Customary International Law, George Bush and Iraq

This is in response to Lt Cmdr Smash’s comments at his blog. You can read them here. He served in Operation Iraqi Freedom and we have had an ongoing dialogue and discussion since 2003. Over time my position has hardened while he has stuck true to his line but our basic disagreement has always been the same and has mirrored the ongoing debate of the pro and anti Iraq-war camps.

Before I explain my overall reasoning for considering George Bush a war criminal let me address Smashs’ position that the situation on the ground in Iraq was such that any action to remove Saddam was justified no matter what the legalities. My position and the position of most anti-war activists, I think, is that the days when War are necessary are, or at the very least should be, numbered. If that is not the goal of the civilized world, then really why are we here? History tells us war only brings pain and suffering and decades of rebuilding. To avoid war is to avoid hell on earth. If war must be brought upon this world it must be done for absolutely incontrovertible reasons. We must demand the highest standard and we must demand the utmost in cooperation and support so that the war is as fast, complete and successful, during and after.

So while the anti-war movement understood the pain of Iraqis as they suffered and toiled under the Iraqi regime we also understood that war… and especially war without consensus… would do little to help common Iraqis. Yes, the Oil-for-Food program was terribly flawed… but compared to war, and the post-war situation we see now, most Iraqis were employed, had food, electricity, water, and fuel. For the past 2 years since the war… Iraqis have had none of this… and instead have had ongoing violence in their streets, kidnappings, and general disorder. Today we are again hearing that due to the security situation, progress in all sectors, even Oil, is at a near standstill.

Would it have been different with a UN sanctioned coalition? What if Saddam finally totally complied and we realised he really didn’t have any WMD? We’ll never know. All we know now is that Iraq is struggling to find itself and the US is struggling to maintain security. I hope the Iraqi government discovers its independance and sovereignty soon but without the security to deliver basic services to its’ citizens, what chance does it have. All it seems we can do is hope for the best. In the meantime, it does not change the fact that the way the war was brought to Iraq was illegal. Just as Saddams invasion of Kuwait was a breach of International Law, so to was this war…

So here goes…


There was a time when I felt that I should cut George Bush some slack and look at what has happened in Iraq in a more positive light. Saddam Hussein has been removed from power and that in itself is a very good thing.

However, I was, from the very start, opposed to this notion of war without consensus or justification. In a civilized and democratic nation, war should require a very high bar in order for it to be brought upon the civilian and military populations of both sides. As this war has dragged on, and more and more facts have come to light, my position has hardened. Now I am to the point where I believe that even though good was derived from Saddam losing his grip on power, the act of doing so was criminal in nature. George Bush and his Administration knew this but decided to invade and figure out the details and justification afterwards. It is an attitude that harkens back to darker days of civilization when empires were expanded out of personal interest and glory rather than the greater good. Just as Saddams invasion of Kuwait was his twisted attempt to beat his chest. Iraq was George Bushs’ attempt to prove to himself that he could “finish the job” that his father wisely avoided.

The release of the memo from the meeting of UK Prime Minister Tony Blair and his advisors was the last straw to me… and that single document provided me with the undisputable evidence that this war was not only criminal in practice, but also criminal in intent.

Contrary to common belief, International Law is not a codified set of rules administered by any one body. Indeed, the ICC, International Court of Justice and United Nations are simply organizations and forums for discussion and implementation of those Laws. They have no power to make or enforce International Law. So while at one level we can talk about the UN and the UNSC… this is really a much more basic discussion.

International Law is a combination of treaties signed between states (eg. the Geneva Conventions, or the UN Charter) and Customary International Law. According to GeorgeTown Universities excellent pages on the subject, their answer to “What is Customary International Law” is;

  1. Widespread repetition by states of similar international acts over time (state practice).
  2. Acts must occur out of sense of obligation.
  3. Acts must be taken by a significant number of states and not be rejected by a significant number of states.

The ICRC (Red Cross) concurs:

Customary international law, on the other hand, derives from the practice of States, such as expressed in military manuals, national legislation, case law and official statements. A rule is deemed customary if it reflects a “widespread, representative and virtually uniform” practice of States accepted as law.

