Published online by Cambridge University Press: 27 February 2017
In January and February 1998, various United States officials, including the President, asserted that unless Iraq permitted unconditional access to international weapons inspections, it would face a military attack. The attack was not to be, in Secretary of State Madeleine Albright’s words, “a pinprick,” but a “significant” military campaign. U.S. officials, citing United Nations Security Council resolutions, insisted that the United States had the authority for the contemplated attack. Representatives of other permanent members of the Security Council believed otherwise; that no resolution of the Council authorized U.S. armed action without its approval. In late February, UN Secretary-General Kofi Annan traveled to Baghdad and returned with a memorandum of understanding regarding inspections signed by himself and the Iraqi Deputy Prime Minister. On March 2, 1998, the Security Council, in Resolution 1154, unanimously endorsed this memorandum of understanding.
1 See Jim Wolf, U.S. Won’t Seek Saudi Sites for Iraqi Raids, Albright Says Air Strikes Could Begin Within Weeks, Boston Globe, Feb. 7, 1998, at A1.
2 See Christopher Wren, Standoff With Iraq: The Law; UN Resolutions Allow Attack on the Likes of Iraq, N.Y. Times, Feb. 5, 1998, at A6; John F. Harris & John M. Goshko, Decision to Strike Iraq Nears; Clinton Advisors Lean Toward Attack to Force Compliance with UN, Wash. Post, Jan. 24, 1998, at A1.
3 SC Res. 1154 (Mar. 2, 1998), reprinted in 37 ILM 503 (1998).
4 See UN Doc. S/PV.3858, at 14, 17 (1998).
5 See U.S. Doesn’t Mince Words With Iraq, AP, Mar. 3, 1998, available in LEXIS, News Library, AP File.
6 U.S. officials were initially cautious about Annan’s agreement with Saddam Hussein and Secretary of State Madeleine Albright stated that if “we don’t like” Annan’s agreement, “we will pursue our national interest.” See Dan Morgan, Administration Weighs Steps in Case UN-Iraq Deal Doesn’t Satisfy U.S., Wash. Post, Feb. 23, 1998, at A15.
7 SC Res. 678 (Nov. 29,1990), reprinted in 29 ILM 1565 (1990). See Undersecretary of State Thomas Pickering, USIA Foreign Press News Briefing, Federal News Service, Mar. 3, 1998, available in LEXIS, News Library, Fednew File (a “material breach would mean that the prohibition on the use of force, which arose as a result of the cease-fire, was no longer in effect”).
8 Unfortunately, our prediction that the United States and the United Kingdom would continue to assert the right to use force against Iraq without Security Council authorization proved to be accurate. In December 1998, as this article was in its final stages of editing for publication, the United States and the United Kingdom launched air strikes against Iraq, claiming that Iraq had not complied with its inspection obligations. The legal arguments made by the two states in support of their use of force, and the counterarguments presented by countries opposing the attacks were identical to those presented by the contending sides in February 1998 and discussed in this article. As of this writing, the United States and Britain have ceased the air bombardment but are suggesting that it may continue early in 1999. The December air strikes will be evaluated in a short postscript; all references to the Iraqi inspection crisis in the article refer to the events of February and March 1998.
9 U.S. officials have argued that the mere invocation of Charter Chapter VII with regard to the Kosovo situation is sufficient to authorize a resort to force. See John M. Goshko, U.S., Allies Inch Closer to Kosovo Intervention; UN Council to Vote on Key Resolution, Wash. Post, Sept. 23, 1998, at A21. The New York Times reported that on Kosovo, “as on Iraq, there is a recurring disagreement over how much authority individual nations or regional organizations have to take military action without the clear support of the Security Council.” Barbara Crossette, Security Council Tells Serbs to Stop Kosovo Offensive, N.Y. Times, Sept. 24, 1998, at A1.
10 See john Quigley, The “Privatization” of Security Council Enforcement Action: A Threat to Multilateralism, 17 Mich. J. Int’L L. 249 (1996); Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 AJIL 516, 525–28 (1991); Richard Falk, The Haiti Intervention: A Dangerous World Order Precedent for the United Nations, 36 Harv. Int’l L.J. 341, 341 (1995); Stephen Lewis, A Promise Betrayed, 8 World Pol’y J. 539 (1991). See statement of January 25, 1991, by Malaysia indicating that its support for Resolution 678 in the Security Council was premised on a “continuing central role of the United Nations.” Malaysia worried that the coalition members were drawing a “blank cheque from the Security Council resolution” and wanted to see “greater accountability of the actions by participating forces.” Malaysia claimed that its concerns were being expressed by many UN members. UN Doc. S/22149 (1991), reprinted in Iraq and Kuwait: The Hostilities and Their Aftermath 358 (Marc Weller ed., 1993) [hereinafter Iraq and Kuwait].
11 Professor Henkin has noted the difficulty of defining threats to international peace and security. He has pointed out that the term “threat to international peace and security … is not capable of legal definition, but only of political determination by a political body.” Such imprecision requires Security Council authorization to use force to combat threats to peace and security. Louis Henkin, Conceptualizing Violence: Present and Future Developments in International Law, 60 Alb. L. Rev. 571, 575 (1997).
12 See Bruce Russett & James S. Sutterlin, The UN in a New World Order, Foreign Aff., Spring 1991, at 69, 77.
13 There are two important questions that can arise when interpreting ambiguous language in an authorizing resolution. The first, dealt with by this article, concerns a basic policy decision: what are the objectives for which the Security Council has authorized the use of force? We argue that the Council must clearly specify its objectives. Language that broadly authorizes a range of unspecified goals ought to be narrowly interpreted to ensure Council control over the pursuit of the stated objectives and to prevent an escalation of fighting to achieve goals not clearly intended.
The second issue is whether an authorizing resolution supports the military tactics employed by the contractee states. For example, while the resolution might clearly articulate the Council’s goal, disputes might arise over the extent of violence used by the authorized states. In this context, it could be argued that the Charter’s preference for peaceful settlement of disputes requires a narrow reading of the authorizing resolution, not merely as to the ends of the operation, but as to the means to be employed. This article does not address that question.
