Just War Iraq Essay

Before you begin reading, try answering this poll:

I’m really excited about this post because I’m passionate about the topic and the case I’m making – not least because I spent part of my spring break exploring this topic. If you’re as keen on knowing whether political theorists might call the war in Iraq a just one, or not, read on.

Since this is a topic that I’ve attempted to grapple with on my own, I’d appreciate if I can get substantive comments/criticisms on it – criticisms always help to strengthen an argument. Yes?

First, some context on how I got interested in this topic:

Walzer’s article on the problem of dirty hands definitely set me thinking – what I found particularly interesting was how an issue that had once been seen as wrong can be justified as being right. According to Walzer, political leaders have to sometimes compromise certain moral convictions in order for them to achieve specific political objectives. It is in such situations that the distinction between what is wrong and right is blurred. Barring the ethical dilemma that has arisen (because accepting Walzer’s argument that it is justified that political leaders make moral compromises if they feel guilty, can eventually, over time, result in a polity weakened by compromises), I couldn’t help but be intrigued by the section in which Walzer posited that moral compromises can be made – he argued that St. Augustine would not think it wrong to kill in a ‘just war’.

Now, if you know who St. Augustine was, you’d know that his magnum opus included ‘Confessions‘ and ‘The City of God‘ both of which I was taken by. I was partly taken by ‘Confessions‘ because it chronicled St. Augustine’s repentance from his sinful life (that in more ways than one paralleled mine) and I was blown away by his persuasive argument on the inextricable relationship between a just secular kingdom and a divine city.

And, Walzer, by evoking St. Augustine (whom I was enamored with) naturally stirred my interest:

Can a war ever be just? If so, what constitutes a ‘just war’?

I’m sort of a military buff, and an obsessed one at that, so I decided to spend part of my summer holiday exploring the factors that would make a war ‘just’. As I drew more and more on what political theorists have written on the subject (Walzer’s Just and Unjust Wars is also extremely influential), I also grew increasingly interested at attempting to test the generalizability of this ‘just war’ framework. As such, I decided to set aside a few days during the summer holiday (yes, I know I don’t have a life) and discuss the topic:

Was the US-led invasion of Iraq in 2003 a just war?’

Before you read on, first, watch this video (and note the rhetoric he uses to justify the war):

Was the US-led invasion of Iraq in 2003 a just war?’

The Just War theory had key contributions by Augustine, Thomas Aquinas and Francisco de Vitoria and provides the framework for the analysis of the 2003 Iraq invasion. The theory postulates that since God does not ordinarily sanction a war and interpretations offered by priests might be biased, statesmen need to rely on their faculty of reason when deciding whether to wage war (Regan 1996, 9-10). This essay analyses the Iraq invasion under the key dimensions: jus ad bellum, jus in bello and jus pos bellum. All three aspects are significant in my assessment of the reasons and conduct of war initiation and termination. In presenting a legalist paradigm, I will draw on just war theorist, Michael Walzer, linking it to critical concepts of pre-emptive and preventive war. Since justice is not measured entirely by the legalist paradigm, I will also present another perspective in which the concepts of common morality and the Responsibility to Protect (R2P) are salient.

The Iraq invasion was unjust according to the jus ad bellum criteria: Just Cause, Right Authority, Right Intention[1], Proportionate Cause, Reasonable Prospects of Success and Last Resort (Johnson 1991, 20-30). First, the Iraq war failed to uphold the just cause criterion when it was launched as a pre-emptive[2] war of self-defence due to the ‘nature and type of threat posed’ (Gupta 2008, 181). Justifying a pre-emptive war confirming America’s ‘inherent right to self-defence’ as per Article 51 of the UN Charter entails an indication of imminent threat[3] (Regan 1996, 52). However, recent revelations indicate that intelligence reports of Iraq’s pre-war capabilities were aggrandized and opposing evidence that prove Iraq was not actively expanding its Weapons of Mass Destruction (WMD) programs ignored (Miller 2008, 46-47). Ex ante and post ante evaluations indicate there was no compelling evidence of WMD in Iraq. Walzer (1977, 62) states, within the umbrage of the theory of aggression, that only aggression justifies war. However, the absence of WMD and acts of aggressions indicate that the invasion had contravened the principle of non-intervention. Ergo, there can be no claim to self-defence in the Iraq invasion since aggression is lacking.

The jus ad bellum criteria for invasion which stands if there is an immediate threat to the Coalition was not satisfied due to the nature of the pre-emptive doctrine being a preventive one. Bush’s discourses provide insights into his preventive motives, an example highlighted is the assertion that ‘Iraq could provide WMD to terrorists’ in the future (Silverstone 2007, 174).  The claim is invalidated by the lack of evidence[4] of a cooperative between Saddam Hussein and Al Qaeda (Enemark 2005, 550). Moreover, the administration’s doctrine of preventive and pre-emptive war is also flawed since for the policy to succeed, the opponent cannot subscribe to it and act pre-emptively to America’s pre-emptive or preventive attack (Fiala 2008, 87). The manipulative framing of the Iraq invasion as being pre-emptive, lack of evidence that there is imminent danger, coupled with lessening the burden of proof, set a precedent for terrorists and rogue states to model after (Miller 2008 49-50).

The Bush administration’s support for pre-emption as the official strategic policy has important consequences for the international community. In seeking to unbind itself from international laws and principles, it represents the controversial notion of American’s Exceptionalism[5]. This forceful projection, evidenced by its pre-emptory behaviour, is construed as an attempt to create a hegemonic rule in an anarchic international system. As a manifestation of America’s hard power, pre-emptive war, which in this case is unjustified, also undermines America’s credibility due to the overwhelming failure in the asymmetric warfare.  The success of war, in this essay, is defined as being more than mere military success but should also have a high probability of achieving a just peace (Karoubi 2004, 86-7) since there should be a covenantal obligation to all of God’s children implicated by the use of force (Dowd 2006, 20). It has been argued that the Coalition was undeterred by Iraq utilizing WMD and in deposing Saddam; America proved its overwhelming success (Dowd 2006, 20). However, based upon this essay’s definition of success, to argue that the Reasonable Prospects for Success criteria has been fulfilled when a just peace is not yet established would prove challenging. A majority of respondents in 33 countries indicated[6] that the Iraq invasion had increased the likelihood of terrorist attacks around the world (Ramazani 2008, 211). This indicates America has not successfully addressed the issue of terrorism that was one of the reasons for its initiation of war. The war is undeniably one of several reasons[7], realists argue, that led to the waning of America’s hegemonic influence.

Second, the legitimate authority of America launching an invasion was called into question when it waged war without explicit Security Council approval. This has important implications on three accounts: the basis of self-defence, common morality and self-determination. Based on America’s justification of self-defence, though the approval of the UN Security Council is not needed in the case of self-defence (United Nations Charter 1945), the lack of evidence justifying there being an imminent or distant threat necessitates that America seek the Security Council’s approval before it invaded Iraq. Supporters counter-argue that UN had approved the war by asserting Resolution 1441[8] provided authority for the attack (O’Keefe & Coady 2005, 37). However, most commentators concur that the use of force was not expressly or implicitly authorized (Enemark 2005, 554). A more plausible argument by supporters is that the Security Council had sanctioned the use of military force authorized in Resolution 678 (1990) since Saddam’s noncompliance with Resolution 1441 ‘revived’ Resolution 678 (Enemark 2005, 554).

The counter-argument to this is that the use of military action in Resolution 678 was authorized only to enforce Iraqi troops’ withdrawal from Kuwait in 1990 and not to invade Iraq and depose Saddam, ergo, though military action such as periodic air strikes launched in the no-fly zone might be permitted, authority to launch a full-scale invasion was not given (O’Keefe & Coady 2005, 37). Moreover, Resolution 687 establishes a ceasefire between Iraq and UN and not America, Britain or Australia (Enemark 2005, 555). As such, the fundamentalist variant holds that the UN Charter’s demarcation of the boundaries for the use of force is morally binding, hence, its contravention morally wrong. Finally, the approval of the UN provides the litmus test as to whether the judgement and reason to use force are prudent (O’Keefe & Coady 2005, 38). It is argued that though the UN did not provide approval, there was a coalition of the willing yet this argument does not stand since the thirty states that form this coalition is unrepresentative[9] of the will of the international community (Enemark 2005, 558).

Common morality justifies human intervention in the contemporary international system and has been prescribed as a collective action under the UN. The principle of beneficence necessitates a response from the international community to protect those in danger (Nardin 2002, 62-63). However, gross violations[10] of fundamental human rights that would warrant military intervention did not take place in March 2003. Hence, classifying the situation in Iraq as a humanitarian crisis is a misnomer. (Miller 2008, 56-59).  Moreover, Bush pretended to seek the authorization of the UN since he secretly told Tony Blair that he did not need a second UN resolution and from as early as December 2002 had declared that the ‘war was inevitable’ (Ramazani 2008, 211). Ergo, analysis yield that the Coalition was not endowed with the Right Authority, thus common morality is repudiated.

The Millian view of self-determination elucidated by Walzer recognizes that it is the right of the people to fight for their own freedom and any intrusive help would ultimately deprive the state of its freedom (Walzer 1977, 87-88). Democracy imposed by force is self-contradictory and not democracy since it is not a system where power belongs to the people (Rockmore 2004, 25). Furthermore, the invasion did not set in motion self-determining policies[11], thus weakening the legitimacy of America’s actions.

Third, the Coalition mounted an unjust war against Iraq since it violated the criteria of Proportionality as there was a high probability of deaths in a conventional invasion of Iraq while evidence has it that there was a low possibility that Iraq would pass on weapons of WMD to terrorists who would launch a successful attack on US (Enemark 2005, 561). Also, if the Iraq weapons were a threat, the proportionate response would be to destroy them[12] and not an invasion, occupation and subsequent reengineering of the Iraqi constitution (Fiala 2008, 87). Moreover, no-fly zones and weapons inspections were premised as sufficient to protect America’s interests (Miller 2008, 46-47). It has been counter argued that the war was proportionate and the humanitarian reason has been cited (Visser 2007, 56). Yet, this does not make a case since in March 2003, the killing was not of a dire magnitude that justified humanitarian intervention (Roth 2006, 86). The destruction of the system of government to institute another is disproportionate since the threat to Iraqis was nowhere near that scale (O’Keefe & Coady 2005, 43).

Fourth, the criterion of Reasonable Prospects of Success was not met in the American humanitarian intervention. According to the International Commission on Intervention and State Sovereignty report (2001), a war is justified if the ‘consequences of action are not likely to be worse than the consequences of inaction.’ It is arguable, however, that the consequences of action might be worse than inaction since Iraq is torn by religious hostility and ethnic struggles (Greeley 2007, 80) and should a civil conflict pan out, result in more deadly repercussions (Visser 2007, 56). Fukuyama also argues that previous[13] attempts at nation building have not been unambiguously successful and that America should have better reflected on past failures before launching a war (Fukuyama 2004, 61). Given the bloody internal turmoil, it clearly indicates the lack of planning and that the prospects of success in areas other than deposing Saddam were uncertain.

