What next in Iraq?

Though the psychological impact of their death on the larger Iraqi people is yet impossible to predict despite western reports of singing crowds in Iraq and elsewhere over the news of their demise, it will most certainly deliver a death blow to the loyalists fighting a guerilla campaign against the occupation forces. Bernard Trainor, a military analyst described the disappearance of the Hussein brothers "a tremendous blow to the Bathist regime -- a real boon for those Iraqis seeking to pursue a Saddam-free future, cooperating with the US". Con Coughlin, an authority on Iraq, felt that it would reinforce the message to the Iraqi people that Americans and its coalition allies are very, very serious about getting rid of Saddam Hussein and that he cannot stage a comeback. It is possible that the death of Hussein brothers could set off an immediate set of retribution attacks; but their loss will be sorely felt by elements of deposed Bathist regime coordinating and financing the sophisticated guerilla attacks from the so-called Sunni Triangle north of Baghdad containing the birth place of Saddam Hussein.

New York Times in an editorial/op-ed (July 23rd) wrote that few Iraqis would mourn the deaths of Saddam Hussein's sons, mercurial, cruel killers who terrorised and plundered their country so they could live in imperial style. The editorial added that Hussein brothers were essential pillars of the Bathist dictatorship. "Though not as powerful as their father they were equals in brutality, well practiced in crime against their people".

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A White House statement (22nd July) expressed pleasure over the "action against Oday and Qusay Hussein". Blaming them for countless atrocities committed against the Iraqi people over the period of many years the statement expressed the assurances to the Iraqi people that the Hussein brothers would no longer cast shadow of hate on Iraq and that the Iraqi people would now be able to march towards progress and prosperity. A day later President Bush hailed the deaths of the Hussein brothers as the clearest sign yet that "the former regime is gone and will not be coming back". He called them " two of the regime's chief henchmen ... responsible for torture, maiming and murder of countless Iraqis". Secretary of State Colin Powell also expressed his pleasure " that these two brutal members of their murderous regime are no longer a threat" and promised to "pursue other members of the murderous regime wherever they may be hiding". British Prime Minister Tony Blair bedeviled with allegation of "sexing up" intelligence report on Saddam Hussein's capability of attacking the west under one hour and the recent mysterious death of BBC "deep throat" Dr. David Kelly, in a doorstep interview at Hong Kong described the deaths as "great news" and "a great day for new Iraq". He added that Hussein brothers were at the head of a regime which "wasn't just a security threat because of its weapons programme but was responsible for the torture and killing of thousands and thousands of innocent Iraqis. And the celebrations that are taking place are an indication of how evil they were."

While Anglo-US self-congratulatory reactions were predictable the silence on the large part of the international community, particularly of the Muslim world, is deafening. This silence is not reflective of any support for the long discredited regime of Saddam Hussein or his sons but of the discomfort over the issue of intervention in Iraq without UN consent. Practitioners of Realist Theory may urge by-gones to be by-gones and that the world must move on in the face of Anglo-US fait acompli in Iraq as many western allies of the US after initial refusal to accept American diktat have now reconciled themselves to work hand in glove with the people from Mars( to borrow Robert Kagan's description of the unparalleled American might). The developing world free from carrying the "white man's burden" of civilizing the uncivilized have quietly disagreed with the western culpability statement regarding Saddam Hussein's capability of waging a WMD war in less than one hour and his alleged links with Al-Qaida terrorists.

Paul Krugman wrote in New York Times( Who is unpatriotic now -- July 22nd) that in October last year some US intelligence officials charged the Bush administration with squelching "dissenting views and that intelligence analysts are under intense pressure to produce reports supporting the White House's argument that Saddam poses such an immediate threat that preemptive military action is necessary". One official accused the administration of "cooking the intelligence books". Paul Krugman argued that issues of principles aside, the invasion of a country that had not attacked the US and did not pose an imminent threat had seriously weakened American military position. Of the army's thirty-three combat brigades sixteen are in Iraq leaving the US ill prepared to cope with genuine threats. This perhaps explains Defence Secretary Donald Rumsfield's yet embryonic idea of raising an international cadre of peace keepers, led and trained by the US, and sent to volatile areas to face bullets of adversaries. These state sponsored or private mercenaries are expected to owe allegiance to and paid by the USA avoiding the vexing interference of the wise men sitting around the table in the UNSC.

An incident similar to that of Dr. David Kelly happened in the US though mercifully not as fatal. Joseph Wilson, a former ambassador to Niger, was sent by the CIA to investigate reports of attempted Iraqi uranium purchase which ultimately proved to be false. Apparently unhappy over Ambassador Wilson's negative report it was divulged that he was chosen because of his wife's connection who was a CIA operative. Paul Krugman alleged that exposing Mrs. Wilson's identity as a covert operative was a criminal offence and was reflective of Bush administration's obsessive desire to continue pressurising intelligence analysts to submit to its will.

