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The Use of Force in International Law - A Case-Based Approach edited by Ruys, Tom; Corten, Olivier; Hofer, Alexandra (17th May 2018)

Part 2 The Post-Cold War Era (1990–2000), 38 The Gulf War—1990–91

Erika de Wet

From: The Use of Force in International Law: A Case-Based Approach

Edited By: Tom Ruys, Olivier Corten, Alexandra Hofer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 07 December 2019

Subject(s):
Self-defence — Collective security — UN Charter — Armed attack

(p. 456) 38  The Gulf War—1990–91

I.  Facts and Context

The Gulf War of 1990–91 was triggered by the invasion and occupation of Kuwait by Iraq on 2 August 1990.1 On the same day and at the request of the Kuwaiti Government,2 the United Nations Security Council (UNSC) passed Resolution 660, determining that the Iraqi invasion of Kuwait constituted an international breach of the peace and demanding that Iraq immediately and unconditionally withdraw all its forces from Kuwait. This demand was explicitly based on Articles 39 and 40 of the UN Charter.3

When Iraq invaded Kuwait, it submitted that it was reclaiming part of its territory as Kuwait had been part of the Basra province until the Anglo-Ottoman Treaty of 29 July 1913, and successive Iraqi governments had never accepted the severance of Kuwait from Iraq.4 Iraq also accused Kuwait of economic aggression due to its flooding of the oil markets which resulted in low oil prices that severely harmed the Iraqi economy.5 At the time Iraq was having difficulty repaying loans amounting to $37 million which it had received inter alia from Kuwait during the Iran–Iraq war between 1980 and 1988.6 In addition, Iraq referred to a long-standing dispute between Iraq and Kuwait regarding the Warbah and Bubiyan islands, as well as to increased encroachment by Kuwait upon Iraqi territories and oil regions.7

When Iraq failed to comply with the demand in Resolution 660 (1990), despite its prior assurance that it would commence withdrawal from Kuwait by 5 August 1990, the UNSC imposed a comprehensive economic sanctions regime on Iraq in Resolution 661 of 6 August 1990.8 In response Iraq announced an ‘eternal and irreversible’ merger between Iraq and Kuwait on 8 August 1990, incorporating Kuwait as its nineteenth province.9 This (p. 457) prompted the unanimous adoption of Resolution 662 of 9 August 1990, which determined that the annexation of Kuwait was null and void and demanded that it be rescinded by Iraq.10 Several subsequent resolutions condemned Iraq for acts it perpetrated against diplomatic premises and personnel in Kuwait including abduction, as well as its treatment of Kuwaiti nationals.11

In the series of resolutions adopted in relation to the Iraq–Kuwait situation, Resolution 665 of 25 August 1990 was the first to be interpreted as permitting a certain measure of military force.12 It authorized member states who were deploying maritime forces in the area to use ‘such measures commensurate to the specific circumstances as may be necessary’ to halt inward and outward maritime shipping, in order to inspect cargoes and ensure compliance with economic sanctions.13 US forces, which had already been deployed in the Persian Gulf regions since early August 1990,14 subsequently joined with those of other states cooperating with Kuwait to give effect to Resolution 665 (1990).15

Following reports of breaches of the economic sanctions by third parties, the UNSC adopted Resolution 670 on 25 September 1990, which prohibited air traffic with Kuwait and Iraq except for humanitarian purposes.16 In the following weeks the United States continued to increase its number of troops in the Persian Gulf region.17 On 29 November 1990 the UNSC adopted Resolution 678, authorizing member states cooperating 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.18 The resolution was to go into effect on 15 January 1991,19 giving Iraq ‘a pause of goodwill’ of six weeks during which it had to withdraw its forces.20 The UNSC adopted this resolution under Chapter VII, but did not specify the article(s) on which it based the authorization.

In the weeks leading up to the adoption of Resolution 678 (1990) and during the ‘pause of goodwill’, the Soviet Union undertook several diplomatic efforts through meetings (p. 458) with Iraqi leaders and representatives of the Soviet Union and the United States, in an attempt to prevent the outbreak of a large-scale armed conflict.21 However, as none of these efforts resulted in the Iraqi withdrawal from Kuwait, the coalition air forces initiated aerial bombings on 16 January 1991.22 Meanwhile, naval forces also continued to monitor the embargo.23

On 23 February 1991, the Iraqi Foreign Minister informed a news conference in Moscow that the Iraqi leadership was prepared to withdraw all its forces immediately and unconditionally from Kuwait to the position in which they were located on 1 August 1990.24 The Soviet Union subsequently engaged with the United States and its allies in an attempt to convene an emergency UNSC meeting for setting a date for troop withdrawal and the adoption and monitoring of a ceasefire.25 However, this initiative did not prove successful. Consequently, the coalition ground forces launched their ground attack on 24 February 1991, managing to expel the Iraqi forces from Kuwait within the course of four days.26 By 27 February 1991, Iraq first informed the UNSC that it intended to comply with the relevant UNSC resolutions and then, in a second communication, that its forces had been withdrawn from Kuwait.27

On 28 February 1991, the coalition forces interrupted their offensive in view of pending ceasefire negotiations that took place on 1 March 1991.28 On 2 March 1991, the UNSC adopted Resolution 686, demanding inter alia that Iraq cease hostile or provocative actions and meet with coalition commanders to arrange the military details of the cessation of hostilities.29 The subsequent ceasefire concluded between Iraq, Kuwait and those states cooperating with Kuwait was formalized in Resolution 687 of 3 April 1991.30 This complex resolution also imposed a series of extensive obligations on Iraq, ranging from determinations concerning the Iraq–Kuwait border, to the destruction of weapons of mass destruction by Iraq, the return of Kuwaiti property, the repatriation of Kuwaiti and third country nationals, the compensation of third parties for damages (p. 459) resulting from the war, as well as sustaining comprehensive economic sanctions against Iraq.31 Iraq accepted the terms of the ceasefire on 6 April 1991.32

