ASIL Insights

On February 16, 2001, U.S. and British aircraft conducted strikes against radar stations and air defense command centers in Iraq, including some targets near Baghdad. There were five sets of targets in all. The strikes came after military commanders reported that Iraqi air defense had become increasingly effective in targeting U.S. and British air patrols over the southern no-fly zone in Iraq. Some of the air defense facilities, including four of the five hit on February 16, are outside the no-fly zones that the United States and United Kingdom imposed over areas of northern and southern Iraq in 1991 and 1992 in an effort to protect Kurds in the north and Shiite Muslims in the south. Iraqi air defense forces have often fired on the U.S. and British patrols over the no-fly zones, and Iraq appears recently to have stepped up its targeting of the patrols.

The reason given for the strikes outside the no-fly zones is that they were needed in order to enforce the zones and to protect U.S. and British pilots and aircraft patrolling the zones. The legal justification would be self-defense, based on a right that has consistently been asserted by the United States and United Kingdom to establish and enforce safe zones for the Kurds in northern Iraq and the Shiites in southern Iraq pursuant to U.N. Security Council Resolution 688 (1991). In that resolution, adopted in the aftermath of the Persian Gulf War, the Security Council found that the consequences of Iraqi repression of the civilian population in many parts of Iraq threaten international peace and security in the region, and demanded that Iraq end the repression. The resolution expressly mentioned only the Kurds, but it was understood at the time that the Shiite Muslims in the south were included.

Before the Gulf War the Security Council adopted Resolution 678, which authorized U.N. member states to use all necessary means to restore international peace and security in the area. It served as the legal authorization for the use of force against Iraq in the Gulf War. Resolutions 678 and 688 have not been revoked, although Security Council Resolution 687 declared a cease-fire after the war. Iraqi non-cooperation with the United Nations, particularly in connection with U.N. efforts to inspect Iraq's weapons facilities, has given rise to an argument that the cease-fire is no longer in effect because the conditions underlying it are not being met.

Normally it would be an encroachment on another state's sovereignty to send military aircraft over its territory without permission, even if the aircraft do not fire on anything. But if the no-fly zones are lawful means of implementing Resolutions 678 and 688 (taken in combination with each other), the United States and United Kingdom would have a legal justification for sending military aircraft over the zones in an attempt to protect the Kurds and Shiites. They would also have a right of self-defense for their pilots and aircraft patrolling the zones, at least if their aircraft have been subjected to an armed attack. U.N. Charter Article 51 recognizes such an inherent right, "if an armed attack occurs" against a U.N. member state, until the Security Council has taken measures necessary to maintain international peace and security.

The right of self-defense could extend even to air strikes outside the zones, if the use of force in the exercise of the right is necessary under the circumstances and proportionate to the use or threat of force being defended against. Under a 19^th-century formulation by the U.S. Secretary of State in what is known as the Caroline incident, reaffirmed by the Nuremberg Tribunal after World War II, the necessity must be "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." In the absence of access to classified information, it is not possible to assess how immediate or great a threat the Iraqi air defense facilities posed to the aircraft patrolling the southern zone. The immediacy and magnitude of the threat would affect both the necessity and the proportionality of the February 16 air strikes. If both of those tests are met, and if the enforcement of no-fly zones in Iraq is permissible under U.N. Security Council resolutions, the self-defense argument is strong.

About the Author
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.