JURIST Contributing Editor Mary Ellen O'Connell of Notre Dame Law School says that five years after the invasion of Iraq, with talk of a new war with Iran circulating in Washington, the United States would do well to reflect on the grave and unfortunate consequences of flouting international law...
Going into Iraq, we ignored the UN Charter, which prohibits the use of force except in self-defense or with Security Council authorization. Once in Iraq, we ignored the Hague Regulations, requiring us to put a stop to looting and to make only necessary changes to local law and government. We ignored the Geneva Conventions, which prohibit secret detention and abuse of prisoners of the kind we saw at Abu Ghraib.
The talk on Iraq is all about what went wrong, whether the surge is working, and when we can get out. We hear virtually nothing about international law and look set to repeat our mistakes. Violating the law has cost our nation and Iraq dearly. It has denied us the guidance of rules based on long experience and moral consensus. We have lost standing in the world, a literal fortune, and precious lives. Rather than internalizing the lesson of law violation in Iraq, we continue to defy the law in serious and self-destructive ways.
The United Nations Charter restricts the use of force to self-defense to an armed attack or to use with Security Council authorization. We had the legal right to go to the aid of Kuwait in collective self-defense after Saddam Hussein attacked that country in 1990. The Security Council also authorized Kuwait's liberation and authorized certain limited measures to ensure Kuwait's future security. We were permitted to use force in Afghanistan in 2001 if it was true, as the British argued, that the Taliban had made common cause with al Qaeda in the 9/11 attacks.
As a Pentagon report released in mid-March shows, however, there was no attack on the United States by Iraqâno role in 9/11. Indeed, the U.S. did not even try to say on March 19, 2003, that an attack was the legal basis of the invasion. Rather, we tried to argue the Security Council authorized the invasion in 1990-1991. The Security Council did not, of course, authorize an invasion in 2003 thirteen years earlier. We made this implausible argument because we could not get fresh authorization on the eve of the invasion since most members of the Security Council wanted more evidence of Saddam Hussein's defiance of Council disarmament mandates. They wanted to wait for real evidence. We should have heeded that collective wisdom. It was, after all, what the law required.
Some may believe Security Council authorization is no longer needed if an invasion removes a dictator from power. That is not the law, however. It never was the law, nor, after Iraq and other failed invasions to impose new political arrangements, is it likely to become the law. At the United Nations World Summit in September 2005, representatives of the international community overwhelmingly endorsed the continued obligation to limit the use of force to self-defense, unless authorized by the Security Council.
Our failure to follow the law in resorting to force in Iraq was compounded by our failure to obey the law governing occupation. Running roughshod over the Hague Regulations on occupation and the Geneva Conventions on detention created the conditions for the insurgency to succeed and helped give our adversaries' greater will to fight. This error was repeated when President Bush vetoed a bill on March 11, 2008, requiring the C.I.A. to comply with international law in the conduct of interrogation and when it was revealed a day later that we have held another individual in secret detention for the last six months.
Again, we sent the message that we do not fight by the rules; we do not respect fundamental human rights. The President's veto cannot change the international law governing interrogation or the absolute prohibition on prolonged, secret detention. C.I.A. personnel should be on notice that secret detention and cruelty to detainees remains unlawful under international law and participants in such crimes may one day be held accountable. As with our failure to follow the rules on use of force and occupation, our failure to follow the rules on interrogation hurts us in quite tangible, immediate ways. Cruelty is immoral and unlawful; its results are unreliable.
Most worrying of all on this fifth anniversary is the talk of yet another unlawful war. The Central Command's Admiral Fallon resigned after media reports of his opposition to attacking Iran. According to an article in Esquire magazine, with Fallon out "it may well mean that the president and the vice-president intend to take military action against Iran before the end of the yearâ¦." (Thomas P.M. Barnett, The Man Between War and Peace, ESQUIRE, Mar. 11, 2008) Iran would have to launch a significant attack on the United States or launch a significant attack on another state that formally requested our assistance to lawfully attack Iran in self-defense. The Security Council, after the debacle in Iraq, will rightly be cautious about authorizing any such war.
The President, his advisers, and too many members of Congress have not, apparently, learned the essential lesson of the Iraq War at five years. They are not looking to international law to guide our conduct. Even critics of the administration are not discussing international law. The world is discussing international law, however. They hold us to this standard, to which we should hold ourselves. And even if complying with international law were not the right thing to do, it is the wise thing to do: The lesson of Iraq could not be plainer.
For more on the topics addressed here, see, also by the author:
Responsibility to Peace, Dec. 27, 2007, available at http://www.sefbonn.org/en/events/index.php
The Ban on the Bombâand Bombing: Iran, the U.S. and the International Law of Self-Defense, 57 SYR. L. J. 497 (2007) (with Maria Alveras-Chen)
Affirming the Ban on Harsh Interrogation, 66 O. ST. L. J. 1231 (2005)
Lawful Self-Defense to Terrorism, 63 U. OF PITT. L.R. 889 (2002)
Mary Ellen O'Connell holds the Robert and Marion Short Chair in Law at the University of Notre Dame