II.  The Positions of the Main Protagonists and the Reaction of Third States and International Organizations

As indicated above in section I, Iraq justified its invasion of Kuwait with territorial claims. It submitted that it was reclaiming a part of Iraqi territory which was severed against Iraq’s will at the end of the First World War, while also referring to a protracted dispute between Iraq and Kuwait regarding the Warbah and Bubiyan Islands. Iraq further accused Kuwait of economic aggression, as well as increased encroachment by Kuwait upon Iraqi territories and oil regions. However, the UNSC unambiguously rejected the use of force as a method for settling these disputes in Resolution 662 of 9 August 1990. This resolution, which was adopted unanimously, ‘decided that the ‘annexation of Kuwait by Iraq under any form and whatever pretext has no legal validity, and is considered null and void’.33

As far as the subsequent use of force against Iraq was concerned, Resolution 665 (1990) and Resolution 678 (1990) constituted the basis of the military action. Resolution 665 (1990) was sponsored by the United Kingdom and the United States and was adopted with 13 votes in favour and 2 abstentions. The two sponsoring states were of the opinion that the authorization to use ‘such measures commensurate to the specific circumstances as may be necessary’ was broad enough to include armed force. Such force nonetheless had to be in line with the narrow purpose of the resolution, which concerned the prevention of inward and outward maritime shipping and cargo inspection.34

This position was also supported by France. It noted that the resolution specified the implementation of the embargo through verification of cargoes and destinations, which allowed for a minimum use of force that had to be exercised as a last resort and had to be limited to what was strictly necessary.35 The Soviet Union also seemed in support of this position, although it did not explicitly use the term ‘force’. Instead it stated that the ‘array of means’ made available by the resolution had to be commensurate with the specific circumstances.36 Kuwait itself supported the military option provided for by the resolution, on the basis that it would tighten the sanctions regime against Iraq and would contribute to Kuwait’s demand that its territory and legitimate government be restored to it.37

(p. 460) China, while voting in favour of Resolution 665 (1990), did not agree that the resolution authorized the use of any military force. It drew attention to the fact that the reference to the use of ‘minimum force’ in the original draft of the resolution had been removed at China’s insistence.38 In China’s view, the removal of the reference to minimum force from the text and its replacement with a reference to ‘such measures commensurate to the specific circumstances as may be necessary’ meant that the use of force was not authorized.39

Iraq regarded Resolution 665 (1990) as illegal, claiming that any authorization to use force in the resolution did not meet the requirements of Article 42 and subsequent articles of the UN Charter.40 Those articles limited the use of force to action by the UNSC to be undertaken in cooperation with the Military Staff Committee, in accordance with agreements between the UNSC and the respective troop-contributing countries. These troops had to be placed under the command of the UN.41 Iraq further submitted that Article 42 of the UN Charter could only be invoked after the UNSC had assessed that economic sanctions had not been effective and that such an assessment had not yet taken place. According to Iraq, the sponsors of Resolution 665 (1990) intended to circumvent UNSC procedures and mechanisms in order to facilitate large-scale military aggression against Iraq.42

While Cuba and Yemen did not vote against the resolution but instead chose to abstain, they were also concerned about the type of forcible measures to be exercised and the supervision of such measures.43 Cuba criticized the resolution for neither specifying who would actually provide the military force, nor indicating who would command them. As a result, the UNSC was delegating authority without specifying to whom.44 Yemen, inter alia, noted that the wording of the resolution allowed every maritime state with a presence in the area to undertake whatever acts it deemed fit, while the UNSC would not be in a position to supervise such acts.45

Resolution 678 (1990) was adopted by 12 votes in favour, 2 votes against (Cuba and Yemen), and 1 abstention (China)46 and the draft resolution was sponsored by Canada, the Soviet Union, the United Kingdom, and the United States.47 While there seemed to be general agreement that the reference to ‘all necessary means’ implied the use of military force, not all UNSC members were in agreement about the timing and manner of the authorization. The United States, which led the military coalition against Iraq, underscored that the text of the resolution authorized the use of force with the purpose of liberating Kuwait, restoring the legitimate Government of Kuwait and restoring international peace and security in the area resolutions.48 This view was reiterated by the Soviet Union, which underscored that the authorization was intended to put an end to the aggression by Iraq.49 (p. 461) Similarly the French Government confirmed that its military action had one objective only, namely the liberation of Kuwait.50

The United Kingdom underscored that the resolution obliged Iraq to withdraw its forces from Kuwait to the position they were in on 1 August 1990, and that member states acting with Kuwait could use such force necessary to compel compliance.51 According to the United Kingdom, military force did not need to be limited to the territory of Kuwait, as the capacity of the Iraqi war machine was such that its logistical support and resources extended to within Iraq itself.52 Even so, the objective of the military action remained limited to achieving the withdrawal of Iraq from Kuwait, the return of Kuwait’s legitimate government and the restoration of peace and stability in the region.53 Kuwait itself emphasized that the occupation of Kuwait by Iraq could not be terminated without the use of military force.54 The purpose of the military action was however not to destroy Iraq, but to liberate Kuwait.55

Iraq for its part contested the legality of Resolution 678 (1990), arguing that the UNSC had no right to authorize individual countries to use force against any particular country. It reiterated the view that the UNSC could only authorize collective action in accordance with Article 42 of the UN Charter and in accordance with the mechanism foreseen in Article 43 of the UN Charter, when sanctions adopted in accordance with Article 41 of the UN Charter proved to be ineffective. In such a situation the UNSC could authorize collective action under the command and control of the UNSC in coordination with the Military Staff Committee.56

Cuba and Yemen also opposed the resolution, voicing reservations similar to those which they expressed when abstaining during the voting on Resolution 665 (1990). Cuba expressed concern that the resolution gave the United States and its allies carte blanche for the use of military force.57 Cuba further submitted that the authorization to use force was adopted in contravention of UN Charter procedure, but did not specify how the procedure was violated.58 Yemen was of the opinion that the authorization to use force was too broad and vague, since it failed to exclude the use of force for purposes other than enforcing the (p. 462) UNSC resolutions adopted against Iraq.59 It further objected to the fact that the UNSC would not have effective control over the troops and the ensuing lack of accountability.60

