against neighbours, the Iran–Iraq war and the invasion of Kuwait. . With the fall of the Shah in Iran in , relations between Iran and Iraq deteriorated sharply. In September Saddam renounced a border treaty he had agreed with Iran in ceding half of the Shatt al-Arab waterway to Iran. Shortly thereafter, Saddam launched a large-scale invasion of Iran. He believed that he could take advantage of the state of weakness, isolation and disorganisation he perceived in post-revolutionary Iran. He aimed to seize territory, including that ceded to Iran a few years earlier, and to assert Iraq’s position as a leader of the Arab world. Saddam expected it to be a short, sharp campaign. But the conflict lasted for eight years. Iraq fired over ballistic missiles at Iranian targets, including major cities. . It is estimated that the Iran–Iraq war cost the two sides a million casualties. Iraq used chemical weapons extensively from . Some twenty thousand Iranians were killed by mustard gas and the nerve agents tabun and sarin, all of which Iraq still possesses.
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The UN Security Council considered the report prepared by a team of three specialists appointed by the UN Secretary General in March , following which the President made a statement condemning Iraqi use of chemical weapons. This marked the first time a country had been named for violating the Geneva Convention banning the use of chemical weapons. . The cost of the war ran into hundreds of billions of dollars for both sides. Iraq gained nothing. After the war ended, Saddam resumed his previous pursuit of primacy in the Gulf. His policies involved spending huge sums of money on new military equipment. But Iraq was burdened by debt incurred during the war and the price of oil, Iraq’s only major export, was low. . By Iraq’s financial problems were severe. Saddam looked at ways to press the oilproducing states of the Gulf to force up the price of crude oil by limiting production and waive the $ billion that they had loaned Iraq during its war with Iran. Kuwait had made some concessions over production ceilings. But Saddam blamed Kuwait for over-production. When his threats and blandishments failed, Iraq invaded Kuwait on August . He believed that occupying Kuwait could prove profitable. . Saddam also sought to justify the conquest of Kuwait on other grounds. Like other Iraqi leaders before him, he claimed that, as Kuwait’s rulers had come under the jurisdiction of the governors of Basra in the time of the Ottoman Empire, Kuwait should belong to Iraq. . During its occupation of Kuwait, Iraq denied access to the Red Cross, which has a mandate to provide protection and assistance to civilians affected by international armed conflict. The death penalty was imposed for relatively minor ‘crimes’ such as looting and hoarding food. . In an attempt to deter military action to expel it from Kuwait, the Iraqi regime took hostage several hundred foreign nationals (including children) in Iraq and Kuwait and prevented thousands more from leaving, in direct contravention of international humanitarian law. Hostages were held as human shields at a number of strategic military and civilian sites. . At the end of the Gulf War, the Iraqi army fleeing Kuwait set fire to over , Kuwaiti oil wells with serious environmental consequences. . More than Kuwaiti and other prisoners of war and missing persons are still unaccounted for. Iraq refuses to comply with its UN obligation to account for the missing. It has provided sufficient information to close only three case-files.
Abuse of human rights . This section draws on reports of human rights abuses from authoritative international organisations, including Amnesty International and Human Rights Watch. . Human rights abuses continue within Iraq. People continue to be arrested and detained on suspicion of political or religious activities or often because they are related to members of the opposition. Executions are carried out without due process of law. Relatives are often prevented from burying the victims in accordance with Islamic practice. Thousands of prisoners have been executed. . Saddam has issued a series of decrees establishing severe penalties for criminal offences. These include amputation, branding, cutting off ears, and other forms of mutilation. Anyone found guilty of slandering the President has their tongue removed.
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Human rights: abuses under Saddam Hussein • prisoners were executed at Abu Ghraib Prison in . • prisoners were executed at the Mahjar Prison between and . • About prisoners were executed between and in a ‘prison cleansing’ campaign. • male prisoners were executed at Abu Ghraib prison in February/ March . A further political prisoners were executed there in October . • In October dozens of women accused of prostitution were beheaded without any judicial process. Some were accused for political reasons. • Women prisoners at Mahjar are routinely raped by their guards. • Methods of torture used in Iraqi jails include using electric drills to mutilate hands, pulling out fingernails, knife cuts, sexual attacks and ‘official rape’. • Prisoners at the Qurtiyya Prison in Baghdad and elsewhere are kept in metal boxes the size of tea chests. If they do not confess they are left to die.
Saddam Hussein’s family . Saddam’s son Udayy maintained a private torture chamber known as the Red Room in a building on the banks of the Tigris disguised as an electricity installation. He created a militia in which has used swords to execute victims outside their own homes. He has personally executed dissidents, for instance in the Shia uprising at Basra which followed the Gulf War. . Members of Saddam’s family are also subject to persecution. A cousin of Saddam, Ala Abd al-Qadir al-Majid, fled to Jordan from Iraq citing disagreements with the regime over business matters. He returned to Iraq after the Iraqi Ambassador in Jordan declared publicly that his life was not in danger. He was met at the border by Tahir Habbush, Head of the Directorate of General Intelligence (the Mukhabarat), and taken to a farm owned by Ali Hasan al-Majid. At the farm Ala was tied to a tree and executed by members of his immediate family who, following orders from Saddam, took it in turns to shoot him . Some of Saddam’s relatives, including women and children, have been killed. His sons-in-law Hussein and Saddam Kamil had defected in and returned to Iraq from Jordan after the Iraqi government had announced amnesties for them. They were executed in February .
Human Rights—mistreatment in Abu Ghraib Prison Abdallah, a member of the Ba’ath Party whose loyalty became suspect was imprisoned for four years at Abu Ghraib in the s. On the second day of his imprisonment, the men were forced to walk between two rows of five guards each to receive their containers of food. While walking to get the food, they were beaten by the guards with plastic telephone cables. They had to return to their cells the same way, so that a walk to get breakfast resulted in twenty lashes. According to Abdallah, ‘It wasn’t that bad going to get the food, but coming back the food was spilled when we were beaten.’ The same procedure was used when the men went to the bathroom. On the third day, the torture continued. ‘We were removed from our cells and beaten with plastic pipes. This surprised us, because we were asked no question. Possibly it was being done to break our morale’, Abdallah speculated.
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The torture escalated to sixteen sessions daily. The treatment was organised and systematic. Abdallah was held alone in a x-meter room that opened onto a corridor. ‘We were allowed to go to the toilet three times a day, then they reduced the toilet to once a day for only one minute. I went for four years without a shower or a wash’. Abdallah said. He also learned to cope with the deprivation and the hunger that accompanied his detention: I taught myself to drink a minimum amount of water because there was no placed to urinate. They used wooden sticks to beat us and sometimes the sticks would break. I found a piece of a stick, covered with blood, and managed to bring it back to my room. I ate it for three days. A person who is hungry can eat anything. Pieces of our bodies started falling off from the beatings and our skin was so dry that it began to fall off. I ate pieces of my own body. ‘No one, not Pushkin, not Mahfouz, can describe what happened to us. It is impossible to describe what living this day to day was like. I was totally naked the entire time. Half of the original groups [of about thirty men] died. It was a slow type of continuous physical and psychological torture. Sometimes, it seemed that orders came to kill one of us, and he would be beaten to death’. (Source: Human Rights Watch)
Human Rights—individual testimony . . . I saw a friend of mine, al-Shaikh Nasser Taresh al-Sa’idi, naked. He was handcuffed and a piece of wood was placed between his elbows and his knees. Two ends of the wood were placed on two high chairs and al-Shaikh Nasser was being suspended like a chicken. This method of torture is known as al-Khaygania (a reference to a former security director known as al-Khaygani). An electric wire was attached to al-Shaikh Nasser’s penis and another one attached to one of his toes. He was asked if he could identify me and he said “this is al-Shaikh Yahya”. They took me to another room and then after about minutes they stripped me of my clothes and a security officer said ‘the person you saw has confessed against you’. He said to me ‘You followers of [Ayatollah] al-Sadr have carried out acts harmful to the security of the country and have been distributing anti-government statements coming from abroad’. He asked if I have any contact with an Iraqi religious scholar based in Iran who has been signing these statements. I said ‘I do not have any contacts with him’ . . . I was then left suspended in the same manner as al-Shaikh al-Sa’idi. My face was looking upward. They attached an electric wire on my penis and the other end of the wire is attached to an electric motor. ‘One security man was hitting my feet with a cable. Electric shocks were applied every few minutes and were increased. I must have been suspended for more than an hour. I lost consciousness. They took me to another room and made me walk even though my feet were swollen from beating . . . They repeated this method a few times.’ (Source: Amnesty International, testimony from an Iraqi theology student from Saddam City)
Human Rights—individual testimony In December , a Kurdish businessman from Baghdad was arrested outside his house by plainclothes security men. Initially his family did not know his whereabouts and went from one police station to another inquiring about him. Then they found out that he was being held in the headquarters of the General Security Directorate in Baghdad. The family was not allowed to visit him. Eleven months later the family was told by the authorities that he had been executed and that they should go and collect his body. His body bore evident signs of torture. His eyes were gouged out and the empty eye sockets filled with paper. His right wrist and left leg were broken.
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The family was not given any reason for his arrest and subsequent execution. However, they suspected that he was executed because of his friendship with a retired army general who had links with the Iraqi opposition outside the country and who was arrested just before his arrest and also executed. (Source: Amnesty International)
Appendix V Presentation of Colin Powell, United States Secretary of State, to the United Nations Security Council, on ‘Iraq—Failing To Disarm’* February Thank you, Mr. President. Mr. President and Mr. Secretary General, distinguished colleagues, I would like to begin by expressing my thanks for the special effort that each of you made to be here today. This is an important day for us all as we review the situation with respect to Iraq and its disarmament obligations under UN Security Council Resolution . Last November , this Council passed Resolution by a unanimous vote. The purpose of that resolution was to disarm Iraq of its weapons of mass destruction. Iraq had already been found guilty of material breach of its obligations stretching back over previous resolutions and twelve years. Resolution was not dealing with an innocent party, but a regime this Council has repeatedly convicted over the years. Resolution gave Iraq one last chance, one last chance to come into compliance or to face serious consequences. No Council member present and voting on that day had any illusions about the nature and intent of the resolution or what serious consequences meant if Iraq did not comply. And to assist in its disarmament, we called on Iraq to cooperate with returning inspectors from UNMOVIC and IAEA. We laid down tough standards for Iraq to meet to allow the inspectors to do their job. This Council placed the burden on Iraq to comply and disarm, and not on the inspectors to find that which Iraq has gone out of its way to conceal for so long. Inspectors are inspectors; they are not detectives. I asked for this session today for two purposes. First, to support the core assessments made by Dr. Blix and Dr. ElBaradei. As Dr. Blix reported to this Council on January , ‘Iraq appears not to have come to a genuine acceptance, not even today, of the disarmament which was demanded of it.’ And as Dr. ElBaradei reported, Iraq’s declaration of December ‘did not provide any new information relevant to certain questions that have been outstanding since .’ My second purpose today is to provide you with additional information, to share with you what the United States knows about Iraq’s weapons of mass destruction, as well as Iraq’s involvement in terrorism, which is also the subject of Resolution and other earlier resolutions. I might add at this point that we are providing all relevant information we can to the inspection teams for them to do their work. The material I will present to you comes from a variety of sources. Some are U.S. sources and some are those of other countries. Some are the sources are technical, such as intercepted * This speech was accompanied by a number of video and audio tapes. They can be accessed at
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telephone conversations and photos taken by satellites. Other sources are people who have risked their lives to let the world know what Saddam Hussein is really up to. I cannot tell you everything that we know, but what I can share with you, when combined with what all of us have learned over the years, is deeply troubling. What you will see is an accumulation of facts and disturbing patterns of behavior. The facts and Iraqis’ behavior, Iraq’s behavior, demonstrate that Saddam Hussein and his regime have made no effort, no effort, to disarm, as required by the international community. Indeed, the facts and Iraq’s behavior show that Saddam Hussein and his regime are concealing their efforts to produce more weapons of mass destruction. Let me begin by playing a tape for you. What you’re about to hear is a conversation that my government monitored. It takes place on November th of last year, on the day before United Nations teams resumed inspections in Iraq. The conversation involves two senior officers, a colonel and a brigadier general from Iraq’s elite military unit, the Republican Guard. [The tape is played.] Let me pause and review some of the key elements of this conversation that you just heard between these two officers. First, they acknowledge that our colleague, Mohammed ElBaradei is coming, and they know what he’s coming for and they know he’s coming the next day. He’s coming to look for things that are prohibited. He is expecting these gentlemen to cooperate with him and not hide things. But they’re worried. We have this modified vehicle. What do we say if one of them sees it? What is their concern? Their concern is that it’s something they should not have, something Their concern is that it’s something they should not have, something that should not be seen. The general was incredulous: ‘You didn’t get it modified. You don’t have one of those, do you?’ ‘I have one.’ ‘Which? From where?’ ‘From the workshop. From the Al-Kindi Company.’ ‘What?’ ‘From Al-Kindi.’ ‘I’ll come to see you in the morning. I’m worried you all have something left.’ ‘We evacuated everything. We don’t have anything left.’ Note what he says: ‘We evacuated everything.’ We didn’t destroy it. We didn’t line it up for inspection. We didn’t turn it into the inspectors. We evacuated it to make sure it was not around when the inspectors showed up. ‘I will come to you tomorrow.’ The Al-Kindi Company. This is a company that is well known to have been involved in prohibited weapons systems activity. Let me play another tape for you. As you will recall, the inspectors found empty chemical warheads on January th. On January th, four days later, Iraq promised the inspectors it would search for more. You will now hear an officer from Republican Guard headquarters issuing an instruction to an officer in the field. Their conversation took place just last week, on January . [The tape was played.] Let me pause again and review the elements of this message. ‘They are inspecting the ammunition you have, yes?’ ‘Yes. For the possibility there are forbidden ammo.’
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‘For the possibility there is, by chance, forbidden ammo?’ ‘Yes.’ ‘And we sent you a message yesterday to clean out all the areas, the scrap areas, the abandoned areas. Make sure there is nothing there. Remember the first message: evacuate it.’ This is all part of a system of hiding things and moving things out of the way and making sure they have left nothing behind. You go a little further into this message and you see the specific instructions from headquarters: ‘After you have carried out what is contained in this message, destroy the message because I don’t want anyone to see this message.’ ‘Okay.’ ‘Okay.’ Why? Why? This message would have verified to the inspectors that they have been trying to turn over things. They were looking for things, but they don’t want that message seen because they were trying to clean up the area, to leave no evidence behind of the presence of weapons of mass destruction. And they can claim that nothing was there and the inspectors can look all they want and they will find nothing. This effort to hide things from the inspectors is not one or two isolated events. Quite the contrary, this is part and parcel of a policy of evasion and deception that goes back years, a policy set at the highest levels of the Iraqi regime. We know that Saddam Hussein has what is called ‘a Higher Committee for Monitoring the Inspection Teams.’ Think about that. Iraq has a high-level committee to monitor the inspectors who were sent in to monitor Iraq’s disarmament—not to cooperate with them, not to assist them, but to spy on them and keep them from doing their jobs. The committee reports directly to Saddam Hussein. It is headed by Iraq’s Vice President, Taha Yasin Ramadan. Its members include Saddam Hussein’s son, Qusay. This committee also includes Lieutenant General Amir al-Sa’di, an advisor to Saddam. In case that name isn’t immediately familiar to you, General Sa’di has been the Iraqi regime’s primary point of contact for Dr. Blix and Dr. ElBaradei. It was General Sa’di who last fall publicly pledged that Iraq was prepared to cooperate unconditionally with inspectors. Quite the contrary, Sa’di’s job is not to cooperate; it is to deceive, not to disarm, but to undermine the inspectors; not to support them, but to frustrate them and to make sure they learn nothing. We have learned a lot about the work of this special committee. We learned that just prior to the return of inspectors last November, the regime had decided to resume what we heard called ‘the old game of cat-and-mouse.’ For example, let me focus on the now famous declaration that Iraq submitted to this Council on December th. Iraq never had any intention of complying with this Council’s mandate. Instead, Iraq planned to use the declaration to overwhelm us and to overwhelm the inspectors with useless information about Iraq’s permitted weapons so that we would not have time to pursue Iraq’s prohibited weapons. Iraq’s goal was to give us in this room, to give those of us on this Council, the false impression that the inspection process was working. You saw the result. Dr. Blix pronounced the ,-page declaration ‘rich in volume’ but ‘poor in information and practically devoid of new evidence.’ Could any member of this Council honestly rise in defense of this false declaration? Everything we have seen and heard indicates that instead of cooperating actively with the inspectors to ensure the success of their mission, Saddam Hussein and his regime are busy doing all they possibly can to ensure that inspectors succeed in finding absolutely nothing. My colleagues, every statement I make today is backed up by sources, solid sources. These are not assertions. What we are giving you are facts and conclusions based on solid intelligence. I will cite some examples, and these are from human sources.
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Orders were issued to Iraq’s security organizations, as well as to Saddam Hussein’s own office, to hide all correspondence with the Organization of Military Industrialization. This is the organization that oversees Iraq’s weapons of mass destruction activities. Make sure there are no documents left which would connect you to the OMI. We know that Saddam’s son, Qusay, ordered the removal of all prohibited weapons from Saddam’s numerous palace complexes. We know that Iraqi government officials, members of the ruling Ba’ath Party and scientists have hidden prohibited items in their homes. Other key files from military and scientific establishments have been placed in cars that are being driven around the countryside by Iraqi intelligence agents to avoid detection. Thanks to intelligence they were provided, the inspectors recently found dramatic confirmation of these reports. When they searched the homes of an Iraqi nuclear scientist, they uncovered roughly , pages of documents. You see them here being brought out of the home and placed in UN hands. Some of the material is classified and related to Iraq’s nuclear program. Tell me, answer me: Are the inspectors to search the house of every government official, every Ba’ath Party member and every scientist in the country to find the truth, to get the information they need to satisfy the demands of our Council? Our sources tell us that in some cases the hard drives of computers at Iraqi weapons facilities were replaced. Who took the hard drives? Where did they go? What is being hidden? Why? There is only one answer to the why: to deceive, to hide, to keep from the inspectors. Numerous human sources tell us that the Iraqis are moving not just documents and hard drives, but weapons of mass destruction, to keep them from being found by inspectors. While we were here in this Council chamber debating Resolution last fall, we know, we know from sources that a missile brigade outside Baghdad was dispersing rocket launchers and warheads containing biological warfare agent to various locations, distributing them to various locations in western Iraq. Most of the launchers and warheads had been hidden in large groves of palm trees and were to be moved every one to four weeks to escape detection. We also have satellite photos that indicate that banned materials have recently been moved from a number of Iraqi weapons of mass destruction facilities. Let me say a word about satellite images before I show a couple. The photos that I am about to show you are sometimes hard for the average person to interpret, hard for me. The painstaking work of photo analysis takes experts with years and years of experience, poring for hours and hours over light tables. But as I show you these images, I will try to capture and explain what they mean, what they indicate, to our imagery specialists. Let’s look at one. This one is about a weapons munition facility, a facility that holds ammunition at a place called Taji. This is one of about such facilities in Iraq. We know that this one has housed chemical munitions. In fact, this is where the Iraqis recently came up with the additional four chemical weapons shells. Here you see munitions bunkers in yellow and red outlines. The four that are in red squares represent active chemical munitions bunkers. How do I know that? How can I say that? Let me give you a closer look. Look at the image on the left. On the left is a close-up of one of the four chemical bunkers. The two arrows indicate the presence of sure signs that the bunkers are storing chemical munitions. The arrow at the top that says ‘security’ points to a facility that is a signature item for this kind of bunker. Inside that facility are special guards and special equipment to monitor any leakage that might come out of the bunker. The truck you also see is a signature item. It’s a decontamination vehicle in case something goes wrong. This is characteristic of those four bunkers. The special security facility and the decontamination vehicle will be in the area, if not at any one of them or one of the other, it is moving around those four and it moves as needed to move as people are working in the different bunkers. Now look at the picture on the right. You are now looking at two of those sanitized bunkers. The signature vehicles are gone, the tents are gone. It’s been cleaned up. And it
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was done on the nd of December as the UN inspection team is arriving, and you can see the inspection vehicles arriving in the lower portion of the picture on the right. The bunkers are clean when the inspectors get there. They found nothing. This sequence of events raises the worrisome suspicion that Iraq had been tipped off to the forthcoming inspections at Taji. As it did throughout the s, we know that Iraq today is actively using its considerable intelligence capabilities to hide its illicit activities. From our sources, we know that inspectors are under constant surveillance by an army of Iraqi intelligence operatives. Iraq is relentlessly attempting to tap all of their communications, both voice and electronics. I would call my colleagues’ attention to the fine paper that the United Kingdom distributed yesterday which describes in exquisite detail Iraqi deception activities. In this next example, you will see the type of concealment activity Iraq has undertaken in response to the resumption of inspections. Indeed, in November of , just when the inspections were about to resume, this type of activity spiked. Here are three examples. At this ballistic missile site on November th, we saw a cargo truck preparing to move ballistic missile components. At this biological weapons-related facility on November th, just two days before inspections resumed, this truck caravan appeared—something we almost never see at this facility and we monitor it carefully and regularly. At this ballistic missile facility, again, two days before inspections began, five large cargo trucks appeared, along with a truck-mounted crane, to move missiles. We saw this kind of housecleaning at close to sites. Days after this activity, the vehicles and the equipment that I’ve just highlighted disappear and the site returns to patterns of normalcy. We don’t know precisely what Iraq was moving, but the inspectors already knew about these sites so Iraq knew that they would be coming. We must ask ourselves: Why would Iraq suddenly move equipment of this nature before inspections if they were anxious to demonstrate what they had or did not have? Remember the first intercept in which two Iraqis talked about the need to hide a modified vehicle from the inspectors. Where did Iraq take all of this equipment? Why wasn’t it presented to the inspectors? Iraq also has refused to permit any U- reconnaissance flights that would give the inspectors a better sense of what’s being moved before, during and after inspections. This refusal to allow this kind of reconnaissance is in direct, specific violation of operative paragraph seven of our Resolution . Saddam Hussein and his regime are not just trying to conceal weapons; they are also trying to hide people. You know the basic facts. Iraq has not complied with its obligation to allow immediate, unimpeded, unrestricted and private access to all officials and other persons, as required by Resolution . The regime only allows interviews with inspectors in the presence of an Iraqi official, a minder. The official Iraqi organization charged with facilitating inspections announced publicly and announced ominously, that, ‘Nobody is ready’ to leave Iraq to be interviewed. Iraqi Vice President Ramadan accused the inspectors of conducting espionage, a veiled threat that anyone cooperating with UN inspectors was committing treason. Iraq did not meet its obligations under to provide a comprehensive list of scientists associated with its weapons of mass destruction programs. Iraq’s list was out of date and contained only about names despite the fact that UNSCOM had earlier put together a list of about , names. Let me just tell you what a number of human sources have told us. Saddam Hussein has directly participated in the effort to prevent interviews. In early December, Saddam Hussein had all Iraqi scientists warned of the serious consequences that they and their families would face if they revealed any sensitive information to the inspectors. They were forced to sign documents acknowledging that divulging information is punishable by death. Saddam Hussein also said that scientists should be told not to agree to leave Iraq; anyone who agreed to be interviewed outside Iraq would be treated as a spy. This violates .
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In mid-November, just before the inspectors returned, Iraqi experts were ordered to report to the headquarters of the Special Security Organization to receive counterintelligence training. The training focused on evasion methods, interrogation resistance techniques, and how to mislead inspectors. Ladies and gentlemen, these are not assertions. These are facts corroborated by many sources, some of them sources of the intelligence services of other countries. For example, in mid-December, weapons experts at one facility were replaced by Iraqi intelligence agents who were to deceive inspectors about the work that was being done there. On orders from Saddam Hussein, Iraqi officials issued a false death certificate for one scientist and he was sent into hiding. In the middle of January, experts at one facility that was related to weapons of mass destruction, those experts had been ordered to stay home from work to avoid the inspectors. Workers from other Iraqi military facilities not engaged in illicit weapons projects were to replace the workers who had been sent home. A dozen experts have been placed under house arrest—not in their own houses, but as a group at one of Saddam Hussein’s guest houses. It goes on and on and on. As the examples I have just presented show, the information and intelligence we have gathered point to an active and systematic effort on the part of the Iraqi regime to keep key materials and people from the inspectors, in direct violation of Resolution . The pattern is not just one of reluctant cooperation, nor is it merely a lack of cooperation. What we see is a deliberate campaign to prevent any meaningful inspection work. My colleagues, Operative Paragraph of UN Resolution , which we lingered over so long last fall, clearly states that false statements and omissions in the declaration and a failure by Iraq at any time to comply with and cooperate fully in the implementation of this resolution shall constitute—the facts speak for themselves—shall constitute a further material breach of its obligation. We wrote it this way to give Iraq an early test, to give Iraq an early test. Would they give an honest declaration and would they, early on, indicate a willingness to cooperate with the inspectors? It was designed to be an early test. They failed that test. By this standard, the standard of this Operative Paragraph, I believe that Iraq is now in further material breach of its obligations. I believe this conclusion is irrefutable and undeniable. Iraq has now placed itself in danger of the serious consequences called for in UN Resolution . And this body places itself in danger of irrelevance if it allows Iraq to continue to defy its will without responding effectively and immediately. This issue before us is not how much time we are willing to give the inspectors to be frustrated by Iraqi obstruction. But how much longer are we willing to put up with Iraq’s non-compliance before we, as a Council, we as the United Nations say, ‘Enough. Enough.’ The gravity of this moment is matched by the gravity of the threat that Iraq’s weapons of mass destruction pose to the world. Let me now turn to those deadly weapons programs and describe why they are real and present dangers to the region and to the world. First, biological weapons. We have talked frequently here about biological weapons. By way of introduction and history, I think there are just three quick points I need to make. First, you will recall that it took UNSCOM four long and frustrating years to pry, to pry an admission out of Iraq that it had biological weapons. Second, when Iraq finally admitted having these weapons in , the quantities were vast. Less than a teaspoon of dry anthrax, a little bit—about this amount. This is just about the amount of a teaspoon. Less than a teaspoonful of dry anthrax in an envelope shut down the United States Senate in the fall of . This forced several hundred people to undergo emergency medical treatment and killed two postal workers just from an amount, just about this quantity that was inside of an envelope.
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Iraq declared liters of anthrax. But UNSCOM estimates that Saddam Hussein could have produced , liters. If concentrated into this dry form, this amount would be enough to fill tens upon tens upon tens of thousands of teaspoons. And Saddam Hussein has not verifiably accounted for even one teaspoonful of this deadly material. And that is my third point. And it is key. The Iraqis have never accounted for all of the biological weapons they admitted they had and we know they had. They have never accounted for all the organic material used to make them. And they have not accounted for many of the weapons filled with these agents such as their R- bombs. This is evidence, not conjecture. This is true. This is all well documented. Dr. Blix told this Council that Iraq has provided little evidence to verify anthrax production and no convincing evidence of its destruction. It should come as no shock then that since Saddam Hussein forced out the last inspectors in , we have amassed much intelligence indicating that Iraq is continuing to make these weapons. One of the most worrisome things that emerges from the thick intelligence file we have on Iraq’s biological weapons is the existence of mobile production facilities used to make biological agents. Let me take you inside that intelligence file and share with you what we know from eyewitness accounts. We have first-hand descriptions of biological weapons factories on wheels and on rails. The trucks and train cars are easily moved and are designed to evade detection by inspectors. In a matter of months, they can produce a quantity of biological poison equal to the entire amount that Iraq claimed to have produced in the years prior to the Gulf War. Although Iraq’s mobile production program began in the mid-s, UN inspectors at the time only had vague hints of such programs. Confirmation came later, in the year . The source was an eyewitness, an Iraqi chemical engineer who supervised one of these facilities. He actually was present during biological agent production runs. He was also at the site when an accident occurred in . technicians died from exposure to biological agents. He reported that when UNSCOM was in country and inspecting, the biological weapons agent production always began on Thursdays at midnight, because Iraq thought UNSCOM would not inspect on the Muslim holy day, Thursday night through Friday. He added that this was important because the units could not be broken down in the middle of a production run, which had to be completed by Friday evening before the inspectors might arrive again. This defector is currently hiding in another country with the certain knowledge that Saddam Hussein will kill him if he finds him. His eyewitness account of these mobile production facilities has been corroborated by other sources. A second source. An Iraqi civil engineer in a position to know the details of the program confirmed the existence of transportable facilities moving on trailers. A third source, also in a position to know, reported in summer, , that Iraq had manufactured mobile production systems mounted on road-trailer units and on rail cars. Finally, a fourth source. An Iraqi major who defected confirmed that Iraq has mobile biological research laboratories in addition to the production facilities I mentioned earlier. We have diagrammed what our sources reported about these mobile facilities. Here you see both truck and rail-car mounted mobile factories. The description our sources gave us of the technical features required by such facilities is highly detailed and extremely accurate. As these drawings, based on their description show, we know what the fermentors look like. We know what the tanks, pumps, compressors and other parts look like. We know how they fit together, we know how they work, and we know a great deal about the platforms on which they are mounted.
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As shown in this diagram, these factories can be concealed easily—either by moving ordinary looking trucks and rail-cars along Iraq’s thousands of miles of highway or track or by parking them in a garage or a warehouse or somewhere in Iraq’s extensive system of underground tunnels and bunkers. We know that Iraq has at least seven of these mobile, biological agent factories. The truckmounted ones have at least two or three trucks each. That means that the mobile production facilities are very few—perhaps trucks that we know of. There may be more. But perhaps that we know of. Just imagine trying to find trucks among the thousands and thousands of trucks that travel the roads of Iraq every single day. It took the inspectors four years to find out that Iraq was making biological agents. How long do you think it will take the inspectors to find even one of these trucks without Iraq coming forward as they are supposed to with the information about these kinds of capabilities. Ladies and gentlemen, these are sophisticated facilities. For example, they can produce anthrax and botulinum toxin. In fact, they can produce enough dry, biological agent in a single month to kill thousands upon thousands of people. A dry agent of this type is the most lethal form for human beings. By , UN experts agreed that the Iraqis had perfected drying techniques for their biological weapons programs. Now Iraq has incorporated this drying expertise into these mobile production facilities. We know from Iraq’s past admissions that it has successfully weaponized not only anthrax, but also other biological agents including botulinum toxin, aflatoxin and ricin. But Iraq’s research efforts did not stop there. Saddam Hussein has investigated dozens of biological agents causing diseases such as gas gangrene, plague, typhus, tetanus, cholera, camelpox, and hemorrhagic fever. And he also has the wherewithal to develop smallpox. The Iraqi regime has also developed ways to disperse lethal biological agents widely, indiscriminately into the water supply, into the air. For example, Iraq had a program to modify aerial fuel tanks for Mirage jets. This video of an Iraqi test flight obtained by UNSCOM some years ago shows an Iraqi F- Mirage jet aircraft. Note the spray coming from beneath the Mirage. That is , liters of simulated anthrax that a jet is spraying. In , an Iraqi military officer, Mujahid Saleh Abdul Latif told inspectors that Iraq intended the spray tanks to be mounted onto a MiG- that had been converted into an unmanned aerial vehicle, or UAV. UAVs outfitted with spray tanks constitute an ideal method for launching a terrorist attack using biological weapons. Iraq admitted to producing four spray tanks, but to this day, it has provided no credible evidence that they were destroyed, evidence that was required by the international community. There can be no doubt that Saddam Hussein has biological weapons and the capability to rapidly produce more, many more. And he has the ability to dispense these lethal poisons and diseases in ways that can cause massive death and destruction. If biological weapons seem too terrible to contemplate, chemical weapons are equally chilling. UNMOVIC already laid out much of this and it is documented for all of us to read in UNSCOM’s report on the subject. Let me set the stage with three key points that all of us need to keep in mind. First, Saddam Hussein has used these horrific weapons on another country and on his own people. In fact, in the history of chemical warfare, no country has had more battlefield experience with chemical weapons since World War I than Saddam Hussein’s Iraq.
