Friday, March 02, 2007

International Law and Iraq

First Principles: Thoughts on jus ad bellum

In a previous column, I posed the question as to whether Bush's continuing and increasingly unstable occupation of Iraq is legal in a Constitutional sense, based upon the terms of the Joint Resolution of Congress of October 12 2002. Here's another, more important question:

Was Bush's invasion of Iraq legal under international law?

There are two aspects of international law dealing with the law of force: jus ad bellum, or the rules relating to the use of force, and jus in bello, or the rules regulating the conduct of hostilities. The latter, jus in bello, pertains to the custody of prisoners-of-war (POW's), collateral destruction, etc.

My purpose to address jus ad bellum as it applies to Bush's un-provoked, unnecessary, largely unilateral invasion and unplanned occupation of Iraq (UULUIUOI). This goes to the heart of my primary complaint against George W. Bush.

A Condensed Historical Review of jus ad bellum:

The Kellogg-Briand Pact of 1928 (a.k.a. the Pact of Paris), was signed by the United States of America in 1929 and ultimately by 62 nations. Its language
condemns recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.
With American ratification, of course, Kellog-Briand became part of U.S. federal law. It’s a treaty and, by remaining in effect it becomes, according to Article VI of our Constitution, American law:
... all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Readers will recall that the Nuremberg Charter was established to provide a standard for the trial and punishment of the major war criminals of the European Axis. Under Section II, Article 6, the Charter delineated three areas of war crimes under the jurisdiction of the Nuremberg Tribunal. It is generally considered instructive that the first of these, dealing with jus ad bellum, was the most important:
(a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) War Crimes:[ill treatment of civilians or prisoners of war, plunder, wanton and capricious destruction and devastation] not justified by military necessity;

(c) Crimes Against Humanity: [genocide]
Under the UN Charter (June 26, 1945), there are only two circumstances in which the use of force is permissible:
  1. Article 51: in collective or individual self-defense against an actual or imminent armed attack;
  2. Article 42: and when the Security Council has directed or authorized use of force to maintain or restore international peace and security.
In the case of the Anglo-American invasion of Iraq: Neither of those circumstances existed. Absent one of them, Bush's use of force against Iraq was unlawful.

The Security Council had warned Iraq in Resolution 1441
there would be "consequences" if Saddam did not comply with its demands. But it should have been up to the Council to determine what those consequences would be. The fact that the U.S. and U.K. pursued (but ultimately abandoned) a second Security Council resolution authorizing force, implies Anglo-American recognition of their need for it.

A memo of a two-hour meeting between Bush and Blair at the White House on January 31 2003 - almost two months before the invasion - reveals that Bush made it clear the US intended to invade whether or not there was a second UN resolution. Bush cynically told Blair that the diplomatic strategy at the U.N. had to be arranged around the military planning.

Thus, it was Bush and Blair who reintroduced the world to the habitual practice that so typified the first half of the 20th century: the unilateral use of force. Italy's conquest against Ethiopia, Germany's seizure of Anschluss, the Sudetenland and Poland, the Japanese invasion of Manchuria and ultimate attack on Pearl Harbor (not to mention Saddam Hussein's impulsive attacks on Iran and Kuwait), were but the most egregious examples. Surely, not since the hey-day of the fascist regimes of the previous century, has a government of any major power so openly embraced war as an instrument of state policy as the Bush administration.

Germany and Italy walked out of the League of Nations because they would not accept the subordination of their foreign policy objectives to any binding system of international law. George Bush walked all over the face of the United Nations. The significance of his action was not lost upon the Wall Street Journal,
cheerleading three days before Bush's invasion:
When the current lesson is digested, no President of the United States will ever again look for legitimacy to the likes of the UN or the League.
George Bush has turned FDR on his head: 20 March 2003 is a new 'date which will live in infamy'.

21 Moderated Comments:

Blogger LittleBill said...

I am really impressed with the depth and meaningful detail of your blog, Vigilante.

3/02/2007 03:42:00 PM  
Blogger Messenger said...

Yes, this editorial of yours is especially well-founded. There is a current impatience to deal with the pending situation in Iraq, going forward, and to forget the original crime (sin) which has brought us to this point. That's what Tony Snow would want us to think dismissively of as 'old news'.

Credit is due to Geoffrey Wheatcroft of the
The Guardian who is unapologetic about discussing the Downing Street Memo in 2007:

When I write about this now I feel like a pub bore. "Have I said this before? Or maybe you knew that already." But of course I've said it, as many others have, and of course you know. We know that we were taken into a needless, foolish, illegal, immoral and ultimately catastrophic war.

