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The UN and Trans-Conflict Iraq

April 10, 2003
Council on Foreign Relations

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Memorandum

To: CFR-ASIL Roundtable on "Old Rules & New Threats"

From: William J. Durch, Stimson Center

Subject: The UN and Trans-Conflict Iraq

I want to address two topics in fairly compressed fashion: the role of UN resolutions in facilitating current military operations in Iraq and post-conflict governance, and options for UN involvement in rebuilding Iraq's economy and transforming its political processes and structures of government.

UN Resolutions and Operation Iraqi Freedom

I cannot disagree with the proposition that the United States and its partners had authority under UN Security Council resolutions to use force in the wake of repeated Iraqi material breach of those resolutions, in part because I raised that prospect ten years ago but also pointed to a risk.

"[A] way to gain...sometimes necessary political cover is to have a major nation run an operation with UN blessing, much as Operations Desert Shield and Desert Storm were run in 1990-91. But future delegated mandates should probably be a good deal more specific than Resolution 678, which authorized the use of 'all necessary means' to reverse Iraq's invasion of Kuwait. The United States chose to stop the war once that objective had been achieved, but a different political calculus on the part of a coalition leader could have sent its forces on to Baghdad. If that leader (or an ally) wielded a veto in the Security Council, then the Organization would find itself in the uncomfortable position of sponsoring an operation that it could neither control effectively nor terminate."

-- Evolution of UN Peacekeeping, p. 28.

That is precisely the situation in which the Security Council finds itself today. Mr. Bellinger is certainly correct that, "Unless the Security Council clearly states...that it has terminated UNSCR 678's authorization for the use of force, that authorization continues." But because the United States can veto any such revocation, it can single-handedly maintain this authority regardless of the wishes of the rest of the Council -- which may fervently wish to revoke it. (The political wisdom of bucking such a tide is of course another matter.) It may appear curious that the United States would lean so heavily on an institution that President Bush effectively declared "irrelevant" to American purposes less than a month ago, but this really only highlights the fact that the UN plays multiple roles in the international system: legitimator, political forum, and -- treated at greater length below -- service provider.

Both the legal and political roles come into play with regard to an Iraq shorn of its government, army, and weapons of mass destruction, that is, of its ability to actively threaten "international peace and security in the area." If the interpretation of 678 is stretched to encompass governmental transformation as a prerequisite of international peace and security, even when any Iraqi WMD have been disarmed and destroyed, then 678 could be used, in principle, as license to alter every other highly authoritarian government in the region, of which there are some few. Given that the "off" switch for 678 is firmly under U.S. (and British) control, it would behoove even the opponents of the war to support a new Council resolution to "endorse an appropriate post-conflict administration for Iraq" if only to make plain that the writ of 678 itself stops short of political makeovers. The Council similarly endorsed the results of the Bonn Agreement that laid out the process for the political reconstruction of Afghanistan.

The Potential UN Role in Trans-conflict Iraq

Recourse to the United Nations involves tradeoffs between efficiency and legitimacy (political as well as legal). US-managed actions will be quicker and more efficient than comparable actions managed by an international organization. But there will be some areas where the extra international legitimacy conferred by acting under color of the United Nations -- whether authorizing resolutions, endorsements, or the actions of UN implementing agencies -- will be worth some loss of initial efficiency, because once the major fighting is over, much of what needs to happen within Iraq will require local cooperation and consensus. The kind of open, democratic, market-based society envisioned in many quarters to replace the Hussein regime cannot be created by force -- protected, but not created.

The UN system also provides a framework for financial burden sharing toward which more donors are likely to contribute than if it were a US-managed system, given prevailing popular opposition to the war internationally.

The table below lays out most of the options for UN and other actors' roles in Iraq. The rows reflect the four categories of involvement that Jarat Chopra devised in The Politics of Peace Maintenance: assistance, partnership, control, and governorship. The columns reflect the major areas of reconstruction or, in the case of Iraq, transformation: security, politics and governance, economy, and civil society (which encompasses transitional justice and/or reconciliation). The cell entries are examples or descriptions rather than advocated outcomes.

SecurityPolitics and GovernanceEconomy (Reconstruction, Marketization)Civil Society (Justice & Reconciliation)
Governorship (full executive responsibility for post-conflict transition)Coalition soon.Interim administration; de-Baathification;UN Oil for Food programWar crimes tribunals. Hybrid national-international special courts.
Control (international forces maintain stability and may assume responsibility for some basic government services)Coalition now. Handoff to international peacekeepers or to reconstituted Iraqi police?Coalition soon. Handoff to international advisors? to local government?USAIDUS contractors, essential infrastructor restoration.
Partnership (with some international input into security decisions and a robust peace operation)Coalition military advisors and international police monitor/trainers. International technical advice to govt. ministries.World Bank/ IMF (need SC mandate), UNDP, various NGOsTruth and reconciliation commission. Investigation into regime abuses (UN, bilateral, NGO).
Assistance (humanitarian and reconstruction aid, perhaps with symbolic security presence)UN-facilitated national conference; bilateral and NGO-based education and training programsUN relief agencies (WFP, UNHCR, UNICEF)Training in human rights investigations, human rights monitoring, community-based conflict resolution. (UN, bilateral, NGO)

For the foreseeable future, the coalition will be responsible for national and public security and de facto governance of the country. When the coalition finishes fighting the remnants of Saddam Hussein's security forces, the war for Iraq will not be over, it will just be different: an internal struggle for political power, economic position, shares of international relief and reconstruction funds, and settling of old scores. Coalition military forces and policing resources brought in to supplement them will have primary responsibility for public security; that task in a country the size of Iraq is far beyond the capacity of the United Nations, even if it were to recruit every civilian police officer who has ever served in a UN mission. And they could not be recruited and trained in time to avoid a serious security vacuum, the first elements of which we have already seen develop in Basra and Umm Qasr, where regime police have evidently fled. The longer we wait, the greater the impact on economic reconstruction, as anything of value will be looted down to the plumbing and wiring.

