Ending Tyranny in Iraq

Ethics and International Affairs

Volumn 19, Issue 2, 2005, Pages 1-20

  Tesón, Fernando R ^a  

^a NONE

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EID: 33847159732     PISSN: 08926794     EISSN: 17477093     Source Type: Journal    
DOI: 10.1111/j.1747-7093.2005.tb00496.x     Document Type: Article

References (82)

1. See Marc Kusnetz et al., Operation Iraqi Freedom (Kansas City, Mo.: Andrews McMeel, 2003), p. xii. This is the account of the war by NBC News.
2. In addition to the NBC News account, a useful source is M. L. Sifry and C. Cerf, eds., The Iraqi War Reader: History, Documents, Opinions (New York: Touchstone, 2003).
3. A survey of these arguments can be found in Dominic McGoldrick, From “9–11” to the “Iraq War 2003”: International Law in an Age of Complexity (Oxford: Hart, 2004)
4. Karine Bannelier et al., eds., L'intervention en Irak et le droit international (Paris: Pedone, 2004)
5. and in “Agora: Future Implications of the Iraq Conflict,” American Journal of International Law 97 (July 2003), p. 553.
6. I believe that the war was legally justified as well. For a full discussion of the legal aspects, see Fernando R. Tesón, Humanitarian Intervention, 3rd ed., revised and updated (Ardsley, N.Y.: Transnational, forthcoming 2005).
7. I address this question fully in Téson, Humanitarian Intervention.
8. This section is a very brief summary of Téson, Humanitarian Intervention, ch. 5.
9. See Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), pp. 24–45.
10. Supporters of humanitarian intervention have generally treated guiding principles as necessary conditions for legitimacy, so that if one of the conditions is lacking the intervention would be illegitimate. See, e.g., Nicholas J. wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2001), pp. 33–35
11. International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: IDRC, 2001), pp. 31–37
12. Stanley A. McChrystal, “Memorandum to the President: Chairman, joint Chiefs of Staff,” in Alton Frye, ed., Humanitarian Intervention: Crafting a Workable Doctrine (New York: Council on Foreign Relations Press, 2000), pp. 61–70. The more flexible approach in the text is better suited to the complexities, similarities, and differences of various situations.
13. See, e.g., Harold Hongju Koh, “On American Exceptionalism,” Stanford Law Review 55 (2003), pp. 1521–23
14. Richard A. Falk, “What Future for the UN Charter System of War Prevention?” American Journal of Interntional Law 97 (2003), pp. 596–97
15. Michael Walzer, Arguing about War (New Haven: Yale University Press, 2004), p. 149
16. Gareth Evans, “Humanity Did Not Justify This War,” Financial Times, May 15,2003, p. 15
17. Jerome Slater, “Can the War with Iraq Be Justified?” Buffalo News, February 16, 2003, p. H1.
18. Contra Falk, “What Future for the UN Charter System of War Prevention?” pp. 596 97.
19. For a summary of this position, see Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Cambridge: Polity Press, 1996), p. 43.
20. See also ICISS, The Responsibility to Protect, pp. 35–36.
21. See John Stuart Mill, Utilitarianism, ed. Roger Crisp (Oxford: Oxford University Press, 1998), p. 65, n. 2. Responding to a critic, Rev. Davies, Mill wrote: “I submit, that he who saves another from drowning in order to kill him by torture afterwards, does not differ only in motive from him who does the same thing from duty or benevolence
22. The discussion in the next two paragraphs owes to Michael Ridge, “Mill's Intentions and Motives,” Utilitas 14, no. 1 (2002), p. 54.
23. After this article was written, Terry Nardin kindly sent me his “Introduction,” in Terry Nardin and Melissa Williams, eds., Humanitarian Intervention (NOMOS: Yearbook of the American Society of Political and Legal Philosophy, XLVII) (New York: New York University Press, forthcoming 2005)
24. On the various definitions of action and its relation with intent and causation, see George Wilson, “Action,” Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Stanford, Calif.: Metaphysics Research Lab, 2002); available at plato. stanford.edu.
25. For a comprehensive treatment, see Martin R. Gardner, “The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present,” Utah Law Review (1993), pp. 635–750.
26. A useful summary is Wayne R. LaFave, “Motive,” in Substantive Criminal Law, 2nd ed. (Eagan, Minn.: West, 2005), section 5.3. The question is complex, as motive sometimes bears on the definition of the crime (think of hate speech crimes’. In these cases, however, we can perhaps say that criminal punishment aims at finding persons blameworthy. The performance of an act is a necessary condition for that blameworthiness, as a liberal criminal law does not punish mere motive. (I am indebted to Marcelo Ferrante on this point.)
27. See Wheeler, Saving Strangers, pp. 78–110.
