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The Rationale of Preemption under International Law Case Study of the Bush Administration’s justifications for waging war against Iraq ( 2003)

2012

Hamzah Rifaat ( Peace and Conflict Studies 2012) M. Phil Term Paper

Submitted to Dr. Ishtiaq Ahmed

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Table of Contents

1. Introduction………………………………………...............................................3

2. Defining Preemption …………………………………………………………….4

3. Preemption and International Law……………………………………………….5

4. A Case Study of the justifications provided by the Bush Administration to invade Iraq.8

5. Counterarguments to the rationale of Preemption presented by the BushAdministration.13

6. Conclusion……………………………………………………………………….19

7. Bibliography …………………………………………………………………….20

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Introduction (The concept of ‘Preemption’ in International Relations)

The concept of ‘Preemption’ in international relations dates back as early as 1625, where Hugo

Grotius, the famous jurist in the Dutch Republic considered a state’s self-defense to ' include the

right to forcibly forestall an attack from an adversary.'1 It was not until the advent of the First

World War however, that the concept or preemption and its consequences became a hotly

debated issue when the League of Nations tried to discourage states to use force to ‘forestall an

attack.’2 The 1940 German invasion of Norway can be treated as a classic example and an

interesting case in point, where the German military apparatus argued for attacking the

Norwegians, on the premise of thwarting an allied invasion3. In reality, Germany as a sovereign

state, considered itself to have every right to attack a nation which was viewed as a perceived

threat to national security.

In the 21st century however, and particularly in the wake of the disastrous event of 9/11, the

concept of ' Preemption', has stoked considerable debate from an array of erudite experts. Peter

Borkowitz, in his article ' A Misreading of Law and History on Preemptive Strikes', has gone on

to claim that American support for striking a perceived adversary, (which is preemptive in

nature), is a flagrant violation of international law as well as Article 51 of the UN Charter, which

explicitly forbids attacking other states, except in self-defense. It also violates the essence of the

US constitution as well.

“This provision allows states to use military force in self-defense only when responding to an

‘armed attack.’ Preemptive attacks are another matter.' ( Borkowitz, 2012, par.2) 4

This paper aims to examine the rationale provided by the Bush Administration to invade Iraq to

thwart a ‘perceived’ threat

1 Louis R. Beres, ‘Permissibility of State-Sponsored Assassination during Peace and War’, Temp. Int'l & Comp.

L.J., 1991. pp. 231 2 Medlicott, W.N., Review of "The Roots of Appeasement" by M.Gilbert (1966), in The English Historical Review,

Vol. 83, No. 327 (Apr., 1968), p. 430 3 Prete, Roy Arnold and A. Hamish Ion. ‘Armies of Occupation’, Wilfrid Laurier University Press, 1984, pp. 145

4 Peter Borkowitz, ‘' A Misreading of Law and History on Preemptive Strikes' Real Clear Politics, 2012,

http://www.realclearpolitics.com/articles/2012/03/11/a_misreading_of_law_and_history_on_preemptive_strikes_11

3442.html

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Defining Preemption

Preemption can be defined as a ‘strike attack’, or an attack that prevents a perceived adversary,

from attacking a nation which is under threat. Preemption can also be defined as an effort to

avoid possible threats to national security at all costs, and can come in the form of ambitious

military strategies and war- waging doctrines. The Cold Start Doctrine for example, ( now called

proactive defense), was devised by the Indian military in 2001 and can be taken as a preemptive

measure to thwart perceived security threats from Pakistan in the aftermath of the 2001 Indian

parliament bombings and the Mumbai Attacks in 2008 5. The term ‘Preemption’ however, cannot

be limited to threats which jeopardize a nation’s security only. In modern times, a threat to

‘global security’ and a need to address such threats is considered as an integral part of

considering preemptive strikes. As far as the US foreign policy is concerned, the need to preempt

is taken in light of an attack on an adversary, which is viewed as a genuine threat to the state and

its allies6.

