January, 2003

An Evaluation of the United States' Iraq Policy

Dr. M. Cherif Bassiouni

The Iraqi regime of Saddam Hussein has, since 1973, demonstrated that it is ruthless, but it is certainly not alone in this category. Some of the regime's repressive domestic measures constitute 'crimes against humanity,' while others constitute serious violations of fundamental human rights.

This regime has also been a threat to the region, as evidenced by its aggressive wars against Iran - 1981-88 - and Kuwait -1990-91-. During these two conflicts, 'war crimes' were committed against civilians and POWs, and by the use of prohibited chemical weapons. Moreover, during the Gulf War in 1991, Iraq launched indiscriminate missile attacks against Israel's civilian population, which constitutes a 'war crime.'

The regime's efforts to develop and stockpile chemical and biological weapons violate international law. [1] There is also evidence that this regime attempted to develop nuclear weapons, but that the post-Gulf War inspection system eliminated these capabilities. Nevertheless, the Iraqi regime has some residual scientific and technological capabilities that may be used to develop such weapons.

Efforts by the United Nations to inspect and eliminate these weapons of mass destruction, pursuant to several Security Council resolutions, have been thwarted by the Iraqi government. This behaviour and prior aggressive acts could lead to the conclusion that if that regime possessed such weapons of mass destruction it would constitute a threat to peace and security.

For the last 11 years, this Iraqi regime has been effectively contained by the US and has not posed a threat to the region's peace and security. Nevertheless, the George W. Bush administration has decided that one of its major foreign policy goals is to remove the Iraqi regime by force because it poses a potential threat, though the administration has not made it clear as to what threat it refers. At first, the administration signaled its intention to do so on the legally questionable proposition of 'preventive unilateral' military action, as stated by Bush in a speech at West Point on 1 June 2002. Since then, this unilateralism has changed, and United Nations Security Council approval was sought and obtained on 8 November 2002, in a unanimous resolution -1441- [2] that implies use of force if Iraq fails to materially comply with the new weapons inspection regime.

Thus, a new basis was established for use of force against Iraq, to enforce disarmament, but not to effectuate a 'regime change.' Resolution 1441 does not address 'regime change' or what the Hussein regime did to its people, or to Kuwait, or Iran. The resolution addresses Iraq's eventual 'material breach' in connection with the weapons of mass destruction inspections.

The question of the legitimacy of the use of force, whether multilaterally or unilaterally is at issue, as is the goal of 'regime change.' The US is leading the international community on these two issues, and it is necessary to examine US policy toward Iraq, and the likelihood of a US military operation to invade and occupy Iraq in 2003 with the goal of 'regime change' [3] including 'post-conflict justice.' [4]

US Policy towards Iraq: 1979-1990

Since the lessons of the past inform the future, a review of US policy is useful and telling.

After Iran's Islamic Revolution of 1979, Iraq became the designated buffer between a perceived threatening Iran and the Arab Gulf states. Because of the active oilfields and reserves located in the Gulf states, Iraq's buffer role was of strategic importance to the Gulf states and to the US. The ambiguity of the US commitment to the Iraqi regime of Hussein between 1979 and 1990, and even in the aftermath of the Gulf War, produced ineffective and inconsistent policies which emboldened Hussein in his practices. Much of what the US complains of today is in fact the consequence of its own past policies.

The flawed US Iraq policy started during the Iran-Iraq War, when the US helped Iraq, but not enough to ensure its military success against Iran. This was a reflection of Henry Kissinger's 'plague on both houses' policy according to which both countries would drain each other economically and militarily, and so lose their capacity for mischief elsewhere. The US gave Hussein satellite intelligence on Iranian disposition of forces and other intelligence and military planning support. It also encouraged Arab Gulf states to give financial support to Iraq's war effort. Worst of all, however, the US turned a blind eye to Iraq's use of chemical weapons in 1983 against Iranian civilians in two border regions. This included such internationally prohibited weaponising of mustard gas, sarin and VX poisonous agents. In so doing, the Iraqi regime committed war crimes and bore no consequence, benefiting from an unconscionable impunity.

