The Never-Ending Iraqi Crisis: Dual Containment and the “New World Order”
Bj?rn M?ller
March 1999
Copenhagen Peace Research Institute
Since the autumn of 1997 the world has seen an intense international dispute over Iraq, which culminated in December 1998 in a new war:
Operation Desert Fox, which has been followed by almost daily bombardments of military targets in Iraq by the United States and Great Britain.
In the following these events shall be analyzed from several different angles: The analysis of the legal, strategic and political aspects of the crisis 1
is followed by a tentative analysis of the accompanying discourse. The paper concludes by sketching an alternative to the present American
strategy of “dual containment”.
1. Legal Analysis
There is little doubt that Iraq was in blatant violation of the 1991 ceasefire agreement in general and of the famous “mother of all resolutions”,
UNSCR 687 (3 April 1991) in particular, in which the extent and modalities of the disarmament of the defeated aggressor were detailed: 2
The Security Council.....
8. Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of:
a) all chemical and biological weapons and all stocks of agents and all related subsystems and components and all research,
development, support and manufacturing facilities;
b) all ballistic missiles with a range greater than 150 kilometres...
34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of this
resolution and to secure peace and security in the area.
The main issue of controversy has, paradoxically, not so much been Iraq’s actual holdings of the proscribed weapons as the international
supervision of their destruction. Iraq has on several occasions placed obstacles in the way of, and eventually even completely refused access to,
the UN’s appointed representatives, i.e. the inspectors of UNSCOM (United Nations Special Commission). In response, the United States
began threatening, as well as materially planning for, a military campaign against Iraq in early 1998. After a year’s Iraqi provocations and US
threats, the crisis was escalated, as the US and the UK launched Operation Desert Fox, subsequent to which Iraq demanded the total and
irreversible withdrawal of UNSCOM. At the time of writing it seems very unlikely that the inspectors will ever be allowed to return—also
because both Russia and France are working for a new inspection regime. 3
Even though it does not legally justify Iraq’s behaviour, it has recently been revealed that Iraq was basically correct when it accused UNSCOM
of allowing itself to be abused as a cover for espionage. 4 This might surely be accepted as a significant mitigating circumstance, especially in view
of the strong probability that information gathered by these illicit means was used for the subsequent aggression against Iraq.
The Iraqi violations of resolution 687 and others notwithstanding, both the US and British threats and their subsequent implementation
represented clear breaches of international law, in casu nothing less than the UN Charter. This states unequivocally that not merely the actual use
of force, but also the mere threat thereof is illegal, regardless of the underlying intentions. The only institution with the right to use, or mandate the
use of force is the UN Security Council, as clearly stated in the Charter. 5
Article 4(2): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Article 24(1): In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary
responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security
Council acts on their behalf.
Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall
make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace
and security.
Article 42: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate,
it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may
include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
The advocates of military intervention (the United States, followed by the UK and various other countries, including Denmark) have argued that
prior Security Council resolutions entailed an “implicit authorization” to use force, referring primarily to UNSCR 678 (29 November 1990):
The Security Council.....
2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully
implements... the foregoing resolutions, to use all necessary means to uphold and implement Security Council resolution 660
(1990)b and all subsequent relevant resolutions and to restore international peace and security in the area.
4. Requests the States concerned to keep the Council regularly informed on the progress of actions undertaken pursuant to
paragraphs 2 and 3 of this resolution.
This reading of the resolution, however, does not seem tenable, above all because it clearly refers to a previous resolution (UNSCR 660 of 2
August 1990), which had nothing to do with the disarmament of Iraq, but only with a condition that had already been met, namely the restoration
of the sovereignty of Kuwait.
The Security Council.....
2. Demands that Iraq withdraw immediately and unconditionally all of its forces to the positions in which they were located on 1
August 1990.
Even though several subsequent resolutions have condemned Iraq for non-compliance, none of them have contained anything that might be
construed as an authorization to use force (for a complete list see Table 1) 6.
The world was thus in February 1998 heading towards a clear breach of international law perpetrated by two of the Security Council’s
permanent members. This threatened to seriously undermine the UN’s authority, as there would be very little the rest of the UN could do, if only
because the US and UK would be able to veto any condemnation in the Security Council, to say nothing of actual reprisals.
Fortunately, however, UN Secretary General Kofi Anan managed to “snatch victory from the claws of defeat”. His negotiations in Baghdad
produced a Memorandum of Understanding, dated 23 February 1998, between Iraq and the UN, in which Iraq pledged to “cooperate fully with
UNSCOM and the International Atomic Energy Agency (IAEA)”, in return for “the commitment of all Member States to respect the sovereignty
and territorial integrity of Iraq”. Concretely, Iraq promised “to accord to UNSCOM and IAEA immediate, unconditional and unrestricted
access”, but the UN promised to “respect the legitimate concerns of Iraq relating to national security, sovereignty and dignity”, which was to be
ensured by having the controversial eight Presidential Sites inspected by a special group headed by a Commissioner appointed by the
Secretary-General. The UN further promised to bring the matter of a lifting of sanctions “to the full attention of the members of the Security
Council”.
After some haggling in the Security Council, with the United States and Britain pushing for a resolution that would make the use of force an almost
automatic response to Iraqi non-compliance, a compromise resolution (UNSCR 1154) was passed on 2 March 1998.
