The War on Iraq as Illegal and Illegitimate*
by David Krieger
The Iraqi dictator must not be permitted to threaten America and the world with horrible poisons and diseases and gases and atomic weapons.
George W. Bush, October 7, 2002
"I think unless the United Nations shows some backbone and courage, it could render the Security Council irrelevant."
George W. Bush, February 17, 2003
We now know that there were no weapons of mass destruction in Iraq, as repeatedly alleged by Mr. Bush and other members of his administration. And contrary to Mr. Bushs allegation that the United Nations showed no backbone and courage, the Security Council did, in fact, stand up to the Bush administrations pressure and did resist authorizing war prior to the UN weapons inspectors completing their task. It was the Bush administrations impatience with the Security Council process and unwillingness to abide by it that led them to initiate an unauthorized attack on Iraq in violation of international law. Although the war in Iraq is widely regarded throughout the world as illegal under international law, few consequences seem to be flowing from this in holding to account the perpetrators of the war, including leading figures in the Bush administration. At issue is a view often articulated by detractors of the war, such as former Secretary of State Madeleine Albright, describing the war in Iraq as a war of choice, rather than a war of necessity.1 This would suggest that those with sufficient power have choices in matters of war and peace in which they can initiate war without being held accountable; or, at best, be held accountable only by the democratic process of defeat in the next election. The implication is that an illegal war of aggression, while it may be neither wise nor necessary, is a prerogative of power. The two main justifications offered by the Bush administration for the war against Iraq prior to its inception have by now been completely discredited. First, administration spokespersons repeatedly pointed to an imminent threat that Iraq would use weapons of mass destruction against the US or its allies, or would transfer these weapons to terrorist organizations. UN weapons inspectors in Iraq prior to the war reported that they were not finding weapons of mass destruction and needed more time to complete their inspections. The Bush administration, however, continued to assert that Iraq had such weapons, despite a lack of credible corroboration, and finally warned the UN inspectors to leave Iraq before the US initiated what they called a preemptive war. Secretary of State Colin Powell, in his presentation to the United Nations Security Council, asserted without question that the US had knowledge of Iraqi weapons of mass destruction and proceeded to produce intelligence photographs of the sites where they were being manufactured and stored.2 His assertions turned out to be false. In the aftermath of the war, no weapons of mass destruction were located in Iraq, despite extensive efforts on the part of UN inspectors and US military personnel. This wholly discredited the numerous pronouncements by members of the Bush administration that they not only knew there were such weapons but even knew where they were located within Iraq. The second justification for the war made by the Bush administration prior to initiating the war was that there was a link between Iraq and the Al Qaeda terrorist organization. The evidence establishing this link has also proven to be false or, at best, extremely tenuous. This led the US to come up with new post hoc justifications for the war, such as the assertion that Saddam Hussein was a bad man and evil dictator, even though the US supported Hussein despite his poor human rights record when it believed that it served its interests to do so. While the latter, after-the-fact justifications may be true, they do not make an effective case for legality, or even legitimacy, of an aggressive war initiated without UN authorization. If allowed to stand unchallenged, the US initiation of war on Iraq and the rationale that permitted it could set an extremely dangerous precedent. Such actions could also undermine the legal and normative system to prevent wars of aggression, centered in the United Nations and enunciated in the Nuremberg Principles, which were the basis for the trials of Axis leaders in the aftermath of World War II. The Nuremberg Principles list Crimes against peace as first among the crimes punishable under international law and define Crimes against peace as: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation of a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). The words of the US chief prosecutor at the Nuremberg Trials, Justice Robert Jackson, are relevant. Jackson was adamant that the true test of what was done at Nuremberg would be the extent to which the Allied victors, including the US, applied these principles to themselves in future years. In his opening statement to the Court, Jackson placed the issue of victors justice in context: We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanitys aspirations to do justice.3 Such aspirations to do justice included for Jackson applying the law equally and fairly to all. If certain acts in violation of treaties are crimes, he stated, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.4
[SIZE=+2]By DANIEL BACHER[/SIZE] [SIZE=+3]B[/SIZE]urns Weston, Director of the University of Iowa Center for Human Rights and a leading authority on international human rights law, contends that the U.S. and British war in Iraq was completely illegal, according to the existing body of international law regarding military interventions. Weston's contention occurs at a time when human rights activists in many countries are filing lawsuits against the U.S. and British governments for war crimes in Iraq. A Belgian lawyer on May 14 filed a suit against General Tommy Franks, commander of U.S. forces in Iraq, under Belgium's law that allows its courts to try foreigners for war crimes. Lawyer Jan Fermon filed the suit in a Brussels court on behalf of 19 Iraqi victims of cluster bombs and U.S. attacks on ambulances and civilians. The Bar Association of Athens, Greece said it will also file a suit against British officials, including Prime Minister Tony Blair, at the International Criminal Court - the recently created tribunal for cases of war crimes, crimes against humanity and genocide. The long implications of the illegal intervention in