Making War to Keep Peace (41 page)

America, among all the nations in the world, has such breadth of experience woven into its very cultural fabric. As Harry Truman, one of my favorite presidents, observed in his memoirs:

If our country and culture are informed by people of all kinds, as Truman suggested, then it is no wonder that we assumed that we were safe in projecting our ideals and concerns to all races and nationalities. As a melting pot of nationalities and races, we assumed that our national character could be a reliable guide to the expectations of others around the world. We made what I think were democratic assumptions about goals of other people and places, even those that did not necessarily share our ideals and concerns. We assumed that the goals and values of peoples in other regions were similar to ours, and we expected their approach to achieving those goals to be familiar to us.

What September 11 taught us—or should have—is that our assumptions, though reasonable, were not universally true. It had come time to admit our error. There are people committed to, and indeed driven by, goals and values that run violently counter to our own.

Perhaps we had simply grown accustomed to dealing with modern Europeans who live comfortably in industrial democracies. Perhaps, as we worked to develop a collective world organization, we assumed that such ideals as human rights and the rule of law, which had evolved in Western civilization, were universally appealing. For whatever reason, even as we won the cold war without firing a gun or a missile, we lulled ourselves into a false sense of security, and so began to believe that world stability and security could be self-sustaining, within or among nations.

Yet that belief is not consistent with the recurring lesson of history—
which is that our world is periodically changed by violent aggressors, who bring about chaos and tragedy in their efforts to advance their own objectives.

THE AMERICAN INVASION OF IRAQ

On a personal note, I have dedicated much of my professional life to reconciling what I consider the twin goals of American foreign policy, and that is why President George W. Bush's decision to go to war has troubled me deeply.

These twin goals of our foreign policy are, first, ensuring our security and, second, promoting democracy and human rights. An appropriate balance between the two must exist, and that balance must be determined within the unique circumstances of any situation. Yet, for democracy to take hold in a given region, it must be preceded by institutions that are receptive and willing to support democracy—because democracy requires security as a prerequisite. That is why, throughout history, if the single force of political stability in a region is removed without critical institutions in place to fill the resulting vacuum of power, the security of societies and their budding institutions will be precarious at best.

Unfortunately, what we face in Iraq today is a vacuum of power, a lack of stable institutions needed to govern, and the problem that the promise of democracy for which our nation stands may be lost in the essential scramble for safety and stability in the streets. This is one of the reasons I am uneasy about the war we have made here—for we have helped to create the chaos that has overtaken the country, and we may have slowed rather than promoted the pace of democratic reform.

My role in the Iraq war began at its outset, in March 2003, when I was recalled to active duty by the Bush administration to serve as the head of the U.S. delegation to the United Nations Human Rights Commission
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in Geneva. At the time, historic forces were already in play. U.S. and coalition forces were destined for Baghdad. The Bush administration was justifying the legitimacy of its use of military force in Iraq, citing the right of preemptive self-defense. Meanwhile, credible rumors were circulating in diplomatic circles that a resolution to condemn the Iraq invasion was in the works—an international response that was quite different from what
we had received when we counterattacked our enemies in Afghanistan. Just two days after the Iraq invasion, on March 22, the Arab League voted in favor of a cease-fire resolution while meeting in Cairo. The resolution carried no consequences and had no real momentum, yet it marked a watershed in the growing international opposition to George W. Bush's decision to invade Iraq—and the United States could not afford for the movement to gain momentum.

