Aggressive war is one of the most serious transgressions of international law. After World War II, officials and military officers of the German and Japanese governments were tried and convicted for planning and participating in the aggressive war waged by their countries. There is no exception to the prohibition on aggressive warfare for "preventive" wars where the leadership of one country thinks that another country poses a threat, and may attack at some time in the future. Some international law experts believe that "preemption," or attacks on the military forces of an adversary when there is clear evidence that a military attack is both imminent and inevitable, is justified as part of the right of self-defense. But even those who advocate this view admit that it is a last resort, and requires very clear evidence that an attack will occur in the very near future.

After World War II, the United States led the world in founding the United Nations. The United States signed the U.N. Charter, which today remains a treaty of the United States, and hence part of the "supreme law of the land" under the U.S. Constitution, Article VI, Cl. 2. One of the main goals of the United Nations, and a central purpose of its Charter, is to prevent countries from attacking each other, and to create procedures for resolving conflicts. These procedures address directly the fact that powerful countries often will go to war based on one pretext or another, claiming that they are in danger of attack, or even that they have been attacked (Germany attacked Poland in 1939, using as part of its justification a border incident entirely fabricated by Germany). The U.N. Charter created the Security Council, a forum designed to provide an international determination of whether an act of aggression or other threat to peace had occurred. The Charter, Article 51, preserves the inherent right of self defense "if an armed attack occurs" against a member country. Chapter VII of the Charter, however, of which Article 51 is part, clearly commits to the Security Council, as opposed to individual member states, the authority to determine when a threat to peace or a breach of peace has occurred, and to recommend or take appropriate measures. The structure of Article 51 itself, while preserving the right of states to act collectively or individually to defend themselves while under attack, manifests the primary responsibility of the Security Council, requiring member states to immediately report measures taken in self defense, in order to allow the Security Council to take necessary steps to restore international peace and security. When the Security Council has done so, the right of self-defense ceases.

The fundamental principles set forth in Article 2 of the U.N. Charter require member states to settle their disputes by peaceful means. Other sections of the Charter consistently underscore both the peaceful settlement of disputes and the duty of states to act through the United Nations rather than unilaterally to resolve disputes that could result in war. Instances where disputes exist "the continuance of which is likely to endanger international peace and security," the countries involved first must seek resolution of the dispute by all available peaceful means, and if that fails, must refer their dispute to the Security Council. (Articles 33 and 37).

Further, there is no precedent in international law for the use of force as a preventive measure in response to a potential threat of violence. Preventive war undertaken unilaterally by states is not permitted by the U.N. Charter or by international law predating the Charter. The International Military Tribunal sitting at Nuremberg rejected defendants’ argument that Germany was compelled to attack Norway to forestall an Allied invasion, finding that no such invasion was imminent. (6 F.R.D. 69, 100-101, 1946) Indeed, preventive war appears contrary to the Charter even if undertaken under Security Council auspices, given the Charter’s emphasis on the peaceful resolution of disputes and the non-use of force. If the Security Council here for the first time authorizes preventive war, the Charter’s restraints on the use of force will be undermined. Doing so in a context where the most powerful country on earth is, in essence, blackmailing the U.N. by threatening to use force regardless of the U.N.’s actions, furthermore, could fatally compromise the credibility of the U.N. itself.

Here, the United States claims the right to consult with the United Nations, and if it does not get the answer it wants, to make its own determination of whether to invade Iraq, overthrow its government, and install a new government of its own choosing. In the absence of an attack by Iraq, this course of action would be unlawful.

