Preempt Iraq: Necessity, law, and justice.

National Review Online ^ | December 16, 2002 | John F. Cullihan

[xsysmgr]

The days of Iraq acting as an outlaw state are coming to an end.
— President George W. Bush on October 10, 2002

President Bush's repeated vows to eliminate Iraq's banned weapons of mass destruction (WMD) — by forcible "regime change" if necessary — raise three sets of related issues best considered under the headings of necessity, law, and justice.

First, does Iraq in fact pose an intolerable threat — "a grave and gathering danger" to vital U.S. interests, regional security, and international order — that warrants possible U.S. military action? Second, is U.S. military action against Iraq permissible under relevant international law in the present circumstances? Third, would military action meet the requirements of the just-war tradition, the standard by which most Americans have long judged the morality of using force?

In each case, I suggest affirmative answers while considering how best to reconcile the demands of necessity, law, and justice by means of prudent statecraft.

EDITOR’S NOTE: This is the first of a five-part analysis of the legal and moral aspects of the confrontation with Iraq.

NECESSITY: A THREAT ASSESSMENT
Saddam Hussein's Iraq is a singular case.

Alone among nearly 190 U.N. member states, Iraq has repeatedly mounted WMD attacks against its neighbors and its own people, including the first-ever use of chemical nerve agents in both cases. Few if any states can begin to match its record of serial aggression and internal repression: Saddam's misrule is directly responsible for at least two million deaths and the self-exile of nearly one-fifth of Iraq's surviving population. No other state has ever been placed under a U.N.-mandated disarmament regime or had its entire economy forced into international receivership.

As a result of its own misdeeds, Iraq has rightly forfeited the normal advantages of sovereignty through the U.N.'s imposition of international arms inspections, comprehensive economic sanctions, and no-fly zones patrolled by U.S. and British warplanes. Iraq's relentless and ultimately successful defiance of these unprecedented measures is the mark of an international outlaw. This regime's growing menace is matched only by its proven recklessness and serial miscalculations, ranging from its attacks on its neighbors to its sponsorship of terrorism, including a direct attempt to murder a former U.S. president.

An accurate assessment of the Iraqi threat requires measuring its known capabilities, inferring its probable intentions and considering how the two relate. Any such assessment cannot be reduced to mathematical certainty; much necessarily remains unknown and unknowable, given Iraq's closed political system, the impenetrability of its tiny ruling elite, and the enforced absence of U.N. weapons inspectors for the past four years. But there can be no doubt that every previous assessment by international agencies, foreign intelligence services, and other experts has consistently underestimated the scale and sophistication of Iraq's WMD capabilities and, above all, its leadership's determination to maintain them at all costs.

To put Iraq's capabilities and intentions in proper perspective, consider these undisputed facts and unavoidable conclusions. First, since 1991 Iraq has continued to possess and develop banned weapons, notwithstanding the presence or absence of U.N. weapons inspectors. Second, containment has failed. All previous international efforts, ranging from unsuccessful inspections and collapsing economic sanctions to the limited use of military force, have plainly failed to disarm Iraq. Third, deterrence is unlikely to remain effective. Iraq indeed poses a "grave and growing danger" to vital U.S. interests, given its unremitting hostility, relentless WMD development, close links to terrorists, and — above all — Saddam's reckless history of serial aggression and strategic blundering that fully matches the menace of the means at his disposal.

1. IRAQ AND WMD: TWO SIDES OF THE SAME COIN
Iraq's ongoing WMD development is not a matter of dispute (see, for instance, the British government's authoritative September 24 dossier. As Defense Secretary Donald Rumsfeld recently put it: "Any country on the face of the earth with an active intelligence program knows Iraq has weapons of mass destruction." Yet senior Iraqi officials continue to prevaricate; and there is no reason to expect that the "currently accurate, full, and complete [WMD] declaration," required under U.N. Security Council Resolution 1441, will depart from this pattern.

What is more, all available evidence suggests that the current Iraqi regime and its unconventional arsenal are inseparable; one cannot be eliminated without eliminating the other. Hence President Bush's longstanding commitment to "regime change," which is simply the corollary of the Iraqi regime's incapacity to part with its WMD — and which in any case has been explicit U.S. policy since former President Clinton signed the 1998 Iraq Liberation Act.

