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 Ø 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. Ø 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. Turner—Jus Ad Bellum (Sept. 17, 2003)

Caveat Ø I also wrote a 15, 000 -word book chapter defending the legality of OIF (pdf on CNSL web page). Ø 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. Turner—Jus Ad Bellum (Sept. 17, 2003)

Caveat Ø 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. ) Ø 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. Ø But I still think our goal was a noble one. Turner—Jus Ad Bellum (Sept. 17, 2003)

The WMD Issue Ø I did not think Saddam’s WMD’s were the most important reason to remove him; Ø 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. Turner—Jus Ad Bellum (Sept. 17, 2003)

The WMD Issue Ø Why else would Saddam have refused for more than a decade to obey Security Council orders to permit international supervision of their destruction? Turner—Jus Ad Bellum (Sept. 17, 2003)

Saddam Used WMD Against Iran Beginning in 1983 Ø A once highlyclassified State Dep’t cable dated Nov. 1, 1983, disclosed Iraq was using chemical weapons against Iran “almost daily. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

Saddam Used WMD Against His Own People Ø In 1988, Saddam used illegal chemical weapons against Iran; Ø He also killed tens of thousands of his own Iraqi citizens with illegal mustard gas and nerve agents. Turner—Jus Ad Bellum (Sept. 17, 2003)

Anyone Who Tells You Saddam Never Had WMD Is Out of Touch With Reality Turner—Jus Ad Bellum (Sept. 17, 2003)

Anyone Who Tells You Saddam Never Had WMD Is Out of Touch With Reality UN Inspectors in Iraq Turner—Jus Ad Bellum (Sept. 17, 2003)

Iraq Once Had a Nuclear Weapons Program Ø On June 7, 1981, Israel bombed the Osirak nuclear reactor near Baghdad that was part of Saddam’s nuclear weapons program. Ø Coincidentally, that was my first day working in the Pentagon. Turner—Jus Ad Bellum (Sept. 17, 2003)

Bush Did Not “Lie” in his 2003 State of the Union Address “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

Iraq Once Had a Nuclear Weapons Program Ø Tony Blair came to DC and affirmed in a press conference the British had told us Saddam tried to buy uranium in Africa in 1998. Ø The Butler Commission concluded the story was true and British Intelligence stands by it. Turner—Jus Ad Bellum (Sept. 17, 2003)

Iraq Once Had a Nuclear Weapons Program The CIA did not say this was false information, Ø President Bush was correct not independently but rather that CIA could when he said in his State of verify the information. the Union Address that the Amb. told us British had. Joe Wilson told CIA a former Niger Prime Minister told him he was approached to Saddam tried to buy meet with an Iraqi trade delegation, and he uranium in Africa in 1998. assumed they wanted to purchase “more Ø The Butler Commission uranium. ” concluded the story was true and British Intelligence stands by it. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” Ø 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. ] Turner—Jus Ad Bellum (Sept. 17, 2003)

Iraq Liberation Act of 1998 H. R. 4655  Ø “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. . Turner—Jus Ad Bellum (Sept. 17, 2003)

Iraq Liberation Act of 1998 H. R. 4655  Ø“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. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

Iraq Liberation Act of 1998 H. R. 4655  Ø “Since March 1996, Iraq has systematically sought to deny Texas Governor weapons inspectors from the United Nations Special George W. Bush Commission on Iraq (UNSCOM) access to key facilities and would not even documents, has on several occasions endangered the safe operation of UNSCOM helicopters transporting UNSCOM move to personnel in Iraq, and has persisted in a pattern of deception Washington for and concealment regarding the history of its weapons of mass destruction programs. . another two years. Ø “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. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” President Bill Clinton, Feb. 17, 1998 Ø “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. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” Madeline Albright, Feb. 18, 1998 Ø “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. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” Sandy Berger, Feb. 18, 1998 Ø "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. " Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” Sen. Jay Rockefeller, Oct. 10, 2002 Ø “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. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” Sen. Ted Kennedy, Sept. 27, 2002 Ø “We have known for many years that Saddam Hussein is seeking and developing weapons of mass destruction. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” Sen. Hillary Clinton, Oct. 10, 2002 Ø “In the four years since the inspectors left, intelligence reports show that Saddam Hussein has worked to rebuild. . . his nuclear program. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

