Persian Gulf—or Tonkin Gulf?

In a pair of editorials after the 1991 Gulf War, one of them titled "Don't Shoot Down Iraqi Aircraft," The New York Times called the plan to create vast "no-fly zones" (NFZs) in Iraq "legally untenable and politically unwise." The editorials, based on a careful reading of United Nations resolutions, were explicit: "The [cease-fire] accord permits Iraq to fly all types of aircraft and sets no restriction on their use. Shooting them down would put the United States in the position of breaking an accord it is pledged to uphold." Saying that Washington was entering "new and dangerous territory," the Times warned, "The purpose [of the NFZs] is unclear, probably unwise and maybe even illegal."

In fact, no UN resolution or other international authority exists to legitimize the NFZs, which are currently the scene of an intensifying air-to-ground firefight between an armada of U.S. and British warplanes and an ineffectual Iraqi defense system. The British-American presence over Iraq is a case of might-makes-right, and Iraq's feeble attempts to defend its skies are justified under international law. Yet the NFZs are immeasurably more explosive now because a unilateral U.S. interpretation of UN Security Council Resolution 1441, adopted on Nov. 8, provides a pretext for launching the war that President George W. Bush wants.

Since the resolution's passage, France, Russia, China and other nations, along with UN Secretary-General Kofi Annan, have worried about the presence of "hidden triggers" in the resolution, and they've opposed unilateral action against Iraq. One of those triggers is embedded in the eighth paragraph, which reads, "Iraq shall not take or threaten hostile acts directed against any representative or personnel of the United Nations or ... of any member state taking action to uphold any Council resolution." But American operations in the NFZs aren't upholding any UN resolutions, a fact that hasn't deterred the White House and the Pentagon from warning that Iraq's self-defense efforts are reason enough to trigger U.S. military action. "The United States believes that firing upon our aircraft in the no-fly zone, or British aircraft, is a violation. It is a material breach," says Scott McClellan, a White House spokesman.

The history of how 1441 was cobbled together proves otherwise. From the blustery and bellicose original draft peremptorily put forward by the United States, it was molded (under threat of veto by France, Russia and China) into a far more moderate one that strengthens the hand of the weapons inspectors now doing their work in Iraq. What's not yet been reported is that the UN Security Council shot down an attempt by the United States to get the no-fly zones into 1441. "Language on the no-fly zones was in the draft resolution for 1441, but it was watered down to be very nebulous," says a U.S. official, requesting anonymity. "We took out the specific no-fly-zone language." That's because the no-fly zones wouldn't fly with other members of the UN Security Council.

Still, the United States insists on the existence of the hidden trigger. In an interview with The American Prospect, John B. Bellinger III, senior associate counsel to the president and legal adviser to the National Security Council (nsc), says that other countries clearly understand that Paragraph 8 refers to the NFZs. "They know why we put that in there," he says, even if the specific reference to the zones didn't make the cut. "We've told them, 'You may not buy our legal theory,'" he says. "But the whole idea is to test Saddam's cooperation."

The legal justification for the British-American NFZs is based on a shaky interpretation of several past UN resolutions, especially 678, 688 and others. Resolution 678 invoked Chapter 7 of the UN Charter, which authorizes member states to use military force, thus legitimizing the war to expel Iraq from Kuwait. Resolution 688, passed after Baghdad suppressed internal revolts by Kurds in northern Iraq and Shi'a in the south, condemns Iraq's repression of its own people. According to Bellinger, the United States, by imposing the NFZs is enforcing 688 and creating an aerial umbrella over Kurdish and Shi'a regions. That legal theory inelegantly combines 678's authorization of force with 688's condemnation of Iraq's internal actions, even though 688 specifically does not cite Chapter 7. In any case, neither 678 nor 688 makes any reference to the NFZs, nor does any other UN resolution.

In fact, the NFZs were created -- first in the north, in 1991, and then in the south, in 1992 -- by the United States, Great Britain and France, acting unilaterally. (France dropped out, first refusing to go along with President Clinton's expansion of the southern NFZ in 1996, then quitting altogether in 1998.) For more than a decade, the United States has played a lethal cat-and-mouse game over Iraq, carrying out increasingly provocative patrols, sometimes drawing Iraqi fire or radar targeting, and then launching widespread bombing or missile strikes. Since 1991, thousands of such sorties have been carried out. And since 1998, when fighting intensified, at least 300 Iraqis have been killed by U.S. and British attacks.

