How Iraq Changed How We Think About Human Rights
Jennifer Welsh on how Iraq has transformed our thinking about human rights law.
Ten years ago today, on the 18th of March, British Prime Minister Tony Blair addressed the U.K. Parliament as part of its charged debate over the impending war against Iraq. While many of the reflections on the war, a decade on, stress the importance of American neoconservatives, we must remember that the military intervention in the spring of 2003 was also supported by many liberal internationalists, including Prime Minister Blair. In both neo-con and liberal internationalist circles, Iraq’s suspected weapons of mass destruction (WMD) were always a means to add weight and urgency to a deeper, moral argument in favour of the use of force: the avoidance of future human rights abuses against the Iraqi people (of the kind Saddam had perpetrated before) and the potential to bring democracy and greater political freedom to Iraq and to the wider region.
In the case of Blair, it is difficult to explain his support for war in Iraq without considering his decisions in two other previous cases of the use of force: Kosovo in 1999 and Sierra Leone in 2000. Rightly or wrongly, Blair emerged from these two episodes convinced that military means could be a force for ‘good’. And by ‘good’, he meant the protection of human rights. Thus, when WMD failed to appear in Iraq, this so-called moral argument became of greater importance in justifying the death and destruction that resulted from the fateful decisions of March 2003.
Ever since, the rights and wrongs of that second ‘just cause’ for war have been hotly debated. But whatever position one might take, there is no denying that the Iraq War has changed how we think about the connections between human rights and the use of military force.
This change in thinking has occurred in two main ways: first and foremost, the war renewed debate about the wisdom of making the rights of the individual, rather than the sovereign state, one of the central reasons for going to war. (The NATO-led action in Libya in 2011 is one prominent example of this trend.) Whereas conflicts in previous centuries were about the gain of territory or resources, or defense against attack, many of the contemporary conflicts have as one of their central purposes the protection of individuals’ physical security or human rights.
The Iraq War – with its strategic use of human rights arguments – raised suspicions among a number of states about the ‘real’ motives that underpin military interventions by western countries. Indeed, the switch from WMD to the ‘moral’ argument during the course of 2003 almost killed support for the principle of the ‘responsibility to protect’ (R2P), which was designed to address the legitimacy of military interventions in extreme cases of mass atrocity crimes. So, for example, in the summer of 2003, following the end of the military phase of the U.S.-led war in Iraq, then Canadian Prime Minister Jean Chrétien tried to build support for R2P at the Progressive Governance Summit hosted by Tony Blair in London. But even at this gathering of left-of-centre government leaders – an audience one might think would be amenable to discussions about humanitarian intervention – very little progress was made in moving the debate forward. R2P has gained considerable traction since that time, but the very precise and limited ways in which it has been endorsed by states, and the lingering concerns about the use of humanitarian rationale as a ‘Trojan Horse’ for military interventions motivated by other purposes, remain part of the legacy of the Iraq War.
There second way in which the Iraq War raises questions about the connection between human rights and armed conflict is through the impact this conflict – along with the one in Afghanistan – has had on the nature of international humanitarian law (the law applicable in wartime). Today, this is no longer purely a body of reciprocal legal rules agreed to by sovereign states to limit their conduct during war in order to minimize the suffering of innocents (for example, through the distinction between ‘civilian’ and ‘combatant’). Instead, those who become embroiled in armed conflict have claimed that they still possess their core human rights, regardless of what the warring parties believe they need to do out of ‘military necessity’. This claim has spurred a variety of path-breaking legal challenges by individuals against the actions of military establishments, such as the 2007 Al-Jedda case in the United Kingdom, where a dual Iraqi/British national protested against his detention by British forces in Iraq on the ground that preventive internment violated his human right to liberty (as per the European Convention on Human Rights, or ECHR).
Thus, while it was traditionally held that international humanitarian law applies primarily in times of war, and the international law of human rights applies most fully in times of peace, today the two bodies of law are becoming intertwined in significant ways. This has both strengthened the human rights obligation of armed forces, and extended the extraterritorial reach of human rights treaties and conventions (such as the ECHR). The Iraq War has been a central part of that movement. Indeed, one might argue, as Judge Bonello did in the Al-Jedda case, that a military action motivated by human rights promotion (as the Iraq War allegedly was) has an even greater duty to respect core human rights. Thus, in explaining why he believed that the U.K. government was responsible for infringing on the right to liberty in this particular case, he wrote acerbically:
I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.
So what is the legacy of Iraq? Among many other things, it has encouraged us all to interrogate human right arguments for war, and to demand consistency in the application of human rights principles. Such lessons have come at a huge and tragic cost. On the day that I write this, according to the Iraq Body Count, between 111,734 and 122,195 Iraqi civilians have now lost their greatest human right – the right to life itself – since the beginning of military operations in the spring of 2003.