Fifth, war as a Last Resort posits that all diplomatic, economic and political means must be undertaken and proven ineffective before war is justified (Karoubi 2004, 88). It is arguable that the situation was not as dire and not enough had been done to warrant an invasion. Two weeks before the invasion, Hans Blix[14] pleaded for a few more months to complete inspections since there had been ‘an acceleration of initiatives’ by Iraq and an acceptance[15] of a disarmament policy, not to mention that Iraqi officials had made increasingly desperate peace offers to Washington (Fall 2003). The pleas were genuine yet the Iraqi proposal[16] was regarded as unworthy of pursuit and it was argued that it was dangerous to give Iraq more time (Enemark 2005, 562).  The invasion thus contradicts the criteria that war should only be launched as last resort since there were at least two alternatives[17] that had received inadequate considerations and also emphasizes the bounded rationality of leaders who make unwise decisions in a context of uncertainty and time constraints (Fiala 2008, 13).

Unjustifiable jus in bello conduct propelled by the Bush administration further countermines the justness of the invasion. Though normal citizens do not have access to information expedient for analysis of the Iraq war under the principles of jus in bello, the war crimes[18] that have been aired indicate grave violations of the conduct of war. It is hard to justify an invasion of that scale for humanitarian purposes since many American troops died and the Coalition’s reliance on sophisticated weaponry has disproportionately shifted damage to Iraqi civilians (Coady 2002, 27-8). The fact that terrorist groups are hardly distinguishable from noncombatants in an asymmetric warfare also adds to the surmounting Iraqi death count. With 4200 American soldiers dead and at least 80,000 Iraqi civilian deaths (Fiala 2008, 151), it can be argued that the Iraqi civilians were worse off than before the unjust invasion. The failure to meet the jus in bello criteria as evidenced indicates the invasion was unjust.

The neglect of the jus pos bellum criteria, a feature of the Iraq invasion, makes the war unjust. The concept of sovereignty as responsibility under the international doctrine of R2P (Keohane 2003, 275-276), instead of the Westphalian fixation on legal control provides an alternative critique of American’s intervention. External actors are justified in their military incursions only if they consider the prospects of establishing a legitimate authority before intervention. However, the invasion did not place much importance on post-intervention action as evidenced by the lack of commitment to successful institution building and the strengthening of Iraq’s sovereignty. The goal of effective war termination that includes ushering peace and full sovereignty to the Iraqis was not faithfully pursued nor fulfilled. Ergo, the jus pos bellum criteria are unmet, augmenting the argument that the invasion was unjust.

In conclusion, this essay has argued that the American invasion of Iraq was unjust since it failed to meet the three critical dimensions of the Just War Theory. Besides failing to meet the legalist’s exceptions to human intervention, i.e. aggression, it also fails to meet the R2P standards. The invasion remains a largely neoconservative[19] response to an anarchic world, in which America’s hard power threatens to make forceful claims on the territorial integrity and political sovereignty of disputing states. Not only was the war unjust, it proved America’s inclination towards unilateralism. These factors culminate in the conclusive analysis that the 2003 Iraq invasion is unjust.

Now, if you managed to make it true and are the lone survivor, congratulations. Try answering this poll:



Charter of the United Nations 1945, accessed 2011, from <http://www.un.org/aboutun/charter/chapter7.shtml&gt;.

Chesterman, S. (2001) Just war or just peace: humanitarian intervention and international law, Oxford; New York, Oxford University Press.

Dowd, C. (2006) ‘Unjust and Indefensible’, Commonweal,133(17), 16-21.

Enemark, C. and Michaelsen, C. (2005) ‘Just War Doctrine and the Invasion of Iraq’, Australian Journal of Politics and History,51(4), 545-63.

Fiala, A. G. (2008) The just war myth: the moral illusions of war, Lanham, Md., Rowman & Littlefield.

Greeley, A. M. (2007) A stupid, unjust, and criminal war: Iraq, 2001-2007, Maryknoll, N.Y., Orbis Books.

Gupta, S. (2008) ‘The Doctrine of Pre-emptive Strike: Application and Implications During the Administration of President George W. Bush’, International Political Science Review,29(2), 181-96.

Johnson, J. T. (1984) Can modern war be just?, New Haven, Yale University Press.

Johnson, J. T. and Weigel, G. (1991) Just war and the Gulf war, Washington, D.C.; Lanham, MD, Ethics and Public Policy Center.

Karoubi, M. T. (2004) Just or unjust war: international law and unilateral use of armed force by states at the turn of the 20th century, Aldershot, Hants, England; Burlington, VT, Ashgate.

Keohane, Robert. (2003) Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, New York, Cambridge University Press.

Miller, R. B. (2008) ‘Justifications of the Iraq War Examined’, Ethics & International Affairs,22(1), 43-67.

Nardin, Terry. (2002) ‘The Moral Basis for Humanitarian Intervention’, Ethics &International Affairs, 16(1), 11-27.

O’Keefe, M. P. and Coady, C. A. J. (2005) Righteous violence: the ethics and politics of military intervention, Carlton, Vic., Melbourne University Press.

Ramazani, R. K. (2008) ‘President Bush Deviates from Core American Principles in Middle East Policies ‘, Middle East Critique,17(3), 209-21.

Regan, R. J. (1996) Just war: principles and cases, Washington, D.C., Catholic University of America Press.

Robert A. Pape, ‘Realities and Obama’s diplomacy,’ <http://www.chicagotribune.com/news/nationworld/chi-perspec0308diplomacymar08,0,4785661.story&gt;, (accessed 2011), March 2009.

Rockmore, T. (2004) ‘Can War Transform Iraq into a Democracy?’, Theoria: A Journal of Social and Political Theory,(103), 15-27.

Roth, K. (2006) ‘Was the Iraq War a Humanitarian Intervention?’, Journal of Military Ethics,5(2), 84-92.

Silverstone, S. A. (2007) Preventive war and American democracy, New York, Routledge.

Fall, F (Foreign minister of Guinea serving as president of the Security Council), United Nations Security Inspectors Report to Security Council on Progress in Disarmament of Iraq, press release SC/7682, UN Headquarters, New York, 7 March.

Visser, B. (2007) ‘Can the US-Led Invasion of Iraq be Justified as a Humanitarian Intervention?’, Social Alternatives,26(1), 53-58.

Walzer, Michael. (1977) Just and Unjust Wars, New York, Basic Books.

[1] Right intention will not be discussed in this essay.

[2] It was really a war of prevention since there was no evidence of an impending attack on America and concerns were Iraq’s growing capabilities that would present future vulnerabilities and the decision to invade was based on assumptions since the worst-case scenario was not on the verge of actually occurring (Silverstone 2007, 174).

[3] In this case, the September 11 attacks were interpreted as a signal of aggression since it was insinuated that Saddam was in cahoots with Al Qaeda and that Iraq’s WMD were a threat to the security of America and its allies (Greeley 2007, 76-9).

[4] A 2008 Pentagon report corroborates that finding (Ramazani 2008, 211).

[5] This idea states that America is the moral leader on earth and its policy is to ‘end tyranny in our world’ (Fiala 2008, 73).

[6] It was indicated in a 2006 ‘World Public Opinion’ poll

[7] Other reasons include negative current account balances, growing government debt (Pape 2009) and the Subprime Mortgage Crisis.

[8] Resolution 1441 determined that Iraq was in ‘material breach’ of resolution 687: Iraq was obliged to eliminate its WMD and allow inspections (Enemark 2005, 553).

[9] A majority, including the other four permanent members of the Security Council, opposed military intervention (Enemark 2005, 558).

[10] They include: irreparable harm, cases of genocide, pogroms, large-scale losses of life or acts of terror,

[11] This is the only exception which could justify an intrusion in the self-determining process as iterated by Walzer.

[12] Like the Israeli bombing of the Osirak reactor (Fiala 2008, 87).

[13] Nation building attempts in Philippines, Nicaragua, Haiti and Afghnistan.

[14] UN weapons inspector

[15] Iraq agreed that its AL-Samoud 2 missiles had to be destroyed.

[16] Iraqi officials proposed that there would be internationally monitored elections every two tears and that 2000 FBI agents could be deployed to search for banned weapons (Enemark 2005, 562).

[17] The first was to allow UN inspectors, backed by a small US force, to continue inspections till it was proven that Iraq had no WMD or till inspections were obstructed. The second was the imposition of no-fly and no-drive zones and a tougher program of ‘coercive inspections’ that would be backed by a 50,000 strong international force (Enemark 2005, 562).

[18] Abuse and torture at Abu Ghraib prison, numerous cases of American soldiers killing civilians and wounded Iraqis, and accusations of rape that is mala in se and without doubt a war crime (Fiala 2008, 153).

[19] Overwhelming force projection to a threat or prospective threat, its endorsement of pre-emption as a strategic foreign policy and unilateralism are some of the characteristics of the neoconservatives that is relevant to the Iraq invasion.

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2003 Iraq Invasion: A “Just War” or Just a War?
An Evaluation of US Conduct Within the Framework of Just War Theory

Chapter 1: Introduction and Notes on Research

This chapter will commence the thesis by providing a brief introduction that examines the problem statement and hypothesis. It will also discuss the research questions and the methodology used in the thesis. Furthermore, the chapter will introduce the main theory used in the justification of the research that will be elaborated upon in ensuing chapters. It will also state the significance of the research to the field of International Relations. It will conclude by examining the study’s limitations and by presenting the chapter structure that will build up the core argument of the research. The chapter intends to familiarize the reader with the historical context of the core issue the thesis examines.

1.0 Introduction

In March 2003, the US attacked Iraq for the second time in just over 12 years. As Jeffrey Record points out in Dark Victory, the war was cheap in American blood; short and militarily decisive.[1] Yet the latter developments of the invasion sparked many a debate about the moral reasoning behind it, and in fact made the invasion a benchmark of what not to do before, during and after a military campaign. Post-invasion Iraq presented a telling story of wasted prospects for better opportunities.

The US invaded Iraq under the pretext of uncovering Iraq’s Weapons of Mass Destruction (WMDs), making Iraq comply with UN resolutions and saving Iraqis from decades old tyranny of Saddam Hussein.[2] Less than a year later, with the US’s inability to discover any WMDs, all three justifications presented by the US were proven wrong amidst a backdrop of rising violence, breakdown of political and economic reconstruction and intensifying sectarian divisions. Iraq therefore proved the need to consolidate peace rather than merely win wars.

The invasion thus became a litmus test of Right and Wrong War with an abundance of opinions coming its way, both in favour of and against it. The scale of the invasion coupled with the chaos and instability Iraq suffers today call for the need to defend arguments regarding the illegality and immorality of the invasion, for it was as proven time and again a campaign only of destruction with no appreciation for construction in it.

Amongst the extensive interpretations of the invasion, the Just War assessment occupied a prime position as a framework of evaluation that discusses implications of an offensive according to moral standards. Despite Just War thinkers trying to defend the Iraq invasion based on Just War criteria, the thesis believes that the invasion clashed with the esteemed and longstanding standards set forth by the Just War theory and considers any attempt to defend it as a misinterpretation of the concept of Just War.