While China did not vote against the resolution, it chose to abstain and in fact constituted the only permanent member of the UNSC that did not support Resolution 678 (1990). It expressed concern about the timing of the authorization to use force, noting that the authorization of the use of ‘all necessary means’—which was synonymous with authorizing military action—had occurred too hastily.61 At the same time China criticized Iraq’s unwillingness to withdraw from Kuwait and supported the part of Resolution 678 (1990) that called on Iraq to comply fully with all UNSC Resolution 660 (1990) and subsequent resolutions. As a result, it did not veto the resolution but chose to abstain.62

A further point of contention concerned the question of whether the manner in which the coalition forces conducted the hostilities remained within the scope of the mandate provided for in Resolution 678 (1990). This concern related to the fact that the coalition did not only target Iraqi forces and military infrastructure within Kuwait itself, but also within Iraq. In addition, the bombardment of Iraqi targets were of a very intensive nature. Iraq itself described the military action as exceeding the objective of Resolution 678 (1990).63

Malaysia also regarded the extensive bombing of Iraq as an escalation of the military offensive that may well go beyond the objectives of the respective UN resolutions, including Resolution 678 (1990).64 It also expressed its concern about the extent of the civilian casualties and damage to infrastructure, including historical and religious sites.65 Similar humanitarian concerns were expressed by Cuba66 and Iran.67 China, while not suggesting that the coalition forces over-stepped its mandate, did express concern about the extensive collateral damage to civilian life and non-military infrastructure.68

The United Kingdom and the United States underscored that a limitation of the hostilities to Kuwaiti territory would undermine the objectives of Resolution 678 (1990), as it would not be possible to remove the Iraqi war apparatus without targeting Iraqi resources and support structures within Iraq itself. Military measures could therefore not be confined to the territory of Kuwait.69 Canada, for its part, emphasized that despite the intensity of the bombings, the coalition forces took great care to restrict wherever possible their attacks to military targets. The targeting within Iraq did not intend to destroy Iraq, but to compel the expulsion of Iraq from Kuwait.70 This view was also shared by Kuwait,71 as well as various other states in the region.72

Subsequent to the adoption of the formal ceasefire in Resolution 687 (1991), the UN undertook a mission to Iraq between 10 and 17 March 1991 with a mandate to assess (p. 463) the need for humanitarian assistance.73 The mission’s report expressed great concern for the devastation in Iraq as a result of the war, which had inflicted ‘near-apocalyptic results upon the economic infrastructure of what had been, until January 1991, a rather highly urbanized and mechanized society’.74 It noted that Iraq would for some time to come be relegated to a pre-industrial age, while at the same time facing the challenge of post-industrial dependency on energy and technology.75 This resulted in significant humanitarian need for resources such as safe water and sanitation, basic health and medical support, as well as for the logistical means to make such support actually available in the country.76

III.  Questions of Legality

As already indicated by the analysis in section II, the debate pertaining to the legality of the use of force against Iraq centred on whether the UN resolutions which authorized the use of military force had their basis in the UN Charter. More specifically, the debate centred on whether Resolution 665 (1990) and Resolution 678 (1990) could be based on Article 42 or Article 51 of the UN Charter. As the war escalated, some countries also expressed concerns about whether the bombardment of targets in Iraq itself was within the purpose of Resolution 678 (1990), namely the liberation of Kuwait, as well as about the scope of the damage resulting from the bombardments.

The authorization to use force against Iraq in Resolution 665 (1990) and in particular Resolution 678 (1990) constituted a revival of the so-called coalition model, which was first resorted to during the Korean War in 1950.77 By authorizing ‘willing and able’ states to execute military measures on its behalf, the Security Council found a solution to the problem that Article 43(1) of the UN Charter has remained a dead letter unto this day.78 Although this coalition model subsequently became a regular and accepted practice of peace enforcement within the UN system,79 questions initially arose as to whether the UN Charter provided a legal basis for this model.80 In this context, one should keep in mind that while Article 53 of the UN Charter explicitly provides the UNSC with the competence to authorize regional organizations to engage in enforcement action, the UN Charter does not contain a similar explicit authorization pertaining to coalitions of willing and able (p. 464) states. The question therefore arises whether the absence of such a similar provision would preclude authorizations of coalitions of the willing and able. This concern was to some extent reflected in the UNSC debates by states such as Cuba and Yemen, which had abstained from voting for Resolution 665 (1990) and voted against Resolution 678 (1990). Similarly, Iraq submitted at the time of the adoption of these resolutions that the authorizations to use force were in violation of the procedures foreseen in the UN Charter.

Two alternative legal bases for authorizing coalitions of willing and able states to use force under Chapter VII of the UN Charter have been put forward in legal doctrine. These include Article 51 of the UN Charter81 and Article 42 of the UN Charter,82 both of which form part of Chapter VII of the UN Charter.83 In this context it is important to recall that both Resolution 665 (1990) and Resolution 678 (1990) were adopted under Chapter VII of the UN Charter, but without referring to the actual article on which the authorization was based.

Those who argue that the UNSC authorizations to use force during the Iraq–Kuwait war were based on Article 51 of the Charter, point to the fact that the invasion of Kuwait constituted an armed attack that laid the ground for the exercise of the right to individual and collective self-defence.84 As a result, the coalition of states cooperating with Kuwait could have used force against Iraq without any delay and only afterwards report to the UNSC on the measures they had taken.85 However, in this instance the coalition forces preferred to seek in advance the support of the UNSC for their exercise of collective self-defence, thereby pre-empting any concerns about the subsequent reaction of the UNSC to the hostilities.86 Furthermore, the argument goes, if the military action by the states cooperating with Kuwait was based on Article 42 of the UN Charter, it would have required the involvement of the Military Staff Committee foreseen in Article 47 of the UN Charter, as well as the appointment of a commanding officer by the UN Secretary-General.87 Neither in the case of Resolution 665 (1990) nor in the case of Resolution 678 (1990) was this procedure followed. In fact, Resolution 665 (1990) requested the states cooperating with Kuwait to coordinate their action through the Military Staff Committee, but the coalition forces chose not to give effect to this request.88