Given the virtually unanimous opposition of the world’s nations to launching a war against Iraq, the Bush administration clearly is concerned that such a war could be subjected to international legal scrutiny. The crime of aggression cannot be prosecuted under the International Criminal Court Statute until agreement is reached on its definition. Also, neither Iraq nor the United States are parties to the Statute, limiting the circumstances in which the Court could exercise its authority. Nonetheless, there are some conceivable circumstances in which U.S. or allied personnel could be prosecuted for war crimes, e.g. for attacks that indiscriminately harm the Iraqi civilian population. Partly with this and similar prospects in mind, in July 2002 the United States pushed through the Security Council a resolution that purports to shield for the coming year those participating in UN "established or authorized" operations. In the recently released "National Security Strategy" which announced the new policy of preventive war, the Bush Administration also tried to reassure U.S. military personnel that the full power of the U.S. government would be used to protect them against prosecution by an international tribunal, stating that:

We will take the actions necessary to ensure that our efforts to meet our global security commitments and protect Americans are not impaired by the potential for investigations, inquiry, or prosecution by the International Criminal Court (ICC), whose jurisdiction does not extend to Americans and which we do not accept. National Security Strategy of the United States of America, September 2002, p. 31.

The Bush doctrine of preventive warfare, its rejection of important international initiatives like the International Criminal Court aimed at protecting human rights, and its visible contempt for long-standing treaties like the U.N. Charter risk making the United States an international outcast. An aggressive war would make it an international outlaw.

There Is No Evidence That Iraq Poses an Imminent Threat to the United States

The main argument for war is that Iraq possesses weapons of mass destruction, and will use them to attack the United States or its allies.

Iraq’s military has been severely weakened by years of sanctions and years of bombing by U.S. and British forces. There is no credible evidence that Iraq is going to attack anyone soon, and certainly not soon enough to support the lawful use of armed force under any widely held international law standard.

It is generally agreed that Iraq does not have any nuclear weapons. Although the Bush administration claims Iraq could get nuclear weapons soon, most experts, including the U.S. Central Intelligence Agency and the International Atomic Energy Agency, have said that it would take Iraq several years or more to develop nuclear weapons, unless it obtained weapons useable plutonium or uranium from an outside source. Despite having had nuclear ambitions for many years, Iraq has not been able to obtain the materials needed for nuclear weapons.

Iraq may have some chemical or biological weapons materials, and may be attempting to make more and to make missiles, drone aircraft, or long range artillery shells that could deliver chemical or biological weapons. There has been no proof provided to the public, however, that Iraq is doing any of these things today. If they are, the appropriate response is the return of United Nations inspectors, not war. Iraq already has agreed to the return of inspectors, and the Security Council is likely to approve a new and stricter set of inspection procedures.

Further, it is generally acknowledged that Iraq has no missiles, planes, or other means to hit the United States directly with chemical or biological weapons. It will not be able to develop long-range weapons to do so in the foreseeable future, particularly if U.N. inspections proceed. Research facilities and factories needed to develop and build long-range weapons that can deliver chemical or biological weapons are easy to detect, and the complex set of activities involved in making, testing, and deploying long-range weapons are hard to hide. Nuclear weapons facilities also are difficult to conceal, and the international community, through the International Atomic Energy Agency, has long experience in monitoring suspected nuclear weapons activities.

Because it is impossible to deny the fact that Iraq lacks the means to attack the United States directly, the Bush administration over the last few months has relied more and more on the claim that Iraq is likely to give chemical or biological weapons to “terrorist” organizations that can hand carry them across the ocean. Despite the most intensive efforts of U.S. intelligence agencies, the Bush administration has been able to produce no evidence that this has happened, or is likely to happen. To the contrary, major news organizations have carried stories about the growing discomfort within U.S. intelligence agencies about misrepresentation of the facts by the Bush administration, with fragmentary bits of information about individual members of terrorists organizations passing through Iraq, or talking on the phone to relatives in Iraq, or being present in parts of Iraq not even controlled by the Baghdad government, being portrayed as evidence of cooperation between Iraq and terrorist organizations. The Director of U.S. Central Intelligence, furthermore, when questioned by Congress, stated that Iraq currently is unlikely to attempt attacks on the U.S., its military forces, or its allies with chemical or biological weapons– but would be more likely to do so if attacked, and if the Hussein regime was in danger of being overthrown. Hence a U.S. war on Iraq will make the use of chemical or biological weapons more likely, not less.

