Enforcing the Prohibition on the Use of Force: The U.N.\u27s Response to Iraq\u27s Invasion of Kuwait

On August 2, 1990, Iraq invaded and swiftly occupied its neighbor, Kuwait. Within hours, the United Nations Security Council ( Council ) condemned the invasion, demanding immediate and unconditional Iraqi withdrawal. During the Cold War, the United Nations (U.N.) rarely responded to aggression with anything more than such resolutions of condemnation. Either the Soviet Union or the United States regularly vetoed proposals to do more. The end of the Cold War has freed the U.N. to enforce the U.N. Charter\u27s prohibition on the use of force. After August 2, it began enforcing the prohibition against Iraq. When the drafters of the Charter outlawed the use of force, they understood the need for an enforcement mechanism. Most international law is enforced by self-help. But a small state invaded by a larger one would have difficulty enforcing its rights under the Charter. The Charter, therefore, gives the Security Council authority to deal with threats to the peace and acts of aggression. When necessary, the Council may use troops of the member nations to counter aggression. Because of the Cold War, the Security Council has never used this mechanism. In the Korean conflict, the Council managed to call on members to send troops voluntarily, but only because the Soviet Union was boycotting the Council when there solution was adopted. In contrast, with regard to Iraq, the Council has had the cooperation of all the permanent members. Yet, the Council still has not called on members to send troops under the U.N. flag, which is regrettable, for purposes of achieving respect for the prohibition on force. Nevertheless, the coordinated response to Iraq demonstrates the U.N.\u27s ability to respond to unlawful force. But will the U.N.\u27s response convince critics that law is relevant to war? Since the adoption of the Charter, some political scientists have argued that state sovereignty does not admit the possibility that states would restrain their use of armed force. Morgenthau, Kennan, Hoffmann and others have belittled the attempt to achieve peace through law. They conclude that governments will not refrain from using force when their states\u27 vital interests are at stake merely because of a rule, especially when no sovereign exists to sanction rule violations. A variation on this theme holds that the international system is too chaotic and violent for legal rules to work. Again, however, the chaos is due to competing sovereigns who are subject to no superior authority. According to this view, governments see no reason to concede their important national interests to another state when the government has an army available to protect those national interests. As empirical proof of their position, political scientists invariably offer the record of conflict since the Charter\u27s adoption. Iraq\u27s invasion of Kuwait is only the latest example. Admittedly, the list of conflicts is long, but looking at the wars fought in recent years suggests international law has had some success. To the extent war persists, the problem seems to lie in the weakness of the enforcement system, not in law\u27s irrelevance. In response to Iraq, the weakness in enforcement has been overcome, and the U.N. has acted dramatically. It has adopted sweeping, comprehensive enforcement measures culminating in Desert Storm. Desert Storm seems to be what conventional thinking in international law has wanted in terms of enforcement: force authorized by the United Nations to counter aggression. Desert Storm is the answer to critics of the law. Nevertheless, international lawyers should now question whether it is the- sort of enforcement the nations of the world really want. In light of the Gulf War, U.N. members need to consider how best to meet aggression in the post-Cold War era: what should a new world order under the rule of law mean? This article considers, first, whether it is relevant to discuss a law prohibiting\u27 force. Can law actually restrain war? It concludes that law has restrained the use of force and that with better enforcement of the law, we can expect even more restraint. The article then considers how the prohibition on force applies to Iraq\u27s invasion of Kuwait, and to the response to the invasion. Finally the article offers suggestions for improving enforcement of the prohibition on force in light of Desert Storm