The following commentary by Professor Jutta BrunnÈe appeared in the Toronto Star on April 14, 2003.
How to restore global law
U.N. involvement can help ground U.S. exercise of power in the legitimacy it will need to last the distance
Jutta BrunnÈe
The war in Iraq is at once crucible and metaphor for the challenges faced by the international order. As the people of Iraq endure the destruction wrought be overwhelming military might, so have the foundations of our international order suffered punishing blows.
And as we begin to turn our attention to how Iraq might eventually be reconstructed, so must we think about the fate of the United Nations and international law.
Three challenges lie ahead: How can we ensure that Iraq is reconstructed to emerge as a viable state? How can we ensure the vitality of the U.N. and its Security Council? How can we ensure the integrity of international law and its ability to constrain the unilateral use of force?
It so happens that these three challenges are inextricably linked.
As to the lofty goals of rebuilding Iraq and promoting lasting democracy in the region, political realities speak strongly against a U.S.óBritish led effort. Both countries carry heavy regional baggage and a legacy of distrust.
The British, using their mandate in 1921, cobbled disparate ethnic and religious units into an Iraq that may have been doomed from the start. The Americans once supported the very regime they have now overthrown. They are also deeply entangled in the larger Middle Eastern quagmire surrounding Israel and its Arab neighbours.
The onus therefore is on the U.S. to demonstrate that the interests of the Iraqi people and the international community motivate its policies at least as much as its own strategic interests.
The Iraq question must be returned to the U.N. for a genuinely international reconstruction project with broad support, notably in the region. Such a move does not guarantee success, but it will improve the odds significantly beyond what raw power and resources can achieve.
The first challenge links directly to that of the continuing role for the U.N. and its Security Council.
The U.S. and various commentators claim the council rendered itself irrelevant by refusing to support a war against Iraq. Pointing to behind-the-scenes "horse-trading," other commentators deny that the council can ever lend legitimacy to the use of force.
Both assessments are wrong.
The Security Council has functioned. The majority were unconvinced of the existence of a threat to peace and security sufficient to justify large-scale use of force. And, remarkably, many small countries with much at stake resisted U.S. siren calls and pressure alike.
Recent events in the council illustrate that power alone may be able to coerce, but it does not persuade. As U.N. Secretary-General Kofi Annan observed on March 20: "(The peoples of the world) have made it clear that in confronting uncertainty and danger they want to see power harnessed to legitimacy."
In short: the council continues to play a vital role for all involved, including for the United States. Security Council involvement can help ground U.S. exercise of power in the legitimacy that it will need to last the distance.
All sides must work together again, and compromise.
Europe and Arab states must be prepared to engage with the U.S. on rebuilding Iraq and guiding genuine regime change.
The U.S., in turn, cannot expect a council resolution on Iraqi reconstruction that could be read as retroactive approval of military intervention, a "solution" that some commentators recently suggested.
Iraq is simply not comparable to the case of Kosovo, in which this route was chosen.
This leads to the final issue, the role of international law as constraint on the use of force.
In recent weeks, international lawyers in different parts of the globe, in unusual numbers and unanimity, have stressed the illegality of a war against Iraq. Why?
The American justification approach aims to loosen legal constraints at two crucial levels.
First, the doctrine of pre-emptive strike would render obsolete the carefully crafted norms that limit unilateral use of force to cases of genuine self-defence. Second, the argument that "material breaches" of council resolutions entitle individual states to resort to force makes mockery of the very idea of "collective" security.
The U.S. legal arguments put the ball in everyone else's court; silence may count as consent to new rules of the game.
All states must carefully assess whether the international law on the use of force requires the radical overhaul promoted by Washington. If they conclude the existing framework remains valuable and capable of addressing current crises, they must actively resist the moving of legal goalposts.
Governments may be reluctant to address the use of force against Iraq head-on. This does not mean that they are without options.
The existing rules on use of force and self-defence must be reasserted even if, for diplomacy's sake, only in terms of general principles. As to the U.N.'s collective security system, one option is to "isolate" the Iraq case, so as to neutralize its impact as a broader precedent.
The U.S. and Britain have most strongly relied upon the argument that Iraq's "material breach" of ceasefire resolution 687 "revived" the authorization of force under resolution 678.
Most international lawyers deem this argument flawed, as resolution 678 was focused on ending Iraq's occupation of Kuwait in 1990-'91. Indeed, a senior legal adviser to the British foreign secretary resigned over the issue.
But even under the broad reading of the resolution by the U.S. and Britain, any authorization of force will be exhausted with the removal of Saddam Hussein's regime. This point is worth making, along with sustained criticism of the broad interpretation of resolution 678.
Annan's message addresses all three challenges: Iraq, the U.N. and international law. Power without legitimacy will turn out to have short legs, too short for the long walk through the desert that lies ahead.
All roads from Baghdad do not lead to Rome (or Washington) but, ironically, back to the messy, multilateral world of the United Nations.
