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The Gulf crisis, international law, and American foreign policy.

When Iraq invaded Kuwait on August 2, 1990, the world community - led by the United States in the United Nations - swiftly and with surprising unanimity condemned Iraq's action. Several factors combined to make possible this near-global accord. Communist regimes had collapsed in Eastern Europe. The Cold War had faded. And relations between the Superpowers had improved across a broad spectrum of diplomatic and military areas.

Relative agreement over the course of action, however, didn't mean lack of debate. In this country, political debate was vigorous and pervasive. Montanans certainly contributed their opinion. And their share: An estimated 4,000 Montanans served in the Persian Gulf, two of whom were killed.

But the Gulf War's big surprise is neither the failure of international law to prevent invasion in the first place, nor the subsequent political debate. The surprise is that international legal mechanisms were so effectively relied on to confront the crisis. Indeed, the use of such mechanisms was historic. The U.N. Charter Violations

Increased Superpower cooperation was certainly evident in the U.N. Security Council's response to the Iraqi invasion. The council consists of five permanent members: United States, United Kingdom, France, Soviet Union, China. During the crisis, the council's ten non-permanent rotating members included Canada, Finland, Romania, Colombia, Zaire, Ethiopia, Ivory Coast, Malaysia, Cuba, and Yemen. In the past, the council frequently has been deadlocked by permanent-member vetos - a maneuver often linked to Cold War tensions.

Iraq's motives for invading and attempting to annex Kuwait remain a matter of dispute. Some suggest unsettled territorial claims were at the root of Iraq's actions. Others point to disagreements over oil-pricing policies, Iraqi greed for Kuwait's rich oil fields, or the megalomania of Saddam Hussein. Perhaps Iraq, a client state of the Soviet Union, had anticipated another Security Council deadlock when it moved against Kuwait.

Specifically, how did Saddam violate the U.N. Charter? Article 2, section 4 of the U.N. Charter calls upon members to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . ."

Chapter VII of the Charter provides for Security Council action "with respect to threats to the peace, breaches of the peace, and acts of aggression." It also allows the council to call for economic and other sanctions short of armed force. U.N. members bind themselves under Article 25 of the Charter to "accept and carry out the decisions of the Security Council . . ."

Accordingly, on August 2, 1990, the day Saddam's troops crossed into Kuwait, the Security Council voted to condemn the invasion as a "breach of the peace," and to demand Iraq's immediate withdrawal. Yemen abstained, but Resolution 660 passed by a vote of 14-to-0. Iraqi failure to comply with Resolution 660 provoked another Security Council vote on August 6 to impose sanctions against Iraq (13-to-0, Cuba and Yemen abstaining). Further, a unanimous Security Council resolution (15-to-0) on August 9 proclaimed that Iraq's annexation of Kuwait had "no legal validity" and was "declared null and void" under international law.

Violations of the Vienna and Geneva Conventions

While Security Council resolutions expanded, the Iraqi regime undertook more ominous actions: It demanded that all foreign embassies in Kuwait be closed; that all diplomatic personnel be transferred to Baghdad; that those who did not comply be stripped of diplomatic immunity; that foreign nationals be detained; and finally, that foreign detainees (called "guests" by Iraq and "hostages" by others) be relocated to potential bomb targets, and thereby provide a shield against attack.

Iraq intended to make Baghdad the new capital of Kuwait, which was subsequently designated a new 19th province" of Iraq. Many countries, mindful of the Security Council resolutions, refused to close their embassies in Kuwait, lest they be seen as legitimizing Iraq's claim to Kuwait.

International law is quite clear - in the 1961 Vienna Convention on Diplomatic Relations, for example, to which Iraq is a signatory - regarding the inviolability of embassies and the protection of diplomatic personnel even in time of war. In peacetime, civilian aliens traveling or residing in a foreign state have no privileged status such as that accorded diplomatic personnel. But the norms of international law require treatment for aliens that is fair and equal to that accorded local nationals.

