News

The Legality of Military Action Against Iraq

Memorandum On The Question Whether Existing Security Council Resolutions Are Sufficient To Authorize The US To Take

Military Action Against Iraq

By Douglas Scott*

The Markland Group

25 March 1998

TABLE OF CONTENTS

 

I The Current Situation

 

II The Need For Valid Authorization From The Security Council

 

III The Existing Resolutions

 

IV Arguments Favouring The US Position

 

V Did The Authority Under Paragraph 2 of The November Resolution (678) Terminate With The Cease-Fire?

 

VI The Effect of Iraq’s Breach Of Its Inspection Obligations

 

VII The Scope Of Paragraph 2 Of The November Resolution (678)

 

VIII Four Additional Arguments For The US Position

 

IX Summary Of Main Conclusions

 

X If Not Military Measures, What Then?

 

Appendices

I The Current Situation

 

The crisis atmosphere over Iraq’s refusal to allow inspections appears to have been only temporarily allayed as the result of the agreement brokered by UN Secretary-General Kofi Annan on 23 February 1998 (hereinafter the "Annan Agreement").1

When the Security Council subsequently on 2 March 1998 adopted Resolution 11542 endorsing the Annan Agreement and warning Iraq of "severest consequences" for any violation, it served as a reminder that the problem cannot be regarded as solved. Although Iraq, as of this writing, appears to be cooperating satisfactorily with its obligations under the Annan Agreement, few would believe that all the remaining inspections will be completed without new troubles and confrontation. The US is currently repeating its earlier threats of military action in the event of any violation of the Annan Agreement. Secretary of State Albright spoke to the US House appropriations foreign operations sub-committee on 4 March 1998:

We are continuing our effort — through diplomacy backed by the threat of force — to see that Iraq complies with its obligations to the world community.3

The action the US has been proposing consists of a series of bombing raids on key installations in Iraq. The purpose of the action, as delineated by the US, would be to deal with the refusal of Iraq to live up to its inspection obligations which it agreed to in the cease-fire agreement following the Gulf War. The cease-fire agreement is contained in the resolution adopted by the Security Council on 3 April 1991: Resolution 687 (1991).4

Prior to the Annan Agreement, the US took the position that it was authorized to take military action of this nature against Iraq by virtue of existing resolutions of the Security Council.5 Following the adoption of Security Council Resolution 1154 endorsing the Annan Agreement, the US position changed slightly. Recent statements by high officials have indicated that, before commencing military action, the US would first discuss the matter with the Security Council. Mike McCurry, the White House Press Secretary, is quoted as saying:

. . . as a practical matter, the [US] administration would consult with the Security Council before acting against Iraq . . .6

The officials are careful not to say that the US will await approval from the Security Council. The consultations would appear to be a matter of form. Indeed, Bill Richardson, US Ambassador to the UN, has recently made it clear that the US continues to take the position that it is entitled to proceed without approval from the Security Council. (His remarks on the matter were given in the course of a television interview on 2 March 1998.7) In the meantime, the naval flotilla remains stationed in the Gulf.

The US has never issued anything in the nature of a formal statement explaining the basis of its position. In lieu of such a statement, Thomas Pickering, the US Undersecretary of State for Political Affairs, has appeared twice on an interview program and has answered questions put to him on the issue; his answers are given in Section IV of this paper. Some additional explanation of the basis for the US position can be discerned in Ambassador Richardson’s remarks during the interview noted above.

These explanations have prompted very little if any public comment. The US media, in particular, seem to have accepted without question the US position as to its legal authority. The few comments that have appeared in the media have almost all been favourable to the US position. (These comments are outlined in Section IV of this paper). Little, if anything, has appeared in the way of a rebuttal. Certainly, nothing in the nature of an expert study on the question has been published in North America.

All of this leaves the impression either that the arguments favouring the US position are so compelling as to be self-evident — or that the issue is irrelevant. This paper is an attempt to remove both these impressions.

The paper begins by addressing the question of relevancy — whether or not it actually matters if the US proceeds without authority from the UN Security Council. The paper then examines in detail the arguments for and against the US position that it already has sufficient authority under existing resolutions. The conclusion reached is that the arguments favouring the US position are unsound.

There is a concluding section offering some suggestions as to actions that could be taken by the UN Security Council at this point to deal with the threat posed by Iraq.

II The Need For Valid Authorization From The Security Council

 

At the time of the Gulf War, it is worth recalling that the US and its coalition partners, before launching the attack against Iraq, were careful to obtain authority from the UN Security Council in the form of a special resolution. The resolution that provided this authority is discussed in some detail in this paper.

This time, the US is taking the position that no such resolution is needed because the proposed military action would be justifiable on the basis of existing Security Council resolutions. Others take the view that authority for taking military action at this stage is totally absent.

By arguing that it already has authority to proceed by virtue of existing Security Council resolutions, the US appears to be acknowledging that it does in fact need at least some type of authority from the UN — whether it be clear and contemporaneous authority or implied by existing resolutions. On this point, the US is on solid ground. There is little doubt that, without valid authority from the Security Council, the US and its partners, if they take military action against Iraq, would be violating international law. Much therefore depends on whether the US is correct in asserting that it has the right to proceed without new authority from the Security Council.

It is sometimes argued that, even if the proposed military action cannot be justified on the basis of existing resolutions, it should be regarded as justifiable on the basis that the real purpose of the action is to uphold a UN Security Council resolution. This line of argument could be seen in the speech made by Canada’s Prime Minister, Jean Chrétien, to the House of Commons during the debate that preceded Canada’s announcement of support for the US military action. At that time, the Prime Minister said:

. . . Tonight I want to lay out clearly — before the people of Canada — why we believe their government should support military action if [Saddam] does not comply . . . Our allies, led by the United States, have asked that we support such a mission . . . it would mean that, when and if every other means fails, an action is taken to enforce the will of the Security Council, Canada will be counted . . . I believe it is a choice dictated by the responsibilities of international citizenship . . .8

It may seem ironic to some, but there can be no justification for using military force simply on the basis that its purpose is to uphold international law or a UN decree relating to peace and disarmament. International law does not permit countries to take the law into their own hands by administering punishment to those they consider to be violators — even when the fact of the violation is beyond doubt. Under the UN Charter, the right to take military action to quell a threat to international peace is reserved to the Security Council. No Member State is justified in using military force for the purpose of assisting the Security Council in enforcing compliance with its decrees, unless the Security Council requests such assistance. The only exception is a provision to the effect that a country is entitled to exercise a right of self-defence in order to deal with an armed attack.9 Neither the US nor any of its partners is asserting a right of self-defence in this case.

Accordingly, any attack on Iraq at this time without valid authorization from the Security Council is prohibited by the UN Charter. Article 2 of the Charter reads as follows:

Art. 2 The Organization and its Members, in pursuit of the Purposes stated in Article I, shall act in accordance with the following Principles: . . .

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

It is clear that not only would the military action be a violation if it occurs; the US is already in violation of the Charter because of the various statements made by it to the effect that it intends to use military force; these statements are clearly threats.

On the other hand, it may be argued that in situations where the UN Charter obviously fails in its purpose to deliver peace, the Member States are justified in disregarding the Charter and taking matters into their own hands. This argument is considered in Section X of this paper.

III The Existing Resolutions

 

Since the invasion of Kuwait on 2 August 1990, there have been forty-one resolutions adopted by the UN Security Council relating to Iraq up to the time of writing.10 This paper divides these resolutions into the following groups:

· 12 resolutions adopted prior to the Gulf War, of which two are selected for detailed comment because of their importance to the question discussed in this paper;

· 29 resolutions adopted after the Gulf War, of which 5 are selected for detailed comment because of their importance;

The twelve resolutions listed above, adopted before the Gulf War, are referred to in this paper in the course of considering the arguments put forth in favour of the US position. A summary of the contents of these resolutions is contained in Appendix 3 of this paper.

The Seven Key Resolutions

The seven resolutions selected for detailed discussion are reproduced in full in Appendix 2. The following is a summary of their provisions:

S/RES/665 (1990) - 25 August 1990

Called upon states deploying maritime forces to use such measures as may be necessary to halt all maritime shipping in order to inspect cargo and ensure strict implementation of Resolution 661; coordinates actions using "as appropriate" the Military Staff Committee.

S/RES/678 (1990) - 29 November 1990

Demands Iraq comply with UNSCR 660 and gives it one final "pause of goodwill"; authorizes states cooperating in multinational coalition in the Gulf to "use all necessary means to uphold and implement Resolution 660 (1990) and all subsequent relevant resolutions."

S/RES/686 (1991) - 2 March 1991

Noted the suspension of combat operations and the intention of the coalition states to bring their military presence in Iraq to an end as soon as possible; demanded that Iraq implement all previous Security Council resolutions going back to Resolution 660 (1990), and recognized that, pending such implementation, the provisions of paragraph 2 of Resolution 678 (1990) remain valid.

S/RES/687 (1991) - 3 April 1991

Established detailed measures for a cease-fire including: deployment of a United Nations Observer Unit; arrangements for demarcating the Iraq-Kuwait border; the removal or destruction of Iraqi weapons of mass destruction and measures to prevent their reconstitution, under supervision of a Special Commission and the Director General of the IAEA; and creation of a compensation fund to cover direct loss and damage resulting from Iraq’s invasion of Kuwait.

S/RES/689 (1991) - 9 April 1991

Approved the report of the Secretary-General in which he informed the Security Council that the observer unit (UNIKOM) had been deployed in the demilitarized zone thus bringing the cease-fire into effect.

S/RES/949 (1994) - 15 October 1994

Referred to recent behaviour of Iraq involving threats and intimidation against its neighbours including Kuwait, referred in particular to paragraph 2 of Resolution 678 (1990), condemned Iraq’s recent military deployment in the direction of Kuwait and demanded that Iraq not again utilize its military or other forces in a hostile or provocative manner.

S/RES/1154 (1998) - 2 March 1998

Endorsed the Memorandum of Understanding between the United Nations and Iraq dated 23 February 1998 on special procedures for the inspection of eight presidential sites in Iraq; and stressed that any violation by Iraq of its obligations under Resolution 687 (1991) would have severest consequences.

A brief explanation of the reasons for selecting these resolutions is in order:

· Resolution 678 (1990), adopted 29 November 1990 — selected for discussion because it was the resolution that specifically authorized the use of military force during the Gulf War (January - May 1991); in this resolution, the passage that was accepted by all concerned as authorizing the use of military force was ". . . to use all necessary means . . ."

· Resolution 665 (1990), adopted 25 August 1990 — selected for discussion because it is the only other resolution that specifically authorizes military action — in this case for the purpose of establishing a naval blockade against Iraq; this resolution used the following words to authorize the use of military force: ". . . to use such measures commensurate to the specific circumstances as may be necessary . . ."

· Resolution 686 (1991), adopted 2 March 1991 — selected because it includes a specific reference to Resolutions 678 (1990) and 665 (1990).

· Resolution 687 (1991), adopted 3 April 1991 — selected because it specifies the terms of the cease-fire and is mentioned by those arguing in favour of the US position.

· Resolution 949 (1994), adopted 15 October 1994 — selected because it specifically mentions Resolution 678 (1990).

· Resolution 1154 (1998), adopted 2 March 1998 — selected because those arguing in favour of the US position are referring to it.

Of the foregoing seven resolutions, two will be mentioned with particular frequency. They will be referred to on most occasions as:

· the November Resolution (678)

· the April Resolution (687).

Certain of the paragraphs contained in these resolutions are referred to on numerous occasions in this paper. They are set out here for ease of reference:

Paragraph 2 of the November Resolution (678):

2. [The Security Council . . . acting under Chapter VII of the Charter] . . . authorizes Member States cooperating with the Government of Kuwait unless Iraq on or before 15 January 1991 fully implements as set forth in paragraph 1 above the foregoing resolutions to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.

Paragraph 6 of the April Resolution (687):

6. [The Security Council . . . acting under Chapter VII] . . . notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with Resolution 678 (1990) to bring their military presence in Iraq to an end consistent with Resolution 686 (1991);

Paragraph 34 of the April Resolution (687)

34. [The Security Council] . . . decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.

A search of the remaining twenty-four resolutions reveals that none of them contains the words "all necessary means" or the words "such measures as may be necessary"; nor does any such resolution contain any other words in the operative provisions dealing with enforcement (except for four resolutions that call upon member states to cooperate in the imposition of sanctions (Nos. 661, 712, 715 and 778) and three resolutions that threaten to impose a ban on travel by certain Iraqi officials (Nos. 1115, 1134 and 1137).

IV Arguments Favouring The US Position

 

As noted above, there has been no official statement issued by the US government explaining the basis of its position vis-à-vis the military mandate given by the existing resolutions. Nor has there been any such statement forthcoming from the various countries supporting the US in this venture. Letters inquiring as to the availability of such a statement addressed to the responsible officials in USA, Canada and the United Kingdom have produced no replies.

In lieu of an official statement, it appears that the US is relying on the above-noted informal statements given during interviews by Ambassadors Pickering and Richardson. The two interviews noted wherein Thomas Pickering, the US Undersecretary of State for Political Affairs, explained the US position occurred on 19 December 1997 and 19 February 1998. Ambassador Pickering answered questions put to him as to the legal basis for the proposed military action by the US and its partners. A recorded version of his answers was obtained from the website operated by the US Information Agency :

The United States believes that Saddam Hussein, in agreeing to accept the cease-fire and the Resolution 687 which implemented it, also agreed to accept the disarmament of his weapons of mass destruction. Having created in fact a situation in which he is no longer obviously complying with that resolution — he is blocking access to inspections, he has not fully complied with the requirement of the resolutions to provide full disclosure of his programs in the first 15 days after the resolution was passed back in 1991. That means that in our legal view the underlying resolution which authorized the use of force, all necessary means, at the end of November in 1990, the famous Resolution 678, still applies. And in the absence of a binding cease-fire there is on the part of the United Nations and others the right to use force.11

As of this writing, this is the only item appearing on the above website under the heading "Legal Basis for Possible Use of Force." A more recent explanation of the US position was given in an interview that occurred immediately after the adoption of Security Council Resolution 1154 which endorsed the Annan Agreement and warned of "severest consequences" for any violation. A recorded version of this interview was obtained from the website operated by ABC News:

CHRIS WALLACE: With us from our New York bureau, the United States ambassador to the United Nations, Bill Richardson.

