CWC: U.S. RESPONSE TO OPCW LEGAL ADVISER ON

UNCLAS STATE 038617 SIPDIS - THE HAGUE FOR CWC DELEGATION E.O. 12958: N/A TAGS: PARM PREL CWC IZ SUBJECT: CWC: U.S. RESPONSE TO OPCW LEGAL ADVISER ON U.S. SUPPLEMENTAL DECLARATION ON IRAQ REF: THE HAGUE 245 (CWC: URGENT LEGAL QUESTIONS ON U.S. SUPPLEMENTAL DECLARATION ON IRAQ) ¶1. (U) This is an action request for all addressees on Monday, April 20, 2009, see paras 4-6. ¶2. (U) Background: On April 14, U.S. delreps to the Organization for the Prohibition of Chemical Weapons (OPCW) met with OPCW Technical Secretariat (TS) Legal Adviser Santiago Onate and other OPCW TS representatives to discuss the legal sufficiency of the U.S. Supplemental Declaration on chemical weapons recovered in Iraq. Onate's legal view is that a U.S. decision to submit this information via an official declaration form might cause the TS to raise a number of potentially difficult technical and verification questions, most importantly why the U.S. did not declare these weapons at time of recovery and invite the TS to verify destruction. Onate suggested that the U.S. might consider appending the information on recovered rounds to Iraq's initial declaration, perhaps in the same category as other narrative descriptions of past activities. The United States would need agreement from Iraq on this informal submission and coordinate this decision with the UK. (NOTE: The UK is submitting an informal letter to the OPCW on CW rounds that it recovered in Iraq. End note.). ¶3. (U) A subsequent telephone conversation between Onate and L/NPV (M.Brown) and DoD/OGC (J.Wager) on 16 April 2009 revealed that, in Onate's opinion, the CWC, under these particular conditions, does not require a formal declaration (CW Form 1.0) to report the results of the recovery and destruction of the Iraqi chemical munitions. He explained his rationale was based on his assessment that the purpose of that form was to permit verification of destruction, which, in this case, had already occurred. As a result, an informal letter from the United States to the TS, for transparency purposes, that provides information on the recovered CW is the preferred approach. A written Memorandum for the Record (MFR) on the 16 April 2009 telephone conversation with Onate has been prepared, along with an MFR of the events leading up to the interagency decision on how to provide the information to the TS. In light of the phone conversation and subsequent decisions, Washington will: 1) prepare a letter from the United States to the TS to request the withdrawal of the U.S. supplemental declaration; and 2) prepare a letter from the United States to the Director-General of the OPCW that outlines, for transparency purposes, the CW recoveries by U.S. forces in Iraq. ¶4. (U) Action Request: CWC Delegation The Hague. ¶A. Using the letter provided by Washington, Del should seek return of the U.S. supplemental declaration and cover letter, and inform the appropriate TS officials that, instead of the supplemental declaration, the United States now plans to submit a letter from the U.S. National Authority to inform the TS of the rounds recovered in Iraq. We do not believe it appropriate, however, to append this letter as an annex to the Iraqi declaration, although we recognize that the TS may want to file them together, or to number them in a similar manner, for administrative reasons. The U.S. letter will refer to the 2007 letter from the United States and UK foreign ministers, which was cited in and annexed to UNSCR 1762 (29 June 2007). That letter informed the Security Council that "all appropriate steps have been taken to secure, remove, disable, render harmless, eliminate or destroy (a) all of Iraq's known weapons of mass destruction and ballistic missiles with a range of greater than 150 kilometers and (b) all known elements of Iraq's programs established to research, develop, design, manufacture, produce, support, assemble and employ such weapons and delivery systems, subsystems and components thereof." ¶B. Del should inform the Iraqi delegation of this planned approach and seek any comments. ¶C. Del should brief the UK del on this matter. ¶D. Absent any strong objections from the TS or the Iraq or UK delegations, the interagency cleared letter transmitting this information will arrive separately and should be signed by Dr. Robert Mikulak and delivered to the Director-General. ¶5. (U) Action Request: Embassy Baghdad. Post should draw on the above background to inform appropriate Iraqi officials. ¶6. (U) Action Request: Embassy London. Post should draw on the above information to update appropriate UK officials. CLINTON