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Iraq is a signatory) provides extensive guidelines concerning the protection of civilians caught in a war zone. Initially signed in Geneva on August 12, 1949, the document went into force October 21, 1950. It covers such matters as facilitated departure, hostage taking, propagandizing, religious freedom, forced labor, and detention in an area particularly exposed to the dangers of war.

In Resolution 674 of October 29, 1990, the Security Council demanded that Iraqi authorities comply with the Vienna and Geneva conventions and "immediately cease and desist from taking third-state nationals hostage, and mistreating and oppressing Kuwaiti and third-state nationals." The Resolution invited states to "collate substantiated information" concerning Iraqi violations and reminded Iraq "that under international law it is liable for any loss, damage or injury in regard to Kuwait and third states, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq."

Further, the Geneva Convention Relative to the Treatment of Prisoners of War (1949), to which Iraq is also a signatory, requires humane treatment of prisoners of war, who "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."

The Threat of War Crime Trials

While violations of the laws of war are numerous enough, victorious powers in any conflict may demand an accounting. Even early on in the Gulf War (also known as Operation Desert Storm) there were calls for a Nuremberg-style trial of Iraqi leaders. Such calls were likely one reason Iraq stopped parading captured U.N. coalition pilots before television cameras. No doubt the worldwide impact of modem television provoked a negative reaction against Iraq. With the United Nations standing against it, Iraq would seem ill-positioned for a defense of any war crimes against Kuwait.

Iraq could be held accountable not only for war crimes against persons and states, but also for war crimes against nature. Some have called for trials based on the ecological disaster caused by Saddam's dumping oil into the Gulf and setting fire to Kuwaiti oil fields. More likely, the Iraqi government will simply be presented with international claims for damage.

On the Record: The Case for U.N. Military Action

As noted above, the U. N. Security Council began passing a series of resolutions even before Operation Desert Storm arrived in the Gulf. The resolutions had several purposes: To dissuade Iraq from further adventurism; to encourage a retreat from previous policies; and to make official the world's sense of current legal norms.

On August 18, 1990, the U.N. Security Council voted 15-to-0 (Resolution 664) to demand that Iraq free all detained foreigners. Thousands of foreigners from many nations were in Iraq and Kuwait at the time of the invasion. Resolution 664 also implicitly warned of military action should foreigners not be released.

The U.N. Charter provides for such an eventuality. According to Article 42 of the Charter:

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Further, Article 43(1) of the Charter provides:

All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

Resolution 665 passed the Security Council on August 25, 1990 (13-to-0, Cuba and Yemen abstaining). It gave U.N. members the right to enforce the embargo against Iraq with naval power. By September 25, 1990, sanctions were widened to include all means of transport, including air traffic in and out of Iraq (Resolution 670). Two months later in Resolution 678, the Security Council gave Iraq until January 15, 1991, to comply with the terms of its original Resolution 660 or it would authorize U.N. members to "use all necessary means" to implement Resolution 660.

Iraq did not comply, and Operation Desert Storm unfolded. Following the U.N. deadline, a wide coalition of U.N. forces pounded Iraq into humiliating compliance with the U.N. mandates. Of broader significance for Americans than the so-called "100-hours war," however, are the implications for U.S. foreign policy and the lessons of international law.

U.S. Foreign Policy Implications

Basically, U.S. foreign policy faced two issues in the Persian Gulf Crisis: 1) domestic U.S. law, especially as it relates to "war powers"; and 2) the quagmire of political problems the United States marched into when it decided to become involved in Mideast affairs.

Interestingly, the legal issues confronting the United States were domestic and not international. The United Nations authorized the use of force against Iraq unless it withdrew from Kuwait by January 15, 1991. The Bush administration supported, and indeed was a key molder of that U.N. stance. So U.S. policy was in tune with international law. The U.S. Congress, however, was "not necessarily" in support of the president's policy.