The research therefore aims to discuss the political realities of the invasion, taking into consideration the prudence of the decision to wage war and the pre- and post-war situations in Iraq as politically unsatisfying conditions, and expects to unearth the follies of the deceptive justifications the US administration presented to validate their decision to wage war. The Iraq invasion will thus be analyzed in terms of the Just War theory, critically evaluating all three phases of the invasion, i.e. pre-, during and post-invasion scenarios.

The topic of the dissertation “2003 Iraq Invasion: A Just War or just a war?” is a modified version of a title of an article that appeared on The New York Times on 9 March 2003 by former US president Jimmy Carter. The original title of the article was “Just War—or a Just War?”[3] which encapsulated the whole discussion woven around the lack of justness of the Iraq invasion in a single sentence. The title therefore aptly captures and hints the course the thesis is about to take.

1.0.1.      Background History of Iraq

Any discussion of the 2003 invasion of Iraq will be incomplete without a mention of the pre-war situation of the country. An account of said situation is important since it is significant in making the final assessment of whether Iraq today is better off than her pre-invasion counterpart, an essential criterion of the Just War theory – i.e. to make dawn a just peace and make consequences of action better than those of inaction. It would also be useful in understanding how the US came to invade and occupy Iraq, i.e. how Iraq was made prone to external intervention due to her internal circumstances.

Iraq, a Middle Eastern country bordering Jordan, Kuwait, Saudi Arabia, Syria, Turkey and Iran, has a proud history that boasts roots dating back to the dawn of human civilization. In ancient times it was called Mesopotamia, and had an advanced system of ruling characterized by city-states that were gradually integrated into empires. The existence of the great rivers of Tigris and Euphrates enhanced Mesopotamia’s prosperity thereby turning it into a hub of civilization. As Thabit Abdullah states in his book Dictatorship, Imperialism & Chaos:

Attracted by the great agricultural wealth of the land, or perhaps because of its central location, the country witnessed periodic waves of mass migrations. Whether peaceful or through violent conquests, these migrations constantly injected new social and cultural norms which were destabilizing but also brought about a sense of dynamism and progressive change to Iraqi society. For these reasons, Iraq remained, throughout its long history, a land inhabited by a highly heterogeneous population brought together by the two rivers.[4]

Iraq was thus a grand terrain of an illustrious civilization which practiced mutual co-existence centuries before the Western world even came into existence.

In 636 CE, Iraq fell under Arab Islamic rule and witnessed a continuous changing of dynasties up to the mid-sixteenth century, and was torn by constant warfare and divisions. During the sixteenth century Ottoman and Safavid Empires reunified the Middle East. While Safavids from the Shi’i branch of Islam ruled most parts of Iraq from 1508-1534 and 1623-1638, the Ottomans who were Sunni were able to rule only three provinces, namely Mosul, Baghdad and Basra.[5] Their rule was shadowed by endless fighting with the Shi’i clan, an ancient occurrence that has found resonance in modern Iraq in the form of sectarian violence that at one time even led to a deadly insurgency.

During World War I, with the defeat of the Ottomans, the modern state of Iraq was formed and was subsequently occupied by the British. Inapt economic and social reforms introduced by the British made the Iraqis rebel against British rule in 1920, which made the British alter their policy towards Iraq by way of establishing an independent Iraqi state tied to Britain through treaties that served the best interests of Britain.[6] Then in 1921, Iraq became a constitutional monarchy with the crowning of Faisal, son of Sharif Hussein of Mecca.[7] Though being able to achieve socio-economic development, the monarchy pathetically failed to ensure social cohesion and fight divisions within Iraq, amongst which the Kurdish issue and the Sunni- Shi’i rivalry topped the list. Over the years different rulers of this royal line were able to gain more power and abuse it. Apart from internal antagonisms, the monarchy was also accused of corruption and oppression. As a result, following the end of World War II, a public frustration erupted into a revolution that called for reform, and in 1958, a military coup toppled the monarchy.

The new military regime under General Qasim was Republican in form and introduced a new reformist agenda that erased even the slightest traces of the old regime. Despite being instrumental in introducing an array of popular reforms, Qasim, like any other ruler with a massive power concentration, showed signs of becoming a dictator. His continuous opposition to the UK and US, coupled with his rejection of Pan-Arabism that sought to establish a regional identity for Arab states, more or less isolated him in the international arena.

Qasim was thrown out of power by his long time ally Colonel Arif through a military coup in 1963 with the help of the Baath party that was founded in Syria in 1944 and was receiving growing momentum by the time. Arif was only able to rule the country for five years and, in 1968, the Baath party came into power.

The Baath party primarily had a Shi’i base and drove the country into totalitarianism. In the following years Iraq was defined by the complete destruction of the old monarchy, antipathy towards foreign capitalists, rising oil prices, promoting the Baath party ideology via school curriculum, and arbitrary detention and execution of political opponents. Throughout 1970s the Baath party was able to gradually secure support and to strengthen its power base in Iraq. In 1979, Vice President Saddam Hussein became the country’s ruler after the resignation of President al-Bakr.

1.0.2.      Saddam’s Iraq and the US

Saddam Hussein assumed office in a context where distaste towards the US in the Middle East was being more freely expressed, especially after the overthrowing of the Pahlavi monarchy in Iran, the pillar of the US in the Middle East. Immediately after coming into power, Hussein invaded Iran in 1980 due to a border dispute, providing the US with an opportunity to intervene.

The US, seeing the wisdom in fuelling the fire, supported Iraq and backed all her decisions, even to the extent of defending Iraq for her use of chemical weapons against Iran at the UN. US-Iraq diplomatic ties that were strained after the 1967 war with Israel were re-established and the US was the only country to vote against a 1986 Security Council Resolution that condemned Iraq’s use of mustard gas against Iranian troops. The US unashamedly supported Hussein even in the 1988 Anfal genocide in which 50,000-186,000 Kurds were killed.[8] The US, seeking a path into the Middle East, viewed the Iran-Iraq war as a perfect opportunity to become a stakeholder in the issue and thus get a hold, however insignificant, on the region. The US’s strategic designs therefore sought to encourage Iraq and Iran to be pre-occupied with a war that was beneficial to neither of the two rivals, but served to further the US’s own interests. Iraq was the ideal place for a US military installation given the instability of the country rendered by the war.[9] The US only needed a reasonable excuse to intervene!

It was only natural for Iraq to expect aid from her ally the US for reconstruction efforts following the war. But, giving a rude shock, the US refused. Since US’s client states such as Saudi Arabia and Kuwait hiked their oil production following the ending of the war, oil prices started declining and the US felt little need to depend on Iraq anymore. Added to this was the fact that the American fantasy of an ever-grateful Hussein requesting America to set up a military installation in the strategically very important Iraq did not materialize.

Iraq was gravely hit by this action both because her principal means of income rested on oil production and she counted on the US to have her back. Hussein naturally turned against the US, which was no big loss to the latter now that Iraq did not serve any vital US interests. Adding insult to injury, Kuwait started drilling Rumaila oil fields on the Kuwait-Iraq border, deliberately provoking Iraq. Hussein decided to invade Kuwait, the worst decision in retrospect he ever made, which led to decades-long sanctions and political isolation for Iraq in the years to come. While some assert that Kuwait’s actions were encouraged by the US who was waiting for an opportunity to intervene in Iraq, there is little evidence in support of this argument. Notwithstanding the credibility of said argument, the Iraq-Kuwait war provided legitimate grounds for the US to attack Iraq.

The US misled the Hussein regime by responding to the war in mild tones that did not at any point even remotely indicate any inclination towards military intervention. However, the US gave Iraq an unpleasant surprise by suddenly invading Iraq along with a coalition with the express consent of the UN. The UN Security Council Resolution 661 that demanded immediate Iraqi evacuation from Kuwait and imposition of sanctions for non-compliance was thus the result. The invasion, famously termed as Operation Desert Storm, was characterized by merciless attacks of the US on retreating Iraqi soldiers[10] and immense destruction of Iraq’s infrastructure.

Further manipulating Security Council Resolution 688 that called for ceasing of repression of Iraqi minorities, the US, forging an act along with the UK, imposed a no-fly-zone in the North and South of the country as a gesture to make Iraq comply with said resolution. The no-fly-zones became bomb zones with US and UK regularly bombarding the areas that cost hundreds of civilian lives.

Added to that was the sanctions regime,[11] which was famously coined as Iraq’s silent genocide, which crushed Iraq’s economy in huge volumes, made Iraq’s oil go into a UN controlled account, thus making Iraq have no say whatsoever over her own resources, and finally cutting down on food and medical supplies that caused 5000 excess deaths of children per month.[12]

Therefore, it is clear that the US policy in pre-invasion Iraq was definitely not a positive one. Hussein’s dictatorship coupled with US extremism in punishing a country for not submitting to US imperialism thus became the ideal ground of torture for a population that was already weary from internal turmoil and divisions.

The US quite ironically wanted to make Iraq, a land whose situation the US was largely responsible for, a better place in 2003 when Iraq in all actuality, as proven by the International Atomic Energy Agency (IAEA)  experts, was showing positive gestures of compliance to international law and order afteryears of non-compliance.

Why then did the US decide to invade Iraq? Was it to show her might in world politics? Was it to pamper her bruised ego so rendered by Iraqi non-compliance? Or was it for reasons unknown? The thesis shall explore answers to these questions and present an account of a process of destruction of a country and its people in a paradoxical act where the intended hero became the villain.    

1.1 Problem Statement

After suffering a decade of sanctions and an even longer period of tyranny and oppression, Iraq was victimized yet again by the US led invasion in 2003 which was launched under the pretext of doing good to Iraq. Yet the invasion turned out to be an even worse fiasco that left Iraq in rumbles and scraps.

The tragedy of Iraq spurred an array of concerns from the Just War perspective, giving rise to many an interpretation of the theory, which at times were flawed. Just war theorists had no unanimity in justifying the case, and while some thinkers justified the military campaign, others disagreed using the same criteria, making the justness of Iraq war a much contested subject.

Is the Iraq war a Just War or was it just a war?’ thus becomes an interesting problem to investigate. An examination of the United States’ conduct in the Iraq war within the framework of the Just War theory will be treated as the central issue under this investigation.

1.2 Hypothesis

The US invasion of Iraq was not a Just War.

1.3 Research Questions

The central research problem in the dissertation will be whether the Iraq war was a Just War. In order to examine this problem, the research seeks to investigate the following key research questions.

  1. What is Just War?
  2. Was the US decision for the 2003 Iraq invasion in accordance with Just War principles?
  3. Can the United States intervention in Iraq be justified under International Humanitarian Law?
  4. Was the US exit strategy from Iraq ethical?
  5. Should the Just War theory be revised?

1.4 Theoretical Approach

The dissertation aims to use the Just War theory as its main analytical perspective that sets the tone for the research. This theory guides the discussion on the issue of the justifiability of the Iraq invasion which is the central issue under investigation. The theory will be discussed at length in Chapter 2.

1.5 Methodology

The central argument of the thesis will be woven around a case study, i.e. the invasion of Iraq in 2003 by the US-led forces. It therefore requires examples to justify any stance that might be assumed. In probing into the issue, examples will be drawn from a range of secondary data including books, web sources, journal articles and reports.

