The American Constitution at the very beginning of the Republic sought above
all to guard the country against reckless, ill-considered recourse to war. It
required a declaration of war by the legislative branch, and gave Congress the
power over appropriations even during wartime. Such caution existed before the
great effort of the twentieth century to erect stronger barriers to war by way
of international law and public morality, and to make this resistance to war the
central feature of the United Nations charter. Consistent with this undertaking,
German and Japanese leaders who engaged in aggressive war were punished after
World War II as war criminals. The most prominent Americans at the time declared
their support for such a framework of restraint as applicable in the future to
all states, not just to the losers in a war. We all realize that the effort to
avoid war has been far from successful, but it remains a goal widely shared by
the peoples of the world and still endorsed by every government on the planet.
And yet, here we are, poised on the slippery precipice of a pre-emptive war,
without even the benefit of meaningful public debate. The constitutional crisis
is so deep that it is not even noticed. The unilateralism of the Bush White House
is an affront to the rest of the world, which is unanimously opposed to such an
action. The Democratic Party, even in its role as loyal opposition, should be
doing its utmost to raise the difficult questions. Instead, the Senate Foreign
Relations Committee, under the chairmanship of Democratic Senator Biden, organized
two days of hearings, notable for the absence of critical voices. Such hearings
are worse than nothing, creating a forum for advocates of war, fostering the illusion
that no sensible dissent exists and thus serving mainly to raise the war fever
a degree or two. How different might the impact of such hearings be if respected
and informed critics of a pre-emptive war, such as Hans von Sponeck and Denis
Halliday, both former UN coordinators of humanitarian assistance to Iraq who resigned
in protest a few years back, were given the opportunity to appear before the senators.
The media, too, have failed miserably in presenting to the American people the
downside of war with Iraq. And the citizenry has been content to follow the White
House on the warpath without demanding to know why the lives of young Americans
should be put at risk, much less why the United States should go to war against
a distant foreign country that has never attacked us and whose people have endured
the most punishing sanctions in all of history for more than a decade.
This is not just a procedural demand that we respect the Constitution as we
decide upon recourse to war--the most serious decision any society can make, not
only for itself but for its adversary. It is also, in this instance, a substantive
matter of the greatest weight. The United States is without doubt the world leader
at this point, and its behavior with respect to war and law is likely to cast
a long shadow across the future. To go legitimately to war in the world that currently
exists can be based on three types of considerations: international law (self-defense
as set forth in Article 51 backed by a UN mandate, as in the Gulf War), international
morality (humanitarian intervention to prevent genocide or ethnic cleansing) and
necessity (the survival and fundamental interests of a state are genuinely threatened
and not really covered by international law, as arguably was the case in the war
With respect to Iraq, there is no pretense that international law supports
such a war and little claim that the brutality of the Iraqi regime creates a foundation
for humanitarian intervention. The Administration's argument for war rests on
the necessity argument, the alleged risk posed by Iraqi acquisition of weapons
of mass destruction, and the prospect that such weapons would be made available
to Al Qaeda for future use against the United States. Such a risk, to the scant
extent that it exists, can be addressed much more successfully by relying on deterrence
and containment (which worked against the far more menacing Soviet Union for decades)
than by aggressive warmaking. All the evidence going back to the Iran/Iraq War
and the Gulf War shows that Saddam Hussein responds to pressure and threat and
is not inclined to risk self-destruction. Indeed, if America attacks and if Iraq
truly possesses weapons of mass destruction, the feared risks are likely to materialize
as Iraq and Saddam confront defeat and humiliation, and have little left to lose.
A real public debate is needed not only to revitalize representative democracy
but to head off an unnecessary war likely to bring widespread death and destruction
as well as heighten regional dangers of economic and political instability, encourage
future anti-American terrorism and give rise to a US isolationism that this time
is not of its own choosing!
We must ask why the open American system is so closed in this instance. How
can we explain this unsavory rush to judgment, when so many lives are at stake?
What is now wrong with our system, with the vigilance of our citizenry, that such
a course of action can be embarked upon without even evoking criticism in high
places, much less mass opposition in the streets?
Professor of international law at Princeton University, Richard Falk is
co-editor of Crimes of War.
© 2002 The Nation Company, L.P.