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Iran-Iraq War: Legal and International Dimensions

Saturday, October 8, 2011

Said Khaloozadeh
University of Tehran Faculty Member & Expert on European Studies

Iraq’s imposed war against the Islamic Republic of Iran which started with a large-scale invasion by the Iraqi forces on September 22, 1980, and lasted eight years had important legal and international dimensions. The support accorded to Iraq by Western and Eastern power during its war with Iran covered all political, diplomatic, economic, financial, military, and propaganda areas. A major reason behind that support was the West’s concern about the victory of the Islamic Revolution in Iran and its regional and international repercussions. In fact, the supporting countries were concerned that the Islamic Revolution would sweep through all regional countries replacing political and revolutionary version of Islam for corrupt and mostly subservient regimes. On the other hand, it could make the main pillars of the Western hegemonic system in the region quite shaky. In other words, Western European and American supporters of Iraq were above all concerned about their material and political interests in the region.

After the failure of a direct US invasion in Iran’s Tabas Desert, Washington tried to stage a coup and also launched efforts aimed at instigating Iraq to attack Iran. Frequent and clandestine visits to Iraq by the then US National Security Advisor Zbignew Brzezinski before September 1980 which ended in war with Iran, played a major part in encouraging Baghdad to launch its subsequent invasion of Iran. During its war with Iran, Iraq enjoyed unbridled and all-out support of the United States which was trying to make sure that Iraq had enough military equipment to avert possible defeat.

Role of the UN Security Council in Iran-Iraq war

Generally speaking, a major reason for prolongation of Iran’s war with Iraq was partial and one-sided positions taken by the United Nations Security Council and most countries on that war. That unconventional and supporting approach continued in various ways and was quite evident in politically motivated positions taken by those countries in such international bodies as the United Nations and the Security Council. In its decisions and adopted resolutions, the Security Council never treated the war in a balanced manner and for years after Iraqi forces were keeping thousands of square kilometers of Iran’s lands under their occupation it never urged them to get back to internationally recognized borders. The Council never took Iraq to task as beginner of the war and invader and never held Baghdad responsible.

The important report released by the then UN Secretary-General Javier Perez de Cuellar, which was one of his last measures as secretary-general of the United Nations was very telltale. His main finding that Iraq had resorted to force against Iran in 1980 deserved the same degree of legal renouncement as did Iraq’s subsequent invasion of Kuwait.

In general, the Security Council’s reaction to the invasion of Iran by Iraq was very much different from its rapid, effective and categorical reaction to invasion of Kuwait by Iraq some 10 years later. During the first day of Iraq’s general aggression against the territory of the Islamic Republic of Iran on September 22, 1980, the then UN Secretary-General Kurt Waldheim asked both governments of Iraq and Iran to do their best and find a peaceful solution to disputes between two countries. He asked both sides to exercise self-restraint and use negotiation to settle disputes. Next day and against the will of the secretary-general, the Security Council convened its session to take the first position on the incident, not by adopting a firm resolution, but by releasing a simple statement which was of low political and legal significance. In that statement, the Security Council members expressed concern and put a vague request to both Iran and Iraq to solve their differences through peaceful means.

The Security Council adopted its first relevant resolution (479) only six days after the beginning of Iraq’s war against Iran on September 28, 1980. It described all-out invasion of Iran by Iraq as just a “situation” between two neighboring countries and requested both sides to avoid of the use of force. Thus, the Security Council remained largely indifferent to blatant aggression of Iran. In addition, the Security Council did not call for cease-fire and did not request Iraq to withdraw its forces from Iran’s soil back to international frontiers. On the other hand, the invasion by Iraq had not been recognized as breach of peace and an act of aggression and had not been condemned.

The Council could have at least considered Iraq’s invasion of Iran as threat against peace or breach of peace or an act of aggression on the strength of articles 39-50 of the Charter of the United Nations’ Chapter VII. The double standards applied by the Security Council in the face of an act of aggression clearly indicated political orientation and partiality of the Council in dealing with important matters of world politics which aimed more than anything else to guarantee the interests of powerful members of the Council. The Security Council’s reliance on Article 24 in the first Persian Gulf War was clear evidence to weakness of the Security Council and its resolution. Article 24 only explains the duties and powers of the Council though there was no dispute over competence or incompetence of the Council for seeing into an ongoing armed conflict between two countries. However, the Council only decided to defend its competence on the strength of Article 24 of the Charter of the United Nations.