Distinguishing ‘Preemption’ from ‘Prevention’

Preemption however, is different from ‘Prevention’ because in case of the former, there is a clear

and present threat, which if not preempted, could lead to colossal damage to the attacking state.

In case of preemption however, urgency of action is required and the calculation to attack the

perceived adversary is weighed with the cost of attacking later7. Preemption can also be equated

with the concept of a ' just war', yet this is debatable on many grounds.

Understanding the rationale of ‘preemption’ by the Bush Administration in the wake of the 9/11

Attacks however, would mandate considerable inspection of how the ‘Bush Doctrine’ can be

defined in international law, which would help discuss the legitimacy of the invasion of Iraq in

5 Sannia Abdullah, ‘ Cold Start in Strategic Calculus’ IPRI Journal XII, no.1 ( Winter 2012), pp. 8-9

6 Ana Dresner, ‘ Policy of Preemption or the Bush Doctrine’, School of Doctoral Studies ( European Union),

Journal- July 2009, pg. 283 7 Volker Kroening, Prevention or Preemption? Towards a Clarification of Terminology, Project on Defense

Alternatives Guest Commentary. Cambridge, MA: Commonwealth Institute, March 2003.

http://www.comw.org/pda/0303kroening.html

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2003.

Preemption and International Law

Before one can define consider Preemption under IL, it must be distinguished from the ‘Bush

Doctrine’, which came in the aftermath of the September 11th

attacks in the US. The Doctrine

was articulated in a speech, which was delivered at West Point in 20028. President Bush’s 2002

State of the Union speech was also a reflection of the doctrine, where the countries of Iraq, Iran

and North Korea, were merged into a single group and termed as the ‘Axis of Evil’9. As a result,

terrorism was equated with those countries which possessed weapons of mass destruction, and

could threaten international security, and had to preempt at all costs.

In contrast, it is quite evident that the concept of ‘Preemption’ is limited to facing ‘imminent

threats only’. This distinction has been laid down by Michael W. Doyle, where he takes a close

look at the Iraq War, the 1998 attack against Al Qaeda, and the Cuban Missile Crisis of 1962,

with skepticism. His postulation is that in each of these cases, international law and the right to

authorize military action must rely on what is outlined in the procedures of the United Nations

Charter only and not based upon ambitious Doctrines10

.

Preemption should also be understood in light of the fact that, even customary international law

is not capable of responding to threats from ‘rogue states’ or terrorism. The truth is that

international law itself, is a product of at least four hundred years and much of the rules and

regulations which govern states, have been devised in the aftermath of the devastation that the

world had to bear in history. The rationale of preempting an attack against an adversary is thus;

open to all sorts of interpretations.

Article 51 of the United Nations however, has been interpreted by the United States in light of

waging war against the Al Qaeda terrorists as an ‘instant custom’ whilst modifying the existing

8 Bob Woodward, ‘ State of Denial’, Simon and Schuster UK Ltd, 2006, p. 342

9 Ibid

10 Michael W. Doyle, ‘ Striking First: Preemption and Prevention in International Conflict’, Columbia/ SIPA

Publications, 2008, pg. 53

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norms of international law in the post 9/11 scenario11

. The premise for justifying such

modifications can be linked with an armed group attacking a UN member state and thus,

qualifying itself as a legitimate target under the rule of law. Article 51 of the UN Charter also

sheds light on the inherent right of any state to resort to self or collective defense, if an armed

attack occurs against any member state of the United Nations12

. There is also a distinction made

between legitimate and illegitimate usage of force as well13

. The hunt for Al Qaeda as a logical

example, under this argument, with the primary focus on Osama Bin Laden as the main

perpetrator of the September 11th

attacks, would mean that the assassination attempt is directed at

an individual or a network, which has threatened global security and had to be dismantled. Given

that the world would face an ‘impending threat’ according to this argument, would mean that it is

plausible to consider such a force as a threat which flagrantly, flouts international law, and had to

be dealt with.

