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International Law
Fall 1990
An exchange of letters, dated 19 June 1961, between the
Sheik of Kuwait and the British political resident in the
Persian Gulf marked Kuwait's accession to independence and
terminated the Anglo-Kuwaiti agreement of 1899. Under that
agreement, Britain had undertaken to protect Kuwait in order
to forestall possible German and Russian moves in the
Persian Gulf area. By the time the agreement was abrogated,
however, British interest in Kuwait had assumed quite a
different dimension.
By 1961, Kuwait was the largest crude oil producer in
the Middle East and the third largest in the world (over 600
million barrels per year). Production and transport costs
were low and Kuwait's reserves were estimated at between 15
and 25 percent of the then-proven world total. Kuwait's
importance to Britain is demonstrated by the fact that by
1961 it was supplying about 40 percent of British imports of
crude oil. Moreover, a large portion of the Sheik's enormous
revenues were invested on the London market and the
operations of the Kuwait Oil Company, in which the British
government had a substantial interest, greatly benefited
British sterling balances.
Thus, while the agreement of 19 June 1961 recognized
Kuwait's "sole responsibility" for the conduct of its
internal and external affairs, it also committed Britain to
the continued protection of the Kuwait government.
One writer has commented at that time that "if its
resources had been merely adequate," Kuwait would have had
little to fear in assuming full independence but "the
astronomical size of its wealth ...paradoxically,
constituted the greatest threat to its independence." The
paradox, as it turned out, was that this very wealth
constituted Kuwait's greatest protection, since none of the
contenders for power in the Arab world could afford to see
this rich prize fall into the hands of one of its rivals.
This applied not only to Kuwait's covetous neighbors, Iraq
and Saudi Arabia, but also to Egypt's strong leader, Nasser,
whose view that the oil revenues of the Middle East should
be used for the development of all the Arab world was well
known.
Following the proclamation of Kuwait's independence,
messages of congratulations poured in from the heads of
other Arab states. The cable from Iraqi Prime Minister
Kassem, however, contained no reference to Kuwait's
independence but merely expressed satisfaction with the
termination of the 1899 agreement which he branded as
illegal. At a press conference on June 25, 1961, Kassem
denounced the new agreement between Kuwait and the Britain,
declared that Kuwait was an "integral" part of Iraq, and
announced Iraq's intention to "liberate" this section of its
territory. Since that time Iraq has never recognized the
nation-state of Kuwait, even though almost every other
nation has done so.
Various assessments of Kassem's motive have been offered
and whether he would have resorted to force to advance his
claims has been questioned. It seems logical to assume that
Iraq sought to test the British reaction and above all to
forestall attempts by others, i.e., Saudi Arabia and the U.A.
R., to extend their control over Kuwait.
The first of the Arab states to respond to Kuwait's
appeal for support against this Iraqi threat was Saudi
Arabia which promptly dispatched its Chief of Staff to
confer with the Sheik, and warned that any aggression
against Kuwait would be considered as aggression against
Saudi Arabia. Responses from the other Arab states were less
the price of oil on the world market by producing well
beyond its O.P.E.C. limit; the lower price made it more
difficult for Iraq to repay the huge debt it had incurred
during a recently completed ten year war with Iran. Hussein
also accused Kuwait of "stealing" Iraqi oil by slant-
drilling into a rich oil field near their common border.
Finally, Hussein renewed Iraq's claim to all of Kuwait.
In mid-July, Hussein denounced Iraq's adherence to the
Fourth Geneva Convention of 1949 relating to the protection
of civilians during war or other military activities, citing
"fundamental changes in the circumstances" between 1949 and
the present. This decision was transmitted to the Swiss
Federal Council on July 17, 1990. Switzerland is the
"depository nation" that administers the multilateral treaty
that has been ratified by almost every nation in the world.
On August 2, 1990, Hussein invaded and occupied all of
Kuwait. One week later he absorbed Kuwait as the nineteenth
province of Iraq "for all eternity," declaring that "the
State of Kuwait no longer exists as, lacking territory, it
does not satisfy one of the basic conditions of a nation. At
the time of his annexation, the Sheik of Kuwait and his
government, having fled, continued to function "in exile" in
neighboring Saudi Arabia. To solidify this annexation,
Hussein also decreed that "all former nationals of Kuwait
are now and henceforth nationals of Iraq." Finally, as
Kuwait "was no longer a State", he ordered all diplomatic
legations in Kuwait City closed, placing troops around the
ones that refused to comply with this order and prohibiting
food from being delivered to them.
