The Iraq War Project, International Law and Just War

© 2006 justdahlia.blogspot.com

Hypocrisy is rife in wartime discourse, because it is especially important at such a time to appear to be in the right…. The hypocrite presumes on the moral understanding of the rest of us…. If we had all become realists like the Athenian generals or like Hobbists in a state of war, there would be an end alike to both morality and hypocrisy. We would simply tell one another, brutally and directly, what we want to do or have done. But the truth is that one of the things we most want, even in war, is to act or seem to act morally.
Michael Walzer, Just and Unjust Wars [1]

The 2003 invasion of Iraq is not only in contradiction to norms of customary international law as well as positive international law, but also should be considered a war of unjust cause, and, in turn, is being prosecuted unjustly. From Aquinas to the Scholastics to Grotius and Kant, just war doctrine, and natural law’s concept of jus gentium, has emerged as a constitutive element of both customary and positive international law[2]. Accordingly, any assessment of the construction of the Bush Iraq war stool requires an understanding of the constitutive elements as they relate to international law, and, more broadly, to just war doctrine.

As a preliminary note to limit any revisionist pitfalls, there has been no attempt to discuss the veracity of the claims put forth by the Bush administration or any other member of the ‘coalition of the willing’ 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 intellectual construction of these justifications, not their validity, which is being assessed. This distinction is important because even if the argument for war was deemed to rest on both valid legal and moral grounds yet the factual claims underlying the arguments turned out to be unfounded due to faulty intelligence or intentions, or both, the debate would then revolve around a revisionist assessment of who knew what, when and how, and what was done with the information, rather than an assessment of the validity of the war project itself. The fact that all such claims have proven faulty, at best, post-facto only underscores the value of adhering to accepted legal and moral standards as preconditions to engaging in a war project. The focus here is on whether such standards were met and the potential implications of such practice being accepted as a new legal and moral benchmark.

Jus Ad Bellum
Just war doctrine has developed over the past two thousand years (or longer if a non-Euro/Christian centric view is taken) as the guiding normative framework for affairs of war and peace between peoples and states.[3] As the doctrine has evolved, distinction is made between two components of just war, namely, the justice of going to war, jus ad bellum, and justice during war, jus in bello.[4] With respect to jus ad bellum, the focus of the analysis here, the overwhelming majority of recent just war ethicists agree that there are six components that require satisfaction for a war to be deemed as justly waged,[5] namely, proper authority, just cause/intent, public declaration, proportionality, last resort and probability of success.[6] The analysis will involve an assessment of how satisfactorily elements of these components applied in the context of the war in Iraq, which, when relevant, will involve a normative application of international law.

Proper Authority – No United Nations Sanction
An essential prerequisite of jus ad bellum rests in the legitimacy of the party waging war on another party; this principle is captured in the concept of ‘proper authority’. On the level of municipal actions, proper authority is derived from the governing laws of the state. In the arena of international relations, states, in joining the United Nations, recognize such authority to be with the Security Council. Increasingly, an emerging norm of authority is being recognized at a regional level, as well, such as in the case of the actions of ECOWAS in west Africa and NATO in the Balkans, especially when such regional groupings are recognized by the UN and are granted observer status. While such regional action was not sanctioned by the United Nations prior to the military action, in neither case was the action decried. In the case of NATO, a draft resolution to condemn the intervention in Kosovo was resoundingly defeated in the Security Council by a vote of 12 to 3[7], and in the case of ECOWAS, actions in Liberia, Sierra Leone and Cote D’Ivoire did not even engender Security Council debate, while later SCR commended ECOWAS peacekeeping efforts post-facto.[8] The ad-hoc action of a coalition of states, acting under no particular organization, either the UN or a recognized regional pact, such as in the case of the action in Iraq by the ‘coalition of the willing’, can be seen to lie at a lower level of authority. At the lowest level of authority lies unilateral action of a state. Such a delineation of levels of authority suggests a continuum from an extreme of ‘proper authority’ under the consensus explicit in a Security Council resolution to the lowest level of a lack of authority explicit in unilateral military action taken by a state with no sanction either from an international body or even a coalition state. Such a conceptualization is depicted in Figure 2[9]. The analysis is based on the four levels of authority discussed plotted against the level of international consensus implied by that level of authority. The consensus parameter only serves to depict the relationship of state approval/acceptance implied by levels of authority and as such is a latent descriptor and not an explanatory variable. Within this framework is plotted various military actions post-1945 with the start of the UN Charter Regime.

