The invasion of Iraq in 2003 has created a political crisis, largely because it has bogged down into a situation where many of our troops are being killed. What has remained largely unsaid is the toll taken on Iraqi civilians. Their deaths have been “accepted” as something that simply happens in war. However, once you see that the invasion itself was certainly illegal, those deaths take on a new meaning. They can be described as nothing short of murder.
The UN Charter is very explicit concerning the use of force. In Article 2, section 3, it states that, “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Section 4 continues the requirements – “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
Our action in Iraq is, on the face of it, a direct violation of these requirements. However, critics of this argument state that 11 UN resolutions passed since the first Gulf War required Iraq to allow inspection, and so on, that it openly violated. Yet the Security Council never authorized force against Iraq – this action was taken by the US alone.
Another common criticism is the inherent right to self-defense under Article 51 of the UN charter. This applies even when there is an “imminent threat” of invasion or any other reason to believe that we were defending ourselves. It is important to note that while many think President Bush used this key phrase, “imminent threat” in the 2003 State of the Union address, what he actually said was, “Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late.” In short, Bush made it clear that this standard did not apply.
There is little doubt that the UN Charter forbids the invasion of another nation without UN approval. Indeed, Kofi Annan said as much in an interview with the BBC on September 14, 2004: “When pressed on whether he viewed the invasion of Iraq as illegal, he said: ‘Yes, if you wish. I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal.’” So what does this matter to the United States?
Plenty, it turns out. On July 28, 1945 the US Senate ratified the UN Charter, making it a binding treaty. As a ratified treaty, it has status as the law of the United States, and we are obliged to uphold it. Article VI, paragraph 2 of the Constitution is known as the “Supremacy Clause”, because it establishes a special status for Treaties that overrides the other workings of government: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
Because the UN Charter is a ratified treaty, it is “the supreme law of the land”. Violations of the UN Charter are a violation of US Law as well, and a law that takes precedence over every other consideration. The Founding Fathers were very explicit about the importance of treaties, and clearly did not intend for them to be violated at will. Since the invasion of Iraq was done without UN approval, it was in violation of US law. We agreed to accept the United Nations, and are still bound by their rules when we conduct our military operations.
Committing a violation of the “supreme law of the land” would be worthy of impeachment as it is. However, in this case, a large number of people are known to have died in Iraq. An exact count has never been made, and estimates run as high as 100,000 civilians. President Bush himself has used a figure of 30,000 as recently as last December 11, which might be a reasonable estimate. What is not disputed, however, is that a lot of innocent people died.
To be sure, civilians always die in war. But when a war cannot be justified, and is in direct violation of our own laws, these deaths acquire a higher importance. They have occurred within a legal framework, and as such take on a legal status of their own. There is a principle in law known as “Felony Murder”, which states that if someone is perpetrates in a serious crime, and this results in a death, the perpetrator can be found guilty of murder. For example, if you are an accomplice to a liquor store hold-up, and one of your fellow robbers shoots the cashier to death, you are also guilty of murder because you were part of the operation. More importantly, you are guilty of capital murder, meaning that in many states you can be executed for it.
The Federal law for felony murder is very clear on the relevant points. It applies to deaths that occur during the commission of a serious crime, where there is a foreseeable danger to life, and the link between the underlying crime and the death is not too remote. These obviously apply to the direction of an invasion, especially since some “collateral damage” was anticipated in advance.
But can we hold a President responsible for events that take place so far from American soil? The answer to that comes from the “Military Extraterritorial Jurisdiction Act of 2000”, aka Public Law 106-523. This act gives US courts jurisdiction over any actions taken by US military personnel, regardless of where in the world the act was committed. The original application was meant for servicemen who commit crimes while on assignment in foreign lands, but the scope of this law is broad. Our law applies to servicemen and women, regardless of where they are. Certainly, what’s good for the Private is good for the Commander in Chief.
The case is relatively straightforward, if a bit unusual. The invasion of Iraq was in violation of the UN Charter, and as such it was a violation of the “supreme law” of the United States. Directly because of the commission of this illegal act, a number of deaths resulted. These deaths constitute Felony Murder under Federal Law, which has appropriate jurisdiction. And this means that President Bush should be charged with Murder.