The aforesaid sources will provide information on the invasion and incidents related to it that could be used to verify or refute the hypothesis. Since the thesis does not expect to present figures of the human and material losses of the invasion and aims solely to analyze the prudence of certain decisions and behaviour pertaining to it, it will only take into consideration certain contested issues during, before and after the invasion as presented by said sources. The research will therefore be a qualitative one that investigates certain issues of relevance within the framework of the Just War theory instead of presenting tables, charts and figures of the invasion statistics that are abundantly available on the web.

While books will be used as a major source of information for the entire thesis, they will act as the chief information provider specifically for the section on jus ad bellum.

Use of web sources including online journal articles and reports will be frequent all throughout the thesis since articles containing insights on the issue under investigation are bounteous on the web.

Due to practical hardships in interviewing persons directly involved in the invasion, reports that contain the ground realities, including those by Human Rights Watch, will be used in the research in order to enable clearer comprehension of the argument.

1.6 Significance of Research

This research will add to the growing body of literature on the Just War tradition by analyzing all three criteria of the Just War theory in relation to the invasion of Iraq, a scope rarely covered seeing as the jus post bellum criterion is often neglected by scholars.

The thesis will also enhance understanding of all three criteria of the Just War theory including jus post bellum, the latest addition to the theory that has not been given much attention.

It will also make a significant contribution to the Just War theory by identifying loopholes in its application, and suggesting remedies for a better and more fool-proof practical use of it.

As a whole, the findings of the research will act as an evaluation of a practical example of how the Just War theory has been misinterpreted and aims to call for a revision of the theory to avoid recurrences of similar mishaps.

1.7 Limitations

Area- Iraq and USA

Time – 2003-2011

Focus- Just War Theory

The research will be conducted subject to a number of limitations. Firstly, it will only examine the US conduct within the Just War framework in relation to the Iraq invasion and will exclude the actions of coalition troops and Iraqis, which are also equally important from the Just War perspective.

Secondly, the period under investigation will be limited to eight years starting from 2003 and ending in 2011. An in-depth analysis of the historical factors that triggered the animosity between the US and Iraq will thus not be included. The thesis will only provide a succinct description of such factors.

Finally, the findings of the thesis would only reflect Just War perspectives, leaving behind other important approaches to the invasion such as Realism and Imperialism.

1.8 Chapter Structure

The outline of the thesis will progress in three steps. First it will assess the applicability of Just War norms in the US’s decision to wage war emphasizing the challenges the theory has encountered in its practical application. Following this will be the second phase of analysis in which the invasion period from 19th March-01st May 2003 will be critically evaluated according to International Humanitarian Law (IHL) provisions that reflect jus in bello norms of the Just War theory. Finally an account of the post-invasion period from 2003 to 2011 will be given within the framework of the last remaining criterion of the Just War theory to complete the analysis by giving a concise yet all-encompassing description of the theory’s applicability in the invasion.

Chapter 2, laying the foundation for the argument to proceed, will examine the main theories and concepts that will be used in the thesis. It will focus mainly on the Just War theory as the central theoretical framework of the research and will present an in-depth analysis of it. Furthermore it will expound concepts such as the pre-emptive strike doctrine and War on Terror. It would also discuss the impact neo-conservatives had on shaping Bush’s foreign policy that warranted the Iraq invasion.

The core argument of the thesis will begin in Chapter 3 by providing an account of the application of jus ad bellum in the Iraq invasion. The chapter will elaborate on how and why said criterion has been violated by the US during the invasion of Iraq.

Chapter 4 will explain the Humanitarian Law aspect of the invasion specifically when hostilities had actually begun. It will analyze the manner in which the US has conducted herself during Operation Iraqi Freedom, juxtaposing two polarized arguments, and will come to a conclusion about whether or not the US conduct violated the criterion of jus in bello.

Chapter 5 will document and critically assess specific instances in which the US conduct amounted to violations of the theory during the post-invasion phase, and will examine how the US failed to play the role of a responsible occupying power, thus contributing to the violation of all three components of the theory.

In drawing a conclusion, chapter 6 will review the initial hypothesis and assess the wisdom of the military operation according to Just War criteria. It would also lay down the limitations of the research and make suggestions for a more sound and valid application of the theory in the current global system.

Chapter 2: Theories and Concepts

This chapter will begin by providing a brief introduction to the invasion[13] of Iraq in 2003 by the Bush Administration, popularly known as the second Gulf war. It will produce a brief account of the chronology of events leading up to the invasion and offer a brief follow-up of the post-invasion phase. The chapter’s main purpose is to familiarize the main concepts and theories that will be applied in building up the argument of the thesis i.e. the justness of the Iraq War. Just War theory shall be introduced as the main theoretical framework to judge the decisions and actions taken in the invasion. The doctrine of Pre-emptive Strike and the concept of War on Terror that will be incorporated in the thesis too will be discussed at length in the chapter in order to better understand the argument.

2.0 A Brief History of the 2003 Iraq Invasion

Iraq provides a classic example of a failing state after invasion and years of military occupation by a distant foreign power who according to their interests determined the fate of a people who are culturally and politically different to them. After almost nine years of occupation, with a rising death toll and increasing incidence of violence, Iraq today faces more problems than her pre-invasion self did. With the ill-planned withdrawal of US forces in December 2011, Iraq is on her way to a chaotic and unstable state of governance with many internal challenges coming her way. It is therefore important to shed light on the 2003 invasion of Iraq by US led forces under the pretext of saving her from the decades-old brutal tyranny of Saddam Hussein and curbing the proliferation of WMD.

Under the iron-clad dictatorship of Saddam Hussein from 1979 to 2003, the Iraqis faced absolute oppression which manifested in the crushing of opposition and using brute force and state propaganda by Hussein to secure his power. Apart from these coldblooded policies, the regime was also defined by aggression to foreign powers.[14] The Iran-Iraq war bears testimony to his aggressive nature in handling foreign powers. Iraq then went on to invade Kuwait on 2nd August 1990. Having invaded and occupied Kuwait, violating the prescriptions of international law, Hussein was not hesitant to further display his contempt to said law by breaching international terms and conditions (including weapons inspection and ending the production of WMDs) agreed to at the end of the war that marked the defeat of Iraq by an international coalition in early 1990s. Owing to his disregard of international laws and conventions, the country had to face numerous sanctions that caused relentless human suffering until the end of his rule in 2003. In 2003, Hussein’s rule came to an end with him being ousted by a US led coalition.

The invasion took place against a backdrop of Iraqi compliance with the demands of the weapons inspectors[15] after a long period of non-cooperation that could have actually provoked the US-led West. Despite positive gestures shown by Iraq towards the weapons inspection programmes, the US decided to invade Iraq and remove Saddam Hussein from power. Since an in-depth analysis of the actual reasons behind the invasion is beyond the scope of this chapter, this will only provide a brief account of the chronology of events leading up to the 2003 Iraq invasion and the post-invasion situation of Iraq. The reasons for the invasion will be dealt in detail in subsequent chapters.

Though no direct link was established between Iraq and the Al-Qaeda, following the 9/11 attacks, Iraq was included in the US’s agenda of War on Terror as an enemy state. War on Terror will be given special emphasis and elaborated in subsequent paragraphs as an important landmark of the invasion of Iraq. President Bush, placing Iraq, Iran and North Korea on an Axis of Evil, sought justification to invade Iraq. The Bush administration sought the assistance of the UN Security Council to authorize an attack on Iraq since they claimed to have intelligence on Iraq’s WMD proliferation but failed to get the Council’s endorsement. Having failed that, US formed a coalition with willing states and invaded Iraq on 19th March 2003 despite heavy opposition from most of the UN member states. About 300,000 US and British troops were involved in the invasion.[16] By April 3rd the same year, troops were able to capture Baghdad International Airport and, within a few days, the whole of Baghdad[17] and by 1st May 2003, President Bush declared the US victorious.[18] Soon after the declaration, Iraq steeped into violence against both American soldiers and Iraqis who supported them. Though the US found it easy to emerge victorious in the early phase, the situation soon turned out to be chaotic. Due to sloppy security arrangements, violence soon took to the streets and prowling became the norm. The National Museum of Baghdad was ransacked with some invaluable relics gone missing.

Meanwhile in the political sphere, Saddam’s supporters of the Baath party were prohibited from being part of the new government. In December 2003 Saddam was found in a hideout.[19] In 2004 a temporary constitution was passed and in 2005 a national assembly was elected. This was a time when US troops were becoming distasteful to the Iraqis, especially among pro-Saddam factions due to which uprisings occurred against the troops. In 2005 Saddam went on trial for crimes against humanity, ironically against a backdrop in which Iraqi prisoners were abused by American soldiers.

2006 is significant in the history of the Iraq invasion since it witnessed both the election of a new Iraqi Prime Minister and the execution of its former ruler, Saddam Hussein. In 2007 the US sent additional troops with the aim of reconciling rival groups within Iraq who contributed to growing violence each day. In 2008 the Iraqi government called for the withdrawal of US troops, to which the newly-elected US president Barak Obama responded positively. By December 2011, the last brigade of US soldiers left Iraq, ending their eight-year long presence.

Though US ended her presence in Iraq in late 2011, the current situation of Iraq poses a very important question. With a rising death toll, surging violence, political commotion and escalation of terrorist activities especially Al-Qaeda attacks, has the proclaimed US mission, which was to save the Iraqis from the iron grip of a brutal dictator and to establish a peace loving democracy, been actually accomplished? Iraq today finds herself arguably in a more difficult situation than her pre-invasion self did. ‘Did the invasion in 2003 do justice to the Iraqis?’ thus becomes an interesting question to answer. The thesis intends to provide an answer to the question in the succeeding chapters. In shaping an answer to the question, it is important to review and assess the actions taken by the US before, during and after the war in order to evaluate its conduct and gains. In the process, the morality of war will be questioned in terms of the Just War Theory. Following is a brief introduction to the Just War theory that will be used as the principal theory of the thesis.

2.1 Just War Theory

Just War theory is the theory of permissible war that advocates just criteria for the launching of, conduct in and ending of war. It has a long historical tradition that dates back to medieval times. The traditional focus of the theory was predominantly on two spheres namely

i.            Jus ad bellum– Justice in going to war and

ii.            Jus in bello– Justice in the conduct of war.

There is however a recent development that concentrates on just peace which relates to the ending of war and returning from war to peace. This addition to the just war tradition is known as Jus post bellum or justice in the termination of war.

The Just War theory is important in analyzing a war situation since it occupies a middle ground between Pacifism and Political Realism, the two most commonly used theories that discuss the morality of war.[20] While Pacifism views resorting to war as an immoral act and does not justify war under any circumstances, Political Realism holds the view that “war lies beyond and is unconstrained by morality.”[21] Just War theory, which occupies the middle ground between the two extremes, discusses the idea of an acceptable war in which war is not always viewed as an immoral act and holds that subject to certain moral restraints on the conduct of war, it can be justified.

