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Monday, November 21, 2005

Two Iraq Puzzles

I have written elsewhere about the war, but here I would like to present two puzzles.

Puzzle # 1: Where ARE Iraq’s weapons of mass destruction? Our government has admitted that it was wrong, that the weapons were not there. But where did they go? They could not have been made up by CIA’s flawed intelligence. Russian, French, German, and  Chinese intelligence would have been equally flawed, since they all believed that the WMDs were there (they opposed the war EVEN if the WMD would have been there).  It is unlikely that all of them would have made the same mistake. Moreover, Saddam Hussein himself behaved as if he had the WMD. If the WMDs weren’t there, why not tell the Americans and others “be my guests, come to Iraq, inspect everything, and you’ll see that I don’t have any WMDs”. In that way, he would have averted the war that ended up throwing him out of power forever (and we cannot say either that he thought he would win this war, or that he’s simply crazy, because, crazy or not, he was a master at clinging to political power). This is not a rhetorical question, nor a defense of the Bush administration (who I think is strictly liable for erring or deceiving the public, if that’s what it did). I am genuinely puzzled by this mystery. I have been  unable to elicit an answer from anyone, whether friend or foe of this administration. Perhaps a kind reader of this webpage can help.

Puzzle #2: If the war in Iraq is unlawful, as many think, then the following things follow. The Iraqi resistance is not a criminal or terrorist enterprise, but a legitimate defensive war. International law does not have grey tones here: the default rule is the prohibition of war, so if a war is justified neither on self-defense grounds nor on humanitarian intervention grounds (assuming that you accept the validity of the humanitarian intervention doctrine) nor as enforcement of prior U.N. Security Council resolutions, then it is aggression. And if the effort in Iraq is a war of aggression, international law says that the international community must wipe out all the consequences of the aggression, and that means restoring Saddam to power. Yet I don’t hear critics of this war follow up with the courage of their convictions and say that the Iraqi resistance (that is, the current alliance of Saddam’s henchmen with Al-Qaeda) is fighting a legitimate defensive war and as such should be supported by the international community and all right-minded persons, or (even less) that Saddam ought to be restored to power.

Posted by fteson on November 21, 2005 at 12:20 AM in Fernando Teson | Permalink


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I only offered for sale some spare WMD in my garage. I do not understand why this was a joke or involved this "spam" substance.

But I cannot repost my offer. I have sold my wares to a kind North Korean gentleman.

Thank you for your interest.

Posted by: Syrian Guy | Nov 22, 2005 4:35:22 PM

Oops. When I read it late last night it seemed like some comment spam that I was deleting from other places.
Syrian Guy--feel free to post your joke again!

Posted by: Dan Markel | Nov 22, 2005 9:24:26 AM

I didn't remove anything. In case you don't know, I'm a libertarian, and as such, a free-speech fundamentalist. I think the censor was Danny Markel. Danny?

Posted by: Fernando Teson | Nov 22, 2005 8:55:28 AM

Funny that you removed the joke from "Syrian guy", since the idea that there _really were" WMD in Iraq ("Curve ball told us! Would an alcoholic opportunist lie? No way!) was a pretty good joke in itself.

Posted by: matt | Nov 22, 2005 8:32:25 AM

Your post is almost as credible and reliable as much of the supposed intelligence for the existence of WMD or that they went to Syria! I hope that really was meant to be a nice ironic comment and not something serious.

Posted by: Matt | Nov 21, 2005 11:11:52 PM

Ok, this is almost certainly an ill posted comment, however I do remember reading somewhere (where I cannot remember) that there had been a successful "cleansing" of Iraq's WMD stockpile. Now, I do not remember where I read this, and I will definitely try to track it down as soon as I finish up a paper I am writing for a final, but I am sure that at the time I read this I believed it to be a credible source of information.

I say cleansing, simply because I cannot remember the specifics of how they were eliminated, (too many late nights the past few weeks) but if I can track down the source of this, I will certainly post it.

Posted by: Matthew Darrah | Nov 21, 2005 8:21:11 PM

You wrote "By the way, under legal formalistic principles, this is not occupation, since we are there by consent of the legitimate Iraqi government." Perhaps. I was accepting your earlier premise that "people who fight an unlawful war (let's not call it "aggression") are themselves fighting a lawful defensive war." Perhaps the "war" you describe ended at some point in the past, in which case I'm not sure how the current insurgency falls under the "puzzle" you set up.

