Weapons of Mass Destruction in Iraq: The �Final Word" on Efforts to Eliminate 's Biological, Chemical, and Nuclear Weapons Threat

Rex J. Zedalis*

I. Introduction

It is quite possible that the full story about weapons of mass destruction (here- inafter WMD) in Saddam Hussein's Iraq may never be known.' Certainly, it would be difficult to deny that the several months leading up to the June 28, 2004, hand- over of power to Iraq's transitional government2 provided various insights casting doubt on the pre- II claims and implications regarding the nature and magnitude of Saddam's WMD capability.3 While many of those insights will be discussed in the pages that follow, the principal objective of this paper is to focus on the specific matter of the status of the UN's weapons inspection process in Iraq,4 especially given the U.S.-led coalition's removal of Saddam and its

* Professor of Law and Director, Comparative and International Law Center, University of Tulsa; W.B. Cutting Fellow in International Law (1980-81) and J.S.D. (1987) I The objectivity provided by the passage of time may offer some degree of clarity with regard to the whole question of Iraq's weapons capability. In the near term, however, a term which could prove rather lengthy given the fervor associated with the various perspectives on the "war on terrorism," it would seem both sides of the debate about WMD in Iraq would prefer the argumen- tative advantages offered by ambiguity and inconclusiveness. 2 The hand-over was originally scheduled for June 30th. For a variety of reasons, some of which possibly having to do with efforts to frustrate terrorist attacks planned to coincide with the transition, power was transferred a couple of days early. See Betsy Pisik, U.S. Hands Over Power in Iraq, Washington Times (June 29, 2004), available at http://www.washtimes.com/world/20040629-121607- 1265r.htm (accessed July 1, 2004). 3 See infra, Sec. V-IX. 4 On the original actions associated with the weapons inspection process, see Security Council Resolution 687, adopted 2 Apr. 1991, UN Doc. S/RES/687 (1991); Plan for the Implementation of Relevant Parts on Section C of Security Council Resolution 687 (1991); Report of the Secretary- General, para. 5, UN Doc. S/22614, 17 May 1991; Plan for Future Ongoing Monitoring and consequent military occupation of territory formerly under the control of his Baath party.5 Clearly, it was earlier hoped that the November 2002 adoption of Security Council Resolution 1441,6 providing Iraq with one last chance to submit to an enhanced weapons inspection regime' under the administration of UNMOVIC (UN monitoring, verification, and inspection commission), would successfully avert a forceful confrontation with Saddam. Though the period immediately following demonstrated that that approach's hope was misplaced, the still controversial military action that eventuated presents the question of the current status of the entire UN weapons inspection process. To this very day, the hunt for WMD continues, albeit under the auspices of the U.S.-led ,8 now headed by Charles Duelfer, deputy chief weapons inspector for UNMOVIC's predecessor, UNSCOM (UN special commission), from 1993 to 1998.9 At the same

Verification of Iraq's Compliance with Relevant Parts of Section C of Security Council Resolution 687 (1991); Report of the Secretary-General, para. 3, UN Doc. S/2287 I /Rev. 2 Oct. 1991. On earlier analyses of weapons inspection legal issues, see Rex J. Zedalis, Developments Regarding the Weapons Inspection Regime in Iraq, 8 International Peacekeeping: Yb. Of International Peace Operations 171 (2002); 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'I L. 297; Dealing with the Weapons Inspections Crisis in Iraq, 59 Zeitschrift fur aus- landisches offentliches Recht und Volkerrecht 37 (1999); An Analysis of Some of the Principal Legal Questions Relating to the U.N. Weapons Inspections in Iraq, 67 Nordic J. Int'l L. 249 (1998). 5 Saddam's defeat and capture are discussed in Gregg Zoroya � David J. Lynch, U.S. General: "We Have Defeated Saddam Militarily", USA Today (Apr. 29, 2003), available at http://www.usato- day.com/news/world/iraq/2003-04-09-defeated-x.htm (accessed July l, 2004); Assoc. Press, Saddam Hussein Captured, Guardian Unlimited (Dec. 14, 2003), available at http://www. guardian.co.uk/ Iraq/Story/0,2763,1106951,OO.html (accessed July 1, 2004). 6 The resolution was adopted November 8, 2002, and was reported in Texr of U.N. Resolution on Iraq, CNN.com, Nov. 8, 2002, available at http://www.cnn.com/2002/US/! 1/08/resolution.text/index.html (accessed Nov. 8, 2002). Regarding the adoption of the resolution, see K. DeYoung and C. Lynch, U.S., France Agree on Iraq: Resolution Vote May Come Today, Wash. Post, Nov. 8, 2002, at A01, available at http://www.washingtonpost.com/wp-dyn/articles/A25656-2002Nov7.html (accessed Nov. 8, 2002). 7 For the operative paragraph from Resolution 1441, see Text of U.N. Resolution, id. at para. 2. 8 The Iraq Survey Group was originally established in May of 2003 to centralize weapons search activities of U.S.-led coalition forces; it was first under the leadership of Maj. Gen. Keith Dayton. See Jim Garamore, Iraq Survey Group to Take Over Hunt for Iraqi Weapons, Am. Forces Info. Service (May 30, 2003), available at http://www.dod.gov/news/May2003/n05302003-200305305.htm (accessed July 2, 2004). In June of 2003 it was placed under the leadership of Daivd Kay, former U.N. weapons inspector. See Text: CIA Taps David Kay to Advise in Search for Iraq's WMD, U.S. Embassy Japan (June 13, 2003), available at http://japan.usaembassy.gov/e/p/tp-20030613b4.html (accessed July 2, 2004). 9 Duelfer replaced David Kay when the latter stepped down in January of 2004. See David Kay Stepping Down as Head of Iraq Weapons Inspection Team, U.S. Embassy Japan (Jan. 23, 2004), available at http://japan.usaembassy.gov/e/p/tp-20040127-04.html (accessed July 2, 2004). For a news story on the activities of the Iraq Survey Group during mid-Summer 2004, see Terrorists Seek