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Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy

Published online by Cambridge University Press:  27 February 2017

Burns H. Weston
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Extract

In his recent book The Power of Legitimacy Among Nations, Thomas Franck defines “legitimacy” as it applies to the rules applicable among states. “Legitimacy,” he writes, “is a property of a rule or rule-making institution which itself exerts a pull toward compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process.

In adopting Resolution 678 of November 29, 1990, implicitly authorizing the use of force against Iraq in response to Iraq’s August 2, 1990 invasion and subsequent occupation of Kuwait, the United Nations Security Council made light of fundamental UN Charter precepts and thereby flirted precariously with “generally accepted principles of right process.” It eschewed direct UN responsibility and accountability for the military force that ultimately was deployed, favoring, instead, a delegated, essentially unilateralist determination and orchestration of world policy, coordinated and controlled almost exclusively by the United States. And, in so doing, it encouraged a too-hasty retreat from the preeminently peaceful and humanitarian purposes and principles of the United Nations. As a consequence, it set a dubious precedent, both for the United Nations as it stands today and for the “new world order” that is claimed for tomorrow.

Type
Agora: The Gulf Crisis in International and Foreign Relations Law, Continued
Information
American Journal of International Law , Volume 85 , Issue 3 , July 1991 , pp. 516 - 535
Copyright
Copyright © American Society of International Law 1991

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References

1 T. Franck, The Power of Legitimacy Among Nations 24 (1990). This definition appears to be close to, if not identical with, the meaning of “authority” as defined by Professors McDougal and Lasswell: “Authority is the structure of expectation concerning who, with what qualifications and mode of selection, is competent to make which decisions by what criteria and what procedures.” McDougal & Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AJIL 1, 9 (1959).

2 SC Res. 678 (Nov. 29, 1990), reproduced in 29 ILM 1565 (1990), and, in operative part, 85 AJIL 74 (1991). It was adopted by a 12-2-1 vote, with Cuba and Yemen opposed and China abstaining. The text of Resolution 678 shows that the Security Council did not authorize the use of force in so many words. It authorized, instead, the use of “all necessary means,” understood to include the use of force if necessary.

3 Most conspicuous in this regard, of course, was Iraq’s military assault upon Kuwait and Scud missile attacks against Israel, contravening Article 2(4) of the UN Charter, and, in the case of Kuwait and Saudi Arabia in addition, Article 5 of the Pact of the League of Arab States, Mar. 22, 1945, 70 UNTS 237, reprinted in Basic Documents in International Law and World Order 13 (B. Weston, R. Falk & A. D’Amato 2d ed. 1990) [hereinafter Basic Documents].

Other undeniable Iraqi violations of conventional and customary international law, documentation for which is too extensive to detail here, included the intimidation and bullying of foreign diplomats and legations, patently violating the core privileges and immunities of civilized diplomatic intercourse; the multiple violation of the international law of human rights via the rape and pillage of the occupied people of Kuwait, the terrorization of innocent civilians as political hostages and tactical shields, and the apparent torture and other inhumane treatment of captured prisoners of war; and the spoliation of the Kuwaiti and wider Persian Gulf natural environment via deliberate oil spills and “torching” of oil wells (see especially Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10, 1977, 31 UST 333, TIAS No. 9614, 1976 UN Jurid. Y.B. 125, reprinted in Basic Documents, supra, at 227).

Not to be overlooked, either, was the consistent refusal of Iraq to comply with Security Council Resolution 660 and subsequent resolutions calling for, inter alia, its immediate and unconditional withdrawal from Kuwait. Iraq thus failed to abide by its obligations under Article 25 of the UN Charter “to accept and carry out the decisions of the Security Council,” in particular the following 12 resolutions: SC Res. 660 (Aug. 2, 1990) (14-0, Yemen abstaining) (condemnation of invasion); SC Res. 661 (Aug. 6, 1990) (13-0, Cuba and Yemen abstaining) (trade embargo); SC Res. 662 (Aug. 9, 1990) (15-0) (nullification of annexation); SC Res. 664 (Aug. 18, 1990) (15-0) (protection of foreign hostages and diplomatic immunity); SC Res. 665 (Aug. 25, 1990) (13-0, Cuba and Yemen abstaining) (enforcement of trade sanctions); SC Res. 666 (Sept. 14, 1990) (13-2, Cuba and Yemen opposed) (humanitarian provision of foodstuffs); SC Res. 667 (Sept. 16, 1990) (15-0) (condemnation of aggression against diplomatic premises and personnel); SC Res. 669 (Sept. 24, 1990) (15-0) (UN examination of economic problems arising from sanctions); SC Res. 670 (Sept. 25, 1990) (14-1, Cuba opposed) (air embargo); SC Res. 674 (Oct. 29, 1990) (13-0, Cuba and Yemen abstaining) (Iraqi obligations toward foreign nationals and diplomatic missions); SC Res. 677 (Nov. 28, 1990) (15-0) (condemnation of alteration of population composition and register of Kuwait); and SC Res. 678, supra note 2. These resolutions are all conveniently reproduced in 29 ILM at 1323–36, 1560–65.

