Monday, March 19, 2007
The UN and Iraq
As we approach the fourth Anniversary of Little W's Big Adventure, here is the chapter I wrote on the UN and the Iraq War for
the collection The Iraq War: Causes And Consequences edited by Rick Fawn and Ray Hinnebusch.
Well worth buying, as Fred Halliday of the LSE said:
"This is a treasure-trove of a book. It provides a comprehensive analysis of the policies of the major international and regional states leading up to the war, as well as the immediate consequences, and at the same time relates this analysis to broader issues in international law, foreign policy, and international relations theory. It sets a standard to which all subsequent discussion, in public policy debates and in academic analysis, will have to refer."-
The UN and the Iraq War
Depending on the point of the view of the observer, the United Nations is a total failure either because it failed to support the US invasion of Iraq – or because it failed to prevent it. Certainly, ideologically motivated commentators in the United States cited the failure of the U.N. to endorse the attack on Iraq as evidence of the organization’s uselessness, and in the aftermath of the invasion neo-con Richard Perle exulted that “the U.N. was dead – Thank God!” However, a more nuanced view of the organization, would be that its failure to support the invasion maintained at least the principles of international law, and that the US return to the organization to assist in the aftermath was recognition, albeit grudging, of what Kofi Annan has called the “unique legitimacy” that only the organization can provide.
The Pre-war Struggle in the Security Council
During 2002 it became increasingly clear that the US was bent on war against Iraq, the only question being whether it would act unilaterally or take a multilateral route through the United Nations. The advice of Bush senior, Secretary of State Colin Powell and British Prime Minister Tony Blair were the compelling factors behind the President’s speech to the U.N. General Assembly in 2002. Set in the context of decades of perennial American conservative abuse of the UN institution, the President’s speech was a relatively skillful attempt to woo the United Nations and its member states to join in his attempt to deal with Saddam Hussein. Invoking the ineffectuality of the League of Nations and its consequent fate, he pointed out that the UN was supposed to be different. Praising the organization for its part in liberating Kuwait, he catalogued Iraqi defiance of the U.N., which was at the time undeniable: he referred to Iraqi breaches of resolutions on weapons inspectors, refusal to hand over prisoners, and Saddam’s continuing repression of his own people.
Giving notice of the administration’s impending demands on the U.N. Bush declared, “Our partnership of nations can meet the test before us by making clear what we now expect of the Iraqi regime.” He demanded that Iraq abide by all outstanding resolutions. However, without being irremediably offensive, the speech gave warning that Washington would only stay on the UN highway as long it went swiftly and smoothly in the direction the President wanted. “If Iraq's regime defies us again, the world must move deliberately, decisively, to hold Iraq to account. We will work with the U.N. Security Council for the necessary resolutions, but the purposes of the United States should not be doubted. The Security Council resolutions will be enforced, the just demands of peace and security will be met, or action will be unavoidable, and a regime that has lost its legitimacy will also lose its power.”
Iraqi intransigence over admitting inspectors had also left the regime with few friends in the UN, while making the strictly legal case against it incontrovertible.
However, when the American draft resolution on Iraq finally arrived at the Security Council, it included provisions that had no chance of being accepted by other Council members, but which were there to please the hawks in the Pentagon and around Vice President Dick Cheney’s office. The draft, which was originally only shared with the five permanent members of the Security Council, recalled the original resolutions authorizing the use of force by members, and found Iraq “in material breach” of the ceasefire resolutions. It demanded entry for UN weapons inspectors and mandated armed U.N. security forces to be deployed to protect them; it also would allow the five permanent members of the Security Council the right to recommend sites to be inspected, individuals to be questioned, and request permission to have their representatives join the inspections. Of course, only two of the five were likely to exercise such rights, or provide forces.
The inspectors would have the right to declare no-fly/no-drive zones, exclusion zones, and/or ground and air transit corridors. Iraq would have to provide the Security Council, before inspections, but within 30 days from the date of the resolution, “a complete list of its programs to develop chemical, biological and nuclear weapons, ballistic missiles, and unmanned aerial vehicles as well as all other chemical, biological and nuclear weapons production or material."
