Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-22T06:54:00.421Z Has data issue: false hasContentIssue false
  • English
  • Français

The Legality of the 1993 US Missile Strike on Iraq and the Right of Self-Defence in International Law

Published online by Cambridge University Press:  17 January 2008

Dino Kritsiotis
Get access Rights & Permissions [Opens in a new window]

Extract

In the early evening hours of Saturday, 26 June 1993, the United States launched a missile attack on Iraq. Twenty-three Tomahawk sea-to-ground missiles were fired from two US warships, the USS Chancellorsville and the USS Peterson, located in the Persian Gulf and the Red Sea respectively.1 Sixteen of those launched hit their desired military target, the Military Intelligence Headquarters, situated just outside the Iraqi capital of Baghdad. A further four missiles fell within the compound of the intelligence service complex. Conflicting reports put the death toll at between six and eight civilians, with 20 injured, when the remaining three missile warheads went astray.2 The Venezuelan Embassy was also reported to have been damaged.3

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 45 , Issue 1 , January 1996 , pp. 162 - 177
Copyright
Copyright © British Institute of International and Comparative Law 1996

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Fourteen Tomahawk cruise missiles were launched from the USS Peterson and the remaining nine from the USS Chancellorsville: Evans, “Clinton Opts For Tomahawk”. The Times (London), 28 June 1993, p.3.

2. Keesing's Record of World Events (1993), Vol. 39, no.6. p.39531.Google Scholar

3. Cockburn, , “Clinton Acclaims Iraq Strike”, Independent (London), 28 06 1993, p.1.Google Scholar

4. For a recent, comprehensive overview of the relations between these two States see Freedman, and Karsh, , The Gulf Conflict: 1990–1991 (2nd edn, 1994), pp.xxix–xlii.Google Scholar

5. Security Council Res.688. adopted on 5 Apr. 1991, expressed the Council's grave concern over the “repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas”.

6. Adleman, , “Humanitarian Intervention: The Case of the Kurds” (1992) 4 Int.J. Refugee L. 4Google Scholar; Greenwood, , “Is There a Right of Humanitarian Intervention?”, The World Today, 02. 1993. p.34 at pp.35–36.Google Scholar

7. Keesing's Record of World Events (1992), Vol.38, no.7–8. p.39068.Google Scholar

8. Idem, Vol.38, no.12, p.39247 (1992); Vol.39, no.1, p.39291 (1993).

9. Weller, , “Clearing the Fog In Iraq” (1993) 143 N.L.J. 136.Google Scholar

10. UN Doc.S/26003 (26 June 1993).

11. “Excerpts from UN Speech: The Case for Clinton's Strike”. New York Times, 28 06 1993, p.A5.Google Scholar

12. This is the manner in which President Clinton explained the missile attack in a televised broadcast: see US Responds to Attack by Iraqi Government: Address to the Nation, Washington DC, 26 June 1993: US Department of State Dispatch. 5 July 1993. This matter is now firmly on the international agenda; see Roberts, and Kingsbury, , “Introduction: The UN's Roles in International Society Since 1945”, in their (Eds), United Nations, Divided World (2nd edn, 1993), p.1, at p.29.Google Scholar

13. UN Doc.S/26004 (27 June 1993), p.2.

14. UN Doc.S/5657 (27 June 1993). This position was expressed by the representative of Cape Verde, speaking on behalf of Council members belonging to the group of non-aligned countries (comprising Cape Verde, Djibouti, Morocco, Pakistan and Venezuela). The Chinese representative took a very similar view.

