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The Gulf War from the point of view of international law*: An ordinary war of aggression inspired by territorial ambition?**

Published online by Cambridge University Press:  07 July 2009

I.F. Dekker  and
H.H.G. Post
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Extract

Iraq and Iran would certainly not come at the top of everyone's list of States which are particularly concerned with the implementation of international law. However, as is the case in virtually all international conflicts, to justify their actions in the Gulf War, these States have also adopted positions based on arguments of international law. In a complicated conflict such as this, it is by no means easy to assess the validity of such justifications, as this contribution attempts to do, if only because the facts are extremely difficult to determine objectively. For purposes of international law, this problem regarding the facts can be partially avoided by analysing the conflict mainly on the basis of the viewpoints raised during the discussions of the conflict in the Security Council and the General Assembly of the United Nations. Moreover, only the first stage of the conflict up to 1980 is examined here.

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Netherlands Yearbook of International Law , Volume 17 , December 1986 , pp. 75 - 105
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Copyright © T.M.C. Asser Press 1986

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References

1. Texts of the Treaty of Erzerum and the Protocol of Constantinople can be found, inter alia, in Official Journal of the League of Nations (1935) p. 197 et seq.Google Scholar; U. Gehrke and G. Kuhn give the text of the Protocol as Document 25 in the ‘Dokumenten-Anhang’, p. 53 et seq. (see in particular, p. 61) contained in their Die Grenzen des Irak (1963). Khalid Al-Izzi reproduces translated texts of the treaty and the Protocol in The Shatt-al-Arab River Dispute in Terms of Law (1972) p. 123 et seqGoogle Scholar. and p. 131 et seq., respectively. (However, neither the origin of these texts nor the status of the translations is given). Article II of the Protocol of Constantinople provides for a commission for the delimitation of the frontier (Commission de délimitation). This commission was formed and convened in 1914. The results of their activities, which are binding on the Parties, were recorded in the ‘minutes’. These ‘minutes’ were not published, but were made available for the archives of the League of Nations in Geneva. E. Lauterpacht describes the most important results of the Commission's work in ‘River Boundaries: Legal Aspects of the Shatt-al-Arab Frontier’, 9 ICLQ (1960) pp. 212–214Google Scholar. The only notable difference from the principles of the Protocol is a (limited) extension of the Persian sector of the Shatt-al-Arab facing the city of Muhammara (now Khorramshar) as far as the middle of the river (medium filum aquae).

2. Despite this arrangement, Wilson reported that: ‘… Jurisdiction of all kinds on the Shatt (up to the point where both banks were in the possession of Turkey) was jointly shared, the medium filum aquae being regarded as the boundary, notwithstanding the Treaty of 1847’: in Wilson, A.T., Persia (1932) p. 124Google Scholar. According to Wilson, complete control over the waterway was only really exercised from Bhagdad (in fact, Basra) during the British occupation from 1918.

3. After British occupation during the First World War Iraq was proclaimed a British mandatory territory (by Great Britain) in 1920. This led to a revolt by the population of Iraq, which resulted in the coronation of King Faisal on 23 August 1921, a date which is often considered as the beginning of Iraqi independence. Nevertheless, in 1924 the Council of the League of Nations agreed to a (modified) British draft mandate. On these grounds Iraq has been occasionally referred to as a quasi-mandatory territory. In 1932 Iraq was accepted as a member of the League of Nations.

4. For a survey of various descriptions of the ‘Thalweg principle’, cf., for example, E. Lauterpacht, loc.cit. n.1, p. 216 et seq.

5. For further details, cf., Gehrke and Kuhn, op.cit. n.1, pp. 225–232.

6. For the letter in which the Persian negotiator agrees with this ‘note explicative’ see 16/2 Journal Officiel (1935) p. 233Google Scholar. See also Gehrke and Kuhn, op.cit. n.1, p. 50. Lauterpacht, op.cit. n.1, gives a short summary of the viewpoints adopted by Parties in the League of Nations debate on pp. 214–216.

7. 16/2 Journal Officiel (1935) pp. 217–220Google Scholar; cf., also Gehrke and Kuhn, op.cit. n.1, pp. 234 and 180.

8. It was agreed in Article III of the Protocol of Tehran of 1911 that a further arrangement should be based on the Treaty of Erzerum. This took place in 1913 in Constantinople. Text in 16/2 Journal Officiel (1935) p. 234Google Scholar; also in Gehrke and Kuhn, op.cit. n.1, pp. 70–71.

9. In order to emphasize the (customary law) binding character of the principle, Iran referred, inter alia, to the Barcelona Convention on the Regime of Navigable Waterways of International Concern of 21 April 1921 (7 League of Nations Treaty Series p. 50 et seq.) After a careful analysis, Lauterpacht, loc.cit. n.1, p. 216 et seq., particularly pp. 234–235, does not come to the conclusion that the Thalweg principle has to be applied in such a case on the grounds of customary international law.