Iraq would have to provide a list of personnel involved in the programmes, whom the Inspectors would have the right to interview in or outside Iraq. Any false statements or omissions in the list of programmes or personnel submitted by Iraq and or its failure “at any time to comply and cooperate fully in accordance with the provisions laid out in this resolution, shall constitute a further material breach of Iraq's obligations, and that such breach authorizes member states to use all necessary means to restore international peace and security in the area.”
Seeing the writing on the wall, the Iraqis agreed to talk to Hans Blix of UNMOVIC and Mohamed El-Baradei of the IAEA and following their discussions seemingly announced that the inspections could resume, but the letters they sent giving their version of what had been agreed was so hedged around with qualifications that it bolstered the American case for war.
Even when it was cleared up, Blix and ElBaradei then refused to send in inspectors until the American draft resolution was dealt with, since they did not want to send staff into a war zone. The draft was frozen, not least because the only version ten elected members of the Council had seen was in the newspapers, which did not dispose them favorably to the process. In any case, neither they, nor the inspectors liked what they had read of it.
A principal issue in negotiation over the draft was whether member states, i.e. the US and Britain, could act on their own authority against Iraq if they deemed it in non-compliance. US secretary of state Powell pledged an additional meeting of the Council before the US acted on the trigger clauses in the draft resolution, but that was not enough for most members, since it would still give Washington a free hand to determine when to mete out the threatened “severe consequences” and what form they would take.
The steady stream of belligerent leaks from the Pentagon civilians did not help since they brought the hidden agenda--war at any cost--out in the open. Ambassador Sergei Lavrov for Russia articulated the suspicions during the debate. “If we're talking, not about the deployment of inspectors, but about an attempt to use the Security Council to create a legal basis for the use of force, or even for a regime change of a U.N. member state, and this goal has been constantly alluded to by several officials publicly, then we see no way how the Security Council could give its consent to that."
Even, Powell, the most urbane member of the administration, did not reassure others when he said that "any resolution that emerges from this will be a resolution that preserves the authority and the right of the president of the United States to act in self-defense ... in concert with the international community or with like-minded nations rather than through the U.N. should it not wish to act."
When the resolution was finally brought back to the permanent five on Monday 21st October, there were still not enough concessions to win over the doubters. It still included the key language that members feared would give the White House the excuses it wanted: seven days for the Iraqis to comply, a declaration that Baghdad was already in “material breach” of UN resolutions and a warning of consequences.
While the hawks dictated the initial American positions, the White House in the end opted to go with the more diplomatically feasible route of UNMOVIC and IAEA inspections backed by a strong resolution. Bush and Cheney’s meetings with Blix and El-Baradei were in part a reassuring signal to the waverers on the Security Council that after the President’s initial diplomatically disastrous fit of pique when Iraq had first accepted inspections, the White House was now backing them.
Based on previous experience of Iraqi intransigence, the other members of the Security Council almost all conceded that when the inspectors went into Iraq they should be backed by the threat of force and the implication was that if Baghdad resisted, then the Council would back military action. In private the Russians, Chinese and French all admitted that this was Iraq’s last chance, not so much because they wanted it that way, but because they saw no percentage in resisting Washington to cover for Iraqi irrationality.
In the end most members were also prepared to accommodate US whims, even fairly lethal ones, to preserve the appearance of legality, since they tacitly bought into the administration argument of the irrelevance of the UN if it failed to enforce its resolutions. If the alternative was the world’s most important nation ripping up the UN Charter, it was best to go along with it and try to keep what Blair called a hand on the steering wheel. As it was to turn out, it was a runaway train, with no steering wheel, and little in the way of the brakes.
With the final unanimous acceptance of UN SCR 1441 on 8 November, just after the US elections, the US had certainly triumphed in its major point. Despite the dubiety of every other nation except Israel, Iraq was now elevated to the top of the global security agenda. From the positive side, the US had now made its plans for an invasion of Iraq legally and diplomatically contingent on the regime’s non-cooperation with the inspectors, or at least on their discovery of undeclared weapons of mass destruction. The much amended resolution seemed to offer Iraq a genuine opportunity to avoid war by cooperation with UNMOVIC and the IAEA.
