                          Whether False Statements or Omissions in Iraq’s
                          Weapons of Mass Destruction Declaration Would
                           Constitute a “Further Material Breach” Under
                              U.N. Security Council Resolution 1441
             False statements or omissions in Iraq’s weapons of mass destruction declaration would by themselves
                constitute a “further material breach” of U.N. Security Council Resolution 1441.

                                                                                               December 7, 2002

                      MEMORANDUM OPINION FOR THE COUNSEL TO THE VICE PRESIDENT *

                 You have asked whether the Government of Iraq will have committed a “fur-
             ther material breach” of its international legal obligations, as that term is defined
             in paragraph 4 of United Nations (“U.N.”) Security Council Resolution 1441
             (“UNSCR 1441”), if it makes false statements or omissions in the declaration
             required by paragraph 3 of that resolution. 1 In paragraph 3, the Security Council
             required that Iraq report on all aspects of its weapons of mass destruction
             (“WMD”) programs. Paragraph 4 finds that false statements or omissions in Iraq’s
             paragraph 3 declaration and failure by Iraq to comply and cooperate with UNSCR
             1441 would constitute a further material breach. We conclude that false statements
             or omissions by themselves represent a material breach of the Security Council
             resolution.
                 We have addressed the meaning of U.N. Security Council resolutions regarding
             Iraq in previous opinions. See generally Authority of the President Under Domes-
             tic and International Law to Use Military Force Against Iraq, 26 Op. O.L.C. 135
             (2002) (“Iraq Opinion”); Effect of a Recent United Nations Security Council
             Resolution on the Authority of the President Under International Law to Use
             Military Force Against Iraq, 26 Op. O.L.C. 190 (2002). As the Security Council
             itself has recognized, Iraq is currently in material breach of pre-existing Security
             Council resolutions related to its development of WMD programs, its repression of
             its civilian population, and its threat to international peace and security in the
             region. S.C. Res. 1441, ¶ 1, U.N. Doc. S/RES/1441 (Nov. 8, 2002). Violation of

                 *
                   For the book edition of this memorandum opinion, some of the internet citations have been
             updated or replaced with citations of equivalent available printed authorities.
                 1
                   You have not asked, and we do not address, what actually constitutes “false statements or omis-
             sions” under paragraph 4. Our Office has not reviewed the Iraqi declaration, which is due on December
             8, 2002. We note, however, that the U.N. Security Council itself has stated that “[a]ny false statement
             or omission in the declaration” qualifies for purposes of paragraph 4 as “a further material breach.”
             Press Release, Security Council, Security Council Holds Iraq in ‘Material Breach’ of Disarmament
             Obligations, Offers Final Chance to Comply, Unanimously Adopting Resolution 1441, U.N. SC/7564
             (Aug. 11, 2002) (“UNSCR 1441 Press Release”), available at www.un.org/News/Press/docs/2002/
             SC7564.doc.htm (last visited May 10, 2012) (emphasis added).




                                                              217




227-329 VOL_26_PROOF.pdf 227                                                                                  10/22/12 11:13 AM
                               Opinions of the Office of Legal Counsel in Volume 26


         those resolutions authorizes the United States to use force against Iraq in order to
         enforce the resolutions and restore international peace and security to the region.
         Iraq Opinion, 26 Op. O.L.C. at 153-69. As we have advised, the President (who
         represents the United States in its foreign affairs) may make the determination
         whether Iraq has committed a material breach of the U.N. Security Council
         resolutions regarding Iraq. Id. at 158-61. 2

                                                             I.