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Second, as with biological weapons, Saddam Hussein has never accounted for vast amounts of chemical weaponry: artillery shells with mustard, , empty munitions and enough precursors to increase his stockpile to as much as tons of chemical agents. If we consider just one category of missing weaponry, bombs from the Iran–Iraq War, UNMOVIC says the amount of chemical agent in them would be on the order of a thousand tons. These quantities of chemical weapons are now unaccounted for. Dr. Blix has quipped that, ‘Mustard gas is not marmalade. You are supposed to know what you did with it.’ We believe Saddam Hussein knows what he did with it and he has not come clean with the international community. We have evidence these weapons existed. What we don’t have is evidence from Iraq that they have been destroyed or where they are. That is what we are still waiting for. Third point, Iraq’s record on chemical weapons is replete with lies. It took years for Iraq to finally admit that it had produced four tons of the deadly nerve agent VX. A single drop of VX on the skin will kill in minutes. Four tons. The admission only came out after inspectors collected documentation as a result of the defection of Hussein Kamel, Saddam Hussein’s late son-in-law. UNSCOM also gained forensic evidence that Iraq had produced VX and put it into weapons for delivery, yet to this day Iraq denies it had ever weaponized VX. And on January , UNMOVIC told this Council that it has information that conflicts with the Iraqi account of its VX program. We know that Iraq has embedded key portions of its illicit chemical weapons infrastructure within its legitimate civilian industry. To all outward appearances, even to experts, the infrastructure looks like an ordinary civilian operation. Illicit and legitimate production can go on simultaneously or on a dime. This dual-use infrastructure can turn from clandestine to commercial and then back again. These inspections would be unlikely, any inspections at such facilities, would be unlikely to turn up anything prohibited, especially if there is any warning that the inspections are coming. Call it ingenious or evil genius, but the Iraqis deliberately designed their chemical weapons programs to be inspected. It is infrastructure with a built in alibi. Under the guise of dual-use infrastructure, Iraq has undertaken an effort to reconstitute facilities that were closely associated with its past program to develop and produce chemical weapons. For example, Iraq has rebuilt key portions of the Tareq State Establishment. Tareq includes facilities designed specifically for Iraq’s chemical weapons program and employs key figures from past programs. That’s the production end of Saddam’s chemical weapons business. What about the delivery end? I’m going to show you a small part of a chemical complex called ‘Al Musayyib’, a site that Iraq has used for at least three years to transship chemical weapons from production facilities out to the field. In May , our satellites photographed the unusual activity in this picture. Here we see cargo vehicles are again at this transshipment point, and we can see that they are accompanied by a decontamination vehicle associated with biological or chemical weapons activity. What makes this picture significant is that we have a human source who has corroborated that movement of chemical weapons occurred at this site at that time. So it’s not just the photo and it’s not an individual seeing the photo. It’s the photo and then the knowledge of an individual being brought together to make the case. This photograph of the site taken two months later, in July, shows not only the previous site which is the figure in the middle at the top with the bulldozer sign near it, it shows that this previous site, as well as all of the other sites around the site have been fully bulldozed and graded. The topsoil has been removed. The Iraqis literally removed the crust of the earth
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from large portions of this site in order to conceal chemical weapons evidence that would be there from years of chemical weapons activity. To support its deadly biological and chemical weapons programs, Iraq procures needed items from around the world using an extensive clandestine network. What we know comes largely from intercepted communications and human sources who are in a position to know the facts. Iraq’s procurement efforts include: equipment that can filter and separate microorganisms and toxins involved in biological weapons; equipment that can be used to concentrate the agent; growth media that can be used to continue producing anthrax and botulinum toxin; sterilization equipment for laboratories; glass-lined reactors and specialty pumps that can handle corrosive chemical weapons agents and precursors; large amounts of thionyl chloride, a precursor for nerve and blister agents; and other chemicals such as sodium sulfide, an important mustard agent precursor. Now, of course, Iraq will argue that these items can also be used for legitimate purposes. But if that is true, why do we have to learn about them by intercepting communications and risking the lives of human agents? With Iraq’s well-documented history on biological and chemical weapons, why should any of us give Iraq the benefit of the doubt? I don’t. And I don’t think you will either after you hear this next intercept. Just a few weeks ago we intercepted communications between two commanders in Iraq’s Second Republican Guard Corps. One commander is going to be giving an instruction to the other. You will hear as this unfolds that what he wants to communicate to the other guy, he wants to make sure the other guy hears clearly to the point of repeating it so that it gets written down and completely understood. Listen. (Transmission.) Let’s review a few selected items of this conversation. Two officers talking to each other on the radio want to make sure that nothing is misunderstood. ‘Remove.’ ‘Remove.’ ‘The expression.’ ‘The expression.’ ‘The expression. I got it.’ ‘Nerve agents.’ ‘Nerve agents.’ ‘Wherever it comes up.’ ‘Got it, wherever it comes up.’ ‘In the wireless instructions.’ ‘In the instructions.’ ‘Correction, no, in the wireless instructions.’ ‘Wireless, I got it.’ Why does he repeat it that way? Why is he so forceful in making sure this is understood? And why did he focus on wireless instructions? Because the senior officer is concerned that somebody might be listening. Well, somebody was. ‘Nerve agents.’ ‘Stop talking about it.’ ‘They are listening to us’ ‘Don’t give any evidence that we have these horrible agents.’ But we know that they do and this kind of conversation confirms it. Our conservative estimate is that Iraq today has a stockpile of between and tons of chemical weapons agent. That is enough agent to fill , battlefield rockets. Even the low end of tons of agent would enable Saddam Hussein to cause mass casualties across more than square miles of territory, an area nearly five times the size of Manhattan. Let me remind you that—of the mm chemical warheads that the UN inspectors found recently. This discovery could very well be, as has been noted, the tip of a submerged iceberg. The question before us all, my friends, is when will we see the rest of the submerged iceberg? Saddam Hussein has chemical weapons. Saddam Hussein has used such weapons. And Saddam Hussein has no compunction about using them again—against his neighbors and against his own people. And we have sources who tell us that he recently has authorized his field commanders to use them. He wouldn’t be passing out the orders if he didn’t have the weapons or the intent to use them. We also have sources who tell us that since the s, Saddam’s regime has been experimenting on human beings to perfect its biological or chemical weapons.
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A source said that , death-row prisoners were transferred in to a special unit for such experiments. An eyewitness saw prisoners tied down to beds, experiments conducted on them, blood oozing around the victims’ mouths, and autopsies performed to confirm the effects on the prisoners. Saddam Hussein’s humanity—inhumanity has no limits. Let me turn now to nuclear weapons. We have no indication that Saddam Hussein has ever abandoned his nuclear weapons program. On the contrary, we have more than a decade of proof that he remains determined to acquire nuclear weapons. To fully appreciate the challenge that we face today, remember that in the inspectors searched Iraq’s primary nuclear weapons facilities for the first time, and they found nothing to conclude that Iraq had a nuclear weapons program. But, based on defector information, in May of , Saddam Hussein’s lie was exposed. In truth, Saddam Hussein had a massive clandestine nuclear weapons program that covered several different techniques to enrich uranium, including electromagnetic isotope separation, gas centrifuge and gas diffusion. We estimate that this illicit program cost the Iraqis several billion dollars. Nonetheless, Iraq continued to tell the IAEA that it had no nuclear weapons program. If Saddam had not been stopped, Iraq could have produced a nuclear bomb by , years earlier than most worst case assessments that had been made before the war. In , as a result of another defector, we find out that, after his invasion of Kuwait, Saddam Hussein had initiated a crash program to build a crude nuclear weapon, in violation of Iraq’s UN obligations. Saddam Hussein already possesses two out of the three key components needed to build a nuclear bomb. He has a cadre of nuclear scientists with the expertise and he has a bomb design. Since , his efforts to reconstitute his nuclear program have been focused on acquiring the third and last component: sufficient fissile material to produce a nuclear explosion. To make the fissile material, he needs to develop an ability to enrich uranium. Saddam Hussein is determined to get his hands on a nuclear bomb. He is so determined that has made repeated covert attempts to acquire high-specification aluminum tubes from different countries, even after inspections resumed. These tubes are controlled by the Nuclear Suppliers Group precisely because they can be used as centrifuges for enriching uranium. By now, just about everyone has heard of these tubes and we all know that there are differences of opinion. There is controversy about what these tubes are for. Most U.S. experts think they are intended to serve as rotors in centrifuges used to enrich uranium. Other experts, and the Iraqis themselves, argue that they are really to produce the rocket bodies for a conventional weapon, a multiple rocket launcher. Let me tell you what is not controversial about these tubes. First, all the experts who have analyzed the tubes in our possession agree that they can be adapted for centrifuge use. Second, Iraq had no business buying them for any purpose. They are banned for Iraq. I am no expert on centrifuge tubes, but this is an old army trooper. I can tell you a couple things. First, it strikes me as quite odd that these tubes are manufactured to a tolerance that far exceeds U.S. requirements for comparable rockets. Maybe Iraqis just manufacture their conventional weapons to a higher standard than we do, but I don’t think so. Second, we actually have examined tubes from several different batches that were seized clandestinely before they reached Baghdad. What we notice in these different batches is a progression to higher and higher levels of specification, including in the latest batch an anodized coating on extremely smooth inner and outer surfaces. Why would they continue refining the specifications? Why would they continuing refining the specification, go to all that trouble for something that, if it was a rocket, would soon be blown into shrapnel when it went off?
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The high-tolerance aluminum tubes are only part of the story. We also have intelligence from multiple sources that Iraq is attempting to acquire magnets and high-speed balancing machines. Both items can be used in a gas centrifuge program to enrich uranium. In and , Iraqi officials negotiated with firms in Romania, India, Russia and Slovenia for the purchase of a magnet production plant. Iraq wanted the plant to produce magnets weighing to grams. That’s the same weight as the magnets used in Iraq’s gas centrifuge program before the Gulf War. This incident, linked with the tubes, is another indicator of Iraq’s attempt to reconstitute its nuclear weapons program. Intercepted communications from mid- through last summer showed that Iraq front companies sought to buy machines that can be used to balance gas centrifuge rotors. One of these companies also had been involved in a failed effort in to smuggle aluminum tubes into Iraq. People will continue to debate this issue, but there is no doubt in my mind. These illicit procurement efforts show that Saddam Hussein is very much focused on putting in place the key missing piece from his nuclear weapons program, the ability to produce fissile material. He also has been busy trying to maintain the other key parts of his nuclear program, particularly his cadre of key nuclear scientists. It is noteworthy that over the last months Saddam Hussein has paid increasing personal attention to Iraq’s top nuclear scientists, a group that the government-controlled press calls openly his ‘nuclear mujaheddin.’ He regularly exhorts them and praises their progress. Progress toward what end? Long ago, the Security Council, this Council, required Iraq to halt all nuclear activities of any kind. Let me talk now about the systems Iraq is developing to deliver weapons of mass destruction, in particular Iraq’s ballistic missiles and unmanned aerial vehicles, UAVs. First, missiles. We all remember that before the Gulf War Saddam Hussein’s goal was missiles that flew not just hundreds, but thousands, of kilometers. He wanted to strike not only his neighbors, but also nations far beyond his borders. While inspectors destroyed most of the prohibited ballistic missiles, numerous intelligence reports over the past decade from sources inside Iraq indicate that Saddam Hussein retains a covert force of up to a few dozen Scud-variant ballistic missiles. These are missiles with a range of to kilometers. We know from intelligence and Iraq’s own admissions that Iraq’s alleged permitted ballistic missiles, the al-Samoud II and the Al-Fatah, violate the -kilometer limit established by this Council in Resolution . These are prohibited systems. UNMOVIC has also reported that Iraq has illegally imported SA- rocket engines. These are likely for use in the al-Samoud II. Their import was illegal on three counts: Resolution prohibited all military shipments into Iraq; UNSCOM specifically prohibited use of these engines in surface-to-surface missiles; and finally, as we have just noted, they are for a system that exceeds the -kilometer range limit. Worst of all, some of these engines were acquired as late as December, after this Council passed Resolution . What I want you to know today is that Iraq has programs that are intended to produce ballistic missiles that fly over , kilometers. One program is pursuing a liquid fuel missile that would be able to fly more than , kilometers. And you can see from this map, as well as I can, who will be in danger of these missiles. As part of this effort, another little piece of evidence, Iraq has built an engine test stand that is larger than anything it has ever had. Notice the dramatic difference in size between the test stand on the left, the old one, and the new one on the right. Note the large exhaust vent. This is where the flame from the engine comes out. The exhaust vent on the right test stand is five times longer than the one on the left. The one of the left is used for short-range
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missiles. The one on the right is clearly intended for long-range missiles that can fly , kilometers. This photograph was taken in April of . Since then, the test stand has been finished and a roof has been put over it so it will be harder for satellites to see what’s going on underneath the test stand. Saddam Hussein’s intentions have never changed. He is not developing the missiles for self-defense. These are missiles that Iraq wants in order to project power, to threaten and to deliver chemical, biological—and if we let him—nuclear warheads. Now, unmanned aerial vehicles, UAVs. Iraq has been working on a variety of UAVs for more than a decade. This is just illustrative of what a UAV would look like. This effort has included attempts to modify for unmanned flight the MiG- and, with greater success, an aircraft called the L-. However, Iraq is now concentrating not on these airplanes but on developing and testing smaller UAVs such as this. UAVs are well suited for dispensing chemical and biological weapons. There is ample evidence that Iraq has dedicated much effort to developing and testing spray devices that could be adapted for UAVs. And in the little that Saddam Hussein told us about UAVs, he has not told the truth. One of these lies is graphically and indisputably demonstrated by intelligence we collected on June th last year. According to Iraq’s December th declaration, its UAVs have a range of only kilometers. But we detected one of Iraq’s newest UAVs in a test flight that went kilometers nonstop on autopilot in the racetrack pattern depicted here. Not only is this test well in excess of the kilometers that the United Nations permits, the test was left out of Iraq’s December th declaration. The UAV was flown around and around and around in this circle and so that its -kilometer limit really was kilometers, unrefueled and on autopilot—violative of all of its obligations under . The linkages over the past ten years between Iraq’s UAV program and biological and chemical warfare agents are of deep concern to us. Iraq could use these small UAVs which have a wingspan of only a few meters to deliver biological agents to its neighbors or, if transported, to other countries, including the United States. My friends, the information I have presented to you about these terrible weapons and about Iraq’s continued flaunting of its obligations under Security Council Resolution links to a subject I now want to spend a little bit of time on, and that has to do with terrorism. Our concern is not just about these illicit weapons; it’s the way that these illicit weapons can be connected to terrorists and terrorist organizations that have no compunction about using such devices against innocent people around the world. Iraq and terrorism go back decades. Baghdad trains Palestine Liberation Front members in small arms and explosives. Saddam uses the Arab Liberation Front to funnel money to the families of Palestinian suicide bombers in order to prolong the Intifadah. And it’s no secret that Saddam’s own intelligence service was involved in dozens of attacks or attempted assassinations in the s. But what I want to bring to your attention today is the potentially much more sinister nexus between Iraq and the al-Qaida terrorist network, a nexus that combines classic terrorist organizations and modern methods of murder. Iraq today harbors a deadly terrorist network headed by Abu Musab al-Zarqawi an associate and collaborator of Usama bin Laden and his al-Qaida lieutenants. Zarqawi, Palestinian born in Jordan, fought in the Afghan war more than a decade ago. Returning to Afghanistan in , he oversaw a terrorist training camp. One of his specialties, and one of the specialties of this camp, is poisons.
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When our coalition ousted the Taliban, the Zarqawi network helped establish another poison and explosive training center camp, and this camp is located in northeastern Iraq. You see a picture of this camp. The network is teaching its operatives how to produce ricin and other poisons. Let me remind you how ricin works. Less than a pinch—imagine a pinch of salt—less than a pinch of ricin, eating just this amount in your food, would cause shock, followed by circulatory failure. Death comes within hours and there is no antidote. There is no cure. It is fatal. Those helping to run this camp are Zarqawi lieutenants operating in northern Kurdish areas outside Saddam Hussein’s controlled Iraq. But Baghdad has an agent in the most senior levels of the radical organization Ansar al-Islam that controls this corner of Iraq. In , this agent offered al-Qaida safe haven in the region. After we swept al-Qaida from Afghanistan, some of those members accepted this safe haven. They remain there today. Zarqawi’s activities are not confined to this small corner of northeast Iraq. He traveled to Baghdad in May of for medical treatment, staying in the capital of Iraq for two months while he recuperated to fight another day. During his stay, nearly two dozen extremists converged on Baghdad and established a base of operations there. These al-Qaida affiliates based in Baghdad now coordinate the movement of people, money and supplies into and throughout Iraq for his network, and they have now been operating freely in the capital for more than eight months. Iraqi officials deny accusations of ties with al-Qaida. These denials are simply not credible. Last year, an al-Qaida associate bragged that the situation in Iraq was ‘good,’ that Baghdad could be transited quickly. We know these affiliates are connected to Zarqawi because they remain, even today, in regular contact with his direct subordinates, include the poison cell plotters. And they are involved in moving more than money and materiel. Last year, two suspected al-Qaida operatives were arrested crossing from Iraq into Saudi Arabia. They were linked to associates of the Baghdad cell and one of them received training in Afghanistan on how to use cyanide. From his terrorist network in Iraq, Zarqawi can direct his network in the Middle East and beyond. We in the United States, all of us, the State Department and the Agency for International Development, we all lost a dear friend with the cold-blooded murder of Mr. Laurence Foley in Amman, Jordan, last October. A despicable act was committed that day, the assassination of an individual whose sole mission was to assist the people of Jordan. The captured assassin says his cell received money and weapons from Zarqawi for that murder. After the attack, an associate of the assassin left Jordan to go to Iraq to obtain weapons and explosives for further operations. Iraqi officials protest that they are not aware of the whereabouts of Zarqawi or of any of his associates. Again, these protests are not credible. We know of Zarqawi’s activities in Baghdad. I described them earlier. Now let me add one other fact. We asked a friendly security service to approach Baghdad about extraditing Zarqawi and providing information about him and his close associates. This service contacted Iraqi officials twice and we passed details that should have made it easy to find Zarqawi. The network remains in Baghdad. Zarqawi still remains at large, to come and go. As my colleagues around this table and as the citizens they represent in Europe know, Zarqawi’s terrorism is not confined to the Middle East. Zarqawi and his network have plotted terrorist actions against countries including France, Britain, Spain, Italy, Germany and Russia. According to detainees Abu Atiya, who graduated from Zarqawi’s terrorist camp in Afghanistan, tasked at least nine North African extremists in to travel to Europe to conduct poison and explosive attacks.
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Since last year, members of this network have been apprehended in France, Britain, Spain and Italy. By our last count, operatives connected to this global web have been arrested. The chart you are seeing shows the network in Europe. We know about this European network and we know about its links to Zarqawi because the detainees who provided the information about the targets also provided the names of members of the network. Three of those he identified by name were arrested in France last December. In the apartments of the terrorists, authorities found circuits for explosive devices and a list of ingredients to make toxins. The detainee who helped piece this together says the plot also targeted Britain. Later evidence again proved him right. When the British unearthed the cell there just last month, one British police officer was murdered during the destruction of the cell. We also know that Zarqawi’s colleagues have been active in the Pankisi Gorge, Georgia, and in Chechnya, Russia. The plotting to which they are linked is not mere chatter. Members of Zarqawi’s network say their goal was to kill Russians with toxins. We are not surprised that Iraq is harboring Zarqawi and his subordinates. This understanding builds on decades-long experience with respect to ties between Iraq and al-Qaida. Going back to the early and mid-s when bin Laden was based in Sudan, an al-Qaida source tells us that Saddam and bin Laden reached an understanding that al-Qaida would no longer support activities against Baghdad. Early al-Qaida ties were forged by secret highlevel intelligence service contacts with al-Qaida, secret Iraqi intelligence high-level contacts with al-Qaida. We know members of both organizations met repeatedly and have met at least eight times at very senior levels since the early s. In , a foreign security service tells us that bin Laden met with a senior Iraqi intelligence official in Khartoum and later met the director of the Iraqi intelligence service. Saddam became more interested as he saw al-Qaida’s appalling attacks. A detained al-Qaida member tells us that Saddam was more willing to assist al-Qaida after the bombings of our embassies in Kenya and Tanzania. Saddam was also impressed by al-Qaida’s attacks on the USS Cole in Yemen in October . Iraqis continue to visit bin Laden in his new home in Afghanistan. A senior defector, one of Saddam’s former intelligence chiefs in Europe, says Saddam sent his agents to Afghanistan sometime in the mid-s to provide training to al-Qaida members on document forgery. From the late s until , the Iraqi Embassy in Pakistan played the role of liaison to the al-Qaida organization. Some believe, some claim, these contacts do not amount to much. They say Saddam Hussein’s secular tyranny and al-Qaida’s religious tyranny do not mix. I am not comforted by this thought. Ambition and hatred are enough to bring Iraq and al-Qaida together, enough so al-Qaida could learn how to build more sophisticated bombs and learn how to forge documents, and enough so that al-Qaida could turn to Iraq for help in acquiring expertise on weapons of mass destruction. And the record of Saddam Hussein’s cooperation with other Islamist terrorist organizations is clear. Hamas, for example, opened an office in Baghdad in and Iraq has hosted conferences attended by Palestine Islamic Jihad. These groups are at the forefront of sponsoring suicide attacks against Israel. Al-Qaida continues to have a deep interest in acquiring weapons of mass destruction. As with the story of Zarqawi and his network, I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to al-Qaida. Fortunately, this operative is now detained and he has told his story. I will relate it to you now as he, himself, described it. This senior al-Qaida terrorist was responsible for one of al-Qaida’s training camps in Afghanistan. His information comes firsthand from his personal involvement at senior levels of al-Qaida. He says bin Laden and his top deputy in Afghanistan, deceased al-Qaida
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leader Muhammad Atif, did not believe that al-Qaida labs in Afghanistan were capable enough to manufacture these chemical or biological agents. They needed to go somewhere else. They had to look outside of Afghanistan for help. Where did they go? Where did they look? They went to Iraq. The support that this detainee describes included Iraq offering chemical or biological weapons training for two al-Qaida associates beginning in December . He says that a militant known as Abdallah al-Iraqi had been sent to Iraq several times between and for help in acquiring poisons and gasses. Abdallah al-Iraqi characterized the relationship he forged with Iraqi officials as successful. As I said at the outset, none of this should come as a surprise to any of us. Terrorism has been a tool used by Saddam for decades. Saddam was a supporter of terrorism long before these terrorist networks had a name, and this support continues. The nexus of poisons and terror is new. The nexus of Iraq and terror is old. The combination is lethal. With this track record, Iraqi denials of supporting terrorism take their place alongside the other Iraqi denials of weapons of mass destruction. It is all a web of lies. When we confront a regime that harbors ambitions for regional domination, hides weapons of mass destruction, and provides haven and active support for terrorists, we are not confronting the past; we are confronting the present. And unless we act, we are confronting an even more frightening future. And, friends, this has been a long and a detailed presentation and I thank you for your patience, but there is one more subject that I would like to touch on briefly, and it should be a subject of deep and continuing concern to this Council: Saddam Hussein’s violations of human rights. Underlying all that I have said, underlying all the facts and the patterns of behavior that I have identified, is Saddam Hussein’s contempt for the will of this Council, his contempt for the truth, and, most damning of all, his utter contempt for human life. Saddam Hussein’s use of mustard and nerve gas against the Kurds in was one of the th century’s most horrible atrocities. Five thousand men, women and children died. His campaign against the Kurds from to ‘ included mass summary executions, disappearances, arbitrary jailing and ethnic cleansing, and the destruction of some , villages. He has also conducted ethnic cleansing against the Shia Iraqis and the Marsh Arabs whose culture has flourished for more than a millennium. Saddam Hussein’s police state ruthlessly eliminates anyone who dares to dissent. Iraq has more forced disappearance cases than any other country—tens of thousands of people reported missing in the past decade. Nothing points more clearly to Saddam Hussein’s dangerous intentions and the threat he poses to all of us than his calculated cruelty to his own citizens and to his neighbors. Clearly, Saddam Hussein and his regime will stop at nothing until something stops him. For more than years, by word and by deed, Saddam Hussein has pursued his ambition to dominate Iraq and the broader Middle East using the only means he knows: intimidation, coercion and annihilation of all those who might stand in his way. For Saddam Hussein, possession of the world’s most deadly weapons is the ultimate trump card, the one he must hold to fulfill his ambition. We know that Saddam Hussein is determined to keep his weapons of mass destruction, is determined to make more. Given Saddam Hussein’s history of aggression, given what we know of his grandiose plans, given what we know of his terrorist associations, and given his determination to exact revenge on those who oppose him, should we take the risk that he will not someday use these weapons at a time and a place and in a manner of his choosing, at a time when the world is in a much weaker position to respond? The United States will not and cannot run that risk for the American people. Leaving Saddam Hussein in possession of weapons of mass destruction for a few more months or years is not an option, not in a post-September th world.
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My colleagues, over three months ago, this Council recognized that Iraq continued to pose a threat to international peace and security, and that Iraq had been and remained in material breach of its disarmament obligations. Today, Iraq still poses a threat and Iraq still remains in material breach. Indeed, by its failure to seize on its one last opportunity to come clean and disarm, Iraq has put itself in deeper material breach and closer to the day when it will face serious consequences for its continue defiance of this Council. My colleagues, we have an obligation to our citizens. We have an obligation to this body to see that our resolutions are complied with. We wrote not in order to go to war. We wrote to try to preserve the peace. We wrote to give Iraq one last chance. Iraq is not, so far, taking that one last chance. We must not shrink from whatever is ahead of us. We must not fail in our duty and our responsibility to the citizens of the countries that are represented by this body. Thank you, Mr. President.
Appendix VI Hans Blix (Chairman of UNSCOM): Briefing to the Security Council February Mr. President, Since I reported to the Security Council on January, UNMOVIC has had two further weeks of operational and analytical work in New York and active inspections in Iraq. This brings the total period of inspections so far to weeks. Since then, we have also listened on February to the presentation to the Council by the US Secretary of State and the discussion that followed. Lastly, Dr. ElBaradei and I have held another round of talks in Baghdad with our counterparts and with Vice President Ramadan on and February. Let me begin today’s briefing with a short account of the work being performed by UNMOVIC in Iraq. We have continued to build up our capabilities. The regional office in Mosul is now fully operational at its temporary headquarters. Plans for a regional office at Basra are being developed. Our Hercules L- aircraft continues to operate routine flights between Baghdad and Larnaca. The eight helicopters are fully operational. With the resolution of the problems raised by Iraq for the transportation of minders into the no-fly zones, our mobility in these zones has improved. We expect to increase utilization of the helicopters. The number of Iraqi minders during inspections had often reached a ratio as high as five per inspector. During the talks in January in Baghdad, the Iraqi side agreed to keep the ratio to about one to one. The situation has improved. Since we arrived in Iraq, we have conducted more than inspections covering more than sites. All inspections were performed without notice, and access was almost always provided promptly. In no case have we seen convincing evidence that the Iraqi side knew in advance that the inspectors were coming. The inspections have taken place throughout Iraq at industrial sites, ammunition depots, research centres, universities, presidential sites, mobile laboratories, private houses, missile production facilities, military camps and agricultural sites. At all sites which had been inspected before , re-baselining activities were performed. This included the identification of the function and contents of each building, new or old, at a site. It also included verification of previously tagged equipment, application of seals and tags, taking samples and discussions with the site personnel regarding past and present activities. At certain sites, ground-penetrating radar was used to look for underground structures or buried equipment. Through the inspections conducted so far, we have obtained a good knowledge of the industrial and scientific landscape of Iraq, as well as of its missile capability but, as before, we do not know every cave and corner. Inspections are effectively helping to bridge the gap in knowledge that arose due to the absence of inspections between December and November . More than chemical and more than biological samples have been collected at different sites. Three-quarters of these have been screened using our own analytical laboratory capabilities at the Baghdad Centre (BOMVIC). The results to date have been consistent with Iraq’s declarations. We have now commenced the process of destroying approximately litres of mustard gas declared by Iraq that was being kept under UNMOVIC seal at the Muthanna site.
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One-third of the quantity has already been destroyed. The laboratory quantity of thiodiglycol, a mustard gas precursor, which we found at another site, has also been destroyed. The total number of staff in Iraq now exceeds from countries. This includes about UNMOVIC inspectors, IAEA inspectors, aircrew, and support staff. Mr. President, In my January update to the Council, I said that it seemed from our experience that Iraq had decided in principle to provide cooperation on process, most importantly prompt access to all sites and assistance to UNMOVIC in the establishment of the necessary infrastructure. This impression remains, and we note that access to sites has so far been without problems, including those that had never been declared or inspected, as well as to Presidential sites and private residences. In my last updating, I also said that a decision to cooperate on substance was indispensable in order to bring, through inspection, the disarmament task to completion and to set the monitoring system on a firm course. Such cooperation, as I have noted, requires more than the opening of doors. In the words of resolution ()—it requires immediate, unconditional and active efforts by Iraq to resolve existing questions of disarmament—either by presenting remaining proscribed items and programmes for elimination or by presenting convincing evidence that they have been eliminated. In the current situation, one would expect Iraq to be eager to comply. While we were in Baghdad, we met a delegation from the Government of South Africa. It was there to explain how South Africa gained the confidence of the world in its dismantling of the nuclear weapons programme, by a wholehearted cooperation over two years with IAEA inspectors. I have just learned that Iraq has accepted an offer by South Africa to send a group of experts for further talks. How much, if any, is left of Iraq’s weapons of mass destruction and related proscribed items and programmes? So far, UNMOVIC has not found any such weapons, only a small number of empty chemical munitions, which should have been declared and destroyed. Another matter—and one of great significance—is that many proscribed weapons and items are not accounted for. To take an example, a document, which Iraq provided, suggested to us that some , tonnes of chemical agent were ‘unaccounted for’. One must not jump to the conclusion that they exist. However, that possibility is also not excluded. If they exist, they should be presented for destruction. If they do not exist, credible evidence to that effect should be presented. We are fully aware that many governmental intelligence organizations are convinced and assert that proscribed weapons, items and programmes continue to exist. The US Secretary of State presented material in support of this conclusion. Governments have many sources of information that are not available to inspectors. Inspectors, for their part, must base their reports only on evidence, which they can, themselves, examine and present publicly. Without evidence, confidence cannot arise. Mr. President, In my earlier briefings, I have noted that significant outstanding issues of substance were listed in two Security Council documents from early (S// and S//) and should be well known to Iraq. I referred, as examples, to the issues of anthrax, the nerve agent VX and long-range missiles, and said that such issues ‘deserve to be taken seriously by Iraq rather than being brushed aside . . .’. The declaration submitted by Iraq on December last year, despite its large volume, missed the opportunity to provide the fresh material and evidence needed to respond to the open questions. This is perhaps the most important problem we are facing. Although I can understand that it may not be easy for Iraq in all cases to provide the evidence needed, it is not the task of the inspectors to find it. Iraq itself must squarely tackle this task and avoid belittling the questions. In my January update to the Council, I referred to the Al Samoud and the Al Fatah missiles, reconstituted casting chambers, construction of a missile engine test stand and the import of rocket engines, which were all declared to UNMOVIC by Iraq. I noted that the Al Samoud and the Al Fatah could very well represent prima facie cases of proscribed
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missile systems, as they had been tested to ranges exceeding the -kilometre limit set by the Security Council. I also noted that Iraq had been requested to cease flight tests of these missiles until UNMOVIC completed a technical review. Earlier this week, UNMOVIC missile experts met for two days with experts from a number of Member States to discuss these items. The experts concluded unanimously that, based on the data provided by Iraq, the two declared variants of the Al Samoud missile were capable of exceeding kilometres in range. This missile system is therefore proscribed for Iraq pursuant to resolution () and the monitoring plan adopted by resolution (). As for the Al Fatah, the experts found that clarification of the missile data supplied by Iraq was required before the capability of the missile system could be fully assessed. With respect to the casting chambers, I note the following: UNSCOM ordered and supervised the destruction of the casting chambers, which had been intended for use in the production of the proscribed Badr- missile system. Iraq has declared that it has reconstituted these chambers. The experts have confirmed that the reconstituted casting chambers could still be used to produce motors for missiles capable of ranges significantly greater than kilometres. Accordingly, these chambers remain proscribed. The experts also studied the data on the missile engine test stand that is nearing completion and have assessed it to be capable of testing missile engines with thrusts greater than that of the SA- engine. So far, the test stand has not been associated with a proscribed activity. On the matter of the SA- missile engines imported outside of the export/import mechanism and in contravention of paragraph of resolution (), UNMOVIC inspectors were informed by Iraq during an official briefing that these engines were intended for use in the Al Samoud missile system, which has now been assessed to be proscribed. Any such engines configured for use in this missile system would also be proscribed. I intend to communicate these findings to the Government of Iraq. At the meeting in Baghdad on and February, the Iraqi side addressed some of the important outstanding disarmament issues and gave us a number of papers, e.g. regarding anthrax and growth material, the nerve agent VX and missile production. Experts who were present from our side studied the papers during the evening of February and met with Iraqi experts in the morning of February for further clarifications. Although no new evidence was provided in the papers and no open issues were closed through them or the expert discussions, the presentation of the papers could be indicative of a more active attitude focusing on important open issues. The Iraqi side suggested that the problem of verifying the quantities of anthrax and two VX-precursors, which had been declared unilaterally destroyed, might be tackled through certain technical and analytical methods. Although our experts are still assessing the suggestions, they are not very hopeful that it could prove possible to assess the quantities of material poured into the ground years ago. Documentary evidence and testimony by staff that dealt with the items still appears to be needed. Not least against this background, a letter of February from Iraq’s National Monitoring Directorate may be of relevance. It presents a list of names of participants ‘in the unilateral destruction in the chemical field, which took place in the summer of ’. As the absence of adequate evidence of that destruction has been and remains an important reason why quantities of chemicals have been deemed ‘unaccounted for’, the presentation of a list of persons who can be interviewed about the actions appears useful and pertains to cooperation on substance. I trust that the Iraqi side will put together a similar list of names of persons who participated in the unilateral destruction of other proscribed items, notably in the biological field. The Iraqi side also informed us that the commission, which had been appointed in the wake of our finding empty chemical weapons warheads, had had its mandate expanded to look for any still existing proscribed items. This was welcomed. A second commission, we learnt, has now been appointed with the task of searching all over Iraq for more documents relevant to the elimination of proscribed items and
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programmes. It is headed by the former Minister of Oil, General Amer Rashid, and is to have very extensive powers of search in industry, administration and even private houses. The two commissions could be useful tools to come up with proscribed items to be destroyed and with new documentary evidence. They evidently need to work fast and effectively to convince us, and the world, that it is a serious effort. The matter of private interviews was discussed at length during our meeting in Baghdad. The Iraqi side confirmed the commitment, which it made to us on January, to encourage persons asked to accept such interviews, whether in or out of Iraq. So far, we have only had interviews in Baghdad. A number of persons have decline d to be interviewed, unless they were allowed to have an official present or were allowed to tape the interview. Three persons that had previously refused interviews on UNMOVIC’s terms, subsequently accepted such interviews just prior to our talks in Baghdad on and February. These interviews proved informative. No further interviews have since been accepted on our terms. I hope this will change. We feel that interviews conducted without any third party present and without tape recording would provide the greatest credibility. At the recent meeting in Baghdad, as on several earlier occasions, my colleague Dr. ElBaradei and I have urged the Iraqi side to enact legislation implementing the UN prohibitions regarding weapons of mass destruction. This morning we had a message that a Presidential decree has now been issued containing prohibitions with regard to importation and production of biological, chemical and nuclear weapons. We have not yet had time to study the details of the text of the decree. Mr. President, I should like to make some comments on the role of intelligence in connection with inspections in Iraq. A credible inspection regime requires that Iraq provide full cooperation on ‘process’— granting immediate access everywhere to inspectors—and on substance, providing full declarations supported by relevant information and material and evidence. However, with the closed society in Iraq of today and the history of inspections there, other sources of information, such as defectors and government intelligence agencies are required to aid the inspection process. I remember myself how, in , several inspections in Iraq, which were based on information received from a Government, helped to disclose important parts of the nuclear weapons programme. It was realized that an international organization authorized to perform inspections anywhere on the ground could make good use of information obtained from governments with eyes in the sky, ears in the ether, access to defectors, and both eyes and ears on the market for weapons-related material. It was understood that the information residing in the intelligence services of governments could come to very active use in the international effort to prevent proliferation of weapons of mass destruction. This remains true and we have by now a good deal of experience in the matter. International organizations need to analyse such information critically and especially benefit when it comes from more than one source. The intelligence agencies, for their part, must protect their sources and methods. Those who provide such information must know that it will be kept in strict confidence and be known to very few people. UNMOVIC has achieved good working relations with intelligence agencies and the amount of information provided has been gradually increasing. However, we must recognize that there are limitations and that misinterpretations can occur. Intelligence information has been useful for UNMOVIC. In one case, it led us to a private home where documents mainly relating to laser enrichment of uranium were found. In other cases, intelligence has led to sites where no proscribed items were found. Even in such cases, however, inspection of these sites were useful in proving the absence of such items and in some cases the presence of other items—conventional munitions. It showed that conventional arms are being moved around the country and that movements are not necessarily related to weapons of mass destruction.