However, we do offer some tentative comments on that second issue. First, by way of example, issues as to the appropriate ends and means arose in the coalition’s bombing of Iraq during the gulf war. Some nations criticized the bombing campaign as directed at destroying Iraq’s military and industrial capacity—an objective they claimed was not intended by Resolution 678. Had the United States and the United Kingdom argued that the bombing campaign was justified by the broad language “restoring international peace and security,” we would urge that this language should be interpreted narrowly, and only supported the aim clearly intended by the Council, forcing the Iraqi withdrawal from Kuwait.
However, the United States and Britain argued that the bombing was directed at forcing Iraq from Kuwait. That claim could be evaluated from the perspective of two sources of law. The first is not based on the authorizing resolution but, rather, deals with limitations imposed by the general laws of warfare, particularly rules regarding proportionality. Here, the main question is which rules apply? One position would apply the customary laws of war and whatever treaty norms the contractee states happen to have accepted. A competing view would hold that customary law and those multilateral treaties negotiated under UN auspices and ratified by a majority of UN members should apply.
Second, the Resolution 678 authorization of “all necessary means” to force Iraq out of Kuwait could be read narrowly to limit the coalition’s military tactics to those directly related to forcing an Iraqi withdrawal. This would not include bombing bridges and buildings far from the theater of military operations. Our reading of the preference for peaceful settlement in the Charter leads us to sympathize with this view. Nonetheless, such a narrow reading is certain to be rejected by many contractee states and scholars on the ground that it unduly interferes with military effectiveness in ensuring that the Security Council’s objectives are met. We might like to see such a rule applied, but the practical and theoretical difficulties of implementation in the current situation make it difficult. Consequently, we argue for greater Council control and a narrow interpretation of the strategic objectives for which force can be used, rather than of the military means used to achieve those objectives. Of course, there can be a very hazy line between tactics and objectives—and, therefore, at times it will be difficult to implement the rule we suggest. See generally part III infra.
14 Weston, supra note 10, at 526 n.60; see also id. at 527, 533; Richard A. Falk, The United Nations and the Rule of Law, 4 Transnat’l L. & Contemp. Probs. 611, 634 (1994).
15 See Frederic L. Kirgis, The Security Council’s First Fifty Years, 89 AJIL 506, 522 (1995).
16 See Quigley, supra note 10, at 262 (citing Bob Woodward, The Commanders 334 (1991)).
17 W. Michael Reisman, Coercion and Self-Determination: Construing Charter Article 2(4), 78 AJIL 642, 642 (1984).
18 See Anthony D’Amato, Israel’s Air Strike upon the Iraqi Nuclear Reactor, 77 AJIL 584, 586 (1983) (“There is a subtle interplay of politics and acquiescence that renders any demand for ‘unambiguous authorization’ unrealistic.”); see also Jane E. Stromseth, Iraq’s Repression of Its Civilian Population: Collective Responses and Continuing Challenges, in Enforcing Restraint: Collective Intervention in Internal Conflicts 100 (Lori F. Damrosch ed., 1993) (ambiguity of Resolution 688, which the allies relied on for legal support of their military operation to provide safe havens, was viewed as both necessity and virtue by allowing China and other nations to acquiesce in the action without authorizing it dejure); Barbara Crossette, UN Rebuffs U.S. on Threat to Iraq if it Breaks Pact, N.Y. Times, Mar. 3, 1998, at A1 (State Department spokesman James Rubin calling final wording of Resolution 1154 “not as relevant as … private discussions”).
19 For the argument that the study of key actors’ responses to a critical event or incident is an important methodology for understanding whether formal laws have genuine significance, see International Incidents, The Law That Counts in World Politics (W. Michael Reisman & Andrew R. Willard eds., 1988).
20 Quincy Wright, The Goa Incident, 56 AJIL 617, 629 (1962).
21 A draft resolution by the three permanent Western members and Turkey on behalf of Portugal’s complaint of Indian aggression called for a cease-fire and Indian withdrawal. Seven Council members supported the resolution, which was vetoed by the Soviet Union. The Council also failed to adopt a resolution supported by four members to reject the Portuguese complaint. In these circumstances, Council silence suggests implied disapproval and not authorization. Id. at 628.
22 See Abram Chayes, Law and the Quarantine of Cuba, 41 Foreign Aff. 550, 556 (1963):
[T]he debates in the Security Council in the case of the Dominican Republic revealed a widespread readiness to conclude that the requirement of “authorization” does not impart prior approval, but would be satisfied by subsequent action of the Council, or even by a mere “taking note” of the acts of the regional organization.
See also Leonard Meeker, Defensive Quarantine and the Law, 57 AJIL 515, 522 (1963) (paralysis of the Council and UN constitutional evolution undermine requirement of explicit authorization).
23 See Chayes, supra note 22, at 556; Meeker, supra note 22, at 522.
24 See Michael Akehurst, Enforcement Action by Regional Agencies, With Special Reference to the Organization of American States, 42 Brit. Y.B. Int’l L. 175, 217 (1967).
25 Professor Akehurst claims that the U.S. attempt to equate authorization with acquiescence contradicted U.S. policy prior to 1960 and that the United States apparently abandoned its creative definition of authorization in the 1965 Dominican dispute, although his evidence for the latter position seems inconclusive. See id. at 219. Apparently, most states rejected the U.S. position on implied authorization. See David Wippman, Enforcing the Peace: ECOWAS and the Liberian Civil War, in Enforcing Restraint, supra note 18, at 157, 187.
26 D’Amato, supra note 18; Anthony D’Amato, Israel’s Air Strike Against the Osiraq Reactor: A Retrospective, 10 Temp. Int’l & Comp. L.J. 259, 262–63 (1996).
