Latest Iraq resolution (SCR 1441) and no-fly zones (fwd)

["Clement M. Henry" <chenry@mail.la.utexas.edu>]

A bit of complex legalese here but the point is that the Anglo-American
enforced no-fly zones do not have a Security Council stamp of approval, as
others have also argued in agreement with Colin Rowat.

*****************************
Clement M. Henry
Professor of Government
University of Texas at Austin
Austin TX 78712
tel 471-5121, fax 471-1061

---------- Forwarded message ----------

Date: Tue, 12 Nov 2002 15:58:23 -0000
From: Colin Rowat <c.rowat@bham.ac.uk>

Some US politicians seem to be presenting the latest Security Council
resolution on Iraq (SCR 1441, see http://www.casi.org.uk/info/scriraq.html
for a complete list of Iraq SCRs) as calling on the Iraqi government not
to fire on US and British warplanes over Iraq.  Glenn Kessler's recent
article in the Washington Post attributed this view to "senior
administration officials" and Richard Perle, speaking on the BBC's Radio 4
this morning, made the claim directly.

The clause to which they are referring is OP 8, which reads:

<begins> Decides further that Iraq shall not take or threaten hostile acts
directed against any representative or personnel of the United Nations or
the IAEA or of any Member State taking action to uphold any Council
resolution; <ends>

In the context of the resolution's contents, its positioning immediately
after a paragraph on the rights of inspectors, and the negotiations more
generally, it seems fairly clear that this was intended to refer to the
safety of inspectors, their aircraft and other property.  However, if the
US and British warplanes systematically destroying Iraq's air defences in
the 'no fly zones' are upholding Council resolutions, then this would
override Iraq's Article 51 right to self-defence (see
http://www.un.org/aboutun/charter/).

Thus, the interpretation of 1441 preventing Iraqi firing on US/UK
warplanes depends on the claim that they are upholding Council
resolutions.  As we've discussed before, the usual resolution cited in
this context is SCR 688. 688 is not a Chapter VII resolution (and
therefore cannot, under the UN Charter, be interpreted as mandating
enforcement action).  Further, it makes no mention of Iraqi aircraft, or
no fly zones: it merely calls for the Iraqi government to cease the
repressive action that it was taking to suppress the Iraqi intifada.  The
zones' boundaries have been defined and extended by US presidents rather
than by the Security Council.  While they are felt, in the north, to have
added a level of protection to Iraqi Kurds, the pilots' rules of
engagement are not designed to allow protection of human rights on the
ground: they may attack if threatened.  Thus, State Department reports
over the 1990s have made clear that the Iraqi government was able to
prosecute its efforts against rebels in the south without interference
from US and UK jets.

Best,

Colin Rowat
The University of Birmingham |