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. ) Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” Sen. Joe Biden on Meet the Press, Ø MR. RUSSERT: I want to go back to 2002, April 29, 2007 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. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” Ø 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. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Lie about “Lying” Ø MR. RUSSERT: Where are they [WMD]? Ø SEN. BIDEN: Well, the point is, it turned out they didn’t, but everyone in the world thought he had them. Turner—Jus Ad Bellum (Sept. 17, 2003)

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? Turner—Jus Ad Bellum (Sept. 17, 2003)

What Happened to Saddam’s WMD? Ø 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. ) Ø 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. Turner—Jus Ad Bellum (Sept. 17, 2003)

My Reasons for Believing OIF was Legally Justified and Wise Policy

Learning from History: The League of Nations Ø 1928—Aggressive war outlawed by Kellogg -Briand Treaty; Ø 1931—Japan invaded Manchuria (League passed resolution condemning); Ø 1935—Italy invaded Ethiopia (League passed another resolution); Ø 1939—Hitler correctly concluded the world lacked the will to resist aggression. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Human Costs of WW II An estimated 40 million people died because of World War II: Ø Ø Ø 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 Ø More than 20 million deaths from genocide, starvation, disease, and bombardment. —John Ellis, World War II: A Statistical Survey (1993) Turner—Jus Ad Bellum (Sept. 17, 2003)

Why Act Without Security Council Approval Ø The credibility of the World Community was at risk. Ø 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. Ø Without effective enforcement action, no future tyrant would take Charter obligations seriously. Turner—Jus Ad Bellum (Sept. 17, 2003)

Exhausting Peaceful Remedies Ø 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. Turner—Jus Ad Bellum (Sept. 17, 2003)

A Proposed Jus Ad Bellum Standard in Settings Like Kosovo and Iraq Ø Strong presumption against intervention outside Security Council framework; Ø Consider “totality of the circumstances” in assessing claims; Ø 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). Ø 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. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Legal Predicate for Operation Iraqi Freedom Ø 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. ); Ø Iraq’s illegal support for terrorism; Ø Iraq’s dozen years of material breach of numerous Chapter VII UNSC resolutions recognizing Iraq as a “threat to the peace. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

The Legal Predicate for Operation Iraqi Freedom Ø 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. ” Ø Furthermore, humanitarian intervention was as justified in Iraq as in Kosovo. Turner—Jus Ad Bellum (Sept. 17, 2003)

The UN Charter is 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. . Turner—Jus Ad Bellum (Sept. 17, 2003)

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. Turner—Jus Ad Bellum (Sept. 17, 2003)

WMDs & Preemption John 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. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

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. Turner—Jus Ad Bellum (Sept. 17, 2003)

For more than a dozen years Iraq 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. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

Security Council Resolution 687 (under Chapter VII and on which 1991 cease-fire was premised) Iraq admitted it had WMD in March 1991. Ø Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: Ø (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; Turner—Jus Ad Bellum (Sept. 17, 2003)

Security Council Resolution 687 (under Chapter VII and on which 1991 cease-fire was premised) Ø Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: Ø (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; Turner—Jus Ad Bellum (Sept. 17, 2003)

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. . ” Turner—Jus Ad Bellum (Sept. 17, 2003)

The 1990 Security Council Authorization to Use Force Against Iraq was never repealed SC Res. 678 SC Res. 949 [Nov. 1990] [Oct. 1994] 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. ” Turner—Jus Ad Bellum (Sept. 17, 2003) “reaffirmed. . . in particular paragraph 2 of resolution 678 (1990)”

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. ] Turner—Jus Ad Bellum (Sept. 17, 2003)

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” Turner—Jus Ad Bellum (Sept. 17, 2003)

The Security Council Believed Saddam Had WMD in 2003 Following a Jan. 9, 2003, briefing of the Security Council by Hans Blix and Mohamed El. Baradei, 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. ’. . . ” Turner—Jus Ad Bellum (Sept. 17, 2003)