At the heart of the matter was an enduring U.S. constitutional dispute over which branch of government - Congress or the president - has the power to involve the nation's armed forces in a conflict. One side argues that Article I of the U.S. Constitution gives the war power" to Congress. Successive U.S. presidents, on the other hand, have pointed to Article II, which makes the president "commander-in-chief" of the armed forces; they argue against "tying the president's hands" in the rapidly-moving arena of international relations.

This particular constitutional squabble may go on indefinitely, but it was neatly sidestepped during the Gulf Crisis. Perhaps convinced by the argument that a united front was, in the words of Republican Senator Robert Dole, the last "best chance for peace," the 102nd Congress moved, after spirited debate, to support the president. The House voted 250-to-183, and the Senate 52-to-47, to adopt resolutions authorizing the president to use military force against Iraq after January 15, 1991.

The political quagmire of Mideast politics involves a debate among observers of U.S. foreign policy and specialists in Mid-eastern affairs that, like the U.S. constitutional debate over war powers, may go on indefinitely. The central issue probably concerns U.S. intervention: Can the United States be a positive force in the Gulf, helping to support international law? Or is the United States stumbling into a hotbed of ancient quarrels with little understanding of the explosive forces at work there, more likely to de-stabilize the few agents of order that do exist than to "make things right?"

Optimists suggest U.S. intervention could yield a number of positive outcomes. These include reining-in "neighborhood bullies" such as Saddam Hussein; renewed hopes for a Mideast peace process involving Israel and its Arab neighbors; new diplomatic ties between the United States and Syria and Iran, perhaps leading to the U.S. hostages held in Lebanon; new Big Power cooperation, perhaps including military disarmament, economic cooperation and a revived U.N.; and the chance that democratic values might take root (e.g., in a liberated Kuwait).

The list of negative possibilities is compelling too: exacerbation of Arab-Israeli tensions; a fresh wave of religious, ethnic, and national hatreds; de-stabilization of cultures and governments (ranging from "uppity" women demanding the fight to drive automobiles, to royal families and citizens fighting over "monarchy v. democracy"); and increased competition for influence in the area.

One thing about quagmires - once you're in, it's difficult to get out. The United States seems to have a reputation for effectively prosecuting wars, then stumbling during the peace process that follows. Iraq's army is out of Kuwait, but Saddam Hussein still governs the Iraqi people. Moreover, Iraq's large Kurdish minority - in a problem apparently unanticipated - continues to be displaced and threatened.

But is It A Precedent?

It's probably premature to draw conclusions about the Gulf War's effect on international law and American foreign policy. But at least two observations suggest themselves, one concerning international politics and the other national policy.

The U.N. Security Council plays a very special role in the maintenance of international peace and security. In many important respects, this role continues a pattern established during the century between the Congress of Vienna (1814-1815) and the beginning of World War I (1914).

This so-called Concert of Europe period began with the defeat of Napoleon. The victorious Big Powers of the day agreed that they had a special responsibility (as Big Powers) to police the neighborhood" and act "in concert" to regulate the flow of international relations and to keep the peace. The Concert of Europe period involved international conferences at irregular intervals wherein the Big Powers would attempt to cooperatively manage international affairs.

The system was logical in that the Big Powers could run the show anyway, thus it was wise to let them do so. But it also had some logic flaws. For instance, what if the Big Powers are irresponsible law-breakers? And what if they fight among themselves? For much of its history the U.N. Security Council (representing "responsible" Big Powers) has not been able to function as intended by those who drafted the Charter - largely because of Big Power disagreement.

Whatever its political merits, the Persian Gulf Crisis has provided an intriguing hint of Security Council prospects for managing international relations. Perhaps the Big Powers can agree on means for "policing the neighborhood."

The use of force in international relations - as with the Gulf Crisis - shows that diplomacy has failed. But the credible, demonstrable prospect of a world community mobilizing force to keep the peace might act as a powerful incentive to engage in more serious diplomacy.

