THROUGH THE crisis in the Gulf, a significant turning point may have been reached in the development of international law, according to several United Nations officials and policy analysts.
That turning point might be described as the difference between law as something desirable but largely ignored and law as something to be enforced, between the age of international law as a matter of "norm creation," and "what may be the age of international law enforcement in the future," according to David Scheffer, a scholar from the Carnegie Endowment for International Peace.
The events in the Gulf "crystallized the possibility of using the United Nations as a means to enforce international law, rather than having nations take unilateral action and then try to justify it afterwards in the name of international law," he said in a recent interview. "It shows the potential of the United Nations and the Security
Council for law enforcement activities in the future."
Lucy Webster, at the U.N. Department for Disarmament Affairs, agrees that as a result of the Gulf, international law has progressed from the status of "pious norms to norms taken seriously. Law is a question of expectations, and enforcement really means the threat of enforcement. There was no reason for Saddam Hussein to expect the response that his invasion provoked. But now the whole context has been changed."
Despite what cynics are saying, the United States' resort to the United Nations in the Gulf Crisis is bound to have an effect on its future actions, according to Tom Weiss, a policy analyst at Brown University's Watson Institute of International Studies.
"International norms are meant to apply universally," he said, and now "we are part of that universe. It's going to be very difficult for the U.S. not to resort to the U.N. in future cases of aggression, and it will make future actions like those in Grenada and Panama more difficult. This kind of precedent won't just run off our backs."
"It's absolutely true that the United States went to unprecedented lengths to use the Security Council and justify its actions under the U.N. Charter, and it's very different from what happened in Grenada and Panama," said Helena Cobban, a policy analyst at the Foundation for Middle East Peace in Washington. But she added that "the jury is still out on what the long term effects will be for the acceptance of international law."
Virgil Reyes, a diplomat at the Philippine Mission to the U.N., said that although international law has been strengthened in the short run, "rifts will come in the long run unless the United States decides to cast its lot in with the United Nations" on a more consistent basis.
And one senior U.N. official who asked not to be named, is concerned about how the Gulf Crisis will affect U.S. policy.
"There is a great risk that the U.S. will get drunk now that it has taken a couple of glasses of liberation wine, that it will see the Gulf as recognition that finally the U.S. is all powerful, which it is not," he said. "On the other hand, there is a tremendous opportunity if the U.S. acts wisely It may mean the beginning of an era when the Security Council unanimously acts to block any major threat to peace, if necessary with the use of force."
He agrees that the opportunity presented by the Gulf could mean a turning point in the development of the United Nations. "It's a vitally important moment, quite unique. If we lose it, it may never come back again."
If the United States were really serious about strengthened the rule of law in the world, the U.N. official continued, it would support the creation of an international criminal court, in order to try individuals like Saddam Hussein for crimes against peace and humanity. But the United States, along with a number of other governments, is still reluctant to do anything which might limit its sovereignty, its ability to act as it chooses in any situation, he said.
The fact that many analysts are cautiously optimistic about the effect of the Gulf on international law, does not mean they entirely approve the way the crisis was handled.
"On balance, I believe international law has been strengthened," Sheffer said, but he added that it would have been better for the United Nations "if the Security Council had acted before the U.S. sent in troops, if sanctions had been allowed to run their course, and if the Secretary-General had been allowed to play a more important role at various junctures."
Olara Otunnu, director of the International Peace Academy, also believes the Secretary-General should have been given a greater role in the crisis. "Once the Allies failed in the negotiations and the Security Council said the Secretary General had better do something, it was too late. The Secretary-General had no room for maneuver. All he could do was go to Baghdad and restate word for word what Baghdad already knew."
Webster deeply regrets the level of force used in the Gulf, which would never have been necessary if, among other things, the arms race in the region hadn't been allowed to spin wildly out of control. In the future, international law needs to be implemented using an absolute minimum of force, she said, and disarmament is absolutely critical to such minimum use.
And Brian Urquhart, former U.N. Under Secretary-General and renowned expert on U.N. peacekeeping operations, is highly critical of the events leading up to the outbreak of the conflict in the Gulf.
In 1980, Urquhart was warning the Security Council "that it was absolutely outrageous that they weren't doing anything about Saddam Hussein's invasion of Iran. Well, of course it sent the wretched guy the wrong signal. he thought the Security Council was a stupid patsy."
