LONDON. — The imminent defeat of the Kurds is not the end of the matter. Their claim for self-rule remains, after the Palestinian question, the hottest issue in the Middle East. While the origin of the Kurdish people remains uncertain, they've retained their distinct identity for at least 2,000 years, and have been fighting, on and off, for a homeland all this time.
Endlessly they have been betrayed -- in living memory by the British and French, by Nixon, by the Shah and now, it is being said, by George Bush. The president certainly appeared during the war to give the Iraqi Kurds the green light to overthrow Saddam Hussein, but his heat-of-the-moment urge seems now to have been replaced by the more traditional Western objectives of maintaining a balance of power between the existing nation-states of the Middle East.
It can be said in President Bush's defense that none of the United Nations' series of resolutions after the Iraqi invasion of Kuwait gave a mandate either to overthrow Mr. Hussein or to give succor and support to the Kurds.
Indeed, why not? Why hasn't the U.N. risen long ago to defend the Kurds? No other group in history, not even the Jews, has had a better legal case for U.N. protection. The U.N. has never been given a mandate to deal with the complicated border issues that the Kurdish question raises, but it is under immense historical and legal obligation to give teeth to two remarkable statutes of international law -- the 1925 Geneva Protocol prohibiting the first use of chemical weapons, and the 1948 Convention on Genocide -- the first shaped by the horrors of gas warfare during World War I and the second by the human extermination practices of Nazi Germany.
In April 1987, Saddam Hussein decided to punish the Kurds, these people of the ''Land of Insolence,'' for their uprising during his war with Iran. Three thousand Kurdish villages were razed and half a million Kurds deported to detention camps. Nevertheless, the Kurdish militias continued to win more territory. By March 1988, Mr. Hussein feared that unless stopped, the Kurds could threaten his own position. On the 17th he bombarded the town of Halabja with chemical weapons; 6,350 died. Despite international protests he continued his use of chemical weapons with impunity.
In early June the British foreign secretary called for automatic international investigation whenever a state was accused of using chemical weapons. In August Britain pushed for a U.N. Security Council resolution condemning their use against the Kurds and, more important, demanding ''appropriate and effective'' measures if they were used again. They were used again -- 48 hours later. The Security Council sat on its hands.
Shortly after, the British doubled their export-credit facility to Iraq. In the U.S. Senate a proposed bill imposing mandatory economic sanctions against Iraq failed under the pressure of the farm lobby, which wanted the continuation of agricultural credits for the lucrative Iraqi market. It was as if the Geneva Protocol had never been signed.
What about the Genocide Convention? That was even fresher on the statute book. The U.S. Congress ratified it only in November 1988, 40 years after President Truman had signed it.
No other issue could have been a more suitable test of its writ. The convention defined genocide as the ''intent to destroy, in whole or in part, a national, ethnic, racial or religious group.'' With the decimation of 3,000 of the 4,000 villages of Kurdistan and the use of poison gas, there is not much doubt that, if any government among the 98 signatories of the convention had been brave enough to bring a case, a finding against Iraq would have been inevitable.
But no one wanted to risk trade links, or -- at that time -- relationships with the Arabian Gulf countries.
What's the excuse now? There can't be one. This must be the moment to move.
I don't think this means the allies going to war with Mr. Hussein again -- although the allies should order their air forces to make an immediate drop of food and medicine on the beleaguered Kurdish sanctuaries. Mr. Bush was right to call it a day when he did, General Schwarzkopf's musings notwithstanding.
But the massacre of the Kurds should lead to a Security Council ruling that economic and military sanctions will continue to be enforced until Iraq pledges to give real autonomy to the Kurds, and pays them reparations for the devastating damage he's inflicted upon them. This will be in addition to the present U.N. conditions for lifting sanctions -- the destruction of chemical and biological weapons, the surrender of weapons-grade nuclear material to the International Atomic Energy Agency, the acceptance of the 1963 border with Kuwait and the payment of compensation to Kuwait.
And, we might ask, why did the allies drop Margaret Thatcher's idea of a War Crimes Tribunal? Now, surely, must be the time to resuscitate it.
Too much? Not at all. This is how the world must be from now on. Respect for the law by all, and punishment for crimes by decision of the Security Council.
Jonathan Power writes a column on the Third World.