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After the war

February 23rd, 2003

Assuming there is to be a war in Iraq, it is, as the Administration is fond of saying, a matter of weeks not months. So the lack of any clear statement of what is to happen afterwards is more troubling than ever.

I’ll start with a basic question of legality. Let’s suppose that there is a second UNSC resolution on Iraqi weapons* and a group of UN members led by the US acts to enforce it, destroying Saddam’s weapons and overthrowing him in the process. At that point, as far as I can see, any legal basis for a continued US armed presence ceases. The US could simply withdraw (the option that the Pentagon would prefer, I’m sure). Alternatively, the UNSC could pass a new resolution establishing some sort of UN mandate.

But, as far as I can see, neither course of action is being contemplated. The option that seems to be uppermost in Bush’s mind, that of installing a US-controlled government, would convert an enforcement action based on a UN mandate to a war of aggression – explicitly forbidden under the UN charter.** I’m not an international lawyer, but it seems to me that an action of this kind would wipe out any claim to legality for the original intervention.

I had a look at the precedents of Germany and Japan after WWII. In both cases, the occupation government was nominally one established by the Allies (who were also, in some sense, the UN). In Germany this was also the reality on the ground, while in Japan the government was effectively controlled by the Americans. The most recent war, in Afghanistan, wasn’t problematic at all in this sense. No-one recognised the Taliban, and the new government was established under the auspices of the UN. Similarly in Kosovo, although NATO intervened without an explicit UN resolution to stop attacks on civilians, the subsequent occupation was UN-authorised.

* Actually, this isn’t critical. The same arguments apply if the invasion is justified by reference to 1441 and past resolutions. A real difference would arise only if the US explicitly repudiated the UNSC.

* *This was the line taken by the US government in relation to the Vietnamese invasion of Cambodia, which was justified both as self-defence and by the horrific nature of the Pol Pot regime. In fact, the US government took an even harder line since it continued to recognise Pol Pot rather than taking the more defensible position that neither Pol Pot nor Hun Sen represented a legal government.

Update Several commentators suggest that the proposed US controlled government is an interim step towards a democratic Iraq. In fact, according to the Washington Post, democracy has been explicitly ruled out (Blair refused to commit to democracy a week ago, and presumably this is why)

officials emphasized that they would not expect to “democratize” Iraq along the lines of the U.S. governing system. Instead, they speak of a “representative Iraqi government.”

There’s also no mention of the word “interim” or of “elections” or of anything that implies a specific finite timeframe. Obviously the US doesn’t plan to occupy Iraq permanently, but the implied position is one of indefinite occupation until the position of a pro-US government is secure, regardless of whether it has any democratic legitimacy.

The report also indicates that the Iraqi opposition (for all its faults, the only democratic force on offer) has been told to forget about any ideas it might have for a provisional government followed by democratic elections. A reaction from Kanan Makiya of the Iraqi National Congress, with a reference to those Iraqis who might serve in a US-controlled administration as ‘quislings’, is here.

I should emphasise that this is all attributed either to unnamed ‘officials’ or to experts outside the Administration, and could be misinformation of some kind. With an invasion apparently no more than a few weeks away, we have no official policy and, in particular, no explanation of how the enforcement of UN resolutions can legitimately be turned into a war of conquest.

Further update An error on my part – the article does indeed refer to the rule of a civilian administrator as “interim”. However, the rejection of “democratization” is clear-cut.

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