From my point of view, the American State has committed innumerable and grave war crimes by starting and prosecuting the Iraq War. I do not refer to crimes defined by international law or by past war crimes tribunals. I am no lawyer and neither are most Americans, but we understand what many crimes are. For my purposes here, it does not help us understand American war crimes in Iraq to subject our State’s deeds in that country to an abstruse tangle of international code and interpretation. It does help us to look at what has happened from a simple commonsense point of view.
Let us think of war crimes as a subset of all crimes. They are those crimes committed in the course of war, start to finish. There are many crimes that we are accustomed to domestically, such as murder, theft, rape, arson, kidnapping, assault, maiming, causing bodily injury, vandalism, and property destruction. We know what these crimes are. They also occur in the course of war. To simplify matters, I speak of all these crimes as one category: crimes against property, or crimes that violate property rights. I do not mean to minimize the severity of the loss of human life by lumping it together with the loss of a building. I mean to make an accurate simplification. Murder is a property crime, since each person owns his own body. Rape violates the property right of a person, since it uses his or her body against his or her will. Kidnapping involves physically controlling a person’s body, again a property crime. Obviously crimes like theft, arson, and property destruction all violate property rights. Maiming a person is a crime. I think it helps us to count all these crimes together as one set of property crimes in order to sense the enormity of their totality.
At the orders of the leaders in the Bush Administration, supported by most members of Congress who voted for war resolutions and voted for funding, America instigated the current war on Iraq in March of 2003 and before. If there are war crimes in Iraq, these men and women are most directly responsible. These people and perhaps some others comprise the American State, the organization that marshals our tax dollars and orders the military into action. I leave to others the naming of the names of those most directly responsible for American actions in Iraq. A reasonable indictment should have access to records in order to determine who had what responsibility. Whatever list I might produce here would surely be incomplete and possibly inaccurate. Simply to provide examples, in the Executive branch, certainly President Bush, Vice President Cheney, Secretary of State Powell, Secretary of State Rice, and Secretary of Defense Rumsfeld would be indicted. Advisors like Paul Wolfowitz and Steven Hadley might also be. Influential members of the CIA, the military, and the Congress likely also would appear on a list of those who set war crimes into motion.
But I have said "if there are war crimes in Iraq." Have there been American war crimes in Iraq? To answer affirmatively, we need to document three facts: property destruction, American responsibility for property destruction, and criminality of the American acts. I believe that most Americans know that there has been massive property destruction, and they know that Americans are directly responsible for much of it. They have seen some of it on television. However, most Americans probably don’t believe that America’s acts have been criminal acts.
The property destruction in Iraq is well-known. No one denies it. The only arguments are over how big it has been. A recent BBC News article places civilian Iraqi deaths at a minimum of between 33,710 and 37,832. Other estimates range far higher. No one knows how many Iraqi civilians have been injured. The group Iraq Body Count reports 42,500 injuries. Then there is destruction and damage done to all sorts of goods, from homes to capital goods to possessions. There are vast economic losses as businesses have been disrupted and destroyed. Civilians no doubt have been arrested and, at times, tortured.
The American responsibility for a large fraction of this property destruction is well-known. Our military forces have actively been engaged in it from day one of the war. Domestic Iraqi elements and foreign interlopers have also done their share of crime and destruction. Again, my purpose is not to allocate the crimes among the groups and persons responsible. I am unable to do that. As an American whose taxes support the carnage, who’d like to see it ended, and who’d like to prevent a repeat performance, my interest here is in American culpability, in getting us to clean up our own act. This does not mean I do not condemn the crimes being committed by Arabs, Iraqis, or other nationalities. I do.
This brings us to the third element, which is the criminality of the American acts. There is no doubt that American armed forces and possibly paid civilian contractors have destroyed large amounts of property. They have also seized large amounts of property. Whether or not these are crimes hinges on one question: Were these acts done in self-defense or not? It seems almost self-evident that many property rights violations have been visited upon people who either were not attacking Americans in Iraq or had not attacked them in America. But this is apparently not enough to condemn Americans for their acts. The rules of war allow for "collateral damage." I won’t question that doctrine here, although it can be questioned. But collateral damage is only allowable if there is justification for fighting the war in the first place. The major concern is still the criminality or non-criminality of America’s presence in Iraq.
The issue of criminality most certainly does not hinge on whether Saddam Hussein was a bad man who mistreated his people, whether he committed atrocities or not, whether he wined and dined terrorists, whether he harbored ambitions to possess stores of biological or chemical weapons, or whether he had invaded Kuwait years earlier upon an American diplomatic snafu. In 2003, there was no self-defense issue involved in any of these activities. It does not hinge on whether he actually had such weapons, whether provided by Americans or developed on his own. Unless he used them on America, there was no self-defense issue involved. And there is no recorded attack by Iraq on America that brought on this war. Perhaps there is some wiggle room when an attack is imminent, perhaps then a country is entitled to attack first. Even in this case, diplomacy often goes on almost to the inception of hostilities. But neither of these was the case between Iraq and the U.S. There was no imminent and no actual attack. Most amazingly we had the spectacle of a President rabidly making speeches about non-existent threats as if they were both real and imminent, from a country that could not possibly launch an attack on the U.S.
