Iraq
The invasion of Iraq at the behest of President George W. Bush in the spring of 2003 inflamed worldwide debate, largely because the erratic and inconsistent explanations for the invasion wholly failed to pass legal or logical muster. America had no justification to launch a war against a nation that had neither attacked it nor posed a credible threat of imminent attack, even if America’s pretext was to uphold U.N. resolutions (while condemning the U.N. as uncooperative); to quarantine weapons of mass destruction known as “WMDs” (while failing to establish their existence); to depose a dictator and his Baath party (while originally helping that party to seize power); or to “liberate” an oppressed people (while already having bombed and embargoed those people into abject misery for the previous decade).
First, contrary to the federal government’s initial justification, the U.N. Security Council never approved a resolution empowering the United States or its allies to decide on their own when to use force against Iraq to deal with WMDs. The only Security Council measure that ever authorized any military force against Iraq took place in 1990 and had as its goal the removal of Iraqi personnel from Kuwait. That resolution (678) did not grant authority to invade Iraq even at the time, and certainly not some thirteen years after Kuwait had regained her independence. As noted by the commander of the British forces in the first Gulf War Coalition: “We did not have a mandate to invade Iraq or take the country over . . . . [I]n pressing on to the Iraqi capital we would have moved outside the remit of the United Nations authority, within which we had worked so far.” But the United States attempted nonetheless to rely on 678 and other inapplicable resolutions to justify its actions. One such measure was Security Council Resolution 687, which offered to lift economic sanctions if Iraq cooperated with WMD inspections – it did not authorize new sanctions, let alone military action. An additional Security Council Resolution that the Bush administration latched onto was 1441, which did not authorize the use of force, but rather commanded the Security Council to re-convene if Iraq failed to cooperate with a full inspection for WMDs. The United States thus violated 1441 by making a unilateral determination to use force on its own, claiming all the while that this usurpation of the Security Council’s power would rescue the United Nations from irrelevance.
Public scrutiny of the invasion eventually peaked, and the United States could no longer hide behind its transparent assertions that the Security Council had somehow authorized the invasion, so the United States switched gears and argued that it was exercising the inherent right of self-defense under Article 51 of the U.N. Charter. Once again, however, this explanation didn’t wash. No proven link connected Iraq to the terrorist attacks of September 11, 2001, and the Bush administration did not even make such an accusation against Iraq during the earlier period leading up to the invasion. What the Bush administration had alleged was the threat of WMDs believed to be in Iraq’s possession. President Bush waxed hysterical about miniature planes that could deliver chemical or biological agents to American soil, and National Security Adviser Condoleeza Rice warned that Iraq possessed aluminum tubes for producing nuclear weapons. Once the invasion was well under way, it became apparent that these claims were false and that suspected stockpiles of WMDs did not exist. Unfortunately, the ensuing public debate missed the point by focusing on whether the American-British coalition had made an honest mistake or whether the pre-invasion intelligence was intentionally “doctored.” Under either scenario – honest mistake versus intentional fraud – the invasion was illegal because even if Iraq had possessed WMDs, this would not trigger a right of self-defense in the United States. Per Article 51 of the U.N. Charter and customary international law, the right of self-defense arises only when an armed attack has occurred or is very likely to occur in the near future, neither of which was the case with Iraq.
In straining even further to legitimize the invasion, the United States went so far as to resurrect the gelatinous “just war” doctrine to imply that aggression can become permissible if in the service of a noble objective. President Bush’s hired theologian Michael Novak made this argument when attempting to secure the Vatican’s blessing, but the Vatican rebuffed him and publicly denounced the invasion as unjust (an episode demonstrating why this highly-subjective test was shelved in the first place).
