BYPASSING THE SECURITY COUNCIL: Ambiguous Authorizations to Use Force,
Cease-Fires and the Iraqi Inspection Regime
by Jules Lobel and Michael Ratner; American Journal of International Law
8:00 a.m. January 15, 2003 PDT
Although the following paper was originally written in January, 1999, in light of recent events, we offer it for fresh consideration. The views expressed in this article are those of the authors alone. They do not necessarily reflect the views of the e11th hour editorial staff.
The world needs a Security Council powerful enough and sufficiently unified to authorize strong countermeasures against aggressors or genocidal regimes and yet not be a mere multilateral rubber stamp for unilateral decision making. It must steadfastly uphold its mandate pursuant to Article 41 to authorize force only as a last resort.
In January and February 1998, various United States officials, including the President, asserted that unless Iraq permitted unconditional access to international weapons inspections, it would face a military attack. The attack was not to be, in Secretary of State Madeleine Albright's words, "a pinprick," but a "significant" military campaign.[1
] U.S. officials, citing United Nations Security Council resolutions, insisted that the United States had the authority for the contemplated attack. Representatives of other permanent members of the Security Council believed otherwise; that no resolution of the Council authorized U.S. armed action without its approval.[2
] In late February, UN Secretary-General Kofi Annan traveled to Baghdad and returned with a memorandum of understanding regarding inspections signed by himself and the Iraqi Deputy Prime Minister. On March 2, 1998, the Security Council, in Resolution 1154, unanimously endorsed this memorandum of understanding.[3
In the March 2 meeting, no country asserted that Resolution 1154 authorized the unilateral use of force, and a majority stated that additional Council authorization would be necessary before force could be used.[4
] Only after that meeting did U.S. officials claim otherwise; Ambassador Bill Richardson said the UN vote was a "green light" to attack Iraq if President Clinton should decide that Iraq was not living up to the agreement.[5
] This assertion in the face of the Security Council's pointed refusal to grant such authority views the Council as a source of the authority to use force, but not as an instrument for limiting its use. With at least one notable exception,[6
] however, the United States did not claim to be entitled to use force without the Council's authorization to compel Iraqi compliance with the UN inspection obligations. Rather, U.S. and British officials argued that Resolution 678 of 1990, which empowered the United States and other states to use force against Iraq, still governed and continued to provide authority to punish Iraq for cease-fire violations.[7
] This position assumed that Resolution 678's authorization to use force remained valid, albeit temporarily suspended a loaded weapon in the hands of any member nation to use whenever it determined Iraq to be in material breach of the cease-fire. The refusal of the United States to accept limitations on its power by the Security Council thus depended on creatively interpreting the Council's resolutions to accord authority, despite the contrary positions of a majority of its members.
The U.S. and British claim highlights an important problem regarding the Security Council's method of authorizing individual member states or regional organizations to use force on behalf of the United Nations. This "contracting out" mode leaves individual states with wide discretion to use ambiguous, open-textured resolutions to exercise control over the initiation, conduct and termination of hostilities. Such states may seek to apply resolutions by the Security Council in conflict with its aims and objectives or the view of many of its members, as occurred in the 1998 Iraqi inspection crisis. This crisis thus raises questions regarding (1) whether the Security Council has authorized the use of force; (2) how the scope and extent of an authorization are determined; and (3) whether the authorization has terminated.
We argue that two fundamental values underpinning the United Nations Charter that peaceful means be used to resolve disputes and that force be used in the interest and under the control of the international community and not individual countries require that the Security Council retain strict control over the initiation, duration and objectives of the use of force in international relations. To ensure that UN-authorized uses of force comport with those two intertwined values, this article argues for three rules derived from Article 2(4) of the Charter: (1) explicit and not implicit Security Council authorization is necessary before a nation may use force that does not derive from the right to self-defense under Article 51; (2) authorizations should clearly articulate and limit the objectives for which force may be employed, and ambiguous authorizations should be narrowly construed; and (3) the authorization to use force should cease with the establishment of a permanent cease-fire unless explicitly extended by the Security Council.
The questions raised by the Iraqi inspection crisis of 1998 are likely to arise in the future.[8
] The claim of the U.S. Government to an ongoing UN authorization to use force against Iraq to enforce the cease-fire agreement has resurfaced often over the past seven years and is unlikely to be withdrawn. Moreover, the tendency to bypass the requirement for explicit Security Council authorization, in favor of more ambiguous sources of international authority, will probably escalate in coming years. The recent controversy over NATO's threat to intervene militarily in Kosovo raises similar issues as to the requirement for explicit authorization.[9
I. The General Principles Underlying UN Authorizations of Force
The UN Charter established an international organization in which states, pursuant to Article 43, would make armed forces available to the Security Council to counteract threats to the peace. This has not occurred. In its stead, the Security Council has authorized member states to use force, in essence franchising UN members to act in the Organization's behalf. The Security Council has authorized member states to use force in Korea in 1950, against Iraq in 1990, and in Somalia, Haiti, Rwanda and Bosnia in the early 1990s.
Smaller, nonaligned states, as well as some scholars, have voiced concern over the legitimacy of Security Council authorizations to individual states to use force. They argue that the resulting situation allows the powerful states to control decisions whether to employ force, how to use it, and when to terminate hostilities. These determinations are made without accountability and control by the Security Council.[10
] Despite these concerns, the authorization method is likely to dominate UN practice for the foreseeable future. While we believe that the long-term interest of world peace and security supports revitalizing Article 43, the United States, among others, appears unwilling to submit command and control over its forces to anything more than perfunctory UN supervision. In this context, the United Nations becomes only an authorizing body, ceding control of the actual military operations to individual states.
Problems with the authorization method surface in several related areas. First, states might use force on the basis of actions by the Security Council that could impliedly be interpreted to authorize force, but where its intent to do so was unclear. For example, in 1991 the United Kingdom, the United States and France used force to provide humanitarian aid to the Kurds and to establish safe havens and no-fly zones in northern Iraq partly on the basis of ambiguous authority in Resolution 688. That resolution made no mention of military force, nor was it intended to authorize such force. The Economic Community of West African States (ECOWAS) intervened militarily in Liberia in 1990 without any explicit authorization by the Security Council, although the Council later did issue statements and a resolution approving ECOWAS's actions.
Second, states acting under the authorization of the Council might interpret their mandate to be broader than it had intended. The potential for conflict is most pronounced where the Council has delegated wide authority to a coalition of states to address a major problem, such as the Iraqi invasion of Kuwait. For example, Resolution 678, while motivated by the goal of expelling Iraq from Kuwait, also contains broad language authorizing force "to restore international peace and security in the area." That language could mean virtually anything, depending on how one defines "peace and security" and "area."[11
] During the Persian Gulf war, a dispute arose as to whether the elimination of Iraq's war-making power, a goal asserted by some of the leaders of the coalition states, was authorized by Resolution 678.[12
] The dispute over interpretation of Resolution 678 has continued to fester. In the February 1998 crisis, the United States and the United Kingdom interpreted the broad language "to restore international peace and security" as authorizing the use of force to ensure that Iraq destroyed its biological and chemical weapons a condition not imposed upon Iraq until after the gulf war was over. Similar questions and disputes over Security Council authorizations to use force arose during the Korean War and the Bosnian and Somalian conflicts.
Furthermore, when the authorizations are not temporally limited, questions arise about their termination. As the Iraqi inspection crisis illustrates, the states acting under Security Council authorization might want to continue to employ force after the basic goal of the mission has been achieved. Conflicts often continue to simmer after hostilities have ended. A key question is whether a permanent cease-fire or other definitive end to hostilities terminates Security Council authorizations to use force.
To resolve these issues, two interrelated principles underlying the Charter should be considered. The first is that force be used in the interest of the international community, not individual states. That community interest is furthered by the centrality accorded to the Security Council's control over the offensive use of force. This centrality is compromised by sundering the authorization process from the enforcement mechanism, by which enforcement is delegated to individual states or a coalition of states. Such separation results in a strong potential for powerful states to use UN authorizations to serve their own national interests rather than the interests of the international community as defined by the United Nations. The decentralization and delegation of the actual use of force is likely to predominate for many years, necessitating stricter Security Council control over such authorizations.
