Iraq, human rights concerns, and legal justifications for war

[Scarberry, Mark]

Again, Sandy is correct as to the emphasis on WMD, but my earlier message
was in response to his comment that "After all, the initial rationale for
the war had nothing to do with making life better for Iraqis ..." I
recognize that Sandy has now noted the possible relevance of the Iraq
Liberation Act. I have to continue to insist that humanitarian and human
rights concerns were a part of the justification for the war, and that their
invocation now is a change in stress, not an after the fact addition. I
believe President Bush did include those concerns in his stated rationales
for the war, though for international diplomatic purposes the WMD issues
were stressed. (Of course, the apparent nonexistence of WMD does not mean
that we were unjustified in thinking that Iraq had them; I believe even
Saddam's generals thought they existed, and one who bluffs can hardly
complain when the bluff is called.) 

 

I don't have the text of the President's speeches in front of me, but note
the following paragraphs from the Preamble to the Congressional
authorization of use of force, excerpted from that Preamble as Sandy
reproduced it in his response to me:

Whereas Iraq persists in violating resolutions of the United Nations
Security Council by continuing to engage in brutal repression of its
civilian population thereby threatening international peace and security in
the region, by refusing to release, repatriate, or account for non-Iraqi
citizens wrongfully detained by Iraq, including an American serviceman, and
by failing to return property wrongfully seized by Iraq from Kuwait; 

...

Whereas United Nations Security Council Resolution 678 authorizes the use of
all necessary means to enforce United Nations Security Council Resolution
660 and subsequent relevant resolutions and to compel Iraq to cease certain
activities that threaten international peace and security, including ...
repression of its civilian population in violation of United Nations
Security Council Resolution 688 ... ;

...

Whereas in December 1991, Congress expressed its sense that it "supports the
use of all necessary means to achieve the goals of United Nations Security
Council Resolution 687 as being consistent with the Authorization of Use of
Military Force Against Iraq Resolution (Public Law 102-1)," that Iraq's
repression of its civilian population violates United Nations Security
Council Resolution 688 and "constitutes a continuing threat to the peace,
security, and stability of the Persian Gulf region," and that Congress,
"supports the use of all necessary means to achieve the goals of United
Nations Security Council Resolution 688"; 

Whereas the Iraq Liberation Act (Public Law 105-338) expressed the sense of
Congress that it should be the policy of the United States to support
efforts to remove from power the current Iraqi regime and promote the
emergence of a democratic government to replace that regime; 

 

These are substantial, though secondary, invocations of humanitarian and
human rights concerns by Congress as justifications for the use of military
force. 

 

The "world-famous human rights activist" to whom Sandy spoke may not think
international law permits such concerns to be a part of the basis for war,
but I don't think international law is clear on that point, nor could it be
so clear in the case of Iraq in light of the Security Council resolutions
calling for an end to repression of the Iraqi people. Others on the list
undoubtedly know much more about international law than I do, and it would
be interesting to hear whether they agree with the world famous human rights
activist's view that the community of nations would be legally obligated to
stand by and permit chattel slavery or worse, so long as genocide was not
involved. Of course I am one of those old-fashioned types who does not
believe Congress is bound by anyone else's view of the requirements of
international law but rather has authority to "define ... Offenses against
the Law of Nations." Art. I, sec. 8, cl. 10. 

 

Mark S. Scarberry

Pepperdine University School of Law

 

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
Sent: Monday, August 15, 2005 9:34 PM
To: Scarberry, Mark; conlawprof at lists.ucla.edu
Subject: RE: Iraq, human rights concerns, and legal justifications for war 

 

