AT WAR
Iraq and International Law
America has every legal right to oust Saddam.
The effort to disarm Iraq has reached its final stage. Hans Blix had no need to "presume" anything. The evidence in his report proves beyond doubt Iraq's noncompliance with Security Council Resolution 1441. He specified several violations. And his overall conclusion amounts not just to an indictment, but to a finding of guilt: "Iraq appears not to have come to genuine acceptance--not even today--of the disarmament which was demanded of it."
We must now consider whether Saddam Hussein's continued violations provide adequate legal and moral support for military enforcement without further Security Council action.
President Bush is committed to disarm Iraq, by force if necessary. He continues, though, to seek the Council's approval and the broadest possible international support. He may yet succeed in securing a new resolution authorizing military enforcement, as member states weigh the findings of inspectors, intelligence information soon to be released, and the likelihood that the only possible way of disarming Iraq peacefully is for the world to insist on it collectively.
It is wrong to conclude, however, that military action against Iraq would be unlawful if the Council fails to act. Resolution 1441, especially considered in the light of prior resolutions, can properly be read to confer authority to use force. The following provisions--for which Ambassador John D. Negroponte battled mightily--strongly support action against Iraq to enforce the Council's resolution:
• The Council has repeatedly found that Iraq's conduct poses a threat to international peace and security, and in adopting 1441 it acted again under Chapter VII of the U.N. Charter, authorizing it to deal with such threats.
• The Council in 1441 "deplored" Iraq's failure to comply with its commitment to stop supporting terrorism, to end repression of its population, to provide access to humanitarian organizations, to account for Kuwaiti prisoners wrongfully detained, and to return Kuwaiti property wrongfully seized.
• The Council decided that "Iraq has been and remains in material breach of its obligations under relevant resolutions," and that Resolution 1441 was "a final opportunity to comply."
• It announced its determination to "secure full compliance" and recalled that it "has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations."
• The preamble recalls Resolution 678 (1990) in which member states were authorized "to use all necessary means to uphold and implement" Resolution 660, ordering Iraq to leave Kuwait "and all relevant resolutions subsequent" and to "restore international peace and security to the area." Former Secretary of State George P. Shultz, among others, considers the Council's prior actions "a strong foundation . . . for immediate military action against [Saddam]."
• The Council specifically recalled, in fact, "that in its Resolution 687 (1991) the Council declared that a cease-fire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein," most notably to disarm.
The Council no doubt contemplated its continued involvement; but nowhere does 1441 require further Council action as a prerequisite to enforcement. The Council also anticipated that the substantial inspection regime it established would be allowed to proceed long enough to permit reasonable conclusions. But that process has already established Iraq's defiance.
In addition to relying on 1441, Mr. Bush has made clear that he is relying on America's right to defend itself and its allies from the Iraqi threat. His position is legally and morally sound. International lawyers have proposed formidable obstacles to the use of force in self-defense. In particular, while Article 51 of the U.N. Charter provides that "nothing" in the Charter "shall impair the inherent" right of self-defense, international lawyers claim that the language of that very provision limits self-defense to actual "attacks" on the territory of the U.S. The U.S. has never accepted this proposition.
Nor is it historically valid or reasonable to claim that pre-emptive self-defense may be undertaken only when, in Secretary of State Daniel Webster's 1842 statement, the need is "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." That exacting standard is valid, if anywhere, only where the action considered is to be undertaken in the territory of a state that is not responsible for the threat involved, and that is both able and willing to suppress it. Webster insisted in the famous "Caroline" incident that Britain had no right to attack a vessel in U.S. territory absent an imminent and unavoidable emergency, because the U.S. was at peace with Britain and was both able and willing to perform its international responsibility of protecting Canada from U.S.-based attacks. President Bush in fact followed this strict standard when he offered the Taliban regime the opportunity to stop al Qaeda's attacks before using U.S. forces to do so.
The standard by which actions in self-defense have historically been judged is whether they are necessary in the circumstances. This evaluation begins with the fact that Iraq is itself the problem and cannot be relied on to surrender its weapons and dangerous substances. The threat posed is substantial: Iraq will use or threaten to use its illegal weapons, or it will give them to terrorists willing to attack the U.S. or its allies. The likelihood that this threat will be realized is reflected in Saddam's openly stated goals (to re-create an "Arab Nation" throughout the Gulf area with Baghdad as its capital); his prior aggressions (against Iran, Kuwait, Saudi Arabia and Israel); his support for terrorism (Abu Nidal and al Qaeda) and for a terrorist assault on former President Bush; and his willingness to engage in horrendous violations of the laws of war and of human rights (chemical weapons, massive environmental damage, torturing and murdering civilians, etc.). It is also clear at this point that every option short of force has been tried to convince Saddam to disarm.
The notion that a threat must be "imminent" before it can be pre-empted is valid in the context for which Webster wrote. Where the state on whose territory the threat exists is able and willing to perform its duty to suppress threats, pre-emptive acts are necessary only when the threat is imminent. Otherwise, the state responsible to deal with the threat must be called upon to do so. Where, however, the threat stems from another state or a territory in which the government is unable or unwilling to perform its duty to suppress it, the requirement that an attack be "imminent" is less significant; it is enough to establish necessity in such a context if the threat is grave, highly likely to be realized, and unavoidable by any means short of force. Furthermore, one cannot rationally apply a standard meant for regular forces that signal their activities and use conventional weapons to situations in which nonconventional weapons may be used by terrorists acting secretly.
Ultimately, the claim is made that unilateral decisions to use force are unjustifiable, because they are too likely to be dishonest and subjective. Leaders of states are certainly known to deceive others, even themselves. But that legitimate concern has no weight here. The decisions, the findings, the judgments concerning Saddam's evil deeds and Iraq's material breaches, have all been made multilaterally, by the Council. The U.S cannot be said to be acting to serve its own narrow interests, or planning to deprive Iraq of its sovereignty, or pursuing purposes inconsistent with the Charter. Rather, the status and strength of international law would suffer, not benefit, if read to treat as illegal the enforcement of U.N. resolutions against a leader who has repeatedly violated the Charter, and who poses a continuing threat to peace and security.
Mr Sofaer, a senior fellow at the Hoover Institution, was legal adviser at the State Department from 1985-90.
