President George Bush in justifying the invasion of Iraq said that this was a pre-emptive war, and in the lead up to the Iraq war the Bush administration has used the terms pre-emptive and preventive interchangeably as the same meaning. Pre-emptive war is justified, not only in exceptional circumstances but when there is obviously an imminent and immediate threat. Preventive war is when another nation could potentially be a danger to our nation, and a decision is made to strike them first in fear of potentially being attacked.
The main justification by Bush administration in its pursuit of a just cause has insisted that Saddam Hussein has for a number of years tried to acquire weapons of mass destruction, and has military facilities that tried to develop them. Saddam, with possible links to terrorist organisations, may also pass these weapons on to these groups to use against the United States. Since 1998, he has prevented the United Nations to inspect his facilities for weapons production, therefore he may be close to acquiring those weapons. What this shows is that the threat is not clear nor imminent, there is no solid evidence to prove there is any weapons of mass destruction and it is entirely based on circumstantial evidence. The Bush administration has never been able to provide certainty of any grave threats to the Untied States by the Iraqi regime, nor a situation of an impending attack.
Although a military response by the United States against al Qaeda after the September 11 attack can be justified as just cause because al Qaeda showed aggression to non-combatants during a time of peace that was unprovoked. But it should be noted that even though the cause is just, does not mean that the war is just. Which brings up the second principle of jus ad bellum, if use of force is the absolute last resort.
The last resort criterion states that only when all non military methods have been exhausted and there was no other choice, can nations justify the use of force. It does not mean that every possible alternative must be attempted before going to war, rather, it enforces nations to make a good effort in considering diplomatic resolutions rather than rushing to war in order to seek revenge on a wrong received without ever attempting dialogue. In modern times, however, and especially during the counter terror war by the Bush administration, there have been objections towards the last resort principle, thus swaying away from just war doctrine. One objection was if time was given to open up dialogue between the United States and Afghanistan, then that would give the Al Qaeda an opening to better prepare defences against an American invasion. Although this was not possible because the Clinton administration had already banned all sales of military arms to the country in 1997 under the Anti-Terrorism Act of 1996. Therefore the Taliban could not obtain more anti-aircraft weapons or any weapons that would have been considered problematic against the United States; hence the United States could have given more time for diplomatic discussions.
The question still remains though, whether or not American abided by the last resort principle. On September 20, President George Bush issued his demands to the Taliban in a speech to a joint session of Congress after several days of speculation that Osama Bin Laden was a prime suspect. His main demands were to hand over “Osama Bin Laden” including “all leaders of Al Qaeda” and close “every terrorist training camp in Afghanistan, and hand over every terrorist and every person in their support structure to appropriate authorities” moreover, at the end of his speech he added “these demands are not open to negotiation or discussion”. When Bush stated that his demands are non negotiable and not open to discussion, he has violated the last resort principle because his speech can be interpreted as a declaration of war unless his demands were met without the option of non military methods. In response the Taliban ambassador to Pakistan, Abdul Salam Zaeef, wanted “evidence for Osama to be responsible for the attacks” and that Osama be tried under Islamic law, the Taliban has reiterated that statement on a number of occasions when interviewed by journalists.
Furthermore, on October 5 and 7, Zaeef changed their stance and the Taliban would “detain Osama if someone comes forward and provides us with a copy of formal charges against him” to put him on trial and the evidence to be provided later. But the Bush administration rejected the offer because his original terms are non negotiable or open to discussion, and Operation Enduring Freedom’s bombing campaign against Afghanistan began. A week after the start of the bombing campaign, the third highest Taliban official said it was willing to turn Osama over to a third country for trial and they were willing to discuss which country if the United States stop bombing and present evidence, and again Bush rejected the offer stating “there’s no need to negotiate”.
Given that the United States did not pursue non military methods before the use of force, it has violated the principle of last resort. The Taliban on numerous occasions was willing to discuss the options before going to war and even willing to turn over Osama to another country after the bombings started. It is very clear that there were methods that the United States could pursue without the use of force or even stop the bombings when the Taliban was willing to turn Osama over, but the Bush administration rejected all forms of diplomatic resolutions by cutting off dialogue with the Taliban government.
The proportionality principle of jus ad bellum advocates us to consider the good it will achieve by going to war and eliminating the injustice and weigh it against the cost that may arise, only when the good outweighs the costs, can the proportionality be considered just. The Bush administration advocated that the worst case scenario was the death of millions of people in the western world that could be killed by weapons of mass destruction, if that was the case, the benefits of going to war would outweigh the costs and deemed proportional. But the threat of weapons of mass destruction was not genuine, the just cause, that was used as the ultimate goal, was based on circumstantial evidence and was incorrectly used in the proportionality criteria. The only foreseeable political goal was the overthrow of Saddam Hussein compared to the costs of Iraqi civilian casualty, American and NATO soldiers’ lives, the economic costs of rebuilding Iraq, and the effects of the war on other nations. This war could hardly be considered proportional
The Iraq war was a preventive war, and thus departs from just war traditions. The just war theory, reminds us never to rush to war on a speculative basis about what might happen in situations of pre-emption. Just cause only rarely accepts pre-emptive wars based on overwhelming evidence that there is an imminent threat, and the Bush administration has redefined pre-emptive into preventive wars to not only deal with imminent threats but also potential threats. By justifying preventive wars, the Bush administration has set a dangerous precedent that seems to be the beginning of a new doctrine of just cause that deals with weapons of mass destruction.
