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Writing an article forThe Sunday Times 21 April 1991, John Cassidy, David Hughes, James Adams, and Margrette Driscoll, put it in a very striking way: “During an hour long flight from London to Luxemburg on Monday April 8, Major decided to take the initiative and the biggest gamble of his political career. He was on his way to the emergency summit of the EC leaders... With the support of Douglas Hogg, Foreign Minister, he decided that bold action was essential if a catastrophe was to be avoided. The Prime Minister decided to ask it...By the time By the time the plane touched down in Luxemburg, Major was ready to run with a plan... LaterMajor and Bush discussed the issue and agreed to proceed with the plan, under the existing UN authority.” For further details seeThe Guardian, 9 April 1991.
SeeThe Guardian, 9 April 1991.
SeeThe Guardian, 9 April 199, where the Secretary General was quoted as saying that: “It would raise the problem of Iraq's Sovereignty and I don't know if we can impose on Iraq's special area...” SeeThe Guardian, 17 April 1991, page 1. Similar opinions have been entertained by the members of the Security Council, such as China, and the USSR. Their representatives to the Security Council were reported to have told that the establishment of a ‘Safety Zone’ touches upon the sovereignty of a Country. In Moscow, Foreign Ministry spokesman Vitaley Churkin said “the Soviet Union had reservations about Security Shelters that would take away part of Iraq's sovereignty without the agreement of Iraq”.
SeeThe Guardian, 29 April 1991 under the headline: “Allied extends Haven Zone”, which says: “Some EC governments believe that the existing UN resolution 688 provides sufficient cover for both the present use of Western Military Forces to protect the Kurds and for any use of UN backed forces.”
SeeThe Guardian, 11 April 1991.
SeeThe Guardian, 12 April 1991.
SeeThe Sunday Times, 3 March 1991 where it reports: “The Bush Administration's strategy with the British and French Governments in recent days is based on maintaining many current sanctions against Iraq. The aim is to persuade Iraqis that they will be unable to rebuild their country while Sadam remains in power.” Really their intention was to get rid of Sadam.
SeeThe Guardian 18 April 1991, p.1, under the headline: “US spearheads Kurds mission”, where it says: “The first American troops landed by helicopter in Northern Iraq yesterday as US officials warned Iraq's diplomats at the Un and in Washington Against Baghdad's forces interfering in the biggestInternational humanitarian efforts ever mounted. US and the allied aircraft based in Turkey began flying combat patrol over the area while US army survey units on the ground were selecting the site for the refugees... The 12,000 US and Allied Troops to be deployed inside Iraq will be under the NATO based US European Command.” Instead of operating under the UN flag this time west block has decided to command its forces under the NATO leadership in the contravention of procedure laid down in Chapter VII of the Charter of the United Nations. This will be discussed later.
SeeThe Guardian, 20 April 1991, p.10.
SeeThe Independent, 25 April 1991 under the headline: “Armed Iraqis given deadline to quit Zakho” and it says: “Allied forces occupying Zakho have given Iraq's armed policemen until Friday morning to leave the city. The deadline confirmed by the Senior British Military Sources.” SeeThe Guardian, 29 April 1991.
SeeThe Independent, 24 April 1991. Leonard Doyle reports from New York: “Zakho being run by the US military. Equally the UN leadership does not want to send blue helmet peacekeeping forces without a formal Iraqi request and a Security Council's resolution... Britain is not hiding its displeasure at the slow UN response to the crisis. Lynda Chalker, the Minister for Overseas Development, told the House of Commons on Tuesday that Britain has experienced some difficulty in getting the leadership of the UN to understand the urgency of the situation...”
SeeThe Independent, 26 April 1991, under the headline: “UN reluctant over armed peace-keepers.”
SeeThe Independent, 26 April 1991, under the headline: “It is not good being sceptical now.” It says: “The Kurdish representatives have seen their displeasure at American intervention in Kurdish-Iraq disputes...”
SeeThe Guardian, 1 May 1991, under the headline: “Major hurries UN over Kurds.”
SeeThe Guardian, 2 May 1991.
See for an exampleThe Sunday Times, 24 February 1991, p.1, under the headline: “2 AM — Land War Was Begun”: “Just 38 days after the outset of war Bush has agreed the timing of the attack with key allies including John Major.”
