New World Order or Old? The Invasion of Kuwait and the Rule of Law
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb01870.x |
| Date | 01 March 1992 |
| Author | Christopher Greenwood |
| Published date | 01 March 1992 |
THE
MODERN
LAW
REVIEW
Volume
55
March
1992
No.
2
New World Order or Old? The Invasion
of
Kuwait
and the Rule
of
Law
Christopher Green
wood
*
What
is
at stake
is
more than one small country;
it
is
a
big
idea: a new world order
-
where
diverse nations are drawn together in common cause,
to
achieve the universal aspirations
of
mankind: peace and security, freedom and the rule
of
law. (President Bush, State of the
Union Speech,
29
January
1991.’)
A
Introduction
Iraq’s invasion of Kuwait on
2
August 1990 presented the international community
with a formidable and,
in
some respects, unprecedented challenge. By invading and
then annexing Kuwait, 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.? This prohibition has, of course, been violated before but the seizure
of Kuwait was the first occasion on which one Member of the United Nations had
attempted to annex the entire territory of another and to extinguish it as a separate
State. In that respect, at least, the analogies between Saddam Hussein’s treatment
of Kuwait and Hitler’s seizure of Czechoslovakia or Mussolini’s annexation of
Ethiopia were well founded. Moreover, the end of the old superpower rivalry and
the fact that Iraq, whatever its regional status, was in no sense a major global power
meant that the international community had the capacity to reverse the annexation.
The United Nations thus had an unusual opportunity to show that it could take decisive
action, but that very fact meant that a failure to restore Kuwait’s independence would
have dealt a massive blow to the standing
of
the United Nations and to hopes for
its revival.
The international community’s response to this challenge was also unprecedented.
The United Nations Security Council adopted a series of binding resolutions3
*Fellow of Magdalene College, Cambridge; Lecturer
in
Law, University of Cambridge.
I
Keesing
’s
Record
of
World
Events,
1991,
37940 (hereinafter
‘Keesing
’s
’).
2 Article 2(4) of the United Nations Charter provides that:
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,
or
in any other manner inconsistent
with the purposes of the United Nations.
3 The twelve resolutions adopted up
to
the opening of hostilities are set out in Lauterpacht, Greenwood,
Weller and Bethlehem,
The Kuwait Crisis: Basic Documents,
vol
I
(Cambridge: Grotius Publications,
1991)
(hereinafter
‘I
Kuwait
Crisis’).
A
further volume containing the later resolutions will appear
in
1992.
The
Modern
LAWS
Review
55:2 March 1992 0026-7961
153
The Modern Law Review
[Vol.
55
demanding an immediate Iraqi withdrawal, imposing economic sanctions and,
eventually, authorising the use of force. An international coalition deployed to the
Gulf air, land and naval forces more than
700,000
strong and drawn from twenty-
eight
state^.^
In a six week military campaign this coalition drove the Iraqi armed
forces out of Kuwait and, almost exactly seven months after the Iraqi invasion,
restored Kuwait’s Government to power.
To its defenders this operation was a triumphant vindication of the rule of law.
The Security Council had taken swift and decisive action to enforce the law against
an aggressor for almost the first time
in
its history, an international force had fought
a successful campaign with very few casualties amongst its own personnel and
Kuwait’s independence had been restored. Moreover, the whole affair had seen the
United States and the
USSR
acting together in the Security Council
in
a way which
made President Bush’s talk of a new world order seem more than mere rhetoric.
Critics, however, saw the conflict as a cynical war for oil, fought almost entirely
to serve the self-interest of the West with the Security Council being manipulated
into giving consent to a military campaign over which it was then deprived of any
control, not even being kept informed about the conduct of operations.
The purpose of this article is to examine some of the issues of international law
raised by these events. The emphasis will be upon the legal questions surrounding
the resort to force and the way in which military operations were conducted by
both sides in the conflict. While the economic sanctions imposed upon Iraq
will
be considered, space does not permit a detailed examination of the sanctions and
the legislation adopted to implement them.5 Similarly,
it
has not been possible to
address all of the questions raised by the post-war settlement or the issues regarding
detention and deportation of Iraqis and Palestinians which arose
in
the United
Kingdom.
B
Legal Analysis
of
the
Invasion
1
Background
The invasion of Kuwait
in
the early hours of
2
August
1990
seems to have taken
most States by surprise but it has to be seen against the background of a number
of disputes which had led to a rapid deterioration in relations between the two States
in
the weeks immediately prior to the invasion. These disputes were principally
about economic issues. Iraq had emerged from its war with Iran (active hostilities
in which ceased in July
1988)
with a seriously weakened economy and an enormous
international debt, much of which was owed to Kuwait and other Arab States which
had supported Iraq during the conflict with Iran. Iraq accused Kuwait of attempting
to cripple the Iraqi economy as part of an international conspiracy against Iraq.
4
Forces from the following States
took
part in the main offensive against Iraq: Australia, Bahrain,
Canada, Egypt, France, Italy, Kuwait, the Netherlands, Oman, Qatar, Saudi Arabia, Syria, United
Arab Emirates, the United Kingdom and the United States.
In
addition, the following contributed
forces
to
other parts of the operation, such as the naval embargo
or
the defence of Saudi Arabia:
Argentina, Bangladesh, Belgium, Denmark, Germany, Greece, Japan, Morocco, Niger, Norway,
Pakistan, Senegal and the Afghan Mujahideen. Twelve other States sent medical units
or
took over
responsibilities elsewhere in order
to
free
troops for the Gulf; United Kingdom Government,
Statement
on
the Defence Esrimates,
vol
I,
1991,
p
9.
5
See Bethlehem.
me
Kuwait Crisis: Sanctions and their Economic Consequences,
Parts
I
and
I1
(Cambridge: Grotius Publications,
I99
I
).
6
See
S.
Grant, ‘A Just Treatment for Enemy Aliens’
(1991)
NU
305.
154
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