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United Nations Law in the Gulf Conflict

Published online by Cambridge University Press:  27 February 2017

Oscar Schachter
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Extract

This was written shortly after the gulf war of 1990-1991 came to an end. The collective action taken under the aegis of the United Nations has been hailed as a vindication of international law and of the principle of collective security. At the same time, it has also been perceived by many as still another example of the dominant role of power and national self-interest in international relations. A plausible case can be made for each of these views. An optimist may conclude in the rosy glow of the desired outcome that law and power have happily converged in this case. Even so, the massive devastation of civilian life during the war and the threat of renewed violence are troubling features. The promise of a new world order based on the rule of law still seems far from fulfillment, but there is renewed hope that the UN Charter will be taken seriously as an instrument of collective responsibility.

Type
Research Article
Information
American Journal of International Law , Volume 85 , Issue 3 , July 1991 , pp. 452 - 473
Copyright
Copyright © American Society of International Law 1991

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References

1 SC Res. 660 (Aug. 2, 1990), reprinted in 29 ILM 1325 (1990).

2 SC Res. 661 (Aug. 6, 1990), reprinted in 29 ILM at 1325.

3 16 UN SCOR (987th mtg.) at 10–11, UN Doc. S/PV.987 (1961). A majority in the Security Council voted in favor of a draft resolution requesting India’s withdrawal from Goa, but the USSR vetoed the draft. See Q. Wright, The Goa Incident, 56 AJIL 617 (1962).

4 Statement of Argentina in UN Doc. A/37/PV.51 (Nov. 2, 1982).

5 SC Res. 687 (1991), adopted April 3, 1991, after the fighting ceased. It is reprinted in 30 ILM 846 (1991).

6 SC Res. 661, supra note 2.

7 SC Res. 665 (Aug. 25, 1990), reprinted in 29 ILM at 1329.

8 SC Res. 221 (Apr. 9, 1966).

9 SC Res. 670 (Sept. 25, 1990), reprinted in 29 ILM at 1334.

10 SC Res. 669 (Sept. 24, 1990), reprinted in 29 ILM at 1333.

11 UN Docs. S/22021 (1990), and S/22193 (1991).

12 SC Res. 674, paras. 7, 8 (Oct. 29, 1990); SC Res. 686 (Mar. 2, 1991), reprinted in 30 ILM 568 (1991).

13 Iraq notified the Council in April 1991 of its acceptance of liability in principle as demanded by Resolution 686. UN Doc. S/22456 (Apr. 6, 1991). See also the response of the President of the Security Council, UN Doc. S/22485 (Apr. 11, 1991) (calling the Iraqi statement an “irrevocable and unqualified acceptance”).

14 SC Res. 678 (Nov. 29, 1990), reprinted in 29 ILM at 1565.

15 Article 42 of the UN Charter begins: “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces.”

16 SC Res. 687 (1991), supra note 5.

17 Iraq’s response to Resolution 687 is in UN Doc. S/22456 (Apr. 11, 1991).

18 SC Res. 661, supra note 2.

19 D. W. Bowett, Self-Defence in International Law 216–18 (1958); H. Kelsen, The Law of the United Nations 792 (1950).

20 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, 105, para. 199 (Judgment of June 27).

21 Id. at 103, para. 194.

22 P. Lewis, U.S. Preparing Draft on Claims Against Baghdad, N. Y. Times, Nov. 1, 1990, at A12, col. 1.

23 It has been suggested that if a proposed resolution authorizing force such as 678 had been vetoed, collective self-defense action would have been barred. See M. E. O’Connell, Enforcing the Prohibition on the Use of Force: The UN’s Response to Iraq’s Invasion of Kuwait, 15 S. Ill. U.L.J. 453, 478 (1991). This suggestion is clearly wrong. It does not make sense to conclude that failure of the Council to endorse action by a state should bar that action when it is otherwise permitted by the Charter and international law. A veto can obviously prevent a Council decision and therefore block the Council from prohibiting action. But a veto of a resolution that would approve or authorize otherwise permissible action cannot have the legal effect of precluding that action.

24 Many governments supporting action against Iraq regarded it as important for domestic political reasons to have UN authorization. See T. Friedman, Allies Tell Baker Use of Force Needs U.N. Backing, N.Y. Times, Nov. 8, 1990, at A14, col. 1. The UN resolution authorizing force was probably of decisive importance in obtaining U.S. congressional approval.

25 See O. Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1635 (1984); Y. Dinstein, War, Aggression and Self-Defence 216 (1988).

26 See H. Kelsen, supra note 19, at 744–45. See also Russett & Sutterlin, The U.N. in a New World Order, Foreign Aff., Spring 1991, at 69 (assumes Article 42 applies to Resolution 678).

27 Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 ICJ Rep. 151, 167 (Advisory Opinion of July 20).

28 This position was taken by C.-A. Fleischhauer, Legal Counsel to the Secretary-General of the United Nations, in a panel at the ASIL Annual Meeting on April 19, 1991. In his statement, Mr. Fleischhauer also stated that Resolution 678 was not adopted under Article 42 since it did not provide “for a collective enforcement action by the United Nations, let alone under its command.”

29 See H. Kelsen, supra note 19, at 756.

30 SC Res. 660 (1990), supra note 1.

31 Although Article 48 refers generally to “the action required to carry out the decisions of the Security Council,” it must mean “the decisions” that are made under chapter VII involving action that is legally required. It would not apply to all decisions made by the Council in the sense of Article 27 (on voting). The important distinction between binding and nonbinding decisions is not erased or blurred by Article 48.

