CIAO DATE: 08/02
2002 (Volume 13 Issue 1)
From Unity to Polarization: International Law and the Use of Force against Iraq by Christine Gray
The impact of the use of force against Iraq over the last 10 years on the development of international law involves consideration of the express authorization of force by the Security Council under Chapter VII of the UN Charter, and the limits to be imposed on such authorization; the possibility of implied authorization of force by the Security Council; and the scope of self-defence as a justification for the use of force in the no-fly zones and in response to terrorism. Operation Desert Storm represented the start of a new era for the United Nations: it has become the norm for the Security Council to turn to Member States to take enforcement action under Chapter VII in a wide variety of situations. In contrast, subsequent US and UK actions against Iraq to enforce the no-fly zones have brought deep divisions among states. The USA and UK have become increasingly isolated in their insistence that implied authorization by the Security Council, material breach by Iraq of the ceasefire regime and, for the UK, humanitarian intervention justify their use of force. The same combination of arguments was used regarding the NATO action in Kosovo and raised dramatically the question of how far the actions against Iraq could operate as a precedent.
The Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq by Michael Byers
Many of the authors who have written on the legal issues arising out of the United States' armed actions against Iraq in the decade following Operation Desert Storm have disagreed on the interpretation of the relevant Security Council resolutions and the United Nations Charter, on the possible emergence of a right to unilateral humanitarian intervention, and on possible extensions to the right of self-defence. But the same authors have shied away from considering the root causes of their disagreements: i.e., their sometimes starkly divergent views on foundational aspects of international law. What are the general rules concerning the interpretation of Security Council resolutions? What are the general rules concerning the interpretation of treaties? How are rules of customary international law, in general, made and changed? How does customary international law interact with treaties? These are important questions, not only because our approach to them is likely to determine our analyses of substantive rules, but also because the considerable influence of the United States in this post-Cold War epoch might in fact be changing the answers, with profound consequences for all of international law.
Humanitarianism and the Quest for Smarter Sanctions by Matthew Craven
Just as economic sanctions appear to have become the coercive instrument of choice for the United Nations in the decade since the Gulf War, there has been increasing concern as to their effect whether upon the civilian population within target states or upon the economic interests of historic trading partners. Such concerns have now found their way into policy-making within the United Nations and elsewhere, leading to the development of a new orthodoxy: the future of sanctions lies in their being made 'smart', 'targeted' and hedged with 'humanitarian exemptions'. This article seeks to outline the strands of this new policy initiative and evaluate its implications. It is argued that, given the continued uncertainty as to the effectiveness of sanctions as a coercive tool, the argument for smartening sanctions seems to rest primarily upon the claim that they are necessarily more 'humane'. It seems, furthermore, that the framework within which this idea of 'humanity' is to be deployed is that of humanitarian law. This, however, leads to the central problem, namely, that given the broad discretion assumed by the Security Council in the choice of measures to be adopted under Chapter VII, the role of humanitarian arguments will invariably be confined to one of ameliorating adverse consequences, rather than of limiting the capacity to impose those measures in the first place. In such a guise, they act less as a constraint upon the capacity of the Security Council to impose sanctions, and more as a vehicle for justifying their deployment.
Debating the Law of Sanctions by Mary Ellen O'Connell
After years of United Nations-mandated sanctions against Iraq, human rights advocates began charging the UN Security Council with genocide in its use of 'sanctions of mass destruction'. Following the charges, a full debate began on the law of sanctions. The article recounts this debate, setting it in the context of two earlier rounds of discussion on the lawful use of sanctions. Those earlier debates resulted in general consensus that the Security Council was both free to use sanctions whenever it wanted and that sanctions should be comprehensive, air-tight and subject to enforcement. Sanctions of this description were imposed on Haiti and Iraq, but were soon linked to widespread suffering. The debate among lawyers then turned to how sanctions could or should be limited, perhaps based on human rights law, humanitarian law, or the law governing unilateral sanctions. From this debate the principle of proportionality is emerging as a general limitation on coercion and force in international law. Nevertheless, proportionality cannot eliminate all unintended effects of sanctions. The next iteration of the sanctions debate may well return to when the Security Council may impose sanctions, proportional or not.
