Captain Shaun Lyons, RN
INTRODUCTION
The planning and conduct of maritime operations in the Gulf from August 1990 to April 1991 demonstrated, inter alia, the correlation that exists between the theory of international law and the practical application of such theory in terms of day-to-day naval deployments and operations. Not only must governments, of course, carefully analyse and justify the legal basis for their actions, but those who have the responsibility for transmuting such decisions into directives and rules of engagement must understand the framework within which they are working. This chapter will examine some of the legal issues that arose in the maritime context during the Gulf action. Where appropriate the legal arguments and government interpretations will be reviewed and the pragmatic consequences for the planners and operators discussed. While mainly concerned with the British perspective and Royal Navy activity, the actions and decisions of allies and others will be examined where appropriate.
The Royal Navy has had a long association with the Gulf region, maintaining a presence there, at times both ashore and afloat, over a long period of years.2 The Royal Navy’s shore base in Bahrain, HMS Jufair, closed at the end of 1971, but since then naval forces afloat have been deployed to the area from time to time. Since the start of the Iran-Iraq conflict in 1980 the Royal Navy has maintained a continuous presence in the region in the form of the Armilla patrol. In recent years this patrol has consisted of three destroyers/frigates backed up by afloat support vessels of the Royal Fleet Auxiliary. The principal purposes of the Armilla patrol have been, and remain, to reassure and, if necessary, protect the safety of British merchant shipping in the Gulf area3 and the only government statement as to the rules of engagement in force for this long-standing patrol is, bearing in mind the policy of the British government not to release details of such rules, naturally bland:
The rules of engagement are intended to avoid escalation, although the varied nature of potential threat and the possibility of surprise attack are recognized and the inherent right of self-defence of Royal Navy ships or British merchant vessels under their protection, is not circumscribed or prejudiced.4
At the beginning of August 1990 the Armilla patrol comprised HM Ships York, Battleaxe and Jupiter, supported by RFA Orangeleaf. HMS York and RFA Orangeleaf were on station in the Gulf while HM Ships Battleaxe and Jupiter were on stand-down visits to Penang and Mombasa respectively. By April 1991 a total of thirty-seven Royal Navy
ships and Royal Fleet Auxiliaries, together with three naval air squadrons, had been deployed in support of the Gulf operations.5
SANCTIONS AND THEIR ENFORCEMENT
The framework
The Iraqi invasion of Kuwait on 2 August 1990 prompted a speedy response from the UN Security Council in the form of Resolutions 660 (condemnation of the invasion) and 661 (imposition of economic sanctions), adopted respectively on 2 August 1990 and 6 August 1990.6 Resolution 661 imposed sanctions on Iraq by ordering the prevention of all economic activity that would facilitate the import of Iraqi goods into member states and the export of goods from member states to Iraq. The only exception to these comprehensive sanctions was for ‘supplies intended strictly for medical purposes and, in humanitarian circumstances, foodstuffs’.7
On 8 August 1990 the British government announced that, in response to a request from Saudi Arabia, British forces would be sent to the area to defend the Gulf region from further Iraqi military action.8 New directives were given to the Armilla patrol group (all of which were in the Gulf by 12 August 1990) including instructions to ‘monitor shipping passing to, from and within the Gulf; to develop an assessment of ships, particularly tankers, breaking the sanctions imposed by the Security Council’.9
With effect from 9 August the British government passed two statutory instruments under the United Nations Act 1946, s. 1 to give effect to Resolution 661.10 These Orders forbade both the unlicensed supply of UK goods to Iraq and Kuwait and also the unlicensed importation into the UK of goods originating from Iraq or Kuwait. The orders also provided that no British ship should be used for the carriage of any such goods and gave the powers that would enable the Royal Navy to enforce these prohibition on British registered merchant ships.11 These powers included the right to board and search suspected ships, to prevent the continued voyage of any such ship and the ability to divert and take these ships into any port.
