Iraq and the Crimes of Aggressive War : The Legal Cynicism of Criminal Militarism

440 Pages·2015·2.64 MB·English

by  Hagan

IRAQ AND THE CRIMES OF AGGRESSIVE WAR
From the torture of detainees at Abu Ghraib to unnecessary military attacks on
civilians, this book is an account of the violations of international criminal law
committed during the U.S. invasion and occupation of Iraq. Taking stock of the
entire war, it uniquely documents the overestimation of the successes and
underestimation of the failings of the Surge and Awakening policies. The
authors show how an initial cynical framing of the American war led to the
creation of a new Shia-dominated Iraq state, which in turn provoked powerful
feelings of legal cynicism among Iraqis, especially the Sunni. The predictable
result was a resilient Sunni insurgency that reemerged in the violent aftermath of
the 2011 withdrawal.
Examining more than a decade of evidence, this book makes a powerful case
that the American war in Iraq constituted a criminal war of aggression.
is the John D. MacArthur Professor of Sociology and Law at
JOHN HAGAN
Northwestern University and codirector of the Center on Law and Globalization
at the American Bar Foundation. His previous Cambridge University Press
books are Mean Streets: Youth Crime and Homelessness (with Bill McCarthy)
and Darfur and the Crime of Genocide (with Wenona Rymond-Richmond).
Hagan is an elected member of the American Academy of Arts and Sciences and
the Royal Society of Canada.
is a Law and Social Science Fellow at the American Bar
JOSHUA KAISER
Foundation and a JD-PhD candidate in law and sociology at Northwestern
University. His research focuses on the sociology and criminology of state
control and state violence, both in the United States and internationally.
is currently a doctoral candidate in the sociology department at
ANNA HANSON
Northwestern University. Her research focuses on issues of terrorism and human
rights.
Cambridge Studies in Law and
Society
Cambridge Studies in Law and Society aims to publish the best scholarly work
on legal discourse and practice in its social and institutional contexts, combining
theoretical insights and empirical research.
The fields that it covers are: studies of law in action; the sociology of law; the
anthropology of law; cultural studies of law, including the role of legal
discourses in social formations; law and economics; law and politics; and studies
of governance. The books consider all forms of legal discourse across societies,
rather than being limited to lawyers’ discourses alone.
The series editors come from a range of disciplines: academic law, sociolegal
studies, sociology, and anthropology. All have been actively involved in
teaching and writing about law in context.
Series Editors
Chris Arup, Monash University, Victoria
Sally Engle Merry, New York University
Susan Silbey, Massachusetts Institute of Technology
A list of books in the series can be found at the back of this book.
IRAQ AND THE CRIMES OF
AGGRESSIVE WAR
The Legal Cynicism of Criminal
Militarism
John Hagan
Northwestern University
American Bar Foundation
Joshua Kaiser
Northwestern University
American Bar Foundation
Anna Hanson
Northwestern University
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Information on this title: www.cambridge.org/9781107507012
© John Hagan, Joshua Kaiser, and Anna Hanson 2015
This publication is in copyright. Subject to statutory exception and to the provisions of relevant
collective licensing agreements, no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2015
Printed in the United States of America
A catalog record for this publication is available from the British Library.
Library of Congress Cataloging in Publication Data
Hagan, John, 1946–
Iraq and the crimes of aggressive war : the legal cynicism of criminal militarism / John Hagan,
Joshua Kaiser, Anna Hanson.
pages cm. – (Cambridge studies in law and society) Includes bibliographical references and
index.
ISBN 978-1-107-10453-2 (hardback) – ISBN 978-1-10750701-2 (paperback) 1. Iraq War,
2003–2011 – Atrocities. 2. Iraq War, 2003–2011 – Moral and ethical aspects. 3. War
crimes – Iraq. I. Kaiser, Joshua, 1985– II. Hanson, Anna, 1985– III. Title.
DS79.767.A87H34 2015
341.6′9–dc23 2015002803
ISBN 978-1-107-10453-2 Hardback
ISBN 978-1-10750701-2 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external
or third-party Internet Web sites referred to in this publication and does not guarantee that any content
on such Web sites is, or will remain, accurate or appropriate.
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.
–Judgment of the International Military Tribunal at Nuremberg, 1946
We are not prepared to lay down a rule of criminal conduct against others which
we would be unwilling to have invoked against us.
–Justice Robert Jackson, Chief Prosecutor for the International Military
Tribunal at Nuremberg, 1945
I see mostly normal men, trying to do good, beaten down by horror, by their
inability to quell their own rages, by their masculine posturing and their so-
called hardness, their desire to be tougher, and therefore crueler, than their
circumstance.
–Phil Klay, Iraq War Veteran and Author of Redeployment, 2014
Contents
Prologue
1 The Reign of Terror
2 A Shadow of Hope
3 Judging Torture in Iraq
4 Night Falls on Baghdad
5 The Separate Peace of the Shia
6 Legal Cynicism and Sunni Militancy
Epilogue
Appendix
Notes
Bibliography
Index
Prologue
The first assault in the U.S.-led Iraq War was spearheaded by two F-117
Nighthawks dropping four 2,000-pound Bunker Buster bombs and four ships
firing forty Tomahawk cruise missiles. They targeted a compound outside
Baghdad where U.S. intelligence mistakenly believed Saddam Hussein was
visiting his sons. Saddam apparently had not been there in almost twenty years.
This assault killed the war’s first civilian bystander.
The first strike was followed two days later by the Shock and Awe launch
of 1,700 air sorties with hundreds more cruise missiles. Arab-American
journalist Anthony Shadid reported from the ground that “Baghdad’s
residents ... were terrified. In the three hour blitz, at times bringing a new blast
every ten seconds, Saddam’s garrisons and the symbols of his three-decade
rule were shattered†(Shadid 2005:61). The British Guardian newspaper called
Shock and Awe terrorism by another name (Whitaker 2003). Iraq Body Count
estimated that more than 6,000 civilians were killed in the ensuing first phase of
the U.S.-led invasion.
A 1974 UN General Assembly resolution defines a war of aggression as the
“serious and dangerous†use of force by one nation against another.1
However, this definition is too inclusive. We argue in the first chapter of this
book that the genocide in Sudan’s Darfur region was one among numerous
instances where another state justifiably could and should have used force to
stop the killing of civilians. There are also circumstances in which one state is
justified in defending another state against attack, for example, when Germany
invaded an undefended Poland to begin World War II. The 1974 UN definition