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Preemption, Iraq, and International Law Author(s): William H. Taft IV and Todd F. Buchwald Source:

Preemption, Iraq, and International Law Author(s): William H. Taft IV and Todd F. Buchwald Source: The American Journal of International Law, Vol. 97, No. 3 (Jul., 2003), pp. 557-563 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/3109840

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2003]2003]

AGORA:FUTURE IMPLICATIONSOF THE

AGORA:FUTURE IMPLICATIONSOF THE

IRAQ CONFLICT

CONFLICT

IRAQ

557557

Charter's norms and reform of its systemic features. A first reason that she finds it prema-

prema-

Charter's

ture to pronounce the death of Charter lawis that the legal case for the use of force against

against

Iraq is

Iraq

ture to

norms and reform of its

systemic

features. A first reason that she finds it

legal

case for the use of force

1441,

1441, Security Council

Security

pronounce

the death of Charter lawis that the

critics acknowledge: in

acknowledge:

is much closer than the critics

much

closer

than

the

Resolution

in Resolution

Council mem-

mem-

bers

bers left

left

open

open

the

the

possibility

possibility

of

of

military action

military

action without a

resolution,

without a subsequent authorizing resolution,

subsequent authorizing

or at least agreed to disagree on this point. Second, the core of the Charter remains viable,

ofjustifica-

ofjustifica-

because

viable,

or at least

agreed

to

disagree

on this

point.

Second,

the core of the Charter remains

place

a

heavy

because all states and their informed

all states and their informed

publics continue

publics

continue to

burden

to place a heavy burden

tion in terms of the Charteron those who use or propose to use force. Third, the Charter sys-

tion in

sys-

tem is flexible enough to evolve to meet changing conditions. Stromseth then turns to con-

tem is flexible enough to evolve to meet changing

terms

of the Charteron those who use or

propose

to use force.

Third,

the Charter

conditions. Stromseth then turns to con-

crete

crete proposals for addressing the daunting challenges of the present and future, including

terrorismand

terrorismand weapons of massdestruction. In place of the Bush administration's open-ended

including

open-ended

preemption

preemption

for U.S. initiatives, in the firstinstance through regional self-defense

for U.S.

makes specific proposals for revitalizing the Security Council to improve its capabilities to

makes

support

doctrine, Stromseth recommends intensified efforts to enlist collective support

proposals

for

addressing

the

daunting challenges

place

of the

present

and

future,

weapons

doctrine,

of massdestruction. In

revitalizing

of the Bush administration's

Stromseth recommends intensified efforts to enlist collective

through regional

self-defense

the

Security

Council to

improve

its

initiatives,

in the firstinstance

for

She also

organizations.

organizations. She also

specific proposals

capabilities

to

meet

meet threats to peace and security.

security.

threats to

peace

and

in

We encourage our readers to carry on this debate in classrooms of international law, in

We

encourage

our readers to

carry

on this debate in classrooms of international

law,

the press, in their communities, and in communications with their elected representatives

representatives

and other

the

and other public officials.

press,

in their

public

communities,

officials.

and in communications with their elected

LORIFISLERDAMROSCH AND BERNARD H.

LORIFISLERDAMROSCH

AND BERNARD H. OXMAN"

OXMAN"

AND INTERNATIONALLAW

PREEMPTION,IRAQ, AND INTERNATIONALLAW

PREEMPTION,IRAQ,

Preemption comes in many forms and what we think of it depends on the circumstances.

an

One state may not strike another merely because the second might someday develop an

One state

on the circumstances.

Preemption comes in many forms and what we think of it depends

may

not strike another

merely

because the second

might someday develop

ability and desire to attack it. Yet few would criticize a strike in the midst of an ongoing

ability

ongoing

and desire to attack it. Yet few would criticize a strike in the midst of an

war

war

against a second

against

a second state's

develop

state's program to develop

program

to

ples lie countless fact patterns.

patterns.

ples

lie countless fact

of

new types of weapons.

weapons.

new

types

Between these two exam-

Between these two exam-

In the end, each use of force must find legitimacy in the facts and circumstances that the

legitimacy

but

but

must not use preemption as a pre-

pre-

In the end, each use of force must find

in the facts and circumstances that the

be judged

judged

not

not on abstract

on

abstract concepts,

concepts,

preemption

as a

state believes

state believes have made it

have made

it necessary. Each should

necessary.

