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;
- Widespread repetition by states of similar international acts over time (state practice).
- Acts must occur out of sense of obligation.
- 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:
- 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 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. Convincing proof of an imminent attack must be present in order to justify an anticipatory use of force.
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.
- 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 â€˜risk embodied in allowing the Iraqi regime to defy the international community by pursuing weapons of mass destructionâ€™ was sufficient to justify pre-emption and, viewed in the context of past actions of Iraq and threats posed over a â€˜protracted period of timeâ€™, lawful under international law. 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:
“â€¦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.â€
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
- invade Iraq with or without UN approval (ie. the consensus of states as expected in Custom),
- without publishing of material (ie. proof of threat) and
- 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
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.