The Security Council Believed Saddam Had WMD in 2003 “Ambassador Gunter Pleuger said Germany made it clear that it is up to Baghdad to make sure that the disarmament of Iraq can be done in a peaceful manner, by cooperation. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

Chief UN Arms Inspector Hans Blix (To UN Security Council • January 27, 2003) Ø “Iraq appears not to have come to a genuine acceptance, not even today, of the disarmament which was demanded of it and which it needs to carry out to win the confidence of the world and to live in peace. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

The United Nations: A Vision for World Peace Ø In 1945 the United States took the lead in promoting a new world organization that would have the power to keep the peace. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Security Council Does Not Have Exclusive Responsibility for Peace Article 24 1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security. Turner—Jus Ad Bellum (Sept. 17, 2003)

United States Would Not Have Signed Charter if SC Veto Could Block Effective Action for Peace “At San Francisco, one of the things which we stood for most stoutly, and which we achieved with the greatest difficulty, was a recognition of the fact that the doctrine of self-defense. . . could stand unimpaired and could function without the approval of the Security Council. ” - Sen. Arthur Vandenberg, Testimony to Senate Foreign Relations Committee on UN Charter Ratification (1945) Turner—Jus Ad Bellum (Sept. 17, 2003)

Senator Vandenberg to Inter-American Bar Association (1949) Ø “If the Security Council fails to act—or is stopped from acting, for example, by a veto —Article 51 continues to confound aggression. The United Nations is thus saved from final impotence. So is righteous peace. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

Aggressive vs. Defensive Uses of Force Ø If true motive was aggressive (e. g. , to deny self-determination or seize Iraqi oil, territory, etc. ) OIF was unlawful; Ø If motive was defensive—necessary to prevent wrongful use of lethal force against the innocent (U. S. , other States, or Iraqi people)—may be consistent with Charter. Turner—Jus Ad Bellum (Sept. 17, 2003)

Even Pravda Admits We Had Evidence of Planned Iraqi Aggression Turner—Jus Ad Bellum (Sept. 17, 2003)

The US Had Evidence Saddam Planned Attacks on US Targets “After the events of September 11 th and prior to the military operations in Iraq Russian special services were informed several times about the fact that official body of Saddam regime was planning terrorist acts in the United States and beyond the country’s borders, stated Russian President Vladimir Putin Friday. . continued. . . Turner—Jus Ad Bellum (Sept. 17, 2003)

The US Had Evidence Saddam Planned Attacks on US Targets “According to him [Putin], our American colleagues have been supplied with this information. . . American President George Bush had an opportunity to personally thank head of one of the Russian special services for this information, which he regarded as very important, stated Russian president. ” - “Putin Claims Bush Was Personally Informed” Pravda, June 18, 2004 Turner—Jus Ad Bellum (Sept. 17, 2003)

Article 51 Not the Only Lawful Basis for Force Ø Art. 51 added later to clarify defensive rights unimpaired. Ø Other non-aggressive uses of force— especially when furthering goals of Charter—not always unlawful. Turner—Jus Ad Bellum (Sept. 17, 2003) Article 51 “Nothing in the present Charter shall impair the inherent right of individual or collective selfdefense if an armed attack occurs against a member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. ”

What About “Armed Attack” Language? Article 51 refers specifically to “armed attack” or (in French translation) “armed aggression. ” But this was designed to clarify that Charter did not impair individual or collective responses to greatest threat perceived in wake of WW II. Article 51 itself was not the basis of the prohibition against wrongful threat or use of force. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Modern Prohibition Against Aggression Article 2(4) “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

Did OIF Violate the UN Charter? Ø No long-term threat to territorial integrity or political independence of Iraq; Ø Self-determination, human rights, other Charter values clearly strengthened. Ø Was OIF contrary to the “purposes” of the UN Charter? Turner—Jus Ad Bellum (Sept. 17, 2003)