By 12 August the United States viewed Article 51 concerning collective self defence as a legitimate basis for enforcing the sanctions imposed by the Security Council.12 This determination was reached as a result of a request from the legitimate government of Kuwait for support for the enforcement of the UN economic sanctions.13 Mr Baker (US Secretary of State) said ‘Let’s not use the word blockade. Let’s just say we have the legal basis for interdicting these things’.14 The following day Mr Waldegrave (Minister of State at the Foreign Office) stated that the Emir of Kuwait had asked Britain for assistance under Article 51 of the UN Charter15 and that ‘If there is evidence of sanction- busting the Navy will take the necessary steps’.16 He further stated:
The United Nations has imposed economic sanctions. What Kuwait has asked us to do is to make sure that the economic weapon is effective and that Article 51 gives us the right to do that and we are accepting that request.17
Britain used the term ‘monitoring’ rather than ‘interdicting’; this is consistent with the orders given to the Armilla patrol (see above) and the reported questioning by HMS Jupiter of the Cyprus-registered tanker Gloria18 also appears to fit this pattern. The US government announced on 16 August 1990 that naval interdiction by US forces was authorized from that date, and on 17 August the Article 51 justification was enshrined in the Special Warning No 80 issued by the United States Department of the Navy.19 This stated at Paragraph 1:
In response to requests from the legitimate Government of Kuwait and in exercising the inherent right of collective self defence recognized under Art. 51 of the UN Charter, United States forces will, in co-operation with regional and allied forces, conduct a maritime operation to intercept the import and export of commodities and products to and from Iraq and Kuwait that are prohibited by UN Security Council Resolution 661.
At Paragraph 6 the warning stated that ‘Failure of a ship to proceed as directed will result in the use of the minimum level of force necessary to ensure compliance.’
On 19 August 1990 US warships (USS Reid and Bradley) fired across the bows of two Iraqi tankers (Baba Gurgur and Kahanakin) en route toward the northern Gulf.20
On 25 August 1990 Resolution 665 was adopted by the Security Council. Without so stating in plain terms, the Resolution nevertheless gave the coalition forces the power to impose the embargo by force if this became necessary. The somewhat orotund formula employed called upon:
those member states co-operating with the government of Kuwait which are deploying maritime forces to the area to use such measures as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation [of Resolution 661].
Thus, from 25 August 1990 allied maritime operations in support of the strict enforcement of the sanctions were carried out not as an exercise of the right of collective self defence under Article 51 of the UN Charter, but pursuant to resolutions based upon Article 41 of the UN Charter.
Theoretical considerations
If governments decide to take action to enforce sanctions, why does it matter on which basis they justify their actions? Obviously, for a variety of reasons, it is important that governments, especially those which purport to uphold the rule of law, should have a demonstrably sound legal basis for their actions but, beyond that, the basis that they choose has military and practical consequences. The legal arguments during the Gulf crisis over sanctions enforcement may, very simplistically, be said to have consisted of three interrelated questions: Did the embargo amount to a blockade? Was it legal to enforce the sanctions and embargo as a measure of collective self defence under Article
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51 of the UN Charter? Was it necessary for the Security Council to give approval to such an operation?
Blockade, Article 51 and Resolution 665
The trade sanctions imposed and the embargo on the export and import of goods did not amount to a blockade. While the techniques of enforcement of the embargo closely paralleled those of the customary international law doctrine of blockade, this term of legal significance was not applied to the action by those party to it, nor by the UN Secretary-General. That the sanctions were imposed under Article 41 of the UN Charter21 was argued both at the time22 and subsequently, when reviewed academically.23 This perception is important for, were the embargo to have amounted to a blockade, then it could be argued that this demonstrated that the Security Council had exercised its powers under Article 42 of the UN Charter to take such measures ‘as may be necessary to maintain or restore international peace and security’.24 And, if this were so, then it could be further argued that the right to take measures of collective self defence under Article 51 would have lapsed because such self defence measures are only permitted ‘until the Security Council has taken measures necessary to maintain international peace and security’.25 However, such an argument is specious. Under Article 51, rights of self defence may be exercised ‘until the Security Council has taken measures necessary to maintain international peace and security’. This concept must import considerations of time and effectiveness, for until whatever measures taken have actually had the effect of maintaining international peace and security, the self defence rights must remain extant.
Thus, even if measures had been taken under Article 42, rights of self defence under Article 51 would still be exercisable until the measures were effective. Further it is wrong to argue that there is any inevitable nexus between the taking of Article 42 measures and the extinguishing of Article 51 rights of self defence. The proposition that Resolution 661, in imposing these sanctions, was not drawn under Article 42 of the UN Charter was much strengthened by the wording in the preamble of that Resolution where the following clause was included: ‘Affirming the inherent right of individual or collective self defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter.’