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The presentation of intelligence information by the US Secretary of State suggested that Iraq had prepared for inspections by cleaning up sites and removing evidence of proscribed weapons programmes. I would like to comment only on one case, which we are familiar with, namely, the trucks identified by analysts as being for chemical decontamination at a munitions depot. This was a declared site, and it was certainly one of the sites Iraq would have expected us to inspect. We have noted that the two satellite images of the site were taken several weeks apart. The reported movement of munitions at the site could just as easily have been a routine activity as a movement of proscribed munitions in anticipation of imminent inspection. Our reservation on this point does not detract from our appreciation of the briefing. Yesterday, UNMOVIC informed the Iraqi authorities of its intention to start using the U surveillance aircraft early next week under arrangements similar to those UNSCOM had followed. We are also in the process of working out modalities for the use of the French Mirage aircraft starting late next week and for the drones supplied by the German Government. The offer from Russia of an Antonov aircraft, with night vision capabilities, is a welcome one and is next on our agenda for further improving UNMOVIC’s and IAEA’s technical capabilities. These developments are in line with suggestions made in a non-paper recently circulated by France, suggesting a further strengthening of the inspection capabilities. It is our intention to examine the possibilities for surveying ground movements, notably by trucks. In the face of persistent intelligence reports for instance about mobile biological weapons production units, such measures could well increase the effectiveness of inspections. UNMOVIC is still expanding its capabilities, both in terms of numbers of staff and technical resources. On my way to the recent Baghdad meeting, I stopped in Vienna to meet experts, who had just completed our general training course for inspectors. They came from countries, including Arab countries. Mr. President, UNMOVIC is not infrequently asked how much more time it needs to complete its task in Iraq. The answer depends upon which task one has in mind—the elimination of weapons of mass destruction and related items and programmes, which were prohibited in —the disarmament task—or the monitoring that no new proscribed activities occur. The latter task, though not often focused upon, is highly significant—and not controversial. It will require monitoring, which is ‘ongoing’, that is, open-ended until the Council decides otherwise. By contrast, the task of ‘disarmament’ foreseen in resolution () and the progress on ‘key remaining disarmament tasks’ foreseen in resolution () as well as the ‘disarmament obligations’, which Iraq was given a ‘final opportunity to comply with’ under resolution (), were always required to be fulfilled in a shorter time span. Regrettably, the high degree of cooperation required of Iraq for disarmament through inspection was not forthcoming in . Despite the elimination, under UNSCOM and IAEA supervision, of large amounts of weapons, weapons-related items and installations over the years, the task remained incomplete, when inspectors were withdrawn almost years later at the end of . If Iraq had provided the necessary cooperation in , the phase of disarmament—under resolution ()—could have been short and a decade of sanctions could have been avoided. Today, three months after the adoption of resolution (), the period of disarmament through inspection could still be short, if ‘immediate, active and unconditional cooperation’ with UNMOVIC and the IAEA were to be forthcoming.
Appendix VII The Advice of the United Kingdom Attorney-General, Lord Goldsmith, on ‘The Legal Basis For The Use Of Force Against Iraq’ March The UK Attorney-General, Lord Goldsmith, summarized the legal basis for the use of force as follows: Authority to use force against Iraq exists from the combined effect of resolutions , and . All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security. . In resolution the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area. . In resolution , which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution suspended but did not terminate the authority to use force under resolution . . A material breach of resolution revives the authority to use force under resolution . . In resolution the Security Council determined that Iraq has been and remains in material breach of resolution , because it has not fully complied with its obligations to disarm under that resolution. . The Security Council in resolution gave Iraq ‘a final opportunity to comply with its disarmament obligations’ and warned Iraq of the ‘serious consequences’ if it did not. . The Security Council also decided in resolution that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution , that would constitute a further material breach. . It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution and continues to be in material breach. . Thus, the authority to use force under resolution has revived and so continues today. . Resolution would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.
Appendix VIII Iraq: Legal Basis For The Use Of Force Foreign and Commonwealth Office Memorandum March Foreign and Commonwealth Office
Summary . The legal basis for any military action against Iraq would be the authorisation which the Security Council, by its resolution (), gave to Member States to use all necessary means to restore international peace and security in the area. That authorisation was suspended but not terminated by Security Council resolution (SCR) (), and revived by SCR (). In SCR , the Security Council has determined— () that Iraq’s possession of weapons of mass destruction (WMD) constitutes a threat to international peace and security; () that Iraq has failed—in clear violation of its legal obligations—to disarm; and () that, in consequence, Iraq is in material breach of the conditions for the ceasefire laid down by the Council in SCR at the end of the hostilities in , thus reviving the authorisation in SCR .
The extent of the authority to use force contained in SCR . Chapter VII of the United Nations Charter gives the Security Council the power to authorise States to take such military action as may be necessary to maintain or restore international peace and security. . In the case of Iraq, the Security Council took such a step following the Iraqi invasion of Kuwait. Paragraph of SCR authorised ‘Member States co-operating with the Government of Kuwait . . . to use all necessary means to uphold and implement resolution () and all subsequent relevant resolutions and to restore international peace and security in the area.’ The phrase ‘all necessary means’ was understood then (as it is now) as including the use of force. . Following the liberation of Kuwait, the Security Council adopted SCR . This resolution set out the steps which the Council required Iraq to take in order to restore international peace and security in the area. Iraq’s acceptance of those requirements was the condition for the declaration of a formal ceasefire. Those steps included the destruction of all WMD under international supervision and the requirement that Iraq should not attempt to acquire such weapons or the means of their manufacture. As a means to achieving the disarmament required by the Security Council, SCR also required Iraq to submit to extensive weapons inspection by UNSCOM (now UNMOVIC) and the IAEA. The Security Council was quite clear that these steps were essential to the restoration of international peace and security in the area.
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. SCR did not repeal the authorisation to use force in paragraph of SCR . On the contrary, it confirmed that SCR remained in force. The authorisation was suspended for so long as Iraq complied with the conditions of the ceasefire. But the authorisation could be revived if the Council determined that Iraq was acting in material breach of the requirements of SCR . Although almost twelve years have elapsed since SCR was adopted, Iraq has never taken the steps required of it by the Council. Throughout that period the Council has repeatedly condemned Iraq for violations of SCR and has adopted numerous resolutions on the subject. In and again in the coalition took military action under the revived authority of SCR to deal with the threat to international peace and security posed by those violations. . In relation to the action in , the Minister of State at the Foreign and Commonwealth Office wrote: ‘The Security Council determined in its statements of and January that Iraq was in material breach of resolutions and its related resolutions, and warned Iraq that serious consequences would ensue from continued failure to comply with its obligations. Resolution lays down the terms for the formal ceasefire between the coalition states and Iraq at the end of the hostilities mandated by the Security Council in resolution . These terms are binding in themselves but have also been specifically accepted by Iraq as a condition for the formal ceasefire to come into effect. In the light of Iraq’s continued breaches of Security Council resolution and thus of the ceasefire terms, and the repeated warnings given by the Security Council and members of the coalition, their forces were entitled to take necessary and proportionate action in order to ensure that Iraq complies with those terms.’ . On January , in relation to the UK/US military action the previous day, the then UN Secretary-General said: ‘The raid yesterday, and the forces which carried out the raid, have received a mandate from the Security Council, according to resolution , and the cause of the raid was the violation by Iraq of resolution concerning the ceasefire. So, as Secretary-General of the United Nations, I can say that this action was taken and conforms to the resolutions of the Security Council and conforms to the Charter of the United Nations.’ . In relation to the military action undertaken in , the then Parliamentary UnderSecretary of State (now Minister of State) at the Foreign and Commonwealth Office, Baroness Symons of Vernham Dean stated: ‘In our previous discussions in this House some of your Lordships asked about the legality of our action. Any action involving UK forces would be based on international law. The Charter of the United Nations allows for the use of force under the authority of the Security Council. The Security Council resolution adopted before the Gulf conflict authorised the use of force in order to restore international peace and security in the region. Iraq is in clear breach of Security Council resolution which laid down the conditions for the ceasefire at the end of the conflict. Those conditions included a requirement on Iraq to eliminate its weapons of mass destruction under international supervision. Those conditions have been broken.’
Security Council Resolution () . It is against that legal background that United Kingdom and the United States brought to the Council the draft resolution which was eventually adopted unanimously as SCR on November . The preamble to that resolution again expressly referred to SCR , confirming once more that that resolution was still in force. It also recognised the threat that Iraq’s non-compliance with Council resolutions posed to international peace and security; and it recalled that SCR imposed obligations on Iraq as a necessary step for the achievement of its objective of restoring international peace and security. In paragraph the Council went on to decide that Iraq ‘has been and remains
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in material breach’ of its obligations under SCR and other relevant resolutions. The use of the term ‘material breach’ is of the utmost importance because the practice of the Security Council during the ’s shows that it was just such a finding of material breach by Iraq which served to revive the authorisation of force in SCR . . On this occasion, however, the Council decided (in paragraph of SCR ) to offer Iraq ‘a final opportunity to comply with its disarmament obligations.’ Iraq was required to produce an accurate, full and complete declaration of all aspects of its prohibited programmes (paragraph ), and to provide immediate and unrestricted access to UNMOVIC and IAEA (paragraph ). Failure by Iraq to comply with the requirements of SCR was declared to be a further material breach of Iraq’s obligations (paragraph ), in addition to the continuing breach already identified in paragraph . In the event of a further breach (paragraph ), or interference by Iraq with the inspectors or failure to comply with any of the disarmament obligations under any of the relevant resolutions (paragraph ), the matter was to be reported to the Security Council. The Security Council was then to convene ‘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’ (paragraph ). The Council warned Iraq (paragraph ) that ‘it will face serious consequences as a result of its continued violations of its obligations’. . It is important to stress that SCR did not revive the authorisation immediately on its adoption. There was no ‘automaticity’. The resolution afforded Iraq a final opportunity to comply and it provided for any failure by Iraq to be ‘considered’ by the Security Council (under paragraph of the resolution). That paragraph does not, however, mean that no further action can be taken without a new resolution of the Council. Had that been the intention, it would have provided that the Council would decide what needed to be done to restore international peace and security, not that it would consider the matter. The choice of words was deliberate; a proposal that there should be a requirement for a decision by the Council, a position maintained by several Council members, was not adopted. Instead the members of the Council opted for the formula that the Council must consider the matter before any action is taken. . That consideration has taken place regularly since the adoption of SCR . It is plain, including from UNMOVIC’s statements to the Security Council, its Twelfth Quarterly Report and the so-called ‘Clusters Document’, that Iraq has not complied as required with its disarmament obligations. Whatever other differences there may have been in the Security Council, no member of the Council has questioned this conclusion. It therefore follows that Iraq has not taken the final opportunity offered to it and remains in material breach of the disarmament obligations which, for twelve years, the Council has insisted are essential for the restoration of peace and security. In these circumstances, the authorisation to use force contained in SCR revives.
Appendix IX United Kingdom Prime Minister’s Statements on Iraq to the House of Commons on February and March February : With permission, Mr Speaker, I will make a further statement on Iraq. Let me again briefly recap the history of the Iraqi crisis. In at the conclusion of the Gulf War, the true extent of Saddam’s WMD programme became clear. We knew he had used these weapons against his own people, and against a foreign country, Iran, but we had not known that in addition to chemical weapons, he had biological weapons which he had denied completely and was trying to construct a nuclear weapons programme. So on April , the UN passed the first UN Resolution on Saddam and WMD, giving him days to give an open account of all his weapons and co-operate fully with the UN inspectors in destroying them. days later he submitted a flawed and incomplete declaration denying he had biological weapons and giving little information on chemical weapons. It was only four years later after the defection of Saddam’s son-in-law to Jordan, that the offensive biological weapons and the full extent of the nuclear programme were discovered. In all, UN Resolutions were passed. None was obeyed. At no stage did he co-operate. At no stage did he tell the full truth. Finally in December when he had begun to obstruct and harass the UN inspectors, they withdrew. When they left they said there were still large amounts of WMD unaccounted for. Since then the international community has relied on sanctions and the No Fly Zones policed by US and UK pilots to contain Saddam. But the first is not proof against Saddam’s deception and the second is limited in its impact. In the sanctions were made more targeted. But around $ billion a year is illicitly taken by Saddam, much of it for his and his family’s personal use. The intelligence is clear: he continues to believe his WMD programme is essential both for internal repression and for external aggression. It is essential to his regional power. Prior to the inspectors coming back in he was engaged in a systematic exercise in concealment of the weapons. That is the history. Finally last November UN Resolution declared Saddam in material breach and gave him a ‘final opportunity’ to comply fully immediately and unconditionally with the UN’s instruction to disarm voluntarily. The first step was to give an open, honest declaration of what WMD he had, where it was and how it would be destroyed. On December he submitted the declaration denying he had any WMD, a statement not a single member of the international community seriously believes. There have been two UN inspectors reports. Both have reported some co-operation on process. Both have denied progress on substance. So: how to proceed? There are two paths before the UN. Yesterday the UK along with the US and Spain introduced a new Resolution declaring that ‘Iraq has failed to take the final opportunity afforded to it in Resolution ’. But we will not put it to a vote immediately. Instead we will delay it to give Saddam one further final chance to disarm voluntarily. The UN inspectors are continuing their
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work. They have a further report to make in March. But this time Saddam must understand. Now is the time for him to decide. Passive rather than active co-operation will not do. Co-operation on process not substance will not do. Refusal to declare properly and fully what has happened to the unaccounted for WMD will not do. Resolution called for full, unconditional and immediate compliance. Not per cent, not per cent, not even per cent, but per cent compliance. Anything less will not do. That is all we ask; that what we said in Resolution we mean; and that what it demands, Saddam does. There is no complexity about Resolution . I ask all reasonable people to judge for themselves: After years is it not reasonable that the UN inspectors have unrestricted access to Iraqi scientists—that means no tape recorders, no minders, no intimidation, interviews outside Iraq as provided for by Resolution ? So far this simply isn’t happening. Is it not reasonable that Saddam provides evidence of destruction of the biological and chemical agents and weapons the UN proved he had in ? So far he has provided none. Is it not reasonable that he provides evidence that he has destroyed , litres of anthrax that he admitted possessing, and the , kilos of biological growth material, enough to produce over , litres of anthrax? Is it not reasonable that Saddam accounts for up to tonnes of bulk chemical warfare agent, including _ tonnes of VX nerve agents, , tonnes of precursor chemicals, and over , special munitions? To those who say we are rushing to war, I say this. We are now years after Saddam was first told by the UN to disarm; nearly months after President Bush made his speech to the UN accepting the UN route to disarmament; nearly months on from Resolution ; and even now today we are offering Saddam the prospect of voluntary disarmament through the UN. I detest his regime. But even now he can save it by complying with the UN’s demand. Even now, we are prepared to go the extra step to achieve disarmament peacefully. I do not want war. I do not believe anyone in this House wants war. But disarmament peacefully can only happen with Saddam’s active co-operation. years of bitter experience teaches that. And if he refuses to co-operate—as he is refusing now and we fail to act, what then? Saddam in charge of Iraq, his WMD intact, the will of the international community set at nothing, the UN tricked again, Saddam hugely strengthened and emboldened—does anyone truly believe that will mean peace? And when we turn to deal with other threats, where will our authority be? And when we make a demand next time, what will our credibility be? This is not a road to peace but folly and weakness that will only mean the conflict when it comes is more bloody, less certain and greater in its devastation. Our path laid out before the UN expresses our preference to resolve this peacefully; but it ensures we remain firm in our determination to resolve it. I have read the memorandum put forward by France, Germany and Russia in response to our UN Resolution. It is to be welcomed at least in these respects. It accepts that Saddam must disarm fully. And it accepts that he is not yet co-operating fully. Indeed not a single member of the EU who spoke at the Summit in Brussels on February disputed the fact of his non-co-operation. But the call is for more time, up to the end of July at least. They say the time is necessary ‘to search out’ the weapons. At the core of this proposition is the notion that the task of the inspectors is to enter Iraq to find the weapons, to sniff them out as one member of the European Council put it. That is emphatically not the inspectors’ job. They are not a detective agency. And even if they were, Iraq is a country with a land mass roughly the size of France. The idea that the inspectors could conceivably sniff out the weapons and documentation relating to them without the help of the Iraqi authorities is absurd. That is why calls for Iraq’s active co-operation.
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The issue is not time. It is will. If Saddam is willing genuinely to co-operate then the inspectors should have up to July, and beyond July; as much time as they want. If he is not willing to co-operate then equally time will not help. We will be just right back where we were in the s. And, of course, Saddam will offer concessions. This is a game with which he is immensely familiar. As the threat level rises, so the concessions are eked out. At present he is saying he will not destroy the Al-Samud missiles the inspectors have found were in breach of . But he will, under pressure, claiming that this proves his co-operation. But does anyone think that he would be making any such concessions, that indeed the inspectors would be within a , miles of Baghdad, were it not for the US and UK troops massed on his doorstep? And what is his hope? To play for time, to drag the process out until the attention of the international community wanes, the troops go, the way is again clear for him. Give it more time, some urge on us. I say we are giving it more time. But I say this too: it takes no time at all for Saddam to co-operate. It just takes a fundamental change of heart and mind. Today the path to peace is clear. Saddam can co-operate fully with the inspectors. He can voluntarily disarm. He can even leave the country peacefully. But he cannot avoid disarmament. One further point. The purpose in our acting is disarmament. But the nature of Saddam’s regime is relevant in two ways. First, WMD in the hands of a regime of this brutality is especially dangerous because Saddam has shown he will use them. Secondly, I know the innocent as well as the guilty die in a war. But do not let us forget the million Iraqi exiles, the thousands of children who die needlessly every year due to Saddam’s impoverishment of his country—a country which in was wealthier than Portugal or Malaysia but now is in ruins, per cent of its people on food aid. Let us not forget the tens of thousands imprisoned, tortured or executed by his barbarity every year. The innocent die every day in Iraq victims of Saddam, and their plight too should be heard. And I know the vital importance in all of this of the Middle East peace process. The European Council last week called for the early implementation of the Roadmap. Terror and violence must end. So must settelement activity. We welcomed President Arafat’s statement that he will appoint a Prime Minister, an initiative flowing from last month’s London conference on Palestinian reform. I will continue to strive in every way for an even-handed and just approach to the Middle East peace process. At stake in Iraq is not just peace or war. It is the authority of the UN. Resolution is clear. All we are asking is that it now be upheld. If it is not, the consequences will stretch far beyond Iraq. If the UN cannot be the way of resolving this issue, that is a dangerous moment for our world. That is why over the coming weeks we will work every last minute we can to reunite the international community and disarm Iraq through the UN. It is our desire and it is still our hope that this can be done
March : I beg to move, That this House notes its decisions of th November and th February to endorse UN Security Council Resolution ; recognises that Iraq’s weapons of mass destruction and long range missiles, and its continuing non-compliance with Security Council Resolutions, pose a threat to international peace and security; notes that in the days since Resolution was adopted Iraq has not co-operated actively, unconditionally and immediately with the weapons inspectors, and has rejected the final opportunity to comply and is in further material breach of its obligations under successive mandatory UN Security Council Resolutions; regrets that despite sustained diplomatic effort by Her Majesty’s Government it has not proved possible to secure a second
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Resolution in the UN because one Permanent Member of the Security Council made plain in public its intention to use its veto whatever the circumstances; notes the opinion of the Attorney General that, Iraq having failed to comply and Iraq being at the time of Resolution and continuing to be in material breach, the authority to use force under Resolution has revived and so continues today; believes that the United Kingdom must uphold the authority of the United Nations as set out in Resolution and many Resolutions preceding it, and therefore supports the decision of Her Majesty’s Government that the United Kingdom should use all means necessary to ensure the disarmament of Iraq’s weapons of mass destruction; offers wholehearted support to the men and women of Her Majesty’s Armed Forces now on duty in the Middle East; in the event of military operations requires that, on an urgent basis, the United Kingdom should seek a new Security Council Resolution that would affirm Iraq’s territorial integrity, ensure rapid delivery of humanitarian relief, allow for the earliest possible lifting of UN sanctions, an international reconstruction programme, and the use of all oil revenues for the benefit of the Iraqi people and endorse an appropriate post-conflict administration for Iraq, leading to a representative government which upholds human rights and the rule of law for all Iraqis; and also welcomes the imminent publication of the Quartet’s roadmap as a significant step to bringing a just and lasting peace settlement between Israelis and Palestinians and for the wider Middle East region, and endorses the role of Her Majesty’s Government in actively working for peace between Israel and Palestine. At the outset, I say that it is right that the House debate this issue and pass judgment. That is the democracy that is our right, but that others struggle for in vain. Again, I say that I do not disrespect the views in opposition to mine. This is a tough choice indeed, but it is also a stark one: to stand British troops down now and turn back, or to hold firm to the course that we have set. I believe passionately that we must hold firm to that course. The question most often posed is not ‘Why does it matter?’ but ‘Why does it matter so much?’ Here we are, the Government, with their most serious test, their majority at risk, the first Cabinet resignation over an issue of policy, the main parties internally divided, people who agree on everything else—[Hon. Members: ‘The main parties?’] Ah, yes, of course. The Liberal Democrats—unified, as ever, in opportunism and error. [Interruption.] The country and the Parliament reflect each other. This is a debate that, as time has gone on, has become less bitter but no less grave. So why does it matter so much? Because the outcome of this issue will now determine more than the fate of the Iraqi regime and more than the future of the Iraqi people who have been brutalised by Saddam for so long, important though those issues are. It will determine the way in which Britain and the world confront the central security threat of the st century, the development of the United Nations, the relationship between Europe and the United States, the relations within the European Union and the way in which the United States engages with the rest of the world. So it could hardly be more important. It will determine the pattern of international politics for the next generation. First, let us recap the history of Iraq and weapons of mass destruction. In April , after the Gulf war, Iraq was given days to provide a full and final declaration of all its weapons of mass destruction. Saddam had used the weapons against Iran and against his own people, causing thousands of deaths. He had had plans to use them against allied forces. It became clear, after the Gulf war, that Iraq’s WMD ambitions were far more extensive than had hitherto been thought. So the issue was identified by the United Nations at that time as one for urgent remedy. UNSCOM, the weapons inspection team, was set up. It was expected to complete its task, following the declaration, at the end of April . The declaration, when it came, was false: a blanket denial of the programme, other than in a very tentative form. And so the -year game began. The inspectors probed. Finally, in March , Iraq admitted that it had previously undeclared weapons of mass destruction, but it said that it had destroyed them. It gave another
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full and final declaration. Again the inspectors probed. In October , Iraq stopped cooperating with the weapons inspectors altogether. Military action was threatened. Inspections resumed. In March , in an effort to rid Iraq of the inspectors, a further full and final declaration of WMD was made. By July , however, Iraq was forced to admit that declaration, too, was false. In August, it provided yet another full and final declaration. Then, a week later, Saddam’s son-in-law, Hussein Kamal, defected to Jordan. He disclosed a far more extensive biological weapons programme and, for the first time, said that Iraq had weaponised the programme— something that Saddam had always strenuously denied. All this had been happening while the inspectors were in Iraq. Kamal also revealed Iraq’s crash programme to produce a nuclear weapon in the s. Iraq was then forced to release documents that showed just how extensive those programmes were. In November , Jordan intercepted prohibited components for missiles that could be used for weapons of mass destruction. Then a further ‘full and final declaration’ was made. That, too, turned out to be false. In June , inspectors were barred from specific sites. In September , lo and behold, yet another ‘full and final declaration’ was made—also false. Meanwhile, the inspectors discovered VX nerve agent production equipment, the existence of which had always been denied by the Iraqis. In October , the United States and the United Kingdom threatened military action if Iraq refused to comply with the inspectors. Finally, under threat of action in February , Kofi Annan went to Baghdad and negotiated a memorandum with Saddam to allow inspections to continue. They did continue, for a few months. In August, co-operation was suspended. In December, the inspectors left. Their final report is a withering indictment of Saddam’s lies, deception and obstruction, with large quantities of weapons of mass destruction unaccounted for. Then, in December , the US and the UK undertook Desert Fox, a targeted bombing campaign to degrade as much of the Iraqi WMD facility as we could. In , a new inspection team, UNMOVIC, was set up. Saddam refused to allow those inspectors even to enter Iraq. So there they stayed, in limbo, until, after resolution last November, they were allowed to return. That is the history—and what is the claim of Saddam today? Why, exactly the same as before: that he has no weapons of mass destruction. Indeed, we are asked to believe that after seven years of obstruction and non-compliance, finally resulting in the inspectors’ leaving in —seven years in which he hid his programme and built it up, even when the inspectors were there in Iraq—when they had left, he voluntarily decided to do what he had consistently refused to do under coercion. When the inspectors left in , they left unaccounted for , litres of anthrax; a far-reaching VX nerve agent programme; up to , chemical munitions; at least tonnes of mustard gas, and possibly more than times that amount; unquantifiable amounts of sarin, botulinum toxin and a host of other biological poisons; and an entire Scud missile programme. We are asked now seriously to accept that in the last few years—contrary to all history, contrary to all intelligence—Saddam decided unilaterally to destroy those weapons. I say that such a claim is palpably absurd. Resolution is very clear. It lays down a final opportunity for Saddam to disarm. It rehearses the fact that he has for years been in material breach of UN resolutions. It says that this time compliance must be full, unconditional and immediate, the first step being a full and final declaration of all weapons of mass destruction to be given on December last year. I will not go through all the events since then, as the House is familiar with them, but this much is accepted by all members of the UN Security Council: the December declaration is false. That in itself, incidentally, is a material breach. Iraq has taken some steps in cooperation, but no one disputes that it is not fully co-operating. Iraq continues to deny that
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it has any weapons of mass destruction, although no serious intelligence service anywhere in the world believes it. On March, the inspectors published a remarkable document. It is pages long, and details all the unanswered questions about Iraq’s weapons of mass destruction. It lists different areas in which the inspectors have been unable to obtain information. On VX, for example, it says: ‘Documentation available to UNMOVIC suggests that Iraq at least had had far reaching plans to weaponise VX’. On mustard gas, it says: ‘Mustard constituted an important part . . . of Iraq’s CW arsenal . . . mustard filled shells and up to mustard filled aerial bombs unaccounted for . . . additional uncertainty’ with respect to over , aerial bombs, ‘corresponding to approximately , tonnes of agent, predominantly mustard.’ On biological weapons, the inspectors’ report states: ‘Based on unaccounted for growth media, Iraq’s potential production of anthrax could have been in the range of about , to , litres . . . Based on all the available evidence, the strong presumption is that about , litres of anthrax was not destroyed and may still exist.’ On that basis, I simply say to the House that, had we meant what we said in resolution , the Security Council should have convened and condemned Iraq as in material breach. What is perfectly clear is that Saddam is playing the same old games in the same old way. Yes, there are minor concessions, but there has been no fundamental change of heart or mind. However, after March, the inspectors said that there was at least some co-operation, and the world rightly hesitated over war. Let me now describe to the House what then took place. We therefore approached a second resolution in this way. As I said, we could have asked for the second resolution then and there, because it was justified. Instead, we laid down an ultimatum calling upon Saddam to come into line with resolution , or be in material breach. That is not an unreasonable proposition, given the history, but still countries hesitated. They asked, ‘How do we judge what is full co-operation?’ So we then worked on a further compromise. We consulted the inspectors and drew up five tests, based on the document that they published on March. Those tests included allowing interviews with scientists to be held outside Iraq, and releasing details of the production of the anthrax, or at least of the documentation showing what had happened to it. The inspectors added another test: that Saddam should publicly call on Iraqis to co-operate with them. So we constructed this framework: that Saddam should be given a specified time to fulfil all six tests to show full co-operation; and that, if he did so, the inspectors could then set out a forward work programme that would extend over a period of time to make sure that disarmament happened. However, if Saddam failed to meet those tests to judge compliance, action would follow. So there were clear benchmarks, plus a clear ultimatum. Again, I defy anyone to describe that as an unreasonable proposition. Last Monday, we were getting very close with it. We very nearly had the majority agreement. If I might, I should particularly like to thank the President of Chile for the constructive way in which he approached this issue. Yes, there were debates about the length of the ultimatum, but the basic construct was gathering support. Then, on Monday night, France said that it would veto a second
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resolution, whatever the circumstances. Then France denounced the six tests. Later that day, Iraq rejected them. Still, we continued to negotiate, even at that point. Last Friday, France said that it could not accept any resolution with an ultimatum in it. On Monday, we made final efforts to secure agreement. However, the fact is that France remains utterly opposed to anything that lays down an ultimatum authorising action in the event of non-compliance by Saddam. Hugh Bayley (City of York): Will my right hon. Friend give way? The Prime Minister: Very well. Hugh Bayley: I am grateful to my right hon. Friend. I took the view that Britain should not engage in military action without a second resolution, but the decision of some members of the Security Council to back away from the commitment that they gave in November to enforce resolution has made me change my mind. Does my right hon. Friend agree that France’s decision to use the veto against any further Security Council resolution has, in effect, disarmed the UN instead of disarming Iraq? The Prime Minister: Of course I agree with my hon. Friend. The House should just consider the position that we were asked to adopt. Those on the Security Council opposed to us say that they want Saddam to disarm, but they will not countenance any new resolution that authorises force in the event of non-compliance. That is their position—no to any ultimatum and no to any resolution that stipulates that failure to comply will lead to military action. So we must demand that Saddam disarms, but relinquish any concept of a threat if he does not. From December to December , no UN inspector was allowed to inspect anything in Iraq. For four years, no inspection took place. What changed Saddam’s mind was the threat of force. From December to January, and then from January through to February, some concessions were made. What changed his mind? It was the threat of force. What makes him now issue invitations to the inspectors, discover documents that he said he never had, produce evidence of weapons supposed to be non-existent, and destroy missiles he said he would keep? It is the imminence of force. The only persuasive power to which he responds is , allied troops on his doorstep. However, when that fact is so obvious, we are told that any resolution that authorises force in the event of non-compliance will be vetoed—not just opposed, but vetoed and blocked. Mr. Jon Owen Jones (Cardiff, Central): If it is the case, as the Government continually say, that the French position was so uniquely influential, why did not the Government and the United States pursue the second resolution, which—if the Government have given us a true reflection of the Security Council’s position—would show that the French were isolated? The Prime Minister: For the very reason that I have just given. If a member of the permanent five indicates to members of the Security Council who are not permanent members that whatever the circumstances it will veto, that is the way to block any progress on the Security Council. [Interruption.] With the greatest respect to whoever shouted out that the presence of the troops is working, I agree, but it is British and American troops who are there, not French troops. The tragedy is that had such a resolution ensued and had the UN come together and united—and if other troops had gone there, not just British and American troops—Saddam Hussein might have complied. But the moment we proposed the benchmarks and canvassed support for an ultimatum, there was an immediate recourse to the language of the veto. The choice was not action now or postponement of action; the choice was action or no action at all.
