Washington, 2 March 2004 (RFE/RL) -- One year after their bitter disagreement over the war in Iraq, the United States and the United Nations Security Council look set to turn a new page.
The Security Council is sending signals of cooperation on Iraq's postwar reconstruction. The UN Secretariat last week reaffirmed its intention to return to Iraq once security improves to assist Baghdad's transition to sovereignty. It pulled out of Iraq last summer after its Baghdad office was destroyed in an attack that killed the top UN envoy and some 20 others.
The new cooperation, including a new U.S.-French partnership in stabilizing Haiti, has prompted some speculation that Washington and the world body may be entering a new phase in their relations, with America more willing to listen to others and moderate its so-called "unilateralism."
International support for humanitarian interventions has grown in recent years, yet they contradict a key part of the UN charter.
But the reality may not be so simple.
Analysts say the rift that emerged over Iraq preceded that conflict -- and is likely to continue. It centers on the issue of international legitimacy -- whether countries such as the United States have a right to wage "preventive" wars, either for humanitarian or security reasons, without sanction by the Security Council.
Jeanne Kirkpatrick, a U.S. ambassador to the UN under former President Ronald Reagan, recently addressed a forum on U.S. relations with the UN at the American Enterprise Institute, a conservative think tank. Currently the institute’s director of foreign and defense policy studies, she said she thinks it is "a gross exaggeration to suggest that the Security Council is the only source of legitimate action to deal with such a crisis as, for example, terrorist groups with weapons of mass destruction. It would be, I think, a violation of an American president's oath of office to act only if he had Security Council authorization."
Like U.S. President George W. Bush, Kirkpatrick believes the United States may legitimately defend its own interests through preventive military action, even if such action is not explicitly sanctioned by the Security Council.
That notion is far from new. Washington, a key architect of the UN after World War II, has encouraged global participation in the world body and yet has repeatedly acted beyond its legal boundaries, such as in the Vietnam War in the 1960s and numerous actions small and large since the fall of the Berlin Wall in 1989. Those actions include the bombings of Bosnia-Herzegovina in 1995, of Serbia in 1999, the latest war in Iraq, as well as "humanitarian interventions" in places such as Haiti, where the U.S. and France sent troops this week to help ensure a peaceful transition of power.
International support for humanitarian interventions has grown in recent years, yet they contradict a key part of the UN charter -- that is, that countries may use force only after they have been attacked.
Rick Barton is a former deputy UN high commissioner for refugees. He tells RFE/RL the "humanitarian" wars of the 1990s, coupled with the Iraq invasion, have dealt a blow to the concept of sovereignty as defined under the UN Charter's Article 51, leaving a legal vacuum in their wake.
"The sovereignty model of yesterday is getting a very hard test and is actually getting violated,” he says. “Generally, that's an important change. We haven't obviously refined it. But it does speak -- in the most positive sense -- it speaks to impatience with certain internationally abhorred practices that we've stood by and watched in the past."
Washington based its case for war in Iraq on the alleged threat of Baghdad's weapons of mass destruction, as well as on years of Security Council resolutions it said Iraq had violated. The U.S. also repeatedly cited humanitarian reasons for getting rid of Saddam Hussein.
But France and Germany, which led international opposition to the war, saw a dangerous precedent in waging a pre-emptive war. And they argued that only the Security Council could sanction such an action. French Foreign Minister Dominique de Villepin said U.S. and European differences over Iraq were born from "two different visions of the world," with Europe's vision based strictly on the rule of international law.
Yet both France and Germany supported the NATO-led bombing of Serbia and Montenegro, which had no international legal sanction from the Security Council.
Mindful of that contradiction, U.S. scholar Robert Kagan argues in a new essay in the journal "Foreign Affairs" that Paris and Berlin are less than sincere when arguing that the Security Council alone is the ultimate repository of international legitimacy. Instead, Kagan suggests that legitimacy in the eyes of Paris and Berlin is simply defined in terms of whether they happen to agree with a given action by Washington.
If they agree, such as in Serbia, then there is no protest from them about the legitimacy of Washington's actions. If they disagree, as in Iraq, then the result for Washington is what Kagan calls a "crisis of legitimacy," based not so much on international law as on the lack of support from America's fellow democracies in Europe.
In that light, Barton says many of the questions over the legitimacy of U.S. actions could be solved through better attention to nuance in American relations with the UN and Europe -- that is, through better diplomacy.
He says, "For example, on the war on terrorism -- when we are doing things that are systematic and seem to make sense, we have the support of our allies. When we look as if we're a bit of an angry lion and lashing out, then the support is not as widespread."
Thomas Pickering is a former senior U.S. diplomat and ambassador to Russia and Israel. Addressing the American Enterprise Institute forum, Pickering essentially agreed with Barton's point. He added that Washington has nothing to fear from the Security Council, which has often been a key tool for advancing U.S. policy, and the U.S. must blame itself if it can't sway the body in its favor.
"If we are well-prepared and we handle the questions well, we will do -- if not everything which we want in the Security Council -- I believe we can do a great deal of what we want to achieve. I believe this also applies to Iraq and the situation in the spring of last year, which I think was ours to win or lose at the UN according to the strategy we adopted."
Better diplomacy appears to be helping Washington and France, a permanent member of the Security Council, to improve their relations. Last weekend, their cooperation on Haiti facilitated the resignation of the island country's former president in a move hailed by de Villepin as a major step forward in relations with Washington.
Now, France says it may be ready to send troops to ensure security in Iraq, if the request comes from a sovereign Iraqi government and has United Nations approval. If France and the United States return to genuinely more cooperative relations, then that is likely to translate into better terms for Washington at the UN, given Paris's weight on the Security Council.
But temporary improvements in diplomacy between Washington and Paris are no substitute for filling the current legal vacuum over preventive war with a new international legal framework.
After the September 2001 attacks on America, Bush raised preventive war to the level of national security doctrine. In Pickering's opinion, that change may have been too radical, inviting chaos into the international system by allowing any country to use military force whenever it feels threatened.
But Pickering adds that after the terrorist attacks of 11 September 2001, no U.S. president, Republican or Democrat, will wait to be attacked before resorting to military force. For that reason, he says a new legal framework must be established in order for the international community to determine whether a looming threat is imminent enough to warrant pre-emptive military action.
"It would seem to me that something close to a clear-and-present-danger standard ought to be applied, with some thoughtful people giving some serious thought to the issue of what specific tests are required to do that," he said. "There have to be tests internally; there have to be tests that stand external scrutiny. Otherwise, we create an anarchical situation in the international community."
While improved diplomacy is always welcome, the UN is also working toward the goal of establishing a more lasting foundation for the future of international relations.
Last autumn, UN Secretary-General Kofi Annan formed a panel of "eminent persons" and tasked it with producing recommendations on how the Council should address the legal ramifications stemming from new threats such as terrorism and weapons of mass destruction. The panel's report is due by September.