Iraq's relentless pursuit of WMD capability has long been the regime's topmost priority, a vital matter of prestige and protection against external and internal enemies alike. According to the Monterey Institute's Center for Nonproliferation Studies, Iraq is estimated to have spent more than $10 billion for nuclear-weapons development alone. Iraq's total investment of talent and treasure in WMD (estimates range up to $40 billion) exceeds by orders of magnitude the comparable U.S. commitment to the Manhattan Project, even without taking into account the opportunity cost represented by twelve years of economic sanctions (conservative estimates begin at $100 billion) and (regrettably minimal) international opprobrium.

"Saddam Hussein is married to these weapons, which will make him a player of regional or even global significance," says former UNSCOM director Rolf Ekeus. "Without them, he is, at most, a regional thug." Adds Iraq's foremost dissident, Kanan Makiya: "Saddam cannot comply fully with the kind of demilitarization the U.S. is looking for because his weapons of mass destruction are the be-all and end-all of his regime — what he is all about."

Indeed, WMD 'R' Us.

2. COLLAPSE OF CONTAINMENT: INSPECTIONS AND SANCTIONS
Containment of Iraq continues to rest on the demonstrably false assumption of Iraqi cooperation in exchange for lifting the embargo. Resolution 687 (1991) attempted to disarm a relatively modern, industrialized state against its will under international auspices without imposing a military occupation, an unprecedented undertaking except for the League of Nations' equally failed effort to disarm Weimar Germany in similar circumstances after World War I. Saddam's deputy Tariq Aziz repeatedly reminded UNSCOM deputy Charles Duelfer: "You are not MacArthur. You did not occupy Iraq. Therefore, there are limits to what you can do."

UNSCOM's best efforts failed to disarm Iraq, thanks to Iraq's obstruction and its Security Council allies' deliberate sabotage. There are no grounds to expect better results from UNMOVIC, UNSCOM's deliberately dumbed-down successor, given its weaker leadership, lesser expertise, and more restrictive operating rules (see Kate O'Beirne's succinct analysis in the October 14 NR).

As with inspections, so too with sanctions. In theory Resolution 687 (1991) placed the entire Iraqi economy in receivership, with the Security Council controlling all imports and exports. In practice, however, Iraq retained control of both the supply and demand sides of the economic equation. On the one hand, Iraq manipulated the oil spigot to secure concessions aimed at undermining the embargo, while also bypassing U.N. controls altogether through smuggling, surcharges, kickbacks, and other illicit practices. On the other hand, Iraq controlled distribution of all imports, diverting and misallocating scarce resources for the benefit of the regime's power base at the expense of ordinary Iraqis.

Saddam's regime is wholly responsible for the undeniable suffering of Iraqi civilians mistakenly attributed to the sanctions regime. Their plight is entirely a matter of Saddam's perverse priorities. From August 1991 until December 1996 Iraq refused to participate in oil-for-food programs designed to meet urgent humanitarian needs. Since 1997 Iraq has purchased on average $6 billion in civilian goods; but its manipulation of this humanitarian program (including even re-export of foodstuffs for hard currency) has long been an unspeakably cynical — and unfortunately successful — exercise in maximizing internal suffering to generate external support and sympathy.

Similarly, the disintegrating sanctions regime has allowed Iraq to generate nearly $3 billion this year in illicit funds, which has coincided with a buying spree of arms and materiel. Consider this brief summary of some of Iraq's latest acquisitions from the November 24 Washington Post:

Antiaircraft missile training from Belarus. Radar units from Ukraine. Armored vehicles and tank engines from Bulgaria. Ammunition, explosives, rockets and lessons in missile technology from Serbia. And spare jet parts, missile technology and rocket propellants from Bosnia.

As President Bush has repeatedly warned, time is not on our side.

3. FAILURE OF DETERRENCE: EVIL INTENTIONS AND SERIAL BLUNDERING
What returns does Iraq expect from its massive WMD investment? How exactly is Saddam likely to use Iraq's unconventional arsenal? If Iraq cannot be contained, is deterrence nonetheless still possible? No less an authority than former president Clinton declared in 1998 that "some day, some way, I guarantee you, he'll use the arsenal."