During this period, Arab Gulf states supported US policy, in part because they almost always do, and in part because they feared Iran's political and territorial ambitions. This threat perception was supported by Iran's 1980 seizure of two small islands belonging to the United Arab Emirates, but most of all because of Iran's influence on the large Shia minority in these countries. The US also shared these concerns.

Certain economic interests were also at stake. For the US, it was grain and commodities sales to Iraq and oil contracts for US companies. For Western Europe, Iraq was a source of oil and a substantial trading partner. More significant, however, was Iraq's long-standing relationship with the USSR, which for years had equipped the Iraqi military. Moreover, during the period 1980-1990, Iraq had embarked on a secret programme to develop weapons of mass destruction -WMD- and delivery capabilities whose components and technology were mostly purchased from Europe. Hence, Europe and the USSR -later Russia- were favourable to Iraq, and they supported its regime whenever US policy turned negative. This, too, contributed to the fluctuation in America's Iraq policy.

Mixed signals from the US led Baghdad to the conclusion that the positive signals outweighed the negative ones.

Two examples illustrate this proposition. First, for almost a decade prior to its invasion of Kuwait, Iraq purchased millions of dollars worth of grain and other commodities from the US on favourable credit and financing terms. This trading relationship was actively supported by several influential Republican senators, such as Robert Dole and Alan Simpson, who represented states that are large producers of these exported commodities. In the spring of 1990, a delegation of senior US senators from these states went to Baghdad, and in worldwide-televised coverage of their meeting with Hussein, were seen assuaging his concerns about US media criticism of his regime. Second, in April 1990, shortly after the US Senate delegation visit, the recently appointed US ambassador to Baghdad, April Gillespie, during a meeting with Hussein, inadvertently gave him the impression that the US would turn a blind eye to an Iraqi invasion of Kuwait. Though it was later explained away as a diplomatic misunderstanding, it did seem to have encouraged Hussein's aggressive intentions against Kuwait.

In the US these signals did not mean much, but to an Arab leader like Hussein who never travelled to the US, and who saw that country from his limited perspective, these signals were quite clear. For the same reasons, Hussein was also convinced that if he signalled the US his intention of respecting the territorial integrity of Saudi Arabia and other Arab Gulf states while continuing to act as a buffer against Iran, he would be allowed to keep Kuwait and its significant oil reserves. Since Hussein would continue to sell Kuwaiti and Iraqi oil to the US, Europe and Japan, he assumed that certain interests would put the concerns of these countries to rest. Moreover, Europe and Russia would be happy to have a richer trading partner.

Indeed, ambiguous US policy and inconsistent signals from Washington's elected and diplomatic officials left the Iraqi regime convinced of its strategic importance to the US, and in Hussein's mind, the quid pro quo would be the take-over of Kuwait, and he gambled on that belief. Furthermore, he and his advisers assumed that if he acted swiftly, the US would be slow to react, and the fait accompli would be irreversible. In other words, as he saw it, the US and Europe had everything to gain by working with him, or at least by allowing a take-over of Kuwait without any more than official protest and public condemnation.

If Hussein was delusional, he had objective reasons to make this political assessment, and few in his tyrannical one-man regime dared contradict him.

The present Bush administration learned that lesson and is anything but equivocal or ambiguous about its intentions, and that may explain why Hussein got the message and unequivocally accepted the terms of the new arms inspection regime reflected in Resolution 1441.

The Illusion of Perceptions:

Both the US and Iraq played a game of political chess, employing world public opinion to influence certain governments. Until 2002, the US lost that game and Iraq won it. The reasons are as follows: First, the US never played its trump card, publicising the Iraqi regime's crimes and human rights violations. [5] Second, the devastating social and economic effects of the sanctions showed Iraq as the victim and the US as the aggressor. Third, Hussein was diplomatically and politically smarter than the US. Fourth, Russia and France gave increasing support to Iraq. Fifth, the Arab and Muslim world increased its support of Hussein in the course of the decade following the Gulf War, during which time Iraq behaved responsibly and was no longer viewed as a threat to its neighbours. Sixth, the treatment of Palestinians by Israelis [6] was done with US weapons and was supported by US politics, to its discredit. Seventh, the double standard used by the US in its dealings with Arab and Muslim countries also weighted against it.

