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Re: no fly zones

Dear Neil
There does seem to be a general view among people opposed to the bombing
& zones that the UK & US base their legal justifications on Security
Council authorisation (esp SCR688). In my opinion, this is not so
(although the British government did prevaricate on this for a very long
time). The primary justification of the British government seems to rest
nowadays upon a claim to a right of "humanitarian intervention". The claim
to be improving the human rights situation among the Kurdish and southern
Shi'ite population of Iraq is not simply a political add-on to a
pre-existing legal argument, but it is the legal argument itself. Often
they'll mention SCR688 as identifying there was a problem already there,
but this is not an essential part of the (legal) argument.

There's 2 ways to examine the claim - from a legal angle & from a factual
basis. The legal claims are highly significant. In the 1980s, the UK
rejected in principle the idea of militarily intervening in other States
without SC authorisation, basing this position on the UN Charter. This
changed with Iraq, and is now applied to numerous other situations
(Kosova, Liberia, Sierra Leone): the argument is now that it is legitimate
to militarily intervene in (ie invade) states which are grossly violating
the human rights of their populations or sectors of the
population, if such an intervention will help allieviate the
oppression of that population. Moreover, it is up to the individual state
to decide whether the human rights violations are shocking enough to
warrant its intervention: there doesn't need to be an impartial
investigation or resolution proclaiming that the HR violations have
reached a particular standard of brutality.

For the UK, this can be seen clearly in Blair's articulation of the
"Chicago doctrine" for NATO's future role; and more articulately in
Foreign Secretary Robin Cook's speech at Chatham House on 28 Jan 2000
(both on the web). The argument is that art.2(4) of the UN Charter, which
protected states from military intervention without the authorisation of
the Security Council, must now be reinterpreted. Not only is sovereignty
no longer the basis of international law (this, arguably, has not been the
case since 1945 anyway), but also that states no longer have the
legitimate monopoly on the use of force within their own territories.

This is not simply an outlandish claim on the part of the usual
suspect, the US-K axis, but has quite a number of other supporters. Take
for instance the UN Secretary-General: far from protecting the natural
interpretation of the UN Charter, he quite openly spoke in favour of
NATO's  Kosova intervention, using the very argument above. For example,
to the Human Rights Commission (7 April 1999) he stated repeatedly that
the UN Charter should not 'protect' those guilty of gross violations of
human rights: clearly implying that he believed that FRY could not rely on
2(4) to protect itself from NATO. 

Although this may seem far removed from the no-fly zones, this is the
source of the UK/US legal justification: Iraq, by grossly
violating the human rights of sectors of its population, has ceded its
right to be free of military intervention.

This leads onto the second part of the argument: a humanitarian
intervention must be humanitarian, and so you need to look at the facts of
the situation: were the NFZs designed, & have they worked, to stop
or reduce human rights abuses? This is not the same as looking at
individual bombing raids, killing yet another flock of sheep or dropped on
another undefended village; those particular acts could be illegal without
the whole NFZs system being unlawful. This comes down to a series of
counterfactuals: would the Kurds & the Southern population suffered
much more if the NFZs had not been put in place? what would happen to them
if the NFZs were lifted? have the NFZs served to allieviate the HR
situation in the rest of the country? The UK would point to the appalling
oppression of Mar-Apr1991, and claim that without the NFZs much worse
would have come.

I've just put this in to give a stronger idea of what exactly the US & UK
are claiming about the NFZs. Personally, I strongly disagree with both the
factual and the general legal arguments they're putting forward, but I
think it's important to know what we're arguing against.

For interest, a few academic international law references (not
necessarily in line with what I've said above):

Christine Gray, 'After the ceasefire: Iraq, the SC & the use of force',
British Yrbk of Intl Law, 1995, 135; esp pp.160-69

Langren, 'Safety zones and international protection', Intl Jrnl of Refugee
Law, 7 (1995), 436

Philip Alston, 'The SC & human rights: lessons to be learned from the
Iraq-Kuwait crisis and its aftermath', Australian Yrbk of Intl Law 1992

And the debates in the Security Council around SCR688, reprinted in
Weller, ed., Iraq & Kuwait, The hostilities and their aftermath, pp.131ff

Glen Rangwala.

On Tue, 21 Mar 2000, Mariam Appeal wrote:

> I'm trying to research about 'justifications' and speculations concerning
> the 'no fly' zones, 'partition' and the ongoing bombings of Iraq. Washington
> and London claim the policy here is backed by UN resolutions 678, 687 and
> 688 but on re-reading them the evidence looks scanty to say the least. Has
> the US/UK specified which clauses purport to justify the US-UK (-Turkish,
> Saudi, Kuwaiti) patrols/attacks? Have there been any good analyses of the
> policy's relationship to international law? Doesn't the policy's clear
> violation of Iraqi sovereignty massively outweigh any shreds of its arguable
> legality? Other than Richard Becker's article (IAC) there's not much I can
> find on speculation either.
> Fraternally,
> Neil Sammonds (Mariam Appeal)
> Mariam Appeal
> t: +44 (0)207 872 5451
> f: +44 (0)207 753 2731
> e:
> w:
> -- 
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