Reporte del Secretario General de la ONU del 27 de julio de 2009

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United Nations S/2009/385
Security Council Distr.: General
27 July 2009
Original: English
09-42002 (E) 290709
*0942002*
Report of the Secretary-General pursuant to paragraph 5 of
resolution 1859 (2008)
I. Introduction
1. In paragraph 5 of resolution 1859 (2008), the Security Council decided to
review resolutions pertaining specifically to Iraq, beginning with resolution 661
(1990), and in that regard requested the Secretary-General to report, after
consultations with Iraq, on facts relevant to consideration by the Council of actions
necessary for Iraq to achieve international standing equal to that which it held prior
to the adoption of such resolutions.
2. The present report provides the facts as requested by the Council. To prepare
the report, the Secretariat reviewed the relevant resolutions pertaining to Iraq
adopted by the Council over a period of 18 years, starting with resolution 661
(1990) of 6 August 1990. Ten different United Nations programmes, departments
and offices, and international organizations, were involved in that review of the
relevant facts and the preparation of the report. The Secretariat also consulted the
Government of Iraq and other relevant stakeholders during the preparation of the
report. Unless otherwise indicated, the mandates and requirements stemming from
them that are addressed in this report are considered to be still operational.
II. Overview of relevant facts
A. Compensation to be paid by Iraq as arising from section E of
Security Council resolution 687 (1991)
3. The United Nations Compensation Commission is a subsidiary organ of the
Security Council and was established by the Council in 1991 to process claims and
pay compensation for direct loss, damage or injury to foreign Governments,
nationals and corporations as a result of Iraq’s unlawful invasion and occupation of
Kuwait in 1990/91. The Compensation Commission currently comprises the
Governing Council, with membership the same as that of the Security Council, and
the secretariat headed by the Executive Head. As from 1 July 2007, the
Commission’s secretariat was downsized to a residual format in line with a decision
taken by the Governing Council at its fifty-eighth session in December 2005.
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4. Under resolution 705 (1991), as confirmed in resolution 986 (1995), the level
of payments by Iraq to the Compensation Fund was determined at 30 per cent of all
export sales of petroleum and petroleum products, as authorized under the relevant
resolutions. The level of payments was later reduced to 25 per cent under resolution
1330 (2000). As matters stand, consistent with paragraph 21 of resolution 1483
(2003), 5 per cent of the proceeds of all export sales of petroleum, petroleum
products and natural gas from Iraq are deposited into the Compensation Fund. By
that resolution the Council provided that the percentage would remain at that level
until the Government of Iraq and the Governing Council decide otherwise.
5. At its fifty-sixth session, in June 2005, the Governing Council completed the
review of all claims received since the inception of the Compensation Commission
in 1991. The Commission reviewed and resolved a total of 2.6 million claims with
an asserted value of $352 billion. Of the resolved claims, awards of approximately
$52.3 billion were approved in respect of some 1.5 million claims from individuals,
businesses, Governments and international organizations. Payments against
approved claims are made quarterly: the most recent payment was made on 29 April
2009. A total of $27.1 billion has been paid by Iraq to date, with an outstanding
payable balance of approximately $25.2 billion.
6. With the exception of 10 awards payable to Kuwait in the order of
$25.2 billion, Iraq has fulfilled all its obligations related to payment of
compensation to all individuals and companies of various nationalities and
Governments that were affected by the occupation of Kuwait in 1990/91. Of the
10 outstanding awards payable to Kuwait, nine awards in the order of $24 billion
relate mainly to oil sector losses in Kuwait, including the cost of extinguishing the
oilwell fires, and damage to government buildings and ministries. The other award,
valued at $1.2 billion, is an environmental claim by Kuwait to be paid through the
Compensation Fund and is subject to the Follow-up Programme for Environmental
Awards.
7. The Follow-up Programme was established by Governing Council decision
258 (2005) following requests from the Government of Iraq in December 2003 for a
mechanism to monitor the financial and technical implementation of environmental
remediation projects being undertaken with approximately $4.3 billion in funds
awarded by the Compensation Commission. The administrative costs of the
Programme are paid by the participating Governments, namely the Islamic Republic
of Iran, Jordan, Kuwait and Saudi Arabia. Because of the scale and complexity of
the projects being monitored by the Programme under decision 258, the anticipated
timeline for their completion ranges from 5 to 15 years — a time span that could
outlive the claims-payment function of the Commission. The Governing Council has
therefore started to consider future arrangements with regard to its review function
under the Programme prior to the eventual disestablishment of the Commission. The
Governing Council anticipates taking a decision on the future of the Programme by
mid-2010.
8. In its decision 256 (2005), the Governing Council provided priority for
payment to successful environmental claims and other claims with outstanding
amounts less than $500 million. Given the current level of export sales of
petroleum, petroleum products and natural gas from Iraq and prevailing
international market prices for those commodities and products, revenue to the
Compensation Fund is currently approximately $110 million per month. Assuming
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that revenue to the Compensation Fund remains at or around this level, it is
projected that payments of claims with priority of payment under the payment
mechanism established by decision 256 (2005) will be completed by the second
quarter of 2010. This will leave the aforementioned nine awards to be paid in the
amount of approximately $24 billion. One of the outstanding issues is the shortfall
to the Compensation Fund as a result of oil barter and sales of oil and oil products
outside the mechanism of the Development Fund for Iraq. At the sixty-seventh
session of the Governing Council, held on 28 and 29 April 2009, the shortfall was
noted to be $141.5 million, pending release of the audit of the Development Fund
for the year ending 31 December 2008. At the same session, the Governing Council
also discussed the need to have proper arrangements in place after the expiry of the
mandate of the Development Fund.

9. At its sixty-fourth session, in October 2007, the Governing Council considered
a request made by the Government of Iraq to reduce the level of Iraq’s contribution
to the Compensation Fund. In its review of and conclusion on the issue, the
Governing Council decided against any change in the level of Iraq’s contribution,
thus maintaining it at 5 per cent. In reaching that conclusion, the Governing Council
further recalled that, in establishing the Follow-up Programme for Environmental
Awards under decision 258 (2005), the Council had taken into consideration the
request by the Government of Iraq that the Governing Council monitor the use of
those awards and transparency in expenditures. The Governing Council noted that a
change in the level of contribution could delay a number of projects that are part of
the Programme, and thus delay implementation of the Programme as a whole.
