Monday, June 12, 2006

Iraq War Implications for United Nations, Law and Just War

As I have written before, 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 possible alliance with Al-Qaeda, 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. My earlier posts have attempted to illustrate how justifications of the war in Iraq were constructed to appear legitimate, while an analysis of its claimed legitimacy suggests otherwise. With any pressure, brought on by even a cursory examination, this war stool falls flat. However, if these types of war justifications emerge as acceptable practice, there may be severely altering implications for both international law and perceptions of just war.

The US-led invasion of Iraq threatens severe consequences to customary international law, and the veracity of the UN Charter regime. The greatest threat lies in the international community not acting to refute the legitimacy of the political strategy expressed in both the 2002, and, as reformulated, in the 2006 United States National Security Strategy. The US-led 2003 invasion of Iraq 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 reverting to unconstrained aggression by and between states, with the added dimension posed by the activities of illegitimate non-state actors. As noted by Lori Fisler Damrosch and Bernard Oxman in an introductory article in the 2003 issue of the American Journal of International Law focused on the legality and impact of the Iraq war, “(t)he military action against Iraq in spring 2003 is one of the few events of the UN Charter period holding the potential for fundamental transformation, or possibly even destruction, of the system of law governing the use of force that had evolved during the twentieth century…. The implications of the war for the future of the international system may depend in some measure on whether the issue of its legality is limited to interpretation of Security Council resolutions applicable only to Iraq, or broadened to embrace the very meaning, utility, and vitality of the Charter’s basic provisions on the use of force and self-defense.”[1]

Just war doctrine has evolved through the centuries with the objective of defining a common understanding of how the horrors of war may be limited when war becomes the only possible means of human interaction; its objective is to avert conflict whenever possible and end conflict sooner rather than later if it must occur. Recognizing that peace is not the mere absence of war, the international community has seen to expand the just causes of war to include humanitarian intervention to avert human catastrophe and end further human suffering. Regime change, while perhaps a valid political objective is not an underlying tenant of humanitarian intervention as widely accepted by the states of the world. Recognizing that an argument for humanitarian intervention would not stand in the Iraq context, the US has attempted to frame democracy as a basic human right deserving of military intervention in order to bring about. If such an argument is accepted, the definition of humanitarian intervention would be expanded to incorporate engendering democratization through the barrel of a gun, or “at the tip of a spear”.[2] The potential consequence of this may be to allow states to justify military intervention into neighboring states to instill political systems acceptable to the intervening state. On the other hand, a failure to intervene in a country suffering under a non-democratic system, would engender feelings of double standards and thus adding fuel to already volatile senses of injustice around the world.

Essentially the debate around the US notion of preventive war is not only one that threatens to revert the world to a pre-Westphalian era, but also implies the acceptance as a moral given the right of a state that perceives a potential threat, rather than faces an actual imminent intent to harm, to take anticipatory military action. Such rationale harkens back to historic times of past millennia where the mighty to preserve their predominance would crush potential adversaries wherever they may be perceived. Such is the rationale which accepted that the mighty may do as they will and the weak as they must. Such is the rationale which based on potential threat scenarios justified a war resulting in death and destruction, with the unjustified loss of both blood and treasure. The moral trajectory set in motion by such thinking is imbued with notions of superior righteousness and conceptions of the future rather than an acceptance of the world’s diversity and a grip on reality. The world after the great wars of the last century chose to break such cycles which it identified as being immoral, but also self-harming. With respect to just war, the US-led invasion of Iraq serves to underscore and strengthen just war principles if 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] Damrosch, Lori Fisler and Bernard H. Oxman. “Editor’s Introduction” in The American Journal of International Law, (Vol. 97, No. 3, Jul., 2003, pp. 553-557 at 553-554). Stable URL: http://links.jstor.org/sici?sici=0002-9300%28200307%2997%3A3%3C553%3AEI%3E2.0.CO%3B2-I
[2] 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. 36), found at http://www.carlisle.army.mil/USAWC/parameters/04winter/wester.pdf

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