INTRODUCTION

Justice Robert Jackson as Chief Prosecutor for the Nuremberg Tribunal presumably did not foresee the troublesome standard he set when he wrote with regard to the war of aggression that “we are not prepared to lay down a rule of criminal conduct against others which we would be unwilling to have invoked against us.” He could not have known that more than a half-century later former Nuremberg prosecutor Benjamin Ferencz would invoke this logic when he declared the American invasion of Iraq to be a war of aggression – what Jackson also called the “supreme international crime.” Yet few expect the prosecution of such a charge against military or political leaders of the United States or the country itself.

Jonathan Bush observes that public attention is typically concentrated more narrowly on atrocities of war. A reliance on dry legal documents such as formal treaties is a barrier to successfully charging leaders or nations for committing wars of aggression and to investigating and collecting evidence of the atrocities involved. David Scheffer makes a similar point with regard to charges of genocide. He argues for applying the alternative concept of atrocity crime during the preliminary stages of building a case for charging genocide. Scheffer's goal is to get investigations started that can later lead to the filing of charges and obtaining convictions.

This seems also to have been the logic of a famous American criminologist, Sheldon Glueck, who played an important role in plans for and debates about charging the Nazi leadership at Nuremberg with waging a war of aggression. Bush writes that “Glueck is widely deemed one of the first and most significant American voices on the war crimes debate.” Justice Jackson observed of Glueck that “his original plan is substantially the system pursued throughout the Nuremberg trial.”

Bush notes that Jackson's “flattery” was primarily intended to help promote a book by his former subordinate.8 Glueck had been a helpful ally in Justice Jackson's work at Nuremberg, although in an ambivalent way. Before working with Jackson in planning the trials, in 1944 Glueck had written against war of aggression charges for the Nazi leadership.9 However, the following year brought a dramatic change.

A CONTENTIOUS CENTURY

Modern Iraq was created by foreign powers following World War I, when Britain unified three administrative regions of the former Ottoman Empire – Mosul province (northern Iraq), Baghdad province (central Iraq), and Basra province (southern Iraq) – under the control of a king. The British mandate ended in 1932, but the country continued to be ruled by the same royal family until they were overthrown in 1958 with the establishment of the Republic of Iraq. Fast forward a half century and the Islamic State in 2014 staged a symbolic renunciation of the British-drawn border between Syria and Iraq. This border was marked with an earthen berm that the soldiers of the previously named ISIS (or ISIL) bulldozed. They then tweeted a photograph of their victorious fighters dancing and waving flags in celebration of their ambitions to create a new caliphate. Saddam Hussein would have been enraged.

The Iraqi people lived under the authoritarian rule of the Ba'ath Party and Saddam Hussein for more than three decades. The Ba'ath Party first seized control of Iraq with its pan-Arabist ideology in 1963. It then briefly lost and later retook control in 1968. Saddam assumed complete control of Iraq and the Ba'ath Party in 1979, resulting in nearly a quarter century of his violent nationalist autocratic rule. His criminal militarism consumed massive amounts of national resources fighting domestic insurgencies, real and imagined, mostly arising from perceived threats connected to ethnic-religious identities and Iraq's complicated history.

The population of Iraq is strikingly diverse, with many groups tracing their history back hundreds if not thousands of years, long before Britain and France drew its post–World War I borders (Batatu 1978). Iraq's underlying group identities and social structures were historically grounded in differences of religious practice, such as the split between Sunni and Shia adherents of Islam. Added to this were a multitude of other groups, including the Yazidis, Sabean Mandeans, Jews, Shabak Shia, and a variety of Christian groups, including Assyrians, Chaldeans, Syriacs, Armenians, Catholics, and Protestants (Davis 2005).

THE END OF AN INTERLUDE

A 2012 wave of protests and government crackdowns concentrated in Sunni areas of central and northern Iraq signaled the end of a peaceful period and the outbreak of new hostilities between the Shia-dominated government of Nouri al-Maliki and a Sunni insurgency that had challenged the U.S./coalition forces from 2003 through 2008. The December 2012 protests flared in Dignity Square of Fallujah after a raid on the home and the arrest of a popular Sunni federal finance minister, Rafi al-Issawi. The protests spread rapidly across the Sunni heartland.

In April 2013, the Iraqi Army stormed a protest camp in Hawija, killing 50 people and injuring 110. In December 2013, the Iraqi Army and Police in Ramadi killed more than a dozen among hundreds of protestors against government violence. The Ramadi protest had been ongoing for a year and leaders of major Sunni tribal groups – the Jumaila, Dulaim, and Mahamda – were centrally involved. Al-Maliki alleged al-Qaeda terrorists were responsible, but tribal leaders were in charge and challenged al-Maliki by calling for his resignation. The brutal assault by the army and the police included scores of Humvees, pickup trucks, and armored vehicles. Subsequent insurgent and counterinsurgent violence escalated to the highest levels since 2008.