27 SC Res. 487, UN SCOR, 36th Sess., Res. & Dec, at 10, UN Doc. S/INF/37 (1981).
28 D’Amato, supra note 18, at 586; see also D’Amato, supra note 26, at 262 (resolution can only be seen as covert support for Israel’s air strike).
29 See also W. Michael Reisman & James E. Baker, Regulating Covert Action: Practices, Context and Policies of Covert Coercion Abroad in International and American Law 101–13 (1992).
30 See Wippman, supra note 25, at 165, 185–86; Lori F. Damrosch, Concluding Reflections, in Enforcing Restraint, supra note 18, at 348, 357 (“authorization” could arguably have been inferred within the meaning of Charter Article 53 from acquiescence or from a previous cautiously worded statement on the Council’s behalf).
31 See Stromseth, supra note 18, at 77.
32 See id. at 90.
33 Alan Philps, Allies deny plan to dismember Iraq, Daily Telegraph (London), Aug. 22, 1992, at 9.
34 See France Says U.S. Raid Exceeded UN Resolutions, San Diego Union-Trib., Jan. 21, 1993, at A1.
36 See Alain E. Boileau, To the Suburbs of Baghdad: Clinton’s Extension of the Southern Iraqi No-Fly Zone, 3 ILSA J. Int’l & Comp. L. 875, 890 (1997).
37 See Pickering, supra note 7, at 5.
37 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 599, 610–11 (1952) (Frankfurter, J., concurring).
38 For example, in both the Iraqi and the Kosovo crises, the Council’s determinations that the respective Iraqi and Serb actions posed Chapter VII threats to the peace were claimed by the United States to permit the use of force without the need for explicit Council authorization.
39 See, e.g., SC Res. 678, supra note 7 (authorizing use of “all necessary means” to liberate Kuwait); SC Res. 794, UN SCOR, 47th Sess., Res. & Dec, at 63, UN Doc. S/INF/48 (1992) (authorizing “all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia”); SC Res. 940, UN SCOR, 49th Sess., Res. & Dec, at 51, UN Doc. S/INF/50 (1994) (authorizing member states “to form a multinational force … and … to use all necessary means to facilitate the departure from Haiti of the military leadership”); SC Res. 929, id at 10 (authorizing France to use “all necessary means” to protect civilians in Rwanda); and SC Res. 770, UN SCOR, 47th Sess., Res. & Dec., supra, at 24, and 816, id., 48th Sess., Res. & Dec, at 4, UN Doc. S/INF/49 (1993) (authorizing states to take “all measures necessary” to facilitate delivery of humanitarian assistance and enforce no-fly zone in Bosnia). The examples of the use of force subsequent to the gulf war against Iraq are not uncontroverted and are dealt with in part III infra.
40 See, e.g., Weston, supra note 10, at 523–24 (describing pressures brought to bear on Council members prior to the vote on Resolution 678).
41 The U.S. constitutional experience with the doctrine of implied authorization of force favors rejection of such a doctrine on the international level. Just as the United States sought to bypass the cumbersome and difficult process of securing Security Council authorization to use force against Iraq by inferring extant Council authority, so post-World War II U.S. Presidents have often avoided seeking explicit congressional authorization and instead construed implied authority to use force from legislative enactments such as appropriations statutes. See War Powers, Libya, and State-Sponsored Terrorism: Hearings Before the Subcomm. on Arms Control, International Security, and Science of the House Comm. on Foreign Affairs, 99th Cong., 2d Sess. 5, 10, 29 (1986) (testimony of State Department Legal Adviser Abraham D. Sofaer). See also Michael J. Glennon, Constitutional Diplomacy 100–02 (1990); War Powers Legislation: Hearings Before the Senate Comm. on Foreign Relations, 92d Cong., 1st Sess. 103, 587, 650 (1971). Legislative acquiescence in presidential unilateral war making has also been construed by the Executive as constituting implied authorization. The result of all this has been a general decline in the congressional role on the initiation of hostilities.
42 The question of institutional responsibility fundamentally distinguishes authorization by acquiescence from the problem of Article 27(3) voting. Charter Article 27(3) provides that Security Council action requires “the concurring votes of the permanent members.” Despite the apparent clarity of this language, the Organization’s consistent practice has been to permit passage of a resolution despite the absence of or abstention by permanent members. See Myres S. McDougal & Richard Gardner, The Veto and the Charter: An Interpretation for Survival, 60 Yale L.J. 258, 278 (1951); Constantin A. Stavropoulos, The Practice of Voluntary Abstentions by Permanent Members of the Security Council Under Article 27, Paragraph 3, of the Charter of the United Nations, 61 AJIL 737, 742 (1967). Both Chayes and Meeker argued during the Cuban missile crisis that, just as political necessity called for treating abstention as meeting the requirement of concurring votes, so acquiescence by the Security Council could constitute the required authorization. See Meeker, supra note 22, at 522; Chayes, supra note 22, at 556.
Apart from the fact that the custom on the meaning of Article 27(3) is based on the travaux preparatoires and a continuous and generally accepted practice that does not exist for implied Security Council authorizations of force, see Akehurst, supra note 24, at 217, a clear difference exists between abstention by a permanent member and acquiescence by the Council as a body. Such abstention presumptively means that despite its concerns or objection to the resolution, the permanent member is willing to allow the measure to pass; no such intent can be presumptively imputed to failure by the Council to condemn a particular use of force. See id. Most important, while Security Council members have no responsibility to vote yes or no on a resolution and ought not to be forced to do so, the Council does have a responsibility to act or refuse to act as a body regarding a breach of the peace. Not permitting permanent members’ abstention or absence to act as a veto fosters open responsibility on their part, see McDougal & Gardner, supra, at 286; allowing Council acquiescence to act as authorization fosters abdication.
