Iraq, pre-emption, and the laws of war: scholars reply to Dick Cheney

openDemocracy Opendemocracy
28 September 2006

On 10 September 2006, in a televised interview on NBC's Meet the Press, United States vice-president Dick Cheney stated with little ambiguity that we would have invaded Iraq in 2003 "even if we knew that Saddam did not have weapons of mass destruction". This statement by our nation's vice-president repudiates the legal and moral principle of non-aggression which has been accepted by the international community and has won the United States international trust and respect. This repudiation must not go unnoticed or unchallenged by Congress and the American people.

Of the many findings of "fact" in the Joint Congressional Authorization for Use of Military Force Against Iraq Resolution (2002), the key finding was that Iraq was producing and stockpiling weapons of mass destruction and had both the capability and intent to use them in short order. Under the principles of international law that we helped design, and to which we have committed ourselves, only a perception of imminent armed attack justified our first use of force against the territorial integrity and political independence of Iraq in 2003.

This letter was sent by fax to all members of the United States Senate and House of Representatives on 27 September 2006. The details and background of the initiative can be found here

Congress must clarify to the administration and to the American people that Congress would not have supported an invasion of Iraq in the absence of the intelligence reports and administration assurances that Iraq did have weapons of mass destruction posing a threat of imminent attack to us and our allies. In addition, it is vital that Congress demand that the president correct, or repudiate, the recent remarks made by vice-president Cheney.

In the aftermath of the death and economic devastation of the first and second world wars, the United States led the world in the development of an international legal framework condemning non-defensive acts of war. This was codified and ratified by all major powers in the United Nations Charter, and explicitly accepted as binding by all members of the United Nations (now including virtually every nation in the world). Regardless of other concerns we have had about the UN over the ensuing years, this aspect of international law codified particularly in Articles 2 and 51 of the UN Charter has often been re-affirmed and never repudiated by the United States.

For over half a century our government has recognised that this legal framework serves our long-term interests and faithfully reflects the moral stance of the American people. The American people do not approve of war as an instrument of foreign policy, but only as a justified and necessary response to forceful attacks upon us or our allies. Even when the case was not clear, in certain conflicts, our government has at least formally supported the international legal framework of the UN Charter.

In 2003, the Bush administration assured Congress and the American people that there was no doubt that Saddam Hussein had weapons of mass destruction. Many in our military, intelligence, and diplomatic communities still had doubts. Many in Congress expressed concerns, but in the end a majority decided to authorise the president to respond to the immediate threat his administration described.

Alternative justifications offered by vice-president Cheney during the recent interview are clearly legally insufficient for military action. A capability to produce weapons of mass destruction in the future, the use of weapons of mass destruction in the past, crimes against the people of Iraq, possible connections with terrorist organisations - all of these qualify as grievances which the United States might bring against Iraq in the United Nations, as we did, but do not constitute grounds for the first use of force without UN approval.

In particular, the justification offered by Cheney that Iraq would have become a threat in the future is exactly the kind of argument that the international legal principles are designed to inhibit. Any nation might perceive another nation as a future threat. Germany perceived France and Russia as threats in 1914. Japan perceived the United States as a threat in 1941. North Korea and Iran view the United States as a threat today, particularly after our invasion of Iraq. China could view Taiwan or the United States as a future threat. A non-imminent future threat justifies preparedness, diplomacy, changes in policy, and appeals for UN action, but does not justify military force.

Vice-president Cheney's statement that we would have invaded Iraq even if we knew they had no weapons of mass destruction is a repudiation of what we have repeatedly avowed for more than fifty years: that we shall not attack another nation in the absence of an attack or truly imminent attack on us or our allies, unless it is done under the authority of international law and/or the direction of the United Nations, e.g. in response to a humanitarian crisis.

We cannot allow Cheney's repudiation to stand, even if it was made extemporaneously and unofficially. Congress and the president must provide a clear statement that vice-president Dick Cheney's remarks do not represent United States policy and that we remain committed to a policy of non-aggression.


(Organisational affiliations are listed only for identification purposes. Signatories are acting in their individual capacity and not in representation.

Please see http://www.principledaction.org/ for additional signers or to add your signature)

Susan Ariel Aaronson, Trade and Economic Policy Analyst; Author

William J Aceves, Professor of Law and Director of International Studies, California Western School of Law

Janet Cooper Alexander, Frederick I Richman Professor of Law, Stanford Law School

Professor Abdullahi Ahmed An-Na`im, Charles Howard Candler Professor of Law, Emory University School of Law

Samuel R Berger, Chairman,  Stonebridge International LLC; former National Security Advisor

Bartram S Brown, Professor of Law, Co-Director, Program on International and Comparative Law Chicago-Kent College of Law; Illinois Institute of Technology

Douglass Cassel, Lilly Endowment Professor of Law Notre Dame Law School

Marie Isabelle Chevrier, Associate Professor of Political Economy and Public Policy, University of Texas at Dallas

