Has the case for war been made?
Scott Appleby
As you will have noticed, Saddam Hussein, the murderous dictator of Iraq, is defying the United Nations by refusing to demonstrate that he has complied with a resolution passed by the U.N. Security Council in 1991, following Iraq's defeat in the Gulf War. The resolution demanded full disclosure of Iraqi weapons of mass destruction and full disarmament by Iraq. Seven years of inspections ended in 1998 amid complaints by U.N. weapons inspectors that Iraq was not complying.
In November 2002, the U.N. Security unanimously passed Resolution No. 1441, which offered Saddam a "last chance" to disarm voluntarily. A false disclosure, coupled with "failure by Iraq at any time to comply and cooperate fully," the resolution warned, would be considered a material breach that should trigger consideration by the council of "serious consequences."
The serious consequences seem to be upon us, whether or not the Security Council endorses them, in the form of a pre-emptive military strike against Iraq by the U.S. and its allies.
Several complex moral, political and legal questions arise — questions that evoke and challenge the principles of Catholic teaching on war and peace. Is war the best, or only, way to disarm Iraq? Would an attack upon Iraq provoke Saddam to use whatever weapons of mass destruction are at his disposal? What would be the regional and international consequences of a U.S.-led war in the region? On the brink of war, what are the responsibilities of an informed citizenry, the media, a Catholic university?
To address these and related issues, faculty and students have been participating in a forum entitled "Peace and War 2003: Debating the Issues." This two-part essay reports on the major themes that arose in the first two sessions.
The choice of peace or war, being a life and death decision, has led historically to the development of legal and moral traditions which impose severe restrictions on killing and warfare. The burden of proof has typically fallen on those who wish to wage war, not on those who preserve the peace.
Sketching critical moments in the history of international law, with reference to the thought of Francisco de Vitoria, Hugo Grotius, and Immanuel Kant, political philosopher Fred Dallmayr argued that war can be waged only in self-defense, in defense of allies or in retribution for inflicted wrongs. As the late philosopher John Rawls believed, "Free and democratic peoples ... have no right to instigate war for reasons other than self-defense." Accordingly, Article 51 of the U.N. Charter grants to member states the right of self-defense only in the case of a direct attack.
Yet self-defense and defense of allies does not cover every possible just cause for war in our age of potentially genocidal ethnic, religious and civil conflicts. The world community — Europe and the United States in particular — failed to intervene to stop mass murder and genocide in Rwanda in 1994, when 800,000 Hutus and Tutsis were slaughtered. The moral hand-wringing over the lack of intervention continues, appropriately, to this day.
Political scientist Keir Lieber finds the legal case for war persuasive. As Hans Blix, the head of the U.N. inspection team, reported on Jan. 27, "Iraq appears not to have come to a genuine acceptance, not even today, of the disarmament which was demanded of it." Saddam has failed to cooperate in numerous ways, not least by blocking U2 surveillance flights and prohibiting or restricting interviews with Iraqi scientists.
To understand the inspections as a hunt for a "smoking gun," for direct and irrefutable evidence of a program to build and deploy weapons of mass destruction, Lieber argued, is to concede the interpretation of the U.N. resolution to Saddam. That resolution is clear: Inspectors are in Iraq to review and confirm Iraq's disarmament. They are not there to prove Saddam's case; Saddam must provide proof of it.
The liberation of Iraq from a brutal dictator is itself a moral imperative. "We cynically dismiss such language as having ulterior motives of power or empire or oil," Lieber said, "but humanitarian intervention of this kind, against a dictator who has repeatedly `shocked moral conscience' is not in violation of the spirit of Just War theory."
International law is not always morally binding, but there is a strong prima facie moral obligation to respect positive law, Professor Vittorio Hosle argued, lest in violating it, even for morally acceptable reasons, we set a dangerous precedent. The overwhelming majority of international jurists hold that the charter of the United Nations, while not regarded by all states as a "constitution of the world," is legally binding on all states that have joined the U.N.
What we have in international law, however, is not a law of and for the people, but a law of and for states. It does not protect people from their own states.
In the case of Iraq, however, by 1991 there were binding limitations on Iraqi sovereignty because Iraq had waged two wars, including one against Iran that featured Iraqi use of chemical weapons — and various kinds of support from the United States.
Hosle, citing a document issued by the White House in September 2002 (and easily available on the web), nonetheless expressed reservations about the administration's justifications for war with Iraq. That policy document, "The National Security Strategy of the United States of America," reserves to the United States the "right" to launch a pre-emptive strike.
This policy runs directly counter to international law as it has developed in the twentieth century. The Kellogg-Briand Peace Pact of 1927 challenges the legitimacy of pre-emptive war, and the U.N. Charter fails to recognize it. (Indeed, toward the end of the eighteenth century Kant asserted that a pre-emptive war could be justified only against a nation that is too powerful for the others-making pre-emptive war a dangerous principle, perhaps, for the United States to advocate.)
Nonetheless, the U.S. National Security Strategy document contends that "our [U.S.] forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or even equalling, the power of the United States."
Does this mean, Professor Hosle asked, that if another country, such as China, tries to build up a military power commensurate to their growing economic power and comparable to the military power of the United States, that the United States has a right to declare a pre-emptive war against China? This interpretation of current U.S. policy alarms many people around the world, he observed, and accounts in part for a rising anti-Americanism.
Scott Appleby is a professor of history and director of the Kroc Institute for International Peace Studies. His column is the first in the series "Viewpoint: Iraq," which will examine the possible U.S. conflict with Iraq from a variety of perspectives. To comment on this or any column in the series, write to viewpoint.1@nd.edu.
The views expressed in this column are those of the author and not necessarily those of The Observer.
All Viewpoint Stories for Tuesday, February 4, 2003