In the case of Iraq the criminal action would be the invasion of a sovereign nation without imminent threat or other justification.

Reaching back into the history of military conflict, the sympathy and justification for waging war has been due to the actions of an aggressor. Indeed, “aggressor” is defined as: a person or country that attacks another first. Where as Defense is, the action of defending from or resisting attack. The connotations that they impart appear automatically in our minds, “Aggressor, Aggressive, Attack” … “Defense, Resist, Protect”.

It is this overriding custom or instinct, that those who defend or resist automatically gain the support of the majority, that speaks to how Nations react to war and conflict. This forms the foundation of Customary International law especially as it has been applied since the end of World War II. It was the aggression of the Nazis and Japanese that defined the unified and absolute response by the Allies to defend from, resist and repulse the Axis.

When WWII ended the United Nations was created upon those very same principles.

The Purposes of the United Nations are:

  1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace

So while the United Nations itself was not a judicial body able to enforce International Law upon any single Nation, by signing the Charter, UN Member nations were implicitly reinforcing the Customary and Treaty based International Law that has governed response to conflict throughout history.

Given this, it is clear that the invasion of a country that is not actively or imminently threatening the invader or one of its’ interests, would constitute a breach of International Law. This is supported by an examination done in the Murdoch University Electronic Journal of Law,

The requisite customary law elements for a valid exercise of the right to self defence, derived from the Caroline Case[8] include necessity, the presence of an imminent threat and proportionality of response. … Such action must be in response to an imminent provocation and may not be remote in time from such threats.[10] Convincing proof of an imminent attack[11] must be present in order to justify an anticipatory use of force.[12]

So, applying all this to George Bush, it is clear that while his intentions may have been righteous, the method employed followed neither the letter nor the intent of International Law as governed by the customs and treaties recognized by the United States.

The assertions that the events of September 11, 2001 “changed the rules” and thus validated the invasion of Iraq simply don’t hold water because International Law is, by definition governed by historical practices between states over time. September 11 was only one event as was the invasion of Iraq. The responses to each; with first the unanimous acceptance and subsequent invocation of Article V by NATO against the Taliban and Al-Quaeda in Afghanistan immediately after 9/11; and then the worldwide resistance to the invasion of Iraq and widespread condemnation of the United States as the instigating nation; serve to again bolster the case for Customary International Law still holding true to it’s historical definitions no matter what one particular government feels has changed at the current time.

From the ICRC:

  • 7. If a rule is repeatedly broken can it still be considered part of customary law?

All legal norms, whether domestic or international, can be violated. However, this does not imply that they are obsolete. When a rule of customary international humanitarian law is violated but such violation is generally condemned by other States or denied by the State concerned, this practice tends to reinforce the rule rather than to weaken it.

For example, although attacks on civilians occur, these are usually criticised and the party accused of such attacks will, for example, either deny the facts or argue that the attacks were unintentional. Such condemnation and justification implicitly recognizes the prohibition to attack civilians.

As you can see, the explanation and example given by the ICRC can be directly correlated to the denials of the US Administration and it’s supporters as to the legalities of the Iraq war.

Many also argue that the war was not actually a preemption but rather a continuation of the first Gulf War and UN Resolutions after 1990. as Murdoch explains,

  • … they suggest the ‘risk embodied in allowing the Iraqi regime to defy the international community by pursuing weapons of mass destruction’ was sufficient to justify pre-emption and, viewed in the context of past actions of Iraq and threats posed over a ‘protracted period of time’, lawful under international law.[36] Rather the action was justified on the basis of Security Council Resolutions between 1990 and 2003. In response to comments such as these, Farer points out, the doctrine of pre-emption:

“…plainly does not encompass the overthrow of regimes with records of aggressive behaviour. Nor does it legitimate the use of force against states deemed unfriendly in order to deny them weapons systems already deployed by other sovereign states.”[37]

In my view, George Bush negated those possible justifications based on past UN Resolutions when, as made abundantly clear by the UK Memo, he decided to invade Iraq before seeking UN approval or even seeking the approval of his own citizens or allies. This is different from simply exploring the possibility of invading Iraq… rather, he had already made the decision to invade Iraq before any hint of imminent threat from Iraq or any sign that Iraq would threaten any of Americas interests.