Each should be

on on the

the particular events that gave rise to it. While nations

particular

events that

gave

rise to it. While nations must not use

in the abstract is a mistake. The use of

text for aggression, to be for or against preemption in the abstract is a mistake. The use of

text for

aggression,

to be for or

against preemption

force

force

preemptively

preemptively is sometimes

lawful and sometimes

is sometimes lawful and sometimes

not.1

not.1

Operation Iraqi Freedom has been criticizedasunlawfulbecause it constitutes preemption.

Operation Iraqi

preemption.

Freedom has been

criticizedasunlawfulbecause it constitutes

criticism is unfounded.

This criticism is unfounded.

This

OperationIraqi Freedomwasand

OperationIraqi Freedomwasand

is lawful.An otherwiselawfuluse

is lawful.An otherwiselawfuluse

of force does not become unlawfulbecause it can be characterizedas preemption. Operation

of force

context

preemption. Operation

does not become unlawfulbecause it can be characterizedas

wasconducted

in

specific

specific

the

context that frames the

that

frames

aggression by Iraqagainst

its

Iraqi Freedom

Iraqi

a

Freedom wasconducted in a

way

way it

it should be

should be analyzed.

analyzed.

This This context included the naked

its efforts to obtain

context included the naked aggression by Iraqagainst its neighbors, its efforts to obtain

neighbors,

*

* Editors

Editors in Chief.

in Chief.

The legal basis for the doctrine of preemption is set out in President Bush's National SecurityStrategy:

SecurityStrategy:

The

legal

basis for the doctrine of

preemption

is set out in President Bush's National

For

For centuries,

centuries, international

international

law

law recognized

recognized

that nations need not suffer an attackbefore they can lawfully

that nations need

lawfully

not suffer an attackbefore

they

can

Legal

scholars

take action to defend

take action to defend themselves against forces that present an imminent danger of attack. Legal scholars

and

and international jurists often conditioned

threat-most

threat-most

themselves

often

against

forces that

the

present

an imminent

of

preemption

and air forces

danger

of attack.

international

jurists

conditioned

of

of an imminent

the legitimacy of preemption on the evidence of an imminent

on

legitimacy

the evidence

to attack.

often a visible mobilization of armies, navies, and air forces preparing to attack.

often

a visible mobilization

armies, navies,

preparing

THE NATIONAL SECURITYSTRATEGYOFTHE UNITED STATESOFAMERICA 15

THE NATIONAL SECURITYSTRATEGYOFTHE

UNITED STATESOFAMERICA 15 (Sept (Sept

preemption

and

isinherent in the

objectives

of

right

capabilities

today's

require Security

to

ignore

17, 2002),

17, 2002),

available at

available at <http://www.

<http://www.

whitehouse.gov/nsc/nss.pdf>.

to adapt the concept of imminence to the capabilities and objectives of today's adversaries.The use of force preemp-

tively in self-defense is the right of each state and does not require Security Council action. In calculating whether

tively

the test of imminence has been met, it would be irresponsible to ignore that these adversaries "rely on acts of terror

and,

destruction-weapons

and, potentially, the use of weapons of mass destruction-weapons

States

could

in Article51 of the United Nations

to

whitehouse.gov/nsc/nss.pdf>.

the need

The notion of

The notion of preemption isinherent in the right ofself-defense, recognizing the need

recognizing

adversaries.The use of force

ofself-defense,

adapt

the

concept

of imminence to the

right

in self-defense is the

of each state and does not

met,

it would be

of mass

Council action. In

preemp-

whether

calculating

the test of imminence

potentially,

has been

irresponsible

that these adversaries

"rely on

easilyconcealed, delivered covertly, and

clear that the United States

easilyconcealed, delivered covertly, and

acts of terror

the use of

weapons

that can be

that can be

usedwithout warning." Id.

could alwaysproceed in

149

Charter. See Report in Connection with Presidential Determination Under Public Law 107-243, reprinted in 149

H1958

CONG. REC.H1957, H1958

Charter. See

usedwithout warning." Id.

added).

(emphasis added).

(emphasis

In the case of

In the case of

Iraq, President Bush made

Iraq,

President Bush made clear that the United

alwaysproceed

Report

REC.H1957,

in the exercise of its inherent right of self-defense recognized

the exercise of its inherent right

in Connection

with Presidential Determination

Under

(daily ed. Mar. 19, 2003)

19, 2003)

(daily

ed. Mar.

resolution

of self-defense recognized in Article51 of the United Nations

Public Law 107-243,

use of

force

reprinted in

(on

against Iraq).