If one were to accept the above line of argument, it would imply that Resolution 665 (1990) and Resolution 678 (1990) did not constitute an autonomous basis for military action. Rather, they merely ‘confirmed’ the right to self-defence as the basis for military action against Iraq, while also modifying the manner in which this right was to be exercised. In the case of Resolution 665 (1990) the UNSC modified the exercise of self-defence in the context of maritime blockades. This resolution was designed to ensure effective economic (p. 465) sanctions by means of a maritime blockade that had to intercept ships from and to enemy ports.89 While under customary international law a blockade could not be extended to a neutral country (in this case Jordan), the UNSC could and did in this instance authorize such an extension under Chapter VII of the Charter.90 As for Resolution 678 (1990), the UNSC modified the right to self-defence by introducing a compulsory waiting period (the ‘pause of goodwill’) that would otherwise not have been a requirement under customary international law.91 The resolution obliged the states cooperating with Iraq to abstain from military action during the period of 29 November 1990 and 15 January 1991, giving Iraq a last chance to withdraw from Kuwait.92

According to another line of argument, which views Articles 42 and 51 as mutually exclusive, Article 51 of the UN Charter could not have constituted the basis for the military actions authorized by Resolution 665 (1990) and Resolution 678 (1990), as this article is not intended to be applied by the UNSC itself. Instead, it is to be invoked by states (either individually or collectively) when falling victim to an armed attack ‘until the Security Council has taken measures necessary to maintain international peace and security’, that is, pending Security Council enforcement action.93 As a result, a state facing an armed attack can defend itself with the support of other states so inclined without prior request or authorization by the Security Council.94 However, once the UNSC authorizes the use of force it does so on the basis of Article 42 of the UN Charter. This article is broad enough to encompass authorizations to member states to undertake military measures for the restoration or maintenance of international peace and security, where they are willing and able to do so.95

This argument gains strength if one reads Article 42 in conjunction with Article 48(1) of the UN Charter.96 The latter concretizes states’ obligation to carry out binding measures of the UNSC contained in Article 25 by providing the UNSC with the discretion to determine who will participate in enforcement action. If one regards Article 48(1) as an extension of Article 25, it would provide the UNSC with the formal possibility to determine that all or only some UN members are required to execute UNSC decisions. This would complement the material basis for authorizing member states to undertake military measures on behalf of the UNSC, provided in Article 42 of the UN Charter.97

This line of argument implies that a decision by the UNSC to authorize force under Article 42 of the UN Charter results in a limitation of the manner in which the right to self-defence is exercised in the case at hand.98 This should, however, not be interpreted (p. 466) as meaning that the phrase ‘until the Security Council has taken measures necessary to maintain international peace and security’ implies that the mere adoption of a Chapter VII resolution automatically requires restraint by those exercising the right to self-defence. For example, a resolution that calls on an aggressor to withdraw, but without also calling for a ceasefire or cessation of military action by all parties would still allow the victim state and its allies to exercise the right of individual and collective self-defence. After all, anything else would be severely detrimental to the victim state if the aggressor ignored the UNSC’s call.99 The right to self-defence could therefore continue to be exercised until the UNSC either authorizes the use of force, or calls for a ceasefire or a cessation of military action by all parties involved.100 Specifically in the case of Iraq, the UNSC explicitly affirmed Kuwait’s inherent right of individual or collective self-defence when it adopted economic sanctions in Resolution 661 of 6 August 1990.101 However, once the UNSC authorized the use of force in Resolution 678 (1990) for the purpose of ‘uphold[ing] and implement[ing] resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area’,102 the exercise of the right to self-defence was subsumed into the UNSC’s right to authorize the use of military enforcement measures under Article 42 of the Charter.103

The debate as to whether Article 42 rather than Article 51 of the UN Charter constituted the legal basis for the authorization to use force in Resolution 665 (1990) and Resolution 678 (1990) is not merely of academic relevance. It has a bearing on who decides whether the purpose for which the military action has been authorized has been achieved and whether the authorization to use force has ceased. Those who argue that the military action in the Iraq–Kuwait war was rooted in Article 51 of the UN Charter submit that the decision rests with the state that invoked the right to individual self-defence and those assisting it in terms of collective self-defence.104 The ceasefire between Kuwait and those states cooperating with it and Iraq suspended hostilities, but did not terminate the war.105 Kuwait and its allies could therefore invoke the right to self-defence in instances of a material breach of the ceasefire by Iraq.106 In accordance with this reasoning the United States and the United Kingdom have inter alia relied on Resolution 678 (1990) as a basis for a variety of aerial attacks on Iraq during the 1990s.107

However, according to those who believe that the UNSC as a collective entity authorized states to use force on the basis of Article 42 of the UN Charter, the decision regarding the termination of this authorization would also rest with the UNSC as a collective entity. In line with this argument some authors have interpreted the adoption of Resolution 687 (1991), which inter alia affirmed the formal ceasefire, as confirmation that the purpose of Resolution 678 (1990) has been achieved and that the authorization to use military force (p. 467) has therefore ceased.108 This interpretation draws some support from statements of states who formed part of the coalition forces (referred to in section II above),109 declaring that their sole purpose was to liberate Kuwait. It also appears to be supported by the text of Resolution 687 (1991). Although paragraph 1 does affirm that all thirteen prior resolutions survived the ceasefire, only paragraph 4 of Resolution 687 (1991) contains language authorizing the use of force where the UNSC finds this appropriate.110 This was expressed in the context of guaranteeing the inviolability of the Iraq–Kuwait border. In addition, paragraph 34 of Resolution 687 (1991) determined that the UNSC remained seized of the matter and would take such further steps as might be required for the implementation of that resolution and to secure peace and security in the area. A holistic reading of Resolution 687 (1991) suggests that with the possible exception of the guaranteeing of the inviolability of the Iraqi–Kuwait border,111 the UNSC as a collective entity, and not individual member states, had to decide whether the use of force was necessary as a response to a material breach of the conditions imposed by Resolution 687 (1991).112

The current author belongs to those who support Article 42 of the UN Charter as the basis for the military mandates authorized in Resolution 665 (1990) and Resolution 678 (1990) and who argue that these authorizations have ceased with the adoption of Resolution 687 (1991). She is also of the opinion that the targeting of the Iraqi war apparatus within Iraq itself was indeed within the scope of Resolution 678 (1990). However, the issue of the legal basis of the UNSC resolutions authorizing military force in Iraq and the consequences resulting from such basis remains a bone of contention amongst states and legal scholars. This dispute includes the question of whether the immense devastation of the economic infrastructure and its enduring impact on the civilian population was indeed necessary to realize the aim of Resolution 678 (1990).