The unequivocal position of both the United States and British governments was that action taken in self defence in support of the UN sanctions was perfectly proper and legal. This view was not universal, and the announcement and implementation of this enforcement action led to a ‘lively debate at a closed emergency session of the Council’.26 While the view of the United States and Britain did not change, the formal authority of the Council for such an operation was sought and granted under Resolution 665.27
It may thus be said that it was never seriously considered that the embargo operation was a blockade. Accordingly, the planner did not have to contemplate whether or not the traditional doctrines of blockade applied. Even if the embargo had been characterized as a blockade and it had been accepted that this was therefore a measure under Article 42 of the UN Charter, the law would not have been clear; the applicability of the traditional doctrine of blockade and the law of neutrality to such a UN enforcement measure is a
difficult and uncertain area of law. In the event, the practical problems associated with such a blockade did not require resolution.
Collective self defence under Article 51 of the UN Charter and collective action under Security Council mandate
The powers given by the Orders in Council28 enabled the Royal Navy to have confidence that they could deal with the breaches of the embargo involving British merchant vessels;
that they could anticipate being able to cope also with American flag ships. But what could be expected of other nations? In theory at least there should have been little problem. The terms of Resolution 661 imposing the sanctions should have been binding upon all member states of the UN.29 Indeed, the Resolution ‘Calls upon all States, including States non-members of the United Nations, to act strictly in accordance with the provisions of the present resolution’ (emphasis supplied). Each state was expressly required to enforce the provisions of Resolution 661 upon its own shipping, and breaches of the sanctions should have been minimal; nevertheless it was possible that there would be occasions when the full powers of implementation would have to be employed.
For at least a short period (from 16 August 1990 until the adoption of Resolution 665 on 25 August 1990) the monitoring and interception of shipping by Kuwait’s allies was conducted under a legal justification of collective self defence. Once again the planner would be entitled to expect widespread co-operation from states, but needed to identify the legal basis for interference with the normal freedom of commerce upon the sea. If the interdiction took place as an exercise of self defence under Article 51 of the UN Charter, the theoretical legal basis upon which such action might be founded is of interest. There is a large body of international opinion that says that once an international armed conflict exists then all the law of maritime conflict, including the right of visit and search by belligerents, comes into play.30 This view is not unchallenged, and in any event does not affect the situation applicable during the short period before Resolution 665 was adopted.
That there was an international armed conflict between Iraq and Kuwait was not in dispute, but the British government took the view that such a state of armed conflict did not exist between the UK and Iraq, and also that the UK was thus not a belligerent.
Kuwait had requested the UK to exercise such rights of collective self defence as were necessary to ensure that economic measures designed to restore Kuwaiti rights were effectively implemented. As Mr Waldegrave said on 13 August 1990: ‘What the Kuwaitis are asking us to do is to reinforce the economic weapon which was put in place under the Security Council Resolution.’31
In a different context during the protracted international armed conflict between Iran and Iraq, Britain regarded herself as an impartial third party state, not involved in the conflict, and acknowledged only limited rights of the belligerents to exercise visit and search of British merchant shipping. When the British merchant ship Barber Perseus was intercepted by the Iranian navy in January 1986 the British government said:
The United Kingdom upholds the general principle of freedom of navigation on the high seas. However, under Article 51 of the United Nations Charter, a state, such as Iran, actively engaged in an armed conflict, is entitled in exercise of its inherent right of self defence to stop
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and search a foreign merchant ship on the high seas, if there is reasonable ground for suspecting that the ship is taking arms to the other side for use in the conflict. This is an exceptional right: if the suspicions prove to be unfounded and if the ship has not committed acts calculated to give rise to suspicion, then the ships’ owners have a good claim for compensation for loss caused by delay.32
This statement and its inherent implications appear to indicate a limitation on the traditional belligerent right of visit and search. Visit and search, at least in this instance, would now seem to be exercised as a part of the rights of self defence under Article 51 of the UN Charter and thus should meet the requirements of necessity and proportionality.33 While, perhaps, too much can be made of this statement, which was special to the circumstances giving rise to it, the legal stance it indicates is entirely compatible with the view expressed by the British government during the Kuwait crisis that Article 51 self defence rights would permit monitoring and, if necessary, the interception of shipping in the Gulf in support of the UN sanctions.34
From 25 August and the adoption of Resolution 665 the embargo was enforced and naval operations were conducted under the authority of resolutions adopted under Chapter VII of the UN Charter. This meant that, regardless of national interpretations of the law, a common legal umbrella was at hand to give authority and cover for the allied actions. It was an umbrella that provided, in addition, widespread political harmony and a greater degree of certainty to the planner.
