英语论文网

not stopped states from resorting to armed force in this instance. This shows that while the law itself is not “illusory” because its position has not changed to accommodate these actions, its enforcement is still a matter of concern.

A slightly different series of events occurred in 1998 when the US launched cruise missile strikes against Al Qaeda in Afghanistan and Sudan in response to bombing of its embassies in Kenya and Tanzania. Here the US targeted only Al Qaeda bases and did not target any state institutions in either country. While the attacks did violate the sovereignty of Afghanistan and Sudan, the US could justify the strikes as actions taken as a last resort against a non-state entity. As it used cruise missiles to target specific bases, it could be concluded that the actions constituted as legitimate self-defence.

The Iraq question

The US-led invasion of Iraq in 2003 perhaps is the biggest single event which places doubts on the credibility of the law around use of force. The legal basis used were the material breach of Security Council Resolution 1441 (2002) and pre-emptive self defence. We will examine both bases separately.

The United Nations Security Council passed two resolutions, 678 (1990) (before the First Gulf War) and 687 (1991) (immediately after the First Gulf War). Resolution 678 (1990) essentially gave Iraq a chance to comply with an earlier Resolution 660 (1990) calling for Iraq to withdraw from Kuwait and restore peace and security in the region. According to the Legal Department of the Ministry of Foreign Affairs of the Russian Federation, the mandate to use force against Iraq applied only during the period requiring Iraq to confirm with earlier resolutions and cease annexation of Kuwait under Resolution 678 (1990). [16] Resolution 687 (1991) imposed some new obligations on Iraq particularly disarmament obligations. According to the Russian assessment of these provisions, it is clear that it was only for the Security Council to decide which actions to take regarding Iraq’s potential breaches. [17] Furthermore, Resolution 1441 (2002) did not change the legal situation because it also gave the discretion to decide actions on the Security Council as well. Thought the Security Council did accept that Iraq had committed “material breaches”, it did not authorise military action against Iraq but instead gave it one last chance to allow inspectors. As the Security Council refused to authorise military action, the subsequent invasion was illegal. But then again the question arises as to the futility of enforcement mechanisms of the law that coalition states resorted to force in disregard of law. Before passing a judgment we should take in to account the views of academics like Thomas Iwanek who explained how the system failed in this instance. [18] According to Iwanek, both legal bases used against Iraq i.e. the Security Council Resolutions and pre-emptive self-defence, are closely related and should be treated as “single, but complex, legal argument”. [19] He opines that the meanings of “material breach” and “serious consequences” need to be understood within the context of international law not politics. [20] This means that the “material breach” by Iraq “does not abolish the cease-fire and reactivate the provisions of Resolution 678” implying that the coalition forces of the First Gulf War cannot use force against Iraq. Iwanek’s primary objection to th