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November 23, 1998

by Douglas Scott

As this paper is being written (20 November), the UN inspectors have recently returned to Iraq after the US called off its air strikes on 15 November. The world is waiting to see what will be the next development in this ongoing saga.

Although predictions are always dangerous, it seems likely that by the time this item appears in print, there will be negotiations underway aimed at arriving at another temporary settlement. Furthermore, it seems likely that the negotiations will be dealing with the following topics:

Certain elements of the media appear to be in some confusion as to the exact status of the inspections under the OMV regime. A few words in an attempt to clarify this topic would appear to be in order. A description of the origins of OMV is to be found in Compliance Matters, published in the June issue of the Bulletin of the Canadian Council on International Law. It is only necessary now to touch on some of the essential points.

The OMV regime consists primarily of a set of detailed procedures for inspection and monitoring. It was conceived to deal with the situation after the completion of the disarmament phase for the purpose of verifying compliance with Iraq's undertaking not to revive any of its former weapons programs and never to acquire any of the prohibited weapons. The inspection procedures were laid down by the Security Council in a series of instruments, which are referred to herein as the OMV instruments, to which Iraq signified its assent in November 1993. Although the arrangement is targeted especially on the situation after Iraq's prohibited weapons have been destroyed, removed or rendered harmless, nevertheless, the OMV instruments stipulated that the inspection procedures listed in the instruments were to come into effect immediately without waiting for the completion of the disarmament phase. Accordingly, the OMV inspection and monitoring procedures have been in operation since about December, 1993, shortly after the date upon which Iraq signified its assent to the OMV instruments. These instruments provide that the regime is to continue indefinitely - to be terminated if and when the Security Council so decides.

The actual inspection procedures detailed under the OMV instruments are closely similar to those laid down in the instruments that governed inspections prior to November, 1993. Despite the similarity, however, there are two important differences. The OMV instruments contained a new requirement that Iraq enact penal legislation to prohibit ". . . natural and legal persons . . . from undertaking . . . any activity that is prohibited for Iraq by Resolution 687 . . ." A brief discussion of this important requirement is to be found in Compliance Matters, where it is noted that Iraq has failed to enact this legislation despite promises that go back several years; Iraq's hesitation on this point is probably significant.

The other difference that distinguishes the OMV regime from its predecessor relates to inspection targets. The OMV instruments, in addition to specifying detailed procedures for inspection and monitoring, made it clear that the targets of the inspection were to be expanded. Prior to the beginning of OMV, the targets were facilities where prohibited weapons were stored or where activities were occurring that directly related to prohibited weapons. With the coming of OMV, the inspection and monitoring was expanded to include capable civilian facilities - namely facilities that are dual-capable in the sense of being capable of contributing to the production of prohibited weapons as well as having innocent civilian uses. Two examples of civilian capable facilities are given in an October report by UNSCOM: facilities where quantities of sulphur are located (because sulphur has many civilian uses as well as being an ingredient for chemical weapons) and facilities containing crop sprayers (which can be used for disseminating biological weapons). After December 1993, facilities of this nature began to be inspected along with "entire categories of sites and industries not previously inspected by UNSCOM."

Thus, the two most important new features of the OMV regime involve legislation to be enacted by Iraq and additional inspection targets. Recently, Iraq has begun to behave as if it wished to see another new feature added to the regime - one that also relates to inspection targets - namely a restriction on inspections of undeclared sites. Before Iraq began blocking inspections (which it did in two steps, one on 5 August and the other on 31 October), it had already started preventing inspectors from making visits to undeclared sites. The inspectors were claiming that they had the right to visit any site about which they had suspicions as to its involvement with prohibited weapons. Iraq claimed that no such right existed and that such visits were unnecessary and unreasonable.

As of this writing, the fight over inspection targets is in abeyance, but it can be expected to revive in the event that there are negotiations relating to what is permitted under OMV. In that event, it seems likely that there will be negotiations dealing with the following points:

The issue of search inspections will possibly come up in another context. In the summer of 1998, Iraq began focussing on nuclear weapons; it was insisting that the time had arrived to "close the book" on that category and to make the transition from disarmament phase inspections to OMV inspections. It was saying that the disarmament phase was virtually complete and that any remaining concerns could be dealt with through inspections under OMV. In pressing these demands, Iraq seemed to be assuming that, under the OMV regime, there will be no inspection of undeclared sites. Iraq was obviously unhappy with the thought that search inspections would be continuing indefinitely and that the inspectors would be insisting on visiting any place they considered to be suspicious. It seems that the reason Iraq wanted the book closed was that it was assuming that that move would eliminate the element of searches.

But Iraq appears to have been misguided in thinking that there will be no search inspections under OMV. Although there are no specific provisions in the OMV instruments permitting inspections of undeclared sites, such inspections would appear to be permitted by the general wording that is found in several places in the instruments:

Iraq will therefore find it difficult to justify its demands for a curtailment of search inspections on the basis of anything contained in the OMV instruments. Nor is there anything in these instruments or any other relevant instrument indicating that at some point it will be possible to close the book or to do anything else that would result in any curtailment of inspection or monitoring. These propositions are reflected in several statements issued by UNSCOM and IAEA prior to 31 October 1998, when they asserted the right to conduct inspections of undeclared sites under the OMV regime.

Notwithstanding the absence of any justification in the OMV instruments for curtailing search inspections, Iraq can be expected to argue that the very notion that such inspections should continue indefinitely is unreasonable. The Security Council should be prepared to respond to this line of argument.

Most of the emphasis recently has been on sanctions. In the weeks following 31 October when Iraq decided to block most of the inspections, never a day went by without more clamouring about the sanctions. All during that time, Iraq was insisting on a move being made toward lifting the sanctions as the price of letting the inspectors back in. The UN stood firm and refused to consider any relaxation of the sanctions until Iraq fulfilled its obligations.

But despite all the emphasis on sanctions, it should not be forgotten that, immediately before it started blocking the inspections, Iraq was complaining about the inspection of undeclared sites. It can be concluded that Iraq had a second agenda in its recent confrontation. There can be little doubt that Iraq was looking ahead to the time when the sanctions have been lifted, and that it was trying to ensure that there is an understanding as soon as possible relating to the expiry of OMV and search inspections.

Accordingly, in the event that the anticipated negotiations occur, Iraq can be expected to argue strongly that there should be a termination date for OMV and that there should be an immediate curtailment of search inspections. But the Security Council should not waver on this point. Both UNSCOM and IAEA have made it clear that, given Iraq's continuing policy of concealment, the right to search undeclared sites is vital. Iraq has made it quite obvious that it is determined to keep as much as possible of its prohibited weapons programs. Until there is a sea change in its policy in this regard, the Security Council should refuse to budge on the matter of search inspections.

Such a policy change would be easy to discern. Iraq would suddenly start showing the inspectors everything they ask for and would willingly invite the inspectors to visit any place whatever. Iraq would recognize the concerns of the international community about its bellicosity and would be doing everything possible to reassure it that those days were over and done with. Until this sea change occurs, the Security Council should refuse to put a date on the termination of the OMV system and should keep the search inspections intact.