ABSTRACT
When Saddam Hussein invaded Kuwait on 2 August 1990 the security Council reacted with unusual speed and decisiveness. Between 2 August and 29 November it adopted, under Chapter VII of the Charter, 12 resolutions on different aspects of the Kuwait crisis.18 It imposed sanctions;19 a naval embargo;20 and then, on 29 November, it finally authorised the use of force if Iraq did not comply with its resolutions by 15 January 1991.21
While the Council’s unprecedented sense of urgency and determination in dealing with aggression were widely praised, it was not acting precisely
enforcement measures under Chapter VII will be under the control of the Security Council and its Military Staff Committee. Thus, already on 25 August, when it asked the states with maritime forces in the Gulf area to monitor shipping, the Council had begun to depart from the precise terms of Chapter VII of the Charter. On 29 November, in Resolution 678, the Council diverged still further from the terms of Chapter VII when it authorised ‘member states cooperating with the government of Kuwait ... to use all necessary means’ (ie the use of force) if Iraq had not withdrawn by 15 January 1991. A comparable departure from the course envisaged in Chapter VII had also occurred in the Korean war (1950-3) in which there was also US control of military operations.22
The tendency to diverge from the Charter was inherent from the beginning of the 1990-1 Gulf crisis, and for a very good reason. In the 40 years of the Cold War the Security Council has made none of the preparations necessary to meet a crisis of this kind in the way suggested in the Charter. The Military Staff Committee had held no substantive meetings since 1948, and had done no preparatory work or contingency planning. No agreements with member states had been concluded under Article 43. Thus, when the Council denounced Iraq’s aggression in August 1990, it was not in a position to assure the security of other states in the region – most notably Saudi Arabia – against a possible attack by Iraq. Instead, a parallel operation was mounted under US leadership to protect Saudi Arabia. This was justified primarily under Article 51 of the Charter, which provides for the inherent right of individual or collective self-defence. When this operation, involving a massive deployment of forces, began, its name, Operation Desert Shield, gave the impression that it was defensive, and that UN sanctions and embargoes were to be the means of eventually forcing Iraq to withdraw from Kuwait. Later on, however, when the US build-up became so large as to have offensive capacity, and sanctions seemed to be having little effect on Saddam Hussein’s determination to hold on to Kuwait, the choice of the main instrument to reverse Iraq’s aggression shifted from sanctions to the use of force. The wisdom of the change from sanctions to force was a matter of much debate at the time, more particularly since the enforcement operation would be under the command of the USA rather than of a command structure designated by the Security Council. Moreover, the goal of Chapter VII is action short of force if possible. Article 42 states: ‘Should the Security Council consider that measures provided for in Article 41 [sanctions] would be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.’ No formal determination as to the inadequacy of sanctions was ever made by the Security Council was ever made by the Security Council before Operation Desert Storm was launched. In retrospect, it seems that sanctions, even when rigorously applied, are unlikely, in the short run at any rate, to force a dictatorial and unscrupulous leader to reverse his course. Saddam Hussein may well also have believed that the Security Council’s threat of force was a bluff which would never become a reality. When he had invaded Iran in 1980, the Security Council had sat on its hands, neither demanding withdrawal nor imposing sanctions. His assessment of the determination of the Security Council to reverse aggression was certainly influenced by this experience.