15. Fletcher, and Macintyre, , “UN Accepts Clinton Evidence that Iraq Plotted to Kill Bush”, The Times (London), 29 06 1993, p.13.Google Scholar

16. Supra n.14.

17. “Arab Governments Critical”, New York Times, 28 06 1993, p.AS.Google Scholar For the response of the Muslim world generally, see Ibrahim, , “Islamic Nations See Double Standards in US Raid”, New York Times, 29 06 1993, p. A4.Google Scholar See also the comments of Crown Prince Hassan of Jordan (supra n.14) and the Sudanese Foreign Minister: Beeston, , “Muslim Nations Critical”, The Times (London), 28 06 1993, p.3.Google Scholar

18. Whitney, , “European Allies Are Giving Strong Backing to US Raid”, New York Times, 28 06 1993, p.AS (emphasis added).Google Scholar

19. Sherman, , “Labour Questions Legality of US Attack”. The Times (London), 28 06 1993, p. 1.Google Scholar It was the contention of the Leader of the Opposition, the late John Smith, that the missile strike “[did] not seem to fall directly under any United Nations authorisation and its justification in international law is highly questionable”.

20. HC Hansard, Vol.227, col.657.28 06 1993.Google Scholar

21. McNair, . The Law of Treaties (1961), pp.206–211, 215–218.Google Scholar See also Res, G. A..2625(XXV), General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among Nations in Accordance with The Charter of the United Nations, 24 Oct. 1970, and Military and Paramilitary Activities In and Against Nicaragua: Nicaragua v. United Stales of America (Merits), I.C.J. Rep. 1986, 14, 99, para. 188.Google Scholar

22. (1966) II Y.B.I.L.C. 247. Both parties involved in the Nicaragua case, Ibid., accepted this notion in their written submissions.

23. Nicaragua, Idem, p.94, para. 176.

24. 29 B.F.S.P. 1137–38; 30 B.F.S.P. 195–196.

25. Nicaragua, , supra n.21, at p.94, para. 176 and p.103, para.194.Google Scholar See also Higgins, “The Legal Limits to the Use of Force by Sovereign Slates: United Nations Practice” (1961) 37 B.Y.I.L. 269,303.Google Scholar

26. Naulilaa Arbitration: Portugal v. Germany (1928) 2 R.I.A.A. 1012.Google Scholar

27. The prohibition on armed reprisals in modern international law was specified by G.A.Res.2625(XXV), supra n.21, a position which was taken to be a reflection of customary international law by the ICJ in Nicaragua, supra n.21. at p.101, para.191. Although see the views of Bowett, , “Reprisals Involving Recourse to Armed Force” (1972) 66 AJ.I.L. 1.Google Scholar

28. See “Contemporary Practice of the United States: Resort to War and Aimed Force”. US Digest, chap.14, §1. in (1979) 73 A.J.I.L. 489, 491–492.Google Scholar See also the American legal explanation of the bombardment of Libya in 1986: Dept. of State Bulletin. 06 1986, p.19.Google Scholar

29. McDougal, and Feliciano, . Law and Minimum World Public Order (1961). p.230.Google Scholar

30. Nicaragua, , supra n.21, at p.94, para.176.Google Scholar

31. Lauterpacht, , The Function of Law in the International Community (1933). pp. 177–182.Google Scholar

32. Supra n. 10.

33. Greenwood, . “International Law and the United States Air Operation Against Libya” (1987) 89 W. Virg. L.R. 933, 946.Google Scholar

34. Supra n.10.

35. Schachter, , “The Right of States to Use Armed Force” (1984) 82 Mich. L.R. 1620, 1638.Google Scholar

36. Dinstein, , War, Aggression and Self-Defence (2nd edn, 1994), p.216.Google Scholar

37. Idem, p.203. See also Schachter, , “In Defence of International Rules on the Use of Force” (1986) 53 U. Chicago L.R. 113, 132.Google Scholar

38. Clift, et al. , “Seven Days”, Newsweek. 12 07 1993, p.20.Google Scholar

39. Jehl, , “US Says It Put Off Iraq Raid Until It Had Conclusive Proof”, New York Times, 29 06 1993, p.A1.Google Scholar

40. Yet for a suggestion that the FBI and the CIA had reached their conclusions in early June and that, therefore, the “immediacy” of the strike is open to question, see Turque, , “Striking Saddam”, Newsweek. 5 07 1993, p. 16.Google Scholar

41. For a discussion relating to overt/covert self-defence measures, as opposed to overt/coven provocative acts, which is what is under discussion here, see the dissenting opinion of Judge Schwebel in Nicaragua, supra n.21, at p.374, and the critique by Dinstein, op. cit. supra n.36, at pp.209–210.

