Newsgroup: it.politica.internazionale
Titolo: Illegalità dell'aggressione USA/UK all'Iraq: un'analisi tecnica

http://www.asil.org/insights/insigh99a1.htm
Addendum to Armed Force in Iraq: Issues of Legality
By Mary Ellen O'Connell
April 2003
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On March 20, 2003, the United Kingdom and the United States sent letters to
the United Nations Security Council reporting on their use of force against
Iraq and their legal justifications for doing so.  The UK letter invokes a
right to enforce Security Council resolutions requiring Iraqi disarmament.
[1]   The US letter argues that the basis of the 1991 ceasefire with Iraq
was removed, reviving authorization to use force against Iraq found in
resolution 678 (1990). [2]   The US letter also says the US was acting in
its own defense and the defense of the international community.
International law scholars have raised serious issues regarding all three
justifications.
The UK letter states the "action follows a long history of non-cooperation
by Iraq.with disarmament obligations imposed on it by the Council, including
in resolutions 678 (1990), 687 (1991) and 1441 (2002)."  "The objective of
the action is to secure compliance by Iraq with its disarmament obligations
as laid down by the Council."  The UK and US have long argued that they have
the right to use force to enforce Iraqi obligations in Security Council
resolutions.
Of the resolutions cited in the UK letter, only resolution 678 authorizes
the use of force, but it was adopted on November 29, 1990, to effect the
liberation of Kuwait from Iraqi occupation and before Iraq had disarmament
obligations. [3]   Disarmament obligations were not placed on Iraq until
resolution 687, the ceasefire resolution of April 3, 1991.  Resolution 687
affirms the "sovereignty, territorial integrity and political independence
of Kuwait and Iraq" and the intention of Members to "bring their military
presence in Iraq to an end as soon as possible."  The resolution then
establishes several measures to realize the "objective of restoring
international peace and security in the area."  These measures included
demarcating the common Kuwait-Iraq border, creating a ten-mile demilitarized
zone between the two states, as well as placing disarmament and financial
obligations on Iraq.  To enforce these measures the Council decided it would
leave economic sanctions in place until Iraq was in full compliance.  In the
resolution's final paragraph 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 contains no express authority for any state to
use force.
A week after the adoption of resolution 687, the Security Council adopted a
third resolution--resolution 688--calling on Iraq to end the repression of
the Kurds and other citizens "as a contribution to removing the threat to
international peace and security in the region" and to "allow immediate
access by international humanitarian organizations."   Within days of the
adoption of resolution 688, US, French, British, Dutch and German troops
established the Kurdish protection zone in northern Iraq.  The US adopted
the UK's argument justifying the legality of this force:   that because
resolution 688 referred to "peace and security in the region" and resolution
678 referred to peace in the area, reading resolution 678 together with
resolution 688, allowed force to be used to enforce 688. [4]   A similar
argument was made to justify the subsequent imposition of no-fly zones over
northern and southern Iraq by the US, UK and France. [5]   In 1998, however,
when the US and UK used an intense bombing campaign to attempt to induce
Saddam Hussein to re-admit UN weapons inspectors, a majority of the Council
condemned the action as unlawful. [6]    It might be argued that the US/UK
interpretation of resolutions 688 and 678 was acquiesced in by the Council
with respect to the Kurdish and no-fly zones. [7]    No similar argument can
be made respecting the use of force to enforce Iraqi disarmament obligations
under resolution 687.
The Council passed resolution 1441 on November 12, 2002, but it provided no
new authorization for using force.  It states in paragraph 12 that a meeting
of the Security Council will be the first step upon a report by inspectors
that Iraq obstructed their activities.  Russia, France and China have all
stated they understood resolution 1441 permitted no automatic use of force.
Subsequently, in fact, members of the Council were unwilling to adopt a
proposed resolution that would authorize force to enforce Iraqi disarmament.
Resolution 1441 states affirmatively that in the event of a material breach
by Iraq of its obligations to cooperate, serious consequences would follow.
But, again, the resolution does not say what serious consequences would
follow.  Nor did it provide any right of unilateral US/UK enforcement.
The argument in the March 20 US letter to the Security Council that Iraq's
failure to fulfill its obligations under resolution 687 resulted in the
termination of that resolution is also problematic.  Analogizing to
multilateral treaties, the argument is that a material breach of the
obligations terminated the formal cease-fire in resolution 687 and returned
the parties to the pre-ceasefire legal situation, specifically the situation
created by resolution 678.  Resolution 678 allowed the use of "all necessary
means," including, presumably, taking the defense of Kuwait to Baghdad and
ending the regime of Saddam Hussein.
Scholars raise at least three problems with this argument:  first,
resolutions are not treaties and do not automatically terminate upon
material breach.  Second, the argument that resolution 687 lapsed and
resolution 678 revived is inconsistent with the legal position staked out by
the US and UK for the last 12 years, and, third, resolution 678 never
authorized the forcible change of Iraq's regime in the first place.
While it is true that in some cases of material breach of a multilateral
treaty, the nonbreaching parties may suspend the treaty's operation or
terminate it, [8] the analogy to resolutions is inapposite.  Security
Council resolutions are not treaties.  They are not agreements among equals
reached through negotiations, aimed at achieving consensus and binding on
all parties alike if they give their consent.  Council resolutions, by
contrast, are mandates imposed on certain states that must be respected
whether those states consent or not. [9]   Resolutions are enforced,
modified, or terminated by the Security Council acting under the terms of
the UN Charter.  The Charter does not authorize either states in general, or
individual or groups of Security Council members, to take enforcement action
on their own.
