1014-A-07 UNITED NATIONS CHAPTER VII MANDATES AND THE U.S.-IRAQ BILATERAL AGREEMENT HEARING BEFORE THE SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS AND OVERSIGHT OF THE COMMITTEE ON FOREIGN AFFAIRS HOUSE OF REPRESENTATIVES ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION SEPTEMBER 17, 2009 Serial No. 111-60 Printed for the use of the Committee on Foreign Affairs Available via the World Wide Web: http://www.foreignaffairs.house.gov/ UNIVERSITY OF MICHICAN U.S. GOVERNMENT PRINTING OFFICE LIBRARIES 52–289PDF WASHINGTON : 2010 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402–0001 For sale by the Superintendent of Documents, U. Government FAPR Ofice 2010 The Interretergfttore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 5f2_1806 of Michigan DEPOSITED BY Documents UNITED STATES OF AMERICA Center 7 at Iraq's request to continue in effect a number of measures that had been put in place to handle Iraqi funds and assets: Specifically the deposit of Iraqi oil export funds into a development fund, which is now administered by Iraq, and the operation of an international advisory and monitoring board to monitor the accounting and use of those funds. These funds and Iraqi oil assets generally are made immune from attachments by Security Council decisions with some excep- tions. Now, in the Secretary General's July report it said that Iraq was now basically ready to assume these oversight responsibilities, but it did note that there were certain unresolved technical ques- tions outstanding with respect to Iraqi internal controls and the de- posit of certain funds into this development fund. It is also important to resolve the large volume of claims against Iraq and debts of Iraq that date back to the Saddam regime. This includes claims of U.S. nationals, and this is necessary so that Iraq can resume its normal responsibility of a sovereign state for its as- sets and liabilities. Again, Article 26 of the U.S.-Iraq agreement says that the United States will assist Iraq in trying to resolve these matters as well. Next is the area of weapons of mass destruction. As you know, after the Gulf War the U.N. Security Council required the elimi- nation of Iraqi WMD and also imposed some significant constraints on Iraqi activities and Iraqi capabilities that might be used in the future for WMD purposes. This includes chemical and biological weapons. It includes long range ballistic missiles and, most impor- tantly, it includes all nuclear items and activities except for certain limited medical and other purposes. Now, at the time Iraq was required to accept a comprehensive and unusual regime of international inspections to verify its com- pliance with these provisions. In 2007, the Security Council decided that these extraordinary inspection regimes were no longer nec- essary. But it did keep in effect the restrictions on Iraqi nuclear and other activities, and the resolutions say that these will continue until the Security Council determines that Iraq is in compliance with Council resolutions and the International Atomic Energy Ad- ministration or Agency decides that Iraq is in full compliance with nucl safeguards agreements. Neither of these steps has yet oc- curred. Apparently there is some further work required on technical issues, particularly with respect to possible future Iraqi peaceful nuclear activities, and I think probably there is also a policy, or perhaps it is a tactical question, about how the complete lifting of all of these restrictions at this point, how it would relate to United States and other nonproliferation objectives in the region, particu- larly with respect to Iran. Then there are a series of other issues on which Chapter VII measures remain in effect. For example, after the Gulf War the Se- curity Council created a Boundary Commission to resolve the Iraq- Kuwait border dispute which had been one of the ostensible causes for the Gulf War, and when that process of demarcation was com- pleted the Council guaranteed the newly demarcated boundary. So 11 3 Compensation for Gulf War Losses The Iraqi invasion and occupation of Kuwait caused immense human and financial losses. Among other things, more than a million foreign workers were forced to leave Iraq and Kuwait; many foreign nationals were imprisoned, killed, or injured; immense damage was done to the Kuwaiti economy and Kuwaiti property; many foreign nationals and corporations suffered contract and property losses, and Iraqi forces caused vast damage to Kuwaiti oil fields and widespread environmental damage. Providing compensation for these losses was a priority objective of the international community to meet urgent humanitarian needs, to assist Kuwait and other states in recovering from this catastrophe, and to help in restoring stability to the region. 