IS THERE AN ALTERNATIVE TO A UNILATERAL WAR WITH IRAQ?
The Possibility Of Weapons Inspections As A Solution

By ANITA RAMASASTRY

Wednesday, Sep. 11, 2002

According to the Administration, there are only two choices: Topple Saddam, even if it must be done unilaterally, or risk the threat of total annihilation when Iraq unleashes its nuclear or biological weapons. But is there a third way - one that allows us to act in cooperation with the international community?

I believe there is: U.N. sponsored coercive inspections. It is this solution -- not a unilateral war - that President Bush ought to be endorsing when he speaks to the U.N. tomorrow.

Our long-term goal should be the creation of lasting multilateral frameworks for eradicating weapons of mass destruction (WMD). Unilateral action against Iraq now will only interfere with that paramount goal.

The White House has indicated that several other nations - including Iran, Syria and North Korea -may be manufacturing biological weapons. "Regime changes" for all of them would be impossible, so we cannot forget that whatever we do in Iraq unilaterally, we must forge a multilateral approach to WMD control across the globe.

The Beginning of Weapons Inspections in Iraq: Resolution 687

Since the early 1990s, at the end of the Gulf War, until four years ago, when inspections stopped despite sanctions, we have been engaged in a tenuous cat-and-mouse exchange with Iraq about weapons inspection.

The U.N.-sponsored weapons inspection program was implemented by U.N. Security Council Resolution 687. The Resolution imposed specific disarmament obligations on Iraq: Iraq accepted the "destruction, removal, or rendering harmless under international supervision" all if its WMD, and it was prohibited specifically from acquiring or developing nuclear weapons.

Resolution 687 also established U.N. mechanisms for achieving this mandate.

It directed the U.N. Secretary general to form a special commission, UNSCOM (United Nations Special Commission on Iraq), to carry out on-site inspections of Iraq's biological, chemical and nuclear weapons capabilities. In addition to UNSCOM, the International Atomic Energy Agency (IAEA) was also tasked with ongoing monitoring and verification of Iraq's compliance with the ban on nuclear weapons acquisition.

Iraqi Weapons Inspections in Practice: Implementing the Resolution

Over the period from the end of the Gulf War until 1998, UNSCOM and the IAEA Iraq Action team, had substantial success - although it took time to uncover data. (Iraq's labs were so carefully hidden that U.N. officials failed to discover them until 1995.) Thus, those who believe weapons inspections can never work should take note that, at least in the years after the Gulf War, to a large extent, they did.

UNSCOM destroyed hundreds of chemically armed warheads, and burned large volumes of mustard gas and nerve agents, as well as the precursor compounds used to make them. Furthermore, Iraq eventually acknowledged making three types of biological weapons using anthrax bacteria, and two kinds of biological toxins In its final three years in Iraq, UNSCOM destroyed all of Iraq's known biological weapons, and a great deal of the equipment needed to make new ones.

But the inspectors didn't get everything. Some so-called "dual use" industrial equipment - equipment that could be used to mass-produce viruses and bacteria but which also had other legal uses - was not destroyed. That was because UNSCOM had no evidence, but only suspicions, that these machines were being used to make weapons.

In late 1998, a U.S.-led bombing campaign against Iraq was initiated. It was intended to force Baghdad to comply with the demands of the inspections teams. Since then, Iraq has not permitted inspectors to return.

The 1998 Memorandum of Understanding and Resolution 1284

After that, the UN Secretary General and the Government of Iraq entered into a 1998 Memorandum of Understanding - later approved as Resolution 1154. This agreement established processes for independent experts and senior diplomats to accompany inspectors to sensitive sites. Commentators note that these procedures seriously weakened the inspection process.

Then, in December 1999, the Security Council adopted Resolution 1284, which created a new weapons inspection body, the U.N. Monitoring, Verification, and Inspection Commission (UNMOVIC). (Three members of the Security Council abstained - showing its conflict as to how best to deal with Iraq.)

Resolution 1284 noted that Iraq had made partial, but only partial, progress toward the implementation of the disarmament provisions of Resolution 687. It also changed the UN's stance on lifting sanctions, expressing the Security Council's "intention" to suspend sanctions for 120 days if the Chairman of UNMOVIC and IAEA reported that Iraq has cooperated in "all respects." The Security Consul would then have to vote every 120 days on whether to continue the suspension on sanctions.

As I mentioned above, Iraq is far from the only nation whose WMD we consider potentially threatening. Like it or not, we need to adopt a multilateral strategy to deal with WMD - and it inevitably, again whether we like it or not, will have to involve inspections. Surveillance simply won't work. Biological weapons cannot be spotted from satellite photos. Germs and microbes are much harder to detect than missile silos. Construction, while ominous, can also be ambiguous.

In short, we need to develop, and to develop fast, international standards and procedures for weapons inspections. There is simply no alternative. One way to start would be to outline a new, tougher inspection regime, and demand that Iraq accept it or face U.N. sponsored military intervention.

If the U.N. intervenes in Iraq, it will then be acting in defense of international law - and, by definition, with multilateral support. In contrast, the U.S. attack - touted as pre-emptive - will violate international law, which prohibits attacking another sovereign without clear provocation.

Coercive Inspections to Uncover WMD: The Carnegie Report

Fortunately, many new inspection proposals have been floated by critics of the Administration. Some have suggested having routine, short notice or unannounced inspections. Others have proposed, in addition, defining the refusal to permit inspections as a threat to international security that permits military intervention by an international coalition, pursuant to the U.N. Charter.

