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Opposition to War Against Iraq



Richard Falk

Professor of International Law and Practise, Princeton University

TFF associate

September 20, 2002

Now that President Bush has put the argument for preemptive war against Iraq before the United Nations as the centerpiece of the war against terrorism, it becomes a matter on national urgency to consider the merits and drawbacks of this position. I believe that threatening a preemptive war against Iraq represents a momentous failure of American foreign policy, whether considered from the perspective of international law, international morality, or national interest, and so does the rest of the world, including many of America's closest allies. The evident insistence on initiating such a war in the face of this international opposition would likely lead to further anti-Americanism overseas and might even ignite a grassroots revolt against US unilateralism. It may still not be too late, but if this slide toward a disastrous war is to be averted, the American people must become quickly aroused and vocal in their opposition before it gets underway.

So far, the domestic debate on the war has barely touched on the core issues. In June after months of passivity, the Senate Foreign Relations Committee, despite a Democratic chair, Senator Joe Biden, finally organized hearings deferential to the president that accepted as a premises the desirability of regime change for Iraq, and confined inquiry to matters of feasibility and costs. No genuine critics of the war policy were invited to participate in these hearings that were falsely advertised as a "national debate." This cost/benefit appraisal made no dent on the public mood. Skepticism toward the war was then lifted to a higher level of public awareness when such national security stalwarts as Brent Scowcroft, Henry Kissinger, Lawrence Eagleburger, and James Baker voiced some pragmatic doubts about the approach to Iraq being taken by the Bush White House. In response, the Bush pro-war leadership, with Dick Cheney and Donald Rumsfeld out in front, suavely seconded by Colin Powell, outlined as forcefully as possible the administration argument for unleashing a preemptive war against Iraq. And then on September 12th, in the immediate aftermath of the Ground Zero anniversary observances, President Bush articulated a modified approach toward Iraq in a major speech to the UN General Assembly. Its essence was to insist that Iraq be made by the Security Council to obey resolutions calling for the destruction of all facilities relating to weaponry of mass destruction via the renewal of unrestricted inspection. In the likely event that Iraq resists or the UN fails to act, then the US would seize the option to wage war.

There are several glaring weaknesses in this presentation of Iraq policy, both by the Bush administration and its mainstream critics. First of all, it has excluded consideration of the relevance of international law, as well as the exclusive authority of the United Nations when it comes to waging a non-defensive war. Secondly, it avoids altogether the manifestly unconstitutional claim that the president has the legal power to initiate such a war without formal Congressional authorization. Thirdly, it puts forward a series of "facts" about Iraq's behavior that magnifies any threat it poses out of all proportion to the realities, while calling for a preemptive war that could have dire regional and global consequences.

Throught the prior century there was a concerted effort by the major countries of the world to put legal limits on the discretion of states to wage war. The United States participated fully in these efforts, which reached their climax in relation to the establishment of the United Nations. The key commitment of the UN Charter, as expressed in Article 2(4) is the obligation to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." There are two lines of exception to this blanket prohibition, the most important being the right of a state to act in self-defense. But the Charter restricts this right carefully by affirming in Article 51 that action in self-defense is only permissible in response to a prior armed attack, and even then, only provisionally, with final authority to use defensive force vested in the UN Security Council.

But it is admittedly important not to be trapped by legalism, through adopting an overly rigid reading of international law that imposes on a state unreasonable degrees of vulnerability affecting its basic security. For instance, I believed that international law was properly stretched to view Afghanistan as subject to an American claim of self-defense despite the indications that September 11 was the work of al-Qaeda, and the link between the two was not convincingly set forth. Nevertheless, it would have been unreasonable, given the nature of the Taliban regime and the continuing megaterrorist threat directed at the United States, to refrain from acting in self-defense. Law grows in response to necessity, as confirmed by public opinion. In my view, what was legally, morally, and politically justifiable with respect to Afghanistan is completely unacceptable in relation to Iraq.

