CRITICAL ANALYSIS OF THE INVASION

OF KUWAIT BY IRAQ AND

VIOLATION OF KUWAIT’S DOMESTIC
JURISDICTION

PUBLIC INTERNATIONAL LAW

3RD SEMESTER 2014-2015

MEGHMALA MUKHERJEE (2013/B.B.A. LL.B/023)

VISHESH MEHROTRA (2013/B.B.A. LL.B/059)
YASH VARDHAN BHOTICA (2013/B.B.A. LL.B./060)
Table of Contents
Index of Authorities .............................................................................................................. 2

Abstract ................................................................................................................................ 4

Background Of Relations Between Iraq And Kuwait And Subsequent Invasion .................... 5

Opec, Oil And Declaration Of Economic War ................................................................... 5

Decision To Proceed With Armed Action.......................................................................... 6

Violation Of International Law: Annexation By Force .......................................................... 8

Iraq’s Justification Of Invasion .......................................................................................... 8

Violation Of International Law By The Arab League ........................................................ 9

Examining Article 2(4) Of The United Nations Charter ..................................................... 9

Violation Of International Law: Breach Of Laws Governing Warfare ................................. 11

Regional Rules Of The Gulf Co-Operation Council............................................................. 12

Resolutions Of The Security Council And Impositions Of Sanctions ................................... 13

Post Annexation Period ....................................................................................................... 15

American Intervention ..................................................................................................... 15

Role Of Saudi Arabia In The Intervention ....................................................................... 16

Legality of Post Annexation Actions ................................................................................... 17

Inherent Right Of Collective Self-Defence ...................................................................... 17

Prohibition On Use Of Force And Declaration On International Law Principles .............. 18

Legitimate Use Of Force ................................................................................................. 19

Mandates Of The United Nations Special Commission .................................................... 20

Conclusion .......................................................................................................................... 22

Bibliography ....................................................................................................................... 23
 INDEX OF AUTHORITIES

Other Authorities

 Article 2, 3, UN Charter........................................................................................... 10
 Article 1(1),UN Charter ........................................................................................... 19
 Article 2(4), UN Charter ............................................................................................ 8
 Article 24(1),UN Charter ......................................................................................... 19
 Article 33(1), UN Charter ........................................................................................ 19
 Convention on the Law of Treaties (Adopted May 22,1969; Opened for Signature
May 23,1969), United Nations, General Assembly, A/Conf. 39/27, 23 May 1969 .... 18
 Interview with Foud Badrawi, 19 May 1997, Cairo .................................................. 17
 Iraqi Memorandum, The Kuwait Crisis ...................................................................... 9
 Pact of the Arab League, 1945, 70 UN Treaty Series ................................................. 9
 Resolution 3314 (XXIX), Definition Of Aggression, In Resolutions Adopted By The
General Assembly, Vol I, December 1974, General Assembly Official Records:
Twenty-Ninth session supplement No. 31 (A/9631), New York: United Nations, 1975
................................................................................................................................ 19
 Resolution No. 2625 (XXV), Declaration On Principles Of International Law
Concerning Friendly Relations And Cooperation Among States In Accordance With
The Charter Of The United Nations, Official Records Of The General Assembly,
Twenty-Fifth Session, Supplement No. 18(AI8082), 24 October 1970. .................... 19
 Security Council Resolution 389 (East Timor), 478 (Jerusalem) and 497 (Golan). ..... 8
 Security Council Resolution 660 .............................................................................. 13
 Security Council Resolution 661 .............................................................................. 13
 Security Council Resolution 664 .............................................................................. 13
 Security Council Resolution 668 .............................................................................. 14
 Security Council Resolutions, 1990 ........................................................................... 7
 The Extraordinary Arab Summit Conference (1991). ............................................... 17
 The Kuwait Crisis, 159, UN Doc. S/PV. 2963.......................................................... 14
 U.S. Department Of Defence, Report To Congress On The Conduct Of The Persian
Gulf War-Appendix On The Role Of The Law Of War, ........................................... 11
  U.S. Library of Congress, Kuwait .............................................................................. 6

Books

 Musallam Ali Musallam, The Iraqi Invasion of Kuwait, Saddam Hussein, his State
and International Power Politics, British Academic Press .......................................... 6
 Nayif Ali 'Abaid, Comments on Iraq ........................................................................ 12
 Simon Murden, Emergent Regional Powers and International Relations in the Gulf... 5
 Tim Niblock, Beyond the Gulf War: The Middle East and the New World Order .... 16

