PREFACE: I responded to University of Texas School of Law professor and
National Review contributing editor
Mario Loyola's 13MAY15 article,
How Should Jeb Bush Have Answered the Iraq War Question?. Professor Loyola's e-mails in the exchange are omitted.
from: [Eric LC]
to: [Mario Loyola]
date: May 15, 2015, 6:02 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Professor Loyola,
I am writing you about your May 13 essay in National Review, "How Should Jeb Bush Have Answered the Iraq War Question?" (
http://www.nationalreview.com/article/418314/how-should-jeb-bush-have-answered-iraq-war-question-mario-loyola?target=author&tid=1863).
The subject matter of your essay is subject matter in which I have invested a good deal of time and thought in order to understand the law and policy, fact basis — the bedrock 'why' — of Operation Iraqi Freedom.
Your take and my take of the law and policy mostly align, but there are some significant discrepancies. I invite you to review my explanation and tell me what you think, particularly towards reconciling the discrepancies.
https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html
I also invite you to review my summary of the historical context, which may help shed some light on the events around OIF.
https://operationiraqifreedomfaq.blogspot.com/2012/05/problem-of-definition-in-iraq.html
I am alarmed and dismayed by the Republican candidates, most of all the President's brother [Jeb Bush], stipulating the harmful and
factually wrong position that the Iraq mission was fundamentally a mistake. If the Left's narrative of OIF takes root, it will reshape our culture, politics, and policy for a generation as the purposeful heir to the Left's Vietnam War narrative. It needs to be neutralized ASAP. Obviously, you're in a better position than I to effect any course correction among Republicans, but perhaps my content can assist you.
...
from: [Eric LC]
to: [Mario Loyola]
date: May 17, 2015, 9:28 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mr. [Professor] Loyola,
Below is a copy of a comment that I posted to your article at the National Review website. It responds to your contention that UNSCR 1441 did not place the burden of proof on Iraq. I disagree.
Comment:
Mario Loyola:
It is absolutely vital that that any U.N. Security Council resolution lifting the U.N.’s own sanctions contain a provision to the effect that the burden of proof is on Iran and that if there is a dispute over Iran’s compliance that is not resolved quickly and fully, the sanctions snap back automatically and the breach will be considered a threat to the peace.
I'm following up my earlier comment to focus on the 3 underlined issues raised by Mr. Loyola as related to the legal mechanism in UNSCR 1441. Again, for the record, my explanation (link) of the law and policy, fact basis for Operation Iraqi Freedom.
1. "the breach will be considered a threat to the peace"
We can dispose of this issue quickly.
UNSCR 1441: "Recognizing the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security".
2. "a provision to the effect that the burden of proof is on Iran"
In fact, UNSCR 1441 clearly established "to the effect" that the burden of proof was on Iraq. Instead of 'burden', the terms in the resolution that amounted to the same function as burden were the combination of "obligation", "compliance", and "material breach". To wit, "Determined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions and recalling that the resolutions of the Council constitute the governing standard of Iraqi compliance ... Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein ... Determined to secure full compliance with its decisions ... Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991) ... afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council ... demands further that Iraq cooperate immediately, unconditionally, and actively with UNMOVIC and the IAEA".
Of course, familiarity with the disarmament mandates of UNSCR 687 (link) is necessary to understand Iraq's obligations in Saddam's "final opportunity to comply" under UNSCR 1441.
In effect, UNSCR 1441 pre-judged Iraq was guilty of material breach and instructed that "full and immediate compliance by Iraq without conditions or restrictions with its obligations" to the "governing standard of Iraqi compliance" mandated by UNSCR 687 — "immediately, unconditionally, and actively" as mandated by UNSCR 1441 — was required in order to cure Iraq's pre-judged guilt of material breach in Iraq's "final opportunity to comply".
On March 7, 2003, UNMOVIC reported its findings (link) to the Security Council: "about 100 unresolved disarmament issues" in breach of UNSCR 687. Iraq dispositively failed to meet the burden of proof mandated by UNSCR 1441. The Bush administration acted [link] on the UNMOVIC findings.
Saddam's regime was guilty of material breach entering the UNSCR 1441 inspections and UNMOVIC confirmed Saddam's regime remained guilty of material breach. Controversy resolved, right? No.
3. "sanctions snap back automatically"
The controversy is due to the absence of a provision in UNSCR 1441 that defined an automatic consequence if Iraq failed to cure its guilt of material breach. In place of an automatic consequence, UNSCR 1441 carried forward the Gulf War authorization utilized by Presidents HW Bush and Clinton in their military actions to enforce the resolutions for Iraq: "recalling that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area".
UNSCR 1441 also referred ambiguously to "serious consequences" if Iraq failed to comply, which was analogous to the ambiguous "severest consequences" in UNSCR 1154 that preceded Operation Desert Fox in 1998.
UNSCR 1441 also contained a provision that the Security Council would "convene" to discuss follow-up action once UNMOVIC's report was received and, as with prior resolutions, the Security Council was "seized" on the matter.
So, there was no automatic consequence provided by UNSCR 1441. However, UNSCR 1441 carried forward the UNSCR 678 (1990) authorization for "Member States to use all necessary means". Recall that Clinton did not obtain a resolution to specifically authorize Operation Desert Fox, but instead cited to the authorities provided by UNSCRs 678 and 687, both of which were available for Operation Iraqi Freedom as well.