Lt. Gen Ricardo Sanchez defended the decision to kill Saddam's sons as retaliatory to attacks by them on US troops trying to enter their hideout building. Since the troops' mission was to find, kill or capture and the "enemy was barricaded we had to take measures to neutralise the target". It is not understood to a non-military mind as to why the barricaded house could not be surrounded till the "enemy" had run out of ammunition, food and water forcing them either to commit suicide (sinful in Islam) or to surrender. Equally the question which readily arises in the minds of the people is about the status of the Hussein brothers. Were they combatants, insurgents or fugitive from justice? Since Iraq war was officially declared to be over by President Bush they could have been lawful combatants which they were as part of command and control structure during the war and therefore fair game to be taken out by the American forces. But after the war their status as lawful combatants ended. Under the Third Geneva Convention if status was in doubt of a detainee (which they were not) then the detainee is to be regarded as POW with all facilities to be accorded till such time a "competent tribunal" determines otherwise. (It may be noted that there was an international uproar over inhuman treatment by the US authorities to detainees in Guantanamo base). If the attack on the Hussein brothers was an act of revenge or retaliation then it may be pointed out that "retaliation" and "revenge" have no legitimacy in international law. "Lawful reprisal" is condoned in international law when reprisal is taken as a last resort in self defence and is executed with the objective of ensuring future compliance with legal norms.

Australian jurist Steven Ratner stresses "The violation of international humanitarian law by one side in an armed conflict does not justify its violation by the other". According to US officials the owner of the house informed the US authorities about the location where the Hussein brothers were hiding which was stormed resulting in their death. The fundamental rule in the laws of war provides immunity to civilians and civilian buildings from military attacks so that proportionality is maintained to minimise "collateral damage". One hopes in this case the attacking forces took adequate measures to avoid "collateral damage". Public domain lacks knowledge on formation of an Iraqi or international tribunal to try members of Saddam regime of crimes against humanity or of any formal charge sheet against them. In such a case it is difficult to establish the status of Hussein brothers as fugitive from justice. Since the very legality of the Anglo-US intervention in Iraq is yet to be resolved to the satisfaction of the international community it is again difficult to establish whether asymmetric war against the occupation forces can be termed as "insurgency". Can one be an insurgent in one's own country trying to oust an invader whose presence is forced in the first instance and the forceful entry not sanctioned by the UNSC?

As Gregory Treverton of the RAND organisation and a former official of the Clinton administration puts it, Bush doctrine focused on terrorism and WMD is anticipatory, preemptive and unilateral, bedeviled at its core by 'legitimacy and critical capability' of US intelligence. Doctrine of preemption was clearly defined in the 2002 National Security Strategy. The intent to use unilateral force was repeatedly declared by President Bush and officials of his administration. What remained unclear was the specific set of deployments or threats that would constitute grounds for "anticipatory self-defence" under international law. Besides, in the case of Iraq President Bush argued that possession of WMD would constitute a threat to international peace while its possession by France, for example, would not. Basically, therefore, the argument hinged on the nature of the Iraqi regime and its internal and external behaviour. President Bush's repeated claim that (a) Iraq is a big country, (b) Saddam Hussein had plenty of time to hide WMD, and, (c) these will eventually turn up, is sounding hollow with the passage of time. However, recent polls suggest that Americans remain unconcerned about the need to justify the war through the discovery of WMD.

In conclusion, the international community had, perhaps, anticipated that Saddam Hussein, his sons and others would be tried as Milosevic is being tried at The Hague Tribunal. And, it would have been happy if the detainees at Guantanamo base were not branded as "unlawful combatants" which is not covered by the Geneva Convention (the term unlawful combatants was described by French jurist Oliver Audeoud as an illegal terminology); if the US were to meticulously observe its obligations as an occupying power in Iraq; if the US were to desist from trying to establish a linkage between Saudi Arabia and the Al-Qaida which would hurt the sentiments of millions of Muslims the world over; if the US were not to repeatedly threaten Iran and Syria for their infraction of the western dictated code of conduct etc. Saddam regime or his sons who did not do us proud does not deserve any support or sympathy but the post-war institutions do. If the foundation of these constructs were to become weak the humanity may in time have to face regimes like Nazi Germany, Fascist Italy or Stalinist Russia heralding the end of civilization as we know it.

Kazi Anwarul Masud is a former Secretary and Ambassador