CYIL 2015

MANIFEST VIOLATION OF THE UN CHARTER

As in 1981 a new leader of the Argentinean military government, Leopoldo

Galtieri, who was also acting as Head of State, took power, a decision was taken

to enforce the Argentinean claim militarily. After Argentinean forces invaded the

Falkland Islands and later South Georgia and the South Sandwich Islands, the

British forces intervened and within several weeks, control over the islands had

been re-established.

Concerning the new definition of a crime of aggression, would the decision of

the Head of State of Argentine be considered a crime of aggression?

The answer would require a thorough analysis of the Argentinean sovereignty

claim. However, it is not permissible to solve territorial disputes by the use of force.

Taken as a basis that the islands were British territory, they were clearly invaded without

any possible argument for self-defence or Security Council approval. Therefore, this

situation would most likely fulfil the threshold of the ‘manifest violation’ of the UN

Charter and it would amount to a crime of aggression.

6.2 Kuwait 1990

A growing tension between Iraq and Kuwait at the beginning of 1990s led Saddam

Hussein to order an invasion of Kuwait. The neighbouring state was conquered

not long after. The use of Iraqi armed forces and the later annexation of Kuwait

resulted in building an international coalition led by the USA that was able to push

through a relevant Security Council resolution authorising use of force in order to

liberate Kuwait. The military operation Desert Storm took place in January and

February 1991 and seven months after the Iraqi invasion, Kuwait was liberated.

Four reasons on the Iraqi side can be mentioned that led to the invasion. First, Iraq

had a large foreign debt towards Kuwait and tried unsuccessfully to persuade Kuwait to

pardon it. Second, based on historic arguments leading back to the Ottoman Empire,

Iraq claimed sovereignty over the territory of Kuwait. Third, Kuwait was overproducing

its quotas set by OPEC, which resulted in lower oil prices and therefore lower Iraqi

revenues for its own oil production. Fourth, Iraq claimed that Kuwait was using so-

called slant-drilling of oil in the border area that enabled it to ‘steal’ Iraqi oil.

Although some of the Kuwait actions above might violate international law, any

reprisal in accordance with international law has to be proportionate. Therefore,

there is little doubt that in terms of the current definition this military intervention

would amount to a crime of aggression.

On the other hand, it is necessary to mention that the behaviour of the coalition

forces was based on the Security Council resolution 678 (1990) that authorised the

UN Member States to use

all necessary means.

Therefore, the military operation

aimed at liberating Kuwait was in accordance with international law.

Para 2, UNSCR 678 (1990). The terms

‘all necessary means’

or ‘

all necessary measures’

in the text of a

Security Council resolution signifies the use of force.