It is here that the factual contentions of the US Government must be considered alongside the legal rules governing recourse to war. The essential Bush argument is that Iraq is acquiring weaponry of mass destruction including nuclear weaponry, that its past behavior suggests that it will likely use such weaponry against American targets or transfer the weaponry to terrorist groups that will strike, and that therefore to avoid such catastrophic harm it is necessary to act in anticipation. The evidence as to acquisition is skimpy and speculative, at best, with most assessments suggesting that Iraq would lack any capacity to produce nuclear weapons for five years or more, and would then possess only a nominal capability. Furthermore, the contention that Iraq would threaten or use such weapons, and especially against the United States, completely fails any test of credibility.

Administration officials brand Iraq as an aggressor state on the basis of its two wars with neighbors, Iran in 1980, and Kuwait in 1990. It should be recalled that revolutionary Iran was acting very provocatively toward secular Iraq, and that Baghdad's recourse to war was tactically and diplomatically encouraged by the United States, which helps explains why the UN failed to condemn Iraq's aggressive moves at the time. It should also be remembered that the first Bush president supported military assistance to Iraq long after it used chemical weapons in the late 1980s against the Kurdish village of Halabja and in the last bloody stages of the war with Iran. It is also important to recall is that the American ambassador to Iraq in 1990 sent extremely mixed signals to Saddam Hussein just prior to the Iraqi invasion of Kuwait, seeming to suggest that the future of Kuwait was a regional matter of no strategic concern to Washington. None of this is meant to excuse Iraq or Saddam Hussein, but to demonstrate that there is no basis in Iraq's past behavior to brand it as a reckless aggressor state, much less driven by a visionary terrorist worldview, and thus no reason to lose confidence in the capacity to contain and deter Saddam Hussein in the future.

More important than this background on the American relationship with Iraq up to the Gulf War, is a look at Iraq's behavior. Its dictatorial leadership is brutal and unprincipled, without question, but in its international relations it acts as a secular state, calculating its actions against probable costs, adjusting to miscalculations in a rational, self-serving manner. It accepted a stalemate with Iran after nine years of warfare without fighting on; it withdrew from Kuwait in the face of the US-led coalition's military superiority, and faced with defeat, it accepted the terms of a humiliating ceasefire, the most punitive peace arrangement since the burdens imposed on Germany after World War I, which were later widely blamed for fueling the rise of political extremism under the ultra-nationalist leadership of Hitler. Iraq has been careful for more than a decade not to be linked to international terrorist activities, and not to give the US grounds for attacking. In fact, so far as al Qaeda is concerned, the indications to date are that there has been enmity rather than solidarity, as Iraq's regime has a record of suppressing Islamic activities, and is ironically regarded by Islamic forces as an example of a decadent secular state in the Western style.

Let us also consider Iraq's capabilities. Contrary to strategic expectations at the time, Iraq in 1980 was unable to defeat Iran in their long war despite the fact that Iran was in the midst of revolutionary turmoil that was thought to have dramatically degraded its military capabilities. In the Gulf War Iraq put up no resistance, and sustained severe damage to its overall industrial infrastructure from which it has never recovered. These military encounters suggest the impotence of Iraq as a regional offensive threat. This impotence has been reinforced since 1991 by the most punishing sanctions in history, by extensive destruction of Iraqi stocks of chemical and biological weapons under UN supervision, and by American threats of a devastating reaction in the face of any Iraqi provocation. Such a containment strategy has enjoyed great success throughout the past decade, and there is every reason to suppose that it would work even in the unlikely event that Iraq should acquire over the next several years some minimal nuclear weapons capability. It is ridiculous to treat that possibility as posing any sort of threat to the United States, or even to Iraq's neighbors. Nothing would more quickly bring about the utter destruction of Iraq than its threat or use of such weaponry, and it is obvious that even its clear acquisition would in all likelihood prompt a devastating American military reaction.

