Must the U.S. Break Rules To Enforce Them?

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Posted by AssyriansVote4Peace from ( on Saturday, October 12, 2002 at 0:48AM :

Listening to President Bush speak these days, one gets the distinct impression that, to him at least, international law is for wimps. The push by the administration to intervene militarily in Iraq to overthrow Saddam Hussein is wrapped in the sheerest of legal gauze. Although Bush said on September 27th that he was willing to "give peace a chance" and support a tough new UN Security Council resolution that would allow weapons inspectors to do their job, it is clear that his heart is not in it. He has said repeatedly that if the UN fails to pass a satisfactory resolution or hesitates to enforce it, the U.S. will go it alone. Thousands of soldiers and tons of war materiel are being moved to the region in anticipation of an attack.

The Bush administration claims that disarming and overthrowing Saddam is necessary to defend the safety of the United States and its allies. Although he has not explicitly referred to it, this implies that action is justified under Article 51 of the UN Charter. But Article 51, at least on paper, only applies when a country has been attacked. It reads: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations..."

This is not to say that preemptive strikes have never been tolerated. UN members recognize that the bar set by Article 51 is too high, and have been flexible in applying it. In the Caroline case, argued in the 1830s, Daniel Webster criticized a British preemptive strike on a Canadian vessel moored in America. He set what has become the standard, stating: "It will be for that Government to show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation." Implicitly applying that standard, the international community has excused Israel twice for using force in violation of Article 51--once to rescue hostages in Uganda and once to launch a preemptive strike against Arab states in 1967. Note that Israel's invasion of Lebanon in 1982 and its current operations in the West Bank received no such sanction, even though the threat to its territory was high.

No one in the White House is suggesting that Iraq is in the process of launching an attack against the U.S. or its allies--only that it is developing the capability to deliver weapons of mass destruction in the near future. But the threat assessment varies considerably in the region. Saudi Arabia, a state once in Saddam's cross-hairs, has expressed opposition to Bush's war plans. Only Kuwait and Israel believe Iraq is an immediate threat.

In the U.S., both realists and liberals question the urgency of the danger. Senator Russ Feingold (D-WI) challenged the administration on the same day Bush spoke about giving peace chance, asking: "Is it a link between the Iraqi government and Al Qaeda or is it Iraq's pursuit of weapons of mass destruction? There is insufficient evidence to support the first charge but the administration keeps using it. Why? Are they trying to gloss over the real possibility that this focus on Iraq...will indeed do harm to the global campaign against terrorism?" John Mearsheimer, a respected realist from the University of Chicago, argued in a recent New Yorker article that Iraq is not an immediate threat to the U.S. and that attacking it will undermine the more important war against Al Qaeda.

As it stands, even a very generous interpretation of Article 51 does not justify an incursion into Iraq. Likewise, none of the UN resolutions authorizes the overthrow of the Iraqi regime as a consequence for its failure to disarm. This stems from the fact that national sovereignty and the special status of heads of state are founding principles of the United Nations and all international law. So far, only aggression and refusal to accept an adverse election result (combined with genocide or widespread human rights abuse) have warranted international intervention to remove a head of state from office. For example, the U.S. intervention in Panama in 1989 to oust Manuel Noriega was condemned by the United Nations as unwarranted and a violation of sovereignty. At this point, only the removal of fascist and Nazi regimes in Italy, Germany, and Japan in World War II, and military intervention to remove the Duvalier regime in Haiti in the early-1990s have received formal international approval.

Imagine the precedent the Iraqi action would create if it were accepted as legitimate. The international community would be justified (obligated to?) in intervening militarily to overthrow any government that has tried to develop weapons of mass destruction. This would have to include India, Pakistan, Israel, and North Korea to start with, lest the international system be charged with partiality. Any attempt to say that Iraq is uniquely qualified because of its past aggression and thus deserves special treatment would probably fail given the recent actions of the states listed above (all are under condemnation from past UN resolutions, by the way--some going back to 1947!).

One has the sense from the Bush officials that they simply don't understand that international law is about long-term relationships, not short-term expediency. They treat international rules as a mere cover for a priori plans, without regard for their future application or historical origins. Their attitude betrays both ignorance and cynicism, not to mention a dangerous nearsightedness. As frustrating as it might be, the U.S. must either work to change international rules or wait until Iraq presents a more immediate threat. Preemption at this stage is simply not justified and would undermine the very principles of order and justice the administration claims to be fighting for.

(Dr. Kendall Stiles <> is an associate professor of political science at Loyola University Chicago, where his teaching and research focuses on international politics, international organization and law, and international political economy.)

-- AssyriansVote4Peace
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