Kofi says Iraq war was illegal under UN charter

[sinical brit]

Here: http://news.bbc.co.uk/1/hi/world/middle_east/3661134.stm

The United Nations Secretary-General Kofi Annan says that under the UN charter, the war in Iraq was / is illegal. His view being that as it was the Security Council who issued the threat of "serious consequences", they and only they had the right to define what those consequences were. The second resolution should have been a clarification on what those consequences would acually be.

There is also the small point that the UN does not, ever support invasion of other countries on the grounds of "regime change". As i remember, this was already US policy well before the invasion - someone correct me if i am mistaken.

So should the US / UK have spent a bit more time and worked a bit harder to get the term "serious consequences" clarified by the Security Council in a second resolution, and if it had been passed, would the current situation be better with a more international force - sanctioned by the UN?

Sin

[Liberal]

Yeah, like Kofi Annan's got room to talk. Are bribery, kickbacks, and massive corruption legal under the UN charter?

http://abcnews.go.com/sections/WNT/Investigation/oil_for_food_ripoff_040420-1.html

[HubZilla]

Why haven't there been "serious consequences" from the UN or France or any other country that opposed us going into Iraq?

[Spiny Norman]

So should the US / UK have spent a bit more time and worked a bit harder to get the term "serious consequences" clarified by the Security Council in a second resolution, and if it had been passed, would the current situation be better with a more international force - sanctioned by the UN? No clarification needed. Obviously, the Security Council has the final say on what its resolutions mean. The US/UK obviously intended to go to war no matter what and only wanted Security Council approval to lend legitimacy. It takes some serious spin (Exhibit A:Liberal's tu quoque) to sell the idea that upholding the Security Council's resolutions is so important that you have to go to war against the same Security Council's wishes.

[SentientMeat]

bribery, kickbacks, and massive corruption legal under the UN charter?
I don't think they're specifically mentioned (http://www.un.org/aboutun/charter/), but the Charter relates to how nations engage one another - it does not address such infringements on the part of corrupt individuals, as I understand it.

The issue here is that a Charter is only as good as the will of the parties who sign up to it (heck, the US practically wrote it!).

[John Mace]

He's certainly welcome to his opinion, but one wonders why it took him 1 1/2 years to make this pronouncement. Wouldn't have anything to do with certain elections coming up in November would it?

Actually, I don't think this will affect the election either way. Most Americans who would care about what Kofi Anan had to say have probably already decided to vote for Kerry.

[Rashak Mani]

yep I have to agree with John Mace... its a bit too late to complain about the invasion. I guess he waited for the WMD not to be found.

I don't think its electoral... maybe a reaction to new insinuations that Iran might be responsible for terrorism.

[Ravenman]

He's certainly welcome to his opinion, but one wonders why it took him 1 1/2 years to make this pronouncement.Bzzzt! Thanks for playing, but wrong.

"If the U.S. and others were to go outside the council and take military action, it would not be in conformity with the charter." -- Kofi Annan, March 11, 2003

[Loopydude]

Annan's statements only make explicit what he's been suggesting pretty much from the get-go: The American action in Iraq was unilateral, not made with SC approval, and hence contrary to UN Charter. That's a longwinded way to say "illegal". His utterance of the "I" word only came after being prodded by a BBC interview to pretty much name the elephant in the room.

It's spitting in the wind, essentially. If what the Secretary General of the UN said actually mattered to the World Powers, beyond lending the perception of legitimacy to some actions, we would not be in Iraq today. Those who knew the war was illegitimate and illegal in any meaningful sense of the world did not need Annan to state the obvious. Those who harbor the illusing the action was legitimate won't listen anyway.

I think the only (sad) conclusion that can come out of this recent flap is that, in the grand scheme, the UN doesn't count for squat unless America wants it to count. Hence, it has no independent legitimacy, and Annan's statments amount to toothless disobedience.

[John Mace]

Bzzzt! Thanks for playing, but wrong.

"If the U.S. and others were to go outside the council and take military action, it would not be in conformity with the charter." -- Kofi Annan, March 11, 2003

Maybe. "Not confroming with the charter" isn't exactly the same as "illegal". The former can easily be interpretted as neutral wrt legality. At any rate, I tend to agree with Loopy on this-- the UN has little, if any, clout unless its on the same side as the US. You can argue about whether that's good or bad, but it sure seems to be true in most situations.

[blowero]

John Mace:
Maybe. "Not confroming with the charter" isn't exactly the same as "illegal". The former can easily be interpretted as neutral wrt legality.

To be fair, it doesn't sound like he exactly came out and say "It was illegal" out of the blue. It sounds like those were the reporter's words, not his:

When pressed on whether he viewed the invasion of Iraq as illegal, he said: "Yes, if you wish. I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal."

Sounds like he was being consistent and the reporter was the one trying to change the characterization of the events.


So should the US / UK have spent a bit more time and worked a bit harder to get the term "serious consequences" clarified by the Security Council in a second resolution, and if it had been passed, would the current situation be better with a more international force - sanctioned by the UN?

Undoubtedly.

[Diogenes the Cynic]

I've been saying for two years that invading Iraq was an illegal breech of the UN Charter (and, Mace, breeching a treaty is, by definition, illegal. I think you're grasping at straws if you're trying to draw a distinction there). Of course it is. The inability of the UN to do anything about it does not make it less illegal.

I also find it a little disingenuous that some people want to jump up and down and point at perceived violations of UN Resolutions as an excuse to invade, but then claim the UN doesn't matter when it comes to our iwn violations (and nevcer mind that US does not have the authority to arbitrarily impose its own sanctions anyway. Bush is not the Sheriff and Blair is not his deputy. They do not have the right or authority to form their own posse and kill people).

The question is not whether the UN can do anything about it (what an ammoral and thuggish attitude that would be) but whether the US is going to honor its own fucking treaty which it helped to author and which was ratified by its own congress.

Shoul we honor our treaties or not? Yes or no? And if not, then do we have a right to expect anyone else to honor treaties?

[blowero]

John, I'm not going to rehash the whole debate on the legality of the Iraq war, which was already done to death here. But citing the opinion of one of the aggressor nations is disingenuous at best. The aggressor is always going to come up with some sort of sophistry to justify its actions. It's rather like saying, "Well Hitler didn't think it was illegal to kill the Jews". As already pointed out, it's ludicrous to claim we were carrying out the intent of the UN when the UN explicitly rejected our bid to use force against Iraq. The UN Charter very clearly forbids unilateral strikes that are not in self-defense. Call it "legal", call it "illegal", call it whatever you want, but the bottom line is that we violated a treaty. Coming up with a bunch of quasi-legal b.s. impresses noone save British and American hard-liners.

[blowero]

Whoah! John Mace's post is showing up as 4 hours later than mine, even though he posted before me. Are the hamsters smoking crack again?

[PatriotX]

Yeah, like Kofi Annan's got room to talk. Are bribery, kickbacks, and massive corruption legal under the UN charter?

http://abcnews.go.com/sections/WNT/Investigation/oil_for_food_ripoff_040420-1.html
Has the actual evidence for this been pried from the cold dead fingers of the INC afiliated minions who discovered it? Last I heard, no outside observers had been allowed to see it.
Or is it still a matter of taking their word for it?

[John Mace]

Whoah! John Mace's post is showing up as 4 hours later than mine, even though he posted before me. Are the hamsters smoking crack again?

Looks like the new server upgrade has distorted the space time continuum...

As to my cite, it is no more disingenuous to cite someone in favor of the war than to cite someone not in favor of it. And, did the UNSC explicitly reject the US's bid to use force? Actually, the US punted on that one, didn't we, since it never actually came to a vote. Perhaps you meant implicitly.

Clearly, the leaders of the following countries did not consider the action "illegal":

Australia, the Czech Republic, Denmark, Hungary, Italy, Japan, South Korea, the Netherlands, Poland, Spain, Turkey (and, of course, United Kingdom).

All those countries supplied some support, however minimal, to the war.

[Diogenes the Cynic]

But that's just the thing-- was a treaty breeched, and who determines if it was? Frankly, I don't think it really makes sense to use the term "legal" wrt this war. Opinions vary, and lacking a governing body for making that determination, it is overstating the case to claim that it is illegal (or, for that matter, legal). Perhaps that is why Anan seemed somewhat reticent about making that claim, ie use of "if you wish" in his quote. As an example, Britain's Attorney general offers this explanation of the legality of the war (http://www.guardian.co.uk/Iraq/Story/0,2763,916078,00.html) (my bolding of the key argument):
As blowero said this is sophist and pretty much irrelevant. Since when do the criminals decide what the law is?

More to the point, it's wrong. UN Resolution 678 (http://www.fas.org/news/un/iraq/sres/sres0678.htm) only authorized whatever use of force was necessary to remove Iraq from Kuwait (or to be truly pedantic about it, it authorized whatever use of force was necessary to enforce resolution 660 (http://www.caabu.org/press/documents/unscr-resolution-660.html) which told Iraq to get the fuck out of Kuwait.

What it did NOT do, was authorize any attack on the sovereignty of Iraq, and the attack specifically on sovereignty is what violates the UN Charter, not a use of force. per se.


And not to put too fine a point on it, but Iraq did not violate Resolution 186. Remember? There weren't any WMDs.

The illustrious Baliff from across the pond is either being deliberately obfuscatory, or he doesn't know what he's talking about.

Hell, I don't know international law from the International House of Pancakes and it took me four minutes on google to figure out this guy was full of crap.

[John Mace]

More to the point, it's wrong. UN Resolution 678 only authorized whatever use of force was necessary to remove Iraq from Kuwait (or to be truly pedantic about it, it authorized whatever use of force was necessary to enforce resolution 660 which told Iraq to get the fuck out of Kuwait.

Wrong, per my original cite as is clearly demonstrated by the additional clause in the item #2 of the resolution. Unless, of course, you have a different definition of what "and" means (my bolding):


2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

Hell, I don't know international law from the International House of Pancakes and it took me four minutes on google to figure out this guy was full of crap.

I'll take the large stack with blueberry syrup, when you're done googling. :)

[Diogenes the Cynic]

Wrong, per my original cite as is clearly demonstrated by the additional clause in the item #2 of the resolution. Unless, of course, you have a different definition of what "and" means (my bolding):
We already had international peace and security in the area. That clause only dealt with stopping aggressive actions by Iraq vis-a-vis Kuwait. It most definitely did not authorize an attack on the sovereignty of Iraq, which is explicitly forbidden by the UN Charter except for self defense.

"Restore peace" != "Overthrow the government ten years later."


And you ignored the fact that Iraq did not breech 678. Iraq was not acting aggressively, nor was it using or stockpiling or manufacturing any banned weapons.

With all due respect, John, I like you but you're wrong on this.

[John Mace]

I've been saying for two years that invading Iraq was an illegal breech of the UN Charter (and, Mace, breeching a treaty is, by definition, illegal. I think you're grasping at straws if you're trying to draw a distinction there). Of course it is. The inability of the UN to do anything about it does not make it less illegal.

