President Bush‘s new centerpiece of the war on terrorism would be a pre-emptive war against Iraq. I believe that threatening such a war represents a momentous failure of American foreign policy, whether considered from the perspective of international law, international morality or national interest, and so does the rest of the world, including many of America’s closest allies. Initiating such a war in the face of this international opposition would likely increase anti-Americanism overseas and might even ignite a grassroots revolt against U.S. unilateralism.

Bush, in his recent speech before the United Nations, insisted that the Security Council coerce Iraq to obey resolutions calling for the destruction of all facilities relating to weaponry of mass destruction. And even as Iraq has approved a new round of inspections, the U.S. still seems intent on waging war.

Several glaring weaknesses doom this policy. First of all, it denies consideration of the relevance of international law, as well as the exclusive authority of the United Nations when it comes to waging a non-defensive war. Secondly, it avoids altogether the manifestly unconstitutional claim that the president has the legal power to initiate such a war without congressional authorization. Thirdly, it puts forward a series of “facts” about Iraq‘s behavior that magnifies any threat it poses out of all proportion to the realities, while calling for a pre-emptive war that could have dire regional and global consequences.

Throughout the last century, major countries of the world made a concerted effort to limit the discretion of states to wage war, which led to establishing the United Nations. The key commitment of the U.N. Charter, as expressed in Article 2(4), is the obligation of member countries to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” The charter contains two lines of exception to this blanket prohibition. The most important one is the right of self-defense, which is permissible in response to an armed attack, and even then, only provisionally, with final authority to use defensive force vested in the U.N. Security Council.

It is crucial not to be trapped by legalisms nor to adopt an overly rigid reading of international law that imposes on a state dangerous degrees of vulnerability. For instance, I believe international law was properly stretched to view Afghanistan as subject to an American claim of self-defense despite the indications that September 11 was the work of al Qaeda, and the link between the two was not convincingly set forth. Nevertheless, it would have been unreasonable, given the nature of the Taliban regime and the continuing mega-terrorist threat directed at the United States, to refrain from acting in self-defense.

Iraq does not pose the same threat. Bush argues that Iraq is acquiring weaponry of mass destruction including nuclear weaponry, that its past behavior suggests that it will likely use such weaponry against American targets or transfer the weaponry to terrorist groups that will strike, and that therefore to avoid such catastrophic harm it is necessary to act in anticipation. The evidence is skimpy and speculative, at best, with most assessments suggesting that Iraq would lack any capacity to produce nuclear weapons for five years or more. Furthermore, the contention that Iraq would threaten or use such weapons, and especially against the United States, completely fails any test of credibility. Nothing would more quickly bring about the utter destruction of Iraq than its threat or use of such weaponry, and it is obvious that even its clear acquisition would in all likelihood prompt a devastating American military reaction.

Administration officials brand Iraq as an aggressor state on the basis of its two wars with neighbors, Iran from 1980 to 1989, and Kuwait in 1990. It should be recalled that revolutionary Iran was acting very provocatively toward secular Iraq, and that the United States encouraged Baghdad’s recourse to war, which helps explain why the U.N. failed to condemn Iraq‘s aggressive moves at the time. It should also be remembered that the first Bush presidency supported military assistance to Iraq long after it used chemical weapons in the late 1980s. Also, the American ambassador to Iraq in 1990 sent extremely mixed signals to Saddam Hussein just before Iraq invaded Kuwait, seeming to suggest that the future of Kuwait was a regional matter of no strategic concern to Washington. This does not excuse Iraq or Saddam Hussein, but demonstrates that Iraq’s past behavior cannot be used to brand it as a reckless aggressor state, much less driven by a visionary terrorist world-view. We should still have confidence in our capacity to contain and deter Saddam Hussein.

Iraq‘s dictatorial leadership is brutal and unprincipled, without question, but in its international relations it adjusts to miscalculations in a rational, self-serving manner. It accepted a stalemate with Iran after nine years of warfare without fighting on; it withdrew from Kuwait in the face of the U.S.-led coalition’s military superiority, and faced with defeat, it accepted the terms of a humiliating cease-fire. Iraq has been careful for more than a decade not to be linked to international terrorist activities. As far as al Qaeda is concerned, the signs are of Iraqi enmity rather than solidarity; Iraq has a record of suppressing Islamic activities.

Waging a pre-emptive war against Iraq would likely unleash all sorts of dangerous forces in the region and the world. It would, to begin with, create the one set of conditions in which Iraq under attack would be inclined to use the most destructive weaponry at its disposal or to allow the main enemies of the United States to gain access to such weaponry.

Other dangerous side effects that should give pause to the war makers in Washington: an Islamic coup in Pakistan leading to a regional war with India in which both sides have nuclear weapons; escalating oil prices triggering a world depression; civil strife in the Middle East, with anti-West regime changes in Saudi Arabia and Egypt; an intercivilizational holy war between Islam and the West (which would amount to an unintended endorsement of Osama bin Laden‘s approach to world history!); and possibly most serious of all, a loss of international support for the struggle against the persisting al Qaeda threat, which should remain the overriding security concern of the White House.

It is important to contrast the American success in building support around the world for the Gulf War, and more recently, in relation to the war against Afghanistan, with its pronounced failure to gain international backing for a new war against Iraq. To disrupt the al Qaeda network seems justifiable and necessary, given its visionary world-view and its genocidal tactics; such an adversary, fully prepared to pursue suicidal missions, cannot be deterred. But to transpose such reasoning to Iraq is to confuse the issue. Unlike al Qaeda, Iraq can be deterred, and if not, is acutely vulnerable to retaliatory violence, and will remain so for as far ahead as it is possible to see. The case for pre-emptive war is without substance and should be abandoned. If the White House defiantly goes ahead with its war plans, the United States would find itself cast in the role of being a menace to world order, an enemy of humanity, as well as being guilty of Crimes Against the Peace in a Nuremberg sense.

We are left with the question as to what should be done. Both sides would serve their national interest, as well as the global interest, by backing off, allowing a revival of inspection under responsible U.N. auspices that generated international confidence without encroaching excessively on Iraqi sovereignty. Such a solution would be a great victory for peace, for constructive diplomacy and a multilateral approach, and for the United Nations. It would also allow the United States to re-focus on the real threat to security arising from al Qaeda’s continuing dedication to its anti-American jihad.

Richard Falk is the Albert G. Milbank Professor of International Law at Princeton.

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