42. Caroline case, supra n.24.

43. Supra n.10.

44. CNN Interview, 27 June 1993. Quoted in Reisman, , “The Raid on Baghdad: Some Reflections on its Lawfulness and Implications” (1994) 5 E.J.I.L. 120, 121.Google Scholar

45. Greenwood, loc. cit. supra n.33, makes a similar point in connection with the “proportionality” issue over the 1986 American air raid on Libya.

46. See the comment of General Colin Powell: “What we didn't want to do is go all over Baghdad blowing up headquarters and palaces and other targets that might result in a lot of civilian casualties.” Quoted in Cockburn, “Tomahawk Signals Limits of US Power”. Independent (London), 28 June 1993, p.8. Powell estimated that the missile strike could involve the loss of a dozen lives in the neighbourhoods surrounding the Iraqi intelligence headquarters: Clift et al., op. cit. supra n.38.

47. See e.g. the view of Sir David Hannay, the British Representative to the UN, who considered the strike a “proper and proportionate” response to the Iraqi sponsorship of a terrorist act: supra n.14.

48. Schachter, , op. cit. supra n.35, at p.1637.Google Scholar

49. Brownlie, . International Law and the Use of Force by States (1963), p.275: Simma (Ed.)CrossRefGoogle Scholar, The Charier of the United Nations: A Commentary (1994). p.676.Google Scholar

50. Bowett, . Self-Defence in International Law (1958). pp.187–193Google Scholar; Schwebel, , “Aggression, Intervention and Self Defence in Modern International Law” (1972–II) 136 Hag. Rec. 411. 479.Google Scholar

51. Cassese, , International Law In a Divided World (1986). pp.232–233.Google Scholar

52. Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952–II) 81 Hag. Rec. 451, 498.Google Scholar

53. Supra n.10.

54. In its most thoroughgoing analysis of the international law of self-defence to date, the ICJ chose not to deliberate on this matter in Nicaragua, supra n.21, at p.103. para.194. Any comment made would necessarily have been obiter. However, see the dissenting opinion of Judge Schwebel. loc. cit. supra n.41. in which he rejects the reading of Art.51 as if it were worded “if and only if” an armed attack occurs.

55. Cassese, loc. cit. supra n.51.

56. Cassese, , “The International Community's ‘Legal’ Response To Terrorism” (1989) 38 I.C.L.Q. 589, 597.Google Scholar

57. Idem, p.598.

58. Engagement in or sponsorship of terrorist acts violates a State's obligation to all States in international law: see G.A.Res.2625, supra n.21; O.A.Res.40/61(1985) and S.C.Res.579(1985).

59. Nicaragua, supra n.21, at p.103, para.195. Although see the dissenting opinion of Judge Jennings, who, at p.543. argued for a broader notion of “armed attack”. The narrowness of the ICJ's interpretation has been criticised by Hargrove, , “The Nicaragua Judgment and the Future of the Law of Force and Self-Defence” (1987) 81 A.J.I.L. 135.Google Scholar

60. Brownlie, , op. cit. supra n.49, at p.278.Google Scholar

61. Jennings, and Watts, (Eds), Oppenheim's International Law (9th edn. 1992), Vol.1, Part I, pp.421–422.Google Scholar

62. Feder, , “Reading the UN Charter Connotatively: Toward a New Definition of Armed Attack” (1986–1987) 19 N.Y.U.J.I.L.P. 395.Google Scholar