But that's just the thing-- was a treaty breeched, and who determines if it was? Frankly, I don't think it really makes sense to use the term "legal" wrt this war. Opinions vary, and lacking a governing body for making that determination, it is overstating the case to claim that it is illegal (or, for that matter, legal). Perhaps that is why Anan seemed somewhat reticent about making that claim, ie use of "if you wish" in his quote. As an example, Britain's Attorney general offers this explanation of the legality of the war (http://www.guardian.co.uk/Iraq/Story/0,2763,916078,00.html) (my bolding of the key argument):

"In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the security council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area.

"Resolution 687 suspended but did not terminate the authority to use force under resolution 678.

"A material breach of resolution 687 revives the authority to use force under resolution 678.

"In resolution 1441 the security council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution..."

[Eolbo]

But that's just the thing-- was a treaty breeched, and who determines if it was? Frankly, I don't think it really makes sense to use the term "legal" wrt this war. Opinions vary, and lacking a governing body for making that determination, it is overstating the case to claim that it is illegal (or, for that matter, legal). Perhaps that is why Anan seemed somewhat reticent about making that claim, ie use of "if you wish" in his quote. As an example, Britain's Attorney general offers this explanation of the legality of the war (http://www.guardian.co.uk/Iraq/Story/0,2763,916078,00.html) (my bolding of the key argument):


I think what you are overlooking is that the United States has NO authority to enforce UN resolutions other then what the UN Security Council chooses to delegate to it, and where that explicit delegation isnt granted you simply have no authority at all. The UN is not an agent of the US, more to the point the US is the agent of the UN when it comes to resolutions and serves the Security Council. The Security Council decides how it will enforce it's own resolutions not the US.

The US quite specifically failed to gain endorsement of the Security Council for its invasion, and when it became apparent that it had no prospect of obtaining even a simple majority for a resolution authorising force it simply chose to drop the infamous 'second resolution' and it wasnt even presented to a vote.

So the ingenuous justification of the British Attorney General is akin to a former employee once endorsed to perform a particular task but whose contract has lapsed still maintaining his ability to do, despite his former employer quite specifically and publicly denying him this authority and the manager saying the former employee doesnt work for me and is acting illegally.

[Diogenes the Cynic]

But that's just the thing-- was a treaty breeched, and who determines if it was? Frankly, I don't think it really makes sense to use the term "legal" wrt this war. Opinions vary, and lacking a governing body for making that determination, it is overstating the case to claim that it is illegal (or, for that matter, legal). Perhaps that is why Anan seemed somewhat reticent about making that claim, ie use of "if you wish" in his quote. As an example, Britain's Attorney general offers this explanation of the legality of the war (http://www.guardian.co.uk/Iraq/Story/0,2763,916078,00.html) (my bolding of the key argument):
The fact remains that 678 did not authorize an attack on sovereignty under any cirmumstances and that the US had no authority to unilaterally enforce any sanctions.

There is absolutely no way to read 678 as a license for regime change, especially when it occurred in defiance of the very body that this argument pretends to derive authority from.

The US breeched the UN Charter. There's absolutely no way around it.

[John Mace]

You may misunderstand me. I'm not personally saying that I think the war was "legal". I am only saying that there are 2 arguements that can be made, and neither you nor I are the authority in deciding. In fact, there is not a body authorized to make that decision. If this were a matter of US law, we could argue either side, but ultimately the SCotUS decides the matter.

I will readily agree that the war in Iraq violated the spirit of the UN charter. But when you use the term "legal", then you are talking about the letter of the law, not the spirit of it. And there is, as has been claimed by those waging the war, that the letter of the law contains a clause, or call it a loophole even, that has been used to justify it. Making an absolute claim about the legality of an action, in absence of a judicial ruling, can never be simply more than one man's opinion. But you are making the claim that the other side doesn't even have a case, and that is flatly, demonstrably wrong.

[Uzi]

The inability of the UN to do anything about it does not make it less illegal.

On a side note: Can a law be a law without the ability, and/or willingness, to enforce it?

[blowero]

Looks like the new server upgrade has distorted the space time continuum...

As to my cite, it is no more disingenuous to cite someone in favor of the war than to cite someone not in favor of it.

I think DtC has pretty well covered all this, but as to this particular statement, I think you missed the point. It's not just that you cited someone in favor of the war, you cited someone from one of the TWO COUNTRIES THAT WAGED THE WAR (U.S. and England). It's like asking Al Capone if it's o.k. to murder people. Or using Dr. Kevorkian as a legal expert regarding assisted suicide. Surely I was clear on that. I mean, are you really not getting my point, or are you just pretending not to?

And, did the UNSC explicitly reject the US's bid to use force? Actually, the US punted on that one, didn't we, since it never actually came to a vote. Perhaps you meant implicitly.

I think you're nitpicking. Had it come to a vote, it would not have passed, which is the only reason we "punted". And it wasn't for lack of trying on the part of Bush. I don't know of a clearer way for the UNSC to say "no". You don't honestly believe that the U.N. approved of the invasion, do you?

Clearly, the leaders of the following countries did not consider the action "illegal":

Australia, the Czech Republic, Denmark, Hungary, Italy, Japan, South Korea, the Netherlands, Poland, Spain, Turkey (and, of course, United Kingdom).

All those countries supplied some support, however minimal, to the war.
I'm not sure what this is supposed to prove.

We've already bantered the whole "if you get away with it then it's not illegal" idea back and forth to death in numerous other threads. I disagree with that notion, and it's really just playing games with the meaning of "illegal", which doesn't get us anywhere. I don't know what else to say.

[jjimm]

I posted about this in another thread, but leaked documents have just emerged in a conservative British paper that show the UK government was well aware that the war was illegal (http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/09/18/nwar118.xml&sSheet=/news/2004/09/18/ixnewstop.html).A Secret UK Eyes Only briefing paper was warning that there was no legal justification for war. So Mr Blair was advised that a strategy would have to be put in place which would provide a legal basis for war. Any British action had to be "narrated with reference to the international rule of law", Mr [Jack] Straw [Foreign Secretary] insisted. He warned that his legal advisers were telling him that it would almost certainly need a fresh UN mandate to make it legal, a mandate the Americans didn't feel was necessary and the rest of the Security Council was unlikely to give. He questioned the rationale behind the whole enterprise. ...there would be major problems finding a legal justification to use military force. "Subject to law officers' advice, none currently exists," it warned starkly.

There was no greater threat that Saddam would use chemical or biological weapons now than there had been at any time in the recent past; regime change had no basis in international law; and there was no evidence that Iraq was backing international terrorism that might justify an action based on self-defence, as in Afghanistan, the options paper said.

"This makes moving quickly to invade legally very difficult."

The problem was that the Americans had no such qualms. "Washington believes the legal basis for an attack on Iraq already exists," the paper said.So in fact the US's key ally agree with Kofi, though the [expletive deleted]s went ahead anyway.

[six_personalities]

That mean we're trying Bush and Blair as war criminals? :)

[John Mace]

I think DtC has pretty well covered all this, but as to this particular statement, I think you missed the point. It's not just that you cited someone in favor of the war, you cited someone from one of the TWO COUNTRIES THAT WAGED THE WAR (U.S. and England). It's like asking Al Capone if it's o.k. to murder people. Or using Dr. Kevorkian as a legal expert regarding assisted suicide. Surely I was clear on that. I mean, are you really not getting my point, or are you just pretending not to?

The source of an argument simply has NOTHING to do with an arguments validity. Unless, of course, the [i]ad hominem[/ii] fallacy is no longer a fallacy.

I think you're nitpicking.

Yes, I to a certain extent. However, you statement WAS incorrect, unless "explicitly" has a new meaning. Again, we are talking legalities here, where words have precise meanings. You don't get to change their meanings to bolster your argument.

I'm not sure what this is supposed to prove.

That reasonable people can disagree over the conclusion on this issue. I'm not arguing that that makes them correct, just that there are two sides to this issue.

[XT]

So should the US / UK have spent a bit more time and worked a bit harder to get the term "serious consequences" clarified by the Security Council in a second resolution, and if it had been passed, would the current situation be better with a more international force - sanctioned by the UN?

Well, I think the US/UK should have never pursued Iraq in the first place...it was a stupid waste of our resources and focus that could have been better spent in Afghanistan hunting AQ initially, and in subsequent hunting of terrorist cells in other countries.

Having said that though, there was no point in continueing the back and forth with the UN on the language or the second resolution...there was no real point. It was pretty clear that at least 2 of the other UNSC members (probably all 3) weren't going to budge on the thing...they were either going to abstain or veto reguardless. So, if the US/UK thought they had a good case, and that Iraq was in fact a potential threat (or even a potential future threat I suppose), then they did the right thing from their perspectives. They at least paid lip service to APPEARING to try to acknowledge the forms...something that not all UNSC members have always been good about when THEY violated the charter in the past.

As for the whole 'illegal' aspect of the war, I'm not going to get into that (again)...its been done to death and I remain unconvinced that it WAS illegal, that the term 'illegal' actually has any real meaning as far as international law goes, blah blah blah. The reality is that UNSC members are a law unto themselves...always have been, and always will be until they change rules and makeup of the select circle.

-XT

[DrDeth]

Clearly the War wasn't "legal" under UN regs. But then that doesn't mean it was "illegal" either.

The US seems to claim it was an action meant to protect themselves. Such would be legal, even if not authorized by the UN. That claim is rather (OK, extremely )doubtful, but even the Secretary-General cannot unilaterally proclaim that the action was not in "self-defense". It takes the entire Security Council to do so, and clearly, that vote isn't going to be lost by the USA. Now, this skirts being "illegal" by a razors edge, I admit. It is a "catch 22" of sorts. Let,s face it, although the war isn't "illegal" under UN charter, that's just because the USA has enough pull to stop itself from being condemned. Of course the fact that Saddam was an evil SOB that just about everyone else hated means that he isn't getting much sympathy either.

And DtC- what Treaty did we violate, and who gets to say we do? Well, in the USA the Courts do, and the Courts have said VERY CLEARLY that the war is legal. Like it or not, Diogenes, you do not get to decide if the USA has broken a treaty no matter how clear it seems to you. :dubious: Because, frankly- no one in the Administration and Court system cares what you think. :rolleyes: Of course, you could bring suit, and I would love to see it. Please do! :p

[Diogenes the Cynic]

but even the Secretary-General cannot unilaterally proclaim that the action was not in "self-defense". It takes the entire Security Council to do so
You have it backwards. It takes a vote by the Security Council to say that an action is justified for self-defense. Any attack on sovereignty which is not an immediate act of self-defense or which cannot be shown (to the satisfaction of the UNSC) to be a necessary defensive action against an immediate threat is an illegal act of aggression under the UN Charter. We have to prove it is self-defense, they don't have to prove it isn't. If you don't like that system, too bad. It's a system that we not only signed a treaty to abide by, but we wrote most of the damn thing ourselves.
and clearly, that vote isn't going to be lost by the USA.
Actually, the vote was absolutely going to be lost by the US and that's why Bush aborted his attempt to get UN approval, built a fake "Coalition" of his own and pretended to derive authority from that.
And DtC- what Treaty did we violate
Th UN Charter. You are aware that the UN Charter is a treaty signed and ratified by the US Congress, are you not?
and who gets to say we do?
Who gets to say we do what? Violate treaties? No one.
Well, in the USA the Courts do, and the Courts have said VERY CLEARLY that the war is legal.
What courts would those be?