4 Consider, for example, the Council’s response to North Korea’s attack on South Korea in June 1950 or, for another, to Southern Rhodesia’s white supremacy policies in 1966 and 1968. Regarding Korea, see the authorities cited in notes 29 and 40 infra. See also text at notes 29–34 infra. Regarding Southern Rhodesia, see SC Res. 232, 21 UN SCOR (Res. & Dec.) at 7, UN Doc. S/INF/21/Rev.1 (1966); and SC Res. 253, 23 UN SCOR (Res. & Dec.) at 5, UN Doc. S/INF/23/Rev.1 (1968), reprinted in Basic Documents, supra note 3, at 369, 394, respectively. See also McDougal & Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 AJIL 1 (1968); Acheson, The Arrogance of International Lawyers, 2 Int’l Law. 591 (1968).

5 UN Charter Art. 24, para. 1.

6 See id., Art. 1, para. 1.

7 See id., Preamble and ch. I. Curiously, in their contributions to this issue, Eugene Rostow and Oscar Schachter pay little to no attention to the central principle of peaceful settlement or war prevention. See Rostow, Until What? Enforcement Action or Collective Self-Defense, supra p. 506; and Schachter, United Nations Law in the Gulf Conflict, supra p. 452.

8 The Security Council may be its own court of last resort when it comes to defining the scope of its legal competence. But when it comes to core Charter principles that delimit how this competence may be exercised, surely it is bound by the Charter requirement that any alteration of the Charter shall not take place except by a “General Conference of the Members of the United Nations.” See UN Charter, ch. XVIII.

9 Supra note 3.

10 Thus Professors Rostow and Schachter, supra note 7, devote substantial space to finding a chapter VII home for Resolution 678.

11 However, Resolution 678 did retain Resolution 660’s precision insofar as it incorporated Resolution 660 by reference and, as well, the remaining ten resolutions that followed Resolution 660, supra note 3.

12 Cf. L. Goodrich, E. Hambro & A. Simons, Charter of the United Nations 204–07, 291–92, 300–01, 314–17 (1969).

13 E.g., telephone interviews with Mr. Bruce Rashkow, Assistant Legal Adviser for United Nations Affairs, Office of the Legal Adviser, Department of State (Feb. 17 and 20, 1991).

14 See generally UN Doc. S/PV.2963 (Nov. 29, 1990).

15 The point is confirmed in Goshko, UN Vote Authorizes Use of Force Against Iraq, Wash. Post, Nov. 30, 1990, at A1, col. 1.

16 Article 42’s dependent relationship with Article 43 is explicitly acknowledged in Article 106 of the UN Charter, delineating post–World War II transitional security arrangements “[p]ending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42 ….” For authoritative textual and historical explanation, see L. Goodrich, E. Hambro & A. Simons, supra note 12, at 629–32; J.-P. Cot & A. Pellet, La Charte des Nations Unies 1399–1407 (1985). But see Schachter, supra note 7, at 463–64, who, while agreeing that Article 106 “clearly suggests” this dependent relationship, nevertheless correctly observes that “no explicit language in Article 42 or in Articles 43, 44, and 45 … precludes states from voluntarily making armed forces available to carry out the resolutions of the Council adopted under chapter VII.” For related comment, see infra note 18 and accompanying text.

17 See L. Goodrich, E. Hambro & A. Simons, supra note 12, at 314–17; J.-P. Cot & A. Pellet, supra note 16, at 703–16. But see Schachter’s helpful observation quoted in note 16 supra.

18 If Resolution 678 had not been explicitly premised on chapter VII, it would be reasonable to conclude that it was premised on the “transitional security arrangements” of Article 106 of chapter XVII. Pending the coming into force of Article 43 agreements (see supra note 16 and accompanying text), Article 106 authorizes China, France, the Soviet Union, the United Kingdom, and the United States to “consult with one another and as occasion requires with other Members of the United Nations with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security.”

19 Professors Rostow and Schachter, supra note 7, plainly disagree with this view. Their disagreement does not diminish my overall point, however, which is that Resolution 678 is not self-evidently rooted in Article 51 or that, if it were, this fact should have been expressly indicated. For explanation, see text following note 34 infra.

