Just War Theory and the 2003 Iraq War Forced Displacement
Department of Political Science and International Relations, University of Delaware, Newark, DE 19716, USA
bbanta{at}udel.edu
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The forced displacement in the wake of the 2003 US coalition invasion of Iraq is the largest in the Middle East since the 1948 Palestinian displacement at the inception of the State of Israel. It has had and is having dire effects upon Iraq and the region, with millions of IDPs resulting from and contributing to sectarian violence within Iraq, and Iraq's neighbours Syria and Jordan hosting the vast majority of refugees. Using the burgeoning third pillar of just war theory (JWT), jus post bellum, or just peace, this paper will examine what duties the US has toward the Iraqi displacement. In doing so, the paper will present overviews of US conduct in the war through the lens of JWT, as well as a discussion on the consequences of the forced displacement. From there, it will be possible to critique US action toward the displacement pursuant to jus post bellum criteria.
Key Words: displacement • Iraq • just war theory • jus post bellum
John Bolton, former US ambassador to the UN, in many ways sums up US policy toward the forced displacement following the 2003 Iraq War—a crisis in which approximately 2 million Iraqis left the country and an estimated 2 million were internally displaced—when he states that it had
‘absolutely nothing to do with our overthrow of Saddam ... Our obligation was to give them new institutions and provide security. We have fulfilled that obligation. I don't think we have an obligation to compensate for the hardships of war ... Helping the refugees flies in the face of received logic. You don't want to encourage the refugees to stay. You want them to go home’ (quoted in Rosen 2007: 10).This article seeks to investigate why Bolton's viewpoint may be not only morally deficient but also instrumentally counter-productive.
In the US response to the forced displacement, the letter of existing international humanitarian law with respect to refugees was technically followed, though such law has been described as an ‘intractable’ problem for the solution of refugee crises in that it is possible to interpret the relevant framework to fit an array of decisions (Whitman 2001; Storey and Wallace 2001: 349). It may be more accurate to say that the law was used as a shield of deniability against accusations of gross moral apathy. Correspondingly, the forced displacement reflects the core moral and pragmatic consequences of ‘the first time a group of intervening states have justified their actions by referring to the humanitarian outcomes that were produced by acts primarily motivated by non-humanitarian concerns’ (Bellamy 2004b: 217).
The massive displacement sparked by the 2003 Iraq War not only destabilized Iraq and the region but raised questions, as the war's justifications did also, of how international law and society were to address the situation. For, the Iraqi forced displacement was uniquely linked to the actions of the intervening forces—namely the US; even the British were deemed a ‘junior partner’ in the invasion (Keegan 2005: 1). Because of this linkage the article will attempt to ‘examine the causes of specific cases of displacement historically ... [with] cause and effect ... as organically related’ (Shami 1993: 10) in order to establish the relationship between the US led invasion and the displacement. It will then go on to suggest morally just actions with respect to the Iraqi forced displacement in the face of a quagmire of legalities and excuses. Pertinent legal statutes will be cited not as arguments in themselves, but merely in service of bolstering the moral argument being laid out. International law was woefully inadequate in addressing the crisis, as positive law usually is when reality leap-frogs its conceptions. Generous receiver nations such as Sweden were reduced to pleas for fairness when trying to encourage the US to take on a more proportionate share of the burden, its migration minister pointing out that Sweden's intake ‘is equivalent of the US taking in about 500,000 refugees’ (Cohen 2007).
Fortunately, as Orend paraphrases in his comprehensive update to just war theory (JWT), even Grotius believed ‘that the very point of law is to realize the ideals of morality’ (2006: 18). The ethicist must claim pride of place when evaluating the hard cases, the new occurrences, and those events that challenge preconceived notions of right and wrong. This moral argument presupposes a ‘non-ideal theory ...[which] recognizes that morality might still specify how we should act even in circumstances where it is impossible to live up to all of its fully realized demands’ (Evans 2005: 9). JWT is uniquely situated to act as a framework of common language in addressing this crisis, it being the most widely invoked framework for thinking morally about war in the liberal West (Shaw 2005: 133), and with very relevant recent developments in theorizing about the justice of post-war conduct. Even Richard Falk, a ‘radical international scholar and critic of most Western wars’, finds that the tradition ‘provides the most flexible and relevant normative framework [on war]. It has roots in the ethics of all the great world religions, [and] it is a vital source of modern international law’ (Falk 2001, quoted in Shaw 2005: 133). And, the universality it seeks in placing its terms firmly within accepted notions of human rights lends it applicability beyond mere critiques of Western state acts (Orend 2006: 52).
In its mandate of determining ‘minimal justice’ in cases of necessary war, JWT seeks a complete theory of warfare in which ‘the foundational (human rights of) security, subsistence, liberty, equality and recognition’ (Orend 2006: 52) are upheld by choosing war only when it is the lesser of two evils (Evans 2005: 10). Out of this search has grown an acknowledgement by many of the most prominent just war scholars—especially in light of myriad post-war difficulties of recent conflicts and the ever more entrenched norm of humanitarian intervention—of a necessary third pillar to the traditional just war canon of jus ad bellum (justice of war, or just cause), and jus in bello (justice in war, or just means) (Orend 2002: 43). This third pillar, jus post bellum (justice after war, or just peace) is most desperately needed with wars like Iraq 2003, where treaties or legal prosecutions between parties are clearly not enough, and the comprehensive construction of the post-war environment is the very goal of war in the first place. Jus post bellum is intended to extend the moral insights of JWT—which are drawn out from the maxim that because there are moral values at stake in war, it is sometimes morally permissible and even necessary to fight a war (Orend 2007: 5)—to the previously implicit concerns with post-war conduct within the theory and elaborate them further (Williams and Caldwell 2006: 311–312).
