Friday, May 17, 2024

Legal and Moral Authorization to Conduct the Gulf War

Introduction: Historical and Operational

On 2 August 1990, the Iraq military, under command of Saddam Hussein, invaded Kuwait. The invasion not only left Iraq in possession of Kuwait’s people, land, and mineral resources, it also left Iraq in a position to attack Saudi Arabia, which Saddam had threatened to do. This led to the Gulf War of 1990-1991 in which the United States and her allies fought to restore Kuwait’s independence and to protect Saudi Arabia’s territory.[1] [2]

There were two phases to the Gulf War: Operation Desert Shield and Operation Desert Storm. Of the two, Desert Shield is most relevant here.

Operation Desert Shield was primarily an operational stage in that military resources were positioned and coordinated so that they could be used to accomplish specific political goals. The idea is, to quote Clausewitz, “that war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carried on with other means.” In the Gulf War, the political objectives were to liberate Kuwait and to protect the sovereignty of Saudi Arabia[3].

USMC patrol near a burning well close to Kuwait City on March 7, 1991. (AP)

Legal Authorizations of the Gulf War[4]

Immediately following the invasion, President George H. W. Bush issued executive orders[5] banning trade and financial transactions with Iraq as well as implementing a travel ban. He further ordered that Iraqi assets within the US be frozen. Two days later, the House and Senate separately passed legislation supporting those executive orders, but neither of these were signed into law.

These executive orders were mirrored by the UN Security Council when it passed Resolution 661 on 6 August 1990 which imposed numerous economic sanctions on Iraq. These sanctions included bans on trade and financial transactions, except for medicines and food; a freezing of Iraqi government assets abroad; embargos on oil and arms; and so on. Approximately one hundred and ten countries took part in the embargo.

Bush began building an international coalition to isolate Iraq both militarily and diplomatically. The coalition was (at the time) unique in that it had a single purpose and was not meant to be long-term. Bush and his ambassadors were even able to alienate Iraq from members of the Arab League. Israel was kept neutral to avoid destabilizing the coalition, even though Iraq launched Scud missiles targeting Israel during the last month of Desert Shield.

Meanwhile, coalition military assets were being positioned in the region in readiness for Desert Storm.

On 29 November 1990, the UN Security Council adopted Resolution 678, which authorized coalition members to use all necessary means to secure peace, giving Iraq a deadline of 15 January 1991 to withdraw from Kuwait.

On 14 January, the day before the UN deadline, the 102nd Congress passed H.J.Res.77, the Authorization for Use of Military Force Against Iraq Resolution, which was the closest Congress came to an actual declaration of war. George H. W. Bush signed it into law (Public Law No: 102-1), and in his signing statement, Bush announced that

…[M]y request for congressional support did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution.[6]

Saddam Hussein ignored the UN deadline for withdrawal, and Operation Desert Storm began on 17 January 1991.

Just War Theory and the Gulf War

Just War Theory (JWT) is a tradition of military ethics that uses criteria to ensure that a war is ethically justifiable. Western JWT began with Saint Augustine and was refined and extended by Saint Thomas Aquinas. The tradition continues through the 1992 Catechism of the Catholic Church. Contemporary JWT, as espoused by Michael Walzer[7], for example, is secular but maintains several Christian attributes, notably an altruistic ethical foundation.

In either the Christian or secular forms, JWT has two primary components: criteria for when to justly begin a war (jus ad bellum) and criteria for just conduct during war (jus in bello)[8]. Of the two components, jus ad bellum would be most relevant here.

To justly enter a state of war, the war must satisfy all of the following criteria: war must be publicly declared by the appropriate authority; it must be for just cause and just intentions; it must be a last resort; the means used must be proportional to the provocation; and there must be a reasonable chance of success.

As the sole power to declare war is granted to Congress by the Constitution, the Gulf War does not satisfy the jus ad bellum criterion that a just war must be publicly declared by the proper authority.

The “just cause” and “just intentions” criteria are highly subjective, but these are usually taken to mean that the goal of a war is to redress harms, address human rights violations, and reestablish a just peace. The Gulf War could pass those criteria.

The “option of last resort” criteria was also met, since both the US and UN imposed economic sanctions on Iraq immediately following their invasion of Kuwait, and the UN gave an explicit deadline for Iraq to withdraw along with a clear statement of what would happen if they didn’t. Between the first imposition of sanctions by the US and the UN’s deadline for withdrawal, 166 days elapsed, which was more than sufficient time for economic sanctions to hit home. Diplomacy failed; economic sanctions failed; war thus became the last resort.

