Iraqi Freedom, Preemption and the Jus Ad Bellum

Iraqi Freedom, Preemption and the Jus Ad Bellum Prof. Moore’s International Law Class October 28, 2008 Professor Robert F. Turner Center for National Security Law University of Virginia

Caveat • On the eve of Operation Iraqi Freedom, I was unsure of whether going in was wise policy, but I felt it was arguably (and should be) legal. • At the request of PACOM and EUCOM, I flew to Honolulu and Munich in 2003 to defend the legality of OIF at conferences of international lawyers hosted by the U.S. military commands.

Caveat • I also wrote a 15,000-word book chapter defending the legality of OIF (pdf on CNSL web page). • In none of these presentations did my remarks focus on the WMD issue (although I was well aware Saddam had possessed illegal WMD and assumed he still had them). Indeed, in my book chapter, I mentioned WMD four times totaling less than a page or two (half in footnotes) in the 46 page chapter.

Caveat • Professor Moore strongly opposed OIF from the start. We have been close friends for 35 years, and I can count our major policy disagreements over those years on the fingers of one hand. (He supported Operation Just Cause in Panama in 1989, I thought it was unwise and illegal.) • In retrospect, I now think he was probably closer to the truth than I was in 2003 on what to do about Iraq in terms of wise policy. • But I still think our goal was a noble one.

The WMD Issue • I did not think Saddam’s WMD’s were the most important reason to remove him; • but it is important to understand that he once clearly had nuclear, chemical, and biological warfare programs – and when we decided on war in 2002 there was a widespread belief that he still had them.

The WMD Issue • Why else would Saddam have refused for more than a decade to obey Security Council orders to permit international supervision of their destruction?

Saddam Used WMDAgainst Iran Beginning in 1983 • A once highly-classified State Dep’t cable dated Nov. 1, 1983, disclosed Iraq was using chemical weapons against Iran “almost daily.”

Saddam Used WMDAgainst His Own People • In 1988, Saddam used illegal chemical weapons against Iran; • He also killed tens of thousands of his own Iraqi citizens with illegal mustard gas and nerve agents.

Anyone Who Tells You Saddam Never Had WMD Is Out of Touch With Reality

Anyone Who Tells You Saddam Never Had WMD Is Out of Touch With Reality UN Inspectors in Iraq

Iraq Once Had aNuclear Weapons Program • On June 7, 1981, Israel bombed the Osirak nuclear reactor near Baghdad that was part of Saddam’s nuclear weapons program. • Coincidentally, that was my first day working in the Pentagon.

Bush Did Not “Lie” in his2003 State of the Union Address “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”

Iraq Once Had aNuclear Weapons Program • Tony Blair came to DC and affirmed in a press conference the British had told usSaddam tried to buy uranium in Africa in 1998. • The Butler Commission concluded the story was true and British Intelligence stands by it.

Iraq Once Had aNuclear Weapons Program The CIA did not say this was false information, but rather that CIA could not independently verify the information. Amb. Joe Wilson told CIA a former Niger Prime Minister told him he was approached to meet with an Iraqi trade delegation, and he assumed they wanted to purchase “more uranium.” • President Bush was correct when he said in his State of the Union Address that the British had told usSaddam tried to buy uranium in Africa in 1998. • The Butler Commission concluded the story was true and British Intelligence stands by it.

The Lie about “Lying” • Pres. Bush did not “lie” about Iraqi WMDs: • The UN Security Council believed Iraq had illegal WMD programs. • In 1998 Congress (360-38 in house, unanimous in Senate) passed “Iraq Liberation Act” calling for removal of Saddam. [GWB was governor of Texas.]

Iraq Liberation Act of 1998H.R.4655 • “Since March 1996, Iraq has systematically sought to deny weapons inspectors from the United Nations Special Commission on Iraq (UNSCOM) access to key facilities and documents, has on several occasions endangered the safe operation of UNSCOM helicopters transporting UNSCOM personnel in Iraq, and has persisted in a pattern of deception and concealment regarding the history of its weapons of mass destruction programs. . . .

Iraq Liberation Act of 1998H.R.4655 • “It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.”

Iraq Liberation Act of 1998H.R.4655 Texas Governor George W. Bush would not even move to Washington for another two years. • “Since March 1996, Iraq has systematically sought to deny weapons inspectors from the United Nations Special Commission on Iraq (UNSCOM) access to key facilities and documents, has on several occasions endangered the safe operation of UNSCOM helicopters transporting UNSCOM personnel in Iraq, and has persisted in a pattern of deception and concealment regarding the history of its weapons of mass destruction programs. . . . • “It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.

