National Review Online
December 17, 2002
by John F. Cullinan
We created the United Nations Security Council so that, unlike the League of Nations, our deliberations would be more than talk, our resolutions would be more than wishes … Are Security Council resolutions to be honored and enforced, or cast aside without consequences? Will the United Nations serve the purpose of its founding, or will it be irrelevant?
— President George W. Bush at the U.N. General Assembly on September 12, 2002
How does international law regard possible U.S. military action against Iraq? At issue are the proper role of the U.N. Security Council, the force of Resolution 1441 (passed on November 8, 2002), the relevance of previous resolutions, the scope of the "inherent" right of self-defense and, more generally, the proper place of international law in U.S. foreign policy.
EDITOR’S NOTE: This is the second of a five-part analysis of the legal and moral aspects of the confrontation with Iraq. (The first part can be read here.)
In his September 12 address to the U.N. General Assembly, President Bush bluntly posed this threshold question: How does the Security Council propose to respond to Iraq's massive noncompliance with 16 relevant — and mandatory — resolutions since 1991? The Council's impotence, the president made clear, is not an isolated failure but rather the most-recent and telling example of a half-century pattern of fecklessness. By repeatedly willing ends but not means, he implied, the Council risks forfeiting all its remaining authority and relevance.
While the president emphasized U.S. willingness to work with the Council, he also made plain his determination to take action, unilaterally if necessary, if the Council again fails to meet its responsibilities under the U.N. Charter. Two pointed references to the U.N.'s failed predecessor, the hapless League of Nations, highlighted the stakes involved for the Council. Just as Resolution 1441 subsequently presented Iraq with a "final opportunity" to meet its long-unmet obligations, the current crisis is likely the Council's last chance as well.
1. U.N. SECURITY COUNCIL: THEORY VS. PRACTICE
President Bush's speech puts the Security Council's role in proper context. Nevertheless, the debate over international law has so far focused narrowly — and erroneously — on the perceived need for fresh Security Council authorization as the sine qua non for any further use of force against Iraq. In opposition to the U.S. and the United Kingdom, the other permanent (veto-wielding) Security Council members — China, France, and Russia — maintain that the legitimacy of any military action depends wholly on a renewed mandate, explicitly authorizing force, passed by at least two-thirds of the 15-member Security Council with the concurrence (by abstention or approval) of all five permanent members.
Theory and practice, however, are very much at odds. In fashioning the U.N.'s collective-security machinery, the framers of the U.N. Charter sought to limit the legally permissible use of force to just two possible — and equally legitimate — alternatives. First, the Security Council was assigned sole authority to "determine the existence of any threat to the peace, breach of peace or act of aggression" (Article 39); and where milder remedies fail, it "may take such action by air, sea, or land forces as may be necessary to restore or maintain international peace and security" (Article 42). For this purpose all member states are explicitly committed to supply armed forces for service under U.N. command (Article 43). Second, the Charter acknowledges the equal legitimacy of the "inherent right of individual and collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security" (Article 51). None of these provisions has ever been implemented in practice.
By one reckoning two-thirds of the current U.N. membership (126 out of 189 member states) fought 291 interstate conflicts resulting in some 22 million deaths between 1945 and 1999. Yet in only two instances — Korea (1950) and Kuwait (1990-1991) — has the Council authorized the use of armed force to repel aggression and "maintain or restore international peace and security." In each case highly unusual circumstances explain the Council's radical departure from its otherwise invariable practice of abstaining from armed intervention in interstate conflicts: the fortuitous (and as yet unsatisfactorily explained) absence of the Soviet delegate from a critical 1950 session; and the fleeting window of opportunity for collective action that opened with the collapse of the Soviet empire (1989) and closed with the demise of the Soviet Union itself (1992).
What is more, the Council in both cases compensated for the lack of its own (Article 43) troops by circumventing the specific enforcement mechanisms of the Charter (especially Articles 42-7) and effectively delegating implementation of its recommended enforcement measures to a U.S.-led "coalition of the willing."
In the Korean case, the Security Council merely "recommended that members of the United Nations furnish such assistance to repel the armed attack and restore international peace and security in the area" (SC Resolution 83 (1950); emphasis added); in the Kuwaiti case, the Council "authorized member states cooperating with the Government of Kuwait…to use all necessary means to uphold and implement Resolution 660 (1990) [requiring Iraqi withdrawal from Kuwait] and all subsequent resolutions and to restore international peace and security in the area" (SC Resolution 678 (1990); emphasis added). These provisions are benedictions, not binding mandates, and reflect the Council's lack of authority either to commit or command the armed forces of member states carrying out its recommendations (except by specific reference to Articles 42 or 51). It is precisely this division of responsibility between authorization, on the one hand, and implementation, on the other, that lies at the heart of ongoing disputes (discussed below) regarding U.S. authority to enforce previous Security Council resolutions by armed force if necessary.
Two highly irregular exceptions to an otherwise invariable practice hardly constitute a binding legal norm. Quite the contrary: These two cases reflect at most an aspiration and an unrealized ideal. Yet proponents of the (idealized) popular view — that the Security Council alone legitimates all non-defensive uses of force — fail to take into account actual practice as reflected by customary international law (roughly speaking, consistent state practice — and in this case, Security Council practice — that acquires the force of law).
The Security Council's failure to exercise its "primary responsibility for maintaining international peace and security" (Article 24) largely results from its political incapacitation owing to deadlock among the Council's permanent members. It also stems from member states' proven reluctance to assign troops to U.N. command for Article 42 peace enforcement actions, with the result that Council has always lacked its own Article 43 standby police force to implement its own decisions. The practical consequences of these two facts of life include (a) the broadening in practice of the scope of permissible self-defense under Article 51 and (b) the adoption of messy compromises outside the framework of the Charter that are anathema to procedural perfectionists.