            UNSCR 1441 reaffirms that the Government of Iraq is already “in material
         breach of its obligations under relevant resolutions.” S.C. Res. 1441, ¶ 1. It also
         imposes additional obligations on Iraq in order to provide it with “a final oppor-
         tunity to comply with its disarmament obligations under relevant resolutions of the
         Council.” Id. ¶ 2. Paragraph 3 of UNSCR 1441 requires Iraq to provide a new
         declaration disclosing all aspects of its WMD program within 30 days of its
         enactment. As the U.N. Security Council approved UNSCR 1441 on November 8,
         2002, the Iraqi declaration of its WMD program is due by December 8, 2002.
            Specifically, paragraph 3 requires Iraq to provide to the United Nations Moni-
         toring, Verification and Inspection Commission, the International Atomic Energy
         Agency, and the Security Council a “currently accurate, full, and complete
         declaration of all aspects of its” WMD program. Id. ¶ 3. Paragraph 4 provides

                  that false statements or omissions in the declarations submitted by
                  Iraq pursuant to this resolution and failure by Iraq at any time to
                  comply with, and cooperate fully in the implementation of, this reso-
                  lution shall constitute a further material breach of Iraq’s obligations
                  and will be reported to the Council for assessment in accordance
                  with paragraphs 11 and 12 below.

         Id. ¶ 4 (emphasis added).
             Because of its use of the word “and,” paragraph 4 might be misconstrued by
         some to provide that a “further material breach” has occurred only when Iraq both
         makes false statements or omissions and fails to comply and cooperate with the
         resolution. Under such an interpretation, the word “and” conveys only a conjunc-
         tive meaning. Therefore, false statements or omissions in Iraq’s paragraph 3
         declaration alone would not in itself constitute a further material breach. Rather,
         those false statements or omissions would have to be accompanied by some other


             2
               It is the responsibility of this Office, on behalf of the Attorney General, 28 C.F.R. § 0.25(a) & (e)
         (2002), to provide authoritative opinions for the President on all legal questions, including questions of
         international law. See Letter for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee,
         Assistant Attorney General, Office of Legal Counsel (Jan. 11, 2002).




                                                            218




227-329 VOL_26_PROOF.pdf 228                                                                                     10/22/12 11:13 AM
                  False Statements or Omissions as “Further Material Breach” Under UNSCR 1441


             action amounting to a failure to comply with UNSCR 1441 or cooperate fully with
             its implementation.

                                                              II.

                In this context, an interpretation of “and” as solely conjunctive is illogical and
             inconsistent with the text and purpose of UNSCR 1441. It is well established that
             the word “and” is capable of more than one possible construction. In some
             contexts, “and” conveys a conjunctive meaning, under which all enumerated
             conditions must be satisfied before a particular result is achieved. In other
             contexts, however, “and” is used disjunctively, in which case any one of among
             two or more conditions by itself would be sufficient to trigger a particular result.
             Whether the word “and” conveys a conjunctive or disjunctive meaning depends on
             the context. In this case, examination of the context of UNSCR 1441 demonstrates
             clearly that paragraph 4 uses “and” in the disjunctive sense. Making false state-
             ments or omissions in Iraq’s declaration of its WMD programs, without more,
             would constitute a further material breach of Iraq’s international obligations.

                                                              A.

                 Under standard approaches to legal interpretation, it has been long established
             that the word “and” may convey a disjunctive rather than a conjunctive meaning. 3
             Determining which usage was intended in a particular provision requires, as
             always, an examination of the context in which the term appears. As the Supreme
             Court has explained, in order to give effect to the intention of those who drafted a
             text, “courts are often compelled to construe ‘or’ as meaning ‘and,’ and again
             ‘and’ as meaning ‘or.’” United States v. Fisk, 70 U.S. (3 Wall.) 445, 447 (1865).
             See also Union Ins. Co. v. United States, 73 U.S. (6 Wall.) 759, 764 (1867) (“when
             we look beyond the mere words to the obvious intent we cannot help seeing that
             the word ‘or’ must be taken conjunctively”). Such constructions are permitted to
             effectuate “[t]he obvious purpose” of the provision, and are appropriate when
             “[t]he evil intended to be remedied” is “transparent.” Fisk, 70 U.S. at 447. While
             pleading for reading “and” in its common conjunctive meaning, the most recent
             edition of Sutherland’s treatise on statutory construction recognizes that
             “[d]isjunctive ‘or’ and [c]onjunctive ‘and’ may be interpreted as substitutes.”

