Iraq War

Iraq War - Introduction

The Iraq War began on March 20, 2003 with an invasion by US-led forces and ended on December 18, 2011 when the last US combat forces left the country. Although the eight-and-a-half year war was successful in dismantling the regime of Saddam Hussein, it has produced a host of legal issues in its wake. The legitimacy of the initial invasion, the trial and execution of Saddam Hussein, the myriad problems associated with facilitating democratic elections and a stable government, accusations of war crimes against all sides in the conflict and continuing unrest in the region all played a role in the legal implications of the Iraq War.

Another facet of this conflict was its enormous human and economic cost. As of November 30, 2011, the Brookings Institute estimated that 4,486 American troops were killed, 32,226 American troops were wounded, 179 British troops died, and approximately 115,000 Iraqi civilians were killed. Financially, the war is estimated to have cost the US approximately US$3 trillion in total economic loss.

The Iraq War also created domestic and international controversies, plaguing the administrations of presidents George W. Bush and Barack Obama and leaving many unanswered legal questions. Long after the battlefield conflict ended in December 2011, the war's legacy continued to play out in courtrooms, legislatures and the international community.

Legitimacy of the Conflict

The lead-up to the Iraq War began in the aftermath of the September 11, 2001 terrorist attacks. During President George W. Bush's national address on the night of the attacks, he announced that the US would not distinguish between terrorists and the countries that harbor them. Some Bush administration officials, including Deputy Defense Secretary Paul Wolfowitz, advocated immediate military action against Iraq under the auspices of the new policy. Instead, Bush limited the immediate US military response to Afghanistan in October 2001.

However, the administration began a series of policy escalations in the subsequent months. During his January 2002 State of the Union Speech, Bush referred to Iraq, Iran and North Korea as members of an "axis of evil" — singling out Iraq as a nation that "continues to flaunt its hostility toward America and to support terror." In June 2002, Bush emphasized the need for pre-emptive military action during an address at the US Military Academy at West Point. These doctrines were summarized in a September 2002 national security paper, popularly referred to as the Bush Doctrine. JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law explained that under this doctrine the US would "target terrorists wherever they are found" and "hold accountable any nation that harbors terrorists."

The US advanced two major justifications for military action against Iraq in both the domestic and international arenas. The first were allegations that Iraq had access to stockpiles of weapons of mass destruction (WMD). Although the Bush administration claimed US and UK intelligence reports showed that Iraq had access to nuclear and chemical weapons, head of the UN Monitoring, Verification, and Inspection Commission Hans Blix reported that he found no such evidence during inspections prior to the March 2003 invasion. Further developments following the invasion cast doubt on the legitimacy of the administration claims, including multiple reports by the Iraq Survey Group (ISG). Along with the WMD allegations, the Bush administration claimed that Iraq harbored and actively supported terrorists. These claims were spearheaded by Vice President Dick Cheney, and continued up until the invasion. The Bush administration later faced staunch domestic political opposition calling the justifications for the war into question, most notably from Senator Russ Feingold.

Additional rationales for the Iraq War were laid out in the Authorization for the Use of Military Force Against Iraq Resolution of 2002, which passed in October 2002. This important resolution provided congressional authorization for Bush to use US armed forces against Iraq. Reasons for authorizing such military force included the country's non-compliance with the 1991 UN ceasefire agreement, the repression of its civilian population, and its general threat to international security in the Persian Gulf.

The US attempted to legitimize the conflict globally by seeking to re-institute UN monitoring of Iraq's weapons programs. However, the US faced significant pushback from France and Russia, permanent members of the UN Security Council. The UN responded to US concerns in November 2002 with Resolution 1441, which resumed international monitoring and provided Saddam Hussein's government with "a final opportunity to comply with its disarmament obligations." It also provided an international justification for the invasion of Iraq in March 2003.

US Secretary of State Colin Powell addressed the UN General Assembly in February 2003 to argue that Iraq was not in compliance with Resolution 1441. There was considerable debate over what Iraq's failure to comply meant, as the resolution's language simply called for "serious consequences." JURIST Guest Columnist Matthew Heppold of the University of Nottingham School of Law argued that the phrase "serious consequences" was not the proper language to create justification for the use of force, while UK Attorney General Lord Goldsmith argued that the combined effect of UN Security Council Resolution 678, Resolution 687, and Resolution 1441 created the necessary authority. The US endorsed Goldsmith's interpretation of the text, but UN Secretary General Kofi Annan argued that unilateral military action against Iraq would violate the UN Charter.

Despite this controversy and without clear UN authorization, the US and its coalition allies invaded Iraq on March 20, 2003. The legally murky status of the invasion drew condemnation from Annan and other international figures.