Articles

 Christopher Greenwood, New World Order or Old? The Invasion of Kuwait and the
Rule of Law ............................................................................................................. 18
 Jaber Ali Jaber,"Al-Tashiilaat Alty Qadmthaa Dwi Majlis Al-Ta^ Aaawn Lathrir
Alkuuiit"(The Facilities for liberation of Kuwait from the GCC) ............................. 16
 K. Kaur, United Nations and Gulf Crisis .................................................................. 15
 Michael E. Schneider, How Fair And Efficient Is The UNCC System? A Model To
Emulate ................................................................................................................... 22
 Mufid Shhab, 'Azma Al-KhaliijWa Al-Dabluumasiia Al-Than'iaWaMut'addaAlatraf,
Seminar On Diplomacy In The Contemporary International Community ................. 17
 Paul Taylor & A. J.R. Groom, The United Nations and the Gulf War, 1990-91: Back
to the future? ........................................................................................................... 18
 Richard Schofield, Kuwait and Iraq: Historical Claims and Territorial Disputes ........ 5
 Richard. F. Nyuop. Persian Gulf States Country Studies Foreign Area Studies ........ 12
 Thomas C. Hayes, Confrontation in The Gulf: The Oilfield Lying Below the Iraq-
Kuwait Dispute.......................................................................................................... 5
 Thomas L. Friedman, Standoff in the Gulf: A Partial Pullout by Iraq is Fearred as
Deadkine ‘Ploy’ ......................................................................................................... 6
 Tom Cooper, with Brig.Gen. Ahmad Sadik (IrAF), Iraqi Invasion of Kuwait ............. 5
 ABSTRACT

International organisations like the Security Council have no doubt, tabled and authorised
various actions in furtherance of its powers and functions under the United Nations Charter.
Among the many important resolutions, the peculiar series of events which consumed the
Gulf region during the Iran-Iraq war, the invasion of Kuwait and the subsequent invasion of
Iraq by the United States and its allies have thrown up interesting questions. This period
marked a very active phase for the Security Council. This paper closely examines the legality
of various events which occurred during and post the annexation of Kuwait.
 BACKGROUND OF RELATIONS BETWEEN IRAQ AND KUWAIT AND
SUBSEQUENT INVASION

The linchpin that set off a series of events which would captivate the international
community’s attention with anxiety began with tensions between Ba’athist Iraq and the State
of Kuwait.

Kuwait and Iraq were close allies, and were co-participants in the war against Iran.
During the war against Iran, Kuwait had given substantial financial support to Iraq, and when
the war ended, Iraq was not in a position to repay the $ 14 billion it had borrowed from
Kuwait and requested Kuwait to forgive the debt, and Kuwait refused.1

OPEC, OIL AND DECLARATION OF ECONOMIC WAR

In 1988, Iraq set the motion for a reduction in the production of crude oil quota of the OPEC
members. The Organization of Petroleum Exporting Countries (OPEC), responding to a glut
in the world market, had laid down quotas for each member and set the price of oil at $18 a
barrel. Saddam accused Kuwait and the UAE of deliberately exceeding their quotas, forcing
the price down as they flooded the market. In the closed session of the Arab heads of states
during the Baghdad summit Saddam claimed that "for every single dollar drop in the price of
a barrel of oil, our loss amounts to $1 billion a year "2. He specifically accused Kuwait of
"stealing" Iraqi oil by slant drilling beneath the border in Rumaila oilfield, and demanded
compensation of $2.5 billion. 3 These accusations were flatly denied and dismissed byKuwait,
and said that this was but Iraq’s way to justify the military action against it. Reports held it
out to be “smokescreen to disguise Iraq’s more ambitious intentions.”4

To Saddam this was tantamount to a Kuwaiti declaration of "economic war". In

reference to that he said:

1
Tom Cooper, with Brig.Gen. Ahmad Sadik (IrAF), Iraqi Invasion of Kuwait (2003) (6th
February 2014), http://www.acig.org/artman/publish/article_213.shtml.
2
Richard Schofield, Kuwait and Iraq: Historical Claims and Territorial Disputes, Royal
Institute of International Affairs, 129 (1993)
3
Simon Murden, Emergent Regional Powers and International Relations in the Gulf, lthaca
Press, 205 (1995).
4
Thomas C. Hayes, Confrontation in The Gulf: The Oilfield Lying Below the Iraq-Kuwait Dispute, New York
Times, 3rd September, 1990,(6th February 2014), http://www.nytimes.com/1990/09/03/world/confrontation-in-
the-gulf-the- oilfield-lying-below-the-iraq-kuwait-dispute.html.
 “War is fought with soldiers, and much harm is done by explosions, killings and coup
attempts but it is also done by economic means. Therefore we would ask our Arab brothers
who do not mean to wage war I am now speaking only as far as Iraqi sovereignty is
concerned- I say to those who do not mean to wage a war on Iraq: This is in fact a kind of
war against Iraq...We have reached a point where we can no longer withstand pressure.”5