From the beginning, Iraq rejected the NFZs. "Iraq does not recognize the no-fly zone because it was not a UN job," said then-Foreign Minister Tariq Aziz in 1993. "It was imposed by the Western powers." Many nations agreed, but there was a stalemate at the United Nations. On one hand, the United States could not win support for the illegal NFZs in the Security Council, and it eventually gave up trying. On the other hand, opponents of the NFZs considered it fruitless to launch an effort to have them condemned, knowing that the United States and Britain would veto it. Still, the stalemate hasn't prevented others from speaking out. "Air bombing of Iraqi targets by U.S. and British air forces is a breach of international law and UN resolutions," said Russian Foreign Minister Igor Ivanov two years ago. "Russia calls for abrogating the so-called no-fly zones."

Marjorie Cohn, an attorney and executive vice president of the National Lawyers Guild, has studied the issue of NFZs. "The no-fly zones have never been specifically authorized by the UN Security Council. They are illegal violations of Iraqi sovereignty," she says. "The UN Charter is very clear. Only the Security Council can decide what measures can be taken to enforce Security Council resolutions."

Specialists in national-security law who defend the NFZs agree that the United Nations has not endorsed them, but they argue that by having existed for more than a decade, they are now established facts. "They've been persisting so long that it's almost become a kind of customary regime for the area," says Ruth Wedgwood, professor of international law and diplomacy at John Hopkins University's Paul H. Nitze School of Advanced International Studies. "A lot of international law ... is by acquiescence." Similarly, Paul Schott Stevens, a former legal adviser to the nsc, says that the United Nations has tolerated the NFZs for so many years that they are now de facto legal. "They've been done with the full cognizance of the UN, and at least with their implicit approval," says Stevens, co-author of a paper on Iraq and international law for the conservative Federalist Society for Law and Public Policy Studies.

So far, the State Department has not brought up the issue of Iraq's defense of its skies to the United Nations, preferring instead to catalog the alleged violations for future use. Perhaps that's because France, Russia and China would reject such claims out of hand, and because Annan has made it clear that only significant obstruction by Iraq would be considered a violation of 1441. "I think the discussions in the council made it clear we should be looking for something meaningful and not for excuses to do something," says Annan. On the other hand, the administration's hawks believe that they don't need to go back to the United Nations at all -- that Washington, at a time of its own choosing, can go to war against Iraq without further UN approval.

Still, the arms-inspection regime has the hawks feeling caged. That sentiment was pervasive during a mid-November event at the American Enterprise Institute, the roost for a flock of hawks, including Richard Perle, chairman of the Pentagon's Defense Policy Board. An errant fire alarm had gone off, sending scores of people tramping down 12 flights of stairs before a seminar with five former Iraqi military officers could get under way. As they carried their cups of coffee and half-eaten croissants, the institute's troops chattered about the re-entry of UN weapons inspectors into Iraq -- and the mood wasn't good. "We can only hope and pray that this doesn't mean we are boxed in," said a high-level Department of Defense official involved in planning the Bush administration's war against Iraq.

It's no secret that the NFZs could provide a trapdoor out of that box. By increasing the pace of its patrols in the NFZs and by stepping up the aggressiveness of its response to Iraqi defenses, the U.S. military can push the U.S.-Iraqi standoff closer to the brink. "If we get a couple of aircraft shot down, or a pilot taken hostage, all bets are off," says a leading specialist in international law. "We will continue to take actions in the no-fly zones," says Bellinger, the nsc counsel. "What's provocative is that Iraq has continued to take actions against U.S. planes."

Could U.S. military action against Iraq trump the inspections regime? There's a precedent. In 1998, when President Clinton decided to launch a massive bombing attack against Baghdad, UN inspectors in Iraq had to pack up and leave. Iraq didn't kick them out, though the perception that it did has lasted to this day. If Iraq continues to cooperate with the inspectors, or if Hans Blix, the chief UN weapons inspector, moves a bit too slowly for the White House, the intensifying shooting war in Iraq's skies could suddenly make all that irrelevant once again.

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