UNSCR 1441 mandated the Security Council convene upon receipt of UNMOVIC's findings, but it's not clear that mandate also required a new specific UNSC authorization for enforcement action. The Security Council convened for 10 days (March 7 to March 17) before President Bush announced his decision for OIF which commenced on March 19, 2003.
In effect, UNSCR 1441 had it both ways. Member states, ie, the US and our allies, were pre-authorized to use all necessary means to enforce Iraq's compliance with the resolutions. But there also was an absence of automatic consequence and the mandate to convene about the next step upon receipt of UNMOVIC's findings, which implied the Security Council, "seized" on the issue, should determine the next step in response to the confirmation of Iraq's material breach.
The US and UK went one way: the confirmation of Iraq's material breach was the trigger for the UNSCR 678 authorization. Russia, France, and China went the other way: only the Security Council could determine the next step in response to the confirmation of Iraq's material breach.
Important note: the same controversy for Operation Iraqi Freedom accompanied Operation Desert Fox with the same split on the Security Council. President Bush at least sought a new UN authorization [resolution] when the Security Council convened. The Security Council did not convene upon receipt of the UNSCOM Butler Report in December 1998. Again, President Clinton cited to the UNSCR 678 authorization to bomb Iraq forthwith in response to the UNSCOM Butler Report findings.
I hope that analysis clarifies (if not settles) the controversy raised by Mr. Loyola regarding UNSCR 1441.
from: [Eric LC]
to: [Mario Loyola]
date: May 17, 2015, 11:28 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
It's good you're re-entering service.
As I said in my first e-mail inviting you to review my explanation of the law and policy, fact basis for OIF, I am alarmed and dismayed that Republican candidates for President are stipulating the view that the decision for OIF was a mistake "knowing what we know now" about the pre-war intelligence.
That view is founded on a false premise that shifted the burden of proof from Iraq proving it was disarmed in compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates. Your NR [National Review] article goes to the heart of the issue.
I had assumed our leaders in the know — especially the presumptive candidate [Jeb Bush] who is the President's brother
and the President's son — understood the operative enforcement procedure in the decision for OIF. Yet they have not mentioned at all that Iraq's evident[ial] material breach was
casus belli [link], even as mitigation let alone justification.
The condition overlooked in the discourse on OIF is the [pre-war] intelligence [estimates] could be off the mark
and Saddam could be guilty of the material breach that triggered enforcement at the same time because the "governing standard of Iraqi compliance" (UNSCR 1441) was set by the UNSC resolutions, not the intelligence. While the UNMOVIC Cluster[s] Document may have been inconclusive that Iraq was armed as indicated [by pre-war intelligence estimates], the UN inspectors weren't mandated to search for arms according to the pre-war intelligence. Rather, the UN inspectors were mandated to verify Iraq had disarmed as mandated by UNSCR 687. In fact, the UNMOVIC
Cluster[s] Document [link] is conclusive that Iraq had not disarmed as mandated, which confirmed the UNSCR 1441 judgement that Iraq remained in material breach.
While the Iraq Survey Group findings are a misfit with the pre-war intelligence estimates, they are also rife with disarmament violations of UNSCR 687. According to UNMOVIC, Saddam's regime was in material breach of UNSCR 687, and according to ISG, Saddam's regime was armed and dangerous, just not in the same way indicated by pre-war intelligence estimates.
The falsely premised narrative of OIF is right now being wired in as the guiding principle for the next generation of American foreign policy and domestic politics. The Republican candidates for Presidents are validating it. If my explanation passes muster with you, I hope it will help you set the record straight if it's not too late. I look forward to your feedback.
from: [Eric LC]
to: [Mario Loyola]
date: May 23, 2015, 10:06 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
While I don't believe there's another version, some housekeeping before I respond: I use the UNSCR 1441 copy accessed from http://www.un.org/Docs/journal/asp/ws.asp?m=s/res/1441(2002) [
copy].
This is not from UNSCR 1441, but it's probative nonetheless. UNMOVIC Cluster[s] Document:
"UNMOVIC must verify the absence of any new activities or proscribed items, new or retained.
The onus is clearly on Iraq to provide the requisite information or devise other ways in which UNMOVIC can gain confidence that Iraq’s declarations are correct and comprehensive."
If it was unclear that UNSCR 678 applied to "all subsequent relevant resolutions", UNSCR 687 made clear that the prior UNSCR 660-series resolutions, including UNSCR 678, were carried forward to UNSCR 687, which was also a
Chapter VII [link] resolution. I agree that disposing of the Russian view of UNSCRs 678 and 687 was important. I wonder how much of Saddam's noncompliance from the outset, not just in 2002-2003, was influenced by the Russian view.
I disagree with your reading of "explicitly tied "serious consequences" to "
further material breach"["].
The only condition of "further material breach" in UNSCR 1441 did not limit the scope of compliance. In fact, it did not refer to the Iraqi activity indicated by the pre-war intelligence [estimates]. Rather, it was a reinforcement of the burden of proof on Iraq.