Just in bello advocates for restrictions on the proper conduct of war, it predominantly focused on who can be attacked, what means can be used to attack them and the proper treatment of prisoners. The United States and NATO forces in their counter terror war has violated every single principle of jus in bello, their main argument is because they were enemy terrorist combatants and does not deserve the same rights on the battlefield as other traditional combatants.
Grotius stated as part of his just war theory that prisoners “may neither be killed nor severely punished” because an “obstinate devotion to one’s party” does not deserve punishment. In modern times, however, Grotius’ just war theory has been replicated in international law with the creation of the Geneva Conventions, specifically the Third Geneva Convention, that stipulates the protection of prisoners of war. The Bush administration’s war on terror has violated numerous international treaties and law pertaining to the treatment of prisoners during Operations Enduring Freedom and later the Iraq war. Many prisoners of war held at the Guantanamo base in Cuba were subject to torture and mistreatment that was confirmed by Susan J. Crawford, a senior Bush administration official, during a review of practices used at Guantanamo Bay prison.
The Bush administration labelled those prisoners in Guantanamo Bay prison as enemy terrorist combatants which denied them the protection of any Geneva Convention as well as the United States constitution. This in turn denied them habeas corpus and was subject to torture by the United States to extract information that would lead to the capture of Osama Bin Laden and later the revelation of where Iraq was holding its Weapons of Mass Destruction. This is one of the most obvious and extreme case of human rights violations by a western country at the turn of the twenty first century, because jus in bello advocates that once a enemy combatant has been captured, they no longer hold their title as a combatant and is labelled as a non-combatant. Hence all prisoners of war, whether it is by capture, injury or surrender, hold the same entitlements as non-combatants, when the United States torture or grossly mistreat prisoners in Guantanamo Bay, they are subjecting those treatments to non-combatants and violating the laws of war.
The second jus in bello principle advocates for proportionality when conducting military operations, that no non-combatants be put in harms way. Although in practice and in modern times, this is hard to achieve, and modern just war theorists admits that some harm will come to non-combatants during military operations, so the United States adopted a doctrine of double effect where one may take military operations aimed at legitimate targets even if it is known there will be non-combatant casualties on the condition that the good is proportional to the bad consequences.
Although when we take the principle of proportionality into consideration, we not just take the number of civilian deaths that occurred but also the number of people who were put at risk of death. We know for a fact that the United States attacked power lines, telecommunications and media facilities that interfered with water supply, emergency communication of civilian needs which led to the unnecessary deaths of Afghan civilians that was already living in appalling conditions given the lack of basic survival needs of a typical civilian. Even more serious was the killing of civilians was known in certain military objectives because the weapons were either inaccurate and the unreliability of intelligence. That is not to say that if the intended target was a military objective but it missed and hit a Red Cross depot is a question of proportionality because the consequence was unintended and not a direct means of destroying a military target. But the question of proportionality is brought up when the United States purposely targeted civilian utilities that would hinder hundreds if not thousands of civilian survival in order to capture a few Taliban insurgents.
In many cases of civilian deaths the United States have stated that they abided by the doctrine of double effect because the military targets were proportional to the civilian deaths, and other times they have stated the “responsibility for every casualty” belongs to the Taliban or al Qaeda because they hide within the civilian population. Given that the Taliban hid amongst the civilian population does not mean the responsibility of civilian deaths belong to the Taliban, the United States still must take adequate care to avoid harm to non-combatants, and every civilian killed by the United States is solely the responsibility of the United States.
In the invasion of Iraq, the United States and British forces used numerous weapons that did not discriminate between combatants and non-combatants thus not only violated jus in bello but international humanitarian laws. First there was the Massive Ordinance Air Blast (MOAB), which is an indiscriminate bomb that destroys everything within a radius of a square mile. Then the United States also used cluster munitions, which is an air dropped explosive weapon with parachutes attached that releases sub munitions and some of these sub munitions are coloured yellow, the same colour as food aid packages. In essence these are airborne landmines that are not capable of distinguishing between combatants and non-combatants, and there have been numerous accounts of civilians being killed or badly mutilated from these bombs.
The United States have thus violate the proportionality criteria of jus in bello by not taking into account the potential civilian casualty whilst pursuing military targets and not taking adequate care to avoid collateral damage to civilians. Also to a larger extent the United States violated customary international humanitarian law set out in the additional Protocol I of the Geneva Conventions by attacking non military targets that posed no impending threat.
Just war theory stipulates that a nation may conduct war justly if all of the principles are met. Admittedly, since just war theory has its roots in Christian theology, there is a bias towards not going to war and to avoid it at costs if possible, but it does allow war in exceptional circumstances. So it could be argued that the theory itself is ridiculous to follow since there are too many sets of rules and if a state follows all the rules then war will be impossible. But let us not forget that just war theory was created to bring moral reflection of one self and bring humanity into the business of war. Even if we do not accept that we have to follow all the principles, surely if a state violating at least half of the principles of just war theory, cannot justify that their war is just. Therefore I state to you that the counter terror war at the turn of the twenty first century is not only an unjust war, but also the Bush administration has scrapped all the rules pertaining to a just war and consistently misled the international community into a war that should never have been, hence just war is dead.
by
davidz (student)
