Was the U.S. invasion legal?
Was it legal for the United States to go to war against Iraq in 2003?
That’s one of the questions two of the nation’s foremost academic experts on the subjects of war and international law tried to answer during an April 5 talk in Ayres 106 on the Chico State University campus and in later meetings with students and faculty.
Allan Stam, of Dartmouth College, and Allen Weiner, of Stanford Law School, were invited to Chico State by Pi Sigma Alpha, the political science honors society, to give a lecture titled “The War on Terror: Normative and Legal Implications.” Both hold endowed professorships and are authors of several books on war and international law.
The legality of the Iraq war hinges on the distinction between preemptive and preventative war, Stam said, opening the discussion. One is legal under international law, but the other is not.
Think back to 2003 and the start of the war, he urged. The attack the U.S. launched against Saddam Hussein and Iraq was a preemptive strike, a legal war scenario, or so the American people were told.
But in reality, Stam and Weiner argued, the pretense for war—going after weapons of mass destruction—served only to obscure the real motive, which was to prevent harm from ever occurring to the United States, a “blatantly illegal” form of war.
Preemption is the use of force when the state has knowledge that an enemy is about to attack. Prevention is the use of force against an enemy because the state believes an enemy may attack or plan to attack.
Because of this distinction, disguising the Iraq invasion as preemptive “had important legal policy implications,” Stam said. And the media dropped the ball by not calling President Bush out on them.
The use of the word “preemption” was not the only form of media manipulation, Weiner argued. The phrase “war on terror” carried with it a history and transformed the metaphorical “war on” into its literal meaning: war itself.
“It’s not unprecedented to have a war on security struggles,” Weiner said, listing the “war on poverty,” the “war on crime” and the “war on drugs” as examples. “In those cases war was used as a metaphor; now the metaphor is a real war.”
This transformation from metaphorical to literal war is important because there are rules for war—the Geneva Conventions—that the U.S. has agreed to abide by, Weiner said. The U.S. has “no right” to do some of the things it has done in the name of the war on terror.
Weiner discussed the illegalities of the U.S. prison camp in Guantánamo Bay, Cuba. In holding enemy combatants there, the U.S. has failed to recognize a key element that has been granted to the enemy since the beginning of war: reciprocity.
Once war is declared and one side kills enemy soldiers or holds them captive, the other side legally has the right to do the same, Weiner said. The U.S. has taken a different approach, arguing that, while it is legally allowed to wage war, the other side is made up of terrorists who have no rights under the Geneva Conventions. He noted, however, that of the 400 detainees being held without recourse at Gitmo, only 10 have been charged with terrorism, while most have been charged with “traditional acts of warfare.”
Does it really matter that the U.S. went to war illegally and continues to defy international law in its conduct of the war? Well, yes, especially if you value life and support the troops, the scholars said.
The situation in Iraq is undoubtedly a civil war that’s “highly factionalized,” and one of the most “vehemently violent wars in the 20th century,” Stam argued. Based on numerous estimates, the war, which is “extraordinarily lethal to civilians,” has claimed the lives of anywhere from 60,000 to 700,000 Iraqis.
“I don’t have any cheery news,” Stam concluded, after reminding the audience that in 1968 U.S. leaders knew we had lost in Vietnam but dragged out the exit so long that twice as many soldiers ended up dying.
“Today in Iraq we are essentially at the same point as Vietnam in 1969,” Stam said. “All we can do is get people to accept that there’s nothing we can do except leave.”