The Iraq War Stool

This is the third chapter of my paper on the 2003 Iraq war and its impact on international law and just war doctrine.

© 2005 justdahlia.blogspot.com
The War Stool

The 2003 US-led war on Iraq was mainly justified on the basis of the following three arguments:

1 - The US alleged that Iraq had weapons of mass destruction (WMD) and, was in flagrant contravention of numerous UN Security Council resolutions. The US and the UK argued that if the UN Charter regime was to maintain its legitimacy, the UN’s will must be upheld. In fact, it is argued that the invasion of 2003 is nothing other than a final battle in the war with Iraq which began in 1990 with Iraq’s invasion of Kuwait.[1] Such a long-view of the conflict with Iraq is argued as evidence that the US did not wage a preventive war against Iraq at all, but, in fact, the 2003 invasion was a culmination of Iraq’s refusal to respect its cease-fire obligations. It should be noted, however, that such a long-view argument was not relied on by the Bush administration. Rather, the argument was always framed in the context of the threat the Iraqi regime posed as evidenced by its continual flaunting of its cease fire obligations and disregard for SCR.

2 - The US alleged that Saddam Hussein, the President of Iraq, had links with Al Qaeda and thus, coupled with its possession of WMD, posed a threat in that it might attempt to collaborate with Al Qaeda by providing access to such WMD. Accordingly, the US asserted that it had the right and obligation to defend itself against possible future terrorist attacks especially after the events of September 11, 2001. The US referred to the self-defense clause under the UN Charter Article 51 and UN Security Council Resolutions 1368 and 1373, addressing terrorism, as giving it such a right. This US view on self-defense was captured in its 2002 National Security Strategy[2] and is here referred to as the Bush doctrine of preventive war. The US also pointed to the UN sanctioned attack on Afghanistan in ‘Operation Enduring Freedom’ as the basis for extending its ‘war on terrorism’ to Iraq. The US felt it was justified in demanding a ‘regime change’ as a political outcome to ensure that the threat of WMD falling into the hands of terrorist could be averted. The United Kingdom, it should be noted, did not rely on this justification.

3 - The government of Iraq was ruled by an irrational, thus undeterrable, tyrant who had committed crimes of aggression and crimes against humanity in Iraq, Kuwait and Iran. By bringing about ‘regime change’, the US-led coalition was ensuring long-term security to the world by eliminating one of its irrational actors. In addition, by bringing democracy to Iraq, the US was relieving the Iraqi people from suffering under a tyrant and allowing the Iraqi people to determine Iraq’s future. Thus the political objective of ‘regime change’ was also asserted as a valid humanitarian objective on the basis of an emerging norm of humanitarian intervention.

In summary, the events leading to the 2003 invasion of Iraq by the ‘coalition of the willing’ were framed, in the first instance, within international law and interpretations of the United Nations Security Council resolutions, and in the second instance on the Bush doctrine of preventive war. A third leg of the war stool rested on the concept of humanitarian intervention, an emerging norm of international law, which was constructed after the fact to provide balance to a teetering argument.

[1] See Franklin Eric Wester, “Preemption and Just War: Considering the Case of Iraq”, in Parameters, (U.S. Army War College, December, 22, 2004, Vol. 34, Issue 4, pg. 21-22), found at http://www.carlisle.army.mil/USAWC/parameters/04winter/wester.pdf , William H. Taft IV and Todd F. Buchwald, “Preemption, Iraq, and International Law, The American Journal of International Law, (Vol. 97, No. 3, Jul., 2003, p. 563), Stable URL:
http://links.jstor.org/sici?sici=0002-9300%28200307%2997%3A3%3C557%3APIAIL%3E2.0.CO%3B2-1,
and John Yoo, “International Law and the War in Iraq”, The American Journal of International Law, (Vol. 97, No. 3, Jul., 2003, pp. 563-576). Stable URL: http://links.jstor.org/sici?sici=0002-9300%28200307%2997%3A3%3C563%3AILATWI%3E2.0.CO%3B2-4
[2] See The National Security Strategy of the United States of America, September 2002 found at http://www.whitehouse.gov/nsc/nss.html [last accessed 3/18/2006]

The 2003 Invasion of Iraq: "Those who can make you believe absurdities can make you commit atrocities." -- Voltaire

The following is the first part of paper I wrote on the impact of the 2003 invasion and occupation of Iraq on international law and just war doctrine. I will post the remaining parts of the paper over the coming days.

© 2005 justdahlia.blogspot.com
ABSTRACT
The US Iraq war project rested on a three-leg stool, namely that the 2003 invasion was a valid and necessary response to over 12 years of Iraqi intransigence, was necessary to prevent Iraq from threatening the world with its assumed weapons of mass destruction and its alliance with Al-Qaida, and was necessary to bring to an end the suffering of the Iraqi people and usher in the dawn of democracy in Iraq and eventually the Middle East region. This paper attempts to illustrate how justifications of the war in Iraq were constructed to appear legitimate, while an analysis of its claimed legitimacy suggests otherwise. It further suggests that if such claims emerge as acceptable practice, there may be severely altering implications for both international law and perceptions of just war.

