Making War to Keep Peace (43 page)

Ambassador Danforth's position was far from singular. Secretary of State Powell expressed strong disapproval of Annan's assertion, calling it “not a very useful statement to make at this point.” Powell maintained that “that the U.S. Constitution gives the United States government the
right to act in its own self-defense without UN approval. What we did was totally consistent with international law.”

In addition, there was an overlooked question of precedent. As Richard Holbrooke, President Clinton's UN ambassador, reminded us:

Lord Goldsmith, the United Kingdom's attorney general, added to criticism of Secretary-General Annan's charge, arguing that the authority to use force derived from the combined effects of resolutions 678, 687, and 1441, all of which where adopted under Chapter VII of the UN Charter, which specifically allows the use of force to restore international peace and security. In his view, the combined effect of these resolutions meant that “military action against Iraq was legal without a second resolution.”

William Taft, the senior legal adviser at the Department of State, concurred with Britain, though for somewhat different reasons. Taft emphasized prudential concerns, saying that “we are now acting because the risks of inaction would be greater,” and asserting “the necessity of using force to protect against further harm.” Taft also argued that “the inherent right of self-defense embodied in the UN Charter must include the right to take preemptive action; otherwise the original purpose is frustrated. We cannot wait for a first strike under such circumstances.”

It is worth remembering that the U.S. government never made its argument to invade Iraq in 2003
solely
from the need to eliminate weapons of mass destruction. From the beginning it also asserted the imperative
to secure a “regime change,” and that imperative finds justification in the long history of moral reasoning. It has been nearly a thousand years since John of Salisbury wrote a treatise justifying the murder of tyrants. Legal and moral theory has frequently considered the use of military force simply in order to remove a tyrant who threatens and provokes his own people and the norms of the community. Saddam Hussein was a textbook example of such a tyrant.

The moral challenge implicit in international affairs has been expanded with the evolution of the “right to intervene.” Bernard Kouchner, appointed by François Mitterand to the post of Secretary for Human Rights for France, enunciated a right of “humanitarian intervention” to provide recourse to persons trapped in a state which seriously abused their human rights. The concept of the “right to intervene” is embodied in Security Council Resolution 688, which was adopted in April 1991 after Saddam Hussein had driven thousands of Kurds and other minorities into freezing weather without shelter or means of self-defense weeks after signing the cease-fire agreement. Eventually, this concept formed another strong pillar in the Bush administration's argument to invade Iraq.

Professor Myers McDougal of Yale University, a leading expert on international law, wrote that Article 2(4) of the UN Charter prohibits violence, but stressed that this prohibition must be seen in the context of the whole Charter and as complementary to Article 51. The member states who accepted the UN Charter, he emphasized, did so in the expectation that member states would cooperate in maintaining world peace, even if such action were to involve violence. Other legal scholars have noted Article 51's explicit statement that the UN Charter was not intended to “impair the inherent right of individual or 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.”

As I consider today the questions surrounding the legality of the invasion in Iraq, our Declaration of Independence comes to mind, especially the following paragraph:

This historic document, which held democracy up before an unknowing world as a viable form of government, is also a brilliant showcase for a doctrine of political legitimacy in political philosophy. It reminds us always that the very function of government is to preserve the rights of the governed—and that legitimate government policy, foreign and domestic, requires the consent of the governed. Without the consent of the governed, policy cannot be legitimate.

Within our doctrine of legitimacy, therefore, the United States and our allies were not obliged to seek the consent of the Security Council before force was used in Iraq. Our doctrine of legitimacy is based not on the consent of the United Nations, but on the consent of
the governed
. In theory, and in fact, the rule of law protects a government based on consent. In launching the war against Iraq, the United States had that consent. Thus, whatever other debates may persist about the war, the contention that it was “illegal” is itself illegitimate.

UNINTENDED CONSEQUENCES OF INACTION

When one argues that there are circumstances when war must be made to keep the peace, one should also consider the ramifications of refraining from war. When the decision is made not to use force in the interest of keeping the peace, or appearing neutral, unintended consequences may emerge—among them violence, bloodshed, and even war. History offers too many examples of such cases.

When Kofi Annan was in charge of peacekeeping in the UN-declared “safe area” of Srebrenica in 1995, the UN, UNPROFOR (the United Nations Protection Force), and NATO stood by as some nine to eleven thousand Bosnian men and boys fell victim to mass murder. The men of Srebrenica sought refuge at a UN post, but the local command failed to protect them, and they were bused out by Serb militias to their death.

In Rwanda, where eight hundred thousand people were slaughtered in approximately one hundred days in 1994, neither Annan's United
Nations Peacekeeping Organization nor the permanent members of the Security Council (the United States, the United Kingdom, China, Russia, and France) made a serious effort to take urgent action to prevent or stop the genocide.

In Darfur, since fighting initially broke out between government forces and rebels in March 2003, scores of people have been massacred, and more than a million civilians have fled their homes, pouring into neighboring countries and creating “one of the worst humanitarian crises in the world.”
²¹
The catastrophe in Darfur, a scorched-earth campaign of ethnic cleansing according to Jan Egeland, chief of the UN's Humanitarian Affairs and Emergency Relief Agency, remains a specter before the United Nations and the world community, one that demands resolution in a meaningful and lasting way.