Once basic security is established and Iraqi police are being reconstituted (assuming any of them will risk showing up to be vetted), the UN could play a training, advisory, and restructuring role along the lines of its final years in Bosnia. But Bosnia and Kosovo also suggest the necessity of importing, for the immediate post-conflict period, then building up local capacity in, other components of the criminal justice system. British troops are already moving to arrest looters in Basra – for detention where and how long, arraignment by whom, trial where? Indefinite detention in informal military facilities is not a country-wide answer to law and order. This problem has been faced repeatedly in trans-conflict situations and standing solutions have yet to be devised whereby effective courts, prosecutors, defenders, and corrections facilities are there for international security forces, or internationally-supervised local forces, to work with. The UN has more on-ground experience in rule of law issues than any other international body and an interagency task force on rule of law that recently scoped out both the system’s capacities and its non-UN interlocutors in some detail. It does not, however, as yet have a robust system for calling up expertise.

The coalition will have de facto political control shortly, if not the legal standing to function as a government, which would entail the power to enter into contracts and obligations on behalf of Iraq, to service the national debt, and the like. I would argue that a Security Council resolution should be sought to authorize – not simply endorse – temporary governance until a new Iraqi government can be formed.

Still to be determined is whether coalition rule will give way directly to Iraqi rule (in a single transition or by sector), or will transition to some intermediate form of international governance first. That may depend crucially on how Iraqis adapt to their new political opportunities, and how fast the international community stabilizes the personal security environment and meets basic needs, how fast and effectively it can educate the population and its would-be leaders as to the new political landscape and its potential, and how well it can keep abreast of the inevitable growth of organized crime and its influence. Bear in mind, too, that this coalition is not trying to sweep away some recent, extremist regime that is inconsistent with Iraqi political history, as was the case with the Taliban in Afghanistan. It is, instead, trying to remove a regime that is the ultimate achievement of traditional Iraqi power politics and has held a political monopoly for two generations, ruling by force and decree. Not only is there no equal protection of the law in Iraq, very likely few Iraqis remember when there were any such rules.

The United Nations has governance responsibilities in Kosovo and had them in East Timor. Both are much smaller entities than Iraq and UN administration was in default of other options following political and humanitarian crises. The UN does not seek out such a role in Iraq. It would be marginally better at shouldering it now than in 1999, with better planning capacity and new rosters of civilian staff ready on relatively short notice to deploy to the field. But the training programs for staff are only now being constituted, and will not be focused on transitional administration requirements. Moreover, the scale of the responsibility would make Iraqi international governance qualitatively different from what the UN has been asked to manage to date.

The UN can, however, very usefully provide international political cover for a national political conference that is broadly representative of Iraq's various groupings -- definition and selection of which may not be obvious a priori. The Bonn Conference for Afghanistan offers a useful precedent. Note also the utility of having representatives of many different interested states actively engaged in pressing the participants toward a consensus result in UN-managed proceedings. In many peace processes, such "groups of friends" have helped to fashion the initial accord and keep it from unravelling. Unfortunately, the level of international disagreement regarding the war in Iraq would tend to make any such grouping of interested states more fractious and hence less effective.

In developing the process for drawing out indigenous leaders and building governing structures, the coalition should keep in mind the rather sorry record of leaders installed peremptorily by departing forces. One thinks of Najibullah in Afghanistan, left behind with ample stocks of ammunition by the Soviet Army, to no avail, and of Hun Sen in Cambodia, left behind by the Vietnamese Army. Civil war continued but Hun Sen proved sufficiently agile to survive even an internationally-monitored election loss. He continues to run Cambodia.

Regarding economic reconstruction, US contracting authorities and US contractors will be able to take initial steps toward restoring Iraqi infrastructure much more quickly than could a UN-led process of tenders and bids, except where the UN may have standing systems contracts with private firms (a common practice for the Dept. of Peacekeeping Operations, for example). But the Bretton Woods institutions -- World Bank and IMF -- could bring considerable resources to bear, if the transitional government bears an international imprimatur. Other UN agencies will be able to work in parallel with coalition forces and contractors, under their general mandates to provide humanitarian relief, to the extent of the resources made available to them, and consistent with UN guidelines stipulating that they not appear to be working for the coalition or endorsing its actions. This distancing would likely be reduced considerably were the post-conflict setting, and their roles in it, addressed by a Security Council mandate.

On transitional justice, the Iraqis will need to set up a system that works for them. Other countries’ solutions have ranged from special criminal courts to truth and reconciliation commissions. The UN can help out by providing human rights investigators, as it has in other places, and the Security Council can establish formal war crimes tribunals, as it did for the Former Yugoslavia and Rwanda. These have proven cumbersome in practice, however. A leaner model may be offered by the special court established by agreement between the Security Council and the government of Sierra Leone. The court combines local and international expertise, uses UN procedures, and is internationally-led: its special prosecutor and chief investigator are both American, and a majority of judges are appointed by the UN Secretary-General. It relies on voluntary financial contributions from about 20 states and its jurisdiction is limited to “persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law” from November 30, 1996 (the date of the Abidjan accord that first attempted to end the civil war). Implementing this model would of course require an Iraqi government legally competent to sign international agreements.