[DrDeth]

You have it backwards. It takes a vote by the Security Council to say that an action is justified for self-defense. Any attack on sovereignty which is not an immediate act of self-defense or which cannot be shown (to the satisfaction of the UNSC) to be a necessary defensive action against an immediate threat is an illegal act of aggression under the UN Charter. We have to prove it is self-defense, they don't have to prove it isn't. If you don't like that system, too bad. It's a system that we not only signed a treaty to abide by, but we wrote most of the damn thing ourselves.

Th UN Charter. You are aware that the UN Charter is a treaty signed and ratified by the US Congress, are you not?


What courts would those be?

1. No, you're wrong, any nation can go to war in self-defense without UN approval. As you just said 'any act which is not an immediate act of self-defence" and that what the US has claimed. Of course, you have the wording wrong, but that's usual. And now, i suppose you're going to start quoting sections of the UN charter as if youre an UN Delegate or an expert in International law. :rolleyes:

2. Sure the UN Charter is a treaty. So? Who says whether or not we have violated a treaty under US law? Why the US courts, of course!

3. The Federal Court system, which has already ruled on the war and declared it legal. Go back to the first months of the war here, you'll see several posts with a link to that Court decision. If you say is isn't legal- how about a cite to a Court Decision that says it is illegal?

[Diogenes the Cynic]

1. No, you're wrong, any nation can go to war in self-defense without UN approval. As you just said 'any act which is not an immediate act of self-defence" and that what the US has claimed. Of course, you have the wording wrong, but that's usual. And now, i suppose you're going to start quoting sections of the UN charter as if youre an UN Delegate or an expert in International law. :rolleyes:

2. Sure the UN Charter is a treaty. So? Who says whether or not we have violated a treaty under US law? Why the US courts, of course!

3. The Federal Court system, which has already ruled on the war and declared it legal. Go back to the first months of the war here, you'll see several posts with a link to that Court decision. If you say is isn't legal- how about a cite to a Court Decision that says it is illegal?
1. The US was not going to war in self-defense and could not prove that Iraq was an imminent threat. The invasion was staged in defiance of the UN and was an illegal act of aggression under both US and intenational law.
2. Nope. All of the signatories of a treaty are the entities who decide whether a treaty has been violated, not just one of them. That would be like you deciding by yourself if you were obliged to honor a business contract.
3. Cite?

[blowero]

The source of an argument simply has NOTHING to do with an arguments validity.

Wel, as I said, the argument is mere sophistry. TO THE EXTENT you are arguing that it MUST be a valid argument because someone made it, I have pointed out that that "someone" is not an objective source. The person who made that argument is playing a little game. You and he both know that the U.N. did not sanction the invasion of Iraq. He's trying to do a little tap dance around the facts, but as DtC pointed out, it's a bullshit argument.

I'm not saying the argument is invalid because the person who made it is biased; I'm saying the argument is invalid AND the person who made it is biased.

Unless, of course, the ad hominem fallacy is no longer a fallacy.

No, that's wrong. What actually happened is that YOU attempted an appeal to authority and were shown to be wrong.

Yes, I to a certain extent. However, you statement WAS incorrect, unless "explicitly" has a new meaning. Again, we are talking legalities here, where words have precise meanings. You don't get to change their meanings to bolster your argument.

Not sure what you're trying to prove. It's a meaningless nitpick that doesn't change the point one iota. It's like the old cliche, "You can't fire me; I quit!" Bush knew the UN wasn't going to approve his war, so he withdrew the request.

Actually, y'know what? If you want to continue playing a silly little word game about what "legal" means, disregarding the obvious fact that we violated the UN Charter, be my guest. I don't really see the point.

[DrDeth]

1. The US was not going to war in self-defense and could not prove that Iraq was an imminent threat. The invasion was staged in defiance of the UN and was an illegal act of aggression under both US and intenational law.
2. Nope. All of the signatories of a treaty are the entities who decide whether a treaty has been violated, not just one of them. That would be like you deciding by yourself if you were obliged to honor a business contract.
3. Cite?

1. Prove it. Show me where the UN Security Council (which is the only body who can rule on this) has said that the USA couldn't prove that Iraq wasn't an imminent threat.

2. Not under the Constitution. The Constitution, (and thus the Supreme Court ofr rulings) is the 'supreme law of the land". The USA cannot sign a valid treaty which over-rules any section of the Constitution.

3. You made the claim, you give the cite. And, as I am getting tired of repeating- "my post is my cite" is not a cite.

[John Mace]

1. The US was not going to war in self-defense and could not prove that Iraq was an imminent threat. The invasion was staged in defiance of the UN and was an illegal act of aggression under both US and intenational law.

OK, this is where I have to jump back in.

I think there are ligitimate arguments on both sides of the Internarional law debate, although the side claiming that the war was "legal" is a lot weaker. As I've said earlier, I can't dismiss it out of hand as so many posters here want to do.

However, the war was clearly legal from the standpoint of US law. Congress authorized the use of force, as per the Consitution, and the President carried it out. Congress can determine, in any way it sees fit, which country is threat and which country is not a threat to the US. Even if you could prove that the US violtated the UN treaty, the Constitutional authority for Congress to declare war trumps any treaty the US may have signed. Once Congress declares war (or, as in this case, transfers that authority to the president), that's the end of the discussion.

[Diogenes the Cynic]

1. Prove it. Show me where the UN Security Council (which is the only body who can rule on this) has said that the USA couldn't prove that Iraq wasn't an imminent threat.
This is a backwards question. There is no "proof" until the UNSC says so. The US has the burden of proof, and a vote by the UNSC is what determines whether the case for aggressive action has been proven. No vote= no proof= no legality. Th
2. Not under the Constitution. The Constitution, (and thus the Supreme Court ofr rulings) is the 'supreme law of the land". The USA cannot sign a valid treaty which over-rules any section of the Constitution.
You really have a distorted view of the Supremacy Clause. If you look it up, you will find that Constitution clearly states that any treaty ratified by Congress (such as the UN Charter) is the "Supreme Law of the land. That means that the treaty has the same authoritative weight as constitutional amendment.

US law doesn't matter anyway. US law is subordinate to international law. Appealing to US law is like appealing to Iraqi law to justify the invasion of Kuwait. It is not a defense to a war crime to say that the war crime is not illegal in your country.
3. You made the claim, you give the cite. And, as I am getting tired of repeating- "my post is my cite" is not a cite.
Actually, Sparky, you made the claim. You made an assertion about some "court" or other deciding that the invasion was legal. Cite?

[Diogenes the Cynic]

OK, this is where I have to jump back in.

I think there are ligitimate arguments on both sides of the Internarional law debate, although the side claiming that the war was "legal" is a lot weaker. As I've said earlier, I can't dismiss it out of hand as so many posters here want to do.

However, the war was clearly legal from the standpoint of US law. Congress authorized the use of force, as per the Consitution, and the President carried it out. Congress can determine, in any way it sees fit, which country is threat and which country is not a threat to the US. Even if you could prove that the US violtated the UN treaty, the Constitutional authority for Congress to declare war trumps any treaty the US may have signed. Once Congress declares war (or, as in this case, transfers that authority to the president), that's the end of the discussion.
Show me where the Constutution says that either Congress or the President has the right to breech the "Supreme Law" of a ratified treaty.

And I will say again, that US law is irrelevant. Sovereign law is not a defense against breeching international law. It was legal in Iraq to invade Kuwait. It was legal in Nazi Germany to invade Poland and build death camps.

US law means nothing in this case, but it was still violated.

[John Mace]

You really have a distorted view of the Supremacy Clause. If you look it up, you will find that Constitution clearly states that any treaty ratified by Congress (such as the UN Charter) is the "Supreme Law of the land. That means that the treaty has the same authoritative weight as constitutional amendment.

Actually, you're wrong on this. I'll have to find the cite, but in another similar thread to this one, one of our resident lawyers cited a Supreme Court ruling that the US Constiution takes presedence over any treaty, when and if they conflct.

[pervert]

No vote= no proof= no legality.Not to get caught in a shit storm or anything, but isn't it entirely possible to have proof without a vote? Political interests come into play during the call for a vote, as you know.

Dude, are you seriously claiming that treaties supercede the constitution? Really?

[John Mace]

From Reid v. Covert, 354 U.S. 1 (1957) (http://www.constitution.org/ussc/354-001a.htm):

This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. 34 It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.

[Diogenes the Cynic]

Not to get caught in a shit storm or anything, but isn't it entirely possible to have proof without a vote? Political interests come into play during the call for a vote, as you know.
Sure, it's possible to have proof without a vote, but it's not possible to have a legal justification for an attack on sovereignty without a vote. (And not for nothing, but the US did not have proof, either with or without a vote.
Dude, are you seriously claiming that treaties supercede the constitution? Really?
No. That's not what 'Supreme Law" means. It just means that treaties are on a par with the most authoritative parts of the Constitution. They cannot be broken by a whim or a vote by Congress.

It is my understanding that the Constitution does not stipulate a process for dissolving a treaty but it would have to take something similar to repealing an amendment.

BTW, the US has not expressed any intent or desire to resign from the UN Charter. We just decided to ignore it.

And I will say once again that US law is irrelevant when it comes to questions pf international law.

Should we honor or treaties or not? Yes or no?

Does anyone still believe we were actually defending ourselves against anything in Iraq?

[John Mace]

It is my understanding that the Constitution does not stipulate a process for dissolving a treaty but it would have to take something similar to repealing an amendment.

You are correct, but the court's opinion, per my quote above, makes it clear how the hierarchy works:

1. The Constitution
2. The most recent statute
3. A treaty (ratified prior to any given statute)

[John Mace]

Oops. You are correct in the first part, but not equating the process to ratifying an amendment. Subsequent Congressional statutes override treaties, where they conflict.

[Diogenes the Cynic]

You are correct, but the court's opinion, per my quote above, makes it clear how the hierarchy works:

1. The Constitution
2. The most recent statute
3. A treaty (ratified prior to any given statute)
A ratified Treaty is on a par with the consitution. They can not be overridden by statutes.

[John Mace]

A ratified Treaty is on a par with the consitution. They can not be overridden by statutes.

Wow. You are directly contradicting the opinion of the court in the case I cited. Did you read it? I'll quote the relevant part again:

...when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null...

A treaty is on par with a statute, and the Constitution stands above both. Statutes passed after the ratification of a treaty nullify the treaty to the extent that they are in conflict. Couldn't be clearer.

If you have a cite that counters mine, let's see it. Until then, your statement has been proven false. I really don't have anything else to say on the matter.

[MEBuckner]

A ratified Treaty is on a par with the consitution. They can not be overridden by statutes.
So you're saying that the U.S. can't withdraw from a treaty without a two-thirds vote of each house, ratified by three-quarters of the state legislatures? Or, since the Constitution doesn't really say anything about the subject of withdrawing from treaties one way or the other, that the U.S. can never withdraw from a treaty, by any procedure whatsoever?

