I The Current Situation

II The Need For Valid Authorization From The Security Council

III The Existing Resolutions

IV Arguments Favouring The US Position

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

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:

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:

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.

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:

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:

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.

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:

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

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

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:

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.

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);

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).

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 :

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:

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:

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.

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:

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

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:

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:

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.

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).

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:

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:

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.

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:

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.

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.

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.

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.

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.

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.

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:

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 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):

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.

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:

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:

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.

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:

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

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:

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:

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

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.

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:

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:

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.

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.

· 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

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:

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:

2. They are underestimating the effectiveness of the sanctions.

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

Comment on ASIL Flash Insight by Edwin D. Williamson

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

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:

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.

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 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.

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,

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,

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,

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

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,

A

B

C

D