Faults in Iraq's declarations and other Iraqi faults that prevented UN verification of Iraqi disarmament as mandated by UNSCR 687 had been a principal conflict for
UNSCOM [link]. UNSCR 1441 decided that Iraq falling short of complying with the strict
standard of compliance mandated by UNSCR 1441 for the steps mandated by UNSCR 687 constituted a "further material breach", to wit, "4. Decides that false statements 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 constitute a
further material breach of Iraq’s obligations".
Meanwhile, the "serious consequences" of UNSCR 1441 were explicitly tied to "continued violations", not limited to a "further material breach", to wit, "13. Recalls, in that context [ie, Iraq's non-stop failure to comply to the mandated standard], that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its
continued violations of its obligations".
The "continued violations" in decision 13 matched the basic issue in decision 1 that "Iraq has been and remains in material breach of its obligations", to wit, "1. Decides that Iraq
has been and remains in material breach of its obligations 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 paragraphs 8 to 13 of resolution 687 (1991)".
Resolution of Iraq's "continued violations" matched the basic issue stated by President Bush in his September 2002
remarks [link] to the UN General
ly Assembly and in
Public Law 107-243 [link], the prerequisite for UNSCR 1441.
The purpose of UNSCR 1441, stated in decision 2, was "
a final opportunity [for Iraq] to comply with its disarmament obligations under relevant resolutions of the Council ... with the aim of bringing to
full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council".
If "further material breach" in decision 4 had referred to intelligence-indicated Iraqi activity that followed an unspecified cut-off point (say, Operation Desert Fox), then UNSCR 1441 limiting the "serious consequences" to such a "further material breach" would have failed "to secure full compliance with its decisions" to resolve Iraq's "continued violations" with a "full and verified completion" of the disarmament process mandated by UNSCR 687.
Regarding the UNMOVIC Cluster[s] Document, I repeat, the UNMOVIC findings may have been inconclusive that Iraq was armed as indicated by pre-war intelligence [estimates], but they were conclusive that Iraq had failed to disarm as mandated by UNSCR 687.
To understand the difference, the (UNSCOM and) UNMOVIC findings are properly read according to UNSCR 687, not the pre-war intelligence estimates. Recall that "the resolutions of the Council" —
not the intelligence — "constitute[d] the governing standard of Iraqi compliance".
UNSCR 687 and related resolutions mandated Iraq more than to show it was not armed, especially after General Hussein Kamel al-Majid revealed hidden stockpiles in 1995. In fact, Iraq's proscribed items and activities that could be demonstrated in hand were not the main WMD-related threat because the violations that were demonstrated were corrected as mandated. Rather, Saddam's main WMD-related threat was the proscribed items and activities that could not be accounted for due to Iraq's "denial and deception operations" (Duelfer Report).
As President Bush reiterated, the burden of proof was always on Iraq to prove it was disarmed as mandated. There was not ever a burden of proof on the US and UN to demonstrate Iraq was armed as indicated by [pre-war] intelligence [estimates]. Nor, practically, was such a demonstration by UNMOVIC expected according to [mandate and] precedent.
On February 17, 1998, when Clinton warned of "clear evidence of a weapons of mass destruction program", he cited to Iraq's noncompliance, not the intelligence. And preceding President Bush responding to the UNMOVIC Cluster[s] Document with Operation Iraqi Freedom, President Clinton had responded to the UNSCOM
Butler Report [link] with Operation Desert Fox. Like its successor in November 2002 — March 2003, UNSCOM did not discover secret Ford factories mass-producing WMD munitions nor hidden armories of battlefield-ready WMD stocks in November-December 1998. Rather, UNSCOM, like UNMOVIC, confirmed Iraq remained noncompliant with the standard for disarmament mandated by UNSCR 687.
Set aside the UNSCR 1441 text for a moment, put on your crimpro cap, and consider the issue common-sensically.
Bush formally introduced the "final opportunity to comply" to the UN General Assembly on September 12, 2002. Over 2
months later, IAEA and UNMOVIC resumed inspections in Iraq on November 27, 2002. The Iraq Survey Group
Duelfer Report [link] is qualified with the cautionary notes that much potential evidence was lost during the war and its aftermath, key regime officials were not cooperative, and suspect areas were found "sanitized". In many instances, ISG concluded it could not determine Iraq had disarmed as mandated by UNSCR 687.
If we held the burden like State holds the burden in a criminal trial, then why didn't we secure the 'crime scene' ASAP? The answer is not awesome stupidity and utter lack of lawyerly acumen by Bush officials.
The answer is the UNSCR 1441 inspections with UNMOVIC, like the UNSCR 1154/1194/1205
inspections [link] with UNSCOM, were a compliance-based 'final exam' for Saddam. The burden of proof was on Iraq to prove it was disarmed as mandated by UNSCR 687. UNMOVIC demonstration of Iraqi possession was not an element of the compliance-based 'final exam'.
The belief that the burden was on the US and UN to prove Iraq was armed as indicated [by pre-war intelligence estimates], rather than on Iraq to prove it was disarmed as mandated, requires you to overlook the gaping flaw in the [UNSCR 1441 inspections] sequence that would have allowed, nay invited, Saddam to 'flush' evidence at his leisure,
if we held the burden of proof.