10. In addition, the Governing Council, at its sixty-fifth and sixty-sixth sessions,
in April and October 2008, noted the willingness of both the Government of Iraq
and the Government of Kuwait to meet under the auspices of the Compensation
Commission to discuss the approximately $24 billion in unpaid awards that will
remain outstanding after the payment of environmental awards and awards less than
$500 million. The Governing Council encouraged the Governments to commence
consultations, and requested the Executive Head to attend and facilitate the
meetings.
11. In a letter dated 7 December 2008 from the Prime Minister of Iraq addressed to
the President of the Security Council, the Government of Iraq asked the Security
Council to review its resolutions related to the payment of 5 per cent into the
Compensation Fund with a view to reducing the percentage as much as possible, as
the continued payments at that level created a financial burden for Iraq at a time
when it was in dire need of those funds to rebuild its infrastructure. However, in a
letter dated 10 March 2009 from the Prime Minister of Iraq to the President of the
Security Council, the Government of Iraq acknowledged that payment of
compensation is one of its outstanding obligations and indicated its willingness to
engage in bilateral discussions with Kuwait to bring this mandate to a close. The
Government of Iraq, citing the ongoing financial crisis and significant amounts paid
to the Compensation Fund, requested that serious consideration be given to
“reducing the level of deduction to 1 per cent of Iraqi oil revenues” if not
“annulling” the payments altogether. At the time of the writing of this report, it is
the understanding of the United Nations Secretariat that this remains the position of
the Government of Iraq.
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12. The Government of Kuwait, in a letter to the President of the Security Council
dated 23 March 2009, emphasized its view that Iraq should fulfil its obligations to
pay compensation and that 5 per cent of Iraq’s oil proceeds should continue to be
deposited into the Compensation Fund. Kuwait also confirmed its commitment to
discussing the $24 billion that will remain outstanding after payment of the
environmental awards, but it maintained its position that this must be done under the
auspices of the Compensation Commission.
13. The Governing Council held its most recent session on 28 and 29 April 2009
and noted its disappointment that the consultations between Iraq and Kuwait had yet
to take place at that time. However, the Council expressed its cautious optimism for
progress in the light of the statement made by the delegation of Kuwait, reiterating
its continued willingness to enter into discussions with Iraq. The Governing Council
also noted the statement made by the delegation of Iraq at the opening plenary
meeting that the Government of Iraq had mandated a delegation headed by the Iraqi
Vice-Minister for Foreign Affairs, Mohammed Hammoud Bedan, to commence
negotiations with Kuwait under the auspices of the Compensation Commission.
14. The first consultations of delegations from Iraq and Kuwait were held in
Amman on 19 and 20 May 2009, in the presence of the Executive Head of the
Compensation Commission secretariat, who facilitated the meeting. Iraq’s opening
position was that the remaining $24 billion obligation should be removed in its
totality, a position that Kuwait did not consider a good starting point. The
delegations had a preliminary discussion regarding possible alternatives which
might involve investment of the remaining unpaid compensation in infrastructural
and mutually beneficial projects in Iraq. Both delegations agreed that it was
necessary and useful to continue the consultations and that the next meeting should
be held after the submission to the Council of the report pursuant to paragraph 5 of
resolution 1859 (2008).

In that regard, I note the recent visit to Kuwait of the
Speaker of Iraq’s Parliament and the discussions he had with his counterpart on a
possibility of converting the outstanding payments into investments. I strongly
encourage continuation of active discussions on alternative solutions that would
help Iraq to meet its reconstruction needs and be beneficial to the region as a whole.
B. Iraq-Kuwait Boundary Maintenance Project
15. The Iraq-Kuwait Boundary Maintenance Project is a stand-alone project
concerned with the maintenance of the physical representation of the international
boundary between Iraq and Kuwait, as recommended by the United Nations Iraq-
Kuwait Boundary Demarcation Commission and confirmed by the Security Council
in resolution 833 (1993). Although mainly of a technical nature, the project has a
larger purpose of confidence-building between two formerly warring neighbouring
States. It also has a capacity-building aspect so that Iraq and Kuwait will be
technically able to maintain their common border according to international
standards in the future. The Department of Peacekeeping Operations is the lead
Department for this project, in close collaboration with the Cartographic Section of
the Department of Field Support.
16. Between 1991 and 1994, 106 boundary pillars and 28 intermediate markers
were constructed along the border to indicate the land boundary between the two
States. The United Nations Iraq-Kuwait Boundary Demarcation Commission
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recommended that the Secretary-General establish a mechanism to ensure ongoing
maintenance of the pillars and markers. The established United Nations mechanism
for continuing maintenance was to remain in effect until other technical
arrangements were made between Iraq and Kuwait for the purpose of maintaining
the physical representation of their common boundary.

17. The Commission further recommended that the pillars be inspected and
maintained annually and that Iraq and Kuwait share the costs of maintenance of the
boundary. Until 2003, maintenance of the pillars, which included the repair and
installation of additional intermediate pillars, was carried out by the United Nations
Iraq-Kuwait Observation Mission (UNIKOM); after the withdrawal of the Mission
in March 2003, that responsibility was assumed by the Department of Peacekeeping
Operations through the Iraq-Kuwait Boundary Maintenance Project.
18. In February 2006, the United Nations team for the Iraq-Kuwait Boundary
Maintenance Project undertook an assessment mission with the participation of Iraqi
and Kuwaiti technical teams and financed through the joint Iraq-Kuwait Trust Fund
for Border Issues, which is funded equally by the Governments of Iraq and Kuwait.