The “reasonable chance of success” criteria was also satisfied: between the far larger American military and the operational and logistical preparations made before Desert Storm began, success was highly likely.

Finally, the “proportional response” criterion is met, presumably: the coalition forces were used against Iraq’s to evict them from Kuwait and to prevent excursions into Saudi Arabia all while leaving Iraq able to defend itself from Iran. Others would point to the large number of casualties together with harms caused by the economic sanctions as proof that the response was not proportional.

JWT requires all these jus ad bellum criteria to be met for a nation to justly enter a state of war. There never was a declaration by the appropriate authority[9]; whether the proportional response criterion was satisfied is debatable; and the just cause and good intentions are extremely subjective. The Gulf War violated the proper declaration condition, so it cannot be considered a just war.

It must be noted that (besides pacifism) there is at least one other ethical theory of war, which is usually called “realist.” This theory holds that a war must be declared and executed only in a nation’s best interest. The goal of JWT is to minimize the brutality or war; a side effect of the realist position is to shorten the duration and frequency of wars. Unfortunately, realist war theories are presented only as a straw man[10], and the theory currently lacks a holistic exposition.


In the case of the Gulf War, the legal and the moral justifications were at odds: the war was certainly sanctioned by the United Nations and (while stopping short of a full declaration of war) it was approved by Congress; according to Just War Theory (either biblical or secular), it was an unjust war.

There is an additional justification that must be considered: popular support. This must be considered under Clausewitz’s people-military-government trinity, and it explains the incessant and fawning media coverage the Gulf War received, making it into what was sometimes called the “video game war.”

In reviewing the buildup to the war, one must wonder why George H. W. Bush went through the media and the UN as opposed to petitioning Congress[11]. The answer lies in his signing statement for the Authorization for Use of Military Force Against Iraq Resolution – he explicitly doubted the constitutionality of the War Powers Resolution. Instead of addressing that directly or addressing the problems the WPR was meant to correct, he ignored it. This is something all subsequent presidents would do.


[1] Westermeyer, Liberating Kuwait.

[2] Stewart, War in the Persian Gulf.

[3] Snow, D. & Drew, D. From Lexington to Baghdad and Beyond.

[4] The chronology of events in this section follows Englehardt, “Desert Shield and Desert Storm”

[5] EO 12722 and 12723.

[6] Bush, Bush, Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq.

[7] Walzer, Just and Unjust Wars.

[8] A third component (jus post bellum) that addresses justice following the conclusion of a war, was added relatively late in the Just War Tradition.

[9] This is disputed in O’Brien, “Desert Storm: A Just War Analysis.”

[10] Frowe, The Ethics of War and Peace.

[11] Burgin, “Rethinking the Role of the War Powers Resolution.”


Authorization for Use of Military Force Against Iraq Resolution of 1991, Public Law No: 102-1, Retrieved 16 May 2024 from

Burgin, E. “Rethinking the Role of the War Powers Resolution: Congress and the Persian Gulf War.” Notre Dame Journal of Legislation 21 (no. 23) (1995). Retrieved 15 May 2024 from

Bush, G. H. W. Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq. Public Papers of the Presidents of the United States: George H. W. Bush (1991, Book I), 14 January 1991. Retrieved 16 May 2024 from

Englehardt, J. P. “Desert Shield and Desert Storm: A Chronology and Troop List for the 1990-1991 Persian Gulf Crisis.” Strategic Studies Institute, U.S. Army War College, 25 March 1991. Retrieved 13 May 2024 from

Frowe, H. The Ethics of War and Peace. Routledge, 2022.

O’Brien, W. “Desert Storm: A Just War Analysis.” St. John’s Law Review 66 (no. 3), Fall 1992. Retrieved 16 May 2024 from

Snow, D. & Drew, D. From Lexington to Baghdad and Beyond: War and Politics in the American Experience. Routledge, 2009.

Stewart, R. War in the Persian Gulf: Operations Desert Shield and Desert Storm August 1990 – March 1991. Center of Military History, May 2010. Last retrieved 12 May 2024 from

Walzer, M. Just and Unjust Wars. Basic Books 2015.

Westermeyer, P. Liberating Kuwait: U.S. Marines in the Gulf War, 1990–1991. History Division USMC, 2014. Retrieved 13 May 2024 from

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