Jonathan Dean
Adviser on International Security Issues
Union of Concerned Scientists
1707 H Street, NW, 6^th Floor
Washington, DC 20006

Telephone: 202-223-6133
FAX: 202-223-6162
e-mail: jdean@ucsusa.org

November 1, 2002

In the period since President Bush addressed the General Assembly on Iraq on September 12, the administration has produced no new evidence to bolster its case that Iraq represents a direct threat to U.S. territory or population. That case remains unconvincing, especially when contrasted with the genuine threat to U.S. and regional security posed by North Korea.

Neither customary international law nor the UN Charter supports the administration’s view on preemptive attack on Iraq. Essentially, this view is that the destructive capability of weapons of mass destruction is so great that it suspends the normal rules for determining whether a preventive attack is justified -- it is not necessary either that there be founded information of a possible attack nor that the attack itself be imminent to justify preemptive armed attack by the United States.

The fact that weapons now exist which are capable of killing or infecting thousands in moments has introduced very important new element into the international law debate over preemptive attack, most of which dates from the nineteenth century. However, to accept the administration’s argument on preemption would mean that there would be no constraint whatever -- constitutional, congressional, or from international law, treaty, or the UN Charter -- on the administration’s freedom to decide to use the enormous military power of the United States against a foreign country. The freedom to take arbitrary action without any checks or controls would be complete, as great as that of authoritarian rulers of the last century.

Against this background, armed attack by the U.S. on Iraq without the endorsement of a Security Council resolution would be an illegal action and should be opposed.

However, these considerations are general. In practice, the Iraq issue has already developed to a far more specific point where the fate of the UN inspection regime will almost certainly be the key factor in deciding on the use of armed force against Iraq. Therefore, we should focus on that issue.

At this point, five different outcomes appear possible in this regard:

1. Failure of Security Council negotiation to produce an agreed resolution, followed by U.S. moves to use force against Iraq. Given visible continuation of divided international opinion and, presumably, U.S. public opinion as well, the political costs of this course for the administration would be very high. Consequently, it does not seem probable, despite numerous threats to act alone if needed, that the administration would follow this course. But this outcome remains possible.

2. A situation where inspections have begun, but Iraq has systematically hindered access for inspectors or destruction of weapon stocks and production facilities, but the UN Security Council has not been able to agree on authorizing the use of force. This is the outcome the administration predicts and fears.

3. A situation where Iraq has hindered inspections and the Security Council has authorized the use of force.

In either of these situations, it would be possible to adopt a position of principled opposition to any use of force. However, it would be very difficult to convincingly oppose use of armed force by the U.S. in either of these circumstances because Iraq’s own behavior would have dramatically undermined the case for alternative solutions.

4. A situation where UN inspectors have had unhindered access and have found and destroyed some Iraqi WMD weapons stocks or production facilities.

5. A situation where inspectors have had unhindered access, but have found no WMD stocks or production facilities.

In either of these situations, it may be more feasible to avoid use of force and we should act to encourage this avoidance.

Conclusions

UN inspections are the only route to a peaceful outcome in Iraq. No military action against Iraq should be taken before UN inspections begin or while UN inspections are continuing, and while inspectors report unhindered access and useful results. Inspectors should be asked to report on these issues on a frequent basis, so that world governments and publics can be aware of the actual course of the inspections.

Armed force should be used against Iraq only if there is systematic hindrance of inspections by Iraq, systematic attempts to prevent destruction of weapons or production facilities, or preparation to attack others.

The sole objective of international action on Iraq is to assure complete and lasting elimination of weapons of mass destruction. Efforts to achieve regime change, including threats even before inspections begin to bring Saddam Hussein to trial, can only motivate Iraqi resistance to inspectors and disarmament. The fate of the Iraqi regime should be left to the Iraqi people.

END SUMMARY

Possible Situations and Possible Responses

Situation 1

If the Security Council has failed to come to agreement on inspections and the U.S. prepares to attack, this preparation will take some months. In the interim, alternative actions might include systematic protests by UN member states and publics; resort to the International Court of Justice; action by Iraq to open its facilities of all kinds to organized inspection by officials of willing governments following procedures and rules agreed by the Security Council in 1999 setting up UNMOVIC; Iraq could open its air space to overhead imagery; Iraq could be asked to place its end of the Syria-Iraqi oil pipeline under UN control to assure its proceeds, estimated at 250,000 barrels a day, are controlled by the UN. Other high visibility actions to demonstrate constructive Iraqi intentions should be possible if Iraq is willing to cooperate.