A summary of the assessment mission’s findings was presented to the Security
Council during informal consultations on 17 April 2006 and the assessment
mission’s report was conveyed to the Permanent Missions of Iraq and Kuwait on
11 May 2006. The report provided the mission’s findings on the condition of the
physical representation of the boundary, presented recommendations for the
boundary’s maintenance, and described the work to be carried out in Phase II
(Preparations for boundary maintenance) and Phase III (Field maintenance).
19. The maintenance work was originally scheduled to take place late in 2006. The
Secretariat’s preparatory work has been completed, but the field maintenance work
has had to be postponed several times, first in 2007 and then again in 2008, mainly
because several buildings along the boundary need to be removed, particularly at the
town of Umm Qasr, between border pillars 104a and 106, where the required
inter-visibility between boundary pillars is blocked, and the inhabitants of those
buildings need to be resettled.
20. During meetings of the United Nations team for the project with Iraqi and
Kuwaiti technical teams from 21 to 23 June 2007 in New York and from 21 to
23 October 2008 in Kuwait City, representatives of both States expressed their
commitment to further implement the recommendations of the 2006 assessment
report. The participants agreed that the final phase, Phase III, of the boundary
maintenance project (field maintenance) would commence on 15 September 2009,
provided that the Governments of Iraq and Kuwait confirmed to the Secretariat their
agreement, which both Governments have since done in notes verbales dated
1 December 2008 and 5 January 2009, respectively. Also, in a note verbale dated
9 March 2009, the Government of Kuwait stated its readiness to provide access and
security on the Kuwaiti side of the boundary. In a letter dated 10 March 2009 to the
President of the Security Council, Iraq informed the Council that a small building at
pillar 105 had been removed and that work had begun on the road parallel to the
pillars on the Iraqi side of the boundary. The letter expressed hope that the final
phase of the maintenance would be completed within the agreed timetable.
However, in a note verbale dated 14 May 2009, the Government of Iraq requested
postponement of the implementation of Phase III of the project until the
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Government of Iraq had completed implementation of the recommendations of the
2006 assessment report, without specifying a new deadline.
21. The Secretariat continues the planning for the field maintenance work.
Nonetheless, without confirmation from the Governments of both Iraq and Kuwait
of the removal of the obstacles on the boundary and of access to all the boundary
pillars, as well as of their readiness to proceed, it is difficult to establish a viable
timetable for the field maintenance (Phase III of the project). The Department of
Peacekeeping Operations sent notes verbales dated 9 June 2009 to both
Governments in response to the note verbale received from Iraq dated 14 May. The
notes verbales requested a response from both Iraq and Kuwait by 30 June agreeing
to commence Phase III of the project by 30 October, or else to make an additional
contribution of $600,000 to sustain the project. Kuwait responded positively with
two notes verbales dated 17 and 25 June, reiterating its agreement to commencing
Phase III and also requesting that the Council be briefed on the reasons for the delay
and to inform Kuwait of Iraq’s response on whether the conditions would allow the
work to commence in October 2009. To date, Iraq has not replied to the Secretariat’s
note verbale of 9 June 2009.
22. It should be noted that the delays in the implementation of the field
maintenance work have made it necessary to request additional funds from the
Governments of Iraq and Kuwait to complete the project and that the security for the
field maintenance work will now become more complex. The United Nations team
for the project will also need sufficient time to contact appropriate security forces
with the 120-day notice they will require to put in place the necessary safety and
security arrangements for the Boundary Maintenance Team on the Iraqi side of the
border. In addition, the United Nations will need sufficient time to renew the United
Nations procurement process for an engineering firm to be contracted in time for the
field maintenance work to start as planned.
23. The final phase of the boundary maintenance project can be completed as soon
as some minor conditions are met, including removal of a few buildings blocking
inter-visibility between some of the pillars. Following that, it is expected that the
Governments of Iraq and Kuwait should be in a position to establish an effective
joint mechanism, such as a boundary commission, to carry out maintenance of the
boundary bilaterally in the future. After several delays, I would like to urge the
Government of Iraq to respond positively to the note verbale dated 9 June 2009
from the Secretariat regarding the final phase of the project. Timely and successful
completion of this project will clearly demonstrate the changed nature of relations
between the two States and pave the way for normal bilateral cooperation between
them.
C. Repatriation or return of all Kuwaiti and third-country nationals
or their remains and the return of all Kuwaiti property, including
archives, seized by Iraq in 1990/91
24. The Security Council requested in paragraph 14 of resolution 1284 (1999) that
a high-level coordinator be appointed for issues regarding the repatriation or return
by Iraq of all Kuwaiti and third-country nationals or their remains, as well as the
return of all Kuwaiti property, including archives, seized by Iraq. The late
Ambassador Yuli Vorontsov served as the Coordinator from 2000 until December
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2007. He was succeeded by Ambassador Gennady Tarasov in April 2008. In addition
to the latest comprehensive report submitted in April 2009, 27 written reports have
been submitted to the Security Council since 2000. The conditions conducive to the
realization of the relevant mandate were outlined in paragraphs 16 to 18 of my
report of 8 April 2009 (S/2009/190) submitted in compliance with a letter dated
26 March 2008 from the President of the Security Council to the Secretary-General.

25. Prior to March 2003, the previous regime in Iraq repeatedly denied holding
any Kuwaiti or third-country nationals as prisoners of war. However, following the
fall of that regime in Iraq in 2003, the remains of 236 out of 605 missing persons
have been identified and their files have been closed. All identifications to date have
been made from the skeletal remains that were brought to Kuwait in 2004. Since
2004, and until recently, the security situation in Iraq has prevented search and
exhumation work at burial sites. Moreover, the identification of the remains of
missing Kuwaiti and third-country nationals is further complicated by the need to
distinguish them from the remains of tens of thousands of disappeared civilian Iraqi
nationals, a task that will require genetic identification tools. Although there have
been several handovers of property, including the handover of 24 boxes of old
currency, stamps and travellers cheques on 5 July 2009, the State archives have not
been found and their fate is not known at this time.
