All Necessary Measures. Carrie Booth Walling
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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 debate among members about the legitimacy of human rights in council work. The debate proceeded in two parts: (1) the appropriateness of the participation of Max van der Stoel, the special rapporteur of the Commission on Human Rights for Iraq, in a formal meeting of the Security Council, and (2) the human rights situation inside Iraq and what, if any, relevance it had to Security Council operations. Security Council members uniformly condemned Iraqi regime’s repression of its population but were divided over the continuing intrusion of human rights concerns into their meetings. Council members divided into three groups: norm promoters who actively sought to incorporate human rights concerns; norm detractors who denied the relevance and appropriateness of human rights concerns to the Security Council; and norm instrumentalists who supported the inclusion of human rights on a conditional, instrumental basis—only when such information would help the council execute its Charter mandate.
On 11 August, Belgium, France, the UK, and the U.S. invited Van der Stoel to brief the UNSC on recent human rights developments in Iraq, citing rule 39 of the Provisional Rules of Procedure, which reads, “The Security Council may invite members of the Secretariat or other persons, whom it considers competent for the purpose, to supply it with information or to give other assistance in examining matters within its competence.”68 Anticipating the potential push back from norm detractors, they emphasized that the Security Council would receive Van der Stoel in his personal capacity and not as the special rapporteur for Iraq appointed by the Commission on Human Rights. States that took an instrumental approach to the norms debate, like Ecuador and Zimbabwe, argued that normally it would be inappropriate for the Security Council to examine or take a stand on the human rights report written by Van der Stoel because it would undermine the division of responsibility within the UN system. However, because the Security Council had already passed Resolution 688, information that would help it execute its mandate was within the purview of the council. Norm instrumentalists consented to the request by the norm promoters for Van der Stoel’s participation based on the understanding that he would be speaking in his personal capacity.69 Detractors like China and India noted their strong reservations, arguing that matters pertaining to human rights should appropriately be discussed in the Commission on Human Rights.70 India argued, “It is the consistent position of the Indian delegation that the various organs and bodies of the United Nations should restrict their deliberations and actions within their respective spheres of competence as defined in the Charter…. The Council can focus its legitimate attention on the threat or likely threat to peace and stability in the region but it cannot discuss human rights situations per se or make recommendations on matters outside its competence.”71 In the end, Van der Stoel was permitted to testify in his personal capacity, in large part because