                 3
                   Some might object that United States cases on the disjunctive meaning of “and” are not applicable
             to international law. The ordinary meaning of words, purpose, and context are relevant in international
             legal interpretation, just as they are in American practice. As the Restatement (Third) of Foreign
             Relations Law explains, “an international agreement is to be interpreted in good faith in accordance
             with the ordinary meaning to be given to its terms in their context and in the light of its object and
             purpose.” Restatement (Third) of Foreign Relations Law 325(1) (1987). See also Vienna Convention
             on the Law of Treaties, art. 31(1) (same). The reasoning of American courts in interpreting “and” is
             therefore relevant and persuasive with regard to how “and” should be read in light of its context.




                                                              219




227-329 VOL_26_PROOF.pdf 229                                                                                  10/22/12 11:13 AM
                               Opinions of the Office of Legal Counsel in Volume 26


         1A Norman J. Singer, Sutherland on Statutes and Statutory Construction § 21:14,
         at 183-88 (6th ed. 2002). 4 Federal courts of appeals, 5 federal district courts, 6 and
         state courts 7 have held that the word “and” is capable of conveying a disjunctive
         meaning. Such constructions have been applied to wills 8 and contracts 9 as well as
         statutory enactments. 10



              4
                Courts cite Sutherland’s discussion of conjunctive and disjunctive terms as authority. See, e.g.,
         Bruce v. First Fed. Sav. & Loan Ass’n of Conroe, Inc., 837 F.2d 712, 715 (5th Cir. 1988); United States
         v. Del Rio Springs, Inc., 392 F. Supp. 226, 227 (D. Ariz. 1975).
              5
                See, e.g., Peacock v. Lubbock Compress Co., 252 F.2d 892, 893 (5th Cir. 1958) (“the word ‘and’
         is not a word with a single meaning, for chameleonlike, it takes its color from its surroundings”); Cal.
         Lumbermen’s Council v. FTC, 115 F.2d 178, 185 (9th Cir. 1940) (“when the order is read as a
         complete article there is no question but that the acts prohibited [‘the purchase and the offering for
         sale’] are prohibited in the case of purchase and sale or the purchase or sale, separately or together”);
         Pitcairn v. Am. Refrigerator Transit Co., 101 F.2d 929, 937 (8th Cir. 1939) (“‘and’ is sometimes read
         as ‘or’, when necessary to effectuate an apparent intent”); Atlantic Terra Cotta Co. v. Masons’ Supply
         Co., 180 F. 332, 338 (6th Cir. 1910) (“‘and’ is frequently read as ‘or’”).
              6
                See, e.g., Matter of Velis, 123 B.R. 497, 510 (D.N.J. 1991) (“The word ‘and’ is to be accorded its
         normal conjunctive connotation, rather than treated as a synonym for the word ‘or,’ unless such strict
         grammatical construction would frustrate clear legislative intent.”), rev’d on other grounds, 949 F.2d
         78 (3rd Cir. 1991); United States v. Mullendore, 30 F. Supp. 13, 15 (N.D. Okla. 1939) (“the Courts
         have many times held that ‘and’ in a statute may be read to mean ‘or’”).
              7
                See, e.g., Mayer v. Cook, 57 N.Y.S. 94, 95 (N.Y. App. Div. 1899) (“courts have construed ‘and’
         as ‘or’”).
              8
                See, e.g., Polsky v. Cont’l Nat’l Bank of Lincoln, 110 F.2d 50, 57 (8th Cir. 1940) (“The word ‘and’
         may sometimes be substituted for the word ‘or,’ and vice versa, even in the construction of a will,
         where that is necessary to carry out the manifest intention of the testator.”).
              9
                See, e.g., In re Knepp, 229 B.R. 821, 847 (Bankr. N.D. Ala. 1999) (“It is a general rule of contract
         construction that ‘and’ can be read as ‘or’ and vice-versa under certain conditions. The words should
         not be treated as interchangeable when their accurate and literal reading does not render the sense
         dubious. . . . [T]he intent of the parties must determine whether the Court chooses to adopt this
         construction.”) (citations and quotations omitted).
              10
                 Courts have given varying degrees of presumptive weight to the standard usage of “and” in its
         conjunctive sense. Compare, e.g., Bruce, 837 F.2d at 715 (“The word ‘and’ is . . . to be accepted for its
         conjunctive connotation rather than as a word interchangeable with ‘or’ except where strict grammati-
         cal construction will frustrate clear legislative intent.”), Peacock, 252 F.2d at 893 n.1 (“The words
         ‘and’ and ‘or’ when used in a statute are convertible, as the sense may require. A substitution of one for
         the other is frequently resorted to in the interpretation of statutes, when the evident intention of the
         lawmaker requires it.”), and Rice v. United States, 53 F. 910, 912 (8th Cir. 1893) (“Undoubtedly ‘and’
         is not always to be taken conjunctively. It is sometimes read as if it were ‘or,’ and taken disjunctively
         and distributively, but this is only done where that reading is necessary to give effect to the intention of
         the legislature, as plainly expressed in other parts of the act, or deducible therefrom.”), with Geyer v.
         Bookwalter, 193 F. Supp. 57, 62 (W.D. Mo. 1961) (“In order to effectuate the intention of this testator,
         the word ‘and’ is to be construed to mean ‘or’.”), and United States v. Cumbee, 84 F. Supp. 390, 391
         (D. Minn. 1949) (construing statute “in the light of the purpose and history of the provision of which it
         is a part and the statutes to which it applies” to “give ‘and’ the meaning of ‘or’”); see also 1A C. Dallas
         Sands, Sutherland on Statutes and Statutory Construction § 21:14, at 90-91 (4th ed. 1972) (“the words
         are interchangeable . . . one may be substituted for the other, if to do so consistent with the legislative
         intent”) (quoted in Del Rio Springs, 392 F. Supp. at 227).




