Alumni Report

Is This War Legal, Ethical, and Prudential?

By Stanley A. Taylor, ’59

Stan Taylor, a professor of political science, considers the impending war using legal, ethical, and prudential frameworks.

I am delighted to be here and appreciate the advice and comments of my predecessors on the panel, in whose judgment I have great confidence. I suggest that a U.S. invasion of Iraq can be evaluated on legal, ethical, and prudential grounds. Each asks a different question.

1. Is it legal?

Like all significant considerations, this is a very complicated issue. It is legal according to U.S. law. A year ago Congress, wisely or unwisely, authorized the president to use force against Iraq if he deemed it necessary. That was in the blissful days when the nation was somewhat united due to the events of Sept. 11.

The question today is whether or not it is legal under international law. This is not an easy question to answer given the essentially anarchic nature of lawmaking in the international community. Nearly all international lawyers agree that the United Nations Security Council has the authority to call for military actions against Iraq. But the real question, it seems to me, is not Has the Security Council the authority to do that? but Hasn’t it already done that?

Resolution 678 (November 1990), which authorized the first Gulf War, has been called the “mother of all resolutions.” Resolution 687 declared that Iraq should unconditionally pursue the destruction of all weapons of mass destruction under international supervision, return all Kuwaiti property appropriated during its invasion and occupation, and repatriate all Kuwaiti and third-party nationals taken as prisoners of war—or face serious consequences. Saddam Hussein signed his name to those demands.

The United Nations Security Council has passed 17 official resolutions condemning Iraq for certain practices and using words such as “Iraq must cooperate fully with the United Nations . . . or face serious consequences.” The list of offenses ranges from failure to destroy weapons of mass destruction to failure to repatriate to failure to return property. U.N. inspectors have documented violations of existing resolutions involving chemical, biological, and nuclear weapons. Other U.N. agencies and human-rights organizations have called for Iraq to end its widespread torture of prisoners, violence against women, and other human-rights violations. And Amnesty International has similarly condemned Iraq for torture, including the common punishment for political prisoners of being decapitated in front of families. Amnesty International also says Iraq has the world’s worst record for disappearances—more than 16,000 unresolved cases.

Seventeen resolutions on Iraq later, the United Nations Security Council unanimously adopted resolution 1441, which required that Iraq give evidence that it has destroyed all of its weapons of mass destruction or face serious consequences. Let me quote just one provision of 1441. Provision 13 “recalls . . . that the council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations.” No one—not Hans Blix and not the French government—believes that condition has been met.

Though thoughtful people do disagree on this point, I do not believe that legal authorization for a U.S. invasion of Iraq is lacking. That doesn’t mean that I think we should invade, but I do not think the question fails on legal grounds.

For those who do not accept the chain of legal authorization running through 12 years of U.N. resolutions, the next question is whether or not Iraq presents a sufficiently imminent threat to allow self-defense. The U.N. charter, obviously, allows states the right of individual or collective self-defense in the face of an armed attack. Many international lawyers even believe that international law permits preemptive attacks, even before the other state launches a first attack. But some international lawyers believe that a preemptive attack is justified even if the planned attack is not imminent—again, especially if there is evidence that weapons of mass destruction might be used. In the words of one prominent international lawyer, “There is no need for a state to wait for an attack before attacking its opponent.” This right has now become part of what is called the Bush National Security Strategy.

By the way, some international lawyers believe that current international law allows unilateral, if necessary, intervention to prevent egregious violations of human rights.

2. Is it ethical?

There is a rich tradition of philosophical reasoning on this point, usually called the “just war” theory. Jimmy Carter and Pope John Paul II have both recently condemned the imminent U.S. invasion as not meeting the requirements for a just war. It would take too much time to go over each requirement of that theory, but I am struck with one overwhelming consideration: The war may not meet all of the requirements of the just war theory, but the current peace in Iraq is no better. I deeply appreciate Professor Hoskisson’s analysis of scriptural restraints against war, and, in general and in principle, I agree with him. I would also suggest that the scriptures leave room for judgment on a case-by-case basis. One of my former colleagues recently reminded me that war is very bad and never accomplishes anything—except to end colonialism, slavery, fascism, and Nazism and to remove Hitler, Mussolini, Milosevic, and the Taliban.

3. Is it prudent?

This is a political decision and requires vast amounts of detailed information and complex judgments. It also involves a large number of unknowns and suppositions about outcomes.

One of the most significant prudential arguments against the war is that Saddam can be deterred by the threat of overwhelming U.S. punishment if he does anything significantly wrong. I am uncertain of that. Former secretary of state James Baker met with Iraq’s foreign minister in Geneva on the eve of the first Gulf War. He personally handed him a letter from then-President George H. W. Bush pointing out that Iraq would face the “severest consequences” if he did any of three things: (1) use weapons of mass destruction; (2) destroy any Kuwaiti oil fields; or (3) unleash any terrorist actions against the United States. Was Saddam deterred from any of these? Well, he destroyed Kuwaiti oil fields and sent hit teams to the United States and tried to assassinate President Bush and the ruler of Kuwait after the war had ended. Although he did not use weapons of mass destruction against coalition ground forces, documents captured during the war revealed that he kept stocks in reserve to use if the war turned against him. They were not used only because the war ended too quickly and the weapons themselves were deemed unreliable. After the war Saddam told several close confidants that his greatest mistake was to invade Kuwait before he developed his nuclear weapon. Then, he said, the United States would not have dared to intervene.

Like many of you here, I worry very much about what will happen in the Middle East and around the world if we invade Iraq. But I also worry about what will happen if we don’t. I worry about unilateral preemptive action, but I’m glad we did it in the case of the Soviet missiles in Cuba. An invasion will not dampen any efforts by Al Qaeda. And a continuing presence of Baathist rule in Iraq could even be of help to Al Qaeda.

But it is the prudential argument that is still the weakest. I desperately hope the Canadian proposal, now picked up by the British, to extend the deadline for a short time while at the same time setting benchmarks that must be met during that time, will be accepted by the Security Council. President George W. Bush’s attempt to tie Iraq to Al Qaeda has been embarrassing. His failure to get allies on board before troops were sent has been a blunder. But we must never forget the nature of the man with whom we are dealing. I hope no one believes that Saddam’s reluctant, last-minute, minimal concessions to U.N. inspectors were brought on by the presence of 100 more inspectors. They were brought on by the presence of the 101st Airborne Division and others like it.

In sum, it may be possible to justify an attack against Iraq on legal and ethical grounds, but it may be a bit more difficult to justify it as prudent.

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