10. Nuri As-Said's most important argument in international law was that because the Protocol did not require ratification, the absence of such ratification had no effect on its validity in international law. See 16/2 Journal Officiel (1935) p. 116.Google Scholar

11. An important political reason for reaching agreement that is often put forward is the fact that during this period the States of the Middle East wanted closer co-operation so that they would be better able to ward off European imperialist tendencies. A few days after the Iran/Iraq frontier treaty the so-called Sadabad Pact was concluded, reinforcing its content, see, e.g., Gehrke and Kuhn, loach, n.1, pp. 246 and 247.

12. Text in 190 LNTS p. 256 et seq.; also in 8 ILM (1969) p. 478 et seq.

13. See Khalid Al-Izzi, op.cit. n.1, p. 45 or Gehrke and Kuhn, op.cit. n.1, p. 260.

14. Ramazani, R.K., The Persian Gulf and the Strait of Hormuz (1979) p. 103Google Scholar, and in greater detail, Gehrke and Kuhn, op.cit. n.1, pp. 257–258, who also state that Quassim expressed a more temperate view on 19 December (pp. 263–264). At about the same time a note was made of a completely different Iraqi claim to territory. The pro-government Iraqi press published items stating that a vote should be held in the Iranian province of Khuzistan (for Iraq: Arabistan) in order to determine whether this province should belong to Iraq or Iran. These reports were not followed up at government level. In fact Iran has governed this province, which has a predominantly Arab population, since the seventeenth century (see Gehrke and Kuhn, op.cit. n.1, pp. 285–287).

15. In December 1966 a common declaration was issued in Tehran, but this declaration revealed little more than a desire on the part of both States to continue negotiations (see, Al-Izzi, op.cit. n.1, p. 61).

16. On 19 April the Shah announced this step at a press conference, and on 27 April it was confirmed in an official communique. Iran based its termination not only on the Iraqi violations of the Treaty, but also on the rebus sic stantibus principle (Al-Izzi, op.cit. n.1, quotes the text of the communique on pp. 62–63: also see his commentary on pp. 90–92). In view of the strict conditions with which such an appeal must comply (see also Art. 62 of the Vienna Convention on the Law of Treaties, 1969, text in 8 ILM (1969) p. 679) and the generally accepted opinion that no appeal can be made to the principle in respect of border treaties (Law of Treaties, Art. 62.2), these grounds for termination do not seem very strong. As regards the latter, see the International Court of Justice in the Temple of Preah Vihear case, ICJ Rep. (1962) p. 34 et seq. See also, e.g., SirSinclair, Ian, The Vienna Convention on the Law of Treaties (1984) pp. 192–196Google Scholar; Bastid, S., Les traités dans la vie international: conclusions et effets (1985) pp. 211 and 212Google Scholar. In this article the question of the legality of the Iranian termination can be largely left out of consideration.

17. Amin, S.H., ‘The Iran-Iraq Conflict: Legal Implications’, 31 ICLQ (1982) p. 167 at p. 173CrossRefGoogle Scholar, or Al-Izzi, op.cit. n.1, pp. 63 and 64.

18. See Gehrke and Kuhn, op.cit. n.1, p. 289 et seq. and in particular, p. 340 (also see Al-Izzi, op.cit. n.1, pp. 89 and 90). The termination of a treaty on the basis of violations by the other Party is subject to strict conditions, see text. In this context it is also interesting that since 20 June 1938 a treaty has been in force between the two States relating to the peaceful settlement of disputes (190 LNTS (1938) p. 269). As this treaty was, as far as we know, still in force in 1969 and providing for the compulsory settlement of disputes by the ICJ, at least for non-territorial disputes, the Iranian position is presumably also doubtful, viewed in this light: there is no evidence that Iran has made any attempts to solve disputes, particularly relating to the freedom of navigation by these means. In a letter to the President of the Security Council, the Iraqi permanent representative to the United Nations also seems to refer to this possibility (Doc. UN/19 of 11 July 1969).

19. For example, on 22 April 1969 Iran sent a ship accompanied by the Iranian Navy along the Shatt-al-Arab, without taking into account the Iraqi shipping regulations. As in similar subsequent cases, Iraq did not react directly. However, in the following months thousands of Iranian citizens were expelled from Iraq. In addition, see for example, Day, A., ed., Border and Territorial Disputes (1982) p. 217Google Scholar; Sreedhar, , ‘The Iran-Iraq War: A Preliminary Assessment’, Foreign Affairs Reports (1980) p. 245Google Scholar; and also Amin, loach, n.16, p. 175, on the occupation by Iran of the islands Abu-Musa and Greater and Lesser Tunbs in 1971, and the Iraqi reactions to this.