Iraq failed its compliance-based 'final exam', administered by Hans Blix's team, with "about 100 unresolved disarmament issues". You're a professor. If your most delinquent student failed all his exams, and then in the dispute over his grade, your TA claims the student's failed exams are not proof he failed your course, and his advocates (aka your adversaries) further claim
you hold the burden to prove the student failed, how would you respond?
In fact, while the ISG findings are a misfit with the pre-war statements on the intelligence, the ISG Duelfer Report is rife with disarmament violations of UNSCR 687. But if hypothetically, ISG had found Iraq pristine, that wouldn't have changed that, by law and policy, the
casus belli was Iraq's evident[ial] noncompliance in Saddam's "final opportunity to comply" mandated by UNSCR 1441 and enforced by P.L. 107-243.
The actual international legal controversy with UNSCR 1441 is a procedural controversy over decision authority and consequence that's contained in decisions 12-14 of the resolution. It's akin to the international legal controversy over the "illegal but justified" Kosovo intervention.
On the substance, Iraq was guilty of breaching UNSCR 687 — "
Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein" (UNSCR 1441).
Regarding "frameworks for diplomacy and political debate" [Loyola], I recommend that you review my contextual frame-setting explanation of the law and policy, fact basis of the mission:
https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html
It shines a light on this issue from various aspects because the foundation of my take is the burden of proof was on Iraq to prove compliance with the "governing standard of Iraqi compliance" mandated in the UNSCR 660-series resolutions, the
casus belli was Iraq's material breach across the board with the terms of ceasefire, and the overarching purpose of the Iraq intervention was to "bring Iraq into compliance with its international obligations" (P.L. 105-235).
Setting the record straight matters to me because the cultural legacy of OIF for our Iraq veterans and their families, especially for the children who will only ever know their KIA-OIF father (or mother) through the cultural prism of OIF, now depends nearly exclusively on whether the President's decision for OIF was justified in the first place. President Obama has assured that there will be no Eisenhower course to cultural redemption of the Korean War for OIF.
At the same time, the US-led enforcement of the terms of the Gulf War ceasefire was the defining international enforcement of the post-Cold War for the leader of the free world. It was a paradigm. The cultural conception and political judgement of the Iraq intervention orients our course ahead for every American international design.
For example, regarding Iran, simply stated, if Presidents HW Bush, Clinton, and Bush were right on Iraq, then President Obama has been wrong on Iran. And vice versa.
Right now, we're making generational decisions for American policy and politics based on misconceptions about OIF. We're being tricked. Clear-minded decisions for our national course, even if we eventually come around to like decisions, requires us to set the record straight on the law and policy, fact basis of OIF at the premise level.
from: [Eric LC]
to: [Mario Loyola]
date: May 24, 2015, 11:47 AM
subject: UNSCR 1441 did place the burden of proof on Iraq
Add to my 23MAY
05[15] e-mail, regarding the UNMOVIC Cluster[s] Document and Hans Blix's remarks:
The Special Commission of UNSCR 687 (ie, UNSCOM then UNMOVIC) was not mandated by UNSCR 687 to ascertain that Iraq was armed as indicated [by pre-war intelligence estimates]. The Special Commission was mandated by UNSCR 687 to verify that Iraq had disarmed as mandated.
When Blix said he could not conclude that Iraq had disarmed as mandated, that confirmed Iraq remained in material breach of UNSCR 687.
But when Blix said he could not conclude that Iraq was armed as indicated [by pre-war intelligence estimates], that statement was outside the operative enforcement procedure for UNSCR 687.
The UNSCR 687 Special Commission was not designed to ascertain whether Iraq was proscriptively armed because the disarmament process was built on the carrying presumption of Iraq's guilt that was established in the factual baseline of the conditional ceasefire. Iraq's guilt of proscribed armament was presumed until Iraq cured its guilt by proving it had disarmed as mandated by UNSCR 687.
Again, the UNMOVIC Cluster[s] Document finding of "about 100 unresolved disarmament issues" was conclusive that Iraq had not disarmed as mandated by UNSCR 687, which confirmed Iraq remained in material breach for
casus belli.
from: [Eric LC]
to: [Mario Loyola]
date: May 27, 2015, 9:35 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Add to my 23MAY
15 e-mail, regarding how to read the operative paragraphs of UNSCR 1441:
The 14 decisions of UNSCR 1441 that follow "Determined to secure full compliance with its decisions, Acting under Chapter VII of the Charter of the United Nations" and constitute the resolution's operative paragraphs broke down to 3 groups: decisions 1-2, decisions 3-11, and decisions 12-14.
The first group, decisions 1-2, mandated the basic task and condition — the heart — of UNSCR 1441.
Decision 1, the basic condition, reset Iraq's material breach of the ceasefire, particularly Iraq's noncompliance with the WMD-related disarmament mandates in paragraphs 8 to 13 of UNSCR 687. Decision 2, the basic task, afforded Iraq a "final opportunity to comply" with "full and verified completion" of the disarmament process mandated by UNSCR 687, and for that purpose, mandated an "enhanced inspection regime".
The second group, decisions 3-11, mandated the "enhanced" part of the "enhanced inspection regime" with a heightened "governing standard of Iraqi compliance" for UNSCR 1441.