Figure 2: Proper Authority Continuum - missing (to be uploaded later)
* Note: In the case of NATO in Kosovo and ECOWAS in Liberia, the number of consenting states is imputed from the number of member states of the organization itself, in addition to the remaining number of UN member states less dissenting states in GA and SC debates. See Gray footnote 46 and Simon Chesterman, Just War or Just Peace?, (New York: Oxford University Press, 2001).

The above analysis illustrates the significance of proper authority in just war. To the extent that war can be just, the justice must be perceived by the states that are called upon to accept this justice. To the extent that international law is predicated on an expression of the consent of the community of states, proper authority can only rest with the organizations that represent such consent. In view of this, did the US-led action in Iraq in 2003 fulfill the jus ad bellum criterion of ‘proper authority’, or does it belong in such a low rating on the ‘proper authority’ continuum as depicted in Figure 2? Such an answer can be sought from an analysis of the events within the Security Council leading up to the March 2003 invasion.

Determining proper authority in the case of the war on Iraq depends on the argument being put forward to justify the invasion. As noted, the war in Iraq has been argued both as a case of preventive war, implying unilateral action, as well as a case of a final battle in the war begun in 1990 with Iraq’s invasion of Kuwait and Iraq’s subsequent refusal to fulfill its ceasefire obligations, thus invoking United Nations authority. In the case of humanitarian intervention, the third justification, proper authority would also rest with the United Nations, or, based on emerging practice, on a regional organization, such as the Arab League, or possibly, NATO. In the case of Iraq, the US did seek NATO support but was rejected, and the Arab League condemned any action against Iraq. At this point, the US and the UK directed their appeal for consent to the United Nations Security Council. When this was rejected, the US with an ad-hoc coalition invoked the right to self-defense under its newly crafted doctrine of preventive war. It should be noted, however, that the UK and most other members of the ‘coalition of the willing’ did not rely on the US preventive war argument, and, instead, relied on interpretations of SCR. What then was the Security Council debate under question?

Between August 1990 and May 2003[10], the United Nations Security Council issued fifty-seven resolutions (SCR) concerning Iraq. In 1990, the SC unanimously passed resolution 660 condemning the Iraqi invasion of Kuwait. A few weeks later, it issued resolution 678 again calling upon Iraq to comply with relevant resolutions and authorizing member states to use all means necessary to force Iraq to comply. Thus, for the first time in its history, the United Nations had invoked Chapter VII military action against a UN member state. In March 1991, the SC passed SCR 686 which declared an end to hostilities against Iraq. SCR 687 then called upon Iraq to unconditionally accept weapons inspections and set up the UN-managed inspection regime of Iraq’s military capabilities including WMD program. During the rest of the 1990’s and up until SCR 1441 of November 2002, the UN had cited Iraq for numerous infractions of its inspection obligations. SCR 1441 warned of serious consequences, but stopped short of using the same language of SCR 678 authorizing the use of force. It should also be noted that all military actions undertaken by the US and the UK in monitoring and enforcing the ‘no-fly zones’ in the north and south of Iraq during the 1990’s were undertaken without SC authorization. From this scenario, emerged the debate for and against military action against Iraq based on two opposing readings and interpretations of the relevant SCRs.

Those in favor of military action argued that the situation in Iraq represented ongoing action against Iraq as a result of its invasion of Kuwait in 1990. Accordingly, as Iraq was in material breach of its cease-fire obligations, SCR 1441 automatically invoked the authorization to use force under SCR 678. Those opposing such an interpretation argue that there was no automacity implied in SCR 1441, and, in fact, during debates it was made clear by most members of the Security Council that SCR 1441 should not be interpreted as automatically invoking SCR 678. It is due to the strength of this position that the UK called upon the US to request a second explicit resolution from the SC authorizing the use of force. When France declared that it would veto any such resolution, the US and the UK offered none. Instead, the US and the UK reverted to their earlier position, asserting that SCR 1441 offered all the sanction they needed. The majority of the member state of the UN disagreed with this position. In fact, the UN Secretary General took the unusual step of declaring the war in Iraq to be illegal.[11]

