A Just War Case Against the Iraq War, p. 2
Remember, in its strict form, the form which has most thoroughly informed post-WWII international law, Just War Theory begins with a strong presumption against war. Meeting the criteria is expected to be difficult, so that nations which value the rule of law are pressured to find alternatives to war as often as possible. (The U.S. is in the habit of calling nations which do NOT value the rule of international law “rogue nations,”–until it’s our turn to want to violate international law. Then, we talk about said law being a violation of our national sovereignty, or even of being “quaint” in a post-9/11 world.)
I. Ius ad bellum–criteria of justice in deciding whether or not to go to war.
1. Legitimate authority. Since there is a presumption against war, only those with the legal authority to declare war, authority tied to responsibility for the public good, may authorize war. In the U.S., the right to declare war is reserved in the U.S. Constitution for Congress, not the president. Article I, sec. 8 of the U.S. Constitution enumerates the powers of Congress and includes the power to declare war. A major legal question of the war with Iraq is whether the “authorization to use military force” given by Congress to Pres. Bush in late 2002 meets this criterion or whether only a formal declaration of war will do it. I am not a constitutional lawyer, but I think the latter because the Framers of the Constitution believed that the Executive Branch was more likely to want to go to war for frivolous reasons. They vested the power to declare war in the Legislative Branch in order to make it more difficult for presidents to go to war. I do not see anything in the Constitution which allows Congress to pass the buck–as Sen. Byrd (D-WVA) pointed out at the time. (Note: Lest my contention seem partisan here, I should point out that presidents of both parties have violated this. Bill Clinton’s ordering NATO bombing of Kosovo in the ’90s violated this just as much as did Bush’s invasion of Iraq. At the time, I argued that while the Lewinsky affair was probably not really impeachable, this constitutional breach really was a “high crime” for which Clinton deserved to be impeached. But, since he was in the midst of the impeachment trial over his sexual habits at the time, the more serious matter–from a global perspective–of his military adventurism was ignored.)
There is a second element in “legitimate authority” since the founding of the United Nations. Article 6 of the U.S. Constitution says that any international treaties to which the U.S. is a signatory share Constitution’s status as “supreme law of the land” in the U.S. Article 51 of the United Nations Charter allows individual member states to use military force only in self-defense and then only until the Security Council can take measures to restore peace. Since the U.S. is a member state, and since Iraq neither attacked nor threatened the U.S., it needed the approval of the U.N. Security Council to invade Iraq. There is no provision for a member state to unilaterally undertake to enforce Security Council resolutions by military force. So, even if the Congressional “authorization” was legitimate, the U.S. did not have UN approval to invade and therefore, the criterion of “legitimate authorization” was not met. If you hear some opponents of this war call it “illegal,” this is probably what they have in mind. But the purpose of a formal declaration of war by appropriate authority is not legalistic nit-picking, but it becomes the last chance for the enemy to sue for terms of peace.
2. Just Cause. This has always ruled out going to war to expand territory (as Germany and Japan did during WWII or the U.S. did in wars with Native Americans and with Mexico, etc.) or for revenge (e.g., “this is the guy that tried to kill my dad”) or to control another nation’s resources, etc. But as international law has developed, especially since WWII, the causes that have been considered severe enough to justify the horrors of war have narrowed to two: A1. If attacked by another nation, there is the inherent right to self-defense. This is the reason that the Bush administration constantly tried to link the government of Iraq to the 9/11 attacks, either directly or through links to al-Qaeda. These were repeatedly disproved, but the refrain was repeated so often that even as late as 2004, polls showed that most U.S. citizens believed there were direct links between Saddam Hussein and 9/11. The propaganda was effective, aided by a cooperative “news” media, as Bill Moyers’ shows in “Buying the War.” A2. If a nation is in immediate danger of attack (not fear of attack at some vague later date), it may launch a preemptive attack as Israel did in the Six Days War. This is why the administration tried to say that Saddam Hussein had biological and chemical weapons and was in the process of obtaining nuclear weapons. This claim was also false and was known to be false in 2002. B. Humanitarian intervention. One may engage in cross-border warfare to stop genocidal actions. Apologists for this war often point to Saddam Hussein’s brutal tyranny and his genocidal attacks on the Kurds and his use of chemical weapons against Shi’ites during the war with Iran. But this would have been a just cause for war AT THE TIME, not years later. When Hussein did his horrible chemical weapons attacks, the U.S. was selling him the weapons and blaming the attacks on Iran. Remember Donald Rumsfeld shaking hands with Saddam? In 2002, when the Bush administration was urging invasion of Iraq, the Kurds had long been protected by a “No Fly Zone” of U.S. and British air patrols that prevented the government of Iraq from even entering Kurdistan, never mind harming Kurds.
