by Domenico Gallo, "il manifesto", February 21, 1998

The new war, seeminlgy being threatened and programmed in the Persian Gulf, looks like a tragicomic repetition of a story which took place seven years ago. This only makes the presentdebate all the more painful, it makes public opinion more inert and indifferent, and makes any political mobilisation much more difficult, since one has the impression of a deja vu experience. Nevertheless, one should not be deceived by appearances: the war preparations in February 1998 are taking place in an entirely different setting from the one of the war which began on the night of January 17, 1991. One merely needs to cast a brief look at the judicial-political debate at the time in order to realize this.

The crisis back then was determined by an act of aggression by Iraq, which on August 2, 1990 militarily occupied Kuwait, manifestly in order to annex its territory and extinguish the Kuwaiti State.

On that very day the United Nations Security Council, by means of resolution 660, declared that the inconsiderate Iraqi military action constituted an act of aggression, according to article 39 of the UN Charter, and ordered Iraq to withdraw its troops to their starting positions. On August 6 the Security Council, having taken note of the fact that Iraq had failed to withdraw from Kuwait, imposed a heavy embargo against Iraq by means of resolution 661, in order to induce it to bring the military occupation to an end. In order to prevent the embargo from being circumvented, the Security Council, by means of resolution 665 of August 25, 1990, authorized those member states cooperating with the Kuwaiti government to use naval forces in the area in order to check whether the embargo was being observed, by means of stopping and inspecting all ships passing through the Persian Gulf.

The immediate and determined action of the Security Council, at last freed from the paralysis which had blocked its actions at the time of the Cold War, led to the expectation that the crisis could be resolved by the UN through legal means. Resolution 665 was even met with satisfaction by Ernesto Balducci (a well-known Italian pacifist activist) who, in an article published on "L'Unita'" on August 28, 1990 ("The international community is just being born") wrote: "If the worst is avoided, we will be able to remember this August as the month in which, among its birth pains, the great ethical-political reality we had been dreaming of for fifty years finally came to life: a world community." In fact very soon Balducci shifted his position and, in an article published by "L'Unita'" on September 16, 1990 ("Here is what I mean by UN"), wrote: "Not everyone says 'UN, UN' shall enter the kingdom without wars of which the UN is the unarmed prophet." Finally, after strong pressures by the United States, the Security Council, on November 29, 1990, adopted resolution 678 by which it authorized its member states cooperating with the Kuwaiti government to use "all means necessary" in order to put into effect to all the previous resolutions of the Council ignored by Iraq, starting from January 15, 1991. It is well-known that on the night between January 16 and 17, 1991, the Western military machine started the bombings on Iraq.

Resolution 678 was the shield which allowed Andreotti, the Italian Prime Minister at the time, to show the Italian intervention in this war (the first time since 1945) to the Italian Parliament and public opinion as partecipation in an international police operation of the United Nations, approved by the Security Council according to Chapter 8 of the UN Charter, and whose aim was that of reestablishing peace and international security through the repression of a military aggression. Accordingly, the Italian partecipation to the war operations was presented as a fact compatible with the constitutional principle of the rejection of war, fixed by art. 11 of the Italian Constitution as a consequence of the pacifist principle, contained in that article, which imposes on Italy to cooperate with the United Nations in order to establish an order which ensures peace and justice among the Nations.

(...)

As it is well-known, the canard of the UN international police operation was falsified by the crude reality of war, conducted without any form of control and/or influence on the part of the Security Council or of other UN organs. The first to distance himself from Andreotti's thesis was actually the UN Secretary General, Perez De Cuellar who, in an interview to "Le Monde" of February 7, 1991, precised that this was a war "authorized by the UN", but it was not "the UN's war".

The thesis of the international police operation was in fact not even accepted by the supporters of the war's legitimacy, some of whom justified the intervention by means of the concept of collective self-difense, mentioned in art. 51 of the UN Charter, regarding the armed aggression of Kuwait (Gaja, Conforti), others inserted it in a third category between collective self-defense and the international police operations approved by the Security Council, according to art. 42 and following of the UN Charter (Cassese, Bobbio).

In any case, the war led to resolution 660 of the Security Council (which demanded that Iraq withdraw its troops from Kuwait and that the authority of the Kuwaiti government be reestablished) finally being put into effect. Afterwards Iraq recognized the Kuwaiti government and accepted the frontier drawn under the auspices of the Security Council. As a consequence the international crisis begun in August 1991 with Iraq's aggression and continued with the military response of Kuwait's allies in January 1991, was definitely concluded with the repression of the act of aggression and the complete removal of its effects. In the region therefore peace was restored, albeit at the price of a devastating war.

However, with the responsibilty of the Security Council, the war left a painful and unjust remnant standing: the embargo. With resolution 687 of April 3, 1991, the Security Council, in spite of its rejoicing of the "reestablishment of the sovreignty, the independence and the territorial integrity of Kuwait and the return of its legitimate government" decided that the sanctions would not be removed until a radical program for the disarmament of Iraq, delineated in chapter 22 of the same resolution, is put into effect. A special UN disarmament Commission was put in charge of the application of this program. This Commission has worked for over six years and has attained the destruction of Iraq's missile, chemical, bacteriological warfare and of those structures which could be used for the development of a nuclear program. Nowadays the source of the current arguments is the possibility of access and inspection to some sites inside the presidential palaces.

In the international order delineated by the UN Charter, the "ius ad bellum" does not exist anymore. No State can make use of war instruments to achieve its own purposes, even if these consist of obtaining compliance of international duties, approved by the United Nations.

The use of force is allowed only in order to oppose an act of aggression deriving from another State's armed intervention, according to art. 51, or to put into action the coercive measures which the Security Council should deem appropriate to restore international peace and security, according to art. 42 and following.

However, resolution 687 does not predict the possibility of a recourse to coercive measures for the application of Iraq's disarmament program, which, in fact, is conditioned by a certainly unjust measure, the embargo (which adds up to collective punishment) but still undoubtedly not implying the use of armed force.

In the present crisis no violation of peace or act of aggression have been committed. No one can invoke self-difense, and neither did the Security Council deliberate to take actions including the use of force, or the delegate them to some of its member countries. It is not even possible to invoke the "third category", which some people saw during the crisis of 90/91, referring to a military operation in some way between self-defense and coercive action by the United Nations.

The demand of the United States of subjecting Iraq to heavy bombardments and to eliminate its leadership by the use of force, is as absurd and unjustified as the demand of Lybia to bomb Israel because of the latter's not complying with resolution 242 of November 22, 1967, which asked Israel to withdraw from the territories it occupied during the six days' war.

For this reason the position of those who consider a recourse to war inevitable in case diplomacy fails is unacceptable. If anyone considers appropriate to express sympathy for the American action, this time they should not advocate international law as an excuse.