Iraq: The Costs of War and the Risks of Peace

I‘m going to be talking about what we should do about Iraq in terms of three questions. The first question is: what is at stake? The second question is what should be done if the inspections are inadequate. In particular, should the US be willing start a war on its own or should it wait for more support? And third, what might a war and its aftermath look like if there is one?

What‘s At Stake?

Well, the first thing that‘s at stake is cheap oil. When Pakistan got the bomb we were upset a little bit, we had some minor sanctions, and then we forgot about it. That‘s not our attitude toward Saddam‘s moving toward the bomb. When Saddam invaded Kuwait we were very upset and built a worldwide coalition against it. But if Nigeria invaded one of its neighbors, do you think that would happen? Probably not.

Why is oil so important, especially cheap oil? There‘s no alternative. People are exploring all sorts of things, hybrid cars, solar cars and so on but we‘re at least 20 years away from being substantially less dependent on oil because there‘s no economically viable alternative on a large scale right now. Too, there‘s not going to be much new oil, and probably just enough to keep up with new demand from China and other places. The world economy, especially in industrial nations, but also in poor nations, is very dependent on cheap oil.

So why is cheap oil at stake? It‘s not just because of Iraq‘s own contribution to exports and reserves but also because if it had the bomb, it could dominate the region if the US could not continue to support others, for example, Saudi Arabia. The US would not be deterred by the bomb, but it might be deterred from helping its allies. Suppose you are a Saudi, and Iraq has the bomb. In that case you wouldn‘t be able to count on the US the way you could in the Gulf War. That would mean that Iraq could potentially turn the other Arab states in the region into the same status that Finland had with respect to the Soviet Union: independent but not willing to rock the boat and rather eager to be in the good graces of the dominant power.

Now, oil is not the only thing at stake, of course. Another thing that‘s talked about is Iraq‘s relationship to the war on terrorism. It seems to me that this is being dramatically overblown by the current administration. Iraq has no Islamic credentials, it‘s secular, and even fought the Iranian fundamentalists when they came to power. There was no prior connection between Iraq and al-Qa‘ida. Maybe they‘re harboring somebody now but it‘s nothing substantial. And the one episode that the Bush administration points to happening, a meeting in Prague, may never have happened anyway. So the other side of it is that a war with Iraq might actually distract the US and its allies from dealing with terrorism and with proliferation in North Korea, both of which are even more direct problems.

What is at stake is not the war on terrorism but regional stability, if the US invaded Iraq, especially without overwhelming support. If there‘s a war, this could provide the Kurds in northern Iraq with a chance of a century to become independent. They haven‘t asserted a right to independence because they know it would be unacceptable to others, especially Turkey. But if there‘s chaos in Iraq, this might be an opportunity. Likewise, Iran might find chaos in Iraq a once-in-a-generation opportunity to make territorial gains. One might imagine that all of the Arab states would be hostile to this war, and this would endanger the regimes of Saudi Arabia, Egypt and Turkey, and escalate the Palestinian conflict as well.

The effect on international order is important. Again, the current situation is that we‘re waiting to see what Saddam does in terms of responding to the UN inspections. Saddam might go all of the way and say you can do anything you want, I‘m going to come clean, and I‘ll tell you about everything, and you can take everything. Then the assumption would be that the UN inspectors would say after six months that Iraq can be certificated as clean, and they can go home. Once Iraq is declared clean, the sanctions would probably be lifted. So, there‘s a possibility that Saddam would be saying ok, I‘ll get the sanctions over, I‘ll get the UN off of my back, and then I‘ll start over again. I think it‘s more likely that he‘ll play the games that he played before, letting them in and then restricting their abilities to actually do the job. Then the question would be, would the US act on its own? And this was left somewhat ambiguous last week when the US promised that the UN role would continue but didn‘t promise to pay attention to it.

Suppose the US did go in more or less alone, saying that we weren‘t satisfied with what Saddam was doing even though the rest of the UN was saying let‘s wait and give him another chance. In that case, a unilateral war would dramatically weaken the UN. The authority of the Security Council has been strengthened by virtue of its unanimity and its assertion of its right to demand that countries live up to their obligations. If this precedent is established, if people accept that instead of an immediate resort to force, they have to go to the UN to authorize the use of force, that would be tremendous progress in the world. But if we ignore what the UN has done, and operate without the UN, we can make it look ineffective and undermine that possibility. It would also weaken the norm against preemption. And it would probably make the allies less willing to follow us if we went out on our own, and probably hurt our leadership in other contexts. Whether this would hasten or retard proliferation is not clear.