Criminality surely does not hinge on whether or not Iraq was or was not a democracy as this has nothing at all to do with self-defense, notwithstanding the ravings of the President and his cabal of neoconservatives. It has nothing to do with bringing freedom to anyone, because this goal also has nothing to do with American self-defense. Whether or not America is capable of bringing freedom and whether or not it has actually done this are pertinent questions and acts much to be doubted, but even if we were capable and did bring freedom to Iraq this would not justify attacking the country. There is no self-defense issue involved in "liberating" Iraq because there has been no attack on America by the Iraqis. While this sounds quite like the Soviet Union’s liberation of its satellites after World War II, if we are generous and give the American State the benefit of the doubt as to its honorable intentions, there is still no way to justify the slaughter of tens of thousands of Iraqis while liberating their country. But the basic issue remains that doing the supposed good deed of bringing freedom does not excuse acts of aggression. If this rationale for war-making is accepted, which means that committing wrongs to accomplish a supposed right is morally acceptable, then I am justified in cutting out your kidney in order to give it to a person who can’t live without it. I am justified in taking your home and turning it over to homeless people. When the President uses such a rationale, he only shows us that he is bereft of proper moral education.
Criminality does not hinge on whether or not the Iraqi people suffered under Saddam Hussein. This has nothing to do with American self-defense. It does not hinge on provocative words or statements uttered by Iraqi leaders, although no one says this brought on the war. Political leaders make all sorts of statements and to construe them as an actual attack that requires self-defense would be folly. That would make for wars at the pleasure of any country that felt itself insulted or threatened by the words of another. This is not to say that there is no situation in which the combination of words and deeds, such as the massing of armies at a border or the sailing of warships or the overflights of airplanes, might trigger hostilities by a party under threat of attack.
Nor does American self-defense hinge on whether or not Iraq did or did not obey various United Nations resolutions or cooperate fully or partially with U.N. officials. Just because there is an international political body that the states have set up does not change the substance of whether acts are criminal or not. The states have anointed the U.N. as a power that provides a legal cover when enough member states have enough votes to act. These political procedures do not mean that all actions taken under the U.N. aegis suddenly become non-crimes or always lawful no matter what their content is. The U.N. is not above the law although it is convenient for it to think it is. Anyway, in the Iraqi case, there was no Iraqi crime committed that justified Americans "defending" themselves by a wholesale attack and bombardment of Iraq and by a continuing war that has created huge property damage in Iraq. If this were so, I think we would hear President Bush reminding us about it today as justification for continuing our defense efforts. We hear nothing of the kind.
We hear that the damage America has done is justified because the world is now a safer place with Saddam toppled from power. But this too, besides being a fantasy, has nothing to do with American self-defense. American and world safety may or may not have been lower with Saddam in office, but that does not justify attacking him. We are not talking about a serial killer haunting the streets of Los Angeles. We are talking about the head of a foreign country and making war on another country, with all its attendant death and destruction. If the U.S. or any other country starts wars on the flimsy basis of increasing its safety, then any country anywhere is justified in starting a war merely by identifying a country, neighboring or otherwise, as reducing its "safety." Hitler surely could, and probably did, justify his many aggressions on grounds such as this. Perhaps he spoke of some other reasons than safety, like Anschlu or Lebensraum, but the basic idea is the same, namely, "we are justified in attacking because it makes us better off." This has nothing to do with self-defense and everything to do with immoral behavior.
The criminality or lack of it in America’s actions does not hinge on the pragmatic strategy of attacking the terrorists before they attack us. It’s quite obvious that the terrorists who brought down the Trade Towers died in the effort. Their actions trace back to Al-Qaeda, not Iraq, not Saddam Hussein, and still less to the Iraqi people against whom many crimes have been committed. Al-Qaeda fostered a number of terrorist acts in the past 25 years, and no one has ever tied them to Saddam Hussein as the kingpin. He’s on trial now, but not for causing terrorism against the United States or Great Britain or Spain or Indonesia. And if there had been evidence that showed Saddam’s complicity in international terrorist acts, that still would not have justified the sort of war that America began, executed, and is carrying out today, long after his capture. There is such a thing as a proportionate response to crimes. The damage inflicted by America on Iraq is out of all proportion to the crimes supposedly committed by Saddam Hussein that are supposed to justify the American action.
Were American actions justified by self-defense? The answer is "no." This means that the officials of the American State committed war crimes. This means that they should be indicted and tried for war crimes.
Michael S. Rozeff [send him mail] is the Louis M. Jacobs Professor of Finance at University at Buffalo.