The Raid on Baghdad: Some Reflections on its Lawfulness and Implications

W. Michael Reisman ¹

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From 14 to 16 April 1993, former United States President George Bush, the architect and leader of the international coalition that ended Iraq's aggression against Kuwait, visited Kuwait at the invitation of its grateful government. During the visit, the Kuwaiti government, tipped off by Iraqi informants, uncovered evidence that 175 pounds of explosives had been concealed in the body panels of a Toyota Land Cruiser and smuggled from Iraq into Kuwait. The device had the potential to destroy four city blocks. Its detonation was apparently planned for downtown Kuwait City and was to be timed to follow the high point of the Bush visit: his acceptance of an honorary degree at Kuwait University for his leadership in the Gulf War.

Kuwaiti officials apprehended thirteen Iraqis and three Kuwaitis in connection with the plot. Two of the main suspects, Wali al-Ghazali and Raad al-Assadi, confessed involvement in the plot and claimed that their orders had come directly from Iraqi intelligence. While the trial of the other fourteen suspects was underway in Kuwait, separate FBI and CIA investigations uncovered additional allegedly compelling evidence of Iraqi government complicity in the conspiracy. Most persuasive was the forensic evidence. The bomb incorporated the same remote-control firing device, plastic explosives, blasting cap, integrated circuitry, and wiring as devices linked to Iraqi intelligence in the past. Specifically, the bomb bore a striking resemblance to an Iraqi device recovered during the Gulf War by coalition forces after a foiled attack along the Turkish border.

United States officials spoke of an appropriate response, but President Clinton announced that the United States would not respond until the facts had been confirmed in the criminal trials then underway in Kuwait City. That statement notwithstanding, on 26 June 1993, US warships in the Red Sea and the Persian Gulf fired 23 Tomahawk cruise missiles upon Iraqi intelligence headquarters in Baghdad.

Twenty of the 23 US missiles landed within the boundaries of the intelligence service compound. The remaining three missiles struck a surrounding residential neighbourhood in the exclusive Mansour district of Baghdad, killing at least eight, wounding at least twelve civilians, and destroying private property.²

The United States justified the raid as an act of self-defence permitted under Article 51 of the UN Charter.³ President Clinton told the nation on the evening of the raid:

[T]he Iraqi attack against President Bush was an attack against our country and against all Americans. We could not and have not let such action against our nation go unanswered... A firm and commensurate response was essential to protect our sovereignty, to send a message to those who engage in state-sponsored terrorism, to deter further violence against our people, and to affirm the expectation of civilized behaviour among nations.⁴

General Colin Powell, then Chairman of the Joint Chiefs of Staff, proclaimed that the action was `appropriate, proportional, and consistent with Article 51 of the Charter'.⁵

As required under Article 51 of the United Nations Charter, the United States promptly reported its action to the Security Council, which convened an emergency session at which the US Permanent Representative presented evidence of Iraqi involvement in the plot against Bush. She offered a series of photographs showing similarities between the device and other devices previously recovered from the Iraqis. She argued,

It is the firm judgment of the United States intelligence community, based on all the sources of evidence available to it, that this assassination plot was directed and pursued by the Iraqi Intelligence Service, an arm of the Government of Saddam Hussein... The attempt against President George Bush's life during his visit to Kuwait last April was an attack on the United States of America. [I]n our judgment, every member here today would regard an assassination attempt against its former head of state as an attack against itself and would react. [We responded] as we are entitled to do under Article 51 of the United Nations Charter, which provides for the exercise of self-defence in such cases.⁶

Of the fifteen Security Council members, only China questioned the legality of the raid. Representatives of the three Islamic countries on the Security Council - Pakistan, Djibouti and Morocco - remained silent. A spokesman for all of the non-aligned countries on the Security Council - the three Islamic countries plus Venezuela and Cape Verde - stated only that they `had taken note of' the evidence presented by the United States and that the subject was one of `utmost concern'.⁷

Egypt and several other Muslim countries questioned the legality of the raid,⁸ but the US action generally met with approval in Western capitals and in Russia. British Foreign Secretary Douglas Hurd expressed what appeared to have been a general view in the West: `This operation was a justified and proportionate exercise of the right of self-defence and a necessary warning to Iraq that state terrorism cannot and will not be tolerated.'⁹

I

Even if one believes that the function of the international jurist is to test the lawfulness of particular actions simply by measuring them against certain rules that are widely accepted, or that the jurist believes should be accepted, an appraisal of the Baghdad raid is still far from easy, for many of the norms contain ambiguities and the validity of others is uncertain. These problems rarely inhibit the jurist operating in this jurisprudential mode, for each incident and each judgment about it is essentially picaresque and its longer-term implications are limited; it was either a lawful or an unlawful action. The judgment reached is a kind of Aktenversendung, an academic jus respondendi, a pure statement of the law.

