Philip C. Bobbitt
Why the US and the UK are Right to Target Iraq
by Philip Bobbitt
The Times (London), January 10, 2003
Reprinted with the author's permission
In the 1950s Bertrand Russell proposed that the Soviet Union be attacked to pre-empt its acquisition of nuclear weapons. Instead, by threatening retaliation we deterred the Soviet Union from aggression and induced peaceful change. “Containment” was consistent with international law which outlawed war except for self-defence, and implicitly gave to every sovereign state the right to develop whatever weapons it wished. Pre-emption to prevent the mere acquisition of weapons would not only have been unwise, it would have been illegal.
Two developments render this strategic and legal paradigm redundant today. New techniques for acquiring and delivering weapons of mass destruction (WMD) have been developed; and a shadowy global terrorist network has emerged against which threats of retaliation are pointless.
We misconceive deterrence if we imagine that the overwhelming force of the US will deter President Saddam Hussein from further aggression. In August a former UN weapons inspector testified bluntly that despite inspections “the current leadership in Baghdad will eventually achieve a nuclear weapon in addition to their current inventories of WMD”. It is Iraq, armed with WMD which, if that happens, will deter the US from interfering in the Gulf and enable Saddam to press his luck again. That ambition is the only conceivable reason he has resisted for 12 years, at a cost to him of more than $150 billion lost through sanctions, his obligation under the ceasefire deal to abandon such programmes.
The West is running a terrible risk if pre-emptive action forces Saddam’s back against the wall; but unless we are willing to grant him a free hand in the Gulf, his back will be against the wall some day anyway — but with a vastly increased power to do harm, and while the US will have a significantly diminished capacity to prevent it.
Most commentators ignore the impact of a nuclear-armed Iraq on its neighbours’ arsenals. If Iraq’s arms programmes are not subdued, WMD are likelier to proliferate in other states, especially Iran, Egypt, Saudi Arabia and Libya. Even if Saddam were deterred from a direct attack on the US by its WMD, US capabilities would not deter him from another attack on Iran or Kuwait (or other Gulf states). One cannot imagine a Desert Storm operation in the context of Iraqi nuclear capabilities and accurate Iraqi missiles.
The matter of Iraqi WMD cannot be detached from the development of non-state, or even virtual state, actors like al-Qaeda, which are well-financed and global, but are of no fixed abode and therefore immune to threats of retaliation. Whether there has been any direct collaboration between al-Qaeda and Saddam, the very existence of a global terrorist network makes Iraq’s nuclear and WMD capacity so much more threatening than that of other tyrannous regimes in previous eras.
Saddam would clearly be capable of using these non-state actors as unidentifiable agents to attack the US or the UK with weapons he would not dare use against us directly. But surely, some argue, we would know he was behind such an attack and would retaliate? Perhaps. But many doubt whether we know all the actors responsible for Lockerbie; we still do not know the authors of the anthrax attacks on Washington. In any case, the real question is: would Saddam, a figure not averse to risk, be so sure that he would be found out, and that his friends on the Security Council would not protect him, if the situation were sufficiently murky?
Then ask yourself what happens to Iraq’s WMD when the Iraqi regime finally changes. Then, if not before, whatever WMD Iraq accumulates will find the lucrative black market, selling to well-financed non-state actors that have money but lack the facilities to develop nuclear weapons. We are already experiencing enormous difficulties trying to account for Russian fissile material, despite their genuine co-operation.
But, it may be objected, by what right do we propose to invade another sovereign state on the basis of a scenario? Is there any clear evidence that Saddam actually has (or is close to getting) WMD, or that he is in fact collaborating with his ideological enemy al-Qaeda? What about the rule of law that allows sovereign states to make whatever weapons and alliances they wish?
To answer these questions is to leave the world of the blackboard, where all states are the same regardless of their constitutional make-up, and where history confidently advances from age to age towards an ever-increasing universal peace under international laws, similar to those that govern the citizens of civilised countries. Such a world ignores the unique lethality of WMD and denies that there is really anything new in global terrorism.
We must recognise that the demand for conclusive evidence of weapons acquisition is an inadequate requirement in the world we are entering. It confuses deterrence with indictment, as if Saddam were guilty of violating an international gun control law. In fact deterrence of WMD acquisition has failed once the overt act is committed or the covert act unmasked. It must be better to take action before we know that the situation we most fear has indeed come about if we are clear with regard to his intentions.
The intelligence required to catch Saddam in the absence of an actual nuclear test will be hard to come by — as we have seen with most of the nuclear powers. The Soviet Union, China, Israel and, quite recently, India, all took the world by surprise despite intensive surveillance.
The real evidence we require is in plain view. Does Saddam, who has twice invaded his neighbours, who has the unique distinction of having been the first state to annex another member state of the UN, who has acknowledged seeking nuclear weapons, developing biological weapons and using chemical weapons in an unprovoked war of aggression against his own citizens, who has violated his ceasefire commitments, shot repeatedly and continuously at coalition forces enforcing the no-fly zones imposed by the UN in 1991, really stand in the same position vis-à-vis other countries? States are judged by their intentions and their capabilities. There is ample evidence of Saddam’s intentions; must we wait on his capabilities?
If we are to depend on inspections indefinitely, then we must impose sanctions indefinitely because otherwise Saddam could use his wealth to replace in months whatever he had destroyed. Yet because Iraq is a police state, the regime has been able to build up its armies in this period and use the sanctions to wring ever greater suffering from its people, blaming the West. The situation of the Iraqi people is dire. It will become worse if war comes, but if that war is successful Iraq’s oil revenues can once again enrich its people.
Action against Iraq, like previous actions in Kosovo, Haiti, Panama, and Afghanistan, would represent a profound change in the dominant 20th-century norms of international law. It would strengthen the emerging rule that regimes that repudiate the popular basis for their sovereignty —by overturning democratic institutions, by denying even the most basic human rights, and by practising terror against their own populations — jeopardise the rights of sovereignty, including that of seeking whatever weapons they choose.
This does not mean that pre-emption is the best way of challenging such policies in every case. Theatre missile defences, alliances, economic sanctions and regional denuclearisation all have a role. North Korea is now demanding a non-aggression agreement from the US as a condition of giving up its WMD. Let’s give it to them. And, if there really were a demilitarised Iraq — as agreed by Baghdad in the ceasefire accord that saved the regime — why couldn’t there be non-aggression pacts that include Iran and Israel so that eventually no state in the region sought or possessed WMD? Ask yourself: is such a world more or less likely if Saddam remains in Baghdad?
Profound change in international law responds to equally profound changes in the strategic environment. But it would be wrong to conclude, as some in Washington seem to, that our efforts to cope with a new international situation must rely on “might makes right” rather than a new legal order. For the sake of such an order the US and the UK should seek further UN endorsement of coalition action based on the false affidavit submitted by Iraq and the pattern of its behaviour.
Sometimes our political leaders seek a better world than the one we have at present; sometimes they only seek a less worse one than we would otherwise have in the future. Disarming Iraq serves both.
- The Times (London): http://www.thetimes.co.uk/
- Professor Bobbitt's home page: https://law.utexas.edu/faculty/pbobbitt/
- Shield of Achilles web site: https://law.utexas.edu/faculty/pbobbitt/shieldofachilles/
- Recent articles by Professor Bobbitt: https://law.utexas.edu/faculty/pbobbitt/essays.html