To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.
It is usual for lawyer in the US and Europe to speak about the impunity of states and their leaders in Africa, the Middle East and Asia escaping punishment for their misdeeds that violate international law. In fact, history shows us that over the past century it has been Western governments and their leaders who have just as often, or more often, committed international crimes for which they have not been punished.
The aggression against the people of Iraq starting in 1992, cumulating in the full-scale invasion of the country starting in March 2003, and continuing through the occupation is no exception.
The use of force against Iraq and the egregious acts against the people of Iraq are once again examples of some of the most serious violations of international law that have gone unpunished. The most significant beneficiaries of this immunity have been Americans, but they are not the only ones. Moreover, some the individuals who defended the aggression against Iraq have not only escaped punishment but have been elevated to such positions as international representatives of their country, UN envoys, professors of law, heads of law firms, and even a judge of the International Court of Justice (ICJ). Perhaps not all of these people were legally culpable for the acts of aggression that have been reliably estimated to be responsible for as many a one-and-half million Iraqi deaths. The mere fact that these individuals justified such illegal actions must make any defender of the rule of international law cringe.
Given the gravity of the harm done to the people to Iraq, it is neither inappropriate nor a gross exaggeration to compare the situation to the Holocaust during World War II. Could anyone imagine allowing immunity for that atrocity? In fact, the world did not, as Justice Robert Jackson's quote suggests. So why do we fail to act the perpetrators and defenders of such crimes when they happen to Iraqis? It is certainly not because the law is unclear.
For a state to be responsible for an internationally wrongful act it is necessary to find an act attributable to a state that violates that state's international obligations. That the use of force against Iraq is attributable to the US and its allies cannot be doubted. Senior US government officials acknowledged even bragged that the attack was attributable to the US. Other governments such as the UK and the Netherlands, although more humbly, also acknowledged that they had been involved in a use of force against Iraq.
We know that the use of force is prohibited under international law not only because the treaty that prevails over all other treaties, the UN Charter tells us that in Article 2, Paragraph 4, but because customary international law has repeatedly emphasized the importance of the prohibition of the use of force by one state against another.
The ICJ has repeatedly held that the prohibition of use of force is part of customary international law. The 1986 case of Nicaragua v. United States of America is perhaps the most cited of the many examples that can be found. Paragraph 4 reads in relevant part that "the United States of America, by certain attacks on Nicaraguan territory ... which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State." While the US eventually agreed to an in-kind reparation, it has acted with impunity long after this case.
The US was more recently found to have acted in violation of the prohibition of the use of force against Iran in the Case Concerning Oil Platforms decided in 2003. The US again escaped with impunity based on a jurisdictional limitation, despite having clearly violated the international law prohibiting of the use of force.
In the case of Iraq the overwhelming view of legal experts is that the use of force was a violation of international law. These legal experts include a Dutch Government Panel, the Center for Constitutional Rights, the International Commission of Jurists, the National Lawyers' Guild, Greenpeace, the Lawyers' Committee on Nuclear Policy, and even the then-UN Secretary-General Kofi Annan, among many others.
The Dutch Government Panel concluded that there was no justification for the use of force and that the commonly relied upon UN Security Council Resolution 1441 "cannot reasonably be interpreted as authorizing individual member states to use military force to compel Iraq to comply with the Security Council's resolutions." Still no case has been heard against any state for its use of force against Iraq.
While state responsibility for the use of force against Iraq is perhaps the most egregious case of impunity in relation to the aggression against the Iraqi people, it is unfortunately not the only one. Although several lawyers filed human rights cases against the US and UK governments for their abuse of prisoners and for unfair trial of Iraqi president Saddam Hussein, most of these cases have resulted in impunity in unusual ways that do not strengthen the integrity of the international bodies that dealt with them.
Cases filed against the US in the Inter-American Commission on Human Rights alleging the violation of international humanitarian law for its actions against prisoners of war in Guantanamo Bay have either remained dormant or have been ignored. The first case filed for the treatment of Afghan prisoners of war in 2001 remains without any response more than a decade later. A subsequent case filed by the Center for Constitutional Rights was the subject of multiple favorable decisions on interim measures, but the US openly ignored these decisions.
Only in July 2011 did the European Court of Human Rights (ECHR) finally end the impunity of the UK for its violations of the right to life of persons under their control in the cases of Al-Skeini v. UK and Al-Jedda v. UK. In doing so, the Court stressed the exceptional circumstances of the cases as if to apologize for finding that the UK had violated human rights.
Years ago, cases filed on Saddam's behalf, who the UN Working Group on Arbitrary Detention twice determined was subject to an unfair trial and arbitrary detention in violation of international law, were dismissed by the ECHR. The Court claimed that there was no proof that the US and the UK had control over the Iraqi president. They refused to accept the evidence of a letter jointly signed by the US and the UK governments stating that they were the occupying powers in Iraq and the well-established principle of international humanitarian law that occupying powers are responsible for prisoners held by the occupying powers. The Washington, DC-based Inter-American Commission on Human Rights has refused to rule on petition by the Iraqi president to this day.
In addition to State impunity, the violence in Iraq has also given rise to much individual impunity. While a small number of military and private contractors have been found guilty of serious crimes against Iraqis, the overwhelming majority have either not been prosecuted or have received such de minimus sentences as to make the prosecutions almost meaningless.
The failure to adequately investigate and prosecute the serious international crimes against Iraqis devalues the rule of international law. Fortunately, it may not be too late to recover the value of the law, if that is what we really want to do.
Curtis Doebbler is an international lawyer with an office in Washington DC, a professor at Webster University and the Geneva School of Diplomacy and International Relations, both located in Geneva, Switzerland, and the representative of Nord-Sud XXI at the UN in New York and Geneva.
Suggested citation: Curtis Doebbler, The use of Force Against Iraq and Other Violations of International Law and Impunity, JURIST - Forum, Dec. 19, 2011, http://jurist.org/forum/2011/12/curtis-doebbler-iraq-retrospective.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org