At the request of the Bush administration, I had gone to work with an able team, including Allan Gerson as legal counsel. We began by swiftly delivering letters to the Arab League members and the African Union, designed to counter their budding efforts to condemn the U.S. entry into war. Spearheaded by Syria and Cuba, the opposition was joined by Zimbabwe, South Africa, Malaysia, Sudan, Libya, Burkina Faso, and even Russia. Then, on March 26, that group convened a special session in Geneva to introduce a resolution entitled “Human Rights and Humanitarian Consequences of the Military Action Against Iraq.” A careful read of the resolution's text revealed that humanitarian concerns were secondary to its real purpose. This was a declaration to condemn the coalition action in Iraq as “clearly in violation of the principles of international law and the United Nations Charter” and to call for “an immediate end to the unilateral military action against Iraq.”
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Had such a resolution passed, it would effectively have been a triumph for Saddam and a potential diplomatic disaster for the United States. Unlike in the UN Security Council, the United States does not enjoy absolute veto power at the UN Human Rights Commission. Suddenly, Geneva had surpassed the UN General Assembly and the UN Security Council as the international diplomatic theater for the efforts to challenge Bush's invasion of Iraq. Reasoning behind the debate in Geneva was predictably chaotic, as the debate that the first President Bush had brought before the Security Council was now reexpressed, by his son's administration, in humanitarian and human-rights terms. Some member states argued that justifying force as preemptive action could open the door to unlawful reprisals from Israel or other nations under other circumstances. Other states were reluctant, with good reason, to support the use of military force as an intervention to promote democracy.

Ultimately, the member states were struggling against allowing the
Bush Doctrine to set a precedent that condoned the use of military force preemptively as a sufficient (and independent) cause for entering into war. Preemptive action, as Bush's then national security advisor, Condoleezza Rice, had stated, “must be treated with great caution. It does not give a green light—to the United States or any other nation—to act first without exhausting other means, including diplomacy.”
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Rice's statement was and is correct, but it did not reassure a very worried international community, nor was preemptive self-defense a legal argument to use to block a resolution calling for a cease-fire.

I had grave reservations when George W. Bush made the decision to invade Iraq, and I was privately critical of the Bush administration's argument for the use of military force for preemptive self-defense. But I was not critical of the Bush administration's lawful purpose and could confidently affirm our legal rights when I was tasked to block the resolution whose purpose and substance belonged before the UN Security Council. That is why, when I agreed to represent the United States at the Geneva Human Rights summit, I did so—on the condition that I could abandon the Bush Doctrine of preemptive self-defense. In my opinion, the analysis that had led the administration to the Bush Doctrine was deficient. Despite this, however, a valid argument could be made under international law that President Bush was within legal bounds when he used military force to enter Iraq in 2003. What was at stake, in Geneva, to my mind, were the two concepts of the rule of law and of sovereign rights, and both deserved forceful advocacy in the chaotic efforts of the opposition to confuse the basic issues at work. I could go to work in Geneva representing President Bush's right to use force in Iraq, based on these personal and professional moral convictions—even though I did not agree with the president's choices.

What I argued in Geneva with my team of advocates was that the 2003 act of force on Iraq was not
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to war. It was, rather, the continuation of the 1991 Gulf War, and thus wholly permissible under the rule of law. UN resolution 687, which contains the terms of the cease-fire with Iraq, and which was negotiated during the interruption of the first Gulf War, had clearly been violated. Indeed, Iraq had never fulfilled the terms of the 1991 cease-fire agreement. Resolution 687 was as valid in 2003 as it was in April 1991 and as it is today. The legal authority to use force to
address Iraq's material breaches was and remains clear, and is a matter of record. So the case I presented to the international community in Geneva in March 2003 at the bequest of the Bush administration was an argument based on the rule of law, not an argument on behalf of the Bush administration's assertion of its right to preemptive action in self-defense. This distinction was not lost on the world community.