International Reconstruction and Investment

International efforts to rebuild postwar Iraq generated a breadth of legal issues. Following reconstruction investments were often managed by US-based entities, and most legal claims and disputes that arose involved American citizens. Many of the prominent reconstruction disputes arose from the awarding of US government service contracts to American firms. As early as December 2003, JURIST Guest Columnist Joost Pauwelyn challenged the legality of restricting reconstruction and relief contracts to "firms from the United States, Iraq, Coalition partners and force contributing nations." Pauwelyn argued that such practices were inconsistent with the World Trade Organization's (WTO) non-discrimination principle as applied to the Government Procurement Agreement.

No-bid contracts were commonplace throughout the Iraqi reconstruction process, generating multiple US Department of Justice (DOJ) inquiries. Oil conglomerate Halliburton was the focus of severall fraud investigations. Halliburton subsidiary Kellog, Brown and Root (KBR) faced accusations regarding a five-year contract for oil field repair in November 2005. KBR was forced to pay US$4 million to settle potential claims of fraud in August 2006. Additionally, an executive of Halliburton subsidiary Eagle Global Logistics (EGL) pleaded guilty to making false statements and violating the Anti-Kickback Act in connection with the company's Iraq shipping contracts.

Following these scandals, the US government began a comprehensive crackdown on war profiteering in post-invasion Iraq. In March 2007, the US Department of Defense (DOD) began to monitor contractors involved in Iraqi reconstruction with heightened scrutiny. A federal probe was also initiated in September 2007 to respond to numerous complaints of fraud and related offenses against US government personnel and contractors. However, a 2008 DOD audit revealed that the US military failed to ensure that over US$8 billion dollars in Iraqi reconstruction contracts, awarded between 2001 and 2006, complied with federal anti-fraud laws.

The DOJ has also prosecuted individuals for extreme abuses of the contract assignment process, as in the 2007 case of former Coalition Provisional Authority (CPA) comptroller Robert Stein, who later served a sentence for conspiracy, money laundering and bribery. Individuals were also prosecuted under the Foreign Corrupt Practices Act, as in the 2006 case of Faheem Mousa Salam who was a translation contractor working for Titan Corporation.

These drawbacks notwithstanding, Iraq's petroleum sector largely recovered following the invasion. In January 2007, Iraqi legislators proposed formal parameters on the development and distribution of the national oil reserves. No agreement was ever reached, but the Iraqi Ministry of Oil awarded service contracts to develop seven separate oil fields between June 2009 and February 2010.

Some US oil companies benefited from no-bid contracts during this time period, which was described by JURIST Contributing Editor Haider Ala Hamoudi as "unusual in the industry and particularly unusual given the global demand for oil." Hamoudi went on to identify Iraq's lack of independent and qualified counsel throughout the contract assignment process:

It seems inconceivable to me that a competent lawyer (in the government, on a USAID contract or otherwise) if handed an oil contract and told that it is a contract between Iraq and an unnamed oil company and then asked to comment thereon on behalf of the Iraqi government would provide any comment further than "hire a lawyer."
Iraq's finance, private security, and telecommunications sectors reached unprecedented heights owing to the post-invasion period. As the international community sent resources and aid devoted to Iraqi reconstruction, the law continued to define clear rules according to which such efforts would proceed.

Forming the Post-Saddam Government

The invasion of Iraq was an initial military success and led to complete destruction of Saddam Hussein's regime. The military forces established the Coalition Provisional Authority (CPA) on April 21, 2003, citing UN Security Resolution 1483 as justification for its assumption of governmental control. Despite violence, the Interim Governing Council of Iraq signed the Transitional Administrative Law (TAL) on March 8, 2004, which served as the interim government's working constitution. The TAL called for the CPA to transfer power to the interim government by June 2004, on condition that national elections be held no later than January 31, 2005.

The Interim Government

The TAL stipulated that Iraq be governed as a democratic republic according to federal principles, with government power shared between central and regional authorities based upon "geographic and historical realities ... and not upon origin, race, ethnicity, nationality, or confession." The document further established essential human rights for citizens, and required the Transitional Government end the "vestiges of the oppressive acts of the previous regime arising from forced displacement, deprivation of citizenship, expropriation of financial assets and property, and dismissal from government employment for political, racial, or sectarian reasons." Islam was recognized as both the official religion of Iraq and a source of legislation, and both Arabic and Kurdish were recognized as the country's official languages.