After 9/11, the Just War theory became a central issue of discussion and acquired a multiplicity of dimensions resulting from various interpretations. Proponents of the Bush administration’s decision to wage war against Iraq and Afghanistan defended it as ethical decision-making while opponents viewed it as an utter violation of ethically-accepted norms of waging war, and held the view that it undermines the just criteria set forth by historical traditions of thought pertaining to war. Theory of Just War hence began to dominate the intellectual discourse on war. It is therefore important to shed light on the historical evolution of the theory to identify its essence that has sustained through the great many debates that have taken place over the centuries.

2.1.1. Historical Evolution of the Just War Theory

The Just War theory has evolved over many centuries and stands today as a significant criterion to determine the morality of warfare. The origins of the theory as some believe date back to the classical Greek and Roman periods and are also enshrined in Christian traditions. While some claim that Aristotle’s and Cicero’s teachings reflect the essence of the Just War theory, a visible development of the theory took place as a result of St. Augustine’s teachings. In the 5th Century A.D. he laid the foundation for the theory as a means of merging traditional pacifist sentiments of Christianity with a desire of militarily defending the Holy Roman Empire from impending ruffians. To achieve this end, St. Augustine provided a limited justification for war.

Following the example set by him, the idea was developed and progressed by thinkers such as St. Thomas Aquinas, Vitoria, Suárez, Hugo Grotius and Immanuel Kant until the 18th century. From there on until the mid twentieth century, no significant improvement took place in the theory.

The 20th century was marked by events of great significance that included two world wars. As Nicholas Rengger correctly points out, the development of the Just War theory in the twentieth century was context specific and was generated by events in the political arena.[22] Stating his position, he provides an ideal example that bears testimony to the context specific development of the theory:

Thus, during the Second World War, for example, there was a debate in Britain about the legitimacy of the bombing campaign against Germany. Many, particularly in the churches, had severe doubts about this policy, especially the campaign against German cities. Led by the Anglican Bishop George Bell of Chichester, the opponents of the campaign lodged serious sets of objection against it, basing them quite explicitly on criteria developed in the just war tradition.[23]

Michael Walzer’s seminal work Just and Unjust Wars, which was written as a result of the debate over the Vietnam War, was the next most important work that rekindled interest in the Just War theory. Later in the 1980s, the Just War theory was re-discussed by American Catholic Bishops due to the proliferation of nuclear weapons. Their fear of a nuclear war made them question the morality and ethics of war. With the turn of events after 9/11, Just War, or perhaps the absence of it, began to dominate both intellectual and political discourses.

The theory therefore has enjoyed a continuous process of revision and development over the centuries. The classical version of the theory which focused more on justice, moral rights and obligations has today grown into a more legally-focused version with an emphasis on principles drawn from law. Today, the international agreements augmented by the theory are understood more within a legal framework than in moral language. The legal outlook poses severe problems to the development of the theory since law concentrates more on what is right to do during war rather than concentrating on the very decision to wage war. Consequently the theory is seen as diminishing in its value since its only being used in retrospect rather than being used as the criterion to evaluate all decisions pertaining to war, i.e. before, during and after a war. This new development undermines the whole essence of the theory which only permits justifiable wars. At present, the theory is used as a justification to any war under vague interpretations. This is partly due to its intricate nature which aims concurrently to limit waging war and to counter violations of justice. The final chapter of the thesis will concentrate on the loopholes of the theory and suggest remedies needed for better practical application of it. Focus will now be shifted to the three main criteria of the Just War theory.[24]

2.1.2. Jus ad bellum

Jus ad bellum simply denotes the rules that govern the decision to resort to armed conflict. To elaborate more on it, it provides criteria that justify going to war and determines whether or not to wage war. Jus ad bellum is usually directed towards the leaders since they are the authorities that take decisions regarding war. There are six recognized criteria of jus ad bellum. Following is a brief description of them.

1)      Just Cause- Use of force could only be justified if it aims to correct a severe public harm that involves defense against unjust aggression or intervention to stop massive violations of human rights. Rights of both states and individual citizens are taken into consideration here. A state could resort to war if its territorial boundaries are violated and its sovereignty is in question by the aggression of an outside force. On the other hand, if a state does not guarantee the fundamental rights of its own citizens, humanitarian intervention by an external authority is permissible. Just cause is perhaps the most contested realm of the theory since the invasion of Iraq. The tradition is clearly divided with regard to the justifiability of anticipated aggression, the pretext under which the US invaded Iraq. Does the mere threat of an event that has not yet happened qualify as a just cause? Answers will be provided to this question in the succeeding chapters.

2)      Legitimate Authority and Public Declaration- Insists that waging war or a decision to go to war should be instigated only by a competent authority that has been empowered to do so. The authority should follow correct procedures and the decision should be made public with the aims being clearly outlined.

3)      Right Intention- War should only be waged for the sake of the just cause and nothing else. The authorities must make sure not to let clandestine motives obscure the decision. Therefore the authorities must make sure that the just cause is not exploited by hidden intentions such as commercial gains or acquiring land.

4)      Probability of Success- The idea here is that if the war is unpromising, it is wrong to expose both combatants and non-combatants to violence when there is only a slim chance of having a constructive impact on the status quo.

5)      Proportionality- Suggests that the good a war will bring about has to outweigh the total suffering it inflicts.

6)      Last Resort- Most commonly accepted idea behind last resort is that force should be used after exhausting all possible peaceful alternatives such as diplomatic negotiations and economic sanctions. But as Jeff McMahan points out, it is more of a ‘requirement of necessity,’[25] which implies that the war must, in the circumstances, be necessary for the achievement of the just cause.

It is important to note that the assumptions set forth by jus ad bellum are questionable and there is no universal consensus on the interpretation of the principles. Different states not only use different interpretations in waging war, but also at times even violate them. The problem with the interpretation that paved way for violations of the theory during the Iraq invasion will be discussed in detail in succeeding chapters.

2.1.3. Jus in bello

Jus in bello refers to justice in the conduct of war and is usually targeted at the military commanders who have the responsibility in executing an order to wage war. It has two aspects, internal and external. Internal refers to the rules a state must adhere to with regard to its own citizens, while external implies the conduct of a state when dealing with its enemy. Jus in bello principles are important since they advocate justice in the conduct of war even if the war was fought for an unjust cause breaching jus ad bellum. Therefore the theory aims to limit injustice to the maximum possible extent. External jus in bello has six conditions that need to be satisfied for a war to be just. Following is a brief account of those.

1)      Discrimination and Non-Combatant Immunity- Suggests that war must be directed only towards those who are engaged in military action. In other words, towards combatants using weapons that are not prohibited. It is therefore not permissible to attack non-combatants as they should not be caught in situations they are not responsible for. But collateral civilian casualties are allowable since it is not humanly possible to fight a war with zero casualties.

2)      No Atrocious Weapons- International laws prohibit the use of dreadful weapons such as chemical and biological that cause great human suffering.

3)      Proportionality- Use of force should be in proportion to the end expected to meet and not more than that. This prevents the innocent from being further harmed.

4)      Humane Treatment to POWs (Prisoners of War) – Surrendered enemy soldiers must be treated well since they no longer pose a threat of harm. Geneva Convention III spells out laws pertaining to such military personnel.

5)      No Reprisals- Violation of jus in bello such as the use of banned weapons in retaliation is, as mentioned previously, prohibited by the Just War theory. Since reprisal only escalates violence, the theory leaves no space for it.

6)      No Means Mala in se. – Prohibition to use unethical means such as treason, soldiers disguising like civilians, use of prohibited weapons and other evil acts such as mass rape campaigns and genocide.

Internal jus in bello involves the protection of human rights of a state’s own population against forced conscription, violation of fundamental rights through emergency regulations, etc. Jus in bello principles are enshrined in International Humanitarian Law which aims to strike a balance between standards of humanity and military necessity. Therefore the application of jus in bello invariably involves reference to International Humanitarian Law which is the law of war/ armed conflict. Chapter 4 will bring into light the Humanitarian Law context of the Iraq invasion when discussing its jus in bello aspect. Focus will now be shifted to the most recent development of the theory, an important aspect that has being historically neglected, i.e. jus post bellum or justice in the termination of a war which is essential for just peace.

2.1.4. Jus post bellum

International law does not provide sufficient guidelines for the course of action that should be taken once hostilities come to an end. This lack of regulation carries with itself the possibility of winners’ imposing their ideas of justice forcibly on the losers. The traditional Just War theory too had a vacuum in addressing post-conflict resolution which recently was rectified. However, some believe Immanuel Kant’s idea of a perpetual peace suggested post-conflict justice in which he recognized the need for jus post bellum though not explicitly expressed it.

After a long lapse of nearly two hundred years, in 1994 Professor Michael Schuck addressed the issue of jus post bellum in a reflection upon the 1991 Persian Gulf War.[26] Since then, the idea has gradually progressed. Despite its long absence, the idea today is gaining momentum due to the Iraq and Afghan invasions by US-led forces. Jus post bellum too consists of six rules that are explained briefly below.

1)      Just Cause for Termination- In terminating a war, a reasonable vindication of rights that have been violated should take place. Since these violations are what triggered the just war, it is important to show that with the ending of the war, the problem has been rectified and the situation is better than what it was. It then becomes the correct reason to terminate the war. Revenge against the loser is thus not acceptable.

2)      Proportionality, Public Declaration and Authority- Terms of peace should be made public by a competent authority and the terms should be accepted by a legitimate authority. Also, to avoid unconditional surrender, terms of the peace agreement should be proportional to the rights that were initially violated.

3)      Discrimination- A proper distinction has to be made with regard to leaders, military personnel and civilians of the defeated country. Retaliatory measures should not be taken against the losers. This therefore disqualifies socio-economic sanctions as part of the punishment.

4)      Punishment- Firstly leaders from the aggressive country and secondly all soldiers who committed war crimes (if any) should be held responsible and should be tried for their crimes. This may include one’s own soldiers. Hence punishments should be carried out with objectivity.

5)      Compensation- Financial compensation may be given subject to proportionality and discrimination. It is also the responsibility of the victor to make sure that resources are adequate and not exploited in order that the loser may begin reconstruction.

6)      Rehabilitation- The victor may necessitate changes in the aggressor’s institutions such as demilitarization, human rights education, etc. However, reforms should only aim at creating a just society and should be relative to the scale of decadence of the aggressor.

Jus post bellum thus advocates an ethical exit strategy as opposed to a purely military one.

According to just war theorists, a war becomes just if and only if all criteria of the just war theory are met. But the interpretation of certain just war criteria are problematic since some leaders exploit them to their own advantage, thus undermining the whole essence of the theory. Though in general the theory advocates inflicting minimal suffering and providing greater justice, Just War principles are essentially indistinct and complex. Therefore it is necessary in a war to make assessments at each step along the way. It is also equally important for these assessments to be accurate, for these essentially concern the well being of another. Yet the accuracy of these assessments is subject to dispute. The issue of interpretation within the Just War theory that has set the stage for a wide array of debates concerning the intervention in Iraq will be clearly analyzed in ensuing chapters.