You wrote "why aren't critics of the war underscoring the justice of the insurgents' cause while deploring their methods?" To the extent that the "cause" is the expulsion of U.S. forces, critics of the war are underscoring its justice, if not its immediate feasibility. The problem, as David pointed out, is that there is a second, unjust "cause," namely the destruction of the new Iraqi government. Additional "causes" include killing or oppressing members of disliked groups, partitioning Iraq along religious and ethnic lines, and imposing unjust forms of government upon an unwilling populace. These latter causes would make it impossible to support the insurgents even if they only attacked military targets.

I'm not sure whether the concept of a criminal enterprise can figure as a premise in a moral argument; presumably, an enterprise should be made criminal only if either its ends are illegitimate or the means it employs are unjust.

Posted by: Adil Haque | Nov 21, 2005 2:53:20 PM

Mmm..interesting question (the second one). I think you're right Adil. I would think that a legitimate Iraqi government could ask the U.S. to leave, subject to whatever lawful action the U.S could take under pertinent UN resolutions if Iraq "harbored" (whatever that means) terrorism. By the way, under legal formalistic principles, this is not occupation, since we are there by consent of the legitimate Iraqi government.
On the question of the insurgency, we must keep ius ad bellum and ius in bello separate. Is the reason that we condemn the insurgency the fact that they violate ius in bello? Or is the reason the fact that they are fighting an unjust war under ius ad bellum principles? If the former, why aren't critics of the war underscoring the justice of the insurgents' cause while deploring their methods? I would think that the one position that allows us to condemn the insurgents is to recognize that they constitute a criminal enterprise, regardless of their methods (would the attacks of 9/11 have been OK if it had been directed only to the Pentagon and not to civilians???)

Posted by: Fernando Teson | Nov 21, 2005 2:25:08 PM

I think the questions raised in the original post are usefully provocative (what's blogging for, anyway?); there should be more discussion along the lines you propose. The questions are surprising to me in the sense that I didn't see them as puzzles, that's all. But your second question does raise the interesting issue as to remedies for unlawful use of force, and the responses show that the answers are highly complicated in a situation where you have, as in Iraq, a newly legitimate government alongside something akin to an occupying power (but are the U.S. and UK still occupiers under the Fourth Geneva Convention?). I don't see any legitimacy in the current 'resistance' under int'l law, but I also don't see how fighting AQ in Iraq today can transform the original use of force against Saddam into something now lawful (if that's what you meant). Maybe I'm missing something there.

Posted by: David | Nov 21, 2005 2:23:00 PM

My understanding is that armed resistance to illegal occupation comports with jus ad bellum. However, third parties need not support a resistance effort which violates jus in bello. So it is perfectly consistent to hold that both the U.S. invasion and the current terrorist attacks are illegal as well as immoral.

You write that "we are NOW fighting Al-Qaeda in Iraq, and if Al-Qaeda is the perpetrator of the 9/11 attacks, then the war is justified now, even if it wasn't then." I don't quite follow. Do you mean that continued occupation is justified so long as terrorists are active in Iraq? That is, if a new government elected under the new constitution tells the U.S. to get out, do you think the U.S. can legally refuse, in the name of combatting terrorism?

Posted by: Adil Haque | Nov 21, 2005 1:42:39 PM

I learned from the comments to my Iraq posting, thanks to all.
I wish to comment further on David's, though. Of course that the "resistance" is atrocious, that is precisely my point (even the use of the word "resistance" is tendentious). Yet people who fight an unlawful war (let's not call it "aggression") are themselves fighting a lawful defensive war (or a "war of countermweasures" if we follow the tortured reasoning of the ICJ in the Nicaragua case) . Is there not self-defense, ot right to countermaesure, against unlawful uses of force? Or am I missing something here? Also, if, as David says and most people know, we are NOW fighting Al-Qaeda in Iraq, and if Al-Qaeda is the perpetrator of the 9/11 attacks, then the war is justified now, even if it wasn't then.I don't know if the insurgency is trying to bring back the Baathist regim, but surely they are fighting, at the very least, to defeat democratic Iraq. But, as I said, this is irrelevant given that, whoever they are, Al-Qaeda is with them.
David obviously thinks my questions are silly (he uses the euphemism "surprising"), but I beg to differ. He wouldn't have needed to respond so elaborately, if they'd been so silly. As to question 1, no one, and I mean no one knows the answer to WMDs mystery. Critics simply rejoice at the fact that the WMDs were not found, because that means a defeat for the Bush administration. As to question 2, there is precedent in the law of state responsibility to support the view that the reparation for an unlawful act (and unlawful use of force is especially serious) must try to resore the statu quo ante, but I have to agree with David that the view is not very persuasive.
What I tried to do is to help unmask the, shall we say ambivalence?, of many of the critics of the war, who say the Bush administration acted unlawfully but refuse to follow up with the consequences of that position, because they know, and we know, that no one in his sane mind would accept those consequences. At least the Arabs are consistent: to them, the U.S. is an evil, aggressive empire who must bite the dust. Many critics at home feel the same, but are afraid of saying it.

