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Bush’s
Prelude to War: Analyzing the Speech
On
March 17, 2003, President George W. Bush addressed the American
public and a world wide audience in arguably one of the most
significant public speeches in this century. He established in no
uncertain terms that a war with Iraq is “almost” inevitable:
“Free nations have a duty to defend our people by uniting against
the violent, and tonight, as we have done before, America and our
allies accept that responsibility.”
The
address proffered what appears to be a final justification for a
military invasion of Iraq and perhaps a concluding attempt to
convince those who dissent and oppose military action under the
present circumstances. Ultimately, the historical significance of
this address will not be founded in the validity or substance of the
speech; but will likely be grounded in the glaring distortions and
inaccuracies put forth as justification for war.
From
an American domestic political perspective, the address accomplished
its goal of attempting to rally a steadfast and ready electorate.
From an analytical and legal perspective, however, the address
created a further rift between the United States and the
international legal community which opposes the impending war. For
analytical and legal purposes, several particular statements of the
President’s address require a counter response.
“For
more than a decade, the United States and other nations have pursued
patient and honourable efforts to disarm the Iraqi regime without a
war”:
The
United Nations Security Council passed Security Council Resolution
661 on 6 August 1990, which imposed strict and severe economic
sanctions upon Iraq for its illegal and aggressive invasion of
Kuwait. Such sanctions, although harsh, were widely and globally
supported because they were seen as an opportunity to compel
Iraq’s compliance. These sanctions were refocused and redefined
once again by the Security Council through the implementation of
Resolution 678, which used economic sanctions as a tool to
“encourage” Iraqi disarmament. Despite the fact that Iraq had
demonstrated inroads to a commitment to disarmament since that
resolution, economic sanctions continue to the present.
Causing
the death of more than 500,000 children is neither
“patient” nor “honourable.”
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An
August 2002 report entitled “Iraq Sanctions: Humanitarian
Implications and Options for the Future,” and published by a
conglomeration of NGOs, has concluded that the effect of these
sanctions and the humanitarian crisis caused thereof has contributed
to the deaths of approximately 900,000 civilians.1
In an earlier study entitled Child and Maternal Mortality Survey
1999 Preliminary Report, published by UNICEF in 1999, it was
determined that 500,000 children under the age of 5 perished between
1991 and 1999.2
Although the report could not ascribe complete liability on the
sanctions, it is clear that the sanctions made a significant
contribution to that number.
Since
Iraq’s initial steps towards disarmament, the majority of nations
on the Security Council have questioned the continuing legitimacy of
such sanctions. Attempts to eliminate or dramatically restructure
sanctions have been thwarted by the United States, Great Britain and
the respective veto power that these states hold as permanent
members of the Security Council. In an exclusive interview with
Leslie Stahl of the American news program “60 Minutes” in 1996,
Madeline Albright stated her opinion of the “patient and
honorable” efforts of United States sponsored sanctions:
Stahl:
We have heard that over half a million children have died. I mean,
that's more than died in Hiroshima. And, you know, is the price
worth it?
Albright:
I think this is a very hard choice. But the price-- we think the
price is worth it.
The
significance of war will show itself in the ashes of Iraq.
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In
addition to economic sanctions, specific Iraqi sites have been the
target of “coalition” air strikes. This series of strikes began
with the establishment of “no-fly zones” in the northern portion
of Iraq, which expanded to a southern no fly zone. These air strikes
intensified with Operation Desert Fox in 1998. This particular
operation led to several civilian casualties and further damage to a
disabled Iraqi infrastructure.3
Such operations continue to the present, and almost on a weekly
basis.
The
unfettered support for economic sanctions that have at least
partially contributed to the deaths of nearly one million Iraqis,
and continuous deadly coalition air strikes led primarily by the
United States, do not constitute “patient and honorable” efforts
to disarm Iraq. These actions and omissions constitute a breach of
the spirit of the United Nations Charter, and an overall abuse of
the United States permanent membership of the United States Security
Council.
