The Civil War in Iraq as a War Crime

I strongly urge you to read this report from the Brookings Institution, Things Fall Apart: Containing the Spillover from an Iraqi Civil War by Daniel L. Byman and Kenneth M. Pollack. It's a .pdf, downloadable here. Here's the blurb from the Brookings page:

This Saban Center Analysis Paper examines the history of some dozen recent civil wars to reveal the general patterns by which such conflicts can "spill over" into neighboring states, causing further civil wars or regional conflicts. Historically, six patterns of spillover have been the most harmful in other cases of all-out civil war: refugees; terrorism; radicalization of neighboring populations; secession that breeds secessionism; economic losses; and, neighborly interventions.

From this history, the authors propose a set of policy options that the United States could employ to try to contain the spillover effects of a full-scale Iraqi civil war. ..

You might not like Brookings; you might think they're the cat's meow. But this is an important report. Read it.

One thing that has been bothering me about Iraq, the "surge," and so on is not simply the absence of a "plan," but the absence of decent and reasonable objectives. You know I think we ought to get out of Iraq. But I also don't think this can be done by leaving the country in a state of genocidal war. The very real problem is that this is preciely the most likely outcome.

This part of the failure in Iraq can't be glossed over by the hackneyed tale about having bad intelligence about WMDs. This presidential administration ought, I think, to be impeached. And, really, they ought to be tried for war crimes. One of the obstacles, however, is how we think about war crimesd. According to international law, war crimes are largely defined "in bello." That is, they center on the conduct of war while at war, rather than ad bellum criteria of justification for going to war. I don't want to make too much of just war theories distinctions, but the very nature of how war crimes are defined does appear to ride on just such a distinction (and neglect of part of the equation).

Why is this important? I'm not going to say the obvious about manipulating people into believing a cause is just or at least justified in some measure. The lying on the part of this administration is well-documented, shameful, undemocratic, and a crime on its own terms. That the president continues to make public comments about how "the intelligence" just didn't seem to play out like "everyone" believed simply compounds the lie, given that there was good, publicly-accessible information suggesting that the rhetorical war buildup was indeed already a lie. Bush is at the end of the plank. The more interesting and powerful point is how we ought to treat a political entity that goes to war and, as a result, creates a genocidal civil war, even if they no longer play a central role in bello and even if the genocidal civil war is an unintended consequence of other policies.

The Byman-Pollack report isn't making a judgment on this. It's a discussion of how to manage the civil war, and it is worth reading for its dire assessment of what can be done and some rather radical policy suggestions (such as transforming the US relationship with Iran and Syria into one of alliance). As I've said previously, one central result of the war is that the US has emboldened and empowered Iran and most likely ceded half the country to the Iranian sphere of influence.

But as for the notion of a war crime, can we define war crime in terms of creating genocidal civil war? I think we should. Of course, all individual and group actions harbor potential unintended consequences. Every time I cross Wisconsin Avenue to go grocery shopping, I risk being killed by a speeding automobile. I plan on buying a pound of coffee and a bag of oranges and end up flattened in the middle of the street. Ouch. Or I might find they're out of oranges and come home with the coffee only. Or a meteor falls directly where I'm standing. As one recent politico said, "stuff happens." Of course. But it's rarely the case that genocidal civil war is the result of one's policies. The problem is that this real situation in Iraq was foreseen by many foreign policy analysts. That is, there are varying levels of risk. Making policy involves considering potential risks, which is a central component of any responsible policy. The probability of being killed by a meteor when I go to the store is very very low. Being killed by a car is much higher. Buying the stuff I need is far far higher again. It's worth going to the store because I want coffee and oranges. It's not worth worrying about meteors, and looking both ways before I cross the street does the trick in the case of the speeding automobiles.

What I'm saying is that the civil war we are seeing develop in Iraq, the one that could very well be bolstered by support from Iran for the Shi'a and support from Saudi Arabia for the Sunni, the one that could turn the region into a broader war involving also Israel as the US's proxy, is not an unforeseeable consequence of the Iraq invasion and occupation. It was a very real risk of the American invasion. And this was a known quantity prior to the invasion. It was either ignored by a blinkered and incompetent administration or played some intentional secret role in the administration's plans. Neither of those options are off the table, though it seems as if public discourse has settled on the former as an explanation. This does not, however, soften responsibility. The rhetorical games are a weak attempt to do so ("intelligence failure," "Iran's military intervention in Iraq," etc.).