From the UK Memo of July 2002 (emphasis added):

The Attorney-General said that the desire for regime change was not a legal base for military action. There were three possible legal bases: self-defence, humanitarian intervention, or UNSC authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult. The situation might of course change. The Prime Minister said that it would make a big difference politically and legally if Saddam refused to allow in the UN inspectors.

Here we see that the UK Attorney General, and Tony Blair himself recognized that the standard justification for war, based in Customary Law, self-defense, could not apply. Previous UNSC resolutions were also legally not sufficient to force regime change in Iraq. (The Attorney General later reversed this opinion only days before the war was launched…)


C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime’s record.

This admission that George Bush and his Administration planned to

  1. invade Iraq with or without UN approval (ie. the consensus of states as expected in Custom),
  2. without publishing of material (ie. proof of threat) and
  3. by using intelligence and facts that were “fixed” to enact the policy

is the greatest indictment possible. It shows both the criminal action and intent. Much like a murderer who tells a friend of his plans beforehand, George Bush and his Administration made it clear to Tony Blair that he would invade Iraq even if it flew in the face of Customary International Law.

I go back to the ICRC statement that I quoted above that said, When a rule of customary international humanitarian law is violated but such violation is generally condemned by other States or denied by the State concerned, this practice tends to reinforce the rule rather than to weaken it.

Not only was Bush denying the fact that he planned to invade Iraq in public… he at the same time openly admitted to Tony Blair’s advisors that he did not want to follow the accepted paths toward legality and justification of his imminent invasion. This proves that the Administration knew what it was doing was against the rules… thus reinforcing the very Customs of International Law they eventually broke.

So as you can see there are actually two individuals guilty of breaking International Law when it comes to Iraq. Number one is of course Saddam Hussein, who ruled over his people in the worst possible example of a brutal dictatorship while at the same time invading his neighbours and committing terrible atrocities with banned weapons. And then there is George Bush, who may have the best of intentions but carried out his plans in a way that was absolutely contrary to established and accepted state law.

The Murdoch University document makes this astute observation,

… in practice, it is apparent the US will not face reprisal for its actions. It has highlighted the inadequacies of international law and the Security Council, to deal with the use of force by powerful states.

While it is absolutely correct, that does not mean that fault can not and should not be found and placed on the current US Administration. Our fore-fathers fought for Peace and Justice for all. That included themselves and I believe we all recognize that a civilicized society must bow first to justice and the rule of law if it has any chance of survival. This applies at the International level just as much as the Domestic level. Perhaps one day it will actually apply to all mankind equally.

Finally, I leave you with a link to a piece originally in Time in 1998 entitled “Why We Didn’t Remove Saddam“.

It was written by George Bush Sr. and Brent Scowcroft

To Quote:

Had we gone the invasion route, the U.S. could conceivably still be an occupying power in a bitterly hostile land. It would have been a dramatically different–and perhaps barren–outcome.

How right they were.

16 replies on “Customary International Law, George Bush and Iraq”

  1. In case someone has already read this post… I have added to the passage from the UK Memo.

    From the UK Memo (emphasis added):

    The Attorney-General said that the desire for regime change was not a legal base for military action. There were three possible legal bases: self-defence, humanitarian intervention, or UNSC authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult. The situation might of course change. The Prime Minister said that it would make a big difference politically and legally if Saddam refused to allow in the UN inspectors.

    Here we see that the UK Attorney General, and Tony Blair himself recognized that the standard justification for war, based in Customary Law, self-defense, could not apply. Previous UNSC resolutions were also legally not sufficient to force regime change in Iraq. (The Attorney General later reversed this opinion only days before the war was launched…)

    … original UK Memo quote…

  2. Blah, blah, blah. Words on screen. It’s like reading the Jesuits talking about how condoms are evil and bad.

    I’ll repeat the charge I made over at Smash’s place: you seem to value the process over the results.

  3. What results?

    You’ve turned the country into even more of a hell hole than it was before.