Switching gears yet again, the United States argued for an unprecedented right of “Preventive War” that would allow military force against any potential threats despite the lack of actual or imminent danger. Such a right of armed attack against mere potential threats is as audacious as it is unworkable, since nations always face the classic Security Dilemma: as one nation grows more secure, other nations feel less secure. In a world of such perpetual insecurity, “Preventive War” would grant nations perpetual license to attack each other without provocation. According to the doctrine’s own internal logic, other nations now have good reason to feel threatened and to launch “preventive” attacks against the United States itself, lest they find themselves in the same predicament as Iraq. To deal with this logical conclusion, the United States apparently reserves to itself the right of “Preventive War” while denying it to others – unprovoked attacks by the United States are proper, whereas only unprovoked attacks upon the United States are criminal. One must look to ancient Rome for a double standard of such staggering proportions. Under the legal contours of self-defense, it was actually Iraq who enjoyed the right to use force to defend itself against the United States, and Article 51 of the U.N. Charter authorized other nations to come to Iraq’s “collective defense” to repulse the invasion if they so choose. Indeed, other nations may indeed have contributed to the insurgency already, and if so they were not violating the law of the use of force, but rather exercising their right to defend a nation under aggressive attack.
When confounded by arguments such as these, invasion enthusiasts at last shed all pretense of legality and resort to their emotional trump card: Saddam Hussein and his Baathist regime had to be destroyed for the Iraqi people’s own benefit, and anyone who disagrees is a sympathizer and enabler of tyranny. Left unsaid is that the United States in 1963 first “enabled” the Baathists into power by using the Central Intelligence Agency to overthrow the republican government established by Abdul Karim Qasim, a violation of Iraq’s sovereignty and of Article 2(4) of the U.N. Charter. Left unsaid is that the United States had no quarrel with Saddam Hussein when selling him conventional and chemical weapons in the 1980s to fight against Iran. Left unsaid is that the United States has managed to kill more Iraqis since 2003 than Saddam Hussein likely could have, which doesn’t even take into account the hundreds of thousands who died previously as an admitted and unapologetic result of the Clinton administration’s policies. And left unsaid is that the United States has long maintained friendly relationships with despots worldwide . . . so long as they do the United States’ bidding. One need only remember the Shah of Iran, General Musharraf in Pakistan, or Pinochet in Chile to see that spreading “democracy” is a means to the federal government’s ends, not an end in itself.
Yet even if we ignored all these unpleasant facts and agreed that the world is a better place with Saddam Hussein removed from it, we would still face a sobering reality: like Japan, Italy, and Germany during the 1930s, the United States waged an aggressive, illegal war and attempted to justify it with the successful outcome achieved thereby, falling squarely within Justice Robert Jackson’s admonition at Nuremberg.
The invasion of Iraq at the behest of President George W. Bush in the spring of 2003 inflamed worldwide debate, largely because the erratic and inconsistent explanations for the invasion wholly failed to pass legal or logical muster. America had no justification to launch a war against a nation that had neither attacked it nor posed a credible threat of imminent attack, even if America’s pretext was to uphold U.N. resolutions (while condemning the U.N. as uncooperative); to quarantine weapons of mass destruction known as “WMDs” (while failing to establish their existence); to depose a dictator and his Baath party (while originally helping that party to seize power); or to “liberate” an oppressed people (while already having bombed and embargoed those people into abject misery for the previous decade).
First, contrary to the federal government’s initial justification, the U.N. Security Council never approved a resolution empowering the United States or its allies to decide on their own when to use force against Iraq to deal with WMDs. The only Security Council measure that ever authorized any military force against Iraq took place in 1990 and had as its goal the removal of Iraqi personnel from Kuwait. That resolution (678) did not grant authority to invade Iraq even at the time, and certainly not some thirteen years after Kuwait had regained her independence. As noted by the commander of the British forces in the first Gulf War Coalition: “We did not have a mandate to invade Iraq or take the country over . . . . [I]n pressing on to the Iraqi capital we would have moved outside the remit of the United Nations authority, within which we had worked so far.” But the United States attempted nonetheless to rely on 678 and other inapplicable resolutions to justify its actions. One such measure was Security Council Resolution 687, which offered to lift economic sanctions if Iraq cooperated with WMD inspections – it did not authorize new sanctions, let alone military action. An additional Security Council Resolution that the Bush administration latched onto was 1441, which did not authorize the use of force, but rather commanded the Security Council to re-convene if Iraq failed to cooperate with a full inspection for WMDs. The United States thus violated 1441 by making a unilateral determination to use force on its own, claiming all the while that this usurpation of the Security Council’s power would rescue the United Nations from irrelevance.