2.2 Changing US Security Paradigms: War on Terror, Pre-emptive Strike and the Rise of Neo-Conservatives

September 11, 2001, had a profound impact on the US’s foreign policy, causing perhaps the most deeply felt and significant change in its history since the ending of World War II. It provided US foreign policy makers with an incentive to formulate the kind of foreign policy that would not be taken lightly by the outer world. This new direction adopted by the US was marked with some interesting features, namely first-strike or the pre-emptive strike doctrine and the war on terror. The remainder of the chapter will shed light on the dynamics of the US foreign policy that invented the war on terror and converted it to a war of terror, which was directly responsible for the 2003 Iraq invasion.

The terrorist attacks of 9/11 were central in pushing the Bush administration toward America’s second war with Iraq, a highly disputed move not only within international but also domestic legal circles. The move was based on a doctrine introduced in the National Security Strategy of 2002 by the Bush Administration known as the concept of pre-emptive self defence. Pre-emptive strike was a central element of Bush’s larger framework of the War on Terror, which challenged the subsisting security norms, political theories and international law. Bush’s policies were mainly influenced by neo-conservative undertones of officials who advised his administration. Following is a brief introduction to Bush’s security strategies and ideologies that played the central role in the invasion of Iraq.

2.2.1. Global War on Terror and the Changing World Order

The Al-Qaeda attacks of 9/11 changed the course of 21st century history in an unprecedented way with the US waging war against so-called rogue regimes and replacing the Cold War with her War on Terror after a mere decade of relative tranquility that managed to not see major states of the world at each other’s throats. War on Terror brought with it an essential change in the prevailing world order: the shift from an arguably multi-polar[27] world to a uni-polar one, with the US as the leading hegemonic power. Soon after the attacks, the Bush administration changed its foreign policy with the War on Terror adopted as its key operating principle, which effectively served to increase anxiety among members of the sovereign world regarding US conduct and made them more cautious than ever in their dealings with the US. The natural result was that the US, because she was feared by other countries, became the sole hegemonic power. The War on Terror left the world with no other option but to become silent spectators of blatant violations of state sovereignty, UN resolutions, and international law and order, the foundations laid by civilized nations for a just and harmonious world.

The new turn in US foreign policy was primarily characterized by attacks against rogue regimes that, according to the US, posed a direct threat to world peace. The Bush administration adopted new measures that included the first strike strategy, which enabled the US to militarily respond to terrorism and states that sponsored terrorism. After its initial Afghan invasion in 2001 to defeat the Taliban (who allegedly assisted Osama Bin Laden and kept him in hiding), the US extended her aggressive foreign policy to include regimes that reportedly had WMDs and regimes that reportedly supported the Al-Qaeda. This decision in particular made Iraq fall prey to the US’s Global War on Terror. The prudence of this decision will be discussed in ensuing chapters.

2.2.2. Rise of the Neo-Conservatives  

The September 2002 National Security Strategy of the United States of America (NSS) clearly demonstrated the neo-conservative underpinnings of President Bush’s security and foreign policy inclinations. As Jeffrey Record points out, neo-conservative strategies included regime change in rogue states, aggressive promotion of democracy, viewing American military supremacy as a given and, most importantly, a departure from traditional US foreign policy norms, i.e. to launch preventive wars to protect national interests.[28] Every action taken in the name of foreign policy by the administration thus assumed US primacy in the post-Cold War world:[29] that had policy outcomes of immense proportion, especially with regard to US’s Middle Eastern policy. Therefore, in actual terms, President Bush’s foreign policy aimed at globalizing American morals[30] in a hostile manner, an act that was fiercely endorsed by the neo-conservatives to the apprehension of many.

Neo-conservatives mainly consisted of officials from the Department of Defense and the Vice President’s Office. They are more famously known as the Vulcans. As Chris J. Dolan points out in Striking First, “The vulcans … are the most active proponents of expanding the war on terrorism to include the use of force against states.”[31] For neo-conservatives who embraced a Reaganite policy in external affairs that hailed nationalism and interventionism with little tolerance for the rise of a new rival, 9/11 provided the ideal opportunity to promote major increases in defense spending and embark on a journey of elimination of potential rivals.

Before 9/11 the Bush administration did not have a clearly defined foreign policy, but this changed overnight with the turn of events. The vulcans viewed this as the perfect opportunity to push their neo-conservative ideas through to the executive and have a hand in determining the course of events that were to unfold following the catastrophe. The Bush administration had the ideal combination of officials to set the ideas in motion. Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld and Deputy Defense Secretary Paul Wolfowitz were all officials who were involved in the first Gulf War in the early 1990s under George Bush Sr., and thus naturally carried an inclination to end the unfinished job of Iraq by placing it within the larger agenda of War on Terror. The neo-conservative imprint on Bush’s decision in invading Iraq will be brought into light in setting the tone for the argument for jus ad bellum.

2.2.3. Axis of Evil Speech and Iraq’s Destiny

The Axis of Evil Speech at the 2002 State of the Union address is what actually brought Iraq into the heart of the wider discussion on countering enemy regimes. Until then it was an untold priority. The speech made Iraq the governing matter of the US foreign policy, thus excluding countries that had the actual potential to turn nuclear.

The speech placed Iran, Iraq and North Korea on an axis of evil that, according to Bush, posed a serious threat to world peace. According to the administration, these countries sponsored terrorism and sought nuclear weapons, and therefore the US was morally obliged to check them for the greater good of the world.

Interesting here is that even though North Korea confirmed its nuclear programme, the administration did not take prompt measures to counter her. Instead, the sole concentration was on Iraq despite the fact that there was a glaring lack of evidence to justify an attack. For Bush, Iraq had something to hide from the civilized world,[32] which was even worse than the actual threats posed by Iran and North Korea. And so, US-led forces marched in to Iraq in early 2003 with only a whim of the world’s most powerful man to back the move. The flawed decision will be elaborated on and explained in Chapter 3 when building up the argument for Jus ad bellum.

2.2.4. Pre-emption and Preventive Wars: New Dimensions of Use-of-Force

The 2002 National Security Strategy (NSS) brought with itself a key change in the realm of US security policy which played an important role in the administration’s justification of the Iraq invasion – the articulation of the doctrine of pre-emption to justify a first strike as a means of guaranteeing world peace and stability. For the first time ever, the term ‘first strike’ was used with such aggression that the administration did not particularly bother to paint the blatant falsehoods used to justify it as anything else.

The first strike doctrine therefore became an idiom for the US’s pre-eminence in 21st century world politics, giving the US an opportunity to act on her own initiative irrespective of what international law had to say. The doctrine re-evaluated deterrence and containment as obsolete principles. Commenting on how the conventional idea of deterrence will not work against terrorists, Deputy Defense Secretary Paul Wolfowitz stated the following:

Containment and deterrence goes back to an era when the only use of force we worried about was one in which the use of force could be directly associated with a country, and that country had an address. The whole thing that terrorists introduce is that you not only do not see the threat coming but you do not know where it came from.[33]

Therefore, the administration employed pre-emptive war as its latest strategy to fight terrorists and their allies. It is important to bear in mind that a distinction lies between pre-emptive and preventive strikes. While a pre-emptive strike is launched in anticipation of an imminent threat, a preventive strike is launched to destroy a potential danger of an enemy even if the danger is not imminent[34]. Hence, preventive war is usually connected with aggression and is not usually endorsed by the international community. However the UN charter does not permit any kind of first attack unless approved by the Security Council.

In 2003, renewing the doctrine of pre-emption, the Bush administration invaded Iraq on the grounds that Iraq posed an imminent threat to world peace since she accommodated a sizeable reserve of WMDs. The move was not endorsed by the Security Council. Later it was learnt that the threat was merely a perceived one as opposed to a real threat. Therefore, even though the attacks were officially categorized under pre-emption, in reality they turned out to be preventive measures.

The move therefore posed serious questions to international law and to the efficacy of the Security Council. Article 2, Section 4 of the UN charter, which restricts use of force against the territorial sovereignty of a state, was thus blatantly ignored by US-led forces. The only slim remaining chance was to justify it under Article 51 of the charter that permits a member to attack either collectively or individually if an armed attack occurs against her. This is viewed as a legitimate exercise of the right of self defence. Since there was no physical attack against the US, this ground too proved to be frail in building up an argument for the US.

The first strike doctrine will be placed as the central argument in building the case for jus ad bellum in Chapter 3.

2.3 Conclusion

In conclusion, this chapter has presented and explained the recurrent theories and concepts of the thesis so as to provide the reader with a basic understanding of the course of the thesis. Just War theory was explored as the main theory to be used in the thesis while War on Terror, Pre-emptive and Preventive strikes, and the formulation of Bush’s foreign policy were given attention as essential concepts that would complement the major focus of the study. The theories and concepts shall be subject to further scrutiny in ensuing chapters in formulating a stance either for or against the US invasion of Iraq as the case maybe. The main intention of the chapter was to set the tone for the argument that will unfold in subsequent chapters. Chapter 3 will be an examination of jus ad bellum in relation to the Iraq invasion.

Chapter 3: Iraq and the Right to War

The central argument of the thesis will be constructed in Chapter 3. The chapter will review and assess the prudence of the decision to invade Iraq based on the justifications presented by the US. In its attempt to draw a conclusion, it would explore insights into the jus ad bellum criteria that lay down the circumstances under which the use of military force can be justified. This will be followed by Chapters 4 and 5 that would present accounts of the remaining two sections of the Just War theory, namely jus in bello and jus post bellum, with regard to the invasion of Iraq.

3.0 Iraq: Threat Inflation and False Assumptions

As with any other war, in Iraq too truth was the first casualty. The 2003 Iraq invasion was thus the product of a chain of bogus assumptions, uncouth willingness to use force, deception and a depiction of an inflated threat. Following is a brief account of the debate over using force in Iraq.

The Bush administration placing Iraq on an axis of evil in his 2002 State of the Union address as a country posing a serious threat to world peace provided three prime justifications for the Iraq invasion: 1) curbing the proliferation of Iraq’s WMD programme which carried with itself the possibility of aiding terrorism; 2) holding Iraq accountable for its violations of international law and the charter of the United Nations; and 3) protecting innocent Iraqis from humanitarian abuses committed by Saddam Hussein’s regime.[35] In assessing the justness of the cause that triggered the invasion of Iraq, it is important to shed light on the declared war aims and to observe whether they have been realized since their attainment lays the foundation for a just war.

The most contested argument for just cause was presented as a means to justify pre-emptive strike which is, put simply, to curb the proliferation of Iraq’s WMDs and to halt the possibility of making them available to terrorists, specifically Al-Qaeda. Yet post-invasion evidence suggested a failure in coalition intelligence in identifying a justifiable threat to launch the invasion, thus undervaluing the whole essence of the Just War theory by violating the criterion of Just Cause. The main declared reason that warranted a military campaign in Iraq therefore proved to be a baseless and outrageous edifice of US imagination. The forces were not able to find any WMDs nor could they establish a clear connection between Iraq and Al-Qaeda.