Decisions 3-11 were formulated to counter the Iraqi denial and deception practices used against the UNSCOM inspections. Again, the only condition of "further material breach" in UNSCR 1441 was in decision 4 and it referred to Iraq failing to meet the mandated standard for the "enhanced inspection regime" in the sense of additional infraction. "Further material breach" did not refer to a restriction of the scope of the disarmament process mandated by UNSCR 687. There was no amnesty in UNSCR 1441. In fact, the UNMOVIC inspections that found “about 100 unresolved disarmament issues” (Cluster[s] Document), the principal trigger for Operation Iraqi Freedom, explicitly took up from the UNSCOM inspections that triggered Operation Desert Fox.
The third group, decisions 12-14, was related to decision authority and consequence if Iraq failed to comply with decisions 1-11, but its mandate was ambiguous.
On the one hand, decision 12 mandated the Security Council to "convene" to "consider the situation" if Iraq failed to comply with the "governing standard of Iraqi compliance" and, like previous resolutions, decision 14 stated the Security Council was "seized of the matter". On the other hand, decision 13 warned of "serious consequences" for Iraqi noncompliance with the "governing standard of Iraqi compliance" and the preamble "recall[ed]" UNSCR 678. When Iraq failed to comply in its "final opportunity to comply", President Bush faced the same deadlock in the Security Council that President Clinton faced for ODF, and Bush's decision for OIF followed Clinton's legal precedent with ODF.
from: [Eric LC]
to: [Mario Loyola]
date: Jun 3, 2015, 5:14 AM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
At your convenience, I would like your thoughts on my response (and addenda) to your reading of UNSCRs 687 and 1441 and UNMOVIC findings in that light.
The gap between our understandings is concerning because the burden of proof in the "governing standard of Iraqi compliance" (UNSCR 1441) goes to the heart of the issue both assessing the basic justification of Operation Iraqi Freedom and, where past is prologue, orienting similar [international law] enforcement procedures moving forward, such as with Iran.
from: [Eric LC]
to: [Mario Loyola]
date: Jun 4, 2015, 3:13 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
I agree the problem was chiefly political, rather than legal, in nature.
I
say [link] in my OIF FAQ, "[On the facts, t]he decision for Operation Iraqi Freedom was right on the law and justified on the policy[;] yet [it has been] distorted in the politics". I also describe the political controversy in greater depth here:
https://operationiraqifreedomfaq.blogspot.com/2012/05/problem-of-definition-in-iraq.html.
You've identified the nub of the controversy as the working definition of "further material breach" in UNSCR 1441[,] which established the "enhanced inspection regime" for Saddam's "final opportunity to comply" with UNSCR 687 .
That's where your take concerns me.
There is an argument that can be made, centered on decision 14 of UNSCR 1441, that the President's decision for OIF was illegal under international law. However, your view that under UNSCR 1441 "serious consequences" were to be triggered only by a "further material breach" defined as positive confirmation by UNMOVIC of the pre-war intelligence [estimates] is unfounded.
Procedural dispute is primarily assessed legalistically, albeit debated in political (diplomatic) context. Legalistically, there is no dispute over the working definition of "further material breach" in UNSCR 1441. "Further material breach" in the "enhanced inspection regime" mandated by UNSCR 1441 is defined in decision 4.
Politically, it's easy to understand why, for the sake of competing interests, the Russians, Chinese, and French would exploit the ambiguous decision process in decisions 12-14 by
importing an arbitrary definition of "further material breach" inapposite of the term defined in decision 4. March 2003 wasn't the first time they deviated from the actual terms of ceasefire established by UNSCR 687. The same parties opposed the US-led enforcement with Iraq on the same grounds during the Clinton administration, particularly as President Clinton's enforcement efforts peaked in 1998.
Therefore, I am puzzled why you of all people share our competitors' plain misinterpretation of "further material breach" (UNSCR 1441) to characterize a "U.S. decision to ignore the process established by the resolution" [Loyola].
Your view that
casus belli was not established according to UNSCR 1441 is incorrect.
The "enhanced inspection regime" of UNSCR 1441 confirmed Iraq remained in material breach in its "final opportunity to comply with its disarmament obligations under relevant resolutions of the Council". Setting aside the imported arbitrary definition of "further material breach", decision 13 explicitly tied "serious consequences" to "continued violations"
not limited to a "further material breach" — of any kind. UNMOVIC explicitly took up from UNSCOM and confirmed Iraq's "continued violations" of UNSCR 687. Moreover, UNMOVIC as well as the Iraq Survey Group showed that Iraq was guilty of "further material breach" as defined in UNSCR 1441
and the basic terms of UNSCR 687.
As I said, the ISG Duelfer Report is rife with disarmament violations of UNSCR 687. Saddam was in fact guilty on the WMD issue, just not in the same way indicated in the pre-war intelligence [estimates].
You are also incorrect to say we ignored the process established by UNSCR 1441.
Per decisions 1-11, the US supported UNMOVIC as it fulfilled its mandate under UNSCR 1441 with the finding of "about 100 unresolved disarmament issues" in breach of UNSCR 687. In fact, UNMOVIC was mandated to "update" the Security Council on Iraq's compliance by January 26 at the latest. Hans Blix's January 27 'interim' report to the Security Council was sufficient to establish
casus belli. Yet President Bush opted to allow the UNSCR 1441 inspections to complete with the late presentation of the Cluster[s] Document on March 7.