43 See Thomas M. Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AJIL 275 (1973). Franck and Rodley examine the historical record of humanitarian interventions and conclude that” [i]n very few, if any, instances has the right [to humanitarian intervention] been asserted under circumstances that appear more humanitarian than self-interested and power-seeking.” Id. at 290. “[T]he kind of unilateral military intervention which has occurred in the past is usually not to be encouraged … those kinds of intervention which it would be desirable to encourage have for reasons of self-interest almost never occurred in the past ….” Id. at 305. See also Falk, supra note 10 (summarizing prior U.S. interventions); Marc Trachtenberg, Intervention in Historical Perspective, in Emerging Norms of Justified Intervention 15 (Laura W. Reed & Carl Kaysen eds., 1993); Oscar Schachter, The Legality of Pro-Democratic Invasion, 78 AJIL 645, 650 (1984); Corfu Channel (Merits), 1949 ICJ Rep. 4, 35 (Apr. 9) (noting that a right of intervention by force “has, in the past, given rise to most serious abuses …. [F]rom the nature of things, it would be reserved for the most powerful States …”).
44 That Russia, France, China, a majority of the Security Council, other key members of the 1991 coalition such as Egypt, Syria and Pakistan, many of our Middle East allies such as Turkey, and what undoubtedly was a majority of member states of the United Nations opposed military action demonstrates that the international community did not view the threat posed by Iraq as warranting the use of force. See Bruce W. Nelan, Selling the War Badly, Time, Mar. 2, 1998, at 26; Robin Wright, What a Difference 7 Years Makes in the Gulf, L.A. Times, Feb. 18, 1998, at A10. Usually reliable allies such as Egypt and Pakistan specially attended the Council meeting on Resolution 1154 and strongly advised against the use of force.
45 Franck & Rodley, supra note 43, at 290–91.
46 See Ruth Wedgwood, The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq’s Weapons of Mass Destruction, 92 AJIL 724 (1998).
47 Secretary-General Annan and French President Chirac both recognized the useful role of the American and British threat to use force in diplomatically ending this crisis. We are not in a position to dispute the accuracy of Annan’s observation, but note how often threats of force have failed to secure Hussein’s compliance with UN resolutions in the past, most notably in January 1991 and January 1993, when actual force had to be used. We suspect that Annan’s personal approach succeeded where the attitude of American diplomats backed by force would not have.
48 See Madeleine Albright, The United States and the United Nations: Confrontation or Consensus? Vital Speeches of the Day, No. 12,354, Apr. 1, 1995, for the view that “multilateralism is a means, not an end.”
49 SC Res. 83, UN SCOR, 5th Sess., Res. & Dec, at 4, UN Doc. S/INF/5/Rev.1 (1950).
50 The phrase tracks Article 39 of the Charter.
51 See Leland M. Goodrich, Korea: A Study of U.S. Policy in the United Nations 198 (1956).
52 Id. at 127.
53 23 Dep’t St. Bull. 579 (1950).
54 See I. F. Stone, The Hidden History of the Korean War 133 (1952).
55 GA Res. 376 (V), UN GAOR, 5th Sess., Supp. No. 20, at 9, UN Doc. A/1775 (1950). The United States turned to the General Assembly because the Soviet delegation had returned to the Security Council and would have vetoed any extension of the UN objectives. The Assembly’s resolution did not explicidy state that UN forces were authorized to enter North Korea, but everyone involved understood that such was its intent. See D. W. Bowett, United Nations Forces 43 (1964); Trygve Lie, In the Cause of Peace 345 (1954).
56 See Lie, supra note 55, at 345.
57 In a similar sense, President Bush’s decision to seek congressional approval of the gulf war was claimed to be political, and not legally necessary, but many have viewed it as evidence that the Executive must seek authorization for military operations of substantial magnitude.
58 See, e.g., Lie, supra note 55, at 345 (describing his peace proposal, which he believed had met with considerable interest in October 1950).
59 A legal opinion of the UN Deputy Legal Counsel, UN Doc. S/AC.25/1991/Note 15 (1991), held that the word “area” in the prior Resolution 665 on Iraq was not denned geographically and that it was therefore necessary to interpret it in accordance with the context and the object and purpose of the text. See Helmut Freudenschuß, Between Unilateralism and Collective Security: Authorizations of the Use of Force by the UN Security Council, 5 Eur. J. Int’l L. 492, 499 n.21 (1994).
60 See Eugene V. Rostow, United What? Enforcement Action or Collective Self-Defense? 85 AJIL 506, 516 (1991) (allied occupation might be deemed necessary); Editorial, Legitimate Aims of the Allies, Independent (London), Jan. 23, 1991, at 18 (removing Hussein from power required).
61 Testimony of Assistant Secretary of State John Kelley and Assistant Secretary of Defense Henry Rowen before the Europe and Middle East Subcomm. of the House Comm. on Foreign Affairs, Federal News Service, June 26, 1991, at 151, available in LEXIS, News Library, Fednew File.
62 See Statements of Sir David Hannay (UK), UN Doc. S/PV.2977 (Part II) (closed) (1991), reprinted in Iraq and Kuwait, supra note 10, at 39; Mr. Vorontsov (USSR), id. at 45; Mr. Wilenski (Australia), id. at 51; Mr. Razali (Malaysia), id. at 55.
63 The use of the term “restore” is further textual evidence of this specific intent; restoration means returning to the status quo prior to the Iraqi invasion of Kuwait. Virtually all of the Security Council members stated in voting for Resolution 678 that they were doing so, in the words of Mr. Hurd, the UK representative, to demand “the reversal of the aggression—namely full compliance with previous resolutions.” See UN Doc. S/PV.2963, at 82 (1990). As Mr. Shevardnadze of the USSR noted, “The purpose of the resolution we have just adopted is to put an end to the aggression and make it clear to the world that aggression cannot be rewarded.” Id. at 94–95.
64 An authorizing resolution could contain ambiguous language for several reasons. The first is poor drafting or insufficient attention to particular language, a problem fairly easily cured. More substantively, ambiguous language could reflect compromises in the negotiating process designed to allow Security Council members subsequently to argue for more or less expansive interpretations. We believe that in those situations, the Charter presumptively favors the less expansive view, which could be overcome only by clear intent to the contrary. Division in the Council over objectives suggests that further debate and authorization are necessary prior to the use of force.
