Joint Enforcement Action and the Iraq Case

The intense activism of the Security Council of the UN pursuant to the restoration of Kuwait’s territorial integrity and sovereignty after Iraq’s invasion as of August, 1990, remains the watermark of joint enforcement action of the Security Council after the end of the Cold War, but its consequences are highly paradoxical.[1] The straightforward resolution with which the Council rejected the invasion of Iraq proved to be an effective tool to enforce Iraq’s withdrawal from Kuwait,[2] but at the same time the Security Council’s intervention came to be throughout time highly criticized.
First, resolution 678 (1990) became a matter of disagreement. The resolution’s authorization to “states” cooperating with Kuwait’s government, to use force against Iraq, unless such country implemented the mandates of resolution 660 before January 15, 1991, was highly controversial. Several members of the Council did not agree on the terms of such resolution.[3] However, the United States promoted what would be the basis of what later came to be known as the Coalition of the Willing, as opposed to the Council’s indeterminacy in decision making in hard cases.[4]
Second, after defeating Iraq, the Council became a de facto administrator of Iraq’s revenues from oil production, as well as a manager of its expenditures.[5] Whatsoever necessary doing such thing could have been, no express justification for doing so derived from the Charter. Third, the embargo conditions imposed on Iraq, as well as the military actions undertaken, derived in a dramatic humanitarian crisis on civilians, without providing a sufficiently legally based trend of action.
Fourth, the issuance of resolution 778 in 1992, which “authorized states to seize revenues from Iraqi petroleum sales and transfer them to the escrow account provided for in resolution 706 (1991)”, seemed to completely exceed the competence of the Council, under the Charter.[6] Fifth, in connection with all the facts abovementioned, the oil-for-food formula became highly illegitimate, and triggered a strong international and domestic opposition against the United States and the Council. And sixth, criticism due to corruption scandals by UN officers and trustees highlighted once again the problems derived from the I-legitimacy of the sanctions imposed over a sovereign state.
The decisions undertaken by the Council after the first days of the invasion, generally viewed, at first glance would seem to have stretched the capacity of the Council to undertake radical measures against aggressor states, as well as to impose harsh sanctions in order to enforce UNs’ Charter, thus endorsing the collective security system.[7] However, if we take a more skeptical look at the facts, we would have to admit that the unity of the Council seemed to have been simultaneously undermined by the authorization to undertake “all necessary measures” to enforce resolution 660 to cooperating states. This is true, as the United States and other states, undertook the measures that they –indeed- considered as appropriate, without the approval of the other members of the Security Council, which throughout time opposed with more intensity to some of the “measures” adopted by the United States on Iraq.
In the end, Iraq’s episode in the early nineties derived in a partial defeat of the collective security system portrayed by the Charter, and in the rise of the Coalition of the Willing, paving thus the road to unilateral intervention which characterized the first decade of the new millennia, under the euphemism of preventive war. Thus, the UN institution was severely hurt, and has been seen since once more as an agent without enough power to deter conflict and safeguard peace.
[1] CANCHOLA GUTIERREZ, Ulises. Analysis of the Resolution Regime of the Security Council. Mexican Annual Review of International Law. Volume 4. P. 88. A close look to the corpus iuris of the Resolutions undertaken by the Security Council is, no doubt, the most extensive, and relevant evidence of the agreement of the member of such Council to undermine Aggression and unlawful attacks to one of the member states of the United Nations.
[2] CANCHOLA GUTIERREZ, Ulises. Ibid. P. 96.
[3] CHESTERMAN, Simon et. Al. Law and Practice of the United Nations. Documents and Commentary. Oxford University Press. 2009. P. 56.
[4] MICIC TAGER, Alexander. El Consejo de Seguridad de Naciones Unidas y la Accion Colectiva: La Cuestion de la Soberania Estatal. Pontificia Universidad Catolica de Chile. Revista Pleyade No. 3. P. 187.
[5] CHESTERMAN, Simon et. Al. Ibid. P. 349.
[6] CHESTERMAN, Simon et. Al. Ibid. P. 349.
[7] CHESTERMAN, Simon et. Al. Ibid. P. 52.