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The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense

Published online by Cambridge University Press:  27 February 2017

Ruth Wedgwood
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Extract

At long last, the people of Iraq are freed from the brutality of Saddam Hussein. The swift success of the coalition’s military campaign has been followed by predictable difficulties in organizing a hew government, restoring an economy, rebuilding civic society, and quelling violence from remnants of the old regime. But these challenges are kept in scale by recalling a dictator who murdered three hundred thousand fellow citizens. Saddam chose weapons of mass destruction as the central symbol of his domestic and international swagger—using the same internal security apparatus to parry United Nations inspectors and to extinguish domestic political dissent. Removing Iraq’s Ba’athist regime has ended a looming danger to regional neighbors, including Kuwait and Saudi Arabia. The crucial hopes for Middle East peace may also be enhanced by the change. And a new government in Baghdad lessens the chance that weapons matériel will be transferred to ill-intentioned nonstate actors.

Type
Agora: Future Implications of the Iraq Conflict
Information
American Journal of International Law , Volume 97 , Issue 3 , July 2003 , pp. 576 - 585
Copyright
Copyright © American Society of International Law 2003

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References

1 de Bruxelles, Simon, Britons ‘Find Graves of 300,000 Victims,’ Times (London) June 4, 2003, available in LEXIS, News Library, Major World Newspapers FileGoogle Scholar.

2 SC Res. 1441, op. para. 2 (Nov. 8, 2002), 42 ILM 250 (2003).

3 White House Information Sheet, Coalition Members (Mar. 27, 2003), at <http://www.whitehouse.gov/news/releases/2003/03/20030327–10.html>.

4 Wedgwood, Ruth, Unilateral Action in a Multilateral World, in Multilateralism and U.S. Foreign Policy: Ambiv-Alent Engagement 167 (Patrick, Stewart & Forman, Shepard eds., 2002)Google Scholar.

5 UN Charter Art. 27(3) (decisions of the Security Council on nonprocedural matters “shall be made by an affirmative vote of nine members including the concurring votes of the permanent members”).

6 GA Res. 377(V), UN GAOR, 5th Sess., Supp. No. 20, at 10, UN Doc. A/1775 (1950).

7 Cf. A Concise Encyclopedia of the United Nations 647–48 (HelmutVolgered.,2002) (Uniting for Peace Resolution was “de facto amendment” of the Charter).

8 See, e.g., LA Charte des Nations Unies 824 (Jean-Pierre Cot & Alain Pellet eds., 1991).

9 See Olonisakin, Funmi, Reinventing Peacekeeping in Africa: Conceptual and Legal Issues in Ecomog Operations (2000)Google Scholar; Wippman, David, Enforcing the Peace: ECOWAS and the Liberian Civil War, in Enforcing Restraint: Collective Intervention in Internal Conflicts 157 (Fisler Damrosch, Lori ed., 1993)Google Scholar.

10 SC Res. 788 (Nov. 19, 1992) (Liberia); SC Res. 1132 (Oct. 8, 1997) (Sierra Leone).

11 See Council for a Community of Democracies, Final Warsaw Declaration: Toward a Community ofDemocracies (June 27, 2000), reprinted in Council on Foreign Relations & Freedom House Independent Task Force, Enhancing U.S. Leadership at the United Nations (2000), available at <http://www.ccd21.org/articles/warsaw_declaration.htm>.

12 SC Res. 687 (Apr. 3, 1991), 30 ILM 847 (1991).

13 U.S. Government White Paper: Iraq Weapons of Mass Destruction Programs (Feb. 13, 1998), at <http://www.state.gov/www/regions/nea/iraq_white_paper.html>.

14 SC Res. 678, op. para. 1 (Nov. 29, 1990), 29 ILM 1565 (1990).

15 See generally Ruth Wedgwood, The Enforcement of Security Council Resolution 687: The Threat of Force Against Iraq’s Weapons of Mass Destruction, 92 AJIL 724 (1998).

16 One would wish to graduate any doctrine of desuetude according to the fundamental nature of the rights in balance, as in the long-neglected case of East Timor’s independence.

17 This Week (ABC television broadcast, Mar. 8,1998) (Remarks of Secretary-General Kofi Annan), Fed. Doc. Clearing House, Transcript No. 98030802–J12, available in LEXIS, Nexis Library, News File.

18 See, e.g., SC Res. 1134 (Oct. 23, 1997); SC Res. 1115 (June 21,1997); SC Res. 707 (Aug. 15,1991); Statement by the President of the Security Council Concerning United Nations Flights into Iraqi Territory, UN Doc. S/25081 (1993); Statement by the President of the Security Council, UN Doc. S/24240 (1992).

19 SC Res. 1441, supra note 2, op. para. 1.

20 Id., pmbl.

21 Id., op. para. 13.

22 Id., op. para. 2.

23 UN Doc. S/PV.4644, at 5 (2002) (Statement of Amb. Levitte: “France welcomes the fact t h a t . . . all elements of automaticity have disappeared from the resolution.”).