If one believes, as I do, that law is not to be found exclusively in formal rules but in the shared expectations of politically relevant actors about what is substantively and procedurally right - which may diverge sharply from the written rules - then a prerequisite for appraisal of the lawfulness and implications of an incident such as the Baghdad raid is an identification of the yardstick of lawfulness actually being used by relevant actors.

The normative expectations that political analysts infer from events are the substance of much of contemporary international law. The fact that the people who are inferring norms from incidents do not refer to the product of their inquiry as `international law' in no way affects the validity of their enterprise, any more than the obliviousness of Molière's M. Jourdain to the fact that he was speaking prose meant that he was not.¹⁰

In this approach, incidents, like the Baghdad raid, themselves may contribute to establishing the metric of lawfulness in a particular context. Regardless of whether or not a specific incident has this kind of constitutive impact, all incidents may confirm, adjust, or terminate expectations about lawfulness theretofore held, or indicate that the expectations are in various ways more complex, nuanced or contingent than the `black letter' rule formulations they may approximate. This approach also demonstrates again and again what I take to be a fundamental jurisprudential postulate: that there may be great differences between the right legal answer in abstracto and the right legal decision in concreto.

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1 Hohfeld Professor of Jurisprudence, Yale Law School. The author acknowledges with gratitude the research assistance of Patricia L. Small and the comments of Andrew R. Willard.

2 Lancaster, Gellman, `US Calls Baghdad Raid a Qualified Success', Washington Post 28 June 1993, at A1.

3 Article 51 preserves for member states the `inherent right of individual or collective self-defence' against armed attack, `until the Security Council has taken measures necessary to maintain international peace and security'.

4 President Clinton Addresses Nation on Iraq Strike, Cable News Network 26 June 1993, available in LEXIS, Nexis Library, Transcripts file.

5 Interview with Colin Powell, Cable News Network, 27 June 1993, available in LEXIS, Nexis Library, Transcripts File.

6 Speech of Madeleine Albright, US Permanent Representative to the United Nations, before the UN Security Council, 27 June 1993, excerpted in `Raid on Baghdad', New York Times 28 June 1993, at A7; `UN Receives Evidence for Bush Attack, St. Louis Post-Dispatch', 28 June 1993, at A1.

7 `US Seeks UN Support for its Strike Against Iraq', Star Tribune 28 June 1993, at A6.

8 Lancaster, Gellman, supra note 1, at A1. The Arab League issued a statement expressing `extreme regret' over the US attack and emphasizing that force should only be applied when the UN Security Council approves it. `US Seeks Support for its Strike Against Iraq', supra note 6, at A6.

9 Jones, `Operation Was "Justified Exercise of Right of Self-Defence", Says Hurd', Daily Telegraph 29 June 1993, at 1; see also Statement of Chancellor Helmut Kohl of 27 June 1993, quoted in Winslow, `Allies, Moscow Lend Support', Newsday 28 June 1993, at 18, `The German Government regards the American government's action as a justified reaction to this detestable terrorist attempt'; see also quoted in Winslow at 18 the following statement of the Russian Foreign Ministry: `In the opinion of the Russian leadership, the US actions are justified because they proceed from the right of a state to individual and collective self-defence in accordance with Article 51 of the UN Charter.' France offered only lukewarm support of the US action, with its UN Representative stating that France `understood' the attack but sought `neither the destabilization nor the dismemberment of the Iraqi state'. See Olojede, `US Makes Case Before Sceptical UN', Newsday 28 June 1993, at 5.

10 Reisman, `International Incidents: Introduction to a New Genre in the Study of International Law', in W.M. Reisman, A.R. Willard (eds), International Incidents: The Law that Counts in World Politics (1988) 5.

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