April 28, 2003 | Commentary on Middle East
While the United States should always listen respectfully to its allies, it is imperative in the weeks ahead for the administration to rebuff U.N. plans for a central role in a post-war Iraqi government. Moreover, the Bush administration should apply the following guidelines to involvement by the United Nations and the international community:
-- The United States and Britain, not the United Nations, must oversee the future of a post-Saddam Iraq. There is no need for the United States to spend diplomatic capital on securing a U.N. resolution mandating a post-war allied administration. While such a resolution might be politically helpful, the United Nations and European countries need it just as much, if not more, than the coalition does. If France, Russia and Germany are prepared to offer a satisfactory draft resolution, the United States and Britain should accept it.
-- Only those nations that have joined the "coalition of the willing" should participate in the post-war administration, reconstruction and security of Iraq.
-- The role of the United Nations in a post-war Iraq should be solely humanitarian.
-- All individuals who have committed war crimes, genocide, crimes against humanity, and other grave violations of international or Iraqi law should be vigorously and promptly prosecuted. Truth finding and national reconciliation activities, patterned after the post-apartheid South African Truth and Reconciliation Commission, should be launched promptly.
-- Both the prosecution and truth finding should be carried out primarily by the Iraqis themselves with appropriate input from coalition countries. There should be no involvement by any international tribunals, whether ad hoc -- as was the case in the Balkans -- or in the form of the permanent International Criminal Court.
-- The United States must press the U.N. Security Council to end the oil-for-food program. All of the revenues from the past sales of Iraqi oil, now controlled by the United Nations, are the sovereign property of Iraq and should immediately be turned over to the Iraqi interim government. The United States should also take the position that all of the outstanding Security Council Iraq-related sanctions resolutions have been vitiated by virtue of the regime change in Iraq. No new U.N. Security Council resolution repealing the previous sanctions is legally necessary.
-- The interim government, run by coalition countries, and its eventual Iraqi successor government, should be viewed as the legitimate government of Iraq, disposing of all attributes of sovereignty.
-- Oil and other financial contracts signed between former Iraqi President Saddam Hussein's regime and European governments and companies that have violated either international law -- by flouting the Saddam-era sanctions -- or the applicable Iraqi national law should be carefully scrutinized by the post-war Iraqi government. There are good reasons to believe that the Iraqis can legally repudiate, or at least renegotiate, any inequitable or one-sided contracts signed during Saddam's tenure.
-- Once the Baathist regime's archives have been opened in Baghdad, there must be a full and exhaustive investigation into links between the Iraqi dictatorship and foreign companies and politicians. Appropriate U.S. sanctions should be applied against those businesses that have contributed to Iraq's development of weapons of mass destruction or have violated the U.N. oil-for-food program.
In addition to adhering to these principles, the Bush administration also needs to challenge numerous legal and policy arguments being advanced by U.N. partisans. These claims include:
(1) That the coalition members cannot administer Iraq without the United Nations' legal imprimatur;
(2) That the coalition cannot draw on Iraqi national resources to pay for any reconstruction-related needs;
(3) That all existing Security Council sanctions resolutions -- originally passed to address specific misdeeds by Saddam's regime -- remain fully in force and can be overturned only by a new Security Council resolution;
(4) That only the United Nations can bestow legitimacy on any new Iraqi interim administration;
(5) That the U.N.-led process is essential to the creation of an Iraqi democratic polity.
All of these legal and policy propositions are wrong. They are driven largely by the same ill-thought-out impulse of trying to discipline American military and diplomatic power that was so evident in the pre-Operation Iraqi Freedom debates at the United Nations. They are also inconsistent with the U.N. Charter and violate international law.
Coalition countries can legally govern Iraq on an interim basis. An entity created by coalition forces -- which can and should delegate authority to Iraqi-run local, regional and national institutions as quickly as possible -- is the legitimate government of the sovereign state of Iraq. That entity is entitled to use Iraqi national resources, including proceeds from oil sales, to pay for the country's reconstruction and rebuilding projects. Over time, more and more power and authority would be assumed by the Iraqi-run democratic institutions. Eventually, coalition-run governing structures would be dissolved.
While the United Nations' endorsement of this effort would be politically advantageous, it is not legally required. Indeed, under the 1907 Hague Regulations, the 1949 Geneva Convention IV, and customary international law norms, the coalition countries bear the ultimate responsibility for the safety and well being of the Iraqi people until the full transition to a new Iraqi government takes place. The coalition caused the regime change in Iraq. So, until the new Iraqi government is in place, the coalition countries bear the ultimate responsibility for the safety and well being of the Iraqi people. They cannot legally delegate their duties, rights and obligations to any third parties or international institutions, including the United Nations.