It also avoided giving the US the automatic right to attack that the hawks had originally insisted on, and Blix had successfully secured the removal of the provisions allowing the Permanent Five members to foist staff onto the inspection teams. However, he had been less successful with his argument that the 30 days for “full and frank” disclosure by the Iraqis was not enough.
The US had made assumptions in depth that their casus belli was on its way. They assumed that Iraq would not cooperate, then that it either would not deliver the disclosure in time, or if it did that it would provably lie in it. Fanned to fever heat by Washington leaks, the next few months were to see a succession of alleged make or break dates. Firstly would Iraq accept the resolution, and secondly would Baghdad deliver the “Full and Frank Disclosure” demanded?
In the end the Iraq regime belatedly offered unprecedented cooperation to the UN inspectors who began their rounds in Baghdad. Frustrated, the Washington hawks tried to talk up Iraqi potshots at US planes patrolling the no-fly zone into a material breach of the resolution meriting the “serious consequences,” that they so seriously want to mete out. However, the rest of the world, from Kofi Annan to every other member of the Security Council, pointed out that this had been specifically excluded when the terms of the resolution were negotiated, since no one else accepted that the allied over-flights were sanctioned by UN resolutions.
Similarly, nagging press spin from Washington about the weakness, or suspected collusion of inspectors seemed designed to preemptively devalue any report that did not match the expectations of the war party. As the 12,000 pages of definitely full and possibly frank hard copy dropped with a depleted-uranium-like thump on their desks, the disappointed hawks realized that this casus belli was not going to fly – or at least not very soon. By the volume, and even the Arabic medium of much of the declaration, the Iraqis ensured that the inspectors could not produce a reliable assessment of the fullness or frankness until the end of January 2003.
Since the disclosure could not be proven to be other than full and frank, and had landed on time, the hawks in the US administration now had to fall back on finding actual weaponry that the Iraqi documents had not declared. In the New Year of 2003, on the pressure on Washington to return to the U.N. for a second resolution before military action built up, both inside and outside the Council, as key allies like the Turks and Saudis, from whose territories the invasion was planned, demanded a UN mandate before cooperating. Most of the world wanted solid evidence of Iraqi defiance of Resolution 1441, and was not prepared to accept that Washington could unilaterally determine when and how to apply previous UN resolutions.
Even London preferred a second resolution but chose not to regard its absence as an absolute prohibition on military reaction if the Council “unreasonably” withheld its support – for example if there were a veto in the face of clear evidence of Iraqi “flagrant breaches.”
UNMOVIC chief Hans Blix had started the inspections with the assumption that Saddam’s previous declarations of disarmament was untrue, and was frustrated that despite unprecedented cooperation from the Iraqis, there was no sign of the suspected weaponry. It was a task which UNMOVIC complained was being carried out with minimal assistance from the much vaunted resources of US intelligence, which Blix reportedly compared with a librarian who would not lend books.
By then, however, the unprecedented Iraqi cooperation with the inspectors was beginning to raise doubts in Blix’s mind. As inspection after inspection following American leads showed no results, maybe Saddam Hussein had told the truth? There were no such doubts in Washington. On February 5th, Colin Powell made his famous presentation on Iraqi weapons. It was professional, well illustrated, slick, yet sadly unconvincing and as we now know, totally insubstantial.
On February 14th, the battle lines were really drawn. In their reports to the Council, Blix and El-Baradei implicitly contradicted many of the specifics of what Powell said and the tone of their reports and the comments of most other delegates dashed any hopes Bush and Blair may have had to use the weapons issue as an excuse to let slip the dogs of war within the next two weeks.
When French Foreign Minister Dominique de Villepin spoke, the diplomats, press and staff clustered on the rows behind the actual delegates burst into applause, the first time this had happened since Nelson Mandela had spoken there. They were applauding the clear Cartesian logic of Villepin’s speech, “the option of inspections has not been taken to the end and that it can provide an effective response to the imperative of disarming Iraq; -The second is that the use of force would be so fraught with risks for people, for the region and for international stability that it should only be envisioned as a last resort.”
