The issue of just war elicits a gross interplay between competing and cooperative concepts such as the moral worth of the individual, competent authority and state sovereignty – to name a few. At this time in the moral evolution of human kind we see international agreements yielding the effect that state to state conflicts are virtually non-existent. However, there is a rise in non-state vs state conflict (terrorism) and intrastate (civilian vs state authority) conflict. Both cases call into question the use of different types of intervention: humanitarian intervention and preemptive use of military force. Both of these issues are dealt with in International Law – International Humanitarian Law (ius in bello) and International Human Rights Law; they can also, in specific cases, fall under the jurisdiction of International Criminal Law. In highlighting the relationship between the moral and ethical foundations of the establishment of a just peace, it is necessary to note that International Law is largely the result of several thousands of years of philosophical discourse, dialog and debate on the morality of armed conflict and establishing and maintaining peace as a response to long and brutal history of human-kind engaging in armed conflict – most notably, the two world wars that led to the establishment of the United Nations.
This reflection paper will look through the lens of International Law (IHL, IHRL, ICL) – as a culmination of a moral ethical evolution of humankind – at the case of the US military action against the sovereign state of Iraq (2003) as a preemptive war which violated both US domestic law and International Law and, because of the relationship between moral/ethical principles and international law, the United States has violated fundamental ethics which govern the relationships between sovereign authorities as well as the responsibility to protect the peoples of Iraq. In this light, we note that the basic mechanisms of international law are substantial to deal with the illegality, and thus moral irresponsibility, of the United States and the high ranking members of the George W. Bush administration; yet, the means of enforcement are not in place to hold those responsible for such violations accountable and bring them to justice.
While it can be argued that all branches of ethics have a part in the formulation of International Law, I believe the preeminent ethical formulations – based on my brief introduction to the field of Ethics – are founded in the Utilitarian, Contractualist and Kantian Deontological formulations with the addition of the Ethics of Care and Feminism adding to more recent developments such as the responsibility to protect. It should be duly noted, as well, that the ideas of pacifism espoused in the New Testament would, in essence, prevail in preventing armed conflict and, thus having been challenged by protestations within the christian church to pacifism, the need for international agreements became paramount.
As NATO claimed in it’s ‘humanitarian intervention’ in Kosovo, the war was not legal but it was ethically justifiable because of the grave humanitarian crisis unfolding. The United states argued numerous points – in succession – as justification for the use of preemptive military force against Iraq; I shall consider only two of these arguments. In the first case the US argued that there was an imminent threat from Iraq – that it had chemical, and potentially nuclear weapons and could launch an attack against the United States – and that the only way to prevent this potential attack was to attack Iraq first. The US sought authorization from the UN and was given conditional authority. However, the US could not prove to the UNSC that it had demonstrated an imminent threat since the inspections regime had neither verified US claims nor was given enough time to further investigate before the US began military action – in violation of both U.S. Law (The War Powers Act) and International Law (the UN Charter).
In the second case, the US argued that it was liberating the Iraqi peoples from a brutal dictator – essentially employing the principle of a humanitarian intervention based on the responsibility to protect the civilians of foreign states from crimes against humanity and genocide. While it may be true that Iraq’s president was brutal, there was no case for humanitarian intervention under international law. Again noting in both of these cases, the standards of international law are developed as a result of a long history of discourse on the subject of ethics and morality with particular regard to the use of arms in conflict.
At the time of the US preemptive military action against the sovereign Iraq, there were numerous alternatives that could have been employed. Primarily, the current course of UN inspections could have been allowed to proceed to completion. Diplomatic efforts could have been employed but the United States did not appear to have an interest in diplomacy, offering the Iraqi president a deadline which did not allow for reasonable alternative means. One has to question the motivation of an entity that will not allow for reasonable attempts to solve a dispute by peaceful means. It is not unreasonable to speculate, in this case, that the US’s intentions for invading Iraq were dubious – however, this question is beyond the scope of the nature of this paper and I shall not address it here.
In addition to the UN inspections regime, UNSC resolutions, and diplomatic alternatives, the US media and world media could have made a concerted effort to highlight the current political discourse in Iraq (albeit under a repressive regime, but there are means to get information out to the public) along with the history of Iraq and Iraq’s role in international relations politically and economically for the sake of simply creating a more educated and aware public. This would be counter to the role of the US government and media in instilling ignorance and fear into the US population (again, the subject of another discourse) in order to gain support for an unjustifiable preemptive military action.
In view of the arguments used by the United States under the lens of International Law, we see there is a clear violation taking place. This violation indicates, in the least, that there exists an ethical and moral foundation in international law to test the nature of military interventions. The conclusion can be drawn, then, that international law, in its principles, is fully equipped to judge to the value of such actions regarding interventions of the types discussed here but it is not effective, in this case, in enforcing the laws. It may be that in this case the ineffectiveness of the UN in enforcing international law might be due to the fact the the country in question of violating international law is the world’s only superpower. This indicates the difficulties of entangling international alliances as well as a non-equality of sovereign states.
That the UN was incapable of utilizing its established bodies to attempt to hold the US accountable for a preemptive military intervention on fallacious grounds – causing in wake of the invasion, gross violations of International Humanitarian Law, as well as crimes against humanity, crimes against the peace, and violations of state sovereignty – shows the violability and vulnerability of International Law. In order to restore justice and the principle of “pacta sunt servanda”- the legitimacy of the UN and it’s member states, I believe that the United Nations should heed the words and deeds of some of it’s member states who have taken action against the Bush administration as well as individuals and organizations who have called for justice. In the case of member states, several heads of state and/or state authority’s have banned hih ranking members of the George W. Bush administration from entering their country in protest to their violations of international law, and numerous citizens tribunals have been held to show the egregious violations of IL – which, ultimately, amounts to the killing of individuals, amongst other things, and calls into question the ethics of who determines who will live and who will die; the value of individual human lives.
The International Court of Justice and the International Criminal Court are the two bodies that could and should take action in this case. The ICJ should be challenging whether the US invasion of Iraq was just. If it showed any willingness to do so I believe there would be numerous member states that would challenge the US. A potential case for the ICJ would be Spain vs the US regarding US violations of international law in the case of its military actions against the sovereign state of Iraq. In a similar fashion, the Brussels tribunal, the Tokyo tribunal, and numerous other civilian run organizations/tribunals, and individuals, have valid claims against individuals in the Bush administration who were responsible for violations of humanitarian law and human rights violations, as well as violations of international criminal law. The ICC could handle such cases.
If the ICJ and the ICC were to engage in a fair juridical process, regardless of the outcome, the UN could show that is, and has, the authority to enforce it’s own rules and, through this, could establish its credibility and legitimacy. Without challenging rogue states, regardless of size or power – that is, treating the all sovereign states as equals – the UN, enforcement of international law, and the moral and ethical principles guiding humanity towards peace and security can not be taken to be equitable or just.