In 2005, the 9/11 Commission reported that while Saddam’s Iraq and Al-Qaeda might have had contacts, “we have seen no evidence that these … ever developed into a collaborative operational relationship. Nor have we seen evidence indicating that Iraq cooperated with Al Qaeda in developing or carrying out attacks against the United States.”[36]

Moreover, in evaluating the justness of the attack against Iraq, one should not forget the case of North Korea, which actually had a nuclear weapons programme and consistently resisted compliance with international supervision of its nuclear programme and posed a serious threat to South Korea and Japan. Despite having glaring evidence of posing an actual threat to world peace (imminent or otherwise), North Korea was ignored and the US chose Iraq to launch the offensive. This took place against a backdrop of the International Atomic Energy Agency (IAEA) publicly declaring that its inspectors could not find any evidence that Iraq had revived its nuclear weapons programme since the elimination of it in the 1990s. Can then the attack be justified as a pre-emptive means of self-defense?

The just war tradition is clearly divided on the acceptability of pre-emption as a criterion of just cause. Morally speaking, pre-emption is neither right nor wrong, but is extremely difficult to justify given the complexity of the nature of the danger present. According to some just war thinkers, if the danger is clear and is actually present, then it qualifies as a just cause for it needs immediate remedial action to reduce the suffering it might inflict. But opponents of this idea argue that perceived dangers do not qualify as just cause since, in retrospect, they might be proven entirely works of active imagination.

In retrospect, Operation Iraqi Freedom in 2003 did not meet the necessary criteria that qualify pre-emption as just cause. Even though the Bush administration was successful in making a powerful argument to portray Iraq as a danger, it failed to prove that the danger was present and imminent to justify a pre-emptive strike. While the proliferation of WMDs indeed poses a great threat to world peace and so should be a just cause for pre-emption, in this particular case the US did not possess sufficient intelligence to presume that Iraq actually possessed WMDs, let alone pose a threat. Disregard of IAEA evidence that came from inspectors who worked on the field few months before the invasion coupled with the US’s ability to discover neither WMDs nor a connection between Al-Qaeda and the Baathist regime as shown by the 9/11 Commission’s report in 2005 thus made the US’s main argument for the invasion null and void, making the invasion an unwarranted violation of Iraq’s sovereignty.

The attack turned out to be a preventive measure that was directed towards an enemy who did not pose an imminent danger but had the potential to turn dangerous. This therefore became an act of aggression which is usually looked down upon by the civilized world as a violation of territorial integrity and political sovereignty of a free nation.

The second argument presented by the Bush administration to justify the cause that prompted the invasion was the enforcement of international law. This argument is closely connected with both just cause and legitimate authority. The latter will be elaborated in subsequent paragraphs.

At a UN speech in 2002, the Bush administration presented yet another justification for the use of force against Iraq that stated enforcement of international law and punishment for non-compliance with existing agreements and international law as a cause for the Iraq invasion. The argument rather evidently carried with itself heavy political overtones rather than a moral justification. After twelve long years of Iraq’s non-compliance with international law, a US administration all of a sudden felt the need to punish Iraq. While the early writings of the just war tradition paid serious attention to the violation of a truce, contemporary literature on just war speaks little of it. James Turner Johnson, in The War to Oust Saddam Hussein, states:

Although not included in contemporary conventional listings of the just war criteria, the historical just war tradition took the obligations incurred in truces with deep seriousness. Deliberate entry into a truce with intent to break its terms was understood as an act of deception inherently opposed to the aim of establishing a just and peaceful post war order, which, in the end, is what the just use of force is all about. In terms of the law of war, deliberate breaking of the terms of a truce reopened the conflict again at the point of which the truce was made and gave the belligerent who was wronged the rights he had up to the point when the truce was signed.[37]

Therefore, continuous Iraqi violations of UN resolutions that included the imposition of a no-fly zone intended to prevent humanitarian abuses, resolutions for disarmament and weapons inspections, and violations of the 1991 treaty at the conclusion of the Kuwait invasion all collectively provided a justification for the US to invade Iraq and to ensure compliance with international law. The Security Council Resolution 1441 on 8th November 2002 repeated the demand on Iraq to co-operate with UN weapons inspections.

But the cause for alarm is as to why the US all of a sudden felt the need to rectify Iraq, whose twelve years of obstinate disregard of international law presented better instances where US involvement was actually needed? Some argue that the attack should have come right after the first violation of the 1991 truce or when Iraq expelled UN weapons inspectors in 1998. The move could have been justified then. But the US decided to take action after twelve long years – that, too, only after her ego was rather embarrassingly bruised by Al-Qaeda.

Quite ironically, the attacks took place against a positive backdrop of Iraqi compliance with UN resolutions after years of non-compliance. Iffat Idris Malik, capturing well the ironical situation, states:

In 2002 talks began again between the UN and Iraq about the resumption of weapons inspections … On 8 November 2002 the UN Security Council unanimously passed resolution 1441 calling on Iraq to reinstate weapons inspectors. On 13 November Saddam Hussain sent a letter to Kofi Annan accepting the UN resolution. Two weeks later, weapons inspectors resumed their search in Iraq.

Despite Iraqi compliance with the demands of the weapons inspectors- including destroying its Al-Samoud missiles, Washington ‘ran out of patience’ with the regime by March 2003. A last minute offer to Saddam Hussain to leave Iraq was refused, leading to US war against Iraq.[38]

Therefore, the second claim too is invalidated due to an obvious lack of bona fide on the US’s part in launching the offensive. Added to that is the question as to whether the US had the right to enforce law on behalf of the UN without the latter’s explicit consent? The question will be answered under the criterion of legitimate authority.

The third argument presented by the US in defending her decision to invade Iraq was based on humanitarian grounds. The US’s assertion that Iraq’s need for a regime change was a result of none other than the evil behaviour of the Hussein regime with regard to its own subjects, morally speaking, is a commendable argument. In order to be qualified as a humanitarian intervention, however, there are certain tests that need to be passed, amongst which the necessity to stop ongoing mass slaughter tops the list. Yet as Kenneth Roth correctly points out, “Brutal as Saddam Hussein’s reign was, killing by his security forces in March 2003 was not of the exceptional and dire magnitude that would justify humanitarian intervention.”[39] Especially in light of the fact that during previous instances such as the 1988 Anfal genocide, where 100,000 Kurds were slaughtered by the Iraqi government, in which humanitarian intervention could have been justified, the US chose to remain silent and, in fact, to back Hussein, and chose 2003 to be the year for a military invasion to do justice to suffering Iraqis. Can this sudden sympathy towards Iraqis be a just cause for the 2003 invasion? Providing an answer to this question Roth states, “‘Better late than never’ is not a justification for the bloodshed that so often is inherent in humanitarian intervention. Military action on humanitarian grounds should be countenanced only to stop mass murder, not to make up for past inaction, despicable as a regime may be.” [40]

Furthermore, the driving force behind a humanitarian intervention should be a humanitarian purpose. In the case of the 2003 invasion, humanitarian grounds occupied only an infinitesimal space of the broader framework of arguments presented for the justification of military action, thus undermining a basic premise in the justification of a humanitarian intervention.

Added to this, post-invasion, evidence suggested that the harm the invasion caused the Iraqis outweighed the good it could have done. If the despotism of Hussein was a nightmare to most Iraqis, the civil war period that followed the invasion was a real horror. A deadly insurgency characterized by car bombings and assassinations that ravaged Iraq roughly through 2006 to 2008 made the country’s situation further deteriorate despite the presence of coalition troops, the so-called liberators of Iraqis. The situation today is far from satisfactory, owing to the abusive nature of the current government which is highly selective in the application of human rights. With a high prevalence of unfair trials and torture in detention[41], Iraq today is heading towards yet another tyranny, the only difference being that this time it is happening under a different regime.

Therefore, the failure to assess whether the invasion could meet the criteria set forth by humanitarian standards disqualifies the 2003 Iraq invasion as a humanitarian intervention, thus quashing all three claims presented by the US for a just cause.

Why then did the US administration decide to invade Iraq? The answer to this is entirely speculative and not within the scope of the research, yet an interesting question to explore. While some believe that the administration’s decision was a gesture to reaffirm US primacy in the world by punishing Iraq, who bruised US’s ego in the 1990 Gulf War by disrespecting the conditions laid by the truce, others believe it was chiefly due to the oil factor. Whatever the actual reason behind the invasion, be it a son avenging his father’s defied authority or an exploitative US eyeing Iraq’s oil reserves, these would disqualify even more drastically if considered under Just Cause criteria.

3.1 Who’s War and Who Decides?

It is important to bear in mind that the violation of even a single principle of just war excludes any action from being just. Therefore, for a war to be a just war, just war theorists suggest that all criteria set forth by the tradition have to be fulfilled. In the case of the 2003 Iraq invasion, as clearly pointed out in the preceding discussion, the US failed to meet the criterion of just cause, thus making the 2003 invasion immoral. Yet it is also important to shed light on the remaining jus ad bellum criteria to observe whether any further violation has occurred.

The legitimacy of the authority that launched the Iraq invasion was a much-disputed subject that spurred many a debate. As Dei Gloriam points out, the case for legitimate authority can be assessed on three accounts, i.e. basis of self defense, common morality and self-determination.[42]

Article 51 of the UN Charter permits retaliation for self defense if an armed attack occurs against a member. Such retaliations do not require the endorsement of the UN Security Council. In the case of the 2003 Iraq invasion, this principle of self defense does not hold ground in building up an argument for the US since no armed attack occurred against her. But in the event of the presence of an imminent threat, legitimate right can be exercised subject to the consent of the Security Council. The 2003 Iraq invasion can be partially justified under this criterion because the US presented a persuasive argument of an imminent threat posed by Iraq to the US’s security. But as pointed out in the preceding discussion, lack of evidence for the case of said threat effectively nullified the argument for self defense. Even if a threat was present, the argument is still flawed since the US failed to get Security Council authorization prior to launching the attack. Therefore, the invasion became an unjustified expression of arrogance on the part of the Coalition of the Willing.

Common morality is grounded on international law and humanitarian sentiments. As discussed above, one argument presented by the US to justify the invasion was the need to enforce international law. Though there was a need to make Iraq comply with existing international law, the US had no right to take unilateral action against violations of UN sanctions. It was the UN that had the legitimate right to take such action.

Also, any humanitarian intervention under the existing international system is stipulated as a collective action under the UN or any other internationally-authorized body such as NATO (North Atlantic Treaty Organization) that too after much deliberation and consent from the Security Council. The 2003 military campaign was not backed by such legitimate authority, but rather was initiated purely based on the whims of the US. ‘The Coalition of the Willing’ thus became an illegitimate authority that, due to some mysterious reason, burdened itself with the responsibility of enforcing international law and carrying out a humanitarian intervention which was not actually needed (as pointed out before, gross violations of fundamental rights that warrant an intervention did not take place in Iraq at the time of the invasion).

With regard to self-determination, the right is vested in the hands of Iraqis to fight for their own freedom against the tyranny of Hussein. Any forcefully imposed democracy is therefore inconsistent with this argument, as with the case of Iraq in 2003. The US planned, attacked and imposed their system on Iraqis, who were ultimately deprived of the power to decide their own fate. Therefore, the legitimacy of US actions is questioned against a backdrop of the absence of self-governing rules for the Iraqis.

Though the US was able to fulfill the criterion for public declaration by publicly communicating its desire to invade Iraq and by asking Hussein and his sons to step down from power within 48 hours on 19th March 2003, given the absence of legitimate right to declare war against Iraq, this action has next to no significance.