So here‘s where I am so far. If the UN isn‘t going to be tough in the next stage of enforcing inspection regimes, should the US invade on its own? Well, the argument in favor is really to protect the world economy to keep the oil cheap. But going to war for cheap oil doesn‘t seem very moral and certainly not defensible in public. To keep oil cheap, one must prevent Iraqi domination in the Gulf. To do that, the US must be able to back up the Gulf States. To manage that, one must prevent the possibility of local deterrence of the US by Iraq. If Iraq has the bomb we are relatively easy to deter. The reasons against war are the serious problems of regional stability and serious concerns about undermining international institutions.

Why Not Wait?

Let me just say a few words about why the administration has been so eager to push this as fast as possible. One might think that countries much closer, such as Russia, would be more afraid of the Iraqi bomb than we are. From the administration‘s point of view, it is important to move before 9/11 fades. For the public, there‘s a certain merger of terrorism and Iraq, which I don‘t think is valid. But I think in terms of public willingness to go to war the administration sees that this is not going to last forever. Of course, the other reason is concern about weapons of mass destruction. For example, if Iraq was able to purchase fissile material from some Russian scientist, then the published reports say that it would take only a year to build a bomb. And of course, in addition, there are chemical and biological capabilities which are presumably growing all of the time.

What Kind Of War?

What might a war look like? We might not have a war, and I hope we don‘t have a war. But I think it‘s still a realistic possibility. The way that things might develop is that the US will be unsatisfied with the effectiveness of the inspections and eventually may take matters into its own hands with or without the support of others.

I have studied a lot of wars and their onset. I think leaders on both sides of wars, in the beginning, tend to be too confident of their ability to predict the outcome. They are often wrong. One reason they are wrong is due to what the intelligence community calls “mysteries” as opposed to “secrets.” A secret is something that‘s knowable, even if you don‘t know it, like how many Scuds are available. We don‘t know that but we could, at least in principle, find out. But a choice someone will make in the future is a mystery.

An example of a mystery is whether the citizens of Baghdad will fight until the end. In 1945, the troops in Berlin fought to the end. They knew they couldn‘t win and they fought, block by block, anyway. Will the citizens of Baghdad do that? It somewhat depends on how the war goes, whether there are a lot of atrocities, for example, or how much international support there is. But it is hard to guess. They might just stay in their basements and hope that it ends soon. But what about the Republican Guard? And what about Saddam himself? Will they be like the Nazis and fight to the end? Or will they be like the European communists, who just folded. Will they fold or fight in Iraq? I don‘t know. How will Israel respond? Well, it‘s hard to say.

The US is itself one of the least predictable countries in the world. For example, when Japan attacked Pearl Harbor in 1941, they didn‘t expect the US would fight until it smashed them completely. When Stalin in 1950 authorized the attack on South Korea, he certainly didn‘t think the US would intervene: we had just said that South Korea was not in our Asian defense perimeter. When in 1962 Khrushchev put missiles in Cuba, he certainly didn‘t expect the confrontation to escalate to a nuclear crisis. And obviously, Saddam, when he invaded Kuwait, didn‘t expect that the US would do what it turned out we did. So the US is really a mystery to others. It‘s worth bearing in mind that not all of the uncertainties are elsewhere.

If the US wants to pursue this war with overwhelming force, what do we need? We need Turkish permission to use air bases, and we need Saudi permission for land access. We prefer to attack in January or February because the weather gets too hot after that to wear chemical warfare protection suits. It takes about an 8-10 week build up; the first five weeks are already done.

In summary, I think that the biggest thing at stake is regional stability and international norms. I think that the US, in the long run, has a tremendous stake in building international norms for codes of behavior for what countries can expect of each other. The US should be very respectful of the need to do that, and that requires taking other folks seriously.

Although I work primarily in international trade law and international economic law, over the last few years I‘ve become quite interested in the law of war and peace. Part of the reason for this interest is the way in which much of what one might call the orthodox or “professional” international law community has interpreted the law of war and peace, for those interpretations seem to me often contrary to basic moral intuitions. For example, the interpretations sometimes tend to make the right to self-defense so narrow that international law can seem almost like a suicide pact

Based on their readings of the United Nations Charter, many of these international lawyers propose that one should stand by and wait for the United Nations to act while people die, and while basic security interests are also threatened. This seems contrary to basic morality, and has in turn threatened to make the profession of international law somewhat ridiculous. This disturbs me. I would rather take account of the realities of international relations and some of the fundamental moral intuitions that may be at odds with what one might call the mainstream interpretation, and that‘s where I am coming from in these remarks.

