The Gulf Trip Wires to War

By GEORGE J. CHURCH

With an impish smile, Claiborne Pell, Democratic Senator from Rhode Island and chairman of the Senate Foreign Relations Committee, waved a newspaper clipping at Secretary of State James Baker last week. It reported that Soviet Foreign Minister Eduard Shevardnadze had told his country's parliament he would seek its prior approval for any military involvement in the Persian Gulf. "Can you make the same promise?" asked Pell. "We will continue to consult," replied Baker. But he added, "What I cannot do is make a general, across-the-board commitment."

On the eve of its departure from Washington for a two-month adjournment, Congress was looking for a firmer pledge that the Administration would not go to war as soon as the legislators left town. The next day, at a House Foreign Affairs Committee hearing, Representative Gerry Studds asked Baker if he could offer assurances that the U.S. would not attack Saddam Hussein's forces without consulting Congress. "No," said Baker. Studds then observed that if he were a soldier, "I think I would put my helmet on." Baker replied, with a smile, "I think their helmets are on."

Shevardnadze's parliamentary pledge reflected Mikhail Gorbachev's conviction that any use of force must be approved by the United Nations Security Council, a position the U.S. Congress tends to favor as well. For a while last week it seemed that the Soviet President might be testing the climate for a settlement based on a partial Iraqi withdrawal from Kuwait. Yevgeni Primakov, a Gorbachev aide who had visited Saddam in Baghdad three weeks ago, met with Bush on Friday and told him the Iraqi leader would not withdraw from Kuwait prior to negotiations, as U.S. policy now demands. Bush's reply: "Tell him I am not flexible either."

Washington wants Saddam to be convinced that if he does not pull out of Kuwait, he will be driven out. But if Bush decides it must be war, how does he go about starting one? Far more would be involved than a simple order to begin bombing. What kind of provocation, if any, the U.S. could cite and what justification it could find in international law would bear heavily on whether the U.S. fought the war -- and made a subsequent peace -- at the head of a global coalition or as a lone wolf.

It is possible, of course, that Saddam will ease Bush's task. U.S. officials have designated a series of acts that the Iraqi dictator might take as trip wires for an American strike that could be presented as legitimate self- defense. The most obvious is an Iraqi attack on the U.S. or other international forces in Saudi Arabia (or possibly on Israel, although America's Arab allies would hardly be eager to fight in defense of what they call the "Zionist entity"). Preparations for an attack might also suffice. For example, if satellites detected the fueling of Iraqi missiles, the U.S. and allies might strike right away.

Baker has mentioned another trip wire to allies: mistreatment by the Iraqis of some of their thousands of hostages -- killing or injuring them or even physically imprisoning them as the Iranians did with the American hostages seized in 1979. The justification in that case would be not self-defense but a principle of international law known as "humanitarian intervention," which says a nation has the right to use force to protect its citizens abroad.

That formula could also apply to the diplomats holed up inside their embassies in Kuwait City. Baker hopes to win Security Council approval for a resolution calling for resupply of food, water and basic necessities to the five embassies (U.S., Britain, France, Tunisia and Bahrain) that remain open despite Saddam's directive to shut down. If Iraq were to reject the resolution and obstruct resupply efforts to diplomatic missions he has illegally ordered closed, that might become a trigger to war. Describing the conveniently vague wording of the resolution, an Administration official observed, "It's the type of language you can drive a truck through. Or a helicopter. Or a missile."

A terrorist outrage like the blowing up of Pan Am Flight 103 over Scotland in December 1988 might serve as a trip wire too, provided that it could plausibly be traced to Iraqi instigation. Two weeks ago, Rifaat el-Mahgoub, the Speaker of Egypt's Parliament and the second-ranking official in the country, was shot to death. Cairo blamed Iraq for the attack. As nerves tighten further, such an atrocity might trigger massive retaliation. Baker and National Security Adviser Brent Scowcroft have said that continued Iraqi pillaging, murdering and raping in Kuwait might shorten the time the U.S. gives for the embargo to work, a hint that that also might be regarded as a sufficient cause for war.

Saddam, however, has been seeking to avoid provocation. For example, his jet fighters have run away every time U.S. planes have approached them. If he avoids crossing any of the trip wires, how could the U.S. justify an attack?

One school of thought holds that Article 51 of the U.N. Charter, which recognizes the right of self-defense against armed attack not only for the victim nation but also for others coming to its aid, gives Washington and its allies all the justification they need. Many experts, however, read Article 51 as approving the use of force in self-defense only in the absence of action by the U.N. Security Council. And the Security Council has passed nine resolutions condemning Iraq and authorizing a worldwide embargo against it. Thus, in this view, the time for invoking Article 51 has passed; some other justification would be needed for military action now.

Washington has begun preliminary soundings about a Security Council resolution that would specifically authorize the use of force. This could be done under Article 42, which provides that if economic sanctions are inadequate the Security Council "may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security." The big problem is that such a resolution might be vetoed -- probably not by the Soviet Union but quite possibly by China or perhaps even by France.

Another problem is that Article 42 contemplates the formation of a blue- helmeted U.N. force under some sort of international command. The Soviet Union has indicated that this is the only basis on which it would send troops to fight against Iraq. But such an integrated international force might be very clumsy and time-consuming to set up. Article 39 might also be invoked, although at the possible cost of Soviet participation. This provision permits the Security Council to make "recommendations" to member states on how to restore peace; the recommendation could simply be to coordinate military action with the U.S.

Then there is Capitol Hill. The pace of modern warfare has rendered declarations of war obsolete, and the War Powers Act of 1973 has become a virtual dead letter. Every President since its passage has denounced it as an unconstitutional infringement on his powers as Commander in Chief, and the courts have refused to enforce its key provision, which requires the President within 60 days to pull U.S. forces out of any situation in which hostilities seem imminent unless the legislature votes to let them stay.

The House and Senate have adopted separate resolutions endorsing all the actions that Bush has taken so far, but making clear -- or so the framers claimed -- that they did not confer any advance approval of a decision to fight. There has been talk of a resolution providing that Bush could order war only with the specific approval of the U.N., but nobody has introduced such a resolution yet. Senate Armed Services Committee chairman Sam Nunn observes that Congress's real power is the ability to shut off funds for a war. That seems theoretical, to put it mildly; can anyone seriously imagine Congress refusing American troops the money to buy the ammunition to return enemy fire?

One of the weaknesses of the War Powers Act is that it fails to specify who should be consulted or exactly when (Ronald Reagan informed Capitol Hill leaders of the impending U.S. air strike on Libya in 1986 only after the bombers were in the air and nearing their targets). Nunn would remedy that by setting up a bipartisan group that the President would be required to consult with regularly, including times when Congress is not in session. That provision could be important; the most widely repeated war scenario on the Washington rumor circuit calls for fighting to begin in mid-November -- during the adjournment.

None of this might matter greatly if a war follows the quick-knockout script sketched by some Air Force enthusiasts. In the politics of war, as in other matters, nothing succeeds like success. Even then, however, the U.S. would need the support of its world coalition to shape a durable peace. And at home one need only mention the word Vietnam to underscore the importance of congressional and popular support. Unfortunately, the scenarios for fighting a war seem to have been far more carefully drawn and fully thought out than the scripts for justifying the decision.

With reporting by Michael Duffy and Bruce van Voorst/Washington