BYPASSING THE SECURITY COUNCIL

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 January 1999 Introduction 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 nonlethal 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 nondefensive 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 incidents19 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. (1) 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.20 While a majority of the Security Council opposed India’s claim,21 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.