The Legal Background on the Use of Force to Induce Iraq to Comply with Security Council Resolutions
November 23, 1997
Iraq's well-publicized refusal to allow Americans to participate in on-site inspections of Iraq's chemical, biological and missile capabilities led the United Nations Security Council on November 12 to adopt Resolution 1137 (1997). Acting under its enforcement authority in Chapter VII of the UN Charter, the Council condemned Iraq for its continued violations of its obligations, under the relevant Security Council resolutions, to cooperate fully with the UN Special Commission appointed pursuant to Resolution 687 to carry out the on-site inspections, and imposed mandatory travel restrictions on Iraqi officials and armed forces members who were responsible for the violations or participated in them. Resolution 1137 also expressed "the firm intention to take further measures as may be required for the implementation of this resolution."
The United States government has said that Iraq must comply or face the consequences, including possible use of the military option. The United States and the United Kingdom have asserted that they already have adequate authority from the Security Council to use the military option. The governments of several other UN member states, including China, France and Russia, have disputed that assertion.
The U.S. assertion appears to rest primarily on Security Council Resolution 678 (1990), which authorized member states 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." Resolution 660, adopted the day after Iraq invaded Kuwait, demanded that Iraq withdraw unconditionally from Kuwait. Resolution 678 became the UN's authorizing instrument for Operation Desert Storm. It has never been rescinded.
Iraq's attempt to dictate the composition of UN inspection teams has raised suspicions that Iraq is buying time to cover up its remaining chemical, biological and/or missile capabilities, posing a renewed threat to peace and security in the Persian Gulf area. Taken literally, the pre-Desert Storm Resolution 678 could be said to authorize not only the one-time use of armed force, but also whatever subsequent use of armed force might be needed to restore international peace and security in the area. The U.S. and U.K. could argue that a renewed use of armed force is now needed if peace in the area is to be permanently restored.
After Desert Storm, the Security Council adopted Resolution 687 (1990), again acting under Chapter VII of the Charter. Resolution 687 imposed several obligations on Iraq, including the obligation to accept the neutralization under international supervision of its chemical, biological and medium- or long-range missile capabilities. It went on to say that upon notification by Iraq of its acceptance of the provisions in Resolution 687 (which Iraq grudgingly accepted), a formal cease-fire was effective. Finally, the Council decided to remain seized of the matter "and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area." Resolution 687 remains in force and was one of the key resolutions the Security Council mentioned in Resolution 1137.
Again taking the earlier Resolution 678 literally, it might be said to authorize member states to use all necessary means to uphold and implement Resolution 687, since Resolution 678 gave member states the authority to uphold all "relevant resolutions" subsequent to Resolution 660, and Resolution 687 is such a resolution.
Member states opposing the U.S. assertion of authority to use armed force under the current circumstances rely on the fact that a formal cease-fire is in effect, thus significantly changing the circumstances under which the Security Council authorized "all necessary measures" in pre-Desert Storm Resolution 678. Thus, they would say, Resolution 678 could no longer reasonably be used as an ongoing authority to use force. They also argue that the Council's retention of authority in Resolution 687 to take further steps should be read to preclude individual member states from taking steps on their own to secure peace and security in the area. Finally, they would argue that the reference in Resolution 678 to upholding and implementing "relevant resolutions" subsequent to Resolution 660 could only have been intended to mean resolutions adopted between the dates of Resolutions 660 and 678. That, of course, would exclude Resolution 687.
As has been noted above, Resolution 1137 expressed the firm intention to take further measures (in addition to travel restrictions) as may be required for its implementation. According to news reports, the U.S. and British governments rely on this provision as further support for the view that the use of force is already authorized.
The opposing argument would be that the body expressing the firm intention in Resolution 1137 to take further measures is the Security Council and only the Security Council, which remains seized of the matter. Under this view, the Security Council might take a further measure in the form of a new authorization to member states to use force, but Resolution 1137 itself would not supply such an authorization.
Edwin D. Williamson
My most serious criticism of Professor Kirgis' comments is his misstatement, in the first full paragraph on page 2 of his "ASIL Insight", of the argument that would be used by those who believe that no further UN Security Council action is necessary for the U.S. to use force against Iraq following its material breach of its agreement in response to Resolution 687. The argument that would be used is that with Iraq's reneging on its commitments with respect to weapons of mass destruction, the threat to peace and security remains and, therefore, one of the goals of Resolution 678 -- the restoration of international peace and security -- has not been accomplished. As a result, member states are still authorized to use force under Resolution 678. Furthermore, Professor Kirgis fails to note that the declaration in Resolution 687 of a cease-fire being in effect was clearly based upon Iraq's acceptance of the terms of that Resolution (no matter how grudging that acceptance).
About the author:
Edwin D. Williamson was Legal Adviser to the State Department at the time Resolutions 678 and 687 were adopted. He is currently a partner of Sullivan & Cromwell in Washington, D.C.