The CPA transferred power to the interim government on June 28, 2004. However, continued cooperation efforts by the Iraqi interim government to aid US military forces was the basis for harsh criticism and led to claims that interim Prime Minister Iyad Allawi was a "puppet" of the US government. JURIST Contributing Editor Marjorie Cohn argued that this military cooperation was a failed policy that injured the legitimacy of both governments and caused extensive bloodshed:

Working hand-in-glove with the U.S. government, interim puppet prime minister Iyad Allawi helped to soften up the rebels by declaring martial law throughout most of Iraq. His authority came from legislation the human rights minister characterized as "very similar to the Patriot Act of the United States." It enables Allawi to conduct extensive surveillance, impose cordons and curfews, limit freedom of movement and association, and freeze bank accounts and seize assets ... Bush's aggressive war against the people of Iraq promises to kill many more American soldiers and untold numbers of Iraqis. Nuremberg prosecutor Justice Jackson labeled the crime of aggression "the greatest menace of our times." More than 50 years later, his words still ring true."
Despite continuing violence in November 2004, the first election of the National Assembly was scheduled for January 30, 2005. Iraqi political parties had mixed responses to the coming elections. The United Iraqi Alliance (UAI), a coalition of 23 Shia groups led by Ayatollah Ali Sistani, announced a list of 228 candidates in December 2004. However, the Iraqi Islamic Party, the country's largest Sunni political group, announced that it would not participate in the elections. Despite sectarian divisions, the UN Assistance Mission for Iraq reported that over 6,000 candidates registered for the election by December 27, 2004.

Though violence reportedly escalated on the eve of the election, the Independent Electoral Commission of Iraq estimated voter turnout to be between 60 and 75 percent, yet with a reportedly low turnout among Arab Sunni voters. The UIA received 48 percent of the vote, the Democratic Patriotic Alliance of Kurdistan (DPAK) received 26 percent and the Iraqi List, sponsored by Allawi, received 14 percent.

The Iraqi Constitution

The new National Assembly was charged primarily with ensuring that a constitution was drafted and presented for a public referendum by October 15, 2005. The Assembly formed a constitutional drafting committee, originally composed of 55 members, of whom 28 were from the UIA and 15 were from the DPAK. A perceived under-representation of Sunni interests brought political controversy, but the committee eventually reached a compromise with Sunni leaders by creating an additional 15 positions with voting rights for them. However, continuing Sunni objections resulted in delays in the drafting process and caused the committee to miss its initial drafting deadline.

On August 25, 2005, the committee presented a draft constitution to the National Assembly, inspiring large protests from Arab Sunnis who claimed that the draft was pushed through the committee by a Shia-Kurdish majority. Sunni opposition to the draft resulted in few changes from the version presented in August, other than a reference to Iraq as a founding member of the Arab League. However, less than a week before the referendum, Shia and Kurdish leaders agreed to establish a constitutional review commission to draft possible amendments for parliamentary and public approval. The successful agreement increased Sunni support for the constitution — and results of the October 15 referendum indicated 79 percent popular approval for the constitution, as confirmed by the UN Electoral Division.

Following the adoption of the Iraqi Constitution, new elections were held in December 2005. These elections created Iraq's first permanent government, amid several reports of violence. Despite allegations of fraud by Sunnis and secular Shia groups, by February 2006 Iraqi officials and the International Mission for Iraqi Elections, confirmed the results. The new legislature, the Council of Representatives, created a constitutional review committee in September 2006, responding to Sunni concerns regarding the federalist nature of the Iraqi government. Over sectarian objections, the Council approved a bill in October 2006 that increased the federal power of the Iraq government and provided for the possibility of dividing Iraq into distinct regions — a prominent concern amongst Sunni lawmakers due to the risk that dividing the country would allow majority sectarian groups to maximize their political influence.

Continuing Conflicts

Article 140 of the Iraqi Constitution, which stipulates that the government must remedy the ethnic repression under Saddam Hussein's regime, has been a source of continued ethnic division in Iraq's post-invasion government. JURIST Contributing Editor Haider Ala Hamoudi used the Iraq city of Kirkuk as an example to highlight the political turmoil caused by Article 140:

Almost since the day that Saddam's Ba'ath regime fell, the question of what to do about Kirkuk has remained unanswered. The Kurdish authorities in Iraq's north claim (correctly) that Saddam Hussein engaged in a process of forced Arabization of this historically multiethnic city. They therefore call for this process to be reversed, for the population to revert back to what it was in 1957, and then for a referendum to be held in Kirkuk to determine whether or not its population would choose to join the Kurdish autonomous zone in northern Iraq, a referendum that the Kurds would almost certainly win if held on that basis. The extent of Kurdish influence in the Iraq constitution is apparent by the fact that there is an Article in the Constitution, Article 140, that calls for the implementation of the Kurdish solution.

Naturally, this notion of turning back the clock, and reversing decades of population change, has not sat well with those who would have to be forcibly removed in order to realize it, mainly the Arab and Turkoman populations. They have resisted the implementation of Article 140 largely successfully, to Kurdish dismay. What has resulted has been something of a de facto "Kurdization" of Kirkuk, with tens of thousands of Kurds returning to Kirkuk over the past half decade, but with no substantive implementation of Article 140. The question of Kirkuk has arisen several times, most notably in the provincial elections last year, but for the most part the problem has been met with procrastination rather than decision making on what to do about it by forming committees to study an issue or by delaying an election pending further developments and the like.