It is clear that going forward with inspections, even if imperfect, very likely would make it impossible for Iraq to develop weapons of mass destruction and the means for their direct delivery via missile or aircraft that pose a threat to the United States. There is no evidence that Iraq is preparing to conduct a covert biological or chemical weapons attack against the United States, or is likely to do so in the absence of a full-scale war against Iraq. There is no evidence that Iraq is preparing to attack any of its neighbors. There is no evidence of an immediate threat, and hence no possible justification for war.

The Dangers of the Rush to War

The dangers of this new war extend far beyond the borders of Iraq and far into the future. The war itself could go quickly if the Hussein regime collapses easily, as some predict. The war also could result in the deaths of thousands of U.S. soldiers, and perhaps tens of thousands of Iraqi soldiers and civilians. Further, the invasion of a predominantly Muslim country by the United States could have a variety of dangerous consequences. At minimum, it could commit the U.S. to a long and dangerous military occupation, perhaps accompanied by an escalating guerilla war. It could result in increased terrorism against U.S. citizens, abroad and at home. It could result in a wider war in the Middle East, where there are a number of countries armed with chemical and biological weapons. Such a war also would involve two countries, the United States and Israel, that have nuclear weapons. Both countries have stated or implied that they may use nuclear weapons to prevent or retaliate for chemical or biological warfare.

The consequences of an Iraq war could spread beyond Southwest Asia. It also could tip the political balance in Pakistan further in favor of extreme Islamist forces. Even if the current government retained power, its ability to control those who seek to assist an insurgency in Kashmir could be reduced, increasing once more the dangers of full-scale war between India and Pakistan, whose nuclear-armed militaries already face one another, fully mobilized, across a long common border.

Finally, the example of the world’s most powerful state claiming the right to conduct a "preventive" war on the grounds that it is necessary to fight "terrorists" and to remove threats of "weapons of mass destruction" could be invoked by others pressing for war, Russia in Chechnya and Georgia, Israel against those its government suspects of supporting terrorism, India against Pakistan, perhaps precipitating the first nuclear warfare since Hiroshima and Nagasaki.

The Iraq regime certainly bears its share of the blame for the current crisis, having engaged in two wars in twenty years, and having exploited conflicts among its neighbors both for internal political purposes and in its own efforts to split coalitions that oppose it. But the extraordinary dangers posed by war in the Persian Gulf suggest that the first priority is the lessening of tensions in the region, tensions which are likely to be inflamed rather than resolved by war. These efforts should be pursued through the United Nations, and must encompass both the search for a just resolution to the conflict between Israel and the Palestinians, and efforts to rid the entire Middle East of weapons of mass destruction. The Security Council, in its 1991 Resolution 687 setting forth the terms of the cease fire that ended the Gulf War, in fact stated that the provisions of the resolution concerning the elimination of Iraq’s WMD arsenal "represent steps towards the goal of establishing in the Middle East a zone free from weapons of mass destruction and all missiles for their delivery and the objective of a global ban on chemical weapons ..." A U.N. program to inspect for and assure the elimination of Iraq’s weapons of mass destruction programs, furthermore, is far more likely to get the cooperation needed for success, both from Iraq and from other countries in the region, if it is part of a genuine multilateral effort to eliminate all WMD in the region, and to work towards the solution of the political conflicts that have made the Middle East one of the most militarized parts of the world.

A year ago in the wake of September 11, the United States also was rushing towards war, the modern total war of cruise missiles, B-52's, and "daisy cutter" bombs, all rained down on a country already pulverized first by decades of modern warfare and then by the savage infighting of the factions remaining when the superpowers collapsed or walked away, leaving behind only rubble, their disillusioned proxy armies, and ample supplies of weapons. The United States was responding with the techniques of modern warfare to killers who lived anonymously in our own cities and then emerged to exterminate thousands using no weapons at all, leaving no enemy bases, no enemy warships at sea, no empty missile silos to strike back against. The result has been an effacing of the distinction between military forces and the civilians with whom they are likely to be identified – governments in wars among nation-states, "host" populations in irregular warfare – that almost inevitably occurs as war’s grief and devastation deepens hostility into hatred. In Afghanistan we already have seen the equation of "enemy" noncombatants– women, children, the people from whom the "enemy" is deemed to come– with the enemy, all now seen as legitimate objects of war:

We have assumed that where you find large numbers of al Qaeda and Taliban, that there may very well be non-combatants with them who are family members or supporters of some kind, who are there of their own free will, knowing who they're with and who they're supporting and who they're encouraging and who they're assisting. U.S. Department of Defense News Transcript, Presenter: Secretary of Defense Donald H. Rumsfeld, Monday, March 4, 2002.

