According to media reports, the United
Nations Secretary General's office has already drawn up detailed
plans for the U.N. to step in and govern Iraq three months after
the war is over. The confidential blueprint calls for establishing
a U.N. Assistance Mission in Baghdad to oversee all aspects of a
post-Saddam Iraqi government.
Numerous countries, including most members
of the European Union, Russia, China, and virtually all of the
G-77 states, have also been clamoring for the U.N. to play a
leading role in Iraq. Even some Coalition partners, such as the
United Kingdom (U.K.), have been urging the United States to accord
the U.N. some modicum of influence, less because of the unique U.N.
ability to assist in Iraqi rebuilding and reconstruction and mostly
out of a desire to help heal the breach in the Atlantic alliance
and rehabilitate the U.N.'s tattered record.
While the U.S. should always listen
respectfully to requests from its allies, it is imperative that in
the weeks ahead the Bush Administration rebuff U.N. plans for a
central role in a post-war Iraqi government. Such a scheme would
jeopardize the United States' key war aims: eliminating weapons of
mass destruction and terrorist cells in Iraq, protecting Iraq's
energy infrastructure and resuming normal oil production, securing
law and order in large cities and the countryside, defending Iraq's
borders, and protecting the country's territorial integrity. It
would also seriously hamper President George W. Bush's broad vision
of a free Iraqi nation, rising from the ashes of tyranny and
spreading democracy throughout the Middle East.
the extent there is a role for the United Nations to play in a
post-war Iraq, it should be limited and restricted to purely
humanitarian tasks, carried out by agencies such as UNICEF and the
World Food Program. Meanwhile, the proposition that the U.S. should
ignore these factors and assign to the U.N. a role in Iraqi
post-war governance for which it is not equipped, either legally or
practically, just to help restore that organization's self-esteem
is not particularly compelling. Foreign policy should not be driven
by psychotherapy-related imperatives.
more fundamentally, and for reasons which go well beyond the
imperatives of Iraqi reconstruction, the Administration 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 U.N.'s 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 the Saddam Hussein regime) remain fully in force and
can be overturned only by a new Security Council resolution; (4)
only the U.N. 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.
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 about U.N. authorization of the
use of force. They
are also inconsistent with the U.N. Charter and violate
international law. If embraced, they would have adverse policy
consequences, both for the U.S. and for the U.N. Indeed, there is
no surer way of weakening U.N. legitimacy even further, or killing
it outright, than pushing the U.N. to act in ways that exceed its
legal powers and managerial prowess.
Under well-established principles of
international law, Coalition countries can 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 U.N.'s 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, having effected a regime change in Iraq, 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. While they can and should seek support and help from the
U.N., other multilateral institutions (e.g., NATO), and
non-Coalition countries, the ultimate legal responsibility remains
with them and cannot be delegated to anybody else.
existing legal requirements imposed on the victorious belligerent
powers are designed both to protect the population of defeated
belligerents and to promote a responsible and careful attitude
toward the use of armed force by states. In this regard, imposing
duties and obligations on victorious belligerents is just as
important as other elements in the overall law of armed conflict,
including the rules governing when armed force can be used and how
it can be applied on the battlefield. Ironically, the very same
European countries that, just a few weeks ago, piously espoused the
importance of conforming the then-pending U.S. resort to force
against Saddam Hussein to the applicable international law norms
now seem perfectly willing to displace an equally important and
venerable set of international law strictures governing belligerent
far as legal or moral legitimacy is concerned, neither the U.N.
Charter nor customary international law grants the U.N. any
cognizable legal right to recognize governments or bestow a seal of
good housekeeping on them. Under democratic theory of governance, a
government's legitimacy is derived, ultimately and only, from the
consent of the people it governs. Meanwhile, as a matter of
international law, there are well-established principles that
govern the recognition of one government by its counterparts in
other countries, e.g., effective control over territory.