Despite attempted compromises, sectarian strife and violence have continued in recent years. A controversial attempt to reform Iraqi election laws and discourage strict religious voting blocks was rejected in July 2008 and only approved in November 2009. Additional concessions were made to Sunni lawmakers in December 2010 by increasing the total number of seats in the Council and reserving them to represent Iraqis living abroad. Despite these compromises, violent political insurgency killed dozens during the elections of January 2010. Accusations of electoral fraud were also revived in January 2010, despite a certified recount by Iraq's Independent High Electoral Commission (IHEC).

The question of whether individuals suspected of ties to Saddam Hussein's Baath Party could run for political office also presented a controversy directly tied to the Iraq War. In February 2010, an Iraqi appeals court ruled that approximately 500 primarily Sunni candidates who had been barred from running for office due to suspected ties to the Baath Party could now run for office. The ruling was widely criticized, prompting the court to revise its decision and conduct a case-by-case review of the 177 candidates who had appealed the original order. This process resulted in 28 out of the 177 potential candidates being granted the right to run for office, in part due to improper filings by 140 of the appellants.

These fresh controversies caused significant delays in the formation of a new Iraqi government in 2010, and prompted pleas of urgency from UN Secretary General Ban Ki-moon in August 2010. A governmental unity agreement was approved in November 2010 after months of deadlock. It installed Prime Minister Nouri al-Maliki and President Jalal Talabani for an additional term each, but provided that other major government positions be divided equally between Sunni, Shia and Kurdish candidates.

Despite the new stability of the Iraqi government, there was still international concern regarding the temperament and administrative decisions of the new regime. Vice President Tariq al-Hashimi was under investigation on accusations that he directed bombing attacks that targeted Shiite officials. In addition, the number of executions under the new Iraqi government raised eyebrows abroad. The UN High Commission Human Rights Navi Pillay denounced the country's execution of 34 individuals in a single day for "terrorism-related offenses" in January 2012 and Human Rights Watch (HRW) released a report in February 2012 which accused Iraq of having a "flawed criminal justice system" that denies capital defendants "meaningful defense[s]." JURIST Guest Columnist Nadia Bernaz criticized the Iraqi government's commitment to the death penalty as contrary to their international responsibilities to respect life:

Although the use of the death penalty has significantly decreased since the fall of Saddam Hussein's regime, the current rise in executions show that the Iraqi authorities continue to see the death penalty as a non-exceptional sentence, and as a way to address the country's immense difficulties. All retentionist countries argue that their specific circumstances call for the continuing use of capital punishment. In the case of Iraq, terrorist attacks, which undoubtedly fall under the "most serious crimes" category, are the main justification for retaining it. However, the death penalty is currently imposed for various offenses, including crimes that are unrelated to terrorism. In a way, the country's situation is used to justify a wide use of the death penalty with no apparent logic. One strategy for the UN could be to beat the Iraqi authorities at their own game and demand that the death penalty be used exclusively for terrorist offenses that resulted in death, as opposed to calling for a moratorium on all executions. Though not satisfactory for the abolitionists, the adoption of this strategy would limit the number of executions and make the use of the death penalty truly exceptional, which could eventually lead to a complete abolition.

Trial of Saddam Hussein

Although US-led coalition forces succeeded in taking de facto control of Iraq by April 2003, the whereabouts of deposed president Saddam Hussein remained unknown during the beginning of post-invasion occupation. The capture and prosecution of Saddam was an important piece of the US war strategy — the alleged crimes of Saddam's regime had formed a significant part of the justification for military action. To this end, the US military special forces conducted Operation Red Dawn on December 13, 2003, leading to Saddam's capture in a "spider hole" near Ad-Dawr, Iraq. Following his capture, the US military moved Saddam to a US base near Baghdad. However, the US did not relinquish legal control of the former president to the interim Iraqi government until June 2005.

On July 17, 2005, the Iraqi High Criminal Court filed its first criminal charges against Saddam Hussein in relation to the 1982 killing of 150 Shias in the village of Dujail. Saddam's lawyers attempted to move the trial out of Iraq over security concerns. Despite questions regarding the haste of the proceedings, Saddam's first trial officially began in October 2005.