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Llew Smith (Blaenau Gwent): What does the Prime Minister mean by an ‘unreasonable veto’? Were the occasions on which the UK has used the veto and the occasions on which the US has used the veto reasonable or unreasonable? The Prime Minister: We can argue about each one of those vetoes in the past and whether they were reasonable, but I define an unreasonable veto as follows. In resolution , we said that it was Saddam’s final opportunity and that he had to comply. That was agreed by all members of the Security Council. What is surely unreasonable is for a country to come forward now, at the very point when we might reach agreement and when we are—not unreasonably—saying that he must comply with the UN, after all these months without full compliance, on the basis of the six tests or action will follow. For that country to say that it will veto such a resolution in all circumstances is what I would call unreasonable. The tragedy is that the world has to learn the lesson all over again that weakness in the face of a threat from a tyrant is the surest way not to peace, but—unfortunately—to conflict. Looking back over those years, the truth is that we have been victims of our own desire to placate the implacable, to persuade towards reason the utterly unreasonable, and to hope that there was some genuine intent to do good in a regime whose mind is in fact evil. Now the very length of time counts against us. People say, ‘You’ve waited years, so why not wait a little longer?’ Of course we have done so, because resolution gave a final opportunity. As I have just pointed out, the first test was on December. But still we waited. We waited for the inspectors’ reports. We waited as each concession was tossed to us to whet our appetite for hope and further waiting. But still no one, not even today at the Security Council, says that Saddam is co-operating fully, unconditionally or immediately. Simon Hughes (Southwark, North and Bermondsey): The Prime Minister will carry the House with him in describing the evil of Saddam Hussein and the effectiveness of the threat of force. Can he therefore explain why the diplomacy that has not so far succeeded— not through lack of his effort—should not be continued for a little longer, so that agreement could be reached between all permanent members of the Security Council? Then if force had to be used, it could be backed with the authority of the UN, instead of undermining the UN. The Prime Minister: We could have had more time if the compromise proposal that we put forward had been accepted. I take it from what the hon. Gentleman has just said that he would accept that the compromise proposal we put forward was indeed reasonable. We set out the tests. If Saddam meets those tests, we extend the work programme of the inspectors. If he does not meet those tests, we take action. I think that the hon. Gentleman would also agree that unless the threat of action was made, it was unlikely that Saddam would meet the tests. Simon Hughes indicated assent. The Prime Minister: The hon. Gentleman nods his head, but the problem with the diplomacy was that it came to an end after the position of France was made public—and repeated in a private conversation—and it said that it would block, by veto, any resolution that contained an ultimatum. We could carry on discussing it for a long time, but the French were not prepared to change their position. I am not prepared to carry on waiting and delaying, with our troops in place in difficult circumstances, when that country has made it clear that it has a fixed position and will not change. I would have hoped that, rather than condemn us for not waiting even longer, the hon. Gentleman would condemn those who laid down the veto. David Winnick (Walsall, North): Does my right hon. Friend agree that a criticism can be made of all the countries that make up the Security Council because it has taken years to reach this point? Why was action not taken earlier? The delay and frustration has only encouraged the Iraqi dictator to act as he has, and there is no justification for further delay.
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The Prime Minister: I truly believe that our fault has not been impatience. The truth is that our patience should have been exhausted weeks and months and even years ago. Mr. Alex Salmond (Banff and Buchan): The Prime Minister says that the French have changed position, but surely the French, Russians and Chinese always made it clear that they would oppose a second resolution that led automatically to war. [Interruption.] Well they publicised that view at the time of resolution . Is it not the Prime Minister who has changed his position? A month ago, he said that the only circumstances in which he would go to war without a second resolution was if the inspectors concluded that there had been no more progress, which they have not; if there were a majority on the Security Council, which there is not; and if there were an unreasonable veto from one country, but there are three permanent members opposed to the Prime Minister’s policy. When did he change his position, and why? The Prime Minister: First, the hon. Gentleman is absolutely wrong about the position on resolution . It is correct that resolution did not say that there would be another resolution authorising the use of force, but the implication of resolution —it was stated in terms—was that if Iraq continued in material breach, defined as not co-operating fully, immediately and unconditionally, serious consequences should follow. All we are asking for in the second resolution is the clear ultimatum that if Saddam continues to fail to co-operate, force should be used. The French position is that France will vote no, whatever the circumstances. Those are not my words, but those of the French President. I find it sad that at this point in time he cannot support us in the position we have set out, which is the only sure way to disarm Saddam. And what, indeed, would any tyrannical regime possessing weapons of mass destruction think when viewing the history of the world’s diplomatic dance with Saddam over these years? That our capacity to pass firm resolutions has only been matched by our feebleness in implementing them. That is why this indulgence has to stop— because it is dangerous: dangerous if such regimes disbelieve us; dangerous if they think they can use our weakness, our hesitation, and even the natural urges of our democracy towards peace against us; and dangerous because one day they will mistake our innate revulsion against war for permanent incapacity, when, in fact, if pushed to the limit, we will act. But when we act, after years of pretence, the action will have to be harder, bigger, more total in its impact. It is true that Iraq is not the only country with weapons of mass destruction, but I say this to the House: back away from this confrontation now, and future conflicts will be infinitely worse and more devastating in their effects. Of course, in a sense, any fair observer does not really dispute that Iraq is in breach of resolution or that it implies action in such circumstances. The real problem is that, underneath, people dispute that Iraq is a threat, dispute the link between terrorism and weapons of mass destruction, and dispute, in other words, the whole basis of our assertion that the two together constitute a fundamental assault on our way of life. There are glib and sometimes foolish comparisons with the s. I am not suggesting for a moment that anyone here is an appeaser or does not share our revulsion at the regime of Saddam. However, there is one relevant point of analogy. It is that, with history, we know what happened. We can look back and say, ‘There’s the time; that was the moment; that’s when we should have acted.’ However, the point is that it was not clear at the time—not at that moment. In fact, at that time, many people thought such a fear fanciful or, worse, that it was put forward in bad faith by warmongers. Let me read one thing from an editorial from a paper that I am pleased to say takes a different position today. It was written in late after Munich. One would have thought from the history books that people thought the world was tumultuous in its desire to act. This is what the editorial said: Be glad in your hearts. Give thanks to your God. People of Britain, your children are safe. Your husbands and your sons will not march to war. Peace is a victory for all mankind .
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. . And now let us go back to our own affairs. We have had enough of those menaces, conjured up . . . to confuse us. Now, of course, should Hitler again appear in the same form, we would know what to do. But the point is that history does not declare the future to us plainly. Each time is different and the present must be judged without the benefit of hindsight. So let me explain to the House why I believe that the threat that we face today is so serious and why we must tackle it. The threat today is not that of the s. It is not big powers going to war with each other. The ravages that fundamentalist ideology inflicted on the th century are memories. The cold war is over. Europe is at peace, if not always diplomatically. But the world is ever more interdependent. Stock markets and economies rise and fall together, confidence is the key to prosperity, and insecurity spreads like contagion. The key today is stability and order. The threat is chaos and disorder—and there are two begetters of chaos: tyrannical regimes with weapons of mass destruction and extreme terrorist groups who profess a perverted and false view of Islam. Let me tell the House what I know. I know that there are some countries, or groups within countries, that are proliferating and trading in weapons of mass destruction—especially nuclear weapons technology. I know that there are companies, individuals, and some former scientists on nuclear weapons programmes, who are selling their equipment or expertise. I know that there are several countries—mostly dictatorships with highly repressive regimes—that are desperately trying to acquire chemical weapons, biological weapons or, in particular, nuclear weapons capability. Some of those countries are now a short time away from having a serviceable nuclear weapon. This activity is not diminishing. It is increasing. We all know that there are terrorist groups now operating in most major countries. Just in the past two years, around different nations have suffered serious terrorist outrages. Thousands of people—quite apart from September—have died in them. The purpose of that terrorism is not just in the violent act; it is in producing terror. It sets out to inflame, to divide, and to produce consequences of a calamitous nature. Round the world, it now poisons the chances of political progress—in the middle east, in Kashmir, in Chechnya and in Africa. The removal of the Taliban—yes—dealt it a blow. But it has not gone away. Those two threats have, of course, different motives and different origins, but they share one basic common view: they detest the freedom, democracy and tolerance that are the hallmarks of our way of life. At the moment, I accept fully that the association between the two is loose—but it is hardening. The possibility of the two coming together—of terrorist groups in possession of weapons of mass destruction or even of a so-called dirty radiological bomb— is now, in my judgment, a real and present danger to Britain and its national security. Mr. Robert Key (Salisbury): Does the Prime Minister acknowledge that thousands of scientists and civil servants in this country—hundreds of them my constituents at Porton Down—have been warning of those threats for some years and are hugely relieved that he and his Government are taking this seriously? They will support him, as will I. The Prime Minister: I thank the hon. Gentleman for that. Mr. Tam Dalyell (Linlithgow): What could be more calculated to act as a recruiting sergeant for a young generation throughout the Islamic and Arab world than putting cruise missiles—or whatever it is—on to Baghdad and Iraq? The Prime Minister: Let me come to that very point. Sir Teddy Taylor (Rochford and Southend, East): Will the Prime Minister give way? The Prime Minister: Let me deal with this point first. Let us recall: what was shocking about September was not just the slaughter of innocent people but the knowledge that, had the terrorists been able, there would have been not , innocent dead, but , or
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,—and the more the suffering, the greater their rejoicing. I say to my hon. Friend that America did not attack the al-Qaeda terrorist group; the al-Qaeda terrorist group attacked America. They did not need to be recruited; they were there already. Unless we take action against them, they will grow. That is why we should act. Lynne Jones (Birmingham, Selly Oak): Will the Prime Minister give way? The Prime Minister: In a moment. Sir Teddy Taylor: Will the Prime Minister give way? The Prime Minister: Just give me a moment and then I will give way. Let me explain the dangers. Three kilograms of VX from a rocket launcher would contaminate . sq km of a city. Millions of lethal doses are contained in one litre of anthrax, and , litres are unaccounted for. What happened on September has changed the psychology of America—that is clear—but it should have changed the psychology of the world. Of course, Iraq is not the only part of this threat. I have never said that it was. But it is the test of whether we treat the threat seriously. Faced with it, the world should unite. The UN should be the focus both of diplomacy and of action. That is what said. That was the deal. And I simply say to the House that to break it now, and to will the ends but not the means, would do more damage in the long term to the UN than any other single course that we could pursue. To fall back into the lassitude of the past years; to talk, to discuss, to debate but never to act; to declare our will but not to enforce it; and to continue with strong language but with weak intentions—that is the worst course imaginable. If we pursue that course, when the threat returns, from Iraq or elsewhere, who will then believe us? What price our credibility with the next tyrant? It was interesting today that some of the strongest statements of support for allied forces came from near to North Korea—from Japan and South Korea. Sir Teddy Taylor: The Prime Minister is making a powerful and compelling speech. Will he tell the House whether there has been any identification of the countries that have supplied these terrible biological materials—such as anthrax and toxins—to Iraq? Should those countries not be identified—named by the Prime Minister and condemned? The Prime Minister: Much of the production is in Iraq itself. Lynne Jones: A moment ago my right hon. Friend said that the association between Iraq and terrorists is loose, yet last night President Bush told the American people that Iraq has aided, trained and harboured terrorists, including operatives of al-Qaeda. Was President Bush accurate in what he told the American people? The Prime Minister: First, let me apologise to the hon. Member for Rochford and Southend, East (Sir Teddy Taylor). He was making a point in my favour and I failed to spot it. Secondly, to my hon. Friend, yes, I do support what the President said. Do not be in any doubt at all—Iraq has been supporting terrorist groups. For example, Iraq is offering money to the families of suicide bombers whose purpose is to wreck any chance of progress in the middle east. Although I said that the associations were loose, they are hardening. I do believe that, and I believe that the two threats coming together are the dangers that we face in our world. I also say this: there will be in any event no sound future for the United Nations— no guarantee against the repetition of these events—unless we recognise the urgent need for a political agenda that we can unite upon. What we have witnessed is indeed the consequence of Europe and the United States dividing from each other. Not all of Europe— Spain, Italy, Holland, Denmark and Portugal have strongly supported us—and not a majority of Europe if we include, as we should, Europe’s new members who will accede next year, all of whom have been in strong support of the position of this Government. But the paralysis of the UN has been born out of the division that there is.
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I want to deal with that in this way. At the heart of that division is the concept of a world in which there are rival poles of power, with the US and its allies in one corner and France, Germany, Russia and their allies in the other. I do not believe that all those nations intend such an outcome, but that is what now faces us. I believe such a vision to be misguided and profoundly dangerous for our world. I know why it arises. There is resentment of US predominance. There is fear of US unilateralism. People ask, ‘Do the US listen to us and our preoccupations?’ And there is perhaps a lack of full understanding of US preoccupations after September. I know all this. But the way to deal with it is not rivalry, but partnership. Partners are not servants, but neither are they rivals. What Europe should have said last September to the United States is this: with one voice it should have said, ‘We understand your strategic anxiety over terrorism and weapons of mass destruction and we will help you meet it. We will mean what we say in any UN resolution we pass and will back it with action if Saddam fails to disarm voluntarily. However, in return’—Europe should have said—‘we ask two things of you: that the US should indeed choose the UN path and you should recognise the fundamental overriding importance of restarting the middle east peace process, which we will hold you to.’ That would have been the right and responsible way for Europe and America to treat each other as partners, and it is a tragedy that it has not happened. I do not believe that there is any other issue with the same power to reunite the world community than progress on the issues of Israel and Palestine. Of course, there is cynicism about recent announcements, but the United States is now committed—and, I believe genuinely—to the road map for peace designed in consultation with the UN. It will now be presented to the parties as Abu Mazen is confirmed in office, hopefully today, as Palestinian Prime Minister. All of us are now signed up to this vision: a state of Israel, recognised and accepted by all the world, and a viable Palestinian state. That is what this country should strive for, and we will. And that should be part of a larger global agenda: on poverty and sustainable development; on democracy and human rights; and on the good governance of nations. Mike Gapes (Ilford, South): Will the Prime Minister give way? The Prime Minister: In a moment. That is why what happens after any conflict in Iraq is of such critical significance. Here again there is a chance to unify around the United Nations. There should be a new United Nations resolution following any conflict providing not only for humanitarian help, but for the administration and governance of Iraq. That must be done under proper UN authorisation. Mike Gapes: I am grateful to my right hon. Friend for giving way, and I endorse very strongly what he said about the need for the road map of progress in the middle east. However, the problem is that there is a perception that we are engaged in a bilateral action with just the United States. Could he respond to my constituents and others who believe that, and point out how strong is the support for action at this moment to rid the Iraqi people of the oppressive Saddam regime? The Prime Minister : I shall certainly do so. The UN resolution that should provide for the proper governance of Iraq should also protect totally the territorial integrity of Iraq. And this point is also important: that the oil revenues, which people falsely claim that we want to seize, should be put in a trust fund for the Iraqi people administered through the UN. Mr. Simon Thomas (Ceredigion): Will the Prime Minister give way? The Prime Minister: In a moment. Let the future Government of Iraq be given the chance to begin the process of uniting the nation’s disparate groups, on a democratic basis— Jeremy Corbyn (Islington, North): Will the Prime Minister give way?
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The Prime Minister: If my hon. Friend will allow me to continue for a moment, I shall come back to him. The process must begin on a democratic basis, respecting human rights, as, indeed, the fledgling democracy in northern Iraq—protected from Saddam for years by British and American pilots in the no-fly zone—has done remarkably. The moment that a new Government are in place, committed to disarming Iraq of weapons of mass destruction, is the point in time when sanctions should be lifted, and can be lifted, in their entirety for the people of Iraq. Jeremy Corbyn: I thank the Prime Minister for giving way. Can he tell the House what guarantees he has had from the Turkish Government and the Turkish military that they will not use the opportunity of a war in the south to invade the northern part of Iraq and destroy the Kurdish autonomous region and the demands of Kurdish people for their own selfdetermination? There is a very serious fear that the Turkish army has always wanted to destroy any vestige of Kurdish autonomy. The Prime Minister: Turkey has given that commitment. I have spoken to the Turkish Government, as have the President of the United States and many others. I have to say to my hon. Friend that it is clear from the conversations that I have had with people in that Kurdish autonomous zone that what they really fear above all else is the prospect of Saddam remaining in power, emboldened because we have failed to remove him. I have never put the justification for action as regime change. We have to act within the terms set out in resolution —that is our legal base. But it is the reason why I say frankly that if we do act, we should do so with a clear conscience and a strong heart. I accept fully that those who are opposed to this course of action share my detestation of Saddam. Who could not? Iraq is a potentially wealthy country which in , the year before Saddam came to power, was richer than Portugal or Malaysia. Today it is impoverished, with per cent. of its population dependent on food aid. Thousands of children die needlessly every year from lack of food and medicine. Four million people out of a population of just over million are living in exile. The brutality of the repression—the death and torture camps, the barbaric prisons for political opponents, the routine beatings for anyone or their families suspected of disloyalty—is well documented. Just last week, someone slandering Saddam was tied to a lamp post in a street in Baghdad, their tongue was cut out, and they were mutilated and left to bleed to death as a warning to others. I recall a few weeks ago talking to an Iraqi exile and saying to her that I understood how grim it must be under the lash of Saddam. ‘But you don’t’, she replied. ‘You cannot. You do not know what it is like to live in perpetual fear.’ And she is right. We take our freedom for granted. But imagine what it must be like not to be able to speak or discuss or debate or even question the society you live in. To see friends and family taken away and never daring to complain. To suffer the humility of failing courage in face of pitiless terror. That is how the Iraqi people live. Leave Saddam in place, and the blunt truth is that that is how they will continue to be forced to live. We must face the consequences of the actions that we advocate. For those of us who support the course that I am advocating, that means all the dangers of war. But for others who are opposed to this course, it means—let us be clear—that for the Iraqi people, whose only true hope lies in the removal of Saddam, the darkness will simply close back over. They will be left under his rule, without any possibility of liberation—not from us, not from anyone. Glenda Jackson (Hampstead and Highgate): Will the Prime Minister give way? The Prime Minister: In a moment. This is the choice before us. If this House now demands that at this moment, faced with this threat from this regime, British troops are pulled back, that we turn away at the point of reckoning—this is what it means—what then? What will Saddam feel? He will feel strengthened beyond measure. What will the other states that tyrannise their people, the terrorists who threaten our existence, take from that?
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They will take it that the will confronting them is decaying and feeble. Who will celebrate and who will weep if we take our troops back from the Gulf now? Glenda Jackson: Will the Prime Minister give way? The Prime Minister: I am sorry. If our plea is for America to work with others, to be good as well as powerful allies, will our retreat make it multilateralist, or will it not rather be the biggest impulse to unilateralism that we could possibly imagine? What then of the United Nations, and of the future of Iraq and the middle east peace process, devoid of our influence and stripped of our insistence? The House wanted this discussion before conflict. That was a legitimate demand. It has it, and these are the choices. In this dilemma, no choice is perfect, no choice is ideal, but on this decision hangs the fate of many things: of whether we summon the strength to recognise the global challenge of the st century, and meet it; of the Iraqi people, groaning under years of dictatorship; of our armed forces, brave men and women of whom we can feel proud, and whose morale is high and whose purpose is clear; of the institutions and alliances that will shape our world for years to come. To retreat now, I believe, would put at hazard all that we hold dearest. To turn the United Nations back into a talking shop; to stifle the first steps of progress in the middle east; to leave the Iraqi people to the mercy of events over which we would have relinquished all power to influence for the better; to tell our allies that at the very moment of action, at the very moment when they need our determination, Britain faltered: I will not be party to such a course. This is not the time to falter. This is the time not just for this Government—or, indeed, for this Prime Minister—but for this House to give a lead: to show that we will stand up for what we know to be right; to show that we will confront the tyrannies and dictatorships and terrorists who put our way of life at risk; to show, at the moment of decision, that we have the courage to do the right thing.
Appendix X President Bush’s Address to the United Nations General Assembly in September The United Nations New York, New York Mr. Secretary General; Mr. President; distinguished delegates; ladies and gentlemen: Twenty-four months ago—and yesterday in the memory of America—the center of New York City became a battlefield, and a graveyard, and the symbol of an unfinished war. Since that day, terrorists have struck in Bali, Mombassa, in Casablanca, in Riyadh, in Jakarta, in Jerusalem—measuring the advance of their cause in the chaos and innocent suffering they leave behind. Last month, terrorists brought their war to the United Nations itself. The U.N. headquarters in Baghdad stood for order and compassion—and for that reason, the terrorists decided it must be destroyed. Among the people who were murdered was Sergio Vieira de Mello. Over the decades, this good and brave man from Brazil gave help to the afflicted in Bangladesh, Cyprus, Mozambique, Lebanon, Cambodia, Central Africa, Kosovo, and East Timor, and was aiding the people of Iraq in their time of need. America joins you, his colleagues, in honoring the memory of Senor Vieira de Mello, and the memory of all who died with him in the service to the United Nations. By the victims they choose, and by the means they use, the terrorists have clarified the struggle we are in. Those who target relief workers for death have set themselves against all humanity. Those who incite murder and celebrate suicide reveal their contempt for life, itself. They have no place in any religious faith; they have no claim on the world’s sympathy; and they should have no friend in this chamber. Events during the past two years have set before us the clearest of divides: between those who seek order, and those who spread chaos; between those who work for peaceful change, and those who adopt the methods of gangsters; between those who honor the rights of man, and those who deliberately take the lives of men and women and children without mercy or shame. Between these alternatives there is no neutral ground. All governments that support terror are complicit in a war against civilization. No government should ignore the threat of terror, because to look the other way gives terrorists the chance to regroup and recruit and prepare. And all nations that fight terror, as if the lives of their own people depend on it, will earn the favorable judgment of history. The former regimes of Afghanistan and Iraq knew these alternatives, and made their choices. The Taliban was a sponsor and servant of terrorism. When confronted, that regime chose defiance, and that regime is no more. Afghanistan’s President, who is here today, now represents a free people who are building a decent and just society; they’re building a nation fully joined in the war against terror. The regime of Saddam Hussein cultivated ties to terror while it built weapons of mass destruction. It used those weapons in acts of mass murder, and refused to account for them
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when confronted by the world. The Security Council was right to be alarmed. The Security Council was right to demand that Iraq destroy its illegal weapons and prove that it had done so. The Security Council was right to vow serious consequences if Iraq refused to comply. And because there were consequences, because a coalition of nations acted to defend the peace, and the credibility of the United Nations, Iraq is free, and today we are joined by representatives of a liberated country. Saddam Hussein’s monuments have been removed and not only his statues. The true monuments of his rule and his character—the torture chambers, and the rape rooms, and the prison cells for innocent children—are closed. And as we discover the killing fields and mass graves of Iraq, the true scale of Saddam’s cruelty is being revealed. The Iraqi people are meeting hardships and challenges, like every nation that has set out on the path of democracy. Yet their future promises lives of dignity and freedom, and that is a world away from the squalid, vicious tyranny they have known. Across Iraq, life is being improved by liberty. Across the Middle East, people are safer because an unstable aggressor has been removed from power. Across the world, nations are more secure because an ally of terror has fallen. Our actions in Afghanistan and Iraq were supported by many governments, and America is grateful to each one. I also recognize that some of the sovereign nations of this assembly disagreed with our actions. Yet there was, and there remains, unity among us on the fundamental principles and objectives of the United Nations. We are dedicated to the defense of our collective security, and to the advance of human rights. These permanent commitments call us to great work in the world, work we must do together. So let us move forward. First, we must stand with the people of Afghanistan and Iraq as they build free and stable countries. The terrorists and their allies fear and fight this progress above all, because free people embrace hope over resentment, and choose peace over violence. The United Nations has been a friend of the Afghan people, distributing food and medicine, helping refugees return home, advising on a new constitution, and helping to prepare the way for nationwide elections. NATO has taken over the U.N.-mandated security force in Kabul. American and coalition forces continue to track and defeat al Qaeda terrorists and remnants of the Taliban. Our efforts to rebuild that country go on. I have recently proposed to spend an additional $. billion for the Afghan reconstruction effort, and I urge other nations to continue contributing to this important cause. In the nation of Iraq, the United Nations is carrying out vital and effective work every day. By the end of , more than percent of Iraqi children under age five will have been immunized against preventable diseases such as polio, tuberculosis and measles, thanks to the hard work and high ideals of UNICEF. Iraq’s food distribution system is operational, delivering nearly a half-million tons of food per month, thanks to the skill and expertise of the World Food Program. Our international coalition in Iraq is meeting it responsibilities. We are conducting precision raids against terrorists and holdouts of the former regime. These killers are at war with the Iraqi people. They have made Iraq the central front in the war on terror, and they will be defeated. Our coalition has made sure that Iraq’s former dictator will never again use weapons of mass destruction. We are interviewing Iraqi citizens and analyzing records of the old regime to reveal the full extent of its weapons programs and its long campaign of deception. We’re training Iraqi police and border guards and a new army, so the Iraqi people can assume full responsibility for their own security. And at the same time, our coalition is helping to improve the daily lives of the Iraqi people. The old regime built palaces while letting schools decay, so we are rebuilding more than a thousand schools. The old regime starved hospitals of resources, so we have helped to supply and reopen hospitals across Iraq. The old regime built up armies and weapons, while allowing the nation’s infrastructure to crumble, so we are rehabilitating power plants, water and sanitation facilities, bridges and airports. I proposed to Congress that the United States provide additional funding for our work in Iraq, the greatest financial commitment of
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its kind since the Marshall Plan. Having helped to liberate Iraq, we will honor our pledges to Iraq, and by helping the Iraqi people build a stable and peaceful country, we will make our own countries more secure. The primary goal of our coalition in Iraq is self-government for the people of Iraq, reached by orderly and democratic process. This process must unfold according to the needs of Iraqis, neither hurried, nor delayed by the wishes of other parties. And the United Nations can contribute greatly to the cause of Iraq self-government. America is working with friends and allies on a new Security Council resolution, which will expand the U.N.’s role in Iraq. As in the aftermath of other conflicts, the United Nations should assist in developing a constitution, in training civil servants, and conducting free and fair elections. Iraq now has a Governing Council, the first truly representative institution in that country. Iraq’s new leaders are showing the openness and tolerance that democracy requires, and they’re also showing courage. Yet every young democracy needs the help of friends. Now the nation of Iraq needs and deserves our aid, and all nations of goodwill should step forward and provide that support. The success of a free Iraq will be watched and noted throughout the region. Millions will see that freedom, equality, and material progress are possible at the heart of the Middle East. Leaders in the region will face the clearest evidence that free institutions and open societies are the only path to long-term national success and dignity. And a transformed Middle East would benefit the entire world, by undermining the ideologies that export violence to other lands. Iraq as a dictatorship had great power to destabilize the Middle East; Iraq as a democracy will have great power to inspire the Middle East. The advance of democratic institutions in Iraq is setting an example that others, including the Palestinian people, would be wise to follow. The Palestinian cause is betrayed by leaders who cling to power by feeding old hatreds and destroying the good work of others. The Palestinian people deserve their own state, and they will gain that state by embracing new leaders committed to reform, to fighting terror, and to building peace. All parties in the Middle East must meet their responsibilities and carry out the commitments they made at Aqaba. Israel must work to create the conditions that will allow a peaceful Palestinian state to emerge. And Arab nations must cut off funding and other support for terrorist organizations. America will work with every nation in the region that acts boldly for the sake of peace. A second challenge we must confront together is the proliferation of weapons of mass destruction. Outlaw regimes that possess nuclear, chemical and biological weapons—and the means to deliver them—would be able to use blackmail and create chaos in entire regions. These weapons could be used by terrorists to bring sudden disaster and suffering on a scale we can scarcely imagine. The deadly combination of outlaw regimes and terror networks and weapons of mass murder is a peril that cannot be ignored or wished away. If such a danger is allowed to fully materialize, all words, all protests, will come too late. Nations of the world must have the wisdom and the will to stop grave threats before they arrive. One crucial step is to secure the most dangerous materials at their source. For more than a decade, the United States has worked with Russia and other states of the former Soviet Union to dismantle, destroy, or secure weapons and dangerous materials left over from another era. Last year in Canada, the G nations agreed to provide up to $ billion—half of it from the United States—to fight this proliferation risk over the next years. Since then, six additional countries have joined the effort. More are needed, and I urge other nations to help us meet this danger. We’re also improving our capability to interdict lethal materials in transit. Through our Proliferation Security Initiative, nations are preparing to search planes and ships, trains and trucks carrying suspect cargo, and to seize weapons or missile shipments that raise proliferation concerns. These nations have agreed on a set of interdiction principles, consistent with legal—current legal authorities. And we’re working to expand the Proliferation Security Initiative to other countries. We’re determined to keep the world’s
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most destructive weapons away from all our shores, and out of the hands of our common enemies. Because proliferators will use any route or channel that is open to them, we need the broadest possible cooperation to stop them. Today, I ask the U.N. Security Council to adopt a new anti-proliferation resolution. This resolution should call on all members of the U.N. to criminalize the proliferation of weapons—weapons of mass destruction, to enact strict export controls consistent with international standards, and to secure any and all sensitive materials within their own borders. The United States stands ready to help any nation draft these new laws, and to assist in their enforcement. A third challenge we share is a challenge to our conscience. We must act decisively to meet the humanitarian crises of our time. The United States has begun to carry out the Emergency Plan for AIDS Relief, aimed at preventing AIDS on a massive scale, and treating millions who have the disease already. We have pledged $ billion over five years to fight AIDS around the world. My country is acting to save lives from famine, as well. We’re providing more than $. billion in global emergency food aid, and I’ve asked our United States Congress for $ million for a new famine fund, so we can act quickly when the first signs of famine appear. Every nation on every continent should generously add their resources to the fight against disease and desperate hunger. There’s another humanitarian crisis spreading, yet hidden from view. Each year, an estimated , to , human beings are bought, sold or forced across the world’s borders. Among them are hundreds of thousands of teenage girls, and others as young as five, who fall victim to the sex trade. This commerce in human life generates billions of dollars each year—much of which is used to finance organized crime. There’s a special evil in the abuse and exploitation of the most innocent and vulnerable. The victims of sex trade see little of life before they see the very worst of life—an underground of brutality and lonely fear. Those who create these victims and profit from their suffering must be severely punished. Those who patronize this industry debase themselves and deepen the misery of others. And governments that tolerate this trade are tolerating a form of slavery. This problem has appeared in my own country, and we are working to stop it. The PROTECT Act, which I signed into law this year, makes it a crime for any person to enter the United States, or for any citizen to travel abroad, for the purpose of sex tourism involving children. The Department of Justice is actively investigating sex tour operators and patrons, who can face up to years in prison. Under the Trafficking Victims Protection Act, the United States is using sanctions against governments to discourage human trafficking. The victims of this industry also need help from members of the United Nations. And this begins with clear standards and the certainty of punishment under laws of every country. Today, some nations make it a crime to sexually abuse children abroad. Such conduct should be a crime in all nations. Governments should inform travelers of the harm this industry does, and the severe punishments that will fall on its patrons. The American government is committing $ million to support the good work of organizations that are rescuing women and children from exploitation, and giving them shelter and medical treatment and the hope of a new life. I urge other governments to do their part. We must show new energy in fighting back an old evil. Nearly two centuries after the abolition of the transatlantic slave trade, and more than a century after slavery was officially ended in its last strongholds, the trade in human beings for any purpose must not be allowed to thrive in our time. All the challenges I have spoken of this morning require urgent attention and moral clarity. Helping Afghanistan and Iraq to succeed as free nations in a transformed region, cutting off the avenues of proliferation, abolishing modern forms of slavery—these are the kinds of great tasks for which the United Nations was founded. In each case, careful discussion is
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needed, and also decisive action. Our good intentions will be credited only if we achieve good outcomes. As an original signer of the U.N. Charter, the United States of America is committed to the United Nations. And we show that commitment by working to fulfill the U.N.’s stated purposes, and give meaning to its ideals. The founding documents of the United Nations and the founding documents of America stand in the same tradition. Both assert that human beings should never be reduced to objects of power or commerce, because their dignity is inherent. Both require—both recognize a moral law that stands above men and nations, which must be defended and enforced by men and nations. And both point the way to peace, the peace that comes when all are free. We secure that peace with our courage, and we must show that courage together. May God bless you all.