IV.  Conclusion: Precedential Value

The adoption of Resolution 665 (1990) and in particular Resolution 678 (1990) coincided with the end of the Cold War and an improvement in the relations between western states and the then still existing Soviet Union. These resolutions further marked the revival of a model which the UNSC had not used since the Korean War, namely the authorization of large-scale military operations to coalitions of willing and able states under Chapter VII of the UN Charter. It also coined the phrase ‘all necessary measures’ as the UNSC (p. 468) terminology allowing large scale military measures by land, sea, and air. At the time of the adoption of Resolutions 665 (1990) and Resolution 678 (1990) the coalition model was controversial. Some states regarded it as circumventing the mechanisms provided for in Articles 43 through 47 of the UN Charter as it allowed national commanders (so-called ‘unified command and control’) instead of UN commanders to oversee the execution of the military operations. The UNSC’s direct oversight over these operations was limited to the receiving of reports from the coalition forces and the UN Secretary-General. However, in subsequent years, the UNSC frequently authorized coalitions of the willing and able to engage in military operations, including ones involving regional arrangements such as NATO. In this regard one thinks, amongst others, of the military operations authorized in Haiti in 1994,113 East Timor in 1999,114 and Libya in 2011.115 The model as such has therefore been acquiesced by states. While lack of sufficient oversight beyond reporting to the UNSC remains an ongoing concern, it is viewed mainly as a legitimacy problem rather than a legal one.

Resolution 678 (1990) did not however set a clear precedent as to whether the legal basis for the coalition model was Article 42 or Article 51 of the UN Charter. This resolution (like Resolution 665 (1990) before it) authorized military action under Chapter VII of the UN Charter, but without referring to the specific article on which the authorization was based. This vague and open-ended formulation has resulted in a lasting controversy amongst states and legal scholars as to whether the authorization to use force contained in Resolution 678 (1990) had ceased with the liberation of Kuwait and the formalization of the ceasefire between Iraq, Kuwait, and the states cooperating with Kuwait in Resolution 687 (1991).

Footnotes:

1  Yoram Dinstein, ‘The Legal Lessons of the Gulf War’ (1995) 48 Austrian Journal of Public International Law 3.

2  UNSC Verbatim Record Doc (6 August 1990) UN Doc S/PV 2933 (6 August 1990) [12]; see also Rambod Behboodi, ‘Anatomy of a Decision: Canada and the Legality of the Persian Gulf War’ (1994) 4 Tilburg Foreign Law Review 110.

3  UNSC Doc S/RES/660 (2 August 1990) [2].

4  Letter Addressed by HE Tariq Aziz, Deputy Prime Minister and Foreign Minister of The Republic of Iraq to The Ministers of Foreign Affairs of all Countries in the World on the Kuwait Question (4 September 1990), reprinted in (1990) 13 Houston Journal of International Law 286ff.

5  Letter on the Kuwait Question (n 4) 291–92.

6  Michael N Schmitt, ‘Iraq-Kuwait War (1990-1991)’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2009) [1].

7  Letter on the Kuwait Question (n 4) 292; see also Iraqi Department of Information, Ministry of Information and Culture, Kuwait and its Historical and Legal Relations with Iraq (Baghdad 1990) reprinted in (1990–1991) 13 Houston Journal of International Law 285–86. The Iraqi Government initially also claimed that it received a request to assist in establishing security and order from a so-called Free Provisional Government of Kuwait. See UNSC Verbatim Record (2 August 1990) S/PV.2932 [11] (Iraq). This argument was however subsequently abandoned, see Olivier Corten, The Law Against War (Hart Publishing 2010) 261–62.

8  UN Doc S/RES/661 (6 August 1990) [3]ff. See UNSC Verbatim Record (6 August 1990) UN Doc S/VP.2933 [16] (United States) indicating that only twenty-seven of the thousands of Iraqi armed vehicles had left Kuwait by then, despite claims by Iraq that it was withdrawing from Kuwait. See also Behboodi (n 2) 111.

9  Times Wire Services, ‘Iraqis Annex Kuwait in “Eternal Merger”: Middle East: Baghdad describes the takeover as “returning the branch to the whole” ’ Los Angeles Times (8 August 1990) available at <http://articles.latimes.com/1990-08-08/news/mn-378_1_iraqi-dinar>.

10  UN Doc S/RES/ 662 (9 August 1990) [1]ff. See, inter alia, Letter dated 7 January 1991 from the Permanent Representative of Qatar to the United Nations addressed to the Secretary-General (7 January 1991) UN Doc A/45/915, S22049. Qatar rejected a note from the permanent Representative of Iraq, according to which the credentials of the Iraq delegation were to be taken as representing Kuwait. See also Behboodi (n 2) 112.

11  See, inter alia, UN Doc S/RES/ 664 (18 August 1990) [1]ff; UN Doc S/RES/666 (13 September 1990) [1]ff; UN Doc S/RES/667 (16 September 1990) [1]ff.

12  The resolution was adopted with 13 votes in favour and 2 abstentions. Those in favour included Canada, China, Colombia, Côte d’Ivoire, Ethiopia, Finland, France, Malaysia, Romania, the Soviet Union, United Kingdom, United States, and Zaire (as it was known at the time). Cuba and Yemen abstained. See UNSC Verbatim Record (25 August 1990) UN Doc S/VP.2983 [26]. See also Yoshiro Matsui, ‘The Gulf War and the United Nations Security Council’, in Ronald St John McDonald (ed), Essays in Honour of Wang Tieya (Kluwer 1994) 514.

13  UN Doc S/RES/665 (25 August 1990) [1]. The resolution was supported by thirteen states, while Yemen and Cuba abstained. See also Behboodi (n 2) 112–13.