Then, per decision 12, the US came together with the Security Council to "convene" to "consider the situation" presented by the UNMOVIC Cluster[s] Document. In contrast, President Clinton had ordered ODF immediately upon receipt of the UNSCOM Butler Report with no further consultation with the UNSC. Finally, 10 days following the presentation of the UNMOVIC Cluster[s] Document to the UNSC, President Bush announced OIF on March 17, 2003 while citing the standing authorization of UNSCRs 678 and 687, which was carried forward in UNSCR 1441.
While there is a dispute whether the US (and UK) or the Security Council held the ultimate authority to determine the reaction to UNMOVIC's confirmation of Iraq's material breach, we did not ignore the process established by UNSCR 1441.
As I
say [link] in my OIF FAQ, "The prevalent myth that Operation Iraqi Freedom was based on a lie relies on a
false premise that shifted the burden of proof from Iraq proving it had disarmed in compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates."
If, as you've framed the issue, the controversy over the decision for OIF turns on the working definition of "further material breach" in UNSCR 1441, then the US is vindicated because the working definition in UNSCR 1441 supports the President's
decision [link] whereas opponents of OIF rely on an imported arbitrary definition inapposite of the term defined in decision 4.
For the actual, weighty legalistic argument against the President's decision for OIF, start with decision 14 rather than an unfounded reading of decisions 4 and 13. Then, with a reading of decision 14 in hand, compare President Bush's decision for OIF with President Clinton's decisions regarding the Balkans and, directly analogous, Iraq.
Off topic. Here's my packet of references in support of your May 29
column [link] in the Wall Street Journal, which I didn't post there because WSJ requires a full name to comment:
1. "Saddam: What We Now Know" by Jim Lacey* draws from the Iraq Survey Group (re WMD) and Iraqi Perspectives Project (re terrorism):
http://www.nationalreview.com/article/277115/saddam-what-we-now-know-jim-lacey
* Dr. Lacey was a researcher and author for the Iraqi Perspectives Project:
http://fas.org/irp/eprint/iraqi/
2. Explanation of the law and policy, fact basis for Operation Iraqi Freedom:
https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html
3. "UN Recognizes 'Major Changes' In Iraq" by VP Joe Biden on behalf of the UN Security Council:
http://www.un.org/press/en/2010/sc10118.doc.htm
4. "Withdrawal Symptoms: The Bungling of the Iraq Exit" by OIF senior advisor Rick Brennan:
https://www.foreignaffairs.com/articles/united-states/withdrawal-symptoms
5. "How Obama Abandoned Democracy in Iraq" by OIF official and senior advisor Emma Sky:
http://www.politico.com/magazine/story/2015/04/obama-iraq-116708_full.html#.VTb5WLt0x0s
Plus, my take on the US exit from Iraq:
https://operationiraqifreedomfaq.blogspot.com/2012/09/an-irresponsible-exit-from-iraq.html
I'm glad you're willing to continue the conversation, Mario. This issue is vital looking back and ahead. I can't make a difference at a level that matters, but you might.
from: [Eric LC]
to: [Mario Loyola]
date: Jun 4, 2015, 8:33 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Add to my e-mail from earlier today, regarding the legalistic objection to OIF under UNSCR 1441:
First of all, like you, I don't favor the "inherent" right of self-defense against attack articulated in Chapter VII as a legal justification for OIF. There are clearer justifications for OIF. That being said, the UNSCRs and US laws did establish that Iraq's noncompliance with the UNSCRs was a threat, so the point can be raised politically, if not legalistically. In fact, the ISG and IPP uncovered that Saddam had maintained, besides proscribed "preserved capability", an
active program within the IIS capable of producing weapon for unconventional operations and Saddam's terrorism was actually more robust than had been indicated before OIF.
As I said, the politically-based view that, under UNSCR 1441, "serious consequences" were tied to "further material breach" defined as a positive confirmation by
UNMMOVIC [UNMOVIC] of the pre-war intelligence [estimates] is legalistically unfounded.
Proving Iraqi armament as indicated [by pre-war intelligence estimates] simply was not UNMOVIC's mandate, which was to test Iraq's compliance and verify Iraqi disarmament as mandated.
Neither "further material breach" as defined in decision 4 nor "serious consequences" which were explicitly tied to "continued violations" in decision 13 supports the politically-based view. Neither term appears elsewhere in UNSCR 1441 to open the door to an alternative meaning.
When the terms are applied to the UNMOVIC and ISG fact findings, "further material breach" and "serious consequences" according to decisions 4 and 13
support the President's decision for OIF.
So ... if President Bush's decision for OIF was correct according to the preamble and decisions 1-11 and 13 of UNSCR 1441, then where is the legalistic objection to OIF under UNSCR 1441?
By process of elimination, the legalistic objection to OIF is found in decisions 12 and 14 of UNSCR 1441.
To wit, "12.
Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order
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;"
Note that decision 12 was oriented on Iraqi compliance with UNSCRs,
not on UNMOVIC demonstration of Iraqi armament matching the pre-war intelligence [estimates].