Roger S Clark Board of Governors Professor, Rutgers-Camden School of Law

General Wesley Clark, Former Nato Supreme Allied Commander; Distinguished Senior Advisor, Center for Strategic and International Studies; Trustee, Center for American Progress

Sarah H Cleveland, Marrs McLean Professor in Law, University of Texas School of Law

Joshua Cohen, Professor of Political Science, Philosophy, and Law Stanford University Director, Program on Global Justice Freeman Spogli Institute, Stanford

Anthony D'Amato, Leighton Professor of Law Northwestern University

Mohamed Elibiary, President & CEO Freedom and Justice Foundation

Richard Falk, Milbank Professor of International Law Emeritus, Princeton University

Martin Flaherty, Co-Director, Crowley Program in International Human Rights; Leitner Family Professor of International Human Rights, Fordham Law School

Gregory Fox, Professor of Law, Wayne State University Law School

William B Gould, Beardsley Emeritus Professor, Stanford University Law School; Former Chairman, US National Labor Relations Board

Morton H Halperin, Director of US Advocacy , Open Society Institute; Executive Director, Open Society Policy Center; Senior Fellow, Center for American Progress

Lynne Henderson, Professor of Law, William S Boyd School of Law, University of Nevada Las Vegas

Paul Hoffman, Schonbrun, De Simone, Seplow, Harris and Hoffman LLP Human Rights/Civil Liberties Lawyer

Jennifer S Holmes, Associate Professor of Political Economy and Political Science School of Economic, Political and Policy Sciences, University of Texas at Dallas

Scott Horton, Adjunct Professor, Columbia Law School Committee on International Law, Association of the Bar of the City of New York

Derek Jinks, Assistant Professor of Law University of Texas School of Law

Frank Kendall III, Former Vice Chairman, Defense Intelligence Agency Advisory Board; Former Director, Tactical Warfare Programs, Office of the Secretary of Defense

Robert O Keohane, Professor of International Affairs, Woodrow Wilson School, Princeton University

Anatol Lieven, Senior Research Fellow, New America Foundation

Bryan Long, Social Systems Philosopher

Princeton Lyman, Adjunct Senior Fellow Council on Foreign Relations

Thomas William Mayo, Director, Maguire Center for Ethics and Public Responsibility; Associate Professor, SMU/Dedman School of Law; Adjunct Associate Professor, Internal Medicine UT-Southwestern Medical School

Francisco Forrest Martin, President, Rights International, The Center for International Human Rights Law, Inc

Ray McGovern, Retired CIA Analyst; Political Policy Analyst and Commentator

Julie Mertus, Associate Professor and Co-Director of Ethics, Peace and Global Affairs Program, American University; 2006 Senior Fulbright Fellow, Danish Institute of Human Rights

Mary Ellen O'Connell, Robert and Marion Short Chair in Law, Notre Dame Law School

Joe W (Chip) Pitts III, Lecturer in Law, Stanford University

John Quigley, President's Club Professor in Law, Moritz College of Law, Ohio State University

Henry J Richardson III, Professor of Law, Beasley School of Law Temple University

Michael P Scharf, Professor of Law and Director, Frederick K Cox International Law Center, Case Western Reserve University School of Law

Thomas C Shelling, Distinguished University Professor, University of Maryland; Nobel Laureate 2005

Barbara Stark, Professor of Law, Hofstra University School of Law

Beth Stephens, Professor of Law, Rutgers-Camden School of Law

Ralph Steinhardt, Professor of Law and International Affairs, Arthur Selwyn Miller Research Professor of Law, George Washington University School of Law

Andrew Strauss, Professor of Law Widener University School of Law

Nancy Talanian, Executive Director, Bill of Rights Defense Committee

Connie de la Vega, Professor of Law and Academic Director of International Programs, University of San Francisco School of Law

Jon M Van Dyke, Professor of Law, William S Richardson School of Law, University of Hawaii at Manoa

Allen Weiner, Warren Christopher Professor of the Practice of Law and Diplomacy, Stanford University

David Weissbrodt, Professor of Law, University of Minnesota

Burns H Weston, Bessie Dutton Murray Distinguished Professor of Law Emeritus and Interim Director/Senior Scholar, UI Center for Human Rights (UICHR); Vermont Law School Visiting Distinguished Professor of International Law & Policy, College of Law, The University of Iowa

Mort Winston, Professor of Philosophy The College of New Jersey

Timothy Wu, Professor of Law, Columbia Law School

Had enough of ‘alternative facts’? openDemocracy is different Join the conversation: get our weekly email


We encourage anyone to comment, please consult the oD commenting guidelines if you have any questions.
Audio available Bookmark Check Language Close Comments Download Facebook Link Email Newsletter Newsletter Play Print Share Twitter Youtube Search Instagram WhatsApp yourData