The UNSCOM Experience: Lessons from an Experiment

The emergence of issues of independence and impartiality in relation to the work of UNSCOM is directly linked to the fact that this body’s tasks changed from short-term to long-term ones. This change considerably increased its need for support from Iraq, the UN Security Council and Member States. Instead, this support, for various reasons, declined. UNSCOM was the first institution of its kind and its experience may be viewed as an experiment which gives rise to several questions, especially relating to the ease with which a state can conceal information relating to disarmament monitoring and verification processes, and to the need for clear goals on the part of states or organs which initiate this type of process. However, these questions do not make UNSCOM’s experience a failure. As is well known, President George H. W. Bush spoke in 1990 of a ‘New World Order’ with ‘a new partnership of nations’. In the same year the United Nations Special Commission (UNSCOM) began its work. Eight years later, the UN Secretary-General spoke of ‘a sad day for the United Nations, and for the world’, referring to the US and British air strikes on Iraq which took place in December 1998. These events marked the definitive disruption of UNSCOM’s work. Between these two dates, however, many events occurred which influenced and gave substance to the UNSCOM experience. In many ways, the UNSCOM experience may be viewed as an experiment. But could this experiment become a precedent? The UNSCOM story is marked by considerable confusion. In her contribution to this symposium, Chantal de Jonge has set down the facts and analysed them very 154 EJIL 13 (2002), 153–159 5 Ibid, at 66–67. 6 Sur, ‘La résolution 687 (3 avril 1991) du Conseil de sécurité dans l’affaire du Golfe: problèmes de rétablissement et de garantie de la paix’, XXXVII AFDI (1991) 25, esp. 74 et seq; Marauhn, ‘The Implementation of Disarmament and Arms Control Obligations Imposed upon Irak by the Security Council’, 52 Zeitschrift fûr Ausländisches Öffentliches Recht und Völkerrecht (ZaöRV) (1992) 781. clearly and convincingly. This comment will be limited to a few remarks, particularly on issues of independence and impartiality. I will first note some paradoxical aspects of these issues, and then proceed to consider how and why, from this perspective, the UNSCOM experience appears to be at a deadlock, even though the results of its work stand far from being a failure. A sort of paradox may be seen in the very fact that issues of independence and impartiality could arise from UNSCOM. Concepts of independence and impartiality are nowadays more often used in, though not limited to, the context of dispute settlement as an element of fair trial or due process of law. They pertain to a third party involved in a dispute settlement. But UNSCOM was not a third party. Its actions were governed by the Security Council and, as long as it followed the Council’s directions, issues of independence and impartiality were meaningless. The fact that this was not the case could suggest that UNSCOM did not act as it should have. This leads us to the question: In relation to whom was UNSCOM supposed to be impartial and independent? However, the fact that this question arises indicates an aspect of Iraq’s success in resisting the whole process of control, taking advantage of UNSCOM’s actual situation of dependence. In many aspects, UNSCOM was in a situation of dependence. This would probably not have been the case if its short-term tasks had not changed. This work was supposed to be carried out in a period of four or five months. Instead, it extended over seven years. This circumstance increased the sense of disproportion between the breadth of its task and the weakness of the organ. UNSCOM was created as a subsidiary organ by the Security Council. It was an ad hoc body, the first of its type — perhaps a model? It was certainly an original institution. Obviously, the Member States did not want to create a large organ; an attitude which can be understood as a wish to limit the growth of international institutions, despite the fact that the tasks of disarmament and ongoing monitoring and verification assigned to UNSCOM were unusually far-reaching. The method generally used in the field of disarmament or monitoring and verification involves focusing on one type of arms. UNSCOM had to deal with all Iraqi weapons of mass destruction. And it had to do so in the context of a defeated country, which presented significant problems. To the more objective difficulties, including the considerable disorganization and harsh climate, could be added several political factors, which Chantal de Jonge has detailed so clearly in her paper. These most likely increased the difficulties involved in carrying out UNSCOM’s task, for which it was dependent on Iraq and on the Security Council as well as on the UN Member States. UNSCOM needed Iraq’s cooperation. Of course, the Commission was given broad authority. It was allowed to use inspections, even no-notice ones (i.e. not only The UNSCOM Experience: Lessons from an Experiment 155 7 Para. 4. 