20. See Hünseler, P., Der Irak und sein Konflikt mit Iran (1982) pp. 33–34.Google Scholar

21. This friendship treaty was concluded on 9 April 1972, and was registered with the UN Secretariat, but to the best of the authors' knowledge, it was not published. For the Iranian support, which was also of a more direct nature, see Kutschera, C., Le Mouvement National Curd (1979) pp. 316–319.Google Scholar

22. Hünseler, op.cit. n.20, pp. 35–36 and 41. One of the reasons for the shortage of ammunition given, inter alia, by Saddam Hussein himself was insufficient supplies by the Soviet Union (Hünseler, ibid., pp. 36–37 and fn.104). For a description of this stage in the Kurd Revolt, see Kutschera, op.cit. n.21, pp. 300–319.

23. Text in UNTS, vol. 1017, no. 14903.

24. Ibid.

25. See, e.g., Hünseler, op.cit. n.20, p. 48 et seq.

26. Resolutions and Decisions of the Security Council (1980) p. 23 (28 September).Google Scholar

27. This also applies for the memorandum dated 17 September 1980 (!) from the Iraqi Ministry of Foreign Affairs to the Iranian Embassy in Bhagdad, in UN Doc. S/14272, ann. 1.

28. UN Doc. A35/483-S/14191.

29. This concerns an area of approximately 120 km2 at Zain al-Qos; see Amin, loc.cit. n.17, p. 179, or Hünseler, op.cit., n.20, pp. 69–70.

30. There were incidents between the two States from the beginning of 1980; see Amin, loc.cit. n.17, pp. 167–168 or UN Doc. S/14020 (letter of 20 June 1980 from Iraq to the Secretary-General of the United Nations).

31. UN Doc A/35/483-S/14191.

32. This argument is dealt with in greater detail later.

33. 1017 UNTS, no. 14903. The complete text of this article reads:

‘Article 6

1. In the event of a dispute regarding the interpretation or implementation of this Treaty, the three Protocols or the annexes thereto, any solution to such a dispute shall strictly respect the course of the Iraqi-Iranian frontier referred to in articles 1 and 2 above, and shall take into account the need to maintain security on the Iraqi-Iranian frontier in accordance with art. 3 above.

2. Such disputes shall be resolved in the first instance by the High Contracting Parties, by means of direct bilateral negotiations to be held within two months after the date on which one of the Parties so requested.

3. If no agreement is reached, the High Contracting Parties shall have recourse, within a threemonth period, to the good offices of a friendly third State.

4. Should one of the two Parties refuse to have recourse to good offices or should the good offices procedure fail, the dispute shall be settled by arbitration within a period of not more than one month after the date of such refusal or failure.

5. Should the High Contracting Parties disagree as to the arbitration procedure, one of the High Contracting Parties may have recourse, within 15 days after such disagreement was recorded, to a court of arbitration.

With a view to establishing such court of arbitration each of the High Contracting Parties shall, in respect of each dispute to be resolved appoint one of its nationals as arbitrators and the two arbitrators shall choose an umpire. Should the High Contracting Parties fail to appoint their arbitrators within one month after the date on which one of the Parties received a request for arbitration from the other Party, or should the arbitrators fail to reach agreement on the choice of the umpire before that time-limit expires, the High Contracting Party which requested arbitration shall be entitled to request the President of the International Court of Justice to appoint the arbitrators or the umpire, in accordance with the procedures of the Permanent Court of Arbitration.

6. The decision of the court of arbitration shall be binding on and enforceable by the High Contracting Parties.

7. The High Contracting Parties shall each defray half the costs of arbitration’.

Also 14 ILM (1975) p. 1134. The English text of the treaty contained in ILM is taken from the Bhagdad Observer, nos. 2240 and 2241 of 23 and 14 June 1975, and differs from the official UN text in some important respects.

34. UN Doc. S/14249.

35. 1017 UNTS, no. 14903. If possible the Bhagdad Observer text (loc.cit. n.33) is even more clear: ‘… which constitute an inseparable part thereof, are final and permanent provisions, irrevocable for whatever reason …’ Article 5 is less clear:

‘Article 5

In keeping with the inviolability of the frontiers of the two States and strict respect for their territorial integrity, the High Contracting Parties confirm that the course of their land and river frontiers shall be inviolable, permanent and final’.

36. In the memorandum dated 17 September (see n.27) Iraq declared that the Algiers Agreement, the Treaty of 13 June, as well as the four additional Treaties of 26 December 1975 (UNTS, vol. 1017, nos. 14904–907) were null and void on the grounds of the arguments given in the main text.

37. Letter dated 26 October in UN Doc. S/14249.

38. The ILM text, cf., n.33, states: ‘… and consequently any encroachment upon any element of such comprehensive settlement is contradictory in principle to the essence of [the] Algiers Agreement’.

39. In view of the text of Art. 4, the ‘indivisibility’ of the Treaty of the Algiers Agreement is less clear. The intention of the Parties seems to have been, above all, to emphasize the relation between the Treaty and its Protocols and Annexes.

