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'.