Sanctions and Humanitarian Exemptions: A Practitioner's Commentary by H. C. Graf Sponeck
International sanction laws are necessary to provide guidance for coercive actions of a non-military nature directed at governments or groups whose conduct is considered a threat to international security. Humanitarian exemptions must be an inherent part of such laws so as to protect the innocent from repercussions of sanctions inconsistent with the International Bill of Human Rights and other humanitarian law. This article, using sanctions against Iraq as an example, questions the adequacy of the existing legal and procedural framework in ensuring such protection. It points to the intangibility of the relevant body of law as well as its jurisdictional limitations. The absence of laws of precedent and defined standards has facilitated arbitrary application. Imprecisely formulated United Nations resolutions and the lack of ongoing monitoring of the impact of sanctions on the human condition have further encouraged a subjective and punishment-oriented approach. Taking into account the articles by Craven and O'Connell in this symposium, this commentary outlines safeguards which must be built into sanction regimes in order to ensure that international law is applied for the protection of the civilian population while coercive action is taken to force perpetrators to comply with international norms of behaviour.
The Road to Baghdad is Paved with Good Intentions by Robert Howse
In commenting on the articles by Craven and O'Connell, the author challenges the validity of the internationalist fantasy of an effective UN-based collective security system in the post-Cold War world. He characterizes the Security Council-imposed sanctions against Iraq as an effort to give the appearance of doing something while avoiding the more difficult, but likely more effective choice of seeking to destroy the regime of Saddam Hussein through massive military intervention. He concludes with an appeal for clarity concerning the objectives of sanctions, whether punishment for past wrongs or as a way to influence future behaviour.
A Decade of Sanctions against Iraq: Never Again! The End of Unlimited Sanctions in the Recent Practice of the UN Security Council by Lutz Oette
The inclusion of time limits signals a significant change in the recent sanctions practice of the Security Council. This change ties in with the ongoing debate about the reform of the Council's sanctions policy. The article traces the emergence of time limits by examining the constellation of the 'reverse veto' which triggered a shift in the sanctions policy of France, China and the Russian Federation. After a brief assessment of the legality of time limits, the main focus is placed on their implications for the future sanctions practice of the Council which are evaluated with regard to their contribution to a successful sanctions policy. The author addresses the shift in the internal power dynamics in the Council, the potential for ensuring the legality and for enhancing the legitimacy of the Council's sanctions policy as well as the objections raised against time limits for undermining the effectiveness of sanctions as the three crucial areas in assessing time limits. In conclusion, time limits are viewed as a device, the use of which has not only proved helpful in overcoming a threatening stalemate in the Council's sanctions policy but also has the potential of enhancing the flexibility and the legitimacy of such a policy.
Developments of the Law of Arms Control as a Result of the Iraq-Kuwait Conflict by Dieter Fleck
Security Council measures against Iraq were hardly indicative of new developments in the law of arms control and disarmament. However, Iraqi threats to use chemical weapons have encouraged consensus among participating states to conclude the 1993 Chemical Weapons Convention and revelations of the advanced nature of Iraq's nuclear programmes might have contributed to the May 1995 decision of states parties to the 1972 Non-Proliferation Treaty to extend the treaty indefinitely. The system of ongoing monitoring and verification introduced under Security Council Resolutions 687 (1991) and 1284 (1999), as well as the practical experience gained through monitoring nuclear, chemical and biological weapons and ballistic missiles have supported efforts to strengthen international verification activities. As a further result of the conflict, increased awareness of the dangers of exporting dual-purpose technologies has led to a review of guidelines and practices for inspections under IAEA safeguards agreements. The problem of enforced verification, however, remains unresolved. This underlines that there is no viable alternative to resolute action by the Security Council. It likewise supports the conclusion that the need for political solutions in post-conflict peace-building, involving and stimulating the participation and cooperation of the state concerned, is even more obvious today than it was a decade ago.