    That’s what happens when you don’t follow “the process”.

  4. Chris,

    Responding to your comment on Smash’s site, I would also agree that the utmost should be done to avoid war. But I disagree that we didn’t do this. How many resolutions were passed in the UN? How many times did Saddam violate those resolutions? And every day that we were politicking in the UN, how many innocent people died? Even if you argue that the violations were not serious enough to warrant regime change, NOTHING was done. A respect for the law must also come from those administering it, and yet the world sat by as Saddam gassed the Kurds with chemical weapons and “disappeared” dissenters. At some point, you have to say, enough is enough. I think 10 years of defiance is enough.

    As for making the country a “hell hole,” I would argue this claim as well. Consider the mass graves we regularly find there. How could this country now be any worse than it was under Saddam? Yes, their oil industry is a constant terrorist target. Of course, considering that Saddam and his people were the only ones who really benefited from it, I fail to see how this is any worse than before. Consider the fact that Saddam’s army was almost entirely conscripted. The new Iraqi army is composed of volunteers who are willing to risk car bombs, torture and an unmarked grave to serve their country. They have a parliament, which is not entriely friendly to the U.S., but is instead making their own decisions as a free nation. Sorry, that doesn’t sound like a hell hole.

  5. Okay, let’s go over that:

    1) The Marsh Arabs are no longer being targeted for genocide.

    2) The Kurds are no longer being targeted for genocide.

    3) The insurgency has been reduced to a band of serial killers.

    4) Saddam Hussein is no longer underwriting Hammas or the PLO.

    5) Yes there are huge challenges, but there are now three countries in the Middle East where women have the right to vote.

    I could go on and on, but it looks to me that you’re following the herd of people who read the big headlines and aren’t investigating the major rebuilding work taking place that isn’t getting the headlines.

  6. As I have posted at Smash’s:

    Let me but quote Dennis Prager:

    There were intellectually and morally honest arguments against going to war in Iraq. But once the war began, a moral person could not oppose it. No moral person could hope for, let alone act on behalf of, a victory for the Arab/Islamic fascists. Just ask yourself but two questions: If America wins, will there be an increase or decrease in goodness in Iraq and in the world? And then ask what would happen if the Al Qaeda/Zarqawi/Baathists win.

    The Law, which I have a great deal of respect for considering I work within the judicial system, is not an END but a VEHICLE for allowing people to live peacably together and as a baseline foundation of morality. When the LAW no longer acts morally, it is bad law. People who are concerned more with issues of good/evil do not make their judgment based on the question “but is it legal?” Chris merely uses the fiction of “international law” as a sanctimonious cover of his lack of courage of moral conviction.
    BTW Chris, I’ll remind you that the ICRC is no longer a “neutral” entity… it is anti-Semitic and increasingly anti-American. I don’t accept face value anything they say.
    And PUHLEEZE stop with the revisionism that “peace” marchers (the Stalinist ANSWER, NION and other Leftists) had ANY sympathy for the Iraqi people who suffered under Saddam. They STILL do not… As Smash published my pics of a “peace” march in San Diego… the Left’s answer to the Iraqi citizens who defied death to vote is to give them the middle finger.

  7. J-P.

    The vast majority of those mass graves were from incidents over a decade ago. Yes, Saddam was a brutal dictator. But at the time in of the invasion in 2003 the average Iraqi was not suffering genocide… the Kurds and Shia were largely protected by no-fly zones and much like the average Russian citizen under 50 years of Soviet rule, they simply lived their lives the best they could. The UK Attorney General, Tony Blair, Human Rights Watch and other NGOs all recognized that at the time the biggest problem facing Iraqis were the sanctions and useless OFF program.

    Darleen: The Marsh Arabs indeed have benefited greatly and the tragedies Saddam commited upon their unique environment are being reversed. This is a wonderful thing.

    The Kurds were no longer being targeted in 2004… indeed they hadn’t been for nearly a decade. They had their own defacto nation and were actually a symbol for democracy and stability considering their predicament. Now, that progress has been largely thrown out and they’ve been forced to start over and worse, deal with an insurgency and foreign jihadis that simply didn’t exist before the War.