The international war criminals who took us to war are still in power and asking for our continued support. As they are still in denial, they should be denied.

3/03/2007 09:40:00 AM  
Blogger Beach Bum said...

Delving into the realm of alternate history is a dangerous thing. But I'm hard pressed to see how Bush could have convinced the Democrats in congress or the American public of the need to attack Iraq without the almost state of panic the country was living in after the 9/11 attacks. Bush/Cheney's creation of a connection between Saddam's mythical WMD's and al-Qaeda massaged a fear that allowed them to run amok in a region that people light years smarter than them take very delicate steps in to avoid creating anymore trouble than already exists.
Vigil, your connecting Bush/Blair/Cheney to the actions of Germany and Italy in the 30's and 40's is a masterstroke. Unleashing the prevent war justification could one day blowup in our faces years down the road. The US has two proto-superpowers, China and India, already competing for scarce resources and as things get tighter with their economic growth whose to say one day they don't trump up some justification to slap us down in some fashion? They don't have to conquer us, no we are to good a customer for their stuff and services, they just have to knock us out militarily. Which would allow them to establish their "New World Order".

3/03/2007 06:18:00 PM  
Blogger Non-Partisàn said...

Bush and Cheney have meddled with the primal principles of international relations, and they shall atone!

3/03/2007 09:47:00 PM  
Anonymous Anonymous said...

Who gave the United States the legal or moral right to interfere in the internal affairs of any other sovereign country? Our foreign policy hawks just invented that right. At the same time, they don't want any other country to meddle in the affairs of a third country. We must develop a new containment policy with regional alliances and stop invading other countries. Besides being wrong, it just doesn't work.

3/04/2007 08:02:00 AM  
Blogger E said...

Damn, you're good!
Wow. You're schoolin' us, Vigilante!

3/04/2007 07:16:00 PM  
Anonymous Anonymous said...

Might is right, and this is an unescapeable fact of life. Contrary to the unachievable moral and behaviour codes, there is nothing wrong, according to the rules of the reality, that America is excercising her might to her full advantage. It has been done by the super powers before, and this trend will continue to the unforseable future. What is "wrong", however, is, that America is scaresly doing it to her advantage. It remains to be seen, how many more kicks on the can the U.S. has left?

3/04/2007 11:20:00 PM  
Blogger Vigilante said...

Only with the encouragement of E, would I attempt to school Pekka; and, only then with words from the les anciens, by which I mean the heroic leaders of The Cold War of the previous century (Which we won, BTW).

At the beginning of that epic struggle in 1950, Harry S. Truman argued against A-bombing Soviet Russia before they got the bomb, stating that such actions were not consistent with our American tradition:

Preventive war is the weapon of dictators, not free societies like the United States. . . You don't 'prevent' anything by war...except peace.

Later, when President Dwight Eisenhower had to debate those who wanted to prevent the Chinese Communists from becoming a nuclear power, Ike said,

Preventive war is the weapon of dictators, not free societies like the United States . . . When people speak to you about a preventive war, you tell them to go and fight it. After my experience, I have come to hate war.

One decade later, during the Cuban Missile Crisis, Robert Kennedy dismissed proponents of preemptively striking the Communists with similar words saying that a proposed surprise first strike against Cuba would be a

Pearl Harbor in reverse. . . For 175 years we have not been that kind of country.

That view prevailed in the mind of his brother, John F. Kennedy. A middle ground was found and peace was preserved.

Here are words of wisdom, speaking across centuries to us, Pekka. Peace is not a natural state. It is only natural in the sense of being an (almost!) universal aspiration. It has to be worked at, constantly and intelligently by the over-powering as well as the over-powered.

I am confident of winning some grudging agreement from you.

3/05/2007 07:07:00 AM  
Anonymous Anonymous said...

Vigil, there is nothing in your comment that I don't agree. Nevertheless, I enjoyed trmendously reading those quotations by some of the great Americans.

Actually, I feel, that we are on the same page with the issue and problem arises by me when I start translating from Finnish to English. Ask Bill Murray, something can be lost in translation!

My basic argument is, that every nation is there, or at least should be, to advance her own intrests. Naturally, the more powerful the nation, the more it has leverage. To excercise this power right, even if it is selfish, is the key here. To blindly lash out with the hightened sense of superiority can sometimes, but not often, bring short term benefits. There has never been an empire yet that has been able to both spread wide and far and do it with the brutal force and hope to be able to keep it together.