Significantly, from the very beginning,
the U.N. has taken the position that it cannot set itself up as an
arbiter of its member states' moral or ideological probity and that
it takes its members as it finds them. In this regard, the U.N. has
consistently emphasized that it is not competent to impose
political or economic reforms on its member states and has to
operate in accordance with the principle of non-intervention in the
internal affairs of its members.
certainly would be awkward for an organization that lets Colonel
Qaddafi's Libya run the U.N. Commission on Human Rights and was
content to have Saddam Hussein's Iraq chair the U.N. Conference on
Disarmament to act as if it can or should pass moral judgments. Meanwhile, given the
wide diversity of the political arrangements found among U.N.
members, which range from democratic polities to authoritarian
states to totalitarian and rogue regimes, the U.N. as an
institution is singularly ill-equipped to assist in the post-Saddam
Hussein democratization of Iraq, much less lead it.
Issues of legal authority aside, the
U.N.'s track record on security matters, economic reconstruction,
political reforms, building civil society, law enforcement, and
anti-corruption efforts in such places as Kosovo, Rwanda, and
Bosnia is--to put it mildly--uninspiring. These difficult tasks require, at the
very least, superior managerial abilities--which the U.N. has not
demonstrated in running its own organization, much less in running
an occupied country.
Moreover, an organization that failed to
enforce 17 of its own resolutions calling for Iraqi disarmament
lacks the credibility to administer Iraq or enforce security in
that country. These tasks require a firm hand and appropriate rules
of engagement. The U.N.'s real and perceived weaknesses would
invite diverse Iraqi factions to challenge its writ and would
impede its ability to govern.
BUSH ADMINISTRATION PLANS FOR POST-WAR
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 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 U.N., would be the "leading" force in administering Iraq after
the downfall of Saddam Hussein.
Bush Administration envisages a temporary U.S.-led administration,
which will govern Iraq for a period until an interim Iraqi
government can be put in place. The U.S. effort is headed by retired
U.S. Army General Jay Garner under the rubric of the Pentagon's
Office of Reconstruction and Humanitarian Assistance. Garner has
drawn together over 150 officials from the United States and the
United Kingdom. The administration is charged with overseeing civil
governance, reconstruction, and humanitarian assistance. It will
work in tandem with a Coalition-led security force, which may
involve up to 60,000 Coalition troops.
the same time, the United States Agency for International
Development (USAID) is co-ordinating the most ambitious
international rebuilding project since the Second World War. It has
been allocated $900 million in taxpayers' money to oversee the
initial phase of the reconstruction of post-Saddam Iraq.
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.
There are also U.S.-led efforts underway
designed to convince such countries as Russia, France, and Germany
to forgive most, if not all, of Iraqi national debt. Significantly,
while the U.S. is prepared to commit money to Iraqi reconstruction
and has done so already, rebuilding the country's infrastructure,
improving its educational and health systems, and creating jobs for
the Iraqi people would require unimpeded access to Iraqi oil
revenues--both the proceeds from the new oil sales and the billions
of dollars from prior sales currently sitting in U.N.-controlled
bank accounts. More generally, the Bush Administration believes
that it is essential to vest the new Iraqi government with full
sovereign powers so it can negotiate and sign contracts and borrow
monies on the international markets.
THE U.N. AS A TROJAN HORSE
the coming weeks, the United States will face mounting pressure
from other members of the Security Council, most notably France,
Russia, and Germany, to cede control of post-war administration to
the United Nations. French Foreign Minister Dominique de Villepin
has argued that the U.N. must have supremacy in post-war Baghdad:
"The UN must steer the process and must be at the heart of the
reconstruction and administration of Iraq."
three nations have stipulated that a U.N. mandate for a post-Saddam
government will be given only on their terms. The French, Russians,
and Germans unequivocally condemned Coalition military action
against the Iraqi regime and refused to cooperate with London and
Washington by expelling Iraqi diplomats from their capitals. In the
words of Russian Deputy Foreign Minister Yuri Fedorov, the U.S. and
its allies had acted "in violation of the norms of international
President Jacques Chirac has made it clear that France will veto
any resolution at the Security Council that "would legitimize the
military intervention and give the belligerents, the United States
and the United Kingdom, the right to administer Iraq."