"Iraq was trying to invade Kuwait in 1963 already," Urquhart continued. "They had a standing territorial claim on Kuwait. Saddam Hussein had already invaded a much more powerful neighbor. Everybody knew he had the fourth largest army in the world, and we all helped him to build it up. So why
wasn't there anybody looking at the thing? Everybody knew he had this row with Kuwait going on the whole summer over oil prices and the Rumaila oil fields and the war debt. There was a knock-down drag-out fight going on. Yet there wasn't a single effort to keep a watch on the thing. The Security Council was all on holiday and the Arab League was doing nothing."
"So I'm getting a bit tired of all this latter day chest beating and drum banging and trumpet playing" about the success of collective security, he went on. "I don't think it's a turning point at all. I think it explains all the things that have not been done in the past."
Urquhart worries that governments won't learn the obvious lessons of the Gulf. "They've got to try to analyze why this happened, what to do about it and how to prevent its happening again," he said. "And the first thing which has to go is the world's arms trade, and do you think anybody's going to do anything about that? Not on your life."
Urquhart believes that to prevent future threats to peace, the United Nations must be significantly strengthened. Among other steps he calls for:
1) a better system of vigilance, to keep watch on destabilizing situations all over the world, including dangerous buildups of armaments; 2) further and more frequent and imaginative use of the International Court of Justice; and 3) strengthened peace-keeping operations, which should be deployed in dangerous areas in advance of a crisis.
"Why not deploy peacekeeping in places which you think are tricky as a warning and a control and if necessary, as a tripwire?" he said. "The aim of the Security Council should be to prevent conflict, not just deal with it after it happens. Otherwise, it's going to go right on being a johnny-come-lately, a last-minute fire brigade, going in to sweep up the mess, which is silly and very expensive, too."
He continued, "Everybody says that peacekeeping is very expensive, but you could pay for every U.N. peacekeeping Operation in the world for a whole year on one and a half days of Desert Storm, so what's expensive about that? It's ridiculous. There's no comparison."
Other analysts agree that such changes at the U.N. are critical.
"The question which should be explored is how U.N. peacekeeping can acquire more teeth," Otunnu said. "How can peacekeeping be used in a preventative fashion?
Weiss argues that the political task ahead is one of creating a better means of responding to aggression, including diplomacy and expanded peacekeeping machinery. "We need to up the ante for any potential aggressor," he said. If even a small contingent of U.N. peacekeeping forces had been sent to Kuwait before the invasion, "it would have created a strong psychological barrier to aggression."
In a speech in March to the Veterans of Foreign Wars, U.S. Ambassador to the U.N. Thomas Pickering agreed with some of these suggestions, emphasizing that it was important to support "a firm approach to finding ways to prevent conflict."
Pickering said that "U.N. peace-keeping forces could assist along the threatened borders as an indicator of our seriousness about protecting the principle of the territorial integrity of states. With Iraq's defeat lodged in the collective memory of the world community, I believe that peacekeeping of this character could save lives."
It is unfair to expect U.S. soldiers to serve indefinitely as world policemen, Pickering said. "We should begin now to look over the ground of possible U.N. enforcement arrangements as set forth in the U.N. charter and never implemented."
Pickering said that the close consultations between the United State and a wide coalition of countries during the Gulf action was a "dividend we can invest in and add to as we build the 'New World Order' the President has spoken so eloquently about." And he added that essential to this order was "a partnership without which there can be no enduring basis for peace and prosperity in the world.. the partnership between the rule of law and the responsible application of force."
However promising Pickering's remarks may sound, an official within the U.S. mission at the U.N. said that his suggestions for strengthening U.N. peacekeeping did not represent U.S. policy. "He was tossing bread on the water. Don't think that the U.S. government is about to propose that."
And this official questioned, as well, the need for strengthening the system of early warning for the U.N. Secretary-General.
While it seemed like a good idea, he said, "What does it really mean? It's likely to be a poor man's version of the information sharing that the big powers already possess. It's going to be enormously expensive to bring him up to mediocrity."
If the big powers think they've got all the early warning they need, Brian Urquhart replied, "how come they were asleep on the watch on August 2nd? And what's more expensive, Desert Storm or early warning? All I'm saying is that we need to improve so we don't have such a mess next time. There must be a way of developing a collective security system that doesn't mean having a major war."
Jack Yost is a peace educator, author and film producer, and the U.N. representative for the World Association for World Federation.