Ken Graham: Illegal actions erode election legitimacy

The Iraq elections scheduled for January 30 are unavoidably flawed. Not because the aspiration of Iraqis to determine their political future is illegitimate - that is an inherent right of all people everywhere - but because the founding act on which the elections are premised is illegal, and anything that derives from it is forever compromised.

This is the nightmare legacy of the events of March 2003. No retroactive self-justification from the United States or earnest edicts of the United Nations can render an illegal action legal. Even if its technical dimensions were valid, which is demonstrably not the case, the election is inescapably corrupted by its political lineage.

This lesson will haunt us for decades, whether Iraq descends into, or ascends from, civil war once the polls close.

The invasion was officially justified in notes to the UN Security Council by the invading countries, on grounds that Iraq was flouting binding UN resolutions over weapons of mass destruction disarmament. The patent falsity of that belief is now acknowledged everywhere except where it counts - in the council.

Instead, the council has decided, by resolutions introduced by the same countries, that black can be made white. It has decreed that the invading powers constituted a provisional occupation authority (May 2003), that an interim governing council could be appointed by that authority (August), that the occupying military forces could be reconstituted as a UN-authorised multinational force (October), and that a transfer of sovereignty to an interim Government could legitimise the whole process towards an elected transitional Government (June 2004).

These actions have stretched international credulity beyond breaking point. An overwhelming majority of people and states opposed the invasion. Yet it went ahead. UN Secretary-General Kofi Annan said at the time it "lacked legitimacy" and later that it was "illegal".

That is the judgment of the top-ranking world official who, unlike national political leaders, speaks more genuinely for the international community. How can something described by Annan as illegal be the basis of a valid constitutional act?

The Iraq nation-building experience differs from the Afghan precedent. There, the UN sponsored a constitutional conference that gave international authenticity to elections verified by the UN. But the Iraq process is controlled by the occupying powers and "legitimised" by the Security Council, the UN body tasked by the charter not to do nation-building but to maintain peace.

The UN has been invited to play only a supporting technical role in the Iraq election. It has done this "as circumstances permit", hesitatingly and without apparent inner conviction. And it has declined to assist in the criminal prosecution of the former Ba'athist leaders because of, among other things, the death penalty.

The American prisoner-abuse scandal has eroded the intrinsic merit of a Western-implanted democratic experiment, betraying the moral foundations of such political exportation. The Security Council, careful in recent times to relate human rights to peace and security, has said nothing explicit about Abu Ghraib.

The ferocity of the American-led Fallujah operation prompted Annan to warn of damaging consequences for Iraq's nation-building and the timing of elections. He urged a halt to excessive reliance on armed force and asked for genuine efforts to address Iraqi grievances through peaceful means. For this he was criticised for interfering in US domestic politics.

Yet his judgment is essentially accurate - resistance to foreign forces becomes more lethal each day. Its principal tactic, bombing civilian infrastructures associated with the occupation, is identical to that successfully perpetrated by Israelis in Palestine 50 years ago.

When the electoral dust settles a few months from now, and the election is declared successful and the convulsion inside Iraq continues, the world community will face a crucial moment. Pressure from the US to declare stage two of the mission accomplished and dump stage three in the UN's lap will increase.

If that occurs, it will be the occasion for the UN to undertake nation-building of a qualitatively different kind. To ensure the legitimacy of such an experiment in future, the UN will need to partner not a superpower steeped in a particular culture but the regional agency to which the country belongs.

In 1993 the UN declared it a universal duty, regardless of anyone's political or cultural system, to promote human rights. But the significance of regional particularities, and their various historical and religious backgrounds, had to be borne in mind.

The UN Charter does not speak of democracy. But the human-rights covenant states that authority to govern rests on the popular will expressed through periodic elections. A 2003 action plan requires regional agencies to draft charters for democracy catering to regional conditions.

With Iraq, this means the Arab League should partner the UN in the electoral legitimisation of future Governments. To some extent this regionalisation is occurring. In 2003 Annan promoted contact between the UN, Iraq's neighbours and regional agencies. And in November 2004, Egypt hosted a regional conference attended by the major powers and the Arab League. The conference emphasised a leading role by the UN - though still "as circumstances permit".

But henceforth the principal player should be the Arab League. Not because it has greater experience than the West in democratisation, because it clearly has not, but because it is the embodiment of the political culture of the region; because it speaks the regional language, a condition of political legitimisation of stunningly simple proportions that was overlooked in the American-British adventure; and because Iraq is one of a series of political transformations the entire Arab world will undergo in future decades - not towards the Western pluralistic and adversarial model of democracy but towards a consultative, co-operative democracy of its own cultural hue with which the Arab citizen can identify.

Last month Annan said it was time the international community closed ranks for Iraq's reconstruction - a courageous comment given what has gone before. What's required for this? Time, patience, humility, cultural respect and tolerance, political wisdom. Everything that has been largely lacking from Western power-brokers in recent years.

* Dr Ken Graham, a former New Zealand diplomat and United Nations University official, works as a consultant on regional security and global governance in Europe.