The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War

IV. Conclusion

There is no doubt that the allied military protective action in Iraq was noble and ethically sound in reducing massive human suffering, whatever its political motives and irrespective of the question as to why such action has been lacking in many other similar circumstances. However, the above analysis, which falls within the traditional framework of contemporary international law, shows that it is difficult to find a legal basis justifying the allied armed intervention in the Kurdish crisis. Schachter has made an attempt to build a legal case in support of the action by arguing, inter alia, that the Security Council had determined that there was a threat to international peace and security, that `the internal strife was in some respects a consequence of the international military action, placing responsibility of a political and humanitarian character on the coalition to prevent massive attacks by Iraqi forces against non-combatants belonging to particular ethnic and religious communities', and that the allied action was limited `to the necessary protective action for a relatively short period to allow for relief and the eventual return of the refugees' without seeking to impose `an internal regime of autonomy or minority rights'.⁹⁷ While these are certainly highly relevant considerations, they do not overcome the obstacles posed by basic rules of international law to the unilateral (individual or collective) use of force outside the realms of self-defence within the meaning of Article 51 of the UN Charter. They would also beg the question of how to evaluate the corresponding responsibility of the coalition towards the plight of the Shiites who had rebelled in the south of Iraq.⁹⁸

A discussion is required to determine if the traditional framework of international law needs a thorough reconsideration to allow the United Nations to have an effective role when gross violations of human rights arise and threaten international peace and security. In view of of the USSR's well-known persistent emphasis of the principle of non-intervention into domestic affairs of states, it is interesting to note that then Soviet Foreign Minister, Pankin proposed recently that the United Nations should amend the concept of sovereignty so that in future the international community could intervene in domestic conflicts.⁹⁹ Perhaps the experience of the Kurdish crisis may eventually give rise to the emergence of a new rule in customary international law, provided it can find general acceptance as a precedent outside of the peculiar circumstances of the Second Gulf War. It is more likely that the majority of states, especially the less powerful ones, will resent such a development. The Kurdish crisis may also lead to a more active role for the Security Council in incidents of this nature, as has been cautiously suggested by Schachter:

It is unlikely that most governments would approve a broad right of the United Nations to introduce troops for humanitarian purposes against the wishes of the government. However, one cannot exclude the possibility that the United Nations would invoke chapter VII, and its mandatory authority under Articles 42 and 48, in cases of human necessity when the territorial government is unwilling or unable to provide relief and protection. (...) In a case of this kind, the Council is almost certain to premise its decision on a finding that the situation constitutes a threat to international peace and security in view of its transborder implications.¹⁰⁰

The current conflict in Yugoslavia may offer a first test case for such Security Council action. However, the legal significance of the allied intervention to protect the Kurds for the development of international law will become apparent only in a long-term perspective. A more immediate practical issue meriting further discussion is how to strengthen the role of Secretary-General in dealing with the humanitarian aspects of such cases on the basis of the experience with the Kurdish crisis.

97 Schachter, supra note 86, at 469.

98 Although there were new reports on the prosecution of Iraqi Shiites, on 8 May 1991, the United States withdrew its remaining troops from southern Iraq, Keesing's Record of World Events, Vol. 37 (1991) 38, 211 (News Digest for May 1991). Two days later, the head of the United Nation's Humanitarian Programme for Iraq and Kuwait, Prince Sadruddin Agha Khan, complained that the West had ceased to pay attention to the continuing plight of Shia refugees. On 23 May 1991, the UN Secretary-General's special representative declared in Baghdad that the UN armed guards would patrol the south in a `reassurance role'. On 11 June 1991, Iran appealed to the United Nations to protect between 500,000 and 900,000 Shiites allegedly trapped by Iraqi forces in the marshes of southern Iraq.

99 Frankfurter Allgemeine Zeitung 26 September 1991 at 2. It may be noted with interest in this connection that the former Foreign Minister of the USSR, Schevardnardse, a few months earlier suggested that the United Nations should play a role in solving regional conflicts in the Soviet Union, although this raised complicated issues in the USSR. It would not necessarily mean violating sovereignty, if the UN had a say in the settlement of domestic conflicts threatening the security of a region, Frankfurter Allgemeine Zeitung 17 May 1991 at 2.

100 Schachter, supra note 86, at 469.

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