SEOUL — While virtually all countries are agreed on the danger posed by Iraqi President Saddam Hussein’s surreptitious efforts to develop weapons of mass destruction (WMD), this is not the only — or even the main danger — facing the international community over how to respond to Iraq’s noncompliance with existing United Nations resolutions on inspections. There is a parallel challenge to the U.N. Charter itself, not to invert its principles and purposes to serve narrow national interests by manufacturing a casus belli where none exists under current international law.
Rather, a convincing case must be made for taking action on the basis of the danger posed by either the possession of WMDs or the attempt to acquire them that is consistent with international law. It may very well be that Hussein is the greatest threat to international peace and security since the end of the Cold War. But that does not justify overturning the international legal order — stretching the language of the Charter to the limit and beyond — in order to put him out of business.
The proposed American antidote of regime change strikes at the heart of — and is totally alien to — the U.N. Charter, in particular Article 2(4), which guarantees the political independence and territorial integrity of sovereign nation-states.
Force was used in self defense against Taliban Afghanistan as attacks against the U.S. were planned and launched from Afghan territory, whereas the proposed military campaign against Iraq is being justified solely on the grounds that Iraq is about to acquire nuclear weapons. It is the difference between a potential threat contained for the moment and a clear and present danger.
It is well to remember that the only occasion that Western powers resorted to pre-emptive warfare — in 1956 when Britain, France and Israel launched an attack against Egypt following Egyptian President Gamal Nasser’s closing of the Suez Canal — found the U.S. on the other side of the argument, refusing to support its closest allies in the U.N. in an action that clearly violated the Charter’s proscription against the use of armed force and forcing them to back down.
The Security Council — the most hallowed U.N. organ, a place for sober reflection on matters of war and peace and premised on collective action — cannot be reduced to a mere pit stop on the way to Baghdad on the basis of a la carte multilateralism. Nor is the U.N. Charter an a la carte document as some U.S. officials have asserted. Those nations that signed on renounced that right in the name of collective security and are not free to pick and choose those resolutions that suit their momentary requirements.
Indeed, once the U.S. decides to seek — as it has — Security Council backing for inspections backed by military force, it is duty bound to respect that decision — forgoing unilateral action — or see an impotent Council sink into irrelevance. It cannot simply walk away if it does not get its way.
Otherwise, what is the point of a collective security regime if one of the five powers charged with its implementation decides instead to impose its own judgment on the others?
By contrast, although the U.S. was given a free hand under previous enforcement action mandates on the Korean Peninsula (the unified command) and Kuwait (a coalition force) in implementing a U.N. mandate, in both cases it was implementing a pre-existing Security Council consensus, not proceeding on the basis of its opposition to Council sentiment. The Achilles heel of Security Council enforcement action is that — having failed to create a mechanism of its own to implement its resolutions as contemplated by the Charter — it looks to its own members to execute them. However, they are also duty bound not to take the law into their own hands by undertaking enforcement action in the Council’s name without an underlying consensus for the use of military force.
The essence of the American argument is that we can never be sure how close Hussein is or will become to launching an attack, and it could be too close for comfort. This will be persuasive to some and unconvincing to others, but above all it is overly subjective — and that’s the core of the problem. Moreover, while not compelling in the sense of being a clear and present danger, the issue of probability and risk cannot be simply dismissed out of hand. There is an element of not knowing — a kind of political Heisenberg uncertainty principle — associated with WMD programs that leaves their exact status and velocity of progress in doubt.
After all, these were the governing concepts under the doctrine of mutually assured destruction during the Cold War, and certainly they must be given weight in the post-Cold War world, when rogue states and terrorist organizations don’t play by any set of rules or norms. How much of a risk is too much? How much of a chance do you really want to take with this guy given his track record? How do you get around that subjectivity in a world where international law has not kept pace with technology?
One way might be to carve out an exception for WMDs whereby any state party to the nuclear Nonproliferation Treaty (NPT) must submit to International Atomic Energy Agency or U.N. inspections if the Security Council decides that there are sufficient grounds to justify them, or face coercive military action. This would have the advantage of depersonalizing the standoff and adding to the body of international law.
While some have argued that sufficient legal authority already exists to force Iraqi compliance with U.N. inspections on the basis of previous resolutions and the Gulf War ceasefire agreement, what is being contemplated, e.g., to launch a pre-emptive war aimed at regime change in Iraq, cannot be construed as the resumption of a war waged for an entirely different purpose and for an entirely different objective.
Moreover, merely violating the terms of a ceasefire is not enough, or the case for going to war with North Korea — a regime that has violated the Korean War Armistice Agreement thousands of times over the last half century — would be airtight. Its track record on the very issue for which Hussein is being held to account, e.g., for diverting an amount of plutonium believed to be sufficient to create several nuclear weapons, makes it difficult to justify a different response.
In short, to make the strongest possible case under international law — not national interest — for an enforcement action, we need an entirely new Security Council resolution to address an entirely new situation. This is more than dealing with the leftovers of the Persian Gulf War; it requires the crafting a resolution that equates an outlaw regime possessing WMDs with a de facto threat to international peace and security authorizing military action. Henceforth, any state that seeks to develop WMDs in violation of the NPT or chemical and biological conventions would be held to a similar standard.
What is now urgently needed is a new consensus — conceivably in the form of an amendment to the Charter going beyond the concept of territorial aggression — that would mandate Security Council action, thereby allowing the U.N. to directly address threats to the peace posed by the technology and uncertainty of modern weaponry.
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