As noted by Vaughan Lowe, by far the greatest argument against the action in Iraq as having been undertaken with proper authority is the sheer weakness of the argument which pales in the face of the enormity of what is being justified, namely war resulting in massive death and destruction. “It is said that Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required, if that had been intended. That raises a more basic point. It is simply unacceptable that a step as serious and important as a massive military attack upon a State should be launched on the basis of a legal argument dependent upon dubious inferences drawn from the silences in resolution 1441 and the muffled echoes of earlier resolutions, unsupported by any contemporary authorization to use force. No domestic court in the United States or the United Kingdom would tolerate governmental action based upon such flimsy arguments.”[12]

Just Cause/Intent – Regime Change and Humanitarian Intervention
Having a meritorious cause is a basic tenet of jus ad bellum and just war doctrine. Just cause from Aquinas to Vitoria and Suarez is seen to exist in one of two postures, defensive and offensive, where the former is intended toward defending against an impeding injustice and the later intended towards rectifying an injustice having occurred. The modern equivalent of this dichotomy is self-defense and justifiable intervention such as in the case of an outright aggression. In either case, the objective is to restore the status quo ante bellum. Recent departures from this later requirement arises in the case of humanitarian intervention as an emerging norm of justifiable intervention, which by definition, may not result in a restoration of the pre-war condition since that was the condition which precipitated the intervention to begin with. In such an instance, the criteria becomes whether or not the intervention was to avert or stem an overwhelming human catastrophe, and where the intended beneficiary of the intervention should be the people of the state being intervened in. Retribution is not an element of just cause.

In the case of the 2003 Iraq war project, if one takes the position that the 2003 invasion was a continuation of the 1991 Gulf War as a final battle in one war effort, then jus ad bellum requirements of just intent become moot. However, this first requires an acceptable and cogent argument that it is indeed a continuation of the 1991 war effort and it assumes that such an argument was made by the US and its allies. In the first instance, as noted in the earlier discussion concerning proper authority, the US and the UK failed to convince the majority of states that military action was indeed an automatic outcome of Iraq’s 1990 aggression against Kuwait. However, in the second instance, while the European members of the ‘coalition of the willing’ based much of their arguments on such interpretations of the Security Council resolutions, the US focused on the doctrine of preventive war as expressed in its 2002 National Security Strategy.

The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. …. the United States cannot remain idle while dangers gather.
United States National Security Strategy, 2002

Preventive war, to be understood as distinct from preemptive war, is not a recognized principle of either international law or just war doctrine. For further clarity, preemptive war arises when, in self-defense, a state acts with military force to avert a clear, present and imminent danger.[13] Such a right of self-defense was upheld in the Caroline case in 1837.[14] On the other hand, “[p]reventive war has no legal or ethical sanction, because the threat is neither clear nor present.”[15] The Bush Administration’s 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 legal one, nor is it just. As noted by Arthur Schlesinger, advisor to President Kennedy, “[O]ne of the astonishing events of recent months is the presentation of preventive war as a legitimate and moral instrument of U.S. foreign policy.”[16]

As a result of the events of September 1, the United Nations issued SCR 1368 and 1373 which raised acts of terrorism to the level of threats of national security legitimizing self-defense action under Article 51 of the UN Charter. It is on this basis that the US led its invasion of Afghanistan; it is this argument that the US predominantly relied on to justify war with Iraq. While in the case of Afghanistan, the US was defending itself against Al Qaeda and their state-protectors, the Taliban, in the case of war on Iraq, the argument rested on a conflation of the same ‘war on terrorism’ and the fear of Iraqi (nonexistent) weapons of mass destruction falling into the hands of Al Qaeda. The US rationale for preventive war with Iraq fails the test of legality for the following reasons:

1 - The basis for a state’s right to claim both self-defense and collective self-defense emerges from the UN Charter, Security Council resolutions and case law including the Caroline and Nicaragua[17] cases. This right was extended to include terrorism both by UN SC Resolutions 1368 and 1373 as well as the UN sanctioned strike against Afghanistan. While there is indication that both customary international law and the United Nations recognize the right of a state to defend itself in the face of state-sponsored terrorism, the requirements of necessity and proportionality still apply, neither of which exists in the case of Iraq, which had never attacked, threatened to attack or supported terrorists against the US or any of its allies. If there is no necessity, there can be no case for proportionality and thus no case for collective self-defense. Furthermore, while the US and Israel have argued that terrorists can be hit no matter where they reside, international law has not yet recognized such indiscriminate pursuit within a third-party state especially if no support to the terrorists can be attributable to this third party state.

