Issues: Iraq

February 13, 2003

January 1991: U.S. Apache helicopters blast a gaping hole in Iraq's air defense system. Allied warplanes streak in, beginning a 39-day air campaign that strikes not only Iraqi military units and bases but also cities and "dual-use" facilities such as power, water, and sewage treatment plants. The air war is followed by a 96-hour blitzkrieg that successfully ejects Iraq's army from Kuwait but is powerless to prevent the Iraqis from setting Kuwait's oil fields afire.

Three-hundred-eighty-three U.S. service members died during the operation, although only 147 were killed in actual combat with another 467 wounded. Iraq's combat losses are unknown; they have been conservatively estimated as 40,000 killed and 100,000 wounded. In the war's aftermath, tens of thousands of Iraqis reportedly have died or fallen ill from the war's effects (e.g., depleted uranium from U.S. munitions leaching into soil and groundwater, unexploded ordnance), from sanctions that restrict imports of critical supplies, and continued military action in the two "no fly zones" over southern and northern Iraq.

As this article goes to print, a U.S.-led "coalition of the willing" is about to unleash a new war on Iraq.  If it comes, this war will be different in key ways from the 1991 war.  The goal of Iraq I was to oust the Iraqis from Kuwait, which they had overrun in Aug. 1990.  Iraq II raises the stakes to complete regime change in Baghdad.  Saddam Hussein, with nothing to lose, might be tempted to use any and all his weapons, while the United States has already asserted its "right" to employ the full range of its weapons capabilities, including nuclear weapons.  Saddam might also try to "bleed" U.S. forces by withdrawing his elite units into Iraq's cities where superior U.S. technology would be less effective.

The U.S. war plan reportedly envisions a short, fierce "shock effect" air war of a week or less, starting with as many as 3,000 cruise and precision guided missiles being launched in the initial 48 hours.  For maximum effect, rapidly moving ground formations and "leap-frogging" helicopter-borne troops would attack within this same time frame.  If Turkey's parliament acts in time, a significant U.S. force will attack from the north to secure Iraq's northern oil fields and force the Iraqi army to fight on two fronts.  The main ground attack, featuring U.S. soldiers and Marines as well as 26,000 UK troops, will come from Kuwait in the south.  It would isolate Basra and try to cut off Iraqi forces before they retreat into urban areas that comprise greater Baghdad.  Special Forces will designate targets for aircraft, hunt for Scud missiles that Iraq may still possess, and find and destroy any stocks of chemical and biological weapons that may exist.

That's the plan. But Murphy's Law says anything that can go wrong, will — especially in war.

Call that the "practical" reason for why "War Is Not the Answer."  Equally persuasive are the ethical reasons against war, particularly in the modern era, reasons the White House brushes aside even as it proclaims that "our cause is just."

This assertion tries to exploit the classical idea that there are conditions that, taken together, override the standing presumption against war (that is, justify war). However, even by these rules, which are not universally accepted, the administration's case for war falls flat.

The case for just wars (jus ad bellum) rests on three premises, all enshrined in the UN Charter: countries are sovereign entities; they have no inherent right to intervene in the affairs of other sovereign entities; and they have a right to self-defense.  The latter can include preemptive action, but only if: the threat is extremely grave, is likely to happen, is proximate or imminent, and the cost of delay extreme.

Applying these premises, war may be "justified" if (1) the reason is "just" (reverse a grave public evil, e.g., aggression); (2) it is waged by legitimate authority (governments); (3) it involves "right intention" (e.g., a wider, more enduring peace — not to be confused with self-interest); (4) it will probably succeed; (5) the means are proportional to the threat; and (6) all other non-violent alternatives have been exhausted (last resort).

One of the administration's "just causes" for war is Saddam Hussein's brutality toward the Iraqi people.  But to be "empowered" to stop the brutality, Washington must claim that national sovereignty is no longer absolute, a risky assertion.  It has been argued that there is an exception to the presumption of inviolable national sovereignty: if a government sets out to destroy, systematically terrorize, or enslave a part of its population unable to effectively defend itself. Political community, the basis of the nation-state, may no longer exist in this case, and those responsible for the brutality open themselves to "humanitarian" intervention.

