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35 Harv. Int'l. L. J. 387 (1994)
The Legitimation of Violence: A Critical Analysis of the Gulf War

handle is hein.journals/hilj35 and id is 393 raw text is: Volume 35, Number 2, Spring 1994 The Legitimation of Violence: A Critical Analysis of the Gulf War Roger Normand* Chris af Jochnick** INTRODUCTION This is the second of two Articles challenging the widespread belief that the laws of war operate to restrain or humanize war. The Articles trace the historical development of the laws of war and argue that the laws were carefully drafted to subordinate humanitarian obligations to military necessities and, as a result, have served to legitimize, rather than to restrain, wartime violence during the Gulf War.. In the first Article,' we examined the historical record of the laws governing the means and methods of warfare, concluding that powerful nations deliberately formulated the laws of war to advance the primacy of military violence over humanitarian concerns, despite noble rhetoric to the contrary.2 We illustrated how the Hague Conferences, which *J.D., Harvard Law School; M.T.S., Harvard Divinity School; Policy Director, Center for Economic & Social Rights. ** J.D., Harvard Law School; Legal Director, Center for Economic & Social Rights. We wish to thank the John D. and Catherine T. MacArthur Foundation for its generous support. We also thank Professor Richard Falk, Professor Henry Steiner, Sarah Leah Whitson, Joshua Zinner, and Michael Eisner for their helpful comments on earlier drafts of this Article. Finally, we are grateful to the participants in the Harvard Study Team and International Study Team human rights missions to Iraq and to the many people in the United States, Iraq, and Jordan who made these missions possible. 1. Chris af Jochnick & Roger Normand, The Legitimization of Violence: A Critical History of the Laws of War, 35 HARV. INT'L L.J. 49 (1994). 2. International law distinguishes between laws governing the resort to force (/us ad bellum) and laws governing the means and methods of combat during war (jus in bello). See, e g., GEosFREY BasT, Hum rrY iN WARFARE 8-9 (1980). Examples of the former include the Pact of Paris, or Kellogg-Briand Pact, which outlawed the use of war as an instrument of national policy. Treaty Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, T.S. 796. Likewise, article 2(4) of the United Nations Charter requires that [a~ll members ... refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. U.N. CHARTER art. 2, 4. The legality of Iraq's use of force against Kuwait is judged against this jus ad bellum prohibition. The United States-led Coalition sought legal authority for its resort to force in Security Council resolutions, citing chapter VII (the use of force under collective security) of the United Nations Charter. Yet regardless of whether these laws on the resort to force were followed, all parties to the conflict remained bound to respect the laws

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