Neutrality
One issue lies behind all the questions so far canvassed and gives rise to different national interpretations of the modern status of the traditional doctrines of maritime conflict. This issue is the uncertain effect of the United Nations Charter on the law of armed conflict and, particularly, the law of armed conflict at sea. If war is now prohibited,35 can the status, rights and duties of belligerents and neutrals still be effective? If there is no war, can there be neutrality? Are those third party states not involved in an international armed conflict automatically impressed with the status, rights and duties of neutrals, or are they in a condition of ‘non-belligerency’?36 Is the answer the same in conflicts of differing intensity and scope? If the action is an enforcement action under UN authority, can any state (particularly a state which is a member of the UN) claim neutral status?37
It is beyond the scope of this chapter to attempt to answer these questions. They are posed to give a flavour of the background against which operations were planned and conducted and also to highlight the fact that during the Gulf conflict one country, Iran, with an important geographical, political and religious influence, did indeed use terminology in its public statements that indicated the adoption of such a stance.38 However, no clear statement of, or official adoption of, neutrality was ever made.
Practicalities
Following the publication of Special Warning 80,39 the USA and its allies conducted maritime operations to monitor and, if necessary, intercept shipping in order to prevent breaches of the embargo. The measures that were envisaged and the degree of force permitted to enforce them were not stated. Clearly warships would need to question merchant vessels and, if not satisfied with the replies, would need to board and search them in order to verify their cargoes, identities and destinations. The power to divert and detain a ship in a nominated port might also be required.40 If, as a result of either questioning or search, a ship was found to be in breach of the embargo measures then the diversion of the ship either back to her port of departure or to some other port would be necessary.
Given that the Royal Navy and the US Navy could feel confident in their mutual ability to deal with each other’s shipping, what could be done to merchant ships of other countries? Did the exercise of collective self defence allow them to go beyond
‘monitoring’ by questioning? If it did, how much force could be used? If they wished to visit and search a foreign merchantmen, was it necessary to have a prior agreement with the flag state or should permission be sought on an individual basis when the need arose?
Could interception operations be conducted in the territorial seas of the regional coalition partners who formed the majority of the Gulf littoral states? Could they be conducted in the territorial seas of a ‘neutral’ state (Iran) and in the Iranian Advisory Zone?41
The answers to such questions are not to be found solely in legal reasoning. It would also be quite wrong to pretend that detailed and protracted analysis of the underlying legal theories occupied the minds of planners. The limitations and uncertainties inherent in this area of the law of armed conflict were accepted and practical solutions sought.
Common sense, diplomacy and negotiation came to the fore. Where doubt still existed after Resolution 665, states were asked for their views on matters; and, where necessary, for their permission or agreement to a course of action. In the British experience, none of the questions caused an insuperable practical difficulty, and it is fair to say either that the envisaged difficulties did not arise or that prior negotiation and agreement had removed the problem. That on this occasion the uncertainties in the law were overcome in their practical application should not lead to an underestimate of the practical difficulties that might arise in a different set of circumstances. If enforcement operations of this kind become more commonplace, clarification of the rules may be required, perhaps by the Security Council itself.
The use of force and rules of engagement
Given the proper reluctance of the British and other governments to release details of rules of engagement, it is necessary to examine known incidents to determine what shape the directives and rules on the use of force may have taken. Given the bland statement on the Armilla rules of engagement already quoted, it is possible to speculate sensibly on how further developments may have taken place. Following the invasion and the subsequent requests for assistance, the Royal Navy found itself engaged in collective self defence measures with maritime allies. It seems sensible to postulate that whatever
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