US Attack on Iraq in 2003: Violation of International Humanitarian Law

A stated rationale for a potential attack on Iraq is the desire to remove any threat from weapons of mass destruction (WMD) that it possessed. Throughout 2002, the Bush administration made clear that removing Saddam Hussein from power in order to restore international peace and security was a major goal.


The principle stated justifications for this policy of "regime change" were that Iraq's continuing production of WMD and known ties to terrorist organizations, as well as Iraq's continued violations of UN Security Council resolutions, amounted to a threat to the U.S. and the world community. The Bush administration's overall rationale for the invasion of Iraq was presented in detail by Secretary of State, Colin Powell, to the United Nations Security Council on February 5, 2003. In summary, he stated:
“We know that Saddam Hussein is determined to keep his weapons of mass destruction; he's determined to make more. Given Saddam Hussein's history of aggression... given what we know of his terrorist associations and given his determination to exact revenge on those who oppose him, should we take the risk that he will not someday use these weapons at a time and the place and in the manner of his choosing at a time when the world is in a much weaker position to respond? The United States will not and cannot run that risk to the American people. Leaving Saddam Hussein in possession of weapons of mass destruction for a few more months or years is not an option, not in a post-September 11 world.
The main allegations at that time were that Saddam Hussein was in possession of, or was attempting to produce WMD particularly in light of two previous attacks on Baghdad nuclear weapons production facilities by both Iran and Israel which only postponed weapons development progress; and that he had ties to terrorists, specifically al-Qaeda. Moreover, it has also been alleged by some commentators that, while it never made an explicit connection between Iraq and the September 11 attacks, the Bush Administration did repeatedly insinuate a link, thereby creating a false impression for the American public.

Grand jury testimony from the first World Trade Center attack (February 26, 1993) trials cited numerous direct linkages from the terrorists to Baghdad and Department 13 of the Iraqi Intelligence Service in that initial attack marking the second anniversary to vindicate the surrender of Iraqi armed forces in Operation Desert Storm. For example, The Washington Post has noted that
“ While not explicitly declaring Iraqi culpability in the September 11, 2001, terrorist attacks, administration officials did, at various times, imply a link. In late 2001, Cheney said it was "pretty well confirmed" that attack mastermind Mohamed Atta had met with a senior Iraqi intelligence official. Later, Cheney called Iraq the "geographic base of the terrorists who had us under assault now for many years, but most especially on 9/11." ”
Steven Kull, director of the Program on International Policy Attitudes (PIPA) at the University of Maryland, observed in March 2003 that "The administration has succeeded in creating a sense that there is some connection [between Sept. 11 and Saddam Hussein]". This was following a New York Times/CBS poll that showed 45% of Americans believing Saddam Hussein was "personally involved" in the September 11 atrocities.
As the Christian Science Monitor observed at the time, while "Sources knowledgeable about US intelligence say there is no evidence that Hussein played a role in the Sept. 11 attacks, nor that he has been or is currently aiding Al Qaeda... the White House appears to be encouraging this false impression, as it seeks to maintain American support for a possible war against Iraq and demonstrate seriousness of purpose to Hussein's regime." The CSM went on to report that, while polling data collected "right after Sept. 11, 2001" showed that only 3 percent mentioned Iraq or Saddam Hussein, by January 2003 attitudes "had been transformed" with a Knight Ridder poll showing that 44% of Americans believed "most" or "some" of the September 11 hijackers were Iraqi citizens.
The BBC has also noted that while President Bush "never directly accused the former Iraqi leader of having a hand in the attacks on New York and Washington", he "repeatedly associated the two in keynote addresses delivered since September 11", adding that "Senior members of his administration have similarly conflated the two.
"For instance, the BBC report quotes Colin Powell in February 2003, stating that "We've learned that Iraq has trained al-Qaeda members in bomb-making and poisons and deadly gases. And we know that after September 11, Saddam Hussein's regime gleefully celebrated the terrorist attacks on America." The same BBC report, from September 2003, also noted the results of a recent opinion poll, which suggested that "70% of Americans believe the Iraqi leader was personally involved in the attacks."
Also in September 2003, the Boston Globe reported that "Vice President Dick Cheney, anxious to defend the White House foreign policy amid ongoing violence in Iraq, stunned intelligence analysts and even members of his own administration this week by failing to dismiss a widely discredited claim: that Saddam Hussein might have played a role in the Sept. 11 attacks." A year later, Presidential candidate John Kerry alleged that Cheney was continuing "to intentionally mislead the American public by drawing a link between Saddam Hussein and 9/11 in an attempt to make the invasion of Iraq part of the global war on terror."
According to then-President of the United States George W. Bush and the Prime minister of the United Kingdom of that time; Tony Blair, the reasons for the invasion were "to disarm Iraq of WMD, to end Saddam Hussein’s support for terrorism, and to free the Iraqi people." According to Blair, the trigger was Iraq's failure to take a "final opportunity" to disarm itself of nuclear, chemical, and biological weapons that U.S. and coalition officials called an immediate and intolerable threat to world peace. Although some remnants of pre-1991 production were found after the end of the war, U.S. government spokespeople confirmed that these were not the weapons for which the U.S. went to war. /
In 2005, the Central Intelligence Agency (CIA) released a report saying that no weapons of mass destruction had been found in Iraq.


