COMMENTARY
Costs of invading Iraq long-lasting, disastrous
By Jon M. Van Dyke
As the momentum accelerates toward our launching a pre-emptive invasion of Iraq, it is important to recognize and appreciate the costs of undertaking such an initiative without United Nations authorization.
Associated Press
Some of these costs are obvious — including the deaths of many and the expansion of the hatred many Muslims hold toward our country. But other costs may be even more long-lasting, including significant damage to the fragile structure of international law and undermining our ability to denounce and punish other countries and leaders who send their armies across international borders to serve their national and personal interests.
Demonstrators greet President Bush last week in Minnesota: A unilateral war can destroy world respect for principles of international law.
President Bush has made it clear that he intends to proceed with this invasion with or without the authorization of the U.N. Security Council. If the Security Council does authorize the use of force, then it will have the legitimacy required under international law for the use of force. But if the Security Council refuses to provide a green light, the U.S. action would provide a precedent for other countries that want to use force against their neighbors, such as Russia (which has been itching to invade Georgia), India (which has been looking for an opening to invade Pakistan), and perhaps China (if it decides to use force against Taiwan or in the South China Sea).
Since the aggression waged by Germany and Japan in World War II, the world community has sought to make it clear that the use of force by one country against another is never acceptable, except in self-defense following an armed attack. Article 2(4) of the 1945 U.N. Charter explicitly prohibits "the threat or use of force against the territorial integrity or political independence of any state." The 1946 Judgment and Opinion of the International Military Tribunal at Nuremberg ruled that "premeditated and carefully prepared" use of force by Germany against its European neighbors constituted "the supreme international crime." Eight German leaders were convicted of this crime, and five were hanged for their actions.
Defining aggression
U.S. Supreme Court Justice Robert Jackson, who took leave from the Court to serve as chief prosecutor for the United States at Nuremberg, told the tribunal that "we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
In 1974, the U.N. General Assembly issued a Definition of Aggression which said that "the first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression," and that "no consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression."
In its 1986 Nicaragua decision, the International Court of Justice explained that countries have the right to accumulate weapons and armaments within their own borders, and that such preparations do not justify a pre-emptive military strike by others. The court also said that international law does not permit "intervention by one State against another on the ground that the latter has opted for some particular ideology or political system" and further that the use of force is not "the appropriate method" to ensure respect for human rights.
The 1991 Gulf War was waged with the explicit approval of the U.N. Security Council, and thus constituted a legitimate use of force. The 1999 NATO bombing of Kosovo, launched in response to massive and significant human-rights abuses, did not have the Security Council's formal approval, but many commentators concluded that it had de facto approval because the council decisively rejected a Russian resolution that would have condemned the bombing. The U.S. military action in Afghanistan that began a year ago was clearly justified as an act of self-defense, supported by language in the 1974 Definition of Aggression that says that a country that allows its territory to be used by others to launch attacks has itself committed aggression.
Violates international law
But the planned invasion of Iraq has no such convenient justification. Iraq has not used military force against any other country since its 1990 invasion of Kuwait. The Kurds in northern Iraq, who had been brutally oppressed in earlier periods, have now established an autonomous zone which operates free from Baghdad's control. Despite the herculean efforts of his staff, President Bush has not been able to link Iraq to any recent acts of terrorism.
Iraq has been effectively contained by the military and economic pressure imposed on it by the United States and other countries pursuant to U.N. resolutions. It is unlikely to use weapons of mass destruction because it knows it would suffer a swift and overwhelming military response from the United States and other affected nations.
A pre-emptive invasion of Iraq undertaken without U.N. authorization thus presents several significant problems. President Bush and the civilian and military leaders who have been advising him could be prosecuted or sued for civil damages in some foreign tribunal in some future period based on accusations of having waged a war of aggression in violation of international law, just as Henry Kissinger is now being accused of violating international law for his actions three decades ago. Whether or not such accusations would be justified, they would sour U.S. relations with other countries and haunt those individuals subjected indefinitely to these threats.
Loss of moral leadership
More significantly, the United States will lose its moral leadership and its ability to condemn other countries and their leaders for using force, or threatening to do so, or violating other fundamental norms of international law.
It was significant in his Cincinnati speech on Oct. 7 that President Bush referred repeatedly to principles of international law in trying to make his case for an invasion. He condemned, for instance, Saddam Hussein's chemical attacks on Iran and on Iraqi villages, which are illegal based on principles of customary international law that have evolved over the years. He advised Iraq's generals to refuse to follow Saddam's orders, and said that "they must understand that all war criminals will be pursued and punished." They should be punished, of course, if they violate international law principles, but such principles will continue to have meaning and teeth only if the United States also treats them with the respect they deserve. Also on Oct, 7, the United States condemned Israel for launching an attack in Gaza that killed civilians out of proportion to any legitimate military goal, again invoking well-established principles of international law.
In 1946, Justice Jackson idealistically told the Nuremberg tribunal that the United States will follow the principles of international law that we would be enforcing against others. If we now launch a pre-emptive invasion without U.N. authorization or any respectable justification under international law, it will reduce our ability to insist that other countries adhere to the principles of international law, and thereby weaken the international legal system and produce a less stable world.
Professor Van Dyke teaches international and constitutional law at the William S. Richardson School of Law, UH-Manoa.