Mr. Ambassador, the Security Council did not give the US the automatic trigger to strike if Iraq violates the agreement, but as we just said, the word from the State Department is the resolution doesn’t matter. Does the US have to go back to the UN before launching a military strike?

BILL RICHARDSON (New York): No, we don’t Chris. It’s always been America’s position that there was sufficient authority in existing Security Council resolutions for us to take such unilateral action. What happened today in the Security Council, 15-0, only reinforces that position, because if you look at the language in the resolution, it says that if Iraq fails to comply, it will be hit with the severest consequences. Other states had wanted to water that down. We won a big victory today. Basically, the onus is now on Iraq. If they mess around with the secretary general’s agreement, if they fail to provide unfettered, unconditional access to all sites, that’s a violation and there will be some very, very severe consequences.12

The Canadian government has explained its reasons for supporting the US position in several speeches given by the Prime Minister and others.13 On the issue of the legal authority of the US to proceed without a new resolution from the Security Council, Mr. Ted McWhinney, the Parliamentary Secretary to the Minister of Foreign Affairs, gave the following explanation during a debate in Parliament:

There has been some discussion on the legal authority of the United States and by the same token those associated or allied with the United States to take action involving the potential use of force against Iraq. It has been said "You must go to the security council and get a fresh resolution."

I do not think that it is so as a matter of legal interpretation. In fact the gulf operation was rather special. It was undertaken by a government on Canada’s part previous to the present one, and the United States by a president previous to the present president. What was done was a little different from classic UN peacekeeping operations or peacemaking operations where in fact there is a UN force under the aegis of the UN secretary-general and responsible to the secretary-general.

In fact what was done was a series of umbrella resolutions delegating the power to the United States commander in chief and responsible to the president of the United States. I say that was an unusual action but the series of resolutions have a broad, legal authority for which I think it can reasonably be argued that the authority to take the present action is there.

My own advice would be if the opportunity allows to seek a fresh security council resolution, but I do not think it is legally necessary and we would have to bear in mind that the veto power operates. It is intolerable that the veto should be used to prevent collective action on which there is a consensus. This was the argument we made and other countries made as far back as the Korean war in 1950 when the general assembly passed the uniting for peace resolution, an unprecedented constitutional step. I think the legal authority is there.14

A brief commentary offering arguments on both sides of the issue was published at an early stage by Professor Frederic L. Kirgis who teaches international law at Washington and Lee University in Lexington, Virginia. Professor Kirgis’ commentary appeared in a leaflet published by the American Society of International Law in November, 1997.15 This commentary drew a response published some months later in March 1998 by Edwin D. Williamson who, during the period when the November Resolution (678) and the April Resolution (687) were adopted, held the position of Legal Advisor to the US State Department. The commentary and the response are reproduced in full in Appendix 4.

Reference should also be made to several media reports that have spoken of arguments favouring the sufficiency of the existing Security Council resolutions. There have been several reports of interviews conducted by journalists with experts in international law who have expressed opinions on this subject.

For instance, the New York Times carried a story that referred to an interview with Professor Ruth Wedgewood who teaches international law at Yale University and occupies the post of senior fellow at the Council on Foreign Relations. Professor Wedgewood is quoted as upholding the sufficiency of the existing resolutions on the ground that "Resolution 687 made the cease-fire conditional on inspection, and Iraq’s refusal to cooperate [with the inspections] would allow the US to infer that the Gulf War is not over."16

In another report, the journalist stated that there were several precedents for military action and observed that "The US has used military force against Iraq four times since the end of the Gulf War in 1991. In each case, there was little opposition to the American assertions that it had legal authority to act."17

The New York Times also reported on an interview with Lori Fisler Damrosch, a professor of international law at Columbia University, who is quoted as saying "There is sufficient authority already there, without a new resolution."18 The report of this interview does not elaborate.

Finally, the New York Times carried a letter to the editor from John Carey. He is an adjunct professor on international law at New York University, the Editor of the UN Law Report and formerly Vice President of the American Society of International Law. After being contacted for purposes of this paper, Professor Carey produced an expanded version of this letter along with a subsequent letter submitted to the Christian Science Monitor. Professor Carey’s two letters contain the fullest explanation on the US position that appears to be available. They are reproduced in full in Appendix 5.

The various arguments noted in this section are considered below in Sections V, VI and VII.

V Did The Authority Under Paragraph 2 Of The November Resolution (678) Terminate With The Cease-Fire?

 

Among the resolutions noted above in Section III, the one that authorized the use of military force in the Gulf War was the November Resolution (678).19 As noted above, paragraph 2 of that resolution reads as follows:

2. [The Security Council, acting under Chapter VII of the Charter] . . . authorizes Member States cooperating with the Government of Kuwait unless Iraq on or before 15 January 1991 fully implements as set forth in paragraph 1 above the foregoing resolutions to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.

The Gulf War came to an end with a cease-fire in May 1991. An examination of the terms of the cease-fire leads to the conclusion that, with one possible exception, the authority for military action given by the November Resolution (678) terminated when the cease-fire took effect.

The terms of the cease-fire are set forth in the April Resolution (687).20 They included an arrangement for a demilitarized zone and some very detailed requirements calling for inspection and destruction of Iraq’s weapons of mass destruction. (The current controversy between Iraq and the UN centres on these requirements.) The resolution calls for Iraq to agree to all these arrangements, after which a cease-fire will be considered to be in effect. Soon after the April Resolution (687) was adopted, Iraq notified the Secretary-General that it was accepting the resolution in full,21 and a short while later the Secretary General notified the Security Council that

. . . the conditions established in paragraph 33 of Resolution 687 (1991) have been met and that the formal cease-fire referred to in paragraph 33 of that resolution is therefore effective.22

A vital component of the cease-fire dealt with the withdrawal from Iraqi territory of the coalition forces. (These are the forces referred to in paragraph 2 of the November Resolution (678) as the forces of the "Member States cooperating with the Government of Kuwait.") Paragraph 6 of the April Resolution (687) sets out the conditions for the withdrawal of these forces:

6. [The Security Council . . . acting under Chapter VII] . . . notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with Resolution 678 (1990) to bring their military presence in Iraq to an end consistent with Resolution 686 (1991);

An explanation may be needed of the term "United Nations observer unit" as used in this paragraph. The unit referred to in paragraph 6 is the unit referred to in the previous paragraph (5), which called for the deployment of a multinational unit to monitor activities in the demilitarized zone between Iraq and Kuwait. The Secretary-General later designated this unit as "UNIKOM" (UN Iraq-Kuwait Observation Mission).23 The conditions referred in paragraph 6 relating to the withdrawal of the coalition forces were met on 9 May 1991 when the Secretary-General reported to the Security Council:

UNIKOM’s deployment was completed on 6 May.24

With the giving of this notice to the Security Council, the effect of paragraph 6 was to terminate the mandate given in the November Resolution (678) to use military force.

A Remnant of Authority?

It could be argued that paragraph 6 does not completely foreclose all use of military force. The reference to the ending of any "military presence in Iraq" might be taken to mean that the military mandate was still valid to the extent that military force can be used without involving a military presence in Iraq. It is pointed out that the Security Council obviously intended the naval blockade to continue in effect. The blockade was originally authorized in August 1990,25 shortly before the invasion of Kuwait, for the purpose of enforcing the sanctions imposed by Resolution 660 (1990). Indeed, the reference in paragraph 6 to ending military presence in Iraq would leave this arrangement intact, since naval operations can be conducted without involving a military presence.

But it could be argued that, in addition to naval operations, there are other types of military activity that could be undertaken without involving a military presence in Iraq. For instance, could it be said that the launching of missiles from ships or neighbouring countries was possible without involving a military presence on the territory of Iraq? Could the same be said for bombing raids? It may be asked therefore whether the Security Council, while terminating most of the existing mandate for using military force, left intact a remnant of authority broad enough to include not only naval operations but also externally launched missile and bombing attacks.

Many would dispute this line of reasoning. Nevertheless, unlike other questions posed in this paper, the question whether the Security Council, in adopting paragraph 6, left a remnant of authority that can still be validly used cannot be answered definitively.

It is important to understand, however, that this remnant of authority, if it exists, is a residual part of the authority given by paragraph 2 of the November Resolution (678). It is not based on other resolutions, as is the case with the naval blockade. Accordingly, this residual authority, if it exists, can only be exercised within the parameters of paragraph 2. In other words, any particular military action would be authorized under this residual authority only if its purposes were within those delineated in paragraph 2.

An analysis of the purposes contained in paragraph 2 of the November Resolution (678) is presented in Section VII of this paper. The conclusion reached in that section is that the purposes of the operation currently being contemplated are not to be found among the purposes delineated in paragraph 2. Accordingly, the remnant of authority, if it exists, could not be used to justify the operation.

The answer to the question posed in the heading of this section must therefore be: most, but not necessarily all, the authority under the November Resolution (678) terminated with the cease-fire; the Security Council left it uncertain as to whether or not military operations involving no military presence on Iraqi territory are permitted, but if they are, they must be for purposes delineated in paragraph 2 of the November Resolution (678).

VI The Effect of Iraq’s Breach Of Its Inspection Obligations

 

It has been argued that, even if the mandate to use military force given by the November Resolution (678) was terminated by the cease-fire, that mandate was revived as a result of the breach of the cease-fire conditions. This is one of the points made by Professor Carey. It is also the tenor of ambassador Pickering’s statement. Stated differently, this argument holds that, even if the effect of the cease-fire was to eliminate the military mandate given by the November Resolution (678) or to reduce it to a residual level, the entire mandate under that resolution has been revived by reason of Iraq’s breach of its inspection obligations.

According to this line of argument, which is adopted by several of those favouring the US position, the cease-fire is conditional. It is pointed out that the cease-fire came into effect pursuant to the April Resolution (687), and since that same resolution sets forth detailed inspection requirements which were accepted by Iraq,26 compliance with these requirements should be regarded as a condition of the cease-fire; and if Iraq starts obstructing the inspections again, the cease-fire should be regarded as terminated. Accordingly, the military mandate given by the November Resolution (678) could be regarded as revived. This would mean that the US and its coalition partners would be entitled to take military action pursuant to Resolution 678 for the purpose of enforcing the UN’s inspection rights.

This line of reasoning ignores the fact that the April Resolution (687) contains nothing specifying that the cease-fire is to be conditional upon Iraq’s compliance with the inspection requirements. It contains nothing to the effect that noncompliance is to be dealt with by the coalition states through revival of the military mandate given by paragraph 2. On the contrary, paragraph 34 of the resolution specifies that problems with implementation of the resolution are to be dealt with by the Security Council itself. Paragraph 34 reads as follows:

34. [The Security Council] . . . decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.

Paragraph 34 makes it clear that, in the event of a problem arising from Iraq’s breach of its inspection obligations, the responsibility for dealing with the problem is placed not in the hands of the coalition states but in the hands of the Security Council itself.

Those favouring the US position might argue that, despite the absence of express words making the cease-fire conditional, the general tenor of the April Resolution (687) is such that it should be interpreted as making the cease-fire conditional by implication. But even if this argument were accepted, paragraph 34 still specifies that problems with implementation must be referred to the Security Council.

Furthermore, the argument in favour of the cease-fire being conditional ignores another problem. Assuming the cease-fire agreement, which is incorporated in the April Resolution (687), was conditional, its termination would not occur automatically. Action by the Security Council would be necessary. Specifically, the Security Council would have to:

· announce that it was taking the position that a material breach had occurred under the agreement, and that therefore it had the option either to terminate the agreement or to continue with it, and

· decide to exercise its option to terminate the agreement.

These actions would have to be taken by the Security Council, not by the US, since the US is not a party to the agreement.

Since the Security Council has done neither of these things, both the April Resolution (687) and the cease-fire, even if they could be said to be conditional, remain in full force and effect.

The argument for conditionality also ignores the fact that, if the Security Council were to take steps to terminate the agreement, the effect would be not only to terminate the cease-fire, but also to relieve Iraq of all further obligation to permit inspections. After exercising its option to terminate the agreement, the Security Council would be left with no obligations to enforce.

VII The Scope Of Paragraph 2 Of The November Resolution (678)

 

Several of those arguing for the US position contend that paragraph 2 of the November Resolution (678) authorizes the military action currently contemplated because its purpose is essentially to restore security in the area which is one of the purposes delineated in paragraph 2. This argument focuses on the concluding words of paragraph 2:

2. [The Security Council . . . acting under Chapter VII of the Charter] . . . authorizes Member States cooperating with the Government of Kuwait unless Iraq on or before 15 January 1991 fully implements as set forth in paragraph 1 above the foregoing resolutions to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.

Others have argued that the action is authorized under paragraph 2 on the basis that its purpose fits within the words to uphold and implement . . . all subsequent relevant resolutions.

Before paragraph 2 can be relied upon to authorize actions of any type, regardless of the purpose of the action, several preliminary hurdles must be cleared.

1. As explained above in Section V, paragraph 6 of the April Resolution (687) brings the cease-fire into effect and therefore terminates the military mandate given by paragraph 2. Unless paragraph 2 is revived in some way, it is no longer effective; it is a dead letter.

2. For reasons explained in Section VI, there is no substance in the argument that paragraph 2 is revived as a result of the Iraqi noncompliance. Paragraph 2 therefore remains a dead letter.

3. Section VI refers to the argument that the cease-fire agreement should be regarded as conditional on full implementation by Iraq of its inspection obligations, in default of which, paragraph 2 would be revived. But even if this argument is accepted, the condition does not produce a revival of paragraph 2 automatically. As explained in Section VI, until the Security Council decides to invoke it, the condition remains dormant and the authority under paragraph 2 remains a dead letter.

4. Even if all the above hurdles could be cleared so as to revive paragraph 2, paragraph 34 of the April Resolution (687), for reasons explained in Section VI, would prevent paragraph 2 from being used for purposes of dealing with a breach of the April Resolution (687). Since the announced purpose of the proposed operation is to deal with Iraq’s breach of its inspection obligations under that resolution, the effect of paragraph 34 is to prohibit such an operation without specific Security Council authority.