Legal authority issues aside, a U.N.-controlled post-war administration would merely serve as a Trojan horse for European nations opposed to regime change, enabling them to stake their economic and strategic claims in Iraq. This cannot be allowed. Efforts by Paris and Moscow to retain the U.N. sanctions regime against Iraq, particularly the oil-for-food program, also ought to be vigorously opposed by the United States.
As a matter of law, various Security Council resolutions imposed on Iraq under Saddam's regime were predicated upon the specific misdeeds committed by that regime. Since the conditions that gave rise to these resolutions have now been vitiated, it is entirely permissible and appropriate for the United States to hold that the resolutions are no longer in force and that rescinding them does not require a new Security Council resolution.
The United States should also immediately address the legal status of both the post-Saddam interim governing entity, run by the coalition countries, and the eventual Iraqi national government. The Bush administration should vigorously argue that, under the existing international law norms, both the interim entity and its successor Iraqi government are fully legitimate and possess all attributes of Iraqi sovereignty, including the ability to borrow money, sign contracts with foreign entities, and manage Iraq's natural resources.
Neither the U.N. Charter nor customary international law grants the United Nations any cognizable legal right to recognize governments or bestow a seal of good housekeeping on them.
Moreover, it certainly would be awkward for an organization that lets Col. Moammar Gadhafi's Libya run the U.N. Commission on Human Rights and was content to have Saddam's Iraq chair the U.N. Conference on Disarmament to act as if it can or should pass moral judgments.
In a March 26 statement to Congress, U.S. Secretary of State Colin Powell made it clear that Washington would not give the United Nations a commanding role in administering a post-war Iraq. Powell said, "We didn't take on this huge burden with our coalition partners not to be able to have a significant dominating control over how it unfolds in the future."
Echoing Powell's comments, national security adviser Condoleezza Rice stated that the coalition, not the United Nations, would be the "leading" force in administering Iraq after the downfall of Saddam.
The Bush administration envisages a temporary U.S.-led administration, which will govern Iraq until an interim Iraqi government can be put in place. The administration is charged with overseeing civil governance, reconstruction and humanitarian assistance. It will work with a coalition-led security force, which may involve up to 60,000 coalition troops.
Aside from the immediate reconstruction-related tasks, the administration has articulated a set of far-ranging, ambitious long-term goals, including fostering a democratic Iraq in which Kurds, Shiites and Sunnis would live in peace, developing a civil society and rule of law, and empowering Iraqi women to become full-fledged participants in the country's political and economic life.
The United Nations should also be denied a role in the post-war security force. The United Nations' track record in peacekeeping operations has been a dismal failure, from the Balkans to West Africa. Coalition forces, operating under the existing command authorities and not the United Nations, must be entrusted with the security of post-Saddam Iraq.
There is a strong case to be made for Britain taking command of the security element of a post-war force under the overall command of Gen. Tommy Franks. Britain has deployed 45,000 combat troops to the Gulf, tens of thousands of whom were at the forefront of military action against the Iraqi regime. The British government has already discussed the possibility of 15,000 British troops' remaining in Iraq for several years after the downfall of the Baathist regime.
The United Nations is slowly dying as a force on the world stage and will go the way of the League of Nations unless it is radically reformed and restructured. It failed spectacularly to deal with the growing threat posed by Saddam, and its influence may well diminish further in the coming years.
Indeed, what happens to the United Nations in the future very much depends upon how it behaves here and now. In this regard, there is no doubt that France and Russia are pursuing narrow, selfish and anti-American policy agendas with regard to Iraq's post-war governance and democratization. Their policy aspirations are quite different from any conceivable U.N. vision of how a post-Saddam Iraq should be governed and reformed.
Unless the United Nations opposes the French and Russian plans at least with the same vigor it has displayed in trying to handicap the administration's Iraq policy, the United Nations would lose all credibility.
President George W. Bush should make it clear that no further discussions on the Iraq issue are needed at the United Nations. Indeed, the role of the United Nations in a post-war Iraq should be limited to purely humanitarian involvement. The United States and Britain should take the lead in administering a post-war Iraqi transition government, with the United Nations playing only a subordinate role.
-Nile Gardiner is visiting fellow in Anglo-American Security Policy at The Heritage Foundation.
-David B. Rivkin Jr. is a partner in the Washington office of Baker & Hostetler, LLP. He served in the U.S. Department of Justice, the White House Counsel's Office, and the Office of the Vice President in the Reagan and first Bush administrations.
Originally published in the United Press International.