is a typical example of French foreign policy hubris masquerading
as law. Coalition operations against Saddam Hussein's regime were
perfectly legal under international law and do not require any new
Security Council blessing. Likewise, under the well-established
principles of customary international law, the 1907 Hague
Regulations, and the 1949 Geneva Convention IV, the U.S., the U.K.,
and other Coalition partners have an absolute legal right to
administer Iraq, subject of course to various requirements and
obligations. The U.N. Security Council's blessing is not legally
required, nor can it be used to abridge or curtail the post-combat
obligations of the Coalition powers.
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.
Indeed, the appeasement of the brutal Iraqi dictatorship by France,
Germany, and other members of the U.N. Security Council will go
down in history as one of the most shameful episodes of the early
21st century. The spectacle of French and Russian bureaucrats, who
for decades profited from dealing with a brutal dictator in power,
ruling over the Iraqi people would be utterly abhorrent. It is
important for the future of Iraq's citizens that Paris, Moscow, and
Berlin play no significant part in the creation of the new Iraqi
state. Neither they nor the U.N.'s bureaucrats have the requisite
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 the Saddam Hussein regime were predicated upon the
specific misdeeds committed by that regime and the threats that it
posed to international peace and stability--e.g., weapons of mass
destruction programs, aggressive designs against its neighbors
(Kuwait, Iran, and Saudi Arabia), torture, and human rights abuses.
Since the conditions that gave rise to these resolutions have now
been vitiated and the prescriptions and measures specified in the
resolutions have been superseded by the regime change in Baghdad
and can no longer be performed, 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.
debate about the legal status of these resolutions is not an
academic one. Legal arguments aside, if the U.S. were to endorse
the view that the Saddam Hussein-era sanctions remain in force,
France, Russia, Germany, and the U.N. bureaucracy are certain to
extract heavy political and economic concessions for any repealing
resolution. Unfortunately, this is precisely what is taking place
right now as Russia, France, and several other countries are
indicating that they would be prepared to lift Iraq-related
sanctions only in exchange for U.S. agreement on a broader U.N.
role in the governance of Iraq. Conversely, only by asserting--as the
U.S. legitimately can--that the regime change in Iraq has already
vitiated these resolutions can the U.S. neutralize this blackmail
United States should also immediately address the legal status of
both the post-Saddam Hussein 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. The 1907 Hague Regulations and the 1949 Geneva
Convention IV, which govern the conduct of belligerent occupation,
specifically allow occupying powers to draw upon the natural
resources of the occupied country to pay for projects that benefit
that country's people, e.g., schools, roads, hospitals, and
is also a debate that the Administration can and should easily win
if it is willing to resort to an assertive public diplomacy. For
example, the notion that Iraq-related sanctions can be lifted only
in exchange for a bigger U.N. role in post-war Iraq is so
fundamentally at odds with the precepts of the U.N. Charter that exposing it as a
blatantly cynical ploy is not difficult. Likewise, it is easy to
challenge recent statements by Russian Foreign Minister Igor Ivanov
that "[f]or the Security Council to take this decision [the lifting
of sanctions] we need to be certain whether Iraq has weapons of
mass destruction or not." Coming from a country that, together with
France and Germany, has consistently expressed doubt, as recently
as several weeks ago, that Saddam Hussein's regime had any weapons
of mass destruction and has, throughout the 1990s and early 2000,
consistently called for the lifting of all U.N. sanctions, Russia's
new-found solicitude for Iraqi arms control compliance is--to put
Significantly, the dispute is not between
the U.S. and the U.N. At its core, this is really an effort by
several unprincipled and selfish European powers to exploit the
people of Iraq.
