April 28, 2003
By Dr. Nile Gardiner and David B. Rivkin
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
-- 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
-- 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
-- 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
-- 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
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
(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
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
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
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
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
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
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
-Nile Gardiner is
visiting fellow in Anglo-American Security Policy at The Heritage
-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
Originally published in the
United Press International.
Limiting the U.N. in Iraq: Nile Gardiner and David Rivkin outline the limited role the U.N. should have in planning a post-war Iraqi government.
Dr. Nile Gardiner
Read More >>
David B. Rivkin
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