This panel was convened at 9:00 a.m., Friday, April 11, by its moderator, Sean Murphy of George Washington University Law School, who introduced the panelists: Sandra Hodgkinson of the U.S. Department of Defense; James Ross of Human Rights Watch; Nicholas Rostow of the State University of New York; and Susan Breau of the University of Surrey. *
INTRODUCTORY REMARKS BY SEAN MURPHY ([dagger])
On March 19, 2003, U.S. B-1 bombers attacked the Dora Farms complex in Baghdad in an effort to kill Saddam Hussein. At the same time, dozens of cruise missiles struck Saddam's presidential command complex. Such shock and awe tactics were accompanied by a full-scale invasion of Iraq by U.S. and other military forces. By April 9, 2003, U.S. Marines had entered Baghdad and famously toppled the statue of Saddam in Firdos Square.
Today, almost five years later, what can be said about the legacy of the intervention in Iraq? Some positive results can be identified. Saddam's government, a despotic regime that perpetrated horrific human rights abuses, has been swept away. Saddam has been captured, tried and executed. In 2005, a new Iraqi government, predicated on a coalition of Shi'a, Sunni and Kurdish leaders, was established through democratic elections. Questions about the presence of weapons of mass destruction in Iraq have been resolved--they do not exist and did not at the time of the invasion.
At the same time, the intervention has been, and continues to be, controversial. Some 160,000 U.S. forces are deployed to Iraq, causing tremendous strains on U.S. military capabilities as well as strains upon the wellbeing of U.S. soldiers and their families. Yesterday, President Bush stated that an indefinite suspension of troop withdrawals was now in place. As of then, 4,030 members of the U.S. military had been killed in Iraq and many thousands more have been wounded. Other allied countries have suffered losses as well. Tens of thousands of Iraqis have been killed, with approximately another million living as refugees. The economic cost to the United States is in the neighborhood of $650 billion, with projections rising to $2 trillion, if the U.S. commitment in Iraq continues for another five years. Continuing violence among Iraqi factions and against U.S. forces has raised serious doubts about when, and if, an enduring reconciliation among Iraqis is possible.
The policies surrounding the intervention in Iraq have been controversial, but so have the legal issues. It is the legal issues that this panel will seek to address. Those issues are wide-ranging, and given the time we have, much will be unsaid. But let me at least suggest some of the most significant legal issues. The United States invaded Iraq in 2003 without clear authorization from the UN Security Council. In hindsight, should we take solace that the United States felt compelled to justify its actions largely based on prior Security Council resolutions, or should we view this incident as another example of the UN Charter being dead? In other words, should we celebrate the resiliency of the UN collective security mechanism in weathering this storm, or did the first Gulf War essentially launch a new world order that shipwrecked upon the shoals of the second Gulf War?
Does the intervention in Iraq provide confirmation that the doctrine of humanitarian intervention or the doctrine of preemptive self-defense is alive and well or confirmation that identifying new exceptions to Article 2(4) of the charter is a dangerous invitation to pernicious acts of coercion? In the aftermath of the invasion, was the Security Council's willingness to recognize the U.S./U.K. occupation as an ex post facto reality a legal acceptance of the invasion, or are such UN actions simply a demonstration of practical politics? Was the August 19, 2003 bombing of the UN headquarters in Baghdad, which killed UN Envoy Sergio Vieira de Mello, a setback for UN peacekeeping and peace-building?
When one considers the extensive looting and destruction in the immediate aftermath of the fighting in Iraq, can it be said that the United States met its obligations as an occupying power under The Hague and Geneva Conventions? As a matter of international law, how should we view the abuse and torture of Iraqi detainees at Abu Ghraib or the shooting of twenty-four Iraqi civilians at Haditha? Is this the work of a few bad apples or is something wrong with the training of U.S. military personnel and National Guard units in international humanitarian law? If it is only a few bad apples, has the U.S. military court system satisfactorily dealt with those apples?
