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DE RUEHTC #0245/01 1041709
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O 141709Z APR 09
FM AMEMBASSY THE HAGUE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2752
INFO RUEHGB/AMEMBASSY BAGHDAD IMMEDIATE 0135
RUEHLO/AMEMBASSY LONDON IMMEDIATE 1823
RUEKJCS/SECDEF WASHINGTON DC IMMEDIATE
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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. 
 
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SUMMARY 
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¶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