CWC: MEETING WITH OPCW LEGAL ADVISER ON U.S.

C O N F I D E N T I A L THE HAGUE 000287

SENSITIVE
SIPDIS

STATE FOR ISN/CB, VCI/CCA, L/NPV (BROWN),
SECDEF FOR OSD/GSA/CN,CP>
SECDEF FOR OSD/GC (WAGER)
JOINT STAFF FOR DD PMA-A FOR WTC
NSC FOR LUTES
WINPAC FOR WALTER

E.O. 12958: DECL: 05/06/2019
TAGS: PARM PREL CWC
SUBJECT: CWC: MEETING WITH OPCW LEGAL ADVISER ON U.S.
RECOVERIES IN IRAQ

REF: A. THE HAGUE 00245

B. STATE 38617

Classified By: Janet E. Beik for reasons 1.4 (B) and (D)

This is CWC-25-09


1. (C) On April 23, U.S. Executive Council
Representative Robert Mikulak and Delreps met with
senior Secretariat officials to follow up on the
updated U.S. submission on recovered chemical
rounds in Iraq. In accordance with REF B
instructions, U.S. Delreps had delivered the
updated letter to the Director General (DG) and
accompanying explanation and table to the DG and
senior Secretariat staff on April 20. The primary
purpose of the follow-up meeting was to understand
the Secretariat's intended response to questions
arising from the U.S. submission.


2. (C) Legal Adviser Santiago Onate said the
Secretariat had already been approached by the
delegations of Russia, Iran, the Netherlands,
Pakistan, and South Africa. Questions included
when the recoveries occurred, why the U.S. had not
made an Article III declaration, why the U.S. was
providing the information at this time, and what
the legal consequences would be. Mikulak asked how
the Secretariat viewed the letter the U.S.
submitted in 2006; Onate replied that this had
simply been considered an announcement of further
information to be provided at a later date. He
added that the TS considered itself to have been
made aware of the destruction of recovered rounds
through the 2009 submission.


3. (C) Onate stressed that it was not for the
Secretariat to tell delegations whether or not the
U.S. had acted in compliance with the CWC, and that
any such judgment of compliance lay with the policy
making organs. He also noted that he did not
intend to engage in speculation with delegations as
to when the U.S. "should" have declared. Onate
noted that the Chemical Weapons Convention does not
clearly contemplate the possibility of recovering
chemical weapons (CW) in a combat situation in a
non-member state. In the absence of specific,
applicable provisions, it would be up to the U.S.
to remind member states that there had been a
serious risk of CW falling into the wrong hands;
and that U.S. actions of destroying the CW, thereby
preventing its use, had been consistent with the
goals and spirit of the Convention. He also raised
the issue of whether the U.S. had jurisdiction or
control of Iraq at the time of the recoveries, and
noted that international law is not well defined on
this sort of determination.


4. (C) Onate shared his view that, for states with
concerns about compliance, the most applicable
provision of the Convention might be Article IX.
However, he noted that pursuit of this particular
course requires political will that most member
states were unlikely to have, particularly given
the aspect of Article IX that envisions the results
of consultations being reported back to the
Executive Council.


5. (C) Finally, the U.S. Representative asked
whether the TS plans to review destruction records
for the recovered rounds. Director of Verification
Horst Reeps replied that this matter still needs to
QHorst Reeps replied that this matter still needs to
be discussed internally.


6. (U) BEIK SENDS.

GALLAGHER