Collective Security, Demilitarization and 'Pariah' States by David J. Bederman
Demilitarization regimes under international law pose special challenges. Often the result of the retributive politics of post-war diplomatic adjustment, legal attempts to ensure that formerly aggressive states do not acquire the military establishments, logistics or weaponry to threaten their neighbours or international peace and security, are often doomed to failure. This article considers the demilitarization sanctions imposed against Iraq in the aftermath of the Gulf War of 1991 in the historic context of other such efforts, most notably the sanctions imposed against Germany under the 1919 Treaty of Versailles (and subsequently enforced by the League of Nations). The primary elements shared by most demilitarization regimes are: (1) qualitative and quantitative restrictions on weapons systems; (2) control and monitoring mechanisms; (3) the rhetorical ambition of global and regional disarmament; (4) unrealistic deadlines for compliance; and (5) the implied threat of resumption of hostilities if disarmament is not achieved. Aside from the political reality that 'pariah' states can rarely be isolated for long, the chief reason for the failure of demilitarization is the weakness of institutional mechanisms to effectively encourage and monitor compliance, as well as to punish transgressions.
UNSCOM: Between Iraq and a Hard Place by Chantal De Jonge Oudraat
The article reviews the UNSCOM experience from 1991 to 1999 and the international community's attempt to neutralize Iraq's WMD threat. It draws some general lessons from this experience and identifies steps that could enhance the effectiveness of future international efforts of this type. It concludes with an assessment of the future of multilateral arms control. From the start UNSCOM encountered many difficulties. Indeed, for the Commission to work effectively it needed the cooperation of Iraq - something the Iraqi government provided only sparingly. Iraqi declarations of its non-conventional stockpiles and facilities proved time and again to be inaccurate. The scope of Iraqi concealment efforts came to the fore in 1995, with the defection of Saddam Hussein's son-in-law Lt. General Hussein Kamel. His revelations took most experts by surprise. It also marked a period of increasing confrontation between UNSCOM and the Iraqi government. Unfortunately for UNSCOM, political unity and cohesion in the UN Security Council began to unravel at precisely that moment. The US and its coalition allies had increasingly divergent ideas about how to resolve the situation with respect to Iraq.
The UNSCOM Experience: Lessons from an Experiment by Hélène Ruiz Fabri
The emergence of issues of independence and impartiality in relation to the work of UNSCOM is directly linked to the fact that this body's tasks changed from short-term to long-term ones. This change considerably increased its need for support from Iraq, the UN Security Council and Member States. Instead, this support, for various reasons, declined. UNSCOM was the first institution of its kind and its experience may be viewed as an experiment which gives rise to several questions, especially relating to the ease with which a state can conceal information relating to disarmament monitoring and verification processes, and to the need for clear goals on the part of states or organs which initiate this type of process. However, these questions do not make UNSCOM's experience a failure.
The UN Compensation Commission: Old Rules, New Procedures on War Reparations by Andrea Gattini
Since its inception, the legitimacy of the United Nations Compensation Commission (UNCC) has been controversial, particularly the Security Council's competence to establish it. In this article, the author maintains that the UNCC, although it represents an unprecedented example of institutionalized international cooperation, follows and improves on the tradition of international law rules on war reparations. Although some of its procedural and substantial aspects might be open to criticism, the work hitherto accomplished by the various UNCC panels shows a very high standard of legal skill and fairness, and has contributed significantly to the clarification and development of various international law rules on claims settlement. Nevertheless, a final political compromise with Iraq is necessary if the UNCC is to be acknowledged as the first fully successful model of a collective relief system organized by the international community in response to an aggression.
The UN Compensation Commission: Practical Justice, not Retribution by David D. Caron and Brian Morris
Over the decade of the United Nations Compensation Commission's work, there has been voiced by some a vague sense that the UNCC, although created to give some justice to those directly injured by Iraq's invasion and occupation of Kuwait, should instead be viewed as a part of the system of international economic sanctions. While it is true that any compensatory mechanism may be said to sanction the wrongful actor, the UNCC is not an economic sanction as that term is understood in international relations and law. Rather, the UNCC provides a measure of practical justice to those who suffered damage as a direct result of the crime of aggression. In this essay, the authors ask when it may be said that that which ostensibly is a compensation procedure partakes more of a scheme of retribution, and should be analysed in terms not of the adequacy of compensation to the victims, but rather of the extent of the punishment that is indirectly inflicted on the population of the wrongdoing state. Applying such an analysis, it is concluded that the UNCC should not be viewed as an economic sanction, but rather an institution that has delivered practical justice to millions of victims of Iraq's invasion and occupation of Kuwait.