The tribunal convened to try Saddam was headed by a panel of five judges, and faced the enormous task of prosecuting the former president equitably. JURIST Guest Columnist Lawrence Douglas pointed out the difficulties of respect ing the criminal process while still rendering justice:

No one, I believe, would deny that the core responsibility of a criminal trial is to resolve the question of guilt in a procedurally fair manner. To insist, however, that the sole purpose of a trial is to render justice, and nothing else, defends a crabbed and untenable vision of these special proceedings. In the case of spectacular war crimes trials, it is unrealistic to expect and silly to demand that the trial be conducted as an ordinary exercise of the criminal law. The question, then, is not whether the trial should be used for these larger ends, but how to do so responsibly.
As per Iraqi law, the prosecution presented its evidence first and Judge Raouf Abdel-Rahman officially charged Saddam with crimes against humanity including the deaths of nine villagers, torture of women and children, the razing of farmlands, and the wrongful arrest of almost 400 Dujail residents. However, the criminal proceedings were disrupted early by technical difficulties and the murders of three members of Saddam's defense team: Saadoun Sughaiyer al-Janabi, Adel al-Zubeidi, and Khamis al-Obeidi. Claims of sectarian bias in Saddam's favor also led to the resignation of Chief Judge Rizgar Amin in January 2006 and the appointment of his replacement, Ra'uf Rasheed Adel-Rahman. Boycotts and hunger strikes by both Saddam and his defense team were commonplace during this and subsequent proceedings to protest alleged mistreatment.

In August 2006, the Iraqi government opened a second case against Saddam over charges that he was involved in the Anfal operation that killed 100,000 Kurds in northern Iraq in the 1980s. Despite the chaos and controversy surrounding the first trial, Saddam was convicted of both crimes against humanity for his role in the Dujail case and sentenced to death on November 5, 2006.

The sentence, and the nature of the proceedings, drew condemnation from the legal community for ignoring due process and violating international standards. JURIST Special Guest Columnist John Pace argued that the lack of propriety denied true justice to victims of Saddam's crimes: "All this made a mockery of the seriousness of the proceedings that the crimes warranted. After all crimes against humanity are exactly that: it is humanity at large that has an interest that such crimes are punished and punished in a manner that is consistent with international standards."

JURIST Special Guest Columnist Curtis Doebbler called the verdict "one of the worst abuses of justice in modern history":

This arrogant abuse of the law is part and parcel of the illegal invasion of Iraq. The trial was the direct result of multiple violations of international law, especially the illegal crime of aggression perpetrated against the Iraqi people. Actions that are the result of an illegal action must not be recognized by any state in the international community.

However, some scholars defended the verdict as a necessary step towards protecting the rule of law, a viewpoint expressed by JURIST Contributing Editor David Crane:

It was rough justice, but it was justice nonetheless, and it reflects mankind's early attempts to face down the beast of impunity. It wasn't pretty to watch, but the trial of Saddam Hussein and his henchmen shows that we are at least doing something to account for mass atrocity.

We should take this small moment of justice and resolve to move the concept of international justice forward in a consistent way that returns the respect of the law missing in areas where atrocity has happened. If we can show victims that the law is fair, that no one is above the law, and that the rule of law is more powerful than the rule of the gun, we will begin to develop a seedbed from which freedom and justice will grow. The system of tribunals and courts will greatly assist in this effort. The global community must remain focused.

Saddam's sentence was upheld on appeal. He was executed on December 29, 2006.

War Crimes Allegations

The Iraq War was plagued with accusations of war crimes and atrocities, aimed at the different parties and countries involved in the conflict. The bulk of those claims revolved around the actual combat between US, Iraqi and guerrilla forces. However, the specter of war crimes infiltrated the war early in an ultimatum issued by Defense Secretary Donald Rumsfeld in March 2003 calling on Iraqi forces to refrain from following the "desperate orders" of Saddam Hussein's regime.

As conventional Iraqi forces were swiftly defeated by invading coalition forces in 2003, guerrilla insurgent groups mobilized to continue the fight in post-invasion Iraq. Some of the insurgent groups began to use their capture of enemy combatants to make statements for their causes, torturing and killing captured soldiers and contractors then releasing footage to the media. Over time, their assaults spread to civilian and non-combatants, sparking international rebuke.

However, the killing of 24 civilians in the Iraqi city of Haditha in November 2005 by US Marines served as one of the starkest reminders of the war's brutality. Both US President George W. Bush and Iraqi Prime Minister Nouri al-Maliki called for investigation into the deaths in May 2006, and preliminary probes by US officials revealed that the killings may have been unprovoked.

The military ultimately charged four officers and three additional Marines, including Staff Sgt. Frank Wuterich with 13 counts of murder, Capt. Lucas McConnel with dereliction of duty, Lt. Col. Jeffrey Chessani with dereliction of duty and violating an order, and Lance Cpl. Stephen Tatum with involuntary manslaughter, reckless endangerment and aggravated assault. More troubling, however, was testimony during the respective trials that officers had ignored the civilian deaths as routine and failed to report them to their superior officers.