Posted by: Fernando Teson | Nov 21, 2005 1:16:44 PM

I am surprised by both of these questions. The first is surprising because, as others have suggested, there are several possible responses that make this less a puzzle that the original post suggests. Either Saddam was bluffing or he was bluffed himself by his own people. The only other alternative that ever seemed plausible, apart from some WMD being buried deep in Mesopotamia, was that the Iraqi army squirreled them (what? chemical or biological weapons, agents, precursors?) across the border into Syria. If that were true, however, we'd have heard alot more about it, since the Administration obviously has it in for the Assad regime and would have publicized this if it had the grounds to do so. (It did make this case just before and early in the war, but you haven't heard that argument in a couple years.) You should read the reports of the U.S. weapons inspectors following the war, especially the last one by Charles Duelfer -- the summary is at http://www.cia.gov/cia/reports/iraq_wmd_2004/transmittal.html. In any event, there is no doubt that Saddam had ambitions for WMD; it's just clear now in hindsight that the efforts of the 90s, following the first Gulf War, were more successful that we imagined in keeping them as just that, ambitions.

The second question is more surprising on several levels. It seems to start with the premise that the "resistance" is aimed at bringing back the Ba'ath regime -- that is, that it's a particular effort to remove the Americans (and Brits) and restore Saddam. I don't see any support for that. Certainly the greater share of suicide bombers are al Qaeda associated. Moreover, the "resistance" is abhorrent in all respects, whether you agreed with the war in the first place or not. If it is resisting anything, it is now resisting the current government of Iraq. What is its right to resist anyway? I suspect this is why very few people -- at least not in the west; I recognize that the Middle East presents a difficult problem here -- argue that AQ is fighting a "legitimate defensive" war in Iraq right now.

Putting that aside, though, I just don't follow the international legal reasoning here. First, why is it that a use of force that fails to meet the requirements of use of force law -- i.e., force in self-defense or authorized by the UN Security Council -- is automatically aggression? Even the somewhat contentious UN definition of aggression from 1974 suggests that this isn't the case. For one thing, it might be that the purpose of the use of force matters so that the force could be unlawful -- and thus subject the state to some liability under international law -- but still not amount to aggression, which has the sense of criminality linked with it. Second, even if the force was unlawful or constituted aggression, there is no rule in international law that requires the remedy to involve restitution, a return to the status quo ante. One could argue that the United States and the UK owe Iraq some form of compensation for an unlawful invasion, or cessation of the ongoing use of force, or something like that, but it's a bit silly to think that the law requires them to pull out and install Saddam.

Posted by: David | Nov 21, 2005 12:44:25 PM

Question 2: One quick point and then a longer one:

Even if the U.S. invasion was an illegal act of aggression, there is no duty to support a resistance effort prosecuted through illegal means.

I believe that the legitimacy of humanitarian intervention complicates the remedial duties imposed by the laws of war and occupation. Traditionally, a government must be restored to power following invasion because whether the invasion was aggressive or defensive, the status quo ante was two nations living in peace, a situation that should be restored. By contrast, in cases of humanitarian intervention, the status quo ante is widespread and systematic abuses of human rights, a situation that should not be restored. I do not believe there is a duty to restore a government to power following humanitarian intervention aimed at preventing state-conducted mass atrocity. In these cases "regime change" is often part of the point of the enterprise.

One could try to defend the Iraq invasion as a case of humanitarian intervention, as Blair attempted more or less throughout, and on that basis argue that there is no duty to restore the prior regime. Such an argument will probably not succeed, but perhaps it need not. Perhaps one need only argue that humanitarian norms can and should inform remedial duties arising from self-defensive and even aggressive wars. In particular, if the status quo ante involved widespread and systematic human rights abuses then that situation should not be restored, even if the abuses in question were not sufficiently severe or pervasive to justify the invasion itself. Rather, the illegal occupiers should help the occupied people construst institutions through which to choose a new government, hopefully one which will better respect their rights (it could hardly do worse).