40. UN Doc. S/14272.

41. ICJ Rep. 1980 p. 40.

42. Meanwhile some discussion of the concept ‘self-contained regime’ has taken place in international law, not least because such regimes are referred to in the reports of the International Law Commission's Special Rapporteur on State Responsibility (see, e.g., ILC Yearbook 1982 vol. 1, p. 202). The question which arises in this context in particular is whether States whose rights under the regime concerned are violated, may take (any) measures (‘counter measures’) other than those explicitly permitted by the regime. Irrespective of the answer to this question – and the question of how ‘self-contained’ the regime of the treaty really is – the following point can still be made. There is no doubt in relevant international law literature that a State (also) has the duty to choose the remedies of the regime. Furthermore, the possibly permitted ‘counter measures’ certainly cannot involve the use of armed force and they should have a proportional character. See Simma, B., ‘Self-contained Regimes’, 16 NYIL (1985) p. 111, 134–136CrossRefGoogle Scholar and in particular, as regards the last point, Zoller, E., Peacetime Unilateral Remedies: An Analysis of Countermeasures (1984) pp. 125–128, 131–137.Google Scholar

43. Unless the general remark of Mr. Hammadi that Iraq had exhausted all the peaceful means available for a period of three years (UN Doc. S/14192) is taken literally. Also see Hiinseler, op.cit. n.20, pp. 63–69, who does not mention any Iraqi appeal to the procedures of Art. 6.

44. See nn. 36 and 27 supra.

45. Art. 26 of the Vienna Convention on the Law of Treaties; in ILM (1969) p. 679 et seq. Neither Iraq nor Iran are Parties to this treaty. However, the articles relevant here probably reflect international customary law on this matter. See also, Brownlie, I., Principles of Public International Law (1982) p. 615Google Scholar; Sinclair, op.cit. n.16, p. 188–190. For example, in its Advisory Opinion in the Namibia (South West Africa) case the International Court of Justice uses the criteria of Art. 60(3) (ICJ Rep. 1971 p. 47).

46. Art. 56(1)(a) of the Vienna Convention provides for the possibility of unilaterally terminating a treaty if it can be shown that the Parties intended to make use of such a possibility. It seems very unlikely that there was such an intention for this treaty, and this is certainly difficult to demonstrate on the basis of the text. Apart from this, customary law requires ‘reasonable notice’ for termination (see, e.g., Akehurst, M., A Modern Introduction to International Law (1985) p. 136Google Scholar, or O'Connell, D.P., International Law, vol. 1 (1970) p. 268)Google Scholar. The Vienna Convention even prescribes a period of one year in Art. 56(2).

47. See, e.g., Simma, B., ‘Reflections on Article 60 of the Vienna Convention on the Law of Treaties and its Background in General International Law’, 20 Österreichische Zeitschrift für Offentliches Recht und Völkerrecht (1970) pp. 60–63Google Scholar; also, Sinclair, op.cit. n.16, pp. 188–189 and O'Connell, op.cit. n.46, p. 267, fn.40.

48. Simma, loc.cit. n.47, p. 82; also Sinclair, op.cit. n.16, p. 188.

49. UN Doc. S/14272, Ann. 1.

50. In fact, it is not clear from the history of Art. 51 how such an attack should be interpreted. There seems to be a consensus in international law literature that an armed attack should certainly be ‘substantial’. See, e.g., Brownlie, I., International Law and the Use of Force by States (1963) pp. 278–279Google Scholar. In this context it is also said that an act of aggression in the form of an armed attack has taken place. See, e.g., Rifaat, A.M., International Aggression (1979) pp. 124–125Google Scholar. The significance of the concept of aggression in this context is discussed in greater detail below.

51. It can be added that even the available surveys of events (such as that by Hünseler, op.cit. n.20, pp. 63–69, or Amin, loc.cit. n.17, pp. 167–168) contain no mention of any sizeable Iranian military activities against which Iraq would have had to defend itself in the manner adopted on 22 September 1980.

52. Substantial military actions by Iran were mentioned as late as 27 October 1980 (UN Doc. S/14236). In a letter dated 16 November 1980 (contained in UN Doc. S/14272) Iraq links its military activities to ‘… the escalation of Iranian aggression against Iraq …’

53. Cf., for example, Kelsen, H., The Law of the United Nations (1951) p. 269Google Scholar, or Kunz, J.L., ‘Individual and Collective Self-Defence in Article 51 of the Charter of the United Nations’, 41 AJIL (1947) p. 878CrossRefGoogle Scholar, and Brownlie, op.cit. n.50, p. 273. A position favouring a wider right to self-defence is advocated, inter alia, by Bowett, D.W., Self-defense in International Law (1958) pp. 185–186Google Scholar and by McDougal, M.S. and Feliciano, F.P., Law and Minimum World Public Order (1961) pp. 232–241.Google Scholar