20 SC Res. 661, supra note 3.

21 The oblique and unexacting character of the Article 51 reference appears not to bother either Rostow or Schachter, supra note 7. I fail to see why not, particularly in the face of unmistakable disagreement within the Security Council prior to Resolution 678’s adoption (acknowledged explicitly by Schachter, implicitly by Rostow) as to the precise scope of the right of collective self-defense in light of the controversial “until clause” of Article 51. It is one thing to affirm the right of collective self-defense to signal, in a resolution devoted to economic sanctions (Resolution 661), the possible consequences of failing to comply with Security Council demands, quite another to say that this signal constituted, from the outset, the certain authority for a subsequent resolve to license all-out war against Iraq (Resolution 678), unqualified by the success or failure of the economic sanctions previously imposed. In any event, even if the Rostow-Schachter interpretation is correct, it is not self-evidently correct.

22 Rosalyn Higgins observes that the term “collective self-defence” is something of a misnomer (“Defence of the self cannot be collective; though there may exist collective security or mutual aid”) and commonly is confused with the concepts of defense, collective security, and community sanctions. R. Higgins, The Development of International Law Through the Political Organs of the United Nations 208–09 (1963).

23 Writes Schachter, supra note 7, at 457: “This was the first time the Council recognized in a resolution that the right of collective self-defense applied in a particular situation.”

24 See R. Higgins, supra note 22, at 209–10. See also L. Goodrich, E. Hambro & A. Simons, supra note 12, at 349–51; J.-P. Cot & A. Pellet, supra note 16, at 784–86.

25 My point here is not to plead some “original intent” interpretation of Article 51 or even to deny that the genuine shared expectations of at least the key Security Council players may have embraced an Article 51 authorization for Resolution 678, along the lines articulated by Professors Rostow and Schachter, supra note 7. It is simply to observe the unprecedented nature of an Article 51 justification and thereby to underscore the indeterminacy of Resolution 678’s Charter authority.

26 It has long been accepted under traditional international law that self-defense is justified only when the necessity for action is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Letter from Mr. Webster, Secretary of State, to Lord Ashburton (Aug. 6, 1842), reprinted in 2 J. B. Moore, A Digest of International Law 409, 412 (1906). While Secretary Webster was addressing an incident of claimed anticipatory self-defense (the Caroline affair of 1837), the quoted test reflects the customary law of self-defense generally both at the time of the incident and since that time. See, e.g., Restatement (Third) of the Foreign Relations Law of the United States §905 comment c and Reporters’ Note 3 (1987). Cf. M. Mcdougal & F. Feli-Ciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion 217–58 (1961). Indeed, in the context of modern collective self-defense, the quoted test may not be as strict as it should be. Write McDougal and Feliciano:

[I]n assessing the conditions under which collective self-defense is asserted, it may be appropriate to require … more exacting evidence of compelling necessity for coercive response by the group as such than would be reasonably demanded if the responding participant were a single state. The larger “self” of a group-participant ordinarily means greater bases of power at its disposal and, vis-à-vis a single opponent state, a substantial preponderance of force.

Id. at 251.

27 See, e.g., R. Higgins, supra note 22, at 197–210.

28 Excerpts from Bush’s Statement on U.S. Defense of Saudis, N.Y. Times, Aug. 9, 1990, at A15, col. 1.

29 See R. Higgins, supra note 22, at 224, and authorities cited therein. See also Pollack, Self-Doubts on Approaching Forty: The United Nations’ Oldest and Only Collective Security Enforcement Army, The United Nations Command in Korea, 6 Dickinson J. Int’l L. 1 (1987).

30 SC Res. 84, 5 UN SCOR (Res. & Dec.) at 5, 6, UN Doc. S/INF/5/Rev. 1 (1950).

31 See L. Goodrich, E. Hambro & A. Simons, supra note 12, at 300–02; J.-P. Cot & A. Pellet, supra note 16, at 661–65.

32 See Goshko, supra note 15.

33 See text at note 30 supra; see also authorities cited in note 40 infra.

34 See Gordon, Mideast Tensions: Bush Sends New Units to Gulf to Provide “Offensive Option”: U.S. Force Could Reach 380,000, N.Y. Times, Nov. 9, 1990, at A1, col. 6.

35 Such was the intent of the drafters of chapter VII of the UN Charter. See Doc. 881, III/3/46, 12 UNCIO Docs. 502, 503 (1945); Doc. 943, III/5, 11 id. at 12, 13.