Imposing Liability for Losses from Aggressive War: An Economic Analysis of the UN Compensation Commission by Merritt B. Fox
Through an economic analysis of the work of the United Nations Compensation Commission (UNCC), this Comment seeks to understand better the process by which liability is imposed for losses caused by aggressive war. It concludes that a loss is appropriately compensable by an aggressor state if the war is a "but for" cause of the loss and ex ante the war increased the likelihood that the loss would occur. The loss need not be as foreseeable as in the law of negligence. The total amount of losses appropriately compensable under this standard may, however, exceed the maximum that is desirable or even practical to collect. Iraq involves such a shortfall. Collecting more would hinder its reintegration into the world community. Moreover, any increase in the UNCC tax rate on Iraq's oil revenues is likely to reduce, not enhance, total revenues because of the added disincentives to export. Because of this shortfall, the practice of denying Iraq formal access to UNCC proceedings involves no procedural unfairness. The UNCC is effectively only deciding who, among all claimants against Iraq, should receive money from a fixed, maximally extractable sum. UNCC decisions also violate no norm of substantive fairness. The money extracted by the UNCC and the economic effect of the more formal sanctions imposed on Iraq, while both burdens on the Iraqi people, do not raise comparable fairness issues. As a general matter, imposing the losses on the people of the aggressor state, even if onerous, is not more unfair than leaving them to be borne by the victims of the aggressive war. Moreover, payments to the UNCC are in essence a tax on Iraq's oil wealth, not on the fruits of the labour, skills and non-oil resources of the Iraqi people. Unlike the more formal sanctions, the UNCC payments simply deprive the Iraqi people of a portion of the good luck they had to have oil resources in the first place.
A Decade of Human Rights Protection by the UN Security Council: A Sketch of Deregulation? by Mariano J. Aznar-Gómez
This last 'decade of sanctions' began with a most comprehensive set of measures against Iraq, most of which remain in force, despite the fact that they have not solved the 'Iraq problem'. Some lessons may be learned, however, from the Iraqi experience. It has helped the UN Security Council develop the new 'smart sanctions', particularly those targeting regimes with basic human rights implications. Nevertheless, the Council has normally been reluctant to include human rights violations as the principal ratio decidendi of sanctions and, when sanctions are decided, the Council has adopted an ad hoc approach, thus avoiding the creation of precedents. Moreover, although important efforts to increase transparency and effectiveness have been made, the sanction regimes continue to be managed independently, with a case-by-case approach and allowing too much secrecy. Finally, the Council's new practice regarding 'authorizations' for the use of force against targeted states does not provide for a clear system of controls, and the vagueness of the mandate incorporates another caveat in the Council's resolutions. This paper explores whether these recent trends show a tendency towards 'deregulation' in the Security Council's action in defence of basic human rights, seeking as such to create a scenario governed by authoritative case-by-case decisions and avoiding a clear set of legal rules of public international law.
"Sovereignty vs. Suffering"? Re-examining Sovereignty and Human Rights through the Lens of Iraq by Karima Bennoune
Increasing use has been made by some international lawyers of a simple binary opposition, holding that the preservation of sovereignty inherently vitiates concepts of human rights while conversely the erosion of sovereignty is a bell-wether of progress for human rights. Developments in and around Iraq during the last decade have shown this to be, at best, an unhelpful simplification. It is unquestionable that, when misused, the concept of sovereignty can shield perpetrators of human rights violations from international reaction or even scrutiny. However, the erosion or violation of sovereignty can also occasion grave abuses. In the instant case, the Iraqi government has trounced most of the rights of its people and has sought to shroud this reality in a cloak of sovereignty. Simultaneously, the actions of others, including governments and the United Nations, have also given rise to violations of the human rights of the Iraqi people. This has happened, in particular, through the use of force and the imposition of sanctions, both so-called penetrations of sovereignty. Hence, it is time to reassess our understanding of the role of sovereignty in the human rights equation, retrieving what benefits it can offer, even while remaining wary of the risks it can pose.
Ad-hocism and the Rule of Law by Andrea Bianchi
The frequent use of enforcement action of a unilateral or multilateral character to protect human rights as well as a growing concern over the detrimental effects of UN sanctions on civilian populations attest, albeit from different perspectives, to the importance of human rights values in the international community. In fact, a process of constitutionalization seems to be taking place in international law. The anomaly is that it materializes in bits and pieces, mainly through the emergence and subsequent consolidation of normative precepts perceived as fundamental. By providing ad hoc solutions, not grounded on any discernible principle of general application, the Security Council has failed to bring this process into an institutionalized framework. The prevailing 'ad-hocism' permeating its action prevents the development and subsequent enforcement of consistent patterns of normative standards and policies and makes it difficult to exercise scrutiny over the conduct of international actors. Eventually, the lack of consistency, predictability and fairness not only undermines its credibility, but also causes one to wonder whether the Security Council can be of any guidance in defining the contours of an international legal order based on respect for the rule of law and the consistent enforcement of shared values and common interests.