Before they voted for 1441, other members, particularly France, had successfully extracted American agreement that there should be another meeting of the Council to consider the weapons inspectors' reports on whether or not Iraq had culpably failed to cooperate and why there had to be a second resolution to authorize force. Tony Blair won his case with George W Bush that the two allies should go for a second resolution to secure Security Council support for the war, but he did not win an absolute guarantee.
Bush insisted that the invasion would not be delayed past March, with or without a resolution. Washington pled the climate, but no one has yet provided a truly convincing or rational explanation for the obduracy about the launch date. The Anglo-American draft “second” resolution, which Tony Blair called a "last push for peace," noted that "Iraq has submitted a declaration pursuant to its resolution 1441 (2002) containing false statements and omissions and has failed to comply with, and cooperate fully in the implementation of, that resolution," and concludes that the Security Council "acting under Chapter VII of the charter of the United Nations, decides that Iraq has failed to take the final opportunity afforded to it in resolution 1441." The difficulty with this resolution was that the actual inspectors were still reporting increasing cooperation from Iraq – and had found no evidence of serious evasion, so the core of the resolution was simply untrue as far as most of the Council was concerned.
The draft’s allusive and elusive wording also derived from Washington’s insistence that it already had war powers from the ceasefire resolution 687 and that anyway, in matters of “national interest” the US had the right to do whatever it likes regardless of the UN. The US did not, indeed, seek an explicit authorization of the use of force in the draft because to do so would have conceded that it did not have that right to act unilaterally.
It was clear that the resolution was dead in the water. Most of the Council members despite visible oscillation, were increasingly inclining towards a nay vote or abstention, meaning that the resolution would not even get the basic nine votes needed to pass under Council rules regardless of any vetoes. Determined to go to war against a majority of the UNSC, the US/UK tried to fudge the matter by ensuring that the votes were never counted and to blame France for its veto as if that were all that stood against the resolution’s adoption.
Cannily, Sir Jeremy Greenstock, the British Ambassador left the resolution on the table. It could then be argued that the Council was still “seized of the matter,” and so since it was technically not deadlocked, arguably, it could not be taken to the General Assembly under the “Uniting For Peace” procedure which applied when a resolution had been vetoed. The invasion went ahead, and the UN did –nothing.
In the end, it could not impose sanctions on or invade the US and Britain, partly because they could and would veto any resolution, but more importantly in concession to the realities of world power. It is significant that despite the opinion repeated by so many nations and by Kofi Annan himself that the invasion was a breach of the UN Charter, not one resolution was moved to say so, either in the Council or the General Assembly.
The US exerted huge diplomatic pressure behind the scenes, warning member states that it would be considered an extremely unfriendly act if any of them supported convening a Special General Assembly which could consider any matter on which the Council was deadlocked and which could have asked the International Court of Justice for an advisory ruling: the President of the General Assembly, Jan Kavan, the former Czech dissident and Foreign Minister, who would have acted on any such request to convene a meeting, waited in vain. To be fair, the member states scrupulously refrained from retrospectively legitimizing the deed – as had implicitly happened, for example, with Kosovo. Scrutiny of the Security Council resolutions will show that at no point did they legitimize the invasion itself, even as they sought to deal with its consequences. No UN body ever considered, let alone passed a resolution that legally condoned the invasion, but neither did they legally condemn it.
The Role of the Secretary-general
Even as President Bush outlined his plans for Iraq on September 12 2002, Kofi Annan responded to the war drums that could already be hear thudding in the administration. He put his cards on the table in his speech, just before the President’s. “Any State, if attacked, retains the inherent right of self-defence under Article 51 of the Charter. But beyond that, when States decide to use force to deal with broader threats to international peace and security, there is no substitute for the unique legitimacy provided by the United Nations.”
He was to repeat that formulation often, strengthening it as the contingency against which he had warned came to pass. A year later, the debate which had bubbled under the surface for a year was summarized by again by Annan who repeated that formulation to the 2003 General Assembly, but in his most explicit consideration – and rejection - of the US and British positions added that “now, some say this understanding is no longer tenable, since an ‘armed attack’ with weapons of mass destruction could be launched at any time, without warning, or by a clandestine group.
