The legality of war is tricky business. Given the number of potential hotspots erupting (I’m looking at you North Korea), it might be a good time to look back to when it was last done well: the Iraq war. Not that Iraq war, the one before that- the Persian Gulf War of 1991.
On August 2 1990, Iraq invaded Kuwait. The next day, the UN Security Council passed Resolution 660, demanding Iraq withdraw unconditionally from Kuwait. Several months, and a number of sanctions later, on November 29, the UN Security Council passed Resolution 678. This provides, inter alia:
[Authorization 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.
This Resolution is critical to the legal justification of invasion, but we’ll circle back to this. The above Resolution provided a deadline for Iraq’s withdrawal: January 15, 1991. While Saddam Hussein had been promptly ignoring the Security Council, the US had been circling its proverbial wagons. Then, on the 16th began a US-led extensive air raid began, lasting until 28 February 1991. Okay, so the title of this article was a little misleading. In my defence, the ground offensive (Operation Desert Sabre) commenced on Feb 24, and within 100 hours a ceasefire had been signed.
There is an interesting international law of war vs. just war doctrine conversation to be had. But let’s not get too excited. For now let’s stick to the justification for the use of force. Discussions around the conduct of war (also known as Jus in bello), and the nuances of various other theories in international law I’ll leave for a later date.
If you have been reading previous JusT Cogens blogs, you might have noticed a pattern- international law is often tricky to define, and near impossible to perfectly implement. Broadly, there are two occasions in which a country can use force which can be found in Articles 42 and 51 of the UN Charter. Respectively, they are when the UN Security Council says it can, and secondly, to defend itself when it is being invaded. This is an oversimplified summary of the law, and if you were planning on invading a country, I would recommend still seeing a lawyer.
These laws are known as jus ad bellum– the justification for resorting to armed conflict in the first place. This requires consideration of the domestic legality of committing forces to a foreign land. By definition these considerations change for each state, and so I won’t cover them here, but sufficed to say in the Persian Gulf War the US had committed its force according to its domestic legal requirements.
Underpinning our contemporary international system is the sovereignty of states. Meeting the definition of ‘state’ entitles you to a few perks. Chief among those is that everyone else pretty much has to leave you alone. In theory. If this was a commercial, there would have be a massive asterix at the end of that sentence. This nice little house of cards comes tumbling down when one state decides it likes the look of another state. Historically, no problem- let the two nations have at it, wherever the chips fall. The new legal regime was built out of a desire to eradicate the war that had ravaged the globe for the first half of the twentieth century. The result was an extremely prohibitive system in which the use of force was quarantined to a few very specific instances (Article 2(4) of the UN Charter):
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.
But have no fear trigger happy nations, for the international community rarely reacts militarily to intrusions of sovereignty – indeed, Saddam may well have thought he could have gotten with it. There was pretty good precedence that the international community would largely let this go. He was wrong. For the first clear time, the UN Security Council put its Article 42 to use in Resolution 678, officially sanctioning the use of force in Kuwait against Iraq.
We shouldn’t kid ourselves. This instance of mustering almost unanimous international support, amongst both major and regional powers, was a feat unlikely to soon be repeated. As such, there is a strong tendency to descend into unilateral action; or, at best, non-official multi-national action. Yet, for this reason, in this specific case we should applaud the Bush administration on its efforts in gaining a legal framework, and an international coalition of forces before deploying its own forces.
Bremer Moore is a second-year Business Law and Political Science & International Relations student at UWA whose interests include music, politics, and long romantic walks to the fridge.