2 - As a result of the 1991 Gulf War, the UN instituted a regimen of economic sanctions and weapons inspection against Iraq in line with UN Charter Chapter VII and specifically Article 41 and 48. Those in charge of these programs declared to the UN that there were signs that such sanctions and inspections were working[18]. At the UN, France spoke to the general belief among UN member states and against the US/UK claims and declared that the inspections should be allowed to continue. The US-led ad-hoc coalition decided to disregard international opinion and the jurisdiction of both the UN and the IAEA, specifically Article 48 which stipulates that the Security Council is to decide which member states are to take action, thus putting itself outside the internationally recognized realm of legal remedy.

3 - However, even despite this and assuming that Iraq did possess weapons of mass destruction, international law does not sanction a war against another state for merely possessing such weapons. Even Bush’s own doctrine of pre-emptive strike assumes that there is at least the threat of a potential attack. The UN Charter under Article 42 requires the UN to declare when and if there exists a potential threat to the peace, let alone an actual breach of the peace. Furthermore, first-resort remedies should be in favor of peaceful means in the absence of imminent threat. There was no imminent threat, there was no expressed threat, there was no clandestine threat, and there was no real or legal basis for a determination of a threat to peace and security of the US or any of its allies. Thus, the US defense of its war against Iraq is both illegal as a basis and factually erroneous in substance, as was declared before the US-led military action against Iraq.

The third reason given by the US for invasion of Iraq is that it was to free the Iraqi people of a brutal dictator and thus bring about regime change and democracy. ‘Regime change’ is not a justification recognized under international law, nor is it a principle that can satisfy the jus ad bellum requirement of just intent that the status quo ante bellum be restored. In fact, it can be argued that it is in direct contradiction to both customary and UN-recognized law of the sovereignty of nations as reaffirmed in the UN General Assembly Resolution (2625 of 1970) on Principles of Friendly Relations Among States[19]. Regime change which results from legitimate action taken against a state may be an acceptable consequence, but it cannot be a rationale in itself for the action.[20]

Furthermore, a political objective of ‘regime change’ should not be confused with a humanitarian objective of ‘regime change’. The former entails a change to achieve an outcome desired by the belligerent for the benefit of the belligerent; the latter assumes an action whose prime objective is to benefit the oppressed people suffering under the would-be vanquished tyrant. One is self-serving; the second serves others. As noted by Dominic McGoldrick, “the legal debate on the Iraqi crisis was not conducted by states in terms of the doctrine of humanitarian intervention. That doctrine had been invoked by the UK for its military intervention in Kosovo in 1999. For the US ‘regime change’ in Iraq was an explicit war objective… A number of states made statements in the SC debates to the effect that action aimed at regime change was contrary to international law. It is interesting to note that the humanitarian intervention argument has become more prevalent in the debates on the Iraq War as clear evidence weapons of mass destruction has not been found. Such retroactive justifications should be treated with much caution.”[21]

As it turned out, Iraq had no weapons of mass destruction as had been concluded before the invasion and reported by both the head of the UN weapon’s inspection effort, Hans Blix[22] and by Mohamed Elbaradei, the head of the IAEA. Furthermore, both the intelligence communities of the US and the UK had concluded before the initial invasion that Iraq had no links with Al Qaeda, let alone to the events of 9/11[23]. While not accepting the reality of such conclusions, the US then began to place greater efforts in emphasizing that its war was aimed at serving the Iraqi people to save them from its brutal dictator and usher in a new era with a government of and for the Iraqi people based on democratic values and freedoms. However, as noted above and argued by Christine Gray[24], among others, retroactive arguments of humanitarian intervention, render them questionable, at best.