36 UN Charter, Preamble.

37 Quoted in Beeston, Iraqis Say Bribes Won Resolution, The Times (London), Dec. 1, 1990, at 11, col. 1. For similar criticism, see the remarks of the Permanent Representative of Iraq to the United Nations, Mr. al-Anbari, on the occasion of Resolution 678’s adoption. UN Doc. S/PV.2963 at 19–30 (Nov. 29, 1990).

38 Resolution 678, 1990, Wash. Post, Nov. 30, 1990, at A28, col. 1.

39 Supra note 30.

40 See, e.g., B. Cumings, The Origins of the Korean War 209–13 (1981); see also I. Stone, The Hidden History of the Korean War, ch. 12 (1952).

41 See John McWethy, reporting, ABC’s “World News Tonight” (Nov. 29, 1990) (LEXIS/NEXIS). See also ABC’s “Nightline” (Nov. 29, 1990) (LEXIS/NEXIS).

42 See Apple, Summit in Europe: East and West Sign Pact to Shed Arms in Europe, N.Y. Times, Nov. 20, 1990, at A1, col. 1; Schmemann, Summit in Europe: Reporter’s Notebook; At the Summit, A Glance Homeward, id. at A15, col. 1. See also Questions and Answers on the Gulf War, Friends Committee on National Legislation, Wash. Newsletter, No. 541, Feb./Mar. 1991, at 5, 6.

43 See T. Friedman, Mideast Tensions: How U.S. Won Support to Use Mideast Forces. The Iraq Resolution: A U.S.-Soviet Collaboration—A Special Report, N.Y. Times, Dec. 2, 1990, at A1, col. 5.

44 In UN practice, despite the “concurring votes” language of Article 27(3) of the Charter, a voluntary abstention on a nonprocedural issue, as here, does not count as a veto. See L. Goodrich, E. Hambro & A. Simons, supra note 12, at 229–31; J.-P. Cot & A. Pellet, supra note 16, at 505–11. For related comment, see infra note 50.

45 See Editorial, Choose Peace, Nation, Dec. 24, 1990, at 789.

46 See id. The loan was approved on December 4, 1990. See Labaton, World Bank Lends China $114 Million, N.Y. Times, Dec. 5, 1990, at A13, col. 1.

47 See T. Friedman, Mideast Tensions: Chinese Official Is Invited to Washington in Response to Gulf Stance, N.Y. Times, Nov. 28, 1990, at A15, col. 3. See also T. Friedman, supra note 43.

48 See Miller, Mideast Tensions: Kuwaiti Envoy Says Baker Vowed “No Concessions” to Iraqis, N.Y. Times, Dec. 5, 1990, at A22, col. 1. For an affirmative Yemeni vote, the United States is said to have promised to support a draft resolution to appoint a Palestinian ombudsman in the occupied territories. See S. Friedman, Let’s Make a Deal in UN: US Informally Agrees to Resolution Protecting Palestinians, Newsday, Nov. 29, 1990, at 7 (city ed.). The appointment of the ombudsman, however, was never approved. See Lewis, Standoff in the Gulf: U.S. Joins U.N. Vote in Rebuking Israel Over Palestinians, N.Y. Times, Dec. 21, 1990, at A1, col. 2.

49 See infra note 55 and accompanying text.

50 If, by virtue of the pressure brought to bear upon China, it can be said that China’s abstention was involuntary and therefore, in keeping with the practice of not treating a voluntary abstention as a veto (see supra note 44), that the abstention amounted to a veto under Article 27(3) of the Charter, the bargaining could be deemed illegitimate and the resulting Resolution 678 illegal for having violated the “concurring votes” requirement of Article 27(3).

51 Reisman, Some Lessons from Iraq: International Law and Democratic Politics, 16 Yale J. Int’l L. 203, 208 (1991).

52 See text at notes 71–89 infra.

53 For qualifying comment, see text at notes 69 and 70 infra.

54 Reported in T. Friedman, Confrontation in the Gulf: Baker Foresees a Long Stay for U.S. Troops in Mideast; Urges a Regional Alliance, N.Y. Times, Sept. 5, 1990, at A1, col. 6. See also Gauch, Egyptians Watch Sinking Economy Drop Even Further, Christian Sci. Monitor, Feb. 12, 1991, at 5; Farnsworth, Egypt’s “Reward”: Forgiven Debt, N.Y. Times, Apr. 10, 1991, at D1, col. 3.