JURIST Guest Columnist Victor Hansen argued that the manner in which the US Marines chose to charge the soldiers accused in the Haditha killings reveals a double standard of criminal liability:

In Haditha, the Marines on the scene who are charged with negligent homicide and murder can face potential punishments which include many years of confinement and quite possibly life sentences. In contrast, the officers charged with dereliction of duty face a maximum of 6 months confinement, and this only if the prosecution can prove willful dereliction. If the officer's dereliction was only culpably inefficient, the maximum sentence is three months confinement. In the case of obstruction of justice, that officer faces a maximum punishment of 5 years confinement. Significantly, in order for prosecutors to prove this offence they must show that the charged officer took some wrongful affirmative actions with the specific intent of influencing or impeding criminal proceedings. Given these actus reus and mens rea requirements, proving obstruction charges against is likely to be very difficult. The practical consequence in Haditha, like so many cases before, is that the enlisted soldiers are the only ones in the chain of command to face serious criminal liability.

This double standard need not exist. There is a well established doctrine of command responsibility under international law and the law of armed conflict which allows military leaders to face serious criminal sanctions if these leaders failed to prevent, stop, or punish war crimes that are committed by the forces under their command and control. When it is established that military leaders failed in their duty to properly control their forces, these leaders can face the same criminal liability as their forces who actually committed the crimes.

Many of the charges were ultimately dropped, such as in the case of Chessani. Additionally, some of the accused officers were exonerated of their involvement in the Haditha killings. Additionally, three officers received official reprimands from the Secretary of the Navy in September 2007.

Although Wuterich's trial date was indefinitely postponed in March 2008, his trial officially restarted on January 10, 2012. He ultimately pleaded guilty to dereliction of duty on January 24, 2012, effectively ending the US military's legal proceedings regarding the Haditha massacre. However, Iraqi Prime Minister Nouri al-Maliki announced his county's intention to seek additional legal redress three days after Wuterich's plea. JURIST Contributing Editor Amos Guiora suggested that the "powerful disconnect" between the crimes committed at Haditha and the punishments meted out by the US military bespeaks a need to better emphasize the rule of law during armed conflict:

The answer ... is training, re-training and additional training, specifically on morality in armed conflict. Simply put, Haditha presents a unique teaching moment for the US military. The takeaways are clear: soldiers must be trained intensively, continuously and repeatedly to distinguish between friend and foe. Easier said than done, particularly in the amorphousness inherent to a non-traditional war paradigm. Frankly, however, there is no choice but to impose this burden on soldiers regardless of the military circumstances confronting them. Otherwise, justice can never be served either in the zone of combat or in a court of law.
At the same time that the US military was contending with accusations of war crimes in Haditha, they were already embroiled in the Abu Ghraib prison scandal, stemming from the April 2004 release of photographs showing US soldiers humiliating Iraqi prisoners in the prison facility. International advocacy groups accused the US of committing torture as well as violating international law. Abu Ghraib was only the beginning of accusations regarding the treatment of prisoners of war, as additional allegations of the summary execution of prisoners and civilians surfaced.

JURIST Contributing Editor Marjorie Cohn made the case for prosecuting Donald Rumsfeld for war crimes after he ordered such acts:

Prosecuting a war of aggression isn't Rumsfeld's only crime. He also participated in the highest levels of decision-making that allowed the extrajudicial execution of several people. Willful killing is a grave breach of the Geneva Conventions, which constitutes a war crime. In his book, Chain of Command: The Road from 9/11 to Abu Ghraib, Seymour Hersh described the "unacknowledged" special-access program (SAP) established by a top-secret order Bush signed in late 2001 or early 2002. It authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world. Rumsfeld expanded SAP into Iraq in August 2003. But Rumsfeld's crimes don't end there. He sanctioned the use of torture and cruel, inhuman and degrading treatment, which are grave breaches of the Geneva Conventions, and thus constitute war crimes. Rumsfeld approved interrogation techniques that included the use of dogs, removal of clothing, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, and deprivation of light and auditory stimuli. According to Seymour Hersh, Rumsfeld sanctioned the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld also authorized waterboarding, where the interrogator induces the sensation of imminent death by drowning. Waterboarding is widely considered a form of torture.
Many were discouraged at the perceived legal injustice for the perpetrators of the Abu Ghraib scandal. In 2007, the commanding officer of the "photo incident" of Abu Ghraib was acquitted of failing to control the soldiers under his command. JURIST Guest Columnist Victor Hansen criticized the acquittal as a failure of the military command structure to hold superior officers accountable for the crimes of their subordinates. One of the few convicted for involvement the Abu Ghraib incident, Army Spc. Charles Graner was released in August 2011 after his sentence was significantly shortened. The aftermath of Abu Ghraib continued to wind its way through US courts, with the US Court of Appeals for the Fourth Circuit dismissing a torture claim by former Abu Ghraib detainees as recently as September 2011. However, in analyzing the US military's failure to completely investigate the Abu Ghraib crimes, JURIST Guest Columnists Victor Hansen and Lawrence Friedman concluded there remained "very troubling issues that, if they are not resolved, mean that the military and civilian leadership have learned nothing from the Abu Ghraib scandal." Some of the most startling claims of war crimes were against independent military contractors — civilians leased by the government as mercenaries. Many of the crimes centered around the contracting company, whose employees in the Iraq conflict were expelled from the nation over what the new Iraqi government saw as a lack of progress by the US to sentence contractors for violent crimes. Although the US was responsible for convictions against military contractors for war crimes, the January 2010 decision to dismiss charges against five contractors in the alleged murder of 17 Iraqi citizens drew outrage from Iraq and the international community. However, the decision to appeal the dismissal earned praise from the UN Working Group on the Use of Mercenaries.