                                                            220




227-329 VOL_26_PROOF.pdf 230                                                                                      10/22/12 11:13 AM
                  False Statements or Omissions as “Further Material Breach” Under UNSCR 1441


                                                      B.

                The text and purpose of UNSCR 1441 unequivocally demonstrate that giving
             conjunctive meaning to the word “and” in paragraph 4 would be illogical and
             would frustrate the clear intent of the U.N. Security Council. Indeed, in a press
             release announcing its unanimous approval of UNSCR 1441, the Security Council
             stated that “[a]ny false statement or omission in the declaration will be considered
             a further material breach of Iraq’s obligations.” UNSCR 1441 Press Release, supra
             note 1. In light of “[t]he obvious purpose” of paragraph 4, Fisk, 70 U.S. at 447, we
             would likewise read the term “and” disjunctively and conclude that Iraq will be in
             “further material breach of [its] obligations” if it makes “false statements or
             omissions in the declarations submitted . . . pursuant to [paragraph 3 of] this
             resolution.” S.C. Res. 1441, ¶ 4.
                A conjunctive approach to paragraph 4, taken to its logical conclusion, is both
             untenable and impossible to reconcile with either the text or purpose of the
             resolution. Under a conjunctive construction, the Government of Iraq would not be
             in “further material breach of [its] obligations” unless it both (1) makes “false
             statements or omissions in [its] declarations” and (2) “fail[s] . . . to comply with,
             and cooperate fully in the implementation of, this resolution.” S.C. Res. 1441, ¶ 4.
             In other words, Iraq could avoid a finding of “further material breach” simply by
             making a completely truthful and accurate declaration. Iraq could willfully refuse
             inspections and even engage in military hostilities against U.N. inspectors and the
             U.S. and allied forces protecting them. Under a conjunctive reading of “and,” Iraq
             could make a full disclosure of its existing WMD programs, and then refuse to
             disarm and instead re-double its illegal efforts to obtain such weapons and yet still
             not be in “further material breach of [its] obligations” to the Security Council. Or a
             material breach would not occur if Iraq fully cooperated with U.N. inspectors, but
             utterly failed to provide any disclosure of information related to its WMD
             programs.
                Such a result cannot be squared with the text of UNSCR 1441. Paragraph 5 and
             subsequent provisions of UNSCR 1441 detail Iraq’s specific obligations with
             respect to inspections and disarmament. Iraqi violations of these provisions, such
             as refusing to allow inspectors into Iraq, or harming inspectors, or concealing
             WMD locations and materials, would constitute a material breach of its obliga-
             tions under UNSCR 1441. Yet, under the conjunctive construction, the most
             willful violations of its inspection obligations would not constitute a “further
             material breach” so long as Iraq has not made false statements or omissions in its
             paragraph 3 declaration. Under the conjunctive approach, once Iraq satisfied its
             declaration obligations under paragraph 3 and refrained from making “false
             statements or omissions” in that declaration, Iraq would never be vulnerable to a
             finding of “further material breach of Iraq’s obligations.” Such a construction of