The renewed conflict was evidence of a resilient Arab Sunni insurgency with its roots in the U.S. invasion and occupation. Although many insurgents previously had joined the Sunni Awakening movement, Cordesman and Khazai (2014:233) now reported, some factions had realigned with al-Qaeda in Iraq while others had reestablished themselves as independent Sunni militias with few ties or loyalty to the Shia-dominated central government.

By 2013, the war in Syria had raised the stakes and complexity of the situation (Alani 2014). Long-standing cross-border ties between groups of Syrian and Iraqi Sunnis took on increased significance. Arab Sunnis in both countries were linked in their opposition to their respective Shia-dominated governments led by al-Assad and al-Maliki, with their overt and covert ties to Iran.

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. 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 is too broad for purposes of criminal prosecutions or social scientific research, and there is no cumulative case law to clarify the definition of aggressive war.

The unformed nature of today's law of aggressive war is similar in some ways to the laws about unethical business practices encountered in the 1950s by Edwin Sutherland, the famous American criminologist who coined the term “white collar crime” that today still frames much discourse about financial illegality.

SECTARIAN SEPARATION

After enduring years of increasing violence and domestic insurgency following the 2003 U.S. invasion and continuing into 2007, Iraq entered a period of relative peace and security. How this happened is not clear. Many military leaders, media pundits, and elected politicians have argued that a 2007 surge in U.S. forces and/or a Sunni Awakening movement led to a tentative period of peace in Iraq. Others have suggested that a partition of Iraq's sectarian groups alone could have delivered this result. Although there has been no official partition of the Sunni, Shia, and Kurdish groups in Iraq, we show and explain in this chapter how Iraq's sectarian groups moved into an unstable “separate peace” that more recently has been followed by renewed violence.

We take the surge and partition arguments into account in this chapter. However, unlike David Petraeus (2013), who before the advances of the Islamic State of Iraq and Syria (ISIS) claimed that the surge is “how we won in Iraq,” we argue that unnecessary attacks on civilians reported by Arab Sunni civilians during the surge were actually a source of heightened perceptions of injustice and illegitimacy that are central to a theory of legal cynicism. Our further focus in this chapter is on using an endogenous conflict approach to supplement the theory of legal cynicism in explaining how an interim period of relative peace emerged and advantaged the Shia.

While journalists and soldiers continue to write a great deal about Iraq (e.g., Gordon and Trainor 2012), these accounts are highly anecdotal and view the Iraq conflict largely through an American lens that is framed by this nation's political debates about the Middle East. These debates reached a peak in 2006 over the decision to surge additional American troops or to partition Iraq's conflicting sectarian groups. There is relatively little social scientific work that locates these debates in relation to broader theoretical frameworks or that is based on nationally representative data collection that can illuminate how Iraqis have viewed the conflict around them, much less competing claims about this conflict.

MIXED SIGNS

The U.S. invasion and occupation of Iraq began with its March 19, 2003 cruise missile and bunker-busting bomb attack on the group of homes and a restaurant near Baghdad where U.S. military intelligence mistakenly thought Saddam was meeting his sons. Exactly five months later, based on its own more accurate intelligence, al-Qaeda in Iraq undertook a more consequetial attack. A flatbed truck packed with 1,000 pounds of explosives sped up an unguarded back road adjoining the UN headquarters and office of its chief envoy, Sergio Vieira de Mello.

De Mello was conducting a meeting with International Monetary Fund officials about the humanitarian costs of the war. Earlier he had helped draft a memo criticizing the coalition's recent shootings of civilians, a key problem that continued throughout the war and that is the focal point of the last chapters of this book. Samantha Power reports that de Mello's last words – “oh, shit” – were uttered “seemingly more in resignation than surprise,” a split second after the explosion and the collapse of the building around him. De Mello bled to death under the rubble, one of twenty-one civilians killed in the blast (2008 :4).

That same month, an important cleric and political figure, Ayatollah Baqir al-Hakim, was also killed by a massive bombing in Najaf. Within a year in this same center of religious leadership, U.S.-led forces would stage a brutal battle with Shia cleric Muqtada al-Sadr. This standoff, discussed in Chapter 4, would burnish al-Sadr's reputation as the head of the largest mass movement challenging the occupation. Violence was clearly rising. These increasingly violent attacks and counterattacks were turning points in a path-dependent process whose significance would become steadily more apparent in the months leading up to the end of the first year of the American presence in Iraq.