The Creation of a Precedence in Humanitarian Affairs through the Blend of International Legalization and World Politics

Table of Contents

Introduction

The Crisis in Iraq and the UN Charter

The Blend of World Politics and International Legalization
A Changing World Order
(Geo) Political Motivations
Moral Convictions & Legal Considerations
Legalization: New Meanings to Old Contexts

Conclusion

Bibliography

Introduction

The research paper sets out to explore the motivations behind Security Council Resolution (SCR) 688 on the internal civilian situation in Iraq after the Gulf War in 1991 embodying the jump-start for the implementation of the today well-known concept of multilateral humanitarian interventions with the international community intervening in a states' domestic affaires on humanitarian grounds. Thereby, the puzzle surrounding the document evolves around the question of its content's legitimacy with view to international law and political implications, figuring a rather grey area which, however, had a tremendous impact on future actions, commitments and reasonings applied by the international community. Thus, the central questions the paper addresses in this regard relate to the debate on the impact of norms as a lock-in mechanism in international treaty law reflecting on how and why at exactly this point in time a new principle respectively doctrine was born.

For this purpose the examination of the intertwining of systemic changes in the world system with the international community's moral convictions, political inferences and the forms of legalization chosen will shed a light on the origination, the content and impacts of SCR 688 supporting the creation of a new world order. Thereby, special emphasis will on the political reasonings in the Security Council of the United Nations as well as on the three dimensions of legalization, namely, precision, obligation and delegation. In this respect, the interpretive function of international law (IL) together with a change in perception of human rights by the international community triggering an alteration of international norms will be clearly addressed. Hence, the findings will draw attention to how SCR 688 served as a precedence for all multilateral humanitarian interventions leading to a change in the conception of state sovereignty and the raise of a moral conviction of a “Responsibility to Protect” (R2P) by the international community producing long-term effects in international relations.

Altogether, the research paper will shed light on the complexity of issues at hand leading to a change in conceptual thinking and with it to the ignition of a revolutionary spark for an exception to the rules to becoming a normative principle. At the same time, it will show that generalizations within the realm of normative changes cannot be inferred from this unique example drawing rather to the aspect of a “ripe moment” in world affaires, with the exception of the blend of world politics and international legalization which seems a plausible set of factors underlying any transformative undertakings embodying the basis for the creation and progression of international law.

The Crisis in Iraq and the UN Charter

Starting out, some brief background information on the civilian situation in Iraq in 1991 as well as on UN Charter implications as to interference into a state's internal affaires in this respect shall draw attention to the intricacy of the situation the international community saw itself confronted with.

It was at the end of the Gulf War that the worst humanitarian crisis for especially the Kurdish people of Iraq was yet to come. Following George Bush's call for “the Iraqi military and the Iraqi people to take matters into their own hands and force Saddam Hussein, the dictator, to step aside” (Dodge 2009) As a consequence, Kurdish and Shi'a uprisings in the north and south of Iraq started on 1st and 3rd March 1991 with the government of Saddam Hussein counter-reacting with heavy gun fires and military attacks through among others artillery cannons and helicopters killing thousands of unarmed civilians. Moreover, the government regime set out to execute people even in homes and hospitals committing atrocities which spread fear and terror causing two million of Iraqis to flee to the mountains along the northern borders, the southern marshes and into Turkey and Iran exposed to harsh weather conditions lacking sufficient food and medial care. It was estimated by Greenpeace that due to the hardships refugees and IDPs had to endure during the exodus, daily death rates averaged about 1,000 from April to June 1991. (Human rRights Watch 1992)

This situation, as stated above, posed an immense challenge on the United Nations since as opposed to the Gulf War which embodied an armed conflict between two states allowing the United Nations to take actions in the name of individual and collective self-defense under Article 51 of Chapter VII of its Charter this humanitarian crisis was an internal matter of a sovereign state into which interference was strictly prohibited under UN Charter Article 2(4) stipulating “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” and Article 2(7) pointing out that “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state [...]” (UN Charter 1945)

Considering the crisis and IL situation as just elaborated upon together with the fact that the international community had remained inactive in many similar situations in previous decades, it is interesting to explore why and how the UN “all of a sudden” was able got active on this matter.