In order for ‘self-defense’ to be justified however, two conditions need to be met at all costs

according to Article 51 of the UN Charter. Firstly, the threat needs to be tangible and real, and

must not consider perceptions, as a premise for attacking an adversary. Secondly, the usage of

force to defend a nation against an assault must be proportionate to the threat posed by the actor.

Without the fulfillment of these two conditions, ‘self-defense’ cannot be justified. Options such

as negotiations, retreating, or referring the case to larger authorities becomes difficult, when the

usage of force is applied as an act of ‘Self Defense’14

.

In contradiction to what Article 51 of the UN charter enshrines however, the concept of ‘ Jus

Cogens’, in Article 2, Section 4, prohibits member states from exercising force against another

state with due respect to a state’s sovereignty and territorial integrity15

. This concept challenges

11

Tom Ruys, ‘ Armed Attack and Article 51 of the UN Charter’, Cambridge Studies in International and

Comparative Law series ( No. 74), Cambridge Catalogue, 2010, Introduction, par. 4

12 United Nations official website, ‘Charter of the United Nations’, Chapter VII ACTION WITH RESPECT TO

THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION, Article 51, accessed on

05/ 11.2012, < http://www.un.org/en/documents/charter/chapter7.shtml> 13

George and Jens Ohlin ‘Defending humanity’ New York: Oxford University Press, 2008. p.67 14

David and Henry Shue ‘Preemption: Military Action and Moral Justification’ New York: Oxford University

Press, 2007. pp 55, 76, 102 15

J.G. Starke, ‘ Introduction to International Law’, London, Butterworth’s and Co. ( Publishers) Ltd, 1972, pp. 59,

60- 61

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the very notion of waging a ‘preemptive strike’. Considering ‘ Preemption’ as a heinous and

horrendous crime, can also be understood in the context the Treaty of Westphalia in 1648, which

marked the end of the Thirty Year’s war and since then has, enshrined the principle of

‘nonintervention’ for states that had to bear the brunt of the war16

.

Yet, the intervention in Iraq in 2003 can be best explained in light of the sanctions which were

imposed on states which failed to comply by what is defined in international law, and not by any

historical source such as the Treaty of Westphalia. Chapter VII, Chapter 39 of the United

Nations Charter of 1945 gives the Security Council the power to determine any threat to global

peace, and sanctions could be levied on the respective state if it fails to comply with provisional

measures which aim at ensuring international peace and security17

. What is outlined in Chapter

VII is thus, the closest that one can get in terms of understanding the case of the US lead

invasion into Iraq in 2003, under International Law. However, the Bush Administration’s

objectives in the region as well as their precedents for ‘preemption’ were salient factors which

authorized military intervention into the country and can be contested.

16

Ibid, pg. 11 17

United Nations official website, ‘ Charter of the United Nations’, Chapter VII ACTION WITH RESPECT TO

THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION, Article 51, accessed

on 05/ 11.2012, < http://www.un.org/en/documents/charter/chapter7.shtml>

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Intervention on the premise of ‘preemption’- A Case Study of the justifications provided by

the Bush Administration to invade Iraq

A ‘ just war’, or the very idea of it, comes under the fold of ‘humanitarian intervention’, which

makes it justifiable as an obligation of the international community to intervene and use military

force, in countries where there is a grave danger to a nation’s property and life18

. The usage of

force in humanitarian intervention at the same time, has been debated by erudite scholars, where

intervening on the premise of human rights violations, is often considered to be a violation of the

territorial integrity of the state in contention19

.

The exception to the rule however, includes the right to self-defense and collective security

actions which fall under Chapter VII of the UN charter. Yet considering the US led invasion into

Iraq as ‘Humanitarian Intervention’, would be deeply flawed if not an outright crime. Despite the

Saddam regime being accused of numerous human rights violations and systematic oppression of

its population, the premise for invading Iraq in the name of ‘preemption’ from the US, stemmed

from allegations of the Saddam Regime possessing weapons of mass destruction ( WMDs)20

.

