By Michael Youhana

Last week, Sinan Antoon published a reflection on the fifteenth anniversary of the invasion of Iraq in The New York Times. An emergent antiwar left would do well to contemplate his essay in its entirety. One line, in particular, struck me:

“The invasion of Iraq is often spoken of in the United States as a ‘blunder,’ or even a ‘colossal mistake.’ It was a crime.”

Zahra Ali, Matt Taibbi, and even Jill Stein made similar statements on the solemn anniversary. Much of the American left seems to agree on this point.

But was the invasion of Iraq actually a crime? Kirk H. Sowell, a meticulous analyst of Iraq’s domestic politics, doesn’t think so. He argues that such accusations are little more than petty slogans:

“The use of the term “crime” is mindless. No evidence of a crime is put forward; Iraq in fact violated the armistice, which followed the 1991. And a “crime” requires a mental state. Bush’s ignorance was historic, but the evidence is clear he sincerely believed the WMD rhetoric.”

I disagree with Sowell. While I don’t think that there’s anything wrong with sloganeering for a good cause, doing so is not necessary here. The Iraq War was a crime. And the war was criminal whether or not President Bush was genuinely concerned about the proliferation of weapons of mass destruction. It was criminal for the simple reason that the war’s architects violated the well-established international prohibition against waging a war of aggression.

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The modern international legal order, which emerged out from the ashes of World War II, proscribes interstate conflict. The Judgment of the Nuremberg Tribunal in 1946 reflected the political consensus that initially underpinned our contemporary legal order:

“War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

While the United Nations Charter reaffirmed the illegality of war in most cases, the instrument’s drafters carved out two narrow exceptions to the general prohibition on the use of force by one state against another:

1. States may use force to defend themselves against armed attacks.
2. The UN Security Council has the power to authorize the use of force to maintain international peace and security. (1)

Lawyerly defenders of the Bush administration sometimes maintain that the invasion of Iraq fell within one of these two exceptions. But their arguments contort the meanings of “self defense”(2) and “Security Council authorization” to the point that the two terms become almost unrecognizable (3). It’s clear that neither exception covered the invasion of Iraq. That at least was the conclusion of the UN Secretary General at the time, Kofi Annan, who stated: “From our point of view and from the charter point of view [the invasion] was illegal.”

If one looks closely, one will find that the United States often ignores the rule against the use of force. Scholars have argued convincingly that Clinton’s Kosovo intervention, Trump’s occupation of Northeastern Syria, and Obama’s campaign in Libya all violated the Charter. Of course, not every illegal use of force is grave enough to qualify as an act of aggression. The International Court of Justice in Nicaragua v. United States found that the provision of arms and logistical support to guerillas might be illegal, but that this form of intervention fell short of aggression. What sets the invasion of Iraq apart from all of the aforementioned examples is the flagrancy of the illicit conduct.

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There is, however, a grain of truth in Sowell’s argument that using the term “crime” to describe the Iraq War is misleading. As things stand, no court is endowed with the power to exercise jurisdiction over the architects of the invasion. Amendments allowing the International Criminal Court to prosecute the crime of aggression were only recently incorporated into the Rome Statute. The ICC prosecutor will only be able to bring future perpetrators of the crime to justice. In addition, the court has no jurisdiction over future acts of aggression perpetrated by the United States because the country is not a party to the Rome Statute.

It is a sad fact that no court since the Nuremberg Trials has held an individual accountable for the crime of aggression. But such a lapse is not unprecedented. The UN Convention on Genocide went into force in 1946, but it took until 1998 for an international tribunal to find a defendant guilty of genocide. In East West Street, Philippe Sands observes that nowadays genocide, rather than aggression, is often thought of as the “supreme international crime.” What a major shift from the days of the Nuremberg Trials, when most attorneys in the Palace of Justice looked upon the new crime and its author, Raphael Lemkin, as oddities.

Neither the inexorable operation of law, nor a growing body of judicial precedent explains the elevation of genocide and other atrocity crimes in recent decades. Tireless human rights advocacy emphasizing the dignity of the individual against the unbridled power of the state has undoubtedly played a role in changing global opinion. So has growing disenchantment with antiwar politics in the United States, coupled with a hope held out by individuals, like Michael Walzer, that we might reach utopia by gradually regulating the conduct of parties engaged in war (4). And surely the end of the Cold War and the rise of so-called humanitarian interventionism created their own openings. All of this goes to show that while law is no substitute for politics, politics is constitutive of law.

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Today’s left might learn some lessons from the advocates that mainstreamed understanding of mass atrocity as a crime. A committed American antiwar movement can reshape the existing international legal order by reviving the crime of aggression. Chiefly, American organizers can work to ensure that the prohibition on the use of force applies to the United States. They can insist that Congress ratify the Rome Statute, including the new aggression amendments, without reservations. And they can even begin to imagine a new tribunal with the power to hold the architects of the Iraq War accountable. It’s a long shot. But one of Nuremberg’s many lessons is that through politics, anything is possible.

1. The failures of the Kellogg-Briand Pact deferred aspirations to abolish interstate war entirely. The drafters of the UN Charter acknowledged that the predominance of sovereign states in international politics made some concessions necessary.
2. I recommend reading page 1 of this memo to Rumsfeld. You’ll find that Nuremberg was on the mind of the architects of the Iraq War.
3. Bush Administration lawyers played a similar game with the legal definition of torture.
4. Of this tendency, Chase Madar insightfully remarked, “jus in bello has swallowed jus ad bellum whole.”

Michael Youhana is a JD candidate at UC Berkeley Law.