Attacking Iraq is Not Just a Controversial
Idea. It's Also Illegal
Bush’s Pre-Emptive Intervention Doctrine Violates the U.N. Charter
Bush’s Pre-Emptive Intervention Doctrine Violates the U.N. Charter
By Ved Nanda – Global Beat Syndicate
Brisbane, Australia – In contrast to widespread U.S. support for a military attack to oust Iraqi leader Saddam Hussein, the prevailing mood among legal experts at their international conference here in Brisbane was one of skepticism and opposition.
Surprisingly, not a single voice among these fine legal minds couched their arguments in legal terms.
Among the nearly 500 lawyers, judges, and law professors attending from 40 countries – three-fourths of them from Europe – the only support for the proposed attack on Iraq came from Australians and a few British. The many skeptics questioned whether Saddam actually poses the "terrible threat" President Bush is claiming as justification for a preemptive strike.
But they voiced their opposition on pragmatic – not legal – grounds, asking how long and costly the war would be, and wondering how many civilian casualties would be acceptable. Some asked who would succeed Saddam, and who would ensure that the region is not destabilized by his absence. Others questioned how long the United States would be willing to occupy Iraq, and whether it might be wiser to contain and deter Saddam, as the West’s contained and deterred the Soviet Union.
But no one seemed to question President Bush’s new doctrine of preemptive intervention.
That doctrine, first announced during the president’s West Point graduation address in May, says the United States will take preemptive action, including the use of military force, against any country that possesses weapons of mass destruction and presents a threat to the United States. "America must act against the terrible threats before they’re fully formed," Mr. Bush said.
But this new doctrine violates international law. It goes well beyond the justified use of force specified in Article 51 of the U.S. Charter, which says a country facing armed attack, such as Kuwait in 1990, is entitled to fight in self-defense, and that other countries may assist due to the "collective self-defense" clause. But barring this scenario, legal use of military force is vested only in the U.N. Security Council, which may take action to maintain or restore international peace and security. Otherwise, the use of military force is prohibited under international law.
Only as a last resort can the case be made for using force preemptively for self-defense – and only when the threat is imminent and no alternative is available. Thus, in 1956 the United States opposed the use of force against Egypt by Britain, France and Israel on the ground that such action in the Suez Canal was unjustifiable under international law. When Israel struck first in the 1967 War, and when it bombed an Iraqi nuclear reactor in 1981, legal experts accused Israel of violating Charter Article 51.
In all cases related to preemptive attacks, the key questions focus on the immediacy and nature of the threat, and whether other alternatives such as diplomacy and economic sanctions are possible instead.
The issue now is how to adapt these rules to meet the menace of non-state terrorists. The dangers posed by al-Qaeda and other terrorist groups add a new factor to the equation. But it would be folly to abandon rules mandating constraints on unilateral use of force to meet these challenges. The rules have enough flexibility to ensure national territorial security, and they provide a framework under which the U.N. Security Council can authorize the use of force.
States can only use force in self defense, and only when their actions meet two criteria: they are necessary due to immediate threat and lack of alternatives, and the response is proportionate. Otherwise, we run the risk of creating global anarchy.
Iraq and the world will undoubtedly be better off without Saddam Hussein. He used chemical weapons against the Kurds in his own country and also against Iran, and the Bush administration fears that he may give weapons of mass destruction to terrorists. But he also has a strong survival instinct, which explains why he avoided using these weapons in the 1990-91 Gulf War.
President Bush and his advisers have not made a convincing case that the threat to America is imminent and that the use of force is necessary as a last resort. Without a fresh U.N. mandate, the United States is not justified – or legal – in using force against Iraq.
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Ved P. Nanda is professor of international law and vice provost for internationalization at the University of Denver.