On the other hand, when Iraq invaded Iran, the international atmosphere was not in Iran’s favor. The hostage taking crisis at the American embassy in Tehran and captivity of 52 American diplomats for a total period of 444 days had caused great tension in Iran’s relations with the United States. Relations between Tehran and other Western states as well as the former Soviet Union were not good either. That situation was naturally influential in determining the outcome of the Security Council’s decisions on Iran-Iraq war. Iran, meanwhile, enjoyed very cordial relations with the former Soviet Union as well as Western countries. Baghdad also started to mend fences with Washington in the middle of the war. After American diplomats were taken hostage in Iran, American officials had taken an oath to have their revenge on the country. The United States had a great deal of influence at the Security Council at that time and Iraq’s war with Iran had provided it with a good opportunity to retaliate.

Following adoption of the weak and unjust Resolution 479, the Security Council went into a virtual coma as the Iraqi forces were actually progressing inside Iran and strengthening positions in occupied areas. The silence continued until the liberation of Khorramshahr on May 24, 1982. Thus, 21 months and 15 days after adoption of Resolution 479, the Security Council convened to approve Resolution 514 on July 112, 1982, through consensus. In that resolution, the Council had called for cease-fire and immediate halt to military operations and withdrawal of military forces behind internationally recognized borders. For the first time after that long interregnum, the Security Council took note of sovereignty, independence and territorial integrity of countries and laid emphasis on the need to avoid of interference in other countries’ internal affairs. These issues were not so insignificant and commonplace to have been forgotten by the Security Council member states through those long 22 months.

Only 10 resolutions were adopted by the Security Council during eight years of Iran’s war with Iraq. All of them, except for Resolution 598, described the war as “situation” between Iran and Iraq, not Iran-Iraq war which would have been very important from the viewpoint of international law and the Charter of the United Nations. Of course, Iran’s diplomacy was not powerful enough throughout the war and Iranian officials, who were distrustful of international organizations, did not care much for legal and diplomatic solutions. They, therefore, went for a policy of alienation and carelessness for international bodies which was a very vulnerable and wrong policy and greatly undermined our country’s position at international level.

Resolution 514 only referred to the necessity of withdrawal of forces to internationally recognized borders when most Iraqi troops had been driven out of occupied lands and Iranian forces had already reached international borders in southern parts of the country. In fact, Iran’s military power was the main factor which led to the Security Council meeting which ended in the adoption of that resolution.

The most important resolution adopted by the Security Council throughout Iraq’s war with Iran was Resolution 598. It was approved on July 21, 1987 in which, for the first time, the Security Council used the words conflict and hostility and expressed regret over the breakout and continuation of war between two countries. It was in that resolution that for the first time, the war between Iraq and Iran was described as breach of peace and, therefore, amenable to the contents of Chapter VII of the United Nations Charter, especially its articles 39 and 40. However, the Security Council, as the most powerful international organ and responsible for the protection of international peace and security, did not announce which country had breached the peace and did not introduce the violator. This was one of the main weaknesses of that resolution. The Council also refrained from pinpointing whether breach of peace had started since the beginning of the war or around the time that Resolution 598 was adopted. Therefore, the question arises as to what extent, according to international law, the Security Council can be held responsible for the continuation of war and subsequent huge losses to life and property.

Resolution 598 remained silent on how the war began and invasion occurred, thus trying to imply that if Iraq was responsible for the beginning of war, Iran was definitely responsible for its continuation. Meanwhile, Iran had resorted to its inalienable right of legitimate defense in line with Article 51 of the Charter of the United Nations and Iraq was the party which started, continued and expanded the scope of war. According to Article 39 of the Charter of the United Nations, in case of an act of aggression, the Security Council should first make sure about the aggression and then take steps according to articles 41 and 42 of the Charter. Naturally, not recognizing Iraq as aggressor by the Security Council and not condemning the country was per se violation of Article 39 of the Charter.

Iraq’s Responsibility in Wars against Iran and Kuwait

A major problem with Iraq’s war against Iran was the approach taken by the Security Council to determining the party responsible for the beginning of war. The beginning of war and act of aggression is a breach of international law. From the standpoint of international law, breach of commanding principles of that law (jus cogens) create responsibility, meaning that the party violating those principles should be held responsible for all its consequences and should make up for all subsequent losses and damages. Iraq obviously attacked Iran on September 22, 1980 and invaded and occupied Kuwait on August 2, 1990 in a blatant act of aggression against the principle of international law as enshrined in Paragraph 4, Article 2 of the Charter of the United Nations, which forbids use of force.