(on resolution authorizing use of force against Iraq).

authorizing

CONG.

558 THE AMERICANJOURNAL OF INTERNATIONALLAW

[Vol. 97:557

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 2, 1990, Iraq invaded Kuwait.It is easy to forget the wantonness of Iraq's inva-

sion, which was unprovoked and carriedout with particularcruelty, and the

the world received news of it. That invasion rightly shaped, forever after, the way the world

horrorwithwhich

would look at Saddam Hussein's Iraq; and the United States, its allies and friends, and

the

international community as a whole came to realize that this was a menace from which

the

world needed special protection. In the midst of over a dozen years of an essentially ongoing conflict, conducted at different times at different levels of intensity, the Iraqi regime com- mitted itself to comply with conditions that would have brought the story to a close. But it could never bring itself to fulfill its commitments. Virtuallyimmediately, the Security Council adopted UN Security Council Resolution 660, the first of many resolutions condemning Iraq's actions and demanding withdrawal from Kuwait.2Additional Council actions were designed to apply further pressure and bring about Iraq's withdrawal.3The Council'sactions paralleledsteps taken by the United Statesand others pursuant to the inherent right of collective self-defense recognized in Article 51 of the UN Charter.The United Statesmoved forces to the Persian Gulf and then commenced maritime interdiction effortsin response to the Iraqi attack.4But Iraq was intransigent. Eventually, in November 1990, the Council adopted Resolution 678, which authorized the use of "all necessary means" to uphold and implement Resolution 660 and subsequent rele- vant resolutions, and to restore international peace and security in the area.5The resolution provided Iraq with "one final opportunity" to comply with the Council's earlier decisions

and authorized the

the Council's resolutions.

which permits the Security Council to respond to either a threat to, or a breach of, the peace

by authorizing the use of force to maintain or restore international peace and security. Iraq refused to comply with the resolutions by theJanuary 15 deadline, and coalition forces commenced militaryoperations the next day.Significantly, the Security Council did not make a further determination prior to January 15 as to whether or not Iraq had taken advantage of the "one final opportunity" it had been given two months earlier. Member states made thatjudgment themselvesand relied on the Security Council'sNovember decision as authority to use force.

use of

force "unless Iraq on

or before 15January 1991 fully implements"

It specifically invoked the authority of Chapter VIIof the Charter,

2 SC Res. 660 (Aug. 2, 1990), 29 ILM 1325 (1990).

3 Among other things, Resolution 661 (Aug. 6, 1990), 29 ILM 1326 (1990), imposed broad sanctions on Iraq;

Iraq's to annex it; Resolution 664 (Aug. 18,1990), 29 ILM 1328, reaffirmed

annexation of Kuwaitwas "nulland void"and de-

Resolution 662 (Aug. 9, 1990), 29 ILM 1327, decided that

manded that Iraq rescind itsactions purporting

those decisions, demanded that

closed, facilitate departure and consular access for nationals of third

safety,security, or health;

sures commensurate to the

tions; Resolution 667 (Sept. 16, 1990), 29 ILM 1332, demanded

ducted; Resolution 670 (Sept. 25, 1990), 29 ILM 1334, imposed restrictions on air traffic;

circumstances as

foreign

1990), 29 ILM 1561, invited states to collate and make availableto the Council information on

mitted

of Kuwait.

graphic composition and destroy the civil records of the legitimate government

Iraq rescind its order that foreign diplomatic

(Aug.

states,

and consular missions in Kuwaitbe

and take no action

their

tojeopardize upon member statesto use such mea-

of trade restric-

implementation nationals that it had ab-

Resolution 674 (Oct. 29,

breaches com-

Kuwait'sdemo-

Resolution 665

specific

25, 1990), 29 ILM 1329, called

may

be

necessary

to ensure

that Iraq release

byIraq; and Resolution 677 (Nov. 28,1990), 29

grave ILM 1564, condemned Iraqiattempts to alter

of individual and collective self-defence

region");

Letter Dated 16

August

Nations, UN Doc. S/21537

SeeLetter Dated 9 August 1990 from the Permanent Representative

United Nations, UN Doc.

sian Gulf region and

developments

d'Affaires a.i. of the United

forces "atthe request of the Government of Kuwait, have

intercept vessels seeking to engage

in Security Council resolution

SC Res. 678 (Nov. 29, 1990), 29 ILM 1565 (1990).

in exercise of the inherent

requests

5

4

of the United States of America to the

1990 from the

S/21492 (1990) (reporting that United States "has deployed military forces to the Per-

in response to

Charge

(1990) (reporting that U.S.

joined the Government of Kuwaitin taking actions to

right from Governments in the

States Mission, to the United

in trade with Iraq or Kuwaitin violation of the mandatory sanctions imposed

661").