The fall in the output would enable Iraq to export oil such that it would be in a
healthier position to pay back its cumulative debt of $60 billion. This was not well received
by Kuwait, which is a large downstream petroleum industry was not willing to reduce oil
production, and this was observed by Iraq to be an aggressive action against it.

DECISION TO P ROCEED WITH A RMED ACTION

On 25 July 1990, only a few days before the Iraqi invasion, Kuwait and UAE had given their
acquiescence to a proposal which limited the daily output of oil to 1.5 million barrels. This in
effect would help settle the differences in pricing policy between Kuwait and Iraq. Despite
this, 100,000 Iraqi troops were already deployed along the Iraq-Kuwait border and the world
community chose, as it would appear to ignore the proposal and were inclined to proceed
with armed action.6

August 2, 1990, Iraq made its move. The primary force was carried out by the
commandos deployed by helicopters and boats on Kuwait City, subsequently seizing the
airports and two airbases. The Iraqi Air Force was tasked with the establishment of air
superiority. Kuwait, was largely caught unaware, and the preparation began only when the
aerostat indicated the invasion.7 Even when the defence was initiated, Kuwait was
conspicuously outnumbered.

Post the successful invasion, Saddam Hussein appointed Alaa Hussein Ali as Prime
Minister of the Provisional Government of Free Kuwait and Ali Hassam al-Majid as the de
fact governor. The Kuwaiti royal family was exiled and while in exile, they made several
attempts to persuade other countries to convince Iraq to leave Kuwait. The UNSC managed

5
Musallam Ali Musallam, The Iraqi Invasion of Kuwait, Saddam Hussein, his State and International Power
Politics, British Academic Press, 87 (1996)
6
Thomas L. Friedman, Standoff in the Gulf: A Partial Pullout by Iraq is Fearred as Deadkine ‘Ploy’, New York
Times, 18th December, 1990, (6th February 2014), http://www.nytimes.com/1990/12/18/world/standoff-in-the-
gulf-a- partial-pullout-by-iraq-is-feared-as-deadline-ploy.html.
7
U.S. Library of Congress, Kuwait,(6th February 2014), http://countrystudies.us/persian-gulf-states/98.htm.
to pass 12 resolutions8 demanding the immediate withdrawal from the occupation of Kuwait,
but this was blatantly disregarded by Iraq.

8
Security Council Resolutions, 1990, (6th February 2014) http://www.un.org/docs/scres/1990/scres90.htm.
 VIOLATION OF INTERNATIONAL LAW: ANNEXATION BY FORCE

Iraq's invasion and subsequent annexation of Kuwait is clearly a violation of the UN Charter9
which prohibits the use of force against the territorial integrity of any state. Although there
have been cases since 1945 in which a state has annexed territory following a successful use
of force (India's annexation of Goa, Israel's annexation of the Golan Heights and East
Jerusalem and Indonesia's annexation of East Timor are the clearest examples), they have
generally been condemned by the international community and it is no secret that that modern
international law does not permit any kind of annexation by force.10

IRAQ’S JUSTIFICATION OF INVASION

There were many reasons that were given by Iraq for invading Kuwait. It stated its long
territorial issues with Kuwait, it historic claim over the entire country as province of its own
and saying that the reason they separated was British Imperialism, oil pricing which was not
in line with the OPEC standards was also given as one of the reasons. Iraq said that the oil
pricing policies of Kuwait amounted to aggression as Iraq was losing revenues because of it.
Stealing of oil by vertical drilling was also one of the reasons. All these reasons even if true
cannot be regarded as valid reasons for the annexation of the entire country or even the use of
force to any degree.

There were two more reasons given by Iraq, one being that it had intervened at the
request of elements within Kuwait who subsequently formed the 'Provisional Government of
Free Kuwait'. The Bush administration had justified their actions in Panama in 1989 partly on
the ground that it was a 'pro-democratic' intervention at the invitation of those who had a
proper claim to govern Panama by saying this, the Iraqi regime may have hoped to embarrass
them.