Situation 2

This situation is one where the Security Council has agreed a new resolution on inspections and inspections have begun. Iraq has systematically hindered access for inspectors or destruction of weapon stocks and production facilities, but the Security Council has not been able to agree on authorizing the use of force against Iraq.

This situation would be especially difficult to deal with. The U.S. would presumably prepare to attack Iraq. American NGO’s could argue for enhanced containment as an alternative to attack (see below, #4). They might get some international support, but it’s a tough case to make, because it would in part be based on the argument that only the UN should authorize the use of force – but the UN in this case would be demonstrably incapable of acting to do so.

Situation 3

A situation where the Security Council has agreed a resolution on inspection guidelines and inspections have begun, but Iraq has hindered inspections and the Security Council has authorized the use of force against Iraq.

In this case, it might be possible to argue for enhanced containment or, on grounds of principle, against any use of force against Iraq, but there would not be much public or international support for either course.

Situation 4

A situation where UN inspectors have had unhindered access and have found and destroyed some Iraqi WMD stocks and production facilities.

This outcome would probably be heavily disputed. Whether the U.S. would decide to use force would depend in part on how much time had elapsed before the inspectors made their final report and the nature of their reports. I believe the main thrust of international opinion might be to impose additional penalties on the Iraqi government and possibly on Saddam Hussein himself (trial?). However, cooperative Iraqi behavior would diminish support for armed attack on Iraq. You can’t bomb a country when they are doing everything you ask them to do.

In this situation, it would be possible to argue for enhanced containment, possibly to include: 1) enduring, stringent inspections of Iraq; 2) permanent right of overflight over Iraqi air space to include enhanced overhead monitoring by satellite and other aircraft, among them U2 and lower-flying camera-equipped aircraft; 3) reduction of Iraqi armed forces, including currently permitted missiles and other penalties; 4) upgraded border monitoring through a force of professionally trained inspectors using advanced monitoring and scanning technology; 5) upgraded monitoring in the port of Aqiba and maritime monitoring of cargo ships; 6) incentives for Iraq’s trading partners to comply with sanctions; 7) penalties for companies engaging in embargo violations; 8) audited reports from oil purchasers to prevent kickbacks to Iraq; 9) action to include the Syria-Iraqi oil pipeline in the program of controlled oil sales.

(Items 4-9 above are drawn from the excellent report of the Fourth Freedom Forum, "Winning Without War," www.fourthfreedom.org).

Situation 5

A situation where the Security Council has agreed a resolution, inspectors have had free access and received full Iraqi cooperation, but have found no WMD stocks or production facilities. UNMOVIC has set up a program of continuing sensors and controls to check on Iraq’s future activity.

The administration would find this outcome very difficult to accept and might contest it, but there would be little support from the U.S. public or foreign governments for armed attack on Iraq.

Background

The Administration Case Against Iraq Continues Unconvincing

In the month or more since President Bush took the case against Iraq to the United Nations, the administration has not produced additional evidence to corroborate its charges that Iraq is an increasing danger to the United States, U.S. allies, and Iraq’s neighbors, because of its increasing capability in weapons of mass destruction (WMD), and working alliance with global terrorists. Summaries of intelligence information carefully prepared by CIA and the British Joint Intelligence Committee have not added new information. (Central Intelligence Agency, "Iraq’s Weapons of Mass Destruction Programs," October 2002, www.cia.gov/cia/publications/iraq_wmd/Iraq_Oct_2002.htm; British Joint Intelligence Committee, "Iraq’s Weapons of Mass Destruction: The Assessment of the British Government," September 24, 2002, www.pm.gov.uk/output/Page6117.asp) The President’s own speeches continue to describe a number of possibilities that are linked together and presented as certainties, but without new information. Indeed, the CIA has twice set forth its belief that Iraq is unlikely to attempt to attack the U.S. unless Iraq is pushed into a corner by U.S. attack. (One occasion was the letter from George Tenet to Senator Graham, New York Times, October 10, 2002, Page 1, Michael Gordon. See also, "CIA in Blow to Bush Attack Plans," The Guardian (London), October 10, 2002, p. 1.)