Humanitarian intervention, nevertheless, is emerging as a valid element of customary international law with a potential impact on traditional notions of state sovereignty. A point made by the recent United Nations backed The Responsibility To Protect project and report[25], is that state sovereignty must be viewed as a conditional right of states contingent upon their ability to protect the human rights of its citizenry. Accordingly, it becomes the obligation of ‘freedom-loving’ states to stand up for those citizens whose rights are being abrogated by tyrants or rogue elements because their states have failed to protect them. However, to rise to the level of a situation requiring an intervention, the scale of the offense must be so grave that the intervention is necessary to avert or stem a human catastrophe. While there is every indication that Saddam Hussein committed crimes against humanity, such offenses occurred years earlier (and in many cases with the full knowledge, at least, of ‘freedom-loving’ states of the world), no such human catastrophe was being perpetrated or threatened at the time preceding the invasion which may have been used as a legitimate cause for intervention. In fact, the only indication of Iraqi human suffering was occurring during most of the decade following the first war on Iraq in 1990 as a result of the economic sanctions imposed by the United Nations and unilaterally militarily enforced by the United States and the United Kingdom. Thus, an argument for humanitarian intervention in the case of Iraq in 2003 amounts to nothing less than delayed retribution for past acts with no cause for immediate action.

Public Declaration – Explicit Intent Fully Declared
Jus ad bellum conditions require the invading/protagonist state to announce its intentions so as to offer opportunity to the antagonist to the conflict (the supposed errant causing delict) to take necessary and required action to avert the war. In the case of the 2003 Iraq war project, the US and the UK made their intentions ultimately clear during the weeks and months leading to the initiation of hostilities. To avoid a war, on March 17, 2003 the US imposed a 48-hour ultimatum[26] to Saddam Hussein and his two sons to vacate Iraq. The first military strikes were on March 19, 2003.

Proportionality – Expecting the Gain to Outweigh the Pain
Jus ad bellum’s fourth element of just war concerns the expectations of the war effort in that the expected good from the overall destruction caused by the use of force is expected to outweigh the harm caused, or, in other words, comparative justice results when a lesser evil emerges from an action such that the suffering in bello and post bello is proportionally less than the suffering ad bellum. Thus, the objective of proportionality is to avoid war if its cost in terms of “blood and treasure” outweighs the cost of nonintervention. Implied in this conundrum is an assessment of the actual gains from the Iraq war in light of the losses. However, that would involve a post bello assessment whereas the operative element of the equation is the expectations ad bellum. In other words and according to the argument used, there was the assumption that, if the war was just, by not going to war, the impact on Iraq and the world would be far worse. Accordingly, a proportionate response would necessitate action to achieve a better outcome for all the parties concerned. Without engaging in post bello assessments, was such an assumption reasonable at the time? In other words, did the US have reasonable cause on March 18, 2003 to believe that the world was worse off than it would be on March 20, 2003? As noted, the majority of the world disagreed with the US assessment. The fact that the rest of the world turned out to be right, is not the indicting fact here. What is indicting is that had the US allowed for proper application of the proportionality criterion, the greater evil may have been avoided.

Last resort – Defining Imminence
In the absence of imminent threat, is war ever a last resort? In other words, if there is no time-sensitive reason for going to war today rather than tomorrow, is there not always something other than war that can be resorted to first? Aside from the logical and philosophical rhetorics of such a question, last resort is an operational element of jus ad bellum. As noted by the weapons inspectors from Hans Blix to Mohamed El Baradei, the inspections were working, yet more time was needed to accomplish the mission.[27] Since Iraq, as noted earlier, had not threatened the US or any other member of the ‘coalition of the willing’ (or any other state, for that matter), nor was there any evidence of a clandestine threat, imminence was not a credible argument in the rush to war. As ably argued by Michael Walzer, Saddam Hussein was a threat, but not an imminent one, and, thus he supported options short of resorting to war. He argued before the war started, “[t]he right way to oppose the war is to argue that the present system of containment and control is working and can be made to work better. This means we should acknowledge the awfulness of the Iraqi regime and the dangers it poses and then aim to deal with those dangers through coercive measures short of war.”[28]

Probability of Success – Depends on Definition of Success
The final component of jus ad bellum aims to avoid pointless efforts to either wage war or defend against it. In other words, just cause if not backed by adequate might cannot result in justice and only yields yet more carnage. Assumed in such a calculation is the definition of success. If success is measured in terms of military objectives of vanquishing an enemy, then the assessment becomes a material calculation of might. However, if success entails rectifying an injustice such as in the case of a humanitarian intervention involving regime change and encompassing an occupation, then calculation of success extends beyond military might.