(a) US attack in Iraq: an Occupation or Liberation?

U.S. military forces entered Baghdad on April 9, 2003, General Tommy Franks, commander of the coalition forces, announced that the Americans had "come as liberators, not occupiers."

In the traditional understanding, an occupying power is a temporary custodian of the status quo in the territory it controls. Occupiers are assumed to remain only for the limited period between the cessation of hostilities and the conclusion of a final peace treaty. That treaty determines the fate of the occupied territory, most likely returning it to the ousted de jure sovereign. Thus, an occupier exercises mere de facto power. For that reason it enjoys no general legislative authority to make permanent changes to legal and political structures in the territory.

(b) US Attack in Iraq: a Self Defense?

Since it was not directly attacked by Iraq the United States did not have an obvious right to self-defense. The administration, though, argued that it had a right to defend itself preemptively against a future possible attack. In his speech to the United Nations on September 12, 2002, President Bush described Saddam Hussein's regime as "a grave and gathering danger," detailed that regime's persistent efforts to acquire weapons of mass destruction, and spoke of an "outlaw regime" providing such weapons to terrorists. For an extensive discussion of international law and the preemptive use of force, We can see the Congressional Research Service's Report for Congress of September 23, 2002.

While arguing for preemption, the administration also suggested that the United States had a right to self-defense on the grounds that the Iraqi regime was connected to Al Qaeda, the organization responsible for the attacks on the United States of September 11, 2001. In February 2003, Secretary of State Colin Powell told the United Nations Security Council that Iraq was harboring a terrorist cell led by Abu Musab Zarqawi, a suspected associate of Al Qaeda. Powell also said that senior Iraqi and Al Qaeda leaders had met at least eight times since the early 1990s. Ansar al-Islam, an Islamist militia group, was also suspected of ties to Al Qaeda, and was based in a lawless part of northeast Iraq, though it was not known to have cooperated with Saddam Hussein.

(C) Analysis of Jus ad bellum

Thus, Iraq war was a Self Defense? Simply not because Iraq’s missile power was limited within 150 to 180 kilometers, that could not reach to the territory of US or its neighboring countries. It was an Anticipatory Self Defense? No, because anticipatory self defense is a vague idea. Apart form this, UNMOVIC and IAEA did not find any development of weapons of mass destruction or nuclear weapons that may be a threat to world peace and security. Iraq attack was a Reprisal? Simply should not be because CIA and other Intelligence Agency could not trace out any involvement of Iraq with Al Qaeda, or 9/11 mishaps in US. Iraq War was s Doctrine of Necessity? I think it should not be because finally Iraq accepted UN Resolution 1441 and UNMOVIC and IAEA inspected the required suspected places of Iraq. Iraq War was a humanitarian intervention? I think if Iraq violated human rights to a large scale, President Saddam Hussein should be dragged under justice for crimes against the humanity but regime change cannot be the object of military action. Diplomatic negotiations comes first. If it fails, then economic sanctions might have been imposed upon Iraq and even diplomatic relations might be curtailed. Then the responsibility should go to the UN Security Council, not of USA. Thus I think Iraq war was an aggression and use of unauthorized force by US allies.
Asked in the fall of 2002 if the upcoming war in Iraq would be a just war, Cardinal Joseph Ratzinger said that “the concept of ‘preventive war’ does not appear in the Catechism of the Catholic Church.” UN Secretary General stated that the use of force without Council endorsement would "not be in conformity with the Charter" and many legal experts now describe the US-UK attack as an act of aggression, violating international law.
Attorney General Lord Goldsmith describes regime change in Iraq as a disproportionate response to Saddam Hussein's alleged failure to disarm, illegal in the eyes of international law. Goldsmith stresses that in terms of legality, "regime change cannot be the objective of military action." In 2003, apparently under pressure from Prime Minister Tony Blair, Goldsmith stated that invading Iraq was legal even without a second UN Security Council resolution. (The Common Dreams)