All of these considerations simply led the Arab and Muslim peoples and their governments to the conclusion that Iraq was, and is likely to again become, the victim, and that the US is the aggressor.

In his State of the Union address on 29 January 2002, Bush announced that Iraq, Iran and North Korea constitute an 'axis of evil.' This characterisation was not well received anywhere in the world. It was viewed as a slogan devoid of substance, but heavily tainted by the influence of the 'Christian Right,' [7] whose voice in the White House was becoming obvious. Furthermore, the blatant anti-Islamism of that constituency became so evident after 11 September 2001 that Arab and Muslim countries saw the beating of the war drums against Iraq as a sign of a new religious war against Muslims.

This perception was reinforced after 7 October 2001, when the US invaded and occupied Afghanistan as part of Operation Enduring Freedom. Bush's goal of galvanising governments and world public opinion, however, failed. The measure of this failure was evident in August 2002, when Saudi Arabia, which had opposed the Baghdad regime, and particularly Iran, which had been at war with Iraq for seven years, announced their opposition to a US military attack on Iraq. Again, Hussein felt that he was winning another political skirmish. But this only reinforced the Bush administration's determination against Hussein.

Even though containment had worked for over a decade, and nothing occurred to necessitate a policy change, those in the administration urging a military policy prevailed.

The US military option was complicated by the tragedies occurring in Palestine, but it was strengthened by the attacks of 11 September. Even though there was no connection between Iraq and these attacks, some elements in the administration sought to establish a connection between the Hussein regime and Al-Qaeda. Tenuous as this connection is, it triggered a psychological reaction in American public opinion, which was strengthened by the president's speeches of 11 September 2002 at the World Trade Centre site, and his speech before the United Nations General Assembly on 12 September 2002. Thus, one of the consequences of the illusion of perceptions is that the American public has come to see a military attack on Iraq as a justified retaliation for 9/11.

The Shaping of a New US Policy: A 'Preventive First Strike'

After 11 September, it was suggested that there was a connection between these events and the Iraqi regime, but it had no basis in fact, beyond Hussein's unsurprising glee at what happened in New York and Washington. Hussein's approving reaction to the events of 11 September is hardly legal justification for the Security Council to consider the Iraqi government a threat to world peace and security. NATO allies and others oppose efforts in the Security Council for new sanctions or military action without tangible evidence linking the Iraqi regime to international terrorism. To fabricate such a connection would strain the credibility of the US and prove counter-productive. Nevertheless, the administration has successfully created a subliminal connection between 9/11 and Iraq in the minds of the American people, and that is probably what led Congress to vote for a resolution favouring US unilateral intervention.

Some senior administration officials in the Defence Department, like Under Secretary Paul Wolfowitz and Richard Perle, chairman of the Defence Advisory Council, see a military invasion of Iraq as altering the strategic relations in the Middle East to the clear benefit of Israel. Their hopeful expectation is that such a war would definitively bind the US and Israel in a military alliance that would once and for all deter any Arab hopes of militarily prevailing over Israel. More particularly, it would establish a higher level of political/military cooperation between the US and Israel, and set back the search for a solution to the Israeli-Palestinian problem that favours some justice for the Palestinian cause.

This agenda is spurred on by the conservative 'Christian Right' constituency of the Republican Party. They share with some Israelis and some Jewish constituencies in the US and elsewhere the belief that Palestine is part of Eretz Israel, and that Palestinians should be submissive to Israel or be militarily subdued and even removed from Palestine, by force if necessary. Part of the motivation for this drive are the beliefs of the conservative 'Christian Right' about biblical prophecies and the recent animosity toward Islam. The president is mindful of these special interests, and genuinely does not share their views. Nevertheless, the influence of the proponents of these views remains strong in the administration.

The negative impact of these views in the Arab world is detrimental to US interests, but it seems as if public opinion in Arab and Muslim countries is substantially discounted by the American political establishment. The perception in the US is that the consequences of invading and occupying Iraq will be limited to a few demonstrations in major Arab and Muslim cities, which the respective governments will have no other option but to quell if they want to remain on favourable terms with the US.