Now, after a year of the “war on terrorism,” the Bush Administration, driven by long-standing agendas of the oil and military-industrial complex interests that they most directly represent, is targeting Iraq, and perhaps the entire region. Despite the lack of evidence of any connection between the September 11 attacks and Iraq, the Bush administration, using one of the time-tested techniques of propaganda, is trying to establish guilt by repetition: George Bush mentioned September 11 five times in his October 7 Iraq speech, and terrorism nine times.

But at the same time, a major element of the Bush Administration’s case for war is that it will "liberate" oppressed Iraqis from a government that rules only through fear and force. If this is indeed true, the first priority of all should be to use every peaceful means, over however many years it takes, to contain the Iraqi government and to reduce the tensions in the region that provide that government with a rationale for maintaining both a large military and a heightened state of "internal security." The willingness to kill many thousands of Iraqis, including not just the security forces most loyal to the Hussein dictatorship but young conscript soldiers, and the innocent noncombatants who would die immediately as "collateral damage" or later from disease or privation caused by the overwhelming air attacks that today are the central feature of every U.S. military assault, severely undercuts such "humanitarian" justifications. For if the Iraqi regime is entirely illegitimate and most of its population powerless in its grip, the people of Iraq should not be held responsible for the crimes of their government. This inconsistency exposes a contradiction that lies at the heart of the rapidly expanding "war on terror." It also requires a re-examination of the legal justifications that still are found acceptable for warfare, and the kind of killing that still is considered legally permissible in war’s course.

Since September 11, some have called for readjustments of the law of war to meet the threat posed by organizations that use global communications and mobility to turn the dense, complex networks and powerful technologies of modern societies as weapons against those societies. Most of these arguments have leaned in one direction: towards loosening the constraints on the governments that seek to track down and kill or capture those who are responsible for planning, supporting, and carrying out such attacks. This vision of a new kind of justification for war, which culminates in the Bush Administration’s doctrine of preemptive military action against perceived terrorist threats, unreflectively incorporates the existing law of war into a new framework where states in essence are claiming the right to conduct police actions across international boundaries using the full powers of their militaries. The Bush Doctrine apparently allows a government unilaterally to declare other governments to be, in essence, part of a criminal enterprise, and to use military force against regimes that they have concluded are likely to support "terrorist" attacks in the future.

The first problem with this doctrine is that the law of war always has been permissive as well as restrictive. The various limitations on warfare intended to protect civilians– that targets attacked must contribute to the military effort of the adversary, that the weapons and tactics used must discriminate between civilian and military targets, that attacks on military targets must not inflict disproportionate harm on noncombatants ("collateral damage")-- assume that some killing of civilians is acceptable in the course of military operations. In this sense, there is assumed to be an identity between the government of the state at war and its people, regardless of the legitimacy of the regime. As one classic statement puts it:

Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war. General Orders, No. 100: Instruction for the Government of Armies of the United States in the Field (1863), Article 20 (also known as the Lieber Code).

The people of Iraq – like the people of Afghanistan before them – thus will become, in the eyes of the United States government, a population that legally can be killed for the duration of the war that will "liberate" them, so long as the means of fighting that war are permissible under the prevailing standards of military necessity, proportionality, and discrimination. By this measure, when ordinary people with no conceivable connection to any attack on the United States – families asleep in their beds, or celebrating at a wedding – are killed by an errant bomb, or for that matter by a completely accurate strike informed by poor intelligence, it can be portrayed as a regrettable, but legal, consequence of warfare.