10 To meet these objectives, the Security Council created an ambitious and innovative regime to assess the damage, adjudicate claims, and provide compensation to those affected. The Council decided that Iraq would be liable “for any direct loss, damage - including environmental damage and the depletion of natural resources - or injury to foreign Governments, nationals and corporations as a result of its unlawful invasion and occupation of Kuwait;" it created the UN Compensation Commission to adjudicate claims and decide on priorities for payment; and it decided that 30% of Iraqi oil export revenues would be used for payment of these claims. 11 Iraq initially attempted in various ways to impede this effort, but in the end the program resulted in the successful adjudication of more than 2.6 million claims (including substantial sums for American claimants), the awarding of compensation in excess of $52 billion, and the actual payment to date of nearly $28 billion to claimants. In particular, compensation was promptly paid to the hundreds of thousands of individuals who were most in need of such relief. However, due to the very large volume of awards, much of the compensation due has not yet been paid; to date, this amounts to about $24 billion for damage to the environment and oil sector of Kuwait. 12 11 10 See Michael J. Matheson, Council Unbound: The Growth of UN Decision Making on Conſlict and Posiconllici Issues after thc Cold War (U.S. Institute of Peace 2006), p. 168-82. UNSC Rcs. 687 (1991), paras. 16-19; Res. 705 (1991). 12 The July 29 report of the Secretary-General reported payments totaling $27.1 billion to date; at the end of July further payments were made in excess of $400 million. 12 4 13 In light of the removal of the regime of Saddam Hussein, the Security Council has reduced the deduction from Iraqi oil export revenues to 5%, but significant amounts continue to flow into the Compensation Fund from this source. In December 2007 the Iraqi Government asked the Council to review the matter with a view to reducing that percentage as much as possible”. It argued that the continuing deduction “creates a financial burden for Iraq at a time when it is in dire need of those funds to rebuild its infrastructure”, and that recent increases in the price of oil had inflated the value of the deduction. Iraqis have also argued that they should not have to continue bearing the burden of the misdeeds of the previous regime in which they had no part. In 2009, Iraq asked that payments be reduced to 1% if not eliminated altogether; Kuwait, however, asked that payments continue at the 5% level. 14 15 Hopefully this is a matter on which Iraq and Kuwait might reach some mutually acceptable accommodation, given the fact that each has an important long-term interest in good relations with the other. Apparently Iraq and Kuwait have had preliminary discussions on this matter, including the possibility of investment of the unpaid amounts in projects in Iraq. Article 26 of the Security Agreement promises that the United States will “support Iraq” in achieving a “comprehensive and final resolution” of such reparation claims. 16 Other Iraqi Debts and Assets In December 2008 the Security Council decided – at the request of Iraq - to continue in force for another year the arrangements it had earlier adopted for the orderly handling and use of Iraqi oil revenues. Specifically, proceeds from the sale of Iraqi oil and gas are deposited into the Development Fund for Iraq that is now under Iraqi administration, and an International Advisory and Monitoring Board monitors the accounting and use of those proceeds. Iraqi oil and gas assets and proceeds, as well as the Development Fund itself, are immune from attachment by creditors (except for damages occurring as a result of ecological accidents after May 2003 or contractual obligations entered into after June 2004); and all states are 17 11 15 13 UNSC Res. 1483 (2003), para. 21. Letter from Prime Minister al-Maliki to the President of the Security Council, December 7, 2007. See UN Doc. S/2009/385, 27 July 2009, p. 3-4. See id.. p. 4. See UNSC Res. 1483 (2003). para. 20; Res. 1859 (2008), paras. 1-2. 16 15 7 -- “nuclear weapons or nuclear-weapon-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above”. Resolution 707 went even further, requiring Iraq to halt “all nuclear activities of any kind, except for isotopes for medical, agricultural or industrial purposes” until: (1) the Council determined that Iraq was in full compliance with Resolution 707 and paragraphs 12 and 13 of Resolution 687 (both of which relate to Iraq's nuclear program), and (2) the International Atomic Energy Agency (IAEA) had determined that Iraq was in full compliance with its nuclear safeguards agreement. (Neither of these preconditions has yet been met). In addition, Iraq was required to accept comprehensive on-site inspections to verify its compliance with these constraints, to be carried out by the International Atomic Energy Agency (IAEA) in the case of nuclear materials, and a newly-created agency - the UN Special Commission (UNSCOM) – for the other items. UNSCOM was later replaced by the UN Monitoring, Verification and Inspection Commission (UNMOVIC). 