Appendix XI Remarks by the President Bush at Whitehall Palace November Royal Banqueting House-Whitehall Palace London, England Thank you very much. Secretary Straw and Secretary Hoon; Admiral Cobbald and Dr. Chipman; distinguished guests: I want to thank you for your very kind welcome that you’ve given to me and to Laura. I also thank the groups hosting this event—The Royal United Services Institute, and the International Institute for Strategic Studies. We’re honored to be in the United Kingdom, and we bring the good wishes of the American people. It was pointed out to me that the last noted American to visit London stayed in a glass box dangling over the Thames. A few might have been happy to provide similar arrangements for me. I thank Her Majesty the Queen for interceding. We’re honored to be staying at her house. Americans traveling to England always observe more similarities to our country than differences. I’ve been here only a short time, but I’ve noticed that the tradition of free speech— exercised with enthusiasm—is alive and well here in London. We have that at home, too. They now have that right in Baghdad, as well. The people of Great Britain also might see some familiar traits in Americans. We’re sometimes faulted for a naive faith that liberty can change the world. If that’s an error it began with reading too much John Locke and Adam Smith. Americans have, on occasion, been called moralists who often speak in terms of right and wrong. That zeal has been inspired by examples on this island, by the tireless compassion of Lord Shaftesbury, the righteous courage of Wilberforce, and the firm determination of the Royal Navy over the decades to fight and end the trade in slaves. It’s rightly said that Americans are a religious people. That’s, in part, because the ‘Good News’ was translated by Tyndale, preached by Wesley, lived out in the example of William Booth. At times, Americans are even said to have a puritan streak—where might that have come from? Well, we can start with the Puritans. To this fine heritage, Americans have added a few traits of our own: the good influence of our immigrants, the spirit of the frontier. Yet, there remains a bit of England in every American. So much of our national character comes from you, and we’re glad for it. The fellowship of generations is the cause of common beliefs. We believe in open societies ordered by moral conviction. We believe in private markets, humanized by compassionate government. We believe in economies that reward effort, communities that protect the weak, and the duty of nations to respect the dignity and the rights of all. And whether one learns these ideals in County Durham or in West Texas, they instill mutual respect and they inspire common purpose. More than an alliance of security and commerce, the British and American peoples have an alliance of values. And, today, this old and tested alliance is very strong. The deepest beliefs of our nations set the direction of our foreign policy. We value our own civil rights, so we stand for the human rights of others. We affirm the God-given dignity of every person, so we are moved to action by poverty and oppression and famine
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and disease. The United States and Great Britain share a mission in the world beyond the balance of power or the simple pursuit of interest. We seek the advance of freedom and the peace that freedom brings. Together our nations are standing and sacrificing for this high goal in a distant land at this very hour. And America honors the idealism and the bravery of the sons and daughters of Britain. The last President to stay at Buckingham Palace was an idealist, without question. At a dinner hosted by King George V, in , Woodrow Wilson made a pledge; with typical American understatement, he vowed that right and justice would become the predominant and controlling force in the world. President Wilson had come to Europe with his Points for Peace. Many complimented him on his vision; yet some were dubious. Take, for example, the Prime Minister of France. He complained that God, himself, had only commandments. Sounds familiar. At Wilson’s high point of idealism, however, Europe was one short generation from Munich and Auschwitz and the Blitz. Looking back, we see the reasons why. The League of Nations, lacking both credibility and will, collapsed at the first challenge of the dictators. Free nations failed to recognize, much less confront, the aggressive evil in plain sight. And so dictators went about their business, feeding resentments and anti-Semitism, bringing death to innocent people in this city and across the world, and filling the last century with violence and genocide. Through world war and cold war, we learned that idealism, if it is to do any good in this world, requires common purpose and national strength, moral courage and patience in difficult tasks. And now our generation has need of these qualities. On September the th, , terrorists left their mark of murder on my country, and took the lives of British citizens. With the passing of months and years, it is the natural human desire to resume a quiet life and to put that day behind us, as if waking from a dark dream. The hope that danger has passed is comforting, is understanding, and it is false. The attacks that followed—on Bali, Jakarta, Casablanca, Bombay, Mombassa, Najaf, Jerusalem, Riyadh, Baghdad, and Istanbul—were not dreams. They’re part of the global campaign by terrorist networks to intimidate and demoralize all who oppose them. These terrorists target the innocent, and they kill by the thousands. And they would, if they gain the weapons they seek, kill by the millions and not be finished. The greatest threat of our age is nuclear, chemical, or biological weapons in the hands of terrorists, and the dictators who aid them. The evil is in plain sight. The danger only increases with denial. Great responsibilities fall once again to the great democracies. We will face these threats with open eyes, and we will defeat them. The peace and security of free nations now rests on three pillars: First, international organizations must be equal to the challenges facing our world, from lifting up failing states to opposing proliferation. Like Presidents before me, I believe in the international institutions and alliances that America helped to form and helps to lead. The United States and Great Britain have labored hard to help make the United Nations what it is supposed to be—an effective instrument of our collective security. In recent months, we’ve sought and gained three additional resolutions on Iraq—Resolutions , and —precisely because the global danger of terror demands a global response. The United Nations has no more compelling advocate than your Prime Minister, who at every turn has championed its ideals and appealed to its authority. He understands, as well, that the credibility of the U.N. depends on a willingness to keep its word and to act when action is required. America and Great Britain have done, and will do, all in their power to prevent the United Nations from solemnly choosing its own irrelevance and inviting the fate of the League of Nations. It’s not enough to meet the dangers of the world with resolutions; we must meet those dangers with resolve. In this century, as in the last, nations can accomplish more together than apart. For years, America has stood with our partners in NATO, the most effective multilateral
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institution in history. We’re committed to this great democratic alliance, and we believe it must have the will and the capacity to act beyond Europe where threats emerge. My nation welcomes the growing unity of Europe, and the world needs America and the European Union to work in common purpose for the advance of security and justice. America is cooperating with four other nations to meet the dangers posed by North Korea. America believes the IAEA must be true to its purpose and hold Iran to its obligations. Our first choice, and our constant practice, is to work with other responsible governments. We understand, as well, that the success of multilateralism is not measured by adherence to forms alone, the tidiness of the process, but by the results we achieve to keep our nations secure. The second pillar of peace and security in our world is the willingness of free nations, when the last resort arrives, to retain* {sic} aggression and evil by force. There are principled objections to the use of force in every generation, and I credit the good motives behind these views. Those in authority, however, are not judged only by good motivations. The people have given us the duty to defend them. And that duty sometimes requires the violent restraint of violent men. In some cases, the measured use of force is all that protects us from a chaotic world ruled by force. Most in the peaceful West have no living memory of that kind of world. Yet in some countries, the memories are recent: The victims of ethnic cleansing in the Balkans, those who survived the rapists and the death squads, have few qualms when NATO applied force to help end those crimes. The women of Afghanistan, imprisoned in their homes and beaten in the streets and executed in public spectacles, did not reproach us for routing the Taliban. The inhabitants of Iraq’s Baathist hell, with its lavish palaces and its torture chambers, with its massive statues and its mass graves, do not miss their fugitive dictator. They rejoiced at his fall. In all these cases, military action was proceeded by diplomatic initiatives and negotiations and ultimatums, and final chances until the final moment. In Iraq, year after year, the dictator was given the chance to account for his weapons programs, and end the nightmare for his people. Now the resolutions he defied have been enforced. And who will say that Iraq was better off when Saddam Hussein was strutting and killing, or that the world was safer when he held power? Who doubts that Afghanistan is a more just society and less dangerous without Mullah Omar playing host to terrorists from around the world. And Europe, too, is plainly better off with Milosevic answering for his crimes, instead of committing more. It’s been said that those who live near a police station find it hard to believe in the triumph of violence, in the same way free peoples might be tempted to take for granted the orderly societies we have come to know. Europe’s peaceful unity is one of the great achievements of the last half-century. And because European countries now resolve differences through negotiation and consensus, there’s sometimes an assumption that the entire world functions in the same way. But let us never forget how Europe’s unity was achieved—by allied armies of liberation and NATO armies of defense. And let us never forget, beyond Europe’s borders, in a world where oppression and violence are very real, liberation is still a moral goal, and freedom and security still need defenders. The third pillar of security is our commitment to the global expansion of democracy, and the hope and progress it brings, as the alternative to instability and to hatred and terror. We cannot rely exclusively on military power to assure our long-term security. Lasting peace is gained as justice and democracy advance. In democratic and successful societies, men and women do not swear allegiance to malcontents and murderers; they turn their hearts and labor to building better lives. And democratic governments do not shelter terrorist camps or attack their peaceful neighbors; they honor the aspirations and dignity of their own people. In our conflict with terror and tyranny, we have an unmatched advantage, a power that cannot be resisted, and that is the appeal of freedom to all mankind.
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As global powers, both our nations serve the cause of freedom in many ways, in many places. By promoting development, and fighting famine and AIDS and other diseases, we’re fulfilling our moral duties, as well as encouraging stability and building a firmer basis for democratic institutions. By working for justice in Burma, in the Sudan and in Zimbabwe, we give hope to suffering people and improve the chances for stability and progress. By extending the reach of trade we foster prosperity and the habits of liberty. And by advancing freedom in the greater Middle East, we help end a cycle of dictatorship and radicalism that brings millions of people to misery and brings danger to our own people. The stakes in that region could not be higher. If the Middle East remains a place where freedom does not flourish, it will remain a place of stagnation and anger and violence for export. And as we saw in the ruins of two towers, no distance on the map will protect our lives and way of life. If the greater Middle East joins the democratic revolution that has reached much of the world, the lives of millions in that region will be bettered, and a trend of conflict and fear will be ended at its source. The movement of history will not come about quickly. Because of our own democratic development—the fact that it was gradual and, at times, turbulent—we must be patient with others. And the Middle East countries have some distance to travel. Arab scholars speak of a freedom deficit that has separated whole nations from the progress of our time. The essentials of social and material progress—limited government, equal justice under law, religious and economic liberty, political participation, free press, and respect for the rights of women—have been scarce across the region. Yet that has begun to change. In an arc of reform from Morocco to Jordan to Qatar, we are seeing elections and new protections for women and the stirring of political pluralism. Many governments are realizing that theocracy and dictatorship do not lead to national greatness; they end in national ruin. They are finding, as others will find, that national progress and dignity are achieved when governments are just and people are free. The democratic progress we’ve seen in the Middle East was not imposed from abroad, and neither will the greater progress we hope to see. Freedom, by definition, must be chosen, and defended by those who choose it. Our part, as free nations, is to ally ourselves with reform, wherever it occurs. Perhaps the most helpful change we can make is to change in our own thinking. In the West, there’s been a certain skepticism about the capacity or even the desire of Middle Eastern peoples for self-government. We’re told that Islam is somehow inconsistent with a democratic culture. Yet more than half of the world’s Muslims are today contributing citizens in democratic societies. It is suggested that the poor, in their daily struggles, care little for self-government. Yet the poor, especially, need the power of democracy to defend themselves against corrupt elites. Peoples of the Middle East share a high civilization, a religion of personal responsibility, and a need for freedom as deep as our own. It is not realism to suppose that one-fifth of humanity is unsuited to liberty; it is pessimism and condescension, and we should have none of it. We must shake off decades of failed policy in the Middle East. Your nation and mine, in the past, have been willing to make a bargain, to tolerate oppression for the sake of stability. Longstanding ties often led us to overlook the faults of local elites. Yet this bargain did not bring stability or make us safe. It merely bought time, while problems festered and ideologies of violence took hold. As recent history has shown, we cannot turn a blind eye to oppression just because the oppression is not in our own backyard. No longer should we think tyranny is benign because it is temporarily convenient. Tyranny is never benign to its victims, and our great democracies should oppose tyranny wherever it is found. Now we’re pursuing a different course, a forward strategy of freedom in the Middle East. We will consistently challenge the enemies of reform and confront the allies of terror. We will expect a higher standard from our friends in the region, and we will meet our
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responsibilities in Afghanistan and in Iraq by finishing the work of democracy we have begun. There were good-faith disagreements in your country and mine over the course and timing of military action in Iraq. Whatever has come before, we now have only two options: to keep our word, or to break our word. The failure of democracy in Iraq would throw its people back into misery and turn that country over to terrorists who wish to destroy us. Yet democracy will succeed in Iraq, because our will is firm, our word is good, and the Iraqi people will not surrender their freedom. Since the liberation of Iraq, we have seen changes that could hardly have been imagined a year ago. A new Iraqi police force protects the people, instead of bullying them. More than Iraqi newspapers are now in circulation, printing what they choose, not what they’re ordered. Schools are open with textbooks free of propaganda. Hospitals are functioning and are well-supplied. Iraq has a new currency, the first battalion of a new army, representative local governments, and a Governing Council with an aggressive timetable for national sovereignty. This is substantial progress. And much of it has proceeded faster than similar efforts in Germany and Japan after World War II. Yet the violence we are seeing in Iraq today is serious. And it comes from Baathist holdouts and Jihadists from other countries, and terrorists drawn to the prospect of innocent bloodshed. It is the nature of terrorism and the cruelty of a few to try to bring grief in the loss to many. The armed forces of both our countries have taken losses, felt deeply by our citizens. Some families now live with a burden of great sorrow. We cannot take the pain away. But these families can know they are not alone. We pray for their strength; we pray for their comfort; and we will never forget the courage of the ones they loved. The terrorists have a purpose, a strategy to their cruelty. They view the rise of democracy in Iraq as a powerful threat to their ambitions. In this, they are correct. They believe their acts of terror against our coalition, against international aid workers and against innocent Iraqis, will make us recoil and retreat. In this, they are mistaken. We did not charge hundreds of miles into the heart of Iraq and pay a bitter cost of casualties, and liberate million people, only to retreat before a band of thugs and assassins. We will help the Iraqi people establish a peaceful and democratic country in the heart of the Middle East. And by doing so, we will defend our people from danger. The forward strategy of freedom must also apply to the Arab-Israeli conflict. It’s a difficult period in a part of the world that has known many. Yet, our commitment remains firm. We seek justice and dignity. We seek a viable, independent state for the Palestinian people, who have been betrayed by others for too long. We seek security and recognition for the state of Israel, which has lived in the shadow of random death for too long. These are worthy goals in themselves, and by reaching them we will also remove an occasion and excuse for hatred and violence in the broader Middle East. Achieving peace in the Holy Land is not just a matter of the shape of a border. As we work on the details of peace, we must look to the heart of the matter, which is the need for a viable Palestinian democracy. Peace will not be achieved by Palestinian rulers who intimidate opposition, who tolerate and profit from corruption and maintain their ties to terrorist groups. These are the methods of the old elites, who time and again had put their own self-interest above the interest of the people they claim to serve. The long-suffering Palestinian people deserve better. They deserve true leaders, capable of creating and governing a Palestinian state. Even after the setbacks and frustrations of recent months, goodwill and hard effort can bring about a Palestinian state and a secure Israel. Those who would lead a new Palestine should adopt peaceful means to achieve the rights of their people and create the reformed institutions of a stable democracy. Israel should freeze settlement construction, dismantle unauthorized outposts, end the daily humiliation of the Palestinian people, and not prejudice final negotiations with the placements of walls and fences.
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Arab states should end incitement in their own media, cut off public and private funding for terrorism, and establish normal relations with Israel. Leaders in Europe should withdraw all favor and support from any Palestinian ruler who fails his people and betrays their cause. And Europe’s leaders—and all leaders—should strongly oppose anti-Semitism, which poisons public debates over the future of the Middle East. Ladies and gentlemen, we have great objectives before us that make our Atlantic alliance as vital as it has ever been. We will encourage the strength and effectiveness of international institutions. We will use force when necessary in the defense of freedom. And we will raise up an ideal of democracy in every part of the world. On these three pillars we will build the peace and security of all free nations in a time of danger. So much good has come from our alliance of conviction and might. So much now depends on the strength of this alliance as we go forward. America has always found strong partners in London, leaders of good judgment and blunt counsel and backbone when times are tough. And I have found all those qualities in your current Prime Minister, who has my respect and my deepest thanks. The ties between our nations, however, are deeper than the relationship between leaders. These ties endure because they are formed by the experience and responsibilities and adversity we have shared. And in the memory of our peoples, there will always be one experience, one central event when the seal was fixed on the friendship between Britain and the United States: The arrival in Great Britain of more than . million American soldiers and airmen in the s was a turning point in the second world war. For many Britons, it was a first close look at Americans, other than in the movies. Some of you here today may still remember the ‘friendly invasion.’ Our lads, they took some getting used to. There was even a saying about what many of them were up to—in addition to be ‘overpaid and over here.’ At a reunion in North London some years ago, an American pilot who had settled in England after his military service, said, ‘Well, I’m still over here, and probably overpaid. So two out of three isn’t bad.’ In that time of war, the English people did get used to the Americans. They welcomed soldiers and fliers into their villages and homes, and took to calling them, ‘our boys.’ About , of those boys did their part to affirm our special relationship. They returned home with English brides. Americans gained a certain image of Britain, as well. We saw an island threatened on every side, a leader who did not waver, and a country of the firmest character. And that has not changed. The British people are the sort of partners you want when serious work needs doing. The men and women of this Kingdom are kind and steadfast and generous and brave. And America is fortunate to call this country our closest friend in the world. May God bless you all.
Appendix XII Observations in the Report of the Secretary-General [on Iraq] pursuant to paragraph of resolution () and paragraph of resolution () December VII. Observations . I recognize that in many areas, including the advancement of basic human rights such as freedom of speech and of political assembly, as well as the provision of basic services and the reconstitution of the local police, very real progress has been made in Iraq in the past few months. This progress should not be underestimated; nor should the efforts of the Coalition Provisional Authority and newly emerging Iraqi institutions be overlooked. . At the same time, the dangers posed by insurgents, whose attacks have been growing in sophistication and strength over the past months, are real. The activities of these insurgents, about whose nature more needs to be known, have inflicted serious damage on the United Nations, the diplomatic community, international nongovernmental organizations, the International Committee of the Red Cross and Coalition forces, in addition to killing a large number of Iraqis. . In order to mitigate the possibility that this insurgency will grow over time, quantitatively and qualitatively, various steps will need to be taken. . First and foremost, we need to act on the recognition that the mounting insecurity problem cannot be solved through military means alone. A political solution is required. Such a solution entails making the political transition process more inclusive, so as to bring in additional groups and individuals that have thus far been excluded, or that have excluded themselves. It means truly empowering Iraqi institutions to take the decisions that will shape the political and economic future of their country. And, in order to command widespread support, these institutions need to function effectively and transparently. Political steps of this kind would make it clearer that the foreign occupation of Iraq is to be short-lived—and that it will soon give way to a fully fledged Iraqi Government empowered to implement an Iraqi agenda—hence making it more difficult for insurgents to rally support. Within that context, the announcement in the November agreement setting forth a clear timetable and a precise date for the formation of a sovereign Iraqi Government and the dissolution of the Coalition Provisional Authority is an important step in the right direction. . Second, the articulation of a national agenda that is seen to be truly representative of all segments of Iraqi society, and one that respects the independence and territorial integrity of Iraq, requires national reconciliation. The politics of national unity, not of revenge and collective punishment, is what is required. I believe that Iraqis of all persuasions are more than capable of incorporating their regional, ethnic and sectarian identities within their national identity. While this will not be easy, particularly as Iraqis struggle to
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come to terms with the miseries and abuses of recent decades, I am hopeful that the Iraqi people can meet the challenge. They know that the future of their nation, for generations to come, is at stake. . Third, intensified efforts by Coalition forces to demonstrate that they are adhering strictly to international humanitarian law and human rights instruments—even in the face of deliberate and provocative terrorist attacks, sometimes against vulnerable and defenceless civilians—would make it that much more difficult for the insurgents to rally support for their cause. In this connection, the use of lethal force by the Coalition forces—in the context of military responses to threats to Coalition forces, dispersal of demonstrations, raids on homes and confrontations as well as at checkpoints—should, in accordance with international humanitarian law, be proportionate and discriminating. In this connection, special care needs to be taken to avoid inflicting casualties on innocent Iraqi civilians. Moreover, although they may fall into several different categories (prisoners of war, political detainees, ordinary criminal suspects and those suspected of attacks against Coalition forces), all detainees—of which there are reportedly several thousand—should be protected in accordance with Iraqi law and the Geneva Conventions. . More broadly, the establishment of Iraqi capabilities in the areas of monitoring human rights and the promotion and institutionalization of the rule of law should be strongly encouraged, not least through the establishment of an independent national human rights institution and the development of a national human rights action plan. As soon as conditions permit, the United Nations will continue to support these efforts, as indicated in my last report. . Fourth, it is essential that all those in the international community who are in a position to support the implementation of an Iraqi agenda should do so, and should be given a chance to do so. None of us can afford to stand on the sidelines. Failure to put the rebuilding of Iraq on a solid footing could have devastating consequences for the people of Iraq, the people of the region and the international order as a whole. . In this regard, although I have had to temporarily relocate most United Nations international staff outside the country, the United Nations will not disengage from Iraq. On the contrary, even following the tragic events of August , the United Nations has carried out a massive amount of assistance, in large measure through the skilled and heroic efforts of its Iraqi staff, as well as those international staff who were relocated to Amman, Kuwait and other locations in the region. Furthermore, I have now set in motion the process of assembling in the region a core of UNAMI so that the United Nations can be in a position to move swiftly back to the country if the Iraqi people seek the Organization’s assistance, and if circumstances on the ground permit. . On the political front, I have been personally engaged with Heads of State and Government and Foreign Ministers around the world, in an effort to help forge an international consensus on the way forward. This consensus, in which Iraq’s neighbours and key States in the region and the Islamic world have a key role to play, is essential if we are to bring to bear the full range of international assistance to the people of Iraq in their hour of need. It was in order to help promote such a consensus that I convened a meeting with regional and international actors on December. To the same end, I am considering ways and means of ensuring that we consult closely and continuously with Iraq’s neighbours as well as with regional organizations. . It goes without saying that, as regards a physical presence inside Iraq, the United Nations will continue to operate under severe constraints in the coming weeks and months. I cannot afford to compromise the security of our international and national staff. In taking the difficult decisions that lie ahead, I shall be asking myself questions such as whether the substance of the role allocated to the United Nations is proportionate to the risks we are being asked to take, whether the political process is fully inclusive and
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transparent and whether the humanitarian tasks in question are truly life-saving, or not. I shall also, as always, ask what the Iraqis themselves expect of the United Nations, and whether our activities serve the cause of restoring to them, as soon as possible, full control over their own destiny and resources. . Meanwhile, though the context for their deployment will and must change soon, it is likely that Iraq will continue to require assistance, in the form of a substantial military presence, for a number of years to come. The Iraqi people need to be reassured that, if and when a new Iraqi Government requests such assistance on behalf of the Iraqi people, it will be forthcoming, not only from the current contributors to the United States-led Coalition, but from a broad range of other countries as well. . In concluding, I would like to state my conviction that the future of a nation of more than million people and of a volatile region is at stake. The process of restoring peace and stability to Iraq cannot be allowed to fail. The consequences for Iraqis themselves, the region and the international community as a whole would be disastrous. Too many Iraqis and representatives of the international community, including deeply respected and gifted United Nations colleagues, have sacrificed their lives. Their sacrifice cannot be allowed to have been in vain. . I pay tribute to them for that sacrifice. I extend my deepest sympathies to the families and friends left behind. And I record my abiding gratitude for their contribution. They will never be forgotten.
Appendix XIII Security Council Resolutions on Iraq, – Security Council Resolution () August The Security Council, Alarmed by the invasion of Kuwait on August by the military forces of Iraq, Determining that there exists a breach of international peace and security as regards the Iraqi invasion of Kuwait, Acting under Articles and of the Charter of the United Nations, . Condemns the Iraqi invasion of Kuwait; . Demands that Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on August ; . Calls upon Iraq and Kuwait to begin immediately intensive negotiations for the resolution of their differences and supports all efforts in this regard, and especially those of the League of Arab States; . Decides to meet again as necessary to consider further steps to ensure compliance with the present resolution.
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Security Council Resolution () November The Security Council, Recalling, and reaffirming its resolutions () of August (), () of August , () of August , () of August , () of August , () of September , () of September , () of September , () of September , () of October and () of November . Noting that, despite all efforts by the United Nations, Iraq refuses to comply with its obligation to implement resolution () and the above-mentioned subsequent relevant resolutions, in flagrant contempt of the Security Council, Mindful of its duties and responsibilities under the Charter of the United Nations for the maintenance and preservation of international peace and security, Determined to secure full compliance with its decisions, Acting under Chapter VII of the Charter, . Demands that Iraq comply fully with resolution () and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwill, to do so; . Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before January fully implements, as set forth in paragraph above, the foregoing resolutions, to use all necessary means to uphold and implement resolution () and all subsequent relevant resolutions and to restore international peace and security in the area; . Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph of the present resolution; . Requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken pursuant to paragraphs and of the present resolution; . Decides to remain seized of the matter.
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Security Council Resolution () April The Security Council, Recalling its resolutions () of August , () of August , () of August , () of August , () of August , () of September , () of September , () of September , () of September , () of October , () of November , () of November and () of March , Welcoming the restoration to Kuwait of its sovereignty, independence and territorial integrity and the return of its legitimate Government, Affirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq, and noting the intention expressed by the Member States cooperating with Kuwait under paragraph of resolution () to bring their military presence in Iraq to an end as soon as possible consistent with paragraph of resolution (), Reaffirming the need to be assured of Iraq’s peaceful intentions in the light of its unlawful invasion and occupation of Kuwait, Taking note of the letter sent by the Minister for Foreign Affairs of Iraq on February and those sent pursuant to resolution (), Noting that Iraq and Kuwait, as independent sovereign States, signed at Baghdad on October “Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters”, thereby recognizing formally the boundary between Iraq and Kuwait and the allocation of islands, which were registered with the United Nations in accordance with Article of the Charter of the United Nations and in which Iraq recognized the independence and complete sovereignty of the State of Kuwait within its borders as specified and accepted in the letter of the Prime Minister of Iraq dated July , and as accepted by the Ruler of Kuwait in his letter dated August , Conscious of the need for demarcation of the said boundary, Conscious also of the statements by Iraq threatening to use weapons in violation of its obligations under the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on June , and of its prior use of chemical weapons and affirming that grave consequences would follow any further use by Iraq of such weapons, Recalling that Iraq has subscribed to the Declaration adopted by all States participating in the Conference of States Parties to the Geneva Protocol and Other Interested States, held in Paris from to January , establishing the objective of universal elimination of chemical and biological weapons, Recalling also that Iraq has signed the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, of April , Noting the importance of Iraq ratifying this Convention, Noting moreover the importance of all States adhering to this Convention and encouraging its forthcoming Review Conference to reinforce the authority, efficiency and universal scope of the convention,
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Stressing the importance of an early conclusion by the Conference on Disarmament of its work on a Convention on the Universal Prohibition of Chemical Weapons and of universal adherence thereto, Aware of the use by Iraq of ballistic missiles in unprovoked attacks and therefore of the need to take specific measures in regard to such missiles located in Iraq, Concerned by the reports in the hands of Member States that Iraq has attempted to acquire materials for a nuclear-weapons programme contrary to its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons of July , Recalling the objective of the establishment of a nuclear-weapons-free zone in the region of the Middle East, Conscious of the threat that all weapons of mass destruction pose to peace and security in the area and of the need to work towards the establishment in the Middle East of a zone free of such weapons, Conscious also of the objective of achieving balanced and comprehensive control of armaments in the region, Conscious further of the importance of achieving the objectives noted above using all available means, including a dialogue among the States of the region, Noting that resolution () marked the lifting of the measures imposed by resolution () in so far as they applied to Kuwait, Noting that despite the progress being made in fulfilling the obligations of resolution (), many Kuwaiti and third country nationals are still not accounted for and property remains unreturned, Recalling the International Convention against the Taking of Hostages, opened for signature at New York on December , which categorizes all acts of taking hostages as manifestations of international terrorism, Deploring threats made by Iraq during the recent conflict to make use of terrorism against targets outside Iraq and the taking of hostages by Iraq, Taking note with grave concern of the reports of the Secretary-General of March and March , and conscious of the necessity to meet urgently the humanitarian needs in Kuwait and Iraq, Bearing in mind its objective of restoring international peace and security in the area as set out in recent resolutions of the Security Council, Conscious of the need to take the following measures acting under Chapter VII of the Charter, . Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of this resolution, including a formal cease-fire; A . Demands that Iraq and Kuwait respect the inviolability of the international boundary and the allocation of islands set out in the “Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters”, signed by them in the exercise of their sovereignty at Baghdad on October and registered with the United Nations and published by the United Nations in document , United Nations, Treaty Series, ; . Calls upon the Secretary-General to lend his assistance to make arrangements with Iraq and Kuwait to demarcate the boundary between Iraq and Kuwait, drawing on appropriate material, including the map transmitted by Security Council document S/ and to report back to the Security Council within one month; . Decides to guarantee the inviolability of the above-mentioned international boundary and to take as appropriate all necessary measures to that end in accordance with the Charter of the United Nations;
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B . Requests the Secretary-General, after consulting with Iraq and Kuwait, to submit within three days to the Security Council for its approval a plan for the immediate deployment of a United Nations observer unit to monitor the Khor Abdullah and a demilitarized zone, which is hereby established, extending ten kilometres into Iraq and five kilometres into Kuwait from the boundary referred to in the “Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters” of October ; to deter violations of the boundary through its presence in and surveillance of the demilitarized zone; to observe any hostile or potentially hostile action mounted from the territory of one State to the other; and for the Secretary-General to report regularly to the Security Council on the operations of the unit, and immediately if there are serious violations of the zone or potential threats to peace; . Notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with resolution () to bring their military presence in Iraq to an end consistent with resolution (); C . Invites Iraq to reaffirm unconditionally its obligations under the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on June , and to ratify the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, of April ; . Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: (a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities; (b) All ballistic missiles with a range greater than kilometres and related major parts, and repair and production facilities; . Decides, for the implementation of paragraph above, the following: (a) Iraq shall submit to the Secretary-General, within fifteen days of the adoption of the present resolution, a declaration of the locations, amounts and types of all items specified in paragraph and agree to urgent, on-site inspection as specified below; (b) The Secretary-General, in consultation with the appropriate Governments and, where appropriate, with the Director-General of the World Health Organization, within forty-five days of the passage of the present resolution, shall develop, and submit to the Council for approval, a plan calling for the completion of the following acts within forty-five days of such approval: (i) The forming of a Special Commission, which shall carry out immediate on-site inspection of Iraq’s biological, chemical and missile capabilities, based on Iraq’s declarations and the designation of any additional locations by the Special Commission itself; (ii) The yielding by Iraq of possession to the Special Commission for destruction, removal or rendering harmless, taking into account the requirements of public safety, of all items specified under paragraph (a) above, including items at the additional locations designated by the Special Commission under paragraph (b) (i) above and the destruction by Iraq, under the supervision of the Special Commission, of all its missile capabilities, including launchers, as specified under paragraph (b) above;
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(iii) The provision by the Special Commission of the assistance and cooperation to the Director-General of the International Atomic Energy Agency required in paragraphs and below; . Decides that Iraq shall unconditionally undertake not to use, develop, construct or acquire any of the items specified in paragraphs and above and requests the SecretaryGeneral, in consultation with the Special Commission, to develop a plan for the future ongoing monitoring and verification of Iraq’s compliance with this paragraph, to be submitted to the Security Council for approval within one hundred and twenty days of the passage of this resolution; . Invites Iraq to reaffirm unconditionally its obligations under the Treaty on the NonProliferation of Nuclear Weapons of July ; . Decides that Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapons-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above; to submit to the Secretary-General and the Director-General of the International Atomic Energy Agency within fifteen days of the adoption of the present resolution a declaration of the locations, amounts, and types of all items specified above; to place all of its nuclearweapons-usable materials under the exclusive control, for custody and removal, of the International Atomic Energy Agency, with the assistance and cooperation of the Special Commission as provided for in the plan of the Secretary-General discussed in paragraph (b) above; to accept, in accordance with the arrangements provided for in paragraph below, urgent on-site inspection and the destruction, removal or rendering harmless as appropriate of all items specified above; and to accept the plan discussed in paragraph below for the future ongoing monitoring and verification of its compliance with these undertakings; . Requests the Director-General of the International Atomic Energy Agency, through the Secretary-General, with the assistance and cooperation of the Special Commission as provided for in the plan of the Secretary-General in paragraph (b) above, to carry out immediate on-site inspection of Iraq’s nuclear capabilities based on Iraq’s declarations and the designation of any additional locations by the Special Commission; to develop a plan for submission to the Security Council within forty-five days calling for the destruction, removal, or rendering harmless as appropriate of all items listed in paragraph above; to carry out the plan within forty-five days following approval by the Security Council; and to develop a plan, taking into account the rights and obligations of Iraq under the Treaty on the NonProliferation of Nuclear Weapons of July , for the future ongoing monitoring and verification of Iraq’s compliance with paragraph above, including an inventory of all nuclear material in Iraq subject to the Agency’s verification and inspections to confirm that Agency safeguards cover all relevant nuclear activities in Iraq, to be submitted to the Security Council for approval within one hundred and twenty days of the passage of the present resolution; . Takes note that the actions to be taken by Iraq in paragraphs , , , , and of the present resolution represent steps towards the goal of establishing in the Middle East a zone free from weapons of mass destruction and all missiles for their delivery and the objective of a global ban on chemical weapons; D . Requests the Secretary-General to report to the Security Council on the steps taken to facilitate the return of all Kuwaiti property seized by Iraq, including a list of any property that Kuwait claims has not been returned or which has not been returned intact;
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E . Reaffirms that Iraq, without prejudice to the debts and obligations of Iraq arising prior to August , which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait; . Decides that all Iraqi statements made since August repudiating its foreign debt are null and void, and demands that Iraq adhere scrupulously to all of its obligations concerning servicing and repayment of its foreign debt; . Decides also to create a fund to pay compensation for claims that fall within paragraph above and to establish a Commission that will administer the fund; . Directs the Secretary-General to develop and present to the Security Council for decision, no later than thirty days following the adoption of the present resolution, recommendations for the fund to meet the requirement for the payment of claims established in accordance with paragraph above and for a programme to implement the decisions in paragraphs , and above, including: administration of the fund; mechanisms for determining the appropriate level of Iraq’s contribution to the fund based on a percentage of the value of the exports of petroleum and petroleum products from Iraq not to exceed a figure to be suggested to the Council by the Secretary-General, taking into account the requirements of the people of Iraq, Iraq’s payment capacity as assessed in conjunction with the international financial institutions taking into consideration external debt service, and the needs of the Iraqi economy; arrangements for ensuring that payments are made to the fund; the process by which funds will be allocated and claims paid; appropriate procedures for evaluating losses, listing claims and verifying their validity and resolving disputed claims in respect of Iraq’s liability as specified in paragraph above; and the composition of the Commission designated above; F . Decides, effective immediately, that the prohibitions against the sale or supply to Iraq of commodities or products, other than medicine and health supplies, and prohibitions against financial transactions related thereto contained in resolution () shall not apply to foodstuffs notified to the Security Council Committee established by resolution () concerning the situation between Iraq and Kuwait or, with the approval of that Committee, under the simplified and accelerated “no-objection” procedure, to materials and supplies for essential civilian needs as identified in the report of the Secretary-General dated March , and in any further findings of humanitarian need by the Committee; . Decides that the Security Council shall review the provisions of paragraph above every sixty days in the light of the policies and practices of the Government of Iraq, including the implementation of all relevant resolutions of the Security Council, for the purpose of determining whether to reduce or lift the prohibitions referred to therein; . Decides that upon the approval by the Security Council of the programme called for in paragraph above and upon Council agreement that Iraq has completed all actions contemplated in paragraphs , , , , and above, the prohibitions against the import of commodities and products originating in Iraq and the prohibitions against financial transactions related thereto contained in resolution () shall have no further force or effect; . Decides that, pending action by the Security Council under paragraph above, the Security Council Committee established by resolution () shall be empowered to
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approve, when required to assure adequate financial resources on the part of Iraq to carry out the activities under paragraph above, exceptions to the prohibition against the import of commodities and products originating in Iraq; . Decides that, in accordance with resolution () and subsequent related resolutions and until a further decision is taken by the Security Council, all States shall continue to prevent the sale or supply, or the promotion or facilitation of such sale or supply, to Iraq by their nationals, or from their territories or using their flag vessels or aircraft, of: (a) Arms and related materiel of all types, specifically including the sale or transfer through other means of all forms of conventional military equipment, including for paramilitary forces, and spare parts and components and their means of production, for such equipment; (b) Items specified and defined in paragraphs and above not otherwise covered above; (c) Technology under licensing or other transfer arrangements used in the production, utilization or stockpiling of items specified in subparagraphs (a) and (b) above; (d) Personnel or materials for training or technical support services relating to the design, development, manufacture, use, maintenance or support of items specified in subparagraphs (a) and (b) above; . Calls upon all States and international organizations to act strictly in accordance with paragraph above, notwithstanding the existence of any contracts, agreements, licences or any other arrangements; . Requests the Secretary-General, in consultation with appropriate Governments, to develop within sixty days, for the approval of the Security Council, guidelines to facilitate full international implementation of paragraphs and above and paragraph below, and to make them available to all States and to establish a procedure for updating these guidelines periodically; . Calls upon all States to maintain such national controls and procedures and to take such other actions consistent with the guidelines to be established by the Security Council under paragraph above as may be necessary to ensure compliance with the terms of paragraph above, and calls upon international organizations to take all appropriate steps to assist in ensuring such full compliance; . Agrees to review its decisions in paragraphs , , and above, except for the items specified and defined in paragraphs and above, on a regular basis and in any case one hundred and twenty days following passage of the present resolution, taking into account Iraq’s compliance with the resolution and general progress towards the control of armaments in the region; . Decides that all States, including Iraq, shall take the necessary measures to ensure that no claim shall lie at the instance of the Government of Iraq, or of any person or body in Iraq, or of any person claiming through or for the benefit of any such person or body, in connection with any contract or other transaction where its performance was affected by reason of the measures taken by the Security Council in resolution () and related resolutions; G . Decides that, in furtherance of its commitment to facilitate the repatriation of all Kuwaiti and third country nationals, Iraq shall extend all necessary cooperation to the International Committee of the Red Cross, providing lists of such persons, facilitating the access of the International Committee of the Red Cross to all such persons wherever located
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or detained and facilitating the search by the International Committee of the Red Cross for those Kuwaiti and third country nationals still unaccounted for; . Invites the International Committee of the Red Cross to keep the Secretary-General apprised as appropriate of all activities undertaken in connection with facilitating the repatriation or return of all Kuwaiti and third country nationals or their remains present in Iraq on or after August ; H . Requires Iraq to inform the Security Council that it will not commit or support any act of international terrorism or allow any organization directed towards commission of such acts to operate within its territory and to condemn unequivocally and renounce all acts, methods and practices of terrorism; I . Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution (); . Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.
