Iraq War: An Affront to Nuremberg

The tenth anniversary of the Iraq War has understandably focused on the thousands upon thousands of people killed and the chaos unleashed. But the war also dealt a harsh blow to the legal principles that U.S. leaders helped enshrine after World War II, as Marjorie Cohn noted in this excerpt from “Cowboy Republic.”

By Marjorie Cohn

According to sources inside the administration, George W. Bush was planning to invade Iraq and remove its government well before the terrorist attacks of September 11, 2001. Such an invasion violates the UN Charter, which the United States signed in 1945 after the bloodiest conflict in history.

The Charter permits countries to use military force against another country only in self-defense or with Security Council permission. But the evidence indicates that the U.S.-led invasion satisfied neither condition and is therefore a war of aggression, which constitutes a Crime Against Peace – exactly the kind of war the Charter was meant to prevent.

Although Bush marketed the war in Iraq as necessary to protect us from Saddam Hussein’s weapons of mass destruction (WMD), his decisions had less to do with self-defense than with dominating the oil-rich Middle East. Some evidence for this conclusion can be found in a September 2000 report prepared by the neoconservative Project for a New American Century (PNAC).

The report, commissioned by Dick Cheney, outlines a plan “to maintain American military preeminence that is consistent with the requirements of a strategy of American global leadership.” It notes that while “the unresolved conflict with Iraq provides the immediate justification, the need for a substantial American force presence in the Gulf transcends the issue of the regime of Saddam Hussein.”

Another document produced for Vice President Cheney’s secret Energy Task Force included a map of Iraqi oilfields, pipelines, refineries and terminals as well as charts detailing Iraqi oil and gas projects and “Foreign Suitors for Iraqi Oilfield Contracts.” That document was dated March 2001, six months before 9/11 and two years before Bush invaded Iraq.

After 9/11, the Bush administration attacked Afghanistan and removed the Taliban from power. But the primary target all along was Iraq. To sell the war to the American people, the administration made two claims and repeated them like a mantra. First, Iraq had weapons of mass destruction. Second, it had ties with al-Qaeda and was thus complicit in the 9/11 attacks. Although the administration argued that both reasons justified the use of force against Iraq, it was advised repeatedly that neither claim was valid.

No Weapons of Mass Destruction

An August 2006 report prepared at the direction of Rep. John Conyers, Jr. found that “members of the Bush Administration misstated, overstated, and manipulated intelligence with regards to linkages between Iraq and Al Qaeda; the acquisition of nuclear weapons by Iraq; the acquisition of aluminum tubes to be used as uranium centrifuges; and the acquisition of uranium from Niger.” The report also noted that “[b]eyond making false and misleading statements about Iraq’s attempt to acquire nuclear weapons, the record shows the Bush Administration must have known these statements conflicted with known international and domestic intelligence at the time.”

Finding that the administration had also misstated or overstated intelligence information regarding chemical and biological weapons, the report concluded that “these misstatements were in contradiction of known countervailing intelligence information, and were the result of political pressure and manipulation.” In short, the Bush gang misrepresented the WMD threat to justify its planned invasion of Iraq.

No Connection Between Iraq and al Qaeda

On September 21, 2001, Bush was told in the President’s Daily Brief that the intelligence community had no evidence connecting Saddam Hussein’s regime to the 9/11 attacks. Furthermore, there was scant credible evidence that Iraq had any significant collaborative ties with al Qaeda. This was no surprise. Al Qaeda is a consortium of intensely religious Islamic fundamentalists, whereas Hussein ran a secular government that repressed religious activity in Iraq.

Undeterred, Bush and his people continued to tout the connection. Although the Defense Intelligence Agency (DIA) determined in February 2002 that “Iraq is unlikely to have provided bin Laden any useful [chemical or biological weapons] knowledge or assistance,” Bush proclaimed one year later, “Iraq has also provided al-Qaeda with chemical and biological weapons training.”

