Justification for Unilateral Action in Response to the Iraqi Threat: A Critical Analysis of Operation Desert Fox

• Author: Captain Sean M. Condron
• Pages: 03

1999] OPERATION DESERT FOX 115

JUSTIFICATION FOR UNILATERAL ACTION IN RESPONSE TO THE IRAQI THREAT:

A CRITICAL ANALYSIS OF OPERATION DESERT FOX

CAPTAIN SEAN M. CONDRON1

I. Introduction

On 16 December 1998, the United States and Great Britain began a four-day air campaign against Iraq.2 The operation, code named Desert Fox, was the most robust military action against Iraq since the end of the Persian Gulf War in 1991.3 The confrontation was a result of Iraq's failure to comply with United Nations resolutions.4 Although there was a consensus in the international community that the President of Iraq, Saddam Hussein, violated United Nations resolutions, there was not a consensus as to whether the United States and Great Britain would be justified in resorting

to military action to enforce the United Nations resolutions.5 In fact, of the five permanent Security Council members, only the United States and Great Britain favored military action.6 Russia, France, and China were vocally opposed to any military action.7

This article addresses the legality of Operation Desert Fox in the context of the international legal system. The United Nations Charter, to which all parties involved in this conflict are signatories, prohibits the use of force except under two narrow exceptions. Part II of this article describes the events that resulted in American and British air strikes. Part III explains the international law as it pertains to the situation. Parts IV, V, and VI explain the theories for justification based on anticipatory self-defense, reprisal, and material breach of Resolution 687, respectively. Finally, this article concludes with a discussion about the legality of the United States attack on Iraq. The first step in the analysis, however, is to understand the crisis and the events that lead the Clinton administration to believe military force was the best solution to deal with the Iraqi government.

II. Crisis Development

A. Persian Gulf War

The road leading up to this confrontation spanned nearly eight years of conflict between Iraq and the international community. On 2 August 1990, the Iraqi Army, at the direction of Saddam Hussein, invaded the neighboring state of Kuwait.8 The invasion of Kuwait was a direct result of a long-running dispute over the sovereignty of Kuwait.9 Iraq made several additional claims: Kuwait illegally removed $2.4 billion worth of Iraqi crude oil by "slant drilling" into the Rumaila oil field; Kuwait ill

gally occupied the islands of Warba, Bubiyan, and Failaka in the Persian Gulf, blocking Iraqi access to the Gulf; and the Organization of Petroleum Exporting Countries (OPEC) breached export quotas.10

Although the invasion caught the international community off guard, the condemnation rapidly followed. Within a few hours of the Iraqi invasion, the United Nations Security Council adopted Resolution 660 in which it condemned the invasion and demanded an immediate withdrawal of Iraqi forces from Kuwait.11 Over the course of the next four months, the international community, through the conduit of the United Nations, diplomatically attempted to force an Iraqi withdrawal from Kuwait.12 During this time, the Security Council adopted ever more forceful resolutions to back up this diplomatic effort.13 Finally on 29 November 1990, the Security Council adopted Resolution 678.14 This resolution authorized member states "to use all necessary means to uphold and implement Resolution 660 (1990) and all subsequent resolutions and to restore international peace and security to the area."15 This resolution would become effective after

15 January 1991, if continued diplomatic efforts failed to force Iraq out of Kuwait.16 Following Resolution 678, diplomatic efforts continued up until the night of 15 January 1991, but the international community failed to achieve a diplomatic solution to the standoff.17

On 16 January 1991, the coalition arrayed against Iraq launched an aerial bombardment and, on 24 February 1991, ground maneuvers began.18 In one of the most overwhelming military defeats in history, the

coalition forcefully removed Iraq from Kuwait.19 On 27 February 1991, Saddam Hussein agreed to abide by all Security Council resolutions including the demand to remove all Iraqi forces from Kuwait and rescind all Iraqi claims to the territory of Kuwait.20

B. Cease-Fire Agreement

On 2 March 1991, the Security Council passed Resolution 686.21

This resolution was a provisional agreement to end the hostilities between Iraq and the coalition.22 Under Resolution 686, all twelve of the previous Security Council resolutions pertaining to the Iraqi crisis remained in full effect.23

Resolution 686 provided an opportunity for the Security Council to draft and to pass the formal cease-fire agreement, Resolution 687.24 The Security Council passed Resolution 687 on 3 April 1991, officially ending

the hostilities in the Gulf and returning Kuwait to the free and sovereign status it held before Iraq's invasion.25 This resolution was a very detailed document delineating steps Iraq had to take to restore Kuwait's freedom and ensure long-term peace and security in the region.