There has certainly been a debate between advocates of the "Imperial Presidency" view of government and advocates of Congressional checks and balances as to whether or not the President alone can withdraw the U.S. from a treaty, or whether it would require Congressional approval (http://www.congress.gov/cgi-bin/query/z?r107:S10JN2-0014:). If the U.S. can withdraw from treaties only with Congressional approval, this puts them essentially on the same level as statutes, but below the Constitution. But I think the notion that we can never withdraw from a treaty, even with Congressional approval, is pretty far-fetched.

And the Supremacy Clause (http://www.law.cornell.edu/constitution/constitution.articlevi.html) reads as following:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and 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.
I don't see anything there that puts treaties on a higher plane than statutes passed by the U.S. Congress, constitutionally speaking. Both are the "supreme law of the land".

[John Mace]

I don't see anything there [in the Supremacy Clause] that puts treaties on a higher plane than statutes passed by the U.S. Congress, constitutionally speaking. Both are the "supreme law of the land".

Exactly. And courts have made it clear how to resolve those instances where treaties and statutes contradict each other.

[Diogenes the Cynic]

I didn't say that treaties were on a higher plane than federal statutes, I said that they couldn't be overridden by statutes. They are on the same level.

BTW, when did Congress vote to dissolve their treaty with the UN Charter? Are we still a signatory or not? Are we still bound by it or is it something which can simply be ignored at our whim.

And I must say again, that US law is irrelevant anyway. International law cannot be circumvented by sovereign law.

[John Mace]

I didn't say that treaties were on a higher plane than federal statutes, I said that they couldn't be overridden by statutes.

And I clearly pointed out that the Supreme Court says they can. Sorry, they get to decide, not you.

[Diogenes the Cynic]

The Supreme Court is wrong. It's not the first time.

[John Mace]

That's an entirely different subject.

There are countless SC decisions I disagree with (from the minimum wage, to affirmative action). Somehow I don't expect you'd allow me to get away with claiming my opinion is fact in those instances. :)

[pervert]

I didn't say that treaties were on a higher plane than federal statutes, I said that they couldn't be overridden by statutes. They are on the same level.But statutes can be overridden by other statutes. So, you are clearly positing a third position for treaties.

If you read the full context of the supremacy clause, it is clearly addressing itself to the States. That is, it is saying that treaties are on the same level as statutes when State actions are to be considered. It really does not say nor imply that treaties have any super statute quality. If anything, it says that the order is as John Mace laid it out.

BTW, when did Congress vote to dissolve their treaty with the UN Charter? Are we still a signatory or not? Are we still bound by it or is it something which can simply be ignored at our whim.They did not. The administration appealed to the self defence clause. It may not be valid, but again, that is not for you to decide. Although, of course it is for you to agree or disagree with come voting time. ;)

And I must say again, that US law is irrelevant anyway. International law cannot be circumvented by sovereign law.Actually, you are wrong about this as well. There is as yet no accepted mechanisms for the UN to enforce its edicts seperate from member nations. International law is much more libertarian than you may understand. All "laws" have to be agreed to by those following them. Parties are only liable to keep such agreements within the bounds of their local laws and whatever sanctions the other parties care to impose.

You really are an enigma to me, DTC. You argue so rationally about evolution and religious subjects then make the most outrageously false statements about international law and gun ownership. I still haven't figured you out.

[Diogenes the Cynic]

Actually, you are wrong about this as well. There is as yet no accepted mechanisms for the UN to enforce its edicts seperate from member nations. International law is much more libertarian than you may understand. All "laws" have to be agreed to by those following them. Parties are only liable to keep such agreements within the bounds of their local laws and whatever sanctions the other parties care to impose.
I don't see the ability to enforce sanctions as a criterion for whether a law is valid. We agreed to it, and there is nothing in the UN Charter which stipulates that we may override it with our own fraudulent statutes.

How come nobody ever wants to answer me when I ask if the US should honor its treaties?
You really are an enigma to me, DTC. You argue so rationally about evolution and religious subjects then make the most outrageously false statements about international law and gun ownership. I still haven't figured you out.
I am quite a bit more informed about religion and evolution than I am about international or Constitutional law so I'm less inclined to talk out of my ass on those issues. ;)

As to gun ownership, I haven't really posted that much on the subject except to deride gun owners. I have never tried to make any legal arguments about it, nor have I ever called for a gun ban. I'm just expressing a personal opinion about my perception of gun culture.

[pervert]

How come nobody ever wants to answer me when I ask if the US should honor its treaties?Because you want to impose your own definition of what honoring a treaty looks like. No one has claimed that the US should not honor its treaties. Some are claiming that we have done so. You have refused to give any credence to them. Unfortunately you have done so with demonstrably false assertions and interpretations of the Constitution at odds with most others. Meanwhile you have done so with a derth of MHO disclaimers. You did not say, for instance, that treaties "should" be superior to statutes. You claimed that they are. Even in defiance of Supreme Court precidence and common sense reading of the supremacy clause.

You would never have tolerated this sort of behavior from a religious zealot trying to deny evoloution. Thus my confusion.

Though, I must admit, you were far more patient with the religious zealots you've debated than with those in opposition to you here. Again, my confusion.

I am quite a bit more informed about religion and evolution than I am about international or Constitutional law so I'm less inclined to talk out of my ass on those issues. ;)Sort of an agent provacature on these issues? ;)

As to gun ownership, I haven't really posted that much on the subject except to deride gun owners. I have never tried to make any legal arguments about it, nor have I ever called for a gun ban. I'm just expressing a personal opinion about my perception of gun culture.
Yep, I remember. But you made sweeping statements about all people who own guns which were clearly silly.

Hope I did not insult you. Just MHO and all that.

[John Mace]

How come nobody ever wants to answer me when I ask if the US should honor its treaties?

Because it's a question without a general answer. A question whose answer depends on the particular context being discussed.

How come nobody ever wants to answer me when I ask:

if citiizens should obey the law?

if a man should kill another man?

etc.

I would say that the US should honor its treaties unless it would be against its self interest to do so. But that just brings us right back to where we started.

[DrDeth]

The Supreme Court is wrong. It's not the first time.

This is what I love about you DtC- your incredible Hubris. Many here would think twice to say that (as a Goyim layman) they know more about the Talmud than a Rabbi, or that they know more about Constitutional law than the US Supreme Court. :dubious: The few that would dare to say either would at the very least express it as an Opinion. But not you, Diogenes. You have no self-doubt at all. Even though you aren't even Enrolled to Practice law before the Supreme Court, you have no problem stating baldly that they're wrong. :rolleyes:

This isn't a personal attack, I just have to admire your complete and utter self-confidence and Hubris to stand there and make those kind of statements in the face of overwhelming evidence that you are dead wrong. "Seldom right, but never in doubt" should be your motto! :cool: My god man- you must have balls the size of muskmelons. I salute you! (now, here, we have no smiley to show that I do seriously salute you for your Hubris- even though I think you are completely and totally wrong).

Thank you for an entertaining post. If I used sigs, I'd use The Supreme Court is wrong. It's not the first time.. It is one of the most amazing statements ever made on this board. :eek:

John, thanks for the cite. Do you have that one where the Appeals Court rules that the current "war" is legal?

[John Mace]

John, thanks for the cite. Do you have that one where the Appeals Court rules that the current "war" is legal?

I'm not sure if you're serious or not, but I'm unaware of any court ruling on the legality of the war. Any statute passed by Congress is assumed to be legal until and unless it is reviewed and overturned by the court(s).

[DrDeth]

Yes, I am serious. It was cited here awhile ago. Seems someone went to Court saying that the Law Congress passed wasn't Constitutional, as they could not "give over" their Constitutional authority to the President, or something liek that. The suit lost of course.

[Abe]

Is it really that important whether something in an international context is legal domestically? It just seems to confuse the subject and provide ammunition for the usual simple-minded apologies, since I doubt anything else (such as, for example, accountability) would come of it... if anything it would seem to encourage more foolishness such as unilateralism.

If the Iraq war was illegal (or not) according to the UN, what is the point of debating the matter by US law and constitution? The UN Charter is a set of international accords, not domestic ones. Kofi Annan hasn't been saying for over a year that the actions of the US were in breach of the US Constitution or US federal law.

I thought the discussion was about international treaties etc. which the US signed and ratefied, but allegedly breached. The UN never signed up to the US Consitution, so what is the point of this "Americatist" approach when discussing international forums? The world is rather keen on the global context and legality, unsurprisingly; what seems to matter in this discussion is whether the war was legitimate by UN standards.

[John Mace]

Is it really that important whether something in an international context is legal domestically? It just seems to confuse the subject and provide ammunition for the usual simple-minded apologies, since I doubt anything else (such as, for example, accountability) would come of it... if anything it would seem to encourage more foolishness such as unilateralism.

One poster made the bold claim that the war was illegal, per US law. When someone makes a factually erroneous claim like that, it is important to correct that error. There are simple-minded people on both sides of the issue, and we wouldn't want to provide ammunition for those in the anti-war briggade either, or would we?

[Ravenman]

Seems someone went to Court saying that the Law Congress passed wasn't Constitutional, as they could not "give over" their Constitutional authority to the President, or something liek that. The suit lost of course.Will you please, please, please produce a cite for this case if you're going to keep talking about it? If there was such a case, I am all but certain that the court's ruling would be that the war resolution was a "political question" that courts cannot rule on, or, even more certainly, that the individual bringing the suit did not have standing to bring about an injunction against the President.

I would be stunned -- absolutely floored -- if a court actually weighed in with an approval of an act of Congress pertaining to the authorization of war, because, to my knowledge, no court has ever taken a stand on whether a particular war was constitutional or not, based upon the merits of the situation. So, again, either cough up the cite or stop repeating something you can't back up.

John Mace -- your cite of the Supreme Court case is well-taken, but I do not believe that it actually settles anything. If Congress had passed a law stating that "the US does not have to appeal to the UN for permission to authorize military force," the bit of law you stated would clearly apply, because then there would be a conflict between the Constitution, a treaty, and a law.

However, the 2002 use of force resolution was dead silent on the process by which the war power in the Constitution is to be used. The statute did not seek to waive or otherwise strike down the portion of the UN Charter that requires the US to seek UN acceptance of a war that is not in response to an actual, armed attack on the US.

Rather than leaping right to the conclusion that there is a conflict between the 2002 war resolution and the UN Charter, you must first attempt to come to a conclusion that there is no conflict between them. Which, in fact, is my reading: the 2002 war resolution empowered the President to begin a war, but the UN Charter required the United States (note, not the President, but the political entity known as the US) to obtain UN approval for the war. That was not done. But there is no conflict, in this case, between the Constitution, a treaty, and a law, except that the United States did not carry out its treaty obligations to obtain a UN resolution approving force.

[John Mace]

John Mace -- your cite of the Supreme Court case is well-taken, but I do not believe that it actually settles anything. If Congress had passed a law stating that "the US does not have to appeal to the UN for permission to authorize military force," the bit of law you stated would clearly apply, because then there would be a conflict between the Constitution, a treaty, and a law.