The Question of International Legal Legitimacy: [8]

Assuming a war in Iraq does not materialise, the scare served two purposes: it shook up the Hussein regime, compelling Baghdad to accept effective arms inspection; and it put other permanent members of the Security Council -i.e. France, Russia and China- on notice that their inaction would result in the council's marginalisation - the US would act alone if necessary. Both were successful, but that is only part one. Part two, dealing with actual use of force if needed, raises issues of legitimacy.

Negotiations over language in the Security Council's resolution for authorisation of blanket use of force, if Iraq does not fully comply with arms inspection requirements, produced a compromise. The US, with British support [9], could not overcome the objections of France, Russia and China that no blanket authorisation for use of force can be given without the finding of a material breach by Iraq under the new inspection regime. If this were the case, it would be the end of the United Nation's collective security system, as embodied in its charter. France was the champion of the council's legitimate role, though it had widespread support in the council and in the General Assembly. [10]

The US tried to change the rules it helped establish, on the proposition that it needed to avoid Hussein's dilatory tactics and the council re-negotiations on use of force in case of Iraq's material breach of the inspections regime. The US argued that Iraq was already in breach of several UN Security Council resolutions and that more breaches were not necessary to warrant enforcement through use of force. Such an argument, however, is devoid of a legal basis when it comes to unilateral use of force, or multilateral use of force without a specific resolution from the Security Council authorising use of force.

The debate that has not taken place at the UN, however, was about the legitimacy of use of force in international relations.

After WWI, the US - realising that powerful states invoked the right of preventive self-defence against other, usually weaker states - sought to de-legitimise that practice. In 1919, the US joined its allies in drafting the Treaty of Versailles, which stipulated a provision -Art. 227- for the prosecution of the German emperor. It was the first time in history that a head of state would be prosecuted for what is now called aggression. The emperor sought refuge in the Netherlands, which found that no such crime existed in international law.

To avoid the recurrence of such a situation, in 1924, the US and France promoted the Kellogg-Briand Pact, so named after US secretary of state Frank B. Kellogg and French foreign minister Aristide Briand, who acted on behalf of their respective governments. The treaty was for the renunciation of war as an instrument of national policy. It was on that basis that the US, France, Britain and the USSR signed an agreement in 1945 that established the Nuremberg International Military Tribunal, which included a provision for the prosecution of 'crimes against peace,' -Art. 6-a--. In 1946, the US proclaimed, through General Douglas MacArthur, supreme allied commander, the Tokyo Charter for the prosecution of Japanese leaders. There, too, 'crimes against peace' were included -in Article 5-a--.

At Nuremberg and Tokyo, the US insisted that an unprovoked armed attack by one state against another was a crime. Arguments by the accused concerning preventive self-defence were categorically rejected.

After these trials, the US urged the drafters of the UN Charter to roundly reject preventive use of force and to make it an act of 'aggression.' Article 2-4- could not be clearer: '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…'

This does not mean that a state is precluded from using force in self-defence, including anticipatory self-defence in cases of necessity. That right is described in the UN Charter as 'inherent' -art. 51-. [12] The analogy to individual self-defence is that no one has to wait to be struck first before using force. In his West Point speech of 1 June 2002, Bush used the term 'pre-emptive unilateral use of force' as equivalent to anticipatory self-defence, but he obviously meant something else.

Semantics aside, Iraq does not constitute an imminent, immediate or even short-term foreseeable threat against the US that warrants anticipatory self-defence.

Consequently, there is no legal or factual basis for the US to resort to unilateral use of force at this point. Moreover, as terrible as that regime is, and needs to be changed, it is not up to the US to do it.

The International Court of Justice already condemned the US once during the Reagan administration for its mining of Nicaraguan harbours and for sending armed rebels, 'contras,' from Honduras to change the Sandanista regime by force. [13]

The US is trying to convey the impression that multilateral participation in use of force against Iraq is the same as international legal legitimacy. It is not. In a similar vein, the US is trying to convey the impression that Security Council Resolution 1441 implicitly authorises it to use force against Iraq whenever, in its judgement, Iraq has committed a material breach. The administration is trying to combine the two in public perception. A significant public relations campaign is under way nationally and internationally, and it is likely to increase until such time as the administration is ready to move into a higher gear. That will occur when some violation by Iraq is discovered by inspectors that can then be blown out of proportion and made to appear to be 'the straw that broke the camel's back,' or in other words, the last Iraqi breach of a Security Council resolution before resorting to war.