3.2 Better Rather than Worse[43]

Any military campaign should make things better rather than worse for the subjects concerned. This is the argument of proportionality. It therefore aims to limit the damage of war. For the principle of proportionality to be maintained, the case for threats has to be validated.

On principle, the grave risks related to WMDs justify an invasion to curb their proliferation. In reality, however, the US failed to meet the requirement of proportionality due to the high probability of deaths expected during the invasion and the low possibility of Iraq passing its imaginary WMDs to terrorists. Furthermore, the post-invasion occupation of Iraq up to 2011, coupled with regime change, was not proportionate to the professed threat of WMDs in 2003. The proportional measure would have been removing weapons. Dei Gloriam quoting Fiala states, “Also, if the Iraq weapons were a threat, the proportionate response would be to destroy them and not an invasion, occupation and subsequent reengineering of the Iraqi constitution.”[44]

The humanitarian argument too fails the test of proportionality since the invasion did not make conditions better for Iraqis. It in fact served to make the situation worse. Given the absence of the required magnitude of Human Rights violations that warrant a humanitarian intervention, any military measure taken in the name of rectifying a perceived Human Rights violation as with the case of Iraq is disproportionate to the actual prevalent conditions.

3.3 Iraq and the Prospects of Success

The 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) states that in justifying any military intervention, an important criterion is to assess whether the consequences of action are not worse than that of inaction.[45] Was this the case in Iraq?

While some believe that hope for success in a military intervention should be purely in terms of military success that excludes nation building efforts from its domain, the thesis holds the view that success should denote more than military victory since the ultimate goal of any war is not to leave a nation in ruins, but rather to re-build it to stand as testimony to the positive influence of the war. In the current case it therefore refers to both the post-invasion situation of Iraq and that of the military victory. Although the military pre-eminence of the coalition forces was an indisputable factor, and the forces therefore were able to achieve their immediate aim of toppling the Hussein regime within a very short span of time, the success the thesis concentrates on runs deeper.

‘Is the post-invasion Iraq a better and safer place than its pre-invasion counterpart?’ thus becomes an interesting question to answer. In Iraq the answer is a pathetic ‘No’. As is repeatedly pointed out in the course of the thesis, Iraq today is characterized by intense sectarian violence, civil disorder, escalating regime abuses and even the potential to resort to a civil war not unlike that between 2006 and 2008. The deteriorating conditions in Iraq that at times even claimed the lives of coalition members in suicide bomb attacks depict a wretched picture of coalition planning, or rather the lack of it, in making Iraq a better place than what it was. The coalition was thus unsuccessful in success since their actions are evidently yielding worse results than would have been the case if there was inaction.

3.4 Exhausting the Exhaustible: Iraq and the Case for Last Resort

Within a context of all justifications for a just cause presented by the US proven false, the moral debate over the use of force in Iraq, during latter stages, shifted its attention from pre-emption to last resort to assess whether the US was left with no other option but to invade. While it is hard to establish a prudential test for last resort, in theory it suggests the exhaustion of all reasonable options prior to launching a military intervention. In the case of Iraq, the options would have been diplomatic negotiations, extended sanctions and further UN inspections.

The question is whether these options were all exhausted prior to the invasion. While some argue that UN weapons inspections should have been given more time, some say Iraq was seriously testing the patience of the peace-loving world. So for them, more time meant giving extra time for Iraq to disobey the rules set by the civilized world.

The thesis holds the view that UN weapons inspections should have been given more time due to the fact that UN weapons inspector Hans Blix asked for a few more months of continued weapons inspections as Iraq had been showing positive signs of compliance, not the least of which is agreeing to destroy her Al-Samoud missiles. Despite having this reasonable alternative at hand, the US chose to invade Iraq, at a point even disregarding peace offers made by Iraq.[46] Therefore it is only rational to conclude that the US failed to uphold the moral standard of last resort as prescribed by the just war theory.

3.5 Right Intention in an Act of False Assumptions

Right Intention of jus ad bellum criteria refers to an ethical strategy in launching war that should be devoid of ulterior motives and of which the sole expected aim has to be the achievement of the just cause. Right Intention includes as its main aim the establishment of just peace. Any military intervention devoid of this aim becomes an exercise of destruction and the criterion aspires to avoid such occurrences.

The 2003 Iraq invasion is a classic example of exceeding the limits set to war by the principle of Right Intention. The Coalition of the Willing failed to stop short of occupation and regime change that were not needed in the attainment of the main declared reason that warranted the invasion, i.e. curbing the proliferation of WMDs. The reasonable action here would have been to disarm the regime. This was ignored by the US-led forces. Instead, as per the US’s wishes, occupation and subsequent regime change occurred, which effectively invalidated the case for self-defense.

Iraq’s compliance with UN weapons inspections regime, coupled with the absence of evidence of an actual threat that warranted a humanitarian intervention, rendered the remaining two claims for a just cause null and void. Right Intention is out of the question in the absence of a just cause since the former advocates limiting the war to the pursuit and securing of the Just Cause. Hence it would be reasonable to argue that the US waged a war of great human and material cost either to defend a cause that was not in existence or, more plausibly, to serve an ulterior motive the nature of which can only be speculated.

3.6 Points to Ponder

The point of departure of this chapter would be the remark that US conduct in the 2003 Iraq invasion had violated all norms set forth by jus ad bellum, thus calling for a serious revision of the theory that would not warrant outrageous interpretations of the criteria. Careful scrutiny of the chapter makes it clear that theories and moral prescriptions alone are woefully inadequate in setting moral standards that should be met when launching a war. Such measures would leave space for the repetition of appalling cases such as Iraq. Therefore these standards should be spelt in legal language to make them enforceable and, in case of violations, punishable. Since punishment is a phenomenon humans fear, states in the future would make sure to prudently weigh their military decisions before acting upon them, if and when violations of moral standards are to occur.

However, an argument could be built for the US with regard to the right to self-defense. Said right can, according to existing requirements, be exercised only when the threat is imminent. It might be possible that Iraq, bonded as it is with the Al-Qaeda by Islamic brotherhood and a war of Jihad against the US, coupled with her aggressive and even obstinate conduct in the past, spawned concern in the high offices of Washington as a looming potential threat. Given the broader context of 9/11 and the unprecedented fear and anxiety created in the collective mindset of the US following the incident, the question arises as to whether a proximate threat qualifies as an imminent threat that demands exercising the right to self-defense? This then calls for an innovation to the requirement of imminent threat by extending it to include potential threats that justify an anticipatory war. However, it is important to observe here that in order to justify US conduct even under one criterion, a revision of Just Cause is necessary. US conduct under existing moral standards, then, simply cannot be justified.

Another important recurrent point of the chapter is that of the violation of political sovereignty and territorial integrity of weaker states by their mighty and powerful counterparts while the international community meekly submits to the power of the mighty state. Can one state alone dictate terms to the whole community of nations merely because she assumes she is politically, economically and militarily supreme? What then does the ‘sovereign equality’ of states as affirmed in the UN Charter mean?

Another interesting interpretation suggested by the literature on the US decision to invade Iraq is that despite a glaring lack of evidence to justify the right to go to war with Iraq, the US still felt confident and decided to invade Iraq since the decision was not based on intelligence information but rather on US arrogance in assuming supremacy in world politics. This decision in particular had heavy neo-conservative undertones for most officials in Bush’s war cabinet were neo-conservatives. For them, threat assessment was irrelevant as long as they were provided with an opportunity to display American supremacy either politically, economically or militarily. Iraq provided them with an ideal environment for said showcasing. Officials from the Department of Defense and the Vice President’s Office, including Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld and Deputy Defense Secretary Paul Wolfowitz, were all hardcore neo-conservatives who were also involved in the first Gulf War in 1990. Theirs was a hurt ego that needed to be pampered by concluding the unfinished business in Iraq.

As James Mann points out in Rise of the Vulcans, the invasion served the neo-conservatives with five main purposes, all of which accounted to a reinstatement of US primacy.[47] First, their belief in the supremacy of US military power, which they wanted to display since the defeat at the Vietnam War, was restored. Next, America as a force of righteousness was paraded at least according to them. Third, their sanguine belief that US capabilities were not declining in a globalized world was reaffirmed. Fourth, the reluctance of neo-conservatives to carry out any peace attempt, such as entering an agreement or negotiation, was evident by their endorsement of the military invasion that displayed the American superior mentality of being able to survive alone with no allies due to the sheer power they possess. And finally, quoting Mann:

The war in Iraq served as a demonstration of the Vulcans’ commitment to the strategy Paul Wolfowitz’s Pentagon staff had drafted at the end of the cold war: America would build up its military power to such an extent that it would be fruitless and financially crippling for any other country to hope to compete with it.[48]

The neo-conservatives were thus able to reassure US primacy in the current international order at the cost of undermining ethical criteria set by the civilized world to govern itself. They did what moralists wouldn’t dare do!

The chapter also presents the ineffectiveness of international organizations such as the UN in halting unjustified unilateral invasions, such as the 2003 Iraq invasion, and therefore recommends strengthening them to face down violations of international law. Also, an interesting phenomenon is how global political supremacy of a particular state helps her get away with grave crimes committed, specifically in this instance the crime of aggression. It is the responsibility of each state to respect existing international law as a source that sets forth the standards of common morality to all states, which the US failed to do.

Finally, and most importantly, it should be understood that the magnitude of the Iraq invasion has given the US enormous clout to shape the world’s perception regarding her powers. Therefore any attempt to justify the decision to invade Iraq under the pretext of the just war theory would be a misuse of the theory for it has, as proven in the preceding discussion, violated the criteria of jus ad bellum, and hence would naturally spark off debates with regard to the equal applicability of the theory.

3.7 Conclusion

In conclusion, it can be said that the chapter presented an account of US behaviour in the 2003 Iraq invasion within the criteria of jus ad bellum and carefully assessed whether the US has been able to meet the said criteria. A careful evaluation has made it clear that the criteria of jus ad bellum have been violated by the US in the 2003 Iraq invasion. In drawing a conclusion, the chapter also suggests remedial action for a better and more effective application of jus ad bellum to avoid future occurrences of this nature.

Chapter 4: Iraq and the Law of War

This chapter will be an examination of the applicability of International Humanitarian Law (IHL), also known as the Law of War or Law of Armed Conflict, in the 2003 Iraq invasion. Since jus in bello criteria are enshrined in International Humanitarian Law, any assessment of it with regard to the Iraq invasion will be invariably linked to International Humanitarian Law. Taking a different approach from the previous chapter, this will take into account two contesting arguments presented by Schmitt and Human Rights Watch on the application of IHL with regard to US conduct during the invasion, and the more logical of the two will be used as the basis to build the case for this chapter. The scope of the chapter would be from the point the attacks were launched on 19th March 2003 to Bush’s 1st May announcement that major combat operations in Iraq have ended. Any incident of significance that took place afterwards would be discussed in Chapter 5 under jus post bellum or post-invasion justice in Iraq.

4.0 What is International Humanitarian Law?

International Humanitarian Law (IHL) traditionally known as jus in bello:


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