To uphold the principles of the Charter, the Security Council must retain clear control over authorizations to use force (with the exception of force pursuant to Article 51), even if political and military considerations require that it delegate military command to individual nations. The difficulties of controlling the scope and extent of the use of force when its employment is delegated to individual states require, at a minimum, strict control by the Council over the initiation and termination of hostilities. Such control is achieved by the application of normative rules stipulating clear Council approval of non-Article 51 uses of force and termination of that authorization when a permanent cease-fire or other definitive end to the hostilities is realized.
Controlling the military tactics and objectives of the contractee nations will obviously be a difficult task for the Security Council as long as the contracting-out model prevails. Authorization to engage in a large-scale, long-term military operation will often be viewed as requiring that contractees be granted broad discretion so that they can effectively operate and cope with unpredictable military situations. Yet even in this situation, which the Security Council obviously cannot micromanage, it ought to limit the mandate to ensure that the contractee states employ force to secure the UN objectives and not their own. Moreover, overly broad and ambiguous authorizations should be interpreted narrowly to ensure that the Council retains appropriate control over the military operation it spawns.[13
] As part III below demonstrates, such a rule would not unduly interfere with the military requirements of the contracting-out model.
Security Council control over authorization of the use of force is required not merely to ensure that states resort to force for international rather than national ends. It is also required to fulfill a second constitutive principle of the United Nations, stated in the Charter's stirring preamble: "to save succeeding generations from the scourge of war." A preeminent purpose of the Charter, set forth in Article 1, is "to bring about by peaceful means...settlement of international disputes...which might lead to a breach of the peace." While Article 1 also articulates as a purpose of the United Nations "to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression," it is nonetheless true "that the United Nations was founded to be attentive first and foremost to peaceful settlement of international disputes and to rely on the military instrument of policy only as an extreme last resort."[14
The Charter presumption that peaceful means will be used to settle international disputes is a substantive principle that confers responsibility on the Security Council not only to control uses of force, but also to use force solely as a last resort and to minimize its extent. The general Charter principle that strongly promotes the peaceful resolution of disputes entails the following: (1) that implicit authorizations of force be disfavored; (2) that explicit authorizations be interpreted narrowly to prevent contractee states from formulating the objectives so as to exceed the Council's clear intentions; and (3) that authorizations terminate when the goals of the operation are met and a permanent cease-fire established.
The Charter requirement of explicit authorization by the Security Council for the use of force is supported by Articles 33 and 42. The provision in Article 42 that the Council may authorize force only after determining that non-lethal sanctions under Article 41 would be or are inadequate suggests that open-ended or vague delegations of authority are inappropriate. Certainly, a rule that the Council must determine that nonmilitary measures are inadequate would also mean that it must clearly determine that military measures are necessary. Both rules flow from the principle underlying Article 42: that armed force should be used only as a last resort.[15
] Embedded in the substantive principle that force be used only as a last resort is a procedural requirement that the deliberative body authorizing force do so clearly and specifically. The obligation under Article 33 that the parties to any dispute must first seek a resolution by peaceful means further supports the Article 41 principle. Requiring clear Security Council authorization acts as a brake on the use of force by the international community: it is a procedural condition designed to fulfill the Charter's substantive goal of ensuring that force be employed only when absolutely necessary.
The requirement of explicit authorization can be met by language evincing a clear intent on the part of the Security Council. Diplomatic considerations may require that the text of a resolution not use the term "force" explicitly. In 1990 the United States apparently wanted an explicit reference to the use of military force against Iraq, but owing to Soviet objections the Council substituted the language "all necessary means."[16
] In that case, however, it was clear that the Council's intent was to authorize the use of force. While the Council's language may occasionally bow to diplomatic necessity, a core requirement of the Charter would be transformed if individual nations were permitted to use force when the Council's language and intent are both ambiguous.
Second, although the Charter clearly empowers the Security Council to employ force to combat threats to or breaches of the peace, Council authorizations of force must be interpreted in light of the Charter's goal of minimizing violence in the international community. It should not be presumed that the Security Council has authorized the greatest amount of violence that might be inferred from a broad authorization. The opposite presumption should apply: while force can be used to carry out the specific objectives in the authorizing resolution, ambiguous or broad language in the resolution that might be read to encompass force for objectives not clearly intended by the Council should be interpreted narrowly. For example, Resolution 678 clearly authorized force to oust Iraq from Kuwait, but the broad provision on restoring international peace and security ought to be read in the context of that purpose. It should not be interpreted to authorize an escalation of the fighting that would remove the Government of Iraq or enforce weapons inspections.
Finally, the Charter's preference for settling disputes by peaceful means and the Article 2(4) prohibition on the use of nondefensive force require that a UN authorization of force terminate when a permanent cease-fire is negotiated. Armed responses to breaches of cease-fire agreements cannot be made by individual states; a new Security Council authorization must be adopted.
These principles ought to be in the interest of the permanent members of the Security Council, as well as the smaller states that constitute a majority of the United Nations. If contractee states refuse to accept clear limitations on the scope and duration of their delegated authority, construe unclear Security Council language to imply authority to use force where no such authority was intended, or stretch the terms of their contracted authority beyond what most Council members support, the result may be increased reluctance to contract out the use of force. The consequence of such a conflict in the current geopolitical circumstances would be to undermine the Security Council's role in multilateral collective security and probably increase the unilateral uses of force by militarily powerful nations.
II. The Requirement of Clear Security Council Authorization of Force
Disputes have arisen over whether a state or group of states claiming to be acting pursuant to implied or ambiguous Security Council authorization are acting lawfully. Both the Iraqi inspection dispute of early 1998 and the looming Kosovo crisis later that year raised questions whether Security Council ambiguity, acquiescence, approving statements or even silence suffices to provide authorization for the use of force. As a textual matter, the Charter requires the Security Council to approve affirmatively of non-defensive uses of force. Acquiescence does not suffice. To infer Council authorization either from silence, or from the obscure interstices of Council resolutions, undermines this Charter mandate.
Nonetheless, governments and scholars have argued with regard to various international incidents involving the use of force that it was lawfully employed pursuant to implied authorization by the Security Council. These claims of implied authorizations have been disputed within the international community. However, such claims may well multiply in the future as interventionist pressures increase and the Council resists acting directly. The post-Cold War environment militates against forceful unilateral intervention, increasing pressure on states to find at least some form of multilateral authority to justify their forceful action.
Claims of Implied Authorizations of Force
The general political pressure to find implied authorization in Security Council acquiescence or ambivalence rests on construing the purpose of the United Nations to maintain international peace and security as requiring forceful action to remove threats to the peace. Rogue states that flout Council resolutions or otherwise threaten the peace, or states that commit gross human rights violations against their citizens, ought to be penalized. Thus, in the absence of effective UN sanctions, world order requires that individual states or regional organizations provide an effective remedy. As one commentator notes, "Article 2(4) was never an independent ethical imperative of pacifism" but can be understood only in the context of an organization premised on the "indispensability of the use of force to maintain community order."[17
The inability of the Security Council to authorize force when some believe it to be clearly needed propels the search for implied authorizations. Some argue that diplomatic and political reality may preclude the Council from publicly authorizing actions that its members privately desire or at least would accept.[18
] When a group of states act to enforce a Security Council resolution that the Council itself is unwilling to enforce as was arguably the case in the recent Iraqi inspection crisis the argument can be made that those states are not acting unilaterally, but on behalf of a clearly articulated community mandate.
Political necessity finds a home in legal realist theory. That theory eschews or tempers formal textual rules, in favor of the law's operational code, which can be derived only from a contextual and empirical analysis of how elites actually behave. From this perspective, arguments that an implied Security Council authorization exists and is sufficient, reflect the elite's willingness to tolerate certain forceful action by individual states, even if such behavior conflicts with the formal rules embodied in the UN Charter.