Murnion correctly recognizes that
[h]istorically, the development of just war has not been an organic evolution, but a series of paradigm shifts in response to a dialectic between transformations of values and technological, political, social, and cultural innovations (2007: 23).The former holy war ethic of just war was a purely militaristic interpretation containing the non-contingent righteousness of cause and likewise of means. Radically different is Walzer's secular re-interpretation in Just and Unjust Wars, which contained a surface of idealism that ‘bottomed out in ethical realism’ (Murnion 2007: 34). It is clear that a paradigm shift is again taking place within just war. Orend makes the case that the explicit addition of jus post bellum considerations, in its realization that unlike Walzer's conception the phases of war are a linked set in which the morality of one affects the ability to act morally in the other (Orend 2006: 162), signals a strengthening of idealism, and a turn away from just war being viewed as a mere enabling doctrine. In demanding greater responsibilities for the just war-making party—that they, within reason, strive to reconstruct a post-war environment in which, as is the basis of modern just war theory, the human rights of individuals are recognized and respected (Walzer 2006: xxiv)—the theory has ceded to acknowledgement that the interconnectedness of our world demands a tipping of the scales toward more concern for human security.
It is important to note, though, that the theory is not some defined calculus, but a heuristic tool which is meant to guide one's thinking on war. It is clear how after centuries of moral philosophizing on war in its cause and means phases, that guidance has seeped into the positive laws of the international community with such documents as the UN Charter, the Geneva Conventions, or the US military code of conduct (Walzer 2002). And with Walzer's reworking of JWT, it has seen extensive incorporation into the liberal thought of Rawls and many others. Jus post bellum, even apart from valid concerns whether it should be considered at all (‘rehabilitation’, for example, comes uncomfortably close to imperialism and/or colonialism for many critics), is an admittedly under-theorized concept. But an adequately useful summary of the most basic formal criteria is given by Bosanquet, as updated from Orend's criteria in his ground-breaking 2000 article on jus post bellum: rights vindication, publicity, honourable intention, protection, rehabilitation, justice, and restoration (Bosanquet 2007: 11). Keeping in mind this mere adequacy, I will rely heavily on JWT's tradition as a heuristic device. Though jus post bellum is controversial, even in this early incarnation it at the very least prompts us to think critically about what is required in the post-war phase, and the conclusions drawn from the existing criteria are merely in service of pointing toward a very general critique of US refugee policy in Iraq. I will also concentrate more heavily than may at first seem necessary on the cause phase of the war; the reader should get a general sense from the discussion in this article how greatly theorization of post-war justice is dependent upon ad bellum criteria both in future development of a firm set of standard criteria, and in effectively applying to a specific case any post bellum criteria as now conceived. It is thus the hope of jus post bellum inquiries such as this that the necessary moral questions pertaining to a difficult and ambiguous post-war displacement case such as Iraq can be answered with at least a better degree of objective precision than provided by existing positive law (Williams and Caldwell 2006: 317). Admittedly, such an inquiry is a difficult task; ‘for jus post bellum to have utility in the real world, it must deal with the past, present, and future issues surrounding the conflict’ (Patterson 2007: 38).
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Unjust Cause and Wilful Ignorance in Iraq |
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Pertinent to US responsibilities is a brief explanation of the controversies surrounding the cause phase of the war, as those controversies began a direct chain of events that led to the displacement and the particular response to it. Both Walzer and Orend, two of the most prominent just war theorists, have concluded that the cause for war in Iraq was unjust (Walzer 2004, 2006; Orend 2006). If we agree with such a conclusion it would have significant implications for any discussion of moral rights and duties in the post-war period. The conclusion hinges on two overarching justifications for the Iraq invasion—pre-emption and humanitarian intervention—notwithstanding the blatantly unconvincing contention that force was legally justified because Iraq had not held firm to the letter of UN resolutions with regard to weapons inspections.1
The Bush administration attempted to establish a new post-9/11 definition for pre-emption with the National Security Strategy (NSS) of 2002. Pre-emption is commonly defined as a war of self-defence in which the prospect of attack is so sure that the ‘preemptor has no choice other than to strike back rapidly’ (Gray 2007: v). The attempted new definition, citing the possibility of catastrophic terrorism and rogue states, essentially shifts the definition of pre-emption to that of prevention. Preventive war, which unlike pre-emption has no legal standing in international law or JWT (Gray 2007: vi; Crawford 2005: 26), is based on ‘a guess that war, or at least a major negative power shift, is probable in the future’ (Gray 2007: 13). Thus as Gray plainly states, the ‘Bush Doctrine of 2002 either deliberately or accidentally misused the concept of preemption’ (2007: 6).
The second overarching US justification for war, humanitarian intervention, also took on a non-standard meaning with respect to Iraq. Before the war, the Bush administration cited Saddam's crimes against humanity—the gassing of the Kurds, the indiscriminate arrests and killing of dissenting citizens, etcetera—as a reason the Iraqi people deserved foreign intervention. And as Wheeler points out,
[w]hat matters [for the just war theorist] is that the president felt it necessary to publicly defend the action in humanitarian terms, an implicit admission that this justification was a necessary enabling condition of the action (2003: 198).Furthermore, Bush expressed a commitment to humanitarian intervention's implicit responsibilities, saying a month before the war, in February 2003, that ‘America's interests in security, and America's belief in liberty, both lead in the same direction: to a free and peaceful Iraq’ (quoted in Ottaway 2003: 56). Unfortunately, even as some just war scholars have pointed out that humanitarian intervention may have been the strongest case for war (Orend 2006: 196)—the preventive justifications being a much too radical step away from JWT—the threshold for such a justification was also not met. The general consensus is that the threshold must be ongoing ‘crimes against humanity’, or acts that ‘shock the moral conscience of mankind’ (Walzer 2006a: 106–107). These are usually genocide or near-genocide. Clearly, Saddam may have met this threshold at times in the past, but was not at the time of war committing such grave atrocities (Bellamy 2004a).