26. The position of Iraq regarding the mandate was outlined in a letter dated
10 March 2009 from the Minister for Foreign Affairs of Iraq, Hoshyar Zebari, to the
President of the Security Council (see S/2009/143). Among other things, the
Minister stated that Iraq had exerted every possible effort towards bringing the
humanitarian suffering to an end and that Iraq would like to see the High-level
Coordinator’s mandate terminated. According to the letter, ending the mandate
would not in any way affect the continuing cooperation of Iraq with Kuwait on
either the bilateral level and or in the framework of the Tripartite Commission.
27. In a communication to me dated 10 February 2009 and referred to in paragraph
19 of my report (S/2009/190), the Deputy Prime Minister and Minister for Foreign
Affairs of Kuwait, Mohammad Al-Sabah Al-Salem Al-Sabah, regretted that for
several years the files had witnessed no perceptible progress, especially given their
highly sensitive humanitarian and social dimensions. He expressed hope that the
United Nations would encourage Iraq to continue implementing all Security Council
resolutions issued under the item concerning the situation between Iraq and Kuwait.
The Minister expressed support for the High-level Coordinator’s efforts and pledged
full cooperation with his mission.
28. In my report of April 2009, I recommended “a confidence and cooperationbuilding
period” until June 2010 to further encourage the parties to achieve visible
and significant progress and to strengthen the patterns of their practical cooperation.
The report noted the project developed by the United Nations Assistance Mission
for Iraq (UNAMI) to build capacity in the Iraqi Ministry of Human Rights to make
progress in the search for missing persons, including thousands of Iraqi victims of
the previous regime, which will boost the ongoing efforts of the Government of Iraq
in that regard and may also benefit the recovery of missing Kuwaiti and
third-country nationals. On 16 April 2009, the Security Council decided to extend
the financing of the Coordinator’s activities for a further six months, with the
possibility of a further extension.
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29. I recognize the efforts made after 2003 which resulted in the recovery and
identification of 236 individuals and the return of some Kuwaiti property. I also
recognize that it is possible that not all remains and properties will be found and that
the search will eventually have to come to an end. I would like to encourage Iraq to
achieve further progress on the ground. In that regard, I welcome the invitation
recently extended by the Government of Iraq to the Head of the Kuwait National
Committee for Missing Persons and Prisoner of War Affairs and his team to visit
Baghdad and discuss possible means for reinforcing cooperation on this issue. The
Government of Iraq informed the Security Council of this invitation in a letter to the
President of the Council dated 16 July 2009 and I hope that this will result in
strengthening practical cooperation with Kuwait so that the objectives of the Highlevel
Coordinator’s mandate can be attained.
D. Disarmament
30. Numerous Security Council resolutions from 1990 set out a number of Iraq’s
obligations in the disarmament area, in particular in relation to nuclear, chemical
and biological weapons and ballistic missiles and adherence to specific international
disarmament treaties.
31. For the purpose of this report, Iraq’s disarmament obligations related to
chemical and biological weapons and ballistic missiles could be grouped in the
following three categories:
(a) Iraq’s obligations to provide support to and cooperate with the United
Nations Special Commission and the United Nations Monitoring, Verification and
Inspection Commission (UNMOVIC);
(b) Iraq’s obligations to achieve specified goals, for example, the
destruction, removal and rendering harmless, under international supervision, of
prohibited items or the adherence to specified international disarmament
agreements;
(c) Iraq’s obligations for which implementation criteria were not defined by
the Security Council, for example, prohibitions or limitations on specified activities
in the biological area.
32. Most of Iraq’s obligations under paragraph 31 (a) above cover activities
related to the verification, monitoring and inspection rights of the Special
Commission or UNMOVIC, including submissions by Iraq of various declarations,
notifications, reports, requests to conduct certain activities, acceptance of inspection
teams, provision of access, services and support and other undertakings to facilitate
the implementation of the mandates of the Special Commission and UNMOVIC.
The mandate of UNMOVIC under the relevant resolutions was terminated by the
Security Council in its resolution 1762 (2007), adopted on 29 June 2007.
33. As for the obligations referred to in paragraph 31 (b) above, resolution 687
(1991) requires Iraq to destroy, remove or render harmless, under international
supervision, proscribed items. At the time of the termination of their respective
mandates, neither the Special Commission/UNMOVIC nor the International Atomic
Energy Agency (IAEA) had provided a report that Iraq had completed all actions
contemplated in relevant paragraphs of the resolution. However, by resolution 1762
(2007) the Council recognized that the continued operations of UNMOVIC and the
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IAEA Iraq Nuclear Verification Office were no longer necessary to verify Iraqi
compliance with its obligations under the relevant resolutions. In resolution 1762
(2007) the Council also noted a joint letter dated 28 June 2007, from the
governments of the United States of America and the United Kingdom of Great
Britain and Northern Ireland, annexed to the resolution, stating that all appropriate
steps had 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 kilometres and (b) all known elements of Iraq’s
programmes established to research, develop, design, manufacture, produce,
support, assemble and employ such weapons and delivery systems, subsystems and
components thereof. The Council in resolution 1762 (2007) further noted a letter
dated 8 April 2007 from the Minister for Foreign Affairs of Iraq to the President of
the Security Council, in which Iraq declared that it was joining the global
democratic community in its support for the international non-proliferation regime.

34. As for other obligations referred to in paragraph 31 (b) above, Iraq was also
required to adhere to a number of disarmament and non-proliferation treaties,
including the Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their
Destruction; the Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their Destruction; and an
additional protocol to its safeguards agreement. In response to the requirement of
resolution 1762 (2007), Iraq provided a report on the progress made in adhering to
all applicable disarmament and non-proliferation treaties and related international
agreements (S/2008/350, dated 29 May 2008). Iraq became a party to the Biological
Weapons Convention on 19 June 1991 and a party to the Chemical Weapons
Convention on 13 January 2009. Following Iraq’s accession to the Chemical
Weapons Convention, the secretariat of the Organization for the Prohibition of
Chemical Weapons has processed and analysed Iraq’s declarations and continues its
work with Iraqi representatives with a view to due implementation of the
Convention. At the fifty-seventh session of the Executive Council of the
Organisation for the Prohibition of Chemical Weapons, held in The Hague from 14
to 17 July, the Director General of that Organization commended in his statement
the forthcoming and cooperative attitude of the Iraqi authorities in that regard. Iraq’s
obligations under Security Council resolutions not to develop, construct or acquire
chemical and biological weapons are similar to “general obligations” of a State
party to the Chemical Weapons Convention or the Biological Weapons Convention,
in particular with regard to the scope of prohibited activities. In the missile area,
however, there is no multilateral, universally applicable agreement prohibiting Iraq
from using, developing, producing or acquiring ballistic missiles with a range
greater than 150 kilometres.