2. HIGH-MINDEDNESS AND HORSE-TRADING IN TURTLE BAY
Since 1945 the Security Council has proven demonstrably unable to exercise its "primary responsibility for maintaining international peace and security" under Article 24. During the Cold War the Council's abiding paralysis resulted from the division of the international landscape into two opposing blocs, with the result that even local disputes took on global significance for the Council's permanent members.
The end of the Cold War broke the Security Council's half-century bipolar stalemate, but also freed the permanent members to pursue narrowly defined national interests reduced in some cases (as with Iraq) to present and future commercial advantages. For China, France, and Russia in particular, this new dispensation allowed them to exercise disproportionate diplomatic leverage — which all three seized with both hands — in relation to their actual political, economic and military power (as measured without taking into account their Security Council veto). To varying degrees all three states took advantage of their status to oppose "unipolarity" or "hegemony," code words for U.S. predominance as the surviving superpower, postures especially popular with nationalistic elites.
Iraq offered a splendid opportunity to frustrate U.S. policy goals — free no charge, as it were, thanks to the prior U.S. administration's fecklessness — while at the same time advancing purely parochial interests, especially in trade with Iraq, where Russia came to provide more than half the value of all imports to Iraq under the oil-for-food program (with a substantial share going to France as well) and where both Russia and France were owed substantial sums in prewar debts (unpayable so long as the embargo continued) and looked forward to dominating foreign participation in Iraq's post-embargo energy sector. China by contrast has smaller economic stakes in Iraq (despite supplying advanced fiber-optic communications for Iraq's air defense system in direct violation of the embargo). While implacably opposed in principle to any international intervention in supposedly "internal" matters (i.e., Tibet and Taiwan), China has been mostly content to let France and Russia carry its water in this case.
In short, the disputes that led to Security Council paralysis in regard to Iraq had little to do with the actual merits. Hence the Council's blind eye to egregious Iraqi violations, like the fortuitous 1995 discovery that Iraq had concealed from inspectors an entire category of banned weapons (BW). This whole sorry episode is far less a matter of principled disagreement than a routine exercise in legislative hostage-taking familiar to observers of all parliamentary systems, however disedifying this reality may be for those who regard the Security Council as the disinterested conscience of the "international community."
The present impasse, reflected in Resolution 1441's uneasy compromises, is above all the product of French and Russian intransigence based on calculations of realpolitik. All the high-minded rhetoric about "working within the U.N. framework" merely masks the determination to exert maximum leverage and exact the utmost concessions. While the Russian position mainly reflects its nostalgia for lost superpower status, France's still more cynical policy is above all the product of greed, envy and raison d'etat.
3. U.N. SECURITY COUNCIL RESOLUTION 1441
U.N. Security Council Resolution 1441, passed on November 8 by a 15-0 vote, marks a sharp diplomatic setback for the U.S. At the outset the U.S. had insisted on a single resolution authorizing U.N. member states — not the Security Council itself — to determine whether or not Iraq had committed a further "material breach" of its disarmament obligations, the legal predicate or trigger for the use of military force ("all necessary means" in diplomatic parlance).
Resolution 1441 falls well short in every respect. First, it's unclear exactly who has authority to determine a material breach. Second, a false or misleading inventory of banned weapons (due by December 8) by itself does not amount to a material breach; some further Iraqi noncompliance or noncooperation is also required to reach that threshold. Third, any Iraqi noncompliance or interference with inspections merely triggers another Security Council meeting, not military action. Fourth, the resolution directs Iraq to refrain from threatening or undertaking "hostile acts" against member states without defining such acts as material breaches or referring to Iraq's repeated attacks against U.S. and British aircraft. Finally, the often-cited threat of "serious consequences" — less specific and consequential than "all necessary means" — occurs in a merely descriptive phrase which "[r]ecalls … that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violation of its obligations."
This is hardly a triumph of State Department diplomacy. Even the most hard-won concessions amount to less than meets the eye. The acknowledgement that "Iraq has been and remains in material breach" merely reflects nearly a dozen prior Council findings to the same effect. Similarly, the essential right to interview Iraqi officials outside Iraq may well prove a dead letter. "We are not an abduction agency," says Hans Blix.
Most observers (including this one) underestimated French and Russian bloody-mindedness and venality and overestimated State's ability (or willingness) to drive a properly hard bargain that its two most senior officials happen to oppose. The upshot is that the administration is now in much the same position as before passage of Resolution 1441 — except for its genuine demonstration of good faith in seeking broad international support for confronting Iraq.
Experience suggests that Iraq may yet commit some legally actionable blunder, though it would be imprudent to count on proving it to the satisfaction of the French, Russians, and Kofi Annan. Iraq's November 13 "acceptance" of resolution 1441 — a rambling, venomous screed — fell short of its terms by committing the regime merely to "deal with" the resolution (one translation renders the operative verb as "confront"). And its most senior officials continue to maintain the fiction that Iraq possesses no banned weapons or programs. The same officials claim its required December 8 WMD inventory — scheduled for submission after this article was written — will be a "huge declaration" running to "thousands of pages." If that is the case, the administration will no doubt need at least several days to sort through its irrelevancies and identify its omissions.
President Bush commendably remains focused on larger issues, by all indications well aware that the Security Council has manufactured a Gordian knot that cannot be untangled, only severed.
John F. Cullinan is an adjunct fellow with Hudson Institute's Center for Religious Freedom.
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