At the 20 November NATO summit meeting in Prague, Bush was able to obtain a resolution supporting eventual multilateral military action in case of a 'material breach' by Iraq provided that the Security Council makes such a finding and authorises use of force. [14]

No matter what the fate of arms inspection may be, and no matter how the US interprets Security Resolution 1441, before resorting to use of force there should first be a finding by the Security Council that Iraq has materially breached portions of its resolutions that are relevant to the preservation or maintenance of international peace and security. Only such a finding can confer legitimacy to the multilateral use of force.

Regime Change and Post-Conflict Justice:

Crimes committed by the Hussein regime are moral justification for a 'regime change' in Iraq. Yet not a single administration from Bush-father to Bush-son has committed itself to this approach. The reason may well be the clear prohibition contained in Article 2-4- of the UN Charter that prohibits intervention in the internal affairs of member states. More likely, it is for other political reasons.

Hussein's 23-year dictatorship in Iraq -he became president in 1979, but served as vice president between 1968 and 1979- has been among the world's most repressive regimes. As many as 100,000 Iraqis are estimated to have been killed and countless Iraqis tortured, while most of the population has been subjected to a reign of terror by Baath Party officials, certain army units and the police. The Iraqi people have also suffered the terrible consequences of that government's policies, which brought about international sanctions imposed after the Gulf War that resulted in the death of an estimated 500,000 children from lack of medication and food.

Two wars of aggression were carried out by Hussein's regime against neighbouring Iran and Kuwait in 1981 and 1990, which resulted cumulatively in an estimated 200,000 military casualties. Prohibited chemical weapons were used against Iranian civilians in two regions in 1983, as they were against an Iraqi civilian population, the Kurds, in 1988.

An estimated 100,000 Kurds have been killed in the last 20 years, particularly during the Anfal campaign of 1987-88, when 2,000 Kurdish villages were reportedly attacked. The Shia, who live in southern Iraq, have also suffered an estimated 30,000-60,000 casualties, and tens of thousands were forcefully displaced.

Between 1992 and 1998, almost 200,000 Iraqis who live in the marshes between that country and Iran were forcefully displaced, and over 100,000 Kurds were removed from the oil-rich area of northern Iraq to what is now called Iraqi Kurdistan.

All those who have been displaced or relocated, including many who were forced into exile among the Sunni, Shia and Kurds, have lost their property and all of their civil rights in their country.

These acts constitute 'crimes against humanity' and 'war crimes.' They also involve the international crime of torture, and massive violations of human rights. There is no doubt that such crimes should result in the criminal accountability of their perpetrators, who should not be allowed the benefit of impunity. Regrettably, the record of such crimes has not been sufficiently established, and that is a task for the UN.

In 1992, the Security Council, pursuant to Security Council Resolution 780, established a Commission of Experts to investigate violations of humanitarian law in the former Yugoslavia, which I chaired. The record of violations established by that commission led the Security Council in 1993 to establish the International Criminal Tribunal for the Former Yugoslavia -ICTY-, before which the former head of state Slobodan Milosevic now stands as an accused defendant.

There is ample evidence and documentation of the Iraqi regime's crimes, but the record of these crimes has not yet been systematically gathered, published and disseminated. Such an undertaking, mandated by a Security Council resolution, would be a critical element in the strategy for 'regime change' in Iraq.

The Yugoslavia commission generated enough evidence to convince the Security Council to establish the ICTY in The Hague. Today, Milosevic stands accused before this tribunal of war crimes and crimes against humanity. Maybe tomorrow Hussein and his cronies can be in the same situation. At this juncture, the question arises, if this is valid for Hussein's regime, why not for others? Why not for Sharon and some of his military? This is what the Arab and Muslim world asks, and this is why the US is not committed to the pursuit of international criminal justice.

Conclusion:

From a humanitarian perspective, the end of Hussein's regime should happen sooner rather than later. War, however, is not the best or legitimate option to do so.
Legality and good judgement stand against unilateral US military action or a US-led multilateral coalition unless the UN specifically approves it.