14  Already by 10 August 1990 the United States reported to the President of the UNSC that it had deployed military forces in the Persian Gulf region, in exercising the right of individual and collective self-defence, in response to requests from governments in the region, including Kuwait and Saudi Arabia. See Letter dated 17 January 1991 from the Permanent Representative of The United States of America to the United Nations addressed to the President of the Security Council (17 January 1991) UN Doc S/22090.

15  Letter dated 17 January 1991 from the Permanent Representative of The United States of America to the United Nations addressed to the President of the Security Council (27 January 1991) UN Doc S/22090.

16  UN Doc S/RES/ 670 (25 September 1990) [3]ff; this resolution was supported by fourteen members and was opposed only by Cuba. See UNSC Verbatim Record (25 September 1990) S/PV.2943 [33] (France), which alludes to violations of the economic embargo; see also Behboodi (n 2) 113.

17  Behboodi (n 2) 114.

18  UN Doc S/RES/ 678 (29 November 1990) [2].

19  ibid [3].

20  Behboodi (n 2) 115.

21  Letter dated 2 January 1991 from the Permanent Representative of the Union of Soviet Socialist Republics to the United Nations addressed to the Secretary-General (2 January 1991) UN Doc S/22043; Letter dated 11 January 1991 from the Permanent Representative of the Union of Soviet Socialist Republics to the United Nations addressed to the Secretary-General (11 January 1991) UN Doc S/220842; Letter dated 16 January 1991 from the Permanent Representative of the Union of Soviet Socialist Republics to the United Nations addressed to the Secretary-General (16 January 1991) UN Doc S/22082.

22  Letter dated 17 January 1991 from the Permanent Representative of The United States of America to the United Nations addressed to the President of the Security Council (17 January 1991) UN Doc S/22090. A total of twenty-eight states contributed ground, naval, and air forces. See also Letter dated 29 January 1991 from the Permanent Representative of France to the United Nations addressed to the President of the Security Council (29 January 1991) UN Doc S/22169; Behboodi (n 2) 116; Michael Terwiesche, ‘International Responsibility arising from the Implementation of a Security Council Resolution: The 2nd Gulf War and the Rule of Proportionality’ (1995–1996) 22 Polish Yearbook of International Law 82.

23  Letter dated 29 January 1991 from the Permanent Representative of France to the United Nations addressed to the President of the Security Council (29 January 1991) UN Doc S/22169.

24  UN Verbatim Record (23 February 1991) UN Doc S/PV.2977 (Part II) (closed—resumption 3) [296] (Soviet Union).

25  Letter dated 25 February 1991 from the Permanent Representative of the Union of Soviet Socialist Republics to the United Nations addressed to the Secretary-General (25 February 1991) UN Doc S/22265.

26  Terwiesche (n 22) 82; Behboodi (n 2) 116.

27  Letter dated 27 February 1991 from the Deputy Prime Minister and Minister for Foreign Affairs of Iraq to the President of the Security Council (27 February 1991) UN Doc S/22273; Letter dated 27 February 1991 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council (27 February 1991) UN Doc S/22274.

28  Schmitt (n 6).

29  UN Doc S/RES/686 (2 March 1991) [3].

30  UN Doc/S/RES/687 (3 April 1991) [1].

31  UN Doc S/RES/ 687 (3 April 1991) [2]ff. This resolution was sponsored by France, Romania, the United Kingdom, and the United States. It was supported by 12 votes (Austria, Belgium, China, Côte d'Ivoire, France, India, Romania, Soviet Union, United Kingdom, USA, Zaire, and Zimbabwe), opposed by 1 (Cuba), with 2 abstentions (Ecuador and Yemen). See UNSC Verbatim Record (3 April 1991) UN Doc S/ PV.2981 [3]–[5], [82].

32  Identical Letters dated 6 April 1991 from the Minister for Foreign Affairs of the Republic of Iraq addressed respectively to the Secretary-General and the President of the Security Council (6 April 1991) UN Doc S/22456.

33  UN Doc S/RES/662 (9 August 1990) [1].

34  UNSC Verbatim Record (25 August 1990) UN Doc S/PV.2938 [26], [29]–[30] (United States) and [48] (United Kingdom).

35  ibid [32] (France) and [46] (United Kingdom). The latter supported the use of force necessary for achieving the purposes of UN Doc S/RES/661 (6 August 1990). It also called on shipowners and their captains to cooperate with the naval forces by halting their vessels and permitting inspection and verification of their cargoes and destinations. The United Kingdom was further of the opinion that military action could in any case also be taken in terms of Article 51 of the UN Charter and that the United Kingdom was prepared to act if necessary.

36  UNSC Verbatim Record (25 August 1990) UN Doc S/PV.2938 [43] (Soviet Union) and Finland [47]. Concrete action taken by naval forces had to be strictly limited to the framework of UN Doc S/RES/661 (6 August 1990).

37  UNSC Verbatim Record (25 August 1990) UN Doc S/PV.2938 [61] (Kuwait).

38  ibid [53]–[54] (China).

39  ibid [55] (China).

40  ibid [67]–[70] (Iraq).

41  ibid [67]–[70] (Iraq).

42  ibid [71] (Iraq).

43  ibid [8]–[10] (Yemen) and [12]–[13] (Cuba) and [22]–[23] and [36] (Malaysia).

44  ibid [13]–[15], [24]–[25] (Cuba).

45  ibid [11] (Yemen).

46  UNSC Verbatim Record (29 November 1990) UN Doc S/PV.2963 [64]–[65]. The countries in favour were Canada, Colombia, Côte d’Ivoire, Ethiopia, Finland, France, Malaysia, Romania, Soviet Union, United Kingdom of Great Britain and Northern Ireland, United States of America, and Zaire. See also Matsui (n 12) 518.

47  UNSC Verbatim Record (29 November 1990) UN Doc S/PV.2963 [7].

48  ibid [103] (United States); Letter dated 17 January 1991 from the Permanent Representative of The United States of America to the United Nations addressed to the President of the Security Council (17 January 1991) UN Doc S/22090.