"Those who can make you believe absurdities can make you commit atrocities." -- Voltaire

Overview
This paper focuses on the 2003 invasion of Iraq in the context of the ethical and legal parameters of a just war. The justifications cited by the 'coalition of the willing' for their 2003 invasion of Iraq were based in the first instance on international law and interpretations of the United Nations Security Council resolutions SCR), and in the second instance on the Bush[1] doctrine of preventive war. A third leg of the war stool rested on the concept of humanitarian intervention, which was later constructed to provide balance to a teetering argument. All three justifications can be analyzed from the perspective of just war doctrine. To limit any revisionist pitfalls, there is no attempt to discuss the veracity of the claims made to justify going to war, nor of the veracity of claims made about events likely to occur after going to war, merely that such claims were made as justification for war suffices for analysis, irrespective of their validity. It is the weight and construction of these justifications, not their validity, which is being assessed.

In so far as international law is the structure within which much of the water for going to war was placed, it is here proposed that such arguments are leaky, at best. The majority of international legal and relations thinkers reject such arguments wholesale. While the European members of the 'coalition of the willing' based much of their arguments on interpretations of SCR, the US focused on the doctrine of preventive war. In the case of war on Iraq, this argument rested oconvolutiontion of the idea of 'war on terrorism' and the fear of Iraqi (nonexistent) weapons of mass destruction. The Bush Administration 'preventive war' doctrine, as prosecuted in the invasion of Iraq it led in 2003, it is here argued, may be an expression of a political and hegemonic prerogative, however, it is not a legally recognized one, nor is it just. Finally, any attempt to justify the invasion of Iraq in 2003 on humanitarian grounds fails the test of legitimacy for two main reasons: firstly, due to the post-facto nature of the claim, and, secondly, due to the failure of the situation to rise to the level of humanitarian catastrophe.

Key to refuting the validity of the Bush war stool construction requires analysis of its explicit preventive war doctrine, as well as debunking justifications based, for example, on the myth of 'benevolent hegemony' and the militant outcomes of democratization policies as espoused by neoconservative thinkers and exercised by neoconservative practitioners. While most realist thinkers are in agreement that the Iraq war was not in the US national interest, realism is often turned to as the default explanatory approach in cases of war and peace due to its reliance on the importance of material indicators of might and means. Nevertheless, liberal theory is useful in understanding many of the arguments for going to war, such as democratic transformation, humanitarian intervention and benign hegemony. Finally, constructivist thinking offers an opportunity to question the role of discourse, identity, politics of fear, and even, it is here argued, Orientalism. Ultimately, the underpinning of the continual discourse on the 'legality', 'justice', and 'humanity' of the war is the importance of identity. It is here suggested that identity, the desire to be identified as 'legal', 'just', 'benign', 'freedom-loving', and 'humanitarian', while more readily understood within a social constructivist approach, is based on traditional notions of natural law, morality and just war. While, various schools of international relations thought serve to cast light on the events and affects of the 2003 invasion of Iraq, the focus here will be an analysis of the war in terms of how the arguments for its legitimacy and ethics were socially constructed.

This paper contends that the 2003 invasion of Iraq is an illegal war of unjust cause, and, in turn, is being prosecuted unjustly. A just war rests on two elements: the justice of going to war (jus ad bellum), as well as the justice in prosecuting the war (jus in bello). With respect to the six elements of jus ad bellum, the US-led Iraq war seems to have applied only one adequately, namely a pronouncement of its intentions. Accordingly, the US war stool stands on wobbly legs and falls flat when assessed in terms of the criterion of a justly waged war. Jus in bello is based on the precepts of discrimination and proportionality, and the resulting tension between the two. Proportionality assumes, on balance, a positive outcome of the military imperative weighed against the costs, in terms of life and treasure. If the military imperative, or the cause of war, is seen to be unjust, there can be no net positive proportionality; a negative plus a negative serves only to sink us further into moral deficit.

Finally, the US-led invasion of Iraq has potential repercussions on customary international law and the principles of the UN Charter regime, while, at the same time, strengthening classical just war arguments. The greatest threat to customary international law lies in the international community not acting to refute the legitimacy of the political strategy expressed in both the 2002 and 2006 United States National Security Strategy. The US-led 2003 invasion of Iraq, a direct outcome of this strategy, has shaken the foundation of the international legal order, and unless international actors, states and organizations, address this backward-looking moral trajectory, there is a threat of the slippery-slope of reversion to unconstrained aggression by and between states, with the added dimension posed by the activities of illegitimate non-state actors. With respect to just war, the US-led invasion of Iraq serves to underscore and strengthen just war principles not only because it stands as such a stark illustration of injustice, but also because it proves that the morality and self-interest that underscores just war principles is validated.
[1] Unless otherwise specified, references to Bush or Bush administration apply to George W. Bush, and/43rdis administration, the 43rd President of the United States of America.