Why the Security Council Failed

Michael J. Glennon

From Foreign Affairs, May/June 2003

Summary:  One thing the current Iraq crisis has made clear is that a grand experiment of the twentieth century--the attempt to impose binding international law on the use of force--has failed. As Washington showed, nations need consider not whether armed intervention abroad is legal, merely whether it is preferable to the alternatives. The structure and rules of the UN Security Council really reflected the hopes of its founders rather than the realities of the way states work. And these hopes were no match for American hyperpower.

Michael J. Glennon is Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University and the author, most recently, of Limits of Law, Prerogatives of Power: Interventionism After Kosovo

SHOWDOWN AT TURTLE BAY

"The tents have been struck," declared South Africa's prime minister, Jan Christian Smuts, about the League of Nations' founding. "The great caravan of humanity is again on the march." A generation later, this mass movement toward the international rule of law still seemed very much in progress. In 1945, the League was replaced with a more robust United Nations, and no less a personage than U.S. Secretary of State Cordell Hull hailed it as the key to "the fulfillment of humanity's highest aspirations." The world was once more on the move.

Earlier this year, however, the caravan finally ground to a halt. With the dramatic rupture of the UN Security Council, it became clear that the grand attempt to subject the use of force to the rule of law had failed.

In truth, there had been no progress for years. The UN's rules governing the use of force, laid out in the charter and managed by the Security Council, had fallen victim to geopolitical forces too strong for a legalist institution to withstand. By 2003, the main question facing countries considering whether to use force was not whether it was lawful. Instead, as in the nineteenth century, they simply questioned whether it was wise.

The beginning of the end of the international security system had actually come slightly earlier, on September 12, 2002, when President George W. Bush, to the surprise of many, brought his case against Iraq to the General Assembly and challenged the UN to take action against Baghdad for failing to disarm. "We will work with the UN Security Council for the necessary resolutions," Bush said. But he warned that he would act alone if the UN failed to cooperate.

Washington's threat was reaffirmed a month later by Congress, when it gave Bush the authority to use force against Iraq without getting approval from the UN first. The American message seemed clear: as a senior administration official put it at the time, "we don't need the Security Council."

Two weeks later, on October 25, the United States formally proposed a resolution that would have implicitly authorized war against Iraq. But Bush again warned that he would not be deterred if the Security Council rejected the measure. "If the United Nations doesn't have the will or the courage to disarm Saddam Hussein and if Saddam Hussein will not disarm," he said, "the United States will lead a coalition to disarm [him]." After intensive, behind-the-scenes haggling, the council responded to Bush's challenge on November 7 by unanimously adopting Resolution 1441, which found Iraq in "material breach" of prior resolutions, set up a new inspections regime, and warned once again of "serious consequences" if Iraq again failed to disarm. The resolution did not explicitly authorize force, however, and Washington pledged to return to the council for another discussion before resorting to arms.

The vote for Resolution 1441 was a huge personal victory for Secretary of State Colin Powell, who had spent much political capital urging his government to go the UN route in the first place and had fought hard diplomatically to win international backing. Nonetheless, doubts soon emerged concerning the effectiveness of the new inspections regime and the extent of Iraq's cooperation. On January 21, 2003, Powell himself declared that the "inspections will not work." He returned to the UN on February 5 and made the case that Iraq was still hiding its weapons of mass destruction (WMD). France and Germany responded by pressing for more time. Tensions between the allies, already high, began to mount and divisions deepened still further when 18 European countries signed letters in support of the American position.

On February 14, the inspectors returned to the Security Council to report that, after 11 weeks of investigation in Iraq, they had discovered no evidence of WMD (although many items remained unaccounted for). Ten days later, on February 24, the United States, the United Kingdom, and Spain introduced a resolution that would have had the council simply declare, under Chapter VII of the UN Charter (the section dealing with threats to the peace), that "Iraq has failed to take the final opportunity afforded to it in Resolution 1441." France, Germany, and Russia once more proposed giving Iraq still more time. On February 28, the White House, increasingly frustrated, upped the ante: Press Secretary Ari Fleischer announced that the American goal was no longer simply Iraq's disarmament but now included "regime change."

A period of intense lobbying followed. Then, on March 5, France and Russia announced they would block any subsequent resolution authorizing the use of force against Saddam. The next day, China declared that it was taking the same position. The United Kingdom floated a compromise proposal, but the council's five permanent members could not agree. In the face of a serious threat to international peace and stability, the Security Council fatally deadlocked.