However, the 2002 use of force resolution was dead silent on the process by which the war power in the Constitution is to be used. The statute did not seek to waive or otherwise strike down the portion of the UN Charter that requires the US to seek UN acceptance of a war that is not in response to an actual, armed attack on the US.

Rather than leaping right to the conclusion that there is a conflict between the 2002 war resolution and the UN Charter, you must first attempt to come to a conclusion that there is no conflict between them. Which, in fact, is my reading: the 2002 war resolution empowered the President to begin a war, but the UN Charter required the United States (note, not the President, but the political entity known as the US) to obtain UN approval for the war. That was not done. But there is no conflict, in this case, between the Constitution, a treaty, and a law, except that the United States did not carry out its treaty obligations to obtain a UN resolution approving force.

You make some good points, but if you read the full text of the resolution (http://www.yourcongress.com/ViewArticle.asp?article_id=2686), it does not appear that Congress intended for the use of force to be contingent on a UNSC vote. There are numerous references to IRaq being in violation of UNSC resolutions, of Iraq being a threat to the US:

Whereas Iraq both poses a continuing threat to the national security of the United States...

and (surprisingly) Iraq harboring terrorists:

Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq; Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of United States citizens.

Given the emphasis in the resolution on the security of the US, and the numerous references to UNSC resolutions, and yet NO REFERENCE to the desire to have the use of force subject to the approval of the UNSC, it would seem reasonable to conclude that no such approval was deemed necessary.

The lead up to the war clearly excluded a UNSC vote on the use of force, and Congress had ample time to clarify that requriment if it desired that requirement to be met.

I have no doubt that, had this issue been sent to the Supreme Court and found to be valid (ie, that the Iraq resolution was in violation of the UN treaty), Congress would have easily passed a clarifying resolution explicitly stating that no UNSC approval was necessary. That is, of course, my opinion. But do you think otherwise?

[John Mace]

This article (http://www.cnn.com/2002/ALLPOLITICS/09/22/us.iraq.debate/) gives some interesting insight into the debate going on before the resolution was passed. Some Congressmen clearly raised the issue that the resultion should include a provision about the UNSC authorizing force:

To Levin [Senate Armed Services Committee Chairman, D-Michigan], however, U.N. support is crucial.

"The United Nations should issue the ultimatum, put down very clear dates ... and I believe that the United Nations should authorize member states to use force to implement those resolutions," Levin said.

And others explicitly stated that it should not be in the resolution:

Biden, chairman of the Senate Foreign Relations Committee [D-Delaware], diverged from Levin slightly. While U.N. support is important, Biden said on NBC's "Meet the Press," the United States "should reserve the right to move alone regardless of what the U.N. does."

The idea of UNSC approval was clearly hotly debated, and yet was not included in the resolution. What conclusion can be drawn for that, other than that no apporval was required?

[Ravenman]

I have no doubt that, had this issue been sent to the Supreme Court and found to be valid (ie, that the Iraq resolution was in violation of the UN treaty), Congress would have easily passed a clarifying resolution explicitly stating that no UNSC approval was necessary. That is, of course, my opinion. But do you think otherwise?You are 100% right. Congress didn't just overlook any reference to UN authorization, it rejected several attempts to amend the resolution to make explicit such a requirement.

Here's where you and I differ, however: I say the UN Charter is the law of the land, and that it must be followed unless it is explicitly waived, in accordance with Article VI of the Constitution. At no time was the UN Charter waived, either by law or by Presidential decree. One cannot strike down or waive the law of the land by insinuation or implication; it is not sufficient to note that Congress was silent on the UN in passing the war resolution. Again, you must also realize the distinction between Congress authorizing the President to undertake war, and the treaty requirement that the United States (not just the President) achieve a UN authorization for war.

Let me put this another way: If Congress enacts a new law about financial services, all other existing laws on financial services are not sticken down unless Congress specifically says so. You can't then go ahead and say that Congress struck down one line of the UN Charter, which is the law of the land, without actually saying it in the law that was passed.

[DrDeth]

Will you please, please, please produce a cite for this case if you're going to keep talking about it? If there was such a case, I am all but certain that the court's ruling would be that the war resolution was a "political question" that courts cannot rule on, or, even more certainly, that the individual bringing the suit did not have standing to bring about an injunction against the President.

I would be stunned -- absolutely floored -- if a court actually weighed in with an approval of an act of Congress pertaining to the authorization of war, because, to my knowledge, no court has ever taken a stand on whether a particular war was constitutional or not, based upon the merits of the situation. So, again, either cough up the cite or stop repeating something you can't back up.
.
It's there, and in fact it's here on this board, maybe a year ago. I am pretty sure one of our lawyers here can dig it up. It's ok for you to not accept it until i do, but it isn't really 100% on target here.

[John Mace]

Ravenman:

Again you raise some good points, but we're talking about how the court would rule, not what you or I think. There is ample precedence for the US to use force w/o the approval of the UN (from Vietnam* to Granada to Serbia to Afghanistan). Further, the resolution itself speaks of the action as being at least partly defensive (my bolding):

Whereas Iraq's demonstrated capability and willingness to use weapons of mass destruction, the risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces or provide them to international terrorists who would do so, and the extreme magnitude of harm that would result to the United States and its citizens from such an attack, combine to justify action by the United States to defend itself...

You can argue about whether or not that statement is correct (wrt the actioni being defensive), but it's in the resolution and was voted on by Congress, and that's all that really matters.

I just can't see that the court would rule that the action was illegal, per US law. Can you?

*AFAIK

[Ravenman]

Ravenman:There is ample precedence for the US to use force w/o the approval of the UN (from Vietnam* to Granada to Serbia to Afghanistan).

I just can't see that the court would rule that the action was illegal, per US law. Can you? John, the question boils down to this: is the UN Charter the law of the land in the US or not? The doctrines of "might makes right" or "a seldom enforced law is no law at all" are simply dodges for a very simple, factual question. Do you think that the UN Charter is the law of the land? If not, why not?

Also, if the UN Charter isn't the law of the land, then what good are treaties? Why does the Constitution say they are the law of the land? Are the NATO Charter and the Geneva Conventions also meaningless?

And no, I do not believe that any US court would *ever* rule on the merits of the constitutionality of a war. That doesn't mean that all wars are legal. If Courts found against the Executive, and the Executive refused to honor the court's decision, we'd be in a constitutional crisis. There isn't a District Judge in the land who would take the risk of a showdown of a weak Judiciary vs. a powerful Executive. Courts have, and will continue to, dodge the question.... just like you're doing? ;)

[John Mace]

John, the question boils down to this: is the UN Charter the law of the land in the US or not? The doctrines of "might makes right" or "a seldom enforced law is no law at all" are simply dodges for a very simple, factual question. Do you think that the UN Charter is the law of the land? If not, why not?

I disagree. My opinion (or yours) is not what matters. Only the SCotUS's opinion matters. But if you want my opinion, it would be: I'm not sure. Frankly, I think most of what the federal govenment does these days is unconsitutional. So what"

As a strong proponent of original intent in constitutional matters, I could see some validity to the argument that the the clause of the UN charter in question is unconsitutional. The consitution gives Congress the sole authority to declare war. By subjecting that authority to the UN in some cases, the consititution has been effectively amended to limit the authority of Congress. That bypasses the explicitly stated process by which the constitution can be amended.

But even if I ignore that argument, and accept the UN Charter as the law of the land, it does not follow that the Iraq war resolution was illegal, for the reasons I already stated, in particular the "defense" clause I quoted earlier.

And no, I do not believe that any US court would *ever* rule on the merits of the constitutionality of a war. That doesn't mean that all wars are legal. If Courts found against the Executive, and the Executive refused to honor the court's decision, we'd be in a constitutional crisis. There isn't a District Judge in the land who would take the risk of a showdown of a weak Judiciary vs. a powerful Executive. Courts have, and will continue to, dodge the question.... just like you're doing? ;)

What makes you so sure that the Executive would refuse to honor the court's decision? I don't see it that way at all. As I said earlier, Congress would pass, probably the next day, a resolution explicitly stating that UN approval was not needed. Problem solved.

[PatriotX]

As I said earlier, Congress would pass, probably the next day, a resolution explicitly stating that UN approval was not needed. Problem solved.
Wouldn't it take an ammendment to the Constitution instead of a resolution? Also, IIRC, Congressional resolutions are generally not even as potent as laws.

[John Mace]

Wouldn't it take an ammendment to the Constitution instead of a resolution? Also, IIRC, Congressional resolutions are generally not even as potent as laws.

I don't know the difference, but I have no doubt that Congress would pass a statute, rather than a resolution, if that is what it took. Let's not kid ourselves. Congress authorized the president to use force against Iraq.

[PatriotX]

I don't know the difference, but I have no doubt that Congress would pass a statute, rather than a resolution, if that is what it took. Let's not kid ourselves. Congress authorized the president to use force against Iraq.
Wouldn't it take an ammendment to the Constitution rather than a statute? Or at least a de-ratification of the entire treaty (UN Charter)?

[Loopydude]

It would appear that national legislative bodies are beholden to international treaty only so long as nations lack the power to avoid the imposition of international will. The US happens to be one of the nations fully able to resist the will of any other nation, and virtually all conceivable collections of nations, opposed to our own.

Whatever the purported legality or illegality of ignoring UN Charter (and it's obvious that's what happened with Iraq, despite the wishful thinking of Bush and Blair administration supporters), it makes little difference, as I've said above.

Our actions invalidate the UN. What's outrageous is our bold hypocrisy in attempting to use the UN to legitimize our escalating hostility toward Iraq. In so doing, we not only rendered the UN irrelevant, we tainted it with our ill-conceived War on Terror. Apparently BushCo. wasn't content to castrate the UN; they wanted to make it a propaganda front as well.

[Diogenes the Cynic]

Wouldn't it take an ammendment to the Constitution rather than a statute? Or at least a de-ratification of the entire treaty (UN Charter)?
That's what I've been trying to argue but the Constutution is not clear about it.

[John Mace]

Wouldn't it take an ammendment to the Constitution rather than a statute? Or at least a de-ratification of the entire treaty (UN Charter)?

No. Go back to the link I provided early of the SC case. If a statute is passed subsequent to the treaty, the statute nullifies the treaty. So, Congress could address Ravenman's issue by explicitly saying that UN approval was not needed. No need to amend the constution to nullify a treaty.

[pervert]

Can I make this easier for you, SimonX and Diogenes the Cynic? Laws often conflict one another. When they do, the later law is taken to nullify the earlier. Laws can be passed in more than one way. They can be statutes or they can be ratified treaties.

The constitution is quite clear. It says simply that congressional laws and treaties ratified by congress are superior to state laws or state constitutions. It does not imply in any way that treaties are superior to statutes.

[Diogenes the Cynic]

Congress doesn't have a right to say what UN approval is or is not needed for. Congress cannot circumvent international law.

