Developments Regarding the United Nations Weapons Inspection Regime In Iraq

Rex J. Zedalis'

1. Introduction

As this review was being written, the international community was in the midst of deciding how best to properly respond to Saddam Hussein's continued interest in perfecting a biological, chemical, and nuclear weapons (WMD) capability,1 and his refusal since 1998 to permit unfettered access by international inspectors to suspected WMD research, manufacturing, or storage sites within Iraqi territory.2 Widely dis-

* Professor of Law and Director, Comparative and International Law Center, University of Tulsa; Cutting Fellow in International Law (1980-1981) and J.S.D. (1987), Columbia University. For other articles by the author on weapons inspections and associated Iraqi matters, see R.J. Zedalis, "The Quiet, Continuing Air War Against Iraq: An Interpretive Analysis of The Controlling Security Council Resolutions", (2000) 55 Zeitschrift fur Offentliches Recht 181; "Untying the Gordian Knot: Evaluating the Legal Dimensions of the U.N. Weapons Inspection Programme in Iraq and Rethinking the Future", (1999) Leiden J. Int'l L. 297; "Dealing with the Weapons Inspections Crisis in Iraq", (1999) 59 Zeitschrift for ausliindisches dffentliches Recht und Volkerrecht 37; "An Analysis of Some of the Principal Legal Questions Relating to the U.N. Weapons Inspections in Iraq", (1998) 67 Nordic J. Int'l L. 249; "Gulf War Compensation Standard: Concerns Under the Charter", (1993/2) Revue Beige de Droit International 333; "Burning of the Kuwaiti Oilfields and The Law of War", (1991) 24 Vanderbilt J. Int'l L. 711; "Military Necessity and Iraqi Destruction of Kuwaiti Oil", (1991/2) Revue Beige de Droit International 333. For a general review of the then current situation see J. Borger, "Inaction is not an option", The Guardian, March. 12, 2002, available at www.guardian.co.uk/lraq/Story/ 0,2763,665987,00.html (accessed Aug. 1, 2002); E. MacAskill, "UN and Iraq fail in weapons talks", The Guardian, July 6, 2002, available at www.guardian.co.uk/lraq/Story/ 0,2763,750486,00.htrnl (accessed Aug. 1, 2002). J. Borger, "Iraq "close to nuclear bomb goal", The Guardian, Aug. 1, 2002, available at www. guardian.co.ukllraq/Story/ 0,2763,767235,00.htrnl (accessed Aug. 10, 2002); D. Albright, "Does Iraq have a nuclear weapon?", The Guardian, Aug. 6, 2002, available at www.guardian.co.ukllraq/Story/ 0,2763,769816,00.htrnl; J. Preston, "U.N. Spy Photos Show New Building at Iraqi Nuclear Sites", The New York Times, Sept. 6, 2002, at AlO, col. 2. 2 Inspectors left Iraq December 16, 1998. See www.un.org/Depts/unscom/Chronology/chrono-logy .htm (accessed Aug. 10, 2002).

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Harvey Lang/wltz, Boris Kondoch, Alan Wells (Eds.), Intemational Peacekeeping: The Yearbook of /ntemational Peace Operations, Volume 8, 2002, p. 171-2/2. © Koninklijke Brill N. V. Printed in the Netherlands. 172 Rex J. Zedalis seminated reports in the print and electronic media certainly suggested that some members of the Bush Administration were arguing for the use of force, even unilateral if need be, in order to effect "regime change" in Baghdad.3 Others, within the Administration,4 as well as some associated with former US administrations,5 and the preponderance of countries within the international community,6 were arguing for much more circumscribed and less ambitious alternatives. Surely, one with a significantly clearer crystal ball, and far more prescience than the author, would have been needed in order to proffer at that time a prediction approximating the ultimate resolution of those arguments. Setting aside uncertainty regarding the ultimate resolution, however, a variety of reasons existed in the late Summer and early Fall of 2002 to suggest it would not have been at all unreasonable to have expected a resolution resulting in the restoration of weapons inspections. To be sure, Saddam Hussein, an unpredictable and ruthless leader bent on the acquisition of extremely dangerous weapons capable of being transferred to al-Qaeda, and its fellow-travelers in the international terrorist network, remained in power in Iraq? And, for fear of creating an image of one lacking the stomach to see difficult decisions through to the end, an understandable hesitancy existed in the US to back-pedal on the use of force after "talking tough" on that matter. 8 Nonetheless, the Bush Administration had much earlier designated

3 SeeR. Mikkelson, "Iraq Threat Requires "Decisive Response-Cheney", Reuters, June 6, 2002, available at www .bayarea.cornlmld/bayarea/34 I 5879 .htrn (accessed Aug. 10, 2002); T.E. Ricks, "Timing, Tactics on Iraq War Disputed-Top Bush Officials Criticize Generals' Conventional Views", Wash. Post (Aug. 1, 2002) at AI, col. 1. 4 On the fact that Secretary of State, Colin Powell, though fully supportive of the President's authority to act, appeared more cautious and measured in his approach, see T.S. Purdum, "Bush Officials Say the Time has Come for Action on Iraq", The New York Times, Sept. 9, 2002, at AI, col. 6. 5 See B. Scowcroft, "Don't Attack Saddam", Wall Street J., Aug. 15, 2002, at Al2 (op-ed by National Security Advisor to former President George H.W. Bush); R. Holbrooke, "Take It to the Security Council", Wash. Post, Aug. 27, 2002, at Al5; J.A. Baker III, "The U.N. Route", Wash. Post, Sept. 15, 2002, at B7 (op-ed by Secretary of State to former President Bush). 6 See e.g., P. Beaumont and P. Beavor, "Bush rallies US for strike on Iraq", The Guardian, July 21, 2002, available at www.guardian.co.uk/lraq/Story/0,2763,759348,00.html (accessed Aug. 10, 2002); J. Perlez, "Arabs, by Degrees, Oppose American Attack on Iraq", The New York Times, Sept. 6, 2002, at AlO, col. 1; "French Leader Offers America Both Friendship and Criticism", (excerpts of interview with Jacques Chirac), The New York Times, Sept. 9, 2002, at A9; J. Preston, "Many at U.N. Seek Evidence for US Case Against Iraq", ibid. at A7; "German starts fence-mending", The Philadelphia Inquirer, Sept. 24, 2002, available at www.philly.com/mld/inquirer/4137221.htrn (accessed Sept. 24, 2002). 7 On September 25, 2002, National Security Advisor, Condolezza Rice indicated that senior level detainees from the Afghanistan conflict being held at the US Guantanemo, Cuba detention facility indicated that Iraq had provided to al-Qaeda some measure of training in the use of chemical weapons. 8 See remarks to this effect made by former Secretary of Defense, Secretary of Energy, and Director, Central Intelligence Agency, James Schlesinger, in his September 25, 2002, testimony before the US Senate Armed Services Committee, when responding to questioning by Senator Max Cleland (D.-Ga.), Senate Armed Services Committee Hearing, Sept. 25, 2002, available through Federal Document