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Legal lessons from the Gulf war

THE very welcome news that Iran has publicly accepted UN Security Council Resolution 598, which ``demands'' that both Iran and Iraq ``discontinue all military actions ... and withdraw all forces to the internationally recognized boundaries without delay,'' is a triumph for international law and the United Nations. Making available a face-saving way to begin the cease-fire and a forum for working out the details of a settlement are significant contributions. But the triumph is even greater. Iran has been frustrated by the conflict and has suffered enormously for the past eight years; its military policy is a factor in an internal struggle for authority. Of most significance is that Iran turned to the Security Council to seek the political advantages of condemning the United States for the civil aviation disaster of July 3, and failed. That failure cannot be attributed to any substance in the American defensive arguments. It can only have resulted from the unwillingness of the members of the Council to be used for political gain by a country standing in contempt of a legally binding decision. The substance of the position given by Vice-President Bush to the Security Council is hard to understand. The basic notion seems to be that when and where the US engages in hostilities, those conducting normal civilian activities should take precautions against US intelligence failures.

Yet in the situation that seems the closest analogy in recent years, the US voted with the majority of the International Civil Aviation Organization's assembly to ``condemn,'' as inconsistent with the International Civil Aviation Convention of 1944, the Israeli shootdown of a Libyan civil aircraft; it had strayed over actual Israeli-controlled territory in February 1973, when Israel and Libya were formally at war. After further investigation, that condemnation and its legal grounds were repeated by the organization's council that June.

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For the US to shoot down an Iranian civil aircraft over Iranian territorial waters or the high seas when it is not at war seems an even more obvious violation of the same rules. It is the responsibility of military forces to avoid civilian casualties; it is not the job of civil aviation authorities to anticipate failures of military intelligence. So the reversal of the US legal position must strike US allies as evidence of confusion.

Iran, after eight years of sneering at the UN, seems finally to begin to understand its importance in the great world of affairs. Unless the US makes a similar shift in official thinking, it will find itself isolated and condemned; its alliance commitments increasingly mistrusted by voters in allied democracies; and unable to use legal and organizational weapons to further US interests in peace and justice.

Expertise in the world of law and organization is notoriously undervalued by statesmen. It is possible that those who advised Iranian representatives that accepting the UN cease-fire measure was the path to an honorable peace, and a way to protect Iranian interests from US excesses, failed to mention that Iraq's initial attack on Iranian territory does not conclude the question of who bears, in the words of Resolution 598, ``responsibility for the conflict''; nor does it settle what legal and political consequences may flow from that finding.

The international law of self-defense does not justify overturning the aggressor's government as punishment for the first attack. The US might have discovered this, as a practical political matter, when it tried to punish North Korea for starting the Korean war in 1950 and ended the war back near the 38th parallel with Gen. Kim Il Sung still in charge in the North. The British government, too, might have learned that lesson when it found that it could not force Argentina to yield on its legal claim to the Falklands as punishment for the violation of the UN Charter's injunction to settle international disputes by peaceful means only.

It is possible the UN will find Iraq responsible for the first attack in the war, and Iran responsible as an aggressor for all the actions Tehran took in excess of what was necessary to thwart that threat. In any case, the legal and political consequences of a finding wholly favorable to Iran are unlikely to satisfy those whose concepts of justice are focused on the supposed divine law of retribution, instead of the accommodations that human law requires in an imperfect world.

If there is to be peace, a delicate handling of the relationships among politics, law, the alliance structure, the internal politics of Iran and Iraq, and all the nations of the Middle East is essential.

Rarely over the last 20 years has diplomacy been more needed; rarely has there been less evidence of the US government's capacity to supply it.

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Alfred P. Rubin is professor of international law at the Fletcher School of law and Diplomacy, Tufts University.

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