APPENDIX XIII: SC RES 688
SC Resolution () April The Security Council, Mindful of its duties and its responsibilities under the Charter of the United Nations for the maintenance of international peace and security, Recalling of Article , paragraph , of the Charter of the United Nations, 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, Deeply disturbed by the magnitude of the human suffering involved, Taking note of the letters sent by the representatives of Turkey and France to the United Nations dated April and April , respectively (S/ and S/), Taking note also of the letters sent by the Permanent Representative of the Islamic Republic of Iran to the United Nations dated and April , respectively (S/ and S/), Reaffirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Iraq and of all States in the area, Bearing in mind the Secretary-General’s report of March (S/), . Condemns the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, the consequences of which threaten international peace and security in the region; . Demands that Iraq, as a contribution to remove the threat to international peace and security in the region, immediately end this repression and express the hope in the same context that an open dialogue will take place to ensure that the human and political rights of all Iraqi citizens are respected; . Insists that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operations; . Requests the Secretary-General to pursue his humanitarian efforts in Iraq and to report forthwith, if appropriate on the basis of a further mission to the region, on the plight of the Iraqi civilian population, and in particular the Kurdish population, suffering from the repression in all its forms inflicted by the Iraqi authorities; . Requests further the Secretary-General to use all the resources at his disposal, including those of the relevant United Nations agencies, to address urgently the critical needs of the refugees and displaced Iraqi population; . Appeals to all Member States and to all humanitarian organizations to contribute to these humanitarian relief efforts; . Demands that Iraq cooperate with the Secretary-General to these ends; . Decides to remain seized of the matter.
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Security Council Resolution () March The Security Council, Recalling all its previous relevant resolutions, which constitute the governing standard of Iraqi compliance, Determined to ensure immediate and full compliance by Iraq without conditions or restrictions with its obligations under resolution () and the other relevant resolutions, Reaffirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Iraq, Kuwait and the neighbouring States, Acting under Chapter VII of the Charter of the United Nations, . Commends the initiative by the Secretary-General to secure commitments from the Government of Iraq on compliance with its obligations under the relevant resolutions, and in this regard endorses the memorandum of understanding signed by the Deputy Prime Minister of Iraq and the Secretary-General on February (S//) and looks forward to its early and full implementation; . Requests the Secretary-General to report to the Council as soon as possible with regard to the finalization of procedures for Presidential sites in consultation with the Executive Chairman of the United Nations Special Commission and the Director General of the International Atomic Energy Agency (IAEA); . Stresses that compliance by the Government of Iraq with its obligations, repeated again in the memorandum of understanding, to accord immediate, unconditional and unrestricted access to the Special Commission and the IAEA in conformity with the relevant resolutions is necessary for the implementation of resolution (), but that any violation would have severest consequences for Iraq; . Reaffirms its intention to act in accordance with the relevant provisions of resolution () on the duration of the prohibitions referred to in that resolution and notes that by its failure so far to comply with its relevant obligations Iraq has delayed the moment when the Council can do so; . Decides, in accordance with its responsibility under the Charter, to remain actively seized of the matter, in order to ensure implementation of this resolution, and to secure peace and security in the area.
APPENDIX XIII: SC RES 1284
Security Council Resolution () December The Security Council, Recalling its previous relevant resolutions, including its resolutions () of August , () of April , () of June , () of August , () of October , () of April , () of March , () of February , () of June , () of May and () of October , Recalling the approval by the Council in its resolution () of the plans for future ongoing monitoring and verification submitted by the Secretary-General and the Director General of the International Atomic Energy Agency (IAEA) in pursuance of paragraphs and of resolution (), Welcoming the reports of the three panels on Iraq (S//), and having held a comprehensive consideration of them and the recommendations contained in them, Stressing the importance of a comprehensive approach to the full implementation of all relevant Security Council resolutions regarding Iraq and the need for Iraqi compliance with these resolutions, Recalling the goal of establishing in the Middle East a zone free from weapons of mass destruction and all missiles for their delivery and the objective of a global ban on chemical weapons as referred to in paragraph of resolution (), Concerned at the humanitarian situation in Iraq, and determined to improve that situation, Recalling with concern that the repatriation and return of all Kuwaiti and third country nationals or their remains, present in Iraq on or after August , pursuant to paragraph (c) of resolution () of March and paragraph of resolution (), have not yet been fully carried out by Iraq, Recalling that in its resolutions () and () the Council demanded that Iraq return in the shortest possible time all Kuwaiti property it had seized, and noting with regret that Iraq has still not complied fully with this demand, Acknowledging the progress made by Iraq towards compliance with the provisions of resolution (), but noting that, as a result of its failure to implement the relevant Council resolutions fully, the conditions do not exist which would enable the Council to take a decision pursuant to resolution () to lift the prohibitions referred to in that resolution, Reiterating the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait, Iraq and the neighbouring States, Acting under Chapter VII of the Charter of the United Nations, and taking into account that operative provisions of this resolution relate to previous resolutions adopted under Chapter VII of the Charter,
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A. . Decides to establish, as a subsidiary body of the Council, the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) which replaces the Special Commission established pursuant to paragraph (b) of resolution (); . Decides also that UNMOVIC will undertake the responsibilities mandated to the Special Commission by the Council with regard to the verification of compliance by Iraq with its obligations under paragraphs , and of resolution () and other related resolutions, that UNMOVIC will establish and operate, as was recommended by the panel on disarmament and current and future ongoing monitoring and verification issues, a reinforced system of ongoing monitoring and verification, which will implement the plan approved by the Council in resolution () and address unresolved disarmament issues, and that UNMOVIC will identify, as necessary in accordance with its mandate, additional sites in Iraq to be covered by the reinforced system of ongoing monitoring and verification; . Reaffirms the provisions of the relevant resolutions with regard to the role of the IAEA in addressing compliance by Iraq with paragraphs and of resolution () and other related resolutions, and requests the Director General of the IAEA to maintain this role with the assistance and cooperation of UNMOVIC; . Reaffirms its resolutions (), (), (), (), (), () and all other relevant resolutions and statements of its President, which establish the criteria for Iraqi compliance, affirms that the obligations of Iraq referred to in those resolutions and statements with regard to cooperation with the Special Commission, unrestricted access and provision of information will apply in respect of UNMOVIC, and decides in particular that Iraq shall allow UNMOVIC teams immediate, unconditional and unrestricted access to any and all areas, facilities, equipment, records and means of transport which they wish to inspect in accordance with the mandate of UNMOVIC, as well as to all officials and other persons under the authority of the Iraqi Government whom UNMOVIC wishes to interview so that UNMOVIC may fully discharge its mandate; . Requests the Secretary-General, within days of the adoption of this resolution, to appoint, after consultation with and subject to the approval of the Council, an Executive Chairman of UNMOVIC who will take up his mandated tasks as soon as possible, and, in consultation with the Executive Chairman and the Council members, to appoint suitably qualified experts as a College of Commissioners for UNMOVIC which will meet regularly to review the implementation of this and other relevant resolutions and provide professional advice and guidance to the Executive Chairman, including on significant policy decisions and on written reports to be submitted to the Council through the Secretary-General; . Requests the Executive Chairman of UNMOVIC, within days of his appointment, to submit to the Council, in consultation with and through the Secretary-General, for its approval an organizational plan for UNMOVIC, including its structure, staffing requirements, management guidelines, recruitment and training procedures, incorporating as appropriate the recommendations of the panel on disarmament and current and future ongoing monitoring and verification issues, and recognizing in particular the need for an effective, cooperative management structure for the new organization, for staffing with suitably qualified and experienced personnel, who would be regarded as international civil servants subject to Article of the Charter of the United Nations, drawn from the broadest possible geographical base, including as he deems necessary from international arms control organizations, and for the provision of high quality technical and cultural training; . Decides that UNMOVIC and the IAEA, not later than days after they have both started work in Iraq, will each draw up, for approval by the Council, a work programme for the discharge of their mandates, which will include both the implementation of the reinforced system of ongoing monitoring and verification, and the key remaining disar-
APPENDIX XIII: SC RES 1284
mament tasks to be completed by Iraq pursuant to its obligations to comply with the disarmament requirements of resolution () and other related resolutions, which constitute the governing standard of Iraqi compliance, and further decides that what is required of Iraq for the implementation of each task shall be clearly defined and precise; . Requests the Executive Chairman of UNMOVIC and the Director General of the IAEA, drawing on the expertise of other international organizations as appropriate, to establish a unit which will have the responsibilities of the joint unit constituted by the Special Commission and the Director General of the IAEA under paragraph of the export/import mechanism approved by resolution (), and also requests the Executive Chairman of UNMOVIC, in consultation with the Director General of the IAEA, to resume the revision and updating of the lists of items and technology to which the mechanism applies; . Decides that the Government of Iraq shall be liable for the full costs of UNMOVIC and the IAEA in relation to their work under this and other related resolutions on Iraq; . Requests Member States to give full cooperation to UNMOVIC and the IAEA in the discharge of their mandates; . Decides that UNMOVIC shall take over all assets, liabilities and archives of the Special Commission, and that it shall assume the Special Commission’s part in agreements existing between the Special Commission and Iraq and between the United Nations and Iraq, and affirms that the Executive Chairman, the Commissioners and the personnel serving with UNMOVIC shall have the rights, privileges, facilities and immunities of the Special Commission; . Requests the Executive Chairman of UNMOVIC to report, through the SecretaryGeneral, to the Council, following consultation with the Commissioners, every three months on the work of UNMOVIC, pending submission of the first reports referred to in paragraph below, and to report immediately when the reinforced system of ongoing monitoring and verification is fully operational in Iraq; B. . Reiterates the obligation of Iraq, in furtherance of its commitment to facilitate the repatriation of all Kuwaiti and third country nationals referred to in paragraph of resolution (), to extend all necessary cooperation to the International Committee of the Red Cross, and calls upon the Government of Iraq to resume cooperation with the Tripartite Commission and Technical Subcommittee established to facilitate work on this issue; . Requests the Secretary-General to report to the Council every four months on compliance by Iraq with its obligations regarding the repatriation or return of all Kuwaiti and third country nationals or their remains, to report every six months on the return of all Kuwaiti property, including archives, seized by Iraq, and to appoint a high-level coordinator for these issues; C. . Authorizes States, notwithstanding the provisions of paragraphs (a), (b) and of resolution () and subsequent relevant resolutions, to permit the import of any volume of petroleum and petroleum products originating in Iraq, including financial and other essential transactions directly relating thereto, as required for the purposes and on the conditions set out in paragraph (a) and (b) and subsequent provisions of resolution () and related resolutions; . Underlines, in this context, its intention to take further action, including permitting the use of additional export routes for petroleum and petroleum products, under appropriate conditions otherwise consistent with the purpose and provisions of resolution () and related resolutions; . Directs the Committee established by resolution () to approve, on the basis of proposals from the Secretary-General, lists of humanitarian items, including foodstuffs,
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pharmaceutical and medical supplies, as well as basic or standard medical and agricultural equipment and basic or standard educational items, decides, notwithstanding paragraph of resolution () and paragraph of resolution (), that supplies of these items will not be submitted for approval of that Committee, except for items subject to the provisions of resolution (), and will be notified to the Secretary-General and financed in accordance with the provisions of paragraph (a) and (b) of resolution (), and requests the Secretary-General to inform the Committee in a timely manner of all such notifications received and actions taken; . Requests the Committee established by resolution () to appoint, in accordance with resolutions () and (), a group of experts, including independent inspection agents appointed by the Secretary-General in accordance with paragraph of resolution (), decides that this group will be mandated to approve speedily contracts for the parts and the equipments necessary to enable Iraq to increase its exports of petroleum and petroleum products, according to lists of parts and equipments approved by that Committee for each individual project, and requests the SecretaryGeneral to continue to provide for the monitoring of these parts and equipments inside Iraq; . Encourages Member States and international organizations to provide supplementary humanitarian assistance to Iraq and published material of an educational character to Iraq; . Decides to suspend, for an initial period of six months from the date of the adoption of this resolution and subject to review, the implementation of paragraph (g) of resolution (); . Requests the Secretary-General to take steps to maximize, drawing as necessary on the advice of specialists, including representatives of international humanitarian organizations, the effectiveness of the arrangements set out in resolution () and related resolutions including the humanitarian benefit to the Iraqi population in all areas of the country, and further requests the Secretary-General to continue to enhance as necessary the United Nations observation process in Iraq, ensuring that all supplies under the humanitarian programme are utilized as authorized, to bring to the attention of the Council any circumstances preventing or impeding effective and equitable distribution and to keep the Council informed of the steps taken towards the implementation of this paragraph; . Requests also the Secretary-General to minimize the cost of the United Nations activities associated with the implementation of resolution () as well as the cost of the independent inspection agents and the certified public accountants appointed by him, in accordance with paragraphs and of resolution (); . Requests further the Secretary-General to provide Iraq and the Committee established by resolution () with a daily statement of the status of the escrow account established by paragraph of resolution . Requests the Secretary-General to make the necessary arrangements, subject to Security Council approval, to allow funds deposited in the escrow account established by resolution () to be used for the purchase of locally produced goods and to meet the local cost for essential civilian needs which have been funded in accordance with the provisions of resolution () and related resolutions, including, where appropriate, the cost of installation and training services; . Directs the Committee established by resolution () to take a decision on all applications in respect of humanitarian and essential civilian needs within a target of two working days of receipt of these applications from the Secretary-General, and to ensure that all approval and notification letters issued by the Committee stipulate delivery within a specified time, according to the nature of the items to be supplied, and requests the Secretary-General to notify the Committee of all applications for humanitarian items which are included in the list to which the export/import mechanism approved by resolution () applies;
APPENDIX XIII: SC RES 1284
. Decides that Hajj pilgrimage flights which do not transport cargo into or out of Iraq are exempt from the provisions of paragraph of resolution () and resolution (), provided timely notification of each flight is made to the Committee established by resolution (), and requests the Secretary-General to make the necessary arrangements, for approval by the Security Council, to provide for reasonable expenses related to the Hajj pilgrimage to be met by funds in the escrow account established by resolution (); . Calls upon the Government of Iraq: (i) to take all steps to ensure the timely and equitable distribution of all humanitarian goods, in particular medical supplies, and to remove and avoid delays at its warehouses; (ii) to address effectively the needs of vulnerable groups, including children, pregnant women, the disabled, the elderly and the mentally ill among others, and to allow freer access, without any discrimination, including on the basis of religion or nationality, by United Nations agencies and humanitarian organizations to all areas and sections of the population for evaluation of their nutritional and humanitarian condition; (iii) to prioritize applications for humanitarian goods under the arrangements set out in resolution () and related resolutions; (iv) to ensure that those involuntarily displaced receive humanitarian assistance without the need to demonstrate that they have resided for six months in their places of temporary residence; (v) to extend full cooperation to the United Nations Office for Project Services mineclearance programme in the three northern Governorates of Iraq and to consider the initiation of the demining efforts in other Governorates; . Requests the Secretary-General to report on the progress made in meeting the humanitarian needs of the Iraqi people and on the revenues necessary to meet those needs, including recommendations on necessary additions to the current allocation for oil spare parts and equipment, on the basis of a comprehensive survey of the condition of the Iraqi oil production sector, not later than days from the date of the adoption of this resolution and updated thereafter as necessary; . Expresses its readiness to authorize additions to the current allocation for oil spare parts and equipment, on the basis of the report and recommendations requested in paragraph above, in order to meet the humanitarian purposes set out in resolution () and related resolutions; . Requests the Secretary-General to establish a group of experts, including oil industry experts, to report within days of the date of adoption of this resolution on Iraq’s existing petroleum production and export capacity and to make recommendations, to be updated as necessary, on alternatives for increasing Iraq’s petroleum production and export capacity in a manner consistent with the purposes of relevant resolutions, and on the options for involving foreign oil companies in Iraq’s oil sector, including investments, subject to appropriate monitoring and controls; . Notes that in the event of the Council acting as provided for in paragraph of this resolution to suspend the prohibitions referred to in that paragraph, appropriate arrangements and procedures will need, subject to paragraph below, to be agreed by the Council in good time beforehand, including suspension of provisions of resolution () and related resolutions; . Requests the Secretary-General to report to the Council on the implementation of paragraphs to of this resolution within days of the adoption of this resolution; D. . Expresses its intention, upon receipt of reports from the Executive Chairman of UNMOVIC and from the Director General of the IAEA that Iraq has cooperated in all
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respects with UNMOVIC and the IAEA in particular in fulfilling the work programmes in all the aspects referred to in paragraph above, for a period of days after the date on which the Council is in receipt of reports from both UNMOVIC and the IAEA that the reinforced system of ongoing monitoring and verification is fully operational, to suspend with the fundamental objective of improving the humanitarian situation in Iraq and securing the implementation of the Council’s resolutions, for a period of days renewable by the Council, and subject to the elaboration of effective financial and other operational measures to ensure that Iraq does not acquire prohibited items, prohibitions against the import of commodities and products originating in Iraq, and prohibitions against the sale, supply and delivery to Iraq of civilian commodities and products other than those referred to in paragraph of resolution () or those to which the mechanism established by resolution () applies; . Decides that in reporting to the Council for the purposes of paragraph above, the Executive Chairman of UNMOVIC will include as a basis for his assessment the progress made in completing the tasks referred to in paragraph above; . Decides that if at any time the Executive Chairman of UNMOVIC or the Director General of the IAEA reports that Iraq is not cooperating in all respects with UNMOVIC or the IAEA or if Iraq is in the process of acquiring any prohibited items, the suspension of the prohibitions referred to in paragraph above shall terminate on the fifth working day following the report, unless the Council decides to the contrary; . Expresses its intention to approve arrangements for effective financial and other operational measures, including on the delivery of and payment for authorized civilian commodities and products to be sold or supplied to Iraq, in order to ensure that Iraq does not acquire prohibited items in the event of suspension of the prohibitions referred to in paragraph above, to begin the elaboration of such measures not later than the date of the receipt of the initial reports referred to in paragraph above, and to approve such arrangements before the Council decision in accordance with that paragraph; . Further expresses its intention to take steps, based on the report and recommendations requested in paragraph above, and consistent with the purpose of resolution () and related resolutions, to enable Iraq to increase its petroleum production and export capacity, upon receipt of the reports relating to the cooperation in all respects with UNMOVIC and the IAEA referred to in paragraph above; . Reaffirms its intention to act in accordance with the relevant provisions of resolution () on the termination of prohibitions referred to in that resolution; . Decides to remain actively seized of the matter and expresses its intention to consider action in accordance with paragraph above no later than months from the date of the adoption of this resolution provided the conditions set out in paragraph above have been satisfied by Iraq.
APPENDIX XIII: SC RES 1441
Security Council Resolution () December The Security Council, Recalling all its previous relevant resolutions, in particular its resolutions () of August , () of November , () of March , () of April , () of April , () of August , () of October , () of April , and () of December , and all the relevant statements of its President, Recalling also its resolution () of November and its intention to implement it fully, Recognizing the threat Iraq’s noncompliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security, Recalling that its resolution () authorized Member States to use all necessary means to uphold and implement its resolution () of August and all relevant resolutions subsequent to Resolution () and to restore international peace and security in the area, Further recalling that its resolution () imposed obligations on Iraq as a necessary step for achievement of its stated objective of restoring international peace and security in the area, Deploring the fact that Iraq has not provided an accurate, full, final, and complete disclosure, as required by resolution (), of all aspects of its programmes to develop weapons of mass destruction and ballistic missiles with a range greater than one hundred and fifty kilometres, and of all holdings of such weapons, their components and production facilities and locations, as well as all other nuclear programmes, including any which it claims are for purposes not related to nuclear-weapons-usable material, Deploring further that Iraq repeatedly obstructed immediate, unconditional, and unrestricted access to sites designated by the United Nations Special Commission (UNSCOM) and the International Atomic Energy Agency (IAEA), failed to cooperate fully and unconditionally with UNSCOM and IAEA weapons inspectors, as required by resolution (), and ultimately ceased all cooperation with UNSCOM and the IAEA in , Deploring the absence, since December , in Iraq of international monitoring, inspection, and verification, as required by relevant resolutions, of weapons of mass destruction and ballistic missiles, in spite of the Council’s repeated demands that Iraq provide immediate, unconditional, and unrestricted access to the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), established in resolution () as the successor organization to UNSCOM, and the IAEA; and regretting the consequent prolonging of the crisis in the region and the suffering of the Iraqi people, Deploring also that the Government of Iraq has failed to comply with its commitments pursuant to resolution () with regard to terrorism, pursuant to resolution () to end repression of its civilian population and to provide access by international humanitarian organizations to all those in need of assistance in Iraq, and pursuant to resolutions (),
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(), and () to return or cooperate in accounting for Kuwaiti and third country nationals wrongfully detained by Iraq, or to return Kuwaiti property wrongfully seized by Iraq, Recalling that in its resolution () the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein, Determined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution () and other relevant resolutions and recalling that the resolutions of the Council constitute the governing standard of Iraqi compliance, Recalling that the effective operation of UNMOVIC, as the successor organization to the Special Commission, and the IAEA, is essential for the implementation of resolution () and other relevant resolutions, Noting the letter dated September from the Minister for Foreign Affairs of Iraq addressed to the Secretary-General is a necessary first step toward rectifying Iraq’s continued failure to comply with relevant Council resolutions, Noting further the letter dated October from the Executive Chairman of UNMOVIC and the Director-General of the IAEA to General Al-Saadi of the Government of Iraq laying out the practical arrangements, as a follow-up to their meeting in Vienna, that are prerequisites for the resumption of inspections in Iraq by UNMOVIC and the IAEA, and expressing the gravest concern at the continued failure by the Government of Iraq to provide confirmation of the arrangements as laid out in that letter, Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of Iraq, Kuwait, and the neighbouring States, Commending the Secretary General and members of the League of Arab States and its Secretary General for their efforts in this regard, Determined to secure full compliance with its decisions, Acting under Chapter VII of the Charter of the United Nations, . Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution (), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs to of resolution (); . Decides, while acknowledging paragraph above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution () and subsequent resolutions of the Council; . Decides that, in order to begin to comply with its disarmament obligations, in addition to submitting the required biannual declarations, the Government of Iraq shall provide to UNMOVIC, the IAEA, and the Council, not later than days from the date of this resolution, 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, sub-components, 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;
APPENDIX XIII: SC RES 1441
. 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 paragraph and below; . Decides that Iraq shall provide UNMOVIC and the IAEA immediate, unimpeded, unconditional, and unrestricted access to any and all, including underground, areas, facilities, buildings, equipment, records, and means of transport which they wish to inspect, as well as immediate, unimpeded, unrestricted, and private access to all officials and other persons whom UNMOVIC or the IAEA wish to interview in the mode or location of UNMOVIC’s or the IAEA’s choice pursuant to any aspect of their mandates; further decides that UNMOVIC and the IAEA may at their discretion conduct interviews inside or outside of Iraq, may facilitate the travel of those interviewed and family members outside of Iraq, and that, at the sole discretion of UNMOVIC and the IAEA, such interviews may occur without the presence of observers from the Iraqi government; and instructs UNMOVIC and requests the IAEA to resume inspections no later than days following adoption of this resolution and to update the Council days thereafter; . Endorses the October letter from the Executive Chairman of UNMOVIC and the Director-General of the IAEA to General Al-Saadi of the Government of Iraq, which is annexed hereto, and decides that the contents of the letter shall be binding upon Iraq; . Decides further that, in view of the prolonged interruption by Iraq of the presence of UNMOVIC and the IAEA and in order for them to accomplish the tasks set forth in this resolution and all previous relevant resolutions and notwithstanding prior understandings, the Council hereby establishes the following revised or additional authorities, which shall be binding upon Iraq, to facilitate their work in Iraq: • UNMOVIC and the IAEA shall determine the composition of their inspection teams and ensure that these teams are composed of the most qualified and experienced experts available; • All UNMOVIC and IAEA personnel shall enjoy the privileges and immunities, corresponding to those of experts on mission, provided in the Convention on Privileges and Immunities of the United Nations and the Agreement on the Privileges and Immunities of the IAEA; • UNMOVIC and the IAEA shall have unrestricted rights of entry into and out of Iraq, the right to free, unrestricted, and immediate movement to and from inspection sites, and the right to inspect any sites and buildings, including immediate, unimpeded, unconditional, and unrestricted access to Presidential Sites equal to that at other sites, notwithstanding the provisions of resolution (); • UNMOVIC and the IAEA shall have the right to be provided by Iraq the names of all personnel currently and formerly associated with Iraq’s chemical, biological, nuclear, and ballistic missile programmes and the associated research, development, and production facilities; • Security of UNMOVIC and IAEA facilities shall be ensured by sufficient UN security guards; • UNMOVIC and the IAEA shall have the right to declare, for the purposes of freezing a site to be inspected, exclusion zones, including surrounding areas and transit corridors, in which Iraq will suspend ground and aerial movement so that nothing is changed in or taken out of a site being inspected; • UNMOVIC and the IAEA shall have the free and unrestricted use and landing of fixed- and rotary-winged aircraft, including manned and unmanned reconnaissance vehicles; • UNMOVIC and the IAEA shall have the right at their sole discretion verifiably to remove, destroy, or render harmless all prohibited weapons, subsystems, components,
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records, materials, and other related items, and the right to impound or close any facilities or equipment for the production thereof; and • UNMOVIC and the IAEA shall have the right to free import and use of equipment or materials for inspections and to seize and export any equipment, materials, or documents taken during inspections, without search of UNMOVIC or IAEA personnel or official or personal baggage; . 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; . Requests the Secretary General immediately to notify Iraq of this resolution, which is binding on Iraq; demands that Iraq confirm within seven days of that notification its intention to comply fully with this resolution; and demands further that Iraq cooperate immediately, unconditionally, and actively with UNMOVIC and the IAEA; . Requests all Member States to give full support to UNMOVIC and the IAEA in the discharge of their mandates, including by providing any information related to prohibited programmes or other aspects of their mandates, including on Iraqi attempts since to acquire prohibited items, and by recommending sites to be inspected, persons to be interviewed, conditions of such interviews, and data to be collected, the results of which shall be reported to the Council by UNMOVIC and the IAEA; . 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; . Decides to convene immediately upon receipt of a report in accordance with paragraphs or 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; . 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 obligations; . Decides to remain seized of the matter.