The agent of the civil war is not the feuding factions but the current United States administration. It is directly responsible for the rapidly increasing deaths in Iraq of which most are civilian, the rapidly deteriorating internal order in Iraq, the nervous defensive movements of neighboring nations, the global unpopularity of the war (and concomitant collapse of American standing in the world), the bolstering of other regional regimes that are ostensible enemies of the West, the apparent recruiting boost for terrorism, the martyrdom of Saddam Hussein, and on and on.

Now, if we look at justifications for the Iraq war prior to the invasion, we're looking at appeals to ad bellum criteria. These include, traditionally, right intention, probability of success, proportionality of the response, war as a last resort, legitimate authority to use war as an instrument, and comparative justice. I won't go into this, except to say that the actual justifications for the Iraq war made some appeal to these principles combined with the notion of "imminent threat" (which provided the grounds for preemptive [or "preventive," if you prefer] war claims). As we know, all of these were bogus. Absolutely every one of them. The administration's claims, however, were painted in the colors of just war theory and imminent threat. It's simply that they were false claims. Given the fact that on nearly every point raised by the administration prior to the invasion there were serious objections and good evidence to the contrary, the overall justificatory package looks pretty much like a willful lie. There is no longer any doubt that this was cherry-picked intelligence. Enough with the language of "misleading."

Furthermore, the extent of the legerdemain demonstrates not only willful lying, but also clear intent. The package was built around an objective - to invade Iraq, period. The further objectives (oil? a base in the Middle East? etc.) are still a matter of conjecture, perhaps also for the administration. But it is clear that the administration was going to invade Iraq, period.

Of course, going back to the risk point, there are obvious risks involved in war. These don't need to be enumerated. But a central risk, one that was known at the time, and that was highlighted by experts on the region and many others, was the possibility of civil war approaching the level of genocide. There is no way that the administration could have avoided at least hearing the articulation of this grave and high-probability risk. That it has been actualized is not surprising. That the administration went ahead with the war in light of this high-probability risk makes them responsible for its actualization. The conditions for civil war may have already existed in Iraq, but it is the US that provided the catalyst.

Returning, then, to the point about war crimes. As mentioned, war crimes are usually articulated as crimes committed during the conduct of a war (rape, murder of non-combatants, torture, denying fair trials, etc.). Most wars generate these types of crimes. They can be individualized for political purposes. Thus, we see the trial of the American soldiers who shot defenseless Iraqis, or those who raped little girls, or those who tortured prisoners. Investigating further up the chain of command, we might find that some of these crimes were actively encouraged or known but ignored. Responsibility for these crimes can still be individualized. Ultimately, however, an environment is created in which these individual crimes may flourish. That goes much higher up the chain of command.

But the key point is this: we should consider as a war crime the creation of genocidal conditions at the very least when those conditions could be foreseen and had a high degree of probability, and at most regardless of whether they were foreseen or not even with lower degrees of probability. In the case of Iraq, they were actually foreseeable and had a high degree of probability. That the risk of genocidal civil war was not taken seriously by the administration (or worse, if it was) when many experts were outlining just such a risk is criminal conduct. This is criminal conduct that cannot be applied to lower ranking individuals involved in the actual conduct of war (in bello). This is criminal conduct in the ad bellum phase of war.

Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, explained in a February 2006 memo (.pdf) that he does not believe the ICC has the authority to prosecute ad bellum considerations, only in bello considerations. The nearest it gets is Article 8(2)(b)(iv) in reference to "clearly excessive" anticipation of "civilian damage or injury." Whatever you think of it, the reality is that the US military does, in its conduct of war, generally seek to limit civilian deaths and develops strategy and tactics based on this consideration. It appears that interpretation of the law suggests that US military conduct does not rise to the level of "clearly excessive." Politically, the US administration and media make much of the fact that many of the deaths are caused by internecine rivalries, death squads, and so on, rather than direct military confrontations. The US is now even trying to make a case for the conflict being prompted by Iranian military intervention in Iraq.

The overall catalyst framework for these deaths is the invasion itself. The situation was predictable, probable, and, at the time, high risk. It has actualized as predicted, and is developing in the direction of even more dire consequences, also as predicted. The responsible agent is ultimately the US administration. Invasions that cause genocidal civil wars should be considered war crimes.