Assuming all these preliminary hurdles can be cleared, those arguing on the basis of the words to restore security in the area would have several additional hurdles to deal with.

5. Those advancing this line of argument might take the position that they have no difficulty in clearing the last-mentioned hurdle according to which paragraph 34 blocks any use of military force under paragraph 2 for purposes of enforcing Iraq’s inspection obligations. They may argue that, although the enforcement of inspection obligations may be the operation’s immediate goal, the ultimate goal of the operation is to restore security in the area. Accordingly, the prohibition implied in paragraph 34 would not apply.

But even if restoring security in the area could be said to be the ultimate goal (notwithstanding the fact that the US has never claimed as much), the fact that the immediate goal of the operation is to compel Iraq to comply with the April Resolution (687) means that the operation is still prohibited by paragraph 34.

6. The words "restore security in the area" should not be treated separately from the phrase from which they are taken: "to restore international peace and security in the area." When the entire phrase is used and when the context is recalled, it becomes apparent that the Security Council, by using this phrase, was intending to deal with a situation involving the last stage of a war and was trying to restore the situation to something approaching normalcy. When the cease-fire proved to be a success, that purpose must be taken to have been accomplished. The resolution uses the word "restore" not "restore and maintain." In other words, for purposes of paragraph 2, "international peace and security in the area," should be viewed as having been restored. Accordingly, the words "restore security in the area," should be considered as being no longer operative.

7. The next hurdle starts with the assumption, albeit dubious, that it would be possible to treat the words "to restore security in the area" separately so as to give them a meaning that is separate and detached from the concept of restoring international peace in the area. Such a meaning would not be related to the situation in April 1991; instead, it would look to the future. The argument would be that the words "to restore security in the area" can be used to authorize the use of military force in the future for the purpose of dealing with future problems involving a threat to security in the area.

In order to give credence to this line of argument, it would be necessary to interpret the November Resolution (678) as giving authority in perpetuity for military action to be taken against Iraq by any one or more of the coalition states whenever any of them considered that security in the area had been placed in jeopardy and needed to be restored. It would be manifestly unreasonable to interpret a Security Council resolution as giving an open-ended mandate for the use of military force by a member state to deal with vaguely defined problems at any time in the future whenever the state considered that the situation warranted it.

It must be concluded that there is no validity in the argument that paragraph 2 of the November Resolution (678) would justify the proposed military operation on the basis that its purpose can be regarded as being to restore security in the area.

But there are others who argue that the proposed military action can be justified on the basis of the words all subsequent resolutions. In the unlikely event that these arguments managed to clear the four preliminary hurdles noted above, there is one additional hurdle to be cleared.

8. These arguments proceed on the basis that the term "all subsequent relevant resolutions" includes the April Resolution (687) and since the purpose of the action is to uphold and implement 687 by inducing Iraq to permit the inspections required by 687, the action is clearly authorized by the November Resolution (678). (This is one of the arguments referred to in Section IV above put forth by Professor Carey; it is also mentioned by Professor Kirgis.)

But this line of argument is based on the assumption that the reference to "all subsequent relevant resolutions" is intended to include not only resolutions in existence on 29 November 1990, but also all resolutions relating to Iraq that might be adopted at any time thereafter.

A more reasonable interpretation would be that the words were intended to mean only resolutions adopted subsequent to Resolution 660 in existence at the time the November Resolution (678) was adopted. There are eleven such resolutions and they are all listed in the first preambular paragraph in the November Resolution (678). There is little doubt that it is these eleven resolutions that are referred to in paragraph 2.

If the argument favouring the US position were adopted, it would mean that the Security Council intended its military mandate in the November Resolution (678) to extend beyond Resolution 660 and the eleven then-existing resolutions so as to cover enforcement of all future resolutions relating to Iraq. To interpret the resolution as giving such an open-ended mandate would be entirely unreasonable. This interpretation would mean the mandate was valid in perpetuity unless subsequently revoked. The point is even more cogent when it is recalled that any move to revoke the mandate would be subject to the veto.

It is therefore clear that the correct interpretation of the words in question is that they are intended to refer to the eleven resolutions adopted subsequent to Resolution 660 as listed in the preamble. Accordingly, it is only necessary to ask whether the purpose of the military action is to uphold and implement any of the eleven resolutions listed in the preamble of the November Resolution (678).

A glance at the summaries of the eleven resolutions given above in Section III demonstrates that the purposes of the proposed action could not include implementing or upholding any of these resolutions. The US and its partners have made it abundantly clear that the purpose of the proposed action is to make it possible for UNSCOM to carry out the inspections in the manner provided by the April Resolution (687). None of the eleven resolutions contains anything about inspections.

For all the above reasons, it is apparent that the scope of paragraph 2 of the November Resolution (678) is such that, no matter what line of argument is used, that paragraph cannot be used to justify the military operations against Iraq currently being contemplated. But before paragraph 2 is entirely eliminated as a source of authority for the proposed military action, it is necessary to consider four remaining arguments. They are dealt with in the next section.

VIII Four Additional Arguments For The US Position

 

Although none of them appears to have been put forth publicly by those arguing for the US position, three additional arguments deserve to be considered since they might be thought to provide authority for military action in the present circumstances. A fourth argument has recently surfaced as a result of the Security Council’s adoption of Resolution 1154. The US appears to be arguing that this resolution confers authority for taking military measures at this time. This section begins by dealing with the three arguments that have not been discussed publicly and ends by considering the fourth.

FIRST ARGUMENT: The Effect of the Words "Military Presence" in Paragraph 6.

It is necessary to consider the argument referred in Section V to the effect that paragraph 6, while terminating the military mandate created under paragraph 2, leaves a remnant of authority whereby military measures are permitted under paragraph 2, provided they do not involve a military presence in Iraq. This line of argument has the advantage of bypassing three of the preliminary hurdles referred to in Section VII (Nos. 1-3), because a remnant of authority would be left intact so that the effect of paragraph 2 would not be eliminated in its entirety. There are three reasons, however, why this remnant of authority, if it exists, cannot be used to justify the military operation currently being contemplated.

Although the operation contemplated appears to involve only externally-launched bombing and missile attacks, which it might be argued, entail no military presence in Iraq, the argument is not convincing because attacks of this nature do involve an invasion of Iraqi territory. Also, even if it were accepted that the proposed attacks can be regarded as involving no military presence in Iraq, the required authorization would still be absent because the purpose of the operation is not covered by paragraph 2, as explained above in paragraphs 5-8 of Section VII. Furthermore, since the purpose of the operation is to achieve compliance with the inspection obligations laid down in the April Resolution (687), it would be prohibited by paragraph 34 of that resolution. This point is explained above in Section VI.

SECOND ARGUMENT: The Effect of Resolution 686 (1991)

Another argument in favour of the US position that needs to be considered relates to Resolution 686 (1991) which was adopted on 2 March 1991 after most of the hostilities in the Gulf War had ceased. The full text of the resolution appears in Appendix 2.

Paragraph 4 of Resolution 686 (1991) reads as follows:

4. [The Security Council . . . acting under Chapter VII of the Charter] . . . recognizes that during the period required for Iraq to comply with paragraph 2 and 3 above, the provisions of paragraph 2 of Resolution 678 (1990) remain valid;

It will be recalled that paragraph 2 of Resolution 678 (1990) is the one that authorized military action to be taken by the coalition forces during the Gulf War:

2. [The Security Council, acting under Chapter VII of the Charter] . . . authorizes Member States cooperating with the Government of Kuwait unless Iraq on or before 15 January 1991 fully implements as set forth in paragraph 1 above the foregoing resolutions to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.

Paragraph 4 stipulates that paragraph 2 of the November Resolution 678 remains valid until Iraq has complied with the conditions listed in paragraph 2 and 3 of Resolution 686. As of this writing, performance of several of these conditions is incomplete, including:

· the release of Kuwaiti and third country nationals detained by Iraq27

· the return of all Kuwaiti property28

· the return of all prisoners of war.29

An account of the Security Council’s efforts to persuade Iraq to comply with these requirements is to be seen in the UN publication: "The United Nations and the Iraq-Kuwait Conflict, 1990-96."30

In view of the fact that these requirements (and possibly others) have not been completed, it is clear that paragraph 4 establishes a continuing authority for military action but with a proviso that the action must be within the parameters of paragraph 2 of the November Resolution (678). Accordingly, the purpose of any military action under paragraph 4 must be within the purposes laid out in paragraph 2. Section VI of this paper discusses the purposes contained in paragraph 2 and concludes that they do not cover any of the purposes that have been announced for the proposed military action. Accordingly, Resolution 686 cannot be used to justify the proposed military action.

It might be noted that this conclusion does not emasculate paragraph 4 entirely. It remains in effect notwithstanding the fact that, as explained in Section V, all or most military action is ruled out by the combined effect of paragraph 6 and other parts of the April Resolution (687). Paragraph 4 prevails over paragraph 6 by reason of two clauses in the April Resolution (687):

· the words at the end of paragraph 6: ". . . consistent with Resolution 686 (1991)," since these words make it subject to paragraph 4;

· and the words of paragraph 1: "The Security Council . . . affirmed all thirteen resolutions noted above [among which is Resolution 686 (1991)], except as expressly changed below to achieve the goals of this resolution, including a formal cease-fire."

Indeed, paragraph 4, since it constitutes an exception to paragraph 6, would allow the use of ground forces on Iraqi territory (unlike the residual authority referred to in Section V which, if it exists, would be confined to using externally launched airborne explosives). Paragraph 4 could be used to authorize a military action provided its purpose is both within the ambit of paragraph 2 and directed at compelling Iraq to comply with the unfulfilled requirements delineated in paragraph 4. It might be possible for both these criteria to be satisfied in the same action. For instance, an action directed at compelling Iraq to surrender persons or property seized during the invasion of Kuwait could be said to be undertaken either for the purpose of implementing Resolution 660 (1990) in the sense of being intended to complete Iraq’s withdrawal from Kuwait, or for the purpose of implementing Resolution 664 (one of the eleven resolutions referred to in Section VII above) in the sense of being intended to obtain the release of foreign nationals detained by Iraq during the invasion of Kuwait.

It might be argued that there are other purposes for a military action that would be authorized by paragraph 4. In addition to recovering seized persons or property, it could be said that paragraph 4 ought to be considered as authorizing an action to deal with "hostile or provocative actions by [Iraqi] forces against [any] Member State, including missile attacks and flights of combat aircraft." This wording comes from paragraph 3 (a) of the March Resolution (686). Compliance with paragraph 3 is one of the objectives of paragraph 4.

On balance, however, this argument cannot be sustained. It ignores the fact that a military operation to deal with missile attacks or flights of combat aircraft in today’s setting would not fall within the purposes of paragraph 2 which are limited to reversing the invasion of Kuwait.

In today’s setting, the purposes provided in paragraph 2 have all but evaporated. The reversal of the invasion of Kuwait referred to in Resolution 660 (1990) has been achieved with the possible exception of recovering persons and property seized during the invasion. As a result, there is very little scope left for using paragraph 4. Indeed, some might argue that paragraph 4 could not even be used to justify an action to recover persons or property seized during the invasion. Certainly, it would not be possible to use paragraph 4 to justify counter-attacks against Iraqi anti-aircraft missile installations. None of the attacks against US planes that have been made from these installations can be said to be a remnant of the UN operations to expel Iraq from Kuwait. Most of these attacks have occurred in the context of UNSCOM monitoring and inspection activities or in the context of operations of the US in the no-fly zones in the northern and southern areas of Iraq.

THIRD ARGUMENT: The Effect of Resolution 949 (1994)

Resolution 949 (1994) needs to be considered because it contains a specific mention of paragraph 2 of the November Resolution (678). Like the Resolution 686 (1991), it too might be thought to be directed towards keeping alive the authority for military action contained in paragraph 2. Resolution 949 (1994) is reproduced in full in Appendix 2. Paragraph 3 reads as follows:

3. [The Security Council . . .acting under Chapter VII of the Charter of the United Nations] . . . demands that Iraq not again utilize its military or any other forces in a hostile or provocative manner to threaten either its neighbours or United Nations operations in Iraq.

The Resolution does not actually contain an explicit provision for the enforcement of this requirement, but it does contain the following words in the preamble:

Recalling all its previous relevant resolutions, and reaffirming Resolutions 678 (1990) of 29 November 1990, 686 (1991) of 2 March 1991, 687 (1991) of 3 April 1991, 689 (1991) of 9 April 1991, and 833 (1993) of 27 May 1993, and in particular paragraph 2 of Resolution 678 (1990),

It is important to note that the special emphasis on paragraph 2 appears only in the preamble. The operative clauses in the resolution are silent on the matter of enforcement. In the absence of any reference to paragraph 2 in the operative clauses, this resolution could, at most, be said to inform Iraq that the Security Council might consider reviving its military mandate given in paragraph 2, depending on Iraq’s behaviour, but that the Council has made no decision on this matter at this stage.

It is clear that Resolution 949 (1994) provides no authority for military action.

FOURTH ARGUMENT: The Effect of Resolution 1154 (1998)

The argument referred to above in Section IV advanced by Ambassador Richardson in the interview on 2 March 1998 needs to be considered separately. He was questioned as to the effect of Resolution 1154 which had been adopted by the Security Council earlier that day. The transcript of the interview bears repeating:

CHRIS WALLACE: With us from our New York bureau, the United States ambassador to the United Nations, Bill Richardson.

Mr. Ambassador, the Security Council did not give the US the automatic trigger to strike if Iraq violates the agreement, but as we just said, the word from the State Department is the resolution doesn’t matter. Does the US have to go back to the UN before launching a military strike?

