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Last Updated: 04/18/2013
Fragments of the Iraq War Ten Years Later: International Law, Constitutional Law, and Erga Omnes
Kenji Urata

Ten years after the US invasion of Iraq, Professor of International Law and Vice President of IALANA Dr Kenji Urata discusses some of the literary fragments we are left with, including attempts to justify preemptive war, domestic assertions that a foreign nation should be "liberated", reassertions of American exceptionalism, and the emergence of universal jurisdiction and global constitutionalism.

The US invasion of Iraq turned out to be a textbook case of flawed assumptions, wrong-headed intelligence, propaganda manipulation, and administrative ad hockery.[1]

In this paper, I will take the 10 year anniversary of the Iraq War as an opportunity to discuss some literary fragments concerning issues of international law, constitutional law, and erga omnes.

On the Justification for Preemptive War:

The Duelfer report on Iraqi WMD as well as a mea culpa by the CIA convey attempts to use hard evidence in regard to weapons of mass destruction. However, the Duelfer report describes Saddam Hussein as being motivated largely by survival instincts and by rivalry with near neighbors, and not by aggressive intentions against the US, which was the precise claim around which Washington created a justification for preemptive war.

One scholar of ethics, citing Michael Walzer, has adopted a set of three factors when evaluating the justification of a preemptive strike: the existence of an intention to injure; the undertaking of military preparations that increase the level of danger; and the need to act immediately because of a higher degree of risk.[2] Although I do not accept this opinion as a correct criteria upon which to justify a doctrine of preemptive military action, none of these three factors was proved as fact prior to the invasion of Iraq, and the bombardment, occupation, and administrative "ad hockery" following the invasion led to unprecedented civilian casualties.

Therefore, Bush, Blair, and Rumsfeld should face trial under the Geneva Conventions. War Crimes under these conventions, it should be noted, can be prosecuted wherever the perpetrators may be.[3] To get a sense of the scale of these crimes, consider that more than one-fourth of Iraq’s population is now dead, disabled, or dislocated as a direct result of the years of US occupation.

On The Iraq Liberation Act:

In the United States, the pro-war public-relations blitz won enthusiastic support on human rights grounds. Most aggressive was the neoconservative lobby, whose Project for a New American Century had begun campaigning for direct US military action against Iraq in the 1990s. On October 31, 1998, after the first Gulf War, Bill Clinton signed the Iraq Liberation Act, which was a Congressional statement of policy calling for regime change in Iraq. The Act was cited in October 2002 to argue for the authorization of military force against the Iraqi government.

Recently (in 2013), Paul Craig Roberts wrote this comment on the Bush regime’s response to 9/11 and the Obama regime’s validation: “So much unaccountable power has been concentrated in the executive branch that the US Constitution is no longer an operative document.”[4]

On American Exceptionalism:

Manifest Destiny was both an explanation or justification for the territorial expansion of the US, and an ideology or doctrine that helped to promote the process.

American exceptionalism is the proposition that the United States is different from other countries in that it has a specific world mission to spread liberty and democracy. This observation can be traced to Alexis de Tocqueville, the first writer to describe the United States as “exceptional” in the mid-nineteenth century.

Although the term does not necessarily imply superiority, many neoconservative and American conservative writers have promoted its use in that sense. To them, the United States is like the biblical shining “City upon a Hill”, and exempt from the forces that have historical affected other countries, such as tyranny and imperialism.

However, since the 1960s, post-nationalist scholars have rejected the concept of American exceptionalism. They have been arguing that the United States had not broken from European history, and that, accordingly, the United States has retained class inequities, imperialism, and war. Furthermore, they see most nations as subscribing to some form of exceptionalism themselves.[5]

On Erga Omnes and Universal Jurisdiction:

In legal terminology, erga omnes refer to rights or obligations that are owed toward all. For instance, a property right is an erga omnes entitlement, and therefore enforceable against anybody infringing that right. In International law, it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial discrimination. The concept was recognized in the International Court of Justice’s decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33]. In its opinion of 9 July 2004, the ICJ found “the right of peoples to self-determination” to be an erga omnesThe finding referred to article 22 of the Covenant of the League of Nations.

Erga omnes may be the point where politics and human rights meet universal jurisdiction. For example, the UK’s recent use of universal jurisdiction against a Nepali colonel, Kumar Lama, for torture committed during his country’s civil war in 2005, has received a great deal of attention. Even though it was almost two months after the unexpected arrest, a British court on March 1 agreed to release Lama on bail. Lama’s arrest sends an important signal about the power and politics of universal jurisdiction. So too does the Nepali government’s choice of legal team: the same lawyers who defended Augusto Pinochet are now representing Lama. In a similarity to this case, in May 2012, George W. Bush and with five key members of his administration were convicted in absentia of war crimes at a tribunal in Kuala Lumpur, Malaysia.[6]

On Prevention, Pre-emption, and the Nuclear Option:

For around 20 years, I have been interested in the study of global constitutionalism,[7] in order to study and challenge the “New World Order” that emerged at the end of the Cold War. Bush (Sr.)’s vision was at times instrumental to the establishment of this order, and it is closely linked to the first Gulf War. Later it was the National Security Strategy that provided the platform for the “quiet revolution” in US nuclear strategy undertaken by the Bush (Jr.) administration during the period of 2002 to 2008. It was a strategy that endorsed “repeated regime change, […] a steady modernization of the nuclear arsenal” and “a determination to retain deployed nuclear weapons forever.”[8]

Despite and in opposition to these attempts, the academic endeavor of global constitutionalism has been partly focused on a movement of law scholars and international courts called the constitutionalization of international law.[9] I will elaborate on the issues raised here from this point of view at a later date.

[1] National Security Archive Briefing Book No. 418. Posted March 19, 2013. Edited by Joyce Battle and Malcolm Byrne.

[2] See Mark R. Amstutz, International ethics: concepts, theories, and cases in global politics (2nd ed., Rowman & Littlefield, 2005) Wikipedia.

[3] See Francis A. Boyle, “‘Unlimited Imperialism,’ US Expansionism and the Crimes of War,” presented at the Puerto Rican Summit Conference on Human Rights, University of the Sacred Heart, San Juan, Puerto Rico, December 7–10, 2012.

[4] Paul Craig Roberts, “It Has Happened Here: The police state is real,” February 8, 2013, Information Clearing House.

[5] See David W. Noble, Death of a nation: American culture and the end of exceptionalism, (Univ. Of Minnesota Press, 2002) xxiii ff.

[6] Luke Hunt, "Bush and Cheney on Trial," The Diplomat (May 15, 2012).

[7] A recent example is: Chris Thornhill (2012), “Contemporary constitutionalism and the dialectic of constituent power,” Global Constitutionalism, vol. 1, pp. 369–404.

[8] Aiden Warren, On Prevention, Pre-emption and the Nuclear Option (Routledge, 2012) 192.

[9] See Anne Peters, “Are We Moving Towards Constitutionalization of the World Community?” in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law (OUP: 2012) 118–135.

Kenji Urata, Vice President, IALANA, and Professor Emeritus, Waseda University.