Mark is surely correct that some people stated such concerns.  But he is
also correct that there was no plausible legal case for "humanitarian
intervention" under international law based on such concerns.  I was at a
conference last year in Germany and suggested that, just as "humanitarian
intervention" is ultimately the only real justification for preventing
Southern secession in 1861, so was such intervention the most plausible
justification for the war in Iraq.  I was told in no uncertain terms by a
world-famous human rights advocate that although humanitarian intervention
would have been justified in 1989, when Saddam was threatening the Kurds
with genocide, there ws no such justification in 2003.  Indeed, I as told,
somewhat to my surprise, that getting rid of chattel slavery would not
justify humanitarian intervention, since only threats of genocide justified
it.   Certainly the most memorable speeches in the run-up to war emphasized
WMDs and nuclear threats.  I fail to recall any suggestion that the
justification for putting American lives at risk was humanitarian
intervention (and the concomitant task of nation-building afterward).
Consider the Preamble to the Congressional resolution authorization military
force in Iraq: 

Whereas in 1990 in response to Iraq's war of aggression against and illegal
occupation of Kuwait, the United States forged a coalition of nations to
liberate Kuwait and its people in order to defend the national security of
the United States and enforce United Nations Security Council resolutions
relating to Iraq; 

Whereas after the liberation of Kuwait in 1991, Iraq entered into a United
Nations sponsored cease-fire agreement pursuant to which Iraq unequivocally
agreed, among other things, to eliminate its nuclear, biological, and
chemical weapons programs and the means to deliver and develop them, and to
end its support for international terrorism; 

Whereas the efforts of international weapons inspectors, United States
intelligence agencies, and Iraqi defectors led to the discovery that Iraq
had large stockpiles of chemical weapons and a large scale biological
weapons program, and that Iraq had an advanced nuclear weapons development
program that was much closer to producing a nuclear weapon than intelligence
reporting had previously indicated; 

Whereas Iraq, in direct and flagrant violation of the cease-fire, attempted
to thwart the efforts of weapons inspectors to identify and destroy Iraq's
weapons of mass destruction stockpiles and development capabilities, which
finally resulted in the withdrawal of inspectors from Iraq on October 31,
1998; 

Whereas in 1998 Congress concluded that Iraq's continuing weapons of mass
destruction programs threatened vital United States interests and
international peace and security, declared Iraq to be in "material and
unacceptable breach of its international obligations" and urged the
President "to take appropriate action, in accordance with the Constitution
and relevant laws of the United States, to bring Iraq into compliance with
its international obligations" (Public Law 105-235); 

Whereas Iraq both poses a continuing threat to the national security of the
United States and international peace and security in the Persian Gulf
region and remains in material and unacceptable breach of its international
obligations by, among other things, continuing to possess and develop a
significant chemical and biological weapons capability, actively seeking a
nuclear weapons capability, and supporting and harboring terrorist
organizations; 

Whereas Iraq persists in violating resolutions of the United Nations
Security Council by continuing to engage in brutal repression of its
civilian population thereby threatening international peace and security in
the region, by refusing to release, repatriate, or account for non-Iraqi
citizens wrongfully detained by Iraq, including an American serviceman, and
by failing to return property wrongfully seized by Iraq from Kuwait; 

Whereas the current Iraqi regime has demonstrated its capability and
willingness to use weapons of mass destruction against other nations and its
own people; 

Whereas the current Iraqi regime has demonstrated its continuing hostility
toward, and willingness to attack, the United States, including by
attempting in 1993 to assassinate former President Bush and by firing on
many thousands of occasions on United States and Coalition Armed Forces
engaged in enforcing the resolutions of the United Nations Security Council;


Whereas members of al Qaida, an organization bearing responsibility for
attacks on the United States, its citizens, and interests, including the
attacks that occurred on September 11, 2001, are known to be in Iraq; 

Whereas Iraq continues to aid and harbor other international terrorist
organizations, including organizations that threaten the lives and safety of
American citizens; 

Whereas the attacks on the United States of September 11, 2001 underscored
the gravity of the threat posed by the acquisition of weapons of mass
destruction by international terrorist organizations; 