Failure to meet just war criteria in the run-up to the war has direct consequences on the ability and necessity of conducting the post-war justly. Per Orend's linked set argument, each successive fulfilment—from just cause, to means, to peace—increases the likelihood and ease with which the next set of criteria is fulfilled. Thus, if a war is begun unjustly, depending on the degree to which this is true, the means and peace become increasingly more difficult to fulfil. The ‘injustice of cause infects the conclusion of the war’ (Orend 2006: 162). This infection manifested itself in Iraq most crucially with respect to the military necessities of the post-war period. Illustrative were the efforts to refute the pre-war assessments of General Shinseki; after the General matter-of-factly asserted to the US Congress that several hundred thousand troops would be needed to secure Iraq, then Deputy Secretary of Defense Paul D. Wolfowitz and others were quick to dismiss this assessment on the mistaken grounds that, unlike the Bosnian campaign from which General Shinseki had garnered his experience, Iraq did not have a history of ethnic strife (Schmitt 2003). Similarly illustrative, the famed ‘Downing Street Memo’, written by British officials in July of 2002, stated plainly that not only were ‘intelligence and facts being fixed around’ the pre-war policy of US officials, but that ‘the US military plans are virtually silent’ on a post-war occupation plan (Pincus 2005). We can see why when considering assessments such as those of a 2005 RAND report to the Army, which significantly was not published:
‘Building public support for any pre-emptive or preventative war is inherently challenging ...[a]ny serious discussion of the costs and challenges of reconstruction might undermine efforts to build that support ... There was never an attempt to develop a single national plan that integrated humanitarian assistance, reconstruction, governance, infrastructure development and postwar security’ (quoted in Gordon 2008: 2).The war was sold as an in and out operation, hinging on Vice President Cheney's belief that the Iraqi people, so fatigued by decades under the Hussein regime, would greet the US as liberators, and that oil revenue would quickly pay for the reconstruction. In simmering revolt over inadequate troop levels even a week before conventional fighting ended, military officers in the field began expressing the problems in selling a war as a relatively pain-free endeavour, one anonymous colonel saying of Secretary of Defense Donald Rumsfeld's war-plan: ‘He wanted to fight this war on the cheap. He got what he wanted’ (quoted in Weinraub and Shanker 2003). And what he got was a war in which the humanitarian motives were not only intuitively felt to be insincere in the cause phase, but were virtually proven to be insincere in the minds of a large number of people (most importantly, in the minds of most Iraqis2) by some of the means employed and the lack of material resources used in securing a stable peace.
Importantly, though, Walzer does conceive that it is possible for a war begun unjustly, to a certain degree, to strive towards a just peace. He states:
a misguided military intervention or a preventative war fought before its time might nonetheless end with the displacement of a brutal regime and the construction of a decent one ... I doubt that a settlement of this sort would retrospectively justify the war ... but it might still be just in itself (2004: 163).Thus just action in the post-war period is both possible and desirable, but is made much more difficult if there are valid questions as to the war's ad bellum justness. The difficulties arising from the unjustness of cause are particularly relevant to the sparking of the forced displacement, as the necessities of such a shaky justification on resources and political will are readily apparent.
The Beginning of the 2003 Iraq Forced Displacement
An ad bellum criterion important when considering post-war Iraq is that of reasonable chance of success. Iraq presented a daunting task with respect to the nation-building effort implied as a justification for war. A study by the RAND corporation of US nation-building since the Second World War found that the key variables to a successful effort are previously advanced economies, social homogeneity, and a great deal of time, effort and resources (Dobbins et al. 2003: 160–161). Iraq, by contrast, ‘combines many of the most troublesome features’ of the numerous cases in the RAND report (Dobbins et al. 2003: 168). And, as the study pointed out, ‘the pre-war splits in the UN Security Council make it much harder for the United States to adopt the burden sharing models of past interventions’ (Dobbins et al. 2003: 169), in which UN and other international assistance beyond simply humanitarian aid was significant. Steps were taken to lessen the damage during the war to vital infrastructure that would be needed in reconstruction. This, along with USAID amassing of personnel and resources, was thought to be enough to prevent a wide-scale humanitarian crisis. But the stated goal of a stable democratic regime, per the Dobbins report, clearly implied a lengthy and robust military occupation as well, despite the contrarian PR campaign from many within the Bush administration.
Nevertheless, when conventional fighting ended on 9 April 2003 the occupation and re-construction began, with the UN recognizing the US and its coalition as legal occupiers on 22 May 2003. In the tentative weeks after the successful deposition of the ruling regime, troop numbers were already showing signs of insufficiency. Looting, lawlessness and sporadic violence were frequent. The lawlessness merged into insurgency as Sunni fighters or supporters of the Saddam regime, as well as foreign fighters that began to spill over Iraq's now porous borders, began attacking US troops and, more importantly, Shiite targets (Keegan 2005: 206–207). Also contributing to the rising insurgency were the heavy-handed tactics of US soldiers unprepared and under-equipped to take on an urban guerilla force, thus breeding anger toward the US occupation (Negus 2004: 23). Despite this, the US clung fiercely to some obviously far-fetched notions about the reconstruction.
The original post-war plan was a study in handing over power as quickly as possible. Keegan finds that in contrast to the British forces in control of southern Iraq, who with the hindsight of imperial experience and the benefit of operating in a primarily Shiite region (Shiites who would gain from the overthrow of Saddam) established law and order before handing over local governance, the ‘Americans adopted an ideological approach ... [which] sought an immediate transformation of Iraq from a tyranny to a functioning democracy’ (2005: 209). The US decided that only ‘a short, light-handed occupation’ was needed to begin implementing the originally envisioned swift transfer of power (Ottoway 2003: 56). As Feldman explains, ‘an unelected transitional government ... [was] a caretaker pending elections’ (2006: 118). This essentially established a confused system where neither political nor military authority was firmly established. The ineffective and undemocratic transitional government was accountable politically; and this, combined with the lack of any real physical security in large sections of Iraq, led the Iraqi people to conclude that ‘the United States [was] not in charge’ (Feldman 2006: 77). Thus a rush to elections scheduled within the next year became rightly viewed as a power grab in which the Shiites stood to gain the most (Allawi 2007). Orend writes that, ‘the nation-building research shows you need about 20 soldiers per 1,000 residents to stabilize and secure post-war populations’ (2006: 205). Iraq's estimated prewar population of 25,175,000 would call for over 500,000 troops; the US has never reached even 200,000 troops in country at one time.