SeeThe Guardian, 2 May 1991.
SeeThe Guardian, 11 May 1991, under the headline: “Allies Insist Iraq Admits UN Police” for further details.
See Professor Eiichi Fakatsu, “Coercion and the Theory of Sanctions in International Law”, inThe Structure and Process of International Law, ed. R. St.J. MacDonald and D.M. Johnston, Nijhoff, 1986, 1187.
“...Resort to war is the right of every state. In the opinion of Vattel, war and the condition in which nations prosecute their rights by force...” Definition of this type clearly illustrate the prevailing attitude towards war that existed at the end of the eighteenth century and throughout the nineteenth century. See for further details D.W. Greig,International Law, Butterworths, 1976, 2nd ed., 867–868. See W.H. Briggs,The Law of Nations, Appleton-Century-Crofts Inc., 1966, 2nd ed., 957–958, ch. XII.
See Professor D'Amato's article, entitled “The Panama Invasion was a Lawful Response to Tyranny”, 84/2American Journal of International Law (April 1990), 516. Professor D'Amato appeared to have entertained similar opinions to that of the “Bellum Justum Theory”.
See MacDonald and Johnston,supra n.22 at 1199. Fakatsu,supra n.22 at 1199, says: “Bellum Justum theory” goes back to Grotius...
See M.N. Shaw,International Law, Grotius Publications, 1986, 2nd. ed., 539–541: “This doctrine of the Just War arose as a consequence of the Christianisation of the Roman Empire and the ensuing abandonment by Christians of their pacifism.”
“Territorial Sovereignty extends principally over Land Territory. Territorial sea, appurtenant to the land and the seabed and subsoil of the international sea... In brief, sovereignty is Legal Shorthand for legal personality of a certain kind of state land... The legal competence of a state include considerable liabilities in respect of internal organization and disposal of territory.” See Ian Brownlie,Principles of Public International Law, Oxford University Press, 3rd ed., 1979, 109–110.
See G.I. Tunkin,Theory of International Law, George Allen & Unwin, 1974, ch. XV, 345–346, 347–348. In this article he has analysed the principle ofEquality of States and says, in reality, that there is no such principle. The question of the application of the principle of equality of States within contemporary International Organisation is theoretically and practically more complex. In approaching the questions formally some bourgeois jurists come to maintain that sovereign equality in general is not compatible with the nature of contemporary international organisation... Thus Professor G. Scelle, citing Article 2:1 of the Chapter of the United Nations which says that the organisation is based on the principle of the sovereign equality of all its members, wrote that philosophically this is impossible, false and hypocritical. See for further details MacDonald and Johnston,supra n.22 at 453–477.
It appears that the USA was hesitant to follow the principles advocated by the rest of the world. SeeAmerican Congressional Records 8777 (1919) and Michael J. Glennon, “Gulf Crisis”, 85/1American Journal of International Law (1991), 75. In the Congress Debate in 1919, Senator Henry Cabot Lodge, the leader of the Senate opposing the League proposed a reservation to the covenant and stated: “The United States assumes no obligation to preserve the territorial integrity or political independence of any other country or to interfere in controversies between nations whether members of the League or not...” See also Greig,supra n.23 at ch. XVI, 869, and Article One of theKellog-Brian Pact. See also I. Diacony, “Peaceful Settlement of Disputes between States”, in MacDonald and Johnston,supra n.22 at 1097. This article has looked into details of the principle of peaceful settlement of disputes amongst states. Dr. Ian Diacony, a Rumanian International Jurist, writes as follows: “The first instrument to provide for a general obligation to settle all international disputes by peaceful means at multilateral level was the Declaration adopted by the Assembly of the League of Nations on 24 September 1927.” This declaration, popularly known asBrian-Kellog Pact of 1928, lays down the principle that the high contracting parties agreed that the settlement of any disputes or conflicts of whatever nature or origin that might arise between them should be sought only by peaceful means. Similar provisions to those of the General Act of 1928 were adopted by the American States in two agreements concluded in Washington on January 5, 1928:The General Inter American Arbitration Treaty and theInter American Convention on Conciliation. See also regional pacts similar to that of such as the Covenant of the League of Arab States of 1945, The Act of Chapultepec of 1945, The Bogota Pact of 1948, The Charter of the Organisation of African Unity of 1963, The Final Act of the Conference on Security and Co-Operation in Europe of 1975. See for further details, pp.1097–1098,ibid.