The analogy with Panama - and the entire Iraqi argument about intervention by
invitation - is spurious. International law gives no state a right to intervene by force in
another country to replace its government, no matter how authoritarian that government or
how impressive the democratic credentials of those installed in its place. The reason being
that a state constitutes of its who have the sole right to determine by whom they want to be
governed whether it is a democracy or a communism. It is not for an outside state to

9
Article 2(4), UN Charter.
10
Security Council Resolution 389 (East Timor), 478 (Jerusalem) and 497 (Golan).
determine for the people of some other country to decide what kind of government is apt for
the people.

Insofar as the United States sought to justify its action in Panama on this ground, therefore, it
was trying to make bricks without straw. The government of Iraq has also attempted to justify
its annexation of Kuwait by arguing that Kuwait was historically part of Iraq and that its
existence as a separate state was an artificial consequence of British colonisation and
imperialism.11

VIOLATION OF INTERNATIONAL LAW B Y THE A RAB LEAGUE

The Preamble to the Arab League Pact, for example, makes clear that although the founders
of the League (of which Iraq was one) were 'desirous of strengthening the close relations and
numerous ties which bind the Arab states', they were 'anxious to support and stabilise those
ties upon a basis of respect for the independence and sovereignty of these states. 12

The original deployment of forces to Saudi Arabia and certain other Gulf states raises
no real problems. The initial objective of these forces was to prevent an Iraqi attack on Saudi
Arabia, and the legal basis for their deployment rested upon the invitation of the governments
concerned.

EXAMINING A RTICLE 2(4) OF THE UNITED NATIONS C HARTER

Iraq's invasion of Kuwait represented a massive failure of international law. Whatever Iraq
might have said about Kuwait being a province of Iraq, no one can deny that sending the Iraqi
army across the internationally recognized border of Kuwait was a violation of the first and
most evident principle of modern international law. This principle is set down in Article 2(4)
of the U.N. Charter: "All members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any state . . ."

There have been many instances when one state has tried to meddle with the internal
issues of another state. There have been times when one state has tried to pressurise other
state into accepting its demands. But never before had a state tried to terminate the

11
Iraqi Memorandum, The Kuwait Crisis, 75.
12
Pact of the Arab League, 1945, 70 UN Treaty Series 237.
sovereignty of a state like Iraq did with Kuwait.13 Modern international law rests on the
premise that states are to seek resolution of their disagreements through peaceful means
rather than recourse to force.14The very basis of International law is to prevent an armed
conflict or an act ofaggression and hence to settle an issue peaceful means are the only means
that internationallaw prescribes.

13
Supra note 5.
14
Art 2, 3, UN Charter
 VIOLATION OF INTERNATIONAL LAW: BREACH OF LAWS
GOVERNING WARFARE

Just as Iraq disregarded international law by invading Kuwait, it showed little respect for
international laws governing warfare.15The wide use of biological weapons and keeping
hostage nationals of third state in Kuwait are a couple of examples.

When Iraqi forces invaded Kuwait on 2 August 1990 the surprise was not all due to
lack of intelligence information about the movements of the Iraqi army or the intentions of
the Iraqi regime. Such information was available to intelligence agencies regionally and
internationally, and Saddam had made several announcements declaring his intention to act if
negotiations with the Kuwaitis failed. The surprise was in the scale of the invasion. The
expectation of both Arabs and Americans was that any action on the part of Iraq would be of
a limited nature and not a full scale invasion of Kuwait. Iraq’s intention to conquer the entire
country could not have been known.

15
U.S. Department Of Defence, Report To Congress On The Conduct Of The Persian Gulf War-Appendix On
The Role Of The Law Of War, Apr. 10, 1992, 31 I.L.M. 612 (1992) [hereinafter DoD Report].
 REGIONAL RULES OF THE GULF CO-OPERATION COUNCIL

The GCC was founded in 1981 and is made up of six Gulf Arab countries; Saudi Arabia,
Kuwait, Oman, Qatar, Bahrain and the United Arab Emirates. The total size of these
countries is 2,653,000 square kilometres and their total population is around 30 million. 16 The
aim of the GCC is to coordinate cooperation between member states and protect them from
external threats, and maintain the security and stability of the Gulf area. GCC was basically
for the protection of its members.

The charter of the Council states that any attack on a member state would be
considered an attack on the rest of the members. This provision of the charter in future would
be used to justify the action of Saudi Arabia in asking for help from the Americans and other
western powers.