35. As for the obligations referred to in paragraph 31 (c) above, the Security
Council established a number of obligations that prohibit or restrict Iraq from
conducting specific activities. The Council has not defined implementation criteria
for them or linked their validity to the existence of verification bodies. Under the
plan for ongoing monitoring and verification of Iraq’s compliance with relevant
parts of section C of resolution 687 (1991), a specific prohibition is imposed on Iraq
in regard to:
• “Conduct any activities in the field of micro-organisms and toxins except by
civilian personnel not in the employ of any military organization. Such
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activities shall be conducted openly; no classified or secret programmes or
activities shall be permitted” (S/22871/Rev.1, para. 38 (b)).
• “Conduct activities on diseases other than those indigenous to or immediately
expected to break out in its environment” (S/22871/Rev.1, para. 38 (c)).
• “Possess at any one time more than one facility having a laboratory (unit)
meeting the criteria for a ‘maximum containment laboratory’ as specified in
the 1983 World Health Organization Laboratory Biosafety Manual, such as
those designated as biosafety level 4 (BL4) or P4 or equivalent standard. Iraq
shall not possess at any one time more than two facilities having a laboratory
(unit) meeting the criteria for a ‘containment laboratory’, such as those
designated as BL3 or P3 or equivalent standard” (S/22871/Rev.1, para. 38 (e)).
36. Similarly, neither resolution 1762 (2007) nor any subsequent resolutions of the
Council have specifically addressed the prohibition contained in paragraph 3 (f) of
resolution 707 (1991) requiring that Iraq halt all nuclear activities of any kind,
except for use of isotopes for medical, agricultural or industrial purposes, until the
Council determines that Iraq is in full compliance with that resolution and with
paragraphs 12 and 13 of resolution 687 (1991) and IAEA determines that Iraq is in
full compliance with its safeguards agreement with the Agency.
37. For 2008, the IAEA secretariat found no indication of the diversion of declared
nuclear material from peaceful nuclear activities in Iraq and, on this basis, the IAEA
secretariat concluded for Iraq that, in 2008, declared nuclear material remained in
peaceful activities. The safeguards conclusions for 2009 will be made available to
the IAEA Board of Governors prior to its June 2010 meeting. The Government of
Iraq signed an additional protocol to its comprehensive safeguards agreement with
IAEA on 9 October 2008. Iraq has informed the United Nations that the ratification
of that protocol is now pending before the Parliament of Iraq. Following the entry
into force of the protocol and its full implementation, IAEA could provide credible
assurance regarding the absence of undeclared nuclear material and activities in
Iraq.
38. The Constitution of Iraq contains Iraq’s commitment to the non-proliferation,
non-development, non-production and non-use of nuclear, chemical and biological
weapons and associated equipment, material and technologies for use in the
development, manufacture, production and use of such weapons, as well as delivery
systems. I welcome Iraq’s efforts to accede to the international conventions and
other instruments regarding weapons of mass destruction and related materials and
technologies and encourage the Government of Iraq to continue this process. It is
my hope that the Security Council will review Iraq’s outstanding disarmament
obligations and restrictions under its relevant resolutions in view of these facts and
help Iraq to close this difficult chapter of its history.
39. In connection with prohibitions on conventional weapons, the Security Council
decided in paragraph 21 of resolution 1546 (2004) that the prohibitions related to
the sale or supply to Iraq of arms and related materiel under previous resolutions
shall not apply to arms and related materiel required by the Government of Iraq. The
Council further stressed the importance for all States to abide strictly by those
provisions and noted the significance of Iraq’s neighbours in that regard. The
remaining prohibitions on the supply of arms to Iraq are not accompanied by a
Security Council mechanism to oversee implementation of those particular
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measures. However, the Council has called upon the Government of Iraq to ensure
that appropriate implementation procedures are in place. Such procedures are
essential for continued consolidation of the security situation in Iraq.
E. Development Fund for Iraq and the International Advisory and
Monitoring Board

40. The Development Fund for Iraq was established in 2003 for the purpose of
depositing proceeds from all export sales of petroleum, petroleum products and
natural gas from Iraq, previously frozen Iraqi financial assets transferred by all
Member States, as well as transferred balances from the oil-for-food programme.
The Security Council also decided in 2003 that petroleum, petroleum products and
natural gas originating in Iraq, as well as proceeds from the sale of those products,
and the other aforementioned assets transferred to the Development Fund, shall be
immune from legal proceedings against them with the exception of liabilities
connected to environmental damage claims. In 2004, the Security Council further
specified that the privileges and immunities shall not apply to any final judgement
arising out of a contractual obligation entered into by Iraq after 30 June 2004.
41. The International Advisory and Monitoring Board of the Development Fund
for Iraq was also established in 2003 with the mandate to provide independent and
international oversight and, through independent auditors, the audit of Iraqi oil
operations and export revenues and of the use of the Fund’s resources. The Board
consists of the representatives of the Secretary-General of the United Nations, the
Managing Director of the International Monetary Fund, the Director-General of the
Arab Fund for Social and Economic Development and the President of the World
Bank.
42. The mandate of the Advisory Board, as well as the privileges and immunities
relating to petroleum and petroleum products and the proceeds deposited in the
Development Fund for Iraq, were extended until 31 December 2009 under Security
Council resolution 1859 (2008).