Senior UK judicial figure, Lord Bingham, argues that the US and UK invasion of Iraq in 2003 was a serious violation of international law as there was no hard evidence that Iraq failed to disarm. UK opposition parties are pressing for an independent inquiry to scrutinize the actions of the government in the run up to the invasion.

Why US cannot be dragged under International Criminal Court

ICC has the jurisdiction over those facts of member states that the states are unwilling or unable to try in the domestic Court but the state wants to try the case. As ICC is a complementary Court of the domestic Court of law and the USA is not a member state of ICC, uptil now International Criminal Court has no jurisdiction over the offenses committed by US government or their soldiers. Although the appointment of prosecutor by UNSC, primary investigation of the case by the prosecutor, approval of the pre-trial chamber, provisions of appeal to the trial chamber ensure much of the transparency of International Criminal Court, US has not yet ratified the Rome Statute.

Apart from this, the George W Bush Administration “unsigned” the Clinton signature on the Rome Statute, sought through bilateral diplomacy to persuade or coerce other states into exempting US personnel from the coverage of the ICC, delayed UN peace keeping deployments until the Security Council exempted any participating US personnel from any review by the ICC, and in almost every way imaginable tried to undermine the ICC. In 2005, however, the USA abstained on a UN Security Council resolution that authorized the ICC prosecutor to open investigations about possibly indicating certain Sudanese leaders for atrocities in the Darfur region of that country.

International Criminal Court Prosecutor Luis Moreno Ocampo announced that his office will not investigate war crimes committed in Iraq by coalition forces. The Bush administration has staunchly opposed the ICC claiming it will "unfairly target" US military personnel. Ocampo's decision gives evidence of the court's impartiality.


However Congressed passed the American Service Members Protection Act, which among other provisions authorized in advance the US military action to free any US national detained abroad in connection to ICC proceedings. President George W Bush signed it, despite considerable foreign criticism.

VIII. Conclusion

In the run up to the 2003 invasion of Iraq, the question of whether the invasion would be a just war was posed. Many of those on both sides of the debate framed their arguments in terms of the Just War. They came to quite different conclusions because they put different interpretations on how the just war criteria should be applied. Supporters of the war tended to accept the US position that the enforcement of UN resolutions was sufficient authority or even, as in the case of the Land Letter that the United States as a sovereign nation could count as legitimate authority. Opponents of the war tended to interpret legitimate authority as requiring a specific Security Council resolution. They also asserted that the US had neither exhausted its diplomatic options nor allowed international efforts to run their course and take effect.

According to Pope John Paul II, however, the Iraq war was clearly not a just one.

One of Spain's leading judges on war crimes and terrorism-related cases, Baltasar Garzon, ranks the 2003 US-led invasion of Iraq among "the most sordid and unjustifiable episodes in recent human history." The judge criticizes US President George W. Bush and his allies, including British and Spanish Prime Ministers Tony Blair and Jose Maria Aznar, who supported the attack "despite having doubts and biased information." Garzon's condemnation of the leaders reflects growing disenchantment worldwide with the Iraq catastrophe.

Furthermore, in a German court an army major has successfully argued that the US and the UK did not legally invade Iraq, therefore he broke no laws in refusing to obey a military order. The author concludes that such decisions set a precedent for the recognition of the Iraq war as an act of aggression, and therefore a war crime – of which the British government should be very wary.

A prosecutor of Nazi war crimes at Nuremberg, Benjamin Ferenccz, believes US President George W. Bush's aggressive war in Iraq constitutes a "supreme international crime" capable of prosecution in an international court. Claiming that the atrocities of the Iraq war were "highly predictable," Ferenccz points to the UN Charter, which unequivocally states that no nation can use armed force without UN Security Council permission. He convincingly argues that, due to his invasion of Iraq and the subsequent acts of the US military, Bush should face charges for war crimes along with Saddam Hussein.