Nonetheless, a large number of incidents and alleged atrocities went without prosecution during the Iraq War, due in part to a lack of jurisdictional oversight for the mercenary forces. JURIST Guest Columnist Tara Lee analyzed the Status of Forces Agreement (SOFA) with Iraq that removed the US's jurisdictional reach over contractors:

What it does demonstrate is that the U.S. government was eager to get a SOFA signed, so as to claim progress on the path to Iraqi sovereignty. To get it signed, the U.S. government made an enormous concession as to the due process rights of one currently unpopular class of its citizens: contractors. By so conceding, we achieved a document we can point to and claim that Iraq is sovereign. Iraqi sovereignty was our stated goal in Iraq. This SOFA is just one last way for us to wave a "Mission Accomplished" banner. There was no legal reason to treat contractors differently. This SOFA does not fill a jurisdiction gap in accountability over contractors. There are already jurisdictional means by which U.S. courts can hold U.S. contractors in Iraq accountable for their actions. Nonetheless, starting January 1, 2009, the U.S. government can only do so if the Iraq government defers. According to the U.S. Department of State, there will be no exceptions to this deference, not even if the contractor is arrested for doing exactly what his U.S. government contract obligated him to do. The U.S. government is offering its contractors no due process guarantees, no indemnification, and worst of all, no answers.
The use of contractors in Iraq remainws so controversial that the UN called for the creation of international regulations for prosecuting international contractors and mercenaries. As neither the US or Iraq was a signatory to the Rome Statute at the time, the International Criminal Court (ICC) was unable to exercise jurisdiction over most of the alleged war crimes.

World leaders involved in the Iraq War faced attempted legal action, as former US President George W. Bush, Vice President Dick Cheney and UK Prime Minister Tony Blair were all accused of crimes against humanity in recent years. In November 2011, the Malaysian Kuala Lumpur Foundation to Criminalize War found Bush and Blair guilty of war crimes, following a symbolic trial. The attorney general of British Columbia was also forced to block a real lawsuit in October 2010 filed by the Canadian Centre for International Justice accusing Bush of torture.

HRW and Amnesty International (AI) both urged the Canadian government to investigate and arrest Bush for his role in torture. Other rights groups urged the signatory states of the UN Convention Against Torture to pursue criminal charges against Bush, while controversial Spanish jurist Baltasar Garzon recommended pursuing charges under universal jurisdiction beginning in March 2007. Calls to investigate the criminal culpability of Bush administration officials were consistently rejected by US officials. Although the UK government was willing to admit culpability in the deaths of civilians, it also made no moves to pursue charges against Blair.

Military Withdrawal

The withdrawal of all US troops from Iraq was a complicated issue for both the Iraqi and US governments. The long, unpopular Iraq War drew sharp domestic criticism in the US — leading to legislative and legal efforts to force the end of the conflict. In Iraq, the new government was forced into a posture of defending Iraqi sovereignty from perceived American injustices, while simultaneously relying on US troops for support and security.

To legitimize the presence of coalition forces, the UN Security Council issued annual resolutions 1511 (2003) [PDF], 1546 (2004) [PDF], 1637 (2005) [PDF], 1723 (2006) [PDF], and 1790 (2007) [PDF]. The continuous renewal of these resolutions required both a request from the Iraqi government and the approval of the UN Security Council.

These renewals were predicated primarily on the argument that an early departure of coalition forces would lead to the collapse of the newly formed Iraqi government. In July 2007, the US began issuing Benchmark Assessment Reports to track the progress of Iraq towards stability. JURIST Guest Columnist Jide Nzelibe pointed out that public opinion of the war formed a major component of the debate over when the US should leave Iraq:

With respect to the termination of wars, the President and Congress have two strikingly different approaches to public opinion. Congress tends to react to public opinion when it constrains the President's war initiatives ... In contrast, the President tends to frame and shape public opinion in his role as the commander-in-chief. Rather than follow the course of public opinion when a war is going badly, the President is more likely to entrench himself into a war and gamble that the course of the war (and public opinion) will change in his favor.