There is nothing wrong if America, just like any other nation, is seeking to increase her influence in the world's affairs. This is exactly why we have nations and this is exactly how they should work for their citizens. This present administration of yours talks the talk and that is about it. Their agressive posture, rampant need of expansionism, go it alone arrogance, has never been based on the needs of the Americans or America herself. It is blatantly clear, that their intrests are focused on the advancement of the small minority. This minority, as we all know, is a neoconservative, fundamental Christian, billionaire group, that seems to view the other lesser beings as disposables. That they certainly have amply demonstrated.

See, Vigil, my intention was never to find justification for wars as a tool to advance the American influence in the world. This is why I said that America is scaresly doing it now. My wish has been that America would have followed the good and tried methode of sticks and carrots and the emphases being on carrots. May the lost art of diplomacy, bridge building and consensus seeking be part of the American foreign policy one day soon again!

3/05/2007 03:33:00 PM  
Blogger Blogging4Food said...

Pekka, the Lion of Winter, never disappoints whenever he's lured out of his lair.

3/05/2007 08:37:00 PM  
Blogger Messenger said...

Vigil, reaching back, still another century, listen to the warning of Congressman Abraham Lincoln, who heroically challenged President Polk's fraudulent and aggressive war on Mexico:

"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, 'I see no probability of the British invading us' but he will say to you 'be silent; I see it, if you don't.' The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."


3/05/2007 09:52:00 PM  
Blogger Unknown said...

The bases of the Nuremberg Trial of Nazi criminals are definitely worthwhile looking into.

When the Brits start legal proceedings against Tony Blair, Bush will begin to worry.

3/06/2007 07:59:00 AM  
Blogger Blogging4Food said...

Shakespeare's counsel, through Lord Polonius in Hamlet, was consistent with our traditional American ethos of conceding the first blow before obliterating our adversary:

Beware of entrance to a quarrel, but being in,
Bear't that the opposed may beware of thee.

'Give us your best shot and then prepare yourself for hell' is what we've always said. Until now.

3/10/2007 07:10:00 AM  
Blogger DB Cooper said...

What are we saying now, B-4-F?

3/12/2007 05:53:00 AM  
Blogger Indicted Plagiarist said...

Hans Blix warned Britain and the US against military action - and now he tells Sky News that the invasion has been a tragedy and that he fears the current American policy will not succeed:

"I would never dare to accuse any statesman of bad faith unless I had absolute evidence of it. I do think they exercised spin.

They put exclamation marks instead of question marks. There were question marks but they changed them to exclamation marks.

It was clearly illegal. Condoleezza Rice tried some acrobatic number, saying that they were actually upholding the authority of the Security Council. Upholding the authority of the Council when they knew that the majority of the Council were against it? As a lawyer I certainly don't buy that argument.

And the US after all were witch-hunters. They wanted to see anything as evidence that the Iraqis had weapons of mass destruction. We were simply looking for the truth. We didn't assume that they had them. We didn't assume that they did not have them.

I think everything in Iraq after the invasion has been a tragedy.

3/12/2007 08:57:00 PM  
Blogger T.C. said...

Vigilante, I will not dispute the history here for it is quite accurate. I also like the comments. However, and because I am happy to have found your blog, there is one thing I'd like to add that may not be pleasing. Technically speaking, the Iraq Gulf War I never ended. Iraq was in constant violation of the resolutions and left itself - unwittingly - open to a second invasion. That was Saddam's miscalculation. You can debate the American side of the law but the international one is a little greyer. After the Americans left Iraq a few of us concluded that a second war was inevitable - and lo and behold it came. We also believed way back in the 80s that terrorist organizations were going to grow and we were right about that too. Come to think of it, I should have changed jobs (:<) Nothing happens suddenly. 9/11 was simply the catalyst to jump start the West and moderate Arab regimes to finally confront terrorism. During the 80s and 90s no one paid much attention to what Saddam was really doing. He DID have casual connections to terrorism. Saddam was savvy enough to cover his tracks. Forget this for a second. Just look at the states in the region and how they are reacting. For the most part, what do you think they are saying? I wonder if it goes something like this: "Yes, the doctrine of preemption (while not new in the history of military matters) is dangerous however at least the Americans started the process of confronting a scourge that affects all the powers: Russia, India and China who all have their skirmishes with extremists. It's a bit of a wink, wink thing. Though I do wish to under estimate the resentment that comes with it. More importantly, while Arabs will never admit it, the fact remains that they loathed Saddam. They feared him. He was a destabilizing figure in an already volatile place where accountability has all but been weeded out of the psyche of its people. America did Arabs a favour: something they were unable to do. I'm not suggesting we're naive or misguided but we should shift our thinking a little. Maybe Bush mishandled the whole thing. But I'll tell you one thing: if he can pull it off (and the odds are against him) Iraq can be the eighth wonder of the world. A model for the whole region. Ok, enough of me. Just wanted to add these thoughts and see what the reaction is.