And this brings us to the second problem: you can’t order up the war you want. The war we are going to get will be determined by deeply entrenched institutional tendencies, embodied not just in world views but in technology choices and organizational forms. The nature of the U.S. military reflects a set of strongly established military doctrines. These are shaped by the distinctive character of the U.S. empire in the post-WWII period, and especially in the post-Cold War period. The U.S. has an empire that it has not fully justified to its own population. Modern empires always have relied on superior technology – communication, mobility, and firepower – to allow relatively small numbers of people to control large populations and great expanses. When the majority of the population – especially those expected to do the dying on the ground – have not been fully convinced of the benefits and rightness of foreign wars, the reliance on technology becomes even greater. And although neither the Vietnam War nor the peace movement educated most Americans very deeply about U.S. empire, that war did convince a large segment of the population to distrust official explanations of foreign interventions.

Hence the conscious moves of the makers of U.S. military policy, especially after the Cold War, when the anti-communist rationale for military action abroad had grown threadbare, toward force structure and technology that allows application of overwhelming firepower from long range, with fewer vulnerable forward bases (which also, as we now are seeing, cause problems in a crisis if on the soil of politically shaky allies). This allows U.S. political elites to go to war quickly, without building a genuine political consensus, and to do a lot of damage while incurring few U.S. casualties. But it also tends to emphasize tremendous firepower delivered by aircraft or missile. Despite continuing debate in military circles about the efficacy of strategic air power without ground occupation, there is a strong tendency towards a kind of fetishism of military technology (compounded by the political pressures to avoid ground troops and casualties), and hence towards a belief that each new round of improvement in long-range, stand-off air-delivered weapons, targeted and coordinated by better space and aerial surveillance, will prove decisive. As a recent Rand study for the Air Force noted:

Most U.S. military operations for the foreseeable future will be undertaken with limited or less-than-majority American public support. Technological advances that expand the USAF’s effectiveness will help it play an important role overcoming possible domestic constraints on the use of force such as casualty sensitivity. D. L. Byman, M. C. Waxman, E. V. Larson, Air Power as a Coercive Instrument, Rand Corporation, 1999, p. 132.

Among the "examples of technological advances that might provide the USAF with capabilities that will help overcome or alleviate U.S. domestic constraints" identified by the RAND study were "[h]ighly effective unmanned weapons, such as cheap standoff munitions and space-based assets, that pose no risk of U.S. casualties." Id.

So despite the tremendous destructiveness and ambiguous track record of bombing (and in recent years, of long-range missiles launched from the air and the sea), it remains the first, second, and last resort of the U.S. military. U.S. interventions in the post cold war period usually begin with the belief that "shock bombing" S- being subjected to a few days or weeks of fearsome U.S. dominance of the skies and death rained from above – will cause an adversary to crumble quickly. When this fails, the next U.S. strategy (doctrine and practice since the 50's) has been a war of attrition, still using air power to the greatest extent possible. This approach assumes that enormous U.S. advantages in technology and resources always will be able to wear down the opposition. This can include destruction of what "dual-use" infrastructure survived the initial onslaught– for example, electrical, transportation, water, and sanitation systems– with the added objective of convincing the population to put pressure on their political leadership to capitulate. Despite the greater discrimination allowed by precision-guided weapons, large numbers of civilians will die as a result of such attacks, hundreds or thousands in the initial onslaught, and often many thousands as a result of disease and privation caused by the destruction of essential services.

And when the ground troops are sent in, their main purpose often (and particularly when fighting guerillas) is to be a lodestar for the application of yet more remotely delivered firepower, aiming to draw adversaries into the open and pinpoint their location for assault via artillery or air power. The presence of U.S. forces where they actually can be shot at also is likely to increase tolerance among political decision makers for civilian casualties among the "native" population, since protecting these forces and minimizing casualties becomes a preeminent political goal. With troops in the field, the calculus of military necessity and proportionality – when it is permissible in the extremely rough justice of the law of war to "unintentionally," although absolutely predictably, to kill civilians – shifts again. Among those who matter – the political and military classes of powerful countries – few will question the "right" of military commanders under fire to blast an "objective" into oblivion where enemy forces might be, leaving the ritual head-shaking about "collateral damage" for the after-action reports.

