The Twelfth Waldemar A. Solf Lecture in International Law

• Author: Michael J. Matheson
• Pages: 04

1999] TWELFTH WALDEMAR A. SOLF LECTURE 181

THE TWELFTH WALDEMAR A. SOLF LECTURE IN INTERNATIONAL LAW1

MICHAEL J. MATHESON2

1. Introduction

   You have heard about Wally Solf's career accomplishments. He was indeed a man of many parts and many achievements. When he was a young man, he was a combat soldier in World War II. He spent many years in the practice of military justice. He was a negotiator in the field of the law of war, and played an important role in the negotiation of the Additional Protocols to the 1949 Geneva Conventions.3 Later in life, he became a scholar; he organized many important conferences at American University, and was co-author of the definitive treatise on the Additional Protocols.

   For those of us who had the opportunity to work with Wally, what we remember most is that he was a fine human being. He was a kind, almost grand-fatherly, man. He was a mentor and role model for younger attorneys like myself, and a good friend to all. I am delighted to be able to sit in the Solf Chair this morning and take part in this lecture series. It is a fine way to remember Wally Solf and his contributions to international law.

   I have been invited to speak this morning on a topic of my choice. Since we are now coming to the end of the first decade of the post-Cold War world, I thought it might be interesting to look back at the most important developments that have occurred during this period with respect to international law concerning armed conflict. A decade ago, most of us probably thought we were entering a period of relative peace and faithful observance of humanitarian norms. Instead, we have experienced a period of intense violence and incredible atrocities. The international community-and in particular, the international legal structure-has attempted to respond to these events in different ways, some successful and some not. I think it is useful for us to consider these developments and to assess the areas in which significant advances have been made, either in resolving conflicts or at least in building a framework for future action.

   I would like to focus on three areas this morning: first, international law concerning the resort to armed force; second, international law relating to the conduct of armed conflict; and third, international law on the consequences of armed conflict, particularly the prosecution of war criminals and compensation for war victims.

2. Resort to Armed Force

   During the past decade, there have been several important developments concerning international law on the resort to armed force. First and foremost, the United Nations (UN) Security Council emerged as an effective source of authorization and direction for the use of armed force. Beginning with the Iraqi invasion of Kuwait, and continuing with the situations in Somalia, Bosnia, and Haiti, the Council took a vigorous approach toward the use of armed force to restore and to maintain international peace and security, pursuant to its authority under Chapter VII of the UN Charter. This was, of course, the role intended for the Security Council when the UN system was created, but the Cold War made it impossible to develop consensus among the Permanent Members of the Council, which is a prerequisite for effective action by the Council. However, with the replacement of the Soviet Union on the Council by the Russian Federation,

   the Council was again able to act and did so vigorously under U.S. leadership.

   Second, in carrying out this new role of peace enforcement, the Council came more and more to turn to states and coalitions of states to carry out the military operations it authorized under Chapter VII. In the Gulf War, and in certain critical phases of the Somalia and Haiti operations, it delegated this responsibility to groups of states led by the United States. In one phase of the Rwanda situation, it authorized French forces to act; and in various phases of the Bosnia conflict, it relied on the North Atlantic Treaty Organization (NATO) forces. This meant that the Council exercised less control over critical phases of these situations. It was obvious, however, that national military forces and command structures were much better able to deal with the task of defeating or deterring hostile armed forces than were traditional UN peacekeeping forces.

   Third, during this period the international community showed an increasing willingness to intervene with military forces into internal conflicts and crises. In the cases of Somalia, Rwanda, and Haiti, the Security Council exercised its Chapter VII authority, notwithstanding the internal character of these situations, on the grounds that they threatened the peace and security of their respective regions. In the case of Kosovo, NATO took the further step of armed intervention without Council authorization to deal with an internal humanitarian catastrophe that threatened the security of the Balkan region.

   Fourth, during the 1990s, regional organizations played an increasing role in the use of force, either at the invitation of the Security Council or on their own initiative. For example, NATO has been the main international actor in the use of force in Bosnia and again in Kosovo. The Economic Community of West African States has played a similar role in the conflicts in West Africa.

   With these four basic developments in mind, I would like now to review the main conflict situations of the post-Cold War period.

   1. The Iraqi Invasion of Kuwait

      The Iraqi invasion of Kuwait was in many ways the catalyst for these developments. It was an unambiguous case of aggression by an expansionist state against a weak neighbor, accompanied by a serious threat to

      the economic and political interests of most of the world, together with a campaign of brutal oppression that violated all recognized humanitarian norms. It was the ideal case for action by the international community.

      In fact, the United States and its closest allies could have conducted the entire Gulf War without the authorization of the Security Council, relying entirely on the right of collective self-defense of Kuwait in accordance with Article 51 of the Charter. However, we saw a number of compelling reasons to seek the Council's authorization.

      Action by the Council under Chapter VII provided political cover for many states, which might otherwise have been reluctant to participate in a military operation under the effective command of the United States. It gave clear legal and political blessing for a vigorous military campaign that had as its broad dual objectives the expulsion of Iraqi forces from Kuwait and the restoration of the peace and security of the region.4 It harnessed the authority of the Council to make possible a series of useful multilateral steps in support of the military campaign, such as the trade embargo on Iraq,5 the air and maritime interdiction of Iraqi commerce,6 and the opening of access to the airspace and waters of all states for use by coalition forces.7 For these and other reasons, the United States sought Security Council action at every phase of Operations Desert Shield and Desert Storm, and benefited greatly from the Council's consistent support.

      At the close of military operations, we again found valuable use of the Council's broad Chapter VII authority. The Council's resolutions-and particularly Resolution 687, the "mother of all resolutions"-established, with binding legal force, the terms of the cease-fire and the requirements with which Iraq would have to comply to qualify for the lifting of sanctions. (This in turn provided a legal basis for further military action in the event of Iraqi non-compliance.)

      Further, the Council's resolutions established several regimes that were essential to maintaining peace and security in the region. One was the authoritative delimitation of the Iraq-Kuwait boundary (one of the ostensible causes of the War), together with a demilitarized zone and a UN

      force to patrol it.8 A second was imposing obligations on Iraq to eliminate its weapons of mass destruction and their delivery systems, together with another UN force to monitor and to facilitate compliance with it.9 A third was the creation of an extensive operation to collect Iraqi oil revenues and apply them for the benefit of those suffering injury or loss because of the War.10

      Together, the actions of the Council from the beginning to the end of the Gulf War were by far the most ambitious and comprehensive use by the Council of its Chapter VII authority. It was not self-evident that the Council's authority carried so far, and considerable persuasive effort was needed to convince Members of the Council that these steps were within its authority and were justified under the circumstances. They are, however, an impressive precedent and demonstration of what the Council can do when it has the political will to do so.

   2. Iraq after Desert Storm

      Unfortunately, the Gulf War cease-fire did not end the problems with Iraq. From time to time, over the rest of the decade, it has been necessary for coalition states to use military force in Iraq to enforce the cease-fire and to keep the peace. This use of force has included creating and enforcing no-fly and no-drive zones, air strikes against Iraqi targets, and the brief deployment of forces into northern Iraq after the end of the Gulf War.

      From a legal viewpoint, these deployments fall into three categories. First, were the actions taken by coalition forces in response to Iraqi violations of the terms of the cease-fire established by the Council? These violations included denial of access to UN inspection personnel, retention of weapons of mass destruction or their delivery systems, and violations of the border or the demilitarized zone. On a number of occasions, the Council formally determined that such violations constituted material breaches of the terms of the cease-fire,11 with the unstated understanding that this would justify proportionate armed action by...