Even so, there are limits on humanitarian "just cause" interventions.  The conduct alleged must rise to the level of offending the conscience of humankind, not merely the opinions or consciences of government leaders.  Thus a government would have to blatantly and deliberately violate the values enshrined in the UN Declaration of Human Rights to the extent that its actions constituted crimes against humanity.  A second limitation is that all other means of alleviating the human rights/humanitarian depredations must have been tried and exhausted.  Finally, to preclude denigrating the moral basis for intervening, the manner in which the "humanitarian war" is conducted cannot unduly jeopardize and punish those ostensibly being saved by the intervention.

This latter leads to the conduct of a war (jus in bello).  To be "just" in its effects, warfare must discriminate between combatants and noncombatants, with the latter immune from direct attack and with indirect harm avoided or minimized.  Moreover, the use of force cannot exceed what is militarily needed, again avoiding civilian casualties and the destruction of civilian infrastructure.

So how does the administration fare with jus ad bellum and jus in bello?  One need only look at the Sep. 20, 2002 National Security Strategy (NSS).  This document clearly articulates a doctrine of anticipatory preventive war.  Even absent a severe, probable, imminent and tangible threat, the NSS claims the right to strike any country that Washington believes may some day pose a threat to U.S. interests.

This is aggression — war without a wrong inflicted.

The NSS also asserts that "enemies see weapons of mass destruction as weapons of choice" rather than of last resort.  Thus the U.S. "must build and maintain our defenses beyond challenge."  The Dec. 2002 "National Strategy to Combat Weapons of Mass Destruction" elaborates: the U.S. "reserves the right to respond with overwhelming force — including through resort to all of our options."  Since "all options" includes nondiscriminatory munitions such as landmines, cluster munitions, and nuclear weapons, it is clear the NSS policy calls for war preparations that violate jus in bello.  The practical outcome is illustrated by the war plan for Iraq with its 3,000 precision munitions being fired on the country in 48 hours.  Can civilian deaths and damage to critical civilian infrastructure really be minimized?

A Bush administration mantra is that deterrence doesn't work anymore, especially with countries like Iraq.  Deterrence did work in the 1991 Gulf War, and the conditions that made deterrence viable then have not changed.  Ironically, given White House statements on deterrence, a main argument in the NSS for enhancing WMD "consequence management" is to "deter those who possess [WMD] and dissuade those who seek to acquire them by persuading enemies that they cannot attain their desired ends" of inflicting mass casualties.

Lastly, the NSS reiterates that U.S. anticipatory prevention is allowed even if the purported attack's place, method, and timing are unknown.  Clearly, this policy abrogates international law by implicitly asserting that the U.S. will judge what is "legitimate" preemption (defined as what the U.S. does) and aggression (what others might do under the rubric of "aggressive self-defense").

In light of the new International Criminal Court (ICC), a fair question is whether violations of jus ad bellum or jus in bello are war crimes or crimes against humanity? In terms of jus ad bellum, probably not.  While a U.S. attack on Iraq in the foreseeable future could not be "justified" (not all other means being exhausted), only defeated countries seem to suffer for contravening just war norms.  Moreover, the treaty establishing the ICC does not define the crime of aggression.  But such an attack would severely undermine the entire structure of international law and treaties on which the U.S. relies as the first line of defense for its interests in the world.

The question of war crimes and crimes against humanity does pertain to jus in bello.  Modern civil society can be so intertwined with military bases and supporting infrastructure (dual-use) that significant civilian casualties and the destruction of essential humanitarian services (power, water, sewage treatment) cannot be avoided even by the use of "precision" munitions.  Indeed, these munitions compound the problem if they are fired against a target misidentified as military (as in 1991 in Iraq and 1999 in Serbia.)  One scenario concerning the Pentagon is the possible intermingling of Iraqi fighters with refugees which could cause U.S. troops to fire on civilians — repeating the Korean War's No Gun Ri incident.

The U.S. is not invulnerable.  As powerful as it may be, Washington still needs the cooperation of others to achieve national interests.  The U.S. can't expect cooperation if it insists on a right to set new rules and act unilaterally while denying others the same privilege.  "Job one," the White House says, is protecting the American public. But "job one" won't happen unilaterally; security for one simply doesn't exist.

Daniel Smith, a West Point graduate and Vietnam veteran, is Senior Fellow on Military Affairs at the Friends Committee on National Legislation.

Reviewed: 09/06/2005

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