On the eve of the Security Council's quarterly discussion on the situation in Iraq, a group of NGOs has written the Council to voice their concern. Several disturbing reports have been released by Secretary General Kofi Annan, the United Nations Assistance Mission for Iraq (UNAMI), and human rights organizations. These reports have highlighted significant violations of international human rights and humanitarian law, especially in the area of detention practices. In response, the NGOs ask the Council to break its pattern of pro forma review, "accept its responsibility" and "substantially review the mandate it has given to the MNF."
In this interview, former United Nations Assistance Mission for Iraq (UNAMI) human rights chief John Pace discusses sectarian violence, US military operations, and the legality of the war. According to Pace, ongoing US military operations have led to widespread civilian displacement and destruction, and along with the rise in sectarian militias contribute most to instability in Iraq. Furthermore, US detentions violate the Geneva Conventions and as many as 90 percent of all Iraqi prisoners are innocent. "Normalization," Pace says, cannot go forward in Iraq so long as the US military occupation remains.
A group of 27 NGOs points out that the US-led Multinational Force (MNF) in Iraq has seriously violated international law, including bans on the use of torture, illegal detentions, siege tactics against population centers, and "indiscriminate and especially injurious" weapons. Furthermore, the MNF is responsible for failing to address patterns of corruption and mismanagement in Iraq's development fund and reconstruction programs. Citing numerous official reports and legal texts, the letter urges Council members to "substantially reconsider, revise or terminate" the MNF's mandate to bring it into conformity with international law.
In a statement ahead of a Council meeting July 14, 2006 reviewing the mandate of the Multinational Force (MNF), Amnesty International USA calls on the UN Security Council and the Iraqi government to hold to account "those who commit crimes under international law in Iraq, including members of the US-led MNF." Amnesty demands that the Council not extend the immunity from legal proceedings for abuses by the MNF or their contractors and concludes that "the Iraqi criminal justice system should be able to exercise jurisdiction over any crime committed in Iraq."
Although US and Iraq government has already dragged some of the alleged soldiers and civilians under justice, there are still many offenders in US military forces and Iraqi soldiers and suicidal bombers which are still beyond justice as per the Rome Statute of the International Criminal Court, 1998 as US and Iraq are not the member states of International Criminal Court. Apart from this it depends on US and Iraqi governments how they will be capable of applying their domestic humanitarian laws regarding the offences committed since Iraq war 2003 to uptil now.

Email: ashraf.bangladesh@yahoo.com

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Comment by Md. Ashraf Hossain on October 23, 2011 at 4:49pm

Dear Mr. Oppenheim,

Thanks for your kind information and extended cooperation.

with best regards

Ashraf

 

Comment by James S. Oppenheim on November 23, 2009 at 7:36pm
Iraq has a mention in this old book, which was probably not so old when the "neocons" were getting their education:

Demaris, Ovid. Brothers in Blood: The International Terrorist Network. New York: Charles Scribner's Sons, 1977.

For the period of your coverage, the Brookings Institute, one of Washington's think-tanks, also and briefly summarizes periods of Iraqi support for terrorist organizations and operations.

http://www.brookings.edu/papers/2003/0303middleeast_byman.aspx

Here, Ashraf, I will leave the brief alone as I am not a lawyer nor do I have the stamina to trace your argument. --Jim
Comment by James S. Oppenheim on November 21, 2009 at 12:16am
I think the world missed Hussein's acts of genocide against the "Marsh Arabs" (e.g., http://jurist.law.pitt.edu/forum/forumnew92.php) and possibly too the gassing of the Kurds (e.g., http://en.wikipedia.org/wiki/Halabja_poison_gas_attack).
Comment by Md. Ashraf Hossain on November 21, 2009 at 12:01am
Dear Friends,
I have just thrown my point of view about Jus Ad bellum in Iraq war 2003. I think Jus in bello (violation of humanitarian law during war tme) is also known to all. Plz make comment and inject information more.
I hope u all criticise me as per law

If any organization desires, I can give them the whole paper for publication (24pages)

Hope for the best.

ashraf.bangladesh@yahoo.com

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