The choice faced by policy makers is stark, no matter how much rhetoric is applied to convincing the world that the United States aims to target only outlaw regimes, not the peoples they rule:

Public expectations about collateral damage cannot, from a planning perspective, be divorced from expectations about U.S. casualties, because there is often a tradeoff between the risks of each. The astounding lack of a single NATO combat casualty during Operation Allied Force may raise the bar of tolerable U.S. losses for future operations, especially when vital U.S. interests are not implicated, just as the Gulf War probably raised the bar in 1991. Satisfying public demands relating to U.S. casualty risks may require shifting some of that risk to civilians in the conflict zone; if that shift is politically or diplomatically unacceptable, military options disappear. Matthew C. Waxman, International Law and the Politics of Urban Air Operations, Rand Corporation, MR-1175-AF, 2000, P.59.

If indeed the claim is that a government is illegitimate, and that its people in essence are held hostage by the capacities of modern states– surveillance, communications, rapid transport, and modern weaponry, the tools of state power that allow small numbers of people to rule large numbers without their consent, whether in a single country or a global empire – then the time has come to strictly interpret existing legal principles, and to develop new ones, that protect powerless people in – and from S- wars they did not bring on themselves. Principles of this kind are particularly apposite where very powerful states are claiming to enforce international standards. Just as it should be considered a lawless act for a police force enforcing domestic law to drop bombs from thirty thousand feet on a house where a violent criminal was holding hostages, in order to avoid risk to its officers, so it should be considered a lawless act to kill the ordinary people of a country to punish or overthrow its regime. Surely, where the countries claiming the right to make war are extraordinarily powerful, so much so that their own survival is not imminently threatened by their lawless adversary, there should at the very least be an extremely stringent application of the principle of military necessity– one that applies not only to particular acts of war, but to the rightfulness of making war itself.

But the standard should be higher still. The easier it is for a country to go to war, the higher the bar to making war should be. For the very fact that a state can make war on the other side of the world so readily strongly suggests that it has no need to go to war. A country so powerful is in little danger of attack by any other. There may be an urgent and justified need for some other kind of action S- to find and apprehend criminals, to prevent terrible crimes S- but that is different from going to war, and requires an entirely different way of thinking about and using force. Wars are fought not against individuals, not to punish or capture criminals, but by states, against each other and their peoples. The deeply ingrained habits, the military doctrines, the technologies, and the political forces unleashed by war inherently tend towards the unlawful, and often result in killing on a scale unimaginable at the outset. If indeed states claim to protect the innocent of the earth from the violent few, than the standards should not be that of war, of one state’s interest over all others, of the permissible "necessary" killing of ordinary people with no choice in the matter to achieve the ultimate goals of a state, but rather of those currently celebrated in the United States as heroes: the public servants who would risk their own lives to rescue people from a burning building, or a hostage from the grips of a gunman. If we cannot truly say we are prepared to take that risk for the people of Iraq as for ourselves, then the war we are rushing toward is not merely "politically or diplomatically unacceptable," but, if international law is to be relevant, illegal. This will be so regardless of what the United States, with its enormous economic and political power, can convince or coerce the governments that have votes in the U.N. Security Council to do.

Instead of becoming blind mirror images of one another in a spiral of violence that threatens to engulf the world, perhaps it is time for the societies locked in conflict with one another to concentrate on controlling their own atrocities, on reining in their own most violent elements, rather than retaliating for the acts of others, however reprehensible. Suicide bombings and acts of mass terrorism surely are atrocities. But so is the routine acceptance, signified by the linguistic neutralization of the term "collateral damage," of the killing of innocent people by death delivered from a distance via bomb or missile, ten here, a hundred there, mounting into many thousands in "small wars" across decades. And so too is the slow and invisible killing of many thousands more due to the devastation left by frequent and destructive episodes of modern warfare and the callous disregard of these consequences once the short-lived attention of the political cycle that drives the politics of powerful countries has turned elsewhere.

We have come to a time where war itself, in a world bristling with high-tech weapons capable of destruction we still lack the capacity to truly understand, poses risks that never are acceptable. The heart of the matter now is not what governments should do, but what the rest of us must do to turn our governments, and the other organizations that turn to violence to achieve their ends, to the path of peace.