The Blend of World Politics and International Legalization

A Changing World Order

First of all, when looking at the systemic level of analysis tremendous changes in the international environment can be noticed in and around the year 1991 with the end of the Cold War as the most decisive one creating a unipolar world with the United States emerging as the major global power. This brought about an ease in tensions and improvements of relations with Russia and an increase in multilateralism of all five permanent members on the Security Council (SC) which in previous decades had so often been dead-locked by either the United States or the Soviet Union exercising its veto power. (Malone 2008) Furthermore, a wave of democratization in the SC was to be noticed through the process of decolonization that had taken place from the 1960s onwards -a time where “authoritarian regimes have given way to more democratic forces and responsive Governments” (An Agenda for Peace 1992) - multiplying not only the number of UN member states in the General Assembly but also increasing the pool and regions the rotating non-permanent members were drawn from.

Also the decline in inter-state wars and the increase in intra-state armed conflicts taking on disastrous – often genocidal - dimensions facilitated by a soar in technological advancements and, thus, sophistication of weaponry, as the new emerging trend as to patterns of warfare at the onset of an ever more globalized and interconnected respectively interdependent time has to be mentioned creating a new challenge to deal with for the international community. (Siegel 2010) This is well reflected in the UN's Agenda for Peace which states that the global transition is marked by contradictory trends with regional associations of states deepening cooperation on the one had and new assertions of nationalism and sovereignty springing up on the other, with brutal ethnic, religious, social, cultural and linguistic strives threatening the cohesion of states. This, moreover, suggested an increase in the complexity of human security and with it in international security shedding light on the importance of states to a strong commitment to human rights. (An Agenda for Peace)

As a result, a revival of Wilsonian ideas could be noticed as “the revolution in communications has united the world in awareness, in aspiration and in greater solidarity against injustice” (An Agenda for Peace 1992) opening the international community's eyes that “the sovereignty, territorial integrity and independence of States [...] and the principle of self-determination for peoples, both of great value and importance, must not be permitted to work against each other in the period ahead” (An Agenda for Peace 1992) leading to a heated debate on questions of legality and legitimacy and, in turn, to the emergence of a more comprehensive approach to peace, justice, security, and development. (Malone 2008)

(Geo) Political Motivations

However, before elaborating on the ideological and moral dimension of the arguments brought forward in the SC as well as on how to combine the international community's new convictions with the existing legal framework, some insights into the (geo) political interests in the region of the permanent SC members and affected powers will give an account of the complexity of issues at hand.

Iraqi President Saddam Hussein had for long been a thorn in the eye of the international community which had carefully monitored his extreme human rights violations in Iraq's domestic sphere as well as his hostile relations with some of the country's neighbors. Although a number of armed conflicts had erupted in previous decades Iraq's invasion of Kuwait in 1990 finally triggered the UN to intervene with the US as the leading power, since – among others – oil interests were clearly at stake. This geopolitical aspect behind measures taken can be stressed with US President George Bush Sr. declaring "Our jobs, our way of life, our own freedom ... would all suffer if control of the world's great oil reserves fell into the hands of Saddam Hussein." (Global Policy Forum 2002) let alone Iraq's nuclear weapons program and the country's possession of biological and chemical weapons as had become evident during the Iran-Iraq war. (Global Policy Forum 2002)

The paragraph above, clearly shows the economic and security concerns for particularly the US and Great Britain, which had been Iraq's colonial power and also major trading partner in oil as had/has been France, the only one of the great powers that had still remained friendly relations with Saddam Hussein up until the happenings in 1991. (Astier 1998)

Negative economic impacts as well as political ones with view to the threat of a multi-fold increase in their own Kurdish minorities were also one of the main fears of Turkey and Iran who saw themselves faced to deal with an influx of refugees across their common border with Iraq. This caused Turkey to close its borders further aggravating the humanitarian crisis for the Iraqi Kurds, and to appeal in a letter together with Iran and France - it features a large Kurdish diasporic community with its political centre in Paris - to the United Nations to become active on this matter pointing to the effects for regional peace and security.

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