55 On November 24, 1990, notwithstanding Syria’s long tenure on the U.S. Department of State’s list of countries promoting international terrorism and Syria’s effective occupation of all of northern Lebanon, President Bush met with President Assad, the first such contact by a U.S. President in 11 years, principally to ensure Syria’s cooperation in the campaign against Iraq. See Kifher, The World: Assad of Syria, The Smoother of Two Evils, N.Y. Times, Nov. 25, 1990, at D3, col. 4; Worsnip, Syria Emerges A Winner From Gulf War (Mar. 8, 1991) (LEXIS/NEXIS, Reuter library). Further, as a result of Syria’s participation in the war, the European Community is reported to have released $200 million in Syrian assets frozen since 1986, and Syrian domestic markets are now reported to be full of imported consumer products that previously were unavailable owing to government hard currency regulations. Id.

56 This drive was especially evident after November 8, when President Bush unilaterally ordered the doubling of the U.S. forces in the Persian Gulf region, although the Bush administration is reported as having investigated ways to implement a use-of-force resolution as early as September 1990. See T. Friedman, supra note 43.

57 Following Iraq’s Scud missile attacks against Israel, whose defense was not the subject of any Security Council action during the crisis, claims to the Article 51 right of collective self-defense—by, for example, the United States in defense of Israel—could have been made inasmuch as the “until clause” of Article 51 would not have been set into motion. The juridical consequence of Iraq’s attacks upon Israel, in other words, was to widen the door of discretion of its principal antagonist, the United States, beyond whatever restrictions might have been said to define Resolution 678.

58 See text at notes 10–36 supra.

59 For related comment, see text at notes 62 and 96–99 infra.

60 True, these words were drafted with Munich and Ethiopia in mind, and therefore may be read to condone the use of force against such acts of aggression as Iraq’s invasion and attempted annexation of Kuwait. But it is no less true that the United Nations was founded to be attentive first and foremost to the peaceful settlement of international disputes and to rely on the military instrument of policy only as an extreme last resort. For elaboration, see text at notes 64–70 infra.

61 Quoted in S. Friedman, Hussein Gets Eviction Notice; Resolution Giving Iraq Until Jan. 15 Approved, Newsday, Nov. 30, 1990, at 5 (home ed.).

62 See Doyle, Crisis in the Gulf: UN “Has No Role in Running the War,” Independent (London), Feb. 11, 1991, at 2. See also text at notes 96–97 infra.

63 This characterization of the damage to Iraq’s infrastructure is drawn from an account of a report prepared by UN Under-Secretary-General Martti Ahtisaari following a mission to Iraq between March 10 and 17, 1991, in the company of representatives of UNICEF, the UNDP, the High Commissioner for Refugees, the WHO, and the FAO. See Lewis, U.N. Survey Calls Iraq’s War Damage Near-Apocalyptic, N.Y. Times, Mar. 22, 1991, at A1, col. 6.

64 The Secretary-General, it appears, held out little hope for a diplomatic solution before the out-break of hostilities. According to one informed account, “the Secretary-General had predicted as long ago as early December [that] there was little prospect of meaningful diplomatic initiative until, as his spokesman, François Giuliani, put it—‘the American interest runs its course.’” Gulf’s Big 2 Rob S-G of Peacemaker Halo, 13 UN Observer and Int’l Rep., No. 3, March 1991, at 1.

65 See text at note 1 supra.

66 Reisman, supra note 51, at 205.

67 For elaboration, see text at notes 70–89 infra.

68 See S. Friedman, Baker Planning Trip to Seek UN OK on Force, Newsday, Nov. 15, 1990, at 6 (city ed.).

69 The individual veto power of the Security Council’s permanent members under Article 27(3) of the UN Charter is well-known. Less well-known is the Article 27(3) collective veto power that, theoretically, the nonpermanent members (usually small states) may exercise when at least seven unite against policies proposed by the permanent members.

70 Few countries are not dependent upon the West’s largesse and good will at this time. Thus, though the U.S. policies were clearly popular to some, especially those Arab elites whose economic and political interests would immediately be served by a vanquished Iraq, it is unrealistic to expect that many would have been inclined to suffer the same disapproving consequences that befell Yemen for its opposition to Resolution 678 within the Security Council, or Jordan on the outside. As ruefully editorialized in The Nation, supra note 45, at 809: “We should do all we can to strengthen the U.N. as an instrument for the peaceful settlement of world disputes, but let us not delude ourselves: The old socialist bloc is irrevocably broken, and the ever-promising nonaligned group is practically non-functional now that there’s only one world power.”

71 Supra note 3.

72 See Gordon, supra note 34.

73 See Confrontation in the Gulf: Excerpts from President’s Remarks to V.F.W. on the Persian Gulf Crisis, N.Y. Times, Aug. 21, 1990, at A12, col. 1; Rosenthal, Confrontation in the Gulf: Baker Warns U.S. to Have Patience on Iraq Embargo, N.Y. Times, Sept. 6, 1990, at Al, col. 5.