Subsequent to these events, United Nations
representatives interviewed hundreds of Kuwaiti and foreign
nationals as they streamed into refugee camps during
September.
The testimony builds a horrifying picture of widespread
arrest, torture under interrogation, summary execution, and
mass extrajudicial killings in the wake of the invasion.
Hundreds of Kuwaitis are now believed to be held in
detention centers, prisons, commandeered schools, and public
buildings in both Kuwait and Iraq.
Refugees who had been briefly detained by the Iraqis in
Kuwait before leaving the country reported that torture is
routine in these facilities. They described soldiers
breaking limbs, pulling hair, fingernails and toenails out,
and beating prisoners senseless. Witnesses also reported the
common use of electric shock torture.
On October 17 many refugees testified before the United
States Congressional Human Rights Caucus in Washington D.C.
They stated that Iraqi forces have arrested men, women, and
even children found possessing opposition literature or the
Kuwaiti flag or photographs of the Sheik of Kuwait." In
fact, the mere possession of such items has become
effectively a capital offense in Kuwait.
Others are said to have been arrested--and in some
instances killed--for failing to demonstrate allegiance to
Iraqi President Sadam Hussein.
Kuwaiti doctors arriving in Bahrain also told the
international press that Iraqi soldiers had brought scores
of dead youths into local hospitals following the invasion.
The doctors said they were forced to issue death
certificates in each case, stating that the victim had died
in the hospital, even though many bodies contained bullet
holes in the head or heart. Boys as young as 15 years old
have been shot, their bodies then dumped in the street in
front of their homes. Scores of hangings have been reported
on the grounds of Kuwait University.
What issues of international law do the above facts
present? How will they probably be resolved? Why will they
be resolved in that manner?
MATERIALS
CHARTER OF THE UNITED NATIONS San Francisco, June 26, 1945
Article 2
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace
and security.
Article 40
In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The
Security Council shall duly take account of failure to comply with
such provisional measures.
Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air postal, telegraphic, radio, and other means of communication, and the severance of diplomatic
relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. such action may include demonstrations, blockade, and other operations by air,
sea, or land forces of Members of the United Nations.
"DEFINITION OF AGGRESSION" RESOLUTION G.A.res. 3314 (1974)
The General Assembly,
Deeply convinced that the adoption of the Definition of Aggression would contribute to the strengthening of international peace and
security...
Calls the attention of the Security Council to the Definition of Aggression, as set out below, and recommends that it should, as appropriate, take account of that Definition as guidance in
Adopted and Proclaimed by General Assembly Resolution 217 A(III) of
10 December, 1948.
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent trust,
non-self-governing or under any other limitation of sovereignty.
Article 5
No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.
Article 13
- Everyone has the right to freedom of movement and residence within
the borders of each State.
- Everyone has the right to leave any country, including his own,
and to return to his country.
NO. 41 CONVENTION (IV) RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS
IN TIME OF WAR--SIGNED AT GENEVA (FOURTH GENEVA CONVENTION), 12
AUGUST 1949.
Article 1
The High Contracting Parties undertake to respect and to ensure
respect for the present Convention in all circumstances.
Article 2
In addition to the provisions which shall be implemented in peace- time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of High Contracting Parties, even if the state of war is not recognized
by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the
said occupation meets with no armed resistance.
Article 4
Persons protected by the convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying
Power of which they are not nationals.
Article 27
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially
against all acts of violence or threats thereof.
Article 33
No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures
of intimidation or of terrorism are prohibited. Pillage is prohibited.
Reprisals against protected persons and their property are prohibited.
Article 34
Article 147
Grave breaches shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly.
Article 158
Each of the High Contracting Parties shall be at liberty to denounce
the present Convention.
The denunciation shall be notified in writing to the Swiss Federal Council, which shall transmit it to the Governments of all the High
Contracting Parties.
The denunciation shall take effect one year after the notification
thereof has been made to the Swiss Federal Council.
