No-fly zones attacks not a material breach

United Nations Secretary-General Kofi Annan said yesterday that Iraqi firing on allied planes patrolling the no-fly zones in northern and southern Iraq was not a violation of UNSCR 1441, no matter what the United States may say.
“The United States believes that firing upon our aircraft in the no-fly zone, or British aircraft, is a violation — it is a material breach,” said Scott McClellan, a spokesman for the White House.
Ah, no, said Annan. “Let me say that I don’t think that the Council will say this is in contravention of the resolution of the Security Council.” The Russians agreed with Annan: “Recent claims that Iraq’s actions in the ‘no-fly’ zones can be seen as a violation of the U.N. Security Council resolution 1441, have no legal grounds,” the Russian foreign ministry said.
UNSCR 1441’s eighth paragraph says, “Iraq should not take or threaten hostile acts directed against any representative or personnel of the United Nations or of any member state taking action to uphold any Council resolution.”
The problem with this wording is that there is no Council resolution explicitly setting up the no-fly zones. They were established in 1991 after the Gulf War by the United States, France and the United Kingdom to protect the Kurds and Shi’ite minorities from Saddam’s murderous reprisals after the Gulf War. (France pulled out after 1998’s Desert Fox operation.) I did a search on the legality of the zones and found that the United States usually cites UNSCR 688 in defending the zones. But there’s nothing in the resolution authorizing their set-up. At best, their continued existence is a mark of implicit approval by the Council. Another view, which I’ve come to hold, is that the Council has recognized that there’s not a lot it can do about them anyway and U.K. and U.S. vetoes keep Russia and France from introducing resolutions to end them.
That’s not to say I don’t think they should be there. I was quite happy to have allied war planes high above me when I was in the country, otherwise the Kurds would never have achieved the levels of autonomy they have. Still, they’re a pretty flimsy excuse to try to declare Iraq in material breach, and thankfully the United Nations sees through that ruse.
Of course, now it just means there is more time to move troops and armor into the region.