The
United States has the sovereign authority to use force in assuring
its own national security:
Pursuant
to Article 51 of the United Nations Charter, states are entitled to
use force for purposes of self-defense. Article 51 permits the right
of individual and/or collective self defense “if an armed attack
occurs against a Member of the United Nations.” The notion of
“anticipatory self defense” or pre-emption denotes that
self-defensive measures are taken to prevent an imminent attack on
that particular country. Professor Donald Rothwell, president of the
Australian and New Zealand Society of International law, stated:
This
is a very controversial doctrine and instance where it has been
relied upon, such as Israel’s 1981 attack upon Iraq’s nuclear
power facilities, were widely condemned by the international
community. For any such anticipatory attack upon Iraq to have any
possible foundation in law, it would be necessary to show clear
evidence that Iraq was planning to attack another state.
Notwithstanding the significant evidence being gathered in recent
months, to date there has been no credible suggestion made that it
is planning any such attack upon its neighbours, the U.S., or
Australia.4
To
be certain, if credible and irrefutable evidence existed about an
Iraqi plan to recapture Kuwait, then perhaps the doctrine would have
some validity. And to be sure, if Iraq implemented a reinvasion,
Article 51 and Security Council resolution 678 would authorize the
use of force to expel Iraq. However, there is no ascertainable or
irrefutable evidence of such a threat. An invocation of Article 51
and the doctrine of “anticipatory self defense” cannot legally
be made under the present circumstances.
“In
the case of Iraq, the Security Council did act in the early 1990s.
Under resolutions 678 and 687, both still in effect, the United
States and our allies are authorized to use force in ridding Iraq of
weapons of mass destruction. This is not a question of authority; it
is a question of will”:
The
United States cannot base a unilateral attack on resolution
678.
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This
assertion is legally flawed, and there remains a serious question as
to the legal authority of the basis for unilateral military action
against Iraq. Security Council resolution 678, in the face of an
illegal invasion of Kuwait, authorized member states to use all
“necessary means to uphold and implement Resolution 660, and
subsequent resolutions to restore international peace and security
in the area.”5
Resolution 660, the legal basis for resolution 678, addresses only
the invasion of Kuwait. 678 authorizes the use of force only with
respect to Iraq’s breach of sovereign Kuwait territory. The United
States cannot reasonably base a unilateral attack on resolution 678.
Resolution
687 operates as a summary of the conditions for a ceasefire. The
essence of the ceasefire, and of resolution 678, is the Iraqi
withdrawal of Kuwait; an end to Iraq’s breach of Kuwait’s
sovereign and territorial integrity, which constituted a breach of
the gravest kind. Resolution 687 authorizes the resumption of force
if the territorial and sovereign integrity of Kuwait is again
breached following the ceasefire:
…decides
to guarantee the inviolability of the above mentioned international
boundary and to take, as appropriate, all necessary measures to that
end in accordance with the Charter of the United Nations.
If
Iraq were to attempt a reinvasion of Kuwait, any Member state could
legally and justifiably take unilateral action in defense of
Kuwait’s territorial and sovereign integrity, acting on the basis
of Resolution 687. However, although 687 requires Iraqi disarmament
of biological, chemical and nuclear capabilities, those policing the
disarmament process were not given a carte blanche option of
recourse to “all necessary means” to ensure compliance, unlike
those safeguarding the Kuwaiti border. According to Professor
Rothwell:
Finally
it is argued that Iraq is in material breach of Resolution 1441
thereby authorizing the use of force to disarm Iraq. The legal basis
for intervention has its roots in resolution 687, which contained
the terms of the original 1991 Gulf War ceasefire. That resolution
has two elements. First, it demanded that Iraq and Kuwait “respect
the invioliability of the international boundary” between them.