The Lie about “Lying”President Bill Clinton, Feb. 17, 1998 • “If Saddam rejects peace and we have to use force, our purpose is clear. We want to seriously diminish the threat posed by Iraq’s weapons of mass destruction program.”

The Lie about “Lying”Madeline Albright, Feb. 18, 1998 • “No one has done what Saddam Hussein has done, or is thinking of doing. He is producing weapons of mass destruction, and he is qualitatively and quantitatively different from other dictators.”

The Lie about “Lying”Sandy Berger, Feb. 18, 1998 • "Imagine the consequences if Saddam fails to comply and we fail to act. Saddam . . . . will rebuild his arsenal of weapons of mass destruction. And some day, some way, I am certain, he will use that arsenal again, as he has ten times since 1983."

The Lie about “Lying”Sen. Jay Rockefeller, Oct. 10, 2002 • “There is unmistakable evidence that Saddam Hussein is working aggressively to develop nuclear weapons and will likely have nuclear weapons within the next five years.”

The Lie about “Lying”Sen. Ted Kennedy, Sept. 27, 2002 • “We have known for many years that Saddam Hussein is seeking and developing weapons of mass destruction.”

The Lie about “Lying”Sen. Hillary Clinton, Oct. 10, 2002 • “In the four years since the inspectors left, intelligence reports show that Saddam Hussein has worked to rebuild . . . his nuclear program.”

The Lie about “Lying”Former President Clinton, Oct. 2003 • In Oct. 2003 Pres. Clinton told Portuguese President he was “absolutely convinced” Saddam had WMDs. • (Tenent was Clinton’s choice.)

The Lie about “Lying” Sen. Joe Biden on Meet the Press, April 29, 2007 • MR. RUSSERT: I want to go back to 2002, because it’s important as to what people were saying then and what the American people were hearing. Here’s Joe Biden about Saddam Hussein: “He’s a long term threat and a short term threat to our national security. . . . He must be dislodged from his weapons or dislodged from power.” You were emphatic about that.

The Lie about “Lying” • MR. RUSSERT: I want to go back to 2002, because it’s important as to what people were saying then and what the American people were hearing. Here’s Joe Biden about Saddam Hussein: “He’s a long term threat and a short term threat to our national security. . . . He must be dislodged from his weapons or dislodged from power.” You were emphatic about that.

The Lie about “Lying” • MR. RUSSERT: Where are they [WMD]? • SEN. BIDEN: Well, the point is, it turned out they didn’t, but everyone in the world thought he had them.

Who Should Bear the Risk? • Who should bear risk when a repeat offender refuses to comply with Security Council Chapter VII resolutions year after year?

What Happened toSaddam’s WMD? • I don’t know. (It now seems clear he stopped his nuclear program well before 2003; Saddam reportedly told his U.S. interrogators he destroyed his other WMD before the U.S. invasion.) • What we do know is that Saddam had active WMD programs for years, he used CW in war with Iran and against his own people, and he did not comply with his legal obligation under UNSC Res. 687 to allow the UN to supervise their destruction.

My Reasons for BelievingOIF was Legally Justifiedand Wise Policy

Learning from History:The League of Nations • 1928—Aggressive war outlawed by Kellogg-Briand Treaty; • 1931—Japan invaded Manchuria (League passed resolution condemning); • 1935—Italy invaded Ethiopia (League passed another resolution); • 1939—Hitler correctly concluded the world lacked the will to resist aggression.

The Human Costs of WW II An estimated 40 million people died because of World War II: • 11 million Soviet combatant deaths • 3.5 million Germans • 2 million Japanese • 1.5 million Chinese • Hundreds of thousands of British, French, Yugoslav, U.S. and other combat deaths • More than 20 million deaths from genocide, starvation, disease, and bombardment. —John Ellis, World War II: A Statistical Survey (1993)

Why Act WithoutSecurity Council Approval • The credibility of the World Community was at risk. • By issuing legally binding orders under Chapter VII to a major repeat offender (and repeatedly declaring Iraq to be a “threat to the peace”), and upon material breach responding by simply passing more than a dozen new resolutions demanding compliance, threatening “serious” and “severe” consequences, and giving Iraq “one final chance,” the Security Council was emulating the League of Nations. • Without effective enforcement action, no future tyrant would take Charter obligations seriously.

Exhausting Peaceful Remedies • We waited more than a dozen years to see if economic sanctions, diplomacy, or the Security Council could remove this “threat to the peace” without further loss of life.

