|
Among the resolutions noted above in Section III, the one that authorized the use of military force in the Gulf War was the November Resolution (678).[19] As noted above, paragraph 2 of that resolution reads as follows:
2. [The Security Council, acting under Chapter VII of the Charter] . . . authorizes Member States cooperating with the Government of Kuwait unless Iraq on or before 15 January 1991 fully implements as set forth in paragraph 1 above the foregoing resolutions 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. The Gulf War came to an end with a cease-fire in May 1991. An examination of the terms of the cease-fire leads to the conclusion that, with one possible exception, the authority for military action given by the November Resolution (678) terminated when the cease-fire took effect. The terms of the cease-fire are set forth in the April Resolution (687).[20] They included an arrangement for a demilitarized zone and some very detailed requirements calling for inspection and destruction of Iraq's weapons of mass destruction. (The current controversy between Iraq and the UN centres on these requirements.) The resolution calls for Iraq to agree to all these arrangements, after which a cease-fire will be considered to be in effect. Soon after the April Resolution (687) was adopted, Iraq notified the Secretary-General that it was accepting the resolution in full,[21] and a short while later the Secretary General notified the Security Council that
. . . the conditions established in paragraph 33 of Resolution 687 (1991) have been met and that the formal cease-fire referred to in paragraph 33 of that resolution is therefore effective.[22] A vital component of the cease-fire dealt with the withdrawal from Iraqi territory of the coalition forces. (These are the forces referred to in paragraph 2 of the November Resolution (678) as the forces of the "Member States cooperating with the Government of Kuwait.") Paragraph 6 of the April Resolution (687) sets out the conditions for the withdrawal of these forces:
6. [The Security Council . . . acting under Chapter VII] . . . notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with Resolution 678 (1990) to bring their military presence in Iraq to an end consistent with Resolution 686 (1991);An explanation may be needed of the term "United Nations observer unit" as used in this paragraph. The unit referred to in paragraph 6 is the unit referred to in the previous paragraph (5), which called for the deployment of a multinational unit to monitor activities in the demilitarized zone between Iraq and Kuwait. The Secretary-General later designated this unit as "UNIKOM" (UN Iraq-Kuwait Observation Mission).[23] The conditions referred in paragraph 6 relating to the withdrawal of the coalition forces were met on 9 May 1991 when the Secretary-General reported to the Security Council:
UNIKOM's deployment was completed on 6 May.[24] With the giving of this notice to the Security Council, the effect of paragraph 6 was to terminate the mandate given in the November Resolution (678) to use military force. A Remnant of Authority? It could be argued that paragraph 6 does not completely foreclose all use of military force. The reference to the ending of any "military presence in Iraq" might be taken to mean that the military mandate was still valid to the extent that military force can be used without involving a military presence in Iraq. It is pointed out that the Security Council obviously intended the naval blockade to continue in effect. The blockade was originally authorized in August 1990,[25] shortly before the invasion of Kuwait, for the purpose of enforcing the sanctions imposed by Resolution 660 (1990). Indeed, the reference in paragraph 6 to ending military presence in Iraq would leave this arrangement intact, since naval operations can be conducted without involving a military presence. But it could be argued that, in addition to naval operations, there are other types of military activity that could be undertaken without involving a military presence in Iraq. For instance, could it be said that the launching of missiles from ships or neighbouring countries was possible without involving a military presence on the territory of Iraq? Could the same be said for bombing raids? It may be asked therefore whether the Security Council, while terminating most of the existing mandate for using military force, left intact a remnant of authority broad enough to include not only naval operations but also externally launched missile and bombing attacks. Many would dispute this line of reasoning. Nevertheless, unlike other questions posed in this paper, the question whether the Security Council, in adopting paragraph 6, left a remnant of authority that can still be validly used cannot be answered definitively. It is important to understand, however, that this remnant of authority, if it exists, is a residual part of the authority given by paragraph 2 of the November Resolution (678). It is not based on other resolutions, as is the case with the naval blockade. Accordingly, this residual authority, if it exists, can only be exercised within the parameters of paragraph 2. In other words, any particular military action would be authorized under this residual authority only if its purposes were within those delineated in paragraph 2. An analysis of the purposes contained in paragraph 2 of the November Resolution (678) is presented in Section VII of this paper. The conclusion reached in that section is that the purposes of the operation currently being contemplated are not to be found among the purposes delineated in paragraph 2. Accordingly, the remnant of authority, if it exists, could not be used to justify the operation. The answer to the question posed in the heading of this section must therefore be: most, but not necessarily all, the authority under the November Resolution (678) terminated with the cease-fire; the Security Council left it uncertain as to whether or not military operations involving no military presence on Iraqi territory are permitted, but if they are, they must be for purposes delineated in paragraph 2 of the November Resolution (678). |