Misrepresenting the Law

I‘d like to begin with two preliminary observations about international law that are both obvious but also forgotten, or overlooked, in discussions of international law and military interventions.

The first is that the interpretation of international law is inherently decentralized. We are dealing with a diverse set of normative sources for international law and no final arbiter or interpreter. The law and its interpretation draw from the opinions of international lawyers, state practice, the customs and general principles of the law of civilized nations. Therefore when people say the United States can‘t do this or that as if there were a definitive judicial arbiter, I would be suspicious. Until there is something like a world government that can interpret the law definitively, international law will be interpreted, not only by judges, but also by political actors in light of their interests as well as through their distinctive principles.

The second observation is that when people deal with the law of war and peace since 1945, they consider themselves to be dealing with the constraints on the use of force established by the United Nations Charter. However, that framework restricting the use of force by individual member states of the UN assumed a UN police force or UN army to be established under the UN Charter. With the Cold War, that never came into effect. In light of that fact, we ought to adjust our view of just how strict are the limits on the use of force by individual states in order to try and enforce international law or to defend themselves.

So with these preliminary observations I come to the question of international law and the use of force against Iraq at this current junction.

The Legality and Morality of War

The previous speakers have told you some important facts; you know that the current concerns about Iraq emerge from its unprovoked all-out aggression against a neighboring state in the region. The US-led coalition‘s response to that attack made a mistake in failing to go to Baghdad and remove the regime—the sanctions against Iraq were supposed to be better than force or violence, but those sanctions have killed a lot of people, they‘ve encouraged black-market activities in Iraq, they‘ve made the corrupt and vicious richer. This strategy has been a moral and human disaster. This also has implications for the credibility of the United Nations.

It is not a unilateralist position of the United States that Hussein has been consistently violating international law. Not only with respect to honoring Security Council resolutions on matters such as inspections, but also by oppressing his own people. This violation of law is no unilateral judgment; this individual and his regime are outlaws of the international community. This is the judgment of the official organization of the international community, but so far they have not had the nerve to do anything effective to address these flagrant violations of the rules of international law.

I have framed these issues in a somewhat provocative way in order to get a debate going about the sense of international law, and to consider in particular those situations where it might be said that the use of force could be justified against Iraq under international law as it currently stands. The current UN resolution neither explicitly authorizes, nor specifically prohibits, individual members of the United Nations from using force in response to a non-implementation of that resolution by Iraq. NATO‘s intervention in the Kosovo conflict also offers important precedent for consideration.

Serbia was clearly violating UN Security Council Resolutions, and NATO decided to take military action against that regime. In that case, the Security Council did not explicitly approve or authorize this use of force, and after the fact, it did not condemn what NATO did as a violation of international law, but took a more subtle approach. I mention this example because again and again you will hear from conventional or orthodox international lawyers, especially European lawyers, that the UN Charter strictly prohibits any use of force, individual or collective, against any members of the United Nations outside the context of self-defense or without the explicit endorsement of the Security Council. But we have recent state practice, despite serious concerns voiced by international lawyers, that contradicts that position. I think that one must therefore take into account this recent state practice in assessing any action pursuant to the latest Security Council resolution should Saddam Hussein not implement it.

One should also consider the notion of self-defense in Article 51 of the UN Charter. This provision says that nothing in the charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. What if the Security Council has proven unwilling or incapable of attaining such measures, what then? And what does an armed attack mean? Again, there have been very narrow interpretations offered in the community of international law, based on outdated notions of military technology and strategy and 19th century conceptions of the nature of threats to peace.

Consider the incident a number of years ago when the Israelis took out an Iraqi nuclear reactor, thereby succeeding in setting back Iraq‘s nuclear program. This was, I think, to everyone‘s benefit, but was it illegal because it was preemptive? Did the Israelis have to wait ‘til Saddam‘s finger was on the nuclear button, before responding, because of the words “armed attack” in Article 51? What implications for peace and security would there be if Iraq had the bomb? Isn‘t it better to defend yourself sooner rather than later in this situation? Some element of preemptive self-defense should be considered consistent with the UN Charter, subject to principles such as proportionality, where the use of force should be no greater than that required to deal with the extent of the threat, and of necessity, where there are no other alternatives that could resolve the problem.