And although the CIA concluded in a classified January 2003 report that Hussein “viewed Islamic extremists operating inside Iraq as a threat,” Cheney claimed the next day that the Iraqi government “aids and protects terrorists, including members of al-Qaeda.”

To support their claims that Iraq was training al-Qaeda members, Bush, Cheney, and Colin Powell repeatedly cited information provided by Ibn al-Shaykh al-Libi, an al-Qaeda prisoner captured shortly after 9/11. An ex-FBI official told Newsweek that the CIA “duct-taped [al-Libi’s] mouth, cinched him up and sent him to Cairo” for some “more-fearsome Egyptian interrogations” in violation of U.S. law prohibiting extraordinary rendition.

Al-Libi’s account proved worthless. The February 2002 DIA memo reveals al-Libi provided his American interrogators with false material suggesting Iraq had trained al-Qaeda to use weapons of mass destruction. Even though U.S. intelligence thought the information was untrue as early as 2002 because it was obtained by torture, al-Libi’s information provided the centerpiece of Colin Powell’s now thoroughly discredited February 2003 claim before the United Nations that Iraq had developed WMD programs.

The March to War

Unable to find any WMD or connection between Iraq and the 9/11 attacks, Bush never wavered in his march toward war. “From the very beginning,” former Treasury Secretary Paul O’Neill said on 60 Minutes, “there was a conviction that Saddam Hussein was a bad person and that he needed to go. It was all about finding a way to do it. That was the tone of it. The president saying, ‘Go find me a way to do this.'”

On September 15, 2001, in a meeting at Camp David, Defense Secretary Donald Rumsfeld suggested an attack on Iraq because he was deeply worried about the availability of “good targets in Afghanistan.” Former Deputy Defense Secretary Paul Wolfowitz argued that war against Iraq might be “easier than against Afghanistan.”

The 9/11 Commission Report noted that as early as September 20, 2001, Undersecretary of Defense for Policy Douglas Feith suggested attacking Iraq in response to the 9/11 attacks. In late November 2001, Bush instructed Rumsfeld to develop an Iraq war plan. “What have you got in terms of plans for Iraq?,” Bush asked.  “What is the status of the war plan? I want you to get on it. I want you to keep it secret.”

In his January 2002 State of the Union Address, Bush declared that countries like Iraq, Iran, and North Korea “constitute an axis of evil . . . These regimes pose a grave and growing danger . . . I will not wait on events, while dangers gather.”

As early as February 2002, the Bush administration took concrete steps to deploy military troops and assets into Iraq without advising Congress or seeking its approval. By late March, Dick Cheney told his fellow Republicans that a decision had been made to invade Iraq. The same month, Bush poked his head into Condoleezza Rice’s office and said, “Fuck Saddam. We’re taking him out.”

In July 2002, a highly classified document titled CentCom Courses of Action was leaked to the New York Times. Prepared two months earlier, it contained what the Pentagon labeled a “war plan” for invading Iraq. The document, which indicated an advanced stage of planning, called for tens of thousands of marines and soldiers to attack Iraq from the air, land, and sea to topple Saddam Hussein.

In August 2002, Cheney cautioned that Saddam Hussein could try to dominate “the entire Middle East and subject the United States to nuclear blackmail.” He added, “There is no doubt that Saddam Hussein now has weapons of mass destruction.” The same month, the Bush administration quietly established the White House Iraq Group (WHIG) to lead a propaganda campaign to bolster public support for war with Iraq.

Shortly after WHIG convened, White House officials told the New York Times there was a meticulously planned strategy to sell a war against Iraq to the American people. But the White House decided to wait until after Labor Day to kick off the plan. The reason, as explained by White House chief of staff Andrew Card, seemed straight from the pages of George Orwell’s 1984: “From a marketing point of view,” Card said, “you don’t introduce new products in August.”