BILL RICHARDSON (New York): No, we don’t Chris. It’s always been America’s position that there was sufficient authority in existing Security Council resolutions for us to take such unilateral action. What happened today in the Security Council, 15-0, only reinforces that position, because if you look at the language in the resolution, it says that if Iraq fails to comply, it will be hit with the severest consequences. Other states had wanted to water that down. We won a big victory today. Basically, the onus is now on Iraq. If they mess around with the secretary general’s agreement, if they fail to provide unfettered, unconditional access to all sites, that’s a violation and there will be some very, very severe consequences.31

The full text of Resolution 1154 appears in Appendix 2. The ambassador was referring to paragraph 3 in the resolution, which reads as follows:

3. [The Security Council . . . acting under Chapter VII of the Charter of the United Nations] . . . stresses that compliance by the Government of Iraq with this obligation, repeated again in the Memorandum of Understanding, to accord immediate, unconditional and unrestricted access to the Special Commission and the IAEA in conformity with the relevant resolution is necessary for the implementation of Resolution 687 (1991), but that any violation would have severest consequences for Iraq;

The ambassador offers the opinion that the resolution reinforces the mandate given by previous resolutions. On that point, he is obviously mistaken. As demonstrated above, no such mandate exists. Clearly, Resolution 1154 could not have the effect of reinforcing a non-existing mandate.

But could the resolution stand on its own and confer new authority? Indeed, in another part of the interview, this is what Ambassador Richardson appears to be arguing:

. . . If Iraq fails to comply — and there are already signs that Iraq is trying to find some unacceptable wiggle room — then what’s going to happen is severest consequences from any member state that feels its security interest threatened or the United Nations, the Security Council . . .

Presumably, the ambassador’s argument is that the reference to severest consequences must mean military measures and that they can be administered by any member state that considers Iraq to have violated the relevant resolutions.

But such an interpretation portrays the resolution as merely stating a fact — namely that those consequences will follow — it does not actually create any authority. Presumably Ambassador Richardson would argue that, by stating the fact that military measures will be administered in that manner, the resolution necessarily implies that the Security Council is conferring the requisite authority for administering such measures. If this argument were to be accepted, it would mean that the wording in the resolution:

. . . any violation [of the relevant resolutions] would have severest consequences for Iraq

must be considered as being equivalent to wording to the following effect:

If, in the opinion of any Member State, Iraq violates any of the relevant resolutions, such state or states are authorized to take whatever military measures against Iraq they consider appropriate.

When dealing with a matter as serious as authorizing the use of military force, no Security Council resolution should be interpreted as conferring ill-defined authority upon ill-defined countries to be used at their discretion at an ill-defined time in the future with no element of control by Council nor even an obligation to report to Council.

IX Summary Of Main Conclusions

 

The US is currently taking the position that the military action it proposes to take against Iraq in the event of any new violation of its inspection obligations is authorized under existing resolutions of the Security Council. Among the forty-one resolutions adopted by the Security Council relating to Iraq, the only one conferring any authority to use military force is Resolution 678 (1990) which was adopted on 29 November 1990 several weeks prior to the Gulf War. The paragraph in that resolution that is generally accepted as authorizing the use of military force is paragraph 2:

2. [The Security Council, acting under Chapter VII of the Charter] . . . authorizes Member States cooperating with the Government of Kuwait unless Iraq on or before 15 January 1991 fully implements as set forth in paragraph 1 above the foregoing resolutions to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.

Following the Gulf War, the Security Council adopted a long detailed resolution bringing into effect a cease-fire and imposing obligations on Iraq relating to inspection and destruction of its weapons of mass destruction. This was Resolution 687 (1991). Shortly after the resolution was adopted, Iraq agreed to all its terms.

Section V of this paper explains why the military mandate given by paragraph 2 of Resolution 678 (1990) was terminated by the cease-fire at the close of the Gulf War as a result of paragraph 6 of Resolution 687 (1991). Unless it can be revived in some way, paragraph 2 is no longer effective — it is a dead letter — in which event, no authority for military action can be said to exist under any of the resolutions of the Security Council currently in effect.

Various arguments have been advanced in an effort to show that paragraph 2 has been revived — or will be revived in the event of any further violation by Iraq of its inspection obligations. The argument heard most frequently is that the cease-fire agreement, which is incorporated in Resolution 687 (1991), was conditional, and accordingly any noncompliance by Iraq would mean that the military mandate given in paragraph 2 would be revived. Section VI of this paper explains several reasons why this argument is fallacious:

1. The cease-fire agreement, incorporated in Resolution 687 (1991), nowhere states that it is to be conditional.

2. If the condition in question could somehow be considered as implied, it would have no practical effect because paragraph 34 of the cease-fire agreement would prevent other parties from enforcing the inspection obligations because it specifies that problems with implementation of the agreement are to be handled by the Security Council.

3. Again, if the condition in question could somehow be considered as implied, and if paragraph 34 could somehow be ignored, the condition could not take effect automatically; it would have to be enforced through action — not by the United States — but by the Security Council, because the US is not a party to the agreement. Since the Security Council has taken no such action, the condition remains dormant.

Accordingly, paragraph 2, the only possible source of authority for military action, cannot be said to have been revived by any breach of condition. Having been terminated at the close of the Gulf War by paragraph 6 of Resolution 687 (1991), and having not been revived, paragraph 2 remains a dead letter.

There are those who argue that paragraph 2 of the Resolution 678 (1990) should be considered as having survived the cease-fire on the basis that it authorizes military action "to restore security in the area" and/or "to uphold and implement . . . all subsequent relevant resolutions." These arguments are examined in Section VII and are found to be without merit. For instance, it is explained why the term "all subsequent relevant resolutions" could not apply to Resolution 687 (1991).

Finally, it has been argued that the recent Security Council Resolution 1154, which speaks of "severest consequences" for any Iraqi violation, should be interpreted as conferring fresh authority for a military strike at this time. As explained in Section VIII, even if the resolution is interpreted as necessarily referring to military force, it is entirely lacking in specificity and for that reason cannot be said to confer any actual authority to use military force.

X If Not Military Measures, What Then?

 

One hears the argument (often from people who call themselves "realists") that this is no time for legal niceties. They point out that the world is confronted by a serious and imminent threat, and if the UN Charter is standing in the way of action to meet the threat, then the UN Charter must be brushed to one side. If the UN is incapable of meeting the threat, it is argued, others must take over from the UN and deal with the problem, even if it means going against the UN Charter — otherwise Saddam’s sinister preparations will go unchecked. The world should be thankful — so the argument goes — that the US and its partners are coming to the rescue of the UN in its moment of weakness.

This line of argument suffers from several flaws.

1. There can be no doubt that the threat posed by Saddam due to his biological weapons is serious — but it can hardly be said to be imminent. Action to stop his buildup of weapons is clearly not needed immediately. Saddam’s ability to use weapons of mass destruction, including biological weapons, against the outside world is not a new threat and is not a mounting threat. The threat is serious but it has existed at least since the Gulf War and nothing has happened recently that has given cause for any special alarm.

2. Not only is it not imminent, the danger posed by Saddam has been steadily decreasing since the end of the Gulf War. For seven years now, UNSCOM has been destroying more and more of Saddam’s stockpile of weapons. The cumulative results are impressive:

· Virtually all of Iraq’s nuclear capability has been eliminated.32

· Huge quantities of his chemical weapons have been destroyed.33

· Forty-eight operational missiles have been destroyed.34

· An enormous biological weapons factory has been demolished.35

Admittedly, there have been many interruptions in the process, but they have always turned out to be temporary. The long-term trend over the seven years has been continuously downward for Saddam’s stockpile of weapons of mass destruction.

3. No matter how menacing the situation might appear at the present time or might later become, there can be no reason or justification for resorting to military force, provided the UN is willing and able to deal with the situation through non-violent means.

Although it is popular in some quarters to downgrade the extent to which sanctions have been able to influence Iraq’s behaviour, the fact is that over the seven years since the end of the Gulf War, the UN sanctions have produced impressive results. The dramatic reductions noted above in Saddam’s weaponry have been achieved as a direct result of the sanctions. The problem currently facing the UN is one of longstanding. The recent difficulties are not significantly different from those that have occurred many times in the past. What is needed is the continued application of the measures that have been used up to the present, namely the sanctions.

If there is impatience to bring the situation to a conclusion, the answer is not military force but a search for ways of strengthening sanctions. Some suggestions are offered in this connection below, but first a few words about sanctions as currently applied against Iraq would be appropriate.

It is often said that sanctions target the wrong group — that they hurt the general populace while allowing the leaders to prosper, with the result that the leaders feel no compulsion to alter their policies. In the case of Iraq, this line of argument can be answered in two ways.

Much is being done to alleviate the suffering of the populace through the oil-for-food-scheme. The size of the scheme under the recent move made by the Security Council is impressive. The amount of oil that Iraq is permitted to sell under the resolution adopted on 20 February 1998 (Resolution 1153) has been estimated to total two-thirds of the oil that Iraq was selling at its peak capacity before the embargo.36

As for the charge that sanctions leave the leaders unaffected so that there is no incentive for them to change their policies, this does not seem to apply in the case of Iraq. For the past seven years, Saddam has been standing by and watching while the UN inspectors have been systematically destroying enormous quantities of his best and most powerful weapons. Why has Saddam allowed this to happen? The answer can only be the sanctions.

Sanctions are always slow to act, but at least in the case of Iraq, there is no reason for thinking that they will not eventually succeed in compelling it to comply fully with its inspection obligations.

In the Iraqi situation, one thing is abundantly clear. As an instrument for producing the required results, sanctions hold more promise than the military measures currently being contemplated. The US press is full of articles to the effect that the bombing campaign being planned by the US cannot possibly succeed in getting access for UNSCOM inspectors to any of the disputed sites.37 In fact, several commentators conclude that the bombing would do more harm than good: it is likely to spell the end of all inspections.38 Many of the opinions given in these articles are coming from military personnel, diplomats and even from officials in the US administration (obviously speaking on the basis of anonymity). It is significant that there has been no effort on the part of the US administration to dispute this line of thinking.

The conclusion is inescapable that, since the bombing would be ineffective, the UN is actually better able to influence Iraqi behaviour through the use of its non-violent measures than the US would be through the use of its bombers.

Those supporting the US position appear to be basing their case on three false assumptions: that the world, prior to the Annan Agreement, was facing some kind of impending calamity and will be facing it again if Iraq starts to block inspections; that the UN is powerless to prevent any such calamity; and that it can only be prevented by military force. These assumptions are wrong for the following reasons:

1. There was no such calamity nor will there be if the inspections are again blocked; instead of a calamity that calls for immediate action, what is involved is a serious problem of longstanding that calls for the continued application of the current long-term measures.

2. The UN is far from powerless; on the contrary, it is handling the situation adequately; it has demonstrated that it can contain Saddam and destroy most of his heavy weapons.

3. As for rectifying the situation through military force, it is obvious that that option would be of no avail; in fact, military force, as currently proposed, is itself powerless to influence Iraq.

Strengthening The Sanctions

If Iraq creates further problems, rather than using or threatening military measures, the US should devote its energies to the strengthening of the sanctions regime. There are three ways in which the sanctions against Iraq could be made more effective.

First, the travel ban could be implemented. The Security Council has already adopted three resolutions on this matter, the last of which (Resolution 1137) was adopted on 12 November 1997. It provided that all member states must "prevent the entry into or transit through their territory of all Iraqi officials . . . responsible for . . . noncompliance . . . [with the inspection obligations]."39 The resolution stipulated that member states must start to impose these restrictions "without delay." But the resolution went on to provide that a list should be prepared of persons to be affected by the ban. The Security Council has never seen fit to prepare this list, with the result that the travel ban has yet to be implemented. This measure would strike at Iraqi top officials in particular, because many of them are in the habit of driving to neighbouring countries to acquire consumer goods in order to sell them in Iraq at a substantial profit.

Second, the Security Council could put pressure on Iran to start cooperating with the sanctions regulations. Iran should be requested to allow the UN naval blockade to intercept the small boats that are carrying oil from Iraq through the coastal waters of Iran. While quantities are small, they are important because much of the trade is carried on by persons close to the Iraqi leadership for whom it is an important source of income.

Third, the Security Council could strengthen the financial sanctions against Iraq. In their current form, the sanctions have the effect of freezing government assets but they do not target the personal assets of Saddam or his entourage. The regulations relating to the freezing of Iraqi assets held outside Iraq are contained in Resolution 661 (1990). The Security Council could adopt a resolution extending these regulations to cover the personal assets of the leadership.

A case could be made for adopting these three improvements now without waiting for the situation in Iraq to deteriorate. Since they are all targeted upon the leadership, it could be said that they should be put in place at this time simply because they can be considered to be an important part of any sanctions regime that might be required in the future. (Although the suggested improvement relating to Iran might be thought to have no general application, it could be argued that the time has come for the Security Council to experiment with methods of pressuring uncooperative UN members who are supposed to be participating in the sanction scheme.)

Sanctions will always be the Security Council’s most important instrument for enforcing disarmament treaties. The problem posed by Iraq today is essentially that of enforcing a disarmament agreement. When viewed in this light, the confrontation between the UN and Iraq can be regarded as a test of the UN’s ability to enforce a disarmament treaty. At the same time, the confrontation challenges the Security Council to address the long-term task of refining, improving and strengthening its sanctions procedures, so that it will have available a well-functioning package of procedures for future use.

Rumour has it that Russia, China or France would be likely to veto any of the three improvements suggested above. If this is the case, and if other members of the Security Council feel that the time has come for the UN sanctions regime to be strengthened, then these countries should consider speaking out against any such blocking tactics. This applies especially to non-permanent members of the Council. If they truly believe that the UN sanctions need to be strengthened, they could use their position on Council to publicize the issue and in this way bring pressure to bear upon any of the veto powers that threaten to block the improvements. These latter powers should be required to explain their actions and why they should not be held responsible for deliberately weakening the UN’s only non-violent instrument for ensuring peace.

In conclusion, it is possible to summarize the mistakes being made by the US and the other countries that are currently supporting military measures against Iraq as follows:

1. They are overestimating the danger posed by Iraq, and accordingly, they are mistaken in calling for an immediate response using measures that go beyond the sanctions currently in effect.

2. They are underestimating the effectiveness of the sanctions.

3. They are overestimating the effectiveness of the military response proposed by the US.

4. They have been too hasty in accepting the US position as to the legality of the US military response, which is serious because it involves acting contrary to the UN Charter.

5. They are ignoring the opportunity offered by the present confrontation to persuade the Security Council to strengthen its sanctions procedures by adding specifically targeted sanctions.