24 IAEA and UNMOVIC resumed their inspection functions after the removal of Saddam Hussein, but in June 2007 the United States and the United Kingdom advised the Council that all appropriate steps had been taken to eliminate the prohibited systems and activities, and the Council determined that these international inspections were no longer necessary to verify Iraqi compliance and terminated these broad inspection mandates. However, the Council expressly reaffirmed Iraq's disarmament obligations under the previous resolutions to refrain from acquiring or developing the various prohibited items. 25 Iraq is party to certain agreements that constrain some of these prohibited items, such as the Nuclear Non-Proliferation Treaty, the Biological Weapons Convention, and the Chemical Weapons Convention. On the other hand, the restrictions of the Security Council decisions that remain in effect impose stricter constraints on Iraq than its current obligations under international treaties in some respects. In particular: 21 UNSC Rcs. 687 (1991), par. 7-14. 25 UNSC Res. 1762 (2007). 18 10 the requirement to act against international terrorists who may be found in their territory. Nor does the adoption of Chapter VII measures necessarily require a determination that the government of the state in question is a threat to international peace - only that there is such a threat from some quarter that requires action. Therefore, if it were thought desirable to continue some Chapter VII actions in force with respect to Iraq, this need not necessarily be seen as any derogation of Iraqi sovereignty or any barrier to its resumption of normal rights and responsibilities within the international community. Mr. DELAHUNT. Thank you, Mr. Matheson. Next we will go to Dr. Katzman. STATEMENT OF KENNETH KATZMAN, PH.D., SPECIALIST IN MIDDLE EAST AFFAIRS, CONGRESSIONAL RESEARCH SERVICE Mr. KATZMAN. Thank you, Mr. Chairman, for having me back; Mr. Rohrabacher, for asking me to appear today. Mr. DELAHUNT. Can you hit the button, Ken? Mr. KATZMAN. Thank you very much for asking me to appear. My primary responsibilities at CRS are on Iraqi politics, culture, history, United States policy toward Iraq rather than specifically the legalities of the U.S.-Iraq agreement or the United Nations. I will summarize my comments and ask that the remainder be sub- mitted for the record. Thank you very much. In evaluating the implementation of the U.S.-Iraq Security Agreement, including these provisions committing the United States to support lifting the remaining Chapter VII resolutions mandate, it is useful I think to assess where Iraqi politics stand, and that I think addresses the broader questions in several open- ing statements about where the U.S. mission stands, the implica- tions of the United States decision to intervene in Iraq in 2003. In general, Iraq's political system can be characterized by peace- ful mpetition rather than violence. However, sectarianism and ethnic and factional in-fighting continue to simmer, and many Iraqi views and positions are colored by efforts to outflank, outmaneuver and constrain rival factions. These tendencies will only grow in the run up to the January 16, 2010, national elections in Iraq, which may also concurrently in- clude a vote, a referendum on the U.S.-Iraq agreement subject to that would have to be approved by the National Assembly to have the referendum. That decision has not been taken yet. Compounding the factional tensions is the perception that Prime Minister Maliki is in a strong position politically. This is largely a result of the strong showing of his Da'wa Party in the January 31, 2009, provincial elections. His showing in those elections was in turn a product of his benefitting from an improved security situa- tion, his positions in favor of strong central government as opposed --- 22 Congressional Research Service Statement of Kenneth Katzman Specialist in Middle Eastern Affairs Congressional Research Service before The Subcommittee on International Organizations, Human Rights, and Oversight of the House Foreign Affairs Committee Hearing: “Unfinished Business: United Nations Chapter VII Mandates and the US-Iraq Bilateral Agreement." September 17, 2009 Thank you, Mr. Chairman, and Mr. Rohrabacher, for asking me to appcar at today's hcaring, as well as for past invitations. I will be discussing the Iraqi political context of the ongoing implementation of the U.S.