During Iraq’s war against Iran, the Security Council played a quite different role which was at odds with its responsibilities. The Council refrained from determining the party responsible for the beginning of the war during the first seven years. Therefore, such issues as compensation and remuneration for losses were totally out of the question. The Council only requested the secretary-general in Paragraph 6 to “explore, in consultation with Iran and Iraq, the question of entrusting an impartial body with inquiring into responsibility for the conflict and to report to the Council as soon as possible.” Paragraph 7 of the resolution had just recognized magnitude of the damage inflicted during the conflict and the need for reconstruction efforts without considering a special and binding mechanism for that purpose.

Basically, delegating the task of determining the party responsible for the start of war to an independent board other than the Security Council is questionable. In view of the past experiences and duties of the Security Council, the Council could have directly identified and introduced the aggressor. Referring this task to another body meant that the Council did not want to introduce one of two countries, especially Iraq, as responsible for the start of the war because introducing the aggressor would not have been in line with the interests of certain member countries, including five permanent members of the Security Council. Therefore, they intentionally refrained from doing that. The power invested in the Security Council by Article 39 of the Charter of the United Nations to ascertain the existence of threat or breach of peace and an act of aggression cannot be delegated to another board or commission. No other board or commission enjoys such capacity and ability to make a judgment on such a sensitive issue.

Recognizing Responsibility of Iraq in War with Iran

On December 9, 1991, just three weeks before the end of his tenure, the former UN Secretary-General Javier Perez de Cuellar, submitted one of the most important reports he had ever prepared to the UN Security Council. His competence for preparing that report was based on Paragraph 6 of Resolution 598 which was adopted by the Security Council on July 20, 1987. Paragraphs 5 of his report clearly announced that the war between Iran and Iraq which had continued for several years had clearly started through breach of international law. He added that the breach of international law included responsibility for the beginning of the conflict which was the main subject of Paragraph 6 of Resolution 598. De Cuellar added that the principle of international law which prohibited use of force and disrespect for territorial integrity of a member state, which is subject to Paragraph 6, has been breached. During that war, he noted, there had been many cases of breach of different principles of international humanitarian law.

Paragraph 6 of his report noted that Iraq’s response to his letter dated August 14, 1991 contained no essential information and, therefore, he relied on previous explanations provided by the Iraqi government. He said those explanations fell short of convincing the international community. De Cuellar mentioned the attack against Iran on September 22, 1980 as the most prominent event which showed a breach of international law as specified in Paragraph 5 of his report. He added that aggression against Iran could not be justified on the basis of any principle or rule of international law or ethics.

In Paragraph 7, the former secretary-general of the United Nations acknowledged that even before the beginning of the war, Iraq had made encroachments upon Iran’s territory. He noted that such encroachment could not justify Iraq’s aggression of Iran which had led to protracted occupation of Iran’s territory by Iraq.

The importance of the Security Council’s recognition of Saddam Hussein’s Iraq as aggressor in the war with Iran arose from the message that was embedded in that recognition for the whole world. That message stemmed from the United Nations’ role in promoting the rule of law. Some 12 years after Iraq invaded Iran and 16 months following Iraq’s invasion of Kuwait, the secretary-general announced a fact that the Security Council should have immediately proclaimed following the invasion of Iran by Iraq. Based on article 24 of the Charter of the United Nations, the Security Council is the main body responsible for protecting international peace and security. If the Council had recognized and announced Iraq as aggressor at the very beginning of the war, it would not have lasted eight years claiming about half a million lives and causing billions of dollars in damages. Iraq, on the other hand, would not have dared a few years later to invade its small southern neighbor and plunge the whole region in a dire international crisis.

Note: The above is a summary of Dr. Said Khaloozadeh’s doctoral dissertation entitled “Role of the UN Security Council in Iran-Iraq (1980-1988) and Iraq-Kuwait (1990-1991) Conflicts: A Comparative Analysis.” The thesis was prepared in 626 pages and defended on December 6, 2002, at Paris University of France. It was assigned the highest academic degree in France in addition to winning special recognition from the jury.

Source: Khabaronline News Website
http://www.khabaronline.ir/
Translated By: Iran Review

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