28. R. W. Dyson, ed., Aquinas: Political Writings (New York: Cambridge University Press, 2002), p. 241.
29. Mona Fixdal and Dan Smith, “Humanitarian Intervention and Just War,” Mershon International Studies Review 42 (1998), p. 286.
30. See Falk, “What Future for the UN Charter System of War Prevention?” p. 597.
31. Someone may insist that the way justifications enter the public domain has a bearing on the correctness of intervention. I am not persuaded by this objection because, in my view, typical public deliberation suffers from serious pathologies that undermine its epistemic credentials. See Guido Pincione and Fernando R. Tesón, Deliberation, Democracy, and Rationality (New York: Cambridge University Press, forthcoming).
32. See Michael Ignatieff, “Why Are We in Iraq? (And Liberia? And Afghanistan?),” New York Times Magazine, September 7,2003, pp. 38ff.
33. See, e.g., George W. Bush, “State of the Union,” January 28, 2003; available at www.whitehouse.gov/news/releases/2003/01/20030128–19.html#
34. his statements to the press on the eve of the attack, “Threats and Responses: Excerpts from Joint News Conference “Tomorrow Is a Moment of Truth,”” New York Times, March 17, 2003, p.13
35. George W. Bush, “Address to the Nation,” March 19, 2003; available at www.whitehouse.gov/news/releases/2003/03/20030319–17.html
36. See “Democracy Stirs in the Middle East,” Economist, March 5, 2005, p.9.
37. See “Grudging Respect,” New Republic, March 21, 2005, p. 7.
38. The text of the address can be found in “There Is No Justice Without Freedom,” Washington Post, January 21, 2005, p. 24; available at www.washingtonpost.com/wpdyn/articles/A23747–2005Jan20.html. I quote from there.
39. Cf. Kant's distinction between pure and impure duty. See Robert B. Louden, Kant's Impure Ethics (Oxford: Oxford University Press, 2000), p. 9.
40. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), pp. 109–26.
41. See the discussion in Fernando R. Tesón, A Philosophy of International Law (Boulder, Colo.: Westview Press 1998), ch. 1.
42. See “Special Report, Middle East: Something Stirs,” Economist, March 5, 2005, pp. 24–26
43. Neil MacFarquhar, “Unexpected Whiff of Freedom Proves Bracing for Mideast,” New York Times, March 6, 2005, p. 1.
44. See Todd S. Purdum, “For Bush, No Boasts, but a Taste of Vindication,” New York Times, March 9, 2005, p. 10.
45. Compare John F. Burns, “On Iraq's Street of Fear, The Tide May Be Turning,” New York Times, March 21, 2005, p. A1
46. with John F. Burns and Eric Schmitt, “Generals Offer Sober Outlook on Iraqi War,” New York Times, May 19, 2005, p. A1.
47. Even in France, where defending the war is quite a risky business, some voices have started wondering. See Guy Sorman, “Et si Bush avait raison?” Le Figaro, February 26, 2005, p. 10.
48. See, e.g., ICISS, The Responsibility to Protect,pp. 31–32.
49. The regime's brutality has been amply documented. The ever-present terror visited on Iraqis by the secret police and similar branches of the ruling Baathist Party are well described in Kanan Makiya, Republic of Fear: The Politics of Modern Iraq (Berkeley: University of California Press, 1998), esp. chs. 1 and 2.
50. See, inter alia. Con Coughlin, Saddam: King of Terror (New York: HarperCollins, 2002)
51. Louis Wiley, Saddam's Killing Fields, vol. 1 (videocassette) (Alexandria, Va.: PBS Video, 1992). The Iraqis themselves are compiling millions of documents attesting to the horrors of the regime. See the work of the Iraq Memory Foundation at www.iraqmemory.org.
52. Ken Roth, “War in Iraq: Not a Humanitarian Intervention,” Human Rights Watch World Report 2004; available at hrw.org/wr2k473.htm.
53. Independent International Commission on Kosovo, Kosovo Report: Conflict, International Response, Lessons Learned (Oxford: Oxford University Press, 2000), p. 4; emphasis added.
54. This is particularly obvious when the Iraqis themselves (as opposed to critics of the war) are allowed to speak. See, e.g., Jalal Talabani and Massoud Barzani, “What Iraq Needs Now,” New York Times, July 9,2003, p. A21.
55. See also Stephen Morris, “Why We Had to Fight-Iraq 366 Days Later,” Weekend Australian, March 20, 2004, p. 28
56. Daniel Byman, “Constructing a Democratic Iraq: Challenges and Opportunities,” International Security 28, no. 1 (2003), pp. 47–78
57. and Nancy Gibbs, “When the Cheering Stops: Jubilation and Chaos Greet the Fall of the Saddam Regime,” Time, April 21, 2003, p. 40.
58. Paul Berman, “Silence and Cruelty,” New Republic Online, June 17, 2004, contends that Iraqis had suffered “psychological demolition.”
59. See, e.g., Jeffrey Gettleman, “Anti-U.S. Outrage Unites a Growing Iraqi Resistance,” New York Times, April 11, 2004, p. 14. There was, of course, ex ante anxiety and suspicion at the occupation, which expressed the legitimate desire of the great majority of Iraqis that the Coalition leave once it could plausibly do so. But these sentiments are perfectly severable from the welcome by the great majority of the Iraqis of their liberation. My discussion here addresses only the claim that the insurgency alone is evidence of the Iraqi will not to be liberated.