An examination of six international incidents[19
] in which implied authorization has been suggested cautions against this approach because of the difficulty of determining when an action has been impliedly authorized, the uncertainty in the law and the potential for abuse.
- In 1961 India seized Goa from Portugal, arguing, inter alia, that it was enforcing UN resolutions against colonialism. Professor Quincy Wright rejected this reasoning, which he considered to be a claim based upon an implied authorization. While a majority of the Security Council opposed India's claim, many newly independent states in Africa, as well as the Soviet Union, believed that colonization was such an evil that the use of force against it should be tolerated. This political view led to the United Nations' de facto acquiescence in India's takeover of Goa, which might be perceived as an implicit, after-the-fact authorization. Such an implied authorization loosens the restraints on the use of force; it encourages states to use force when they believe their actions will be tolerated for political reasons by a majority of states.
- In 1962 the United States, admitting that it was not explicit, argued that it had implied Security Council authorization to interdict Soviet ships en route to Cuba. The key factors supporting this alleged implied authorization were that the Council, by general consent, had not voted on the Soviet resolution disapproving the U.S. action and had encouraged a negotiated settlement.
The U.S. case for implied authorization seems strained. In fact, the Council had also refrained from acting on a U.S. draft resolution that would have expressed approval of the U.S. action. Moreover, if failure to adopt a resolution condemning the use of force is dispositive, what if the Council votes to condemn by a wide margin, but the resolution is vetoed by a permanent member? At a minimum, the analysis calls for a deeper understanding of why the resolution was not enacted. But such an analysis will often be impossible, since we can never know dispositively what motivated each Security Council member.
- Professor Anthony D'Amato's claim that the Israeli 1981 air strike against the Osiraq nuclear reactor was an example of implicit Security Council approval of an armed action takes the 1962 U.S. argument to its extreme. In this case, the Security Council was not silent but "[s]trongly condemn[ed]" the air strike. Yet for D'Amato the condemnation was pro forma because it contained no sanctions against Israel. D'Amato relies on this failure to claim that "it is often politically expedient for the community to condemn a forceful initiative in explicit terms, yet to approve of it in fact by stopping short of reprisals against the initiator."
D'Amato's argument that symbolic condemnation illustrates that the international community politically tolerates the act may express a certain reality in international affairs. But to take the additional step and argue that explicit disapproval constitutes implied consent renders the concept of authorization indeterminate and highly speculative. Are human rights resolutions that denounce abuses but impose no sanctions merely expressions of implied approval of those abuses? Who determines whether a particular Security Council action or series of actions is strong enough to constitute genuine disapproval?
- The one time that the Security Council may very well have implicitly authorized a use of force was in Liberia in 1990, although it was after the fact. In August 1990, armed forces from five member states of ECOWAS intervened in Liberia to attempt to stop a civil war. ECOWAS had no explicit Security Council authorization to do so, although subsequent Council actions tacitly accepted and expressed praise for the intervention. This appears to be the only case in which the Security Council's implicit approval was uncontested. The Liberian example, however, still presents the danger that it will encourage regional organizations to use force first in the hope of inducing later Security Council approval.
- The 1991 effort by the United States, the United Kingdom and France to provide safe havens to the Kurdish refugees in northern Iraq and to enforce no-fly zones in both northern and southern Iraq has been justified on the ground that these actions were implicitly authorized by UN resolutions. Those legal claims were disputed by Secretary-General Javier Pérez de Cuéllar, who concluded that a foreign military presence on Iraqi territory required either the express authorization of the Security Council or Iraqi consent. While many UN members acquiesced in the safe-haven operation, some raised concerns about the absence of explicit Council endorsement; furthermore, both Soviet and Chinese officials opposed deploying either UN forces or foreign states' military forces to protect Iraqi civilians without their government's consent. Baghdad ultimately agreed to the deployment of five hundred armed UN guards on Iraqi territory to protect UN humanitarian workers.
The establishment of the no-fly zones in northern and southern Iraq was based on similar theories of implied authorization and acquiescence. In August 1992, the proposed southern no-fly zone was "widely criticized" in the United Nations as going beyond any legal mandate and the Non-Aligned Group said that any move to attack Iraqi planes would not receive Security Council backing. After the last of the January 1993 raids on Baghdad, the UN Legal Department endorsed a chorus of criticism of the raids, stating that "the Security Council made no provision for enforcing the bans on Iraqi warplanes." When, in September 1996, the United States conducted military strikes to enforce an extended southern no-fly zone, it earned only lukewarm support from its allies and criticism from Russia and most of the members of the Security Council.
- Finally, the present U.S. claim to the forcible enforcement of the inspection regime also relies on implied authorization. Undersecretary of State and former UN Ambassador Thomas Pickering adopted the U.S. position taken in 1962 regarding Cuba by arguing that Resolution 1154 does not preclude the unilateral use of force. Pickering argues that a key factor in interpreting that resolution is that the United States was able to persuade other Security Council members not to include language explicitly requiring it to return to the Council to obtain authorization for force. But the failure to adopt a resolution opposing U.S. action cannot be deemed dispositive when any such resolution would have been fruitless in the face of the U.S. and UK veto power. Still, the Council did the next best thing: it adopted a resolution that did not provide the United States with the authority it sought and the members stated their understanding that the resolution was intended to preclude any such authority.
In sum, this admittedly brief survey of state and Security Council practice on implied authorization arguments suggests three propositions: (1) that while there have been occasional attempts to justify uses of force under the theory of implied authorizations, those incidents do not amount to a "systematic, unbroken practice" to use Justice Frankfurter's phrase from the Youngstown Sheet and Tube
] that warrants a "gloss" on the Charter's requirement of explicit Security Council approval; (2) that most of these claims of implied authorization have been strongly contested; and, most important, (3) that the difficulty of determining whether an authorization has been implied and the resulting uncertainty for world order counsel caution in adopting any such reading of Security Council actions. There are others who might view the incidents we have discussed through a different prism. However, the difficulty of divining and attributing motivations to state actors and of interpreting unrecorded or informal Security Council discussions suggests that a world order that permits implied Council authorizations to use force would depend not on the clearly held expectations of states but, rather, on the nuanced interpretation of ambiguous state actions. That seems to be a dubious way to implement a basic international norm.
Explicit Security Council Authorization and Peace and World Order
The UN Charter requirement that non-defensive uses of force be explicitly authorized by the Security Council comports with both the purposes of the Charter and the needs of a peaceful and stable world public order. The maintenance of collective security was and remains an important goal of the Charter. However, another key purpose, perhaps even the overriding one, was to develop an international system that, while not pacifist, strongly favors resolution of disputes by peaceful means. That presumption of peaceful means requires that ambiguity be interpreted against warfare, a mandate that supports a rule that Security Council authorizations to use force must be clear and unambiguous. Article 42 reflects the presumption of peaceful means by specifying that the Council may decide to authorize the use of force only after determining that other measures are insufficient.
Implied Security Council authorization to use force is often inferred from the Council's condemnation of a nation's action as a threat to the peace.[38
] But making that inference is unwarranted; it contradicts the Charter's requirement that the Security Council must determine both that a threat to the peace exists and that peaceful means cannot resolve the situation. In many cases, as in the Iraqi and Kosovo crises of 1998, the Council will have declared a threat to the peace but will not have affirmed the need for military action. In those situations, the requirement of explicit Security Council approval of uses of force reflects the substantive value that force not be used too hastily to resolve international disputes. The more nations understand that the authority to use force can be difficult to obtain, the greater their efforts will be to find peaceful, creative negotiated solutions to problems.
A world order that would allow nations to use force unilaterally under the guise of creative or disputed interpretations of vague language in Security Council resolutions or by the Council's failure to act would undermine Article 2(4). Powerful member states could use that theory to justify the use of force in their own national interest. The potential havoc wreaked by such a legal regime counsels restraint restraint to be found in the legal requirement that Security Council delegations of authority to use force be both clear and narrowly construed.
