War Against Iraq Illegal #2

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Posted by andreas from p3EE3C39F.dip.t-dialin.net ( on Thursday, September 12, 2002 at 1:13AM :

Guerilla News Network

No War Against Iraq

Richard Falk and David Krieger,
August 27, 2002

In today's New York Times, Nicholas Kristof provides an excellent list of
five "practical" reasons why invading Iraq might not be a such good idea:
1) Can we overthrow Saddam swiftly and at a reasonable cost in lives? 2)
Will an invasion trigger chemical attacks instead of preventing them? 3) Do
we have a plan for a post-Saddam Iraq? 4) Is the Iraqi desert the best
place to spend $55 billion? 5) Will a war on Iraq set back the war on

Below, international law experts Richard Falk and David Krieger expand on
why it would be illegal:

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 U.S. 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.

The Bush administration has been particularly egregious in obstructing
movement toward eliminating nuclear arsenals.

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. U.S. 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 U.S. 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 U.S. 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

We are encouraged by the reported practical objections to the proposed war
by important U.S. establishment figures and most U.S. 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
(www.wagingpeace.org). David Krieger is President of the Nuclear Age Peace

-- andreas
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