63. Ronzitti, , Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (1985) gives a valuable account of State practice in this area.Google Scholar

64. Waldock, , op. cit. supra n.52, at p.467Google Scholar; Greenwood, , op. cit. supra n.33, at p.941.Google Scholar

65. US Constitution, Art.II, s.2.

66. Lauterpacht, (Ed.), Oppenheim's International Law (7th edn, 1952), Vol.II, p.430.Google Scholar

67. Adams, , “CIA Probes Saddam Plot to Kill Bush”, Sunday Times (London), 9 05 1993, p.1.16.Google Scholar

68. Egypt is reported to have considered “selective but aggressive” military action against Sudan for its alleged involvement in the failed assassination attempt on the life of President Hosni Mubarak in Ethiopia in June 1995: Sackur, and Huband, , “Egyptian Hardliners Call for Attack over Sudan Hit Squad”, Observer (London), 2 07 1995, p.14.Google Scholar

69. Dinstein, , op. cit. supra n.36, at pp.197–199.Google Scholar

70. This requirement is an innovative one, introduced by the conventional obligations of Charter law; it has yet to attract the force of customary international law: see Nicaragua, , supra n.21, at p.121, para.235. Examples of its observance in practice include the reporting of measures taken by the UK in self-defence in the Falklands, UN Doc.S/15025(1982) and by the US of its actions in Lebanon pursuant to its inherent right of self-defence, UN Doc.S/16197(1983).Google Scholar

71. Bowett, , op. cit supra n.50, at pp.197–198.Google Scholar

72. Supra n.10.

73. Higgins, , op. cit. supra n.25, at p.306.Google Scholar

74. Nicaragua, , supra n.21, at p.105, para.200.Google Scholar

75. Jennings, and Watts, , op. cit. supra n.61, at p.423, n.22.Google Scholar

76. Dinstein, , op. cit. supra n.36, at p.211.Google Scholar

77. For an exposition of this classic view, see Politakis, , “From Action Stations to Action: US Naval Deployment, ‘Non-Belligerency’ and ‘Defensive Reprisals’ in the Final Year of the Iran-Iraq War” (1994) 25 O.D.I.L. 31, 43.Google Scholar See also Weller, , “Attack Violates Principles Laid Down in United Nations Charter”, The Times (London), 28 06 1993, p.2.Google Scholar Cf. the view of Greenwood, , op. tit. supra n.33. at p.959.Google Scholar

78. Nicaragua, , supra n.21, at p.98, para.186.Google Scholar

79. See the reactions of the Representatives of France: UN Doc.S/PV.3245(1993), p.13; Japan at p.16; Brazil at p.18; Hungary at p.18; New Zealand at p.23; and Spain at p.24.Google Scholar

80. Notably, the British government and the Russian Representative in the Security Council, Ambassador Voronstov, concurred with the legal justification for the strike: Idem, pp.22 and 23 respectively.

81. For a suggestion that this is the present state of the law, see Shaw, , International Law (3rd edn, 1991), p.728, although the precise circumstances in which the use of force may be used in self-defence in response to State-sponsored terrorism are not specified.Google Scholar

82. Higgins, , Problems and Prospects: International Law and How We Use It (1994), p.252.Google Scholar

83. Corfu Channel Case: United Kingdom v. Albania I.C.J.Rep. 1949, 4, 35.Google Scholar

84. Cassese, , op. cit. supra n.51, at p.232.Google Scholar

85. Colvin, , “Iraq Plot to Kill Saddam ‘Betrayed By Washington’”, Sunday Times (London), 31 10. 1993, p.I.1.Google Scholar Although the US State Department issued a statement denying the existence of such a plot: see “Americans Deny Saving Saddam”, Independent (London), 8 11. 1993, p.10.Google Scholar

86. Greenwood, , op. cit. supra n.33, at p.960.Google Scholar