The question arises, however, whether the ethnic tensions described previously indicate that an Iraqi forced migration was imminent, regardless of US post-war actions. For instance,
[t]he Soviet Union's invasion of Afghanistan in the late 1970s ... created several million Afghan refugees to be sure, but ethnic and ideological conflicts within the country predated the Soviet occupation and persisted after it (Wood 1994: 616).If a conflict sparked by an outside force—especially if that force were a just intervening force—merely presented the opportunity for a spike in an already ongoing ethnic conflict or displacement, any placing of blame upon such a force might become more nuanced, or disappear altogether. The most striking evidence against the imminent refugee outflow contention is the fact that immediately after the war there was a marked influx of returning expatriates. Approximately 325,000 Iraqis returned between 2003 and 2005 (Reira and Harper 2007: 10). Indeed, as Zard put it in May 2003, ‘[t]he anticipated [refugee] flows never materialized’. And, though sectarian hostilities have long been a feature of Iraqi society, they were usually sparked by the policies of the Hussein regime, as will be further explained below; many may have hoped that a secure Iraq with the US in command would present an opportunity for a new status quo with respect to Iraq's ethnic interaction. Though it is evident that a pattern of increased tribalism occurred each time Iraq was destabilized by war, and that the state was ever more precariously making concessions to tribal factions, it was a minority Sunni-controlled state unable and unwilling to provide for the economic needs of its people that was the primary causal variable in this pattern. If the forced displacement is primarily the result of ethnic strife that began, or reached certain levels, because of morally indefensible ignorance on the part of the US as to necessary troop levels and the need to secure Iraq, then the imminent outflow, or ‘hardships of war’ defence disappears. Some early displacements may very well fall into the category of ‘hardships of war’. US military operations intended to snuff out the insurgency inevitably caused displacements; the so-called Battle of Fallujah in April of 2004 resulted in 150,000 refugees (Kaldor 2007: 265). But it was not until Sunni insurgents began to fight with Shiite militias on a wide scale that a general, massive, and sustained displacement began to occur.
As the details surrounding the bombing of the one of the most sacred Shiite holy sites—the Samarra Mosque in February 2006—attest, it was the fumbling of the immediate occupation that provided the conditions necessary for a spark to ignite the powder keg of Iraqi sectarian tension (Worth 2006). Those who carried out the Samarra bombing—Sunni insurgents dressed in Iraqi police garb—are unfortunately an accurate reflection of the largest failure of US post-war action. For, although ‘disarmament and demilitarization ... [is] the first criterion of making any newly constructed government one which will not commit aggression ... this implies a duty on your part to fill in the gap’ (Orend 2006: 198). US policy was to train, virtually from scratch, a capable Iraqi security force as quickly as possible, with expectations for success turning out to be completely unrealistic. As noted extensively in accounts of US failures in Iraq, the immediate disbanding of the Iraqi army and police forces at the end of combat operations made this from-scratch training exceedingly difficult. One senior coalition official lamented that some members of Iraq's reconstituted security forces had been put into positions that took years to learn in as little as nine weeks (Hauser and Shanker 2004).
Thus, instead of a secure state in the slow process of establishing democratic governance where none previously existed, there was a dangerous lack of competent security and a hastily constructed Iraqi government perceived as (and in reality) Shiite dominated. The very day of the Samarra bombing 27 Sunni mosques were attacked in retaliation (Worth 2006), and the forced displacement truly began. In 2007 the International Organization for Migration found that 89 per cent of displaced persons claimed they fled for reasons of religious or sectarian identity (IOM 2007: 2), and not directly because of US efforts to pacify the country. It is clear that contrary to the unavoidable ‘hardship of war’ argument, it was in fact the failure of the US to meet its responsibilities toward foreseeable post-war security difficulties that led to an ethnic conflict directly resulting in the displacement. And, it is clear that the contentiousness of the 2003 Iraq War's jus ad bellum not only contributed to the dearth of post-war military planning, but intensified the need for impeccable post-war conduct, of which responses to the forced displacement are an important part. Indeed, Orend pithily concludes that because of the injustice of cause with regard to Iraq, ‘America has few rights, but many duties’ (2006: 196). These duties, though, must be positioned against the actual consequences of a forced displacement in general, and specifically in the case of Iraq. For without establishing the serious consequences of the 2003 Iraqi forced displacement it is difficult to demand moral duties beyond what is legally expected.
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The Consequences of Forced Displacement |
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The premise behind a call for inclusion of forced displacement crises within a discussion of just war is not merely whether a crisis was caused by a war, but just as importantly the degree of effect it can have upon considerations of peace and security. As Shulte points out,
[p]eace and security in one region is now bound more closely than ever before with conditions in what could previously be regarded as faraway countries ... Refugee flows can appear suddenly and affect the mood on the streets thousands of miles away (2007: 138).The consequences of a massive forced displacement—defined as exceeding 100,000 persons and comprising at least 1 per cent of a state's population (Wood 1994: 609)—upon international relations constitutes a relatively young field of study, though general definitions and expectations have been established (Wood 1994: 609; Shami 1993). Along with psychological damage to the displaced and those who must care for them, with which JWT is deeply concerned, there are effects upon internal, regional, and international securities (Dowty and Loescher 1996: 43) and economies (Murdoch and Sandler 2002: 107) when a massive displacement occurs. Indeed, ‘[w]hile each refugee flow is unique, the underlying economic and political dilemmas are quite similar’ (Wood 1994: 608). These dilemmas include,
declining real incomes and large personal investments in the migration process; disparities of incomes and opportunities between the place of origin and potential destinations; kinship networks that provide critical information and support; new experiences of ethnic tension and discrimination as an ‘outsider’; loss of traditional social status; new educational and language barriers; and weakening of traditional values in the face of powerful, foreign cultural forces (Wood 1994: 608).Reflecting these observations, even UNHCR—which has since its inception been mostly concerned with ‘the legal asylum process’, and thus has maintained an emphasis on the protection of refugees—is shifting focus towards an ‘emphasis on forced migration in general and in relationship to the political security of states and economic/social stability’ (Adelman 2001: 7). This perception is due to ‘the quantum leap in numbers more than anything else’ (Dowty and Loescher 1996: 45). And both North and South have shifted thinking on even general migration from that of a net positive stance up until the oil shocks of the 1970s to an acknowledgement that massive international migration, of which the forced variety presents the largest system shocks, ‘could threaten social cohesion, international solidarity, and peace’ (Wigden 1990: 749).
The Kosovo intervention of 1999 presents a prime example of this shift, of how ‘dramatic population movements ... concentrate attention on the implications of migration for international relations’ (Russell 1992: 725). Prior to NATO intervention, nearby European states equivocated on their ability to take in Albanian refugees fleeing Milosevic's persecution. The desire to protect the stability of the region played a primary role in calculating the need for intervention, as well as how the intervention would be conducted. And the refugee flow before the intervention clearly contributed to regional volatility, while the increased refugee outflow after the bombing campaign became a key difficulty in maintaining domestic support for the war (Whitman 2001).
