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The Iran-Iraq War Revisited: Some Reflections on the Role of International Law

  • Erik B. Wang

Sommaire

Le conflit Iran-Irak a été une guerre d'une extrême violence qui n'a respecté aucune des règles du droit international. L'auteur analyse en particulier trois aspects de ce conflit: l'usage illégal de la force, l'usage des armes chimiques ainsi que les attaques contre les'navires neutres. A la lumière de toutes ces violations du droit international, la communauté internationale, dont le Canada, n'a pas su réagir avec succès. Quelle leçon peut-on en retenir pour les autres conflits régionaux? L'intervention active de tierces parties à un conflit est donc plutôt l'exception que la règle. Afin de bénéficier d'une telle intervention de la communauté internationale, il faudrait une initiative américaine ou celle d'un autre membre permanent du Conseil de Sécurité des Nations Unies.

Summary

The Iran-Iraq war was a war of exceptional brutality and disregard for the rules of international law. The author reviews three aspects in particular: the illegal use of force, the use of chemical weapons, and attacks on neutral shipping. The response of the international community, and of Canada, to these and other violations of law was largely ineffective, and the conflict finally burned itself out. What lessons can be drawn from that war regarding the prospects of upholding the rule of Law in future regional conflicts? Effective intervention by third parties may be the exception rather than the norm in the new post-Cold War order. It will depend on uncommon elements of leadership and on the commitment of the United States and other permanent members of the Security Council acting within a framework of international law to protect their own interests.

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1 Heller, M.A., “Turmoil in the Gulf,” New Republic (Apr. 23, 1984) 16.

2 Henry Kissinger commented, “The only regrettable aspect of this situation is that only one of the parties can lose”: Time (July 28, 1986) 4.

3 For a summary presentation of the Iraqi case, see the statement of Saadoun Hammadi, Minister for Foreign Affairs of Iraq, before the Security Council on Oct. 15, 1980, UN Doc. S/PV.2250. For the Iranian reply, see the statement of Mohammed Ali Rajai, Prime Minister of Iran, before the Security Council on Oct. 17, 1980, S/PV.2251.

4 Letter of March 16, 1980, set out in the judgment of the Court dated May 24, 1980, United States Diplomatic and Consular Staff in Tehran (United States v. Iran), [1981] ICJ Rep. 1 at 8. Khomeini expressed views on international law in an interview with Time magazine: “What kind of law is this? It permits the U.S. Government to exploit and colonize peoples all over the world for decades. But it does not allow the extradition of an individual who has staged great massacres. Can you call it law?” Time (Jan. 7, 1980) 27.

5 Gary Sick provides a pointed summary on the situation on the eve of war: “…Iran’s behaviour in the immediate post-revolutionary period left it with the worst of all possible worlds. Its rhetoric and meddling with the Shi’i opposition in Iraq was highly provocative, while its military weakness made it a tempting target. The combination proved deadly”: “Trial by Error: Reflections on the Iran-Iraq War” (1989) 43 Middle East J. 233. For a portrait of the Iranian revolution, see Ajami, Fouad, “Iran: The Impossible Revolution,” (1988) 67 Foreign Affairs 135. For a powerful portrayal of Saddam Hussein’s leadership, see al-Khalil, Samir (Kan an Makiya), Republic of Fear: The Inside Story of Saddam’s Iraq (New York: Pantheon, 1990).

6 Secretary-General Perez de Cuellar’s Report to Security Council, Dec. 9, 1991, UN Doc S/23273.

7 Iraqi Note to the Embassy of the Islamic Republic of Iran, Baghdad, Sept. 17, 1980, Iraq Ministry of Foreign Affairs, The Iraqi-Iranian Conflict: Documentary Dossier 200 (Baghdad: January, 1981) [hereinafter Dossier].

8 This is the conservative estimate of O’Ballance, Edgar, The Gulf War 30 (London: Brassey’s, 1988). Dilip Hiro has estimated the Iraqi attack at about seven divisions (70,000 to 100,000 men): The Longest War: The Iran-Iraq Military Conflict 40, 41 (London: Graften Books, 1989). The Iranian estimate of the scale of the initial Iraqi invasion was “12 divisions and more than 2,500 tanks, as well as large quantities of weapons and hundreds of war planes”: statement of Mohammed Ali Rajai, Prime Minister of Iran, before the Security Council, Oct. 17, 1980, UN Doc S/PV.2251 at 6. President Saddam Hussein stated in a press conference on Nov. 10, 1980: “Iraqi forces have advanced to a depth ranging from 20 to 110 kilometers inside Iranian territory on a front that extends for 550 kilometers”: Dossier at 30g. Detailed accounts of the course of the war include: Cordesman, A.H., The Iran-Iraq War and Western Security 1984-87: Strategic Implications and Policy Options (London: Jane’s Publishing, 1987); Balta, P., Iran-Irak: Une Guerre de 5000 Ans (Paris: Editions Anthropos, 1987); U.S. Senate Committee on Foreign Relations Staff Report, War in the Persian Gulf: The U.S. Takes Sides (1987); Karsh, E., The Iran-Iraq War: A Military Analysis (London: Adelphi Papers, IISS, 1987).