See J.G. Starke,Introduction to International Law, IX Edition, Butterworths, 1984, 492: “As successor to the League of Nations, the United Nations Organisation created in 1945 has taken over the bulk of the responsibility for adjusting International disputes. One of the fundamental objects of the organisation is the peaceful settlement of differences between States. Members of the organisation have undertaken to settle their disputes by peaceful means and to refrain from treat of war or the use of force.”
See Article 2:1 of the Charter of the United Nations and Antonio Cassese,International Law in a Divided World, Oxford University Press, 1986, p.129, where the principle of sovereign equality is stated as: “First, States are juridically equal,second, each state enjoys the rights inherent in full sovereignty andthird, personality of the state in respect as well as its territorial integrity and political independence andfourth, element is that state should under international order, comply faithfully with their international duties and obligations.” These four elements were considered by the draftsman as a basis for international relations between member states and between the organisation and these states. See UNCIO VI, 69. See Article 2:1 of the Charter of the United Nations. It articulates the principle as such: 2:1 “The organisation is based on the principle of the sovereign equality of all its members”. See for further details, Starke,supra n.30 at 492–494.
SeeGeneral Assembly Resolution on the Definition of Agression, Resolution 3314 (XXIX) 1974, GAOR 29 Session, Suppl. 21:69, AJIL 480 [1975]. Article 1 of this resolution says: “Aggression is the use of armed forces by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations.” See Article 2 and 3, for further details see D.J. Harris,Cases and Materials on International Law, Sweet & Maxwell, 1979, 677, 678, 679; Starke,supra n.30 at 511.
See General Treaty for the Renunciation of War 1928 and Harris,supra n.32 at 639, where he writes: “The Treaty has never been terminated. For practical purposes it has been superseded by Article 2:4 of the United Nations Charter.” See also Report of the 38th Conference of the International Law Association, Budapest (1934): “A signatory state which threatens to resort to armed force for the solution of an International dispute, or conflict is guilty of violation of the pact.”
See Cassese,supra n.31 at 129–130: “On close consideration it turns out to be the first of all the principle typical of Westphalia model, that is of the old pattern of International legal order... and formally acknowledges and endorses the claim that all states, regardless of their actual stature, ought to be treated as equal. It embraces two logically distinct notions such as sovereignty and legal equality.”
See Article 5:2, Resolution on the Definition of Aggression 1974, General Assembly Resolution 3314 (XXXIX) GAOR 29th session, supp. 25, AJIL, 480 (1975). The enumeration of specific acts of aggression was made in Article 3. They were subject to and in accordance with the provisions of Article 2, qualified as an act of aggression. Article 3 covers: (a) The invasion or attack by the armed forces of a state of the territory of another state or any military occupation, however temporary, resulting from such invasion or attack; (b) Bombardment by the armed forces of a state against the territory of another state or use of any weapons by a state against the territory of another state; (c) The blockade of the ports or coast of a state by the armed forces of another state. (d) The sending by or on behaslf of a state of armed bands, groups, irregulars or mercenaries which carry out acts of armed forces against another state. See Greig,supra n.23 at 874–875. See for detailed discussionsYear Book of the United Nations, United Nations Publications, 1974, 846, 848, 36.
See Article 5:2 of Resolution 3314 (XXIX) [Resolution on the Definition of Aggression — General Assembly Resolution — 1974].
See for detailed discussion Rifat Ahmed,International Aggression, Almquist and Wiksell International, 1979, 105–277; Harris,supra n.32 at Ch. XI. See also Starke,supra n.30 at 512, Article 5:3 of the Resolution on the Definition of Aggression, 1974, General Assembly Resolution 3314 (XXIX).
See Corfu Channel Case, ICJ Reports 1949.
See Starke,supra n.30, on whether ‘Force’ includes political, economic and other forms of pressure or coercion or use of irregular forces. See Article 2:3 and 2:4 of the Charter of the United Nations and Ch. XI of the Charter of United Nations.
SeeDeclaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty and General Assembly Resolution, 2131 (XX) GAOR 20th Session: “Resolution was adopted by 109 to 0 with 1 Abstention. The one abstaining state was the UK which accepted the fundamental propositions set out in the resolution, but object to the manner in which the resolution was adopted.” See for further details Harris,supra n.32 at 670.
SeeThe Guardian, 11 April 1991.
SeeThe Guardian, 12 April 1991.
See Shaw,supra n.26 at 568.
See Starke,supra n.30 at ch.18.
SeeThe Guardian, 9 April 1991.
See Starke,supra n.30 at 98.
SeeThe Guardian, 9 April 1991: “Iraq told force may be used to set up enclave... The proposal was put to an EC summit in Luxemburg by John Major who said that the enclave should be imposed by force if Sadam Hussein rejected it.” Compare this statement with Articles 1 and 2 of “The Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty.”
See Harris,supra n.32 at 671.
See Greig,supra n.23 at 876, and ch. VII of the Charter of the United Nations.
See MacDonald and Johnston,supra n.22 at 1188.
See Harris,supra n.32 at 682–687.
See Article 41 of the United Nations Charter. Compare it with Article 16 of the League of Nations. Article 16 of the Covenant provided for economic sanctions to be applied to a recalcitrant state or states, severance of all trade or financial relations. Prohibition of all intercourse and prevention of all finance, commercial or personal intercourse if necessary military measures could be used to implement economic measures. See Fakatsu's Article,supra n.22 at 1193–1154.
SeeThe Guardian, 12 April 1991, p.8.
Ibid.
This policy has been mentioned by critics as USA's “New World Order” under President Bush. See Cassese,supra n.31 at 217: “...the adherence of the US to the Monroe Doctrine may force the US however reluctantly, in flagrant cases of such wrong doing or importance, to the exercise of inter-national police power.”
SeeThe Guardian, 29 April 1991. President Bush was quoted in following terms: “I will tell you what the most important thing is that is to get Sadam Hussein out of there.” The report goes on: “...some EC governments believe that the existing UN Resolution 688 of 1991 provide sufficient cover for both the present use of western military forces to...” SeeThe Guardian, 4 May 1991. British Premier John Major was quoted as saying that “I realise this could be a long term commitment. But if we cannot get rid of Sadam Hussein we may...” See also David Fairhall and Hella Pick who have reported under the headline: “Sanctions to stay until end of repression.” Tight sanctions regime against Iraq will be maintained until Baghdad ends its repression of its Kurdish and Shiite population... US and British Officials say that this represents an informal consensus in the UN Security Council. SeeThe Guardian, 5 May 1991: “Britain may be prepared to apply pressure on Iraq to underpin a deal on an informal autonomous region for the Kurds... Douglas Hurd yesterday hinted that sanction could play a part in United Nations Strategy. Appearing before Foreign Affairs Select Committee Hurd reiterated the Governments' view that Iraq could not hope to become a full member of the International Community while Sadam Hussein remains in power.”The Guardian, 11 May 1991, under the headline “Allies insist Iraq admits UN Police”, reports: “Britain and France have also warned that until the Baghdad Government agrees to UN protection for the Kurds, Britain will veto any UN resolutions designed to weaken thesanction regime we have set in power”, Major told the Conservative Party Conference yesterday — 14 May 1991. The Guardian, — Douglas Hurd was quoted as saying that, the purpose of sanction is to create in the minds of Iraqis particularly those in Baghdad, the knowledge that the main obstacle to the future of their country is the present leadership.
See Fakatsu,supra n.22 at 1194.
Ibid., at 1194–1195.
See “UN Police Action in Lieu of War”, 85/1American Journal of International Law, January 1991, 63.
See D'Amato,supra n.24 at 519: “My preference would clearly be in favour of multilateral intervention, such as that of France, Great Britain and Russia in the Graeco-Turkish conflict of 1827. One of the earliest cases of humanitarian intervention.” Professor D'Amato's stance has been severely criticised even by American International Jurists such as Professor P. Nanda, Professor Tom J. Farer. Professor V.P. Nanda,infra n.64 at 502, has severely criticised America's role in Panama as well as the stance adopted by Professor D'Amato. Professor Nanda says, “The US action was in disregard of the pertinent norms and principles of international law on the use of force. The intervention was evidently dictated by political considerations, in disregard of faithful adherence to the existing norms on the use of force. The international community's condemnation of the invasion at the United Nations and the OAS appropriately reflects this concern.” The Panama invasion had been termed by the Bush Administration as “Operation Just Cause”, ibid., at 494, and a statement by President Bush on 3 January 1990 (Office of the Press Secretary, The White House).