Correspondingly, scholars such as Dowty and Loescher were attempting as early as 1996 to develop general benchmarks for international action in combating massive refugee flows (see also Weiner 1996). They justify actions such as military interventions, hopefully conducted before a refugee crisis reaches its apex, on three grounds: ‘the imposition of a refugee burden on other states’, the threat to ‘peace and security’ that refugee crises pose, and the precedents continually being set by such responses to refugee flows as those ‘in northern Iraq, Liberia and Haiti’ (Dowty and Loescher 1996: 45). They recognize a reality in which refugees ‘require social services beyond those provided by international agencies, putting strain on domestic structures that may already have been inadequate’ (p. 47).
The Regional Context3
Issues relating to migration specific to the Middle East must be considered when assessing the consequences of any major flow in the region. The Middle East is a region with an extensive history of dealing with the consequences of refugee movements. The Palestinian refugees are the most longstanding and politically sensitive refugee group in the Middle East, if not the world (Khashan 2003; Shiblak 1996). And as Dowty and Loescher note, ‘Arab political and military support for Palestinian refugees undermined some states’ control of their own foreign and internal policies’ (1996: 49). Additionally, a string of separate refugee flows has occurred as a result of conflicts too numerous to record here, having dramatic effects on stability. For instance, and as a highly pertinent example, the first Gulf War caused a massive outflow of not only Kuwaitis, Shiites and Kurds who faced retribution at the hands of a desperate and vengeful ruler, but foreign workers—many of them also Palestinians—who fled from Iraq and into the neighbouring states because of the turmoil. A major receiving country of Iraqi refugees during the Gulf War,
Jordan ... experienced a precipitous drop not only in remittances ... but also in exports, shortages in imported oil and raw materials (affecting production), a halt to tourism, the layoff of 55,000 transport workers who formerly handled trans-shipments to Iraq, and the urgent need to find 50,000 school places for returning children, as well as to expand housing and health facilities. All this occurred at a time when returnees swelled Jordan's population by as much as 8 percent and the labor force by as much as 10 percent within the short span of a few months (Russell 1992: 723).At present, the Middle East is the region with the highest refugee population in the world (United Nations 2006: 9).
Additionally, and at the heart of what many perceive as a generalized upheaval in the Middle East as a result of the clash between identity—both religious and ethnic—and authority, some scholars observe a shift from an imaginative/instrumental grappling with the consequences of political Islam to acknowledgment of the real problem for the masses: ‘authoritarian and arbitrary government—and its converse, "democratization"—as well as the economic and welfare problems threatening the masses in most countries with poverty and degraded environments’ (Zubaida 2001: 222). Even as the 9/11 attacks took place and fear of Muslim political extremism received renewed scrutiny, the actual states of the Middle East had already reached a point where extremist political Islam was either outlawed, as in Egypt, or was being ‘integrated into the "normal" politics’ (Zubaida 2001: 222). Abdo, for instance, writes that ‘the militant movements inside Egypt have largely succumbed to the tenacity of the state security forces, the enmity of ordinary pious Egyptians, and the poverty of its own proclaimed ideology’ (2003: 5).
Destabilization can only serve to complicate the above process. The authoritarian governments of the Middle East maintain rule primarily through pan-Arabic ideology and welfare handouts, and where those fail, violent coercion. Thus when governments’ ability to maintain rule through ideology and patronage is strained by forced displacements they may be tempted to turn, as Iraq did, ‘to "primordial" means of social control’ (Zubaida 2001: 23). These include not only the violence and thuggery which pervaded Iraq under Saddam Hussein, but the state-led reconstitution of tribal identities as a means of placating human needs for self-worth and honour—a practice at the heart of many problems of the Iraqi reconstruction, as well as any movement toward Middle East liberalization generally. As a massive displacement causes increased levels of instability anywhere, especially in the Middle East, its effects of ‘further prioritizing security considerations ... can only reinforce despotism and disregard for human rights’ (Zubaida 2001: 27).
The Iraqi Context
Shami points out that, ‘displacement resulting from wars cannot be understood without an analysis of factors leading to existing population configurations and why certain populations are "at risk" of displacement’ (1993: 5). Moreover, before duties can be conferred upon agents it is important to define causes, of which a previously imperiled population may be a crucial factor when considering a forced displacement. To a large degree the population configurations of Iraq in a displacement context are a story of two disastrous wars, the eight year Iran–Iraq War beginning in 1980, and the First Gulf War with the US beginning in 1990. Though the sectarian nature of Iraq—a formerly elite Sunni minority, a formerly oppressed Shiite majority, and an independent minded Kurdish minority—may seem to be rooted in ancient tribal antagonisms (and in many ways is), the lion's share of blame for the tenor of Iraq's current sectarian strife is owed the regime of Saddam Hussein. Indeed, previous to Saddam, ‘the quest for national independence in the 1930s, 1940s, and 1950s had a generally unifying effect’ against Iraq's tribal and sectarian tensions (Farouk-Sluglett and Sluglett 1991: 1413). These tensions exist as they do today largely because of what can be called ‘social tribalism’, an identity taken up in order to have social needs met, and one which was cultivated by the Hussein regime as a result of ‘its weakness due to the impact of war and sanctions’ (Jabar 2000: 28).
Under Saddam, traditional Iraqi tribes and clans based on extended family ties were, among the Sunnis, subsumed into the state as one relatively monolithic whole (Jabar 2000: 30), stoking antagonisms between Sunni and Shiite; the majority Shiites were excluded from the ruling classes. But tribalism truly rekindled when, after the disastrous Iran–Iraq War,
[d]eprived of revenues, the state withdrew from social services ... Especially in rural Shi'i areas, where state control is weakest, but also in rural Sunni areas, full-fledged tribalism emerged to fill the gaps left by the totalitarian regime (Jabar 2000: 31).As this retribalization took place the regime latched onto it, fostering alliances even with Shiite tribes (Jabar 2000: 31). However, because of Saddam's policies of population redistribution—attempts to Arabize much of Iraq—as well as the ever modernizing nature of the state, authentic tribes of old did not simply re-form. Instead, a new, more amorphous brand of tribal mentality was born largely out of paranoid necessity, the fruits of which Iraq is experiencing currently.