9 See Dossier at 240. Mr. Hammadi also argued that the attack was preventative in a letter to the Heads of Governments of the European Community, Dec. 2, 1980, Dossier at 320. The Caroline involved a raid by British/Canadian forces against an armed U.S. vessel on the American side of the Niagara River, in anticipation of an attack in support of a rebellion against Upper Canada. Commentators have questioned whether the Caroline dictum is consistent with Charter provisions, and in particular whether the inherent right of self-defence under Art. 51 includes a right to take preventative action against an attack that has not yet occurred but seems imminent For a restrictive view, see Brownlie, I., International Law and the Use of Force by States 275–78 (Oxford: Clarendon Press, 1963). Schachter, on the other hand, accepts the Caroline as reflecting customary international law and not inconsistent with Art. 51: O. Schachter, International Law in Theory and Practice 151 (Dordrecht: Martinus Nijhoff, 1991). President Saddam Hussein stated in his press conference on Nov. 1 o, 1980 that heavy shelling of Iraqi border towns on Sept. 4, 1980 marked the start of the war. See Dossier at 294.

10 See e.g., Schachter, supra note 9 at 144–46.

11 Security Council Resolution 487, June 19, 1981.

12 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), [1986] ICJ Rep. 14.

13 Ibid., para. 194. See also panel discussion: “Implementing Limitations on the Use of Force: The Doctrine of Proportionality and Necessity” (1992) ASIL Proceedings 39.

14 Debate in the Security Council, Oct. 17, 1980, supra note 3 at 16.

15 Ibid., 37.

16 Dossier at 28–49.

17 UNGA Resolution 37/3, Oct. 22, 1982, adopted by 119 votes in favour (Iraq, Canada), 1 against (Iran) and 15 abstentions.

18 Security Council Resolution 514, July 12, 1982. Saddam had previously announced, on June 20, 1982, his decision to withdraw his troops from Iran.

19 See United Nations Backgrounder, Chronology of United Nations Negotiations to End the Iran-Iraq War (New York: United Nations, 1988).

20 Security Council Resolution 598, July 20, 1987.

21 Secretary-General’s Report to the Security Council, Sept. 16, 1987.

22 For pro-Iran views, see Ramazani, R.K., “Who started the Iran-Iraq War? A Commentary” (1992) 33 Virginia J. of Int’l L. 69 , and Dekker, I.F., “Criminal Responsibility and the Gulf War of 1980–1988: The Crime of Aggression” in Dekker, I.F. and Post, H.H.G. (eds.), The Gulf War of 1980–1988: The Iran-Iraq War in International Legal Perspective 249–68 (Dordrecht: Martinus Nijhoff, 1992). For pro-Iraq views, see Renfrew, N.M., “Who Started the War?” (1987) 66 Foreign Policy 98 ; Khadduri, M., The Gulf War: The Origins and Implications of the Iraq-Iran conflict 1887 (Oxford: Oxford University Press, 1988); Marr, P., “The Iran-Iraq War: The View from Iraq” in Joyner, C.C. (ed.), The Persian Gulf War: Lessons for Strategy, Law and Diplomacy (New York: Greenwood Press, 1990); and Karsli, E. and Rautsi, I., Saddam Hussein: A Political Biography 135–49 (New York: The Free Press, 1991). Kaiyan Homi Kaikobad concludes that both states incurred international responsibility: see “Self-Defence, Enforcement Action and the Gulf Wars, 1980–88 and 1990–91” (1993) British Yearbook of International Law 308.

23 Supra note 6.

24 UN Mission Report to the Security Council, Mar. 21, 1984, UN Doc. S/16433.

25 Dilip Hiro, supra note 8 at 103–105.

26 Resolution 582, Feb. 24, 1986. The Security Council had previously authorized the President to make statements on its behalf on mission reports, but without identifying the user.

27 UN Doc. S/PV.2667, Mar. 21, 1986.

28 UNGA Resolution 42/37C, Nov. 30, 1987.

29 SC Resolution 612, May 9, 1988.

30 Resolution 620, Aug. 26, 1988. For an interesting analysis of the effectiveness of chemical weapons in this war, see McNaugher, T.L., “Ballistic Missiles and Chemical Weapons: the Legacy of the Iran-Iraq War” (1990) 15 Int’l Security 5. See also Mann, Howard, “Arms Control Verification and the United Nations: The Chemical Weapons Experience of the 1980s” (1988) 26 Canadian Yearbook of International Law 185.

31 Most commentators have supported the legal distinction reflected in state practice in the Gulf. See, e.g., Russo, F.V. Jr., “The Merchant Vessel as Military Objective in the Tanker War,” in Dekker, & Post, , supra note 22 at 193 : “As economic activity which effectively and substantially contributed to its overall war-fighting/-sustaining effort, Iran’s oil export system and the third country oil tankers supporting it were legitimate military objectives.” Similarly, see Fenrick, W.J., “The Exclusion Zone Device in the Law of Naval Warfare” (1986) 24 Canadian Yearbook of International Law 91 at 121.

