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May 21, 2003

Q:Would it be a Mistake to let the United Nations Play a Lead Role in Reconstructing Iraq?

By and

Q:Would it be a Mistake to let the United Nations Play the Lead Role in Reconstructing Iraq?

Yes: Don't allow European nations that opposed regime change to stake their economic and strategic claims in Iraq.


Numerous countries - including most members of the European Union, Russia, China and virtually all of the G-7 states - are clamoring for the United Nations to play a leading role in Iraq. Even some coalition partners such as Britain have been urging the United States to accord the United Nations considerable influence, mostly out of a desire to help heal the breach in the Atlantic alliance and rehabilitate the United Nation's tattered record.

While the United States always should listen respectfully to its allies, it is imperative in the weeks ahead for the Bush administration to rebuff U.N. plans for a central role in a postwar Iraqi government. Moreover, the Bush administration should apply the following guidelines to involvement of any kind by the United Nations and the international community:

  • The United States and Great 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 postwar 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 postwar administration, reconstruction and security of Iraq.
  • The role of the United Nations in a postwar 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 postapartheid 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 revenues from 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 also should 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.
  • Oil and other financial contracts signed between Saddam Hussein's regime and European governments and companies that have violated either international law (by flouting the Saddam Hussein-era sanctions) or the applicable Iraqi national law should be scrutinized carefully by the postwar 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.

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 that: (1) the coalition members cannot administer Iraq without the United Nations' legal imprimatur; (2) the coalition cannot draw on Iraqi national resources to pay for any reconstruction-related needs; (3) 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) only the United Nations can bestow legitimacy on any new Iraqi interim administration; and, ultimately, (5) 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 U.S. military and diplomatic power that was so evident in debates at the United Nations before Operation Iraqi Freedom. They also are inconsistent with the United Nations' charter and violate international law.

Coalition countries legally can govern Iraq on an interim basis. An entity created by coalition forces that 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 because the coalition caused the regime change in Iraq. 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 postwar administration merely would 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 United Nations' 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 now have 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 also immediately should 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 vigorously should argue that, under 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 Muammar Qaddafi'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, Secretary of State Colin Powell made it clear that Washington would not give the United Nations a commanding role in administering a postwar 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."

The Bush administration envisages a temporary U.S.-led administration that 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 as many as 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 slowly is dying as a force on the world stage and will go the way of the League of Nations unless it radically is reformed and restructured. It failed spectacularly to deal with the growing threat posed by Saddam, and its influence well may 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-U.S. policy agendas with regard to Iraq's postwar governance and democratization. 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 postwar Iraq should be limited to purely humanitarian involvement. The United States and Britain should take the lead in administering a postwar Iraqi transition government with the United Nations playing only a subordinate role.

Gardiner is visiting fellow in Anglo-American security policy in the Kathryn and Shelby Cullom Davis Institute for International Studies at the Heritage Foundation. Rivkin is a partner in the Washington office of Baker & Hostetler and has served in the Department of Justice and the White House Counsel's Office.

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