Posted by: Adil Haque | Nov 21, 2005 11:19:52 AM

First, it is in fact not true that everyone thought that Iraq had WMD's. Germany questioned much of our intelligence as did others. Why not think, as far as they agreed, that they were all wrong or being conservative? Isn't that by far the most likely answer? (The west all mangaged to be wrong about the strength of the Soviet Union, after all.) And, Hussein did allow in inspectors. WHy not allow them everywhere at any minute? Becuase he had good reason to think we'd invade anyway (as we did) and it's well established that the previous inspector program was doing illegal spying for the US- that is, actions which counted as spying under the agreement that set up the inspector program. So, he would of course expect the same, thinking they were likely to be scouting targets and the like. This is, really, unexceptional and can be figured out by reading a variety of newspapers. The idea that there "really were" WMD that somehow disapeared is a strange fantasy.

Posted by: Matt | Nov 21, 2005 8:23:49 AM


We did spend over a year threatening to invade, right? Don't we have a whole subset of Fourth Amendment law regarding "knock-and-announce" searches, because we think 60 seconds is enough to hide the drugs?

The harder question: why do the Bushies not point to us, and put up the "Bush lied" mantra instead? Possible answers: (1) they don't believe that Syria has stuff, or (2) they do, but they just don't think anyone has the stomach for expanding war there, or (3) they don't think the Syrians have the infrastructure or the incentive (esp. after Iraq war) to do much but cold storage.

Or, maybe things really were destroyed in 2002-03, but not back in 1998.

Or, on the bluffing idea -- maybe Saddam was not bluffing, but his own scared lackeys told him he had stuff that he didn't have.

But that makes it hard to explain away all the cat-n-mouse with the inspectors . . .

Posted by: a hawk | Nov 21, 2005 1:38:12 AM

As a political scientist, I would assume that the answer to number 1 is that Saddam was bluffing. He calculated (correctly, I suspect -- the US had plenty of reasons to invade Iraq aside from WMD, which may not have even been the "real" reason) that if Bush knew he had no WMD, then Bush would still seek war and his ouster. If Bush thought he had WMD then perhaps the US would be deterred from an invasion. It was only when it became quite clear to Saddam that the US could not be deterred that he developed a sudden interest in seeing inspections continue. It's also possible that he believed that even if the US could not be deterred, his neighbors (which would have to provide the staging areas for US troops) might hesitate before taking actions that could trigger WMD attacks on their countries.

As for # 2, I was unaware that international law included any provision for re-establishing a leader who was forcibly removed from power. This is an area where I am no expert, but there is certainly no blanket principle that requires the undoing of the results of previous unlawful wars. Such a principle would seem likely to generate conflict without end, for virtually every military action (or other breach of international law) is claimed to be a response to some previous illegal action. Then again, perhaps such a principle is indeed evolving as part of customary international law, along with concepts such as a "right of return" for refugees and other restorative measures. To repeat, I am not expert in this area so this is largely speculation.

Posted by: abbamouse | Nov 21, 2005 12:21:52 AM

I agree with David and have always thought that Hussein was a in a position where he could not admit the lack of WMD. Not only did he need that image at home, but I think he probably thought the international community would believe in their existence. I think Hussein never really believed the US would invade.

But that's just me..

Posted by: not my real name | Nov 21, 2005 12:10:49 AM

I can't answer the second, because I'm a war supporter (albeit one who's been wavering of late). As to the first, the best explanation I've heard is that Hussein pretended to have WMDs to project an image of strength in the region and at home. One of the best ways to dissuade a coup is being able to unleash massive and grusome deaths on any suspected plotters (and their entire tribes)--WMDs helped portray this view of overwhelming strength. Hussein couldn't deny he had WMDs because the game would be up at home--even if the US didn't invade, he'd be fatally weakened domestically (this feeling was probably amplified by paranoia). I've heard that Hussein thought that the US invasion threat was a bluff--that if he continued bobbing and weaving like he did for the preceding decade, eventually the UN would broker some compromise and he'd be able to keep his image of power and avoid an invasion. He tried to play both sides against each other and eventually it caught up.

Posted by: David Schraub | Nov 20, 2005 11:11:28 PM

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