As part of this resolution, the Security Council required Iraq to dis-mantle and to destroy all weapons of mass destruction (WMD) in its arsenal and the means by which Iraq could deliver those weapons.26 This measure sought to dismantle Iraq's nuclear, biological, and chemical weapons program, as well as a large part of the Iraqi missile capability. To ensure compliance with this portion of the resolution, the Security Council established the United Nations Special Commission (UNSCOM) to inspect and to verify progress towards destruction of the weapon systems.27 This special commission was to work in coordination with an action team from the International Atomic Energy Agency (IAEA),28

which would inspect and verify the nuclear capability of the Iraqi infrastructure.29 Paragraph 8 of Resolution 687 specifically states:

Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of:

(a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities related thereto;

(b) All ballistic missiles with a range greater than one hundred and fifty kilometers, and related major parts and repair production facilities.30

Paragraph 12 goes on to state that Iraq shall unconditionally agree "to place all of its nuclear-weapons-usable materials under the exclusive control, for custody and removal, of the International Atomic Energy Agency,

with the assistance and cooperation of the Special Commission."31 In an exchange of letters, the UNSCOM leadership and the Iraqis established the specific process by which UNSCOM would conduct these inspections. During this exchange, Iraq agreed to "[u]nrestricted freedom of movement without advance notice within Iraq of the personnel of the Special Commission and its equipment and means of transport."32 For nearly eight years, UNSCOM, to the best of its ability, carried out the requirements under the resolution.

As early as June 1991, Iraq attempted to impede the access of UNSCOM inspections.33 That month, Iraq sought to deny an IAEA team access to certain locations on three separate occasions.34 On the third occasion, the IAEA team attempted to block the departure of some vehicles leaving the compound in an effort to inspect the vehicles for illegal material. The Iraqis denied access to the vehicles and fired automatic weapons over the heads of the inspectors to warn them against approaching the vehicles.35 This was just the beginning of a series of confrontations between UNSCOM and the Iraqi government.

Over the succeeding seven and a half years, the Iraqi government denied UNSCOM inspectors access to suspected weapon sites on innumerable occasions.36 The Security Council adopted one resolution finding Iraq in material breach of Resolution 687 as it pertains to the inspection and verification of WMD.37 The Security Council adopted six other resolutions concerning Iraqi violations of Resolution 687, in one case deploring and in the others, condemning the actions of the Iraqi government.38

In the fall of 1997, there was a serious confrontation between the international community and Iraq over the continued inspections of

UNSCOM within Iraq. Iraq claimed the UNSCOM inspection teams were biased in their composition because the teams included too many westerners and were not representative of the international community.39 On 29 October 1997, Iraq expelled the American members of the inspection teams.40 Richard Butler, the head of UNSCOM, removed the remaining teams from Iraq in protest of this American expulsion.41 The United States made explicit threats to use military action to force Iraqi compliance with Resolution 687.42 A Russian diplomatic mission managed to extinguish the crisis by coercing Iraq to grant authorization allowing American inspectors to return to Iraq.43

Shortly thereafter, another confrontation flared over Iraq's denial of unfettered access to all sites within its territory. In December 1997, Iraq declared certain "presidential palaces" off limits to the UNSCOM inspection teams who sought access to conduct inspections.44 Although inspections continued at other sites around the country, UNSCOM and the United States suspected Iraq was hiding WMD, and the material to build those weapons, in these presidential palaces. In a statement, Richard Butler explained that it was impossible for UNSCOM to successfully verify full implementation of Resolution 687 without access to these sites and full Iraqi cooperation.45

The United States and Great Britain began a military buildup in the region as a means to force strict compliance by Iraq.46 Several sources

including Russia, France, and the Arab League launched diplomatic efforts.47 It was not until a...