Appendices

 

Appendix 1 Memorandum of Understanding between the United Nations and the Republic of Iraq — 23 February 1998.

 

Appendix 2 Full Text of seven UN Security Council resolutions having a special bearing on the issue relating to the use of military force against Iraq:

S/RES/665 (1990) — 25 August 1990

S/RES/678 (1990) — 29 November 1990

S/RES/686 (1991) — 2 March 1991

S/RES/687 (1991) — 3 April 1991

S/RES689 (1991) — 9 April 1991

S/RES/949 (1994) — 15 October 1994

S/RES/1154 (1998) — 2 March 1998

 

Appendix 3 Summary of the twelve UN Security Council resolutions adopted after the invasion of Kuwait and prior to the Gulf War.

 

Appendix 4 ASIL Flash Insight: "The Legal Background On The Use Of Force To Induce Iraq To Comply With Security Council Resolutions," by Frederic L. Kirgis

Comment on ASIL Flash Insight by Edwin D. Williamson

 

Appendix 5 Letters to the Editor — Professor John Carey — Adjunct Professor of International Law at New York University.

 

Appendix 6 Statements made regarding the effectiveness of sanctions related to Iraq.

 

Appendix 7 Press reports indicating the futility of military measures proposed by the US.

MEMORANDUM OF UNDERSTANDING BETWEEN THE UNITED NATIONS AND THE REPUBLIC OF IRAQ — 23 FEBRUARY 1998

1. The Government of Iraq reconfirms its acceptance of all relevant resolutions of the Security Council, including resolutions 687 (1991) and 715 (1991). The Government of Iraq further reiterates its undertaking to cooperate fully with the United Nations Special Commission (UNSCOM) and the International Atomic Energy Agency (IAEA).

2. The United Nations reiterates the commitment of all Member States to respect the sovereignty and territorial integrity of Iraq.

3. The Government of Iraq undertakes to accord to UNSCOM and IAEA immediate, unconditional and unrestricted access in conformity with the resolutions referred to in paragraph 1. In the performance of its mandate under the Security Council resolutions, UNSCOM undertakes to respect the legitimate concerns of Iraq relating to national security, sovereignty and dignity.

4. The United Nations and the Government of Iraq agree that the following special procedures shall apply to the initial and subsequent entries for the performance of the tasks mandated at the eight Presidential Sites in Iraq as defined in the annex to the present Memorandum:

a) A Special Group shall be established for this purpose by the Secretary-General in consultation with the Executive Chairman of UNSCOM and the Director General of IAEA. This Group shall comprise senior diplomats appointed by the Secretary-General and experts drawn from UNSCOM and IAEA. The Group shall be headed by a Commissioner appointed by the Secretary-General.

b) In carrying out its work, the Special Group shall operate under the established procedures of UNSCOM and IAEA, and specific detailed procedures which will be developed given the special nature of the Presidential Sites, in accordance with the relevant resolutions of the Security Council.

c) The report of the Special Group on its activities and findings shall be submitted by the Executive Chairman of UNSCOM to the Security Council through the Secretary-General.

5. The United Nations and the Government of Iraq further agree that all other areas, facilities, equipment, records and means of transportation shall be subject to UNSCOM procedures hitherto established.

6. Noting the progress achieved by UNSCOM in various disarmament areas, and the need to intensify efforts in order to complete its mandate, the United Nations and the Government of Iraq agree to improve cooperation, and efficiency, effectiveness and transparency of work, so as to enable UNSCOM to report to the Council expeditiously under paragraph 22 of resolution 687 (1991). To achieve this goal, the Government of Iraq and UNSCOM will implement the recommendations directed at them as contained in the report of the emergency session of UNSCOM held on 21 November 1997.

7. The lifting of sanctions is obviously of paramount importance to the people and Government of Iraq and the Secretary-General undertook to bring this matter to the full attention of the members of the Security Council.

Signed this 23rd day of February 1998 in Baghdad in two originals in English.

For the United Nations

Kofi A. Annan

Secretary-General For the Republic of Iraq

Tariq Aziz

Deputy Prime Minister

Annex

to the Memorandum of Understanding

between the United Nations and the Republic of Iraq

of 23 February 1998

The eight Presidential Sites subject to the regime agreed upon in the present Memorandum of Understanding are the following:

The Republican Palace Presidential Site (Baghdad).

Radwaniyah Presidential Site (Baghdad)

Sijood Presidential Site (Baghdad).

Tikrit Presidential Site.

Tharthar Presidential Site.

Jabal Makhul Presidential Site.

Mosul Presidential Site.

Basrah Presidential Site.

The perimeter of the area of each site is recorded in the survey of the "Presidential sites" in Iraq implemented by the United Nations Technical Mission designated by the Secretary-General, as attached to the letter dated 21 February 1998 addressed by the Secretary-General to the Deputy Prime Minister of Iraq.

FULL TEXT OF SEVEN UN SECURITY COUNCIL RESOLUTIONS

HAVING A SPECIAL BEARING ON THE ISSUE RELATING TO THE USE OF MILITARY FORCE AGAINST IRAQ

S/RES/665 (1990) 25 August 1990

RESOLUTION 665 (1990)

Adopted by the Security Council at its 2938th meeting on 25 August 1990

The Security Council,

Recalling its resolutions 660 (1990), 661 (1990), 662 (1990) and 664 (1990) and demanding their full and immediate implementation,

Having decided in resolution 661 (1990) to impose economic sanctions under Chapter VII of the Charter of the United Nations,

Determined to bring an end to the occupation of Kuwait by Iraq which imperils the existence of a Member State and to restore the legitimate authority, and the sovereignty, independence and territorial integrity of Kuwait which requires the speedy implementation of the above resolutions,

Deploring the loss of innocent life stemming from the Iraqi invasion of Kuwait and determined to prevent further such losses,

Gravely alarmed that Iraq continues to refuse to comply with resolutions 660 (1990), 661 (1990), 662 (1990) and 664 (1990) and in particular at the conduct of the Government of Iraq in using Iraqi flag vessels to export oil,

1. Calls upon those Member States co-operating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990);

2. Invites Member States accordingly to co-operate as may be necessary to ensure compliance with the provisions of resolution 661 (1990) with maximum use of political and diplomatic measures, in accordance with paragraph 1 above;

3. Requests all States to provide in accordance with the Charter such assistance as may be required by the States referred to in paragraph 1 of this resolution;

4. Further requests the States concerned to co-ordinate their actions in pursuit of the above paragraphs of this resolution using as appropriate mechanisms of the Military Staff Committee and after consultation with the Secretary-General to submit reports to the Security Council and its Committee established under resolution 661 (1990) to facilitate the monitoring of the implementation of this resolution;

5. Decides to remain actively seized of the matter.

S/RES/678 (1990) 29 November 1990

RESOLUTION 678 (1990)

Adopted by the Security Council at its 2963rd meeting on 29 November 1990

The Security Council,

Recalling, and reaffirming its resolutions 660 (1990) of 2 August (1990), 661 (1990) of 6 August 1990, 662 (1990) of 9 August 1990, 664 (1990) of 18 August 1990, 665 (1990) of 25 August 1990, 666 (1990) of 13 September 1990, 667 (1990) of 16 September 1990, 669 (1990) of 24 September 1990, 670 (1990) of 25 September 1990, 674 (1990) of 29 October 1990 and 677 (1990) of 28 November 1990.

Noting that, despite all efforts by the United Nations, Iraq refuses to comply with its obligation to implement resolution 660 (1990) and the above-mentioned subsequent relevant resolutions, in flagrant contempt of the Security Council,

Mindful of its duties and responsibilities under the Charter of the United Nations for the maintenance and preservation of internationalnd peace and security,

Determined to secure full compliance with its decisions,

Acting under Chapter VII of the Charter,

1. Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwil, to do so;

2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

3. Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 of the present resolution;

4. Requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken pursuant to paragraphs 2 and 3 of the present resolution;

5. Decides to remain seized of the matter.

S/RES/686 (1991) 2 March 1991

RESOLUTION 686 (1991)

Adopted by the Security Council at its 2978th meeting on 2 March 1991

The Security Council,

Recalling and reaffirming its resolutions 660 (1990), 661 (1990), 662 (1990), 664 (1990), 665 (1990), 666 (1990), 667 (1990), 669 (1990), 670 (1990), 674 (1990), 677 (1990), and 678 (1990),

Recalling the obligations of Member States under Article 25 of the Charter,

Recalling paragraph 9 of resolution 661 (1990) regarding assistance to the Government of Kuwait and paragraph 3 (c) of that resolution regarding supplies strictly for medical purposes and, in humanitarian circumstances, foodstuffs,

Taking note of the letters of the Foreign Minister of Iraq confirming Iraq's agreement to comply fully with all of the resolutions noted above (S/22275), and stating its intention to release prisoners of war immediately (S/22273),

Taking note of the suspension of offensive combat operations by the forces of Kuwait and the Member States cooperating with Kuwait pursuant to resolution 678 (1990),

Bearing in mind the need to be assured of Iraq's peaceful intentions, and the objective in resolution 678 (1990) of restoring international peace and security in the region,

Underlining the importance of Iraq taking the necessary measures whichwould permit a definitive end to the hostilities,

Affirming the commitment of all Member States to the independence, sovereignty and territorial integrity of Iraq and Kuwait, and noting the intention expressed by the Member States cooperating under paragraph 2 of Security Council resolution 678 (1990) to bring their military presence in Iraq to an end as soon as possible consistent with achieving the objectives of the resolution,

Acting under Chapter VII of the Charter,

1. Affirms that all twelve resolutions noted above continue to have full force and effect;

2. Demands that Iraq implement its acceptance of all twelve resolutions noted above and in particular that Iraq:

(a) Rescind immediately its actions purporting to annex Kuwait;

(b) Accept in principle its liability for any loss, damage, or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq;

(c) Under international law immediately release under the auspices of the International Committee of the Red Cross, Red Cross Societies, or Red Crescent Societies, all Kuwaiti and third country nationals detained by Iraq and return the remains of any deceased Kuwaiti and third country nationals so detained; and

(d) Immediately begin to return all Kuwaiti property seized by Iraq, to be completed in the shortest possible period;

3. Further demands that Iraq:

(a) Cease hostile or provocative actions by its forces against all Member States including missile attacks and flights of combat aircraft;

(b) Designate military commanders to meet with counterparts from the forces of Kuwait and the Member States cooperating with Kuwait pursuant to resolution 678 (1990) to arrange for the military aspects of a cessation of hostilities at the earliest possible time;

(c) Arrange for immediate access to and release of all prisoners of war under the auspices of the International Committee of the Red Cross and return the remains of any deceased personnel of the forces of Kuwait and the Member States cooperating with Kuwait pursuant to resolution 678 (1990); and

(d) Provide all information and assistance in identifying Iraqi mines, booby traps and other explosives as well as any chemical and biological weapons and material in Kuwait, in areas of Iraq where forces of Member States cooperating with Kuwait pursuant to resolution 678 (1990) are present temporarily, and in adjacent waters;

4. Recognizes that during the period required for Iraq to comply with paragraphs 2 and 3 above, the provisions of paragraph 2 of resolution 678 (1990) remain valid;

5. Welcomes the decision of Kuwait and the Member States cooperating with Kuwait pursuant to resolution 678 (1990) to provide access and to commence immediately the release of Iraqi prisoners of war as required by the terms of the Third Geneva Convention of 1949, under the auspices of the International Committee of the Red Cross;

6. Requests all Member States, as well as the United Nations, the specialized agencies and other international organizations in the United Nations system, to take all appropriate action to cooperate with the Government and people of Kuwait in the reconstruction of their country;

7. Decides that Iraq shall notify the Secretary-General and the Security Council when it has taken the actions set out above;

8. Decides that in order to secure the rapid establishment of a definitive end to the hostilities, the Security Council remains actively seized of the matter.

S/RES/687 (1991) 8 April 1991

RESOLUTION 687 (1991)

Adopted by the Security Council at its 2981st meeting, on 3 April 1991

The Security Council,

Recalling its resolutions 660 (1990) of 2 August 1990, 661 (1990) of 6 August 1990, 662 (1990) of 9 August 1990, 664 (1990) of 18 August 1990, 665 (1990) of 25 August 1990, 666 (1990) of 13 September 1990, 667 (1990) of 16 September 1990, 669 (1990) of 24 September 1990, 670 (1990) of 25 September 1990, 674 (1990) of 29 October 1990, 677 (1990) of 28 November 1990, 678 (1990) of 29 November 1990 and 686 (1991) of 2 March 1991,

Welcoming the restoration to Kuwait of its sovereignty, independence and territorial integrity and the return of its legitimate Government,

Affirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq, and noting the intention expressed by the Member States cooperating with Kuwait under paragraph 2 of resolution 678 (1990) to bring their military presence in Iraq to an end as soon as possible consistent with paragraph 8 of resolution 686 (1991),

Reaffirming the need to be assured of Iraq's peaceful intentions in the light of its unlawful invasion and occupation of Kuwait,

Taking note of the letter sent by the Minister for Foreign Affairs of Iraq on 27 February 1991 and those sent pursuant to resolution 686 (1991),

Noting that Iraq and Kuwait, as independent sovereign States, signed at Baghdad on 4 October 1963 "Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters", thereby recognizing formally the boundary between Iraq and Kuwait and the allocation of islands, which were registered with the United Nations in accordance with Article 102 of the Charter of the United Nations and in which Iraq recognized the independence and complete sovereignty of the State

of Kuwait within its borders as specified and accepted in the letter of the Prime Minister of Iraq dated 21 July 1932, and as accepted by the Ruler of Kuwait in his letter dated 10 August 1932,

Conscious of the need for demarcation of the said boundary,

Conscious also of the statements by Iraq threatening to use weapons in violation of its obligations under the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and of its prior use of chemical weapons and affirming that grave consequences would follow any further use by Iraq of such weapons,

Recalling that Iraq has subscribed to the Declaration adopted by all States participating in the Conference of States Parties to the 1925 Geneva Protocol and Other Interested States, held in Paris from 7 to 11 January 1989, establishing the objective of universal elimination of chemical and biological weapons,

Recalling also that Iraq has signed the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, of 10 April 1972,