For Iraq, however imprudently, it is probably the case that such weapons are viewed as potentially valuable, but only for defensive purposes to stave off an attack. After all, Washington has give Iraq few options. Iraq has been under a constant threat of invasion, its territorial sovereignty repeatedly violated by US/UK air attacks in the so-called no-fly zones, and the United States, the most powerful country in the world, has made it a major tenet of its foreign policy to push for a regime change in Baghdad by every means available, whether legal or not. These include financing and arming exile groups, covert operations, rallying support at the UN and around the world for an invasion, sustaining cruel sanctions for over a decade, and periodic bombardment of Iraqi territory. In such circumstances, in a self-help international system, it is hardly surprising that Iraq would seek by the only means available to it, to deter an attack upon itself. Such efforts would seem consistent with the accepted idea that the prime obligation of a sovereign state, and its prevailing government, is to defend itself against foreign enemies. Also, for Washington to insist on a regime change in Baghdad is not an acceptable demand. Such an interventionary demand denies the people of Iraq their right of self-determination, which has become recognized in international law as the most fundamental of all human rights.

Waging a preemptive war against Iraq is extremely unwise. It would likely unleash all sorts of dangerous forces in the region and the world. It would, to begin with, create the one set of conditions in which Iraq under attack would be inclined to use the most destructive weaponry at its disposal or to allow the main enemies of the United States to gain access to such weaponry. All governments, including our own, believe that in a war involving survival, there are few restraints, if any, and that whatever can be done to hurt the enemy should be done. Certainly World War II was fought in this way by the Allied side, and yet because its outcome defeated fascism, it is generally viewed as the prime example of "a just war."

But there are other dangerous side-effects that should give pause to the war-makers in Washington: an Islamic coup in Pakistan leading to a regional war with India in which both sides have nuclear weapons; escalating oil prices triggering a world depression; civil strife in the Middle East, with anti-West regime changes in Saudi Arabia and Egypt; an inter-civilizational holy war between Islam and the West (which would amount to an unintended endorsement of Osama bin Laden's approach to world history!); and possibly most serious of all, a loss of international support for the struggle against the persisting al Qaeda threat, which should remain the overriding security concern of the White House.

The Bush leadership has so far failed to convince even sympathetic European leaders, with the partial exception of its British junior partner, that a war against Iraq is justifiable by reference to law or necessary in relation to the threat posed. It is important to contrast the American success in building support around the world for the Gulf War, and more recently, in relation to the war against Afghanistan, with its pronounced failure to gain international backing for a war against Iraq. To disrupt the al Qaeda network seems justifiable and necessary, given its visionary worldview and its genocidal tactics; such an adversary, fully prepared to pursue suicidal missions, cannot be deterred: since Afghanistan there is no longer any real target area, the struggle against terrorism is defined irrationally, and there is no way of discouraging further attacks except by destroying the capability to engage in terrorism. But to transpose such reasoning to Iraq is to confuse the issue. Unlike al Qaeda, Iraq can be deterred, and if not, is acutely vulnerable to retaliatory violence, and will remain so for as far ahead as it is possible to see. The case for preemptive war is without substance and should be abandoned.

In view of these considerations, an American recourse to war against Iraq would involve amount to undertaking an aggressive war. It would be an outlaw action likely to kill thousands of civilians, as well as risk the lives and jeopardize economic wellbeing of Americans and others. It is conceivable that under some set of future circumstances a convincing case for preemptive war could be made, but this is not it. To so rupture the Charter framework of legal constraints would amount to a great setback for world order in the 21st century. It would also be an affront to the United Nations pledge "to save succeeding generations from the scourge of war." If the White House defiantly goes ahead with its war plans, the United States would find itself cast in the role of being a menace to world order, an enemy of humanity, as well as being guilty of Crimes Against the Peace in a Nuremberg sense.

We are left with the question as to what should be done. There is the call by President Bush for full Iraqi compliance with UN resolutions relating to weapons of mass destruction and delivery vehicles, as verified by unrestricted inspection. There is the Iraqi demand, with wide regional and global support, for an end to sanctions. From Iraq's perspective, it is self-destructive to pursue a nuclear weapons option, just as from the US perspective it is self-destructive to pursue a preemptive war option. Both sides would serve their national interest, as well as the global interest, by backing off, allowing a revival of inspection under responsible UN auspices that generated international confidence without encroaching excessively on Iraqi sovereignty. Such a win/win solution would be a great victory for peace, for constructive diplomacy and a multilateral approach, and for the United Nations. It would also allow the United States to refocus on the real threat to security arising from al Qaeda's continuing dedication to its anti-American jihad.


© TFF & the author 2002  


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