    The insurgency has been “reduced” by whose count? The US Military itself has admitted that bombings and attacks have increased since 2003 and 2004.

    And on Women with the right to vote… what happened in Kuwait was wonderful last week. But the thought that it was because of the war in iraq is wishful thinking. The credit goes to the people and lawmakers in Kuwait. Nowhere else.

  8. I don’t know how the age of those mass graves. But ear amputations were from 2004 (a href=”” title=”see here”); what kind of a person does that? I don’t believe for a second that a person who orders ear removal for dissent is likely to stop this because of sanctions. Even if the age of known graves limits the justification for war (which I don’t agree with), how do we know there aren’t more mass graves from, say, 2001?

    We don’t – and we don’t know precisely because Saddam refused to comply with UN resolutions about his activities. And in response, the entire world (with the U.S. coalition as the sole exception) let him get away with it. We DO know that he shot at U.S. warplanes enforcing the no-fly zone almost every day of their mission; this is also not the type of action that encourages me to believe that he was playing it straight since the Gulf War.

    To this day he shows no regret for his actions.

    Chris, like I said before, I admire your optimism about ending the need for war. But some people require a sincere threat of force before they will stop terrorizing the innocent. The more we make empty threats, the more those kind of people will do as they wish. After a decade of subterfuge and obfuscation, someone had to do something. I would be interested in hearing your alternatives, if you care to post them (no sarcasm, I really want to know). But I think that Bush should be commended for doing something when no one else would do anything.

  9. I think the assumption the piece you quoted from says “it would make a big difference politically and legally” if Saddam allowed inspectors in. He did and they weren’t able to clear him.
    I would say that is a gray area.

    At the end of the day, a decision on whether Iraq is better off will be made by the Iraqi people. While there is some dispute on legitimacy of elected politicans, they certainly represent their people better than the American left… At last check Iraqi politicans are near unanimous on their view to accept US help
    (at least until) they have a constitution. Which is strange if they consider themselves worse off?

    Watch the trial of Saddam, that is what the left defends in the guise of setting higher standards for international intervention.

  10. “George W. Bush has unleashed a tsunami on this region,” a shrewd Kuwaiti merchant who knows the way of his world said to me. The man had no patience with the standard refrain that Arab reform had to come from within, that a foreign power cannot alter the age-old ways of the Arabs. “Everything here–the borders of these states, the oil explorations that remade the life of this world, the political outcomes that favored the elites now in the saddle–came from the outside. This moment of possibility for the Arabs is no exception.”


    The speed with which Syria quit Lebanon was astonishing, a race to the border to forestall an American strike that the regime could not discount. I met Syrians in the know who admitted that the fear of American power, and the example of American forces flushing Saddam Hussein out of his spider hole, now drive Syrian policy. They hang on George Bush’s words in Damascus, I was told: the rulers wondering if Iraq was a crystal ball in which they could glimpse their future.”

    From SMASH’s site by Faoud Jamami

    It’s interestsing that all leftists see no connection between Iraqi liberation and political changes (for the good) in other Arab and ME countries.

  11. Chris- in regards to your comments in 7) above, I would like to add my thoughts.

    A) As you note “most of the mass graves were from a decade ago.” Only a few were of recent vintage, and, hey, even brutal dictators are lawfully permitted to kill a few citizens now and then, right? Nothing that a few UN resoltuions can’t fix. Besides, it’s not like they are killing Canadian citizens, right?

    B) I am sure those Marsh Arabs did something wrong to deserve having their swamps drained. Some entity is apparently fixing the damage, but, of course, it could never be the United States.

    C) The Kurds hadn’t been targeted since 1994 or so. This was explicitly because Saddam was not such a bad guy after all, and had absolutely nothing to do with a US “no fly” zone and lots of Kurds with guns. Now the Kurds are dealing with an insurgency. In (your) fact, 95% of all “freedom fighter” attacks are now occurring in Kurdish terrotiry. The battles we hear about are actually instances where US soldiers massacre innocent Iraqis who were, um, flying kites.

    D) The insurgency is growing, because everybody knows that the US military lies about everything.