The First “Purpose” of the United Nations Artice 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. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Primary Goal of the Charter is Deterrence Suppressing “acts of aggression” was a less desirable goal than “removing threats to the peace. ” The authors of the Charter thus recognized, as Sun Tzu observed 2500 years ago: “To win 100 victories in 100 battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill. ” —The Art of War (c. 500 BC) Turner—Jus Ad Bellum (Sept. 17, 2003)

Query Q. What is a good term for a doctrine of acting collectively to remove “threats to the peace, ” without awaiting for an actual armed attack before acting? Turner—Jus Ad Bellum (Sept. 17, 2003)

Query Q. What is a good term for a doctrine of acting collectively to remove “threats to the peace, ” without awaiting for an actual armed attack before acting? A. Can you say “PREEMPTION”? Turner—Jus Ad Bellum (Sept. 17, 2003)

The Security Council was emulating the League of Nations Effective deterrence requires credibility, and the Security Council’s repeated failure to enforce its Chapter VII orders to Iraq not only destroyed its credibility with Baghdad, but also sent signals of weakness to Pyongyang, Tehran, Tripoli, and wherever Osama bin Laden was as well. The Security Council was emulating the worst traditions of the League of Nations —in the process jeopardizing the ability of the Rule of Law to help maintain international peace. Turner—Jus Ad Bellum (Sept. 17, 2003)

The U. S. -U. K. Position Ø Both told the Security Council that Iraq’s “material breach” of Res. 687 terminated the 1991 cease-fire and permits force to be used to “restore peace and security to the area” under Res. 678. Ø By itself, I think this is insufficient (arguable case), because the cease-fire agreement was between Iraq and the SC and material breach does not ipso facto terminate the agreement but merely creates a right in other Party to elect to do so. [See Vienna Convention on Treaties, Art. 60. ] Turner—Jus Ad Bellum (Sept. 17, 2003)

ICJ Judge Phillip C. Jessup on Use of Force and UN Charter “Article 2, paragraph 4, is not an absolute prohibition on the use of force. If force can be used in a manner which does not threaten the territorial integrity or political independence of a State, it escapes the restriction of the first clause. But it must then be established that it is not ‘in any other manner inconsistent with the Purposes of the United Nations. ’” Jessup, A Modern Law of Nations 162 (1952) Turner—Jus Ad Bellum (Sept. 17, 2003)

Judge Phillip C. Jessup on Use of Force and UN Charter “Article 2, paragraph 4, is not an absolute prohibition on the use of force. If force can be used in a manner which does not threaten the territorial integrity or political independence of a State, it escapes the restriction of the first clause. But it must then be established that it is not ‘in any other manner inconsistent with the Purposes of the United Nations. ’” Jessup, A Modern Law of Nations 162 (1952) Turner—Jus Ad Bellum (Sept. 17, 2003)

Sir Prof. Derek Bowett on Territorial Integrity “The inviolability of territory is subject to the use of that territory in a manner which does not involve a threat to the rights of other states. ” - Derek Bowett, Self-Defense and International Law 54 (1958) Turner—Jus Ad Bellum (Sept. 17, 2003)

Sir Prof. Derek Bowett on Territorial Integrity “The inviolability of territory is The Security Council subject to the use of that repeatedly determined that territory in a manner which does Iraq’s use of its territory not involve a threat to the rights was a “threat to the peace” of other states. - Derek Bowett, Self-Defense and International Law 54 (1958) Turner—Jus Ad Bellum (Sept. 17, 2003)

The Terrorism Issue Ø Saddam’s regime was denounced by SC Res. 1441 (Nov. 2002) for failure to abide by legal obligations not to support terrorism; Ø Saddam was behind at least one major terrorist attack on United States (to kill Bush Sr. ) and quite possible others (he had an anthrax program); Ø Saddam provided funds for terrorists who kill Americans in Israel and gave safe haven for major terrorists in violation of UNSC resolutions. Turner—Jus Ad Bellum (Sept. 17, 2003)

UNSC Resolution 687 2 March 1991 • Paragraph 32 Ø Iraq must “inform the Security Council that it will not commit or support any act of international terrorism or allow any organization directed towards commission of such acts to operate within its territory and to condemn unequivocally and renounce all acts, methods and practices of terrorism. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