Clearly in the case of the US-led Iraq war project, immediate military success was a high probability. However, the US declared objectives, and thus its assessment of success, extended beyond mere decapitation of the Iraqi regime and decimation of its armed forces. Success, as defined by the US, entailed regime change, disarming, democratization and social, institutional and economic reconstruction. Calculating a probability, by definition, entails a reasonable assessment of all required inputs and a reasonable anticipation of all possible outcomes. Without resorting to revisionism, did the US prior to invading Iraq have a plan that would result in a high probability of success in terms of its war objectives? Did the US and its allies request adequate monetary resources for the post-bellum reconstruction? Did the US put forth adequate plans to win the “heart and minds” of the Iraqi people so as to ensure an avoidance of civil strife and the possibility of democratization? Did the US and its allies engage regional states, with the most to gain from a stable Iraq, let alone the states of the world, to ensure their participation in rebuilding post-war Iraq? If the answers to these questions is no, as the majority of the states in the United Nations saw it at the time, then the US and its allies failed to define their war objectives in such a way as to claim a high probability of success. As noted earlier, in the case of the 1991 Gulf War, the parameters of success were clear and achievable. In the case of the 2003 Iraq war project, success was as elusive as the war objectives were questionable.

Jus In Bello
This paper’s focus is on the road to the war with Iraq, however, in so focusing and by way of a causal link, it also addresses the justice of the actual war prosecution. As noted, a just war rests on two elements: the justice of going to war (jus ad bellum), as well as the justice in war (jus in bello). The elements of jus in bello are discrimination and proportionality where discrimination relates to the minimization of harm to non-combatants, as well as civilian property and infrastructure. Proportionality in the case of jus in bello relates to the overall destruction resulting from the use of force such that, on balance, it is outweighed by the objective achieved, whether this is the military imperative or the civilian benefit.

The distinction between the two elements of jus in bello emerged as a means of distinguishing the judgments that were involved in prosecuting a war as opposed to deciding to go to war.[29] As such, jus in bello criterion are essential guidelines for soldiers and their leaders in their everyday strategic and tactical decisions and actions in war. However, it becomes highly morally questionable, if not intellectually dishonest, when a causal break is assumed to exist between the two as though to argue that it is possible for an unjust war to be fought justly. Such a criterion may be useful, and even necessary, for the soldier to keep in his mind’s eye as he aims his weapon, however, it can not become a legal or moral excuse for the politician to assuage his responsibility for causing that soldier to be pointing the weapon in the first place, especially if based on unjust reasons. The causal link of responsibility between jus ad bellum and jus in bello may exist for the soldier in that he can choose to fight justly or unjustly, but the link can never be broken for the ruler who places the soldier in that position to begin with.

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 only sinks us further into moral deficit. An unjust war cannot be fought justly for the simple reason that any death or destruction founded on unjust purpose would be, by definition, purposeless, or worse, of ill-purpose, and, thus, unjust. Accordingly, unless a war based on an unjust cause is prosecuted with 100% discrimination, it cannot be fought justly. Any indiscriminate death or destruction would be unacceptable, and since that has been impossible in Iraq as noted earlier, there can be no justice in fighting the war in Iraq.

