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.
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 Page 2inevitable 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.
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 Page 3underlie 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.
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 constitutes well over 60% of the world's known reserves,5 against either internal or external threat.6 Iraq itself possesses proven oil reserves of over 112 billion barrels, second only to Saudi Arabia.7 Moreover, this figure may represent less than half of Iraq's production potential, since many fields have yet to be explored.8 Iraq also has natural gas reserves estimated at 110 trillion cubic feet.9In 1945, State Department officials referred to the Middle East as "a stupendous source of strategic power, and one of the greatest material prizes in world history."10 To recognize the centrality of oil in U.S. Middle East policy is not, however, to claim that oil explains every nuance or shift in that policy. It does not-a fact to which we will return below when we examine the current push for war with Iraq.
By the close of the Vietnam war era, a strong American aversion to direct military intervention in distant parts of the globe had developed. Hence, U.S. interests in the Gulf were advanced via support of the local "twin pillars," Iran and Saudi Arabia, both staunchly anti-communist monarchies.11 While Saudi Arabia wielded diplomatic and economic clout, Iran was the military juggernaut under the Shah, armed with the most advanced U.S. weaponry. Together, they were charged with maintaining a stability favorable to their own, and American, interests in the Gulf.12
Meanwhile, since 1976 U.S. policy with respect to the broader Middle East has also rested on maintaining Israeli military superiority over the Arab world.13 Israel's primary role in U.S. strategy for the region has been to quell the upsurge of radical Arab nationalism, which has persistently been a more concrete challenge in the region for the U.S. than the prospect of direct Soviet intervention.14 While the U.S. has cultivated alliances with a variety of Arab and non-Arab countries, Israel "stands at the apex of U.S. alliance structure in the Middle East."15 Among other things, an American-supervised stability in the Middle East-or more bluntly, hegemony-has also ensured that the region remained a welcoming market for American commodities and services.16
U.S. relations with Iraq during the 1970's were cool, but not openly hostile. Iraq had severed diplomatic relations with the U.S. following the 1967 Arab- Israeli war. In 1972, the ruling Ba'ath Party both nationalized the Iraq Petroleum Company (IPC)17 and signed a friendship treaty with the Soviet Union.18 Iraq was also locked in periodic border disputes with U.S. client Iran over the Shatt al-Arab waterway in the south, and with a Kurdish19 uprising in the north, which was sustained in part by aid funneled into Iran by both the U.S. and Israel.20 The two disputes were temporarily abated by the 1975 Algiers Agreement, shepherded by U.S. Secretary of State Henry Kissinger and according to which outside aid to the Iraqi Kurds was stopped, and Iraq accepted the median line of the Shatt al-Arab as the border between the two countries.21 The Kurdish rebels, abandoned by their erstwhile "benefactors", were quickly decimated by the Iraqi military.22
The ascendance of Saddam Hussein to the presidency of Iraq in 1979 Page 6coincided with a momentous shift in the regional constellation of power: the victory of the Islamic revolution in Iran that year. The U.S. was immediately deprived of its most militarily capable "pillar" in the Gulf region. Moreover, Iran made no secret of its aspirations to spread the Islamic revolution to other countries of the region. Through much of the eighties, a major preoccupation of U.S. policy-makers was containment of the Islamic Republic of Iran, which was increasingly seen as the main threat to U.S. interests in the Middle East.23
Notwithstanding Iraq's relationship with the Soviet Union and the Ba'ath Party's affinity for a pallid version of socialism,24 U.S. policy makers might have had inklings that they would find Iraq to be a congenial replacement for their fallen Iran "pillar." With the Algiers Agreement safely behind it, the largely nationalist, secular, but Sunni Muslim-based Iraqi regime had turned...