The statement made by the foreign ministers of the GCC indicated an understanding
of the Arab League resolution which rejected foreign interference in Arab affairs. However,
theyclaimed that the procedures and resolutions of the UN Security Council would not be
included because the UN was an international body that was legally bound to maintain peace
and security in the world and hence its resolutions and procedures would not be interpreted as
foreign interference.17

16
Richard. F. Nyuop. Persian Gulf States Country Studies Foreign Area Studies, The American University,
USA: Washington DC, 53-56 (1984).
17
Nayif Ali 'Abaid, Comments on Iraq, 198 (1996).
 RESOLUTIONS OF THE SECURITY COUNCIL AND IMPOSITIONS OF
SANCTIONS

The seven month long occupation in Kuwait was strongly marked by gross incidents of
human rights violations, looting and rampancy of a wide spectrum of crimes. Locals were
displaced, and the international community was in strong disapproval of the entire exercise.
India and France, often recognised as strong allies to Iraq called for immediate withdrawal;
USSR and China placed an arms embargo on Iraq. NATO sent strong messages across and
th
US placed an ultimatum to withdraw or face dire consequences of war by 15 January

1991.18

nd
UN SC Resolution 660 made under Art 41 of the UN Charter, 2 August 1990

condemned the invasion and demanded that Iraq withdraw its forces. It made a call for
countries to immediately enter into intense negotiations to resolve their differences.19

Resolution 661, which was passed on 6th August when the earlier resolution failed
implementation decided to mete out economic consequences and placed restrictions on
import and export sanctions.20 On many levels, the nature of these sanctions is at an equal
footing with the sanctions placed on Korea years ago. It laid down mandates which the
international community would act on without a hesitation. Particular mention is made here
on the fact that Switzerland, an important non-member state also imposed sanctions.

By resolution 664 the annexation of Kuwait was declared null and void, and paved the
way of possible intervention of the world community in the occupation.21 Various
humanitarian aides were also sanctioned.22

Eventually, by resolution 678, adopted on 29th November 1990, gave the green signal
to member states to carry out whatever is necessary to restore international peace and
security. The same resolution did however begin with a strong reiteration condemning the

18
Supra note 6.
19
Security Council Resolution 660, (6th February 2014),
http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/575/10/IMG/NR057510.pdf?OpenElement
20
Security Council Resolution 661, (6th February 2014) http://daccess-dds-
ny.un.org/doc/RESOLUTION/GEN/NR0/575/11/IMG/NR057511.pdf?OpenElement
21
Security Council Resolution 664, (6th February 2014)
http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/575/14/IMG/NR057514.pdf?OpenElement
22
Ibid.
occupation of Kuwait and demanding that Iraq withdraw its forces from Kuwait.23 Although
the resolution does not expressly mention the use of military force, the debates leading to the
passing of the resolution are evidence that the members present were strongly in favour of
such exercise under the authority of the Security Council.24

23
Security Council Resolution 668, (6th February 2014),
http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/575/28/IMG/NR057528.pdf?OpenElement
24
The Kuwait Crisis, 159, UN Doc. S/PV. 2963,(6th February 2014),
http://daccess-dds- ny.un.org/doc/UNDOC/PRO/N90/614/83/IMG/N9061483.pdf?OpenElement.
 POST ANNEXATION PERIOD

AMERICAN INTERVENTION

The invasion of Kuwait directly threatened US interests in the Gulf and threatened the
security of the Gulf for three main reasons. Firstly, Iraq if not punished could use its power to
threaten the region's oil producing states and could be a source of intimidation for these
regimes. Secondly, the Iraqi threat made the prospect of higher oil prices significant. Thirdly,
Iraq could possibly have invaded Saudi Arabia and occupied its strategic oil region. 25

The Americans were convinced of this and convinced Saudi Arabia as well. Whether
these were plausible or just a ploy on the part of the Americans to push Saudi Arabia towards
taking a firmer stand against Iraq is a matter for speculation. But when we can infer for
ourselves what the truth could possibly be, if we see the weight of the American Interests.

American objectives went beyond what was mandated by the UN and included the
elimination of Iraq as a threatening player in regional politics. On 16 January, President Bush
stated some objectives that were clearly not part of the UN mandate. He emphasised that "we
are determined to destroy Saddam Hussein's nuclear bomb potential [and] we will also
destroy his chemical weapons facilities". Secretary Cheney expressed similar views by saying
"our objective is to get Saddam Hussein out of Kuwait and to destroy that military capability
that he has used to invade Kuwait and to threaten the other nations in the Middle East".
Congressman Les Aspin aptly summarised American objectives by stating that" Iraqi's
military leverage in the region must be neutralised if security and stability are to be achieved
in the Persian Gulf.