In the case of Iraq, the alternatives have begun to be exhausted. Despite being accused of “unilateralism” and saber-rattling, the Bush administration worked day and night to produce the latest Security Council resolution and to produce every diplomatic and political pressure on Iraq to get it to comply with international law and act in such a way as to assure the international community, including the United States and its allies, that it will not engage in behavior threatening to them. It‘s hard to know what else could be done. So there‘s a good argument that self-defense might be applicable, but only once you have given the current UN resolution and the activities pursuant to it a chance. If, at the end of the day, there is a good faith attempt to play that out, and Iraq is not complying so as to assure that the threat of attack is being removed, forceful intervention may be justified.

At this point, however, I personally am un-persuaded that that deterrence (as opposed to the actual use of force) is ineffective to contain Sadaam Hussein. The threat of overwhelming force in a US-led attack could possibly be sufficient deterrence against future aggression, if crystal clear, unambiguous and credible. But it also depends on how the facts play themselves out in the weeks ahead. It could also be possible that regime change proves the only means of removing the real and immediate threat of Hussein using force against Americans and their allies. If Saddam Hussein‘s behavior in light of the present resolution continues to be the kind of behavior that he‘s manifested in the recent past, then perhaps those in the administration saying there is no alternative but regime change may be right. Or we may see evidence that, under the shadow of a plausible threat of the use of decisive force, he is capable of being deterred or even changing his behavior. With that, he may create assurances that the threat posed by him and his regime has been diminished or removed. We‘ll have to see, but time is running out.

Most discussion of the looming war against Iraq by the United States quite naturally focuses, in this country, on the pros and cons of such an action for America. I would like instead to talk about regional perceptions of the issue in the Middle East itself, and about likely costs of war and risks of peace there.

Let me begin with the risks of peace, reversing our title. The Gulf War of 1990-91 was a status quo war. It was conceived by the international community and even by the United States as a way of turning the clock back to July 1990, before Iraq invaded Kuwait. The problem was that the status quo ante was highly unsatisfactory. The Persian Gulf is the site of two-thirds of the proven petroleum reserves in the world. Yet the countries along its littoral have no means of providing security to themselves. They tend to be small if not tiny and militarily weak. The two exceptions here are Iran and Iraq.

The British created this situation of small states in the Gulf, to provide for the security of their shipping and communications to India in the colonial period. Yet they withdrew from the Gulf in 1969, and left behind no obvious successor. Nixon and Kissinger attempted to promote the Shah of Iran as the new guarantor of Gulf security in the 1970s, but that went sour in 1978-79 with the Islamic Revolution in Iran. Iraq made a bid to become the premier Gulf military power with its attack on Iran and the Iraq-Iran war of the 1980s, in which it was broadly speaking backed by the United States (which, however, played both sides against one another). Iraq did so badly in the Iran-Iraq war, however, that it left itself without credibility as security provider in the region. It also was left deeply in debt The attack on Kuwait was aimed at regaining the sort of petroleum wealth that would allow Iraq to launch itself as a great power in the region. But it was unacceptable to the world community and Iraq was pushed back and made a pariah.

The post-war arrangements were a tragic failure. Bush‘s call for an uprising of Shi‘ites and Kurds against Saddam Hussein‘s Baath Party succeeded only too well. Alarmed, and perhaps under Saudi pressure, the US appears to have made a deliberate decision to allow the Iraqis to put these uprisings down with helicopter gun ships, which could have been interdicted under the terms of the armistice. Tens of thousands of Shi‘ites were killed then and subsequently. Although the United States ultimately stepped in to protect the Kurds, it did not do the same for the Shi‘ites in the south, who continued to be victimized.

The sanctions regime initially allowed too little food and medicine into Iraq, harming civilians and children; and the Baath regime‘s insistence on skimming off profits from smuggled petroleum or later from the oil for food program of the UN only worsened their plight. This situation created vast discontents with the United States in the Arab world and in the Muslim world more generally. The mastermind of the bombing of a Western dance club in Indonesia that killed over 180 persons gave the US actions against Iraq as one of his motives. Although Iraq has arguably been contained, its containment has come at a very high price

Domestically, the civilian population and children have suffered enormously from lack of medicine and from poverty produced by the sanctions and by the distribution of wealth toward party members. Politically active Shi‘ites have been killed in the thousands and dissident villages in the marshes have seen their swamps drained. Internationally, the United States faces constant opprobrium for keeping the sanctions in place. Now we are told that after all this suffering, its prime aim, of preventing Iraq from continuing to militarize and to develop weapons of mass destruction, may well have failed anyway. The risks of peace therefore include: continued lack of good security in the Persian Gulf region, imperiling both the people who live there and the assured access to energy supplies on the part of the US and its allies; the assured access to energy supplies on the part of the US and its allies; the continued brutalization of the Iraqi population by a totalitarian regime that has conducted virtual genocide against Kurds and Shi‘ites; the continued demonization of the United States in the region and in the Muslim world for the negative effects of the sanctions regime; the possibility that Iraq will develop enough in the way of weapons of mass destruction to break out of containment and to attempt to gain popularity by attacking yet another of its neighbors, perhaps Turkey or Israel. The aggressive, militaristic nature of the Saddam Hussein regime makes such a scenario, however unlikely, at least plausible.