Intelligence review of WMDs:

Wide scale skepticism over Iraq and its status quo with regard to developing WMD’s came as

soon as the Bush Doctrine was articulated in 200221

. Yet, it was not until Major General James

A. Spider used the expertise of the Defense Intelligence Agency (known as ‘Smart Guys’), when

speculations of production plants and storage facilities managed to surface. Bob Woodward,

(2006), provides the exact details of what the DIA managed to disclose.

‘It was a list of 946locations where intelligence indicated, there were production plants… for

chemical, biological or nuclear related material in Saddam’s Iraq.’22

18

Jean Bethke, Elshtain, "The Third Annual Grotius Lecture: Just War and Humanitarian

Intervention." American University International Law Review 17, no. 1 (2001), pp 15-16

19

Ibid 20

Micah L. Sifry and Christopher Cerf, ‘ The Iraq War Reader’, Published by Simon and Schuster, 2003, pp. 244-

247 21

Ibid

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Joint Congressional Resolution of 2002, authorizing military force against Iraq:

What eventually followed was a joint resolution that was passed by the US Congress in October,

which authorized the usage of force if the Saddam Regime did not disarm. The pivotal factor

however, was the United Nations Security Council Resolution 1441, which subsequently

followed diplomatic efforts by the United States to negotiate with the Iraqi regime. As discussed

earlier, Chapter VII of the UN charter mentions the power of the Security Council to impose

sanctions on states which fail to comply with its provisions. Iraqi resistance and inaptness from

the inspection teams which were sent were factors that were cited by the US to justify action

against Iraq23

.

The above scenario, certainly considers the invasion of Iraq to be legitimate in accordance with

the principles which have been defined by the Security Council. What it fails to take into account

however, is US military action in Iraq, which followed the then, Secretary of State, Colin

Powell’s 2003 speech in the United Nations. Powell’s attempt was futile in persuading the UN to

come up with a second resolution which called for military action against the country under the

UNSC. The end result was the US garnering popular support that it needed for taking action

against the regime. Justification for invading Iraq was thus, considered, in light of UNSC

resolution of 1441 by the US, where the second resolution which called for immediate military

action, was not considered by the Bush administration24

.

In light of the above events, it is clear, that the case for waging a war against the Saddam regime

came after the UNSC Resolution of 1441, which castigated Iraq over its compliance with

International Law. Critiques of this belief, could argue, that conflicting accounts of whether Iraq

actually had WMDs which could threaten global peace was a factor which questioned the

legality of invading a sovereign nation and violating its territorial integrity by the United States.

As far as history is concerned, the United States has had long lasting antagonism against Iraq,

given the Iraqi invasion of Kuwait, ( major Non NATO ally of the USA), which eventually led to

the Gulf War of 1991, fueling the debate to invade the country.

22

Bob Woodward, ‘ State of Denial’, Simon and Schuster UK Ltd, 2006, pp. 93-94 23

Ben Fritz, Bryan Keefer and Brendan Nyhan, ‘ All the President’s Spin’ Simon and Schuster Ltd, 2004, pg. 146

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Justifications provided for Invading the Saddam Regime

Justification for invading Iraq on the premise of possessing WMD’s however was reinforced

when the Saddam Regime failed in providing documented evidence to the United Nations, over

the fact that the country had allegedly destroyed their stockpiles. Similarly, in late 1998, the

country asserted that it would refrain from cooperating with international inspectors, which led to

air strikes in its territory from the United States and Britain25

. Yet despite these harsh realities,

Article 51 of the UN Charter was linked erroneously with attacking the Iraqi regime as well. The

only link which is plausible to consider, is the possible transfer of WMDs, to bodies such as the

Al Qaeda, which were causes of concern for the USA26

.