If the Security Council is dysfunctional or paralyzed by the exercise of the veto, as arguably occurred during the Cold War, the case for implied authorization might be stronger. However, Council practice since the Cold War simply does not support any great need for a flexible reinterpretation of the Charter to support the actual behavior of states. Five times in the past eight years the Security Council has clearly authorized the use of force to address threats to world peace.[39
At times, such an authorization is hard to obtain, but that is the way things ought to work. That China, India, Russia and occasionally France balk at what they consider an inappropriate use of force is not cause for concern; rather, it should lead observers to conclude that the Council retains some vitality as a restraint on war making. It was established to be not merely a forceful initiator of collective enforcement measures, but also a restraining influence on the unwarranted or hasty rush to forcible solutions. While the situation may have changed from that prevailing in the early 1990s and authorization may be harder to obtain, that fact does not warrant bypassing the Security Council. Indeed, the recent controversies regarding Iraq afford hope that the Council will play its contemplated role of authorizing force only as a last resort. World order requires a Security Council that can find the proper balance between authorizing the collective use of force when there is both a compelling need and no peaceful alternative, and not succumbing to economic and political pressure by powerful nations[40
] seeking a multilateral cover for what is in essence the unilateral use of force.
In the long-term interest of world order, it is imperative that the Security Council be actively engaged in determining whether force ought to be employed by the international community.[41
] A rule that allows acquiescence to constitute authorization and that substitutes ambiguity for clear intent would encourage the Security Council to avoid deciding when the use of force is necessary and appropriate. Acquiescence begets more acquiescence, and once a custom of allowing nations to take forceful action under claims based on ambiguous authority is established, it will develop a momentum of its own. For example, the failure to provide explicit legal authority for the ECOWAS intervention suggests that the Security Council, which seemed unanimously to approve of the action, nevertheless chose to avoid its responsibility to authorize it explicitly. Allowing cases like the ECOWAS intervention to legitimate implied authorization will merely encourage the Security Council to avoid taking stands on difficult issues of when to use force.[42
In addition to promoting the peaceful resolution of disputes and the Security Council's assumption of responsibility, requiring a clear Council authorization is necessary to ensure that the world community affirmatively supports the use of force and does not merely acquiesce in the actions of a powerful state. Allowing ambiguity in the authorization of force enables powerful states to pick and choose which Council resolutions to enforce and more generally to act unilaterally under the guise of multilateral authority. Ambiguity is often the handmaiden of great-power assertiveness. James Madison's insight that government cannot be based on the proposition that men are angels may be appropriately applied to the behavior of states. It is certainly rare for a nation to be motivated not primarily by its own national interest, but in the community's interest. The history of humanitarian intervention is replete with invocations of humanitarian goals by strong powers or multilateral coalitions to justify their own geopolitical interests.[43
Of course, situations will arise in which most UN members will want the United States or some other state to be able to use force, and China or some other state or bloc of states may be unalterably opposed. But in the extreme case of an ongoing genocide for which the Security Council will not authorize force, perhaps the formal law ought to be violated to achieve the higher goal of saving thousands or millions of lives. In these circumstances, the acting state would have to weigh the risk of universal condemnation and sanctions. Thus, it would have to make a convincing case that the military action is not based on a mere pretext and will be effective and proportionate. Silence by the Security Council might then reflect a community consensus that the legal requirement for its authorization ought to give way to the moral imperative. That extreme case is unusual, however, and certainly does not resemble the recent Iraqi inspection crisis. While the accusation that Iraq is still seeking to develop weapons of mass destruction alleges a serious threat to the peace, no one claims either that Iraq is currently employing such weapons to kill thousands of people, or that it has the capability, opportunity or intention of imminently doing so.[44
] Only claims of this magnitude might fit the extreme cases that would possibly justify using force in violation of international law. In dealing with those cases, it is preferable to recognize that on the rare occasions when a nation is solely motivated by humane considerations, it must violate the law to save humanity, than to use those cases to dilute the prohibition on the unilateral use of force as a whole.
The observations of Thomas Franck and Nigel Rodley as to the desirability of creating exceptions to the prohibition on unilateral humanitarian intervention apply with equal force to interventions that rely on implied or ambiguous Security Council authorization:
In exceptional circumstances...a large power may indeed go selflessly to the rescue of a foreign people facing oppression. But surely no general law is needed to cover such actions...[I]n human experience it has proven wiser to outlaw absolutely conduct which, in practical experience, is almost invariably harmful, rather than to try to provide general exceptions for rare cases. Cannibalism, given its history and man's propensities, is simply outlawed, while provision is made to mitigate the effect of this law on men adrift in a lifeboat. The hortatory, norm-building effect of a total ban is greater than that of a qualified prohibition, especially at that stage of its legal life when the norm is still struggling for general recognition. This is a question of balance. So long as the preponderant predictable applications of a proposed exception to the prohibition on unilateral force are socially undesirable and the historical record so indicates the exception should not be made.
Some scholars and officials argue that UN diplomacy is at times aided by a unilateral threat by powerful states to use force and cite the U.S. threat against Iraq as having been necessary to end the 1998 inspection crisis.[46
] But even if the U.S. threat did play a role,[47
] that merely suggests that illegal action can at times have useful consequences, at least in the short run. The rule of law requires that we sometimes sacrifice using force to punish people or regimes that are evil so as to secure a more peaceful domestic and world order.
International law, the United Nations and multilateralism require that a nation must accept the limits imposed by law as well as the power endowed by it. That the world community and the Security Council are occasionally more reluctant to use force than our policy makers would like is a restraint imposed by the international legal system. Unless we are prepared to concede that all nations have a right to use force to enforce Security Council resolutions a result that the United States would not favor we ought to accept the Charter's legal regime with the clear recognition that it sometimes requires us to forgo policy options we may prefer. Multilateralism obliges nation-states to define their national interest in a manner that does not conflict with the international community's view of its interest. Multilateralism is thus tied to respect for international law. Multilateralism is not a tactic; it is an end that furthers respect for international law.[48
III. Drafting and Interpreting Authorizations to Use Force
The basic principle that the use of force in international relations other than in the exercise of self-defense requires an express authorization by the UN Security Council leaves open the question of how explicit authorizations should be drafted and interpreted. The requirement of explicit authorization implies the corollary that implementation of express authorizations that contain ambiguous language should be confined to objectives that were clearly intended by the Security Council.
The Persian Gulf war and the difficulties attendant on the lengthy process of ensuring Iraqi compliance with the cease-fire agreement highlight the tension between the Security Council's explicit issuance of a broad mandate to states to use force to achieve the Organization's objectives and the pressure those states exerted to interpret that mandate in their own national interests. In November 1990, when Resolution 678 authorized member states to use force to oust Iraq from Kuwait, few, if any, of the Council members could have contemplated that the resolution would authorize the bombing of Iraq to secure compliance with an inspection regime a requirement imposed only after the war's end and the restoration of Kuwaiti sovereignty. Thus, the recent Iraqi inspection crisis raises an important question regarding Security Council authorizations to use force: how should such resolutions be framed and interpreted so as to achieve the collective-security purposes of the United Nations while limiting the scope and extent of the violence authorized?
Korea and the Gulf War Authorizations
The United Nations experience during the Korean War illustrates the difficulties that arise from broad authorizing language. Resolution 83 of June 27, 1950, authorized "members of the United Nations to furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area."[49
] The Security Council's discussion yields little evidence regarding the meaning of "restore international peace and security in the area."[50
] Several days after the resolution was adopted, Secretary of State Acheson stated that U.S. actions taken "pursuant to the Security Council resolution" were "solely for the purpose of restoring the Republic of Korea to its status prior to the invasion from the north and of reestablishing the peace broken by that invasion."[51
] However, by the end of September 1950, as a result of the successful allied landing in Inchon, which routed the North Koreans, the United States and its allies faced the question whether to pursue the retreating North Koreans into the North and seek their total destruction. That issue had a legal component: was such action authorized by Resolution 83 or did it require new UN authorization?