Second, Iraq was required to disarm and “unconditionally accept
the destruction, removal or rendering harmless” of its stockpiles
of chemical weapons and ballistic missiles with a range greater than
150 km. While Iraq has continued to respect the Iraq-Kuwait border,
it has yet to disarm in the manner demanded of it. However, the key
issue is whether Iraq’s failure to disarm consistently with
Resolution 687 and more recently 1441 authorises military
intervention to enforce disarmament. Clearly it was central to the
process of restoring regional peace and security and for Iraq to
redeem itself in the eyes of the international community. But only
the most serious breach of the ceasefire terms such as the violation
of the Iraq-Kuwait border could possibly automatically revive the
operation of those Security Council resolutions authorizing the use
of “all necessary means” to expel Iraq from Kuwait…6
Thus
Resolution 687 cannot sanction the use of force (as President Bush
states) in order to disarm Iraq of weapons of mass destruction.
“Saddam
Hussein and his sons must leave Iraq within 48 hours. Their refusal
to do so will result in military conflict commenced at a time of our
choosing”:
The
President ultimatum towards Saddam Hussein and his sons, which would
force them into exile, is legally null and void. Under international
law, specifically the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights (ICCPR):
“Everyone has the right to leave any country, including his own,
and to return to his country”7
and “No one shall be arbitrarily deprived of the right to enter
his own country.”8
Legally, Saddam Hussein and other Iraqis cannot be expelled from
Iraq, even by citizens of Iraq who want him put in exile. For the
leader of another nation to demand his expulsion sets new precedent
that has absolutely no legal validity.
“…all
Iraqi military and civil personnel should listen carefully to this
warning: In any conflict your fate will depend on your actions. Do
not destroy oil wells, a source of wealth that belongs to the Iraqi
people. Do not obey any command to use weapons of mass destruction
against anyone, including the Iraqi people. War crimes will be
prosecuted, war criminals will be punished and it will be no defense
to say, “I was just following orders”:
President
Bush’s assertion is partially accurate. The justification of “I
was just following orders” upon the commission of war crimes and
crimes against humanity is not a legally justifiable defense. The
“Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively Injurious
of to Have Indiscriminate Effects” prohibits the use of
“incendiary weapons” such as chemical and biological weapons on
the civilian population. If Iraq engages in attacks on the civilian
population, it will also be a violation of the Protocols of the
Geneva Convention.
However,
one cannot help but question the utter hypocrisy of Bush’s
assertion. In essence he is saying that Iraqis who breach the
“laws of war” will be prosecuted to the fullest extent
applicable. The United States has refused to be under the
jurisdiction of the first International Criminal Court that was
established order to prosecute war crimes and crimes against
humanity under a principle of universal jurisdiction.
Conclusion
Regardless
of any analysis or counter response to American reasoning behind
unilaterally attacking Iraq, or the opinion of the international
legal community, war will be upon us with no recourse to those who
oppose it. The ultimate significance of war will show itself in the
ashes of Iraq. That significance is the erosion of the concept of
the international community and the United Nations. Significant
inroads made in international law during the past fifty years now
face uncertainty as do the lives of millions of Iraqis.
Thomas
J. Haidon is an American attorney and activist residing in
Wellington, New Zealand. He received a Jurisdoctorate (J.D.) with a
certificate of international law from the University at Buffalo
School of Law and a Bachelor of Arts in Political Science from
Niagara University. He has studied at the American University in
Cairo and Birzeit University, Palestine. He is currently pursuing an
L.L.M. in international law. You can reach him at thaidon@justice.com
1-
“Iraq Sanctions: Humanitarian Implications and Options for the
Future” in Globalpolicy.Org
2-
UNICEF and Ministry of Health of Iraq, Child and Maternal Mortality
Survey 1999 Preliminary Report (July, 1999) and UNICEF, Questions
and Answers (August 16, 1999).
3-
William Arkin, “Desert Fox Delivery, Precision Undermined its
Purpose,” Washington Post, January 17, 1999.
4-
Rothwell, Donald. “War against Iraq needs UN support.” March 5,
2003, Canberra Times
5-
United Nations Security Council 678 (1990).
6-
Rothwell, Donald. “War against Iraq needs UN support.” March
5, 2003, Canberra Times.
7-
Article 13. Universal Declaration of Human Rights.
8-
Article 12.4 of the International Covenant on Civil and Political
Rights (ICCPR).
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