BTW, any argument rooted in a justification of self-defense is a complete non-starter. An action is not defensive just because a president says it is. The invasion of Iraq was a non-defensive attack on the sovereignty of another country and there is no circumstance under which such an action can be called legal under the UN Charter.

[John Mace]

Simon: The post I was talking about is #41 on page 1 of this thread.

Don't get hung up on treaties being "the supreme law of the land". The Supremacy Clause says exactly the same thing about statutes, which make them co-equal. It no more takes a constitutional amendment to undo a treaty than to undo a law.

[pervert]

Congress doesn't have a right to say what UN approval is or is not needed for. Congress cannot circumvent international law.I'm sorry, but this is such an odd statement that I cannot parse it. Doesn't the word ratify ring a bell?

BTW, any argument rooted in a justification of self-defense is a complete non-starter. An action is not defensive just because a president says it is. The invasion of Iraq was a non-defensive attack on the sovereignty of another country and there is no circumstance under which such an action can be called legal under the UN Charter.
Which is your opinion. That's fine. But the fact of the matter is that any action can be acceptable under the UN charter if the appropriate people say it is. You are correct that this is not the President of the United States. But it is also not you.

Although he has more authority on this issue, it is not Kofi Anon either.

[DrDeth]

Ravenman came up with a cite. I am not sure it is the case I was talking about, but it's nice he found it.

http://www.worldrevolution.org/article/643

DtC- there is no such thing as "International Law". Really. No law that wasn't at the very least ratified by Congress has no authority at all in the USA- or AFAIK, in most Soveriegn Nations. Congress can indeed circumnet "international alw" all they want, as "international law" has no authority in the USA- outside certain treaties- all of which are secondary to the Constitution.

[cj finn]

Once the Senate ratifies a treaty, that treaty is coequal with federal laws. The treaty is therefore to be considered the same way every federal law is treated, from speeding tickets on federal property to antitrust laws.

If you will recall, federal laws are subject to the US constitution. Accordingly, a treaty cannot give the federal government more power than it is otherwise allowed by the constitution, but a treaty may grant powers that are within the boundaries of what is constitutionally allowed.

International law is the term used to describe the framework of treaties to which countries belong. Each of the countries ratifies the treaty in a manner analogous to manner in which the US does, and subsequently, each member country is subject to international law to the extent permitted by their respective constitutions.

Because treaties are law in the US, it is quite possible for an act of the US government to be illegal in the traditional sense. If the treaty was duly adopted and its terms were abrogated, then those abrogating acts are ipso facto illegal. The issue is then whether there is a mechanism for enforcing the treaty against the offending party.

Congress cannot change treaties. They can repudiate them, but they cannot alter them to suit their tastes. The present administration would have us believe that they were acting in accordance with the UN treaty in invading Iraq. That is a total crock. The US can tell the UN to fuck itself, but without an explicit resolution giving the US the authority to invade a sovereign country, the US is in violation of the treaty and the invasion is therefore technically illegal. But again, since the UN could do nothing to stop the US in this case, the question is kind of moot isn't it?

While the UN is/was powerless to stop the US actions, the US cannot now turn around and claim that their actions were perfectly legal. They were not.

CJ

[Diogenes the Cynic]

Sorry. It doesn't work that way. The US dies not get to autocratically decide that whatever it deems legal for it to do within its borders is therefore legal for it do do anywhere else.

[pervert]

Yes it does. It certainly has to ask whoever's borders your talking about, but the decision is up to them together.

Really I cannot understand your obstinance on this issue. If you are saying it should not work that way, or you don't want it to work that way fine. Everyone is entitled to thier own opinion. But you are saying it does not work that way, when it clearly does. Can you explain the mechanism by which you think "it" will be prevented from working this way?

[pervert]

Because treaties are law in the US, it is quite possible for an act of the US government to be illegal in the traditional sense. If the treaty was duly adopted and its terms were abrogated, then those abrogating acts are ipso facto illegal. The issue is then whether there is a mechanism for enforcing the treaty against the offending party.Quite true. But duely enacted congressional statutes are slightly different. If any government official did something which was forbidden by duely enacted treaty then they would be prosecutable or actionable under the United States constitution. There could always be portions of the treaty which allowed foriegn governments to prosecute them also.

However, Congressional statutes are coequal with treaties. A statute does not change the treaty, that is it does not alter the agreement. But it can make a United States law in conflict with the treaty. In such a case, since the treaty and the law are coequal, the new law becomes the law of the land. It does not, again, alter the treaty. Any provisions of the treaty which other countires might wish to avail themselves of would still be valid. However, if someone wanted to sue the government, or prosecute the actors under United States law, they would be SOL.

As I said, the other signatories of the treaty could avail themselves of whatever provisions the treaty granted them to object or sanction the US.

[Ravenman]

You all are getting wrapped around the axle. The congressional war resolution and the UN Charter were never in conflict. They are both laws, and the President must follow them both.

If you really want to go to the insanity that the Iraq war resolution supercedes the UN Charter, which is about as tin-foil hat wrong as one could get, it is my understanding that a newer statute, when deemed in conflict with an older one, does away with the whole old law, not just one section. We have not, I repeat not, withdrawn from the UN. The UN Charter is still the law of the land.

Ravenman came up with a cite. I am not sure it is the case I was talking about, but it's nice he found it.... DtC- there is no such thing as "International Law". Really.You should mention that the cite that I found proved you wrong. There was no court case that ruled the war constitutional. As I suspected, the court refused to rule on the lawsuit.

And you are wrong again on international law.

See Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796): "when the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement."

See the letter from Thomas Jefferson, Secretary of State, to M. Genet, French Foreign Minister, June 5, 1793, which construes the law of nations as "an integral part" of domestic law.

And finally, Foster v. Neilson, 27 U.S. (2 Pet) 253, 314 (1828), in that international agreements entered into by the US are "to be regarded in court of justice as equivalent to an act of the legislature, wherever it [the agreement] operates of itself, without the aid of any legislative provision."

I disagree. My opinion (or yours) is not what matters. Only the SCotUS's opinion matters. But if you want my opinion, it would be: I'm not sure. Frankly, I think most of what the federal govenment does these days is unconsitutional. So what"Give me a break. I think you're taking, as a starting point, the stance that we don't need to be bound by the UN Charter, and then struggling to find some justificiation for that stance. It just doesn't wash. Either the Constitution accepts treaties of the law of the land, or it doesn't.

The consitution gives Congress the sole authority to declare war. By subjecting that authority to the UN in some cases, the consititution has been effectively amended to limit the authority of Congress. Congress still has the Constitutional power to declare war. Nobody in their right mind says that the war resolution passed by Congress was either unconstitutional or a violation of international law. The UN Charter doesn't bind Congress because it doesn't say, "legislatures shall not pass war resolutions.' The UN Charter only limits the execution of wars, which is a limit on the United States that pertains most directly to the President. Congress doesn't invade foreign countries, the President does.

But even if I ignore that argument, and accept the UN Charter as the law of the land, it does not follow that the Iraq war resolution was illegal, for the reasons I already stated, in particular the "defense" clause I quoted earlier.If you're willing to accept the UN Charter as law in this area (which I realize you are not), the UN guarantees countries the "inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN." A preemptive, or preventative war, is not authorized by the UN.

In terms of customary international law, a preemptive attack is only justified if a) the threat is real and imminent, and b) the response to the threat is proportional. The war in Iraq clearly fails on the first count. So, it was also illegal by the standards of customary international law.

What makes you so sure that the Executive would refuse to honor the court's decision? You misunderstand. I wasn't talking about the Iraq war, I was talking about ANY war. No federal judge anywhere is willing to take the risk of precipitating a constitutional crisis between the Executive and the Judiciary on matters of national security. Courts have always dodged this issue. Ask any lawyer around here.

[Diogenes the Cynic]

I'm just going to shut up from here on out and let Ravenman do the talking on this issue. He does a much better job of it than I do.

[John Mace]

You misunderstand. I wasn't talking about the Iraq war, I was talking about ANY war. No federal judge anywhere is willing to take the risk of precipitating a constitutional crisis between the Executive and the Judiciary on matters of national security. Courts have always dodged this issue. Ask any lawyer around here.

This is the crux of the whole matter, wrt US law! If no judge is going to rule that the law or action is illegal, then it is in fact legal. And your opinion on this matter is no different from mine when I say the minimum wage is illegal (unconstitutional).

[DrDeth]

And you are wrong again on international law.

See Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796): "when the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement."

See the letter from Thomas Jefferson, Secretary of State, to M. Genet, French Foreign Minister, June 5, 1793, which construes the law of nations as "an integral part" of domestic law.

And finally, Foster v. Neilson, 27 U.S. (2 Pet) 253, 314 (1828), in that international agreements entered into by the US are "to be regarded in court of justice as equivalent to an act of the legislature, wherever it [the agreement] operates of itself, without the aid of any legislative provision."

Give me a break. I think you're taking, as a starting point, the stance that we don't need to be bound by the UN Charter, and then struggling to find some justificiation for that stance. It just doesn't wash. Either the Constitution accepts treaties of the law of the land, or it doesn't.

Congress still has the Constitutional power to declare war. Nobody in their right mind says that the war resolution passed by Congress was either unconstitutional or a violation of international law. The UN Charter doesn't bind Congress because it doesn't say, "legislatures shall not pass war resolutions.' The UN Charter only limits the execution of wars, which is a limit on the United States that pertains most directly to the President. Congress doesn't invade foreign countries, the President does.

If you're willing to accept the UN Charter as law in this area (which I realize you are not), the UN guarantees countries the "inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN." A preemptive, or preventative war, is not authorized by the UN.

In terms of customary international law, a preemptive attack is only justified if a) the threat is real and imminent, and b) the response to the threat is proportional. The war in Iraq clearly fails on the first count. So, it was also illegal by the standards of customary international law.



You misquoted me. "DtC- there is no such thing as "International Law". Really. No law that wasn't at the very least ratified by Congress has no authority at all in the USA- or AFAIK, in most Soveriegn Nations." Is what I really said. In other words, if we haven't ratified a Treaty, the US isn't bound by "international law"- whatever the hell that is. In fact during the League of Nations period, Congress made that rather clear. The USA is not bound by any Law that isn't Consitutional.