So far President Bush has been able to convince Congress and the American public that it would be foolhardy to leave Iraq in its current stage. But he should be aware that the risk of civil war or anarchy is often not enough to assuage the American public to hold the course indefinitely, especially if American casualties continue to mount. President Reagan repeatedly warned the American public and Congress that Lebanon would descend into anarchy and possible occupation by Syria if American troops pulled out in early 1984, but Americans were simply fed up with the recurring scenes of American body-bags coming home from Beirut. President Reagan turned out to be right: the Lebanese civil war did get worse and the Syrians eventually started an occupation that lasts until the present day.

The last of the UN Security Council resolutions expired on December 31, 2008, following a final extension by the UN Security Council in December 2007. The potential absence of an international mandate for US troops led to protracted negotiations between the US and Iraqi governments. JURIST Guest Columnist Kevin Govern laid out the obstacles that the governments had to overcome in reaching an agreement allowing the coalition forces to remain:
One possible way to fill the legal "vacuum" after expiration would be a Status of Forces Agreement (SOFA), sometimes also referred to as a Status of Mission Agreement (SOMA) under UN Chapter VII auspices ... The Council on Foreign Relations has noted that historically SOFAs have served as a "legal framework that defines how foreign militaries operate in a host country." Typically SOFAs are established by executive agreement, rather than treaty, but are "without uniform or standard format for the document, which can vary in length and specificity." ... SOFAs may delineate, amongst other things, who is subject to criminal and/or civil jurisdiction of the host country to which they are deploying, as well as civil liabilities such as taxation.

The draft US-Iraqi SOFA proposal has been a point of negotiation since 2004, but pursued in earnest since March 2008, tentatively addressing immunity of American troops from Iraqi prosecution, the operations of over 60 military bases in Iraq, continued power to detain Iraqi prisoners, and protections for civilian contractors, (even though American contractors do not enjoy such immunity from local laws elsewhere).

Following December 2008, the presence of US forces in Iraq was governed by the US-Iraq Status of Forces Agreement (SOFA) [PDF], signed by Iraqi President Jalal Talabani. The SOFA was to be put to a referendum which never took place. It called for complete withdrawal of US troops by the end of 2011.

In February 2009, US President Barack Obama, speaking at a military base in North Carolina, announced that the US would withdraw all combat troops from Iraq by August 31, 2010:

What we will not do is let the pursuit of the perfect stand in the way of achievable goals. We cannot rid Iraq of all who oppose America or sympathize with our adversaries... We cannot sustain indefinitely a commitment that has put a strain on our military, and will cost the American people nearly a trillion dollars. America's men and women in uniform have fought block by block, province by province, year after year, to give the Iraqis this chance to choose a better future. Now, we must ask the Iraqi people to seize it.
In the same speech, however, Obama declared that following withdrawal of combat troops, the US would maintain a force of between 35,000 and 50,000 troops to provide assistance to Iraqi security forces. The last "active" combat troops pulled out of Iraq on August 18, 2010, two weeks ahead of the self-imposed US deadline. Operation Iraqi Freedom officially concluded on August 31, 2010, when American involvement in Iraq was operationally renamed "Operation New Dawn," pursuant to a February 2010 memo [PDF] from US Defense Secretary Robert Gates.

On October 21, 2011, nearly eight-and-a-half years after the war began, Obama announced that in keeping with the terms of the SOFA, the US would withdraw all forces from Iraq by the end of 2011. On December 15, 2011, A formal ceremony was held in Baghdad, officially ending the Iraq War. By December 18, 2011, all US troops and equipment were withdrawn from Iraq.



This JURIST Feature is edited and maintained by the head of JURIST Archives Meagan McElroy and associate editor Garrett Eisenhour. Please direct any questions or comments to them at archives@jurist.org. Updated as of January 2, 2013.


JURIST Calls for Commentary
Timeline

2/09/12: Human Rights Watch troubled by Iraq execution figures

1/26/12: Iraq Prime Minister pledged action on behalf of victims of Haditha killings

1/24/12: UN Rights chief condemned Iraq's execution of 34 individuals in one day

1/24/12: Final Marine charged in Haditha killings pleaded guilty

1/9/12: Trial began for last US Marine charged in Haditha killings

12/18/11: US transferred final detainee to Iraq government

12/26/11: Iraq Vice President refused to return to Baghdad to stand trial

12/18/11: Final US combat troops left Iraq

12/15/11: US declared Iraq War over

11/22/11: UK appeals court ruled Iraq abuse probe lacks independence

11/19/11: Malaysia rights group held symbolic war crimes trial for former US, UK leaders

 ...[more]

Support JURIST

We rely on our readers to keep JURIST running

 Donate now!

© Copyright JURIST Legal News and Research Services, Inc., 2013.