Some say that the bar for just cause is lower in the case of Iraq because Saddam spent 10 years trying to violate terms of the cease fire at the end of the Gulf War. But many nations do this. The U.S. also violated those terms in placing CIA spies among the UN weapons inspectors–which led to the end of the weapons inspections in 1998. Only the UN Security Council could decide if violations justified renewed military action. No member state can decide to enforce UN resolutions on its own or with a “coalition of the willing.” The U.S. has never decided to enforce all the UN resolutions against Israel’s occupation of Palestine, nor did we ever decide to invade South Africa to stop apartheid. Nor are we invading Sudan to stop the genocide of Darfur, although this would meet just cause. The Just Cause criterion was not met in the case of Iraq and the case given to Congress and the U.S. public was based on deceptions.
3. Right Intention or Aims. The intention or goals of the war must be just and limited–to secure the common peace of nations. Here, it is difficult to judge because the Bush admin.’s stated war aims changed constantly during 2002 and even since. IF there had been a legitimate threat from Iraq, the aim of “disarming Saddam” militarily would have fit this criterion, but not the aim of “regime change.” If Saddam had been still committing genocidal actions, then the aim of “regime change” would have been justified, but this was not the case. Wanting regime change so that Iraq would lead the way to Arab democracy (social engineering on a global scale) is not a justified aim. Of course, control of Iraqi oil fields (the latest law being forced through the Iraq parliament gives massive profits from its oil fields to foreign, especially U.S., companies!) is definitely not a valid war aim. If oil was the true motive for the war, then the criterion of right aims is clearly not met.
4.Probability of Success. Because the horrors of war are so great, JWT has always judged that it is unjust to ask either the people of the enemy nation or one’s own people to go through them unless there is a high probability of success. “Success” must be judged in likelihood not just of military victory over the enemy forces (few doubted the ability of the U.S. forces, even alone, in defeating the Iraqi forces of the Hussein government), but in terms of meeting the aims of the war and its aftermath. For this reason, the Bush admin. in 2002 constantly said that Iraq would welcome us as liberators, denied that there would be much chance of Sunni vs. Shi’ia fighting, denied that the chaos of occupation would serve as a recruiting tool for terrorist groups, denied that there would be a long occupation afterward, and denied that the war would cost much. All these things were warned about, but were ignored by the Bush administration. It was clear even in 2002 that the probability of success was low–and the constantly shifting war aims (“mission creep”), made this lower.
5. Proportionality The conflict must not do more harm than the good it can reasonably expect to achieve. This is closely related to the criterion of reasonable chance of success. How much environmental damage? How much suffering to the civilian population? How much is the conflict, however justified, likely to destabilize the region? Will long-simmering hatreds rise to the surface? Will this war make other wars more likely? What damage will this do to the social fabric of the country/ region? Will engaging in this war make it easier or harder for the nation to achieve other or even related aims (such as international cooperation in reducing terrorism)? This is cost/benefit analysis. Is it likely that the costs (monetary, human, spiritual, social) will be less than the gains that can reasonably be expected from the war aims? Although not everything can be predicted beforehand, it is clear that the Bush administration did not calculate proportionality very well. (Remember Rumsfeld saying that Iraq could fund 90% of its own reconstruction through oil sales? Remember the general fired for giving an estimate $200 billion–which we have now long passed?) It ignored repeated warnings about the likelihood of negative consequences. Instead, it projected a Neo-Con pipedream of a brief, almost harmless, war which would quickly result in a democratic Iraq leading the way in spreading democracy throughout the Middle East. Administration officials who raised questions were demoted or fired. Others who raised questions were subject to various forms of intimidation. Patriotic fervor replaced any calculation of proportionality.
