Iraq and the Crimes of Aggressive War

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1 Iraq and the Crimes of Aggressive War From the torture of detainees at Abu Ghraib to unnecessary military attacks on civilians, this book is an account of the violations of international criminal law committed during the U.S. invasion and occupation of Iraq. Taking stock of the entire war, it uniquely documents the overestimation of the successes and underestimation of the failings of the Surge and Awakening policies. The authors show how an initial cynical framing of the American war led to the creation of a new Shia-dominated Iraq state, which in turn provoked powerful feelings of legal cynicism among Iraqis, especially the Sunni. The predictable result was a resilient Sunni insurgency that reemerged in the violent aftermath of the 2011 withdrawal. Examining more than a decade of evidence, this book makes a powerful case that the American war in Iraq constituted a criminal war of aggression. John Hagan is the John D. MacArthur Professor of Sociology and Law at Northwestern University and codirector of the Center on Law and Globalization at the American Bar Foundation. His previous Cambridge University Press books are Mean Streets: Youth Crime and Homelessness (with Bill McCarthy) and Darfur and the Crime of Genocide (with Wenona Rymond-Richmond). Hagan is an elected member of the American Academy of Arts and Sciences and the Royal Society of Canada. Joshua Kaiser is a Law and Social Science Fellow at the American Bar Foundation and a JD-PhD candidate in law and sociology at Northwestern University. His research focuses on the sociology and criminology of state control and state violence, both in the United States and internationally. Anna Hanson is currently a doctoral candidate in the sociology department at Northwestern University. Her research focuses on issues of terrorism and human rights.

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3 Cambridge Studies in Law and Society Cambridge Studies in Law and Society aims to publish the best scholarly work on legal discourse and practice in its social and institutional contexts, combining theoretical insights and empirical research. The fields that it covers are: studies of law in action; the sociology of law; the anthropology of law; cultural studies of law, including the role of legal discourses in social formations; law and economics; law and politics; and studies of governance. The books consider all forms of legal discourse across societies, rather than being limited to lawyers discourses alone. The series editors come from a range of disciplines: academic law, sociolegal studies, sociology, and anthropology. All have been actively involved in teaching and writing about law in context. Series Editors Chris Arup, Monash University, Victoria Sally Engle Merry, New York University Susan Silbey, Massachusetts Institute of Technology A list of books in the series can be found at the back of this book.

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5 Iraq and the Crimes of Aggressive War The Legal Cynicism of Criminal Militarism JOHN HAGAN Northwestern University American Bar Foundation JOSHUA KAISER Northwestern University American Bar Foundation ANNA HANSON Northwestern University

6 32 Avenue of the Americas, New York, NY , USA Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. Information on this title: / John Hagan, Joshua Kaiser, and Anna Hanson 2015 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2015 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Hagan, John, 1946 Iraq and the crimes of aggressive war : the legal cynicism of criminal militarism / John Hagan, Joshua Kaiser, Anna Hanson. pages cm. (Cambridge studies in law and society) Includes bibliographical references and index. ISBN (hardback) ISBN (paperback) 1. Iraq War, Atrocities. 2. Iraq War, Moral and ethical aspects. 3. War crimes Iraq. I. Kaiser, Joshua, 1985 II. Hanson, Anna, 1985 III. Title. DS A87H dc ISBN Hardback ISBN Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

7 To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. Judgment of the International Military Tribunal at Nuremberg, 1946 We are not prepared to lay down a rule of criminal conduct against others which we would be unwilling to have invoked against us. Justice Robert Jackson, Chief Prosecutor for the International Military Tribunal at Nuremberg, 1945 I see mostly normal men, trying to do good, beaten down by horror, by their inability to quell their own rages, by their masculine posturing and their so-called hardness, their desire to be tougher, and therefore crueler, than their circumstance. Phil Klay, Iraq War Veteran and Author of Redeployment, 2014

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9 Contents Prologue page 1 1 The Reign of Terror 17 2 A Shadow of Hope 42 3 Judging Torture in Iraq 64 4 Night Falls on Baghdad 96 5 The Separate Peace of the Shia Legal Cynicism and Sunni Militancy 161 Epilogue 192 Appendix 207 Notes 229 Bibliography 235 Index 247 ix

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