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Analysis: Whether the U.S. Should Force Saddam Hussein From Power
Morning Edition: August 2, 2002
 Iraq Hearings
RENEE MONTAGNE, host:
The Senate has concluded two days of public hearings on Iraq. The lawmakers heard testimony on whether a US military attack against Saddam Hussein would be legal. NPR's Mary Louise Kelly reports.
MARY LOUISE KELLY reporting:
If the US were to invade Iraq, it would be the first major pre-emptive war in this country's history. The Bush administration and most of Congress are in agreement that Saddam Hussein poses a threat to international peace. Whether that's enough legally to justify the use of force to oust him is another question, one that lawyers at the White House, Pentagon and State Department are working on.
One strategy they may try is to argue that the US already has authorization under international law to strike Iraq, stemming from the UN Security Council resolution that formally ended the Gulf War. That resolution required Iraq to destroy all its weapons of mass destruction, says Yale University's Ruth Wedgwood.
Professor RUTH WEDGWOOD (Yale University): So the argument is that when Iraq violated the conditions of the cease-fire, in a real sense the state of war resumed, that it can't have its cease-fire and eat it too, and therefore that the US is entitled, as it was originally, to use force to restore peace and security to the area.
KELLY: But other legal experts say that argument is shaky because the original UN resolution seems to leave the decision on how to respond to a breach of the cease-fire with the Security Council, not with an individual state like the US.
Here's another strategy Bush administration lawyers could try: pre-emptive self-defense. Under the UN charter, countries have the right to defend themselves if attacked. The trick is, what if Iraq hasn't actually attacked the US but the Bush administration thinks it might and thinks it would be better to act before such an attack costs thousands of lives? Ruth Wedgwood says the pre-emptive self-defense argument could work. Not everyone agrees.
Mr. HURST HANNUM (Fletcher School of Law and Diplomacy): It's fairly clear that it would not be legal.
KELLY: Hurst Hannum of the Fletcher School of Law and Diplomacy.
Mr. HANNUM: If you wanted to take a domestic analogy, it would be to look at a certain social class of people, maybe young, male teen-agers, and to see that they were in gangs, and you'd have a pretty good idea that they would be likely to commit crimes in the future. We don't allow them to be arrested and put in jail just because it's possible they will commit a crime. That's essentially what the United States is seeking to do with Iraq.
KELLY: At the end of the day, Hannum says, the US may simply decide to ignore international law. There's plenty of precedent for that, he says. For example, NATO's recent bombing in Kosovo.
Mr. HANNUM: Those who look at Kosovo, whether they're supporters or detractors, generally concur that the attack on Kosovo by NATO was illegal. Now the question is whether illegality can stop the United States acting alone when it doesn't have either the political or the moral support of its closest allies.
KELLY: The loss of support from allies is perhaps the dearest price the US would pay if President Bush decides to launch military action without making a solid legal argument for it. There's little the international community could do to punish the US. Anthony Clark Arend of Georgetown University says if the US flaunts international law it will provoke a lot of criticism...
Mr. ANTHONY CLARK AREND (Georgetown University): But the real practical consequence is virtually non-existence, because the only way that sanctions can be imposed on the United States is for the Security Council to impose sanctions on the United States and the United States has a veto in the Security Council so that's simply not going to happen.
KELLY: There could be another consequence, though. Hurst Hannum worries that if the US is seen to view international law as dispensable, something to use when it suits and ignore when it doesn't, then other countries will learn from that example. And in the long run, he says, the US may pay a high price indeed if it decides to wage war on Iraq outside the boundaries of international law. Mary Louise Kelly, NPR News, Washington.
MONTAGNE: The time is 19 minutes past the hour.
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