65 See Quigley, supra note 10, at 266–67.
66 See Freudenschuß, supra note 59, at 510–11.
67 Resolution 794 authorized “the Secretary-General and the Member States concerned to make the necessary arrangement for the unified command and control of the forces involved” in the Somalia operation. Resolution 814, expanding UNOSOM’s role, and Resolution 837 both authorized the Secretary-General to oversee the use of force. Because of the attempts at unified command and control, the Somalia resolutions were unanimously approved by the Security Council. SC Res. 794, UN SCOR, 47th Sess., Res. & Dec, at 63, UN Doc. S/INF/48 (1992); SC Res. 814, UN SCOR, 48th Sess., Res. & Dec, at 80, UN Doc. S/INF/49 (1993); SC Res. 837, id. at 83, para. 5.
68 On August 13, 1992, Resolution 770 was enacted, calling upon states to take all measures necessary to facilitate the delivery of humanitarian assistance to Sarajevo and other parts of Bosnia. While Britain, France and the United States stressed the narrowness of the authorization, India, Zimbabwe and China still objected to the lack of UN control over the operation and abstained. Almost two months later, the Council established a no-fly zone over Bosnia in Resolution 781, but refused to authorize force to enforce it. Not until March 3, 1993, did the Security Council in Resolution 816 authorize the enforcement of the flight ban and on June 4 adopt Resolution 836 to protect the safe havens. See Freudenschuß, supra note 59, at 503–09, for the history of these resolutions.
69 SC Res. 794, supra note 67, para. 10.
70 Nonetheless, controversy continued as to the scope of the UN mandate and an independent commission established by the Security Council to investigate the ambush of the peacekeeping forces accused the UN force of “overstepping” its mandate. See Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order 235 (1996); Paul Lewis, Report Faults Commanders of U.N. Forces in Somalia, N.Y. Times, May 20, 1994, at A10. The Somalia case demonstrates that the problem of having commanders interpret their mandate too broadly is present even where the operation is directed by a UN commander under the supervision of the Secretary-General. The problem is considerably exacerbated, however, by the contracting-out model. See generally Murphy, supra, at 241–42.
71 SC Res. 929, supra note 39.
72 Several governments objected to Resolution 940, criticizing, inter alia, the lack of a time frame for the proposed action (Mexico) and the similarity between its operative paragraph and Resolution 678 on the gulf crisis (Brazil). UN Doc. S/PV.3413, at 5–9 (1994).
73 SC Res. 940, supra note 39, para. 8. In Haiti, the United States denned its mission narrowly, to return Aristide to power and provide the Haitians with a short rebuilding time. In January 1995, the Security Council determined that a sufficiently stable and secure environment was in place to transfer authority to a UN peacekeeping force. See Murphy, supra note 70, at 274.
74 SC Res. 1031, paras. 19, 21 (Dec. 15, 1995), reprinted in 35 ILM 251 (1996).
75 SC Res. 814, supra note 67, para. 6 (mandate for expanded UNOSOM authorized for an initial period through Oct. 31, 1993).
76 SC Res. 954, UN SCOR, 49th Sess., Res. & Dec, supra note 39, at 59. For an excellent overview of the post-Persian Gulf war humanitarian interventions, see Murphy, supra note 70, ch. 5.
77 Several objections could be raised to this proposal. First, just as Congress cannot circumvent the presentment and bicameral provisions in the U.S. Constitution by providing for a legislative veto, see INS v. Chadha, 462 U.S. 919 (1983), so it could be argued that the Security Council cannot circumvent the Charter’s grant of a veto power to the permanent members. However, the Charter, unlike the Constitution, is not premised on separation of powers and the proposed Council action would not be circumventing the power of another branch. Moreover, the rationale for providing the veto does not apply to situations of the “reverse veto.” David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AJIL 552, 576 (1993). As Caron has persuasively argued, the possibility of modified voting clauses supports the objectives of the United Nations, enhances the legitimacy of Security Council decision making, and should be politically feasible. Id. at 584–87.
78 Our claim is not that Security Council decisions regarding the use of force and its objectives are necessarily wiser than such decisions by individual nations. The Charter is not based on such a presumption. However, the Charter does embody the principles, first, that force should be employed in the interest of the international community and not in the national interest of particular states, and, second, that force should be used only as a last resort. The requirement that the Security Council control the use of force aids in ensuring that force is not used solely to promote national interest; and also acts, in the words of Thomas Jefferson written in the U.S. constitutional context, “to chain the dogs of war.” 15 The Papers of Thomas Jefferson 397 (Julian P. Boyd ed., 1958).
79 See Phyllis Bennis, Calling the Shots 140–49 (1996).
80 For example, the Non-Aligned Group circulated a draft resolution in April 1993 that would have “authorized Member States, pursuant to Article 51, to provide all necessary assistance to the Government of Bosnia and Herzegovina to enable it to resist and defend the territory of the Republic of Bosnia and Herzegovina against Serbian attacks.” The Non-Aligned Group generally criticized the narrow interpretations of the UN force’s role in Bosnia. See Freudenschuß, supra note 59, at 508–09.
81 See Hague Convention [No. IV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, annexed Regulations, Art. 40, 36 Stat. 2277, 1 Bevans 631.
82 David Morris, From War to Peace: A Study of Cease-fire Agreements and the Evolving Role of the United Nations, 36 Va. J. Int’l L. 802, 822–23 (1996).
83 See Richard R. Baxter, Armistices and Other Forms of Suspension of Hostilities, 149 Recueil des Cours 353, 382–85 (1976 I); Ernest A. Simon, The Operation of the Korean Armistice Agreement, Mil. L. Rev., Jan. 1970, at 105, 126–27; Morris, supra note 82, at 822, 897.