74 See Hufbauer & Elliott, Sanctions Will Bite—And Soon, N.Y. Times, Jan. 14, 1991, at A17, col. 1. See also U.S. Policy in the Persian Gulf: Hearings Before the Senate Comm. on Foreign Relations, 101st Cong., 2d Sess. 60–73 (1990) (testimony of Prof. Gary C. Hufbauer) [hereinafter Senate Hearings]. On economic sanctions generally, see G. Hufbauer, J. Schott & K. Elliott, Economic Sanctions Reconsidered: History and Current Policy (2d ed. 1990); idem., Economic Sanctions Reconsidered: Supplemental Case Histories (2d ed. 1990). See also M. Malloy, Economic Sanctions and U.S. Trade (1990).

75 See Gordon, Mideast Tensions: Two Ex-Military Chiefs Urge Bush to Delay Gulf War, N.Y. Times, Nov. 29, 1990, at A1, col. 1. See also Passell, Confrontation in the Gulf: How Vulnerable is Iraq?, N.Y. Times, Aug. 20, 1990, at Al, col. 4. For pertinent additional comment, see infra note 79.

76 See supra note 63.

77 Oscar Schachter, supra note 7, at 465–66, reflects sensitively, as follows:

An especially tragic aspect of the gulf war was the extensive destruction of civilian lives and property that resulted from the coalition’s aerial bombing and long-distance missiles. Critics of the war, and not only critics, have called attention to apparent violations of the prohibitions in the international law of armed conflict against causing disproportionate and unnecessary suffering to noncombatants. International lawyers, faced with cynicism, are not likely to be comfortable in reviewing the events.

….

… The enormous devastation that did result from the massive aerial attacks suggests that the legal standards of distinction and proportionality did not have much practical effect.

78 Khalidi, Grim Prospects in the Middle East: Instability Scenarios for a Post-War Iraq, In These Times, No. 15, March 20–26, 1991, at 9.

79 Former Under-Secretary-General for Special Political Affairs Brian E. Urquhart, who held the post for 18 years, is reported to have observed that the sanctions against Iraq were unprecedented in their complexity and comprehensiveness. See Editorial, supra note 45, at 809. “And Iraq,” he went on to say, “is uniquely vulnerable to sanctions. It has a single economic base [oil] and a poor infrastructure.” Quoted in id. Mussolini is reported to have confided to Hitler that he would have been forced to withdraw from Ethiopia within a week had the League of Nations included oil in its sanctions against Italy in 1935–1936. See Hufbauer & Elliott, supra note 74.

80 See, e.g., G. Sharp, The Methods of Nonviolent Action: Part Two of the Politics of Nonviolent Action (1973).

81 Caron, Iraq and the Force of Law: Why Give a Shield of Immunity?, 85 AJIL 89, 90 (1991).

82 For example, Colombian Foreign Minister Jaramillo stated before the Security Council on November 29:

It is the responsibility of the Security Council, in accordance with Chapter VII of the Charter, not merely to threaten Iraq and hope for the best, but rather to take positive action towards achieving a peaceful settlement. If today we are opening the way for the option of using force, let us do so also for the peace option. The best hope of reaching a peaceful solution lies in creating a framework for negotiations.

UN Doc. S/PV.2963, at 41 (Nov. 29, 1990).

83 Quoted in T. Friedman, Confrontation in the Gulf: Games Over Dates; U.S.-Iraqi Minuet on Talks Drags On in a Struggle to Project the Best Image, N.Y. Times, Jan. 4, 1991, at A8, col. 1.

84 Mideast Tensions: Excerpts from President’s News Conference on Crisis in Gulf, N.Y. Times, Dec. 1, 1990, at A6, col. 1.