Adding to the tensions in and around Iraq is the recent history of refugee flight in the wake of the First Gulf War. After an attempted uprising encouraged by the US, Kurds and Shiites were forced to flee in large numbers due to the ‘Iraq regime's history of aggression, brutal repression of minority groups and political dissenters, and disregard for human life’ (Frelick 1992: 25). This flight and the regime's tactics contributing to it speak to a country where ethnic tensions have built up as a result of the practices of the ruling elite. But it also speaks to the fact that Iraqi refugees, including those leaving right up until the US invasion, had as their primary motivation the oppression of the state. And as we saw above, the absence of the Hussein regime presented the perceived opportunity immediately after the end of major combat operations for a return of many Iraqis. That this return was short lived due to certain failures on the part of the US will be examined below.
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JWT has always sought to limit the occurrence or negative effects of war. Likewise, the most vital long-term product of a just peace is that, if made correctly, it will lessen the likelihood of war in the future (Orend 2006: 161). For instance, just war theorists point to the unjust post-war policies of the First Gulf War as a direct cause of the 2003 invasion; the removal of Saddam being imperative, and the sanctions regime being improperly conducted in its attempt to lessen his hold over the country (Walzer 2004; Orend 2006). In the here and now, and especially with respect to a humanitarian intervention, the fundamental post-war principle in service of a lasting peace would seem to be securing the human rights of those victims necessitating war in the first place (Williams and Caldwell 2006: 317). In this way, ‘the core drive for dominance ... the basic cause of all unjust wars’ (Orend 2006: 34), is assuaged as much as possible. It was laudable that the US seemed to have learned the lesson of the Gulf War and determined that only a democratic, stable Iraq was a successful end. This is in line with more robust conceptions of jus post bellum such as those of Himes, who suggests that only the establishing of a civil society is adequate post-war justice (2004: 156, quoted in Bosanquet 2007: 5), which presupposes effective human rights maintenance. Thus, a JWT critique of US response to the Iraqi displacement is largely in the same vein as Walzer's grounding of JWT in human rights, but with the additional explicit acknowledgment by subsequent theorists such as Orend that this grounding is so because it is the best currently known way to lessen the likelihood of future war. The injury done to the human rights of displaced Iraqis is rather self evident, and though it is impossible to say with certainty that a future conflict will arise because of a forced displacement, it is clear from the above sections that the likelihood is increased. Likewise, now that responsibility for the crisis has been conferred upon the US we can use the criteria that follow to reason how the US failed to act morally, and might have in turn done things differently.
Obligations
The first criterion—that of rights vindication—follows directly ‘from jus ad bellum principles of just cause and right intention ... [and] requires a reversal of the aggression that prompted parties to resort to arms in self-defense or the defense of others’ (Bosanquet 2007: 11–12). This was accomplished with the overthrow of the Hussein regime. The second, publicity, or the notion that ‘authorities have a responsibility to broadly communicate the terms of peace’ (Bosanquet 2007: 12), though shifted at times, refers to the numerous pronouncements of the Bush administration in declaring the goal, at the very least, that Iraq be formed into an autonomous and stable democratic state. It will be shown below that US failure to live up to some public statements in regards to refugee assistance can be criticized based on this criterion. The third criterion, honourable intention, was severely imperilled by US action toward the forced displacement. It in many ways encompasses all jus post bellum criteria, as failure in any of the others may result in serious and valid doubts as to the true intentions of the war and its settlement. As Bosanquet writes, ‘[p]arties must willingly and resolutely pursue their stated post bellum objectives ...[which is] more than what some may argue are merely subjective attitudes; objectivity lies in proofs of action’ (2007: 12 italics added). Such ‘stated’ objectives, following Walzer in his collected essays on Obligations (1970), refer not merely to those publicly stated under the publicity criterion, but those implicit in international society's general norms on the duties of a humanitarian intervention (p. xi–xiii). Thus the following is largely a recounting of how the intentions of the US toward the Iraqi displaced, and subsequently in Iraq generally, can be called into question.
Besides being the largest monetary contributor to Iraqi refugee assistance, the US relied on Iraq's neighbours—mainly Syria and Jordan—to take in the majority of refugees, trumpeting their supposed altruism while at the same time desperately negotiating continued support as their goodwill waned (Sauerbrey 2007). Syria and Jordan were the only neighbouring countries which opened their borders, and this had its costs in the way of valid concerns for regional stability and the human rights of the Iraqi refugees.
Undeniably ... [the refugee's] presence, in addition to that of large numbers of Palestinian refugees, has seriously strained national infrastructures, economies and basic services, and, in some instances, raised national security concerns (Reira and Harper 2007: 10).Jordan was estimated to hold 750,000 Iraqi refugees alone in 2007—the equivalent of 40 million in the US (Reira and Harper 2007: 10). And, it is important to note that Iraq's neighbours are not a party to the 1951 Convention, and consider Iraqi refugees to be merely visitors (United Nations 2006: 18). The fundamental document on the handling of refugees, the UNHCR mandate under the 1951 Convention and 1967 Protocol relating to the Status of Refugees, has as one of its prime directives the concept of non-refoulement. The 144 signatory countries—of which the US is one—promise ‘not to forcibly expel or return refugees’ to dangerous situations (Wood 1994: 622). That neither major receiving state for Iraqi refugees was legally compelled to keep the refugees under their care presented the potential for unconstrained expulsion—not when conditions in Iraq made it possible, but when the burden became too great on Syria and Jordan. Without any asylum process, and especially after Iraqis bombed three hotels in Jordan in November 2005, killing 60, they began to place heavy restrictions on entrance. There is also some evidence that Iraqis were being turned away or expelled based on religious affiliations (Rosen 2007). Additionally, the imposition in 2007 of newly minted G series passports for entry into Syria or Jordan, which could only be issued in Baghdad, made timely acquisition virtually impossible without large bribes (Usher 2007). And many Iraqis overstayed their initial visas in Syria and Jordan, and were in constant fear of being thrown back into the storm. This not only violated the human rights of Iraqi refugees under international law, but contributed to renewed sectarian violence as refugees sought to return to ‘cleansed’ neighbourhoods, as well as an expansion of regional instability as refugees sought asylum further afield. Moreover, the first Iraqi refugees post-invasion were largely made up of the affluent and skilled classes; Jordan required that all those applying for entry deposit at least $100,000 in a Jordanian bank (Rosen 2007: 1). This influx of skill and capital no doubt contributed to Syria and Jordan's openness:
Solidarity with Iraqi refugees runs up against the competitive self-interests of states. The governments that are sheltering Iraqi refugees are extracting whatever political utility they can from their guests, mainly by using them as pawns in the game of Iraqi power (Rosen 2007: 6).The very purpose of international legal statutes on the protection of refugees is to prevent the possibility of such power plays at the cost of human well-being. But, despite the obvious fact that self-interest played a large role in how well, or how badly Syria and Jordan treated Iraqi refugees, this dependence on Iraq's neighbours was necessary for the US because of the relative lack of international support—many aid organizations scaled back their efforts along with the UN after the UN headquarters in Baghdad was bombed in August, 2003—and unwillingness to take in more refugees themselves.
