All Necessary Measures. Carrie Booth Walling

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СКАЧАТЬ Yet the appeal to human rights norms was conditional and nuanced. Nearly all council members, even supporters of Resolution 688, reaffirmed their commitment to state sovereignty and noninterference in the domestic affairs of states. Condemnation of Iraq’s domestic behavior was only possible because the Iraqi regime’s sovereignty had already been suspended by the Security Council in response to Iraq’s blatant disregard for international legal norms, including its violations of sovereignty norms and the ban on the use of force without Security Council authorization. With its sovereign authority suspended, there was no direct conflict between sovereignty norms and human rights norms. Indeed, the protection of human rights in this case reaffirmed and protected the sovereignty and territorial integrity of Iraq’s neighbors that were the referents for Security Council action. Resolution 688 simultaneously redefined regional and international security interests to include the protection of human rights and reaffirmed Article 2.7 of the Charter of the United Nations. The Security Council’s demand for immediate and unlimited access to Iraq’s sovereign territory was revolutionary but possible only because Iraq’s domestic repression had destabilizing effects outside its borders.

      References to human rights during Security Council deliberations marked a significant change in council behavior, however tentative and nuanced those affirmations of human rights were. The 5 April meeting record shows that a majority of Security Council members and nonvoting participants articulated a direct link between human rights and their national and international interests. Eighteen of the thirty-one participating states described Iraqi human right violations and the resulting humanitarian tragedy as a threat to international peace and security. These states included nine of the fifteen Security Council members—Austria, Belgium, Côte d’Ivoire, Ecuador, France, Russia, the UK, the U.S., and Zimbabwe—and nine nonvoting participants—Canada, Denmark, Germany, Iran, Luxembourg, Netherlands, Pakistan, Sweden, and Turkey. Human rights concerns were relevant, they argued, because of the transborder impact of refugee flows. Ten of these eighteen states simultaneously registered their strong support for Charter principles that protect the domestic jurisdiction of states from external interference, which suggests that it was the extraordinary nature of the Iraq situation that justified Security Council action to address the root causes of regional instability within the borders of Iraq rather than a transformation in the normative standing of the nonintervention principle. Council members emphasized the contingencies of the Iraq situation as justification for this unusual deviation. The representative from Belgium summed it up this way: “As far as Belgium is concerned, such support is in this case justified by the very specific considerations arising from an exceptionally serious situation which threatens peace and security in the region.”⁵⁸ Cognizant of the implications of such a radical departure from previous Security Council behavior, the majority of members appeared eager to distinguish the Iraq case as unique in the hopes of discouraging the creation of precedent. Ecuador, for example, drew attention to the inherent tension between two relevant principles in the Charter: the unrestricted respect for human rights and nonintervention in the internal affairs of states. Ecuador reasoned that because the human rights situation extended beyond the borders of Iraq it moved beyond the sphere of Iraq’s internal affairs, eliminating the tension between these Charter principles and justifying an international response.⁵⁹

      The statements by France, Germany, Norway, and the UK were exceptional because they justified Security Council interference inside of Iraq’s borders based on the nature of the atrocities alone, independent of the transborder security impact. According to the UK, the protection of civilians mandated by the Geneva Conventions was sufficient justification for Security Council action.⁶⁰ Norway argued that Iraqi actions contravened internationally accepted human rights standards and norms of behavior.⁶¹ France asserted that the human rights violations observed in Iraq assumed “the dimension of a crime against humanity,” and Germany said they “harbor[ed] danger of genocide.”⁶² Germany also argued that the Security Council could only be successful in returning peace and security to the region if domestic peace was assured inside of Iraq, drawing an explicit link between human rights and international peace. Thus it was “the legitimate right of the international community to call for respect for human rights,” according to Germany.⁶³ No matter how striking these statements are from a human rights perspective, they represented a minority opinion among the participants in the Security Council meeting, the vast majority of whom argued that internal human rights issues were only relevant if they had international effects.

      Cuba, Yemen, and Zimbabwe articulated strong disagreement with any Security Council involvement in the internal affairs of Iraq. They argued that it was not within the competence of the Security Council to address the humanitarian crisis. For example, Cuba asserted: “The Security Council simply has no right to violate the principle of non-intervention. It has no right to intervene unduly in the internal affairs of any State. It has no right to intervene unduly in matters within the competence of other organs of the United Nations.”⁶⁴ Yemen argued further that the resolution politicized a humanitarian issue because it focused primarily on a small segment of the affected Iraqi population—the Iraqi Kurds—while neglecting the Shi’a. India, which abstained, advanced a more nuanced argument. While the crisis warranted international attention, India reasoned, other organs of the UN were better suited to address humanitarian needs. China remarked that the question was one of “great complexity” because both the internal affairs of a country and the stability of its neighbor states were involved. China suggested that the international aspects of the question “should be settled through the appropriate channels,” by which it suggested that the UNSC was not the appropriate venue for addressing human rights or humanitarian crises.⁶⁵ Yet none of the opponents of Security Council involvement disputed that human rights violations were occurring or justified the Iraqi regime’s behavior. Instead, they argued that the UNSC was not the appropriate venue to address the crisis. This suggests that the growing legitimacy of human rights norms meant that detractors did not wish to be seen as condoning human rights violations.

      In sum, the Security Council made a strong break with past practice when it integrated human rights norms into Security Council decision making. The inclusion of human rights in Security Council discussions, however, diminished the unity among its members, who were divided about their relevance to council deliberations. Resolution 688 reflected a compromise position that was supported by most council members and nonvoting participants. It reaffirmed the national jurisdiction of states but argued that the human rights situation caused by Iraq was no longer an internal matter of the Iraqi state. The inclusion of human rights in Security Council decision making on Iraq was a watershed moment, yet the embrace of human rights norms was situational and contingent on Iraq’s prior invasion of Kuwait and the effects of human rights violations on neighbor states that appealed to the UNSC for help.

      From Resolution 688 to No-Fly Zones: Divisions on Human Rights Enforcement

      On 10 April 1991, France, the UK, and the U.S., three permanent members, declared a “no-fly” zone in northern Iraq above the thirty-sixth parallel, creating a safety zone that covered almost ten thousand square kilometers of Iraqi territory.⁶⁶ Its purpose was to provide protective cover for humanitarian aid agencies and Coalition forces to safely enter refugee camps on Iraqi territory and to protect Iraqi Kurds from air attacks by Iraqi military forces. Resolution 688 had demanded an end to Iraqi repression and mandated that Iraq permit international humanitarian organizations access to its population. Resolution 688 did not reference Chapter VII, which authorizes the use of military force, but the three permanent members argued that their use of enforcement measures was a necessary response to extreme humanitarian need and tacitly permitted by the resolution.⁶⁷ They argued that because the no-fly zone was necessary to the fulfillment of Resolution 688, any enforcement action undertaken for this purpose was legitimate even if it had not been expressly authorized by the Security Council. Other council members did not publicly weigh in on these attempts to further link humanitarian and human rights concerns to international security and the purpose of military force until well over a year later.

      On 11 August 1992 the Security Council met to discuss continued Iraqi noncompliance with council resolutions but the meeting quickly developed into a СКАЧАТЬ