French and Russian officials are likely to use their economic and
political leverage to protect their Saddam Hussein-era contracts
and debts. The fact that the very same entities and countries that
heretofore have been most accommodating vis-à-vis Saddam's
brutal regime are trying to be tough and legalistic
vis-à-vis the free post-Saddam Iraq only adds insult to
THE DANGER OF A RIFT BETWEEN WASHINGTON
Unquestionably, the United Kingdom is
viewed by Washington as its most important ally--politically,
strategically, and militarily--and is seen as the keystone of the
"coalition of the willing" formed to unseat Saddam Hussein.
President George W. Bush and Prime Minister Tony Blair have jointly
displayed outstanding world leadership at a time when the U.N. has
demonstrated a lack of moral fortitude and a blatant unwillingness
to enforce its own resolutions. The U.S.-U.K. special relationship
remains the cornerstone of strategic thinking in both Washington
and London, and the United Kingdom is once again standing
shoulder-to-shoulder with the United States at a crucial moment in
Unfortunately, serious disagreements have
emerged between London and Washington over the role of the U.N. in
liberated Iraq. Tony Blair has already signalled support for
seeking some form of a U.N. mandate for the transitional
U.S.-U.K.-led Iraqi administration. The White House so far has
demonstrated no enthusiasm for such a course of action. If Blair
were to return to the U.N. seeking a new resolution, he would be
trying to cross a bridge too far.
is imperative that no public spat emerge between Washington and
London over this issue. There must be no open divide that would aid
the cause of those who opposed Coalition military action. The Bush
Administration must privately put across the view that it would be
a grave error to return to the U.N. for an open-ended discussion
regarding yet another resolution on the Iraq question. If the U.K.
and America were to do so, the two powers would become mired in
endless negotiations at the Security Council, debating nations that
would happily have kept Saddam Hussein in power. The ultimate
losers would be the Iraqi people themselves.
far better approach would be to let the French, Russians, and
Germans know that the U.S. would listen if they offered a
reasonable draft Security Council resolution on Iraq, featuring the
right mix of legal and policy propositions but not seeking to
arrogate to the U.N. those powers which it does not possess. The
Security Council ball should be in their court.
U.S.-U.K. CONTROL OF A POST-WAR SECURITY
United Nations should also be denied a role in the post-war
security force. The U.N.'s track record in peacekeeping operations
has been a dismal failure, from the Balkans to West Africa. Blue
helmets, which have elicited the derision and scorn of Bosnian and
Rwandan warlords, are unlikely to command any respect in Iraq. Even
if the Coalition troops were used, with the U.N. in charge,
unrealistic rules of engagement and rigid command structures are
certain to be imposed. Coalition forces, operating under the
existing command authorities and not the U.N., must be entrusted
with the security of post-Saddam Iraq.
U.K.-U.S. forces could be joined by troops
from other members of the Coalition, including Australia, Poland,
Italy, Spain, and the Czech Republic. Over 45 nations across the
world have supported U.S.-U.K. military action. This is a
numerically larger coalition than the one assembled for Operation
Desert Storm in 1991.
There is a strong case to be made for the
U.K.'s taking command of the security element of a post-war force
under the overall command of General Tommy Franks. The United
Kingdom 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. Downing Street has already discussed the
possibility of 15,000 U.K. troops' remaining in Iraq for several
years after the downfall of the Baathist regime.