The Security Council Found Iraq Guilty of Supporting Terrorism Security Council Resolution 1441 (November 2002) Deplored that the Government of Iraq had failed to comply with “its commitments pursuant to resolution 687 (1991) with regard to terrorism. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

Doctrine of Anticipatory Self-Defense May a state strike first when clear threat exists? [not enough time to discuss seriously today] Turner—Jus Ad Bellum (Sept. 17, 2003)

Vattel on Anticipatory Self-Defense (1758) “[T]here cannot exist a doubt, that, if that formidable potentate certainly entertains designs of oppression and conquest. . . the other states have a right to anticipate him. . This right of nations is still more evident against a sovereign, who, from a habitual propensity to take up arms without reasons, or even so much as plausible pretexts, is continually disturbing the public tranquility. ” [Like Saddam? ] - Emerich de Vattel, Le Droit des Gens, Bk. III, Ch. iii (1758). Turner—Jus Ad Bellum (Sept. 17, 2003)

The Issue of “Regime Change” Ø Critics say even if force is justified to eliminate WMD risk, there is no legal right to overthrow Saddam. § Was it unlawful to promote democracy in Germany Japan, and Italy following WWII? § In reality, the defensive right to remove a prince who has repeatedly broken the peace has been recognized since the earliest days of international law. Turner—Jus Ad Bellum (Sept. 17, 2003)

Franciscus de Vitoria On the Law of War (1532) It is undeniable that there may sometimes arise sufficient and lawful causes for effecting a change of prince or for seizing a sovereignty; . . . especially when security and peace cannot otherwise be had of the enemy and grave danger from them would threaten the State if this were not done. Turner—Jus Ad Bellum (Sept. 17, 2003)

Humanitarian Intervention The Issue We Failed to Raise Turner—Jus Ad Bellum (Sept. 17, 2003)

International Law Does and Must Recognize a Right to Humanitarian Intervention Recent research by Prof. R. J. Rummel suggests that during 20 th Century, nearly 4 times more people were slaughtered by “Democide” than in combat. If international law says such conduct is an “internal matter” or may be immunized by a Security Council veto, it is part of the problem and not of the solution to world peace. Turner—Jus Ad Bellum (Sept. 17, 2003)

Sacrificing Iraq’s Children Special Rapporteur of the UN Commission on Human Rights (1999) After the imposition of international sanctions in August 1990, the Government of Iraq decided not to take advantage of Security Council resolutions. . . adopted by the international community in response to the specific needs of the Iraqi people. These Security Council resolutions allowed Iraq to sell $1. 6 billion worth of oil every six months, with the aim of importing humanitarian supplies. Instead, the Government of Iraq decided to rely on domestic production to meet the humanitarian needs of its people, preferring to let innocent people suffer while the Government maneuvered to get sanctions lifted. Turner—Jus Ad Bellum (Sept. 17, 2003)

Sacrificing Children Special Rapporteur of the UN Commission on Human Rights (1999) The under-five mortality rate in the south and center of Iraq (home to eighty-five percent of the population) grew from 56 deaths per 1, 000 live births prior to 1989 to 108 per 1, 000 [up 93%] during the five-year period ending in 1999. In contrast, in the autonomous northern region of Iraq, where Saddam was not in control, the mortality rate declined twenty percent during the 1990 s. Turner—Jus Ad Bellum (Sept. 17, 2003)

Amnesty International on Human Rights Crisis in Iraq (2001) Ø Amnesty International alleges that Saddam’s Iraq is also responsible for most of the “hundreds of thousands” of disappearances in the Middle East and North Africa in recent years, and estimates that an additional 500, 000 children have died in Iraq in the past decade or so. An estimated three to four million Iraqis have fled their country and become refugees, ranking Saddam’s regime second only to the Taliban’s Afghanistan in the number of displaced persons it has created. Turner—Jus Ad Bellum (Sept. 17, 2003)