The actions of the United States, have however been questioned. The naval blockade
of Iraq ordered by President Bush following resolution 661 was described by the UN
Secretary-General, Javier Perez De Cuellar as "a breach of the UN Charter".26 Under Article
41 of the Charter, any blockade has to be under Security Council approval.

25
Ibid.
26
K. Kaur, United Nations and Gulf Crisis, India Quarterly, 64 (Part 48(1-2, 1994).
ROLE OF SAUDI A RABIA IN THE INTERVENTION

During the first meeting of the American National Security Council in the aftermath of the
invasion, General Schawzkopf made it clear to the President that the deployment of American
troops is possible only by Saudi participation and their permission to use a number of military
bases in the Gulf States to accommodate American forces.27

Turkey was an alternative but then it had very short border and then they did not have
a very healthy economic condition because of which they could not provide for many basses
that could accommodate the American soldiers.

It is important to mention, also, the massive financial costs incurred by Saudi Arabia
during the crisis. These costs were estimated at 60-70 billion dollars, which included grants to
countries that sent forces to defend the Kingdom (the share of the US of that was 25 billion
dollars), the cost of maintaining the coalition forces in the Kingdom and grants to friendly
countries such as Egypt, Turkey and Syria. 28

27
Jaber Ali Jaber,"Al-TashiilaatAltyQadmthaaDwiMajlisAl-Ta^AaawnLathrirAlkuuiit"(The Facilities for
liberation of Kuwait from the GCC), Journal of the Gulf and Arabian Peninsula Studies, Kuwait: University of
Kuwait, 273 (Vol.1, Nov 1993).
28
Tim Niblock, Beyond the Gulf War: The Middle East and the New World Order, 77-85 (1991).
 LEGALITY OF POST ANNEXATION ACTIONS

King Fahd's decision to call upon Western forces was announced by a royal directive, i.e.
what is undertaken in his capacity as the head of state. He also founded his decision on
international law and regional resolutions. He took into account the resolutions of the Arab
League, in particular the resolutions of the Cairo summit which emphasised the following
legal aspects: The affirmation of the right of nations to defend themselves against
aggression.29

INHERENT R IGHT OF COLLECTIVE SELF-DEFENCE

The resolutions of the Arab League were themselves based on international law in particular
on the; Inherent right of individual or collective self-defence as affirmed by article (51) of the
UN charter and article (2) of the Common Arab defence Agreement.30

The legitimate right of the Kingdom to defend itself and its use of that right in
protecting its political system has been clearly based on rules of international law and the UN
Charter, in particular article (51). Regionally its legal right has been founded on the Common
Defence Treaty which stipulates that if any Arab country is attacked by another, Arab
countries must come to the rescue.31

There have been many instances of violation of international law by the member
states of the UN but the Iraq and Kuwait incident stands out. After this case happened the UN
quickly and efficiently took action against the state that broke the international law.

There are two main reasons for that. The first is the clarity of the aggression in
violating international law. International law prohibits the use of force among states and
stipulates the illegitimacy of occupation. Iraq's attack and occupation of a sovereign
independent state, left no doubt that it was an act of aggression in breach of international
rules. In addition, by annexing Kuwait it further breached international law and defied the
UN and the international community by such an action. More importantly, it represented an

29
The Extraordinary Arab Summit Conference (1991).
30
Mufid Shhab, 'Azma Al-KhaliijWa Al-Dabluumasiia Al-Than'iaWaMut'addaAlatraf, Seminar On Diplomacy In
The Contemporary International Community, Institute Of Diplomatic Studies, 39-74 (1992).
31
Interview with Foud Badrawi, 19 May 1997, Cairo.
independent action by a regional power against the wishes of the major powers, hence,
challenging and restricting their ability to manage the global system. 32

P ROHIBITION ON USE O F FORCE AND DECLARATION O N INTERNATIONAL

LAW P RINCIPLES

The Iraqi invasion of Kuwait was an attack on the independence and sovereignty of Kuwait
and also a violation of the rules and laws of international law and international relation. Thus,
Iraq "struck at the cornerstone of the post-1945 international legal order, the prohibition of
the use of force against the territorial integrity of another state". 33

The prohibition of the threat or use of force has become a given in international law and is
explicitly adopted in the UN Charter. Article 2 (4) stipulates that:

“All members shall refrain in their international relations from the threat of or use of
force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the purposes of the United Nations.”