Whereas Iraq's demonstrated capability and willingness to use weapons of
mass destruction, the risk that the current Iraqi regime will either employ
those weapons to launch a surprise attack against the United States or its
Armed Forces or provide them to international terrorists who would do so,
and the extreme magnitude of harm that would result to the United States and
its citizens from such an attack, combine to justify action by the United
States to defend itself; 

Whereas United Nations Security Council Resolution 678 authorizes the use of
all necessary means to enforce United Nations Security Council Resolution
660 and subsequent relevant resolutions and to compel Iraq to cease certain
activities that threaten international peace and security, including the
development of weapons of mass destruction and refusal or obstruction of
United Nations weapons inspections in violation of United Nations Security
Council Resolution 687, repression of its civilian population in violation
of United Nations Security Council Resolution 688, and threatening its
neighbors or United Nations operations in Iraq in violation of United
Nations Security Council Resolution 949; 

Whereas Congress in the Authorization for Use of Military Force Against Iraq
Resolution (Public Law 102-1) has authorized the President "to use United
States Armed Forces pursuant to United Nations Security Council Resolution
678 (1990) in order to achieve implementation of Security Council
Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677"; 

Whereas in December 1991, Congress expressed its sense that it "supports the
use of all necessary means to achieve the goals of United Nations Security
Council Resolution 687 as being consistent with the Authorization of Use of
Military Force Against Iraq Resolution (Public Law 102-1)," that Iraq's
repression of its civilian population violates United Nations Security
Council Resolution 688 and "constitutes a continuing threat to the peace,
security, and stability of the Persian Gulf region," and that Congress,
"supports the use of all necessary means to achieve the goals of United
Nations Security Council Resolution 688"; 

Whereas the Iraq Liberation Act (Public Law 105-338) expressed the sense of
Congress that it should be the policy of the United States to support
efforts to remove from power the current Iraqi regime and promote the
emergence of a democratic government to replace that regime; 

Whereas on September 12, 2002, President Bush committed the United States to
"work with the United Nations Security Council to meet our common challenge"
posed by Iraq and to "work for the necessary resolutions," while also making
clear that "the Security Council resolutions will be enforced, and the just
demands of peace and security will be met, or action will be unavoidable"; 

Whereas the United States is determined to prosecute the war on terrorism
and Iraq's ongoing support for international terrorist groups combined with
its development of weapons of mass destruction in direct violation of its
obligations under the 1991 cease-fire and other United Nations Security
Council resolutions make clear that it is in the national security interests
of the United States and in furtherance of the war on terrorism that all
relevant United Nations Security Council resolutions be enforced, including
through the use of force if necessary; 

Whereas Congress has taken steps to pursue vigorously the war on terrorism
through the provision of authorities and funding requested by the President
to take the necessary actions against international terrorists and terrorist
organizations, including those nations, organizations or persons who
planned, authorized, committed or aided the terrorist attacks that occurred
on September 11, 2001 or harbored such persons or organizations; 

Whereas the President and Congress are determined to continue to take all
appropriate actions against international terrorists and terrorist
organizations, including those nations, organizations or persons who
planned, authorized, committed or aided the terrorist attacks that occurred
on September 11, 2001, or harbored such persons or organizations; 

Whereas the President has authority under the Constitution to take action in
order to deter and prevent acts of international terrorism against the
United States, as Congress recognized in the joint resolution on
Authorization for Use of Military Force (Public Law 107-40); and 

Whereas it is in the national security of the United States to restore
international peace and security to the Persian Gulf region; 

Now, therefore, be it resolved by the Senate and House of Representatives of
the United States of America in Congress assembled.....

 

I suppose the question is how much work is being done by the reference to
the Iraq Liberation Act (Public Law 105-338) and its expression of "the
sense of Congress that it should be the policy of the United States to
support efforts to remove from power the current Iraqi regime and promote
the emergence of a democratic government to replace that regime."  Does this
translate into legitimizing the war in order to carry out the ILA or is
simply an added benefit?  

sandy


 

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