The only clear action mandated in decision 12 was for the UNSC to convene upon receipt of an UNMOVIC report of Iraqi noncompliance per "paragraphs 4 or 11" — for example, the UNMOVIC Cluster[s] Document. The US abided by that mandate, so there was no UNSCR 1441 process ignored there.
The controversy is centered on the operative meaning of "consider" in decision 12 (unless 'consider' is understood as a term of art in IL [international law] that I'm unaware of).
"Consider the situation and the need for full compliance" [UNSCR 1441] — decision 12 did not limit decision authority to the UNSC to 'decide' or 'determine' the reaction to evidence of noncompliance in Iraq's "final opportunity to comply" with "full and verified completion" of the disarmament process of UNSCR 687. It did not even mandate the UNSC to 'judge' or 'assess' the "need for full compliance". Merely to "consider" it.
Once the Security Council duly convened per decision 12 and "consider[ed] the situation" presented by the UNMOVIC Cluster[s] Document, the yawning ambiguity of "consider" opened the door both ways.
Russia, China, and France exploited the ambiguity of "consider" to import an arbitrary definition of "further material breach" — which, puzzlingly, you accepted — and attempt to replace the "governing standard of Iraqi compliance" mandated in UNSCR 1441 with an
ad hoc standard that would have favored Saddam's "denial and deception operations" (Duelfer Report).
Meanwhile, the ambiguity of "consider" allowed the US and UK to uphold the "governing standard of Iraqi compliance" mandated in UNSCR 1441 and rely on the standing authorization of UNSCRs 678 and 687 for OIF following the precedent set by President Clinton and PM Blair with ODF.
I assume you understand the longstanding disagreement over the operative meaning of "
Decides to remain seized of the matter" in decision 14, particularly when there are standing Chapter VII authorizations like UNSCR 678, likely better than I do.
Even at the UN, the ["]politics of diplomacy["] [Loyola] should not be detached from their legalistic underpinning and moored instead in false premise, which has happened with OIF. The political corruption carries into the current controversy over the Iran negotiations. Hence, the importance of setting the record straight on OIF moving forward.
What do you think?
from: [Eric LC]
to: [Mario Loyola]
date: Jun 6, 2015, 11:57 AM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
Your suggestion makes me sympathize (and empathize) already with the hapless 2L assigned to be my spader. [Note: Professor Loyola suggested that I convert the content from this e-mail thread into an article for the
Texas Review of Law & Politics.]
Litmus test: Are
you convinced by our conversation that has progressed from your May 13 NR [National Review] column?
The importance of your answer is less about your celebrity as a pundit than your type.
Stacked on the Republican candidates' consensus on the [Megyn] Kelly
hypothetical [link], your reading of UNSCR 1441 that the resolution explicitly tied "serious consequences" to "further material breach" defined as UNMOVIC confirmation of the pre-war intelligence [estimates], thus effectively placing burden of proof on the US, showed me that the problem is deeper than what I had believed was only propaganda warping the zeitgeist. You've shown me that misconception about the why of OIF has metastasized into the reaches of our policy establishment so that a fundamental false premise has become clothed as truth.
Living there, the impact is greater than judgement looking back but also, as you show with your May 13 NR column, multiplying in policy decisions going forward.
If, one-on-one in e-mail, I can't even convince a Republican foreign-policy legal counsel who is evidently, based on your May 13 NR column, mindful of the heart of the issue (ie, burden of proof and standard of compliance for UNSCR 687 enforced pursuant to UNSCR 1441) that is necessary to properly assess the justification for OIF, then there is little hope I can set the record straight in the zeitgeist.
Related, what difference can be made with an article in
http://trolp.org/? I don't ask you that to dissuade myself, but drawing on your experience, what effect can it have downstream?
from: [Eric LC]
to: [Mario Loyola]
date: Jun 12, 2015, 1:24 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
...
Related, check out this interview with President Bush by the newsletter, Israel Hayom:
http://www.israelhayom.com/site/newsletter_article.php?id=26127
I appreciate that the IH interviewers are exceptional in correctly stating the
casus belli for OIF as Iraq’s noncompliance with the UNSC resolutions, ie, material breach of the terms of ceasefire. In contrast, most US media assume the false premise that the
casus belli for OIF was administration pre-war statements on the intelligence.
from: [Eric LC]
to: [Mario Loyola]
date: Jun 18, 2015, 2:15 AM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
I have no connection to UT Law. Your suggestion was the first I heard of TROLP. But looking over its website, the maverick ethos of TROLP's origin story makes it seem like a fit for an article derivative of my OIF FAQ (
https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html).
...
Part of me is self-conscious about explaining something that should be obvious and common knowledge already given that the Saddam problem was frontpage news for over a decade before OIF and the primary sources are straightforward and easily accessed on-line. Then I read something like this that's absurdly off the mark and it tells me that setting the record straight, though it shouldn't be necessary, is a real need:
http://www.politifact.com/truth-o-meter/statements/2015/jun/16/facebook-posts/meme-says-bill-clinton-george-w-bush-had-basically/
from: [Eric LC]
to: [Mario Loyola]
date: Jun 18, 2015, 12:05 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
... [G]oing back to the original issue you raised in your May 13 NR [National Review] article — ie, our approach to disarming Iran carried forward from our approach to disarming Iraq — I recommend the perspective of this elite source on the Iraq disarmament process who offers valuable insight for the Iran disarmament process: former UNSCOM chair Charles Duelfer who headed the Iraq Survey Group.