The new product was introduced the following month by National Security Adviser Condoleezza Rice, who warned, “We don’t want the smoking gun to be a mushroom cloud.” The same week, on the anniversary of 9/11, Bush declared the United States would “not allow any terrorist or tyrant to threaten civilization with weapons of mass murder.” The next day, in an address to the United Nations, Bush reiterated that Iraq was a “grave and gathering danger.”

Three weeks before the midterm elections, Congress gave Bush the “Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq.” The White House wanted to pass the resolution while many in Congress were facing reelection; those who opposed Bush’s war on Iraq would be painted as soft on terror.

The resolution said Iraq posed a “continuing threat to the national security of the United States” by “continuing to possess and develop a significant chemical and biological weapons capability” and “actively seeking a nuclear weapons capability.” It authorized the President to use the Armed Forces to “defend the national security of the United States against the continuing threat posed by Iraq” and to “enforce all relevant United Nations Security Council Resolutions regarding Iraq.”

Iraq didn’t pose a threat to the United States, and only the Security Council has the power to enforce its resolutions. But Congress capitulated to the Bush gang’s hyperbole and intense pressure. Some legislators later said they were duped by the Bush administration into voting for this resolution.

In his 2003 State of the Union address, Bush famously claimed, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” It was pure fiction. “The White House kept saying that no decision had been made about Iraq, but only the blind or the deaf could fail to see that a decision had long ago been made,” Frank Rich wrote in The Greatest Story Ever Sold.

The Real Motive

Why was Bush so determined to invade Iraq? Wolfowitz admitted that the WMD rationale was a “bureaucratic” excuse for war that everyone could agree on. When no WMD turned up, Wolfowitz revealed a new raison d’etre: the invasion of Iraq was a way to redraw the Middle East to reduce the terrorist threat to the United States.

In November 2002, Rumsfeld sought to decouple oil access from regime change in Iraq when he claimed that the U.S. beef with Iraq had “nothing to do with oil, literally nothing to do with oil.” A year later, Bush announced in his State of the Union Address, “We have no desire to dominate, no ambitions of empire.” But the denials were unconvincing, and a great deal of evidence suggests that oil and domination had everything to do with the decision to invade.

In February 2001, a month after Bush’s inauguration, White House officials discussed a memo called “Plan for Post-Saddam Iraq,” which described troop requirements, establishing war crimes tribunals, and dividing up Iraq’s oil wealth.”

Meanwhile, Treasury Secretary Paul O’Neill was astonished to discover that actual plans “were already being discussed to take over Iraq and occupy it – complete with disposition of oil fields, peacekeeping forces, and war crimes tribunals – carrying forward an unspoken doctrine of preemptive war.” According to O’Neill, a preemptive attack on Iraq and the prospect of dividing the world’s second largest oil reserve among the world’s contractors “made for an irresistible combination.”

The Self-Defense Argument

Returning to the legality of the Iraq invasion and occupation, we find that the UN Charter requires all members to settle their international disputes by peaceful means. No nation can use military force against the territorial integrity or political independence of any other country.

As noted earlier, the only two exceptions to this prohibition are when a nation acts in self-defense or when the Security Council authorizes the use of force. A country may use military force in individual or collective self-defense “if an armed attack occurs” against a U.N. member country or in response to an imminent attack. It is well established that the need for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

Iraq had not attacked any other nation for 11 years. It lacked both the capacity and the will to lodge an imminent attack on any country. Its military capability had been severely weakened by the Gulf War, years of punishing sanctions and intrusive inspections, and almost daily bombing raids by the United States and Britain over the “no-fly zones.”

Bush made little pretense that Iraq constituted an imminent threat. Rather, he invoked his own doctrine of “preemptive war” to justify his attack. He unveiled that doctrine in a speech at West Point in June 2002. “We must take the battle to the enemy,” Bush said, “disrupt his plans, and confront the worst threats before they emerge.” The international community was unmoved. Quite simply, the U.S. invasion of Iraq wasn’t self-defense because it didn’t respond to an armed or imminent attack.