The Rationale of Preemption according to the Bush Administration

The rationale for ‘preempting’, an attack from Iraq however’, can be best explained in light of

what the White House had considered, as legitimate reasons for attacking the country. Ben Fritz,

Bryan Keefer and Brendan Nyhan, (2004), have quoted Deputy Defense Secretary, Paul

Wolfowitz’s, post war interview with Vanity Fair. The justification provided by Wolfowitz to

attack Iraq can be summed up as:

1. Possession of WMDs by the Saddam Regime which threatens regional and global

security

2. Possibility of transferring WMDs to other terrorist organizations, which could embolden

terrorist groups such as Al Qaeda

3. Saddam’s treatment of the Iraqi people, which were considered as gross human rights

violations27

The first point, hints directly at the security dilemma that the Persian Gulf could face,

with regard to a military dictatorship that was armed with weapons of mass destruction,

which could eventually threaten global security. The second point reiterates the need to

24

Ibid 25

Ben Fritz, Bryan Keefer and Brendan Nyhan, ‘ All the President’s Spin’ Simon and Schuster Ltd, 2004, pg. 147-

148 26

Ibid, pg. 149

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address the issue of possible transfers of WMDs to rogue elements, such as the Al Qaeda

from gaining momentum in the aftermath of the September 11th

attacks and the last point

refers to addressing human rights abuses in Iraq, which can only be justified on the

grounds of humanitarian intervention, which is considered to be an established principle

of customary international law28

.

Safeguarding the rights of Iraqi citizens however, was not the primary basis for

intervening in Iraq. The case for a ‘preemptive war’ was in fact a historical analysis of

the repeated inability of Iraq to comply with Security Council resolutions which had

greatly impaired prospects for peace and stability in the region. Interestingly, despite

what was highlighted in the UNSC resolution of 1441 and the resolutions which preceded

it, much of the underlying justification to invade Iraq stemmed from the very essence of

the Bush Doctrine alone.

Linkages drawn between Preemption and International Law by the Bush

Administration

Former US Vice President and Democratic Presidential Candidate, Al Gore has

considered the US’s right to intervene in his chapter, ‘Against a Doctrine of Preemptive

War,’ where he not only considered Iraq as a potential danger to the entire region of the

Persian Gulf, but sheds light on the US being authorized under International Law to take

action against the country on legal grounds.

‘Indeed, should we decide to proceed, that action can be justified within the framework of

international law rather than outside it.’29

Part of the reasons as to why the Former Vice President made this assertion, can be

explained in light of the 1991 UNSC Resolution that Iraq had defied. One of the key

components of the resolution was the consciousness of the statements issued by Iraq,

27

Ibid pg. 152 28

ICRC, Resource Center, ‘What is International Humanitarian Law’, Accessed, 05/11/ 2012 <

http://www.icrc.org/eng/resources/documents/legal-fact-sheet/humanitarian-law-factsheet.htm?>

12

which threatened to use weapons which violated the Protocol for the Prohibition of the

Use in War of Asphyxiating and other Poisonous gases. In addition the constant

reiteration of Iraq’s noncompliance with previous resolutions and the possession and

proliferation of WMDs which threatened national security. Awareness was also directed

at the usage of ballistic missiles by Iraq in unprovoked attacks as well30

. The fact that

Iraq had failed to comply with most of what was laid down in the UNSC Resolution 668,

amid mutterings of the possibility of Saddam’s regime transferring WMDs to rogue

elements in the Post 9/11 scenario, were sound arguments according to the Bush

Administration back in 2002.

Prior to Resolution 1441, the resolutions of the 1990s, which included 1990, 1991, 1995

and 1999, by the UNSC, all pertained to Iraq’s noncompliance with its suspicious and

largely ambiguous weapons program. A lack of concrete evidence, and disclosure by the

Saddam regime, which contravened resolution 687, was considered as one of the main

reasons which justified military action in Iraq according to the US31

. The assertion that

Iraq had continuously breached what has been enshrined in resolutions pertaining to it

and the state of security in the Persian Gulf meant that strict measures had to be

implemented.