This position is emphasised in the Vienna Convention (1969), which specified in

Article 53 the presence of obligatory laws in international law that protect the common
interests of the international community, such as the rules that prohibit the use of force in
international relations.34 Furthermore, numerous UN resolutions have confirmed this
prohibition. One example is General Assembly resolution 2625, known as the "Declaration of
International Law Principles" pertaining to friendly relations between states under the UN
Charter. This resolution, adopted on 24 October 1970, reaffirmed that any violation of the
principle prohibiting the use of force constitutes a violation of international law and the
provisions of the Charter. The same resolution stressed that states are committed to refrain
from any propaganda promoting wars of aggression and threats or use offeree, in order to
encroach upon the international boundaries of any state, or as means of settling international
disputes.35

32
Paul Taylor & A. J.R. Groom, The United Nations and the Gulf War, 1990-91: Back to the future? London:
The Royal Institute of International Affairs, 4 (1992).
33
Christopher Greenwood, New World Order or Old? The Invasion of Kuwait and the Rule of
Law, The Modern Law Review, 53 (Vol. 55, No 2, March 1992).
34
Convention on the Law of Treaties (Adopted May 22,1969; Opened for Signature May 23,1969), United
Nations, General Assembly, A/Conf. 39/27, 23 May 1969.
35
Resolution No. 2625 (XXV), Declaration On Principles Of International Law Concerning
Friendly Relations And Cooperation Among States In Accordance With The Charter Of The
United Nations, Official Records Of The General Assembly, Twenty-Fifth Session,
 In defining 'aggression" the UN General Assembly stated in resolution 3314 adopted
18 December 1974, that aggression means "use of armed force by a state or use of any other
means incompatible with the UN Charter against the sovereignty, integrity or political
independence of another state". 36 Accordingly, the use of force by a state is proof of
committing an act of aggression, incompatible with the UN Charter.

The UN in Article 5 of resolution 3314 of the General Assembly identified three

major principles restricting aggression:

1. No matter what the issue is, whether it is political, economic, or military it should not
be used as a justification for war.
2. War of aggression is a crime against peace and world security, thus it brings about
international response.
3. Any gains of the war of aggression are not legitimate.37

The maintenance of international peace and security is among the foremost purposes and
principles of the UN, and that must be pursued through peaceful means and in accordance
with international law.38 Member states of the UN delegate the Security Council to carry out
this task.39

The Charter of the UN, in line with its fundamental function as an international peace
organization, emphasizes, first, the pacific settlement of disputes, in accordance with the
provisions of chapter VI.40 Article 37(1) stipulates that "should the parties to a dispute of the
nature referred to in Article 33 fail to settle it by the means indicated in that Article, they
shall refer it to the Security Council".41 These two duties are obligatory to the UN members.

LEGITIMATE USE OF F ORCE

The only legitimate use of force is, therefore, the one that corresponds to the aims and
functions of the UN and applies only in two specific instances; individual and collective self-

Supplement No. 18(AI8082), 24 October 1970.

36
Resolution 3314 (XXIX), Definition Of Aggression, In Resolutions Adopted By The General
Assembly, Vol I, December 1974, General Assembly Official Records: Twenty-Ninth session
supplement No. 31 (A/9631), New York: United Nations, 1975.
37
Ibid.
38
Article 1(1),UN Charter
39
Article 24(1),UN Charter
40
Article 33(1), UN Charter
41
Robert Riggs and Jack Piano, 1994 op.cit., p 322.
defence and collective security. The coercive measures stated in these two articles give the
Security Council great leverage in order to carry out its responsibilities according to the
Charter.

The resolutions endorsed by the Security Council on the basis of Articles 41 and 42
are legally binding in accordance with Articles 25, 48 and 49. In addition, member states
undertake to make available to the Council armed forces, assistance and facilities for the
purpose of maintaining peace and security in accordance with Article 43.

The programme for the destruction of weapons and the permanent system of
verifications were and are intended to be highly intrusive and a challenge to the sovereignty
of Iraq.42

International law does not give for ‘neutralizing’ of the state, it does not allow
punishing the population of the country in consideration. It is only a safe guard from
aggression not a source for justifying elimination of threat to big powers like America.