84 Morris, supra note 82, at 822–23.
85 The U.S. experience with broad legislative delegations of emergency power that did not terminate when the immediate crisis was over ought to make the international community wary of continuing authorizations to use force beyond the termination of hostilities. In the 1970s, Congress and the Executive both recognized that the failure to provide for the termination of broad emergency power had allowed the President to dangerously accumulate unchecked power. For example, the emergency that Truman declared in 1950 in the context of the Korean War continued for over 25 years and formed the legal basis for executive action having nothing to do with the original purpose of the emergency declaration. In response to the concerns over the authorization of emergency power of indefinite duration, Congress enacted the National Emergencies Act, terminating virtually all emergency authority based on the past declaration of emergency. See Pub. L. No. 94–412, 90 Stat. 1255 (1976) (codified at 50 U.S.C. §1601 (1994)).
86 See Caron, supra note 77, at 552, 576–84.
87 Id. at 577, 583.
88 See Caron, supra note 77, at 584–85, for an argument that the Security Council has the authority to take such action.
89 A distinction should be made between permanent cease-fires designed to end hostilities definitively and a temporary lull in fighting or a provisional military cease-fire designed to last only a few days or weeks until a more permanent cessation of fighting is reached. The Korean armistice and gulf war cease-fires were clearly designed to end hostilities permanently, although resolution of some of the underlying political tensions could take years or decades to achieve. Moreover, other forms of a definitive end to hostilities should be subsumed within this proposed rule, such as the situation where the states acting under Security Council authority permanently withdraw their forces after a humanitarian intervention, as happened in Somalia.
90 See Morris, supra note 82, at 839. Shabtai Rosenne, the former Legal Adviser to the Israeli Ministry of Foreign Affairs, noted the fundamental change in the law relating to armistice agreements: “our Armistice Agreements are always subordinate to the obligation, contained in the Charter, to refrain from the threat or use of force and to settle international disputes by peaceful means.” Id. at 849.
91 1 Sydney D. Bailey, How Wars End 293 (1982). This statement is based on the post-Charter rule that Article 2(4) prohibits reprisals. Reisman & Baker, supra note 29, at 50–52, 70–71, have questioned whether that purportedly ironclad rule accurately reflects state practice.
92 See Report of the Secretary-General to the Security Council pursuant to the Council’s resolution of 4 April 1956 on the Palestine question, UN SCOR, 11th Sess., Supp. for Apr.-June, at 40, UN Doc. S/3596 (1956).
93 See Agreement concerning a Military Armistice in Korea, July 27, 1953, Art. V, para. 62, 4 UST 234, 261 (providing that the “Agreement shall remain in effect until expressly superseded either by mutually agreeable amendments and additions or by provision in an appropriate agreement for a peaceful settlement at a political level between both sides”).
94 See Burton I. Kaufman, The Korean War: Challenges in Crisis, Credibility and Command 200–02 (2d ed. 1997).
95 See Letter dated 7 August 1953 from the Acting U.S.A. Representative to the UN, addressed to the Secretary-General, transmitting a special report of the Unified Command on the armistice in Korea in accordance with the Security Council Resolution of 7 July 1950 (S/1588), UN Doc. S/3079 (1953); see also Goodrich, supra note 51.
96 See Unified Command Report on the Neutral Nations Supervisory Commission in Korea, UN Doc. A/3167 (1956); 1956 U.N.Y.B. 129, 130; see also Bailey, supra note 91, at 474–75.
97 Bailey, supra note 91, at 478.
98 See United Nations Command Report to the United Nations on the increase in violations by North Korea of the Military Armistice Agreement in Korea, UN Doc. S/8217, at 5–6 (1967).
99 See Simon, supra note 83, at 126–27.
100 UN Dep’t of Public Information, The United Nations and the Iraq-Kuwait Conflict, 1990–1996, UN Sales No. E.96.1.3 (1996) (Introduction by Boutros Boutros-Ghali, Secretary-General of the United Nations, at 33) [hereinafter Iraq-Kuwait Conflict]. It is unclear what “remained in force” meant, because he could not have meant that any member state could continue to attack Iraq despite the formal cease-fire.
101 The conditions of the provisional cease-fire required Iraq to rescind its purported annexation of Kuwait; accept in principle its liability for damages suffered by Kuwait; release prisoners and other nationals it held; return Kuwait’s property; and provide information on mines and chemical and biological weapons in Kuwait, and in allied occupied Iraqi territory (but not in Iraq generally). Resolution 686 did not include any obligation to submit to inspections. See SC Res. 686 (Mar. 2, 1991), reprinted in 30 ILM 568 (1991).
102 The language in Resolution 686 was subject to negotiations in the Council. The U.S. first draft contained a broader audiorization that would have affirmed the right of the coalition to “resume offensive combat operations if Iraq does not comply with all demands” in the resolution. See Freudenschufi, supra note 59, at 499. That would have constituted an explicit authorization of the U.S. right to use force in the event of violations of the provisional cease-fire. The U.S. position was criticized and the resulting language of operative paragraph 4 reiterated the right to use force only in accordance with Resolution 678. See SC Res. 686, supra note 101.
103 The difference in language between 686 and 687 in referring to prior resolutions is significant. Resolution 686, supra note 101, “[a]ffirms that all twelve resolutions noted above continue to have full force and effect” (emphasis added). The later Resolution 687 contains no such language; it “[a]ffirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of this resolution, including a formal cease-fitre.” See SC Res. 687 (Apr. 3, 1991), reprinted in 30 ILM 846 (1991).
104 See SC Res. 687, supra note 103; see also UN Chron., June 1991, at 4. On April 11, Paul Noterdaeme of Belgium, President of the Security Council, formally acknowledged Iraq’s acceptance, “adding that Council members had asked him to note that conditions established in the resolution had been met and that the formal cease-fire was effective.” Id. at 7 (emphasis added). That the permanent cease-fire was declared upon Iraqi acceptance of its terms and not compliance with its provisions (as had been the case with Resolution 686’s temporary cease-fire) is evidence that Resolution 678’s broad authorization of force was extinguished.