In an August report, the Carnegie Endowment for International Peace has called for "coercive" inspections: a "comply or else" process that would be conducted by the U.N., and implemented by a powerful international military force, created by the Security Council, that would back up UNMOVIC and IAEA in their inspections.

Under the Carnegie proposal, the Security Council could approve a resolution authorizing multinational enforcement action to enable UNMOVIC to carry out its mandate - and to later authorize the use of force if necessary. The U.S. would need to forego unilateral military action both while the international inspection regime is moving forward, and later. (Among other advantages, this would avoid setting a dangerous precedent of a unilateral right to attack in the name of preemptive self-defense.)

There would have to be "redlines" - defined by Carnegie Expert David Albright as "a clear definition of when Iraq is not complying with its obligations under UN Security Council resolutions " Once these redlines were crossed, members of the Security Council would be authorized to act.

In addition to the fact of noncompliance, the redlines would take into account the threat posed by the noncompliant nation. Factors relevant to assessing that threat (taken from similar national security tests) could include: (1) the kinds of WMD possessed by the non-compliant nation and their capabilities; (2) an assessment of the state of readiness and training of the rogue nation's forces; and (3) an assessment of the capacity of the U.N. forces to successfully intervene.

In November 1997, President Clinton remarked that sanctions would remain in place as long as Hussein remained in power - but that stance, which seems to be shared by the Bush Administration, gives Iraq little incentive to permit inspections. Coercive inspections should be coupled with sanction-linked incentives to break the impasse.

Is the Dual Use Technology Problem Insoluble? The Answer Is No.

But - one might ask - what about the many types of machines and facilities, such as factories and hospital labs, that are "dual use"? Won't inspections always be futile if the very site that is being used for one purpose by day might be turned into a covert chemical weapons facility by night?

The answer is no. Unannounced inspections that could occur any time could address the conversion/dual use problem. And even when inspections are not occurring, it is possible - as one commentator has noted - to install certain monitoring devices or sensors on equipment, so that they record the user and the use of the device. Failure to install such devices could be deemed a violation of a specific treaty or international law.

Why We Need Monitoring Under the Biological Weapons Convention, Too

There is yet another reason to work on this issue, and work on it now: If we fail to develop effective monitoring standards, our failure may further weaken or destabilize already precarious efforts with respect to the Biological Weapons Convention (BWC)

The BWC, which bans the development, production, stockpiling, and transfer of biological and toxin weapons, came into force in 1975. But it has been crippled since then by its lack of formal procedures for monitoring signatories' compliance with the treaty.

In July 2001, after more than six years of effort to negotiate a legally binding inspection protocol for the BWC, talks collapsed when the U. S. rejected the draft protocol and walked away from table. In November 2001, the U.S. proposed an alternative, which would rely primarily on domestic legislation and enforcement rather than multilateral solutions.

Now more than ever - especially with the recent (though perhaps domestic) lethal anthrax attack on the U.S. showing that such attacks can be lethal - BWC monitoring procedures are necessary. The BWC review conference is scheduled to reconvene in November 2002. At this juncture, it would be wise for the U.S. to support legally binding multilateral provisions.

How the BWC Monitoring System Should Change

One component of the U.S.'s proposed BWC package, and one of the few to address BWC compliance directly, is a proposal for conducting field investigations of the alleged use of biological weapons. The U.S. proposes to adapt an existing but little-known procedure whereby the U.N. Secretary General can initiate investigations of alleged violations of the BWC, Geneva Protocol (which bans the use of chemical and biological weapons in war), or "customary international law."

This kind of investigation has already occurred several times, and is part of the current system. Between April 1981 and July 1992, the Secretary General dispatched expert groups to investigate four instances of alleged chemical or toxin weapons use: by the Soviet Union and its allies in Southeast Asia and Afghanistan; by Iraq during the Iran-Iraq War; by the Mozambican National Resistance in Mozambique; and by Armenian forces in Azerbaijan. The accused country, however, was in each instance under no formal obligation to cooperate with the investigators.

Accordingly, the United States proposes to strengthen and broad the existing UN procedure. It suggests authorizing the Secretary General's investigation of suspicious outbreaks of disease, and urging BWC member states to accept investigations without a right of refusal.

Commentators have pointed out that even this may not be enough: What may be needed, in addition, is a legally binding agreement requiring member states to accept field investigations initiated by the U.N. and to cooperate with the investigators.

Finally, a more ambitious proposal would be for the Secretary General to have the authority to investigate facilities suspected of developing, producing, and testing WMD.

More than Iraq is at Stake If We Decide To Give Up On Inspections

After September 11, the United States formed a coalition to fight terrorism - asked for, and largely receiving, the cooperation of the European Union, the U. N. and of other regional powers such as Indian and Pakistan. This coalition building took months and involved multiple partnerships.

In contrast, this time around, the U.S. seems prepared to act unilaterally (or with the aid of Britain alone) rather than forging partnerships. Allies who have advised against invasion are apparently being ignored.

The problem of Iraq's compliance with the UN inspection procedures is not an isolated problem - as the lack of an effective BWC enforcement and monitoring agreement shows. Rather, the issues of how and when investigators will be allowed unfettered access to another nation's territory for inspections are issues with which all nation-states must deal.

The stakes are high but we need to remain persistent in our efforts. Abandoning the Iraq inspections regime signals a radical departure from current international efforts, and a potentially destructive one.


Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology. She has frequently written for this site on the war on terrorism, including pertinent legislation; her work can be found in the archive of her columns on this site.

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