49  UNSC Verbatim Record (29 November 1990) UN Doc S/PV.2963 [94]–[95] (Soviet Union). See also UNSC Verbatim Record (14 February 1991) UN Doc S/PV.2977 (Part II) (closed) [112] (Soviet Union). The Soviet Union noted the various statements by countries who were parties to the military coalition confirming that the military operation had the limited objective of liberating Kuwait from Iraq.

50  Letter dated 17 January 1991, from the Permanent Representative of France to the United Nations Addressed to the President of the Security Council (17 January 1991) UN Doc S/22100.

51  UNSC Verbatim Record (29 November 1990) UN Doc S/PV.2963 [81]–[82] (United Kingdom). Several permanent members also stressed that this resolution was without prejudice to their rights under the UN Charter if the Government of Iraq were to harm any foreign nationals that it was holding against their will. See ibid [68] (France) and [82] (United Kingdom) and [96] (Soviet Union) and [103] United States.

52  UN Verbatim Record (14 February 1991) UN Doc S/PV.2977 (Part II) (closed) [74]–[75] (United Kingdom).

53  The United Kingdom further stated that the allies did not intend to bring about the destruction of Iraq, its occupation, dismemberment, or determine who should govern that country. UN Verbatim Record (14 February 1991) UN Doc S/PV.2977 (Part II) (closed) [74]-[75] (United Kingdom). See also UN Verbatim Record (15 February 1991) UN Doc S/PV.2977 (Part II) (closed—resumption 1) [139]–[140] (Canada) and [147] (Australia).

54  Letter dated 2 January 1991 from the Permanent Representative of Kuwait to the United Nations addressed to the Secretary-General (2 January 1991) UN Doc S/22044. See also Letter dated 17 January 1991 from the Permanent Representative of Bulgaria to the United Nations addressed to the Secretary-General (17 January 1991) S/22102; UNSC Verbatim Record (29 November 1990) UN Doc S/PV.2963 [42] (Colombia); UNSC Verbatim Record (14 February 1991) UN Doc S/PV.2977 (Part II) (closed) 14 February 1991 [8]–[10] (Kuwait).

55  UNSC Verbatim Record (14 February 1991) UN Doc S/PV.2977 (Part II) (closed) [16] (Iraq).

56  UN Verbatim Record (29 November 1990) UN Doc S/PV.2963 [20]–[21] (Iraq). It reiterated this position in UN Verbatim Record (3 April 1991) UN Doc S/PV.2981 [22] (Iraq). Iraq underscored that the use of force under the UN Charter had to be exercised by national forces placed at the disposal of the UNSC in accordance with bilateral agreements between the UNSC and the states concerned. These forces had to be under the direction of the Military Staff Committee under the United Nations flag.

57  UNSC Verbatim Record (29 November 1990) UN Doc S/PV. 2963 [58] (Cuba).

58  UNSC Verbatim Record (29 November 1990) UN Doc S/PV. 2963 [58] (Cuba) and [76]–[77] (Malaysia). While it supported the resolution, Malaysia underscored that UN Doc S/RES/ 678 (29 November 1990) did not authorize a blank cheque for excessive and indiscriminate force and that the UNSC did not authorize actions that would lead to the virtual destruction of Iraq.

59  UN Verbatim Record (29 November 1990) UN Doc S/PV.2963 [33] (Yemen).

60  ibid.

61  ibid [62] (China).

62  ibid [63] (China).

63  UNSC Verbatim Record (14 February 1991) UN Doc S/PV.2977 (Part II) (closed) [61], [66] (Iraq).

64  UNSC Verbatim Record (15 February 1991) UN Doc S/PV. 2977 (Part II) (closed—resumption 1) [171] (Malaysia).

65  ibid [172] (Malaysia).

66  ibid [126] (Cuba).

67  ibid [191] (Iran).

68  UNSC Verbatim Record (14 February 1991) UN Doc S/PV.2977 (Part II) (closed) [81] (China).

69  ibid [74]–[75] (United Kingdom); see also UNSC Verbatim Record (15 February 1991) UN Doc S/PV. 2977 (Part II) (closed—resumption 1) [187] (United States).

70  ibid [137], [139]–[140] (Canada); ibid [147] (Australia).

71  UNSC Verbatim Record (14 February 1991) UN Doc S/PV.2977 (Part II) (closed) [16] (Kuwait); ibid [46] (Qatar).

72  States in the region who supported the military strategy of the coalition included Egypt, the Maldives, Pakistan, Palestine, the Kingdom of Saudi Arabia, Senegal, and Turkey. See Letter dated 21 February 1991 from the Permanent Representative of Egypt to the United Nations addressed to the Secretary-General (22 February 1991) S/22256 [3].

73  Letter dated 20 March 1991 from the Secretary-General addressed to the President of the Security Council (20 March 1991) UN Doc S/22366, Annex, [4], [9]. The mission was composed of members of the United Nations Secretariat, the United Nations Children’s Fund (UNICEF), the United Nations Development Programme (UNDP), the Office of the United Nations Disaster Relief Coordinator (UNDRO), the Office of the United Nations High Commissioner for Refugees (UNHCR), the Food and Agriculture Organization of the United Nations (FAO), and the World Health Organization (WHO). On route to Iraq the mission also consulted with the Vice-President of the International Committee of the Red Cross (ICRC) in Geneva.

74  ibid Annex [8].

75  ibid.

76  ibid Annex [9]ff.

77  UN Doc S/RES/82 (25 June 1950). In the UNSC debate leading up to the adoption of S/RES/678 (29 November 1990) the Korean precedent did not feature prominently. It was only referred to by Cuba, who referred to it as an example of the use of force under the flag of the United Nations which caused immense destruction and death and left the country as divided as it was before the conflict. See UNSC Verbatim Record (29 November 1990) UN Doc S/PV.2963 [57] (Cuba); see also Niels M Blokker, ‘Is the Authorisation Authorised? Powers and Practice of the United Nations Security Council to Authorise the Use of Force by Coalitions of the “Able and Willing” ’ (2000) 11 European Journal of International Law 543. See also Chapter 3 by Nigel White in this volume.