54. See Brownlie, op.cit. n.50, pp. 261–265 and 279; Rifaat, op.cit. n.50, p. 127.

55. UN Doc. S/14236 emphasis added.

56. See, e.g., Rifaat, op.cit. n.50, pp. 126–127, O'Connell, op.cit. n.46, p. 317, or Bowett, D.W., ‘Economic Coercion and Reprisals by States’, 13 Virg. JIL (1972) p. 4.Google Scholar

57. Rifaat, op.cit. n.50, p. 127.

58. Brownlie, op.cit. n.50, p. 275 (see also fn.1) and p. 278.

59. UN Doc. S/14191 and S/14192, respectively.

60. UN Doc. S/14191: idem in the memorandum of 17 September 1980 included in UN Doc. S/14272).

61. For a description of estoppel see, e.g., the International Court of Justice in the North Sea Continental Shelf cases, ICJ Rep. (1969) para. 30. Recently the Court emphatically confirmed this description in its decision of 26 November 1984 in the ‘Case concerning Military and paramilitary in and against Nicaragua’, para. 51. Nevertheless, the answer to the question whether in this case Iraq really was ‘estopped’ obviously requires a more thorough analysis.

62. UN Doc S/14236.

63. Ibid.

64. Ibid.

65. Al-Izzi, op.cit. n.1, who is not, in general, unfavourable with regard to Iraqi views, does not mention this either. Also see the discussion above on the validity of the Treaty of Erzerum and this Protocol.

66. See S/Res/514 (1982), 522 (1982), 540 (1983) and 582 (1986) as well as the Statements of the President of the Security Council on the situation between Iran and Iraq, of 23 September 1980 (UN Doc. S/14190), 5 November 1980 (UN Doc. S/14244), 21 February 1983 (UN Doc. S/15616), 30 March 1984 (UN Doc. S/16454) and 25 April 1985 (UN Doc. S/17130). This last resolution of the Security Council is dealt with further in this article, see infra under section 9. Up to now the General Assembly of the United Nations has not condemned Iraqi military action against Iran. The only resolution of the General Assembly on this situation (A/Res/37/3, of 22 October 1982) was, in fact, rejected by Iran.

67. See the first Iranian letter to the Secretary General of the United Nations on this issue, signed by the President of Iran at the time, Bani-Sadr, on 1 October 1980, UN Doc. S/14206; and the Iranian note verbale of 4 October 1982 to the Secretary General of the United Nations, UN Doc. S/15448.

68. The report of the press conferences held at the headquarters of the United Nations in New York on 13 and 18 February 1986 in which the Iranian permanent representative at the United Nations, Said Rajaie-Khoros, once again laid down the conditions for Iranian co-operation in negotiations in the Security Council: UN News Digest, Press Release WS/1277, 27 March 1986, pp. 4–5.

69. Declaration of the Iranian representative in the Security Council of 23 October 1980, UN Doc. S/PV 2252 p. 37. See also A Review of the Imposed War by the Iraqi Regime upon the Islamic Republic of Iran, Legal Department of the Ministry of Foreign Affairs of Iran (1983) pp. 53, 69 and 78.Google Scholar

70. The Security Council has expressed its views a number of times regarding violations of the law of war in the Gulf War and has, in particular, condemned the use of chemical weapons against Iranian soldiers; see the Statements of the President of the Security Council of 30 March 1984 (UN Doc. S/16454), 25 April 1985 (UN Doc. S/17130) and S/Res/582 (1986) on 24 February 1986. On this subject see Travernier, P., ‘La Guerre du Golfe: quelques aspects de l'application du droit des conflits armés et du droit humanitaire’, 30 AFDI (1984), pp. 41–64.Google Scholar

71. See the resolutions of the Assembly of the League of Nations of 25 September 1925 and 24 September 1927; the Draft Treaty of mutual assistance, 1923, and the Geneva Protocol for the peaceful settlement of international disputes, 1924. All these documents are contained in Ferencz, B.B., Defining Aggression (1975) vol. 1, p. 77 et seqGoogle Scholar. For further details see Brownlie, op.cit. n.50, p. 66 and Rifaat, op.cit. n.50, p. 50.

