Hurd defends flight ban

THE Foreign Secretary, Douglas Hurd, explained yesterday that the imposition of an air exclusion zone on southern Iraq was not directly sanctioned by United Nations resolutions, but was derived from broader concepts of international law. The New York Times in an editorial described the move as 'legally untenable and politically unwise'.

Mr Hurd told the BBC, 'Not every action the US government, or the British government or the French government take has to be underwritten by a specific UN resolution providing we comply with international law.' He said the ban was to 'prevent Saddam Hussein's helicopters and fixed- wing aircraft from zapping his own people'.

Until now it has been believed that only fixed-wing aircraft and not helicopters were banned from flying in Iraq. In fact, there is no UN ban on Iraq flying fixed-wing aircraft. Nor is there any mandate under existing UN resolutions for the use of force to hit at the Iraqi air force to protect the Shia minority in the southern marshes.

The ban on Iraq's use of fixed- wing aircraft had been laid down in the ceasefire accords reached in the tents between General Norman Schwarzkopf and the Iraqi generals at the end of the war in March 1991. Gen Schwarzkopf did, however, give in on helicopter flights after the Iraqis persuaded him they were needed for transport since bridges had been destroyed. Helicopters were then used as gunships.

There are two UN Security Council resolutions pertinent to the crisis. Resolution No 687, 'the mother of all resolutions', dealt with ceasefire arrangements and was adopted on 3 April 1991. This concerns mainly the destruction of Iraq's non-conventional capability: its nuclear, chemical and biological weapons. But it is also a resolution under Chapter VII of the UN Charter that gives the UN power to use all necessary means of enforcement.

The second resolution, No 688, adopted on 5 April 1991, states that the Security Council 'condemns the repression of the Iraqi civilian population in many parts of Iraq . . . (and) demands that Iraq immediately end this repression and expresses the hope in the same context that an open dialogue will take place to ensure that the human and political rights of all Iraqi citizens are respected'.

Iraq's attacks on Shias in the southern marshes are in clear breach of Resolution 688. But No 688 does not stipulate any sanction or use of force to oblige compliance by Iraq. No 687 does justify the use of force, but to ensure the dismantling of weapons of mass destruction. Without the passage of another Security Council resolution, there appears to be no legal mandate for the use of force to prevent Iraq flying fixed- wing aircraft to suppress Shia rebels.

President George Bush was quite within his rights to threaten bombing buildings in Baghdad because Iraq refused to let UN inspectors into the Agriculture Ministry building. This, however, would have entailed political problems with some of his Arab coalition partners worried about civilian casualties. Using force for humanitarian reasons to protect Shias in the south is politically more acceptable.

Another paragraph in Resolution 688 states that the consequences of the repression of the Iraqi civilian population threaten international peace and security. This overrides respect for Iraqi sovereignty. It can also be cited to justify the use of force, even though it does not give any specific authority for it. The precedent was set during operation Safe Haven, when 14,000 troops were sent to protect the Kurds against Iraqi repression.

Why should the US, France and Britain wish to strike now at the Iraqi air force? The military arguments are flimsy. The Pentagon spokesman, Pete Williams, declared on Tuesday night that the only known attack by Iraqi aircraft on the Shias in the southern marshes was on 23 July.

The reasons are political. Throughout the confrontation with Iraq, the grand strategy has been the removal of Saddam Hussein. Last year the coalition showed little concern for the Shia uprising. Its new-found enthusiasm for the protection of the Shia population is merely a pretext to tighten the noose round President Saddam. If the allies damage the Iraqi air force sufficiently, this might provoke a coup.