Uncertain Steps into a Post-Cold War World: The Role and Functioning of the UN Security Council after a Decade of Measures against Iraq by Bardo Fassbender
The 'case of Iraq' is the most important single issue the UN Security Council dealt with in the 1990s. It has strongly influenced the role and functioning of the Council in the international legal order. The case, which began with Iraq's invasion of Kuwait in 1990 and continued with a prolonged effort to induce Iraq's compliance with the post-conflict regime imposed by the Council, has brought together and exemplified the manifold problems, opportunities and pitfalls encountered by the Council on its way to establishing itself as the principal executive organ of the international community. The history of how the Council proceeded in the Iraq case since 1991 is one of the Council taking uncertain steps into a post-Cold War world. The Council was able to revitalize the collective security scheme devised in the UN Charter of 1945, thereby claiming and maintaining its validity after the ruptures in the international system brought about first by the East-West antagonism and then by its sudden conclusion. Further, the Council embarked on a programme of work with profound normative consequences in international law. In a sort of tour d'horizon, this article tries to single out and discuss the most important aspects of the Council's role and functioning as influenced or altered by its handling of the Iraq case, in particular the problem of sanctions and the comprehensive post-conflict regime of Resolution 687 (1991), the extent of the Council's powers, the constitutional reform and procedure of the Council, and the enduring problem of 'legitimacy'.
The Permanent Five as Enforcers of Controls on Weapons of Mass Destruction: Building on the Iraq 'Precedent'? by Lori F. Damrosch
The five permanent members of the Security Council form the core of an enforcement system against proliferation of weapons of mass destruction. The sanctions regime against Iraq shows commonality of interest among the five declared nuclear-weapons states to block the spread of WMD. This article first establishes the normative framework under which restraint of WMD is not simply a policy preference but a legal obligation rooted in widely-ratified treaties and general international law. After surveying multilateral non-proliferation regimes, the paper turns to the aspects of US law relevant to the imposition of non-proliferation sanctions, not just against Iraq but also against other violators. The Iraq sanctions are then compared to other proliferation cases (Libya; North Korea; India/Pakistan) where unilateral (US) or concerted multilateral sanctions have been an available enforcement tool in the decade of the Iraq sanctions. Sanctions practice concerning actual or potential proliferators suggests an incipient pattern of potential Security Council enforcement. The Iraq case is unique because of Iraq's violations from within the relevant legal regimes, and precedential because of the Security Council's response in signalling to potential violators that serious sanctions can follow the breach of non-proliferation obligations. Arguably, non-proliferation regimes are stronger and more credible because the Council stayed the course on Iraq.
Review Essay: Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo by Nico Krisch
The essay reviews five recent works on humanitarian intervention which shed new light on central questions of the debate. The authors, mainly international lawyers but also scholars of international relations, philosophy and sociology, mainly agree that in positive international law, even after Kosovo, no right to unilateral humanitarian intervention has emerged. Several, however, regard this situation as morally unsatisfactory and offer important proposals for the future development of international law, although they remain vague on some crucial issues. Their moral argument rests on the assumption that an order based on individual rights, rather than state sovereignty, would endorse humanitarian intervention. But it is doubtful that individuals would favour such a right, given historical experiences, and it also seems more appropriate to locate the conflict between human rights and peace, rather than between human rights and state sovereignty, with strong moral arguments supporting each side. Moreover, most proponents of unilateral humanitarian intervention neglect the value of institutions; they conclude a unilateral legal right directly from the moral argument. However, in domestic liberal theory institutions have long played a crucial role, and they deserve a similar role on the international level, as some of the contributions emphasize. Such institutions would allow for accommodation of diverging conceptions of morality, and Western states should, both for reasons of history and political theory, seek such accommodation rather than use their current power to impose their morality on the rest of the world.
Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in the International Legislative Process by Luisa Vierucci