Public scrutiny of the invasion eventually peaked, and the United States could no longer hide behind its transparent assertions that the Security Council had somehow authorized the invasion, so the United States switched gears and argued that it was exercising the inherent right of self-defense under Article 51 of the U.N. Charter. Once again, however, this explanation didn’t wash. No proven link connected Iraq to the terrorist attacks of September 11, 2001, and the Bush administration did not even make such an accusation against Iraq during the earlier period leading up to the invasion. What the Bush administration had alleged was the threat of WMDs believed to be in Iraq’s possession. President Bush waxed hysterical about miniature planes that could deliver chemical or biological agents to American soil, and National Security Adviser Condoleeza Rice warned that Iraq possessed aluminum tubes for producing nuclear weapons. Once the invasion was well under way, it became apparent that these claims were false and that suspected stockpiles of WMDs did not exist. Unfortunately, the ensuing public debate missed the point by focusing on whether the American-British coalition had made an honest mistake or whether the pre-invasion intelligence was intentionally “doctored.” Under either scenario – honest mistake versus intentional fraud – the invasion was illegal because even if Iraq had possessed WMDs, this would not trigger a right of self-defense in the United States. Per Article 51 of the U.N. Charter and customary international law, the right of self-defense arises only when an armed attack has occurred or is very likely to occur in the near future, neither of which was the case with Iraq.
In straining even further to legitimize the invasion, the United States went so far as to resurrect the gelatinous “just war” doctrine to imply that aggression can become permissible if in the service of a noble objective. President Bush’s hired theologian Michael Novak made this argument when attempting to secure the Vatican’s blessing, but the Vatican rebuffed him and publicly denounced the invasion as unjust (an episode demonstrating why this highly-subjective test was shelved in the first place).
Switching gears yet again, the United States argued for an unprecedented right of “Preventive War” that would allow military force against any potential threats despite the lack of actual or imminent danger. Such a right of armed attack against mere potential threats is as audacious as it is unworkable, since nations always face the classic Security Dilemma: as one nation grows more secure, other nations feel less secure. In a world of such perpetual insecurity, “Preventive War” would grant nations perpetual license to attack each other without provocation. According to the doctrine’s own internal logic, other nations now have good reason to feel threatened and to launch “preventive” attacks against the United States itself, lest they find themselves in the same predicament as Iraq. To deal with this logical conclusion, the United States apparently reserves to itself the right of “Preventive War” while denying it to others – unprovoked attacks by the United States are proper, whereas only unprovoked attacks upon the United States are criminal. One must look to ancient Rome for a double standard of such staggering proportions. Under the legal contours of self-defense, it was actually Iraq who enjoyed the right to use force to defend itself against the United States, and Article 51 of the U.N. Charter authorized other nations to come to Iraq’s “collective defense” to repulse the invasion if they so choose. Indeed, other nations may indeed have contributed to the insurgency already, and if so they were not violating the law of the use of force, but rather exercising their right to defend a nation under aggressive attack.
When confounded by arguments such as these, invasion enthusiasts at last shed all pretense of legality and resort to their emotional trump card: Saddam Hussein and his Baathist regime had to be destroyed for the Iraqi people’s own benefit, and anyone who disagrees is a sympathizer and enabler of tyranny. Left unsaid is that the United States in 1963 first “enabled” the Baathists into power by using the Central Intelligence Agency to overthrow the republican government established by Abdul Karim Qasim, a violation of Iraq’s sovereignty and of Article 2(4) of the U.N. Charter. Left unsaid is that the United States had no quarrel with Saddam Hussein when selling him conventional and chemical weapons in the 1980s to fight against Iran. Left unsaid is that the United States has managed to kill more Iraqis since 2003 than Saddam Hussein likely could have, which doesn’t even take into account the hundreds of thousands who died previously as an admitted and unapologetic result of the Clinton administration’s policies. And left unsaid is that the United States has long maintained friendly relationships with despots worldwide . . . so long as they do the United States’ bidding. One need only remember the Shah of Iran, General Musharraf in Pakistan, or Pinochet in Chile to see that spreading “democracy” is a means to the federal government’s ends, not an end in itself.
Yet even if we ignored all these unpleasant facts and agreed that the world is a better place with Saddam Hussein removed from it, we would still face a sobering reality: like Japan, Italy, and Germany during the 1930s, the United States waged an aggressive, illegal war and attempted to justify it with the successful outcome achieved thereby, falling squarely within Justice Robert Jackson’s admonition at Nuremberg.
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