105 The U.S. first draft of Resolution 687 would have authorized the coalition states “to use all necessary means” to guarantee the border. Freudenschuβ, supra note 59, at 500. That language was rejected as going too far. The statements by supporters of Resolution 687 at the time of its adoption make clear that individual nations were not empowered to use force, even to respond to a boundary violation. (In the case of a boundary violation that constituted an armed attack on Kuwait, Article 51 would authorize self-defense.) India’s representative stated that paragraph 4
does not confer authority on any country to take unilateral action under any of the previous resolutions of the Security Council. Rather, the sponsors have explained to us that in case of any threat or actual violation of the boundary in future the Security Council will meet to take, as appropriate, all necessary measures in accordance with the Charter.
UN Doc. S/PV.2981, at 78 (1991) (remarks of Mr. Ghorekhein, India). Russia explicitly agreed with India’s interpretation, which was not contradicted by the sponsors of Resolution 687. Id. at 101. Indeed, one sponsor, the United Kingdom, concurred that the provision represented a “guarantee by the Security Council to step in” if the border was violated. Id. at 113.
106 Both India and China abstained on Resolution 686 because they disagreed with its continuation of the Resolution 678 authorization of force. UN Doc. S/PV.2978 (1991), reprinted in Iraq and Kuwait, supra note 10, at 95, 99. That both countries voted affirmatively for Resolution 687 is further evidence that it was not understood to have continued the authorization under Resolution 678.
107 Shortly after the formal cease-fire, President Bush and other U.S. officials asserted that the Resolution 678 authorization was still in effect and threatened force against Iraq to achieve compliance with Resolution 687. See Letter from President Bush to the Speaker of the House of Representatives and President Pro-Tern of the Senate, 27 Weekly Comp. Pres. Doc. 1284 (Sept. 16, 1991). U.S. officials apparently based this interpretation on paragraph 34 of Resolution 687. John E. Yang & John M. Goshko, Bush Says Iraq Violates Cease-Fire: Pentagon Preparing Range of Options, Wash. Post, June 29, 1991, at A1.
108 That the term material breach is objective under Article 60 of the Vienna Convention on the Law of Treaties and not subjective simply means that when one party to an agreement declares a material breach to exist, its subjective view is not dispositive but must be measured against the objective facts. It does not mean that a third party can declare a cease-fire null and void despite the refusal of both parties to the agreement to declare that a material breach exists. See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 60, 1155 UNTS 331.
109 See Wedgwood, supra note 46, at 726.
110 In January 1993, Iraqi authorities refused to guarantee the safety and free movement of United Nations aircraft transporting the United Nations Special Commission (UNSCOM) and United Nations Iraq-Kuwait Observation Mission (UNIKOM) personnel into Iraq. Iraq had also crossed the Kuwaiti border without permission and failed to remove its six police posts from the Kuwaiti side of the demilitarized zone. See Iraq-Kuwait Conflict, supra note 100, at 86–87.
111 See Statement by the President of the Security Council concerning United Nations flights into Iraqi territory, UN Doc. S/25081 (1993), and Statement by the President of the Security Council concerning various actions by Iraq vis-à-vis UNIKOM and UNSCOM, UN Doc. S/25091 (1993), reprinted in Iraq-Kuwait Conflict, supra note 100, at 512–13. The Security Council President’s January 11 statement on behalf of the Security Council “reaffirms that the boundary was at the very core of the conflict” and that in Resolutions 687 and 773 the Security Council had guaranteed the inviolability of the border and undertaken to take all necessary measures to that end as appropriate. These raids therefore do not support the argument that the inspection violation, standing alone, would have authorized force.
112 The presidential statements of January 8 and 11 follow a line of Security Council statements and resolutions, starting with Resolution 707 of August 15, 1991, and continuing with informal presidential statements of February 19 and 28, 1992, and July 6, 1992, that determined Iraq to be in material breach of Resolution 687. See UN Docs. S/23609, S/23663 & S/24240, respectively (1992). This practice confirms that the determination of material breach was to be made by the Security Council and not by individual member states.
While clearly it would have been preferable for the Council to determine that Iraq was in material breach of the cease-fire and authorize military action by means of a formal resolution, in recent years the Council has relied heavily on presidential statements reflecting the consensus reached in closed sessions by the members. See Kirgis, supra note 15, at 519–20.
113 U.S. officials and at least one scholar have suggested that the United States can deem the cease-fire suspended because the Security Council has found Iraq to be in flagrant or serious violation of prior resolutions. See Wedgwood, supra note 46, at 726. But serious violations do not necessarily, as a matter of law, constitute a material breach and the Security Council has decided not to find that a material breach has occurred. It has refused to do so aware of the argument that British and American officials make, that such a finding would negate the cease-fire and pave the way for military action. That the Council chooses to use a host of other terms to characterize Iraqi noncompliance is legally significant: it refuses to use the term that in the past has been taken to legally nullify a cease-fire.
114 See UN Council Stops Iraq’s Weapons Search Plan, Balto. Sun, June 15, 1996, at 7A (United States and United Kingdom had urged Council to declare Iraq in “material breach”); James Bone, Americans Fail to Win UN Consensus on Military Action, Times (London), Nov. 12,1997; ABC News This Week (Nov. 30,1997) (Annan stating that Council had decided not to declare Iraq in material breach). When the Iraqi-UN crisis involving UNSCOM inspections heated up in the winter of 1998, the Security Council again repeatedly rejected U.S. and UK efforts to obtain either a resolution or a presidential statement declaring Iraq in material breach of Resolution 687. Only after it became apparent that the Council would not do so did the British shift position and argue that such a resolution was unnecessary. Laura Silber, UN Deeply Divided Over Use of Force, Fin. Times (London), Feb. 6, 1998, at 4. Even after Annan’s February 1998 agreement with Iraq, the British urged the passage of a resolution “which would declare Iraq in material breach” if it did not comply with the agreement. Richardson Discusses Iraq Deal (morning ed., NPR broadcast, Feb. 25, 1998). Again, Britain and the United States were rebuffed.
