There are two difficulties, one logistical, the other substantive, in writing about Iraq.The logistical difficulty is that events are fluid, changing not just daily but sometimes hourly.The substantive difficulty is this: I find myself in agreement with US President George Bush that weapons of mass destruction in the hands of Saddam Hussein pose an unacceptable risk(UN photo)...

 Ian Hunter 

National Post Thursday, March 06, 2003

There are two difficulties, one logistical, the other substantive, in writing about Iraq.

The logistical difficulty is that events are fluid, changing not just daily but sometimes hourly.

The substantive difficulty is this: I find myself in agreement with U.S. President George Bush that weapons of mass destruction in the hands of Saddam Hussein pose an unacceptable risk. I agree that if the world chooses to ignore this risk such collective blindness should not prevent the United States from acting unilaterally when its security is threatened. I agree also with British Prime Minister Tony Blair that no one who is open to being persuaded by evidence -- and many protesters, driven not by evidence but by stupid anti-Americanism, are not in that category -- can reasonably doubt that Saddam has such weapons. And I agree with Secretary of State Colin Powell that the enforcement of Resolution 1441 is a critical test of the viability of the Security Council, perhaps of the United Nations. So, am I then in agreement with the Anglo-American position?

I am not.

In one respect -- I believe a critically important respect -- I consider the Anglo-American position spurious, indeed intellectually and morally bankrupt.

It is this. Last fall, President Bush made it clear that no United Nations resolutions were needed. His position, oft and clearly articulated, was that the United Nations Resolutions undergirding the 1991 Gulf War, together with the subsequent ceasefire agreements signed between Iraq and the United States, provided all the legal and moral justification necessary to unilaterally enforce Iraqi compliance.

It was widely reported that this position was favoured by Defence Secretary Donald Rumsfeld; however, it eventually yielded to what was presented as a more conciliatory view, apparently championed by Secretary Powell, that a new United Nations resolution was both obtainable and desirable. Hence Resolution 1441.

Now here is my difficulty: Because President Bush elected to take the United Nations path, I do not believe that he can abandon it in favour of unilateral action. There may have been no legal or political necessity to pursue the tortuous UN path; however, having elected to pursue it, the President must stick with it.

The principle here is a simple one, and it recurs in many areas of life. One is under no obligation to join an association but, having joined, one is bound by its rules, and thereafter forfeits the right to insist on having one's own way.

However bad the refereeing may be, a hockey team that chooses to participate in a tournament must accept the tournament officiating; pulling the team off the ice midway through the second period is not an option. Changing the analogy, having attorned to the jurisdiction of a particular forum -- in this case, the UN Security Council -- the President cannot withdraw the first time he finds himself in disagreement with one of the forum's rulings. This is particularly so, it seems to me, when the flaws in the forum's composition and resolve were well-known in advance; the one thing that President Bush cannot claim is that the UN's demonstrated pusillanimity comes as any surprise.

Is this just a niggling procedural objection, a case of form trumping substance?

No. The military outcome of a war between the United States and Iraq is not seriously in doubt. But the legitimacy of such a war is very much in doubt. And the crucial issue upon which the world is likely to decide legitimacy is this: Who gets to decide if, and when, Iraq has disarmed? By obtaining Resolution 1441, the United States has forfeited the claim to make that decision unilaterally.

What would be a logical, albeit drastic, way out, would be for the United States to announce that because the UN has demonstrated unwillingness over 12 years to force Saddam Hussein to comply with UN Resolutions, and has demonstrated its impotence once again, the United States will withdraw from the United Nations. Having withdrawn, the United States could pursue its policies, however unilateralist, without regard for what France, Germany or anyone else said. But such a drastic step would consign the UN to the dustbin of history, alongside the League of Nations; whether the American electorate, to say nothing of the world, is ready for this is a rather large question.

For what I believe are the best of motives, President Bush allowed himself to be persuaded by so-called moderate voices who urged that UN approval was necessary in advance of action. In retrospect, this was a mistake. Having made the mistake of going to the UN for Resolution 1441, the President is stuck with it. President Bush implicitly gave the UN jurisdiction to interpret its terms, including what constitutes "material breach" and when that occurs. Having accepted the legitimacy of the United Nations, it is too late to abandon it. However loudly the President proclaims otherwise, the reality is that U.S. policy on Iraq for the time being at least is made not in Washington, but in New York.

Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario.

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