When seventy-five Cuban doctors, teachers, journalists, and librarians were arrested and harshly imprisoned in the summer of 2003, no help was offered by the United Nations. The UN's Commission on Human Rights did not even mention their arbitrary arrest or harsh treatment.

And the negligence continues. During the conflict between Israel, Lebanon, and Hezbollah in the summer of 2006, four unarmed and defenseless UN observers tragically died when caught in the cross fire. The peacekeepers, part of the United Nations Interim Force in Lebanon (UNIFIL), created in 1978, were stationed in Lebanon to confirm Israel's “withdrawal from Lebanon” and to “restore international peace and security” when they died. At the time, Secretary-General Annan charged Israel with “the apparently deliberate targeting” of a “United Nations observer post.”
²²

There has been discouragingly little reflection on or discussion of these tragedies. As I contemplate these events, it appears that secretary-general Annan has spoken with more alarm about the use of force by U.S. and coalition forces in Iraq than about these instances of mass murder elsewhere in the world. Little wonder that the United Nations has shown no great vision or inclination to creating an organized and effective response to end these horrors and injustices and to ensure that they cannot recur.

Any death or suffering at the hands of a barbaric tyrant or terrorist is
a senseless tragedy. That would include the bombing of the UN headquarters in Baghdad in the summer of 2003, which killed seventeen people and injured at least one hundred. Among the dead was Sergio Vieira de Mello, an admired and veteran UN official. That bombing was one more heartbreaking reminder to all of us that the UN is as vulnerable to terrorism and tyranny as its member states.

Kofi Annan's departure from the United Nations in December 2006 marks the end of forty years of service, including a ten-year term as the secretary-general. Behind him he leaves a mixed legacy. There are those who recall his tenure with admiration, bestowing honors and awards on him for his efforts to reform the UN, combat AIDS, negotiate peace, and defend human rights. Others see Annan's legacy in the scandals of his time in office, in the UN's failures of will in Rwanda and Srebrenica, for example, and in the ongoing crises in Darfur and Iraq. They will question the bitter irony of his actions and words, wondering how and why he deemed himself the arbiter of morality and the rule of law in the face of the grave failures under his leadership.

Annan's legacy is damaged in particular by the UN's oil-for-food program, under which—as investigators have determined—“Saddam Hussein raked in $1.7 billion in kickbacks from participating companies and $11 billion in oil-smuggling profits.”
²³
The corruption of the oil-for-food program, and of many other professionals and programs that came in contact with it, badly tarnished the once-honorable global endeavor, whose noble purpose had been to help the Iraqi people and to keep the peace.

In addition to these more tangible achievements and failures during his tenure, I believe history will show that Secretary-General Annan sought to use his tenure to expand the independent authority of the UN, and his own powers, at the expense of sovereign rights and the rule of law.

In 1945 the UN Charter was crafted, in part, “to save succeeding generations from the scourge of war; to practice tolerance and live together in peace with one another and unite our strength to maintain international peace and security.”
²⁴
The secretary-general who replaces Annan, South Korea's Ban Ki-Mun, admitted in October 2006 that he faces “difficult foreign policy challenges.” But he expressed a determination to
“rebuild trust among all stakeholders,” because “the political will of member states cannot be forged in an atmosphere of distrust.” Ban acknowledged the “current divisiveness” at the United Nations as “worrisome,” and vowed to “stay the course with ongoing reform…so that we may build the twenty-first-century Secretariat for a twenty-first-century organization.”
²⁵

There has been much debate over the relevance of the United Nations and its future place in our global community. By its very nature, the UN—in a way unlike any other institution—will doubtless continue to challenge member states, the press, and others to remain reform minded. Despite the UN's inconsistent record of effectiveness, the American commitment to the UN should, and I hope will, remain unwavering. We should look beyond the UN's deficiencies and focus instead on both the sound principles of law and the hope, however qualified, for greater world stability that is expressed in the UN Charter.

However, it is also wise to approach the United Nations with a clear sense of its limitations in terms of keeping peace and building nations. The UN Security Council, after all, is like a committee, the UN Secretariat like a bureaucracy. And they operate like committees and bureaucracies—only more so. Action is by consensus. Consensus is hard to build, and sometimes watered down by compromise. Consensus is particularly hard to build within the construct of the UN. The Security Council provides each of its members—the United States, the United Kingdom, China, France, and Russia—with veto power on substantive matters. A single veto can overrule all other members of the Security Council, including the votes of the ten nonpermanent members, who serve two-year terms. The veto was devised to account for differences of power and influence in the UN, but it also allows members of the Security Council to protect their sovereign interests. This body was never intended to convene to declare war, but instead to protect the rights of its member states to do so, in the interest of self-preservation and security.

As of this writing, the idea of expanding the Security Council is under reform review. The key issue is whether additional permanent members—with veto power—will be added. Assuming that the Security Council is not deprived of its power, the United States should remain actively engaged with the UN, because its Charter provides us, and the
other member states, built-in protections. Yet the question of how to restore confidence in the UN persists, an unexpected outcome of conflict in the Gulf—and in other conflicts around the world where the UN has sought to keep peace, to build nations, and to expand beyond its legitimate bounds. Only the future officers and functionaries of the UN can repair what damage has been done. They can, and must, start by organizing themselves with transparency and functioning with integrity.