It is necessary to consider the argument referred in Section V to the effect that paragraph 6, while terminating the military mandate created under paragraph 2, leaves a remnant of authority whereby military measures are permitted under paragraph 2, provided they do not involve a military presence in Iraq. This line of argument has the advantage of bypassing three of the preliminary hurdles referred to in Section VII (Nos. 1-3), because a remnant of authority would be left intact so that the effect of paragraph 2 would not be eliminated in its entirety. There are three reasons, however, why this remnant of authority, if it exists, cannot be used to justify the military operation currently being contemplated.

Although the operation contemplated appears to involve only externally-launched bombing and missile attacks, which it might be argued, entail no military presence in Iraq, the argument is not convincing because attacks of this nature do involve an invasion of Iraqi territory. Also, even if it were accepted that the proposed attacks can be regarded as involving no military presence in Iraq, the required authorization would still be absent because the purpose of the operation is not covered by paragraph 2, as explained above in paragraphs 5-8 of Section VII. Furthermore, since the purpose of the operation is to achieve compliance with the inspection obligations laid down in the April Resolution (687), it would be prohibited by paragraph 34 of that resolution. This point is explained above in Section VI.

Another argument in favour of the US position that needs to be considered relates to Resolution 686 (1991) which was adopted on 2 March 1991 after most of the hostilities in the Gulf War had ceased. The full text of the resolution appears in Appendix 2.

Paragraph 4 of Resolution 686 (1991) reads as follows:

4. [The Security Council . . . acting under Chapter VII of the Charter] . . . recognizes that during the period required for Iraq to comply with paragraph 2 and 3 above, the provisions of paragraph 2 of Resolution 678 (1990) remain valid;

It will be recalled that paragraph 2 of Resolution 678 (1990) is the one that authorized military action to be taken by the coalition forces during the Gulf War:

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.

Paragraph 4 stipulates that paragraph 2 of the November Resolution 678 remains valid until Iraq has complied with the conditions listed in paragraph 2 and 3 of Resolution 686. As of this writing, performance of several of these conditions is incomplete, including:

the release of Kuwaiti and third country nationals detained by Iraq[27]

the return of all Kuwaiti property[28]

the return of all prisoners of war[29]

An account of the Security Council's efforts to persuade Iraq to comply with these requirements is to be seen in the UN publication: "The United Nations and the Iraq-Kuwait Conflict, 1990-96."[30]

In view of the fact that these requirements (and possibly others) have not been completed, it is clear that paragraph 4 establishes a continuing authority for military action but with a proviso that the action must be within the parameters of paragraph 2 of the November Resolution (678). Accordingly, the purpose of any military action under paragraph 4 must be within the purposes laid out in paragraph 2. Section VI of this paper discusses the purposes contained in paragraph 2 and concludes that they do not cover any of the purposes that have been announced for the proposed military action. Accordingly, Resolution 686 cannot be used to justify the proposed military action.

It might be noted that this conclusion does not emasculate paragraph 4 entirely. It remains in effect notwithstanding the fact that, as explained in Section V, all or most military action is ruled out by the combined effect of paragraph 6 and other parts of the April Resolution (687). Paragraph 4 prevails over paragraph 6 by reason of two clauses in the April Resolution (687):

the words at the end of paragraph 6: ". . . consistent with Resolution 686 (1991)," since these words make it subject to paragraph 4;

and the words of paragraph 1: "The Security Council . . . affirmed all thirteen resolutions noted above [among which is Resolution 686 (1991)], except as expressly changed below to achieve the goals of this resolution, including a formal cease-fire."

Indeed, paragraph 4, since it constitutes an exception to paragraph 6, would allow the use of ground forces on Iraqi territory (unlike the residual authority referred to in Section V which, if it exists, would be confined to using externally launched airborne explosives). Paragraph 4 could be used to authorize a military action provided its purpose is both within the ambit of paragraph 2 and directed at compelling Iraq to comply with the unfulfilled requirements delineated in paragraph 4. It might be possible for both these criteria to be satisfied in the same action. For instance, an action directed at compelling Iraq to surrender persons or property seized during the invasion of Kuwait could be said to be undertaken either for the purpose of implementing Resolution 660 (1990) in the sense of being intended to complete Iraq's withdrawal from Kuwait, or for the purpose of implementing Resolution 664 (one of the eleven resolutions referred to in Section VII above) in the sense of being intended to obtain the release of foreign nationals detained by Iraq during the invasion of Kuwait.

It might be argued that there are other purposes for a military action that would be authorized by paragraph 4. In addition to recovering seized persons or property, it could be said that paragraph 4 ought to be considered as authorizing an action to deal with "hostile or provocative actions by [Iraqi] forces against [any] Member State, including missile attacks and flights of combat aircraft." This wording comes from paragraph 3 (a) of the March Resolution (686). Compliance with paragraph 3 is one of the objectives of paragraph 4.

On balance, however, this argument cannot be sustained. It ignores the fact that a military operation to deal with missile attacks or flights of combat aircraft in today's setting would not fall within the purposes of paragraph 2 which are limited to reversing the invasion of Kuwait.