72. The proceedings of the first Nuremberg trial are contained in Trial of the Major War Criminals before the International Military Tribunal, 42 vols. (1947)Google Scholar (the so-called ‘blue series’); the proceedings of the twelve following trials in Nuremberg before American courts are contained in Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law no. 10 in 15 vols. (1946-1951)Google Scholar (the so-called ‘green series’). The first Nuremberg trial was motivated on the basis of the Agreement for the prosecution and punishment of the major war criminals of the European axis, 1945, to which was added, as an annex, the Charter of the International Military Tribunal (see 82 UNTS (1951) p. 284). With regard to the first Nuremberg Judgment, reference is made below to ‘Judgment and Sentences’, 42 AJIL (1947) p. 172Google Scholar. The extensive proceedings of the Tokyo trial have never been officially published. The majority judgment of the International Military Tribunal for the Far East and the separate and dissenting opinions as well as a number of appendices, are contained in Röling, B.V.A. and Rüter, F.C., eds., The Tokyo Judgment, 3 vols., (1977-1981)Google Scholar (hereinafter: Tokyo Judgment). The Tokyo Tribunal was established by an Executive Decree of the Supreme Commander for the Allied Powers in the Far East, and the Charter of this Tribunal was appended to it. For a concise outline of the historical background, organisation and judgments of these Tribunals and for further literature on this subject, see Jescheck, H.H., ‘Nuremberg Trials’, in Bernhardt, R., ed., Encyclopedia of Public International Law, vol. 4 (1983) p. 50Google Scholar; B.V.A. Röling, ‘Tokyo Trial’, ibid. p. 242.

73. See A/Res/2625 (XXV) Annex, of 24 October 1970, ‘Declaration of Principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations’; and A/Res/3314 (XXIX) Annex, of 14 December 1974, ‘Definition of Aggression’, Art. 5.

74. See ‘ILC Draft Articles on State Responsibility’, Art. 19, ILC Yearbook 1979 vol. 2 part 2 p. 374.

75. ILC Yearbook 1976 vol. 2 part 2 p. 109. On this subject, see Hofmann, R., ‘Zur unterscheidung Verbrechen und Delikt im Bereich der Staatenverantwörtlichkeit’, 45 ZaöRV (1985) p. 197.Google Scholar

76. For further details on this subject, see Röling, B.V.A., ‘International Law and the Maintenance of Peace’, 4 NYIL (1973) pp. 1, 80 and 100CrossRefGoogle Scholar (for the Dutch, adapted version, see Röling, B.V.A., Volkenrecht en vrede (1985) p. 157, 195).Google Scholar

77. Charter of the United Nations, 1945, preamble.

78. On this subject, also see Rifaat, op.cit. n.50, p. 193. In this context see, in particular Jessup, P.C., ‘The Crime of Aggression and the Future of International Law’, 69 Political Science Quarterly (1947) p. 1CrossRefGoogle Scholar; Röling, B.V.A., ‘The Nuremberg and the Tokyo Trials in Retrospect’, in Bassiouni, M.C. and Nanda, V.P. (eds.), A Treatise on International Criminal Law (1973) p. 590.Google Scholar

79. Nuremberg Judgment, supra n.72, p. 216. In completely the same sense see the Tokyo Judgment, supra n.72, p. 28. Three of the eleven judges in the Tokyo Tribunal — the French judge, Bernard, the Indian judge, Pal, and the Dutch judge, Röling — made a dissenting judgment, partly because, though for different reasons, they could not agree with the view of (the majority of) the Tribunal regarding crimes against peace; see Tokyo Judgment cf., supra n.72, pp. 488, 551, 1048 respectively. In connection with determining the place of crimes against peace in international law today, the argument of the Dutch judge continues to be relevant. Justice Röling considered that a war of aggression is prohibited by international law but does not constitute a ‘true crime’ in international law. In the case of crimes against peace, such crimes could at most be described as crimes in statu nascendi: ‘Where the decisive element is the danger rather than the guilt, where the criminal is considered an enemy rather than a villain, and where the punishment emphasizes the political measure rather than judicial retribution’. In the sense of ‘political’ crimes, Röling viewed crimes against the peace as they are formulated in the Charter, in accordance with international law. For, as he stated: ‘powers victorious in the “bellum justum”, and as such responsible for peace and order thereafter, have, according to international law, the right to counteract elements constituting a threat to that newly established order, and are entitled, as a means of preventing the recurrence of gravely offensive conduct, to seek and retain the custody of the pertinent persons’. This object could be achieved by means of ‘mere political action’: ‘that the judicial way is chosen to select those who were in fact the planners, instigators and wagers of Japanese aggression is a novelty, which cannot be regarded as a violation of international law in that it affords the vanquished more guarantees than mere political action could do’. In his view, the trial was only aimed, with regard to this part of the charges, at taking political security measures against those who could be held responsible for Japanese aggression. There could be no question of ‘capital punishment’ for crimes against the peace and imprisonment could only be justified for as long as it was considered politically necessary. See ‘Opinion of Mr. Justice Röling, Member for the Netherlands’, Tokyo Judgment, op.cit. n.72, pp. 1059–1062.

80. Cf., Jessup, loc.cit. n.78, p. 1; Röling, loc.cit. n.78, p. 590; Rifaat, op.cit. n.50, p. 177.

81. Various attempts have been made to this end in the United Nations. In the early 1950s the International Law Commission drew up drafts concerning the ‘Nuremberg Principles’ and the ‘Code of offences against the peace and security of mankind’. However, neither of these documents were ever approved by the General Assembly. For the text of these drafts see ILC Yearbook 1950 vol. 2 p. 376; ibid. 1954 vol. 2 p. 150.