Rather than wait for that to happen, they argued that states had the right and obligation to use force pre-emptively, unilaterally and even on the territory of other States, even while weapons systems that might be used to attack them are still being developed and are not obliged to wait until there is agreement in the Security Council.” However he countered, “This logic represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years…. if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification.”
Somewhat provocatively, he had also suggested that the UN “needs to consider how it will deal with the possibility that individual States may use force “pre-emptively” against perceived threats.” The formulation usually used by Annan was that the war was “outside the UN Charter” but in September 2003 one particularly relentless BBC reporter stayed on the offensive long enough to wrest from him an admission that this meant that it was “illegal.”
At the end of October, 2004, as the US launched the offensive which flattened Fallujah, Kofi Annan sent a private letter to the US, UK and Iraqi administration suggesting caution, thereby missing an opportunity to go on record publicly as the conscience of the international community. The letter was leaked from Washington, and added to the ire of diehard conservative opponents of the UN from using inflated or invented allegations of corruption in the Oil For Food programme to attack the organization, and Annan personally. Kofi Annan may have originally been the US’s candidate for Secretary-General but Washington found, to its dismay, that holders of the office tend to take their role as keeper of international law and world peace quite seriously.
The UN’s Vital Role in the Aftermath
In the aftermath of the invasion both the Secretariat and like-minded countries were keen to bring about a United Nations role in the post-war administration and relief of Iraq. Resolution 1472, unanimously passed in on 28th March, decided that “to the fullest extent of the means available to it, the occupying Power has the duty of ensuring the food and medical supplies of the population” and that under the Fourth Geneva Convention, “those causing the war should meet the humanitarian needs of the civilian population.” In diplomatic language this was a fairly clear message that the war had not been part of any UN operation.
The resolution allowed the UN officials of the continuing Oil For Food programme to act as a surrogate for the disbanded Iraqi government and was essentially about helping the Iraqi people – a cause which even opponents of the war could and did support.
The U.S. was forced to come back to the UN yet again because it could not sell Iraqi oil without the clear title only a UN resolution could give and because even many alleged Coalition countries wanted a UN resolution before they would join in the occupation. Although the UN and the international community had considerable leverage, the US secured a key concession: the right to sell Iraqi oil and use the revenues. The surplus from the Oil For Food programme was to be handed over, along with any Iraqi funds across the globe, to “The Iraqi Development Fund,” to help fund the occupiers’ responsibilities and though the Fund was to be monitored by an independent board, with representatives from the UN, US non-cooperation made that a dead letter. The board has never been able to find out exactly what happened to this money.
Resolution 1483 also welcomed the “willingness” of other states to provide troops, thus giving a UN fig leaf for the many hitherto nominal Coalition members who would want to ingratiate themselves further with the White House by sending troops, without themselves having the obloquy and legal obligations of occupying powers. Given the reality of American power and its fait accompli, the Council substantially gave Washington what it wanted. In effect, the UN provided a legal framework for functioning of an occupation which resulted from an invasion that most of its members considered illegal.
As part of these developments, the UN got a foothold in Iraq. Kofi Annan appointed Sergio Vieira de Mello as UN representative in Iraq. He was able to speak to factions in Iraq that would not talk to the Americans, and used his influence to ensure that the American-appointed “Interim Governing Council,” was representative of more factions in Iraq than the exiles that the Americans brought with them.
However, in retrospect, most UN officials, including Kofi Annan, felt that the price of close involvement with the US was too high. There is no way of telling if the terrorists who blew up the UN headquarters in Baghdad on 19th August 2003 were really interested in the nuances of UN Resolutions, but the explosion and the death of de Mello certainly reinforced the fairly general feeling in the Secretariat staff that the organization had allowed itself to be too closely identified with the occupation.
Annan withdrew the UN international staff, and effectively kept them outside the country as the security situation grew progressively worse.