APPENDIX XIII: SC RES 1472
Security Council Resolution () March The Security Council, Noting that under the provisions of Article of the Fourth Geneva Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August , ), to the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate, Convinced of the urgent need to continue to provide humanitarian relief to the people of Iraq throughout the country on an equitable basis, and of the need to extend such humanitarian relief measures to the people of Iraq who leave the country as a result of hostilities, Recalling its previous relevant resolutions, and in particular resolutions () of August , () of April , () of May , and () of December , as they provide humanitarian relief to the people of Iraq, Noting the decision made by the Secretary-General on March to withdraw all United Nations and international staff tasked with the implementation of the “Oil-for-Food” Programme (hereinafter “the Programme”) established under resolution (), Stressing the necessity to make every effort to sustain the operation of the present national food basket distribution network, Stressing also the need for consideration of a further reassessment of the Programme during and after the emergency phase, Reaffirming the respect for the right of the people of Iraq to determine their own political future and to control their own natural resources, Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of Iraq, Acting under Chapter VII of the Charter of the United Nations, . Requests all parties concerned to strictly abide by their obligations under international law, in particular the Geneva Conventions and the Hague Regulations, including those relating to the essential civilian needs of the people of Iraq, both inside and outside Iraq; . Calls on the international community also to provide immediate humanitarian assistance to the people of Iraq, both inside and outside Iraq in consultation with relevant States, and in particular to respond immediately to any future humanitarian appeal of the United Nations, and supports the activities of the International Committee of the Red Cross and of other international humanitarian organizations; . Recognizes that additionally, in view of the exceptional circumstances prevailing currently in Iraq, on an interim and exceptional basis, technical and temporary adjustments should be made to the Programme so as to ensure the implementation of the approved funded and non-funded contracts concluded by the Government of Iraq for the humanitarian relief of the people of Iraq, including to meet the needs of refugees and internally displaced persons, in accordance with this resolution; . Authorizes the Secretary-General and representatives designated by him to undertake as an urgent first step, and with the necessary coordination, the following measures: (a) to establish alternative locations, both inside and outside Iraq, in consultation with the respective governments, for the delivery, inspection and authenticated confirmation of humanitarian supplies and equipment provided under the Programme, as well as to re-direct shipments of goods to those locations, as necessary;
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(b) to review, as a matter of urgency, the approved funded and non-funded contracts concluded by the Government of Iraq to determine the relative priorities of the need for adequate medicine, health supplies, foodstuffs and other materials and supplies for essential civilian needs represented in these contracts which can be shipped within the period of this mandate, to proceed with these contracts in accordance with such priorities; (c) to contact suppliers of these contracts to determine the precise location of contracted goods and, when necessary, to require suppliers to delay, accelerate or divert shipments; (d) to negotiate and agree on necessary adjustments in the terms or conditions of these contracts and their respective letters of credit and to implement the measures referred to in paragraph (a), (b) and (c), notwithstanding distribution plans approved under the Programme; (e) to negotiate and execute new contracts for essential medical items under the Programme and to authorize issuance of the relevant letters of credit, notwithstanding approved distribution plans, provided that such items cannot be delivered in execution of contracts pursuant to paragraph (b) and subject to the approval of the Committee established pursuant to resolution (); (f ) to transfer unencumbered funds between the accounts created pursuant to paragraphs (a) and (b) of resolution () on an exceptional and reimbursable basis as necessary to ensure the delivery of essential humanitarian supplies to the people of Iraq and to use the funds in the escrow accounts referred to in paragraphs (a) and (b) of resolution () to implement the Programme as provided for in this resolution, irrespective of the phase in which such funds entered the escrow accounts or the phase to which those funds may have been allocated; (g) to use, subject to procedures to be decided by the Committee established by resolution () prior to the end of the period set out in paragraph below and based on recommendations provided by the Office of the Iraq Programme, funds deposited in the accounts created pursuant to paragraphs (a) and (b) of resolution (), as necessary and appropriate, to compensate suppliers and shippers for agreed additional shipping, transportation and storage costs incurred as a result of diverting and delaying shipments as directed by him according to the provisions of paragraph (a), (b) and (c) in order to perform his functions set out in paragraph (d); (h) to meet additional operational and administrative costs resulting from the implementation of the temporarily modified Programme by the funds in the escrow account established pursuant to paragraph (d) of resolution () in the same manner as costs arising from those activities set forth in paragraph (d) of resolution () in order to perform his functions set out in (d); (i) to use funds deposited in the escrow accounts established pursuant to paragraphs (a) and (b) of resolution () for the purchase of locally produced goods and to meet the local cost for essential civilian needs which have been funded in accordance with the provisions of resolution () and related resolutions, including, where appropriate, the costs of milling, transportation and other costs necessary to facilitate the delivery of essential humanitarian supplies to the people of Iraq; . Expresses its readiness as a second step to authorize the Secretary-General to perform additional functions with the necessary coordination as soon as the situation permits as activities of the Programme in Iraq resume; . Expresses further its readiness to consider making additional funds available, including from the account created pursuant to paragraph (c) of resolution (), on an exceptional and reimbursable basis, to meet further the humanitarian needs of the people of Iraq;
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. Decides that, notwithstanding the provisions of resolution () and resolution () and for the duration of the present resolution, all applications outside the Oilfor-Food Programme submitted by the United Nations agencies, programmes and funds, other international organizations and non-governmental organizations (NGOs) for distribution or use in Iraq of emergency humanitarian supplies and equipment, other than medicines, health supplies and foodstuffs, shall be reviewed by the Committee established pursuant to resolution (), under a -hour no-objection procedure; . Urges all parties concerned, consistent with the Geneva Conventions and the Hague Regulations, to allow full unimpeded access by international humanitarian organizations to all people of Iraq in need of assistance and to make available all necessary facilities for their operations and to promote the safety, security and freedom of movement of United Nations and associated personnel and their assets, as well as personnel of humanitarian organizations in Iraq in meeting such needs; . Directs the Committee established pursuant to resolution () to monitor closely the implementation of the provisions in paragraph above and, in that regard, requests the Secretary-General to update the Committee on the measures as they are being taken and to consult with the Committee on prioritization of contracts for shipments of goods, other than foodstuffs, medicines, health and water sanitation related supplies; . Decides that the provisions contained in paragraph of this resolution shall remain in force for a period of days following the date of adoption of this resolution and may be subject to further renewal by the Council; . Requests the Secretary-General to take all measures required for the implementation of the present resolution and to report to the Security Council prior to the termination of the period defined in paragraph ; . Decides to remain seized of the matter.
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Security Council Resolution () April The Security Council Recalling its previous relevant resolutions, and in particular resolutions () of August , () of April , () of May , () of December , and () of March , as they provide humanitarian relief to the people of Iraq, Acting under Chapter VII of the Charter of the United Nations, . Decides that the provisions contained in paragraph of resolution () shall remain in force until June and may be subject to further renewal by the Council; . Decides to remain seized of the matter.
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Security Council Resolution () May The Security Council, Recalling all its previous relevant resolutions, Reaffirming the sovereignty and territorial integrity of Iraq, Reaffirming also the importance of the disarmament of Iraqi weapons of mass destruction and of eventual confirmation of the disarmament of Iraq, Stressing the right of the Iraqi people freely to determine their own political future and control their own natural resources, welcoming the commitment of all parties concerned to support the creation of an environment in which they may do so as soon as possible, and expressing resolve that the day when Iraqis govern themselves must come quickly, Encouraging efforts by the people of Iraq to form a representative government based on the rule of law that affords equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender, and, in this connection, recalls resolution () of October , Welcoming the first steps of the Iraqi people in this regard, and noting in this connection the April Nasiriyah statement and the April Baghdad statement, Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance, Noting the statement of April by the Ministers of Finance and Central Bank Governors of the Group of Seven Industrialized Nations in which the members recognized the need for a multilateral effort to help rebuild and develop Iraq and for the need for assistance from the International Monetary Fund and the World Bank in these efforts, Welcoming also the resumption of humanitarian assistance and the continuing efforts of the Secretary-General and the specialized agencies to provide food and medicine to the people of Iraq, Welcoming the appointment by the Secretary-General of his Special Adviser on Iraq, Affirming the need for accountability for crimes and atrocities committed by the previous Iraqi regime, Stressing the need for respect for the archaeological, historical, cultural, and religious heritage of Iraq, and for the continued protection of archaeological, historical, cultural, and religious sites, museums, libraries, and monuments, Noting the letter of May from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S//) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”), Noting further that other States that are not occupying powers are working now or in the future may work under the Authority, Welcoming further the willingness of Member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority, Concerned that many Kuwaitis and Third-State Nationals still are not accounted for since August , Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations,
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. Appeals to Member States and concerned organizations to assist the people of Iraq in their efforts to reform their institutions and rebuild their country, and to contribute to conditions of stability and security in Iraq in accordance with this resolution; . Calls upon all Member States in a position to do so to respond immediately to the humanitarian appeals of the United Nations and other international organizations for Iraq and to help meet the humanitarian and other needs of the Iraqi people by providing food, medical supplies, and resources necessary for reconstruction and rehabilitation of Iraq’s economic infrastructure; . Appeals to Member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice; . Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future; . Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of and the Hague Regulations of ; . Calls upon the Authority and relevant organizations and individuals to continue efforts to locate, identify, and repatriate all Kuwaiti and Third-State Nationals or the remains of those present in Iraq on or after August , as well as the Kuwaiti archives, that the previous Iraqi regime failed to undertake, and, in this regard, directs the High-Level Coordinator, in consultation with the International Committee of the Red Cross and the Tripartite Commission and with the appropriate support of the people of Iraq and in coordination with the Authority, to take steps to fulfil his mandate with respect to the fate of Kuwaiti and Third-State National missing persons and property; . Decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of resolution () of August , including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph; . Requests the Secretary-General to appoint a Special Representative for Iraq whose independent responsibilities shall involve reporting regularly to the Council on his activities under this resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq through: (a) coordinating humanitarian and reconstruction assistance by United Nations agencies and between United Nations agencies and non-governmental organizations; (b) promoting the safe, orderly, and voluntary return of refugees and displaced persons; (c) working intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognized, representative government of Iraq; (d) facilitating the reconstruction of key infrastructure, in cooperation with other international organizations; (e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organizations, as appropriate, civil society, donors, and the international financial institutions;
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(f ) encouraging international efforts to contribute to basic civilian administration functions; (g) promoting the protection of human rights; (h) encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; and (i) encouraging international efforts to promote legal and judicial reform; . Supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority; . Decides that, with the exception of prohibitions related to the sale or supply to Iraq of arms and related materiel other than those arms and related materiel required by the Authority to serve the purposes of this and other related resolutions, all prohibitions related to trade with Iraq and the provision of financial or economic resources to Iraq established by resolution () and subsequent relevant resolutions, including resolution () of October , shall no longer apply; . Reaffirms that Iraq must meet its disarmament obligations, encourages the United Kingdom of Great Britain and Northern Ireland and the United States of America to keep the Council informed of their activities in this regard, and underlines the intention of the Council to revisit the mandates of the United Nations Monitoring, Verification, and Inspection Commission and the International Atomic Energy Agency as set forth in resolutions () of April , () of December , and () of November ; . Notes the establishment of a Development Fund for Iraq to be held by the Central Bank of Iraq and to be audited by independent public accountants approved by the International Advisory and Monitoring Board of the Development Fund for Iraq and looks forward to the early meeting of that International Advisory and Monitoring Board, whose members shall include duly qualified representatives of the Secretary-General, of the Managing Director of the International Monetary Fund, of the Director-General of the Arab Fund for Social and Economic Development, and of the President of the World Bank; . Notes further that the funds in the Development Fund for Iraq shall be disbursed at the direction of the Authority, in consultation with the Iraqi interim administration, for the purposes set out in paragraph below; . Underlines that the Development Fund for Iraq shall be used in a transparent manner to meet the humanitarian needs of the Iraqi people, for the economic reconstruction and repair of Iraq’s infrastructure, for the continued disarmament of Iraq, and for the costs of Iraqi civilian administration, and for other purposes benefiting the people of Iraq; . Calls upon the international financial institutions to assist the people of Iraq in the reconstruction and development of their economy and to facilitate assistance by the broader donor community, and welcomes the readiness of creditors, including those of the Paris Club, to seek a solution to Iraq’s sovereign debt problems; . Requests also that the Secretary-General, in coordination with the Authority, continue the exercise of his responsibilities under Security Council resolution () of March and () of April , for a period of six months following the adoption of this resolution, and terminate within this time period, in the most cost effective manner, the ongoing operations of the “Oil-for-Food” Programme (the “Programme”), both at headquarters level and in the field, transferring responsibility for the administration of any remaining activity under the Programme to the Authority, including by taking the following necessary measures: (a) to facilitate as soon as possible the shipment and authenticated delivery of priority civilian goods as identified by the Secretary-General and representatives designated by
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him, in coordination with the Authority and the Iraqi interim administration, under approved and funded contracts previously concluded by the previous Government of Iraq, for the humanitarian relief of the people of Iraq, including, as necessary, negotiating adjustments in the terms or conditions of these contracts and respective letters of credit as set forth in paragraph (d) of resolution (); (b) to review, in light of changed circumstances, in coordination with the Authority and the Iraqi interim administration, the relative utility of each approved and funded contract with a view to determining whether such contracts contain items required to meet the needs of the people of Iraq both now and during reconstruction, and to postpone action on those contracts determined to be of questionable utility and the respective letters of credit until an internationally recognized, representative government of Iraq is in a position to make its own determination as to whether such contracts shall be fulfilled; (c) to provide the Security Council within days following the adoption of this resolution, for the Security Council’s review and consideration, an estimated operating budget based on funds already set aside in the account established pursuant to paragraph (d) of resolution () of April , identifying: (i) all known and projected costs to the United Nations required to ensure the continued functioning of the activities associated with implementation of the present resolution, including operating and administrative expenses associated with the relevant United Nations agencies and programmes responsible for the implementation of the Programme both at Headquarters and in the field; (ii) all known and projected costs associated with termination of the Programme; (iii) all known and projected costs associated with restoring Government of Iraq funds that were provided by Member States to the Secretary-General as requested in paragraph of resolution (); and (iv) all known and projected costs associated with the Special Representative and the qualified representative of the Secretary-General identified to serve on the International Advisory and Monitoring Board, for the six month time period defined above, following which these costs shall be borne by the United Nations; (d) to consolidate into a single fund the accounts established pursuant to paragraphs (a) and (b) of resolution (); (e) to fulfil all remaining obligations related to the termination of the Programme, including negotiating, in the most cost effective manner, any necessary settlement payments, which shall be made from the escrow accounts established pursuant to paragraphs (a) and (b) of resolution (), with those parties that previously have entered into contractual obligations with the Secretary-General under the Programme, and to determine, in coordination with the Authority and the Iraqi interim administration, the future status of contracts undertaken by the United Nations and related United Nations agencies under the accounts established pursuant to paragraphs (b) and (d) of resolution (); (f ) to provide the Security Council, days prior to the termination of the Programme, with a comprehensive strategy developed in close coordination with the Authority and the Iraqi interim administration that would lead to the delivery of all relevant documentation and the transfer of all operational responsibility of the Programme to the Authority; . Requests further that the Secretary-General transfer as soon as possible to the Development Fund for Iraq billion United States dollars from unencumbered funds in the accounts established pursuant to paragraphs (a) and (b) of resolution (), restore Government of Iraq funds that were provided by Member States to the SecretaryGeneral as requested in paragraph of resolution (), and decides that, after deducting all relevant United Nations expenses associated with the shipment of authorized
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contracts and costs to the Programme outlined in paragraph (c) above, including residual obligations, all surplus funds in the escrow accounts established pursuant to paragraphs (a), (b), (d), and (f) of resolution () shall be transferred at the earliest possible time to the Development Fund for Iraq; . Decides to terminate effective on the adoption of this resolution the functions related to the observation and monitoring activities undertaken by the Secretary-General under the Programme, including the monitoring of the export of petroleum and petroleum products from Iraq; . Decides to terminate the Committee established pursuant to paragraph of resolution () at the conclusion of the six month period called for in paragraph above and further decides that the Committee shall identify individuals and entities referred to in paragraph below; . Decides that all export sales of petroleum, petroleum products, and natural gas from Iraq following the date of the adoption of this resolution shall be made consistent with prevailing international market best practices, to be audited by independent public accountants reporting to the International Advisory and Monitoring Board referred to in paragraph above in order to ensure transparency, and decides further that, except as provided in paragraph below, all proceeds from such sales shall be deposited into the Development Fund for Iraq until such time as an internationally recognized, representative government of Iraq is properly constituted; . Decides further that per cent of the proceeds referred to in paragraph above shall be deposited into the Compensation Fund established in accordance with resolution () and subsequent relevant resolutions and that, unless an internationally recognized, representative government of Iraq and the Governing Council of the United Nations Compensation Commission, in the exercise of its authority over methods of ensuring that payments are made into the Compensation Fund, decide otherwise, this requirement shall be binding on a properly constituted, internationally recognized, representative government of Iraq and any successor thereto; . Noting the relevance of the establishment of an internationally recognized, representative government of Iraq and the desirability of prompt completion of the restructuring of Iraq’s debt as referred to in paragraph above, further decides that, until December , , unless the Council decides otherwise, petroleum, petroleum products, and natural gas originating in Iraq shall be immune, until title passes to the initial purchaser from legal proceedings against them and not be subject to any form of attachment, garnishment, or execution, and that all States shall take any steps that may be necessary under their respective domestic legal systems to assure this protection, and that proceeds and obligations arising from sales thereof, as well as the Development Fund for Iraq, shall enjoy privileges and immunities equivalent to those enjoyed by the United Nations except that the abovementioned privileges and immunities will not apply with respect to any legal proceeding in which recourse to such proceeds or obligations is necessary to satisfy liability for damages assessed in connection with an ecological accident, including an oil spill, that occurs after the date of adoption of this resolution; . Decides that all Member States in which there are: (a) funds or other financial assets or economic resources of the previous Government of Iraq or its state bodies, corporations, or agencies, located outside Iraq as of the date of this resolution, or (b) funds or other financial assets or economic resources that have been removed from Iraq, or acquired, by Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, shall freeze without delay those funds or other financial assets or economic resources and, unless these funds or other financial assets or economic resources are themselves the subject of a prior judicial, administrative, or arbitral lien or judgement, immediately
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shall cause their transfer to the Development Fund for Iraq, it being understood that, unless otherwise addressed, claims made by private individuals or non-government entities on those transferred funds or other financial assets may be presented to the internationally recognized, representative government of Iraq; and decides further that all such funds or other financial assets or economic resources shall enjoy the same privileges, immunities, and protections as provided under paragraph ; . Requests the Secretary-General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this resolution and on the work of the International Advisory and Monitoring Board and encourages the United Kingdom of Great Britain and Northern Ireland and the United States of America to inform the Council at regular intervals of their efforts under this resolution; . Decides to review the implementation of this resolution within twelve months of adoption and to consider further steps that might be necessary; . Calls upon Member States and international and regional organizations to contribute to the implementation of this resolution; . Decides to remain seized of this matter.
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Security Council Resolution () July The Security Council, Recalling all its previous relevant resolutions, including resolutions () of April , () of April , () of February , () of May and () of May , Taking note of the Secretary-General’s report of June (S//) on the United Nations Iraq-Kuwait Observation Mission (UNIKOM), Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of Iraq and Kuwait, Recognizing that the continued operation of UNIKOM and a demilitarized zone established under resolution () are no longer necessary to protect against threats to international security posed by Iraqi actions against Kuwait, Expressing its appreciation for the substantial voluntary contributions made to the Observation Mission by the Government of Kuwait, Commending the superior role played by UNIKOM and Department of Peacekeeping Operations (DPKO) personnel, and noting also that UNIKOM successfully fulfilled its mandate from to , Acting under Chapter VII of the Charter of the United Nations, . Decides to continue the mandate of UNIKOM for a final period until October ; . Directs the Secretary-General to negotiate the transfer of UNIKOM’s non-removable property and of those assets that cannot be disposed otherwise to the States of Kuwait and Iraq, as appropriate; . Decides to end the demilitarized zone extending kilometres into Iraq and kilometres into Kuwait from the Iraq-Kuwait border at the end of UNIKOM’s mandate on October ; . Requests the Secretary-General to report to the Council on the completion of UNIKOM’s mandate; . Expresses its appreciation of the decision of the Government of Kuwait to defray since November two thirds of the cost of the Observation Mission; . Decides to remain seized of the matter.
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Security Council Resolution () August The Security Council, Recalling all its previous relevant resolutions, in particular resolution () of May , Reaffirming the sovereignty and territorial integrity of Iraq, Reaffirming also the vital role for the United Nations in Iraq which was set out in relevant paragraphs of resolution (), Having considered the report of the Secretary-General of July (S//), . Welcomes the establishment of the broadly representative Governing Council of Iraq on July , as an important step towards the formation by the people of Iraq of an internationally recognized, representative government that will exercise the sovereignty of Iraq; . Decides to establish the United Nations Assistance Mission for Iraq to support the Secretary-General in the fulfilment of his mandate under resolution in accordance with the structure and responsibilities set out in his report of July , for an initial period of twelve months; . Decides to remain seized of this matter.
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Security Council Resolution () October The Security Council, Reaffirming its previous resolutions on Iraq, including resolution () of May and () of August , and on threats to peace and security caused by terrorist acts, including resolution () of September , and other relevant resolutions, Underscoring that the sovereignty of Iraq resides in the State of Iraq, reaffirming the right of the Iraqi people freely to determine their own political future and control their own natural resources, reiterating its resolve that the day when Iraqis govern themselves must come quickly, and recognizing the importance of international support, particularly that of countries in the region, Iraq’s neighbours, and regional organizations, in taking forward this process expeditiously, Recognizing that international support for restoration of conditions of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming Member State contributions in this regard under resolution (), Welcoming the decision of the Governing Council of Iraq to form a preparatory constitutional committee to prepare for a constitutional conference that will draft a constitution to embody the aspirations of the Iraqi people, and urging it to complete this process quickly, Affirming that the terrorist bombings of the Embassy of Jordan on August , of the United Nations headquarters in Baghdad on August , of the Imam Ali Mosque in Najaf on August , and of the Embassy of Turkey on October , and the murder of a Spanish diplomat on October are attacks on the people of Iraq, the United Nations, and the international community, and deploring the assassination of Dr. Akila al-Hashimi, who died on September , as an attack directed against the future of Iraq, In that context, recalling and reaffirming the statement of its President of August (S/PRST//) and resolution () of August , Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, . Reaffirms the sovereignty and territorial integrity of Iraq, and underscores, in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognized and set forth in resolution (), which will cease when an internationally recognized, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority, inter alia through steps envisaged in paragraphs through and below; . Welcomes the positive response of the international community, in fora such as the Arab League, the Organization of the Islamic Conference, the United Nations General Assembly, and the United Nations Educational, Scientific and Cultural Organization, to the establishment of the broadly representative Governing Council as an important step towards an internationally recognized, representative government; . Supports the Governing Council’s efforts to mobilize the people of Iraq, including by the appointment of a cabinet of ministers and a preparatory constitutional committee to lead a process in which the Iraqi people will progressively take control of their own affairs;
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. Determines that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the Authority; . Affirms that the administration of Iraq will be progressively undertaken by the evolving structures of the Iraqi interim administration; . Calls upon the Authority, in this context, to return governing responsibilities and authorities to the people of Iraq as soon as practicable and requests the Authority, in cooperation as appropriate with the Governing Council and the Secretary-General, to report to the Council on the progress being made; . Invites the Governing Council to provide to the Security Council, for its review, no later than December , in cooperation with the Authority and, as circumstances permit, the Special Representative of the Secretary-General, a timetable and a programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution; . Resolves that the United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission in Iraq, should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government; . Requests that, as circumstances permit, the Secretary-General pursue the course of action outlined in paragraphs and of the report of the Secretary-General of July (S//); . Takes note of the intention of the Governing Council to hold a constitutional conference and, recognizing that the convening of the conference will be a milestone in the movement to the full exercise of sovereignty, calls for its preparation through national dialogue and consensus-building as soon as practicable and requests the Special Representative of the Secretary-General, at the time of the convening of the conference or, as circumstances permit, to lend the unique expertise of the United Nations to the Iraqi people in this process of political transition, including the establishment of electoral processes; . Requests the Secretary-General to ensure that the resources of the United Nations and associated organizations are available, if requested by the Iraqi Governing Council and, as circumstances permit, to assist in furtherance of the programme provided by the Governing Council in paragraph above, and encourages other organizations with expertise in this area to support the Iraqi Governing Council, if requested; . Requests the Secretary-General to report to the Security Council on his responsibilities under this resolution and the development and implementation of a timetable and programme under paragraph above; . Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph above and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution (), and authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure; . Urges Member States to contribute assistance under this United Nations mandate, including military forces, to the multinational force referred to in paragraph above;
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. Decides that the Council shall review the requirements and mission of the multinational force referred to in paragraph above not later than one year from the date of this resolution, and that in any case the mandate of the force shall expire upon the completion of the political process as described in paragraphs through and above, and expresses readiness to consider on that occasion any future need for the continuation of the multinational force, taking into account the views of an internationally recognized, representative government of Iraq; . Emphasizes the importance of establishing effective Iraqi police and security forces in maintaining law, order, and security and combating terrorism consistent with paragraph of resolution (), and calls upon Member States and international and regional organizations to contribute to the training and equipping of Iraqi police and security forces; . Expresses deep sympathy and condolences for the personal losses suffered by the Iraqi people and by the United Nations and the families of those United Nations personnel and other innocent victims who were killed or injured in these tragic attacks; . Unequivocally condemns the terrorist bombings of the Embassy of Jordan on August , of the United Nations headquarters in Baghdad on August , and of the Imam Ali Mosque in Najaf on August , and of the Embassy of Turkey on October , the murder of a Spanish diplomat on October , and the assassination of Dr. Akila al-Hashimi, who died on September , and emphasizes that those responsible must be brought to justice; . Calls upon Member States to prevent the transit of terrorists to Iraq, arms for terrorists, and financing that would support terrorists, and emphasizes the importance of strengthening the cooperation of the countries of the region, particularly neighbours of Iraq, in this regard; . Appeals to Member States and the international financial institutions to strengthen their efforts to assist the people of Iraq in the reconstruction and development of their economy, and urges those institutions to take immediate steps to provide their full range of loans and other financial assistance to Iraq, working with the Governing Council and appropriate Iraqi ministries; . Urges Member States and international and regional organizations to support the Iraq reconstruction effort initiated at the June United Nations Technical Consultations, including through substantial pledges at the - October International Donors Conference in Madrid; . Calls upon Member States and concerned organizations to help meet the needs of the Iraqi people by providing resources necessary for the rehabilitation and reconstruction of Iraq’s economic infrastructure; . Emphasizes that the International Advisory and Monitoring Board (IAMB) referred to in paragraph of resolution () should be established as a priority, and reiterates that the Development Fund for Iraq shall be used in a transparent manner as set out in paragraph of resolution (); . Reminds all Member States of their obligations under paragraphs and of resolution () in particular the obligation to immediately cause the transfer of funds, other financial assets and economic resources to the Development Fund for Iraq for the benefit of the Iraqi people; Requests that the United States, on behalf of the multinational force as outlined in paragraph above, report to the Security Council on the efforts and progress of this force as appropriate and not less than every six months; . Decides to remain seized of the matter.
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Security Council Resolution () November The Security Council, Recalling all of its previous relevant resolutions, Recalling further its earlier decision in resolution () of May to terminate the Security Council Committee established pursuant to resolution (), Stressing the importance of all Member States fulfilling their obligations under paragraph of resolution (), Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, . Decides to establish, with immediate effect, in accordance with rule of its provisional rules of procedure, a Committee of the Security Council, consisting of all the members of the Council, to continue to identify pursuant to paragraph of resolution () individuals and entities referred to in paragraph of that resolution, including by updating the list of individuals and entities that have already been identified by the Committee established pursuant to paragraph of resolution (), and to report on its work to the Council; . Decides to adopt the guidelines (reference SC/ IK/ of June ) and definitions (reference SC/ IK/ of July ) previously agreed by the Committee established pursuant to paragraph of resolution (), to implement the provisions of paragraphs and of resolution (), and further decides that the guidelines and definitions can be amended by the Committee in light of further considerations; . Decides that the mandate of the Committee referred to in paragraph above will be kept under review and to consider the possible authorization of the additional task of observing Member States’ fulfilment of their obligations under paragraph of resolution (); . Decides to remain seized of the matter.
Appendix XIV Security Council Resolutions on Terrorism Security Council Resolution () October The Security Council, Reaffirming its previous resolutions, in particular resolutions () of August , () of August and () of December , and the statements of its President on the situation in Afghanistan, Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage, Reiterating its deep concern over the continuing violations of international humanitarian law and of human rights, particularly discrimination against women and girls, and over the significant rise in the illicit production of opium, and stressing that the capture by the Taliban of the Consulate-General of the Islamic Republic of Iran and the murder of Iranian diplomats and a journalist in Mazar-e-Sharif constituted flagrant violations of established international law, Recalling the relevant international counter-terrorism conventions and in particular the obligations of parties to those conventions to extradite or prosecute terrorists, Strongly condemning the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and planning of terrorist acts, and reaffirming its conviction that the suppression of international terrorism is essential for the maintenance of international peace and security, Deploring the fact that the Taliban continues to provide safe haven to Usama bin Laden and to allow him and others associated with him to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations, Noting the indictment of Usama bin Laden and his associates by the United States of America for, inter alia, the August bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania and for conspiring to kill American nationals outside the United States, and noting also the request of the United States of America to the Taliban to surrender them for trial (S//), Determining that the failure of the Taliban authorities to respond to the demands in paragraph of resolution () constitutes a threat to international peace and security, Stressing its determination to ensure respect for its resolutions, Acting under Chapter VII of the Charter of the United Nations, . Insists that the Afghan faction known as the Taliban, which also calls itself the Islamic Emirate of Afghanistan, comply promptly with its previous resolutions and in particular cease the provision of sanctuary and training for international terrorists and their organizations, take appropriate effective measures to ensure that the territory under its control is not used for terrorist installations and camps, or for the preparation or organization of
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terrorist acts against other States or their citizens, and cooperate with efforts to bring indicted terrorists to justice; . Demands that the Taliban turn over Usama bin Laden without further delay to appropriate authorities in a country where he has been indicted, or to appropriate authorities in a country where he will be returned to such a country, or to appropriate authorities in a country where he will be arrested and effectively brought to justice; . Decides that on November all States shall impose the measures set out in paragraph below, unless the Council has previously decided, on the basis of a report of the Secretary-General, that the Taliban has fully complied with the obligation set out in paragraph above; . Decides further that, in order to enforce paragraph above, all States shall: (a) Deny permission for any aircraft to take off from or land in their territory if it is owned, leased or operated by or on behalf of the Taliban as designated by the Committee established by paragraph below, unless the particular flight has been approved in advance by the Committee on the grounds of humanitarian need, including religious obligation such as the performance of the Hajj; (b) Freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need; . Urges all States to cooperate with efforts to fulfil the demand in paragraph above, and to consider further measures against Usama bin Laden and his associates; . Decides to establish, in accordance with rule of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council to undertake the following tasks and to report on its work to the Council with its observations and recommendations: (a) To seek from all States further information regarding the action taken by them with a view to effectively implementing the measures imposed by paragraph above; (b) To consider information brought to its attention by States concerning violations of the measures imposed by paragraph above and to recommend appropriate measures in response thereto; (c) To make periodic reports to the Council on the impact, including the humanitarian implications, of the measures imposed by paragraph above; (d) To make periodic reports to the Council on information submitted to it regarding alleged violations of the measures imposed by paragraph above, identifying where possible persons or entities reported to be engaged in such violations; (e) To designate the aircraft and funds or other financial resources referred to in paragraph above in order to facilitate the implementation of the measures imposed by that paragraph; (f ) To consider requests for exemptions from the measures imposed by paragraph above as provided in that paragraph, and to decide on the granting of an exemption to these measures in respect of the payment by the International Air Transport Association (IATA) to the aeronautical authority of Afghanistan on behalf of international airlines for air traffic control services; (g) To examine the reports submitted pursuant to paragraph below; . Calls upon all States to act strictly in accordance with the provisions of this resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any
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international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraph above; . Calls upon States to bring proceedings against persons and entities within their jurisdiction that violate the measures imposed by paragraph above and to impose appropriate penalties; . Calls upon all States to cooperate fully with the Committee established by paragraph above in the fulfilment of its tasks, including supplying such information as may be required by the Committee in pursuance of this resolution; . Requests all States to report to the Committee established by paragraph above within days of the coming into force of the measures imposed by paragraph above on the steps they have taken with a view to effectively implementing paragraph above; . Requests the Secretary-General to provide all necessary assistance to the Committee established by paragraph above and to make the necessary arrangements in the Secretariat for this purpose; . Requests the Committee established by paragraph above to determine appropriate arrangements, on the basis of recommendations of the Secretariat, with competent international organizations, neighbouring and other States, and parties concerned with a view to improving the monitoring of the implementation of the measures imposed by paragraph above; . Requests the Secretariat to submit for consideration by the Committee established by paragraph above information received from Governments and public sources on possible violations of the measures imposed by paragraph above; . Decides to terminate the measures imposed by paragraph above once the SecretaryGeneral reports to the Security Council that the Taliban has fulfilled the obligation set out in paragraph above; . Expresses its readiness to consider the imposition of further measures, in accordance with its responsibility under the Charter of the United Nations, with the aim of achieving the full implementation of this resolution; . Decides to remain actively seized of the matter.
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Security Council Resolution () September The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter, . Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on September in New York, Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security; . Expresses its deepest sympathy and condolences to the victims and their families and to the people and Government of the United States of America; . Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable; . Calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular resolution () of October ; . Expresses its readiness to take all necessary steps to respond to the terrorist attacks of September , and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations; . Decides to remain seized of the matter.
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Security Council Resolution () September The Security Council, Reaffirming its resolutions () of October and () of September , Reaffirming also its unequivocal condemnation of the terrorist attacks which took place in New York, Washington, D.C. and Pennsylvania on September , and expressing its determination to prevent all such acts, Reaffirming further that such acts, like any act of international terrorism, constitute a threat to international peace and security, Reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution (), Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts, Deeply concerned by the increase, in various regions of the world, of acts of terrorism motivated by intolerance or extremism, Calling on States to work together urgently to prevent and suppress terrorist acts, including through increased cooperation and full implementation of the relevant international conventions relating to terrorism, Recognizing the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism, Reaffirming the principle established by the General Assembly in its declaration of October (resolution (XXV)) and reiterated by the Security Council in its resolution () of August , namely that every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, Acting under Chapter VII of the Charter of the United Nations, . Decides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities; (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;
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. Decides also that all States shall: (a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists; (b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information; (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; (e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts; (f ) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings; (g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents; . Calls upon all States to: (a) Find ways of intensifying and accelerating the exchange of operational information, especially regarding actions or movements of terrorist persons or networks; forged or falsified travel documents; traffic in arms, explosives or sensitive materials; use of communications technologies by terrorist groups; and the threat posed by the possession of weapons of mass destruction by terrorist groups; (b) Exchange information in accordance with international and domestic law and cooperate on administrative and judicial matters to prevent the commission of terrorist acts; (c) Cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts; (d) Become parties as soon as possible to the relevant international conventions and protocols relating to terrorism, including the International Convention for the Suppression of the Financing of Terrorism of December ; (e) Increase cooperation and fully implement the relevant international conventions and protocols relating to terrorism and Security Council resolutions () and (); (f ) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts; (g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists; . Notes with concern the close connection between international terrorism and transnational organized crime, illicit drugs, money-laundering, illegal armstrafficking, and illegal movement of nuclear, chemical, biological and other potentially deadly materials, and
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in this regard emphasizes the need to enhance coordination of efforts on national, subregional, regional and international levels in order to strengthen a global response to this serious challenge and threat to international security; . Declares that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations; . Decides to establish, in accordance with rule of its provisional rules of procedure, a Committee of the Security Council, consisting of all the members of the Council, to monitor implementation of this resolution, with the assistance of appropriate expertise, and calls upon all States to report to the Committee, no later than days from the date of adoption of this resolution and thereafter according to a timetable to be proposed by the Committee, on the steps they have taken to implement this resolution; . Directs the Committee to delineate its tasks, submit a work programme within days of the adoption of this resolution, and to consider the support it requires, in consultation with the Secretary-General; . Expresses its determination to take all necessary steps in order to ensure the full implementation of this resolution, in accordance with its responsibilities under the Charter; . Decides to remain seized of this matter.