43. From its inception until 31 December 2008, the Development Fund for Iraq
held the proceeds of oil and oil product export sales ($165.1 billion) and transferred
balances from the oil-for-food programme ($10.4 billion) and other frozen Iraqi
funds ($1.5 billion). Since its inception, the Advisory Board has held 24 meetings;
the next meeting is to be held in Vienna on 22 and 23 July 2009. The proceedings,
relevant decisions and reports of the Advisory Board are publicly available at the
website, www.iamb.info.
44. Since 2004 a representative of the Government of Iraq has held a seat on the
International Advisory and Monitoring Board and participated in all the meetings of
the Board. In June 2006, the Chairman of the Board wrote to the Government of
Iraq regarding the establishment of an Iraqi oversight body, to take over the
responsibilities of the Board when appropriate. In October 2006, the Government of
Iraq informed the Board of the decision of the Council of Ministers of Iraq to
establish the Committee of Financial Experts, to be chaired by the President of
Iraq’s Supreme Board of Auditors. In April 2009, the Board wrote to the
Government of Iraq to reiterate its view that the Committee of Financial Experts is
ready to assume the oversight responsibilities and conduct competent and
independent oversight of the Development Fund for Iraq.
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45. In accordance with the requirements pursuant to resolution 1859 (2008), the
United Nations Controller, as my Representative to the International Advisory and
Monitoring Board, briefed the Security Council on the activities of the Development
Fund for Iraq and the Board on 16 April 2009. A written report to the Council on the
same subject, including on progress made in strengthening financial and
administrative oversight of the Fund, is tentatively scheduled to be issued early in
August 2009.
46. At the last meeting, held in Amman on 2 and 3 April 2009, the Board noted
progress but also reiterated its concerns that more needed to be done to implement
previous recommendations to strengthen the system of internal controls. In
particular, this included the comprehensive implementation of a fully operational
control and measurement system over the production, distribution and export sales
of oil, a sound financial management system and effective measures to fight and
prevent corruption.
47. I recognize the view of the International Advisory and Monitoring Board that
the Iraqi Committee of Financial Experts is ready to assume the oversight
responsibilities and conduct competent and independent oversight of the Fund. As
the Security Council prepares to discuss this matter, including the mandates of the
Fund and the Board at the end of 2009, it will be important to ensure that a
mechanism for payments to the Compensation Fund be considered, should such a
requirement still be in effect at that time.
F. Residual activities of the oil-for-food programme
48. By paragraph 1 of resolution 986 (1995), the Council authorized States,
notwithstanding the relevant provisions of resolution 661 (1990), to permit the
import of petroleum and petroleum products originating in Iraq. Payment of
purchases of Iraqi petroleum and petroleum products were to be deposited directly
into an escrow account to be established by the Secretary-General (the Iraq
Account) to meet the humanitarian needs of the Iraqi population until Iraq’s
fulfilment of the relevant Security Council resolutions. This arrangement later
became known as the “oil-for-food programme”.
49. Pursuant to the programme the Secretary-General was requested to use the
funds deposited in the Iraq Account to finance humanitarian contracts provided that
(a) each export of goods was at the request of the Government of Iraq, (b) the
Government of Iraq effectively guaranteed their equitable distribution, and (c) the
Secretary-General received authenticated confirmation that the exported goods
concerned had arrived in Iraq.

50. Section 25 of the memorandum of understanding between the Secretariat of the
United Nations and the Government of Iraq signed in 1996 on the implementation of
Security Council resolution 986 (1995) provided therefore that the arrival of goods
in Iraq purchased under the programme would be confirmed by independent
inspection agents to be appointed by the Secretary-General and that no payments
could be made until the independent inspection agents provided the
Secretary-General with authenticated confirmation that the exported goods had
arrived in Iraq. Sections 36 and 37 of the procedures to be employed by the Security
Council Committee established by resolution 661 (1990) concerning the situation
between Iraq and Kuwait in the discharge of its responsibilities as required by
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09-42002 13
paragraph 12 of resolution 986 (1995) established further that following
confirmation of arrival the bank holding the Iraq Account (BNP Paribas) would
effect payment under any letter of credit only if, among other things, the
standardized confirmation of arrival had been provided.
51. The Security Council in resolution 1483 (2003) requested that the Secretary-
General terminate and hand over the operational activities of the programme as well
as the relevant documentation to the Coalition Provisional Authority by
21 November 2003. Nevertheless, following the adoption of Security Council
resolution 1483 (2003), 3,009 contracts, with an approximate value of $8 billion,
were considered essential for the reconstruction and/or humanitarian needs of the
Iraqi people and were, therefore, “prioritized”. Thus, as from 22 November 2003,
the United Nations retained the administration of the letters of credit associated with
the aforementioned 3,009 contracts and the Coalition Provisional Authority took
over the administration of the process for the issuance of confirmations of arrival
from 22 November 2003 to 30 June 2004. On 1 July 2004, pursuant to Security
Council resolution 1546 (2004), the responsibility for the administration of the
process for the issuance of confirmations of arrival was transferred to the Interim
Government of Iraq and on 8 October 2004 to the Government of Iraq.
52. As noted in the successive status reports the Secretary-General submitted to
the Security Council on the programme, following the transfer of responsibilities for
the issuance of confirmations of arrival to the Government of Iraq, progress in
providing confirmations has been slow. Consequently, BNP Paribas has been unable
to make payments to all suppliers that claim to have delivered goods in Iraq. The
Secretary-General and the Security Council have repeatedly urged the responsible
authorities of the Government of Iraq to process confirmations of arrival promptly,
as appropriate, so that payments could be made to suppliers. In an effort to minimize
the number of outstanding letters of credit, the Secretariat has engaged in a thorough
examination of the files. Moreover, in my letter dated 7 December 2007 to the
President of the Security Council (S/2007/725), I proposed the establishment of a
Working Group composed of representatives of the Secretariat, the Government of
Iraq and the Central Bank of Iraq. The last meeting of the Working Group was held
in June 2008, as reported in the note accompanying my letter to the President of the
Security Council dated 25 July 2008 (S/2008/492).
