Anniversary and Continuing Authority

It's been one year since I moved to London. Unbelievable. Time passes fast when you're having fun. Today is much like the first week I arrived - sunny, warm, slightly breezing. In short, outstanding. I had some lunch with the Roving Alcoholic and then spent some time in Regents Park. I'm now at school doing some work, but I'm going back outside to read in the sun in a few. First, I wanted to discuss a topic tangentially related to my thesis.

As I may or may not have mentioned, my thesis is an investigation into the effectiveness of the UN Security Council to fulfill it's mandate to, as I term it, regulate the use of force internationally. In this effort, I'm comparing one situation in which the Security Council worked as it should (Kuwait, 1990-1991) and one in which it essentially failed to operate effectively (Iraq 2002-2003). This isn't the sort of thesis that requires genius level analysis. The short of it is, Kuwait worked because Iraq invaded, Iraq failed because only the US and the UK thought Iraq was an "immanent threat" and even that is dubious. I'll suspend the details and get to my point of the day.

One of the US/UK justifications for going to war was that they had "continuing authority" to use force against Iraq in fulfillment of UNSC Resolutions 678 (November 29, 1990), 687 (April 3, 1991), 707 (August 15, 1991), 1205 (November 5, 1998), and finally 1441 (November 8, 2002). Essentially, after Iraq invaded Kuwait, the UN Security Council authorized a coalition of member states led by the United States "to restore international peace and security in the area" (678). Pursuant to the Kuwait war, the terms of the cease fire agreement specified that Iraq had to, among other things, "renounce unconditionally any biological, chemical, or nuclear weapons programs" including allowing authentic and genuine inspections of said facilities by a recognized international agency established by the UN. The series of resolutions that followed (707, 1205, and 1441) all found Iraq in "material breach" of 678 and 687 because Saddam Hussein violated the terms in several important ways, most notably in playing hopscotch with the inspection and verification regime.

The big argument from Europeans is that Resolution 1441, the one that warned Iraq of "grave and serious consequences" was insufficient to endorse an invasion of Iraq by a US led coalition. Thus, the war, from a European perspective, was an illegal war and should not have occurred. President Bush and crew argued vehemently that they did not need a "second resolution" to authorize force as they already had standing in that regard. Therefore, the war would not be illegal.

For quite some time, I have bought into the European position on this issue. It indeed appeared to be an illegal war, especially after no WMDs were found. However, as I realized last night, I was dead wrong (ergo, so is Europe). See, from a legal perspective, you can't evaluate 1441 in a vacuum. It is not a stand alone Resolution like 661 (August 6, 1990). The first resolution dealing with Iraq (661) was a stand alone resolution that reaffirmed the "right to self-defense" vis-a-vis Iraq. In other words, Kuwait had a right to kick Iraqi ass if it could because of Hussein's war of aggression. However, 1441 was the last important resolution in a series of resolutions. And here's the rub. The international legal community has to accept the "continuing authority" granted by 678 because, like domestic law, there was no statute of limitations on the authority convened by the original Resolution. To overturn that authority, the SC would have had to pass a subsequent Resolution stating that the US coalition no longer had legal standing to enforce 678 and 687, something the SC wasn't going to do because the US would have vetoed and because it would have been a free pass to Saddam Hussein. Not only that, the series of Resolutions mentioned above continually used the term "seized of the matter", i.e. the UNSC remained invested in the fulfillment of the original goal: a peaceful Iraq. The extensive "case law" backing up the use of force was all the legal justification that the US needed.

Still not buying it? Here's the cincher. Continuing Authority has to exist because the alternative is worse. "If the Security Council authorizes certain member states to undertake a task, but is then unable to agree on follow-up action, does the original authorization still stand?" Think about it like this. If Washington, DC passes a law that outlaws politicians from having sexual relations with interns but then acknowledges that it can't enforce the ban, is that law now void? Of course not. It's much the same in international law. The law doesn't void simply because the winds of political change blow in a different direction or because one international organization is unable or unwilling to act. It voids when politicians act.

None of this, however, should be taken to mean that the war against Iraq was justified. There are many reasons why the war was bad politics, bad planning, and bad taste. The simple point, however, is that it is not accurate to state that the US led war was per se illegal. The UNSC had routinely found Iraq in "material breach" of its obligations under 687 and the US, as the authorized enforcer of those resolutions, was well within its rights to step up and roll the tanks. From a strictly legal perspective, the war was legit. (One caveat: There was no timetable established for invasion in 2002-2003 like there was in 90-91 and that complicates things a bit for the US, but not terminally.)

That being said, my thesis doesn't really focus on the legal arguments; I just find them quite interesting. Instead, I focus on the political aspect. There are a myriad of things that went wrong for the US in 2002-2003 in the SC and it's an interesting case study. In fact, as much as I try to stay away from the Middle East, Iraq has essentially become the test case for the neo-conservative movement, a test case that is bound to scuttle the strength of their ideology. While the war will never be justified in my eyes (25,000 Iraqi civilians dead and counting), a lot of excellent scholarship has surfaced in reaction to a pre-emptive war that aimed to remake the Middle East in the Bush vision. I imagine, 30 years from now, the Bush Doctrine will be relegated to the dustbin of history as precisely how not to conduct foreign policy.