These justifications for invading Iraq however can be challenged on numerous legal

grounds, as the 2002 Resolution passed by the Congress plunged the US into war with a

dictatorship. Yet if examined closely, the justifications provided by the Bush

Administration, actually bypass many definitions of waging a war against a sovereign

nation under international law.

29

Micah L. Sifry and Christopher Cerf, ‘ The Iraq War Reader’, Published by Simon and Schuster, 2003, Part 9, ‘

The Country Debates going to War’, pg. 326 30

Ibid, Appendix 1, ‘ Key UN Resolutions’, pg. 641 31

Ibid

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Counterarguments to the rationale of Preemption presented by the Bush Administration

according to International Law

The premise for intervening in Iraq can be challenged on legal grounds, in the following

ways

1. Concept of Jus Cogens and Article 51 of the UN Charter

Firstly, the concept of ‘ Jus Cogens’, which are a set of principles in international law

which are no derogatory, acts as the most realistic counterargument to the entire episode

pursued by the Bush Administration. The fundamental principle is the respect for state

sovereignty, territorial integrity and refraining from the usage of force, where wars of

aggression and territorial aggrandizement are prohibited. Prohibitions are considered to

be universally applicable to each and every UN member, which also includes the US32

.

The line drawn in Article 51 of the UN Charter, which challenges the concept and

distinguishes between legitimacy and illegitimacy with regard to the usage of force in the

advent of an armed attack, can also not be applied to Iraq due to a number of reasons33

.

Firstly, the USA never faced a direct threat from Iraq, and the Bush administration was

basing its speculations over the possession of WMDs which could also be transferred to

rogue elements such as Al Qaeda. Yet if Article 51 is interpreted correctly, the right to

the usage of force against any force or actor, which does not pose a direct threat or hasn’t

attacked a nation, can be considered as a contravention of International Law. In fact,

Article 51 of the UN Charter explicitly mentions the usage of force for self-defense

against an ‘armed attack’, that occurs against the receiving state34

. This Article cannot be

applied to Iraq, where sporadic incidents which have troubled the United States, can be

used as a premise for intervening and preempting an attack against a sovereign nation.

32

J.G. Starke, ‘ Introduction to International Law’, London, Butterworth’s and Co. ( Publishers) Ltd, 1972, pp. 59,

60- 61 33

Tom Ruys, ‘ Armed Attack and Article 51 of the UN Charter’, Cambridge Studies in International and

Comparative Law series ( No. 74), Cambridge Catalogue, 2010, Introduction, par. 4

14

2. Universal application of the ‘Preemptive Doctrine’

Secondly, if Iraq is to be considered as a target for a preemptive war, then that doesn’t

limit preemption to the nation alone and justifies preemption against other states with

similar structural complexities. It would also encompass all states, with military

establishments which could threaten global peace, according to the USA such as Syria,

North Korea, Iran and Libya. The logic of the preemptive doctrine is articulated well, by

the Former Vice President of the USA, Al Gore where he considers the doctrine to be

applicable to all those regimes, which are considered to be a threat to international peace

and security:

‘The very logic of the concept suggests a string of military engagements against a

succession of sovereign states…..’ 35

Similar actions against other regimes were not taken in the due course of recent history,

despite animosity existing between the US and countries such as Iran and North Korea.

The above assertion by Gore, also considers the right to preempt an attack, to be upon the

discretion of future Presidents of the United States, at any point in time. This all boils

down to the troubling notion of the Bush administration managing to violate the

sovereignty of a nation. They had deposed an autocratic regime that was considered as a

long term threat to peace and security within the region, based upon the Iraq Resolution

of 2002, only which had nothing to do with what was defined in International Law.