The Persian Gulf Crisis also delivered a clear message about national foreign policy,. In a charged political atmosphere where U.S. motives for involvement in the Gulf Crisis were questioned (e.g.. is the fight really about upholding international law or about securing U.S. oil supplies?). foreign policy positions seemed to fare best when supported by the international community.

As the world grows closer together and more interdependent, increased international consultation and cooperation appear as tidy, vehicles for managing international relations peacefully.

Forest Grieves is chair of the political science department at The University of Montana.

Summary of United Nations Resolutions Concerning Iraq and the Persian Gulf Crisis

Resolution 660 (August 2, 1990)

The Security Council: Alarmed by the invasion of Kuwait on August 2, 1990 by Iraq; Determining that there exists a breach of international peace and security regarding the Iraqi invasion of Kuwait; Acting under Articles 39 and 40 of the U.N. Charter;

1. Condemns the Iraqi invasion of Kuwait.

2. Demands that Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on August 1, 1990.

3. Calls upon Iraq and Kuwait to begin immediately intensive negotiations for the resolution of their differences and supports all efforts in this regard, and especially those of the Arab League.

4. Decides to meet again as necessary to consider further steps to ensure compliance with this resolution.

Resolution 661 (August 6, 1990)

Imposed mandatory sanctions against Iraq for not complying with Resolution 660. Created a Security Council committee to report on the sanctions.

Resolution 662 (August 9, 1990)

Declared the annexation of Kuwait invalid.

Resolution 664 (August 18, 1990)

Demanded the safe passage from Kuwait and Iraq of third-country nationals and demanded that Iraq rescind orders to close diplomatic and consular missions in Kuwait.

Resolution 665 (August 25, 1990)

Called for a naval embargo to support the sanctions.

Resolution 666 (September 13, 1990)

Called for assessing the supply of food in Iraq and Kuwait for humanitarian purposes and noted that Resolution 661 does not relate to medical supplies.

Resolution 667 (September 16, 1990)

Condemned action taken by Iraq against diplomatic missions and personnel in Kuwait.

Resolution 669 (September 24, 1990)

Called on the committee established under Resolution 661 to examine requests for assistance by states under Article 50 of the U.N. Charter.

Resolution 670 (September 25, 1990)

Noted that sanctions imposed against Iraq include all means of transport, including aircraft.

Resolution 674 (October 29, 1990)

Demanded that Iraq stop taking third-country nationals hostage, that it no longer mistreat Kuwaitis, and that it protect diplomatic and consular missions in Kuwait. Also requested that the Secretary General use his offices to achieve those aims.

Resolution 677 (November 28, 1990)

Condemned attempts by Iraq to change the demographic composition of Kuwait and to destroy its civil records and asks the Secretary General to keep a copy of the population registration as of August 1, 1990.

Resolution 678 (November 29, 1990)

Granted a pause of goodwill to allow Iraq a final opportunity to withdraw from Kuwait, while authorizing members states to "use all necessary means" to implement resolution 660 if Iraq has not complied by January 15, 1991.

Resolution 686 (March 2,1991)

Demanded that Baghdad, as a condition for a cease-fire in the Gulf War, return all prisoners of war, abducted Kuwaiti citizens and plundered property; accept liability for war damages and losses to Kuwait, other nations and corporations; rescind its annexation of Kuwait; and disclose the location of mine fields and booby traps.

Resolution 687 (April 3, 1991)

Demanded Iraq formally accept the current borders of Kuwait; surrender all material that can be used to make nuclear and other dangerous weapons; agree to put a portion of its future oil profits toward Kuwaiti reparation payments; renounce terrorism; and accept a ban on imports of weapons as conditions for an end to the Gulf War.

Resolution 688 (April 5, 1991)

Condemned Iraq's oppression of its Kurdish population and other segments of the civilian population and asked the Secretary General to investigate their plight. Tabular Data Omitted
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Title Annotation:includes related article; includes summary of United Nations resolutions concerning Iraq and the Persian Gulf Crisis
Author:Grieves, Forest L.
Publication:Montana Business Quarterly
Date:Sep 22, 1991
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