Initially, President Truman apparently believed that crossing the parallel required a UN decision. However, shortly thereafter, the Department of State asserted that Resolution 83 provided the requisite authority to pursue the retreating North Koreans.[52
] The U.S. ambassador to the United Nations argued that "[f]aithful adherence to the United Nations objective of restoring international peace and security in the area counsels the taking of appropriate steps to eliminate the power and ability of the North Korean aggressor to launch future attacks."[53
] The Indian Government and several other states believed that further specific authorization was legally necessary, although the majority of UN members did not oppose the U.S. position.[54
] Nonetheless, the United States did submit the issue to the General Assembly, which approved the crossing of the 38th parallel on October 7, 1950, after South Korean forces under General MacArthur's command were already in North Korean territory.[55
The legal significance of the U.S. decision to seek additional UN authorization is unclear. The U.S. position was that such authorization was unnecessary because military operations required broad and flexible legal authority to deal with changing situations, authority that had been granted by Resolution 83. As a textual matter, the U.S. argument was strong, particularly because the North Koreans had not indicated any desire for a cease-fire and had suggested that they might strike to the south again.[56
] Nevertheless, the fact that for policy reasons the United States sought and obtained new authorization is some evidence of state practice that contractee states do seek further authorization when the objectives of the action change.[57
The Korean example illustrates that where contractee states seek to escalate warfare in a manner that projects a major change in the political or military objectives that the Security Council intended to authorize in Korea from repelling the North Korean attack on the South to unifying the country they should seek new authorization and not rely on ambiguous language in the original resolution. Maintaining the control of the Council over the warfare it authorizes requires that, although operational command may be delegated to states, major policy changes in objectives, or major military actions that seriously threaten to widen the war, must be authorized by the United Nations. A change in objectives poses grave risks of widening the war, a risk that eventuated in Korea. Because of those risks, Security Council resolutions must be interpreted to authorize what was clearly intended, not what can conceivably be justified. The Korean case demonstrates that when broad political agreement exists, the necessary authorization can be obtained fairly quickly without compromising the military situation.
Moreover, when the authorized states seek to widen a war to achieve new political and military objectives, the Charter's presumption in favor of peaceful resolution of disputes requires the Council seriously to consider whether a negotiated settlement can be reached. Since the invocation of new objectives often means that the original objectives have by and large been accomplished as happened in Korea a request for new authorization would force the United Nations to thoroughly assess the prospects for a peaceful settlement. Unfortunately, the pressure to pursue the military option to total victory propelled Washington to ignore and frustrate the efforts of Secretary-General Trygve Lie and others to achieve a settlement in October 1950, efforts that might have prevented the loss of hundreds of thousands of lives.[58
As was the case in Korea, the gulf war mandate of Resolution 678 authorized states to use all necessary means to "restore international peace and security in the area." From a purely textual perspective, that authorization seems to have few, if any, limits. "Area" is undefined and could mean Iraq or the entire Middle East.[59
] "Restoring international peace and security" could mean occupying Iraq, removing Saddam Hussein from power, or bombing Iraq's military/industrial capacity.[60
] Officially, the United States never made those broad claims during the war. Indeed, shortly after it ended, U.S. officials testified that Resolution 678 had not granted open-ended authority to occupy Iraq, and that the military incursions into Iraq during the war were authorized only because they were "pursuant to the liberation of Kuwait, which was called for in the UN resolution."[61
] Moreover, in response to accusations that the coalition's bombing campaign stretched the boundaries of the Security Council's authorization, many states, including those fighting in the gulf war, declared that their sole purpose was to liberate Kuwait.[62
] Thus, if Resolution 678 is still extant, it should be interpreted narrowly and consistently with its object and purpose. The clear intent of the Security Council in 1990 was to provide authority to oust Iraq from Kuwait, not to grant a blanket license for any member state to attack Iraq to enforce inspections mandated after the war.[63
Limiting the legitimate objectives of UN-authorized uses of force does not unduly affect military efficacy, since it does not restrict the military means or tactics that can be employed but, rather, the political goals for which force can be utilized. Authorized states would retain the discretion to determine the military means needed to achieve the goals clearly articulated by the Security Council. They would not, however, be empowered by ambiguous language to escalate the fighting to achieve objectives not clearly mandated. To adopt the contrary position would essentially be to eviscerate Security Council control over authorized uses of force.
Subsequent to the war, the United States and the United Kingdom interpreted Resolution 678 as authorizing force to achieve compliance with the cease-fire. While incorrect but textually plausible, this interpretation illustrates the problems raised by authorizations that do not specify precise objectives.[64
] In our view, the essentially boilerplate language "to restore international peace and security" added no clear meaning or objectives to either the 1950 Korean or the 1990 Persian Gulf authorization. It was unnecessary and invited difficulties. The legitimate objectives of both wars did not require such open-ended language. They ought to have been limited to the recreation of the status quo ante.
Post–Persian Gulf War Authorizations
Many states were concerned about the minimal role that the Security Council played during the gulf war and the perceived lack of accountability to the Organization of the states that took action pursuant to the authorization. This concern led to attempts by members of the Council to rectify these problems in the authorizations to use force adopted after the gulf war. Some of these authorizations in Bosnia, Somalia, Haiti and Rwanda imposed more extensive consulting requirements. Other provisions focused on providing a unified command and control under UN auspices, or at least on authorizing the Secretary-General to exercise more command over military operations.[65
] In Bosnia, a dispute between the United States and the Secretary-General arose as to whether air strikes against Bosnian Serb targets had to be authorized by the Secretary-General and approved by the UN commander.[66
] When most of its NATO allies supported the Secretary-General, the United States backed down and recognized UN authority. The Somalia authorizations accorded substantial authority to the Secretary-General as well.[67
The authorizations since the gulf war have also focused on limiting the mandate granted by the Security Council. In both the Bosnia and the Somalia operations, the Security Council, instead of broadly mandating the use of force as in Resolutions 678 and 83, ratcheted up the level and more precisely delineated the purposes of force to be employed. In Bosnia, the Council enacted specific resolutions, first to authorize force to secure the delivery of humanitarian supplies, next to enforce the no-fly zone, and then to protect the safe havens.[68
] In Somalia, the initial Resolution 794 authorized "the Secretary-General and Member States...to use all necessary means to establish...a secure environment for humanitarian relief operations."[69
] That generally worded authorization was interpreted broadly by the Secretary-General, who supported the general disarming of the Somalia factions, and more narrowly by the United States. Security Council Resolution 814, adopted on March 26, 1993, over four months later, explicitly authorized the expansion of the mandate of UNOSOM, the UN force in Somalia.[70
] After the attacks against the UN troops by the forces of General Aidid, the Security Council explicitly authorized his arrest in Resolution 837. The Council and participating states did not rely on the arguably broad language of Resolution 794, but specifically authorized each escalation of force.
In addition, the Security Council has placed temporal limits on authorizations. France's authorization to intervene in Rwanda was limited to two months.[71
] Resolution 940, which permitted member states to use all necessary means to facilitate the military leadership's departure from Haiti, also contained a more general grant of authority "to establish and maintain a secure and stable environment that will permit implementation of the Governors Island Agreement."[72
] The broad mandate under this resolution could arguably have been interpreted to be virtually unlimited. To counteract this problem, Resolution 940 required that the Security Council, not the participating states, should determine when a stable and secure environment had been established and the multinational forces' functions terminated.[73
] A termination provision was also included in Resolution 1031, which authorized NATO to use force to implement the Dayton Accords with respect to Bosnia. In that resolution the Council terminated all its prior authorizations in that regard and decided, "with a view to terminating the authorization granted" to the NATO force, to review it within one year to determine whether it should be continued.[74
] In Somalia, the original authorization in Resolution 794 contained no time limit, but each subsequent resolution authorized UNOSOM II to use force for a limited period of time (usually about six months).[75
] That authorization was periodically renewed until finally terminated on March 31, 1995.[76
This admittedly brief survey suggests that substantive and temporal limitations on Security Council authorizations are possible; that relatively narrow authorizations are workable; and that contractee states can be required to seek new authorizations to undertake expanded uses of force. On the basis of experience in the Korean War, the Persian Gulf war and these later incidents, we suggest several guidelines regarding the promulgation and interpretation of resolutions authorizing the use of force.