                                                      221




227-329 VOL_26_PROOF.pdf 231                                                                  10/22/12 11:13 AM
                               Opinions of the Office of Legal Counsel in Volume 26


         the resolution would render most of UNSCR 1441 a nullity. Only by reading
         “and” in paragraph 4 as disjunctive can we give effect to all of UNSCR 1441.
             Reading “and” to be conjunctive would also conflict with the very purpose of
         UNSCR 1441. The text of the resolution makes clear that its fundamental purpose
         is to disarm Iraq of WMD. Honest declarations and full and complete access for
         inspectors are merely a means required to meet an end. UNSCR 1441 expressly
         states that, although Iraq already “has been and remains in material breach of its
         obligations” under prior U.N. Security Council resolutions, the Council would
         “afford Iraq . . . a final opportunity to comply with its disarmament obligations.”
         S.C. Res. 1441, ¶¶ 1-2 (emphasis added). The resolution specifically notes that the
         declaration requirements of paragraph 3 are not an end in themselves, but that they
         are imposed so that Iraq might “begin to comply with its disarmament obliga-
         tions.” Id. ¶ 3. Paragraph 3’s mandate of a “currently accurate, full, and complete
         declaration” is the “begin[ning],” and thus the sina qua non, of disarmament. Id.
         ¶¶ 3-4. In light of the resolution’s clear purpose to achieve the disarmament of
         Iraq, a construction of paragraph 4 that allows Iraq to refuse to disarm and still
         avoid a finding of “further material breach” would be at odds with the text and
         structure of UNSCR 1441.
             Events surrounding the passage of UNSCR 1441 further demonstrate that the
         core purpose of the resolution is to secure Iraqi disarmament. On October 25,
         2002, President Bush made clear that the United States would not accept any
         Security Council resolution that did not make disarmament its paramount objec-
         tive. He stated that “any resolution that evolves must be one which does the job of
         holding Saddam Hussein to account. That includes a rigorous, new and vibrant
         inspections regime, the purpose of which is disarmament, not inspections for the
         sake of inspections.” 11 After the Council approved UNSCR 1441, President Bush
         stated that, “[w]ith the resolution just passed, . . . Saddam Hussein must fully
         disclose and destroy his weapons of mass destruction. . . . Any act of delay or
         defiance will be an additional breach of Iraq’s international obligations. . . . Any
         Iraqi noncompliance . . . will show that Iraq has no intention of disarming.” 12 In its
         press release announcing its unanimous approval of UNSCR 1441, the Security
         Council reiterated that the resolution merely “afford[ed]” Iraq “a ‘final opportunity
         to comply’ with its disarmament obligations.” UNSCR 1441 Press Release, supra
         note 1. That announcement also quotes U.N. Secretary-General Kofi Annan, who
         applauded the resolution and said that “[t]he goal is to ensure the peaceful
         disarmament of Iraq in compliance with Council resolutions and a better, more
         secure future for its people.” Id. John Negroponte, the United States ambassador to


             11
                The President’s News Conference with President Jiang Zemin of China in Crawford, Texas,
         2 Pub. Papers of Pres. George W. Bush 1897, 1900 (Oct. 25, 2002) (emphasis added).
             12
                Remarks on the Passage of a United Nations Security Council Resolution on Iraq, 2 Pub. Papers
         of Pres. George W. Bush 2053, 2053 (Nov. 8, 2002) (emphasis added).




