Assessing the Legality of Invading Iraq

Georgetown Law Journal, Jan 2004 by Murphy, Sean D

B. DID RESOLUTION 687 PRESERVE THE GENERAL AUTHORIZATION IN RESOLUTION 678?

By its terms, Resolution 687 of April 1991 neither expressly suspended nor expressly terminated Resolution 678.48 In the preamble to Resolution 687, the Security Council "recalls" Resolution 678 and further says that it is "[b]earing in mind its objective of restoring international peace and security in the area as set out in [the Security Council's] recent resolutions."49 Paragraph one of Resolution 687 then "affirms" all earlier resolutions relating to Iraq, including Resolution 678, "except as expressly changed below to achieve the goals of this resolution, including a formal cease-fire."50 After setting forth various provisions regarding the demarcation of the Iraq-Kuwait border, establishment of a demilitarized zone along that border, identification and destruction of weapons of mass destruction, compensation for loss, damage or injury from Iraq's invasion, and other matters, paragraph thirty-three of Resolution 687 declares that, "upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the above provisions, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990)."51 Iraq informed the United Nations of its acceptance of Resolution 687.52 The President of the security Council then advised Iraq that the Security Council had determined that the conditions established in paragraph thirty-three of Resolution 687 had been met.53

The U.S. legal theory is that Resolution 687 implicitly indicates that international peace and security has not yet been restored to the area, that the provisions of Resolution 687 must be fulfilled before such restoration occurs, and that the Resolution 678 authorization to use force generally remains viable until such conditions are fulfilled.54 There are three principal problems with this interpretation.

1. Resolution 686

First, the interpretation does not take account of Resolution 686, which was essentially a provisional cease-fire resolution.55 After six weeks of an air and ground campaign against Iraq in January-February 1991, Iraq informed the United Nations on February 27 that it agreed to comply fully with the security Council's resolutions.56 President George H.W. Bush ordered a suspension of offensive combat operations effective February 28.57 Shortly thereafter, on March 2, the Security Council adopted Resolution 686 as a prelude to the much more robust Resolution 687 of April 2.58

The Security Council said in Resolution 686 that it was "[u]nderlining the importance of Iraq taking the necessary measures which would permit a definitive end to the hostilities."59 In paragraphs two and three of the resolution, the Security Council referred to all its prior demands upon Iraq and, in particular, listed eight measures that Iraq must now still implement: (1) rescind the purported annexation of Kuwait; (2) accept in principle liability for loss, damage, or injury arising from the invasion of Kuwait; (3) release or return the remains of all detained foreign nationals; (4) begin to return all Kuwaiti property; (5) cease hostile or provocative actions against other states, including missile attacks and flight of combat aircraft; (6) designate military commanders to arrange for military aspects of a cessation of hostilities; (7) release or return the remains of prisoners of war; and (8) help identify Iraqi mines, booby traps, and other explosives, as well as any chemical and biological weapons located in Kuwait, in areas of Iraq occupied by the coalition, and in the adjacent waters.60 Then, in paragraph four, the Security Council explicitly addressed the continuing viability of Resolution 678, saying that it "[r]ecognizes that during the period required for Iraq to comply with paragraphs 2 and 3 above, the provisions of paragraph 2 of resolution 678 (1990) remain valid."61 In the final operative paragraph of the resolution, the Security Council looked forward to "the rapid establishment of a definitive end to the hostilities."62