82. See the documents mentioned in n.67, supra.

83. With regard to the prohibition on the use of force, as formulated in Art. 2(4) of the Charter of the United Nations, Akehurst notes: ‘This rule is of universal validity; even the few States which are not members of the United Nations accept it as a rule of customary law’: Akehurst, M., A Modern Introduction to International Law, 5th edn., (1984) p. 219Google Scholar. Also see A/Res/2625 (XXV) Annex, of 24 October 1970.

84. A/Res/2625 (XXV) Annex, of 24 October 1970.

85. A/Res/3314 (XXIX) Annex, of 14 December 1974, Art. 5(2).

86. See Broms, B., ‘The Definition of Aggression’, 154 Hague Recueil (1977) pp. 299, 356.Google Scholar

87. This is shown, inter alia, in the discussions in the General Assembly and the International Law Commission which reopened in 1978, on the ‘Code of offences’ mentioned in n.81 supra. See the Report of the International Law Commission on the work of this Thirtysixth Session, 1984, UN Doc. A/39/10 p. 5; Report of the International Law Commission on the work of its Thirtyseventh Session, 1985, UN Doc. A/40/10, p. 5.

88. Cf., Nuremburg Judgment, op.cit. n.72, p. 186; also see Brownlie, op.cit. n.50, p. 195; Rifaat, op.cit. n.50, p. 156; Röling, B.V.A., ‘Die Definition der Agression’, in Delbrück, J. et al. , eds. Recht im Dienst des Friedens (1975) p. 390Google Scholar, in which he raises the question whether an international judge actually needs a definition of a war of aggression and is inclined to answer this in the negative.

89. On this matter see Brownlie, op.cit. n.50, p. 195; Röling, B.V.A., ‘Crimes against Peace’Google Scholar, in Bernhardt, op.cit. n.72, vol. 3, p. 135.

90. Röling, B.V.A., ‘Strafbaarheid van de agressieve oorlog’ [Criminality of aggresive war], Inaugural lecture, Groningen 1950, p. 4.Google Scholar

91. Charter of the International Military Tribunal, 1945, Art. 6(a). The Charter of the Tokyo Tribunal, Art. 5, contains a virtually identical description of crimes against peace. Cf., also the Allied Control Council Law no. 10, Art. 11(1)(a), see n.72 supra, for where to find these references. Also cf., the formulation of the ‘Nuremberg Principles’ of the International Law Commission as contained in the ILC Yearbook 1950 vol. 2 p. 376.

92. Cf., Nuremberg Judgment, op.cit. n.72, p. 214.

93. A/Res/3314 (XXIX) Annex, Art. 5(2), preamble, para. 5.

94. This appears to be a ‘safe’ interpretation of the twelve ‘acts of aggression’ and ‘wars of aggression’ identified by the Nuremberg Tribunal in the German action. See Nuremberg Judgment, op.cit. n.72, p. 186. In principle Brownlie arrives at the same interpretation although he also considers that the judgment allows for considerable latitude on this point: ‘It may be possible to argue … that the significance of the trials as precedents is confined to the criminality of the war for acquisition of territory or to acquire domination of foreign States, the actual sphere of the application of the law. However, it is more correct to assume that any war contrary to the Kellog-Briand Pact entails criminal responsibility and that not only conquest but also resort to force to settle a dispute may create such responsibility’ Brownlie, op.cit. n.50, p. 209. Also see, History of the United Nations War Crimes Commission (1948) p. 254.Google Scholar

95. On this subject, see in detail Staudenmaier, W.O., ‘A Strategic Analysis’, in Tahir-Kheli, S. and Ayubi, S., eds., The Iran-Iraq War, New Weapons, Old Conflicts (1982) pp. 27, 36.Google Scholar

96. See text supra under Section 2.

97. See text supra under Section 2.

98. In considering the illegality in international law of a war of aggression before 1939, the Nuremberg Tribunal refers in particular to the Paris Pact (also known as the Kellog-Briand Pact) of 1928 and states in this respect: ‘In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the Pact’. Nuremberg Judgment, op.cit. n.72, p. 218. Also see Brownlie, as quoted in n.94 supra.

99. See Tokyo Judgment, op.cit. n.72, p. 320.

100. See text at n.91 supra.

101. See the literature mentioned in n.89 supra.

102. See, in particular, the declaration of the Iranian Prime Minister, Rajai, in the Security Council of 17 October 1980, UN Doc. S/PV 2251, p. 2.

