1991 HUMANITARIAN INTERVENTION IN KURDISTAN AND IRAQ’S SOVEREIGNTY For the first time, the U.N. Security Council had linked humanitarian concerns to international peace and security and had given humanitarianism greater weight than non-intervention. This paper argues that the resultant humanitarian intervention in Kurdistan in 1991 was legal. Resolution 688 deemed intervention valid on humanitarian grounds because of the gross human rights violations by the then Iraqi government against its own citizens, and because these actions constituted a breach of the peace. by Heval Hylan 1 _______________________________________________________________ Abstract i ABSTRACT Increased humanitarian intervention in last decades has raised a number of issues and questions pertaining to international law and the legal principles covering intervention. Intervention in Kurdistan in early 1990’s marked a turning point in the development of the international system, not because the United States-Alliance was in any way improper in freeing itself from the constraints of real politic and UN legitimacy, but because it demonstrated the limits of those constraints. Intervention in Kurdistan was not so much a violation of international law and the principle of non-intervention, as an example of the short-comings of a law drawn up half a century ago. This document is developed through an analysis of definition, history, Cold War and post-Cold War activity, and the moral issues inherent in intervention. A framework with which to view the issue of humanitarian intervention in Kurdistan is constructed around two mechanisms. The first is state sovereignty. The second is the belief that we have entered a new human rights era, with a new set of conditions by which to determine the best possible link between the legality and legitimacy of military intervention. With the United States-Allied intervention in Kurdistan there began to emerge a system of values in which the defence of democracy and human rights outweighed the principle of sovereignty, in its strictest interpretation. Such military intervention may be seen as ‘illegal’ yet legitimate, as both the constraints of realpolitik and the operating rules of United Nations multi- lateralism may be loosened or disappear altogether. Arguably, the international community has a historical responsibility to promote a new form of international regulation of this type, in which morality is a declared basis of policy, and human rights are more important than states’ rights. This paper has no knots with the USA and UK invasion in 2003. Abstract Contents ii CONTENTS ABSTRACT i CONTENTS ii INTRODUCTION 1 CHAPTER ONE 4 KURDS AND KURDISTAN 1. Introduction 4 2. The Kurds in History 5 3. The Iraqi Kurds Today 7 4. Conclusion 12 NO-FLY ZONE MAP 13 CHAPTER TWO 14 DEFINITION OF HUMANITARIAN INTERVENTION 1. Introduction 14 2. Definition 15 3. Just and Unjust Intervention 20 4. Criteria to Establish Definition 21 5. Conclusion 22 CHAPTER THREE 23 HISTORY-PRE UN/1945 1. Introduction 23 2. An Overview of the Just War Theory 24 3. Sources of the Just War Theory 26 4. The Development of Humanitarian Intervention as a Specific Doctrine 31 5. The Patterns of Intervention 38 6. Conclusion 41 Contents Contents iii CHAPTER FOUR 43 1945–1990 COLD WAR INTERVENTION 1. Introduction 43 2. What was the Cold War? 43 3. 1945–1990 Official UN Rules 45 4. The Realities 47 5. International Legal Norms 48 6. Humanitarian Intervention During the Cold War (General) 53 7. Cold War Interventions 56 8. Cases of Legitimate Intervention - Cold War 57 9. Conclusion 60 CHAPTER FIVE 62 THE LEGALITY OF THE INTERVENTION IN KURDISTAN 1. Introduction 62 2. The Move to Intervention 63 3. Why Intervention in Kurdistan? 65 4. Legitimacy in the Kurdish Case 66 5. The Legality of Unilateral Intervention in Kurdistan 66 6. Is the No-fly Zone in Kurdistan Permanent? 76 7. Conclusion 78 CHAPTER SIX 80 POST-COLD WAR HUMAN RIGHTS ERA 1. Introduction 80 2. The Political Change of the 1990s 82 3. 1990s UN System and Humanitarian Intervention 83 4. The Return of Classical, Conventional War 86 5. Non-Intervention and the Need for Humanitarian Interventions 87 6. Unauthorised Humanitarian Interventions 90 7. Criteria for Unauthorised Humanitarian Intervention 96 8. Emerging Norms of Humanitarian Intervention 99 9. Interpretations of the New Humanitarian Era 102 Contents Contents iv 10. Cases of Legitimate Intervention 105 11. Conclusion 110 CHAPTER SEVEN 112 THE MORAL QUESTION 1. Introduction 112 2. A Right or Moral Duty of Intervention 113 3. The Moral Responsibility 114 4. Moral Arguments For and Against Humanitarian Intervention 121 5. National Interests and Moral Obligations 125 6. Moral Dilemmas 126 7. Conclusion 128 GENERAL CONCLUSION 130 BIBLIOGRAPHY 134 Contents Introduction 1 INTRODUCTION In the post-Cold War environment the United Nations Security Council resolution 688 of 1991 broke new ground in terms of interference in what had previously been regarded as the domestic affairs of a member state. 