MANDATES OF THE UNITED NATIONS SPECIAL C OMMISSION

The mandate of UNSCOM has been extensive and elaborate. The details of which are as
follows:

 To "carry out immediate onsite inspection of Iraq's biological, chemical and missile
capabilities";
 To take possession for their destruction, removal or rendering harmless of" all
chemical and biological weapons and all stocks of agents and all related subsystems
and components and all research, development, support and manufacturing facilities";
 To supervise the destruction by Iraq of all its "ballistic missiles with a range greater
than one hundred and fifty kilometres and related major parts and repairs and
production facilities";
 To assist and cooperate with the Director General of the International Atomic Energy
Agency in the elimination of Iraq's nuclear-weapon capabilities and in the subsequent
monitoring of non-proscribed nuclear activities; and
 To designate for inspection "any additional locations" as deemed necessary by
UNSCOM to ensure the elimination of all Iraq's banned capabilities-nuclear as well as
non-nuclear.
42
Paul Taylor & A.J.R. Groom, 1992, op.cit., p 30. 67.
The resolution also accorded many privileges to UNSCOM while carrying out its work in
Iraq. These privileges are extensive and elaborate as follows:

 "Unrestricted freedom of entry and exist without delay or hindrance of its personnel,
property, supplies, equipment, spare parts and other items as well as of means of
transport, including expeditious issuance of entry and exit visas";
 "Unrestricted freedom of movement without advance notice within Iraq of the
personnel of the Special Commission and its equipment and means of transport";
 "The right to unimpeded access to any site or facility for the purpose of the on-site
inspection whether a site be above or below ground. Any number of sites, facilities or
locations may be subject to inspection simultaneously";
 "The right to request, receive, examine and copy any record, data or information or
examine, retain, move or photograph, including videotape, any item relevant to the
Special Commission's activities and to conduct interviews";
 "The right to designate any site whatsoever for observation, inspection or other
monitoring activity and for storage, destruction or rendering harmless" of items
described above;
 "The right to install equipment or construct facilities for observation, inspection,
testing, or other monitoring activity and for storage, destruction or rendering
harmless" of those items;
 "The right to take photographs, whether from the ground or from the air, relevant to
the Special Commission's activities"
 "The right to take and analyse samples of any kind as well as to remove and export
samples for off-site analysis"; and
 "The right to unrestricted communication by radio satellite or other forms of
communication"
 CONCLUSION

The international community invaded Iraq and liberated under the pretext that Kuwait’s
sovereignty was being infringed by Kuwait. But once we analyse the above sanctions and
resolutions they seem to be a blatant violation of the same principles of international law that
the International community wanted to protect.

Resolution 687, coupled with the subsequent resolution 688 of 5 April 1991, has been
perceived as a functional occupation of Iraq, meaning "that in certain domains and
geographical areas Iraq was to be prevented from exercising its sovereignty under threat of
fierce sanctions if it challenged UN resolutions". 43

The UN Charter provides that legal disputes should be referred to its own International Court
of Justice, without making a distinction between those disputes that threaten international
peace and those that do not. But these provisions weren’t really utilized neither by the “great”
western powers nor Iraq. Instead the collective wisdom of the west was convinced that Iraqi
people should be punished for the wrongful acts of the regime over which they had no power.

Another important comment on the substantive rules of the UNCC concerns the scope of the
liability of Iraq provided for by international law in case of unlawful invasion. In other
words, which acts can be admitted for liability and what type of damage and/or which
damage must be considered that caused by Iraq and other damage such as damage caused by
the allies. No matter who caused the damage, Iraq pays.44

43
Paul Taylor &A.J.R.Groom, 36 (1992).
44
Michael E. Schneider, How Fair And Efficient Is The UNCC System? A Model To Emulate?,
Journal of International Arbitration, Kluwer Law International, 11 (Vol 15 (1), 1998).
 BIBLIOGRAPHY

 H.O. Agarwal, International Law and Human Rights, 2014 Edition, Central Law
Publications.
 Musallam Ali Musallam, The Iraqi Invasion of Kuwait, Saddam Hussein, his State
and International Power Politics, British Academic Press.
 Nayif Ali 'Abaid, Comments on Iraq.
 Oppenheim’s International Law, 9th Edition, Oxford University Press.
 Simon Murden, Emergent Regional Powers and International Relations in the Gulf.
 Malcolm Shaw, International Law, 6th Edition, Cambridge University Press.
 Tim Niblock, Beyond the Gulf War: The Middle East and the New World Order.
 Starke’s International Law, 11th Edition, Oxford University Press.