|Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)|
|The Laws of War: Problems of Implementation in Contemporary Conflicts|
|III. Problems of Implementation in Wars since 1980|
The long war between Iran and Iraq was in many respects a traditional inter-state war. The main treaties of the laws of war were incontestably applicable. There were violations of fundamental rules in such matters as the treatment of prisoners, the use of gas, and attacks on neutral shipping. The UN had two major involvements in respect of the laws of war: first in connection with treatment of prisoners, then in connection with use of gas.
In January 1985, acting on his own behalf, the UN Secretary-General dispatched a mission to Iran and Iraq to investigate conditions under which POWs were being held; this included investigating an incident which had occurred at a POW camp in Iran in October 1984, in which a number of Iraqi POWs were killed or injured. This led to a very thorough report; whether it greatly benefited POWs is doubtful.
Iraq's use of gas during the war gave rise to one of the first major uses of the UN Security Council as a "monitor" of the laws of war - a role which proved, and continues to prove, problematic. Both Iran and Iraq were parties to the 1925 Geneva Protocol prohibiting the use of gas and bacteriological war. The Secretary-General commissioned a number of investigations into reports of the use of gas. On 21 March 1986 a UN Security Council statement for the first time criticized Iraq by name over the use of gas. On 26 August 1988 the Security Council unanimously adopted a resolution condemning "the use of chemical weapons in the conflict between Iran and Iraq" 87 There was also considerable evidence of Iraqi use of chemical weapons against its Kurdish minority.
After the end of the war in 1988, various diplomatic efforts were made to reinforce the Protocol's provisions. In January 1989, at a specially convened Conference in Paris on the Prohibition of Chemical Weapons, attended by representatives of 149 states, a final declaration was adopted which solemnly condemned use of such weapons and reaffirmed the prohibition in the 1925 Protocol. Iraq agreed to this declaration, claiming that the threat it had faced from Iran had been terrible and exceptional. The conference's final declaration gave strong support for the role of the UN Secretary-General as an investigator of violations. However, as a special correspondent of the Financial Times wrote, "Past experience has made the UN Secretariat sceptical about how free a hand it will get".
In January 1993, five years after the end of the Iran-Iraq War, the Chemical Weapons Convention was signed in Paris; this is first and foremost a prohibition of manufacture and possession of such weapons, not just of use, and thus belongs more in the category of arms control than laws of war. It is not yet formally in force. This treaty has been seen as overcoming a perceived weakness of the 1925 Geneva Protocol, namely that it prohibited use but not possession. However, there is some risk that the Chemical Weapons Convention, when it eventually enters into force, could actually weaken the prohibition on the use of chemical weapons. This is because it leaves some uncertainty about the sanction that would be employed in the event of violations. The threat of retaliation in kind, which had sometimes buttressed the old 1925 Geneva Protocol regime, would be absent in future. It had only been where that threat was absent, because the victim state lacked any capacity to threaten retaliation in kind, that chemical weapons had been employed. Instead, Article XII of the 1993 treaty provides for the application of collective measures by States Parties, including, in cases of particular gravity, bringing the issue to the attention of the UN General Assembly and Security Council. Whether this will prove effective in practice remains to be seen.
The events surrounding the Iraqi uses of chemical weapons in the 1980-88 war illustrate several inter-linked themes which have since recurred in other conflicts:
1. there is clear violation of a well established rule of the laws of war;
2. following an investigation under UN auspices, the Security Council condemns violations;
3. an international diplomatic conference in Europe solemnly condemns violations and calls for action; and
4. nothing further happens regarding the particular violations that have occurred.
This episode may have reinforced a lesson which the Iraqi leadership had no doubt also learned from the supine response of the powers and of the UN to the original Iraqi attack on Iran in 1980: that Iraq could ignore the solemn pronouncements and spasmodic condemnations issued by the international community.