115 According to members who spoke in the Council, Resolution 1154’s sponsors assured other members that the resolution did not automatically authorize nations to use force in the event of an Iraqi violation. As Russia emphasized in the Council, any “hint of automaticity with regard to the application of force has been excluded” and “would have been unacceptable for the majority of the Council.” UN Doc. S/PV.3858, supra note 4, at 17–18. See also id. at 5 (Japan) and 18 (Gambia).
116 Resolution 1154 warned Iraq that continued violations of its obligations to permit unconditional access to UNSCOM “would have the severest consequences.” But this warning did not leave the United States the right to use such force unilaterally in the event of a breach. Paragraph 5 forecloses this possibility. The Security Council does not merely remain seized of the matter, it remains “actively” seized and does so “to ensure implementation of this resolution.” SC Res. 1154 (Mar. 2, 1998), reprinted in 37 ILM 503 (1998).
117 UN Doc. S/PV.3858, supra note 4, at 15, 18. See also id. at 14 (China), 10 (Kenya, Sweden), 9 (Brazil), and 7 (Costa Rica). Other members strongly implied that individual nations could not use force when they stated that in the event of an Iraqi violation, the Security Council would provide an appropriate response. Id. at 9, 12–13, 18 (Gabon, Slovenia, Gambia).
118 SC Res. 1199 (Sept. 23, 1998). Resolution 1199 expressed the Council’s grave concern at the “excessive and indiscriminate use of force by Serbian security forces and the Yugoslav Army” in Kosovo, and acted under Chapter VII of the Charter to demand, inter alia, that Yugoslavia “cease all action by the security forces affecting the civilian population and order the withdrawal of security units used for civilian repression.” Id., para. 4. The resolution did not mention the use of force, and after the vote Russia explicitly stated that it had voted for it because “no measures of force and no sanctions at this stage are being introduced by the Security Council.” Crossette, supra note 9, at A1. Moreover, Resolution 1199, in paragraph 16, states that the Security Council “[d]ecides, should the concrete measures demanded in this resolution and Resolution 1160 (1998) not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region.”
Nonetheless, U.S. officials have argued that Resolution 1199 implicitly gives NATO the authority to use force against Yugoslavia through the invocation of Chapter VII. See supra note 9 and Goshko, supra note 9. Immediately following a NATO meeting in Brussels on October 8, 1998, Secretary of State Albright stated that she believed Resolution 1199 gave NATO the necessary legal grounds for military action against Serbia. Tim Bucker & Jon Hibbs, International: Blair Attacks West’s Disunity on Kosovo, Daily Telegraph (London), Oct. 9, 1998, at 17.
119 The United States was “the only [NATO] country” that during the June discussion took the position that NATO did not need explicit Security Council authorization to use force in Kosovo. Remarks of Secretary of Defense William S. Cohen at Los Angeles Foreign Affairs Council Breakfast, Federal News Service, June 29, 1998, at 10, available in LEXIS, News Library, Fednew File. See also David Buchan & Ralph Atkins, Kosovo Crisis Moves into Uneasy Lull, Fin. Times, June 18, 1998, at 2 (German cabinet opposes NATO action without Security Council approval); Paul Koring, Alliance Rift Weakens Threat of Air Strikes in Kosovo, Globe & Mail (Toronto), June 24, 1998, at A13 (Canada and France adamant that Council resolution needed); William Drozdiak, Further NATO Action in Kosovo Now in Doubt, Wash. Post, June 18, 1998, at A32 (France, Italy, Denmark, Germany will not approve NATO use offeree without UN mandate); Susan Blaustein, End the “Dance of Appeasement,” L.A. Times, June 21, 1998, at 2 (Tony Blair insists on securing Council resolution). Secretary-General Annan openly stated that “[a]ll use of military power by regional groups should be sanctioned by the United Nations.” Moreover, “[i]t would set a dangerous precedent … —who else are they going to discipline tomorrow? How could they tell other regions or governments not to do the same thing without Council approval?” UN Press Release No. SG/T/2142 (July 6, 1998) (http://www.un.org/News/Press). European officials also feared that NATO action would set a precedent that would allow other countries to bypass the Security Council in the future. See Drozdiak, supra.
120 See Roger Cohen, Americans Rebuke Yugoslav Leaders, N.Y. Times, Oct. 9, 1998, at A1 (naming Germany, Italy and Denmark as having such reservations).
121 The strong opposition to the proposed U.S. attack may be explained by the fact that many perceived that U.S. geopolitical reasons and not merely enforcing the inspections regime were motivating U.S. saber rattling. See Roger Cohen, The World: War Fever; The Weapons Too Terrible for the Parade of Horribles, N.Y. Times, Feb. 8, 1998, §4, at 1.
122 On November 5, 1998, at its 3939th meeting, the Security Council adopted Resolution 1205, which condemned Iraq’s decision to cease cooperation with UNSCOM as “a flagrant violation of Resolution 687” but did not authorize the use of force. See Josh Friedman, UN Council Scolds Iraq, Condemnation Falls Short of Military Threat, Newsday, Nov. 6, 1998, at A18. Various members stressed, as they had in February, the “prerogatives” of the Council and argued that its control over international peace and security “must not be circumvented.” See Security Council Press Release No. SC/6591, at 5 (France), 7 (Sweden, Brazil), 6 (Russia), 8 (Kenya) (Nov. 5, 1998).
123 Only three Security Council members—Japan, the United States and Britain—spoke in favor of the air strikes. Security Council Press Release No. SC/6611, at 5 (UK), 8 (U.S.) 9 (Japan) (Dec. 16, 1998). The Russians and Chinese accused the United States and the United Kingdom of an “unprovoked act offeree” that “violated the principles of international law and the principle of the Charter,” id. at 4 (Russia). A number of nonpermanent members opposed the use of force and reiterated that force must be authorized by the Security Council, id. at 6 (Costa Rica), 8 (Sweden), 9 (Brazil), 10 (Kenya). International reaction was generally negative, although some European and Asian allies supported the military action.
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