53. As a result of these efforts, as at 30 June 2009, the number of outstanding
letters of credit has been reduced to 81, with an aggregate value of $312 million. I
welcome progress in reducing the number of letters of credit for which the
confirmation of arrival is still pending. With only 81 letters of credit outstanding for
payment, I urge the responsible authorities of the Government of Iraq to redouble
their efforts and to process confirmations of arrival promptly, as appropriate, so that
payments can be made to suppliers. In that regard, I look forward to an orderly and
prompt conclusion of all residual activities under the programme and the transfer of
remaining funds from the Iraq Account to the Development Fund for Iraq.
54. Pursuant to Security Council resolution 1483 (2003), it was established that
unencumbered funds in the Iraq Account would be transferred to the Development
Fund for Iraq. To date, the United Nations has transferred a total of $10.42 billion to
the Development Fund for Iraq. As at 30 June 2009, the Iraq Account contains
$915 million ($197 million and €510 million held in the euro sub-account with an
equivalent amount of $718 million (at a rate of $1.4064)). Of the total amount of
S/2009/385
14 09-42002
$915 million, approximately $312 million is currently held in the cash collateral
portion of the account as encumbered funds to cover claims of delivery made by
suppliers and the remaining amount of $603 million is currently held in the
non-collateral portion of the account as unencumbered funds corresponding to the
following:
(a) $187 million as a reserve for any unanticipated claims until such date as
all unresolved issues relating to the programme are finally resolved pursuant to
paragraph 16 of the note accompanying the former Secretary-General’s letter to the
President of the Security Council dated 10 July 2006 (S/2006/510);
(b) $225 million originally held in the Iraq Account as collateral in respect of
expired letters of credit which have not been transferred to the Development Fund
for Iraq pending the resolution of claims of delivery from suppliers in those cases
where the Government of Iraq has not issued authentication documents pursuant to
the notes accompanying my letters to the President of the Security Council dated
25 July 2007 (S/2007/476), 7 December 2007 (S/2007/725) and 23 January 2008
(S/2008/41);
(c) $146 million corresponding to recently cancelled letters of credit, interest
earned on the investment of the funds and unrealized gains or losses from the
fluctuations of the euro against the United States dollar.
55. In paragraph 18 of the note accompanying my letter to the President of the
Security Council dated 25 July 2008 (S/2008/492), reference was made to certain
alternatives for purposes of concluding all outstanding issues under the programme
which had been considered by the Working Group at the meetings held in Amman in
June 2008. The Working Group considered, among other things, the establishment
of a dispute resolution mechanism — as described in my letter to the President of
the Security Council dated 7 December 2007 (S/2007/725) — or a simplified
version thereof.

56. In view of the progress described in my last status report to the President of
the Security Council, dated 1 May 2009 (S/2009/230), including the considerable
decrease in the number of outstanding letters of credit mentioned in paragraph 53
above, some of the alternatives considered by the Working Group at the time may no
longer be appropriate. However, the Security Council may wish to consider other
possibilities for the orderly and prompt conclusion of all residual activities under
the programme at the appropriate time. Irrespective of the timing and manner
selected by the Security Council for concluding all outstanding issues under the
programme, it would be particularly important that the Council address the need for
the Government of Iraq to provide a comprehensive indemnity with regard to all
activities of the Organization, its representatives and agents in connection with the
programme since its inception and with regard to the funds that have been
transferred and will be transferred to the Development Fund for Iraq (see, in this
regard, the Secretary-General’s letter to the President of the Security Council dated
10 July 2006 (S/2006/510) and my letter to the President of the Security Council
dated 25 July 2008 (S/2008/492)). The conclusion of the outstanding activities
under the programme should also be subject to the availability of sufficient funds
for the Organization to meet the costs and expenses that have been incurred or may
be incurred in future in connection with the programme, including the costs and
expenses associated with the winding-down of the programme and the costs and
S/2009/385
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expenses arising from the United Nations cooperation with Member States in
respect of investigations and proceedings related to the programme.
G. Security Council Committee established pursuant to
resolution 1518 (2003)
57. The Security Council Committee was established pursuant to resolution 1518
(2003) on 24 November 2003 to continue to identify, in accordance with paragraphs
19 and 23 of resolution 1483 (2003), individuals and entities whose funds, other
financial assets or economic resources should be frozen and transferred to the
Development Fund for Iraq. According to paragraph 23 of resolution 1483 (2003),
the freeze and transfer apply to funds, other financial assets or economic resources
of individuals and entities associated with the former Iraqi regime, that is, funds,
other financial assets or economic resources removed from Iraq or acquired by
Saddam Hussein or other senior officials of the former Iraqi regime and their
immediate family members, including entities owned or controlled, directly or
indirectly, by them or by persons acting on their behalf or at their direction; as well
as to funds, other financial assets or economic resources of the previous
Government of Iraq or its state bodies, corporations, or agencies, located outside
Iraq.
58. Although the Committee has not met since December 2005, it continues to
consider through a no-objection procedure all relevant issues brought to its
attention, including requests for the addition of names to and removal of names
from its assets transfer list. In 2007, the Committee received communications from
Iraq and other States containing requests to list five individuals and de-list three
individuals, which are still under consideration by the Committee. In 2008, the
Committee considered communications from the Focal Point for De-listing
established pursuant to resolution 1730 (2006) and relevant States regarding
requests for de-listing submitted by an individual and an entity. The Committee’s
deliberations were concluded with the individual and the entity remaining on the
lists. The Committee continues to receive communications from States regarding the
implementation of the above-mentioned measures.
59. As at 26 May 2009, the Committee’s list of individuals identified pursuant to
the relevant resolutions contains 89 names, and the list of entities contains
208 names.
H. Other relevant mandates
60. In resolution 899 (1994), the Security Council addressed the matter of the Iraqi
private citizens and their assets which remained on Kuwaiti territory following the
demarcation of the international boundary between Iraq and Kuwait. The Council
decided therein that the compensation payments to be made pursuant to the
arrangements described in the Secretary-General’s letter of 22 February 1994
(S/1994/240) may be remitted to the private citizens concerned in Iraq,
notwithstanding the provisions of resolution 661 (1990). In accordance with an
arrangement reached on 22 September 1993 between the United Nations and
Kuwait, the latter paid in full into a trust fund created for the purpose of
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compensation. As it was not possible to conclude payment arrangements under the
previous Iraqi regime, the compensation amount remained in the trust fund.