No Proven Link to al Qaeda

In spite of determined administration efforts to claim a connection between Iraq and al Qaeda, cooperation between Saddam Hussein and al Qaeda, the only terrorist organization with intercontinental reach, is highly improbable. These efforts include reports that a middle rank al Qaeda member (Abu Musab Zarqawi) sought medical treatment in a Baghdad hospital for a leg amputated in U.S. bombing in Afghanistan, reports of some al Qaeda connection with an Islamist group operating in the Kurdish controlled area of Iraq outside of Baghdad’s control, and the energetic work of a new Department of Defense intelligence unit established with the sole and specific mission of finding information of collusion between Iraq and al Qaeda where CIA, DIA and the FBI have failed.

They are not likely to find much, because Saddam Hussein and his socialist Baath Party are the prototypes of apostate Arab leaders who have in the view of al Qaeda betrayed the founding principles of Islam and therefore are on al Qaeda’s hit list. In fact, two attempts to murder Saddam were made in the 1980’s by Iraqi Islamists. Iraq has supported regional terrorist groups acting against Israel, but this is not the same as cooperating with al Qaeda, the only terrorist organization with proven global reach.

Very Limited Iraqi Capacity for Attack on the U.S.

UN inspections up to 1998 eliminated Iraq’s nuclear, chemical, and all biological weapon capacity which had been recorded in Iraqi internal documents intended for Iraqi officials. There is no hard evidence that any of this capability has been recreated. The CIA says Iraq could develop nuclear weapons within a year of obtaining suitable fissile material, most plausibly, from Russian stocks. This is an unsettling possibility, but there is no hint that it has taken place.

Any weapon Iraq might have would be very difficult for Iraq to deliver. Saddam Hussein has no WMD delivery vehicles that could remotely strike the United States. All but two of his Russian-made SCUD missiles are accounted for. There is some argument about whether the Iraqis were able to build a handful of SCUD-type missiles of their own, but no one has suggested that these would have a range much over 200 km. Instead of ballistic missiles, it would be possible for an Iraqi-controlled freighter off the U.S. coast to strike targets on U.S. territory with cruise missiles armed with nuclear warheads. However, there is tight Western control over vessels entering or leaving the Persian Gulf and the ship would ultimately be traced, with retaliation to follow. Even the administration does not claim Iraq already has nuclear weapons. It would take very large amounts of chemical weapons to have military effects beyond a limited terrorist strike. Missile warheads are an ineffective means of delivering biological weapons.

Among the more remote possibilities is that Iraqi agents armed with chemical or biological weapons could be sent to the U.S. as a last ditch effort to strike back if the U.S. attacks Iraq. If so, these agents have probably left Iraq and moved into striking position. No preemptive U.S. attack can get them.

Iraq is Not Feared by Its Neighbors

Israel understandably fears Iraqi attack, especially if the U.S. attacks Iraq. However, with that exception, none of Iraq’s neighbors fears attack from Iraq. Every one of them is on record as arguing against a U.S. attack on Iraq.

Is North Korea Less Dangerous Than Iraq?

Since the president made his case against Iraq at the UN, the administration has revealed that, confronted by U.S. evidence, North Korea has admitted that it is moving toward enrichment of uranium for weapons purposes. The administration has elected to pursue this problem by diplomatic means. This is wise, given the fact that North Korea might have a deliverable nuclear weapon, has a million soldiers within striking distance of Seoul, as well as of a U.S. defense component of 38,000 soldiers, and that three powerful countries in the area, China, Japan, South Korea, as well as Russia, are urging negotiation rather than use of force. All of these characteristics of the North Korean situation are important differences from the Iraqi situation. But the basic inconsistency remains: The U.S. is using dialogue and negotiation in the North Korean situation. It is arguing for use of force, unilateral if need be, against a demonstrably far less dangerous Iraq. Why is this? Why has no U.S. administration discussed political issues with Iraq since the Gulf War?

Preemptive Attack in International Law

Article 51 of the UN Charter recognizes that every state has the right of self defense "if an armed attack occurs" against it (emphasis added). Most legal authorities interpret Article 51also to permit anticipatory self defense against a pending attack. To claim self defense, the danger of attack has to be evident and the attack must be imminent. (See "The United Nations Charter and the Use of Force Against Iraq," Lawyers’ Committee on Nuclear Policy and Western States Legal Foundation, www.lcnp.org/globa/iraqstatement3.htm and "Legality of Use of Force Against Iraq," Public Interest Lawyers on Behalf of Peacerights, also available at www.lcnp.org.)

