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CounterPunch
August
24, 2002
Bush's
War Against Iraq Would Violate Constitution
No War Against Iraq
by Richard Falk and
David Krieger
The Bush administration's apparent resolve to
wage war against Iraq, tempered for the moment by conservative
critics, violates the spirit and letter of the US Constitution,
as well as disregards the prohibitions on the use of force that
are set forth in the UN Charter and accepted as binding rules
of international law. Article 2(4) of the UN Charter states:
"All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity
or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations."
Nothing in Iraq's current behavior would
justify a preemptive attack against Iraq based upon self-defense
as set forth in Article 51 of the Charter. Even Henry Kissinger
has stated, "The notion of justified pre-emption runs counter
to modern international law, which sanctions the use of force
in self-defense only against actual not potential threats."
 The proposed war would also have dangerous, destabilizing
and unpredictable consequences for the region and the world,
and would likely bring turmoil to the world oil and financial
markets. While certainly not endorsing the current repressive
governments in Egypt and Saudi Arabia, a war against Iraq could
likely produce militantly anti-American governments in these
countries that would intensify the existing dangers of global
terrorism.
We oppose on principle and for reasons
of prudence, the acquisition of weapons of mass destruction,
especially nuclear weapons, by any country, including, of course,
Iraq. Our position is one of support for the Non-Proliferation
Treaty as a temporary expedient, while a good faith effort is
being made to achieve the overall abolition of nuclear weapons
through a disarmament treaty with reliable safeguards against
cheating. At the 2000 Review Conference of the Non-Proliferation
Treaty, the nuclear weapons states made an "unequivocal
undertaking...to accomplish the total elimination of their nuclear
arsenals." Unfortunately, they have not taken this or other
promises for nuclear disarmament seriously and, at present, no
effort to achieve nuclear disarmament is being made. US policy
under the Bush administration has been particularly egregious
in obstructing movement toward eliminating nuclear arsenals.
At the same time, the acquisition of
nuclear weaponry, prohibited to Iraq by Security Council resolution,
is not itself an occasion for justifiable war. After all, the
United States, along with at least seven other countries, possesses
and continues to develop such weaponry. There are good reasons
for supposing that Iraq can be deterred from ever using such
weapons, or from transferring them to al Qaeda or other terrorist
groups. The government of Iraq, notwithstanding its record of
brutality and regional aggression, has shown a consistent willingness
to back down in the face of overwhelming force, as it did in
the Gulf War and during the subsequent decade. As well, Iraq
has had a general posture of antagonism toward political Islam,
and as a radical secular state is a target of al Qaeda rather
than an ally. The alleged prospect of a transfer of weapons of
mass destruction by Baghdad to those engaged in global terrorism
is either an embarrassing display of ignorance about the politics
of the Islamic world or it represents an attempt to arouse the
fears of Americans to win support for war.
It is necessary to take seriously the
possibility that al Qaeda operatives could gain access to weaponry
of mass destruction, and would have little hesitation about using
it against American targets. Unlike Iraq, al Qaeda cannot be
deterred by threats of retaliatory force. Its absence of a territorial
base, visionary worldview, and suicidal foot soldiers disclose
a political disposition that would seek by any means to inflict
maximum harm. The US government should be devoting far more attention
and resources to reducing these risks, especially with respect
to the rather loose control of nuclear materials in Russia. Going
to war against Iraq is likely to accentuate, rather than reduce,
these dire risks. It would produce the one set of conditions
in which Saddam Hussein, faced with the certain death and the
destruction of his country, would have the greatest incentive
to strike back with any means at his disposal, including the
arming of al Qaeda.
The recent hearings of the Senate Foreign
Relations Committee did not provide an occasion for public debate,
as the witnesses called accepted as legitimate the goal of a
regime change for Iraq, disagreeing only with respect to the
costs and feasibility of a war strategy. No principled criticism
of the strategy itself was voiced, and thus the hearings are
better understood as building a consensus in favor of war than
of exploring doubts about the war option. As well, it is regrettable
that the hearings paid no attention to the widely criticized
punitive sanctions that have had such harsh consequences on Iraqi
civilians for more than a decade. The hearings also failed even
to raise the critical Constitutional issue of authority to wage
war, which vests in the Congress and not with the President,
and requires a casus belli as defined by international law.
Granting the concerns of the US government
that Saddam Hussein possesses or may obtain weapons of mass destruction,
there are available alternatives to war that are consistent with
international law and are strongly preferred by America's most
trusted allies. These include the resumption of weapons inspections
under United Nations auspices combined with multilateral diplomacy
and a continued reliance on non-nuclear deterrence. This kind
of approach has proved effective over the years in addressing
comparable concerns about North Korea's pursuit of a nuclear
weapons capability.
We are encouraged by the reported practical
objections to the proposed war by important US establishment
figures and most US allies. Personally, and on behalf of the
Nuclear Age Peace Foundation, we urge the American people to
exercise their responsibilities as citizens to join in raising
their voices in opposition to waging war against Iraq, not only
because of its high risks of failure and blowback, but on principled
grounds that this country upholds international law and respects
the constraints of its own Constitution, and is respectful of
world public opinion and of the United Nations framework dedicated
to the prevention of war.
Richard Falk,
Professor Emeritus of International Law and Policy at Princeton
University, is 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.
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August 24
/ 25, 2002
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