An additional problem with this line of argument is that it is unclear
exactly when and how resolution 687 lapsed and 678 was revived.  As of March
17, 2003, the US and UK were still looking for authority to use force to
enforce it.  Indeed, until March 19, 2003, the US and UK acted consistently
in the belief that resolution 687 was a viable Security Council mandate that
imposed obligations on Iraq to comply despite Iraq's consistent failure to
do so; moreover, the resolution was receiving full Security Council
attention toward getting Iraq to comply.
Even if resolution 687 could lapse and resolution 678 could revive,
resolution 678 never authorized the use of force to forcibly change Iraq's
government.  Resolution 678 was about liberating Kuwait and providing
security in the area.  The US has acknowledged that the coalition had
authority only for these purposes. [10]   This fact is also evident in the
terms of resolution 687 affirming both Kuwait's and Iraq's territorial
integrity and political independence. Resolution 687 established a
demilitarized zone between Kuwait and Iraq and disarmament obligations on
Iraq,  without calling for regime change in Iraq.
The final argument made by the United States in its March 20 letter to the
Security Council is that the coalition's actions against Iraq in 2003 were
"necessary steps to defend the United States and the international community
from the threat posed by Iraq and to restore international peace and
security in the area."  The US appears to argue it may use force in
self-defense because it perceived a threat of future harm from Iraq.  The
pre-emptive use of military force absent an armed attack violates the plain
terms of the United Nations Charter and the prevailing interpretation of
those terms.  Under the Charter, states may use force in self-defense if an
armed attack occurs. [11]   For all other security concerns, states are to
go to the Security Council.  The Council may then authorize all necessary
means to respond to what it determines is a threat to international peace
and security. [12]
About the Author:
Mary Ellen O'Connell, William B. Saxbe Designated Professor of Law, The Ohio
State University
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[1] Letter dated 20 March 2003 from the Permanent Representative of the
United Kingdom of Great Britain and Northern Ireland to the United Nations
addressed to the President of the Security council, UN Doc. S/2003/350 (Mar.
21, 2003).
[2] Letter dated 20 March 2003 from the Permanent Representative of the
United States of America to the United Nations addressed to the President of
the Security Council, UN Doc. S/2003/351 (Mar. 21, 2003). The lapsing
ceasefire argument also appears in a statement to the House of Lords by the
British Attorney General and in Iraq: Legal Basis for the Use of Force,
Foreign and Commonwealth Office, 17 March 2003 (on file with the author.)
[3] The resolution has only five operative paragraphs:
  1.) Demands that Iraq comply fully with resolution 660 (1990) and all
subsequent relevant resolutions, and decides, while maintaining all its
decision, to allow Iraq one final opportunity, as a pause of good will, to
do so:
  2.) Authorizes Member States co-operating with the Government of Kuwait,
unless Iraq on or before 15 January 1991 fully implements as set forth in
paragraph 1 above, the above-mentioned resolutions, 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;
  3.) Requests all States to provide appropriate support for the actions
undertaken in pursuance of paragraph 2 above;
  4.) Requests the States concerned to keep the Security Council regularly
informed on the progress of actions undertaken pursuant to paragraphs 2 and
3 above;
  5.) Decides to remain seized of the matter.
[4] Author interview with Edwin Williamson, State Department Legal Adviser,
Washington, D.C. (Apr. 19, 1991), reference to the interview first published
in Mary Ellen O'Connell, Continuing Limits on UN Intervention in Civil War,
67 Ind. L.J. 903 (1992).
[5] See House of Commons debates excerpted in 65 Brit. Y.B. Int'l L. 683
(1994); 64 Brit. Y.B. Int'l L. 728-29 (1993); see also, Christine Gray, From
Unity to Polarization: International Law and the Use of Force Against Iraq,
13 Eur. J. Int'l L. 1, 9 (2002).
[6] U.N. SCOR 53d Sess., 3955th mtg., U.N. Doc. S/PV.3955, Dec. 16, 1998.
[7] For more on implicit authorization, see Jules Lobel & Michael Ratner,
Bypassing the Security Council, Ambiguous Authorization to Use Force,
Cease-Fires, and the Iraqi Inspection Regime, 93 Am. J. Int'l L. 124 (1999).
[8] Vienna Convention on the Law of Treaties, opened for signature May 23,
1969, art. 60, 1155 UNTS 331.
[9] See UN Charter Article 25.
[10]   Testimony of Assistant Secretary of State John Kelley and Assistant
Secretary of Defense Henry Rowen before the Europe and Middle East Subcomm.
of the House Comm. on Foreign Affairs, Federal News Service, June 26, 1991,
at 151, available in LEXIS, News Library, Fednew File, cited in Lobel &
Ratner, supra note 7 at n. 61.  See also, Marack Goulding, Remarks, 91 ASIL
Proc. 132, 157-58 (1997).
[11] UN Charter, art. 51.
[12] For more on preemptive force, see Frederic Kirgis, Pre-emptive Action
to Forestall Terrorism, ASIL Insights (June 2002), available at
http://www.asil.org/insights/insigh88.htm
; see also Mary Ellen O'Connell,
The Myth of Preemptive Self-Defense, available at
http://www.asil.org/taskforce/oconnell.pdf

 By Mary Ellen O'Connell
Viste le ca***te scritte nel precedente articolo la sua credibilita' ora
e' pari a zero.
-Stefano