First, resolutions should set forth clear, explicit and limited objectives. They should eschew clauses that would appear to grant nations a blank check to employ force to achieve potentially limitless objectives. In most cases, we believe it possible to achieve reasonable clarity of objectives and avoid indeterminate language such as "restore international peace and security." In some cases, it may prove necessary to use language such as "secure a stable environment." If, however, the objectives cannot be defined clearly, the Council ought to examine whether authorizing the use of force is advisable and evaluate other mechanisms that would enable it to maintain some control over the operation.
Second, resolutions should be temporally limited, either by a renewable set time period or by a provision requiring the Security Council to determine whether the objective has been achieved. To avoid the possibility of a veto that would permit the authorization to remain in force, the Council might provide that it must approve such determinations by majority vote or supermajority, or require an affirmative vote in order to continue the authorization.[77
Finally, authorizing resolutions should be interpreted narrowly both to minimize violence and to ensure that the Security Council supports the particular use of force. This guideline is consistent with the provisions on the use of force in the Charter, as well as its object and purpose. A liberal interpretation of such authorizations would not be consistent with the Charter.
Several objections could be made to the foregoing analysis. First, such limitations could be viewed as counterproductive, encouraging noncompliance by the nation being penalized by the Council. For example, the limits contained in post-Persian Gulf war authorizations were criticized by some as being too weak and ineffective. While imposing temporal and substantive limitations on the use of force could possibly hinder UN military operations, the alternative of granting contractee states virtually limitless discretion is more dangerous in that it provides no international check on potentially devastating military escalations.[78
Second, it could be argued that these recent efforts by the Security Council to control the scope and extent of the uses of force add little to our understanding. In contrast to the Korean and gulf wars, they involved relatively small-scale operations in which the major powers were reluctant to employ force. Thus, in the Bosnia crisis, the Western states and Russia were cautious or opposed to the assertive use of force,[79
] and often rejected draft resolutions proposed by the nonaligned members of the Security Council seeking broad authorizations.[80
] Similarly, in Somalia the United States initially, and at various points thereafter, sought to narrow the objective for which force would be used, while the Secretary-General pushed to widen the mandate. In these situations, the major powers often willingly accepted temporal and substantive controls on the use of force, restrictions that would have been rejected in a major war in which a permanent member had substantial interests.
We would hope that the post-gulf war practices of calibrating and limiting objectives and imposing temporal limits and Security Council control would be transferable to a major conflict. Unfortunately, past experience and present reality do not make us sanguine about those prospects. More realistically, the momentum toward war, the assertion of national interest and the perceived necessity for military flexibility and power to counteract aggression might once again, as in the Korean and gulf wars, overwhelm other Charter values: Council control, minimizing authorized violence and pursuing peaceful settlement. For these reasons, the Security Council should place strong emphasis on maintaining control over the initial decision to authorize the use of force and insist that nations not resort to non-defensive uses absent a clear Council mandate.
IV. Cease-Fire Agreements and Security Council Authorizations of Force
The prior two sections dealt with the initiation and contracting out of the use of force: this section concerns problems that occur in terminating contracted-out authorizations. As the Iraqi inspection crisis illustrates, states have claimed the authority to use force subsequent to a permanent cease-fire ending hostilities.
The basic Charter principles that we have outlined peaceful resolution of disputes and Security Council control over the use of force require that, even where there is no termination provision in the authorization to use force, that authority expires with a permanent cease-fire unless explicitly continued. Such authorization cannot be revived by the contractees unilaterally; it is for the Security Council to consider whether a breach of that cease-fire justifies a reauthorization of force.
The Effect of the UN Charter
Pre-Charter law permitted a party to a cease-fire to treat its serious violation as a material breach, entitling it to resume fighting.[81
] The United States and the United Kingdom rely on this law to argue that Iraqi violations of the inspection regime established during the cease-fire revived the Resolution 678 authorization to use force. This view ignores the prohibition on the use of force under Article 2(4), which, properly understood, "changes a basic legal tenet of the traditional armistice."[82
] Post-Charter law holds that UN-imposed cease-fires reaffirm the basic obligation of states to refrain from using force. Therefore, a violation of the cease-fire, even a material breach, is not a ground for the other party to revive hostilities, at least short of an armed attack giving rise to an Article 51 right of self-defense.[83
] As one scholar writes, "Although terms of the armistice agreements dealing with important but collateral issues such as verification regimes or implementation mechanisms may fail, the overriding obligation not to resort to force as a means of dispute settlement is deemed severable and continues to be binding."[84
Strong policy interests make it advisable that Security Council authorizations to use force be terminated by the establishment of a cease-fire unless explicitly and unambiguously continued by the Council itself. The overall objectives of the Charter and the changes it has wrought in the law on the use of force mandate that disputes be settled by peaceful means, if at all possible. This suggests that the end of hostilities, however that is accomplished, reestablishes the Article 2(4) obligations on all states not to use force, including in implementing cease-fire provisions, and not to do so without a new Council authorization. For example, no one would seriously claim that member states of the UN command would have the authority to bomb North Korea pursuant to the 1950 authorization to use force if in 1999 North Korea flagrantly violated the 1953 armistice.
Moreover, that rule is especially necessary when the Security Council control consists of authorizing member states to use force, a more decentralized approach than envisioned by the Charter's framers. To permit authorizations to continue after a permanent cease-fire ends hostilities would allow individual states to use force indefinitely, a result that would undermine the Council's control[85
] particularly when the authorized states include a permanent member that could veto any Council resolution terminating the authorization. Every authorization to use force thus far has been at the behest of a permanent member of the Security Council. This trend is likely to continue. In such situations the potential use by that permanent member of what has been termed a "reverse veto" to block the Council from terminating an authorization that no longer enjoys the support of the international community undermines the Council's legitimacy and Charter-mandated control over the use of force.[86
Indeed, the gulf war and its aftermath illustrate the problematic use of the veto threat to reverse the Charter's objective of peaceful settlement. In response to the peace initiatives pursued by the Soviet Union and other nations in the days before the coalition's ground attack, both the United States and the United Kingdom reportedly threatened to veto any resolution that would terminate the UN sanctions and the Resolution 678 authorization of force in return for an Iraqi pullout from Kuwait.[87
] More recently, the possibility of a U.S. and UK veto undoubtedly lurked in the background in preventing the Security Council from explicitly stating that the Resolution 678 authorization had terminated and that a new resolution must be adopted before any member state could use force to enforce UN inspections in Iraq. Consequently, the better interpretation of the legal situation regarding the further use of force by member states after a permanent cease-fire has been reached is that a new Council authorization must be obtained. That view is consistent with the law and objectives of the Charter.
Certainly, the use of the veto threat to prevent the repeal of an authorization that the majority of the Council wants terminated could be addressed in other ways. As already discussed in part III, the initial authorization can set a time limit for the use of force or provide for its own termination by majority or supermajority vote of the Council;[88
] or it can be narrowly drawn to ensure that force is used only for limited purposes. At times, however, the Council will not be able to so limit the contractee's mandate because of strong contrary pressure from powerful states or the nature of the operation. Therefore, at a minimum, to ensure that Security Council authorizations do not continue in perpetuity, the approach we have argued is correct since it flows from Article 2(4) of the Charter authorization to use force should cease with the establishment of a permanent cease-fire unless it is explicitly continued by the Security Council.[89
Allowing authorizations to use force to continue indefinitely would further alienate the smaller UN members, would decrease the legitimacy of such mandates, and could result in more resistance to them. It could be argued that the converse rule would perversely result in the continuation of hostilities by states so authorized, to avoid the extinguishment of their authorization by way of a cease-fire. But hostilities end and cease-fires are signed when the military and political situations converge in that direction, and states would be unlikely to avoid ending hostilities for fear that their UN authorization would lapse.
