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Topic:
Is Action against Iraq Legally Justified? (October 30, 2002)
Introduction:

On October 15, 2002, President George W. Bush signed a joint Congressional Resolution authorizing the use of American military force against Iraq. Inside Washington's Beltway, at least, one issue seems settled: under U.S. law the president possesses the authority to strike. But Washington is not the world. The United Nations has been cautious about giving explicit approval of the Administration's plans for Iraq, and the Security Council has remained deadlocked in its closed door debate over authorizing the use of force. If the United States opts to go it alone -- if it undertakes a military strike without United Nations authorization -- there is a risk that this decision would be perceived as a snub to the international community and, more importantly, that it could set new and perhaps dangerous precedents for international law.

Sir Adam Roberts, the Montague Professor of International Relations at Oxford University, believes the legal case for a firm policy of pressure on Iraq already exists. However, there is a need for considerable care in translating that case into policy. Rather than focus on Iraq's threat to American security and defense, and thereby debate whether an American-led strike meets the bar set in the United Nations Charter guaranteeing the right to self-defense, Roberts argues that George Bush and British Prime Minister Tony Blair should rely upon Security Council resolutions already on the books. Specifically, Resolution 687 of April 3, 1991, the so-called "mother of all resolutions," which required Iraq to unconditionally renounce any biological, chemical, or nuclear program, and to accept international inspections by the UN Special Commission.  Iraq has failed to comply with this resolution.  Indeed, Security Council Resolution 1205 of November, 1998 (passed unanimously) condemned Iraq's "flagrant violation" of its commitments to the UN.  Saddam Hussein's repeated denial of international will, as expressed by the Security Council, seems to Roberts a stronger legal basis for military action than are the various much more speculative claims made in Washington that the main justification for action is to avert an imminent attack, to achieve a change of regime, or to prevent alleged Iraqi involvement in terrorism.  That the President himself made a similar argument when speaking to the United Nations suggests that official Washington may be moving toward gaining multilateral legal consent for military action.  For Roberts, that argument should have been made long ago. The U.S. administration is paying a high price, in terms of international political support, for having conveyed the impression that it wants a war with Iraq more than a solution to the weapons crisis; and for putting forward arguments for the proposed military action that are not as well based in international law as they could have been.

Professor Harold Hongju Koh believes the key issue regarding Iraq is not so much one of legal authority as geopolitical wisdom. For Koh, the issue comes down to whether the Bush Administration can reconcile its emerging approach to terrorism and weapons of mass destruction with established international law. While modern international law grants nations the right to undertake military action only if they face immediate, not potential, threats, the Bush Administration's new national security strategy white paper has broadly asserted America's right to strike out at potential adversaries -- in particular, states pursuing terrorism -- based on a prediction that they intend to do harm to American interests in the future. Arguments favoring preemptive attacks were used by Israel to justify striking against Iraq in the past. But Professor Koh worries that the recent Congressional Resolution authorizing the president to take military action "as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq" could lead to preemptive strikes well beyond the scope of any existing UN Security Council Resolution. In effect, this Resolution could open Pandora's Box and justify future unilateral military actions by other nations. We have not previously "accepted the idea that any country can unilaterally attack another in the name of preemptive self-defense," Koh writes, especially since "such reasoning could authorize China to attack Taiwan, North Korea to attack South Korea or many countries in the Middle East to attack Israel." For Professor Koh, the administration's desire to win its battle with Iraq today might damage the future of both international law and international relations. He maintains, "I do not believe that unilateral preemptive attack is what this country stands for."

Forum Format:
  • You can view the lectures presented by today's speakers by clicking on the links found in the "Lectures" section below.
  • After viewing each speech, please join your fellow participants and the Forum moderator on the Discussion boards. (Simply click the word "Discussions" on the left-hand side of this page.)
  • On the Discussion boards, participants can also pose questions to the faculty lecturers. Starting tomorrow, you can return to this session to find their responses posted in the "Professor Commentary" section below. Please note that because of the large turnout, the professors will not be able to respond to every question.
Lectures:
Sir Adam Roberts lecture, Why Military Action against Iraq Can Be Legally Justified, taped on October 23, 2002
You may access the lecture in any of the following formats:
audio video(High Bandwidth) video(Low Bandwidth) transcript

Harold Hongju Koh lecture, The Legal and Geopolitical Implications of Military Action, taped on October 28, 2002
You may access the lecture in any of the following formats:
audio video(High Bandwidth) video(Low Bandwidth)  transcript

Problems accessing the lectures? Click here.
Professor Commentary:
Professors Roberts and Koh will respond here to questions posed by participants on the Discussion boards. Commentary will be posted here on October 31, 2002. To review, click the following link: Professor Commentary
Recommended Resources:

Resources Recommended by Sir Adam Roberts:

Books

These three collections of essays and documents, many composed by the leading scholars in the fields of international relations and international law, lay an intellectual foundation for understanding the present crisis.

Bull, Hedley (ed.); Intervention in World Politics (Oxford University Press, 1993).