But by now, the White House was itself perturbed that events were not following the script written by the war’s promoters. It began to see a genuinely vital role of the UN: getting the US out of the hole it had dug for itself. In view of the failure of the previous resolutions to entice more troop contributions, the US wanted a resolution that would be more successful in doing so, and in coaxing more contributions and cash for reconstruction from reluctant governments. It wanted the return of UN civilian staff to Iraq and to legitimize the occupation in the face of the resistance. The key issue for which Russia, France and Germany had been holding out was a timetable for a constitution, elections and independence. Resolution 1511 of October 16th 2003 provided for that. It amounted to a timetable for a timetable: the Iraqi Governing Council was to present a timetable for constitution and elections by 15 December, and laid out the steps for a handover of authority. The former occupying army became a MultiNational Force there at the request of the government it had installed.
In order to help resolve this logical conundrum as soon as possible, the resolution also “requested” the Secretary-General to send civilian personnel back to Iraq “as circumstances permit” in order to help with rebuilding and the electoral process. Annan promised to do his utmost “bearing in mind the constraints on building up the required capacity, and my obligation to care for the safety and security of United Nations staff.” Most of the UN civilian staff were still outside the country even a year later at the beginning of 2005. The UN position became that it would not return to Iraq until security had been restored,
No more than the other resolutions did this one secure additional troop contributions. Indeed as attacks on those present increased, more and more countries withdrew their token forces.
In 2004, as Bush faced re-election amidst continuing resistance in Iraq, the US, wanting to give the appearance of a transfer of sovereignty to Iraq and playing with the idea of Iraqi elections, became aware of the usefulness of a UN role, especially as the Iraqis were keen for “the unique legitimacy” that the organization could confer on a post-occupation regime. They wanted the UN to send a technical mission to Iraq to advise on the feasibility of elections. By the time the debate began in May 2004 over what would be Resolution 1546, the balance of power had been shifted against Washington by the doubts as to whether Bush would be re-elected, the torture pictures and stories from American prisons in Iraq, and the failure to find the weapons of mass destruction.
The resolution held that U.S. troops were to lose their mandate as soon as the constitutional process was finished, and that their presence could be “reviewed” even earlier - as soon as the Iraqi government wanted and in any case within twelve months. Those sunset clauses were insurance against Bush & Co changing their minds if re-elected. One of the main fudges in the resolution was over the extent to which the Iraqi administration had effective direction, if not direct command and control of the so-called MultiNational Force (the Occupation forces).Powell’s compromise pledge – in an exchange of letters- endorsed by the resolution but not in the text itself, was that “The commander of the MNF will work in partnership with the sovereign Government of Iraq in helping to provide security while recognizing and respecting its sovereignty.” This bows to the Pentagon by not giving the Iraqis an explicit veto and to the Security Council and the Iraqis by re-emphasizing the latter’s sovereignty. Hastily contrived, verbose, fudged and filled with diplomatic ambiguity as it is, Security Council resolution 1546 was an epitaph to the wilder dreams entertained by the more extreme unilateralists in the US administration, since for all its failings, it was the UN that was to provide legitimacy and certify the sovereignty of the new Iraqi administration.
The appointment of Lakhdar Brahimi as the special representative of the Secretary General was indispensable for reaching any type of agreement on a new interim government or on elections among the Iraqi factions. Without his role, it would not have been possible to form the Interim Government on June 30 2004. Brahimi brokered the timetable and modalities of the elections, but Annan resisted US demands for a substantial UN presence on the dangerous ground in monitoring the elections. Still, the American insistence on their presence was an oblique testimony that only the United Nations could declare a handover to be legitimate and genuine.
The failure of the US/UK to be bound by the UN had damaging consequences for world order; for example, it tended to discredit the notion of “humanitarian intervention,” reinforcing Third World suspicions that it was only a ploy to cover Western hegemony. Quite apart from the issues of national sovereignty, and the rights or wrongs of enforced regime change, it is difficult to avoid the conclusion, too, that Iraq would be in better shape, and the world a safer place if the United States had not been prevented by its ideologues from involving the United Nations in a more realistic and meaningful way. On the other hand, the invaders had to concede eventually that they needed the UN’s “unique legitimacy” to cope with diplomatic, legal, and indeed economic outcomes of their unilateral actions.