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Re: [casi] Does a "material breach" of SCR687 justify an invasion?

Thank you Glen for a well researched analysis. I believe we need more research
into such issues, especially since all of the 1990-1991 campaign against Iraq was
based on accusing Iraq of violating international law.

I am, unfortunately, one of those who do not believe in the UN or its
usefulness. I am convinced it could be a tool for good, if we could turn it into a
democratic organization that operates within its Charter and international law. As
long as it remains an organization in the hands of 5 "super" powers, each of whom
can stop the adoption of a resolution accepted by the rest of the world, then it
would be hypocritical to accuse this country or that of being "undemocratic",
having no appreciation or respect for the will of the people, nor are we morally
right in selectively applying resolutions whenever a "super" power sees fit..
It is most important to remember that the UN is supposed to represent the
Nations of the world, not states or governments. The PREAMBLE of the UN Charter
starts with the following:
- to save succeeding generations from the scourge of war, which twice in our
lifetime has brought untold sorrow to mankind, and
- to reaffirm faith in fundamental human rights, in the dignity and worth of
the human person, in the equal rights of men and women and of nations large and
Later on, the same Charter grants 5 members special rights of veto not given to
other members, making the belief in the "equal rights of men and women and of
nations large and small" mere hypocricy…

Seen from the perspective of nations as members and not states, the UN (an
organization of nations) has not received the mandate from the nations of the
world to create states (like Israel, because prior to 1947 partition of Palestine,
there was no Israeli nation), nor to demarcate borders (like the Iraq-Kuwait). In
many of its decisions, the will and wishes of the people have been completely
neglected. It seems that soon after 1945, the UN became an organization of STATES
and not NATIONS. That was not what the Charter stated.

Resolution 678 is in itself a controversial resolution. The main problem seems
to be whether or not it included an authorisation to use force as in SCR678
para.2: "Authorizes Member States co-operating with the Government of Kuwait .. to
use all necessary means to uphold and implement Security Council resolution 660
(1990) and all subsequent relevant resolutions and to restore international peace
and security in the area".
Legal experts have argued that issue already in 1990. The problem seems to be
that the Charter is interpreted by those same powers in any way they like. And the
justifications for "violations" to the Charter are usually insults to people's
The Charter had set the mechanism and procedure for the use of force.
First of all, the SC must authorize the use of force " to maintain or restore
international peace and security". In the case of Iraq, that was not done. The
vague wording of the resolution was intentional, and at least one SC member
(Finland) admitted that when it voted for the resolution, it did not do that to
authorize the use of force.

Secondly, the SC should follow the procedures set out in articles 43 to 50.
All those procedures were fully disregarded.

Thirdly, it has been argued by Mr. Davidsson that a violation of a procedure
in the SC does not make the resolution illegal. The implementation of such a
resolution, taken in violation of a procedure, becomes illegal. If we accept that
explanation, then we should accept that any state which went out to participate in
the implementation of resolution 678 has committed a crime and violated
international law. The reason is China's abstention from voting on this
In a recent post, I have explained that the US itself, when drafting article 27
of the Charter, had maintained that the concurring vote of ALL permanent members
was a prerequisite for the adoption of a resolution on substantial issues. Why
that interpretation had changed in time, remains unclear. However, the Charter it
does not in any way give the SC the right to change interpretations anyway it

Whichever way it is seen, Resolution 678 DID NOT authorize the use of force:
Even SCR687 para.33 states: "a formal ceasefire is effective between Iraq and
Kuwait and the Member States cooperating with Kuwait". In this resolution, the SC
therefore admits that the military actions against Iraq were based on collective
action by states cooperating with Kuwait. This supports the legal justifications
given by some legal experts, who have argued that those states were not acting
according to articles 42-50 of the Charter, but according to article 51 of the
Charter, that of self defence.

Seen from this perspective, one could reach the same conclusion like Glen,
that the ceasefire was between Iraq and the states allying with Kuwait and not
between Iraq and the UN. What gives weight to that is that the ceasefire agreement
signed in Safwan was signed by an Iraqi officer and the US general who commanded
the allied forces. He was not commanding international forces nor fighting under
the UN flag. He was not a UN employee either.

The SC has accused Iraq several times of "violation of its undertakings to
cooperate with the Special Commission and the IAEA" according to Resolution 687.
Thanks to that go to UNSCOM and its inspectors.... Now with revelations of
UNSCOM's spying on Iraq, corroborated by statements from Scott Ritter and Rolf
Ekeus, one should wonder if the US and UK governments have themselves been guilty
of "violation of a provision essential to the accomplishment of the object or
purpose of the treaty."

I am one of those who believe that since resolution 678 was not an
authorization of the use of force, and that states which attacked Iraq violated
international law, then any resolution based on 678 has no legal grounds for it. I
do not accept the belief that SC resolutions are binding, regardless of how they
were adopted. I believe that if a resolution is adopted in violation of the
Charter then it becomes illegal, just like any action taken by any state against
the Charter. The SC is not above the Charter, nor above international law. It can
not change the Charter or change its interpretation as it wishes without due

However, since Glen argues the issue from the point of view that the legal
position offered by the UK government is valid, then we come again to resolution
687 to which the UK is referring and trying to find justifications for the use of
In that resolution, paragraph 14. states: "… notes that the actions to be taken
by Iraq in paragraphs 8 to 13 represent steps towards the goal of establishing in
the Middle East a zone free from weapons of mass destruction and all missiles for
their delivery and the objective of a global ban on chemical weapons"..
Has the SC or its permanent members done anything to implement this paragraph?
Isn't this a "violation of a provision essential to the accomplishment of the
object or purpose of the treaty?"

I hope you can make sense of my views, though I know we are involved in very
complicated and very tricky issues.


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