Noting the importance of Iraq ratifying this Convention,

Noting moreover the importance of all States adhering to this Convention and encouraging its forthcoming Review Conference to reinforce the authority, efficiency and universal scope of the convention,

Stressing the importance of an early conclusion by the Conference on Disarmament of its work on a Convention on the Universal Prohibition of Chemical Weapons and of universal adherence thereto,

Aware of the use by Iraq of ballistic missiles in unprovoked attacks and therefore of the need to take specific measures in regard to such missiles located in Iraq,

Concerned by the reports in the hands of Member States that Iraq has attempted to acquire materials for a nuclear-weapons programme contrary to its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968,

Recalling the objective of the establishment of a nuclear-weapons-free zone in the region of the Middle East,

Conscious of the threat that all weapons of mass destruction pose to peace and security in the area and of the need to work towards the establishment in the Middle East of a zone free of such weapons,

Conscious also of the objective of achieving balanced and comprehensive control of armaments in the region,

Conscious further of the importance of achieving the objectives noted above using all available means, including a dialogue among the States of the region,

Noting that resolution 686 (1991) marked the lifting of the measures imposed by resolution 661 (1990) in so far as they applied to Kuwait,

Noting that despite the progress being made in fulfilling the obligations of resolution 686 (1991), many Kuwaiti and third country nationals are still not accounted for and property remains unreturned,

Recalling the International Convention against the Taking of Hostages, opened for signature at New York on 18 December 1979, which categorizes all acts of taking hostages as manifestations of international terrorism,

Deploring threats made by Iraq during the recent conflict to make use of terrorism against targets outside Iraq and the taking of hostages by Iraq,

Taking note with grave concern of the reports of the Secretary-General of 20 March 1991 and 28 March 1991, and conscious of the necessity to meet urgently the humanitarian needs in Kuwait and Iraq,

Bearing in mind its objective of restoring international peace and security in the area as set out in recent resolutions of the Security Council,

Conscious of the need to take the following measures acting under Chapter VII of the Charter,

1. Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of this resolution, including a formal cease-fire;

A

2. Demands that Iraq and Kuwait respect the inviolability of the international boundary and the allocation of islands set out in the "Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters", signed by them in the exercise of their sovereignty at Baghdad on 4 October 1963 and registered with the United Nations and published by the United Nations in document 7063, United Nations, Treaty Series, 1964;

3. Calls upon the Secretary-General to lend his assistance to make arrangements with Iraq and Kuwait to demarcate the boundary between Iraq and Kuwait, drawing on appropriate material, including the map transmitted by Security Council document S/22412 and to report back to the Security Council within one month;

4. Decides to guarantee the inviolability of the above-mentioned international boundary and to take as appropriate all necessary measures to that end in accordance with the Charter of the United Nations;

B

5. Requests the Secretary-General, after consulting with Iraq and Kuwait, to submit within three days to the Security Council for its approval a plan for the immediate deployment of a United Nations observer unit to monitor the Khor Abdullah and a demilitarized zone, which is hereby established, extending ten kilometres into Iraq and five kilometres into Kuwait from the boundary referred to in the "Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters" of 4 October 1963; to deter violations of the boundary through its presence in and surveillance of the demilitarized zone; to observe any hostile or potentially hostile action mounted from the territory of one State to the other; and for the Secretary-General to report regularly to the Security Council on the operations of the unit, and immediately if there are serious violations of the zone or potential threats to peace;

6. Notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with resolution 678 (1990) to bring their military presence in Iraq to an end consistent with resolution 686 (1991);

C

7. Invites Iraq to reaffirm unconditionally its obligations under the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and to ratify the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, of 10 April 1972;

8. Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of:

(a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities;

(b) All ballistic missiles with a range greater than 150 kilometres and related major parts, and repair and production facilities;

9. Decides, for the implementation of paragraph 8 above, the following:

(a) Iraq shall submit to the Secretary-General, within fifteen days of the adoption of the present resolution, a declaration of the locations, amounts and types of all items specified in paragraph 8 and agree to urgent, on-site inspection as specified below;

(b) The Secretary-General, in consultation with the appropriate Governments and, where appropriate, with the Director-General of the World Health Organization, within forty-five days of the passage of the present resolution, shall develop, and submit to the Council for approval, a plan calling for the completion of the following acts within forty-five days of such approval:

(i) The forming of a Special Commission, which shall carry out immediate on-site inspection of Iraq's biological, chemical and missile capabilities, based on Iraq's declarations and the designation of any additional locations by the Special Commission itself;

(ii) The yielding by Iraq of possession to the Special Commission for destruction, removal or rendering harmless, taking into account the requirements of public safety, of all items specified under paragraph 8 (a) above, including items at the additional locations designated by the Special Commission under paragraph 9 (b) (i) above and the destruction by Iraq, under the supervision of the Special Commission, of all its missile capabilities, including launchers, as specified under paragraph 8 (b) above;

(iii) The provision by the Special Commission of the assistance and cooperation to the Director-General of the International Atomic Energy Agency required in paragraphs 12 and 13 below;

10. Decides that Iraq shall unconditionally undertake not to use, develop, construct or acquire any of the items specified in paragraphs 8 and 9 above and requests the Secretary-General, in consultation with the Special Commission, to develop a plan for the future ongoing monitoring and verification of Iraq's compliance with this paragraph, to be submitted to the Security Council for approval within one hundred and twenty days of the passage of this resolution;

11. Invites Iraq to reaffirm unconditionally its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968;

12. Decides that Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapons-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above; to submit to the Secretary-General and the Director-General of the International Atomic Energy Agency within fifteen days of the adoption of the present resolution a declaration of the locations, amounts, and types of all items specified above; to place all of its nuclear-weapons-usable materials under the exclusive control, for custody and removal, of the International Atomic Energy Agency, with the assistance and cooperation of the Special Commission as provided for in the plan of the Secretary-General discussed in paragraph 9 (b) above; to accept, in accordance with the arrangements provided for in paragraph 13 below, urgent on-site inspection and the destruction, removal or rendering harmless as appropriate of all items specified above; and to accept the plan discussed in paragraph 13 below for the future ongoing monitoring and verification of its compliance with these undertakings;

13. Requests the Director-General of the International Atomic Energy Agency, through the Secretary-General, with the assistance and cooperation of the Special Commission as provided for in the plan of the Secretary-General in paragraph 9 (b) above, to carry out immediate on-site inspection of Iraq's nuclear capabilities based on Iraq's declarations and the designation of any additional locations by the Special Commission; to develop a plan for submission to the Security Council within forty-five days calling for the destruction, removal, or rendering harmless as appropriate of all items listed in paragraph 12 above; to carry out the plan within forty-five days following approval by the Security Council; and to develop a plan, taking into account the rights and obligations of Iraq under the Treaty on the Non-Proliferationof Nuclear Weapons of 1 July 1968, for the future ongoing monitoring and verification of Iraq's compliance with paragraph 12 above, including an inventory of all nuclear material in Iraq subject to the Agency's verification and inspections to confirm that Agency safeguards cover all relevant nuclear activities in Iraq, to be submitted to the Security Council for approval within one hundred and twenty days of the passage of the present resolution;

14. Takes note that the actions to be taken by Iraq in paragraphs 8, 9, 10, 11, 12 and 13 of the present resolution represent steps towards the goal of establishing in the Middle East a zone free from weapons of mass destruction and all missiles for their delivery and the objective of a global ban on chemical weapons;

D

15. Requests the Secretary-General to report to the Security Council on the steps taken to facilitate the return of all Kuwaiti property seized by Iraq, including a list of any property that Kuwait claims has not been returned or which has not been returned intact;

E

16. Reaffirms that Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2 August 1990, which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait;

17. Decides that all Iraqi statements made since 2 August 1990 repudiating its foreign debt are null and void, and demands that Iraq adhere scrupulously to all of its obligations concerning servicing and repayment of its foreign debt;

18. Decides also to create a fund to pay compensation for claims that fall within paragraph 16 above and to establish a Commission that will administer the fund;

19. Directs the Secretary-General to develop and present to the Security Council for decision, no later than thirty days following the adoption of the present resolution, recommendations for the fund to meet the requirement for the payment of claims established in accordance with paragraph 18 above and for a programme to implement the decisions in paragraphs 16, 17 and 18 above, including: administration of the fund; mechanisms for determining the appropriate level of Iraq's contribution to the fund based on a percentage of the value of the exports of petroleum and petroleum products from Iraq not to exceed a figure to be suggested to the Council by the Secretary-General, taking into account the requirements of the people of Iraq, Iraq's payment capacity as assessed in conjunction with the international financial institutions taking into consideration external debt service, and the needs of the Iraqi economy; arrangements for ensuring that payments are made to the fund; the process by which funds will be allocated and claims paid; appropriate procedures for evaluating losses, listing claims and verifying their validity and resolving disputed claims in respect of Iraq's liability as specified in paragraph 16 above; and the composition of the Commission designated above;

F

20. Decides, effective immediately, that the prohibitions against the sale or supply to Iraq of commodities or products, other than medicine and health supplies, and prohibitions against financial transactions related thereto contained in resolution 661 (1990) shall not apply to foodstuffs notified to the Security Council Committee established by resolution 661 (1990) concerning the situation between Iraq and Kuwait or, with the approval of that Committee, under the simplified and accelerated "no-objection" procedure, to materials and supplies for essential civilian needs as identified in the report of the Secretary-General dated 20 March 1991, and in any further findings of humanitarian need by the Committee;

21. Decides that the Security Council shall review the provisions of paragraph 20 above every sixty days in the light of the policies and practices of the Government of Iraq, including the implementation of all relevant resolutions of the Security Council, for the purpose of determining whether to reduce or lift the prohibitions referred to therein;

22. Decides that upon the approval by the Security Council of the programme called for in paragraph 19 above and upon Council agreement that Iraq has completed all actions contemplated in paragraphs 8, 9, 10, 11, 12 and 13 above, the prohibitions against the import of commodities and products originating in Iraq and the prohibitions against financial transactions related thereto contained in resolution 661 (1990) shall have no further force or effect;

23. Decides that, pending action by the Security Council under paragraph 22 above, the Security Council Committee established by resolution 661 (1990) shall be empowered to approve, when required to assure adequate financial resources on the part of Iraq to carry out the activities under paragraph 20 above, exceptions to the prohibition against the import of commodities and products originating in Iraq;

24. Decides that, in accordance with resolution 661 (1990) and subsequent related resolutions and until a further decision is taken by the Security Council, all States shall continue to prevent the sale or supply, or the promotion or facilitation of such sale or supply, to Iraq by their nationals, or from their territories or using their flag vessels or aircraft, of:

(a) Arms and related materiel of all types, specifically including the sale or transfer through other means of all forms of conventional military equipment, including for paramilitary forces, and spare parts and components and their means of production, for such equipment;

(b) Items specified and defined in paragraphs 8 and 12 above not otherwise covered above;

(c) Technology under licensing or other transfer arrangements used in the production, utilization or stockpiling of items specified in subparagraphs (a) and (b) above;

(d) Personnel or materials for training or technical support services relating to the design, development, manufacture, use, maintenance or support of items specified in subparagraphs (a) and (b) above;

25. Calls upon all States and international organizations to act strictly in accordance with paragraph 24 above, notwithstanding the existence of any contracts, agreements, licences or any other arrangements;

26. Requests the Secretary-General, in consultation with appropriate Governments, to develop within sixty days, for the approval of the Security Council, guidelines to facilitate full international implementation of paragraphs 24 and 25 above and paragraph 27 below, and to make themavailable to all States and to establish a procedure for updating these guidelines periodically;

27. Calls upon all States to maintain such national controls and procedures and to take such other actions consistent with the guidelines to be established by the Security Council under paragraph 26 above as may be necessary to ensure compliance with the terms of paragraph 24 above, and calls upon international organizations to take all appropriate steps to assist in ensuring such full compliance;

28. Agrees to review its decisions in paragraphs 22, 23, 24 and 25 above, except for the items specified and defined in paragraphs 8 and 12 above, on a regular basis and in any case one hundred and twenty days following passage of the present resolution, taking into account Iraq's compliance with the resolution and general progress towards the control of armaments in the region;

29. Decides that all States, including Iraq, shall take the necessary measures to ensure that no claim shall lie at the instance of the Government of Iraq, or of any person or body in Iraq, or of any person claiming through or for the benefit of any such person or body, in connection with any contract or other transaction where its performance was affected by reason of the measures taken by the Security Council in resolution 661 (1990) and related resolutions;

G

30. Decides that, in furtherance of its commitment to facilitate the repatriation of all Kuwaiti and third country nationals, Iraq shall extend all necessary cooperation to the International Committee of the Red Cross, providing lists of such persons, facilitating the access of the International Committee of the Red Cross to all such persons wherever located or detained and facilitating the search by the International Committee of the Red Cross for those Kuwaiti and third country nationals still unaccounted for;

31. Invites the International Committee of the Red Cross to keep the Secretary-General apprised as appropriate of all activities undertaken in connection with facilitating the repatriation or return of all Kuwaiti and third country nationals or their remains present in Iraq on or after 2 August 1990;

H

32. Requires Iraq to inform the Security Council that it will not commit or support any act of international terrorism or allow any organization directed towards commission of such acts to operate within its territory and to condemn unequivocally and renounce all acts, methods and practices of terrorism;

I

33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990);

34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.

S/RES/689 (1991) 9 April 1991

RESOLUTION 689 (1991)

Adopted by the Security Council at its 2983rd meeting on 9 March 1991

The Security Council,

Recalling its resolution 687 (1991),

Acting under Chapter VII of the Charter,

1. Approves the report of the Secretary-General on the implementation of paragraph 5 of Security Council resolution 687 (1991) contained in document S/22454 and Add. 1-3 of 5 April 1991;

2. Notes that the decision to set up the observer unit was taken in paragraph 5 of resolution 687 (1991) and can only be terminated by a decision of the Council. The Council shall therefore review the question oftermination or continuation every six months;

3. Decides that the modalities for the initial six-month period of the United Nations Iraq-Kuwait Observation Mission shall be as set out in accordance with the above-mentioned report and shall also be reviewed every six months.