3. The flaw in the crux of the ‘Doctrine of Preemption’ and distorted information

The Doctrine of Preemption, also known as the Bush Doctrine’s foundation can also be

questioned. It bases its claim over the fact that the United States must thwart any

‘perceived’ threat and cannot afford to stand still and wait for credible evidence36

. In light

34

Ibid 35

Micah L. Sifry and Christopher Cerf, ‘ The Iraq War Reader’, Published by Simon and Schuster, 2003, Part 9, ‘

The Country Debates going to War’, pg. 328 36

Ibid, pg. 327

15

of this, even the staunchest of ‘Self Defense’ advocates would consider the threat to be

real and not perceived, for it to qualify for the legitimate usage of force against an

adversary, under the UN charter37

. Despite, claims by the Defense of Intelligence Agency

over production plants and storage facilities of WMDs in Iraq, the decision to wage

action against Iraq was based upon unclassified information, which could be questioned

for its reliability and credibility. In true fairness, the joint resolution of 2002 which was

passed by the White House and authorized the usage of US armed forces against Iraq

came amid information that was questionable and not documented. It heavily relied on

sources which came from the US intelligence, which was again, difficult to verify. The

2001 Iraq War critic and former State Department Staffer Grieg Theilmann has been

quoted by Brendan Fritz, Bryan Keefer and Brendan Nyhan, where he gave a report to

Secretary of State Colin Powell, which gave a clear indication that the evidence of Iraq

reconstituting its nuclear weapons was ambiguous to say the least. The information

provided was not only ambiguous but failed to classify the threat as real.

‘There is no evidence that Iraq’s nuclear program is being reconstituted…’38

Proponents of ‘self-defense’, might thus, consider the justification for intervening in Iraq

to thwart a realistic threat, as blasphemous under international law, where the threat is

perceived instead of real.

Information which is speculative in nature is one of the most important factors which

differentiate between the legitimacy and the illegitimacy of invading Iraq in 2003. What

can be further argued however is that the resolution of 2002 lacked the ability to link its

precedents with what is enshrined in previous Security Council Resolutions and

International Law. Instead, it based its argument over a doctrine of Preemption, which

goes way beyond Iraq alone.

37

David, and Henry Shue ‘Preemption: Military Action and Moral Justification’ New York: Oxford University

Press, 2007. pg. 87

16

4. Noncompliance with previous UNSC Resolutions as a premise for waging war

In true fairness, what the Bush administration based its claims of invading Iraq was that

any perceived threat would need to be thwarted in an act of preemption, and is in the

wider interest of the world community. The factors cited by the Resolution however,

hinted at Iraq’s noncompliance with the conditions laid out in the 1991 Ceasefire

Agreement, in the aftermath of the Gulf War, and its interference with allowing UN

Weapons Inspectors. The resolution failed to make it clear that the authorities which were

going to ensure the right to attack Iraq, were presented as derivatives from the UNSC and

International Law.

If defiance of previous UNSC resolutions by the Saddam Regime was considered as a

premise for authorizing military action by the Bush Regime, then Israel’s defiance of

similar resolutions which pertain to it mandates the same ‘preemptive’ measures that

were articulated in the Bush Doctrine. This argument makes the premise for waging a

preemptive war against a state which has repeatedly defied UNSC resolutions, baseless.

5. An ‘imminent threat’ as defined by the Bush Doctrine

Another aspect of what is enshrined in Article 51 of the UN charter is the right for a state

to defend itself against any ‘imminent’ threat, which also allows countries to take

preemptive measures to address those threats in certain circumstances39

. Interestingly,

what is enshrined in the Bush Doctrine, asserts that preemptive action would take place

regardless of whether the threat is impending or imminent40

. This assertion can be

considered as a direct contradiction to the very essence of the Article, where the assertion

of the same right by other nations of the world, would lead to a breakdown of the rule of

law and be replaced with a ‘ reign of fear’, instead. The doctrine can thus, be best

38

Ben Fritz, Bryan Keefer and Brendan Nyhan, ‘ All the President’s Spin’ Simon and Schuster Ltd, 2004, pg. 154 39

Micah L. Sifry and Christopher Cerf, ‘ The Iraq War Reader’, Published by Simon and Schuster, 2003, Part 9, ‘

The Country Debates going to War’, pg. 331 40

Ibid, pg. 330

17

described as a reflection of damning signs to the international community in 2003, over

US hegemony and dominance instead of pursuing the ideals of deterrence and

nonproliferation.

