Operation Iraqi Freedom: Legal and Policy Considerations

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On the eve of Operation Iraqi Freedom, I was asked by Dr. Laurie Mylroie to write a 5,000-word legal defense of the campaign to remove Saddam Hussein from power by force to appear in a new book she was writing. (1) It took me 15,000 words to even summarize what I saw as the most compelling legal arguments--without in the process even mentioning the intelligence reports (of which I was aware) that Iraq had sought to purchase uranium from Niger that have become so central to the campaign to characterize President Bush as a "liar." (2)

While the chapter was being prepared I was invited to give lectures to legal conferences in Hawaii and Germany on the same issue sponsored by U.S. Pacific Command (PACOM) and European Command (EUCOM) and attended by international lawyers from many nations, invitations that provided further opportunities to examine these issues.

I don't start off with any fondness for war. As the son of an Air Force medical officer posted to a NATO assignment in Oslo more than half a century ago, I traveled around Europe as a child and saw some of the remaining rubble from World War II. Later, as a young adult, I spent considerable time in Indochina in a variety of capacities, including twice as a junior Army officer. I saw soldiers die, and I saw civilians and even small children die. I returned with a hatred for war, and when I was selected in 1985 to be the first president of the congressionally established U.S. Institute of Peace, it was all the more exciting because of my passion for peace. Since 1995, I have been co-teaching a seminar on "War and Peace" at the University of Virginia School of Law.

In a 1793 letter to James Monroe, Secretary of State Thomas Jefferson observed that "through all America there has been but a single sentiment on the subject of peace and war, which was in favor of the former.... We have differed perhaps as to the tone of conduct exactly adapted to the securing it." (3) And there, indeed, lies the rub. Two of my primary areas of interest are international and constitutional law, and my interest in both resulted in no small part from inquiries I began as I tried to understand the Vietnam conflict in the mid-1960s. Most of my international law colleagues opposed U.S. intervention in Iraq because of their preference for peace and their respect for the rule of law; and yet, I supported Operation Iraqi Freedom for precisely the same reasons. Because I believe that it is only when the rule of law is credible--that is, when international actors otherwise favorably disposed to resorting to aggression or other unlawful activity that threatens the peace perceive that the law will be enforced--that it has any chance of playing a serious role in keeping the peace.

While flying into Munich International Airport for the EUCOM conference, I did not miss the irony that, sixty-five years earlier, world leaders had gathered there and ignored the prohibition in international law (4) against the aggressive use of armed force in an effort to appease Adolf Hitler and maintain "peace for our time." (5) Despite their good intentions, history reveals that their failure to enforce the law made legal constraints on aggression irrelevant and emboldened Hitler, who dismissed the cautions of his generals the following year by asserting he had "seen" the British and French leaders at Munich and they were "little worms." (6) At least forty million people around the globe lost their lives during World War II, and one of the fundamental lessons drawn from that tragedy was that unenforced international law will not maintain the peace. Indeed, early efforts like the toothless Kellogg-Briand Treaty may actually have contributed to Hitler's aggression by giving peace-loving states a false sense of security that encouraged them to neglect their military defenses. War, after all, was unlawful.

Hoping to avoid the same mistake in the future, in 1945 representatives of fifty nations gathered in San Francisco to draft the U. …