A Proposed Jus Ad Bellum Standard in Settings Like Kosovo and Iraq • Strong presumption against intervention outside Security Council framework; • Consider “totality of the circumstances” in assessing claims; • Key test is whether motive is defensive against a clear “threat to the peace” or aggressive (e.g., to deprive a state of territorial integrity or political independence). • A combination of a Security Council determination of a “threat to peace,” and Security Council inability to agree on effective measures strengthens the case for intervention by other states.

The Legal Predicate forOperation Iraqi Freedom • Iraq’s history of major international aggression (armed attacks on Iran [with illegal WMDs], Kuwait, Saudi Arabia, Israel, U.S. forces outside Iraq, Bush Sr.); • Iraq’s illegal support for terrorism; • Iraq’s dozen years of material breach of numerous Chapter VIIUNSC resolutions recognizing Iraq as a “threat to the peace.”

The Legal Predicate forOperation Iraqi Freedom • Given its record of aggression and refusal to obey Security Council orders, and Saddam’s known history of development and use of WMDs, measures of anticipatory collective self-defense against Iraq were warranted to remove a “threat to the peace.” • Furthermore, humanitarianintervention was as justified in Iraq as in Kosovo.

The UN Charteris Based on Preemption Article 1 The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace . . . .

WMDs & Preemption:Rebalancing the Scales of Justice Historically it made sense to require an armed attack or clear evidence of an imminent attack before defensive force could be used. No great harm caused by waiting until the first tank crossed the border. Given Saddam’s record and the Security Council’s repeated determination that Iraq was a “threat to the peace,” the added destructive potential of WMDs makes it foolish to give Saddam another “free kick” before defensive force may be used—a “free kick” that could involve coordinated attacks endangering millions of lives.

WMDs & PreemptionJohn F. Kennedy (Oct. 22, 1962) “We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maximum peril. Nuclear weapons are so destructive and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.”

The Preemption Doctrine We are not declaring a major new universal doctrine that authorizes attacks at will whenever any country disagrees with America. As President Bush made clear, preemption only applies to a small number of lawbreakers who are supporting terrorism and seeking illegally to obtain WMDs. Canada is not at risk. France is not even at risk.

For more than a dozen yearsIraq flaunted the law Article 25 “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

Security Council Resolution 687(under Chapter VII and on which 1991 cease-fire was premised) Iraq admitted it had WMD in March 1991. • Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: • (a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities;

Security Council Resolution 687(under Chapter VII and on which 1991 cease-fire was premised) • Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: • (a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities;

Security Council Resolution 707(15 Aug. 1991) Noted “with grave concern” Iraq’s continued violation of the terms of Resolution 687 and declared under Chapter VII that Iraq was in “material breach” of the cease-fire resolution, which “provided the conditions essential to the restoration of peace and security in the region.” Once again, it demanded that Iraq: “[P]rovide full, final and complete disclosure, as required by resolution 687 (1991), of all aspects of its programmes to develop weapons of mass destruction and ballistic missiles with a range greater than 150 kilometres . . . .”

SC Res. 678 [Nov. 1990] authorized Member States in paragraph 2 to use “all necessary means” to implement earlier resolutions “and to restore international peace and security in the area.” SC Res. 949 [Oct. 1994] “reaffirmed . . . in particular paragraph 2 of resolution 678 (1990)” The 1990 Security Council Authorization to Use Force Against Iraq was never repealed

The Security Council Affirmed Existence of a “Threat to the Peace” but lacked will to take “prompt and effective action” E.g., on 2 March 1998, the Security Council in Resolution 1154 expressed its determination “to ensure full compliance by Iraq without conditions or restrictions with all its obligations” under previous resolutions, and threatened that “any further violations” would be followed by the “severest consequences” for Iraq. [Sadly, no “consequences” followed.]

Security Council Resolution 1441(November 2002) Acting under Chapter VII (and thus again implicitly recognizing that Saddam’s regime remained a “threat to the peace”), two pages of preamble “recalled” and “deplored” various acts of Iraqi noncompliance with prior Council resolutions—specifically, “recalling” that “resolution 678 (1990) authorized Member States to use all necessary means . . . to restore international peace and security in the area,” and once again, formally found Iraq to be “in material breach” of the cease-fire resolution. The Council resolved “to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations”

The Security Council Believed Saddam Had WMD in 2003 Following a Jan. 9, 2003, briefing of the Security Council by Hans Blix and Mohamed ElBaradei, the UN News Center announced: “Speaking afterwards in his national capacity, [UN Security Council President] Ambassador de La Sablière said that France reiterated its full support to UNMOVIC and the IAEA in the fulfillment of their mandate, ‘with the view to achieve and verify the disarmament of Iraq through peaceful means, which is our common objective.’ . . .”

Iraqi Freedom, Preemption and the Jus Ad Bellum