6. Disarming Iraq

Lastly, disarming Iraq was considered as one of the main reasons for intervening in the

country. The UNSC has been committed to disarmament, yet the usage of force to

achieve that aim is open to considerable skepticism and is debatable. The Security

Council’s goal of disarmament in the 1990’s was working in light of the Ceasefire

Agreement with Iraq in 1991. Inspections had seen considerable progress, and the process

of disarming Iraq peacefully, could have well and truly been realized. The UNSC

resolutions of 687 and 715 had enabled the OMW or the ‘Ongoing Monitoring and

Verification System’, which helped in assuring that Iraq, did not reconstitute chemical

and biological weapons41

. In light of this, regular reassurances to the Security Council

over Iraq’s weapons capabilities could have been considered, given the effectiveness of

the OMV. It can be argued that instead of considering military options to dethrone the

Saddam Regime by the Bush Regime, and in the process eliminating suspected sights,

The US could have pressed on reviving the OMV, as a viable solution to Iraq’s

disarmament issue.

7. The Realist School of thought in international relations and the Bush

Administration’s objectives

Despite strong grounds for invading Iraq, the realist school of thought in International

Relations, would consider the entire episode to flagrantly violate what is enshrined in

international law, and consider the need to reap Iraq’s oil resources as the primary

justification for the US to undertake action.

41

Micah L. Sifry and Christopher Cerf, ‘ The Iraq War Reader’, Published by Simon and Schuster, 2003, Part 12, ‘

Last Dance at the UN, pg. 457

18

Aspects such as promoting security, dethroning Saddam Hussein and ensuring that the

welfare of Iraqi citizens are kept intact, are in fact secondary, in light of the enormous oil

reserves that Iraq had possessed42

. In true fairness, Iraq’s neighbors which include

Kuwait, the United Arab Emirates and the Kingdom of Saudi Arabia are countries which

have served American economic interests in the region for many a decade, and any

threats to that regional design would have been unacceptable to the United States.

The realist school of thought, considers world politics to be driven by competitiveness

and rivalry, and would thus, challenge the legal grounds for intervening in Iraq and

consider such justifications as preposterous43

.

American interests in the region as well as their bilateral ties with many of Iraq’s

neighbors, such as Iran after the Islamic Revolution in 1979, were pivotal factors that

could have possibly prompted the Bush Administration to justify American presence in

the region. Iraq’s dictatorship and burgeoning strength could have threatened the Persian

Gulf which is religiously, politically and economically very sensitive. The security

dilemma that the Persian Gulf could have faced with Iran and Israel at loggerheads over

nuclear technology and armed groups such as Hamas and Hezbollah being the bone of

contention between both nations, would mean that American military presence in the

region would become imperative. These factors would mean that acting upon the

precedents of what is enshrined in international law, would be secondary or irrelevant., as

the realist postulation considers states as being instrumentally rational and have no

consideration for moral principles in the international system.

42

"Iraqi oil reserves estimated at 143B barrels". CNN. October 4, 2010. Accessed 05/ 11/ 2012, <

http://edition.cnn.com/2010/WORLD/meast/10/04/iraq.oil.reserves/index.html> 43

John, Rourke (30) Michael, Ryan. Ed (in English). International Politics on The World Stage. Boyer, Mark A.

New York, New York: McGraw Hill, [2010]. p. 16.

19

Conclusion

It can thus be proven, that the entire rationale presented by the Bush administration was

in fact a direct contravention of international law and was a product of principles

enshrined in the Bush Doctrine that was articulated in 2002. Justifying an intervention on

the premise of thwarting a ‘perceived’ threat from a state, can be defined as a flagrant

violation of state sovereignty under international law.

20

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21

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