November 15, 2002
"Strike at Saddam Now"--A Commentary by Prof. Ruth Wedgwood
(This essay was originally published in the October 28, 2002, edition of the National Law Journal.)
Strike at Saddam Now
By Ruth Wedgwood, professor of law
War-weariness is one of the uncelebrated causes of war. It undermines deterrence and persuades thugs to thrust and retreat, probe and bully, a step at a time, until a fatal trap can be sprung on their opponents.
Hitler was a master of the technique, to the infinite sorrow of the West. When he repudiated the Locarno pact and reoccupied the Rhineland in 1936, France and England were reluctant to respond so soon after World War I. Three years later, with the invasion of Poland, the world paid for its tardiness in confronting an evil man; 60 million civilians and citizen-soldiers died in World War II.
We are now forced to admit that Saddam Hussein has renewed his 20-year campaign to acquire weapons of mass destruction (WMD). Respites came in the Israeli destruction of the Osiraq nuclear reactor in 1981 and the allied victory in the Persian Gulf War. U.N. weapons inspectors were dispatched to enforce the disarmament conditions of the 1991 cease-fire, but ended up playing an eight-year game of "hounds and hares." Iraq does not need biological or chemical accoutrements to have an important role in the region. But Saddam could never be persuaded that his game of deception was not worth the candle.
A pattern of serious intent
It is time that we realized Saddam is serious. His expulsion of U.N. weapons inspectors in 1998 was not mere petulance. It's the same reason he is shopping for fissile material in African markets and importing fine machine tools from German smugglers. He still aspires to dominate the region; he still wants a 900-kilometer missile, nuclear weapons and remote means to deliver Iraqi stockpiles of chemical and biological reagents.
His secular Bathist regime must compete for prestige with the Islamist jihad. Hence, we should not feign surprise that Saddam's representatives have discussed with al-Qaeda the co-production of chemical weapons. Nor wonder at Iraq's financial contributions to suicide bombers and their terrorist networks. Much has been written about an American doctrine of "pre-emptive self- defense." The idea has broader footing than some may suppose. The U.N. Charter explicitly recognizes (in Article 51) the right of every nation to act in its own self-defense when it is the victim of an armed attack or (as the French treaty text puts it) "agression arm?" Most international lawyers recognize the logic of Daniel Webster's famous Caroline case in 1842, allowing a nation to act against a threat that is "instant, overwhelming, and leaves no choice of means." One need not wait until the enemy's mobilized troops have crossed the border in order to respond.
Anticipatory self-defense has always been a part of American military strategy. In our small-unit "rules of engagement," American pilots and commanders don't wait for an enemy "hostile act" before defending. Pearl Harbor is lamented, not celebrated. We will not know the immediate tactical plans of our adversaries. A "just in time" defense may not work in an age of instant deliverables. We are past the age of battleships steaming slowly toward shore; there are no satellite photographs of sleeper cells.
A tangled web of influence
Of course, Saddam should fear massive retaliation if he launches a direct attack against America or its forces. But he is just as likely to avoid fingerprints by handing off his weapons to a cooperating network, for an "off the shelf" attack.
The threat of irrational behavior is often as good as the real thing. A reprise of "crazy like me" will give Saddam real power?intimidating Israel and Turkey, overhanging the Saudi oil supply, bullying Gulf neighbors who will not pick a fight with a man and his A-bomb. His missiles can already reach Jerusalem; Cyprus; Riyadh, Saudi Arabia; and Baku, Azerbaijan (a trans-shipment point for Caspian Sea oil and gas). A new missile under Iraqi development could hit Cairo, Egypt; Ankara, Turkey; and the Straits of Hormuz. We've forgotten the words of former Secretary of State Elihu Root. Though a true believer in international arbitration and international law, he reminded the 1914 meeting of the American Society of International Law of an unvarnished truth: "The exercise of the right of self-protection may and frequently does extend in its effect beyond the limits of the territorial jurisdiction of the state exercising it." A sovereign state may "protect itself by preventing a condition of affairs in which it will be too late to protect itself."
Former Secretary of State Frank Kellogg reminded countries joining the 1928 Kellogg-Briand Pact that the hope of abolishing war could not interfere with the right of states to exercise self-defense as they consider necessary. In 1945, the U.N. founders recognized that one could not wait for an aggressor to launch an actual armed attack; they hoped that the Security Council would suffice to meet early-stage "breaches" and "threats to the peace." The Cold War interfered, and other modalities were used. But commercial and national rivalries continue to interfere with the U.N.'s fulfillment of that platonic duty.
Iraq is the one country legally forbidden to develop or possess nuclear, biological or chemical weapons or missiles with a range beyond 150 kilometers. The Security Council has denounced Iraq for "flagrant violation" of these Gulf War cease-fire conditions. Hitler's remilitarization of the Rhineland finds its modern legal parallel in the remilitarization of Iraq.
Iraq's mandatory WMD disarmament is a security guarantee that its neighbors, and the rest of the world, were entitled to rely on when the allied forces halted short of Baghdad in 1991. Enforcing those conditions is not a unilateral act, any more than enforcing a territorial boundary is unilateral. Regime change is not a separate project when the author of rearmament is "Three Strikes" Saddam. We thought the Gulf war was over, but Saddam has proved us wrong.
Ruth Wedgwood is a professor of international law at Yale and Johns Hopkins universities, and a senior fellow of the Council on Foreign Relations. She is co-director of the research center of the Hague Academy of International Law.