S/RES/949 (1994) 15 October 1994

RESOLUTION 949 (1994)

Adopted by the Security Council at its 3438th meeting, on 15 October 1994

The Security Council,

Recalling all its previous relevant resolutions, and reaffirming resolutions 678 (1990) of 29 November 1990, 686 (1991) of 2 March 1991, 687 (1991) of 3 April 1991, 689 (1991) of 9 April 1991 and 833 (1993) of 27 May 1993, and in particular paragraph 2 of resolution 678 (1990),

Recalling that Iraq's acceptance of resolution 687 (1991) adopted pursuant to Chapter VII of the Charter of the United Nations forms the basis of the cease-fire,

Noting past Iraqi threats and instances of actual use of force against its neighbours,

Recognizing that any hostile or provocative action directed against its neighbours by the Government of Iraq constitutes a threat to peace and security in the region,

Welcoming all diplomatic and other efforts to resolve the crisis,

Determined to prevent Iraq from resorting to threats and intimidation of its neighbours and the United Nations,

Underlining that it will consider Iraq fully responsible for the serious consequences of any failure to fulfil the demands in the present resolution,

Noting that Iraq has affirmed its readiness to resolve in a positive manner the issue of recognizing Kuwait's sovereignty and its borders as endorsed by resolution 833 (1993), but underlining that Iraq must unequivocally commit itself by full and formal constitutional procedures to respect Kuwait's sovereignty, territorial integrity and borders, as required

by resolutions 687 (1991) and 833 (1993),

Reaffirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq,

Reaffirming its statement of 8 October 1994 (S/1994/PRST/58),

Taking note of the letter from the Permanent Representative of Kuwait of 6 October 1994 (S/1994/1137), regarding the statement by the Revolution Command Council of Iraq of 6 October 1994,

Taking note also of the letter from the Permanent Representative of Iraq of 10 October 1994 (S/1994/1149), announcing that the Government of Iraq had decided to withdraw the troops recently deployed in the direction of the border with Kuwait,

Acting under Chapter VII of the Charter of the United Nations,

1. Condemns recent military deployments by Iraq in the direction of the border with Kuwait;

2. Demands that Iraq immediately complete the withdrawal of all military units recently deployed to southern Iraq to their original positions;

3. Demands that Iraq not again utilize its military or any other forces in a hostile or provocative manner to threaten either its neighbours or United Nations operations in Iraq;

4. Demands therefore that Iraq not redeploy to the south the units referred to in paragraph 2 above or take any other action to enhance its military capacity in southern Iraq;

5. Demands that Iraq cooperate fully with the United Nations Special Commission;

6. Decides to remain actively seized of the matter.

RESOLUTION 1154 (1998)

Adopted by the Security Council at its 3858th meeting, on 2 March 1998

The Security Council,

Recalling all its previous relevant resolutions, which constitute the governing standard of Iraqi compliance,

Determined to ensure immediate and full compliance by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and the other relevant resolutions,

Reaffirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Iraq, Kuwait and the neighbouring States,

Acting under Chapter VII of the Charter of the United Nations,

1. Commends the initiative by the Secretary-General to secure commitments from the Government of Iraq on compliance with its obligations under the relevant resolutions, and in this regard endorses the memorandum of understanding signed by the Deputy Prime Minister of Iraq and the Secretary-General on 23 February 1998 (S/1998/166) and looks forward to its early and full implementation;

2. Requests the Secretary-General to report to the Council as soon as possible with regard to the finalization of procedures for Presidential sites in consultation with the Executive Chairman of the United Nations Special Commission and the Director General of the International Atomic Energy Agency (IAEA);

3. Stresses that compliance by the Government of Iraq with its obligations, repeated again in the memorandum of understanding, to accord immediate, unconditional and unrestricted access to the Special Commission and the IAEA in conformity with the relevant resolutions is necessary for the implementation of resolution 687 (1991), but that any violation would have severest consequences for Iraq;

4. Reaffirms its intention to act in accordance with the relevant provisions of resolution 687 (1991) on the duration of the prohibitions referred to in that resolution and notes that by its failure so far to comply with its relevant obligations Iraq has delayed the moment when the Council can do so;

5. Decides, in accordance with its responsibility under the Charter, to remain actively seized of the matter, in order to ensure implementation of this resolution, and to secure peace and security in the area.

SUMMARY OF THE TWELVE UN SECURITY COUNCIL RESOLUTIONS ADOPTED AFTER THE INVASION OF KUWAIT AND PRIOR TO THE GULF WAR

S/RES/660 (1990) - 2 August 1990

Determined that a breach of international peace and security had taken place (i.e., that it was a legitimate issue for the Security Council); condemned the Iraqi invasion; demanded its withdrawal from Kuwait; and called upon Iraq and Kuwait to negotiate.

S/RES/661 (1990) - 6 August 1990

Determined that Iraq had not complied with Resolution 660; affirmed the right of individual or collective self-defence; under UN Charter Chapter 7 called upon all states to impose strict economic sanctions on Iraq until it complied with 660 "but not including supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs," set up the ‘661 Committee’ to gather/provide information and advice on sanctions.

S/RES/662 (1990) - 9 August 1990

Decided that the annexation of Kuwait by Iraq is null and void and demanded that Iraq rescind its declaration of annexation.

S/RES/664 (1990) - 18 August 1990

Demanded that Iraq permit the immediate departure from Kuwait and Iraq of third-country nationals and that Iraq take no action to jeopardize the safety, security, or health of such nationals; demanded that Iraq rescind its orders for the closure of diplomatic missions in Kuwait.

S/RES/665 (1990) - 25 August 1990

Called upon states deploying maritime forces to use such measures as may be necessary to halt all maritime shipping in order to inspect cargo and ensure strict implementation of Resolution 661; coordinates actions using "as appropriate" the Military Staff Committee.

S/RES/666 (1990) - 13 September 1990

Established a framework for determination of "humanitarian circumstances" and distribution of foodstuffs in Iraq and Kuwait as per Resolution 661: 661 Committee must report and recommend; food should be provided and the distribution supervised "through the UN in cooperation with the International Committee of the Red Cross or other appropriate humanitarian agency."

S/RES/667 (1990) - 16 September 1990

Strongly condemned the Iraqi actions against diplomatic premises and personnel in Kuwait and demanded the immediate release of foreign nationals.

S/RES/669 (1990) - 24 September 1990

Entrusts the 661 Committee of the Council with the task of examining requests for assistance under the provision of article 50 of the UN Charter. Under this article, states can consult the Council for a solution to economic problems arising from carrying out sanctions imposed by the Council.

S/RES/670 (1990) - 25 September 1990

Extended maritime embargo to air traffic by "taking such measures as may be necessary, consistent with international law, including the Chicago Convention"; affirmed that UN specialized agencies must comply with sanctions; decided to consider measures against sanctions-busters; and reaffirmed that Iraq is liable under the Fourth Geneva Convention (war crimes).

S/RES/674 (1990) - 29 October 1990

Demanded that: (i) Iraq cease deporting Kuwaitis and holding foreigners hostage and (ii) it provide food and water to those foreigners remaining; reaffirmed that Iraq respect Geneva & Vienna Conventions and that it rescind its order to close missions and allow consular access and that third country nationals and diplomats be free to leave Iraq/Kuwait; reposed its trust in the SecGen to make available his good offices to achieve a peaceful solution; affirmed liability of Iraq for full restitution/compensation for any loss, damage or injury arising out of its illegal invasion; required that Iraq comply with the provisions of the present resolution and previous resolutions, failing which the Council will take further measures under the Charter.

S/RES/677 (1990) - 28 November 1990

Condemns Iraq for attempting to alter the demographic composition of Kuwait and destroying Kuwaiti demographic records; mandates UN SecGen to take custody of an authentic copy of Kuwait’s population registry and establish rules of access and use of it.

S/RES/678 (1990) - 29 November 1990

Demands Iraq comply with UNSCR 660 and gives it one final "pause of goodwill"; authorizes states cooperating in multinational coalition in the Gulf to "use all necessary means to uphold and implement Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area."40

Commentary by Professor Frederic L. Kirgis and Response by Edwin D. Williamson

ASIL Insight - American Society of International Law

ASIL Flash Insight - November 1997

ASIL Flash Insights are intended to identify international law issues in order to provide a basis for informed discussion of current events. They are not intended to be definitive, and they do not necessarily reflect the views of all members of the American Society of International Law.

The Society itself takes no position on these issues.

Copyright 1997 by The American Society of International Law, 2223 Massachusetts Avenue NW, Washington, DC 20008-2864; Tel: 202-939-6000; Fax: 202-797-7133<br>

Web Site: www.asil.org

 

Iraq’s well-publicized refusal to allow Americans to participate in on-site inspections of Iraq’s chemical, biological and missile capabilities led the United Nations Security Council on November 12 to adopt Resolution 1137 (1997). Acting under its enforcement authority in Chapter VII of the UN Charter, the Council condemned Iraq for its continued violations of its obligations, under the relevant Security Council resolutions, to cooperate fully with the UN Special Commission appointed pursuant to Resolution 687 to carry out the on-site inspections, and imposed mandatory travel restrictions on Iraqi officials and armed forces members who were responsible for the violations or participated in them. Resolution 1137 also expressed "the firm intention to take further measures as may be required for the implementation of this resolution."

The United States government has said that Iraq must comply or face the consequences, including possible use of the military option. The United States and the United Kingdom have asserted that they already have adequate authority from the Security Council to use the military option. The governments of several other UN member states, including China, France and Russia, have disputed that assertion.

The US assertion appears to rest primarily on Security Council Resolution 678 (1990), which authorized member states to use "all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area." Resolution 660, adopted the day after Iraq invaded Kuwait, demanded that Iraq withdraw unconditionally from Kuwait. Resolution 678 became the UN’s authorizing instrument for Operation Desert Storm. It has never been rescinded.

Iraq’s attempt to dictate the composition of UN inspection teams has raised suspicions that Iraq is buying time to cover up its remaining chemical, biological and/or missile capabilities, posing a renewed threat to peace and security in the Persian Gulf area. Taken literally, the pre-Desert Storm Resolution 678 could be said to authorize not only the one-time use of armed force, but also whatever subsequent use of armed force might be needed to restore international peace and security in the area. The US and UK could argue that a renewed use of armed force is now needed if peace in the area is to be permanently restored.

After Desert Storm, the Security Council adopted Resolution 687 (1990), again acting under Chapter VII of the Charter. Resolution 687 imposed several obligations on Iraq, including the obligation to accept the neutralization under international supervision of its chemical, biological and medium- or long-range missile capabilities. It went on to say that upon notification by Iraq of its acceptance of the provisions in Resolution 687 (which Iraq grudgingly accepted), a formal cease-fire was effective. Finally, the Council decided to remain seized of the matter "and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area." Resolution 687 remains in force and was one of the key resolutions the Security Council mentioned in Resolution 1137.

Again taking the earlier Resolution 678 literally, it might be said to authorize member states to use all necessary means to uphold and implement Resolution 687, since Resolution 678 gave member states the authority to uphold all "relevant resolutions" subsequent to Resolution 660, and Resolution 687 is such a resolution.

Member states opposing the US assertion of authority to use armed force under the current circumstances rely on the fact that a formal cease-fire is in effect, thus significantly changing the circumstances under which the Security Council authorized "all necessary measures" in pre-Desert Storm Resolution 678. Thus, they would say, Resolution 678 could no longer reasonably be used as an ongoing authority to use force. They also argue that the Council’s retention of authority in Resolution 687 to take further steps should be read to preclude individual member states from taking steps on their own to secure peace and security in the area. Finally, they would argue that the reference in Resolution 678 to upholding and implementing "relevant resolutions" subsequent to Resolution 660 could only have been intended to mean resolutions adopted between the dates of Resolutions 660 and 678. That, of course, would exclude Resolution 687.

As has been noted above, Resolution 1137 expressed the firm intention to take further measures (in addition to travel restrictions) as may be required for its implementation. According to news reports, the US and British governments rely on this provision as further support for the view that the use of force is already authorized.

The opposing argument would be that the body expressing the firm intention in Resolution 1137 to take further measures is the Security Council and only the Security Council, which remains seized of the matter. Under this view, the Security Council might take a further measure in the form of a new authorization to member states to use force, but Resolution 1137 itself would not supply such an authorization.

COMMENT ON ASIL FLASH INSIGHT: THE LEGAL BACKGROUND ON THE USE OF FORCE TO INDUCE IRAQ TO COMPLY WITH

SECURITY COUNCIL RESOLUTIONS

by Edwin D. Williamson

My most serious criticism of Professor Kirgis’ comments is his misstatement, in the first full paragraph on page 2 of his "ASIL Flash Insight," of the argument that would be used by those who believe that no further UN Security Council action is necessary for the US to use force against Iraq following its material breach of its agreement in response to Resolution 687. The argument that would be used is that with Iraq’s reneging on its commitments with respect to weapons of mass destruction, the threat to peace and security remains and, therefore, one of the goals of Resolution 678 — the restoration of international peace and security — has not been accomplished. As a result, member states are still authorized to use force under Resolution 678. Furthermore, Professor Kirgis fails to note that the declaration in Resolution 687 of a cease-fire being in effect was clearly based upon Iraq’s acceptance of the terms of that Resolution (no matter how grudging that acceptance).

LETTERS TO THE EDITOR — PROFESSOR JOHN CAREY — ADJUNCT PROFESSOR OF INTERNATIONAL LAW AT NEW YORK UNIVERSITY

To the Editor:

Christopher Wren’s article "U.N. Resolutions Allow Attack on the Likes of Iraq" does not get to the bottom of the question whether the US is authorized to bomb Iraq without further Security Council authorization.

It is correct that resolution 687 of April 3, 1991, brought about a cease-fire upon Iraq’s notification that it accepted destruction of its weapons of mass destruction. Iraq’s breach of its obligations has already been officially declared by the Security Council on January 12 in its statement finding "a clear violation of the relevant resolutions."

The Vienna Convention on the Law of Treaties is of doubtful relevance since what is being interpreted is not a treaty but Security Council texts. Those texts need to be closely examined to determine what they now authorize without any further enactment.