Freedman, Lawrence (ed.); Strategic Coercion: Concepts and Cases (Oxford University Press, 1998).

Roberts, Adam (ed.) and Guelff, Richard (ed.); Documents on the Laws of War, 3rd edition, (Oxford University Press, 2000).

Articles & Reports

The Case for War: Why Military Action against Iraq Can Be Legally Justified by Adam Roberts (September 17, 2002)
In this article appearing in the British newspaper, The Guardian, Professor Roberts outlines his multilateral legal justification for a strike against Hussein. The resolutions already exist, he writes, remaining from the Gulf War.  All that is required is to enforce them.

Iraq's Weapons of Mass Destruction: A Net Assessment  (London: IISS, 9 September 2002).
The London-based International Institute for Strategic Studies (IISS) issued its own recent report asserting that Iraq currently lacks nuclear capabilities, but could join the nuclear club "within months" if it acquired sufficient fissile material. A summary of the report's findings can be found on the IISS site.

Iraq's Weapons of Mass Destruction: The Assessment of the British Government  (London: HM Government, 24 September 2002).
Assembled by British Intelligence, this official government report alleges that Saddam Hussein has assembled chemical and biological weapons "deployable within 45 minutes of an order to use them," while also pursuing efforts to purchase uranium supplies in Africa.

United Nations Security Council: Resolutions on Iraq.
The following resolutions are particularly important to the current debate. You might find it useful to refer to resolutions 678 (29 November 1990); 686 (2 March 1991); 687 (3 April 1991), 'the mother of all resolutions'; and 1205 (5 November 1998).

Note: you will need Acrobat Reader to read these documents. If you don't have it installed, click here to download.

Also note: If you open the UN documents and the print is too small, you can enlarge the print by changing the number appearing in the box in the upper left hand corner. Adjust to 100%.

Relevent Articles Authored by Professor Koh

The Best Weapon: Article One by Harold Hongju Koh (September 16, 2001)
This is Professor Koh's September 2001 argument against an overly-broad Congressional authorization of force to combat the terrorists of September 11.  As is the case a year later, Koh believes America can and must combat its global threats without undermining its democracy at home through an overexhuberant concentration of power in the executive branch. "Congress has abundant constitutional power to punish the perpetrators of Tuesday's attacks for what they are," he wrote: "international criminals and violators of the law of all civilized nations."

A Better Way to Deal with Iraq by Harold Hongju Koh (October 20, 2002)
In this editorial, Professor Koh outlines his own objections to a proposed American conflict with Iraq: it would detract from the War on Terror; there seems no immediate threat from Hussein; and most importantly, a unilateral move would only cause harm to the United Nations. We cannot "ignore the UN in launching our attack, then expect that the UN will be there for the many years that it would take us to clean up and build a democratic postwar Iraq."

The Spirit of the Laws by Harold Hongju Koh (Winter 2002)
Writing in the Harvard International Law Journal, Professor Koh argues that our response to the terrorist attacks of September 11, 2001, should closely comport with the spirit of existing international law in order to "keep the law on our side," "keep us on the moral high ground," and "preserve the vital support of our allies, international institutitions, and the watching public as the crisis proceeds."

Note: you will need Acrobat Reader to read this article. If you don't have it installed, click here to download. If you open this document and the print is too small, you can enlarge the print by changing the number appearing in the box in the upper left hand corner. Adjust to 100%.

Additional Legal Resources and Opinions on the Conflict

But What's the Legal Case for Preemption? by Bruce Ackerman (August 18, 2002)
According to Bruce Ackerman, a professor at Yale Law School, there is no legal case for a preemptive strike against Iraq, and certainly none within the annals of American history.  The Gulf War was fought, for example, to remedy an act already taken by Saddam Hussein, not to thwart a move he might someday make. This is a vital distinction, both for the future of our Constitution and for the future of the international system. Bush "is constructing a double unilateralism," Ackerman writes. "Freed from the restraints of the Security Council abroad and Congress at home, the imperial presidency claims the authority to strike preemptively at any danger....the breadth of this doctrine is breathtaking."

The Most Dangerous Person on Earth by Jack M. Balkin (September 22, 2002)
George Bush's stand on preemptive strikes threatens to further erode the separation of powers guaranteed by the Constitution, this Yale Law Professor writes.  He can thus wage war for his own political advantage. "Armed with the doctrine of military preemption," Balkin argues, "the perpetual political campaign perfected by our last president might well become the perpetual military campaign of future presidents."

Faculty Profiles:

Sir Adam Roberts is Montague Burton Professor of International Relations at Oxford University and fellow of Balliol College. From 1968–81, he was lecturer in international relations at the London School of Economics. His books include Nations in Arms, and he co-edited both Documents on the Laws of War and United Nations, Divided World. He is also a fellow of the British Academy.

Harold Hongju Koh is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, and a former assistant secretary of state for human rights in the Clinton Administration. He has written The National Security Constitution: Sharing Power after the Iran-Contra Affair and co-edited two volumes, Transnational Legal Problems and Deliberative Democracy and Human Rights.