6.Last Resort. Because the horrors of war are so great, war must be the last resort. All other means for achieving the right aims of the war must be tried first and have been demonstrated to fail. In this case, UN weapons inspectors were finding that Saddam was already disarmed from WMDs and would have been able to achieve any legitimate security aims through the most intrusive inspections regime the world had ever seen. The Kurds were protected by a no fly zone. Even if we admit “regime change” as a legitimate war aim, this could have been achieved without war. There were high-level negotiations between the European Union and Saddam Hussein that would have resulted in his going into exile and abdicating the presidency of Iraq, but to make this work, the U.S. had to agree that if he did go into exile we would not invade. We would not make such an agreement and this removed the incentive for Saddam to abdicate. In my posts on just peacemaking, I show some of the “resorts” that are being developed that can be expected to be tried before war is the last resort.
II. Ius in bello–Conducting a War Justly.
1. Discrimination: One must distinguish between civilians and soldiers, between combatants and non-combatants. No weapon or tactic which deliberately targets civilians is legitimate. (This rules out all terrorist tactics.) In war, civilians and non-combatants will be killed. In modern war, they become the largest percentage of casualties. JWT allows for this, although it presses for the development of weapons and tactics that will reduce civilian casualties. JWT also recognizes that in some situations, such as insurgencies and guerilla warfare, it is VERY difficult for soldiers to distinguish combatants from non-combatants. JWT, for instance, is why so many generals worldwide joined the campaign to abolish and outlaw landmines–a campaign the U.S. has resisted. But any tactic or weapon which makes civilian deaths likely, is forbidden. In my view, the “shock and awe” city bombing of Baghdad, hoping for a quick surrender, violated this criterion. I also believe that the 2nd battle of Fallujah violated this criterion. In general, U.S. forces were not good about protecting hospitals, etc. British troops, having years of training (sadly) in Northern Ireland, were generally better, at least in the initial invasion and early occupation.
Discrimination also means that enemies who have surrendered are no longer fair game for attack. They must not be tortured or treated in any way inhumanely, whatever they have done, notwithstanding. The Abu Ghraib scandal, and other examples show that this was not taken seriously by the U.S. When Alberto Gonzales (now the U.S. Attorney General, but then the White House Chief Counsel) generated a memo claiming that the Geneva Conventions in this regard were “quaint and outmoded,” he set up conditions in which discrimination would be violated. Nor, is it the case that waterboarding is not classified as torture: After WWII, the U.S. tried several Japanese soldiers for waterboarding and we tried some of our own for the same thing during the Vietnam War. All forms of degrading treatment are forbidden by both U.S. and international law. No exceptions–including exceptions for “harsh interrogation,” or because the latter is not a signatory to the Geneva Conventions. We have, in the past, penalized other nations for using these kinds of excuses.
2. Proportionality. This principle returns in the conduct of the war, which we already saw in judging whether or not to go to war. There cannot be any “destroying the village to save the village” (Gen. William Westmoreland claimed this in Vietnam.) Any weapon or tactic used must do the minimum amount of damage possible. Again, I believe “shock and awe” violated this.
For these reasons, I believe that the invasion and occupation of Iraq clearly violated the standards of Just War Theory–not to mention the higher demands of gospel nonviolence. There is a correlary to JWT: selective conscientious objection. It is the moral duty to refuse to serve in an unjust war (even at risk of prison or death) and, in a war fought for just reasons, to refuse any order that would violate ius in bello rules of war (even at the risk of a field court martial and imprisonment or execution). But few churches which endorse JWT prepare their members for such possibilities. People who follow their consciences in this regard (e.g., Lt. Watada in the current conflict) are vilified rather than honored. This undermines the ability of JWT to actually function as a curb on the conduct of wars. I hope this exposition helps Brent of Colossians 3:16 and others.
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