The US alternative to war is a consistent policy of containment and pressure, as has been advocated by Powell and others outside the administration, as well as by many world leaders. A more calibrated approach will necessarily involve the UN and many governments in collecting and disseminating evidence of Hussein's regime's crimes, and of its WMD capabilities. The US must first discredit the regime and obtain international legal legitimacy before undertaking a military option, if that proves necessary.

Occupation and administration of Iraq by the US, as a military occupier financing its operation from the sale of Iraqi oil, is something that world public opinion cannot accept. Nevertheless, American public opinion seems to have accepted this eventuality. The public perception is that there will be few negative consequences to a war in Iraq. The administration has also come to believe its own PR and believes that it can achieve its military and political goals with a minimum of harm, damage and costs. It is guided by its conviction that the best-case military scenario will materialise.

War in Iraq will also change strategic relations in the Middle East, and Israel will emerge stronger in the region, with a more decisive strategic relationship with the US. This, too, will bring about a new dynamic to the Palestinian-Israeli conflict, where a pro-Israel US-backed solution will be imposed on the Palestinians. Arab regimes supportive of the US will be discredited, and pro-Islamic tendencies will increase in Arab countries. International terrorism by Muslim fundamentalists is also likely to increase, and the US will be its target.

If war in Iraq happens, the Iraqi people will unfortunately suffer its worst consequences and its effects are likely to be long-term.

The changing strategic balance in the Middle East will give Iran a much greater influence in the region. But it will place the US in a situation of direct military confrontation with that country. Considering Iran's military capabilities the situation in the region will be more tense, and Islamic fundamentalism will be re-enforced.
Last, but not least, the world will not be a better place if war occurs, but it seems that the die is cast, unless Bush decides against it.

Endnotes:

[1] Iraq is not alone in this category. Some 15 countries are reported to have nuclear weapons programmes, including India, Israel and Pakistan. A reported 30 countries have chemical and/or biological weapons. In the Middle East, Israel and Egypt have such weapons, and it is believed that Iran does too. The latter is also reported to have nuclear weapons capabilities.

[2] Security Council Resolution 1441, UN SCOR, 57th session, 4,464th meeting, UN Doc. S/Res/1441 -2002-. This resolution was supported by the US, Britain, Russian Federation, France, China, Bulgaria, Cameroon, Colombia, Guinea, Ireland, Mauritius, Mexico, Norway, Singapore and Syria.

[3] Kenneth M. Block, The Threatening Storm: The Case for Invading Iraq, 2002.

[4] For contemporary experiences, see Post-Conflict Justice -M. Cherif Bassiouni, ed. 2002-.

[5] Discussed in paragraph 13 below.

[6] Some of it constituting war crimes, others, possibly crimes against humanity.

[7] See M. Cherif Bassiouni, 'The Uncivil War against Islam,' Chicago Tribune, 22 October 2002, at Sec. 1, p. 23.

[8] See M. Cherif Bassiouni, 'Rumors of War: Waving a Big Stick,' Chicago Tribune, 10 November 2002, at Sec. 2, p.1.

[9] The UK however does not share an identical position with the US on this issue.

[10] These and other states did not want to see the Security Council follow in the footsteps of the US Congress, which improvidently delegated to the president its constitutional powers to declare war, as specified in Article I, Section 8, although its resolution of 11 October 2002, gave the president the power to use force in Iraq without a formal declaration of war. This is not what the framers of the constitution intended. It is also not what the United Nations Charter holds.

[11] See United Nations General Assembly, Definition of Aggression, GA Resolution 3314 -XXIX-, 29 UN GA Supp. No. 31, at 142, UN Doc. ONU A/9631 -1974-; M. Cherif Bassiouni & Ben Ferencz, The Crime Against Peace, in 1 INTERNATIONAL CRIMINAL LAW 313 -M. Cherif Bassiouni ed., 2d rev. ed. 1999-.

[12] Yoram Dinstein, War, Agression and Self-Defense, -3d ed. 2001-.

[13] Military and Paramilitary Activities -Nicar. v. US- Merits, 1986 ICJ. 14 -June 27-.

[14] Nevertheless, US efforts are already under way with a number of NATO states to enlist their support and participation in a US-led coalition, even if it is for limited or token involvement. Bush's call to arms connected that military operation to the 'war against terrorism,' though no such connection exists.