61. On 28 March 2007, the Permanent Mission of Iraq informed the Secretariat
that the Council of Ministers of Iraq had decided to establish a team from the
relevant ministries headed by a representative of the Council of Ministers to
distribute compensation to the Iraqi farmers concerned. In notes verbales dated
4 February and 26 March 2008, the Permanent Mission of Iraq requested that the
total amount of compensation and the interest be deposited in the account of the
Development Fund for Iraq at the Federal Reserve Bank of New York. The
Department of Political Affairs is currently consulting the Office of the Legal
Counsel on the appropriate course of action and will contact the Governments of
Iraq and Kuwait. The concurrence of the Security Council on the proposed
arrangement will be sought. I therefore hope that the issue will be settled in the near
future.
62. The Security Council in resolution 1500 (2003) decided to establish the United
Nations Assistance Mission for Iraq (UNAMI) to implement the mandate outlined in
resolution 1483 (2003). The Mission’s mandate was subsequently revised in
resolutions 1511 (2003), 1546 (2004) and 1770 (2007); in the last two the Council
requested that the United Nations implement its mandate in Iraq in close
consultation with the Government of Iraq. Resolution 1830 (2008) extended the
present UNAMI mandate until 6 August 2009. At the Security Council meeting held
on 19 June 2009, members of the Council and Iraq expressed their appreciation for
the continued role played by UNAMI.
63. In resolution 1483 (2003), the Security Council decided that all Member States
should take appropriate steps to facilitate the safe return to Iraq of Iraqi cultural
property and other items of archaeological, historical, cultural, rare scientific and
religious importance illegally removed from Iraq since the adoption of resolution
661 (1991), including by establishing a prohibition on trade in or transfer of such
items or items suspected to be in that category. The Council also called upon the
United Nations Educational, Scientific and Cultural Organization, INTERPOL and
other international organizations to assist in the implementation of the above.
III. Observations
64. The present report presents the facts relevant for the Council’s consideration
and appropriate decisions, as requested by the Council in paragraph 5 of resolution
1859 (2008). However, I also wish to submit several observations on the issues at
hand.
65. Since the invasion of Kuwait by the regime of Saddam Hussein in 1990, the
people of both Iraq and Kuwait have suffered two major wars and serious
humanitarian, political, socio-economic and environmental consequences. After
almost two decades, the impact of those events continues to be felt in Iraq and the
region. Despite much progress, the situation there has yet to be normalized fully.
Today, Iraq is gradually emerging from this period and I understand the desire of the
people of Iraq for their country to regain its rightful place in the community of
nations. The peace, stability and economic prosperity of the region are vital not only
to the countries in the region but to the whole world.
S/2009/385
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66. This report identifies a number of the outstanding issues concerning relations
between Iraq and Kuwait. In preparing this report, I have taken into account the
views of both Governments and tried to reflect them in the report in order to enable
the Security Council to take necessary decisions. I am pleased to note that the
Governments of Iraq and Kuwait have been making progress towards the resolution
of some of these issues despite the painful legacy of the past. Indeed, it is the
responsibility of both countries to work together as neighbours to expeditiously
resolve the remaining issues between them. For the aim is not just to achieve a
closure and deal with deep wounds, but to create a solid basis for future generations
of the region, a region that has been blessed with vast resources, much of which
have been squandered in futile wars. A high degree of political will on both sides is
still required to achieve this. On the basis of my meetings with the representatives
of Iraq and Kuwait, I have every confidence that their respective Governments are
fully committed to the path of peace and lasting reconciliation. The two States
should consider innovative steps for resolving the outstanding issues between them
in a spirit of generous compromise and understanding for each other’s concerns. By
doing so, they will mark the dawn of a new era in their relationship.
67. The outstanding issues under consideration in this report are by no means
limited to those related to Iraq and Kuwait. The United Nations, and I personally,
have been supportive of the efforts by the Government of Iraq to normalize the
country’s international standing in a number of ways — from assisting in capacitybuilding
and debt reduction under the framework of the International Compact with
Iraq to the United Nations assistance towards a regional dialogue. Iraq continues to
bear the primary responsibility for the implementation of the relevant Security
Council resolutions. However, the Security Council should also take into account
the efforts and progress made by the Government of Iraq since 2003 in creating a
stable nation, at peace with itself and its neighbours. It is important to recognize that
the Iraq of today is very different from Iraq prior to 2003. It is my hope that the
Security Council will consider this report with a view to taking appropriate
decisions that would help Iraq to fulfil its outstanding obligations in a timely
manner.
68. As the security situation in Iraq gradually improves, the focus in Iraq is rightly
switching to the issues of service delivery, employment, reconstruction and
development. The needs in Iraq are enormous and the Government of Iraq is faced
with multiple priorities. I am grateful to all States that have already extended
assistance to Iraq through debt reduction, direct aid, loans or grants, and encourage
others to do the same as the outcome of these efforts will determine whether current
gains in Iraq will translate into long-term stability. Iraq has an obligation to make
contributions to the Compensation Fund under the relevant resolutions,
contributions which it continues to make. At the same time, I have noted Iraq’s
request for the payment percentage to be lowered, if not eliminated altogether. In
that regard, I strongly encourage Iraq and other stakeholders to actively discuss
alternative solutions to the issue of outstanding compensation and debt payments,
including through investments, in the mutual interest of Iraq’s people and the region
as a whole.
69. Through my regular reports to the Security Council, I have noted the progress
achieved in Iraq since 2003. Gradually restoring Iraq to the international standing it
enjoyed before 1990 is an extension of the same process. The United Nations and I
personally remain ready to provide further assistance in this process, as requested by
the Government of Iraq and as mandated by the Security Council.


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Entre 1991 y 1994, se colocaron 106 mojones fronterizos y 28 postes
intermedios a lo largo de la frontera para indicar la frontera terrestre entre los dos
Estados.