See 84/2American Journal of International Law (1990), 519.
But such military interventions and flagrant violations of sovereignty of independent states have been rejected by the UN General Assembly. It is worth remembering, on December 1989 the UN General Assembly criticised the UN intervention of Panama by an overwhelming majority and in strong terms as “a flagrant violation of international law and of the independence, sovereignty and territorial integrity of states.” See General Assembly Res. 44/240, December 29 1989 and 84/2The American Journal of International Law (1990), 499–500: “Organisation of American States (OAS) has criticised America's Invasion of Panama as an intervention which was not warranted by the OAS Charter”. See Greig,supra n.23 at 882–883, and for further details R. Lillich,Humanitarian Invervention and The United Nations, University of Virginia Press, 1973.
See 84/2American Journal of International Law (1990), 523. Professor D'Amato states: “A major customary law development since 1948 was the intervention by the United States in Granada in 1983, and a second one is the Panamanian intervention of 1989, I argued at the time of the Granada intervention that it was a lawful and temporary humanitarian intervention to free the people of Granada from the tyranny of the thugs who have machine gunned their way into power.”
V.P. Nanda, “Validity of United States Intervention in Panama under International Law”, 84/2American Journal of International Law (1990), 494–503.
See L. Oppenheim,International Law, ed. H. Lauterpacht, 8th ed., Longman, 1974, where Oppenheim put it as an authoritative statement as follows: “Intervention is dictatorial intervention by a state in the affairs of another state for the purpose of maintaining or altering the actual condition of things. That intervention is,as a rule, forbidden by International Law, which protects the international personality of states. There is no doubt...” See also Montevideo Convention on the Rights and Duties of States, 1933.
See 84/2American Journal of International Law (1990), 495. See Article 21 of the OAS Charter, which postulates the principle as such. “The American States bind themselves in their international relations not to have recourse to the use of force except in the case of self-defence in accordance with existing treaties or fulfilment thereof.” The Doctrine of Humanitarian Intervention cannot be used to the whims and pleasures of individual countries. See for further detailsNicaragua v.US Judgment of ICJ, ICJ Reports 1984, pp.392.
SeeCorfu Channel Case, 1949 ICJ Rep. 4, 34 andNicaragua v.USA.
See General Assembly Resolution 660, Aug. 2 1990, 661 Aug. 6 1990 and 665. (Those resolutions are confined to Kuwait invasion only.)
See 85/1American Journal of International Law (1991), 65. In this Article Professor M. Frank and Faiza Patel admit the significant role of the Security Council in the implementation of the world peace. This paramount obligation cannot be grabbed by any states. They write: “The delegates to the San Francisco Conference recognised that the enforcement provisions of Ch. VII of the UN Charter provided the teeth of the United Nations. The Committee considering its military enforcement measures adopted Article 42 unanimously. In so doing delegates intended to give the Security Council the power, when diplomatic, economic or other measures are considered by the Council to be inadequate, to undertake such aerial, naval, or other operations.”
Since the protection of Human Rights is the most accepted aim of the UN Charter the UN has power to intervene in domestic affairs of member states in which there are repetition of severe breaches of individual Human Rights. In approving this notion Oppenheim says that “the provision in question does not exclude action, short of dictatorial interference, undertaken with a view to implementing the purposes of the Charter”. Thus with regard to the protection of Human Rights and freedoms. Oppenheim,supra n.65 at 320.
See 85/1American Journal of International Law (1991), 65.
See 85/1American Journal of International Law (1991), 65, 66–69.
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Welhengama, G. New Developments of International Law through the second phase of the Gulf Crisis—An analysis. Liverpool Law Rev 13, 115–137 (1991). https://doi.org/10.1007/BF01079902
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DOI: https://doi.org/10.1007/BF01079902