                                                        222




227-329 VOL_26_PROOF.pdf 232                                                                               10/22/12 11:13 AM
                  False Statements or Omissions as “Further Material Breach” Under UNSCR 1441


             the United Nations, said that “the resolution constituted the world community’s
             demand that Iraq disclose and destroy its weapons of mass destruction. The new
             course in that effort would send a clear message to Iraq insisting it disarm or face
             the consequences.” Id. (emphasis added). These remarks demonstrate that Iraq’s
             fundamental obligation is disarmament, and that honest declarations by themselves
             cannot immunize Iraq from a finding that it has committed a “further material
             breach of [its] obligations.”
                Representatives from the other member nations of the Security Council have
             made similar statements. For example, United Kingdom representative Jeremy
             Greenstock said that “[t]he resolution made crystal clear that Iraq was being given
             a final opportunity to comply with its disarmament obligations. The regime in
             Baghdad now faced an unequivocal choice: between complete disarmament and
             the serious consequences indicated in paragraph 13 of the resolution.” Id. The
             Mexican delegate, Adolpho Aguilar Zinser, maintained that, “[i]n case of failure to
             comply, the Council would act”—apparently without regard to whether Iraq had
             given an accurate declaration free of any false statements or omissions. Id. Richard
             Ryan of Ireland explained that “[t]he resolution was about disarming Iraq,” and
             that “[t]he Council had given Iraq an opportunity to comply with its disarmament
             obligations.” Id. Bulgaria’s Stefan Tafrov similarly noted that the resolution’s
             “objective” was “the disarmament of Iraq.” Id. Ole Peter Kolby of Norway
             acknowledged “the overall objective of disarming Iraq of weapons of mass
             destruction” and that “the Council had afforded Iraq with a final opportunity to
             comply with its disarmament obligations.” Id. The President of the Council, Zhang
             Yishan of China, stated that “[t]he purpose” of the resolution “was to disarm Iraq.”
             Id. Even the Russian delegate, Sergey Lavrov, who contended that “it would not
             be seen as a violation if” Iraq took “more than 30 days” to issue its paragraph 3
             declaration, nevertheless “emphasized the need for Iraq to comply with all its
             disarmaments obligations on the basis of today’s resolution.” Id. (emphasis
             added).
                We have found no evidence, moreover, to suggest that any member nation of
             the Security Council believed that noncompliance with inspections or Iraqi refusal
             to disarm would not constitute a “further material breach” under UNSCR 1441, so
             long as Iraq provided a complete and accurate disclosure of its WMD program. In
             light of the apparent consensus that Iraq’s fundamental obligation was disarma-
             ment, it is unsurprising that no pre-enactment history adopts a conjunctive
             approach to paragraph 4 or asserts that honest declarations by themselves could
             prevent a finding of “further material breach of Iraq’s obligations.”

                                                     III.

                In conclusion, should Iraq make false statements or omissions in its paragraph 3
             declaration, Iraq would necessarily be in “further material breach of [its] obliga-




                                                     223




227-329 VOL_26_PROOF.pdf 233                                                                10/22/12 11:13 AM
                               Opinions of the Office of Legal Counsel in Volume 26


         tions.” False statements or omissions alone are enough to constitute “further
         material breach” as that term is defined in paragraph 4. An additional showing of
         noncompliance and noncooperation with the resolution is not required, because the
         word “and” in paragraph 4 has a disjunctive, rather than a conjunctive, meaning.

                                                                JOHN C. YOO
                                                        Deputy Assistant Attorney General
                                                            Office of Legal Counsel




                                                      224




227-329 VOL_26_PROOF.pdf 234                                                                10/22/12 11:13 AM