85 See McEwen, Britain Dismisses Diplomatic Peace Efforts as Premature, The Times (London), Aug. 31, 1990, at 3, col. 1.

86 See, in this particular connection, the recommendations of Professor Roger Fisher, director of the Harvard Negotiation Project, in a series of opinion-editorials preceding the outbreak of hostilities on January 16, 1991: Four Lessons on Building a “Golden Bridge” to Peace, Int’l Herald Trib., Sept. 3, 1990, at 4, col. 3; For Saddam, Where’s the Carrot?, Christian Sci. Monitor, Oct. 15, 1990, at 18; How to Win Without A War, L.A. Times, Oct. 23, 1990, at B7, col. 1; The Gulf Crisis: Winning Without War, Boston Globe, Nov. 4, 1990, at A17, col. 5; Getting to “Yes” with Saddam: How Words Can Win; Talks Will Succeed Once Iraq Knows It Can Only Lose by Slaying in Kuwait, Wash. Post, Dec. 9, 1990, at K1, col. 4. See also Senate Hearings, supra note 74, at 14–55 (testimony of Prof. Roger Fisher). Among Fisher’s recommendations was a Security Council resolution designed to make an Iraqi withdrawal from Kuwait look tolerable, making clear that upon withdrawal specific things would happen, including: (1) termination of the sanctions; (2) no military attack against Iraq; (3) appointment of an Arab mediator to seek an equitable settlement of the Ramaila oil field and offshore islands disputes; (4) fair procedures to settle all frozen asset and financial claims; (5) ultimate withdrawal of the multinational forces from the gulf; and (6) Security Council consideration of the Palestinian question.

87 Caron, supra note 81, at 91.

88 See especially the heart-rending opinion-editorial by Anthony Lewis, The New World Order, N.Y. Times, Apr. 5, 1991, at A15, cols. 5–6. “[W]ars,” Lewis writes, “have consequences not faced by those who launch them: terrible consequences.”

89 Reisman, supra note 51, at 208.

90 Beginning as early as August 21, 1990, the White House steadfastly rejected Iraqi calls for a negotiated end to the Persian Gulf crisis (see, e.g., T. Friedman, Confrontation in the Gulf: Behind Bush’s Hard Line; Washington Considers a Clear Iraqi Defeat to be Necessary to Bolster its Arab Allies, N.Y. Times, Aug. 22, 1990, at A1, col. 4), and the rigor with which this policy was applied was seen especially clearly when President Hussein agreed to release Western women and children being held hostage in Iraq in response to U.S. and allied threats of military attack. Stated Hussein at the time, challenging President Bush and British Prime Minister Margaret Thatcher to a television debate: “I say to Bush, I say to Thatcher, I am prepared now, really prepared, for direct talks, dialogue … immediately.” Quoted in Atlas, Hussein Says Western Wopien, Children Can Leave Iraq, Chicago Trib., Aug. 29, 1990, at A1, col. 1. The State Department’s only response to this gesture, in a statement by spokeswoman Margaret Tutwiler, was: “It’s sick. … There is nothing to debate.” Id. Later, when President Hussein agreed to release all the hostages in stages and then proceeded to do so, Secretary of State James Baker III denounced Iraq as running a “hostage bazaar,” stating that the freeing of Western hostages had nothing to do with compassion and was simply the latest cynical political move by Hussein. See Bruning, Hussein Denounced for “Hostage Bazaar,” Newsday, Oct. 25, 1990, at 13. The move was rejected outright, via spokeswoman Tutwiler, as “one more act of barbarism.” Id.

91 See supra text at note 32.

92 Address Before a Joint Session of Congress on the Persian Gulf Crisis and the Federal Budget Deficit, Sept. 11, 1990, 26 Weekly Comp. Pres. Doc. 1358, 1359 (Sept. 17, 1990), N.Y. Times, Sept. 12, 1990, at A10, col. 1.

93 See, e.g., Weston, The Reagan Administration Versus International Law, 19 Case W. Res. J. Int’l L. 295 (1987). See also Malawer, Reagan’s Law and Foreign Policy, 1981–1987: The “Reagan Corollary” of International Law, 29 Harv. Int’l L.J. 85 (1988). Cf. Beres, Ignoring International Law: U.S. Policy on Insurgency and Intervention in Central America, 14 Den. J. Int’l L. & Pol’y 76(1985); Highet, Remarks at the 1987 Annual Banquet, 81 ASIL Proc. 501 (1987); Kreisberg, Does the U.S. Government Think That International Law Is Important?, 11 Yale J. Int’l L. 479 (1986); Quigley, The Reagan Administration’s Legacy to International Law, 2 Temple Int’l & Comp. L.J. 199 (1989). For more general treatment, see Farer, International Law: The Critics Are Wrong, Foreign Pol’y, Summer 1988, at 22.

94 For a poignant, soul-searching account, see Lewis, supra note 88.

95 Reisman, supra note 51, at 206.

96 Id.

97 Quoted in Doyle, supra note 62; also quoted in Bassir-Pour, Un Entretien avec le Sécrétaire Général des Nations Unies, Le Monde, Feb. 9, 1991, at 1, 6, and 13 UN Observer & Int’l Rep., No. 3, March 1991, at 14.