2003]

AGORA:FUTURE IMPLICATIONSOF THE IRAQ CONFLICT

559

On April 3, 1991, the Council adopted Resolution 687.6That resolution did not return the situation to the status quo ante, the situation that might have existed if Iraq had never invaded

Kuwaitor if the Council had never acted. Rather, Resolution 687 declared that, upon

official

Iraqiacceptance of its provisions, a

conditions on Iraq, including extensive obligations related to the regime's possession of weapons of mass destruction (WMD). As the Council itself subsequently described it, Resolu- tion 687 provided the "conditions essential to the restoration of peace and security."7 The Council's conclusion that these WMD-related conditions were essential is neither surprising in the wake of the history of aggression by the Iraqi regime against its neighbors nor irrelevant to the legal situation faced by the coalition when Operation Iraqi Freedom began in March 2003. The Iraqi regime had demonstrated a willingness to use weapons of mass destruction, including byinflicting massivedeaths against civiliansin large-scale chem-

formal cease-firewould take effect, and it imposed several

ical weapons attacks against its own Kurdish population in the late 1980s, killing thousands. On at least ten occasions, the regime's forces had attacked Iranian and Kurdish targets with

combinations of mustard gas and nerve agents through the

conventional artillery shells.8There wasno question that such weapons in the hands of such a regime posed dangers to the countries in the region and elsewhere, including the United States, because of the possibility both of their use by Iraq and of their transfer for use by others. After considering the nature of the threat posed by Iraq, the Council, acting under its Chapter VII authority, established a special set of rules to protect against it. As a legal matter, a material breach of the conditions that had been essential to the estab- lishment of the cease-fireleft the responsibility to member statesto enforce those conditions,

operating consistently with Resolution 678 to use all necessary means to restore interna- tional peace and security in the area. On numerous occasions in response to Iraqi violations of WMD obligations, the Council, through either a formal resolution or a statement by its president, determined that Iraq's actions constituted material breaches, understanding that such a determination authorized resort to force.9 Indeed, when coalition forces-American,

British, and French'?-used

then Secretary-General Boutros-Ghali stated that the

use of aerial bombs, rockets, and

force following such a presidential statement inJanuary 1993,

Council under

resolution 678 (1991), and the motive for the raidwas

which concerns the cease-fire.As

that the action taken wasin accordance with the resolutions of the Security Council and

the Charter of the United Nations.1l

raid was carried out in accordance with a mandate from the

Security

Iraq's violation of that resolution,

Secretary-General of the United Nations, I can tell you

It was on this basis that the United States under President Clinton concluded that the Desert Fox campaign against Iraq in December 1998, following repeated efforts by the Iraqi regime to deny access to weapons inspectors, conformed with the Council's resolutions. To be sure, that campaign did not lack critics, who raised questions aboutwhether furtherCouncil

6 SC Res. 687 (Apr. 3, 1991), 30 ILM 846 (1991).

7

See, e.g., SC Res. 707 (Aug.

15, 1991). The use of the term "cease-fire"itself carries the connotation that one

Even a more formal armistice is subject to

party is not bound to observe it in the face of violations by the other.

the same qualification, as specifically reflected in Article 40 of the 1907 Hague Regulations Respecting the Laws

and Customs of Waron Land, annexed to Convention Respecting the Lawsand Customs of Waron Land, Oct. 18,

1907, 36 Stat. 2277, 1 Bevans 631, which states

8

that "[a]ny

serious violation of the armistice by one of the parties

gives the other party the right of denouncing it."

SeeWhite House Background Paper: A Decade of Deception and Defiance (Sept. 12, 2002), availableat <http:// www.whitehouse.gov/infocus/iraq/iraq_archive.html?static, <http://usinfo.state.gov/regional/nea/iraq/text/>.

9 MichaelJ. Matheson, Remarks, in LegalAuthorityfor the Possible Use ofForceAgainstIraq, 92 ASIL PROC. 141 (1998).

not only

supported the rationale, but authorized its planes to engage as active participants in the 1993 strikes. R.W. Apple,

U.S.and Allied PlanesHit Iraq,Bombing Missile Sites in South in Reply toHussein's Defiance, N.Y.TIMES,Jan. 14, 1993, at Al.