Judging Iraq's intentions is necessarily harder than measuring its capabilities, but it is by no means impossible to draw some reasonable conclusions from the historical record without resorting to long-distance psychoanalysis. Consider only the regime's unremitting hostility toward the U.S., its long-standing support of international terrorism and Saddam's propensity for risk-taking and revenge.

First, so long as U.S. military power alone stands between Iraq and its ambitions of regional dominance, Iraq's enduring hostility will remain a basic fact of life. Nothing short of regime change will alter this equation.

Second, Iraq's longstanding links with international terrorist groups and use of proxies (the late, unlamented hired gun Abu Nidal, for instance) concentrates the mind on the peril that President Bush rightly perceives "at the crossroads of radicalism and technology." Consider only Osama bin Laden's 1998 fatwa purporting to impose a religious duty on all Muslims to acquire the same unconventional weapons that Iraq is now developing. In their common aims and complementary capabilities, there is an unholy coincidence of means, motive and opportunity between Iraq and al Qaeda.

Iraq's high-level collaboration with al Qaeda dates at least from bin Laden's hejira in Khartoum and reflects the pragmatic regional operating principle: the enemy of my enemy is my friend — notwithstanding supposedly insurmountable ethnic, religious or ideological differences. After all, these differences have never got in the way of collaboration among Persian Iran's Shiite clerical leadership, Arab Syria's ruling secular Alawites and Arab Palestinian Sunnis, secular and religious alike. What is more, terrorist states using surrogates to kill Americans (especially Iran) have to date enjoyed relative impunity, given the reluctance of successive U.S. administrations to draw appropriate conclusions and take necessary actions (apart from occasional pinprick airstrikes against the weakest targets). Equally troubling is the likelihood that the FBI's failed investigation into last year's anthrax murders will only encourage others in the belief that they can commit such atrocities without leaving any return address. But Sept. 11 eliminated all prior reluctance to respond forcefully to such attacks, a turn of events that Saddam is probably unable to grasp, given his blinkered perception of the world beyond Iraq's borders.

The third and most-critical point concerns Saddam's pattern of miscalculation and recklessness evident in attacking Iran (costing 375,000 killed in action, equivalent to 5.6 million Americans) and Kuwait (at least 30,000 KIA). Indeed, Saddam might well have gotten away with annexing the Rumaila oil field on the Kuwaiti-Iraq border, but obliterating Kuwait and pushing to the Saudi border was all but certain to draw a U.S. and international response — a reality Saddam was unable to recognize in the unlikely event it was even brought to his attention (given his propensity to shoot messengers). Saddam similarly passed up numerous opportunities to withdraw his forces intact with some concessions to show for his troubles before Desert Storm began. No less worrisome is Saddam's extraordinarily reckless attempt to murder the elder Bush and the emir of Kuwait in April 1993. Far too little thought has been given to the implications of this particular outrage; suffice it to say that this is not a deed committed by a rational actor versed in cost-benefit analysis.

Not quite two years before this assassination attempt, the preeminent Iraq expert Uriel Dann offered these prescient observations in an article entitled "Getting Even":

Saddam Hussein does not forget and forgive. His foes brought him close to perdition and then let him off....He will strive to exact revenge as long as there is life in his body. He will smirk and conciliate and retreat and whine and apply for fairness and generosity. He will also make sure that within his home base it remains understood that he has not changed and will never change....And the day will come when he will hit, we do not know with what weapons....And when he does...the innocent will pay by the millions. This must never be put out of mind: Saddam Hussein from now on lives for revenge.

A characteristically cynical French maxim, which holds blunders worse than crimes, applies with particular force. For Saddam is not only a war criminal but above all a serial blunderer who regards WMD — especially nuclear weapons — as conferring invulnerability on his regime by neutralizing conventional U.S. military power. At the end of the day Saddam cannot be deterred so long as Saddam himself sees nuclear weapons as proof against U.S. military action. Here one begins to glimpse the certain and mounting costs of inaction in the face of Saddam's relentless pursuit of nuclear capability. That is why President Bush has determined that the current Iraqi regime poses threats that cannot be managed but must be confronted and, if necessary, destroyed. To do any less risks constitutional dereliction and moral irresponsibility.

— Jack Cullinan, a lawyer, formerly served as a senior foreign-policy adviser to the U.S. Catholic bishops.