32 The United States invoked the inherent right of self-defence under Art. 51 of the Charter to justify a U.S. naval attack on an Iranian ocean platform in international waters of the Gulf, on the grounds that the platform had assisted in attacks against U.S. and “other non-belligerent shipping”: Letter from the U.S. Permanent Representative to the President of the Security Council, UN Doc S/19219, Oct. 19, 1987.

33 See the letter of Aug. 14, 1990, from Saddam Hussein to Ali Akbar Hashemi Rafsanjani, President of the Islamic Republic of Iran, UN Doc. S/21528, Aug. 15, 1990, and letter of Aug. 17, 1990, from Ali Akbar Velayati, Minister of Foreign Affairs of the Islamic Republic of Iran, to the UN Secretary-General, UN Doc. S/21556, Aug. 17, 1990. From this oblique exchange of letters, and earlier exchanges between the two Presidents referred to therein, it seems clear that both parties committed themselves to the 1975 Algiers Agreement and to the implementation of Resolution 598. The precise terms of their respective letters were not, however, identical, and there is no doubt room for future misunderstanding.

34 These figures, derived from tables of the U.S. Arms Control and Disarmament Agency, appear in K. Krause, “International Trade in Arms,” Background Paper No. 28, Canadian Institute for International Peace and Security (Mar. 1989). According to Krause, the outlook for wider international controls is “bleak”: “The Political Economy of the International Arms Transfer System” (1990) 45 Int’l J. 687 at 721. In a statement before the U.S. Senate Foreign Relations Committee on May 29, 1987, Richard W. Murphy, Assistant Secretary of State for Near Eastern and South Asian Affairs, described “Operation Staunch” in the following terms: “… it complicates, delays, and makes more expensive Iranian arms procurement.” State Department Bulletin, July 1987, 65.

35 Deutsch, K. & Hoffmann, S. (eds.), The Relevance of International Law 101 (New York: Anchor Books, 1971).

36 See e.g., “Revue Internationale de la Croix-Rouge,” No. 746, 119–21 (mars-avril 1984) and No. 750, 378–81 (novembre-decembre 1984).

37 Canada was a member of the Security Council during 1977–78 and 1989–90.

38 Canada and Iran agreed in July 1988 to resume normal diplomatic relations with exchange of ambassadors.

39 Department of External Affairs Communique No. 155, “Export Controls Policy,” Sept 10, 1986.

40 See Marie-France Desjardins, “Ballistic Missile Proliferation,” Background Paper No. 34, Canadian Institute for International Peace and Security, Sept. 1990. From Feb. 1988, an advance in Iraqi technology, with North Korean assistance, made it possible to extend the range of Scud-B missiles to strike Tehran from 600 kms. away: Jane’s Defence Weekly, March 12, 1988. Ironically, these strikes may have contributed significantly to bringing the war to an end by helping to convince Iran that it could not win the war.

41 See Shapiro, Miriam E., “Investigating Allegations of Chemical or Biological Warfare: The Canadian Contribution” (1986), 80 AJ.I.L. 678.

42 Security Council Resolution 619, Aug. 9, 1988. Due to Iranian reservations, the Canadian contingent (numbering approximately 370) was deployed only on the Iraqi side of the border. These reservations were attributed to lingering sensitivities over the Canadian role in assisting U.S. diplomats to escape from Iran in Jan. 1980.

43 Franck, T.M., “Legitimacy in the International System” (1988) 82 A.J.I.L. 705 , and The Power of Legitimacy Among Nations (Oxford: OUP, 1990).

44 See the comments of Dieter Fleck in Dekker & Post, supra note 22 at 194–96.

45 Security Council Resolution 678, Nov. 29, 1990.

46 Security Council Resolution 687, Apr. 3, 1991, spelling out peace terms in an unprecedented 34 operative paragraphs, has been called “the mother of all U.N. resolutions.” As one measure of the strikingly different level of UN involvement, the Security Council adopted a total of 11 resolutions during the eight years of the Iran-Iraq conflict, compared to 13 resolutions adopted during the seven months of the Kuwait crisis. For a thoughtful analysis of the crisis, see Stein, Janice Gross, “Deterrence and Compellence in the Gulf, 1990–91” (1992) 17 Int’l Security 147.

47 Picco, Giandomenico, “The U.N. and the Use of Force” (1994) 73 Foreign Affairs 14.

48 This was the fourth time in the history of the UN that the Council had made a determination that there had been a breach of the peace, after Korea (1950), the Falkland Islands (1982), and Iran-Iraq (1987).

49 Report of the Spedai Joint Committee of Parliament on Canada’s Defence Policy: Security in a Changing World 11 (Ottawa: Queen’s Printer, October 1994).

* Formerly of the Department of External Affairs, Ottawa. Canadian Ambassador to Iraq, 1986-8. The views expressed are those of the author.

The Iran-Iraq War Revisited: Some Reflections on the Role of International Law

  • Erik B. Wang

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