This unwillingness was stated as due to security concerns. Homeland Security chief Michael Chertoff said in May 2007 that although the US planned to allow some 7,000 refugees resettlement within the calendar year, ‘we also must be mindful of the security risks associated with admitting refugees from war-torn countries—especially countries infiltrated by large numbers of terrorists’ (Associated Press 2007). These concerns were no doubt valid; more stringent immigration laws excluding Iraqis from US entry were put in place immediately after 9/11. But if, after developing enhanced screening methods in early 2007, it was possible to begin allowing a declared 7,000 Iraqis into the US, it seems logical to ask why this was not done sooner. Granted, those who were willing to take in large numbers of refugees had their hands full; asylum applications rose from 12,500 in 2005 to 22,000 in 2006, with Sweden far and above the most popular destination at 9,000 (Reira and Harper 2007: 10). UNHCR, in its precarious position of trying to advocate greater burden sharing without jeopardizing the funding that it receives from states such as the US, still made explicit calls encouraging Western states to ‘consider resettling vulnerable Iraqi refugees and stateless persons stranded in Jordan and Syria’ (Cochetel 2007: 21). They noted that this resettlement programme was vital for many Iraqis’ safety as well as a means of lifting the heavy burden from neighbouring states, and that it did not preclude repatriation at a later date. The very fact that another Western nation with no immediate duties to Iraq could so thoroughly outpace US efforts is quite telling of the possibilities for processing refugees safely. Even the US's publicly stated objectives were not met. Of the 7,000 Iraqi refugees proposed by UNHCR for resettlement in the US by 31 December 2007, only 1,600 gained entry by the target date (US Department of State 2007). Barbara Bodine, a US diplomat in the region who was brought in to be the temporary ‘mayor’ of Baghdad in 2003, voices suspicions raised by such lack of action: ‘When you affirm you have refugees and IDPs you are admitting that the average Iraqi has little or no expectation that [the US] can reverse a security situation that has spun utterly out of control’ (Rosen 2007: 10). Moreover, the political climate within the US, with growing opposition to the war at the very time that the refugee crisis was accelerating, may have been a primary concern of officials when considering changes in the post-9/11 ban on Iraqi asylum seekers.
Even more striking is the lack of care given to the group of Iraqis to whom the US most consistently pledged a duty of protection. Ellen Sauerbrey, Assistant Secretary of State for Population, Refugees and Migration, said that because the US takes ‘the responsibility of being a compassionate nation seriously’, it would certainly recognize a ‘moral debt’ to ‘those Iraqis who have provided assistance to the US military and embassy’ (quoted in Rosen 2007: 10). This too, though, was a failure. Even after a stated goal of taking in any and all such persons, the US did not allow asylum application from within Iraq even for those in this special category. Instead, they were expected to first flee across the border to Syria or Jordan. Though this was in line with international law definitions of refugee status—that one must leave one's country before being considered—the spirit of the US pledge toward these Iraqis did not square with such a condition, since the journey could be impossible economically or because of safety concerns. This situation was worsened when, for a time, Syria did not allow visas to US officials needed to process refugees. Additionally, the programme only acknowledged some 700 people at risk—embassy workers or interpreters—while almost 70,000 Iraqis affiliated with the US through reconstruction efforts faced the same degree of danger from insurgents or militias opposed to US occupation. Sauerbrey acknowledged in August 2007 that, ‘[i]t's an issue that is being looked at constantly’, but that despite successful past US programmes for extracting refugees from their own countries, such as Vietnam in the 1970s, the security complications of Iraq made it too difficult to process refugees at the US Embassy in Baghdad (Tavernise and Rohde 2007: 1). Thus, US intentions toward Iraqi displaced—displaced that they had a large hand in creating—were clearly not in line with the spirit of honourable intention, and continually violated the requirement of publicly stating and following through with those intentions.
The fourth criterion, protection, was as described throughout an outright failure immediately after the war. Protection ‘necessitates the immediate implementation of security measures’; ‘[l]egitimate authorities assume ... an obligation of protectorship and are morally bound to care for persons in their charge’ (Bosanquet 2007: 12). This is the most obvious failure when considering the cause of the displacement. But we can also say it is logical that this duty does not simply disappear if not properly undertaken for a period, and thus the most obvious action required was a re-establishing of proper security. The 2007 US ‘troop surge’ of some 40,000 soldiers concentrated in Baghdad went some way to stamp down violence, but it is clear that the immediate and sustained failure to establish adequate security after the war due to obviously inadequate US troop levels confers duties toward the displaced from that time period.