1 The resolution had a humanitarian objective in its insistence on an immediate end to the repression of the Kurdish population of Iraq by the Iraqi government. It led to the establishment of safe havens in northern Iraq 2 to allow Kurdish refugees to return to Iraq under international protection. For the first time, the Security Council had linked humanitarian concerns to international peace and security and had given humanitarianism greater weight than non-intervention. 3 The responsibility of the Security Council was linked to the consequences of Iraq’s use of force during the invasion of Kuwait, and had several main objectives: i. to create humanitarian corridors to allow assistance to reach the civilian population; ii. to promote the return of Kurdish refugees from Turkey and Iran; iii. to establish humanitarian aid centres; and iv. to establish a no-fly zone north of the 36 parallel. The intervention taken by United States-Alliance in Kurdistan has had been the subject of much criticism. This was not only because it happened without any authorisation from the Security Council of the United Nations, but also because it occurred in the first place. There is a fundamental tension between the two concepts of sovereignty and intervention. The problem arises because the international system has been constructed on the basis of the principle of sovereignty, which remains the cornerstone of international law. However, there is an argument that the concept of sovereignty in its traditional sense is no longer sustainable. The view has been that the highest source of sovereign power rests with the people of a state, and it is up to those people to determine how they structure and run the society in which they live. It has not been acceptable for states to impose their own values and interfere in the domestic affairs of other states. 1 Kofi Annan the Secretary-General of the United Nations made a remarkable series of speeches in 1998 and 1999. Since the phrase “humanitarian intervention” is increasingly falling out of favour, it is important to note that the Secretary-General never used it himself, speaking rather of “intervention”. He stated: “Our job is to intervene...State frontiers...should no longer be seen as a watertight protection for war criminals or mass murderers. The fact that a conflict is ‘internal’ does not give the parties any right to disregard the most basic rules of human conduct”. See Tharoor, Shashi and Daws, Sam “Humanitarian Intervention: Getting Past the Reefs” World Policy Journal, Article Extracts, Vol XVIII, No 2, Summer 2001. 2 This thesis will not mention the no-fly zone in southern Iraq, because it deals only with Kurdistan /Iraq. 3 One of the basic assumptions of this new international order is that sovereignty can never be a pretext for genocide, a principle that is perhaps the most stabilising for international security in the twenty-first century. Introduction Introduction 2 Having said this, if a government flagrantly violates the human rights of its own people, outsiders have the right to intervene on behalf of those people, whenever possible, with the blessing of the UN Security Council. A purely legalist position underlines the paradigm that international law does not entitle states to engage in humanitarian war. The sanction of force, to prevent violations elsewhere, is legitimate only if all permanent members of the UN Security Council consent to such action. The limitations of such a view were never more apparent than when Russia and China announced that they would not allow the Security Council to pass a resolution, 4 under Chapter VII of the Charter, which would authorise the use of force against Iraq on behalf of that nation’s Kurdish civilian. It was at this point that the international community reached a political and moral crossroads. The core issue was whether the international community should uphold the principle of non-intervention in the internal matters of other states even though Iraq was clearly using that principle as a shield behind which it could continue to slaughter a segment of its population. As it happened, moral integrity won out over black-letter law. This legal paper argues that the resultant humanitarian intervention in Kurdistan was legal. It was the first example of a new trend in humanitarian intervention. At the time, it appeared contrary to law, because it was contrary to established precedent. Now we can see it established a new precedent, through which we see it as legitimate, today. The first chapter assesses the Kurdish situation in northern Iraq. The second chapter provides an understanding of humanitarian intervention. The third chapter describes and evaluates the application of just war theory to the concept of international humanitarian intervention in early 20th century. The fourth chapter attempts to discuss what intervention meant during the Cold War period.