With each passing moment, the likelihood of a unilateral, multifaceted military campaign against Iraq becomes more imminent. Despite this, members of the United Nations Security Council and the Arab World have voiced their objections to such a campaign affirming that any attack on Iraq would violate international peace.

Much of the internal debate concerning the impending conflict between the United States and Iraq has been how the United States will effectuate a regime change. The question that has largely been ignored (by the United States and to some extent Great Britain) is: can the United States, legally and unilaterally, effectuate a regime change in Iraq? In other words, what imposed constraints are there by international law and institutions upon a United States military campaign against a sovereign nation, Iraq? Perhaps a subsequent question is of equal significance: does it matter or has it ever mattered? A cursory answer to these questions is negative.

During his May commencement speech at the West Point Academy, President George Bush announced a new policy in the “war against terror”; that of pre-emptive attacks against nations and/or entities to protect the United States: “Our security will require all Americans to be forward-looking and resolute, to be ready for pre-emptive action, when necessary, to defend our liberty and to defend our lives.”

Although President Bush failed to specifically mention Iraqi President Saddam Hussein or Iraq, it is self-evident that the message was being sent to Iraq. Vice-President Dick Cheney echoed these statements in an August 27, 2002 speech before a veteran convention. This strategy of preemption is one of two “justifications” that have been articulated by the United States and their campaign(s) against Iraq. The perennial justification for military aggression against Iraq has been the recitation of United Nations Security Resolution 678, which laid the groundwork for the highly questionable, unilateralist “Gulf War.” Both strategies of circumventing international law are transparent.

The American Doctrine of Preemption as applied to Iraq contravenes International Law

The use of pre-emptive strikes is certainly not a novel concept. Such an insidious technique was employed by Israel prior to the commencement of the 1967 Arab-Israeli War and employed by Israel again in 1981 when Israeli jets struck an Iraqi nuclear reactor. Pre-emptive strikes, however, generally contravene international law and are only acceptable under the strictest of circumstances. In fact pre-emptive strikes are only legitimate in cases of anticipatory self-defense.

Furthermore, the standard under international law for whether a particular use of force constitutes anticipatory self-defense comes from an incident in 1837 where British soldiers decimated an American ship, the Caroline, in a US port, after the Caroline had been used in American raids into Canadian territory. The British justified the attack on the argument of self-defense. Through an exchange of diplomatic correspondence, the dispute was resolved in favor of the Americans. US Secretary of State Daniel Webster urged the following definition of self-defense, which the British accepted, and has been the accepted rule in international law ever since:

… necessity of that self-defence is instant, overwhelming, leaving no choice of means, and no moment for deliberation…[The means of self-defense must involve] nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.¹

When Israel launched its air strike against an Iraqi nuclear reactor in 1981 it received a rash of criticism from the international community culminating in the passage of a United Nations Security Council resolution that condemned Israel for its pre-emptive attack. Under the current conditions, a unilateral attack against Iraq will be no different. The necessity of an attack against Iraq is not “instant, overwhelming, leaving no choice of means and no moment for deliberation.” There has been almost a decade long of posturing and brinksmanship without a full-scale military offensive by the United States. The point of contention has been the lack of Iraqi consent to allow nuclear facility inspectors. Iraq has shown no aggression that would render a necessity for anticipatory self-defense in terms of an imminent presence.

Similarly the necessity for an attack is not overwhelming, leaving no choice of means and no moment for deliberation, from an objective standpoint. The United States has not pursued other avenues – such as direct negotiation with the Iraqis – largely due to the arrogance of US government officials who believe that there is no need for discussion and that “Iraq knows what it needs to do.”

Negotiation and alternative dispute resolution have been ignored as a means to resolve the Iraqi problem, as has the United Nations system for pacific conflict resolution. In short, by violating the Caroline precept, which is a continuing and thriving doctrine of international law, the United States is moving towards the status of an isolationist rogue state.

Furthermore, anticipatory self-defense is limited by the principle of proportionality. This is the second component of the viable Caroline precept. Hypothetically if the necessity for an attack on Iraq met the first component (“instant, overwhelming, leaving no choice of means and no moment for deliberation”), that attack would be strictly limited to the threat. In other words, the only possible viable subjects of an attack could be nuclear sites. An attempt to effectuate a regime change through military force defies proportionality and grossly exceeds it. However, because the necessity of an attack on Iraq is not instant, etc. that ends the inquiry. The United States cannot legally rely on the argument of preemptive action or anticipatory self-defense.  

The United States Cannot Rely on Security Council Resolution 678 to justify a military campaign against Iraq

On November 29, 1990, the United Nations Security Council passed resolution 678 which offered Iraq the final opportunity to withdraw from Kuwait and abide by other obligations pursuant to previous resolutions. Iraq did not comply with Resolution 678: “authorizes Member States… to use all necessary means to uphold and implement resolution 660 and all subsequent resolutions and to restore international peace and security in the region.”²

The “legislative” intent behind this resolution is clear; it sanctions the possible use of force to end the military occupation of Kuwait, period. The intent was certainly not that it could be later used as a way to effectuate a regime change in Iraq.

Several US government circles have argued that resolution 678 is a source of authority upon which the United States can justify a military attack. This particular interpretation is an extremely broad contextual argument. However, because those Security Council members who consented at that time do not consent to a new initiative that argument is fallible. Furthermore the regional ceasefire that took place in 1991 for all intents and purposes ended the conflict. To be sure, resolution 678 had a narrowly tailored purpose to which members of the Security Council achieved a consensus. Such a consensus in today’s climate does not exist.

The United States’ failed attempt at consensus building indicates that an armed attack on Iraq cannot be based on resolution 678. The United States must pursue legal recourse in the United Nations Security Council as a method of resolving disputes with Iraq. However, because the majority of states on the Security Council do not support a military offensive the United States cannot attack Iraq.

Currently there is a popular global phenomenon of criticizing the United States for its stance on Iraq. International scholars, governments, and NGO’s have vocalized their opposition to unilateralist action against Iraq. What is clear, however is that the United States is setting a dangerous precedent leading down a slippery slope. The United States, through its recent policies of creating new doctrines of international law that contravene well-established principles, has diluted the vibrancy and vitality of international law.

An offensive on Iraq to effectuate a regime change will undoubtedly change the face of international law. Such an offensive will damage significant gains and influence what international law and jurisprudence have had on international peace and harmonization. Indeed if such an illegal offensive on Iraq is launched, states may not feel compelled to follow rules of international law, including areas of human rights and international humanitarian law. The very future of how nations and regions view the use of force in international conflicts will change if Iraq is subject to unilateralist action by the United States. 

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- Damrosch, Lori, Henkin, Louis. The Caroline. International Law Cases and Materials. West Group. 2001. p. 923.

2- United Nations Security Council Resolution 678 of 29 November 199

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