Memorandum on the Question Whether Existing Security Council Resolutions Are Sufficient to Authorize...

8/14/2019 Memorandum on the Question Whether Existing Security Council Resolutions Are Sufficient to Authorize the US to

1/50

2013-11-02 Memorandum On The Question Whether Existing Security Council Resolutions Are Sufficient To Authorize The US To Take

www.fas.org/news/iraq/1998/03/dscottrpt.htm 1/50

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 Iraqs 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
http://www.hwcn.org/link/mkghttp://www.fas.org/news/iraq/1998/03/index.html


2/50



X If Not Military Measures, What Then?

Appendices

I The Current Situation

The crisis atmosphere over Iraqs refusal to allow inspections appears to have been only temporarilyallayed 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 tobe 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 WhiteHouse 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 theGulf.

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


3/50



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 Richardsons remarks during the interview notedabove.

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 theseimpressions.

The paper begins by addressing the question of relevancy whether or not it actually matters if theUS 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 existingresolutions. 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 thispoint, the US is on solid ground. There is little doubt that, without valid authority from the SecurityCouncil, 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 Canadas Prime Minister, Jean Chrtien, to the House of Commons during the debate thatpreceded Canadas 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 believetheir 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


4/50



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 beyonddoubt. 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.9Neither 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 resolutionsinto the following groups:

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

29 resolutions adopted after the Gulf War, of which 5 are selected for detailedcomment 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


5/50



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 bringtheir 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

Iraqs 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 Iraqs recent military deployment in the direction of Kuwait and demandedthat 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:


6/50



Resolution 678 (1990), adopted 29 November 1990 selected for discussionbecause 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 becauseit is the only other resolution that specifically authorizes military action in this casefor 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 aspecific reference to Resolutions 678 (1990) and 665 (1990).

Resolution 687 (1991), adopted 3 April 1991 selected because it specifies theterms 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 specificallymentions Resolution 678 (1990).

Resolution 1154 (1998), adopted 2 March 1998 selected because those arguingin 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 restoreinternational 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


7/50



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--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 longerobviously complying with that resolution he is blocking access to inspections, he has notfully 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 interviewthat 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 doesnt matter. Does the US have to go back to the UN before launching amilitary strike?

BILL RICHARDSON (New York): No, we dont Chris. Its always been Americasposition that there was sufficient authority in existing Security Council resolutions for us to


8/50



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 generals agreement, if they fail to provide unfettered,unconditional access to all sites, thats 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 Canadas part previous to thepresent 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, 1997.15This 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.


9/50



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 Iraqs 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."18The 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 VicePresident 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 Careys two letters contain the fullestexplanation 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).19As 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). 20They included an arrangement

for a demilitarized zone and some very detailed requirements calling for inspection and destruction of

Iraqs weapons of mass destruction. (The current controversy between Iraq and the UN centres onthese 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,21and a short while later the

Secretary General notified the Security Council that


10/50



. . . 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:

UNIKOMs 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 activitythat 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


11/50



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 Iraqs 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 Pickerings statement. Stated differently, this argument holds that, even if the effect ofthe 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

Iraqs 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 AprilResolution (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 UNs 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 Iraqs compliance with the inspection requirements. It

contains nothing to the effect that noncompliance is to be dealt with by the coalition states throughrevival 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 Iraqs breach of itsinspection 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


12/50



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 underthe 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 thecease-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 areawhich 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


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 isa 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


13/50



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 Iraqs breach of its inspection obligations under that resolution, the effectof 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 areawould 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 Iraqsinspection obligations. They may argue that, although the enforcement of inspection

obligations may be the operations immediate goal, the ultimate goal of the operationis 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, thatpurpose 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.


14/50



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 isto 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 coverenforcement 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 inthe 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


15/50



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 Councils adoption of Resolution 1154. The US appears to be arguing that this resolutionconfers 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 ofparagraph 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 isto 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;


16/50



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:






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 Councils 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 thirteenresolutions 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 undertakeneither for the purpose of implementing Resolution 660 (1990) in the sense of being intended to

complete Iraqs withdrawal from Kuwait, or for the purpose of implementing Resolution 664 (one ofthe 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.


17/50



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 todays setting would not fall within thepurposes of paragraph 2 which are limited to reversing the invasion of Kuwait.

In todays setting, the purposes provided in paragraph 2 have all but evaporated. The reversal of theinvasion 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 ofUNSCOM 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 ofResolution 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 Iraqs 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


18/50



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 doesnt matter. Does the US have to go back to the UN before launching a

military strike?

BILL RICHARDSON (New York): No, we dont Chris. Its always been Americasposition 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 generals agreement, if they fail to provide unfettered,unconditional access to all sites, thats 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 whats going to happen is severest consequences fromany member state that feels its security interest threatened or the United Nations, theSecurity Council . . .

Presumably, the ambassadors argument is that the reference to severest consequences must meanmilitary 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 thoseconsequences will follow it does not actually create any authority. Presumably AmbassadorRichardson 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:


19/50



. . . 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 Councilresolution 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 theSecurity 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:






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 effectiveit isa dead letter in which event, no authority for military action can be said to exist under any of theresolutions of the Security Council currently in effect.

Various arguments have been advanced in an effort to show that paragraph 2 has been revived orwill 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


20/50



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 actionnot by the United Statesbut by the Security Council, because the US is not a party to the agreement. Sincethe 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 Saddamssinister preparations will go unchecked. The world should be thankfulso the argument goesthatthe 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 biologicalweapons is serious but it can hardly be said to be imminent. Action to stop hisbuildup of weapons is clearly not needed immediately. Saddams ability to useweapons 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 Saddams stockpile of weapons. The cumulativeresults are impressive:

Virtually all of Iraqs nuclear capability has been eliminated.32


21/50



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 beencontinuously downward for Saddams 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 Iraqs behaviour, the fact is that over the seven yearssince the end of the Gulf War, the UN sanctions have produced impressive results.

The dramatic reductions noted above in Saddams weaponry have been achieved asa 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 whileallowing 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


22/50



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 SecurityCouncil 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


23/50



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 Councils most important instrument for enforcing disarmamenttreaties. 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

UNs ability to enforce a disarmament treaty. At the same time, the confrontation challenges theSecurity 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 improvementssuggested 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 UNs onlynon-violent instrument for ensuring peace.

In conclusion, it is possible to summarize the mistakes being made by the US and the other countriesthat 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 Iraq23 February 1998.


24/50



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 4ASIL Flash Insight: "The Legal Background On The Use Of Force

To Induce Iraq To Comply With Security Council Resolutions," by Frederic L.

Kirgis

Comme

Memorandum on the Question Whether Existing Security Council Resolutions Are Sufficient to Authorize...

Documents

Transcript of Memorandum on the Question Whether Existing Security Council Resolutions Are Sufficient to Authorize...