60. The evidence suggests that the insurgency is dominated by the disempowered Sunni minority, but also that not all Sunnis are sympathetic to it. See Liz Sly, “Sunni Political Front Takes Shape,” Chicago Tribune, May 22, 2005, p. C9.
61. See Fernando R. Tesón, “Self-Defense in International Law and Rights of Persons,” Ethics & International Affairs 18, no. 1 (2004), pp. 87–91.
62. See, e.g., James P. Rubin, “Stumbling into War,” Foreign Affairs 82, no. 5 (2003), pp. 46–68.
63. Thus, I am generally favorable to the proposal by Allen Buchanan and Robert O. Keohane, “The Preventive Use of Force: A Cosmopolitan Institutional Proposal,” Ethics & International Affairs 18, no. 1 (2004), pp. 1–22, although they view approval by democratic states as a constraint, and not just as a desirable practice.
64. See, inter alia, ICISS, The Responsibility to Protect, pp. 47–55
65. Wheeler, Saving Strangers, pp. 40–48
66. Ramsbotham and Woodhouse, Humanitarian Intervention in Contemporary Conflict, pp. 157–62
67. and Mark S. Stein, “Unauthorized Humanitarian Intervention,” Social Philosophy and Policy 21, no. 1 (2004), pp. 14–38.
68. Requiring democratic or human rights credentials for members of the Security Council is not among the proposals for reform. The recent UN report on the matter only recommends increasing “the democratic and accountable nature of the body.” See A More Secure World: Our Shared Responsibility-Report ofthe Secretary-General's High-Level Panel on Threats, Challenges and Change (New York: United Nations, 2004), p. 80.
69. See, e.g., Michael Byers and Simon Chesterman, “Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law,” in J. L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (New York: Cambridge University Press, 2003), pp. 181–84.
70. Other legal scholars believe, more sensibly, that the Kosovo precedent introduced uncertainty regarding this requirement. See, e.g., Jane Stromseth, “Rethinking Humanitarian Intervention: The Case for Incremental Change,” in Holzgrefe and Keohane, eds., Humanitarian Intervention, p. 177
71. and Thomas M. Franck, “Interpretation and Change in the Law of Humanitarian Intervention,” in Holzgrefe and Keohane, eds., Humanitarian Intervention, p. 204.
72. This minimalist view of order has a rich tradition. See, e.g., Hedley Bull, The Anarchical Society: A Study of Order in World Politics, 2nd ed. (New York: Columbia University Press, 1977), pp. 3–21.
73. For a reflection on the concept of order and its relation to justice, see Andrew Hurrell, “Order and Justice in International Relations: What Is at Stake?” in Rosemary Foot, John Lewis Gaddis, and Andrew Hurrell, eds., Order and Justice in International Relations (New York: Oxford University Press, 2003), pp. 24–48.
74. Eric Posner and John Yoo have suggested that the UN is increasingly used as a forum to oppose U.S. efforts to use force and that it hampers in various ways the advancement of international law. Eric Posner and John Yoo, “Where's the Old Bolton When We Need Him?” Los Angeles Times, April 19, 2005, p. B13. If, as I suspect, they are correct, the United States has a valid reason to ignore the UN when the United States is trying to do the right thing, as in Iraq.
75. Buchanan and Keohane, in “The Preventive Use of Force,” pp. 16–22, propose a two-stage system that includes Security Council action, under the assumption that reforming the Security Council is unrealistic.
76. ICISS, The Responsibility to Protect, pp. 54–55.
77. See Buchanan and Keohane, “The Preventive Use of Force.”
78. Thus I disagree with Suzanne Nossel, who claims that progressives must rescue liberal internationalism from “the Bush Administration's militarism” and “militant imperiousness.” Suzanne Nossel, “Smart Power,” Foreign Affairs 83, no. 2 (2004), p. 131.
79. Berman, “Silence and Cruelty.”
80. Space limitations prevent me from addressing the question of the costs of the Iraqi war. I discuss it in Tesón, Humanitarian Intervention, ch. 10. While of course the death of innocents in the war is regrettable, I believe the war has generally complied with the strictures of the doctrine of double effect. For a general discussion, see Fernando R. Tesón, “The Liberal Case for Humanitarian Intervention,” in Holzgrefe and Keohane, eds., Humanitarian Intervention, pp. 93–129.
81. For two recent findings, see Sabrina Tavernise, “End of the Line for Families of Baghdad's Missing: The City Morgue,” New York Times, May 20, 2005, p. 10
82. and Robert F. Worth, “Iraqis Find Graves Thought to Hold Hussein's Victims,” New York Times, April 15,2005, p. 8.