Boutros-Ghali, Following Diplomatic PressClub at 1 (1993).

Luncheon in Paris on 14January, UN Doc. SG/SM/4902/Rev.l,

'0 Notwithstanding its subsequent challenge to the legality

of Operation Iraqi Freedom in 2003, France

" Transcript of Press Conference bySecretary-General, Boutros

560 THE AMERICANJOURNAL OF INTERNATIONALLAW

[Vol. 97:557

actionwas required to authorizeit specifically. Some said that, in the absence of a Councildeter- mination that a material breach had occurred, an individual member state or group of states could not decide that a particular set of circumstances constituted a material breach, and there was debate about whether language that the Council had used in the period leading to Desert Fox was equivalent to a determination of material breach.12The U.S. viewwas that whether there had been a materialbreachwasan objective fact, and it wasnot necessary for the Council to so determine or state.13The debate about whether a materialbreach had occurred andwho should determine this,however, should not obscurea more importantpoint: all agreed that a Council determination that Iraq had committed a materialbreach would authorizeindi- vidual member states to use force to secure compliance with the Council's resolutions. This waswell understood in the negotiations leading to the adoption of Resolution 1441 on November 8, 2002,14and, indeed, the importance attached to the use of the phrase "mate- rial breach"was the subject of wide public discussion.'5 The understanding of the meaning of the phrase was also reflected in the structure of Resolution 1441 itself. Thus, the pream- ble contained specific language recognizing the threat that Iraq'snoncompliance and prolif- eration posed to international peace and security, recalling that Resolution 678 had autho-

rized member states to use "all necessary means" to

restore international peace and security, and further recalling that Resolution 687 had im-

posed obligations on

international peace and security. After recounting and deploring Iraq's violations at some length,l6 the resolution in opera-

tive paragraph 1 removed any doubt that Iraq's actions had constituted material breaches.

uphold the relevant resolutions and

Iraq as a necessary step for achieving the stated objective of restoring

12 Among other things, in March 1998, Resolution 1154 (Mar. 2, 1998), 37 ILM 503 (1998), had warned Iraq

that continued violations of its disarmament

Resolution 1205 (Nov. 5, 1998), as a "flagrant violation."

of that year, inspectors

obligations "would have severest consequences"; and in November

38 ILM 252 (1999), characterized

Iraq's

failure to cooperate with

"3 Matheson,

note 9, at 141. The United States noted at the time that

previous

Council

findings

removed

any doubt that Iraq's

to the United Nations stated:

supra

actions constituted material breaches. For example, the charge d'affaires of the U.S. Mission

Following the liberation of Kuwaitfrom

Iraqioccupation in 1991, the Security

Council, in its resolution 687

(1991) of 3 April 1991, mandated a ceasefire; but it also imposed a number of essentialconditions on Iraq, includ-

ing the destructionof Iraqiweapons of massdestructionand

acceptance by Iraq of United Nations inspections.

Iraq has repeatedly taken actions which constitute flagrant, material breaches of these

the Council has affirmed that similar

Iraqi

On a

provisions. actions constituted such breaches, as well as

number of occasions,

a threat to international peace and security. In our view, theCouncilneednotstatetheseconclusionson eachoccasion.

Letter Dated 16 December 1998 from the

UN Doc. S/1998/1181,

Charge at 1-2 (emphasis added).

d'Affairesa.i. of the United States Mission, to the United Nations,

14 SC

15 See, e.g.,Julia Preston, Threatsand Responses:Diplomacy; U.S.RaisesPressureonRussia and FranceforIraq Resolu-

Res. 1441 (Nov. 8, 2002), 42 ILM 250 (2003).

by itself"); Tim Weiner,

tion, N.Y. TIMES, Oct. 26, 2002, atA8 (French

"to declare war

(French-circulated text omits "twocrucial words from the American

breach' of a number of

officials call phrase a "hidden trigger" that could permit United States

28, 2002, at Al 1

which would find Iraq in 'material

Threatsand Responses: The U.N. Debate, N.Y. TIMES, Oct.

proposal,

past Security Council resolutions" and which France considers would be a "tripwire").

its preamble, deplored

16 Among other things, the resolution, supra note 14, in

"that Iraq has not provided an accurate, full, final, and complete disclosure, as