32 Article 106 of the Charter reads, in part: “Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42.”

33 See interpretation in Report on Chapter VIII, Section B, Doc. 881, III/3/46, 12 UNCIO Docs. 502, 508 (1945), quoted in H. Kelsen, supra note 19, at 756.

34 See L. Goodrich & A. Simons, The United Nations and the Maintenance of International Peace and Security 398–405 (1955); H. Kelsen, supra note 19, at 756; K. P. Saksena, The United Nations and Collective Security 93 (1975). In 1948 UN Secretary-General Lie also stated that action under Article 42 required the agreements under Article 43. See 3 UN GAOR, pt. 2, Annexes, at 10, UN Doc. A/656 (1948).

35 See D. W. BOWETT, United Nations Forces 277 (1964); L. Sohn, The Authority of the United Nations to Establish and Maintain a Permanent Force, 52 AJIL 230 (1958).

36 See D. W. Bowett, supra note 35, at 30–39.

37 GA Res. 377 (V), para. 8 (Nov. 3, 1950); GA Res. 503 (VI), para. 2 (Jan. 12, 1952) (to the same effect).

38 Report of the Collective Measures Committee, 7 UN GAOR Supp. (No. 17), UN Doc. A/2215 (1952).

39 See UNCIO Report, supra note 33. See also M. Glennon, The Constitution and Chapter VII of the United Nations Charter, 85 AJIL 74 (1991); Note, Congress, the President and the Power to Commit Forces to Combat, 81 Harv. L. Rev. 1771, 1800 (1968).

40 See B. Meltzer, A Note on Some Aspects of the Nuremberg Debate, 14 U. Chi. L. Rev. 455, 461 (1946–47).

41 Report of Committee on Study of Legal Problems of the United Nations, Should the Law of War Apply to United Nations Enforcement Action?, 46 ASIL Proc. 216 (1952).

42 Id. at 220.

43 54 Institut de Droit International, Annuaire 465–70 (1971 II).

44 SC Res. 670 (Sept. 25, 1990), reprinted in 29 ILM at 1334; and SC Res. 674, supra note 12. On violations by Iraq, see T. Meron, Prisoners of War, Civilians and Diplomats in the Gulf Crisis, 85 AJIL 104 (1991).

45 See UN Doc. S/22366 (Mar. 20, 1991) (Report of Secretary-General’s mission to assess humanitarian needs).

46 Article 48 of Protocol I Additional to the Geneva Conventions of 1949 provides: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3, reprinted in 16 ILM 1391, 1412 (1977).

This fundamental principle is generally accepted and regarded as customary law. See T. Meron, Human Rights and Humanitarian Norms as Customary Law 62–70 (1989).

47 Hague Rules of Air Warfare, drafted December 1922–February 1923, in The Law of armed Conflicts 207 (D. Schindler & J. Toman 3d rev. ed. 1988); Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 632–33 n.3 (Y. Sandoz, C. Swinarski & B. Zimmermann eds. 1987). For discussion of restrictions on attacks against dams, dikes and nuclear power stations, see G. Aldrich, Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol I, 26 Va. J. Int’l L. 693, 714–16 (1986).

48 See W. H. Parks, Air Law and the Law of War, 32 Air Force L. Rev. 1, 138–39 (1990).

49 Id. at 156–58.

50 See, e.g., Arts. 51(7) and (8), and 58 of Protocol I, supra note 46.

51 See Parks, supra note 48, at 157–64. See also Arts. 51(8), 57, and 58 of Protocol I, supra note 46.

52 SC Res. 688 (Apr. 5, 1991), reprinted in 30 ILM at 858.

53 However, in May 1991, the Secretary-General did dispatch a small contingent of UN “guards” to perform minimal policing in an area where displaced Kurds were located and UN relief operations carried out. While the guards were not equipped to defend Kurds from Iraqi military attacks, their presence alone was expected to deter such attacks. The Secretary-General’s action was not expressly authorized by the Security Council or by Iraqi agreement. However, it could reasonably be regarded as implicitly authorized by Council Resolution 688 of April 5, 1991, paragraph 5, which requested that the Secretary-General “use all the resources at his disposal … to address urgently the critical needs of the refugees and displaced Iraqi population.” No objection was raised in the Security Council to the deployment of the UN guards.

54 Quoted in G. Mangone, A Short History of International Organization 32 (1954).

55 I. Claude, Power and International Relations 106–07 (1962).

56 F. H. Hinsley, Power and the Pursuit of Peace 225–37 (1963).

57 See W. Schiffer, The Legal Community of Mankind 202–23 (1954). See also A. Zimmern, The League of Nations and the Rule of Law 265 (1936).

58 See I. Claude, supra note 55, at 153; H. Morgenthau, Politics Among Nations 470–71 (1961); R. Stromberg, The Idea of Collective Security, 17 J. Hist. Ideas 250–63 (1956).

59 See Y. Dinstein, supra note 25, at 230–53; M. Virally, Panorama du droit international contemporain, 183 Recueil des Cours 9, 298 (1983 V).

60 O. Schachter, Self-Defense and the Rule of Law, 83 AJIL 259 (1989).

61 See supra notes 20, 21.

62 In May 1991, President Bush proposed arms control measures for the Middle East region, including (1) limits on the supply of conventional weapons, (2) elimination of production and acquisition of material used for nuclear weapons, (3) a freeze on producing and testing of ballistic missiles and their eventual ban, and (4) prohibition of poison gas and biological weapons. See N. Y. Times, May 30, 1991, at A1, col. 6. President Mitterand of France also proposed several arms limitation measures to be adopted by all countries.