In the case of Iraq, the evidence for a pending attack is lacking, as is evidence that the attack is imminent. It is true that weapons technology has developed vastly since the time when U.S. soldiers, fearing an attack, pushed the British ship Caroline over Niagara Falls to its destruction in 1837. The administration argues that the destructive nature of WMD and the damage they can do justifies preemptive preventive war even when evidence of the existence of these weapons is incomplete. "We cannot wait for the final proof -- that could come in the shape of a mushroom cloud." (President Bush, October 11, 2002.) However, even if not complete, there has to be some convincing evidence of pending attack. Moreover, the administration indicates that the nuclear danger from Iraq is in the future, possibly the distant future. Under the WMD argument, the concept of "imminent" attack has become measured in the years that Iraq might need in order to develop nuclear weapons. As stated above, this preemptive attack concept strips away any check or control on the decisions of the U.S. president.

The final requirement of international law is that no alternatives to preemptive attack are available. In the case of Iraq, there are such alternatives. One is the threat of retaliation. The administration argues that Saddam Hussein is so inhuman that he cannot be deterred by fear of retaliation. This claim flies in the face of the fact that Saddam Hussein was deterred from use of WMD in the Gulf War by Secretary Baker’s threat of dire consequences and by fear of the same from Israel, and that Iraq has not attacked neighboring states since its defeat in 1991.

Another alternative is negotiation. Other than arguments over fulfillment of ceasefire terms, particularly inspections and sanctions, there has been no political dialogue between the United States and Iraq for an entire decade. There has been more political dialogue with North Korea. We do not know what Saddam wants or what his aims are. Before we move to obliterate Saddam, we should talk with him.

Costs of Preemptive Attack

Preemptive U.S. attack against Iraq without authorization by the Security Council could not meet the Charter requirements for anticipatory defense and would therefore be a violation of international law. In addition to the high costs in human life and money of any U.S. armed attack on Iraq, a preemptive attack without Security Council authorization would make the U.S. a genuine rogue nation. Among short-term consequences: It would intensify estrangement of the United States from its allies; it would intensify a hostile reaction in Islamic countries, both as regards survival of moderate Muslim regimes (including nuclear-armed Pakistan) and the possibility of increased hatred and resentment against the U.S. from the populations of Muslim countries, as well as increased possibilities for strengthening al Qaeda and other terrorist organizations with new suicide volunteers. The consequences for international law and the UN would be devastating. These costs would only be partially mitigated if U.S. attack followed action by the Iraqi government to hinder UN inspectors or destruction of WMD stocks and production facilities. Moreover, with Saddam’s back against the wall, there is danger of desperation attacks and also risk of proliferation of chemical and biological weapons into terrorist hands in chaotic conflict conditions.

UN Inspections

Prior to 1998, UN inspectors (UNSCOM plus IAEA) disarmed Iraq with regard to nuclear weapons, chemical weapons, biological weapons and long-range missiles. We do not know what has happened since the Iraqis refused to permit return of the inspectors after the U.S.-UK Desert Fox bombing in 1998. UN inspectors can disarm Iraq again if Iraq permits them unhindered access and if the U.S. and other major UN states provide full political backing, adequate financing, increased personnel, and full overhead imaging coverage from satellites to helicopters, provide comprehensive intelligence information and asylum possibilities for Iraqi whistleblowers.

Inspection guidelines can be improved over those contained in Resolution 1284 of 1999, which established the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC). However, new Security Council guidelines should not raise conditions that cannot be met simply as grounds for military action. One such condition would be excessively short time period requirements for Iraqi reports on completion of inspections. A member of the UNMOVIC commission has told us that he calculates that it would take UNMOVIC ten months to fulfill the mandate in Security Council resolution 1284. Dr. Hans Blix, UNMOVIC’s executive chairman, has told the press that he will need eight months to complete the assignment. The U.S. was reported in the press to be asking a limit of four months for the final report. However, there is no time limit in the U.S. draft resolution as published in the New York Times of October 23, 2002. In his radio interview on October 30, Secretary of State Powell said the U.S. realizes inspection could take months and is prepared to wait on the outcome but would wish to act, with or without the Security Council, if Iraq obstructs the UN inspections. (Secretary Colin L. Powell, Interview by Neil Conan of National Public Radio, October 30, 2002, U.S. Department of State website, www.state.gov/secretary/rm/2002/14806.htm.)