3/13/2007 08:42:00 PM  
Blogger T.C. said...

I meant to say "do not wish to under estimate" by the way. Sorry.

3/13/2007 08:44:00 PM  
Blogger Vigilante said...

Thank you for your contribution. You are a little late to get the attention of other readers who rarely look for salvage a foot or two below the water's surface, but your efforts still deserve some response.

The myth that Iraq Gulf War I never ended was previously spun in my pages by your buddy from Contratimes.

George H. W. Bush declared a cease-fire on Feb. 28 1991 in light of fact that Iraqi forces were out of Kuwait fulfilling the terms of U.N. Resolution 678 (Iraq's full, unconditional withdrawal from Kuwait).

Various peace proposals were floated, but none were agreed to, primarily as I recall, due to Saddam's kitchen sink requirements of the Golan Heights and Palestine. Despite occasional bombing runs, Gulf War I was over (as much as the Korean War is, anyway.

The world understood it was over. You, yourself refer to it as 'Gulf War I'. The fact that Hussein failed to live up U.N. Resolutions did not subject itself to invasions any more than Israel's failure to observe U.N. resolutions did the same. Anglo-American need for additional U.N. authorization for an invasion is stated in my column.

The balance of your Neo-Conservative essay does not address the subject of this thread.

Of interest is your mention of preemption as a military doctrine. Anyone whose political consciousness spans The Cold War years of I.C.B.M.'s and Mutual Assured Destruction (MAD) would be well aware of highly technical debates about credible 1st strike capabilities and credible 2nd strike capabilities.

Preemption as a doctrine in international law, as I tried to show in my column, it has been the first/last resorts of outlaw nations. I recommend you read up on the four principles established by Daniel Webster in the Caroline Affair (circa. 1838-1842) if you want to understand pre-emption in the legal sense. These principles, considered definitive for 150 years, were not satisfied by American-Iraq relations in 2001-2003.

I would especially welcome your participation in more current forums in my pages.

3/13/2007 11:32:00 PM  
Blogger T.C. said...

As long as you don't refer to me as a neo-con. That was not neo-con drviel. That was a combination of being privy to some thoughts from some very important people and my own training in history - I was familiar with the principles. My point, is that preemption is not alien to mankind. It stretches back to Ancient Greece and has been used on and off through the centuries. It is the more nuanced aspects people simply don't pay attention to because they are getting caught up in a tangled web of legalities - I know someone who practices international law and has studied the Iraq thing since the beginning. There is, if the U.S. chooses (and let it be known, the U.S. as you have intelligently said, has not always played by the rules. There is no doubt abut this) a strong case to prove that the First Gulf War did not end in his opnion. He spent two hurs expaining to both sides of the coin. It was quite revealing. Does that make us neo-cons even though he is Swiss-Lebanese? The reason I decided to leave a note is because I appreciate that you use facts and your personal experiences to present a case. In this way, you encourage thoughtful debate. If I have time I will try to respond to this. Thanks.

3/14/2007 06:37:00 AM  
Blogger T.C. said...

My apologies, one more thing. Don't you know conventions and principles are meant to be broken? ;<) Just liek WWI blew up the concept of Balance of Power as kept together by the Treaty of Westphalia, there is a strong sense among some that 9/11 did this for post-war conventions - if not those set before it.

3/14/2007 07:26:00 AM  
Blogger Vigilante said...

(1): This

"...while Arabs will never admit it, the fact remains that they loathed Saddam. They feared him. He was a destabilizing figure in an already volatile place where accountability has all but been weeded out of the psyche of its people. America did Arabs a favour: something they were unable to do. I'm not suggesting we're naive or misguided but we should shift our thinking a little. Maybe Bush mishandled the whole thing. But I'll tell you one thing: if he can pull it off (and the odds are against him) Iraq can be the eighth wonder of the world. A model for the whole region."

is straight Neo-Con drivel. Don't walk and talk like them if you don't want to so labelled.

(2):The historical record of mankind going back to Ancient Greece or whatever, does not fall within the purview of this thread. Please try to pay closer attention.

(3): The mythology of there being only one Gulf war has been settled to my own satisfaction.

(4): Please re-read the last sentence of my previous post: there was a nuanced suggestion there, which you apparently missed, that I prefer not to prolong an unpromising dialogue with you in this thread.

3/14/2007 08:57:00 AM  

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