Facing Tyranny with Justice: Alternatives to War in the Confrontation with Iraq

Summary

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I. Introduction. II. U.S. Policy Toward Iraq: Oil And Intervention. A. The Imperative of Oil. B. Our "SOB" .C. Bleeding Iraq and Iran. D. The Fall From Grace. E. "Desert Holocaust".F.Siege.G. Covert Actions - "Not Missionary Work".H. The War Already Underway .III. The Coming War. A. Why war? B. The Stated Motivations for War . C. The U.S. Legal Position .D. The Oil Factor. E. American Jihad. F. Paying the Piper. IV. Policy Alternatives .A. Immediately Renounce Regime Change in Favor of Regional Democratization.B. Immediately End Enforcement of No-Fly Zones .C. End Comprehensive Sanctions in Favor of Arms Embargo and Continued Inspections. D. Aggressively Promote Regional Disarmament.E. Consistently Support International Law and UN Resolutions . F. Aggressively Pursue a Just Resolution of the Israel/Palestine Conflict.IV. Conclusions: Toward A Just And Democratic U.S. Policy In The Middle East

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Facing Tyranny with Justice: Alternatives to War in the Confrontation with Iraq

George E. Bisharat. Professor of Law, Hastings College of the Law. This article is, in a sense, a sequel to the author's earlier Sanctions as Genocide, 11 TRANSNAT'L L. & CONTEMP. PROBS. 379 (2001). That article argued that there is a prima facie case that comprehensive multilateral sanctions against Iraq originally imposed during the conflict in the Gulf in 1990-1991 have come to constitute a violation of the UN Convention on the Prevention and Punishment of the Crime of Genocide. In that writing, the author declined to discuss possible alternatives to the sanctions policy, as to do so might have legitimized the view that the sanctions, though problematic, were nonetheless justifiable unless better alternatives were presented. The author's position is that genocide (if indeed the sanctions may be so construed), is never justifiable, irrespective of possible alternatives. The current article fleshes out another claim made, but not elaborated, in the first article, namely, that alternatives to the sanctions policy - and now, to war - do indeed exist. The author thanks Kevin Sul and the other editors of the JOURNAL OF GENDER, RACE & JUSTICE for the invitation to participate in the symposium leading to this publication. Professor Enrique Carrasco of the University of Iowa Law School made particularly insightful comments on the author's symposium presentation, for which the author is also extremely grateful. Discussions of some of the ideas presented here with the author's Hastings colleagues Joel Paul and Keith Wingate were also much appreciated.

I. Introduction

Unbeknownst to most residents of the U.S., our government has waged a quiet, illegal, and relentless war against Iraq for the past twelve years.1 If we have invaded Iraq by the time this article is published, it will not be because we have lacked policy alternatives. Although Iraqi President Saddam Hussein is a brutal and dangerous man and the regional challenge constituted by his regime is not wholly illusory, none of the disasters caused by our actions have been inevitable or necessary.2 On the contrary, we have always had policy alternatives with respect to Iraq that would have been just, humane, and consistent with international law. Moreover, these policy alternatives would have better advanced any legitimate U.S. foreign policy goals. In contrast, an invasion of Iraq may bring devastating consequences for the people of that country, for the people of the U.S., and for the status of international law and international institutions. Thus, the three aims of this article are to explore the record of U.S. illegal actions toward Iraq, critique the current legal and political stance the U.S. government has taken with respect to an invasion of Iraq, and identify positive alternatives to war that might guide our present and future dealings with that country.

The second section of this article will review the main components of U.S. policy toward Iraq over the last three decades, pointing out, where appropriate, respects in which our behavior has violated international law.3 The third section examines the American position regarding war against Iraq and considers the dangers and possible outcomes from such a conflict. The article then lays out a a sequence of policy alternatives that address the real challenges posed by the Iraqi regime. These alternatives uphold, rather than undermine, international law. Finally, the article concludes with thoughts about possible future directions of U.S. Middle East policy, based on justice, democracy, and respect for international law.

II. U.S. Policy Toward Iraq: Oil And Intervention

The tale of U.S. involvement with Iraq is either mostly forgotten or never learned in this country. We must excavate the history of U.S.-Iraqi relations in some detail for four reasons. First, excavation serves to highlight the extent to which the dangerous impasse we now face in our relationship with Iraq is one of our own making. Second, it reveals the many fallacies and distortions that underlie the justifications that are currently being offered for a U.S. invasion of Iraq. Third, it aids in a more factual and level-headed reading of the real challenges constituted by the regime of Saddam Hussein, and thus positions us to better define effective policy alternatives for the future. So that no reader is mistaken: restoring a more realistic assessment of the character of the Hussein regime is in no sense an apology for its horrific crimes.4 Finally, a historical review of U.S. dealings with Iraq may instill a salutary measure of humility as we contemplate our future relations with that country, and the wider Middle East.

A. The Imperative of Oil

U.S. policy toward Iraq, and toward the Gulf region more generally, has been shaped by the goal of defending Western access to the region's oil, which cons...

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