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Humanitarian basis for the no-fly zones

27. The no-fly zones were established by the US, the UK and France after the Gulf War for humanitarian reasons in an attempt to stop Saddam's repression of Kurdish people in the north of Iraq, and the Shia population in the south. The aim is to prevent Iraq being able to attack these people from the air. The Secretary of State commented—

Previously Saddam has used helicopter gun ships to repress the Kurdish population in the north and both fixed wing aircraft and helicopter gun ships to repress Shia muslims in the south. Coalition patrols prevent him using his air force in this way but there is no reason to suppose he would not resume the tactics if the patrols ceased.[63]

The northern no-fly zone operates north of the 36th parallel and was established in April 1991 as part of Operation 'Provide Comfort' to give humanitarian assistance to the Kurds. It is now known as Operation Northern Watch. The southern no-fly zone was established in August 1992 to protect the Shia population. It originally covered the area south of the 32nd parallel but, following new incursions by Iraqi forces, in September1996 the zone was extended northwards to the 33rd parallel and now covers about a third of the territory of Iraq (see maps at the front of this Report).[64]

28. Mr Simon Webb, the MoD's Director General of Operational Policy, provided us with some details of the sort of attacks on minority peoples which had occurred before the no-fly zones were established, including the use of chemical weapons against Kurdish people at Halabjah in March 1988, which caused thousands of casualties.[65] Similarly, in southern Iraq—

The operation which stimulated the no fly zone in the south was against the Shi'a Arabs in the Delta there, which led to the displacement ... of 100,000 to 150,000 people, who were displaced by those operations, which included aircraft and helicopter gun ships.[66]

There is evidence that Saddam's intentions towards the minority peoples has not changed and, although he has less ability to attack them from the air, repression on a lesser scale has continued through ground attacks. The Secretary of State told us there was photographic evidence that—

... from time to time there have been houses that have been bulldozed and villages that have been flattened... We can see from the air ... that he continues—particularly in the south—to use his ability to dominate the ground to perpetrate these kinds of attacks on civilian populations.[67]

29. In his reports to the UN Human Rights Commission, the Special Rapporteur on human rights in Iraq, Max van der Stoel, reported 'grave violations of human rights committed by the Government of Iraq' against the people living in the southern marshes area. These included 'repeated, intense artillery and mortar attacks followed by ground-force attacks on villages and towns in several areas'.[68] Houses were reported to have been burned or bulldozed, entire villages and communal lands confiscated by government forces, and entire families 'forcibly relocated' particularly in the area bordering Iran.[69] In northern Iraq, the Special Rapporteur reported continued repression of the Kurdish population with the internal deportation of non-Arab people as part of the Iraqi regime's policy of 'Arabization'.[70] A further report in October 1999 said that—

At the beginning of 1992, the Special Rapporteur concluded that the gravity of the human rights situation in Iraq had few comparisons in the world since the end of the Second World War. The Special Rapporteur regrets that since then he has had no cause to change his view.[71]

Legal basis for the no-fly zones

30. The precise legal basis for the no-fly zones is controversial. The MoD's view is that—

... the justification for the No Fly Zones remains that of overwhelming humanitarian necessity in that, without our deployment, a severe humanitarian crisis would in all probability recur.[72]

The UK and the US governments have frequently said that the basis lies in UN Security Council Resolution 688 of April 1991 which—

... condemns the repression of the Iraqi civilian population in many parts of Iraq ... demands that Iraq ... immediately end this repression ... requests the Secretary-General to pursue his humanitarian efforts in Iraq ... appeals to all Member States ... to contribute to these humanitarian relief efforts.[73]

The Secretary of State told us—

... the justification is essentially based on the overwhelming humanitarian necessity of protecting people on the ground, combined with the need to monitor the effect of 688; so it is the two taken in combination that provides the legal justification.[74]

and he expanded on this—

There is a clear justification in international law for the international community to respond to protect people where they are threatened by an overwhelming humanitarian catastrophe. That is precisely the same legal justification which was used in relation to Kosovo. It is that, in combination with the indication in 688, that we should take steps to prevent the attacks on people, on minority peoples in Iraq.[75]

31. Our colleagues on the Foreign Affairs Committee recently examined the 'doctrine' of humanitarian necessity in their Report on Kosovo. They concluded—

... at the very least, the doctrine of humanitarian intervention has a tenuous basis in current international customary law...

