Freudenschuss (in Wood 1983: 82) these texts are often:
3.5 Vagueness in UN Resolutions Relating to Iraq .1 A Brief History of a Long War
3.5.4 Have Security Council Resolutions Authorised the Use of Force?
As previously said, two of the vaguest passages of S/RES/1441(2002) are related to the controversy over implicit authorisation, and its connection with the Security Council Resolutions S/RES/678(1990) and S/RES/687(1991).
The debate is whether these resolutions, dating the first Gulf war, provided a basis for the use of force in the second war in Iraq. It is suggested that since the early 1990s, the United States and its allies have been in possession of a blank cheque enabling them to use force in Iraq whenever it is believed that Iraq failed to comply with the directions of the Security Council. Most of the controversies come from the wording of S/RES/678 that authorised the use of force.
One argument for the war‘s legality states that S/RES/678(1990) authorised to use ―all necessary means to uphold and implement S/RES/660(1990) and all subsequent relevant resolutions and to restore international peace and security in the area.‖ The thesis favourable to the revival of the S/RES/678 (1990) argued that the ceasefire was conditional and if Iraq breached those conditions then the authorisation of the use of force had to be seen as still in force. These arguments sustain that Iraq‘s violation of resolutions 687 and 1441 allowed the United States and any of the other states who fought Iraq in the first Gulf War to attack Iraq. This argument uses treaty law to note that because the United
49 Source: http://coursenligne.sciences-po.fr/pierrebuhler/pdf/1468200811chap11militaryinterventionandsource soflegitimacyprecopyeditingshortversion.pdf. (Last accessed: June 2011).
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States was a party of the ceasefire agreement included in S/RES/687(1991), Iraq‘s violation of that agreement broke the ceasefire and recreated the legal condition in which S/RES/678(1991) authorised force. According to Professor Yoo (2003), S/RES/687(1991) was basically an armistice; it did not terminate the state of war, but merely suspended military operations by mutual agreement. A cease-fire allows a party to a conflict to resume hostilities under certain conditions. He supports his position by remembering that under the Hague Regulations, ―any serious violation of the armistice by one of the parties gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately.‖50
The counterarguments, which stand that there has not been any authorisation for war, argued that once the objective of removing Iraq from Kuwait had been secured, the authorisation of the use of force was no longer current. The thesis against S/RES/678(1990) revival and thus of the authorisation of war maintains that S/RES/678 (1990) creates no mandate for the use of force that could be relied upon by the U.S. or UK in 2003 and even if it did, S/RES/678(1990) gave a mandate to a coalition, which cannot be interpreted as a right to use force for each member acting alone. Moreover, S/RES/687(1991) is said to create a ‗formal ceasefire‘. And it explicitly states that it is for the Security Council ―to take such further steps as may be required for the implementation of the present resolution‖ and concludes saying that Security Council ―decides to remain seized of the matter.‖
Furthermore, at the Security Council meeting in which S/RES/1441(2002) was passed, it was agreed by all five permanent members that the resolution did not imply authorisation for the use of force. Ignoring this decision means to undermine the role and value of the UN. Finally, it cannot be argued that a reference to S/RES/678(1990) included in the S/RES/1441(2002) preamble section implies revival of this resolution as it is not referred to in the operative clauses as opposed to S/RES/687(1991) in which it is present throughout, as can be seen comparing example 5 from S/RES/1441(2002) with examples 6 and 7 from S/RES/687(1991) below:
(5) Recalling that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions
50 Source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=492002 (Last accessed: June 2011).
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subsequent to resolution 660 (1990) and to restore international peace and security in the area […].
(S/RES/1441(2002))
(6) 6. 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) […].(S/RES/687(1991))
(7) 33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990) […]. (S/RES/687(1991))
Another statement against the legality of war agrees that the revival argument has no basis because S/RES/687(1991) states that the Security Council ―decides to remain actively seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region‖51. This clearly contemplates that the Security Council remains seized of the matter and should have itself decided the further steps of the implementation of S/RES/1441(2002). Therefore, sustainers of counterarguments argue that any hint of automaticity of a right to the application of force is excluded.
Furthermore, it is important to notice that, according to the International Court of Justice, in the interpretation of Security Council resolutions, regard should be given not only to the terms of the resolution, but also to the discussions leading to it, the Charter provisions invoked and, in general, to all the circumstances that might assist in determining the legal consequences.
The argument that force could be used in the absence of Security Council consensus is made more objectionable by the predominant contrary opinion in the Council in March 2003. On February 18 and 19 2003, the Security Council held an open meeting and invited all members of the General Assembly who wished to make a statement to do so. Of the almost 60 members who took up this
51 Source: http://www.lawyersagainstthewar.org/legalaction/legalissues.doc. (Last accessed: June 2011).
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opportunity to speak, only eight were in favour of the US-UK position52. Five remained non-committed, and the rest (nearly 40) rejected the use of force and asked for further inspections53. A great majority of states therefore rejected both the idea that the Security Council had authorised or should authorise the use of force and the notion that Iraq posed an imminent threat to international peace and security, giving even more strength to the hypothesis that the Second Gulf War was neither legal, nor accepted by the majority of the international community.
The following chapters will attempt to analyse the issue from a linguistic viewpoint, through an analysis of vagueness used in Security Council resolutions relating to the outbreak of the second Gulf war.
52 Albania, Australia, Georgia, Japan, Latvia, Macedonia, Nicaragua and Uzbekistan. Source: http://www.austlii.
edu.au/au/journals/MelbJIL/2003/6.html#fn132 (Last accessed: June 2011).
53 UN SCOR, 58th session, 4709th mtg, UN Doc S/PV.4709 (2003) Source: http://www.austlii.edu.au/au/
journals/MelbJIL/2003/6.html#fn132 (Last accessed: June 2011).