CWC: URGENT LEGAL QUESTIONS ON U.S. SUPPLEMENTAL

UNCLAS THE HAGUE 000245 SENSITIVE SIPDIS STATE FOR ISN/CB, VCI/CCA, L/NPV (BROWN) SECDEF FOR OSD/GSA/CN,CP> JOINT STAFF FOR DD PMA-A FOR WTC NSC FOR LUTES E.O. 12958: N/A TAGS: PARM PREL KTIA CWC IZ SUBJECT: CWC: URGENT LEGAL QUESTIONS ON U.S. SUPPLEMENTAL DECLARATION ON IRAQ REF: A. THE HAGUE 236 ¶B. ROBINSON/MIKULAK EMAIL (04/06/09): TS MEETING ON IRAQ ¶C. GARNER/CWC DEL EMAIL (04/01/09): U.S. SUPPLEMENTARY DECLARATION AND COVER LETTER This is CWC-21-09. ¶1. (U) This is an action message -- see para 9. -------------- SUMMARY -------------- ¶2. (SBU) SUMMARY: On April 14, Delreps met with OPCW Technical Secretariat (TS) Legal Advisor Santiago Onate, Director of Verification Horst Reeps, Chemical Demilitarization Branch Head Dominique Anelli and other TS staff. Legal Advisor Onate's view is that the U.S. choice to submit its information on rounds recovered and destroyed in Iraq as a U.S. supplementary declaration raises a number of legal and verification related questions. The declaration format forces the Secretariat to seek additional information that the U.S. is unlikely to provide and, most importantly, raises the question of why the U.S. did not declare the chemical weapons at the time of discovery. Iraq's status at the time as a State not Party aside, the U.S., as a State Party to the Chemical Weapons Convention, had an obligation to report any chemical weapons of which it took possession, and to destroy them in accordance with the Convention under verification. ¶3. (SBU) The Secretariat requests further clarification from the U.S. before Friday, April 17, on the U.S. legal basis for the declaration in order to know how to proceed at the destruction informals on April 20. They offered an alternative option, that the information be submitted as a supplement (appendix) to the Iraqi declaration. As the TS's recommended course of action requires coordination with the governments of Iraq and the UK, Del requests guidance as soon as possible. END SUMMARY. -------------- TS LEGAL OPINION -------------- ¶4. (SBU) The purpose of the meeting was to follow up on a meeting on April 6 during which Reeps and others -- without the benefit of a TS legal opinion -- asked a number of questions about the U.S. supplemental declaration on rounds recovered in Iraq (refs A and C). Questions centered on why the U.S. had submitted a declaration, as opposed to a letter that could serve as a transparency measure without creating the legal obligations of a declaration. The full list of TS questions was forwarded to Washington for review (ref B). ¶5. (SBU) Legal Advisor Onate told Delreps that he had thoroughly reviewed the U.S. supplementary declaration and the Convention, and that he was unable to match the U.S. declaration with the provisions of the Convention. Onate acknowledged that the situation of a State Party destroying chemical weapons on the territory of a State not Party is unique; he pointed out that the natural basis for a chemical weapons declaration is Article III, but noted that the U.S. had never declared these chemical weapons before or at the time of their destruction. He added that, while destruction does occasionally take place without TS observation, it is at least declared to the OPCW before the destruction occurs. The fact that this information is being provided independently of Iraq's declaration raises additional questions. ¶6. (SBU) Onate then outlined two possible scenarios. The first was that the chemical weapons in Iraq were considered to be under the control of the U.S. In this case, Onate believes that the question of why these rounds were not declared at the time of discovery/destruction could lead to more serious questions as to whether or not the U.S. acted in accordance with its CWC obligations. The second scenario Onate could envision was one in which the U.S. considered its actions to have been performed in accordance with the relevant United Nations Security Council Resolutions, as had been done by the U.S. and UK in letters to the Security Council in 2003 (S/2003/538 May 8, 2003) and 2007 (Annex I to UNSCR 1762/ 2007). ¶7. (SBU) Onate pointed out that the submission of the information in a declaration format raises a number of verification-related obligations that could become very complicated. As an alternative, he suggested the U.S. (and UK) 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. Iraq, of course, would have to agree to do this. If this were provided as a transparency measure on the part of Iraq and others, it would eliminate the need to question the legality of a declaration, as there are no obligations concerning chemical weapons destroyed prior to the Convention's entry into force for a State Party. ¶8. (SBU) Onate reiterated that it would be prudent for the U.S. to avoid the concept that it had at any time taken possession of these chemical weapons. This would inevitably lead to questions about whether the U.S. had been acting in compliance with the Convention when it delayed declaration of the recovered rounds ) a clear obligation as a State Party to the CWC. He added that he had done some research into the concepts of jurisdiction and/or control (both terms used in the Convention) and did not believe this would be a productive discussion, nor would it be appropriate for the OPCW. -------------- ACTION REQUEST -------------- ¶9. (SBU) TS officials consider it a matter of urgency to resolve the legal status of the U.S. submission by Friday April 17, before the Secretariat, U.S., and UK make their respective presentations at the Destruction Informals on April ¶20. If the U.S. agrees that the information in the supplemental declaration could instead be submitted as an annex to Iraq's initial declaration, rapid coordination with Baghdad and London will be essential. If the U.S. position is to stand by the U.S. declaration as submitted, Del requests clear guidance as to the legal basis for U.S. actions and its compliance with the CWC. ¶10. (U) BEIK SENDS. GALLAGHER