8 This corresponds to the idea of a primitive or feudal society in which criminals have to pay for their penalty; it should also, however, be related to specific characteristics of an interstate society. 9 See Skordas, supra note 4, at 68–71. 10 United States, Japan, Kuwait, Saudi Arabia, United Kingdom. 11 S/1999/94, Annex, Doc. 2, paras 43–49. inspections of sites but also of vehicles), to obtain all documents and reports required, to interrogate any Iraqi official or citizen as appropriate, to use its own means of communication, to install a permanent means of supervision, to use its own aircraft without limitations to fly over Iraqi territory. UNSCOM was able to develop very intrusive methods and it did so, especially after 1995 when the extent of Iraqi concealment was uncovered. But the use of these methods evidences a downhill slide in the system, at least with regard to disarmament. Iraq had to give information about its mass destruction weapons; it was bound by clear obligations under Security Council resolutions and, in particular, it had the burden of proof as to arms counts and disarmament assessments. Iraqi attempts to conceal information exacerbated the difficulty of UNSCOM’s mission (and, at the same time, as will be discussed below, made the intelligence question specifically sensitive). Further, after some time, there was even a kind of reversal in the burden of proof when Iraq declared, in 1998, that it considered the disarmament process to be completed unless UNSCOM could prove otherwise. UNSCOM was also dependent on the Security Council and UN Member States, especially for financial and material support. Of course, Security Council Resolution 699 (1991) provided that all expenses required for the disarmament and monitoring and verification processes would be covered by Iraq. An escrow account was established for this purpose, into which Member States were invited to deposit Iraqi funds from oil sales confiscated on their territory and where funds from oil sales authorized by the Security Council were paid (Resolution 706 (1991)). But Iraq never accepted these resolutions. In addition, however, UN Member States were encouraged to provide extensive financial and material support to the Commission on a voluntary basis. Thus, even though the UN Secretary-General was able to prove in 1996 that this system was satisfactory, UNSCOM never had a formal budget nor did it have any guarantee on the continuity or duration of its funds. A sense of precariousness does not encourage independence, especially in this case since UNSCOM’s need was significant and financial support came from only a few states. In his last Report, the Executive Chairman mentioned that UNSCOM’s average annual ‘budget’ amounted to $US35 million, not including material support. This latter was estimated to amount to twice that figure. It also needs to be said that, while the 21 members of the Commission were supported by experts, most of these latter were not permanent to the Commission. In addition, UNSCOM members themselves were allowed to continue their own activities (in his last Report, the Executive Chairman indicated that 200 persons had held long-term positions with the Commission, and 700 experts and other specialists were employed for short-term missions). Moreover, considering the broad nature of 156 EJIL 13 (2002), 153–159 UNSCOM’s mission, members had to specialize, which created problems of coordination and information exchange. Also to be underlined is the fact that most of the Commission members and experts were from Western countries, as only these countries had sufficient numbers of experts. But this also possibly contributed to the weak political support and involvement on the part of other countries. This situation made it easy for Iraq to question the composition and staffing of the Commision and it also provided an excuse for other countries to keep their distance from the UNSCOM experiment. Material and operational support thus came from only a few countries. Does this set of circumstances, in itself, cast a shadow on the Commission’s independence? Not necessarily. It is not unusual in the United Nations. Indeed, many UN operations — particularly those in the field of peacekeeping — are financially and materially supported by Member States on a voluntary basis. But in the case of UNSCOM, the situation was quite different because of the nature of its tasks and its particular needs, especially as far as information is concerned. As Chantal de Jonge points out in her contribution to this symposium, the intelligence question rapidly became highly sensitive in two regards: the provision of intelligence and information from states (in a situation where there was no certainty that manipulation in one way or another was not taking place). This leads us to a third point: the problem of trus