Ethical Lessons Learned in Iraq

 
 
The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Air Force, the Department of Defense, or the U.S. Government.
 

[1] For those of us who felt strongly that the invasion of Iraq was a mistake of monumental proportions, it gives no pleasure to say, "I told you so." When asked my opinion in advance of the invasion, I had two standard replies: 1) "This is President Bush's single greatest faith based initiative" and 2) "It will be much like Vietnam, except (unlike Vietnam), Iraq really is important." By that I meant that getting tangled up for a long time in the Muslim world as an occupying force was a recipe for strategic complexity and difficulty whose consequences were impossible to predict clearly, but huge.

[2] So now that we're several years in with no "exit strategy" in sight, no functioning Iraqi government months after the election, 275 billion dollars spent, over 2,300 American soldiers killed and over 17,000 wounded, and intercommunal violence rising to levels that lead reasonable people to start talking about civil war, what lessons can we learn from this adventure?

[3] I'll focus on the state of international law and international organizations.

International Law and jus ad bellum
[4] For over a century, at least since the Kellogg-Briand pact of 1928, international law regarding legitimate use of military force has been governed by what Michael Walzer famously called "the legalist paradigm." In that paradigm, use of military force is legitimate only if it is in response to direct attack on a sovereign state. In the case of Iraq, although the administration did everything possible to confuse the public on this point-apparently with considerable success!-Iraq had absolutely nothing to do with the attacks against the United States in 2001.

[5] The creation of the United Nations system established another means to legitimate military force: a collective determination by the Security Council that a given situation created a threat to international peace and security. Despite legalistic U.S. arguments that existing resolutions authorized the U.S. to use force, clearly the Security Council did not authorize "all necessary means" (the usual U.N. euphemism) to deal with Iraq. Further, given how things turned out, it's pretty clear the other members of the Council were right not to be persuaded by U.S. attempts to show an imminent threat from Iraq.[6] Of course the U.S. was aware of this problem and in the 2002 National Security Strategy articulated an argument for "revising" (there's room to argue whether such a revision amounts to a rejection!) of established understandings of the anticipatory self-defense exception to the legalist paradigm:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat-most often a visible mobilization of armies, navies, and air forces preparing to attack.

We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction-weapons that can be easily concealed, delivered covertly, and used without warning.

The greater the threat, the greater is the risk of inaction- and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. National Security Strategy of the United States of America, 2002 (Italics mine).

[7] On this point, it is important to distinguish two questions. On the one hand, there is the general claim that, given the nature of the new threats (non-deterrable, non-state actors, possibly possessing WMDs), it is no longer possible to wait to respond to attack. On the other, there's the obvious misapplication of that general claim to the specific case of Iraq. As we move forward, regardless of what we collectively conclude about the Iraq intervention specifically, the general problem remains as a real and important question and not one unique to this particular American administration. Indeed, as recently as April 6 of this year, British Secretary of State for Defence John Reid offered a major speech on the question, in which he stressed that while adherence to international law was crucial to British policy, nevertheless these new threats demanded urgent international debate to prevent the law lagging so far behind security realities as to invite unilateral exception-making.

[8] Sometimes customary international law changes when nations perform actions outside the boundaries of accepted international law that come to be viewed as reasonable by most states after the fact. The U.S. intervention in Iraq, it seems safe to say, is not going to be one of those occasions. Be that as it may, however, the problem is genuine and urgently needs addressing.

[9] In the existing legal framework, if the Security Council could be brought to act consistently on threats to international peace and security, these problems could be handled within existing ethical and legal frames. But clearly that is unlikely. The divergent political and economic interests of the member states (especially the permanent members of the Council) make it unlikely that the Council can speak with one voice - and even more unlikely that it can do so consistently. Witness the haggling over sanctions for Iran at the moment for an illustration of the problem.

[10] On the other hand, the kind of virtually unilateral action by the U.S. the Iraq war represents is clearly destabilizing of the entirely framework of international law built up so carefully over centuries. Interventions that cannot meet a "reasonable person" test in the international community-neither prospectively nor retrospectively-threaten to return us to nothing more than a "reason of state" justification for war (in other words, the leadership of this state just decided to do it for its own reasons, which it feels no obligation to share or justify).

[11] So where does this leave us? On the one hand, given the very real nature of the threat, no prudent leader can or should allow the dysfunctional U.N. system or international law not yet adapted to the new realities to constraint anticipatory self-defense against real threats. On the other hand, unilateral assertion of competence to decide on interventions, completely unconstrained by any other states and their opinions, threatens to unravel international law and legitimacy entirely. At a minimum, therefore, the U.S. must work to heal some of the diplomatic breaches with many of even our best international friends. 

[12] Anticipatory attack, especially against organizations as shadowy as al Qaeda, will inevitably involve mistakes and interventions with borders of sovereign states that do not cooperate with efforts to detain or destroy their operations. Such issues, since they do indeed depart from international law, will always threaten to undermine U.S. legitimacy. At minimum, other states sharing in similar values and subject to similar threats can and should be brought into at least working agreement on the "rules" for such new operations. A minimum test should be this: if even our best friends in the world don't understand our justifications for our actions, perhaps we should reconsider how sure we are we're right.

[13] One lesson learned from Iraq is this, as un-politically correct to say it as it might be: we'd have been better off if we'd listened to the French and the Germans. We might well have been spared the unnecessary and open-ended war that lies before us.

 

 

© June 2006
Journal of Lutheran Ethics
Volume 6, Issue 6