98 See note 97 supra.

99 See note 97 supra.

100 “[F]or weeks during the most critical period of the Gulf conflict,” according to one informed source, “U.S. resistance blocked the [Security] Council from even holding open sessions. Instead, there were interminable, pointless and unproductive consultations and closed-door Council meetings.” Gulf’s Big 2 Rob S-G of Peacemaker Halo, supra note 64, at 1. As stated in The Economist: “The Americans kept the United Nations at arm’s length during the fighting of the war.” United Nations Peacefire, Economist, Mar. 30, 1991, at 39.

101 E.g., national forces assembled under a unified UN command of direction and accountability, with the military commander designated by whichever country happens to be the major contributor of troops.

102 Russett and Sutterlin put the issue this way: “In any operation, if the Security Council has asserted no control over the military action authorized, will it be possible for it to assert control over the terms of peace?” Russett & Sutterlin, The U.N. in a New World Order, Foreign Aff., Spring 1991, at 69, 77.

103 Among other things, Ambassador April Glaspie’s controversial conversation with President Hussein on July 25, 1990, appears as impressive testimony. See Confrontation in the Gulf: Excerpts from Iraqi Document on Meeting with U.S. Envoy, N.Y. Times, Sept. 23, 1990, §1, pt. 1, at 19, col. 1. Cf. T. Friedman, Envoy to Iraq, Faulted in Crisis, Says She Warned Hussein Sternly, N.Y. Times, Mar. 21, 1991, at A1, cols. 4–5. Also supportive of this view is the failure of the United States to act boldly and swiftly in response to Bahgdad’s gross violations of the internationally guaranteed human rights of the Iraqi Kurdish and Shiite peoples in the immediate aftermath of the Persian Gulf war, suggesting the absence of a principled foreign policy. In the words of columnist Richard Cohen, commenting on the postwar events: “The war against Iraq hardly lacked its moral aspects. But it’s hard to escape the suggestion that it was not morality that motivated Bush, but a raging hatred for Saddam Hussein.” Cohen, Pictures and the President, Wash. Post, Apr. 23, 1991, at A19, col. 2.

104 In The Uses of Force, New Yorker, Apr. 29, 1991, at 82, Richard J. Barnet, senior fellow of the Institute for Policy Studies, put it this way:

From the first … , [Bush] Administration officials worried that failure to use American military power in a just cause, blessed by the United Nations, at a time when the Soviet Union was immobilized by its domestic turmoil would confirm the pessimistic judgments of the “declinists”—those at home and abroad who spoke of the United States as if it were a fading empire.

Earlier, in Pax Americana II, Nation, Feb. 11, 1991, at 148, 148–49, respected defense and military affairs analyst Michael Klare addressed U.S. motives as follows:

Although President Bush refers continually to “the liberation of Kuwait,” the U.S. plan has far broader objectives: to eliminate Iraq as a significant competitor for hegemony in the gulf; to make Kuwait, Saudi Arabia and the United Arab Emirates permanently dependent on U.S. military power for their external, and possibly internal, security; to force every local power, including Israel, to consult Washington when undertaking political, economic or military initiatives of any significance; and to deter future challengers (“the next Saddam”) from contesting American hegemony over Middle East oilfields. More than this, Washington seeks to rein in Germany and Japan by forcing them to rely on American troops to protect their oil deliveries—just as they were once forced to rely on U.S. nuclear arms (“the nuclear umbrella”) to deter attack by the Soviet Union.

Similarly, in A Secret Deal to Carve Up Iraq?, Village Voice, Dec. 4, 1990, at 21, James Ridgeway speculated that the true purpose of “Operation Desert Storm” (then “Operation Desert Shield”) might well turn out to be a Middle Eastern map redrawn to suit U.S. hegemonic interests, with the United States left “in direct military control … [of] … over 50 percent of all the world’s oil reserves” in Iraq, Kuwait, Saudi Arabia, and the gulf sheikdoms—ergo, “a stranglehold on all oil supplies to Japan, Germany, and the rest of Europe [that] would allay American fears of being left behind Germany and Japan after 1992.”

105 “The manner in which the gulf military action was executed by the United States and its coalition partners,” write Russett & Sutterlin, supra note 102, at 83, “will likely limit the willingness of council members to follow a similar procedure in the future—a procedure that leaves council members little control over the course of military operations and over the conclusion of hostilities.”

106 For recently articulated proposals and their evaluation, including “a variant of the procedure followed in Korea” and “the procedure defined in Articles 42 and 43 of the U.N. Charter,” see Russett & Sutterlin, supra note 102, at 77–82.

107 The Letters of W. B. Yeats 691 (A. Wade ed. 1954).