“May it please the Court — My name is Guive Mirfendereski and I am the Counsel for the Government of the United States of America. Tonight, I will argue the brief in support of prosecuting the war against Iraq.” With this introduction, I began a 40-minute presentation to a recent audience at Boston College Law School, where I intended to show how being a lawyer shapes the way which one sees the world or frames one's argumentation.
The vocabulary which we use in our daily expression or professional advocacy is not an unfamiliar one to most, thanks in large measure to television programs about law and order. However, the vocabulary is just the semantic reflection of a kind of reasoning that itself is not readily available to the non-lawyer.
In the aftermath of September 11, 2001, most Americans were left with the question, “Why do they hate us?” Since the adoption of the UN Security Council Resolution 1441 on Iraq and the ensuing debate over it, we are left to ask ourselves “Why don't they agree with us?” The answer to either question is a simple one: They hate us or do not agree with us because they do not understand us. While we cannot expect the world to understand us, we, the un-understood or misunderstood, have therefore the affirmative obligation to try to make ourselves understood.
Unfortunately, the pronouncement of our national leadership on the subject of war against Iraq has been under-articulated, and it has lacked the fundamental moral, factual and legal clarity that it requires in order to be intellectually persuasive to the people here and abroad. Instead, we have had one disingenuous statement after another on the part of the US Adminsitration, one demand upon the Iraqi regime after another, one timeline and line in the sand after another, which all together have generated the moral ambiguities, factual discrepancies, and legal murkiness that surrounds the issue. This on a daily basis then adds wind to sails of the congenital pacifists, UN-iks, and anti-bellum children of the baby-boom generation.
Like most, I have given up on the US Administration to persuade me to go along with this war. Instead I have sought at a personal level to understand me, us, and the 'what' and 'why' of plunging head first into it.
To understand America, I often take refuge in the Constitution, in which I learn and study the values and context that brought forth this nation, and imbued it with a sense of purpose, and a global mission, one informed by the view that no goal is most common among nations and therefore most noble than the pursuit of self-interest, the coincidence of which then forms the common good.
The Founders also understood that if America had become a nation it was by the grace of the Law of Nations and if it were to survive as one it was to be by the grace of the Law of Nations. While from the earliest days of the republic, international law formed a part of American law, the Constitution nevertheless reserved for the American people the mission to define and punish piracies and felonies committed on the high seas and offenses against the Law of Nations.
The term “piracy” was meant to signify an enterprise of pillage and depredation at sea, which had no fixed place nor acknowledgement of any state or sovereignty. The term referred to any person or entity which operated outside of the framework of international law as recognized by the civilized world.
It is rather instructive to note that the first time the US flag was raised in the “Old World” was when in 1805 the US defeated the Barbary Pirates on the northern coast of Africa and planted the flag at Derna in Tripoli. A decade or so later, the British forces would take out the Qasemi and other Arab maritime tribes of the Pirate Coast in the Persian Gulf.
Pirates in international law were viewed as the fox was in civil law: in the words of Justice Livingston, familiar to every first year law student in America, the fox is a wild and noxious beast, which is regarded as the law of nations does a pirate, hostem humani genenris — enemy of mankind — and to put him to death wherever found is allowed to be meritorious and of public benefit.
The terrorisme sans frontière (“terrorism without borders”) is the modern-day scourge of the civilized world. That America and Britain readily and instinctively agreed and combined to embark on military operations against al-Qaeda is explained in part by their common experience in fighting pirates, outlaws.
I have no doubt, when the United States uses labels such as “international terrorism,” “axis of evil,” “evildoer,” “rogue nation” or “outlaw nation,” it seeks to expand the otherwise narrow jurisdictional ground available to it under existing international law in order to deal with the latter-day hostem humanis generis. That label, in the past and present, allows the label-maker to act unilaterally, if need be, against the outlaws and the countries that support or harbor them.
Neither as an American peculiarity or international proclivity, “unilateralism” is not a dirty word; nor is unilateralism by itself illegal per se. Naturally, where one is obligated by one's own consent to act in concert with others and to advance a common plan, acting unilaterally in derogation of the common plan is both immoral and illegal.
To that extent, if the United Nations Security Council fails to approve the use of force to disarm Iraq and remove the Iraqi regime then any unilateral war by the United States on behalf of resolution 1441 or the UN will be unauthorized and illegal. However, there is nothing illegal in the US going it alone, on its own account.
The United Nations Charter prohibits a member country of the United Nations to use or threaten the use of force in its relations with another country. At the same time, the Charter provides that countries settle their differences in a peaceful manner.
Self- defense under the Charter — “inherent right of individual or collective self-defense” — is recognized but only if an armed attack occurs and only until the UN Security Council has taken the measures necessary to maintain international peace and security. When countries under the Charter passed from the imperfect jungle law of unimpeded self-help and aggression to the Utopian concept of the rule of law, they, including the United States, arguably gave up the individual right to commence war for collective security.