-Iraq Sccurity Agreement ("thc Sccurity Agrccmcnt"), which took cffcct on January 1, 2009, including Iraqi and Kuwaiti vicws on thc potential termination of remaining Chapter VII mandates on Iraq. I will summarize my comments and ask that the remainder of my statement be submitted for the rccord. I would note that my responsibilities at CRS include analysis of U.S. policy toward Iraq, U.S.-Iraq relations, Iraqi politics and the social and human rights situation in Iraq, as well as aspects of the insurgency and the various militias that are operating. I assert no expertise on or official responsibilitics for analyzing, in legal terms, the provisions of the Iraqi constitution, interational or U.S. law pertaining to U.S. forces in Iraq, or international law pertaining to U.N. Chapter VII mandates. Overview of Iraqi Politics In evaluating the implementation of the U.S.-Iraq Security Agreement, including the provisions committing the United States to support thc lifting of remaining Chapter VII resolutions, it is uscful to assess where Iraqi politics stand. Iraqi politics will almost certainly determine whether Iraq votes on an early termination of the Security Agreement, and, if so, how the population will vote. Iraqi and regional politics will likely also play a major role in determining whether the Chapter VII U.N. mandates that remain in force, almost two decades after Iraq's August 1990 invasion of Kuwait, will be closed out before all tasks stipulated in those U.N. Resolutions are completed. 39 with President Obama, but in my discussions around town clearly this was discussed. Some compromises along these lines of investment, reducing the compensation amount, the percentage. These are all under active discussion is my understanding. Mr. DELAHUNT. Well, I think we can welcome that discussions are going on and there appears to be significant or some American involvement because clearly according to the bilateral agreement we do have that obligation to assist Iraq and help the parties reach an agreement. I would like to go for a moment to the referendum issue, and clearly it would appear whether there is a referendum has not been decided by the Council of Representatives. And I think it was you, Dr. Katzman, who indicated that that probably will not be decided until things sort out politically in terms of the forthcoming election. Would the referendum and the elections in January be held si- multaneously? Mr. KATZMAN. That is what the Iraqi Cabinet has decided. Now it is for the Parliament to decide whether to endorse that or not have a referendum at all or have it some different time. Mr. DELAHUNT. I think what is fascinating is I hear you describe the shifting alliances. It is beginning to sound like a democracy, particularly when coalitions that are nonsectarian-based are com- ing together for obviously their own self-interest, but I daresay that that is a much more preferable situation and something that might be familiar here in this particular institution as well. As I said earlier in my own remarks, and let me just throw this at you. I think it is really important for the United States not only to assist in terms of meeting its obligations under the bilateral agreement, but to continue to stay engaged. I think it is clear that the elections that will be held in January are of critical importance in terms of what occurs not only in Iraq subsequently, but in the entire region. Let me pose to all of you, and this is not directly on issue, but the possibility of the United Nations with American support, with United States support, a substantial monitoring presence and effort in terms of those elections to reassure the Iraqi people of the integ- rity of the electoral process. Clearly what has occurred in Afghanistan is profoundly dis- turbing and is potentially destabilizing in Afghanistan. I had a con- versation in fact yesterday—he is not here now—with our colleague and friend from Indiana, Mr. Burton, and I haven't had a chance yet to talk to Mr. Rohrabacher, about the United States and this Congress pressing the administration and the United States to pro- vide for a substantial presence to provide for security in terms of the electoral process as it develops and hopefully culminates in a free and fair and fully engaged citizenry going to the polls in Janu- ary. You know, I think that is something that we should do. I have discussed with Mr. Burton, and I will obviously with Mr. Rohr- abacher, sending a letter to the administration to that effect and conveying to the appropriate United Nations officials how signifi- cant that is. Care to comment, Ken Katzman?