The Security Council Never Authorized War

The UN Charter declares that no member has the right to enforce any Security Council resolution with military action unless the Council decides there has been a material breach of its resolution and all non-military means of enforcement have been exhausted. Then the Council may authorize the use of military force. The use of armed force for preemptive or retaliatory purposes is prohibited by the Charter.

Bush was never interested in achieving a diplomatic solution in Iraq. Bush tried mightily to arrange a Security Council resolution that would authorize his war, but the Council refused. Bush then cobbled together prior resolutions to rationalize his invasion. None of them, however, individually or collectively, constituted authorization for his use of force against Iraq.

Faced with Iraq’s increasing cooperation with weapons inspectors in the weeks leading up to the invasion, Bush’s rationale for disarming Iraq morphed into “regime change” to bring democracy to the Iraqi people. But forcible regime change violates the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States and therefore part of our domestic law under the Supremacy Clause of the Constitution.

Shock and Awe, and Consequences

Despite the absence of Security Council authorization, a quarter million troops from the United States and the United Kingdom invaded Iraq in March 2003.  Delivering on their promise to “shock and awe,” the “coalition forces” dropped several 2,000-pound bombs on Baghdad in rapid succession, in what the New York Times dubbed “almost biblical power.”

Since then, the use of cluster bombs, depleted uranium, and white phosphorous gas by U.S. forces in Iraq has been documented. These are weapons of mass destruction. Cluster bomb cannisters contain tiny bomblets which can spread over a vast area. Unexploded cluster bombs are frequently picked up by children and explode, resulting in serious injury or death. Depleted uranium weapons spread high levels of radiation over vast areas of land. White phosphorous gas melts the skin and burns to the bone.

The Geneva Convention Relative to the Protection of Civilian Persons in time of War (Geneva IV) classifies “willfully causing great suffering or serious injury to body or health” as a grave breach. The US War Crimes Act punishes grave breaches of Geneva as war crimes. The Bush administration is committing war crimes with its use of these weapons.

“Operation Iraqi Freedom” unleashed a tragedy of immense proportion. Close to 7,000 Iraqi civilians were killed in July and August 2006 alone. In October 2006, the British medical journal the Lancet published a study conducted by Iraqi physicians with oversight by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health. The study estimated that 655,000 Iraqi civilians had died since Bush invaded Iraq in March 2003.

Loss of life isn’t the only shocking and awful consequence of “Operation Iraqi Freedom.” The United Nations concluded in its July-August 2006 report that bodies found “often bear signs of severe torture, including acid-induced injuries and burns caused by chemical substances, missing skin, broken bones (back, hands and legs), missing eyes, missing teeth and wounds caused by power drills or nails.”

Furthermore, “Operation Iraqi Freedom” has led to anti-American sentiment elsewhere. According to a declassified portion of the April 2006 National Intelligence Estimate, which represents the consensus of the 16 U.S. intelligence agencies, “The Iraq conflict has become the ’cause celebre’ for jihadists, breeding a deep resentment of U.S. involvement in the Muslim world and cultivating supporters for the global jihadist movement.”  The report concludes, “The Iraq jihad is shaping a new generation of terrorist leaders and operatives.”

The Greatest Menace of Our Times

The Nuremberg Charter defines “Crimes Against Peace” as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” Bush’s war on Iraq is a war of aggression, and thus constitutes a Crime Against Peace.

U.S. Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. In his opening statement in 1945, Justice Jackson wrote, “No political, military, economic, or other considerations shall serve as an excuse or justification” for a war of aggression. “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would be unwilling to have invoked against us.”

Following the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war “essentially an evil thing . . . To initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Justice Jackson labeled the crime of aggression “the greatest menace of our times.” Over 50 years later, his words still ring true in Iraq.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and co-author of “Rules of Disengagement: The Politics and Honor of Military Dissent” (with Kathleen Gilberd). She testifies at military hearings about the illegality of the wars, the duty to obey lawful orders, and the duty to disobey unlawful orders. See www.marjoriecohn.com.