The Security Council,
3. Stresses that compliance by the Government of Iraq with its obligations, repeated again in the memorandum of understanding, to
accord immediate, unconditional and unrestricted access to the Special Commission and the IAEA in conformity with the relevant
resolutions is necessary for the implementation of resolution 687 (1991), but that any violation would have the severest
consequences for Iraq;
5. Decides, in accordance with its responsibilities under the Charter, to remain actively seized of the matter, in order to ensure
implementation of this resolution, and to ensure peace and security in the area.
While threatening “the severest consequences” of any breach of the agreement, the resolution clearly left the decision to the Security Council of
how to respond in case of continued Iraqi obstruction or obfuscation: an interpretation that was not merely logical, but which was also explicitly
advocated by Secretary General Anan. 7 In any case, there is no doubt that the Security Council is the supreme authority on the interpretation of
its own resolutions, which cannot even be overruled by the ICJ (International Court of Justice), much less by individual states, however powerful.
8
When the US and the UK in December 1998 thus used the report by UNSCOM chairman Richard Butler as the pretext for launching Operation
Desert Fox, it was thus, legally speaking, a war of aggression undertaken by two of the permanent members of the Security Council. Not only did
the aggressors have no explicit mandate, but the three other permanent members made it abundantly clear that they were opposed to the use of
force. The United States and the UK even had the audacity and arrogance to launch the strikes while the Council was in session and in the midst
of its deliberations on the matter. In Russian President Yeltsin’s words:
The resolutions on Iraq adopted by the UN Security Council do not provide any basis whatsoever for actions of this sort. By
carrying out unprovoked military action, the USA and Britain have crudely violated the UN Charter and the universally-accepted
principles of international law as well as the norms and rules governing the responsible conduct of states in the international arena.
The military strike was delivered precisely at the moment when the Security Council was discussing the Iraq problem. This can
essentially be regarded as a step that undermines the entire system of international security, of which the UN and its Security Council
are the linchpins. 9
Operation Desert Fox was called off on 19 December, but has been followed by two other, almost equally serious, breaches of international law
on the part of the United States and to some extent Great Britain:
First of all, the post-war period has seen nearly daily attacks against Iraqi air defence systems in the so-called “No-Fly Zones” in northern and
southern Iraq (see map). These zones have no US mandate and thus represent a clear infringement of Iraq’s sovereignty and territorial integrity
with their prohibition against both military and civilian flight, combined with a daily patrolling by US, British and (until 1996) French military
aircraft. In a Department of Defense News Briefing, 26 January, 1999, it was claimed that
The zones, created after the Gulf War, were mandated by U.N. Security Council Resolutions 678, 687, and 688 to deter Iraq’s use
of aircraft against its people and its neighbors.
In fact, however, none of the quoted resolutions mention the zones at all. UNSCR 678 (29 November 1990) authorized the use of force to evict
Iraq from Kuwait; UNSCR 687 mandated Iraq’s disarmament, yet without any authorization to use force; and UNSCR 688 condemned “the
repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas”, demanded “that Iraq, as a
contribution to remove the threat to international peace and security in the region, immediately end this repression” and insisted “that Iraq allow
immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all
necessary facilities for their operations”. Not only was there no mention of no-fly zones, but the resolution explicitly reaffirmed “the commitment
of all Member States to the sovereignty, territorial integrity and political independence of Iraq”.
Secondly, the Clinton Administration has begun implementing the Iraq Liberation Act of 5 October 1998, which says that
It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq
and to promote the emergence of a democratic government to replace that regime.
This included, in addition to support for propaganda and humanitarian purposes, also military assistance, including “defense articles” (i.e.
weapons), military education and training for insurgents, to an amount not exceeding 97 million dollars. 10
Whatever one may think of the Iraqi regime and hope that it will one day be replaced by a democracy, for one state to thus explicitly declare its
intention to remove another state’s government by military means (among others), is a clear violation of the UN Charter, as well as of several UN
Security Council resolutions, all of which have pledged respect for Iraq’s sovereignty. The Iraq Liberation Act is also a violation of the UN
General Assembly’s Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their
Independence and Sovereignty, which was adopted in 1965 with only one abstention (the UK, but not the United States), and in which it was
stated:
No state has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state.
Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or
against its political, economic and cultural elements are condemned. 11
The United States has thus been in clear breach of international law in several respects during the protracted Iraqi crisis. That this crisis is not an
isolated exception to a general rule of law-abidance shall be argued and documented below.
Table 1. UN Security Council Resolutions on Iraq/Kuwait, 1990-1998
No.
Date
Topic
Decision
1990
660
02.08
Iraqi invasion of K.
Demand withdrawal
661
06.08
Occupation of K.
Embargo against Iraq
662
09.08
Annexation of K.
Declare null and void
664
18.08
Hostages
Demand right to leave
665
25.08
Non-compliance
Impose naval blockade
666
13.09
Humanitarian
Authorize food/medicine supply
667
16.09
Diplomatic staff
Demand release
669
24.09
Side-effects of sanctions 12
Examine requests for assistance
670
25.09
Sanctions
Implementation measures
674
29.10
Foreign nationals
Demand release/human rights
677
28.11
Demographic manipulation
in Kuwait