To: R. Ayyad and. I. Husaini et al.
From: W. Brahms

I agree with you that the U.S. has a right under international law to take preemptive action against Iraq if Iraq’s use of WMD were imminent and an attack offers the last reasonable change to prevent use of WMD. But assessment of the imminent threat and the danger of not taking action against Iraq is bound to be controversial.

Alternatively, the U.S. can build a case against Iraq based on how the ceasefire came into existence and the content of the Security Council resolutions that came afterward. The Gulf War was waged under U.N. Res. 678 which would have allowed Saddam’s overthrow to restore international peace and security in the area. But after Kuwait was liberated, the hostilities stopped with a ceasefire. Iraq accepted U.N. Res 686 which demanded full compliance with all relevant resolutions as a condition of commencing the ceasefire. U.N. Res. 687 set out the full terms and obligations Iraq had to adhere to. This included a demand that Iraq unconditionally accept the destruction of all its WMD and not undertake the further development or acquisition of materials for WMD. Authorized under U.N. Chapt. 7 which deals with threats to peace, U.N. Res. 687 does not end the authorization to use force under U.N. Res. 678.

Compliance with the ceasefire terms places restrictions on Iraq’s sovereign rights for as long as the ceasefire terms remained unfulfilled. Implicitly sanctioned by the resolutions is the resumption of hostilities if Iraq consistently commits a material breach of the ceasefire terms.

Iraq has breached many of these terms. It has refused inspections. It has withheld from UNSCOM information on its CW program and rebuilt key portions of its missile production facilities and chemical production infrastructure for industrial and commercial which can be converted quickly for production of CW agents. Under the guise of legitimate civilian use, it has acquired numerous dual-use items that are subject to U.N. scrutiny and which can be diverted for WMD purposes. In the first FFCD back in 1995, it admitted to having an offensive BW program, the scope and nature of which is difficult to assess because its disclosures are incomplete and filled with inaccuracies. This lead to a UNSCOM assessment that Iraq maintains the expertise and industrial infrastructure that could produce a significant amount of BW agents at any time. It has worked on its L-29 UAV program which is believed to have been modified for delivery of CW and BW agents. It is developing SRBM systems not subject to U.N. prohibitions with the probable aim of expanding to longer range systems. Developments in the A1-Samoud SRBM and the Ababil-100 SRBM are believed to be underway and a small covert force of Scud-type missiles probably exists. Removal of economic sanctions would facilitate the acquisition of missile-related items from foreign sources. A source of fissile material is Iraq’s biggest obstacle to building a nuclear weapon.

Its continued possession of elements of WMD constitute an offensive breach that threatens international peace and security.

U.N. Res. 1205 ruled Iraq in “flagrant violation” of ceasefire Res. 687 which justifies the revival of the authorization of the use of force in U.N. Res. 678.

I don’t buy the arguments of some of your contacts in the Middle East that the passage of time since the first ceasefire resolution means the automatic right to use force has lapsed. This suggests that outlaw states that engage in a diplomatic war of attrition need not comply with U.N. resolutions passed in an effort to end hostilities. Iraq has done this in dictating back to the international community its own ceasefire terms by selectively re-interpreting and ignoring terms. Its mockery of the ceasefire agreement continues with every ruse and subterfuge it uses to keep its WMD program alive. Under these circumstances Iraq has forfeited its protections under the ceasefire and those of sovereignty under international law.

This material breach of the ceasefire and its continuation is the responsibility of the Iraqi government. This provides legal justification for the use of force to overthrow Saddam Hussein and his tyrannical regime. This should be done as part of a considered project for the re-ordering of the Middle East on better terms under a comprehensive military, political, economic, and postwar diplomatic strategy.

-- William Brahms

William Brahms
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