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Security Council Resolution () November The Security Council, Decides to adopt the attached declaration on the global effort to combat terrorism. Annex The Security Council, Meeting at the Ministerial level, Recalling its resolutions () of October , () of September and () of September , Declares that acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty-first century, Further declares that acts of international terrorism constitute a challenge to all States and to all of humanity, Reaffirms its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed, Stresses that acts of international terrorism are contrary to the purposes and principles of the Charter of the United Nations, and that the financing, planning and preparation of as well as any other form of support for acts of international terrorism are similarly contrary to the purposes and principles of the Charter of the United Nations, Underlines that acts of terrorism endanger innocent lives and the dignity and security of human beings everywhere, threaten the social and economic development of all States and undermine global stability and prosperity, Affirms that a sustained, comprehensive approach involving the active participation and collaboration of all Member States of the United Nations, and in accordance with the Charter of the United Nations and international law, is essential to combat the scourge of international terrorism, Stresses that continuing international efforts to broaden the understanding among civilizations and to address regional conflicts and the full range of global issues, including development issues, will contribute to international cooperation and collaboration, which themselves are necessary to sustain the broadest possible fight against international terrorism, Welcomes the commitment expressed by States to fight the scourge of international terrorism, including during the General Assembly plenary debate from to October , calls on all States to become parties as soon as possible to the relevant international conventions and protocols relating to terrorism, and encourages Member States to take forward work in this area, Calls on all States to take urgent steps to implement fully resolution (), and to assist each other in doing so, and underlines the obligation on States to deny financial and all other forms of support and safe haven to terrorists and those supporting terrorism, Expresses its determination to proceed with the implementation of that resolution in full cooperation with the whole membership of the United Nations, and welcomes the progress made so far by the Counter-Terrorism Committee established by paragraph of resolution () to monitor implementation of that resolution, Recognizes that many States will require assistance in implementing all the requirements of resolution (), and invites States to inform the Counter-Terrorism Committee of areas in which they require such support,
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In that context, invites the Counter-Terrorism Committee to explore ways in which States can be assisted, and in particular to explore with international, regional and subregional organizations: • the promotion of best-practice in the areas covered by resolution (), including the preparation of model laws as appropriate, • the availability of existing technical, financial, regulatory, legislative or other assistance programmes which might facilitate the implementation of resolution (), • the promotion of possible synergies between these assistance programmes, Calls on all States to intensify their efforts to eliminate the scourge of international terrorism.
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Security Council Resolution () December The Security Council, Recalling its resolutions () of October , () of December , () of July and () of January , Expressing its determination to facilitate the implementation of counterterrorism obligations in accordance with relevant Security Council resolutions, Reaffirming its resolution () of September , and reiterating its support for international efforts to root out terrorism, in accordance with the Charter of the United Nations, Acting under Chapter VII of the Charter of the United Nations, . Decides that the provisions of paragraph (b) of resolution (), and paragraphs and (a) of resolution (), do not apply to funds and other financial assets or economic resources that have been determined by the relevant State(s) to be: (a) necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges, or exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources, after notification by the relevant State(s) to the Committee established pursuant to resolution () (hereinafter referred to as “the Committee”) of the intention to authorize, where appropriate, access to such funds, assets or resources and in the absence of a negative decision by the Committee within hours of such notification; (b) necessary for extraordinary expenses, provided that such determination has been notified by the relevant State(s) to the Committee and has been approved by the Committee; . Decides that all States may allow for the addition to accounts subject to the provisions of paragraph (b) of resolution () and paragraphs and (a) of resolution () of: (a) interest or other earnings due on those accounts, or (b) payments due under contracts, agreements or obligations that arose prior to the date on which those accounts became subject to the provisions of resolutions (), (), or (), provided that any such interest, other earnings and payments continue to be subject to those provisions; . Decides that the Committee shall, in addition to the tasks set forth in paragraph of resolution () and paragraph of resolution (): (a) maintain and regularly update a list of the States that have notified the Committee of their intent to apply the provisions of paragraph (a) above in their implementation of the relevant resolutions and as to which there was no negative decision by the Committee; and (b) consider and approve, if appropriate, requests for extraordinary expenses as provided for in paragraph (b) above; . Decides that the exception provided for in paragraph (b) of resolution () will cease to have effect from the date of adoption of this resolution;
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. Urges Member States to take full account of the considerations set out above in their implementation of resolution (); . Decides to remain seized of the matter.
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Security Council Resolution () January The Security Council, Recalling its resolutions () of October , () of December , () of July , () of September , () of January and () of December , Underlining the obligation placed upon all Member States to implement, in full, resolution (), including with regard to any member of the Taliban and the Al-Qaida organization, and any individuals, groups, undertakings and entities associated with the Taliban and the Al-Qaida organization, who have participated in the financing, planning, facilitating and preparation or perpetration of terrorist acts or in supporting terrorist acts, as well as to facilitate the implementation of counter terrorism obligations in accordance with relevant Security Council resolutions, Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations and international law, threats to international peace and security caused by terrorist acts, Noting that, in giving effect to the measures in paragraph (b) of resolution (), paragraph (c) of resolution () and paragraphs and of resolution (), full account is to be taken of the provisions of paragraphs and of resolution (), Reiterating its condemnation of the Al-Qaida network and other associated terrorist groups for ongoing and multiple criminal terrorist acts, aimed at causing the deaths of innocent civilians, and other victims, and the destruction of property, Reiterating its unequivocal condemnation of all forms of terrorism and terrorist acts as noted in resolutions () of September , () of October , () of October , and () of December , Reaffirming that acts of international terrorism constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, . Decides to improve the implementation of the measures imposed by paragraph (b) of resolution (), paragraph (c) of resolution () and paragraphs and of resolution (); . Decides that the measures referred to in paragraph above will be further improved in months, or sooner if necessary; . Stresses the need for improved coordination and increased exchange of information between the Committee established pursuant to resolution () (hereinafter referred to as “the Committee”) and the Committee established pursuant to resolution (); . Requests the Committee to communicate to Member States the list referred to in paragraph of resolution () at least every three months, and stresses to all Member States the importance of submitting to the Committee the names and identifying information, to the extent possible, of and about members of the Al-Qaida organization and the Taliban and other individuals, groups, undertakings and entities associated with them so that the Committee can consider adding new names and details to its list, unless to do so would compromise investigations or enforcement actions; . Calls upon all States to continue to take urgent steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals
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or entities operating in their territory, to prevent and punish violations of the measures referred to in paragraph of this resolution, and to inform the Committee of the adoption of such measures, and invites States to report the results of all related investigations or enforcement actions to the Committee, unless to do so would compromise the investigation or enforcement actions; . Calls upon all States to submit an updated report to the Committee no later than days from adoption of this resolution on all steps taken to implement the measures referred to in paragraph above and all related investigations and enforcement actions, including a comprehensive summary of frozen assets of listed individuals and entities within Member State territories, unless to do so would compromise investigations or enforcement actions; . Calls upon all States, relevant United Nations bodies, and, as appropriate, other organizations and interested parties to cooperate fully with the Committee and with the Monitoring Group referred to in paragraph below, including supplying such information as may be sought by the Committee pursuant to all pertinent resolutions and by providing all relevant information, to the extent possible, to facilitate proper identification of all listed individuals and entities; . Requests the Secretary-General, upon adoption of this resolution and acting in consultation with the Committee, to reappoint five experts, drawing, as much as possible and as appropriate, on the expertise of the members of the Monitoring Group established pursuant to paragraph (a) of resolution (), to monitor for a further period of months the implementation of the measures referred to in paragraph of this resolution and to follow up on relevant leads relating to any incomplete implementation of the measures referred to in paragraph above; . Requests the Chairman of the Committee to report orally at least every days to the Council in detail on the overall work of the Committee and the Monitoring Group and stipulates that these updates shall include a summary of progress in submitting the reports referred to in paragraph of resolution () and paragraph above; . Requests the Secretary-General to ensure that the Monitoring Group and the Committee and its Chairman have access to sufficient expertise and resources as and when required to assist in the discharge of their responsibilities; . Requests the Committee to consider, where and when appropriate, a visit to selected countries by the Chairman of the Committee and/or Committee members to enhance the full and effective implementation of the measures referred to in paragraph above, with a view to encouraging States to implement all relevant Council resolutions; . Requests the Monitoring Group to submit a detailed work programme within days of the adoption of this resolution and to assist the Committee in providing guidance for Member States on the format of the reports referred to in paragraph above; . Further requests the Monitoring Group to submit two written reports to the Committee, the first by June and the second by November , on implementation of the measures referred to in paragraph above and to brief the Committee when the Committee so requests; . Further requests the Committee, through its Chairman, to provide the Council by August and by December with detailed oral assessments of Member State implementation of the measures referred to in paragraph above based on Member State reports referred to in paragraph above, paragraph of resolution () and all pertinent parts of Member State reports submitted under resolution (), and in line with transparent criteria to be determined by the Committee and communicated to all Member States, in addition to considering supplementary recommendations by the Monitoring Group, with a view to recommending further measures for Council consideration to improve the measures referred to in paragraph above; . Requests the Committee, based on its oral assessments, through its Chairman, to the Council referred to in paragraph above, to prepare and then to circulate a written
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assessment to the Council of actions taken by States to implement the measures referred to in paragraph above; . Decides to remain actively seized of the matter.
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Security Council Resolution () January The Security Council, Decides to adopt the attached declaration on the issue of combating terrorism. Annex The Security Council, Meeting at the level of Ministers for Foreign Affairs on January reaffirms that: • terrorism in all its forms and manifestations constitutes one of the most serious threats to peace and security; • any acts of terrorism are criminal and unjustifiable, regardless of their motivation, whenever and by whomsoever committed and are to be unequivocally condemned, especially when they indiscriminately target or injure civilians; • there is a serious and growing danger of terrorist access to and use of nuclear, chemical, biological and other potentially deadly materials, and therefore a need to strengthen controls on these materials; • it has become easier, in an increasingly globalized world, for terrorists to exploit sophisticated technology, communications and resources for their criminal objectives; • measures to detect and stem the flow of finance and funds for terrorist purposes must be urgently strengthened; • terrorists must also be prevented from making use of other criminal activities such as transnational organized crime, illicit drugs and drug trafficking, money-laundering and illicit arms trafficking; • since terrorists and their supporters exploit instability and intolerance to justify their criminal acts the Security Council is determined to counter this by contributing to peaceful resolution of disputes and by working to create a climate of mutual tolerance and respect; • terrorism can only be defeated, in accordance with the Charter of the United Nations and international law, by a sustained comprehensive approach involving the active participation and collaboration of all States, international and regional organizations, and by redoubled efforts at the national level. The Security Council therefore calls for the following steps to be taken: . All States must take urgent action to prevent and suppress all active and passive support to terrorism, and in particular comply fully with all relevant resolutions of the Security Council, in particular resolutions (), () and (); . The Security Council calls upon States to: (a) become a party, as a matter of urgency, to all relevant international conventions and protocols relating to terrorism, in particular the international convention for the suppression of the financing of terrorism and to support all international initiatives taken to that aim, and to make full use of the sources of assistance and guidance which are now becoming available; (b) assist each other, to the maximum extent possible, in the prevention, investigation, prosecution and punishment of acts of terrorism, wherever they occur;
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(c) cooperate closely to implement fully the sanctions against terrorists and their associates, in particular Al-Qaeda and the Taliban and their associates, as reflected in resolutions (), () and (), to take urgent actions to deny them access to the financial resources they need to carry out their actions, and to cooperate fully with the Monitoring Group established pursuant to resolution (); . States must bring to justice those who finance, plan, support or commit terrorist acts or provide safe havens, in accordance with international law, in particular on the basis of the principle to extradite or prosecute; . The Counter-Terrorism Committee must intensify its efforts to promote the implementation by Member States of all aspects of resolution (), in particular through reviewing States’ reports and facilitating international assistance and cooperation, and through continuing to operate in a transparent and effective manner, and in that regard the Council; (i) stresses the obligation on States to report to the CTC, according to the timetable set by the CTC, calls on the States who have not yet submitted a first report and on the States who are late in submitting further reports to do so by March, and requests the CTC to report regularly on progress; (ii) calls on States to respond promptly and fully to the CTC’s requests for information, comments and questions in full and on time, and instructs the CTC to inform the Council of progress, including any difficulties it encounters; (iii) requests the CTC in monitoring the implementation of resolution () to bear in mind all international best practices, codes and standards which are relevant to the implementation of resolution (), and underlines its support for the CTC’s approach in constructing a dialogue with each State on further action required to fully implement resolution (); . States should assist each other to improve their capacity to prevent and fight terrorism, and notes that such cooperation will help facilitate the full and timely implementation of resolution (), and invites the CTC to step up its efforts to facilitate the provision of technical and other assistance by developing targets and priorities for global action; . States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law; . International organizations should evaluate ways in which they can enhance the effectiveness of their action against terrorism, including by establishing dialogue and exchanges of information with each other and with other relevant international actors, and directs this appeal in particular to those technical agencies and organizations whose activities relate to the control of the use of or access to nuclear, chemical, biological and other deadly materials; in this context the importance of fully complying with existing legal obligations in the field of disarmament, arms limitation and non-proliferation and, where necessary, strengthening international instruments in this field should be underlined; . Regional and subregional organizations should work with the CTC and other international organizations to facilitate sharing of best practice in the fight against terrorism, and to assist their members in fulfilling their obligation to combat terrorism; . Those participating in the Special Meeting of the Counter-Terrorism Committee with international regional and subregional organizations on March should use that opportunity to make urgent progress on the matters referred to in this declaration which involve the work of such organizations; The Security Council also: . emphasizes that continuing international efforts to enhance dialogue and broaden the understanding among civilizations, in an effort to prevent the indiscriminate targeting of
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different religions and cultures, to further strengthen the campaign against terrorism, and to address unresolved regional conflicts and the full range of global issues, including development issues, will contribute to international cooperation and collaboration, which by themselves are necessary to sustain the broadest possible fight against terrorism; . reaffirms its strong determination to intensify its fight against terrorism in accordance with its responsibilities under the Charter of the United Nations, and takes note of the contributions made during its meeting on January with a view to enhancing the role of the United Nations in this regard, and invites Member States to make further contributions to this end; . invites the Secretary General to present a report within days summarizing any proposals made during its ministerial meeting and any commentary or response to these proposals by any Security Council member; . encourages Member States of the United Nations to cooperate in resolving all outstanding issues with a view to the adoption, by consensus, of the draft comprehensive convention on international terrorism and the draft international convention for the suppression of acts of nuclear terrorism; . decides to review actions taken towards the realization of this declaration at further meetings of the Security Council.
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Resolution () Adopted on January The Security Council, Recalling its resolutions () of October , () of December , () of July , () of September , () of January , () of December , and () of January , Underlining the obligation placed upon all Member States to implement, in full, resolution (), including with regard to any member of the Taliban and the Al-Qaida organization, and any individuals, groups, undertakings and entities associated with the Taliban and the Al-Qaida organization, who have participated in the financing, planning, facilitating and preparation or perpetration of terrorist acts or in supporting terrorist acts, as well as to facilitate the implementation of counterterrorism obligations in accordance with relevant Security Council resolutions, Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations and international law, threats to international peace and security caused by terrorist acts, Noting that, in giving effect to the measures in paragraph (b) of resolution (), paragraph (c) of resolution () and paragraphs and of resolution (), full account is to be taken of the provisions of paragraphs and of resolution (), Reiterating its condemnation of the Al-Qaida network and other associated terrorist groups for ongoing and multiple criminal terrorist acts, aimed at causing the deaths of innocent civilians, and other victims, and the destruction of property, and greatly undermining stability, Reiterating its unequivocal condemnation of all forms of terrorism and terrorist acts, Stressing to all States, international bodies, and regional organizations, the importance of ensuring that resources are committed, including through international partnership, to meet the ongoing threat the Al-Qaida organization and members of the Taliban, and any individuals, groups, undertakings and entities associated with them, represent to international peace and security, Acting under Chapter VII of the Charter of the United Nations, . Decides to improve, as set out in the following paragraphs of this resolution, the implementation of the measures imposed by paragraph (b) of resolution (), paragraph (c) of resolution (), and paragraphs and of resolution () with respect to Usama bin Laden, members of the Al-Qaida organization and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to resolutions () and () (the “Committee list”), namely to: (a) Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons’ benefit, by their nationals or by any persons within their territory; (b) Prevent the entry into or the transit through their territories of these individuals, provided that nothing in this paragraph shall oblige any State to deny entry or require the departure from its territories of its own nationals and this paragraph shall not apply
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where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case-by-case basis only that entry or transit is justified; (c) Prevent the direct or indirect supply, sale or transfer, to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance, or training related to military activities; and recalls that all States shall implement the measures with respect to listed individuals and entities; . Decides to strengthen the mandate of the Committee established pursuant to resolution () (“the Committee”) to include, in addition to the oversight of States’ implementation of the measures referred to in paragraph above, a central role in assessing information for the Council’s review regarding effective implementation of the measures, as well as in recommending improvements to the measures; . Decides that the measures referred to in paragraph above will be further improved in months, or sooner if necessary; . Calls upon States to move vigorously and decisively to cut the flows of funds and other financial assets and economic resources to individuals and entities associated with the Al-Qaida organization, Usama bin Laden and/or the Taliban, taking into account, as appropriate, international codes and standards for combating the financing of terrorism, including those designed to prevent the abuse of nonprofit organizations and informal/alternative remittance systems; . Urges all States and encourages regional organizations, as appropriate, to establish internal reporting requirements and procedures on the trans-border movement of currency based on applicable thresholds; . Decides, in order to assist the Committee in the fulfilment of its mandate, to establish for a period of months a New York-based Analytical Support and Sanctions Monitoring Team (hereinafter referred to as “the Monitoring Team”) under the direction of the Committee with the responsibilities enumerated in the Annex to this resolution; . Requests the Secretary-General, upon adoption of this resolution and acting in close consultation with the Committee, to appoint, consistent with United Nations rules and procedures, no more than eight members, including a coordinator, of the Monitoring Team, who demonstrate one or more of the following areas of expertise related to activities of the Al-Qaida organization and/or the Taliban, including: counter-terrorism and related legislation; financing of terrorism and international financial transactions, including technical banking expertise; alternative remittance systems, charities, and use of couriers; border enforcement, including port security; arms embargoes and export controls; and drug trafficking; . Further requests the Monitoring Team to submit, in writing, three comprehensive, independent reports to the Committee, the first by July , the second by December , and the third by June , on implementation by States of the measures referred to in paragraph above, including concrete recommendations for improved implementation of the measures and possible new measures; . Requests the Secretary-General to provide cost-effective support, as needed by the Committee, in light of the increased workload entailed by this resolution; . Requests the Committee to consider, where and when appropriate, visits to selected countries by the Chairman and/or Committee members to enhance the full and effective implementation of the measures referred to in paragraph above, with a view to encouraging States to comply fully with this resolution and resolutions (), (), (), and (); . Further requests the Committee to follow up via oral and/or written communications with States regarding effective implementation of the sanctions measures and to provide
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States with an opportunity, at the Committee’s request, to send representatives to meet with the Committee for more in-depth discussion of relevant issues; . Requests the Committee, through its Chairman, to report orally at least every days to the Council in detail on the overall work of the Committee and the Team, including a summary of States’ progress in submitting the reports referred to in paragraph of resolution () and any follow-up communications with States regarding additional requests for information and assistance; . Further requests the Committee, based on its ongoing oversight of States’ implementation of the measures referred to in paragraph above, to prepare and then to circulate within months after the adoption of this resolution a written analytical assessment to the Council on implementation of the measures, including States’ successes and challenges in implementing them, with a view to recommending further measures for the Council’s consideration; . Requests all States, and encourages regional organizations, relevant United Nations bodies, and, as appropriate, other organizations and interested parties to cooperate fully with the Committee and the Monitoring Team, including supplying such information as may be sought by the Committee pursuant to this resolution and resolutions (), (), (), () and (), to the extent possible; . Reiterates the need for close coordination and concrete exchange of information between the Committee and the Committee established pursuant to resolution (the “Counter-Terrorism Committee”); . Reiterates to all States the importance of proposing to the Committee the names of members of the Al-Qaida organization and the Taliban or associated with Usama bin Laden and other individuals, groups, undertakings and entities associated with them for inclusion in the Committee’s list, unless to do so would compromise investigations or enforcement actions; . Calls upon all States, when submitting new names to the Committee’s list, to include identifying information and background information, to the greatest extent possible, that demonstrates the individual(s)’ and/or entity(ies)’ association with Usama bin Laden or with members of the Al-Qaida organization and/or the Taliban, in line with the Committee’s guidelines; . Strongly encourages all States to inform, to the extent possible, individuals and entities included in the Committee’s list of the measures imposed on them, and of the Committee’s guidelines and resolution (); . Requests the Secretariat to communicate to Member States the Committee’s list at least every three months to facilitate States’ implementation of the measures on entry and travel imposed by paragraph (b) of resolution (), and, further requests, that the Committee’s list, whenever amended, be automatically conveyed by the Secretariat to all States, regional and subregional organizations for inclusion, to the extent possible, of listed names in their respective electronic databases and relevant border enforcement and entry/exit tracking systems; . Reiterates the urgency for all States to comply with their existing obligations to implement the measures referred to in paragraph above and to ensure that their domestic legislative enactments or administrative measures, as appropriate, permit the immediate implementation of those measures with respect to their nationals and other individuals or entities located or operating in their territory, and with respect to funds, other financial assets and economic resources over which they have jurisdiction, and to inform the Committee of the adoption of such measures, and invites States to report the results of all related investigations and enforcement actions to the Committee, unless to do so would compromise the investigation or enforcement actions; . Requests that the Committee seek from States, as appropriate, status reports on the implementation of the measures referred to in paragraph above concerning listed individuals and entities, specifically with respect to the aggregate amounts of the listed individuals’ and entities’ frozen assets;
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. Requests all States that have not yet done so to submit to the Committee by March the updated reports called for under paragraph of resolution (), following as closely as possible the guidance document previously provided by the Committee; and further requests that all States that have not submitted these reports to explain in writing to the Committee by March their reasons for non-reporting; . Requests the Committee to circulate to the Council a list of those States that have not submitted by March reports pursuant to paragraph of resolution (), including an analytical summary of the reasons put forward by States for non-reporting; . Urges all States and encourages relevant international, regional and subregional organizations to become more directly involved in capacity-building efforts and to offer technical assistance in areas identified by the Committee, in consultation with the Counter-Terrorism Committee; . Decides to remain actively seized of the matter.
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Annex to resolution () In accordance with paragraph of this resolution, the Analytical Support and Sanctions Monitoring Team shall operate under the direction of the Committee established pursuant to resolution () and shall have the following responsibilities: • To collate, assess, monitor and report on and make recommendations regarding implementation of the measures; to pursue case studies, as appropriate; and to explore in depth any other relevant issues as directed by the Committee; • To submit a comprehensive programme of work to the Committee for its approval and review, as necessary, in which the Monitoring Team should detail the activities envisaged in order to fulfil its responsibilities, including proposed travel; • To analyse reports submitted pursuant to paragraph of resolution () and any subsequent written responses provided by States to the Committee; • To work closely and share information with Counter-Terrorism Committee experts to identify areas of convergence and to help facilitate concrete coordination between the two Committees; • To consult with States in advance of travel to selected States, based on its programme of work approved by the Committee; • To consult with States, including through engaging in regular dialogue with representatives in New York and in capitals, taking into account comments from States, especially regarding any issues that might be contained in the Monitoring Team’s reports referred to in paragraph of this resolution; • To report to the Committee, on a regular basis or when the Committee so requests, through oral and/or written briefings on the work of the Monitoring Team, including on its visits to States and its activities; • To assist the Committee in preparing its oral and written assessments to the Council, in particular the analytical summaries referred to in paragraphs and of this resolution; • Any other responsibility identified by the Committee.
Index ‘–’ ( September ), , –, –, –, , , , , , , Accountability, – Ackerman, Bruce, , Additional Protocols () to the Geneva Conventions (), Afghanistan, –, , , , Al-Jazeera, , Al-Qaeda, –, , , , , , , , –, America, - see United States of America Annan, Kofi (UN Secretary General), , , , , , , , , , , – Arab League, Arab Street, – Archbishop of Canterbury, , –, , Attorney-General (UK) –, Australia, Auto-interpretation, right of, Automaticity, – Axis of Evil, –, Ayatollah Mohammed Baqer al-Hakim, – Baath Party, Ballistic Missiles, Bankovic Case, – Barber, Benjamin, Berman, Paul, , , , , Blair, Tony, , –, –, , , –, , , – Blix, Hans, , , , – Boutros Boutros-Ghali, Bradley, John, Bremer III, Paul L, British Broadcasting Corporation, , – Brownlie, Ian, – Buchwald, Todd, , , , Bush, George W, see President George W Bush Byrd, Robert, Campbell, Alastair, , – Carlisle, Lord, Carnegie Endowment for International Peace, – Caroline Case, Charlesworth, Hilary, Chechnya,
China, , Chou En Lai, – Clash of Civilisations, , , – Coalition Provisional Administration, – Cold War, , , Commission on Human Security, Report of, Complexity, , –, Constitution, , – Corbin, Jane, – Counter-Terrorism Committee (UN), , Damrosch, Lori, Dearlove, Richard, Debts, Democracy, –, , , , , , , – Democratic Peace, Desert Fox, Donors, Donvan, John, Dossiers, UK, , , – East Timor, , Economic Aid, Economic Organisation, – Economic Reconstruction, – El Baradei, Dr, Elections, –, Empire, – End of History, , Enemy Detainees, – Europe, – European Convention on Human Rights, , – European Union, – Evidence, – Extradition, Falk, Richard, Fallows, James, – Foreign Affairs Committee (UK), , , –, , , , –, , – Foreign Policy, , France, , , , , –, , , –, Franck, Tom, , Frenchette, Louise,
INDEX
Gardner, Richard, General Treaty for the Renunciation of War (), Geneva Conventions, , , , , Germany, , , , , , Gilligan, Andrew, – Glass, Charles, , – Globalisation, Goldsmith, Lord, –, Gray, John, Guantanamo Bay (Cuba) – Gunaratna, Rohan, Hague Convention IV (), Hague Declarations (), Hague Regulations (), Hames, Tim, Hill, Christopher, Hobsbawm, Eric, Holy See, Howard, Michael, , Human Rights, , –, – Human Rights Committee, Humanitarian Intervention, , –, – Humanitarian Relief, – Humphrys, John, Huntingdon, Samuel, , , , –, Hutton Inquiry, –, Ignatieff, Michael, Intelligence Inquiries, , International Advisory and Monitoring Board, International Atomic Energy Authority , –, , –, International Committee of the Red Cross, , , International Court of Justice, , , International Covenant on Civil and Political Rights, , – International Criminal Court, , , , , , International Humanitarian Law, –, – International Inspectors, – International Lawyers, , , International Legal Order, , , , –, –, – International Security, – Interpretation of human rights law, – Interpretation of Security Council Resolutions, – Iran, , , – Iraq Baath Party, Constitution, , – Death Penalty, Debts, Economic Aid,
Economic Organisation, – Economic Reconstruction, – Electoral Mission, – Future, – Governing Council, – Human Rights in, –, –, – Humanitarian Relief, – Mass Graves, Natural Resources, Occupation, – Political Organisation, Post-War, – Property Rights, Prosecutions, – Refugees, Saddam Hussein, –, Sanctions, , , Security in, – Special Tribunal, – Survey Group, – United Nations, role in, – United Nations Assistance Mission, War in, –, –, – Women, in, – Islamic Fundamentalism, , , –, Israel, , , , , , –, , – Japan, –, Jenkins, Simon, Joint Intelligence Committee (UK) – Jones, Terry, Journalists, – Judgments of History, – Jurisdiction, – Just War, –, Kagan, Robert, – Kay, David, – Kelly, David, – Kissinger, Henry, , Koskenniemi, Martii, , Kosovo, –, –, , , , Krauthammer, Charles, Kurdistan, –, Kyoto Protocol, League of Nations, – Lebanon, Legality of Iraq War, –, , – Legitimacy, , , – Lemann, Nicholas, Lewis, Bernard, – Liberalism, , Liberia, Libya, – Lieven, Anatol, , Lord Hutton, see Hutton Inquiry Lowe, Vaughan, , , –,
INDEX Malaysia, – Mass Graves, Material Breach, –, , – McGeough, Paul, Media, –, , Megret, Frederic, Middle East, , , – Military Tribunals, – Milosevic, Slobodan, Moore, John Norton, Morality, – Motion, Andrew, Multilateralism, – Murphy, Sean, – Namibia Case, National Emergencies, –, – National Security Strategy (US), –, NATO, –, –, , Nicaragua v United States, No-Fly Zones, Non-Governmental Organisations, North Korea, , , –, Nuclear Non-Proliferation Treaty, Nuclear Weapons Case, – Nye, Joseph, , Occupation, – Oil, –, , Oil-for-Food, Operation Enduring Freedom, – Operation Iraqi Freedom, – Osama bin Laden, , , Oxman, Bernard, Padilla, Jose, Pakistan, , Palestinians, , , , –, , – Paris Club, Patriot Act, – Pfaff, William, Plurality of Legal Systems, – Portillo, Michael, Powell, Colin, –, , Pre-Emptive Self-Defence, – President Chirac, – President George W Bush, , , , , , , , –, , –, , , , , , Privatisation, Project for a New American Century, , Prosper, Pierre-Richard, Rampton, Sheldon, Refah Partisi Case, – Regime Change, , , – Regional Organisations, Reiff, David, , , Reisman, Michael, ,
Religion, , Resolution (), –, –, Revolutions, , Roberts, Adam, –, Robinson, Mary, , – Rodley, Nigel, Rogue States, Rumsfeld, Donald, Russian Federation, , , Saddam Hussein, , , Sanctions, , , , – Sapiro, Miriam, Saudi Arabia, Scruton, Roger, Secretary-General (UN), –, –, , , , , , , , –, , – Secular states, , Security Council Future of, – Monitoring Group of, – Resolutions, –, – Resolutions on Iraq (–) – Resolutions on Terrorism (–) – Responsibilities, , – US presentation to, – Self-Defence, –, , –, –, Sergio de Mello, – Sharia, Shia Muslims, , Sifaoui, Mohammed, Simpson, John, , , Slaughter, Anne Marie, – Smith, Steve, Special Tribunal (Iraqi), – State Responsibility, – Stauber, John, Steyn, Johan (Lord), Straw, Jack, –, –, –, Syria, , – Taft, William, , , , Talbott, Strobe, Terrorism Action by Regional Organisations, Anti-terrorist laws, – Attacks since , Counter-Terrorism Committee (UN), Definition of, Financing of, International Instruments, Security Council Resolutions on, – Strategies, – War on, –, – World Order and, – Tipping Points, , , – Truth Commissions, – Turkey, – Turning Points, , –
INDEX
United Kingdom, Attorney-General, –, Debate in, – Foreign Affairs Committee, , , –, , , , –, , – Foreign and Commonwealth Office Memorandum, , , , , , , , , Parliament, Prime Minister, , –, , , –, , , – White Paper, United Nations, Address by President GW Bush to, () Address by President GW Bush to, () Assistance Mission to Iraq, , – Attack on, – Electoral Mission, – Future of, General Assembly, , , High-Level Panel, Role in Iraq, – Sanctions, , , , – Secretary-General, see Secretary General (UN) Security Council – see Security Council Special Representative to Iraq, – UNMOVIC, –, , UNSCOM, , , – World Food Programme, United States of America Empire, New American, – Evidence to the Security Council, Exceptionalism, Global Responsibilities,
International Law, and, – Multilateralism, and, –, National Security Strategy, –, Neo-conservatives, , Pax Americana, , President George W Bush, , , , , , , , –, , –, , , , , , State of the Union, Supreme Court, Urry, John, , Vienna Convention on the Law of Treaties (), , – Villepin, Dominique de, , War of Ideas, – War on Iraq, see Iraq War on Terrorism, –, , – Weapons Inspections, – Mass Destruction, of, –, , , , , , , , –, –, – Wedgwood, Ruth, , , –, Wheatcroft, Geoffrey, Women, –, , Wood, Michael, World Order, – World Trade Centre, , Yoo, John, , Yugoslavia (Former) Zizek, Slavoj,