78  See Nigel D White and Özlem Ülgen, ‘The Security Council and the Decentralized Military Option: Constitutionality and Function’ (1997) 44 Netherlands International Law Review 385.

79  See, inter alia, S/RES/917 (6 May 1994) [10] (Haiti), S/RES/264 (15 September 1999) [3] (East Timor), UN Doc S/RES/1973 (17 March 2011) [4] (Libya).

80  Matsui (n 12) 524–25.

81  The first sentence of Article 51 of the UN Charter determines that: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’

82  Article 42 of the UN Charter determines that: ‘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.’

83  Terry D Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter’ (1995) 26 Netherlands Yearbook of International Law 92.

84  Dinstein (n 1) 5; Schmitt (n 6) [11].

85  Dinstein (n 1) 14; see also Yoram Dinstein, ‘The Gulf War, 1990–2004 (and Still Counting)’ (2005) 35 Israel Yearbook on Human Rights 3; Behboodi (n 2) 113–14.

86  Dinstein (2005) (n 85) 3.

87  Dinstein (n 1) 11–12.

88  UN Doc S/RES/ 665 (25 August 1990) [4]; Dinstein (n 1) 11–12.

89  Dinstein (n 1) 8.

90  At the time it was still debated whether the UNSC had this competence. See Dinstein (n 1) 5.

91  Dinstein (n 1) 14.

92  UN Doc S/RES/678 (29 November 1990) [2].

93  See Article 51 of the UN Charter (n 71): Erika de Wet, ‘The Illegality of the Use of Force against Iraq Subsequent to the Adoption of Resolution 687’ (2003/3) Humanitäres Völkerrecht’ 125–26; John Quigley, ‘The United Nations Security Council: Promethean Protector or Helpless Hostage?’ (2000) 35 Texas International Law Journal 144; Burns H Weston, ‘Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy’ (1991) 85 American Journal of International Law 520.

94  De Wet (n 93) 126; Keith Harper, ‘Does the United Nations Security Council have the Competence to Act as a Court and Legislature?’ (1994) 27 New York University Journal of International Law and Politics 113–14 (1994); see also Gill (n 83) 93–94.

95  De Wet (n 93) 125; Danesh Sarooshi, The United Nations and the Development of Collective Security (OUP 1999) 144; White and Ülgen (n 78) 386; See also Krisch, ‘Article 42’ in Bruno Simma (ed), The Charter of the United Nations Vol II (OUP 2012) 1333.

96  Article 48(1) of the UN Charter determines that: ‘The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.’

97  Krisch (n 95) 1336; Matthias Herdegen, Die Befugnisse des UN-Sicherheitsrates: aufgeklärter Absolitismus im Völkerrecht? (Müller 1998) 3.

98  See Corten (n 7) 475 who notes that the right to self-defence cannot be exercised in a manner that violates existing UNSC resolutions. See also de Wet (n 93) 126; Gill (n 83) 100; Matsui (n 12) 522.

99  De Wet (n 93) 126; Roger K Smith, ‘The Legality of Coercive Arms Control’ (1994) 19 Yale Journal of International Law 497.

100  Gill (n 84) 100; De Wet (n 93) 126; Smith (n 90) 498.

101  Dinstein (2005) (n 85) 2; Sean D Murphy, ‘Terrorism and the Concept of “Armed Attack” in Article 51 of the UN Charter’ (2002) 43 Harvard International Law Journal 43ff.

102  UN Doc S/RES/ 678 (29 November 1990) [2].

103  De Wet (n 93) 126; Gill (n 83) 100; Matsui (n 12) 522.

104  Dinstein (2005) (n 85) 8.

105  Dinstein (n 1) 3; Dinstein (2005) (n 76) 6–7. He further noted that the ceasefire was between the coalition forces and Iraq, rather than between the United Nations and Iraq.

106  Dinstein (n 1) 3; Dinstein (2005) (n 85) 6.

107  Foreign and Commonwealth Office Paper, ‘Iraq: The Legal Basis for the Use of Force’ (2003) 52 International and Comparative Law Quarterly 812–14; Dinstein (2005) (n 85) 4. But see de Wet (n 93) 130 who questioned whether these aerial attacks were indeed in line with the purpose of S/RES/678 (29 November 1990). See also Chapter 39, ‘Intervention in Iraq’s Kurdish Region and the Creation of the No-Fly Zones in Northern and Southern Iraq—1991–2003’ by Tarcisio Gazzini in this volume.

108  De Wet (n 93) 128; Jules Lobel and Michael Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime’ (1999) 93 American Journal of International Law 129, 140; Quigley (n 93) 146–47; Peter Hulsroij, ‘The Legal Function of the Security Council’ (2002) 1 Chinese Journal of International Law 82.

109  See also UNSC Verbatim Record (15 February 1991) UN Doc S/PV.2977 (Part II) (closed—resumption 1) [171] (Malaysia), who regarded the military action against Iraq as UN authorized under Chapter VII of the UN Charter and not based on Article 51 of the UN Charter.

110  UN Doc S/RES/ 687 (3 April 1991) determined that: ‘The Security Council … Conscious of the need to take the following measures acting under Chapter VII of the Charter … 4. Decides to guarantee the inviolability of the above-mentioned international boundary and to take as appropriate all necessary measures to that end in accordance with the charter of the United Nations’. See also Lobel and Ratner (n 108) 148.

111  But see UNSC Verbatim Record (3 April 1991) UN Doc S/PV.2981 [78] (India). It emphasized that UN Doc S/RES/687 (3 April 1991) [4] did not authorize any country to take unilateral action under any of the previous UNSC resolutions. Instead, if there were a threat or actual violation of the Kuwait–Iraq boundary, the UNSC had to decide if and to what extent all necessary measures had to be taken under the UN Charter.

112  Lobel & Ratner (n 108) 149–50; Quigley (n 94) 141; cf Michael Byers, ‘The Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq’ (2002) 13 European Journal of International Law 25.

113  S/RES/917 (6 May 1994) [10].

114  S/RES/264 (15 September 1999) [3].

115  S/RES/1973 (17 March 2011) [4].