- The Washington Times - Wednesday, April 30, 2008


The foreign policy of the United States is on hold, as the nation continues to fly blind with neither a clear exit nor entry strategy to save us from the shoals of unnecessary foreign military engagement. And the world is on hold as it waits for our presidential candidates to sort out an exit strategy from Iraq, and perhaps begin to think about when entry for humanitarian or other considerations is or is not advisable.

To get us out of standstill mode, the press needs to be prepared to ask hard questions. Otherwise, we are doomed to go from one misadventure to another.

Iraq is a case in point. Much attention has been focused on the lack of a cogent post-occupation strategy, but much less attention has been focused on the need for a clear legal compass. We need that not only for our own navigational purposes but if we hope to succeed in bringing allies along. They, we have discovered, put a lot of stock in argumentation based on a reasoned application of international law.

In this regard, we had a very tough time slogging it out in Geneva at the very outset of the current Iraq war. Both of us had been appointed as political delegates to assist the chief U.S. envoy to the U.N. Human Rights Commission, Jeane Kirkpatrick, in fending off efforts to condemn the U.S. intervention as little short of aggression at the very outset of our engagement in Iraq.

In April 2003, the focus of international diplomatic activity had shifted from New York’s U.N. General Assembly to the Commission in Geneva. The foreign ministers of many countries, but especially those of Germany and France, who had castigated the United States at the General Assembly, now would have to vote on a resolution proposed by the “nonaligned” and the Arab and Muslim states that held sway at the 53-member U.N. Human Rights Commission. Allen Gerson was there as senior legal counsel to the U.S. delegation. Dr. Malik Hasan was there at the request of President Bush with the specific role of coordinating outreach to the Muslim world.

To be sure, the U.S. military intervention would likely have gone on regardless of the vote to condemn it. Still, it would have enormously complicated our efforts at building a “coalition of the willing.”

To our surprise, when we asked the permanent staff at the U.S. mission in Geneva for the government’s brief on the legality of the intervention, there was no paper or memorandum to be shared. If one had been prepared either at the Justice Department or at the State Department it was not the position we were to advance to other delegates. Instead, we were urged to justify the intervention on the basis of “pre-emptive self-defense” a concept then-National Security Adviser Condoleezza Rice had advocated in a Foreign Affairs piece published during the 2000 presidential campaign and which gained increasing acceptance in the aftermath of Sept.11, 2001.

But Ambassador Kirkpatrick balked. Asked to present the “pre-emptive self-defense” justification, she reflexively stated, “It will never sell: no one will buy it.” Instead, we presented a different legal justification based on the assertion that the United States was not entering a new war, but simply continuing the old in light of Saddam Hussein’s clear breach of the terms of the U.N.-sponsored cease-fire put into place at the end of the 1991 Gulf war.

As things turned out probably because of the different legal justification we were narrowly able to defeat the resolution condemning the U.S. intervention. France voted against the resolution. So did Germany. Saudi Arabia, ostensibly our ally in the region, voted for it. And our new “friend,” the Russian Federation, which we thought would abstain, also voted in favor of the resolution. In the end, however, the nays outweighed the “yes” votes by a margin of 25-18, with seven abstentions.

In future conflicts, we will not, however, have the luxury accorded to us during the Iraq war in being able to fall back on a breached U.N. cease-fire resolution to justify entry into war. We will have to decide whether to live with the traditional principle of the U.N. Charter (Article 2.4 outlawing resort to force except in cases of an imminent attack), or whether we are prepared to fashion a new justification based on a variation of the Wilsonian theme of making the world safe for democracy. And we will have to decide whether humanitarian concerns justify unilateral intervention in places like Rwanda or Kosovo or Darfur.

One thing is clear: It will be increasingly difficult for the United States to succeed in war unless we have a clear rationale for entry that is widely accepted by the American public, and then by others abroad. This is especially true because we can expect future wars to involve asymmetrical forces, thus tying us down for long durations. We can also expect nation-building as a necessary adjunct to military success. In short, we will need a moral and legal compass to guide us into such adventures.

The current presidential season is the time to ask such questions of the candidates. Sadly, they are hardly posed. The candidates need to be asked and the sooner the better whether the concept of pre-emptive war is indeed dead. They need to spell out their vision as to whether in specialized circumstances, and if so, which ones, a U.S. interventionist policy is justified. Otherwise, even if we come up with an exit strategy for Iraq, we will simply be left vulnerable to entry into other areas where foresight and reason would dictate that we stay out.

Allan Gerson is an international lawyer based in Washington, D.C. Dr. Malik Hasan is a physician and an international businessman.

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