I do not personally believe that a risk of peace includes an Iraq weapons of mass destruction attack on the United States itself, nor is there any solid evidence in open sources of a firm link between Iraq and anti-US terrorism.

The Costs of War

The regional costs of a US war on Iraq are potentially great: The war will inevitably be seen in the Arab world as a neo-colonial war. It will be depicted as a repeat of the French occupation of Algeria or the British in Egypt—or indeed, the British in Iraq. These were highly unpopular and humiliating episodes. The US, even if it has a quick military victory, is unlikely to win the war diplomatically in the Arab world. Pan-Arabism has been more aspiration than reality in the past century, but this US war against Iraq might well promote the formation of a stronger regional political bloc.

As a result of resentment against this neo-colonialism, the likelihood is that al-Qa‘ida and other terrorist organizations will find it easier to recruit angry young men in the region and in Europe for terrorist operations against the US and its interests.

The final defeat of the Baath Party will be seen as a defeat of its ideals, which include secularism, improved rights for women and high modernism. Arabs in despair of these projects are likely to turn to radical Islam as an alternative outlet for their frustrations. The Sunnis of Iraq could well turn to groups like al-Qa‘ida, having lost the ideals of the Baath. Iraqi Shi‘ites might become easier to recruit into Khomeinism of the Iranian sort, and become a bulwark for the shaky regime in Shi‘ite Iran.

A post-war Iraq may well be riven with factionalism that impedes the development of a well-ensconced new government. We have seen this sort of outcome in Afghanistan. Commentators often note the possibility for Sunni-Shi‘ite divisions or Arab-Kurdish ones. These are very real. If Islamic law is the basis of the new state, that begs the question of whether its Sunni or Shi‘ite version will be implemented. It is seldom realized that the Kurds themselves fought a mini-civil war in 1994-1997 among two major political and tribal factions. Likewise the Shi‘ites are deeply divided, by tribe, region and political ideology. Many lower-level Baath Party members are Shi‘ite, but tens of thousands of Iraqi Shi‘ites are in exile in Iran and want to come back under the banner of ayatollahs.

Internal factionalism is unlikely to reach the level of Yugoslavia after the fall of the communists, since US air power can be invoked to stop mass slaughter. But there could be a good deal of trouble in the country, and as the case of Afghanistan shows, the US cannot always stop faction fighting.

A new government in Iraq raises questions about its relationship to its neighbors. Turkey is strongly opposed to Iraqi Kurdish control of the oil fields of Kirkuk. The Kurds have all but announced that they will try to grab them when fighting breaks out. The Turks have said that in case this happens, Turkey may well invade Iraq to stop it. It is unacceptable to the Turkish government to have well-funded autonomous Kurds on their borders. They fear Kurdish nationalism, which might well tear eastern Turkey away from Ankara. Shi‘ite Iran will certainly attempt to increase its influence among Iraqi Shi‘ites once the Baath is defeated

Shi‘ite political parties may well turn to Tehran for funding. A US-occupied country where the Iranian ayatollahs have substantial influence is a disaster waiting to happen. An Iraq war may have a negative impact on the Israeli-Palestinian struggle. A democratic Iraq, if any such thing emerges from an American occupation, will not necessarily be less opposed to Israeli policies toward Palestinians and the creeping annexation of the West Bank. Iraqi individuals and political organizations, freed from Baath monopoly, might well support the Palestinians, including Palestinian guerrillas, at a higher level than does Saddam

The chaos of war could allow for an outbreak of major violence between Palestinians and Israelis. The Baath may target Israel with scuds tipped with poison gas, e.g. Israeli retaliation will make the war look even more like a joint colonialist and Zionist effort among Arabs, and further inflame passions against the US in the region.

Those who support an Iraq war argue that the potential negative fall-out consists of improbable scenarios that are no more likely to come to fruition than did the dire forecasts about overthrown Arab regimes in 1990. They argue that if we can get a genuinely democratic, modern Iraq out of the war, its beneficial effects will radiate throughout the region. They may be right. But it is worth remembering that we were promised a democratic Kuwait in 1991 and a democratic, stable Afghanistan in 2002, and have yet to see either