Why Bother?
By PAUL SCHOTT STEVENS
This week the Bush administration formally presented the United Nations Security Council with a draft resolution on Iraq that includes the threat of military force if Baghdad fails to disarm. But is such a resolution really needed? As a matter of international law, the answer clearly is no. Yet another resolution on Iraq may be desirable politically, but it is not necessary legally.
Following Desert Storm, the U.S.-led coalition dictated the terms of a cease-fire to Iraq. On April 3, 1991, the U.N. Security Council incorporated these terms into a cease-fire resolution, Resolution 687. The Security Council intended this resolution to serve as a comprehensive framework, detailing the conditions necessary to restore peace and the steps required of Iraq in order to permit a definitive end to hostilities.
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Resolution 687 reaffirmed all the council's prior actions with respect to Iraq. Among other things, it also outlawed Iraq's nuclear, biological and chemical weapons programs, required Iraq to renounce terrorism, and prohibited terrorist organizations operating from Iraq. Resolution 687 explicitly provided that a formal cease-fire would only become effective upon Iraq's "unconditional acceptance" of all these provisions.
Iraq denounced this "iniquitous resolution," but reluctantly accepted it. From that day to this, however, Iraq has ignored or evaded its legal obligations under Resolution 687. This in turn has necessitated continuing military operations by the coalition, acting in collective self-defense and under color of the Security Council's resolutions, in what some in the media have called a "forgotten war." Iraq's conduct also has occasioned many subsequent pronouncements by the Security Council.
Despite the cease-fire, hostilities were suspended only temporarily in 1991. In the intervening 11 years, Iraq's military provocations have required the U.S. and coalition partners to engage its forces repeatedly. In response to these incidents, the Security Council acted in 1993 and again in 1994 to reaffirm Iraq's obligations under the cease-fire resolution. At the time, U.N. Secretary-General Boutros Boutros-Ghali made it clear that the coalition forces were acting lawfully under a "mandate from the Security Council" in response to Iraq's violations of the cease-fire.
In 1991, the Security Council first found Iraq to be in "material breach" of the cease-fire resolution by concealing its nuclear, biological and chemical weapons capability. In 1999, it established a new U.N. office to conduct inspections and monitoring. Between those dates, the council passed 12 resolutions concerning Iraq's disarmament obligations. These resolutions all reaffirmed that the terms of Resolution 687, which outlawed Iraq's WMD programs, remain "the governing standard of Iraqi compliance."
In 1998, in Operation Desert Fox, President Clinton authorized military operations against Iraq in an effort to destroy Iraq's WMD capability, to enforce the terms of the cease-fire, and enforce the U.N. inspections process. The Security Council did not object to these actions. Nor, as a legal matter, could it do so, in the face of what Richard Butler, former head of the U.N. inspections program, has termed "Iraq's unremitting policy of concealment and resistance." The most recent formal assessment, conducted under the Security Council's auspices in 1999, only confirmed Iraq's defiance of its disarmament obligations. As Mr. Butler points out, no one has been watching Saddam Hussein in the interim and "[Y]ou can be sure that he is . . . building weapons."
The record before the Security Council has the highest significance for policy makers. But it is also significant as a matter of international law. In Resolution 687, the Security Council authorized the U.S. and its coalition partners to take "all necessary means" not only to eject Iraq from Kuwait, but also to "uphold and implement . . . all subsequent relevant resolutions and to restore peace and security to the area." Since April 1991, it has been apparent that Iraq has no intention of meeting its obligations under cease-fire Resolution 687. That "subsequent" resolution is not just "relevant" -- it is of central importance to the Security Council's 12-year effort to restore peace and security.
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As a legal proposition, Iraq's notorious, continuing and material breach of the cease-fire has justified the coalition's ongoing military operations since the April 1991 "cease-fire." It likewise justifies expanding those operations now, in order to achieve at last the lawful objectives of both the coalition and the Security Council since the invasion of Kuwait.
Mr. Stevens, a lawyer in Washington, D.C., served as a legal adviser on the National Security Council in the Reagan administration.
Updated October 25, 2002 |