Practice Prior to the Gulf War
UN practice prior to the gulf war supports this approach to cease-fire law under the Charter. The various Middle East conflicts between Israel and Arab governments led to strong assertions by the Security Council and UN officials that violations of cease-fires or armistices do not legally justify forceful countermeasures by individual states. When the Security Council, on July 15, 1948, imposed a cease-fire on the belligerents, the UN mediator, Count Bernadotte, sent instructions interpreting the Council's resolution to mean that "(1) No party may unilaterally put an end to the truce. (2) No party may take the law into its own hands and decree that it is relieved of its obligations under the resolution of the Security Council because in its opinion the other party has violated the truce."[90
] Nonetheless, the Israelis and Arabs continued to violate the cease-fire on the basis of alleged violations by the other party. The Security Council then adopted a resolution reiterating that "[n]o party is permitted to violate the truce on the ground that it is undertaking reprisals or retaliations against the other party."[91
In 1956, as the Middle East situation deteriorated, the Security Council asked Secretary-General Dag Hammarskjöld to review enforcement of and compliance with the armistice agreement. Both Israel and Egypt desired the armistice to allow in conformity with pre-Charter customary international law each party the right to take reprisals in response to the other's violations. The Secretary-General rejected that view, arguing "that [Israeli-Egyptian] compliance [with the armistice] should be unconditional, subject only to resort to the Security Council if attacked and the inherent right to self-defense." Even the right of self-defense was narrowly circumscribed: "only the Security Council could decide that a case of non-compliance was a justification for self-defense [under] Article 51." For Hammarskjöld, the key principle was the binding nature of the cease-fire, irrespective of infringements of other articles of the armistice, a principle that resulted from the basic obligations of all UN members not to use force.[92
It might be argued that UN-negotiated or -imposed cease-fires ending hostilities between individual states are different from a UN cease-fire terminating hostilities between UN-authorized forces and an aggressor state. While there is an obvious factual difference when the United Nations is a party to the conflict, both situations present similar theoretical problems and scholars have not treated them differently.
Most cases of hostilities between nations will involve claims by at least one nation of authorization under Article 51 of the Charter to use force in self-defense. Nonetheless, a UN-imposed or -brokered cease-fire will extinguish that nation's claim of right under Article 51, even if the cease-fire does not fully vindicate its claims. Similarly, nations acting pursuant to a Chapter VII authorization have a valid right to use force, but that right is also extinguished after hostilities end and a permanent cease-fire is promulgated. In both situations the Charter's command that peaceful means be used to settle disputes requires that nations not use force after the imposition of a cease-fire unless either a new aggression occurs, reactivating Article 51, or authorization is given by the Security Council. For example, if Kuwait, with the assistance of the United States and Saudi Arabia, had operated exclusively under Article 51 and successfully reversed its conquest by Iraq, a UN-brokered cease-fire would have extinguished any right of those states to resume fighting in the event of an Iraqi violation of the cease-fire agreement (unless Iraq reinvaded Kuwait, retriggering Article 51). The legal situation should not be different because Resolution 678, and not solely Article 51, authorized the coalition's efforts.
It could still be argued that force used under Security Council authorization ought to be different from wars between individual nations because UN authorizations might be broader than the Article 51 exception and might therefore survive a cease-fire. For example, Resolution 678 and Korean War Resolution 83 both contain broad language authorizing force, not merely to defend Kuwait and South Korea, but "to restore international peace and security in the area." However, the experience under the Korean armistice strongly suggests that Council authorizations to use force end with a cease-fire or armistice. That armistice ended hostilities but did not explicitly extinguish or continue the Resolution 83 authorization to use force.[93
] In the negotiations leading to the armistice, the South Korean Government took the position that violations of the armistice by North Korea or failure to achieve Korean unification at the political conference proposed in the armistice should automatically lead to a resumption of hostilities.[94
] The United States and the UN coalition rejected that position, although the sixteen UN members with armed forces in Korea stated their commitment to defend South Korea if attacked by the North.[95
In 1955 and again in 1956, South Korea argued at the United Nations that North Korean and Chinese violations warranted termination of the armistice and the resumption of hostilities, a position that no other country adopted.[96
] In 1957 the Unified Command announced that Communist violations of the armistice provision prohibiting the introduction of combat equipment and weapons relieved the Unified Command of its obligation to comply with that provision, but that it would continue to observe the cease-fire and implement all of the other armistice provisions.[97
] The Unified Command's position was thus consistent with Hammarskjöld's position in 1956 and Bernadotte's view in 1948.
In 1967 the United States brought the Security Council's attention to serious violations of the armistice, including armed attacks resulting in almost five hundred UN and South Korean casualties. The United States claimed the right to take "appropriate measures in self-defense" to protect "civilians and military personnel" but studiously avoided making any claim or threat to take forceful countermeasures against North Korea.[98
] One military analyst of the armistice concludes that in only one incident during the whole period between 1953 and 1967 did the UN forces engage in what might be construed as a reprisal for armed attacks against South Korea,[99
] and even that incident could come within the law of hot pursuit.
The Iraqi Cease-Fire and the General Rule on Cease-Fires
The permanent cease-fire that ended the 1991 Persian Gulf war supports, although not completely without doubt, the general rule that Security Council authorizations of force expire with a cease-fire. Resolution 687 is a detailed resolution that sets the terms for a formal cease-fire; it includes provisions on, inter alia, settling the boundary dispute between Iraq and Kuwait; establishing a demilitarized zone; eliminating Iraq's chemical, biological and nuclear weapons capability; continuing economic sanctions; and setting up a compensation fund. The terms of the resolution do not state that force can be employed unilaterally by UN member states to enforce its mandates. Its paragraph 1, however, does affirm that all thirteen prior Security Council resolutions, to the extent not modified by 687, survived the cease-fire, and Secretary-General Boutros Boutros-Ghali believed that Resolution 678 "remained in force" even after the cease-fire.[100
] Despite the general terms of paragraph 1, the history and text of the cease-fire resolutions clearly show that the Resolution 678 authorization to use force expired with the conclusion of the permanent cease-fire.
After the suspension of hostilities, a provisional cease-fire, Resolution 686, was adopted. The distinction between a temporary cease-fire that does not terminate an authorization and a permanent one that does is illustrated by these Iraqi resolutions. Resolution 686 explicitly refers to paragraph 2 of Resolution 678, the "all necessary means" authorization, and "recognizes" that it "remain[s] valid" "during the period required for Iraq to comply with" the terms of the provisional cease-fire. Thus, the unilateral use of force provision of Resolution 678 would remain "valid" only temporarily, pending Iraqi compliance with the provisional cease-fire.[101
] Moreover, the Security Council rejected a U.S. effort to authorize force if Iraq failed to comply with all the provisions of the cease-fire.[102
Resolution 687, in contrast to Resolution 686, did not explicitly state that Resolution 678 would remain valid until Iraq complied with its detailed terms.[103
] The crux of Resolution 687 was the transformation of the temporary cessation of hostilities into a permanent cease-fire upon Iraq's acceptance of, not compliance with, its terms.[104
] Of all the detailed provisions in the cease-fire, only paragraph 4 guaranteeing the inviolability of the Iraq-Kuwait border contains language authorizing the use of force, and then only by the Security Council and not by individual states.[105
] That the Council decided to guarantee Kuwait's boundary by force if necessary a guarantee that is central to both Article 2(4) of the Charter and the 1991 Persian Gulf war excludes an interpretation of Resolution 687 as continuing the Resolution 678 authorization so as to allow individual nations to use force to rectify other, presumably less central violations. It would be illogical for Resolution 687 to require Security Council action to authorize force against threatened boundary violations, yet dispense with such action if Iraq violated another provision of the resolution.[106
Moreover, paragraph 34 of Resolution 687 states the Council's decision "to remain 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 area." That provision makes clear that the Council, not individual states, determines not only whether Iraq has violated Resolution 687 but also whether to take "further steps" for its implementation. The express vesting of this authorization in the Security Council is inconsistent with the view that Resolution 678 continues to allow individual states to decide for themselves whether to use force to implement the cease-fire resolution.