[1] Michael Walzer, Just and Unjust War: A Moral Argument With Historical Illustrations. (New York: Basic Books, 2000, originally published in 1977), p. 20.
[2] See Oliver O’ Donovan, The Just War Revisited, (Cambridge, UK: Press Syndicate of University of Cambridge, 2003), especially chapter 1, for a discussion of the relationship between international law and its development to classical just war doctrine.
[3] For a review of the global evolution of just war doctrine and natural law theory, see Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant, (New York: Oxford University Press, 1999), Terry Nardin (ed.), The Ethics of War and Peace: Religious and Secular Perspectives, (Princeton, New Jersey: Princeton University Press, 1996), H. Patrick Glenn, Legal Traditions of the World, (New York: Oxford University Press, 2004), and Michael Walzer, Just and Unjust Wars.
[4] On May 2, 2003, President Bush declared an end to hostilities and that the US had prevailed in its ‘Battle of Iraq’ in a speech on the aircraft carrier USS Abraham Lincoln, and, thus, began the on-going occupation of Iraq by the US-led ‘coalition of the willing’. For the purposes of this analysis, a third element of just war doctrine, jus post bello, or the justice after cessation of hostilities relating to the responsibilities of the occupying forces in reconstruction and security of the occupied country and its people during occupation, is not addressed here. It should be noted, however, to the extent that the Iraq war project had the express objective of ‘regime change’ and thus no status quo ante bellum would result, jus post bello issues are implied. See the discussion of just cause.
[5] O’Donovan wisely notes a caveat to thinking in terms of just and unjust wars. He notes, “it is very often supposed that just-war theory undertakes to validate or invalidate particular wars. That would be an impossible undertaking. History knows no just wars, as it knows of no just peoples…. The task of political ethics at this point is to provide as full a general account of the reconciling praxis of judgment as may be possible.” (p. 13)
[6] The six components used in this analysis were more consistent with the majority of modern writings on just war as well as those found in training manuals of the US army. (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. 20), found at
http://www.carlisle.army.mil/USAWC/parameters/04winter/wester.pdf [last accessed 5/1/2006]). Since the war in Iraq was predominantly a US-led effort, analysis in terms of just war as understood by the US army seems most appropriate.
[7] Gray, p. 40.
[8] Gray, pp. 294-302.
[9] The conceptual framework developed here is based on the authority continuum defined in Wester, p. 29.
[10] See Annex 2 for a list of all United Nations Security Council resolutions relating to Iraq over the period August 1990 through June 2004, which totaled 60 resolutions.
[11] “Iraq war illegal, says Annan “, BBC found on http://news.bbc.co.uk/2/hi/middle_east/3661134.stm
[12] Vaughan Lowe “The Iraq Crisis: What Now?” in International and Comparative Law Quarterly, (Vol. 52, October 2003, pp. 859-871), p. 866.
[13] Wester, p. 27.
[14] McGoldrick, p. 68.
[15] Wester, p. 27.
[16] Arthur Schlesinger Jr., The Immorality of Preventive War, History News Network, George Mason University, August 2002, found at http://hnn.us/articles/924.html
[17] Gray, p. 33.
[18] See Hans Blix, Disarming Iraq. (New York: Pantheon Books, 2004) and Scott Ritter, Iraq Confidential: The Untold Story of the Intelligence Conspiracy to Undermine the UN and Overthrow Saddam Hussein, (New York: Nation Books, 2005).
[19]Declaration On Principles Of International Law Concerning Friendly Relations And Cooperation Among States In Accordance With The Charter Of The United Nations , General Assembly Resolution 2625, 1970. found at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/348/90/IMG/NR034890.pdf?OpenElement [last accessed 5/5/2006]
[20] Gray, p. 192.
[21] Dominic McGoldrick, From ‘9-11’ to the ‘Iraq War 2003’: International Law in an Age of Complexity, (Portland: Hart Publishing, 2004), p. 77-78.
[22] See Hans Blix, Disarming Iraq. (New York: Pantheon Books, 2004).
[23] See The 9/11 Commission Report, (New York: W. W. Norton & Company, 2004), Scott Ritter, Iraq Confidential, and James Risen, State of War: The Secret History of the CIA and The Bush Administration, (New York: Free Press, 2006).
[24] See Christine Gray, International Law and the Use of Force. (New York: Oxford University Press, 2004), pp.29-49
[25] ”The Responsibility To Protect”, Report of the International Commission on Intervention and State Sovereignty, December 2001, (Ottawa: International Development Research Centre, 2001).
[26] Transcript of President Bush’s televised address on March 17, 2003, found on http://www.cnn.com/2003/WORLD/meast/03/17/sprj.irq.bush.transcript/
[27] See Hans Blix, Disarming Iraq, (New York: Pantheon Books, 2004) and Scott Ritter, Iraq Confidential: The Untold Story of the Intelligence Conspiracy o Undermine the UN and Overthrow Saddam Hussein, (New York: Nation Books, 2005).
[28] Michael Walzer, Arguing About War (New Haven: Yale University Press, 2004), p. 153.
[29] O’Donovan in Just War Revisited, points to the fact that Aquinas made no such distinction. In fact, Aquinas pointed to three aspects of a just war: “the authority of a prince, a just cause, and a right intention.” (pp. 13-14). O’Donovan argues that the modern distinction between jus ad bellum and jus in bello “is a secondary casuistic distinction, not a load-bearing one.” (p. 15). See also John Finnis “The Ethics of War and Peace in the Catholic Natural Law Tradition”, p. 18 in Terry Nardin (ed.), 1996.