24 Id. at 3 (Statement of Amb. Negroponte).

25 See Report of the Secretary-General on the Activities of the Special Commission Established by the Secretary-General Pursuant to Paragraph 9(b) (i) of Resolution 687 (1991))UNDoc.S/1997/774,paras.47,48,62)74, available at <http://www.un.org/Depts/unscom/sres97–774.htm>; see also UNMOVIC Working Document, Unresolved Disarmament Issues: Iraq’s Proscribed Weapons Programmes (2003), available at <http://www.un.org/Depts/unmovic/new/documents/cluster_document.pdf>; Thirteenth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in Accordance with Paragraph 12 of Security Council Resolution 1284 (1999),UNDoc.S/2003/580, available at <http://www.un.org/Depts/unmovic/new/documents/quarterly_reports/s-2003–580.pdf>.

26 UN Press Release SC/7564 (Nov. 8,2002), available at <http://www.un.org/News/Press/docs/2002/SC7564.doc.htm>; cf. Annan, Kofi, On Sovereignty and Intervention, reprinted in Secretary-General Presents His Annual Report to General Assembly, UN Press Release SG/SM/7136, GA/9596 (Sept. 20, 1999)Google Scholar.

27 See, e.g., Report of the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters Related to the Security Council, UN Doc. A/50/47 (1996); Report of the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters Related to the Security Council, UN Docs. A/49/47, A/49/965 (1995), available at <http://www.globalpolicy.org/security/reform/reports.htm>.

28 See, e.g., Report of the Secretary-General, UN Doc. A/54/PV.4 (1999).

29 SC Res. 1483, op. para. 4 (May 22, 2003).

30 The National Security Strategy of the United States of America (Sept. 2002), available at <http://www.whitehouse.gov/nsc/nss.pdf> [hereinafter National Security Strategy].

31 SC Res. 1378 (Nov. 14, 2001), 41 ILM 505 (2002); accord SC Res. 1363 (July 30, 2001 ); SC Res. 1333 (Dec. 19, 2000), 40 ILM 509 (2001); SC Res. 1267 (Oct. 15, 1999).

32 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, Art. 10, 21 UST 483, 729 UNTS161, which provides:

Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance.

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10,1972, Art. 13(2), 26 UST 583,1015 UNTS 163, which provides for “notice of such withdrawal... to the United Nations Security Council three months in advance.”

33 SC Res. 1373 (Sept. 28, 2001), 40 ILM 1278 (2001).

34 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27); Prosecutor v. Tadić, Appeal of judgment, No. IT-94–1–A, paras. 116–45 (July 15, 1999), 38 ILM 1518,1540–46 (1999).

35 See, e.g., National Securitys Trategy, supra note 30, at 14 (“We will enhance diplomacy, arms control, multilateral export controls, and threat reduction assistance that impede states and terrorists seeking WMD, and when necessary, interdict enabling technologies and materials. We will continue to build coalitions to support these efforts . . .”).

36 Agreed Framework of the Nuclear Issue on the Korean Peninsula, Oct. 21,1994, N. Korea-U.S., 34 ILM 603 (1995).

37 The alarm was raised by varied sources, including the Cuban exile community and Senator Kenneth Keating on the floor of the Senate. The missile danger was also confirmed by a source in the Russian military and by U-2 overflights.

38 U.S. Dep’t of State, Memorandum: Legal Basis for the Quarantine of Cuba (Oct. 23, 1962), reprinted in Abram Chayes, The Cuban Missile Crisis: International Crises and the Role of Law 141 (1974).

39 See text at note 8 supra.

40 Professor Louis Henkin, a scholar unyielding in his principles, questioned whether Kennedy’s use of force was even within the ambit of Article 2(4) ‘s prohibition. “The question,” he wrote, “is not merely one of legitimate interpretation of the [Charter] words in the light of their history; the important question is what limitation [s] on such uses of force, assuming bona fide humanitarian (or other “peaceful”) purposes, are consistent with the spirit of the Charter and realistically viable in contemporary society?” Louis Henkin, Comment, in CHAYES, supra note 38, at 149, 153. That Professor Henkin and I may often differ in our practical conclusions does not change our shared view that the Charter requires a practical reading.

41 See, e.g., Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, ch. 10 (1997), available at <http://www.nwc.navy.mil/ILD/Documents/ChapterlO.pdf>.

42 Compare European Council, Declaration on Non Proliferation of Weapons of Mass Destruction, Annex II to Thessaloniki European Council, Presidency Conclusions, 19 and 20 June 2003, EC Comm’n SN 200/03, at 37, paras. 2, 4, available at <http://europa.eu.int/futurum/documents/other/oth200603_en.pdf> (“Our objective is to deter, halt and, where possible, reverse proliferation programmes of concern worldwide We have a wide range of instruments available: . . . as a last resort, coercive measures in accordance with the UN Charter.”).

43 Elihu Root, The Real Monroe Doctrine, 8 AJIL 427, 432 (1914).

44 Id.