Upon Iraq’s breach of its obligation to allow full inspection of its weapons of mass destruction capability, the cease-fire, enacted by resolution 687, ended. That brought back into play resolution 678 of November 29, 1990, which had authorized the Gulf War to remove Iraq from Kuwait. Since Iraq is now out of Kuwait, the question is whether hostilities can be resumed for any other purpose, such as enforcing inspection.

If the only purpose of hostilities contemplated by resolution 678 had been removal of Iraq, then the ending of the cease-fire would not have authorized force to compel inspection. But 678 went further, allowing the US and others "to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area."

Restoration of international peace and security in the area is exactly our purpose in seeking destruction of Iraq’s ability to make and use weapons of mass destruction. But besides that, the authorization of 678 to uphold and implement "all subsequent resolutions" applies to 687, which established the system for inspecting and destroying Iraq’s weapons of mass destruction.

That system, agreed to by Iraq, is being violated by it, and resumption of hostilities to enforce the system is now authorized, without any further Security Council enactment.

To the Editor:

In order legally to resume military action against Iraq, the United States needs to be acting (a) consistently with its own Constitution and (b) with authority from the United Nations Security Council. The reason Security Council authority is needed is that the UN Charter, a treaty by which we are bound, forbids the use of force except in self-defence or with Council approval.

Three key Security Council resolutions must be examined to determine what authority exists today for the US to bomb Iraq. Resolution 678 of November 1990 authorized the US and other countries "to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area." That was the UN’s green light for Desert Storm. Resolution 660 had ordered Iraq out of Kuwait.

In April 1991 resolution 687 brought about a cease-fire conditioned on Iraq’s notification that it accepted the inspection and destruction of its chemical, biological and nuclear weapons as well as the missiles to deliver them. Iraq is now in "clear violation" of those obligations, as the Security Council declared in January. Iraq’s violations voided the US obligation to cease firing and brought back into effect resolution 678.

As indicated in the above quote from 678, force is authorized by it not just to get Iraq out of Kuwait but also to uphold "all subsequent relevant resolutions and to restore international peace and security in the area." Peace and security in the area are overall US objectives. But in addition, one of the subsequent relevant resolutions is 687 requiring elimination of Iraq’s weapons of mass destruction. That is the immediate US objective.

It is therefore clear that the US can, so far as international law is concerned, resume hostilities against Iraq both to restore peace and security in the area and to enforce the destruction of its chemical, biological and nuclear weapons and their missiles. Whether US constitutional requirements have been met, and whether hostilities would be effective or proper, are questions beyond the scope of this letter.

STATEMENTS MADE REGARDING THE EFFECTIVENESS OF

SANCTIONS RELATED TO IRAQ

1. President Bill Clinton’s Speech To Military Staff Personnel

"Despite Iraq’s deceptions, UNSCOM has nevertheless done a remarkable job. Its inspectors — the eyes and ears of the civilized world — have uncovered and destroyed more weapons of mass destruction capacity than was destroyed during the Gulf War."

The New York Times 18 February 1998

2. Extract From A Speech By The Prime Minister, Tony Blair, At A Labour Party Policy Form, Millbank, London, Saturday 31 January 1998

"One of the conditions of the cease-fire in the Gulf War was that UN inspectors should be allowed free access to all sites in Iraq to look for such weapons and to destroy whatever they found. The wisdom of this has been amply demonstrated since. The UN inspectors have uncovered and eliminated many more weapons and weapon-building facilities than all the military action in the Gulf War itself."

Homepage of the Permanent Mission of the United Kingdom to the UN

http://www.fco.gov.uk

3 Statement By The Prime Minister Of Canada — Special Debate (Iraq) In The House Of Commons February 9, 1998

"Thanks to UNSCOM and the International Atomic Energy Agency, Saddam’s well-funded and advanced nuclear weapons program is essentially no more. Thanks to UNSCOM all of Iraq’s known chemical weapons and facilities have been destroyed. And thanks to UNSCOM, all of Iraq’s known facilities and equipment associated with biological weapons have been destroyed."

Hansard 9 February 1998

http://llpm.gc.ca

4. Edited Transcript Of Press Conference Given By The Foreign Secretary, Robin Cook, And US Secretary Of State, Madeleine Albright, FCO London, Saturday, 31 January 1998

"Lastly, one point I think it is important to stress since it comes out in your question is that UNSCOM has actually been a great success. UNSCOM has shut down the nuclear programme, it has gone a very long way to shutting down Saddam Hussein’s missile programme; . . . it is vitally important we don’t leave the job half-done and that we now complete it by finishing the chemical and biological powers."

Foreign Secretary Robin Cook

Homepage of the Permanent Mission of the United Kingdom to the UN

http://www.fco.gov.uk

5. Excerpts From Article By Samuel R. Berger, National Security Advisor To President Bill Clinton.

"Despite continual harassment and deception by the Iraqi regime over the years, UNSCOM has been remarkably effective in locating and destroying Saddam Hussein’s nuclear, biological, chemical and missile capabilities and establishing a long-term monitoring system that makes it far more difficult for the Iraqi regime to rebuild that capacity."

Washington Post, 1 March 1998: "Iraq: Securing America’s Interests"

6. UK Foreign Office Paper On Iraqi Threat And Work Of UNSCOM

What has UNSCOM achieved?

Despite constant Iraqi deceit, concealment, harassment and obstruction, UNSCOM has succeeded in destroying:

· 38,000 chemical weapons

· 480,000 litres of live chemical weapon agents

· 48 operational missiles

· Six missile launchers

· 30 special missile warheads for chemical and biological weapons

· hundreds of items of CW production equipment. Iraq originally claimed much of it was for peaceful use but later admitted its real purpose.

· Iraq claimed that the VX nerve gas project was a failure.

UNSCOM has discovered Iraq had the capability to produce VX on an industrial scale, and produced four tonnes. Work was also going on into numerous other agents: sarin, tabun and mustard gas.

· the Al Hakam BW factory (3 kms. by 6 kms.) which was able to produce 50,000 litres of anthrax and botulinum. Iraq claimed it was for animal feed . . .

UNSCOM has also discovered that Iraq produced 19,000 litres of botulinum, 8,400 litres of anthrax, 2,000 litres of aflatoxin (produces liver cancer) and clostridium (gas gangrene). Iraq has admitted filling ballistic missile warheads and bombs with the first three of these agents. These weapons were subsequently destroyed. Iraq denied the existence of all these biological agents until August 1995.

Homepage of the Permanent Mission of the United Kingdom to the UN

http://www.fco.gov.uk

7. Statement To The Fifty-Second Session Of The United Nations General Assembly — Dr. Hans Blix

"I have recently submitted to the Security Council a comprehensive report providing an overview of the agency’s activities in Iraq in the past six years (S/1997/779). After extensive work involving inspections, analysis of large volumes of documentation and of information received from Member States and former suppliers of relevant items, the use of new techniques for environmental monitoring, questioning of Iraqi staff and examination of items recovered from excavations, we have been able to construct a technically coherent picture of Iraq’s past nuclear programme and to gain a good understanding of the scope of the achievements of the programme. Assessment of Iraq’s re-issued ‘Full, Final and Complete Declaration’ against this coherent picture has not shown any substantial inconsistencies between the two. However, especially in the face of Iraq’s past practice of concealment, it is not possible to guarantee that the picture is complete nor that there could not still be some concealed components, activities and facilities, which did not form part of the technically coherent picture. As I have reported previously, the Agency has ensured the destruction, removal or rendering harmless of all discovered proscribed items and has placed dual-use items under monitoring."

Dr. Hans Blix (Former) Director General, International Atomic Energy Agency

Address by Dr. Hans Blix Director General, International Atomic Energy Agency, New York, 12 November 1997.

8. Press Report In New York Times

"In May 1996 the Iraqis under United Nations supervision began destroying Al Hakam, cutting up machinery with torches, burying items in cement and then dynamiting the rest of the plant."

New York Times, 26 February 1998: "Iraq’s Deadliest Arms: Puzzles Breed Fears — The Hunt For Germs Of War"

By William J. Broad and Judith Miller

PRESS REPORTS INDICATING THE FUTILITY OF MILITARY

MEASURES PROPOSED BY THE U.S.

1. Washington Post, 1 March 1998 "The Power Of Containment" by Brent Scowcroft

2. New York Times, 23 January 1998 "Countdown On Iraq: US Weighs February Attack" by Steven Erlanger

3. Washington Post, 9 March 1998 "Leaks: The Hidden Agenda" by Richard Harwood

4. Washington Post, 2 March 1998 — Editorial — "Toward A Policy On Iraq"

5. Washington Post, 17 February 1998 "Air Strikes: The Pluses And Minuses" by Charles N. Davis

6. Washington Post, 12 February 1998 "Air strikes — And Then What?" by George S. Will

7. Washington Post, 6 February 1998 "To Bomb Without Serious Intent" by Charles Krauthammer

8. International Herald Tribune, 2 March 1998 "Plagued US Plans To Attack Iraq" by Barton Gellman, Dana Priest and Bradley Graham

9. Washington Post, 24 February 1998 ". . . And The Limits Of ‘Whack-a-Mole’" by Richard Cohen

10. New York Times, 7 February 1998 "Military Force Has Its Limits" by Charles A. Horner (a retired general who commanded the American-led air forces in the Gulf War)

11. New York Times, 31 January 1998 "America’s Multiple-Choice Quiz" by Thomas L. Friedman

12. New York Times, 26 February 1998 "Chirac Wary Of Quick Attack If Iraq Breaks Inspection Deals" by Graig R. Whitney

13. New York Times, 30 January 1998 "Bombing Iraq Isn’t Enough" by William Kristol and Robert Kagan

  1. Globe and Mail, 21 February 1998 "Annan Extends Iraq Peace Mission" report from Associated Press and Reuters

 

 

 

FOOTNOTES

* Douglas Scott is the President of the Markland Group. The views expressed in this paper are personal. Information about Douglas Scott and the Markland Group can be seen on the Internet at www.hwcn.org/link/mkg.

1. Memorandum of Understanding between the United Nations and the Republic of Iraq, 23 February 1998. Reproduced in Appendix 1.

2. S/RES/1154 (1998): Reproduced in full in Appendix 2; summarized below in Section III of this paper.

3. Reported on the website operated by the United States Information Agency: http://198.80.36.136/regional/nea/iraq.

4, For a summary of this resolution, see Section III. For the full text, see Appendix 2.

5. See below, Section IV.

6 Washington Post, 9 March 1998: "US To Consult UN, But Might Act Alone" by Robert Burns.

7. The transcript of the interview was published on the website operated by ABC News: http://www.abcnews.com/onair/nightline/html_files/transcripts/nt10302.html.

8. Canada, House of Commons debates, 9 February 1998.

9. UN Charter, Article 51.

10. S/RES/660, 661, 662, 664, 665, 666, 667, 669, 670, 674, 677, 678, 686, 687, 688, 689, 692, 699, 700, 705, 706, 707, 712, 715, 773, 778, 806, 833, 899, 949, 986, 1051, 1060, 1111, 1115, 1129, 1134, 1137, 1143, 1153 and 1154; among these resolutions, the Nos. 660 - 986 are both summarized and presented in full text in the UN publication: "The United Nations and the Iraq-Kuwait Conflict, 1990-96," UN Publication Sales No. E.96.I.3.

11 http://198.80.36.136/regional/nea/iraq/legal.htm

12. http://www.abcnews.com/onair/nightline/html_files/transcripts/nt10302.html

13. The speech by the Right Honorable Jean Chrétien, Prime Minister of Canada, delivered during a debate in the House of Commons on 26 February 1998: House of Commons Debates. Speech by the Honorable Lloyd Axworthy, Minister of Foreign Affairs, delivered to a meeting in Ottawa on the occasion of the launch of the final report of the Carnegie Commission on Preventing Deadly Conflict, 17 February 1998, DFAIT Statements: 98/9.

14. Canada, House of Commons, debates 26 February 1998.

15. ASIL Flash Insight: "The Legal Background On The Use Of Force To Induce Iraq To Comply With Security Council Resolutions," by Frederic L. Kirgis, November 1997. Reproduced in Appendix 4.

16. New York Times, 5 February 1998, pg. A.6, "UN Resolutions Allow Attack On The Like Of Iraq."

17. New York Times, 7 February 1998, pg. A5, "The Issues Are Political More Than Legal At The UN."

18. New York Times, 4 February 1998, "U.S. Citing Its Authority In 1991 Congress Measure."

19. The full text is reproduced in Appendix 2.

20. Ibid.

21. UN document S/22456, 6 April 1991: "Identical letters from the Deputy Prime Minister and Minister for Foreign Affairs of Iraq to the President of the Security Council and to the Secretary-General stating that Iraq has no choice but to accept the provisions of Security Council resolution 687 (1991)"; UN document S/22480, 11 April 1991: letter dated 10 April 1991 from the Permanent Representative of Iraq to the President of the Security Council transmitting the National Assembly decision of 6 April 1991 concerning acceptance of Security Council resolution 687 (1991)."

22. Report of the Secretary-General to the Security Council dated 11 April 1991: S/22485.

23. Report of the Secretary-General to the Security Council dated 5 April 1991, paragraph 2: S/22454.

24. Report of the Secretary-General to the Security Council dated 9 May 1991: S/22580.

25. Security Council Resolution 665 (1990).

26. See footnote 19.

27. Resolution 686 (1991), paragraph 2 (c).

28. Ibid, paragraph 2 (d).

29. Ibid, paragraph 3 (c).

30. UN Blue Book Series, Volume IX, UN Publication Sales No. E96.1.3, pages 60-66.

31. See above footnote 12 (Section IV).

32. See Appendix 6, items 3, 4 and 7.

33. See Appendix 6, items 3 and 6.

34. See Appendix 6, item 6.

35. See Appendix 6, item 8.

36. Washington Post, 27 February 1998: "A Deal That’s Worse Than Worthless" by Charles Krauthammer.

37. See Appendix 7, "Press Reports Indicating the Futility of Military Measures Proposed by the US."

38. See Appendix 7, items 10-14.

39. See Appendix 7, items 10-14.

40. The above summaries follow closely a memorandum issued by Canada’s Department of Foreign Affairs and International Trade dated 30 November 1990.