Despite the language and history of Resolution 687, U.S. and UK officials have asserted since 1991 that the Resolution 678 authorization to use force remains in effect, and on several occasions they have deployed forces against Iraq.[107
] They argue that the traditional material breach doctrine is applicable to UN cease-fires and that an Iraqi breach of the cease-fire therefore reactivates Resolution 678. However, even if the resolution survived the cease-fire and can be reignited under traditional armistice law to address material breaches, the question remains: who decides when a material breach reactivates the authorization to use force the Security Council or the United States and its coalition partners? The practice since the cease-fire confirms what is central to Resolution 687: that this authority is held by the Security Council alone. Since the Council made the cease-fire with Iraq, it is the party to determine whether Iraq is in breach. Thus, for Council-imposed cease-fires, retaining the material breach doctrine turns out to lead to the same consequences as the Charter rule propounded above: only the Council can decide to resume hostilities.
The question of who determines whether Iraq has materially breached the cease-fire[108
] underscores the basic problem with the contracting-out model of UN enforcement: Is this a UN operation for which the threshold decision to employ force is determined by the Security Council? Or once force has been authorized, are all decisions delegated to individual states for the duration of the dispute? Professor Ruth Wedgwood and U.S. officials argue that the "cease-fire on the ground was in fact a decision of coalition forces," not the Council, and that, presumably, any of those forces can therefore declare Iraq in material breach and use force to secure compliance.[109
] That coalition forces declared a cessation of hostilities on the ground is not inconsistent with the fact that the formal, legally binding cease-fire was established by the Security Council, not by the United States or any other state. It was declared pursuant to an elaborate Council resolution setting forth its terms and conditions. The Iraqi notification of acceptance, after which the "formal cease-fire is effective," was delivered not to the United States or its coalition partners, but to the Security Council and the Secretary-General. Furthermore, the cease-fire resolution explicitly states that the Council (not individual countries) will "take such further steps as may be required" for its implementation.
The practice since 1991 lends support to the position that a finding by the Security Council of a material breach is necessary before force can be employed. In January 1993, the United States, the United Kingdom and France launched air strikes against Iraq in response to various Iraqi violations of the cease-fire agreement.[110
] Those strikes were undertaken only after the Council found the Iraqi actions to "constitute an unacceptable and material breach of the relevant provisions of resolution 687."[111
] While the air strikes do suggest that the Security Council was willing at that time to countenance a use of force pursuant to Resolution 678, they also reaffirm what is central to our discussion: that it is for the Council and not individual states to declare Iraq in "material breach" of the cease-fire and thus to authorize force.[112
Since June 1996, numerous unsuccessful attempts have been made to persuade the Security Council to determine that Iraq is in material breach of the cease-fire agreement.[113
] These attempts reflect the UK view that such a Council finding is necessary to authorize military action,[114
] a view informed by the traditional law of cease-fires, the UN Charter, Resolution 687 and past practice.
Finally, the winter 1998 practice with respect to the Iraqi inspection regime confirms the general proposition that authorizations by the Council to use force either terminate with a permanent cease-fire or at least require it to declare a material breach and reauthorize force. After Kofi Annan returned from Baghdad in February 1998 with the agreement with Iraq's President Saddam Hussein, the United States and the United Kingdom lobbied for a Council resolution that would have automatically authorized force if Iraq violated the Annan agreement. Resolution 1154 not only rejected such automaticity,[115
] but clarified the view of a majority of the Council that its explicit authorization was required to renew the use of force.[116
] As the Russian delegate noted, "No one can ignore the resolution adopted today and attempt to act by bypassing the Security Council." Similarly, France stated that the resolution was designed "to underscore the prerogatives of the Security Council in a way that excludes any question of automaticity...It is the Security Council that must evaluate the behavior of a country, if necessary to determine any possible violations, and to take the appropriate decisions."[117
] While U.S. officials still argue that the failure of its members to introduce language explicitly requiring member states to return to the Council leaves individual nations free to employ force if Iraq violates the resolution, the Council's repeated rebuffs to the U.S. and UK effort to obtain authority to use force constitute if not explicit, at least implicit, disapproval of the U.S. claim.
The crisis in the fall of 1998 regarding the threat of the United States and NATO to use force against Yugoslavia unless it withdrew its security units and army from Kosovo demonstrates that the problems discussed in this article are likely to recur. The United States, again, was asserting that it and its allies have the authority to use force based upon claimed implicit Security Council authorization: Resolution 1199, while it condemned Yugoslavia's actions in Kosovo, did not explicitly authorize the use of force.[118
] As in the Iraqi inspection crisis the previous spring, the United States conflated a Security Council condemnation of a nation's actions with an authorization to use force. That conflation ignored the Charter's requirement that the Council must not only condemn a nation's actions as a threat to the peace, but also decide that force should be employed to counteract the threat.
The grave dangers attendant on a regime of law permitting individual nations or even regional organizations to use nondefensive force without explicit Security Council authorization led all the NATO allies to reject the U.S. position in June 1998.[119
] Although NATO has since moved closer to using force without clear Council approval, a number of European nations still appear uneasy about doing so.[120
When force should be employed to counteract a particular threat to the peace can be difficult to discern, particularly in a world that abounds in dangerous and malevolent actors. Often a real or imagined evil will exert a tremendous centrifugal pull on most of us to support forceful action. Nonetheless, the perils associated with warfare that great powers can use humanitarian concerns to mask geopolitical interest;[121
] that major air strikes such as those threatened against Iraq and Serbia in 1998 have serious consequences in lives lost, destruction caused and the resulting destabilization; that warfare is of limited utility as a means of solving complex, long-standing, underlying problems; that a world order that allows individual or coalitions of nations to deploy offensive military might for what they deem are worthy causes amounts to anarchy these perils require that force be used only as a last resort as determined by a world body. That principle, inscribed in the UN Charter, stipulates that the Security Council must explicitly approve non-Article 51 uses of force.
During the Cold War, many claimed that the Security Council could not fulfill its first and primary responsibility of ensuring international security. The end of the Cold War and the reversal of Iraq's invasion of Kuwait in 1991 were viewed as reviving the Council's role in collective security. The early 1990s brought fears from some quarters that the United Nations was acquiescing too readily in U.S. uses of force. At times, these fears led to criticisms of explicit UN authorizations of force as illegitimate, unwise, or merely constituting a multilateral veneer for unilateral action. At other times, critics claimed that forceful action was being taken in the name of the United Nations that had not really been authorized by the Security Council.
While it is too early to provide any definitive answer, it may well be that the recent events portend a restoration of the Council's proper role. The world needs a Security Council powerful enough and sufficiently unified to authorize strong countermeasures against aggressors or genocidal regimes and yet not be a mere multilateral rubber stamp for unilateral decision making. It must steadfastly uphold its mandate pursuant to Article 41 to authorize force only as a last resort.
On December 16, 1998, the United States and the United Kingdom launched four days of air strikes against Iraq, claiming that Iraq had failed to cooperate fully with the UN weapon inspectors. The United States and Great Britain acted without obtaining the Security Council's authorization to use force and, thus, as this article has argued, in violation of the Charter.[122
] The United States and Great Britain argued, as they had in February, that they had legal authority to use force to respond to Iraqi cease-fire violations. Other nations again disagreed.[123
The December 1998 bombing of Iraq suggests that our hopeful prediction of a strengthened role for the Security Council in controlling the use of force must be tempered by the painful reality of superpower unilateralism. The symbolism of the bombs falling on Iraq while the Council debated its response to a report from a UN special commission about Iraqi compliance with UN resolutions starkly illustrates the refusal of the United States to accept limits on its power. The U.S. position is that it will enforce Security Council resolutions by force, whether or not the Council sees fit to do so. In the short run, the Council was rendered impotent. For the long term, the consequences are potentially serious. The Security Council will be reluctant to authorize and contract out force it cannot control; powerful nations will act on their own.
for list of document references.<<
Jules Lobel is a Professor of Law at the University of Pittsburgh Law School; Michael Ratner is an Attorney for The Center for Constitutional Rights. The authors would like to thank Lisa Price, Todd Piczak and Neeli Shreiber for their valuable research assistance, and Jane Stromseth for her invaluable comments on earlier drafts of this article.
Article copyright © Jules Lobel and Michael Ratner; American Society of International Law; all rights reserved
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