That was and still is theory. In practice, the use of force remains as a tool for furthering one's national interests and the threat of use of force remains a tool for the diplomatic furtherance of national objectives. Ironically, the half-century of the Charter's existence has coincided also with the most intense period of armed conflict in human history.
The issue of the unilateral use of force for a country presents itself as a morass with greater urgency when the UN fails to act. The UN inaction, for whatever reason, by itself, cannot however re-define or simply wish away the threat which a member country perceives to its peace and security. The use of force against the perceived source of threat to one's peace and security therefore is a necessary and legitimate act of self-defense.
Inherent right of self-defense is one of international law's primary or natural laws. Pure and simple, without it, our state-based international legal system will cease to exist, as the very survival of the system requires the survival of the state, at once both its subject and object. The US Constitution, in return for providing for the common defense of the union, prohibited a state of the union to engage in war with a foreign power, but it also provided that a state may war if it was actually invaded, or in such imminent danger as will not admit delay (Art. I, 10).
The Framers' formulation of the concept of self-defense embodied the right to react and the right to strike preemptively. The concept of preemptive self-defense, or anticipatory self-defense, has been a hallmark of customary international law of war and peace. It, incidentally, owes its development to the practice of the United States and Great Britain.
Following the invasion of the US territory by British soldiers from Canada and the sinking of the Caroline, an American ship, in Buffalo, New York, in 1842, the US and Great Britain exchanged a series of diplomatic notes, in which the British stated that the piratical character of the vessel was established and that the US laws were not being enforced along the border, and that the destruction of the vessel was an act of necessary self-defence.
Daniel Webster, the US Secretary of State, replied to his British counterpart: “Respect for the inviolable character of the territory of independent Sates is the most essential foundation of civilization …. Undoubtedly it is just, that, while it is admitted that exceptions growing out of the great law of self-defense to exist, those exceptions should be confined to cases in which the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”
The concept of “imminence” of danger as a trigger for preemptive self-defense is more apt for the set-piece world of military conflict. In the age of bio-chemical terror and suicide bombers the exigencies of preemptive self-defense cannot be evident one hundred percent in the open, physically visible, and visually verifiable.
For a lawyer, a concept with far greater relevance to the discernment of threat or potential injury is “foreseeability.” This concept is at the heart of what constitutes the branch of law known as torts (legal responsibility): where an injury is foreseeable, a duty arises to exercise prevention or avoidance.
The case to be made against the leadership of Iraq is not one that can dwell on the imminence of the danger posed by it to the United States, but rather by the foreseeability of harm that it may inflict on this country. By the same token, it is irrelevant whether there is a link between the Iraqi leadership and the known “Terrorists without Borders.” The question to be asked: given what one knows of the Iraqi leadership, is it foreseeable that it become another al-Qaeda, with a devastating agenda against America.
It is common knowledge that the Iraqi leadership possess the means to inflict untold harm on the American public. Its know-how, perhaps more so than the actual stockpile of biological and chemical agents, gives the regime the ability to strike at the United States and her allies, especially Israel, at anytime.
The regime has also demonstrated in the past that it is predisposed to using chemical and biological weapons, not only on its enemies but its own civilian populations; it may have had a hand also in the first bombing of the World Trade Center. In a world of porous borders and willing martyrs and paid assassins any regime must be presumed to have the opportunity at will to strike.
Finally, the Iraqi regime must be presumed to have the motive to harm the United States: for twelve years the US has backed and enforced an embargo that has robbed the country of normal trade, frustrated the country's scientific and development plans, carved out the north and south into semi-autonomous regions, controlled the sale of its oil, patrolled the skies over northern and southern Iraq, and called for an financed the overthrow of the regime. If there is one candidate among the world's villains who has the motive, opportunity, and means to hurt the United States (and Israel, by association) is the Iraqi regime.
In any domestic law setting, however, the presence of the aforesaid elements of motive, means, and opportunity on the apart of a former felon or criminally-predisposed individual or enterprise may not necessarily lead to the issuance of an arrest warrant, probable cause hearing, or a grand jury investigation. In the minimum, however, the authorities may embark on a form of custodial interrogation or surveillance. The United Nations treatment of the Iraqi regime, for now, falls within the purview of inspections and surveillance. What has been missing from the debate so far is any attempt to discern the intention of the Iraqi regime.
The US Adminsitration believes, in view of the foregoing, the Iraqi regime has the requisite criminal intent to harm the United States, its citizens, allies, and interests. The idea, therefore, is to strike at the snake, a half-wounded snake, in its den rather than to arrest it after it has decimated thousand of people at its first convenient opportunity.
The Counsel for the Government of the United States rests.