More broadly, what are the implications for international human rights and humanitarian law of the detention policies that have been pursued by the United States in Iraq? Even more broadly, what lessons are to be learned from the various laws, regulations and directives adopted during the course of the occupation, such as the disbanding of the Iraqi army or the de-Baathification of the Iraqi government? Is the trial and execution of Saddam Hussein a triumph of the new international courts and tribunals or is it brutal vengeance sanctified by sham procedures? What are the legal mechanisms by which the United States will extract itself from Iraq, including the anticipated Strategic Framework Document and the Status of Forces Agreement that may replace the Security Council's authorization?
Our panel will only scratch the surface of these issues. Nevertheless, we have brought before you a highly experienced and well informed group of panelists: Nicholas Rostow, Susan Breau, Sandra Hodgkinson and James Ross.
* This summary was prepared by Michael Scharf, Nadeah Vali, Matt Shupe, Kavitha Giridhar and Andy Bramante.
([dagger]) Professor of Law, George Washington University Law School.
REMARKS BY NICHOLAS ROSTOW *
To speak of the "legacy of Iraq" is to engage in the study of the future; "it" (1) is not over yet. The legacy of the 2003 Iraq campaign will include ripple effects we can not now foresee. Still, it is possible to gaze with some confidence in a number of directions. One may say, for example, a few words about certain legal issues, such as occupation (2) or the international use of force, beyond the point made by a friend: "The lesson of Iraq re the use of force is we should have used more." The following remarks will address three areas: the jurisprudence of the International Court of Justice (ICJ) and its impact, the way UN resolutions develop and are read, and the law in practice-the law at the end of the policeman's club.
THE INTERNATIONAL COURT OF JUSTICE (3)
During the past twenty years, the ICJ has expounded on the law governing the use of force and changed its jurisprudence in the area. While such jurisprudence is important to litigants before the Court, it has become increasingly irrelevant to governments making decisions in the stressful context of armed attack.
The first ICJ case construing the right of self-defense under the UN Charter (4) involved the right of innocent passage in the Corfu Channel exercised by British warships in 1946 after being fired on by Albanian shore batteries. (5) In essence, the ICJ upheld the inherent right of self-defense in the face of a litoral State's hostile act.
Contrast Corfu Channel in 1949 with the logic of the Oil Platforms case of 2003. (6) In Oil Platforms, the ICJ relied on the Nicaragua case of 1986 (7) to emphasize that quantum of attack determines whether the right of self-defense is triggered. "Even taken cumulatively, and reserving, as already noted, the question of Iranian responsibility, these incidents do not seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a 'most grave' form of the use of force." (8) As the then-Legal Adviser to the State Department wrote, the ICJ's rule, not only is wrong, it is unworkable: it encourages aggressors to commit aggression. Defining an armed attack in terms of its gravity
would encourage States to engage in a series of small-scale military attacks, in the hope that they could do so without being subject to defensive responses. Moreover, if States were required to wait until attacks reached a high level of gravity before responding with force, their eventual response would likely be much greater, making it more difficult to prevent disputes from escalating into full-scale military conflicts. (9) In Oil Platforms, the ICJ denied that the response to an armed attack was legitimate.
Years ago, J.L. Briefly noted that "[t]he modern law therefore appears to be that resort to armed force is legal only in self-defense, individual or collective, or in the execution of collective measures under the Charter for maintaining or restoring peace." (10) Contemporary ICJ jurisprudence on this issue leaves States at sea and would, if followed, make it difficult to marshal coalitions against aggressors. By trying to favor good force against bad force, the ICJ is nullifying the role of international law. The ICJ thus has moved from the path of realism with the result that governments will take its opinions less seriously because they are less helpful than might otherwise be the case. The Advisory Opinion on the Israeli wall has continued this trend.
In its wall opinion, the ICJ concluded that Israel did not have a right of self-defense in the occupied territories. As a result, the UN Charter provision on self-defense did not apply. The Court's statement on the subject is short enough to quote in full:
Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State. The Court also notes that Israel exercises control in the Occupied...