    E) Kuwaiti women are now voting because Kuwait is such an enlightened place, where diversity is respected, not some ignorant place like the US, where women have been voting for quite awhile.

    F) It must be really cool to live in a society where you can mouth platitudes about how war never solved anything. There would never have been enough justification for you, for the US to go to war. No amount of resolutions would have been enough.

    The sad truth is that, to you, nothing is worth fighting for. Millions of Iraqis and Afghanis today have the chance at a better life, and that has no value to you. You would consign them to the “safety” of a dictator’s collars, rather than hope they all have roughly the same opportunites that you do, to make their lives better.

    But, hey, you live in a peaceful, prosperous society. You can say anything you want to, and nobody is going to come arrest you for it. That level of hypocrisy is weird, but anyone who thinks George Bush is a war criminal and Saddam Hussein is not, is obviously someone whose moral compass is broken.

  12. Mitchell I will respond to this as the rest is just the same old sarcasm and lack of actually reading what I wrote.

    (Because if you had actually read what I had wrote you would have noticed that I consider BOTH Saddam and Bush a war criminal. That’s what happens when you COMMIT THE SAME CRIME!)

    “The sad truth is that, to you, nothing is worth fighting for. ”

    This is exactly the misconception that so many have of us “anti-Iraq-war” types that needs to be corrected.

    I, and many others who share my viewpoints on Iraq, am not a pacicifist. I do not believe that war is obselete or absolutely untenable.

    Saying something is an ultimate last resort is not the same as saying something must be banned outright.

    I, along with many others, believed that had the case for the Iraq war been more convincing. That is, the case brought to the UN that was based on 2 things only , WMD programs and Links to Terrorism (the 3rd, humanitarian case was only emphasized much much later) then many many more people would have supported the war.

    Many surveys done before the war indicated that support for the war spiked as soon as there was UNSC approval. Without UNSC approval, the invasion was opposed by every population outside
    the US.

    Indeed. Had it been found, incontrovertably, that Saddam had WMD in the quantities asserted by Bush and Co. or Saddam had refused to allow inspectors in after 1441… then the UNSC would have had no choice but to admit that Saddam was a threat.

    The fact is that that case simply wasn’t there. And now it has become clear that the initial WMD disarmament program after 1991 was highly successful in stripping Saddam of his capabilities.

    Let me repeat that… the *UN MONITORED WMD INSPECTORS SUCCESSFULLY DISARMED SADDAM*. They did it so well in fact that the whole world and the UN itself thought Saddam *must* have been hiding something, which he wasn’t.

    Mass graves and atrocities that happened 15 years prior are not a reason to invade a country. If it were then there would be a lot more countries that we’d be compelled to invade and topple. *That* is not an option.

    You talk about Hypocrisy when in fact what I am proposing is following a path that avoids hypocrisy.

    What is more hypocritical than punishing one leader for invading a country and not punishing the other 12 years later?


    This isn’t rocket science.

  13. No it surely isn’t rocket surgery or brain science. 🙂 What it is is rationalization with the benefit of hind-sight and a large portion of self-righteous indignation. But at least your traffic is picking up so there is an upside to all this blathering.

  14. Jane.

    Actually, it’s not hind sight. I’ve been saying this since before the war the started. As have the thousands of others. It was clear that if George Bush invaded Iraq, he would be breaking the law. He knew it, I knew it, the UK Attorney General knew it.

  15. International law has become a joke under the UN.

    I think I’m gonna take a break from Murkey View. It’s getting monotnous, same discussion every day…Bush bad, Bush broke law, Bush criminal, arrest Bush, punish Bush. I can only take so much of your balderdash. Need a rest. I’m ready for a real meaty discussion of world economics or something.

  16. Chrisale,

    You said: “The Kurds were no longer being targeted in 2004… indeed they hadn’t been for nearly a decade. They had their own defacto nation and were actually a symbol for democracy and stability considering their predicament.”

    This was only true because the U.S. enforced a no fly zone (sanctioned by the UNSC). Furthermore, the U.S. planes were considently shot at by Saddam (which I take to be an act of war).

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