United Kingdom has a long and highly successful record of
non-combat operations in a number of theatres across the globe,
including Afghanistan, Kosovo, Bosnia, Sierra Leone, and Northern
Ireland, and would be ideally suited to running the highly complex
post-war Iraq security operation. British leaders also have an
in-depth knowledge of Iraq and the region and enjoy close
diplomatic and historical ties with much of the Arab world. A
U.K.-led military operation would be less likely to inflame
tensions and complicate Bush Administration plans for
democratization in the region. In addition, it would allow the
United States to free much-needed resources for the wider war
KEY POLICY AND LEGAL PRINCIPLES TO APPLY
IN IRAQ'S RECONSTRUCTION
While administering post-war Iraq and
carrying out democratic and economic reforms, the Bush
Administration should apply the following guidelines to involvement
by the U.N. and the international community:
- The United States and the United Kingdom,
not the United Nations, must oversee the future of a post-Saddam
Iraq. They should make clear that the 1907 Hague Regulations, the
1949 Geneva Convention IV, and customary international law provide
a solid legal basis for the Coalition countries' interim governance
of Iraq, pending the full transition of power to a new democratic
Iraqi government. There is no need for a U.N. resolution mandating
a post-war Allied administration. While such a resolution might be
politically helpful, the U.N. and European countries need it just
as much, if not more, than the Coalition does. Accordingly, the
U.S. and the U.K. should avoid another open-ended and acrimonious
set of Security Council debates. If France, Russia, and Germany are
prepared to offer a satisfactory draft resolution, the U.S. and
U.K. 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. Appropriate punishments, up to and including
the death penalty, should be meted out to the individuals found
guilty of these offenses. 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 the Coalition countries. While individuals
who have committed war crimes against Coalition forces, either
during the 1990 Gulf War or during ongoing fighting, can and should
be tried by the military justice systems of the Coalition forces,
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 U.N., are
the sovereign property of Iraq and should immediately be turned
over to the Iraqi interim government. The United States and the
United Kingdom should also vigorously argue that the regime change
in Iraq has vitiated all of the Saddam Hussein-era sanction
resolutions and that, while having the Security Council confirm
this fact through a new resolution would be helpful, no such
resolution is legally required.
- 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 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 carefully scrutinized by the post-war Iraqi
government. This, of course, is a decision that can be undertaken
only by the Iraqis themselves. However, 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. Legal arguments aside, the Iraqi government should
be able to use its bully pulpit to shame, through full public
disclosure, those parties that did business with Saddam Hussein's
regime into an equitable resolution of these issues.
- 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 French,
German, and Russian 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.
U.N. 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 Hussein, and its influence may well diminish
further in the coming years. Indeed, what happens to the U.N. in
the future very much depends upon how it behaves here and now.
is a moment of truth for the U.N. and Secretary General Kofi Annan.
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 Hussein Iraq should be governed and reformed. Yet these
countries badly need the veneer of U.N. support for their
activities; without it, their schemes would be so obviously
self-serving as to command no support from their European
There is also no doubt that Kofi Annan has
taken a very assertive stance vis-à-vis the United States
and the United Kingdom during the debates over Security Council
Resolution 1441 and the subsequent efforts to pass yet another
Security Council resolution authorizing the use of force against
Saddam Hussein. Unless and until he is prepared to take a similarly
assertive stance against Paris and Moscow, which are pursuing
policies that threaten the U.N.'s own best interests by threatening
to diminish further the U.N.'s credibility and deprive it of any
role in Iraq, one would be forced to conclude that anti-Americanism
is the U.N.'s only raison d'être.
this regard, it is one thing for the U.S. to conclude that the U.N.
is driven by a particular vision of how to run the international
system and that, while this vision may differ from the one to which
the U.S. subscribes, it is at least applied consistently and in a
principled matter. If this proves to be the case, there are at
least future opportunities for the United States to cooperate with
the U.N. On the other hand, if the U.N.'s sole policy driver is the
desire, in all circumstances, to make life more difficult for the
United States, then the opportunities for cooperation would be
Against this backdrop, President Bush
should make it clear that no further discussions on the Iraq issue
are needed at the U.N. Indeed, the role of the United Nations in a
post-war Iraq should be limited to purely humanitarian involvement.
The United States and the United Kingdom should take the lead in
administering a post-war Iraqi transition government, with the U.N.
playing only a subordinate role.
Nile Gardiner, Ph.D., is
Visiting Fellow in Anglo-American Security Policy in the Kathryn
and Shelby Cullom Davis Institute for International Studies at The
Heritage Foundation. David B. Rivkin, Jr., Esq., is a partner in
the Washington office of Baker & Hostetler, LLP, and has 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.