The USA has taken the postition that the invasion of Iraq was "a preemptive attack is only justified if a) the threat is real and imminent, and b) the response to the threat is proportional". Altho is it your OPINION that the war "clearly fails on the first count", there is only one body that gets to make that call. And, it is not a few posters on the SDMB- it is the UN Security Council. Unless you are a delegate to that body, stating that "The war in Iraq clearly fails on the first count" is just a fart in the wind. The UN Security Council apparently thinks otherwise. True, I will agree that their decision (or actually lack of one) is completely politically motivated, but the UN is a poltical body- they make many many decisions that are not based upon what's "right" but upon what is Politically expediant. Live with it. :p

Or, write them a nice letter staing that you know more about International Law than they do, and you'd be happy to come over there and explain it to them. :rolleyes: :dubious: :p

[Ravenman]

Is what I really said. In other words, if we haven't ratified a Treaty, the US isn't bound by "international law"- whatever the hell that is. It doesn't matter how you phrase it, you're still off. Customary international law -- which is international law that has not been formed through treaties and executive agreements -- are considered real law by the courts, so long as domestic legislation does not override or contradict. See Ware and Jefferson cited above. Customary international law is created through the general assent of nations to certain principles, such as the Caroline incident in the early 19th century that established guidelines for preemptive war that I refered to earlier. See more on Caroline on pages two and three. (http://www.thewashingtonquarterly.com/03spring/docs/03spring_arend.pdf)

Altho is it your OPINION that the war "clearly fails on the first count", there is only one body that gets to make that call. And, it is not a few posters on the SDMB- it is the UN Security Council. Unless you are a delegate to that body, stating that "The war in Iraq clearly fails on the first count" is just a fart in the wind. The UN Security Council apparently thinks otherwise.First, this is the Straight Dope Message Board. Folks are allowed to voice their opinions. Last time I checked, one need not be in a position of authority on a particular issue in order to debate and make their thoughts known. I will note, however, that it is awfully helpful in a debate to have some familiarity with the workings of a particular matter, such as international law, before airing opinions that are out of left field and unsubstantiated by fact.

Second, I have no clue what you're talking about when you imply that the UNSC authorized the war due to imminent threat. It didn't happen. I can only assume that I am misunderstanding the point you're trying to make. The point is moot anyway, because the UNSC does not have to rule that a country may act to defend itself against an actual, imminent threat; international law guarantees that right. Under the UN Charter, the UNSC must only act to authorize an offensive war, or a preventative war, which the facts clearly indicate was the nature of the Iraq war.

[Diogenes the Cynic]

The UN Charter is a ratified treaty, Deth.

[DrDeth]

It doesn't matter how you phrase it, you're still off. Customary international law -- which is international law that has not been formed through treaties and executive agreements -- are considered real law by the courts, so long as domestic legislation does not override or contradict. See Ware and Jefferson cited above.
Second, I have no clue what you're talking about when you imply that the UNSC authorized the war due to imminent threat. It didn't happen. .

1. What Jefferson said in a letter 200 years ago :rolleyes: does not bind the USA to anything. Show me where one person went to prison in the USA for violating "international law", where they had no US statute that covered the crime. :dubious: If it isn't illegal under US Law, it isn't illegal in the USA. Note that for many purposes a RATIFIED treaty is US law. But if it isn't ratified, it is meaningless within our borders. Yes DtC- the parts of the UN charter have been ratified. AFAIK, however, there are some decisions made by the UN under changes in the charter that we have decided not to accept & ratify.

2. No they didn't. They didn't have to. What they have to do is say the war is "Illegal"- which they have failed to.

Let me give you a real world example. Say the Mayor of a large City shot an intruder in his back yard. That could be murder, in fact the stautues would say it was. The Mayor claims he was in imminent fear for his life, as he says the intruder had a weapon. No such weapon was found. But the DA declines to press charges, and the Mayor isn't even arrested. Hmm, could it be for Political reasons? Certainly if could. But the fact remains- that the Mayor still isn't guilty of an illegal act because; the only group to decide such an action is illegal is the People (in the form of the DA, a Judge and a Jury). And the "People" have decided to ignore the act, accepting the Mayors rather dubious story. No charges, trial and conviction, no illegal act. And no matter how many letters-to-the-editor you write insisting that the Mayor IS guilty can change that- until a JURY makes that decision.


The Security Council has declined to hear the case and make a decision on whether the USA's act was illegal under the Charter or not. Thus, in the absence of such a decision, such act is legal. No matter what you think, or the reasons for the lack of a decision. Now, of course- you have every right to say that you think that the Security Council should make such a decision, as the USA in your opinion has clearly violated the Charter. :dubious: However, until & when the Security Council makes such a decision (a day after hell freezes over), the uSA is "innocent until proven guilty". :p I agree our main reason turned out to be nearly entirely wrong. But apparently the SC doesn't care. So- until they do care, the War remains legal. It is legal in the USA under US law, and there has been no successful challenge under treaty law. :p

[Diogenes the Cynic]

You have it backwards. The UNSC has to say it's legal. The burden of proof is on us not them.

[Ravenman]

Show me where one person went to prison in the USA for violating "international law", where they had no US statute that covered the crime. International law is not criminal law. But I can show you a case in which a person was awarded a civil judgment based solely upon customary (ie, unwritten) international law. The Judiciary Act of 1789 included the Alien Tort Claims Act, which established Federal court jurisdiction over tort claims relating to "the law of nations." (See 28 USC 1350.)

In 1980, in Filartiga v. Pena-Irala, a former police officer was found liable for damages because he had tortured the plantiffs while in Paraguay. Federal courts found that the police officer's torture constituted a violation of the law of nations. Summary and text here. (http://www.icrc.org/ihl-nat.nsf/39a82e2ca42b52974125673e00508144/27721c1b47e7ca90c1256d18002a2565?OpenDocument) Choice quotes: "Upon ratification of the Constitution, the thirteen former colonies were fused into a single nation, one which, in its relations with foreign states, is bound both to observe and construe the accepted norms of international law, formerly known as the law of nations....
Having examined the sources from which customary international law is derived the usage of nations, judicial opinions and the works of jurists (16) we conclude that [HN5] official torture is now prohibited by the law of nations."

2. No they didn't. They didn't have to. What they have to do is say the war is "Illegal"- which they have failed to.The first time that the UN Security Council said that Iraq was in violation of its post-1991 resolutions was on November 8, 2002. By your thinking, Iraq did not violate any international law for 11 years, because the UN Security Council did not say so.

Of course, this is an absurd chicken-and-the-egg argument. Iraq was very clearly in breech of UN resolutions prior to November 11, 2002, and the US was clearly in violation of the UN Charter as of March 19, 2003. One must have blinders on not to acknowledge the overwhelming amount of fact in each claim.

I honestly have no idea why someone is putting so much effort into defending an invasion as legal under international law if one also makes the bizarre claim that international law does not exist. No matter how much I may disagree with him, at least there is forthrightness in Richard Perle's acknowledgement (http://www.guardian.co.uk/Iraq/Story/0%2C2763%2C1089158%2C00.html) that the war violated international law, but that it was worth violating international law for.

One can't ride two horses at one time: either acknowledge that international law exists and was violated; or stick by your guns and believe that the the United Nations and international law is meaningless. The assertion that the UN Security Council could, in theory, declare the war illegal is straddling two mutually exclusive stances: either the UN Charter is meaningless, and the UN's condemnation of Saddam is, by extention, without merit; or the UN Charter means something and the United States must abide by it. There is no middle ground. You can't be intellectually honest and argue both sides.

[pervert]

You have it backwards. The UNSC has to say it's legal. The burden of proof is on us not them.
I'm not sure why you say this. You have repeated it many times but never backed it up. disputes often work in the fasion described. It is the agrieved party which must proclaim his agrevation and then provide substance to it. It would be a strange world indeed if every action taken by every nation had to be proved legal.

[pervert]

The first time that the UN Security Council said that Iraq was in violation of its post-1991 resolutions was on November 8, 2002. By your thinking, Iraq did not violate any international law for 11 years, because the UN Security Council did not say so.I don't understand this either. The violations occured but teh finding of such did not occur until later. Just as in the case of the Iraqi invasion. If the UN ever finds it to be illegal, it will have been illegal from the begining. Until then, however, any statements to that effect are just statements.

[DrDeth]

International law is not criminal law. But I can show you a case in which a person was awarded a civil judgment based solely upon customary (ie, unwritten) international law. The Judiciary Act of 1789 included the Alien Tort Claims Act, which established Federal court jurisdiction over tort claims relating to "the law of nations." (See 28 USC 1350.)

In 1980, in Filartiga v. Pena-Irala, a former police officer was found liable for damages because he had tortured the plantiffs while in Paraguay. Federal courts found that the police officer's torture constituted a violation of the law of nations.

The first time that the UN Security Council said that Iraq was in violation of its post-1991 resolutions was on November 8, 2002. By your thinking, Iraq did not violate any international law for 11 years, because the UN Security Council did not say so.

Of course, this is an absurd chicken-and-the-egg argument. Iraq was very clearly in breech of UN resolutions prior to November 11, 2002, and the US was clearly in violation of the UN Charter as of March 19, 2003. One must have blinders on not to acknowledge the overwhelming amount of fact in each claim.


One can't ride two horses at one time: either acknowledge that international law exists and was violated; or stick by your guns and believe that the the United Nations and international law is meaningless. The assertion that the UN Security Council could, in theory, declare the war illegal is straddling two mutually exclusive stances: either the UN Charter is meaningless, and the UN's condemnation of Saddam is, by extention, without merit; or the UN Charter means something and the United States must abide by it. There is no middle ground. You can't be intellectually honest and argue both sides.

1. Torture is illegal in the USA is it not? And, the Court (if you read your case) did not base it decision on any one "international law" (although it quoted many) it based it on "the Law of Nations". "There now exists an international consensus that recognizes basic human rights and obligations owed by all governments to their citizens .... There is no doubt that these rights are often violated; but virtually all governments acknowledge their validity." This is what is also known as "Crimes against Humanity. Of course, such "crimes against Humanity" exist (and were much of the basis of the Nuremburg trials), but they are not illegal in the USA because some treaty that the USA did not ratify says so- they are illegal because they are generally accepted as being outside any statute, International or National. No Law or treaty passed or signed by anyone/anywhere that was not ratified by the USA has any validity inside the USA. However, certainly "Crimes against Humanity" are still illegal -whether or not any Law or treaty makes them so . The "Law of Nations" does not recognize any particular law, or treaty- it treats all of them as a "body" of law, and weighs them against humanitarian principals.

2. If a Man commits a murder 11 years before he is tried, is he guilty of that crime during those 11 years? Of course not. He is guilty as of the time he is convicted- of a crime 11 years prior.

3. Where did I say that the UN is meaningless? All parts of the UN Charter that have been ratified by the US Senate are Law in the USA insofar as they do not violate the Constitution. If they contridict a Federal Statute, then the Courts must decide which of the two are binding in the USA. I beleive that the Charter establishing the UNSC was indeed ratified by the USA, thus; it stands here. If the UNSC ruled that the USA was in violation, then indeed we'd have a conflict between Treaty and Statute, and SCOTUS would likely have to make a ruling. In that case, I'd have to say that until then, your argument that the USA's act was Illegal would stand until we heard from SCOTUS. I'd stand behind whatever SCOTUS ruled, as that's what the Constitution says.

So far, the USA hasn't even been charged with violating the Charter. Thus, technically, it isn't "guilty". I cheerfull admit that if a nation with a lot less clout did what we did, there certainly would be charges (at least) brought against them in the UNSC. We have evaded the charges so far because of our huge clout (but- see again, my parable about the mayor).

Now, if you ask- "was the Invasion Immoral or Unethical?" then you have another debate entirely. I have consistently said that we should not have invaded a Soveriegn nation without UN approval.

[furt]

You have it backwards. The UNSC has to say it's legal. The burden of proof is on us not them.REpeated assertion does not make this any more persuasive.