(1991), of all aspects of

required by resolution 687

its [WMD programs] and of all holdings of such weapons";

"that Iraqrepeatedly obstructedthe immediate,unconditional, and unrestrictedaccessto sites

the United Nations failed to

resolution 687 (1991), and ultimately ceased all cooperation with UNSCOMand the IAEAin 1998"; and

"the absence, since December 1998, in

as

Council's repeated demands that

the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC),

cessor organization

designatedby

Special

Commission (UNSCOM) and the InternationalAtomic EnergyAgency (IAEA),

cooperate fully and unconditionally with UNSCOMand IAEA weapons inspectors, as required by

Iraq provide immediate, unconditional,

to

UNSCOM, and the IAEA."

as the suc-

Iraq of international monitoring, inspection, and verification,

required by relevant resolutions, of weapons of mass destruction and ballistic missiles, in spite of the

and unrestricted access to

2003]

AGORA:FUTURE IMPLICATIONSOF THE IRAQ CONFLICT

561

Specifically,paragraph 1 stated that "Iraq has been and remains in materialbreach of its obli- gations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete

the actions required under

the

gations had crossed the threshold that earlier practice had established for coalition forces

to use force consistently with Resolution 678.

"materialbreach" language, the resolution established that Iraq's violations of its obli-

[the WMD and missile provisions] of resolution 687."In adopting

Following this decision that Iraq was in

material breach, operative paragraph 2 stated the

Council's decision, "while acknowledging paragraph 1 above, to afford Iraq, by this resolu- tion, a final opportunity to comply with its disarmament obligations under relevant resolu- tions of the Council."The resolution then required Iraq to submit, by December 8, 2002, "a currently accurate, full, and complete declaration" that, among other things, would include

information on "all aspects of its programmes to develop chemical, biological, and nuclear weapons, ballistic missiles, and other deliverysystems." At the same time, the resolution estab- lished a reinforced program of weapons inspections, and demanded that Iraq cooperate

"immediately, unconditionally, and

actively with UNMOVICand the IAEA."

Operative paragraph 4 stated the Council's decision that "falsestatements 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 con- stitute a further materialbreach of Iraq'sobligations." The Council in effect decided that, in view of the past behavior of Iraq, the threat it posed to others, and the fact that the oppor- tunity it was being given to remedy its breaches was a final one, any such violations by Iraq would mean that the use of force to address this threat was consistent with Resolution 678. No serious argument was put forwardin the periodfollowing the adoption of Resolution 1441 either that the declaration submitted by Iraq was "currently accurate, full, and complete" or that Iraq had complied with and cooperated fully in the implementation of the resolu-

tion.'7 Under Resolution

erate would constitute a further material breach by Iraq.

the issue to the Council for further

consideration. This course wasconsistentwith Resolution 1441, which contemplated certain steps regarding the reporting of violations and consideration by the Council; in supporting that resolution, the United Stateshad undertaken to "returnto the Council for discussions."18 Specifically, under operative paragraph 4, Iraqi violations that constituted "afurther mate- rialbreach"were to be reported to the Council for assessment under paragraphs 11 and 12. Under paragraph 11, UNMOVICand the IAEAwere directed 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 Resolution 1441. Under paragraph 12, the Council decided that it would convene upon receipt of a report

"inorder 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 12 ex-

presslyprovided

with

be provided either by

ber state in accordance with paragraph 4. Paragraph 4 called for violations to "be reported

1441, the Council had already decided that any such failure to coop-

Even at this point, however, the United States retured

for further Council consideration "upon receipt of a report in accordance

paragraphs 4 or11 above."'9 It thus specifically contemplated that such a report could

UNMOVICor the IAEA in accordance with paragraph 11 or by a mem-

17

See Report in Connection with Presidential Determination Under Public Law 107-243, supra note 1; seealso note 21

infra.

18 UN Doc. S/PV.4644, at 3 (2002) (remarks of Ambassador Negroponte);

a United Nations Security Council Resolution on Iraq,

("The United Stateshas agreed to discuss any material

our freedom of action

").

seealsoRemarks on the Passage of

38 WEEKLY COMP. PRES.Doc. 2009, 2010 (Nov. 11, 2002)

breach with the Security Council, but withoutjeopardizing

19 SC Res. 1441, supra note 14, op. para. 12 (emphasis added).

562 THE AMERICANJOURNAL OF INTERNATIONALLAW

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to the Council for assessment in accordance with paragraphs 11 and 12," without any limi- tation on who mig