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PERSPECTIVE ON THE UNITED NATIONS : Bush Wins the Right to Look for Trouble : What the resolution leaves unsaid allows the decision on use of force to be directedfrom the Pentagon.

<i> David J. Scheffer, a lawyer, is a senior associate at the Carnegie Endowment for International Peace</i>

The “use of force” resolution approved by the United Nations Security Council on Thursday may prove decisive in the global confrontation with Iraq not only for what this historic document says, but also for what it ignores.

On a vote of 12 to 2 (with 1 abstaining), the Security Council authorized the multinational forces gathered on the Arabian peninsula “to use all necessary means to uphold and implement” the council’s many resolutions on the Iraqi aggression “and to restore international peace and security in the area” if Iraq fails to comply with those resolutions by Jan. 15. For months the overriding U.N. demand has been the immediate and unconditional withdrawal of Iraqi forces from Kuwait.

The Security Council’s authorization, however, neither requests nor commands the use of military force against the Iraqi army. In fact, the resolution avoids the terminology of war and such explicit terms as “armed force” or “military measures.” The fuzzy wording may encourage further non-military actions to compel Iraq’s compliance, but chances are the military option will overwhelm others after the Jan. 15 deadline.

The resolution in effect delegates the actual decision to take offensive military action to the governments participating in the multinational force. But there is no requirement that those governments reach that decision collectively. In six weeks the United States could launch an offensive campaign unilaterally (perhaps triggering help from British and Saudi forces) and argue that the council’s “use of force” resolution authorizes such a decision.

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This has critical ramifications for Congress, where hearings are under way to examine the Bush Administration’s recent decision to transform the American military commitment from the defense of Saudi Arabia to an offensive capability to liberate Kuwait and possibly wage a wider war on Iraqi territory. Many legislators believe that the U.N.-authorized sanctions must be given more time to pressure Iraq into compliance.

Paradoxically, the Administration has been deprived of the argument that the Security Council ordered American troops into combat and President Bush had to comply, even in the absence of a congressional declaration of war. Exclusive executive power to go to war would be a dubious legal position even if the Security Council had requested an American offensive. On Thursday the council only authorized enforcement action. Thus the option of war becomes a discretionary national decision. For the United States, this means that all of the constitutional requirements for using military force remain unchallenged by the U.N. Charter.

The White House has not abandoned its longstanding position that regardless of Security Council decisions, the United States can act at any time (even before Jan. 15) to liberate Kuwait on grounds of collective self-defense. So far, that argument has been used to avoid congressional interference as well as to discredit Security Council constraints on military action.

The most unpredictable interpretation of the resolution will be that attached by Washington to the authorization “to restore international peace and security in the area.” Such wording could be interpreted to mean total victory over Iraq, including the elimination of its chemical weapons and nuclear threat, the resignation or overthrow of Saddam Hussein’s government and the disarming of the Iraqi army. The absence of a clear military objective in the resolution’s wording thus leaves the field open for widespread bombing of Iraqi targets and a ground assault deep into Iraqi territory.

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The “use of force” resolution remains silent on who will command a military offensive against the Iraqi army. In 1950 the Security Council designated the United States as the commander of the multinational force that, under U.N. authority, defended South Korea. Today the dominant American presence in Saudi Arabia dictates a similar command structure. But without clear U.N. authority, the U.S. commander remains dangerously mired in the messy business of coordinating the European, Arab, Asian and American forces in an armed attack and ensuring (or perhaps hoping) that orders are followed.

The resolution also leaves untended the critical issue of whether the multinational force will be bound by all of the laws of war, particularly those that pertain to inhumane use of weaponry and the protection of civilians. The multinational force risks violating the very law it wishes to uphold if it gets sloppy with the use of its military might.

The Security Council can still require further non-military sanctions against Iraq. But the die has been cast for a military conflict orchestrated from the Pentagon. The quest for legal authority now shifts to the Congress.


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