Humanitarian Crisis in Iraq Special Rapporteur of the UN Commission on Human Rights (1999) At the beginning of 1992, the Special Rapporteur concluded that the gravity of the human rights situation in Iraq had few comparisons in the world since the end of the Second World War. The Special Rapporteur regrets that since then he has had no cause to change his view. The prevailing regime in Iraq has effectively eliminated the civil rights to life, liberty and physical integrity and the freedoms of thought, expression, association and assembly. . Turner—Jus Ad Bellum (Sept. 17, 2003)

Humanitarian Crisis in Iraq Special Rapporteur of the UN Commission on Human Rights (1999) Indeed, the Special Rapporteur has concluded that the political-legal order in Iraq is not compatible with respect for human rights and, rather, entails systematic and systemic violations throughout the country, affecting virtually the whole population. Turner—Jus Ad Bellum (Sept. 17, 2003)

Human Cost of Saddam’s Iraq: More Than 1. 5 Million Killed Ø Aggressive war on Iraq and Kuwait: 1, 000+ Ø Children who died because Saddam refused to allow food and medicine: 500, 000 Ø Kurds exterminated with poison gas: 30, 00060, 000 Ø Kurds exterminated in other ways: 20, 000 -150, 000 Ø Disappearances (most likely dead): 70, 000150, 000 Ø Refugees: 3, 000 -4, 000 Turner—Jus Ad Bellum (Sept. 17, 2003)

The Security Council Recognized Iraq’s Humanitarian Abuses Security Council Resolution 1441 (November 2002) Deplored that the Government of Iraq had failed to comply with “its commitments. . . to end repression of its civilian population and to provide access by international humanitarian organizations to all those in need of assistance in Iraq. ” Turner—Jus Ad Bellum (Sept. 17, 2003)

By Comparison Ø NATO went into Kosovo in 1998 to remove a regime that had created fewer refugees (1. 3 million according to UNCHR vs. 3 to 4 million in Iraq) had far fewer “disappearances, ” and had not killed anywhere near the number of children that Saddam’s regime did. Turner—Jus Ad Bellum (Sept. 17, 2003)

Kosovo vs. Iraq Ø Greater history of aggression and abuse in Iraq; Ø No prior UNSC authorization to use force in Kosovo; Ø Humanitarian death tolls much higher in Iraq; Ø Both involved UNSC finding of “threat to the peace” followed by inaction under threatened veto. Turner—Jus Ad Bellum (Sept. 17, 2003)

We All Hate War But some have forgotten the lessons of Munich Turner—Jus Ad Bellum (Sept. 17, 2003)

Thomas Jefferson (1793) “I believe that through all America there has been but a single sentiment on the subject of peace and war, which was in favor of the former. . We have differed, perhaps, as to the tone of conduct exactly adapted to the securing it. ” —Jefferson to Monroe, June 28, 1793 Turner—Jus Ad Bellum (Sept. 17, 2003)

Any Questions? I always like to reserve the first question for someone who is really angry or upset. Let’s first give John a chance to show I’m wrong. Turner—Jus Ad Bellum (Sept. 17, 2003)

Self-Determination and the Sovereign Will of the Iraqi People Did Operation Iraqi Freedom flaunt the sovereign will of the people of Iraq? We don’t have to guess, as scientific polls of Iraqi public opinion exist. Turner—Jus Ad Bellum (Sept. 17, 2003)

The Iraqi People Overwhelmingly Supported OIF June 2003 poll by Independent Iraqi Institute of Strategic Studies showed by margin of nearly 4 -to-1 Iraqis wanted U. S. to stay until peace and security were restored. Stay until stable and secure: 65% Leave immediately: 17% -CBS News, 20 June 2003 Turner—Jus Ad Bellum (Sept. 17, 2003)

The Iraqi People Overwhelmingly Supported OIF By mid-July 2003, Iraqis in Baghdad responding to a You. Gov poll voicing support for U. S. troops remaining “for some time” rose to 70% (56% for “at least a year, ” with only 11% favoring immediate departure. (Support for U. S. is higher outside of Baghdad. ) Given options, a plurality favored “British/American style democracy, ” with 5% wanting Saddam back. Turner—Jus Ad Bellum (Sept. 17, 2003)