Duelfer has a website with an occasional but active blog where he comments on disarmament issues, including Iran:
http://www.charlesduelfer.com/index.php.
I haven't read his book, but I have read several of his articles and blog posts. Duelfer's writings have informed a significant part of my understanding of the UN weapons inspections with Iraq, including — relevant to your May 13 NR article — the effect of the conflicts in the Security Council.
While Duelfer criticizes the intelligence community and our presidents' (ie, not only Bush's) decisions with Iraq, he is clear that Iraq failed to meet its burden of proof for the "governing standard of Iraqi compliance" (UNSCR 1441) for disarmament.
Duelfer's experience with Iraq's noncompliance informs his worry over the Obama administration's negotiations with Iran.
from: [Eric LC]
to: [Mario Loyola]
date: Jun 18, 2015, 1:07 PM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
...
The only thing that separates me from anyone else is I reacted to the inflamed controversy over the President's decision for OIF by wondering, 'How did Clinton use the intel for Operation Desert Fox?'. Then I took advantage of the new-fangled internet to look up primary sources to find out for myself. Which quickly formed the kernel of my realization that the law and policy basis, enforcement procedure, and political rifts for Operation Iraqi Freedom carried forward progressively from Operation Desert Fox. That, in fact, President Clinton, whose entire presidency was preoccupied by the Iraq enforcement, rather than President Bush, who only came on for the coda in the revaluating light of the 9/11 attacks, is the best source for understanding OIF.
... I'll have to continue to hope someone like you, with sufficient name, will be convinced to pick up the thread of my semi-anonymous work at a degree that can make a difference looking back and moving forward.
from: [Eric LC]
to: [Mario Loyola]
date: Jun 19, 2015, 1:12 AM
subject: UNSCR 1441 did place the burden of proof on Iraq
Mario,
My OIF FAQ (
https://operationiraqifreedomfaq.blogspot.com/2014/05/operation-iraqi-freedom-faq.html) is a ["]public affairs piece["] [Loyola]. It's a narrative reframe that's grounded in primary sources throughout.
UNSCR 1441, as a public affairs piece, supports the President's decision for OIF in the preamble and decisions 1-11 and 13.
Decision 12, after its mandate to "convene" upon report of Iraqi violation, is ambiguous with "consider" to the point of meaningless blank slate.
Decision 14's "seized of the matter" is the basis for the claim by Kofi Annan and others that the President's decision for OIF was illegal, but "seized of the matter" says nothing about the burden of proof and standard of compliance. It's about decision authority only. The same "seized of the matter" is the basis for our opponents' claim that
every US-led post-Gulf War military action with Iraq, including the no-fly zones, ODF, and OIF (before UNSCR 1483), was illegal due to lack of specific UNSC authorization. Whereas Presidents Clinton and Bush cited the carrying UN authorization of UNSCRs 678 and 687 for those military actions.
That's a recap to say that in the ["]politics of diplomacy["] [Loyola], whichever silver-tongued foreign diplomat managed to convince you that UNSCR 687 required affirmative demonstration of proscribed Iraqi armament
while [and] UNSCR 1441 effectively gave Iraq an amnesty for its standing disarmament violations and placed the burden on the US and UN to prove Iraq was armed as indicated by the pre-war intelligence[ estimates,] lied to you. Nothing in the text of UNSCRs 687 and 1441, the US law and policy that enforced the UN mandates, nor the record of UNSCOM and UNMOVIC (as far as I've read) supports that reading of the burden of proof and standard of compliance for disarming Iraq. That reading was simply pro-Saddam, anti-US propaganda.
Worse, it wasn't even new propaganda in 2002-2003. It was recycled. The same pro-Saddam, anti-US propaganda was used against Clinton's Iraq enforcement in 1998. The difference is in 1998, the Democrats didn't incorporate our opponents' pro-Saddam, anti-US propaganda into US politics for Operation Desert Fox. But in 2002-2003, the Democrats incorporated it for Operation Iraqi Freedom.
In politics, when you're confronted with opposing propaganda that's transparently false and recycled to boot, when the UN-mandated "governing standard of Iraqi compliance", the US law and policy enforcing it, and the determinative fact findings are plainly on your side, you're supposed to use the fact pattern to rebut the opposing propaganda. The Republicans have all they need to set the record straight. Incredibly, the Republican candidates for President have chosen to stipulate the opposing propaganda, instead, and with that alchemy have transformed rebuttable false premises into facts in evidence.
It's late, but not yet too late. With Iraq, Iran, the Middle East, and the War on Terror all live-wire on the table, Republicans can still choose to counter in the politics — domestic and international — by setting the record straight to reframe the political discourse, and thereby re-lay the foundation necessary to correct the course of the leader of the free world.
I appreciate you reading along. As you said in the beginning, it's important. ...
Related:
How Republicans should talk about the Iraq issue.