Those displaced from this time period had significant implications for the fifth criterion, rehabilitation. Rehabilitation was severely hindered by the ‘brain drain’ of those affluent Iraqis who were the first to leave when sectarian violence worsened. This dearth of capable technocrats, combined with the sectarian favouritism that plagued many ministries after Shiites dominated the early elections, meant that ministries important for Iraq's reconstruction were severely underdeveloped or dysfunctional. This presents a seeming paradox for our moral critique of US policy; those refugees who were vital to the reconstruction effort—doctors, lawyers, technocrats—might not only have been encouraged to leave in greater numbers if the US allowed them entry (as Mr Bolton feared), but might be less eager to return to Iraq if instead of Syria or Jordan they were offered the comforts of the US. Here, though, a concept at the heart of JWT is instructive. JWT's notion that war may be necessary involves not the glorification of war, but the choosing of a lesser of two evils: war, or the consequences of not going to war. Likewise, with respect to considerations of rehabilitation, the lesser of two evils was quite clear. The widespread and valid perception that US intentions in the Middle East were not as noble as claimed, as well as the further destabilization of Iraq and the region, posed long-term security risks for both the US and the international community. The regional effects of a refugee crisis have already been touched upon, and the loss of US moral standing in the world has wide-ranging consequences in a time of US hegemony. And by not allowing IDPs to apply for refugee asylum within the country the US encouraged a growing population of poor, desperate Iraqis that further contributed to entrenched sectarian tensions; UNHCR and other organizations concluded that the overwhelming trend for IDPs was movement toward more ethnically homogeneous regions. As IDPs became more desperate, they were more likely to turn to the larger, more radical, and better equipped sectarian groups such as the Shiite Mahdi Army or the Sunni Omar Brigades for protection, adding to the power of these groups (al-Khalidi and Tanner 2007: 8). This deepening entrenchment was reflected by the fact that, though violence abated somewhat during the ‘surge’, meaningful reconciliation between sectarian groups has still not occurred at the time of this writing (CBS/AP 2008). Regardless of the complications presented by strict legal definitions of a refugee, it seems morally imperative that the US should have allowed for asylum application within Iraq, at least for IDPs in the most violent regions. Logically, this would have allowed for a more just adherence to the protection criterion, as not only would the safety of the most desperate IDPs have been better preserved despite the inadequate troop numbers, but the influence of the most radical sectarian groups would probably have been lessened. Per the criterion of rehabilitation, it would seem to be in the US interest, as well as a moral obligation, to find more efficient means of processing refugees from Iraq—at the very least for those who worked with the US in the occupation or reconstruction effort.
The final two criteria, justice and restoration, can largely be subsumed within the previous discussion. Justice, which classically refers to war crimes tribunals and the like, for the displaced is largely implicit in the discussion of honourable intention; justice toward the displaced would seem to be both adherence to international law and the US's stated intentions, as well as those implicit duties which would have contributed to both protection and rehabilitation. Restoration, which is the final objective of a stable, democratic and self-sufficient state, can only be vaguely, though still validly extrapolated out from the previous discussions on the consequences of a forced displacement on internal and regional stability. In the broadest sense we can see how failures toward the displacement, both in its creation and management, have made it more difficult to restore Iraq to a place within international society, to a better condition than that which necessitated the invasion.
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The unconvincing fashion in which jus ad bellum criteria were met, and the massive and widely recognized failures of jus post bellum security duties trace a specific causal link between the US choice of war and the Iraqi displacement, conferring duties upon the US with respect to Iraq's displaced pursuant to jus post bellum criteria. These duties are all the more crucial when considering the likely effects that a massive forced displacement can have on Iraq and the region. Failures by the US toward the Iraqi displacement exposed and contributed to failures of the jus post bellum criteria of protection and rehabilitation. And the response to these failures did immense damage to the criterion of honourable intention, as it is impossible to square the humanitarian intentions publicized before and after the war with the seemingly wilful disregard of the Iraqi displaced.
The implications of this paper are no doubt controversial to those scholars and officials who may view the inclusion of displacement concerns within JWT and the duties of a just force as a slippery slope which eventually makes a just war nearly impossible. For, JWT demands that if one is not able to prepare for the consequences of an intervention, the intervention should not be undertaken in the first place. This, some may fear, would mean that for an intervention in which a massive displacement is a likely possibility, the intervening force would have to, in the ad bellum phase, publicize and adequately prepare to shoulder whatever burden the international community is unwilling to take on. And indeed, this burden may be too great for any state to bear, making many necessary interventions nearly impossible to carry out morally.
I would contend, though, that this conclusion is disconnected from an honest grappling with the narrative whole of the US-led preventive war against Iraq. The inclusion of all displacement burdens that the international community is unwilling to bear within US just war duties is uniquely applicable to this particular war—one of choice, and one planned and carried out incompetently. It is not so much that the US could not have possibly prepared for the responsibilities of war, both during and after, but that foreseeable contingencies were not considered, or realities were continually ignored. Thus, in such a situation, instead of a complete proscription on interventions in which a large displacement may occur, it is important to consider that JWT with the addition of a robust jus post bellum ‘begins with the claim that there is an intimate relationship between the scale of the just cause and the intervention's source of authority’ (Bellamy 2006: 214).
It is clear that displacements often fall into the category of a ‘hardship of war’, especially in cases of classic self defence or interventions done justly. In those cases the international community, recognizing that a war was one of last resort and utmost necessity—and especially if the war followed just means criteria as well—will and should undertake the bulk of responsibilities toward any ensuing displacements. The over-arching lesson of the above discussion is a study of the high threshold of justice and the immense duties that threshold implies if a nation is to choose a virtually unilateral preventive war of humanitarian intentions. Just war scholars already recognize the heightened difficulties of maintaining justness in a humanitarian or any other kind of military intervention. They are usually willing to include humanitarian interventions within the categories of a just war, but only with special caveats—such as ongoing grave atrocities in the ad bellum period, and duties such as rehabilitation in the post bellum period. And as we have seen, these moral duties coincide remarkably with the instrumental realities of lessening the possibilities of war in the future. Unfortunately for the US, as USAID's former Regional Coordinator for Reconstruction in Fallujah concludes in reference to the displacement response, it seems, ‘[w]e can't recognize a moral imperative anymore’ (Cohen 2007).
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Footnotes |
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1. ‘Most international lawyers and states discounted the claim that the war was legal because it had been authorized by the Security Council.’ None of the UN resolutions cited by the US or Britain implied that force could be used; ‘the Council has never authorized the use of force to implement Resolution 687 [calling for Iraqi disarmament] ... [and most tellingly, in] September and November 2002, the USA and UK proposed a resolution that endorsed the use of force if Iraq continued to be in material breach of its obligations, but failed to persuade most other Council members to support it’ (Bellamy 2004a: 134–335).
2. In a World Public Opinion poll in January 2006, 80 per cent of Iraqis believed that the US planned to have permanent military bases in Iraq even after the country was stabilized (World Public Opinion 2006).
3. Shami aptly notes that, ‘[a] regional approach, in the sense of investigating specific cases historically within a defined geographical region, helps to identify long-term tendencies and repercussions of displacement and resettlement without submerging the specificities of various cases’ (1993: 15).
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