Law and order exist for the purpose of establishing justice.
– Rev. Martin Luther King, Jr.
If civilization is to survive, it must choose the rule of law.
– Dwight Eisenhower
This report is grounded in the assumption that the U.S. is not above the law, but rather should be bound and limited by law. Such limitation would have profound implications for Bush Administration policies in Iraq. International law forbids imperialism in any guise; forbids unilateral aggression in the guise of “pre-emptive” war; forbids military occupation in the guise of providing security; forbids hand-picking political leaders in the guise of promoting democracy; forbids economic pillage in the guise of reconstruction; forbids extraterritorial impunity for war crimes in the guise of establishing rule of law; and forbids criminalizing resistance in the guise of fighting terrorism. In essence, the entire thrust of U.S. policy in Iraq stands in contradiction to the post-World War II legal order and particularly the legal framework governing occupation.
While the U.S. is clearly obligated to comply with occupation law, the primary conclusion to be drawn is that the occupation itself is the root cause of ongoing war crimes and rights violations documented in this report. The violations will not end until the occupation ends and Iraqis are allowed to exercise genuine self-determination. Justice will not be done until all war criminals—U.S. as well as Iraqi—are put in the dock and held to account, and the U.S. pays reparations for the devastation inflicted on Iraqi society by its unlawful policies and practices. These must be the primary demands of the international community—governments, multilateral institutions, civil society actors, social movements, and people of conscience everywhere.
Too many advocacy organizations, especially in the U.S., are willing to demand remedies for specific human rights violations but are unwilling to take the logical and necessary step of condemning the occupation itself. Part of their reluctance is the mistaken assumption that supporting self-determination is not impartial but “political,” when in fact the right to self-determination—for both individuals and nations—is the foundation of the United Nations Charter and stands as the first article in the two primary international human rights treaties. This selective interpretation of human rights law privileges narrow, incrementalist critiques of U.S. policy and marginalizes more fundamental challenges to the underlying U.S. attack on international law itself.
The structural lawlessness of the occupation is based on the Bush Administration’s view that strict adherence to the Geneva Conventions aids “the terrorists” and that U.S. military power should not be constrained by “quaint” legalities.95 This does not mark a radical break from past American policies, but rather an intensification of the longstanding tradition of “U.S. exceptionalism”—the doctrine that every country in the world except the U.S. (and its favored allies) is bound by international law. Especially since 9/11, the Bush Administration has expressed open contempt for the rule of law, the United Nations, and global public opinion. The invasion and occupation of Iraq is merely the gold standard of U.S. exceptionalism—and the first time that this doctrine has been used so openly and effectively to undermine the United Nations system of post-colonial sovereignty.
The manipulation of legal language and principles to serve unlawful ends is, of course, not a uniquely American policy. Throughout history, powerful imperial states have stood above the law and claimed the right to liberate “less civilized” nations through the use of military violence disguised as humanitarian intervention. The rhetoric of freedom has generally masked the reality of conquest, subjugation, massacre, pillage, and torture. Occupied peoples have generally resisted such unwelcome liberation by all means at their disposal, leading to ever-escalating violence until either the invader is thrown out or the population is conquered and subdued.
The U.S. occupation of Iraq is proving to be no exception to this time-tested paradigm. Since Iraq is not fated to become America’s 51st state, the only question is: how long will it take, and how many lives will be lost, before Iraqis are able to exercise genuine self-determination and control their own destiny.
95 Alberto R. Gonzales, Memorandum to the President: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban, January 25, 2002. http://www.msnbc.msn.com/id/4999148/site/newsweek/.