103. In his analysis of the Nuremberg Tribunal Brownlie notes, inter alia, that: ‘Acts of participation in the planning of specific wars were par excellence a basis of guilt. In particular attendance at the conferences at which Hitler revealed his plans, on 5 November 1937 and 23 November 1939, was given significance. Presence at one or other of these conferences was a decisive factor in the conviction of Goering, Raeder and von Neurath … Apart from participation in these conferences, the planning of specific aggressive wars created responsibility … it must be noted that in discussing the part played by the various defendants in planning attacks the Tribunal does not distinguish between participation in decisions and participation in the planning which carried decisions into effect … For the most part participation at a high level in the planning which was consequent on the decisions and directives of Hitler led to convictions for crimes against peace. Occasionally the Tribunal seems to rely entirely on presence at conferences or discussion, the receipt of directives and the signing and initialing of orders as evidence of participation’. Brownlie, op.cit. n.50, pp. 197–198.

104. See text supra under Section 2.

105. See the memorandum, appended as an annex to the letter of 25 November 1980, UN Doc. S/14272.

106. See n.74 and the literature mentioned in n.75 supra.

107. Charter of the United Nations, 1945, Arts. 39–43. The powers of the General Assembly of the United Nations, with regard to determining whether aggression has taken place, can be left out of consideration here as Iran has not, up to now, explicitly requested this body to condemn the Iraqi action as an act of aggression.

108. For a description of the creation of the Definition of Aggression and all relevant documents on this matter, see Ferencz, op.cit. n.71. For a critical discussion of this resolution, refer to Broms, loc.cit. n.86; Röling, loc.cit. n.88.

109. The Iraqi representative at the Sixth Commission of the General Assembly of the United Nations, Yasseen, stated, inter alia, that the acceptance of the Definition of Aggression by the General Assembly would entail the acceptance of the content as an interpretation of ‘the exact meaning’ of the Charter of the United Nations and that therefore the Definition ‘must be binding on all States and even on the Security Council, which derived its authority from the Charter and could not fail to be bound by it’. However, at the same time he noted that ‘legally, the Definition … would take the form of a General Assembly resolution and would therefore only have the force of a recommendation’: UN Doc. A/C.6/SR.1478, p. 6.

110. Moreover, it is noteworthy that in the cases where the Security Council has identified an act of aggression, these tend to be armed incidents rather than armed conflicts. See, in particular, S/Res/393 (1976), 527 (1982), 567 (1985), 581 (1986) in connection with the South African attacks on neighbouring States and S/Res/573 (1985) regarding the condemnation of the Israeli attack on the PLO headquarters in Tunisia. For further details on the practice of the Security Council see Cot, J.P. and Pellet, A., eds., La Charte des Nations Unies (1985) p. 659.Google Scholar

111. A/Res/3314 (XXIX) Annex, of 14 December 1974, Art. 2.

112. See text supra under Section 2. Also cf., Pipes, D., ‘A Border Adrift: Origins of the Conflict’, in Tahir-Kheli, and Ayubi, , eds., op.cit. n.95, p. 3Google Scholar: ‘Except for official Iraqi spokesmen, there is nearly universal agreement that Iraq initiated hostilities on September 2, when it sent troops into Iran near Qasr-e-Shirin, that it escalated the conflict on September 17, by renouncing a border treaty with Iran, and that it began a full-scale war on the twenty-second by sending warplanes to attack ten Iranian airfields. In each case, Iran merely responded to Iraqi initiatives.’

113. See text supra under Section 2.

114. Un Doc. S/PV.2252, p. 37.

115. A/Res/3314 (XXIX) Annex, of 14 December 1974, Art. 3(a).

116. See UN Doc. S/PV.2252, pp. 38–40; as well as the letter of 14 July 1982 from the Iranian representative to the Secretary General of the United Nations, contained in UN Doc. S/1592, Annex; and the declaration of the Iranian representative addressed to the Secretary General, accompanying a notification of 4 October 1982, UN Doc. S/15448, Annex.

117. Cf., A/Res/3314 (XXIX) of 14 December 1974, Arts. 2 and 4. The proposals made during the creation of the Charter of the United Nations to include a definition of aggression in this treaty as well as an automatic obligation for the Security Council to take coercive measures in such cases, were expressly rejected at that time. See United Nations Conference on International Organization, vol. 12, pp. 296, 348, 381, 445 and 507Google Scholar. For further details see Cot and Pellet, op.cit. n.110, p. 645; Schaeffer, M., Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (1982) p. 34.Google Scholar

118. Charter of the United Nations, 1945, Art. 39. For a brief survey and an assessment of the practice of the Security Council see Baehr, P.R. and Gordenker, L., The United Nations: Ideal and Reality (1984) ch. IV.Google Scholar

119. See Serry, R.H., ‘The Security Council and the War Between Iran and Iraq’ (in Dutch), 40 Internationale Spectator (1986) pp. 267, 275Google Scholar (the author was until recently a member of the permanent mission of the Netherlands to the United Nations).

120. Un Doc. S/PV.2252, p. 16.

121. Ibid., p. 36.

122. UN Doc S/PV.2254, p. 6.