Iraq - and so-called anti-terrorism laws like the Patriot Act - are alarming for the future of our country and the world. What Weston and other human rights experts see in Iraq - rather than a "Pax Americana" - is the imposition of an aggressive military empire designed to control resources to offset future economic competition from the European Union (EU) and China. "Our country is moving further and further into a peculiarly American type of fascism that has its roots in the belief that international law doesn't matter," said Weston. This is strong, powerful talk for a legal scholar who carefully prefaced his talk by emphasizing that he wasn't a pacifist and believed that "use of force to depose Saddam Hussein may have been necessary." Weston, at a talk sponsored by Sacramento Yolo Peace Action and other peace and human rights groups in Sacramento in May, went point by point through how the Iraq War violated Articles 51 and 39 of the United Nations Charter and other international laws. Article 51 of the U.N. Charter provides that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." Bush and Blair tried to justify the intervention on the presence of so-called Weapons of Mass Destruction (WMD) and by drawing an implicit connection of the Hussein regime to Al Quaeda. "Neither of these contentions stood the test of scrutiny," said Weston. "No WMD ever existed at the ready with a hands-on-the-trigger scenario. Not only were these weapons ever found, but there is no evidence that they could have been deployed even if they had been found." Regarding Bush and Blair's claims that Saddam supported "terrorism," Weston said it was "difficult to believe that there was any serious connection with Al Quaeda, especially when bin Laden saw Saddam as an infidel, although he supported Hamas and Hezbollah." "To suggest suicide bombings - terrorism for self determination versus messianic terrorism - are comparable to Al Quaeda is pretty serious offense to common sense," said Weston. Bush - rather than advocate for "preemptive war" against an immediate threat - developed a doctrine of "preventive war" for a country supposedly considered a long term term threat. The concept of "preventive war" is illegal under Section 51, according to Weston. The second article justifying water under the U.N. Charter is Article 39, that provides the three circumstances for the use of force: (1) a threat to peace, (2) a breach of peace and (3) an act of aggression. "Bush kept insisting on Article 39, that there would be serious consequences against Iraq if they didn't comply with the Security Council's wishes, but most of the Council didn't buy into it," said Weston. U.N. Resolution 1441 didn't authorize the immediate use of force, only the inspections for WMD in Iraq. "The war wasn't authorized by Article 39, so it was an act of aggression by Bush and Blair," said Weston. Under the standards of the Nuremberg trials, the war in Iraq is considered a crime against peace. "If the regime engages in war crimes, the architects of the war are considered war criminals. Therefore Bush and his entourage are war criminals under international law," concluded Weston. Another justification for the war by Bush and Blair was the previous authorization of force by the U.N to go to war over Iraq's invasion of Kuwait. However, Resolution 687 brought the Iraq war to an end and previous agreements were terminated. "I can't see how the UN Charter could possibly justify what Bush and Blair did in Iraq this year," added Weston. There is one other possible argument - that the Iraq intervention was required as a humanitarian intervention under international law when there is an act of genocide that requires to state or group of states to intervene swiftly enough to stop the slaughter of innocent people. "It was on this basis that I defended Clinton on the intervention in Kosovo," he said (an intervention that many in the audience, including myself, adamantly opposed). "However, it was a very bad precedent that Bush didn't even go to the Security Council asking for humanitarian intervention," said Weston. "It is transparently laughable that the U.S. intervened to bring human rights to Iraq. The new national security strategy, as outlined in the Project for a New American Century, calls for unchallenged U.S. military power throughout the world to engage in preemptive strikes against potential opponents and to avoid even going to the U.N. for authorization. Calling themselves the "Straussians," they argue for a interpretation of Ancient Rome that it is OK for imperial powers to vanquish those who didn't live up to their standards of "civilization." But besides imperial hegemony and control of world resources, there is a second reason for U.S. intervention, a "burning interest" by the U.S. military and the weapons manufacturers to test out new weapons in the field, said Weston. "International law was fundamentally violated," concluded Weston. "There were alternatives. First, Saddam could have been contained. Second, there was always the possibility of the multi-lateral use of force with legitimacy - and allow 3 more months of inspections." By spending taxpayers' money on military adventures, the Bush administration has taken money that could have been better spent for feeding people, building schools and economic and social development in the U.S. and throughout the world. "The law has to be applied to everyone equally," Weston concluded. "However we have a bankrupt political process where the Democrats serve as door mats for the Bush administration. The media has completely forgotten their Fourth Estate role. The American people have allowed Bush to seduce us into a self absorbed fear after 9-11 - and a lot of the American people have bought into it." Is there any room for optimism? Weston points to February 15, an extraordinary event in U.S and world history, when unprecedented millions of people joined in a world wide movement against intervention in Iraq, protesting not just war, but affirming "the right to peace." Indeed, this is the "Second Super Power" that has emerged to challenge the national security state that kills people abroad while destroying our rights here at home. "We need to engage in the same vigor and sense of purpose that the Republican Party engages in," he said. "This year's worldwide protests sent us a tiny ripple of hope that we need to build on to sweep down the walls of oppression." Daniel Bacher can be reached at: [email protected]