On March 27, 2003, a week after the invasion of Iraq, a vote for a “humanitarian” resolution on Iraq was called in Geneva, proposing to discuss purported human rights violations connected with the war—and thus, by implication, to question the legitimacy of the war. Its outcome was uncertain, and tensions were high. Standing firmly with the United States were the European Union, Germany, and the chairman of WEOG (the Western European and Others Group). In Africa, the Cameroons and Uganda broke ranks with the African Union to vote against the resolution; Senegal, Togo, and the Democratic Republic of Congo abstained. Swaziland and Sierra Leone decided to absent themselves from the day's business, as did Ukraine. Thailand, despite pressure from the Asian bloc, voted with the United States and her allies. The final tally was twenty-five against the resolution, eighteen in favor, and seven abstentions.
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The U.S.'s legal right to use force in Iraq, a nation in breach of the 1991 cease-fire agreement it had signed, was affirmed, and in that way reason—and justice—did prevail in the hallways of Geneva.

THE LEGALITY OF WAR QUESTION

As of this writing, nearly three thousand U.S. service men and women have given the ultimate sacrifice in America's latest war. While voices from both sides of the aisle, and from around the globe, continue to debate contentiously most aspects of Iraq's current and future affairs, we have a responsibility to ensure that history is recorded accurately and honestly. We must unflinchingly acknowledge our mistakes as well as celebrate our successes—and must learn from both. Only then can we set a wise and prudent course in future foreign policy decisions.

When weapons of mass destruction, which lay prominently within the Bush administration's decision for preemptive military action in self defense, were not located by Americans or other weapon inspectors—as
the U.S. government had seemed certain they would be—criticism of the United States and its credibility naturally escalated. These credible criticisms fed less credible, in fact quite incredible, attacks on America's character, policies, and actions. One result is the reemergence of a question that should have been put to rest long ago in Geneva, where the opposition's argument was routed by an appeal to the rule of law: Was the U.S. invasion of Iraq legal?

It is very important to note that it was former secretary-general Kofi Annan who resurrected this question in the public sphere. During a September 2004 interview with the BBC, Annan bluntly called the 2003 invasion of Iraq “illegal” and alleged that it was not in conformity with the UN Charter.
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Not surprisingly, he made no reference to the defeat of the Geneva debate, and the Human Rights Commission's resolution in favor of the rule of law and of sovereign rights. Annan's charge against the United States and its allies was a glaring mistake; the invasion was not illegal, at all, even if it was not supported by member states—or by every American. For Annan to express such an inaccuracy on the world stage would not have been all that noteworthy, except that his effort to reignite controversy involved this unprecedented act: a secretary-general of the United Nations had overridden, in word if not in deed, the rule of law. To my knowledge, in the fury of debate over the war, no one effectively covered this historic travesty.

Recently, I have been asked by several foreign journalists whether I think the United States will regain its reputation and its credibility in the wake of the secretary-general's charges and the failure to locate the weapons of mass destruction that were at the heart of the Bush administration's case for war in 2003. My answer is yes. I am confident that America will survive these attacks. But such assaults are never welcome, and overcoming them is never simple.

To begin, however, we must bring some focus back onto the UN and the role of the secretary-general in the ongoing controversy about the American role in Iraq today—and in perpetuating the damage to the reputation and credibility of the United States. Not only was it shocking and atypical for a sitting secretary-general to lodge such an unwarranted charge against a permanent member of the Security Council, it was not consistent with UN culture. As the United States must weather the storm
that surrounded its choice to invade Iraq without UN support in 2003, so must the UN culture renew its commitment to the rule of law—and to the will to enforce the legal order of nations.

For example, instead of retracting his accusation against the United States and coalition forces, Annan continues to reiterate it—unchallenged. Among other things, his condemnation was notably selective, for Annan was fully aware that the Soviet Union's march into Afghanistan and France's efforts to assist Iraq in acquiring and constructing a workable nuclear weapon in violation of the Nuclear Proliferation Treaty, both constituted
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violations of international law. Yet former secretary-generals refrained from accusing either of these permanent member states of illegal behavior. Nor did Annan charge or condemn the Clinton administration or NATO nations with illegal behavior when NATO bombed Milošević's Serbs in Kosovo without Security Council authorization. It is true that Annan complained during Kosovo, but his complaints never rose to the serious charge of breaching the rule of law by engaging in illegal behavior.