5 |
Advice on the legal basis for military action, November 2002 to
March 2003
“… Member
States co-operating with the Government of Kuwait … to use
all
necessary
means to uphold and implement resolution 660 (1990) and all
subsequent
relevant
resolutions and to restore international peace and security in the
area.”
The
resolution stated that the Security Council was “acting under
Chapter VII of the
Charter”.
Chapter VII is the only part of the United Nations Charter
governing the use
of force,
and it does so in the context of: “Action with respect to threats
to the peace,
breaches of
the peace, and acts of aggression.”
After the
suspension of hostilities at the end of February 1991, resolutions
686 and 687
of 1991
contained a number of demands which Iraq had to fulfil in relation
to the cessation
of
hostilities and the commencement of reparations.
The
obligations included provisions in relation to:
•
the
Iraq/Kuwait border;
•
repatriation
of Kuwaiti nationals and property, and the payment of
compensation
by Iraq;
•
sanctions;
and
•
disarmament of
WMD, and inspections.
It was
expressly stated that the authority to use force in resolution 678
(1990) remained
valid
during the period required for Iraq to comply with those
demands.
In
resolution 707 of August 1991 the Security Council condemned Iraq’s
serious
violations
of its disarmament obligations as a “material breach” of the
relevant provisions
of
resolution 687 (1991), “which established a cease-fire and provided
the conditions
essential
to the restoration of peace and security in the
region”.
In January
1993, two further serious incidents arose in relation to Iraq’s
implementation
of
resolution 687 (1991). This led to the adoption of two further
Presidential Statements,
on
8 and 11 January, which contained a direct warning of serious
consequences.29
Within
days the
US, UK and France carried out air and missile strikes on
Iraq.
In August
1992, Dr Carl-August Fleischhauer, then the UN Legal Counsel,
provided advice
to the UN
Secretary-General on the legal and procedural basis for the use of
force against
The key
elements of Dr. Fleischhauer’s advice included:
•
The
authorisation to use all necessary means in resolution 678 (1990)
was limited
to the
achievement of the objectives in that resolution - “to uphold and
implement
resolution
660 (1990) and all subsequent relevant resolutions and to
restore
international
peace and security in the area” - but was not limited in time; it
was
not
addressed to a defined group of states except for “the vague notion
of ‘states
cooperating
with Kuwait’”, and it was clear by the words “all necessary means”
that
it was
understood to include the use of armed force.
29
Presidential
Statement, S/25081, 8 January 1993; Presidential Statement,
S/25091, 11 January 1993.
30
Zacklin R,
The United Nations Secretariat And The Use of Force In A Unipolar
World, Hersch
Lauterpacht
Memorial Lectures, University of Cambridge, 22 January 2008. The
advice of the UN Legal
Counsel can
be sought by the Secretary-General, and by the organs of the UN,
but not by the Member
States, who
rely on their own legal advisers. It is not determinative and does
not bind Member States.
23