In today's setting, the purposes provided in paragraph 2 have all but evaporated. The reversal of the invasion of Kuwait referred to in Resolution 660 (1990) has been achieved with the possible exception of recovering persons and property seized during the invasion. As a result, there is very little scope left for using paragraph 4. Indeed, some might argue that paragraph 4 could not even be used to justify an action to recover persons or property seized during the invasion. Certainly, it would not be possible to use paragraph 4 to justify counter-attacks against Iraqi anti-aircraft missile installations. None of the attacks against US planes that have been made from these installations can be said to be a remnant of the UN operations to expel Iraq from Kuwait. Most of these attacks have occurred in the context of UNSCOM monitoring and inspection activities or in the context of operations of the US in the no-fly zones in the northern and southern areas of Iraq.

Resolution 949 (1994) needs to be considered because it contains a specific mention of paragraph 2 of the November Resolution (678). Like the Resolution 686 (1991), it too might be thought to be directed towards keeping alive the authority for military action contained in paragraph 2. Resolution 949 (1994) is reproduced in full in Appendix 2. Paragraph 3 reads as follows:

3. [The Security Council . . .acting under Chapter VII of the Charter of the United Nations] . . . demands that Iraq not again utilize its military or any other forces in a hostile or provocative manner to threaten either its neighbours or United Nations operations in Iraq.

The Resolution does not actually contain an explicit provision for the enforcement of this requirement, but it does contain the following words in the preamble:

Recalling all its previous relevant resolutions, and reaffirming Resolutions 678 (1990) of 29 November 1990, 686 (1991) of 2 March 1991, 687 (1991) of 3 April 1991, 689 (1991) of 9 April 1991, and 833 (1993) of 27 May 1993, and in particular paragraph 2 of Resolution 678 (1990),

It is important to note that the special emphasis on paragraph 2 appears only in the preamble. The operative clauses in the resolution are silent on the matter of enforcement. In the absence of any reference to paragraph 2 in the operative clauses, this resolution could, at most, be said to inform Iraq that the Security Council might consider reviving its military mandate given in paragraph 2, depending on Iraq's behaviour, but that the Council has made no decision on this matter at this stage.

It is clear that Resolution 949 (1994) provides no authority for military action.

The argument referred to above in Section IV advanced by Ambassador Richardson in the interview on 2 March 1998 needs to be considered separately. He was questioned as to the effect of Resolution 1154 which had been adopted by the Security Council earlier that day. The transcript of the interview bears repeating:

CHRIS WALLACE: With us from our New York bureau, the United States ambassador to the United Nations, Bill Richardson.

Mr. Ambassador, the Security Council did not give the US the automatic trigger to strike if Iraq violates the agreement, but as we just said, the word from the State Department is the resolution doesn't matter. Does the US have to go back to the UN before launching a military strike?

BILL RICHARDSON (New York): No, we don't Chris. It's always been America's position that there was sufficient authority in existing Security Council resolutions for us to take such unilateral action. What happened today in the Security Council, 15-0, only reinforces that position, because if you look at the language in the resolution, it says that if Iraq fails to comply, it will be hit with the severest consequences. Other states had wanted to water that down. We won a big victory today. Basically, the onus is now on Iraq. If they mess around with the secretary general's agreement, if they fail to provide unfettered, unconditional access to all sites, that's a violation and there will be some very, very severe consequences.[31]

The full text of Resolution 1154 appears in Appendix 2. The ambassador was referring to paragraph 3 in the resolution, which reads as follows:

3. [The Security Council . . . acting under Chapter VII of the Charter of the United Nations] . . . stresses that compliance by the Government of Iraq with this obligation, repeated again in the Memorandum of Understanding, to accord immediate, unconditional and unrestricted access to the Special Commission and the IAEA in conformity with the relevant resolution is necessary for the implementation of Resolution 687 (1991), but that any violation would have severest consequences for Iraq;

The ambassador offers the opinion that the resolution reinforces the mandate given by previous resolutions. On that point, he is obviously mistaken. As demonstrated above, no such mandate exists. Clearly, Resolution 1154 could not have the effect of reinforcing a non-existing mandate.

But could the resolution stand on its own and confer new authority? Indeed, in another part of the interview, this is what Ambassador Richardson appears to be arguing:

. . . If Iraq fails to comply - and there are already signs that Iraq is trying to find some unacceptable wiggle room - then what's going to happen is severest consequences from any member state that feels its security interest threatened or the United Nations, the Security Council . . .

Presumably, the ambassador's argument is that the reference to severest consequences must mean military measures and that they can be administered by any member state that considers Iraq to have violated the relevant resolutions.

But such an interpretation portrays the resolution as merely stating a fact - namely that those consequences will follow - it does not actually create any authority. Presumably Ambassador Richardson would argue that, by stating the fact that military measures will be administered in that manner, the resolution necessarily implies that the Security Council is conferring the requisite authority for administering such measures. If this argument were to be accepted, it would mean that the wording in the resolution:

. . . any violation [of the relevant resolutions] would have severest consequences for Iraq

If, in the opinion of any Member State, Iraq violates any of the relevant resolutions, such state or states are authorized to take whatever military measures against Iraq they consider appropriate.

When dealing with a matter as serious as authorizing the use of military force, no Security Council resolution should be interpreted as conferring ill-defined authority upon ill-defined countries to be used at their discretion at an ill-defined time in the future with no element of control by Council nor even an obligation to report to Council.