Specifically in relation to NATO's intervention in Kosovo, that Committee decided that the action was 'of dubious legality in the current state of international law' but 'justified on moral grounds'.[76] The Foreign Affairs Committee supports the 'aim of establishing in the United Nations new principles governing humanitarian intervention'.[77] We too would support that aim but in the meantime, in the absence of internationally agreed procedures, we have no doubt that UK participation in the no-fly zone operations over Iraq is justified on moral and humanitarian grounds.

32. Iraq rejects the zones and claims they have no basis in UN Security Council Resolutions. An Iraqi government official said, after Operation Desert Fox—

Imposing the so-called no-fly zones is illegal and is outside the framework of the resolutions of the Security Council and international legitimacy. It is an act of aggression and is rejected and resisted by Iraq ... it is a flagrant violation of international laws, norms and charters, particularly the UN Charter. Moreover, it is a flagrant violation of the Security Council resolutions themselves ... It is the US and British aircraft which are violating the sovereignty and sanctity of northern and southern Iraqi airspace.[78]

Other UN Security Council members have expressed reservations about the no-fly zones. An official spokesman for the Foreign Ministry of the Russian Federation said in January 1999 that the no-fly zones had been 'imposed outside the framework of UN Security Council resolutions' and that Russia's 'negative attitude to these unlawful actions is well known'.[79]

The mission

33. The main purpose of the no-fly zone operations, in addition to preventing Iraqi aircraft flying north of the 36th parallel and south of the 33rd, is tactical reconnaissance.[80] The offensive part of operational activity is undertaken only as a response to Iraqi attacks on coalition aircraft engaged on missions to monitor the no-fly zones[81] and targets in Iraq are attacked only when they threaten coalition aircraft. The Secretary of State told us—

... our mission is to supervise the no fly zones. Our mission is not—and I must emphasise this—to bomb assets on the ground ... if our aircraft did not come under fire we would not need to conduct any kind of bombing of targets on the ground.[82]

Targets include anti-aircraft artillery (AAA), surface to air missiles (SAMs) and the radars which direct such missiles.[83] These weapons are highly mobile and keeping track of the threat is a constant problem. Coalition aircraft are also attacked by Iraqi fighter aircraft. In the southern no-fly zone, between December 1998 and May 2000 coalition aircraft were directly threatened by Iraqi air defence forces on over 320 occasions and aircraft responded in self defence on 74 occasions.[84]

34. The major partners in the coalition are the United States and the UK, and the host countries in the area who provide bases and other support to the operation. France withdrew from operations in the northern no-fly zone in December 1996 and from the southern no-fly zone after Operation Desert Fox in December 1998 and has not yet resumed participation, although French aircraft and personnel are still stationed in the region.[85] The UK contribute to tactical reconnaissance, strike and air defence operations. In the period from April 1999 to March 2000, the RAF flew a total of 2,683 sorties in the no-fly zones, of which 2,233 were in the southern zone.[86]

64  Ev pp 20 and 22 Back

65  Ev pp 30-31; see also HC Deb., 29 July 1998, c 284w Back

66  Q 9 Back

67  QQ 9 and 19 Back

68  Report by the UN Special Rapporteur on the Situation of human rights in Iraq, op cit, February 1999, paras 11-12 Back

69  ibid, para 17 Back

70  ibid, paras 24-25 Back

71  Report by the UN Special Rapporteur on the Situation of human rights in Iraq, op cit, October 1999, para 39 Back

72  Ev p 31 Back

73  UN Security Council Resolution 688, 5 April 1991 Back

74  Q 11 Back

75  Q 21 Back

76  Fourth Report from the Foreign Affairs Committee, Session 1999-2000, Kosovo, HC 28-I ,paras 132 and 138 Back

77  ibid, para 144 Back

78  Republic of Iraq Radio, Baghdad, 5 Jan 1999, via BBC Monitoring Online Back

79  ITAR-TASS news agency (World Service), Moscow, 6 Jan 1999, via BBC Monitoring Online Back

80  QQ 4 and 17 Back

81  Q 51 Back

82  QQ 124 and 126 Back

83  Q 52 Back

84  HC Deb., 6 June 2000, c 170w Back

85  QQ 38-39 Back

86  HC Deb., 5 June 2000, c 3w Back


Prepared 2 August 2000