Does this apply to all military action? And if you offer up a "self-defense" exception, please spell out who gets to determine what is or is not legitimate self-defense, and whether or not they need to be consulted in advance.

[Diogenes the Cynic]

REpeated assertion does not make this any more persuasive.

Does this apply to all military action? And if you offer up a "self-defense" exception, please spell out who gets to determine what is or is not legitimate self-defense, and whether or not they need to be consulted in advance.
Under the UN Charter, any non-defensive attack on the sovereignty of another country is an illegal act of aggression. It is de facto illegal. It is not something the UNSC has to prove.

What makes it defensive is if it is a direct response to an armed attack. In any other case, the UNSC must athorize force.
(UN Charter, Article 39 (http://www.un.org/aboutun/charter/chapter7.htm))
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
The "imminent threat" definition of self defense was actually contrived by the Bushies (http://www.whitehouse.gov/nsc/nss5.html) in 2002.

The UN Charter does not accept any justification for an attack on sovereignty other than as a response to an armed attack. This is what the US helped to author, this is what we signed, this is what we ratified. The attack on Iraq was not a response to an armed attack, nor would it have even been justifies under the Bushie's recooked definition of self-defense.

And just to cut off any "Saddam is a bad guy" angle to justify the invasion, please see United Nations General Assembly Resolution 3314, Article 5, section 1 (http://jurist.law.pitt.edu/3314.htm)
1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.
It's an armed attack or nothing.

[Diogenes the Cynic]

BTW, just so we're all clear, theoretical arguments aside, we all now agree that the invasion of Iraq served no defensive purpose, right? We know the "imminent threat" was bullshit, right?

Just checking.

[pervert]

BTW, just so we're all clear, theoretical arguments aside, we all now agree that the invasion of Iraq served no defensive purpose, right? We know the "imminent threat" was bullshit, right?

Just checking.
No.

[Ravenman]

No.Then why did President Bush go to such lengths to avoid saying "imminent threat?" What was all that hokey about "grave and growing threats," and other verbal contortions?

[DrDeth]

There is little doubt now that any threat was mostly non-existant.

However, let me give you this following hypothetical. There is a convicted Felon. He is known for Assault with a dealy weapon, and several attempted murders. After his last arrest (and conviction), they found a huge cache of illegal weapons in his home. The searchers really thought they didn't get them all, but there was so much, it was hard to tell. Later on he commits several parole violations- refusing to let the police search his home. He is known to have asked around about buying more weapons. A rather doubtful informant insists that the felon is well armed and has a new & dangerous weapon cache. Then they try to arrest him. When doing so, he strikes one, then runs. When cornered- he whirls around and says "You'll never take me alive coppers" and reaches into his coat. The police shoot him down. When they get to him, they find nothing other than a pocketknife- which is legal. When they search his home & such- they again find no illegal weapons- just a few gun catalogs.

Were the police justified in shooting him- even though it turned out later that he wasn't armed with anything dangerous to them?

Of course- because they had a real & justified fear that he was reaching for a gun- even though he wasn't.

[pervert]

Then why did President Bush go to such lengths to avoid saying "imminent threat?" What was all that hokey about "grave and growing threats," and other verbal contortions?I meant no as in we don't all agree that the invasion of Iraq served no defensive pruposes. I do, in fact, think that it served a defensive purpose.

[Diogenes the Cynic]

There is little doubt now that any threat was mostly non-existant.

However, let me give you this following hypothetical. There is a convicted Felon. He is known for Assault with a dealy weapon, and several attempted murders. After his last arrest (and conviction), they found a huge cache of illegal weapons in his home. The searchers really thought they didn't get them all, but there was so much, it was hard to tell. Later on he commits several parole violations- refusing to let the police search his home. He is known to have asked around about buying more weapons. A rather doubtful informant insists that the felon is well armed and has a new & dangerous weapon cache. Then they try to arrest him. When doing so, he strikes one, then runs. When cornered- he whirls around and says "You'll never take me alive coppers" and reaches into his coat. The police shoot him down. When they get to him, they find nothing other than a pocketknife- which is legal. When they search his home & such- they again find no illegal weapons- just a few gun catalogs.

Were the police justified in shooting him- even though it turned out later that he wasn't armed with anything dangerous to them?

Of course- because they had a real & justified fear that he was reaching for a gun- even though he wasn't.
There are several flaws in your analogy. Two of the most obvious ones are that a.) Saddam was allowing inspections in Iraq and it was Bush who made the inspectors leave. b.) Saddam was not "reaching" for anything. He made no threat whatever, either direct or implied, against the US or any other country.

But the most glaring problem with your analogy is that the US is not the "police." The "police" in this case would be the UN. The US is just a group of civilian assholes off the street, with no legal authority of any sort, who were not being threatened or harrassed, and who had already been told by the cops to stay away from that house.

It's more like this. A self-appointed neighborhood watch group wants to get rid of a crackhouse in their neighborhood. They know it was a crackhouse ten years ago when it got raided and busted by the cops. There is no longer any evidence taht it's still a crackhouse. The cops have searched it several times and not found any crack. The cops tell the neighborhood vigilantes to stay away from that house and if any evidence arises that it's become a crackhouse again, the cops (not the vigilantes) will bust the house.

The yahoo vigilantes don't like this. They've been spoiling for a fight. So they decide to go raid the house themselves. They do so. They kill a bunch of people in the house. They shoot the joint up. They set it on fire.

Only thing is, there isn't any crack.
I meant no as in we don't all agree that the invasion of Iraq served no defensive pruposes. I do, in fact, think that it served a defensive purpose.
What did it defend us from?

[Ravenman]

I meant no as in we don't all agree that the invasion of Iraq served no defensive pruposes. I do, in fact, think that it served a defensive purpose.Fair 'nuff. But I believe DtC's point is that there never was an imminent threat from Iraq.

Deth, your analogies with criminal law simply do not shine any light on this debate. The UNSC is not a judge or a jury. The body of international law, with basically one small exception, does not carry remedies relating to imprisonment. There is no concept of presumption of innocence, no prosecutors, and no public defenders.

Your hypothetical cases of police officers and mayors killing people have about as much relevence to this discussion as me comparing the US Army advancing on Baghdad to a Kansas City Chiefs game in which Priest Holmes runs for 200 yards. In fact, I'd argue that football has more in common with war than criminal prosecutions do with the UN Charter.

[Spectre of Pithecanthropus]

All I have to add to the debate is this:

Breeches are archaic trousers that extend to the upper calf, and have a tight closure around the leg there.

Breach means to transgress, violate, or flout, as a treaty.

Learn it, know it, live it.

[pervert]

What did it defend us from?
A danger that many thought existed in the Saddam Husein regime.

Fair 'nuff. But I believe DtC's point is that there never was an imminent threat from Iraq.Yea, I know he meant something more subtle than he posted. But since he did not think the question required any more thought than he put into it, I decided to respond in kind. I don't know why I enjoy teasing him that way. It's almost certainly something wrong with me. :)

[pervert]

But the most glaring problem with your analogy is that the US is not the "police." The "police" in this case would be the UN. The US is just a group of civilian assholes off the street, with no legal authority of any sort, who were not being threatened or harrassed, and who had already been told by the cops to stay away from that house.You start out correct in this paragraph, and then steadily drift away. That the United States should not be considered the police is correct. That the UN should is not. There are no police in international law. Only agreements amongst the members. Finally, far from being told to stay away from the house, America had been told by the UN to keep anyone in the house from being a danger to others.

[Diogenes the Cynic]

A danger that many thought existed in the Saddam Husein regime.
In other words, nothing. It defended us from nothing. It served no defensive purpose.
Yea, I know he meant something more subtle than he posted. But since he did not think the question required any more thought than he put into it, I decided to respond in kind. I don't know why I enjoy teasing him that way. It's almost certainly something wrong with me. :)
What else was there to think about? There was no threat, immiment or otherwise. Bush was lying. End of story.

[furt]

What makes it defensive is if it is a direct response to an armed attack. In any other case, the UNSC must athorize force.Putting aside the questions of how binding that charter is, either de jure or de facto, (Do you seriously believe that any member of the UN is going to forego a conflict they think is in their long-term interest solely because it's "illegal"?), and also leaving aside the obvious problem that the UNSC does not remotely resemble an impartial body, but is a collection of unelected and self-interested nations, the problem with invoking this doctrine is that it is sorely anachronistic.

The UN charter really only addresses one model of warfare; namely, the uniformed armies of one nation-state invading the physical territory of another. This has never been the only model, and in the 21st century it's not even the dominant one. Enforcing constraints on it amounts to constraining only certain kinds of warfare (and certain nations) and in fact ends up encouraging other kinds.

Terrorism, of course is unaffected by it; if Syria deployed a thousand suicide bombers against Israel in one month, by any sensible interpretation, this would be casus belli. But does this count as "an armed attack," especially if Syria maintains plausible deniability of any official, governmental approval? How exactly is Israel allowed to respond in your world?

That is only the most obvious contemporary kind of asymmetrical warfare; there have always been others. Assasination of political leaders and war-by-proxy are old standbys. Biological weapons aren't new, but they are improved; start an epidemic across the border, or cause a famine by setting loose a bug that kills their staple crop. Much more modern, consider the effect a massive denial-of-service attack could have on one of those small island nations that make a chunk of their economies on selling domain names. If that seems implausible, how about one nation hacking into the stock market of another and causing a crash?

The reason these sorts of things don't happen more often is simple: anyone who tried them risks starting a war. And that is more or less why civilizations developed standing armies to begin with: they act as deterrents to conflict, and when conflict does come (as seems inherent in the human species), they ensure it is channelled into a specific form governed by rules and customs, is conducted by specific, identifiable individuals, and can be ended promptly by either or both sides. It acts as a relative protection, rather than a threat to civilians, and when you effectively prohibit only that kind of conflict, you are not moving forward, but backward to the bad old days when war was waged by every member of the tribe against every member of the other tribe by any means necessary.

And I should hasten to add this: if you think that this is an effective check on US power, you are again mistaken. If you prevent any nation from pursuing its ends by one means, it will simply pursue them by another. The US is quite capable of waging war with much uglier weapons than M1 tanks and smart bombs; it has in the past, and quite arguably still does. If you succeeded in convincing the US Supreme Court to rule in your favor, and US administrations were prevented from using force without UNSC approval, you would simply be guaranteeing that future US administrations would instead rely on less-obvious, less-accountable means.

[I Love Me, Vol. I]

John Mace quoted this opinion from a court case:...when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null... Would that mean that for the United States to go to war in violation of the rules set forth in the UN Charter, the USA has "render(ed) the treaty null" therefore the USA has to withraw from the UN to prosecute an illegal war?

[pervert]

John Mace quoted this opinion from a court case: Would that mean that for the United States to go to war in violation of the rules set forth in the UN Charter, the USA has "render(ed) the treaty null" therefore the USA has to withraw from the UN to prosecute an illegal war?
No. Only the part which is in conflict is rendered null.

[buns3000]

I meant no as in we don't all agree that the invasion of Iraq served no defensive pruposes. I do, in fact, think that it served a defensive purpose.
I believe the moon is made out of cheese. Lets be friends!