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War with Iraq is Not Bush’s Decision

by Richard Falk And David Krieger

It took the public expression of doubts by Brent Scowcroft, a former national security adviser to presidents Gerald Ford and George Bush, to initiate finally a national debate on the merits of preemptive war against Iraq. Before Scowcroft spoke out it was nearly impossible to be heard above the drumbeats of war being orchestrated from the White House. Scowcroft was careful to couch his criticism in ultra-pragmatic terms relating to the dangers of undertaking such a war at this time and its likely diversion of energy from what he rightly depicts as America’s number one security priority, the continuing challenge posed by al-Qaida. Persuasively, also, Scowcroft downplays the regional threat posed by Saddam Hussein, and is highly skeptical about Iraq’s purported links to Sept. 11 or to terrorism generally. Scowcroft relies for political closure on an American call for a renewal of inspections, this time on an unrestricted (anytime, anywhere, no permission required) basis. If refused by Iraq, then Scowcroft appears to accept the logic of preemptive war.

This diminishes greatly the overall force of his argument, and provides the Bush planners with a way to shore up their support, especially in Washington-namely, by insisting on unrestricted inspection arrangements with such a wide ranging intrusion on Iraqi sovereign rights that Baghdad would have no choice but to refuse.

Scowcroft’s doubts have been echoed by other Republican stalwarts, including House Majority Leader Dick Armey.

Most unexpectedly, it is from Armey that we hear for the first time objections to launching a preemptive war against Iraq based on international law. The highly conservative Congressional leader asserted that an attack on Iraq would violate international law and would not be consistent with what we have been as a nation or what we should be as a nation.

This is such an obvious reality that it is an extraordinary commentary on the passivity of the Democratic Party that such a principled concern about Bush’s war talk had to wait upon the words of a leading Republican lawmaker.

Finally, with such rumblings coming from prominent and conservative members of his own party, President Bush could no longer turn a blind eye to doubts and criticisms directed at his plans for preemptive war against Iraq.

He even acknowledged that skepticism was coming from some very intelligent people, promised to consult, and called these dissenting voices part of a healthy debate.

Unilateralist ways

But in the same breath, the president resumed his unconstitutional and unilateralist ways by saying, “But America needs to know, I’ll be making up my mind based upon the latest intelligence and how best to protect our own country plus our friends and allies.”

Doesn’t Bush realize that the U.S. Constitution does not vest war-making powers in the office of the presidency? Doesn’t he realize the founders deliberately, with the greatest care, placed a decision of such gravity in the hands of the Congress?

And even if this condition were to be satisfied, formidable legal obstacles to war would still remain. It would still be constitutionally necessary for the United States to show respect for validly ratified international treaties, including the United Nations Charter.

It does not seem to us possible, given these considerations, to launch a preemptive war against Iraq without violating both the U.S. Constitution and international law.

Although we welcome and agree with the pragmatists who warn about the dire consequences that would likely follow upon initiating war against Iraq, we side with the principled opponents of war against Iraq, relying not only on international law, including the U.N. Charter, but also on the moral and religious guidelines contained in the just war doctrine.

Guilty of aggressive war

From these perspectives, under present conditions, it is clear that if the United States goes ahead and wages war against Iraq it will be guilty of what international lawyers call aggressive war, which was one of the principal charges leveled against surviving Axis leaders at the Nuremberg and Tokyo war crimes tribunals after World War II.

The main argument put forward by the Bush administration for the war is that the United States cannot stand aside while a brutal and expansionist Iraqi regime is acquiring nuclear and other weaponry of mass destruction.

Iraq, their argument continues, would then be in a position to transfer such weaponry to al-Qaida and other terrorist groups, as well as threaten Israel and the Gulf countries, which hold a large share of the world’s oil reserves.

As Scowcroft and others have pointed out, however, Saddam Hussein, for all his evils, has not had a record of cooperating with terrorist groups, much less al-Qaida.

It would be clear to Saddam Hussein that any provocative action would lead to the annihilation of Iraq as well as his personal destruction. Baghdad has been deterred over the course of the last decade, and there is every sound reason to think that deterrence and containment will work in the years ahead.

Unlike Iraq, al-Qaida cannot be deterred by threats of retaliatory force since it has no territorial base. The U.S. government should give its highest priority to guarding against al-Qaida gaining possession of weapons of mass destruction. Unfortunately, in this regard, the United States is failing to provide adequate support to assuring the control of the Russian nuclear arsenal.

Going to war against Iraq would produce the one set of conditions in which Saddam Hussein, faced with certain death and the destruction of his country, would have the greatest incentive to strike back with any means at his disposal. These would include the arming of al-Qaida or the launching of such weapons as Saddam Hussein possesses against U.S. troops and Israel.

Several constructive alternatives to war exist that are both consistent with international law and strongly preferred by America’s most trusted allies, and at the same time address those security concerns about future Iraqi behavior that seem valid.

These include the resumption of responsible weapons inspections under U.N. auspices combined with multilateral diplomacy and a continued reliance on non-nuclear deterrence. By responsible weapons inspections we mean those that an international inspectorate deems necessary to achieve confidence that weapons of mass destruction are not possessed or being developed by Iraq.

This approach is very different from the Scowcroft “anytime, anywhere” image of an acceptable inspection capability, which would almost certainly be rejected by Iraq, thereby reopening the door to the initiation of war that would still be unwarranted, imprudent and illegal.

In contrast, the resumption of responsible inspections could also lead to an improving diplomatic atmosphere, especially if coupled with ending the sanctions that have had such a cruel impact on Iraqi civilian society for more than a decade and the ending of frequent U.S. and British bombing missions in the no-fly zones in northern and southern Iraq. Diplomacy and international inspections successfully addressed comparable concerns about North Korea’s pursuit of a nuclear weapons capability.

Principle and prudence

It is time for the public debate on Iraq policy to raise these issues of principle and prudence, and to recognize that American leadership in the world will be much more respected, and in the end effective, if it does everything in its power to avoid war, and to strengthen the role of international law, including its insistence that international disputes be settled by peaceful means.

It has never been more crucial for American citizens and our friends abroad to raise their voices for peace and to resist the counsels of war.

Richard Falk, professor emeritus of international law and policy at Princeton University, is board chair of the Nuclear Age Peace Foundation. David Krieger is president of the Nuclear Age Peace Foundation. He can be contacted at dkrieger@napf.org.

 

Richard Falk is an American professor Emeritus of International Law at Princeton University. He just completed a six-year term as United Nations Special Rapporteur on Palestinian human rights. Falk is an associate at the Transnational Foundation for Future Research, where this essay originally appeared. 

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