Did the United Nations Authorize “No-Fly” Zones Over Iraq?

American and British war planes have been fired on several times in recent days while patrolling “no-fly” zones over Iraq. The Bush administration calls these attacks a breach of the United Nations Security Council resolution calling for the return of weapons inspectors to Iraq. Russia and other U.N. members disagree. Who’s right?

The Nov. 8 resolution states that Iraq must not “take or threaten hostile acts against any representative or personnel of the United Nations … or of any member state taking action to uphold any council resolution.” So the real question is whether the no-fly zones were authorized by the U.N. Security Council. If so, then Iraq cannot interfere with U.S. and British attempts to patrol them.

Following the Gulf War, no-fly zones were set up north of the 36th parallel to protect Iraq’s Kurdish minority and, later, south of the 32nd parallel to protect the country’s Shiite Muslims. They were implemented by the United States (under President George H. W. Bush), Great Britain, and France. As justification, the trio of nations cited U.N. Security Council Resolution 688, adopted in 1991 to condemn Iraq’s brutal repression of the Kurds and Shiites. The resolution demanded that Iraq cease its “repression of the Iraqi civilian population.”

However, the New York Times editorialized at the time that Resolution 688 provided a “dubious justification” for setting up the no-fly zones because it did not authorize the use of force to stop Iraqi abuses. And in 1993, the U.N. legal department announced that it could find no existing Security Council resolutions authorizing the United States, Britain, and France to enforce the no-fly zones. They are never explicitly mentioned in Resolution 688 or elsewhere. Furthermore, Resolution 688 was not enacted under Chapter 7 of the U.N. Charter, the section that is used to authorize and legitimize the use of force.

France later backed away from its involvement in the no-fly zones, leaving the United States and Britain to enforce them. Other U.N. Security Council nations have never accepted their legitimacy. So the dispute over whether Iraq’s firing at planes over the no-fly zones constitutes a “material breach” actually exposes a long-standing divide at the United Nations. No wonder the administration has been hesitant to cite Iraq’s recent anti-aircraft fire as cause to demand further military action from the Security Council.

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Explainer thanks Thomas Keaney of the Johns Hopkins School of Advanced International Studies, Phyllis Bennis of the Institute for Policy Studies, and Michael J. Glennon of the Tufts Fletcher School of Law and Diplomacy.