Actually, we don't need any "permission slip" -- do we?

Great Debates
1

In his State of the Union speech, Bush declared, “America will never seek a permission slip to defend the security of our people.” As a matter of policy, his unilateralism is, in my opinion, foolish, cynical, and arrogant. As a matter of international law, however, his position is perfectly sound. Some people I’ve talked to seem to assume that the United States somehow violated international law by invading Iraq without the U.N.'s approval. But that’s not true, is it? Any independent, sovereign state has the right, under international law, to make war on any other, even when such war constitutes a naked act of aggression, completely unprovoked and unjustified. That is one of the essential elements of sovereignty. To my knowledge, none of the member states of the U.N. gave up this right when they joined the organization. Saddam Hussein committed no crime under international law when he attacked Iran, nor when he invaded Kuwait; nor did Bush when he invaded Iraq.

From George Orwell’s “As I Please” column, Tribune, December 31, 1943:

2

Before we go any further, you better back that silly assertion with some facts. In other words, cite, please.

3

Apparently I didn’t make myself clear, Ravenman. A cite is what I’m fishing for. That is, so far as I know, there is no provision of international law that considers it a crime, as such, for one sovereign state to make war on another. (I am a lawyer, but international law was never my specialty.) I do not like this state of affairs, and I rather hope somebody can contradict me on this point. But it seems to me, as I said, that the right to make war is an essential part of a state’s sovereignty.

4

I don’t think acting with unitlateralism itself is wrong (i.e after a Pearl Harbor), though I was against the war in Iraq when Bush presented his case for war. The biggest fault with it, IMO, was that he basically decided to go to war and not put it to a vote in Congress, which is what he should have had to do (and where the real danger lies IMO).

5

The problem is that George is setting up a straw man argument here.

No one has ever said that the United States does not have the right to defend itself from foreign threats. The problem with the Iraq war is that Iraq was not a threat to the US, which makes his quote irrelevant vis-a-vis Iraq.

And I believe Saddam’s invasion of Kuwait was illegal, though I’ll let more knowledgable Dopers dig up the specific clauses being violated there.

6

Precisely. When I read that, I almost sent an email to all the major dictionary companies, informing them of this perfect example they can use in their ‘strawman’ definition.

7

Quick perusal of the UN Charter says otherwise, to me anyway.

Chapter 1, Article 2, Sections 3 & 4:
#3 All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

#4 All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Granted, I haven’t bothered to read the charter any of the further 18 chapters of the UN Charter, but my interpretation of those two sections is that the United States (and any other UN member state), did in fact give up the right to unilaterally act in a military manner toward another sovereign state.

8

Oh, sweet gravy. I just spent a couple hours hashing this out for SimonX last night in this post (scroll down to get past the silliness – Brainglutton feel free to steal my 6 hypotheticals if you wish).

It both is and isn’t a straw man; it is insofar that no-one has ever said a nation cannot defend itself. Fine, granted.

But that’s leaves open the rather obvious question: who has the right to determine whether a given action is self-defense or aggression? If you say that right resides in the UNSC or some other body, you are de facto giving that body “permission slip” power, at least in the sense that their approval is required for the action to be “OK” (they can’t enforce it, but I think that’s a given).

Okay, fine. And FTSOA I’ll agree with you. Bush, however, disagrees. On what legal basis is our opinion worth more than his? None. We can have the facts, and world opinion and sweet reason on our side, but as any lawyer will tell you, that isn’t enough. You also need a court with jurisdiction to say that we’re right and he’s wrong.

No such court exists, save perhaps the court of world opinion; and you can take solace that Bush has in fact largely lost there.

9

That’s a rather backwards way of making a point in a debate: you can’t prove a point, so you leave others to disprove it?

Well, I’m happy to oblige.
Link. (warning, PDF)

A couple of quick quotes from a paper published by the International Review for the Red Cross: "Most of the rules of humanitarian law were adopted at a time when recourse to war was legal. War was an attribute of sovereignty and was lawful when waged on the orders of the ruler… This war the legal opinion of States and the predominant view of legal doctrine before the French Revolution and in the nineteenth century.

"The situation nowadays is completely different: recourse to war was first restricted by the Covenant of the League of Nations and was then prohibited by the Pact of Paris (or Briand-Kellogg Pact) and by the Charter of the United Nations. Under the terms of the Pact of Paris, the contracting States declared that they concemned “recourse to war for the solution of international controversies” and renounced it “as an instrument of national policy.”

Then it goes on to mention that the UN Charter bars recourse to military action except as authorized by the UN Security Council or as required for self-defense to an armed attack.

10

Okay, so that’s one vote for the Red Cross as the determanative arbiter of international relations.

11

Or rather, the pacts and treaties they mention. But don’t let that stop you from twisting the post around.

12

Bush did mention that Iraq could become a threat… so its not even self defense at all… it pre-emptive defense. Worse. He could be right of course… maybe in 50 years Iraq could have become a menace of sorts directly to the US. :smack:

13

Here’s a link to a treaty that the US is a party to that covers all of these questions:
http://www.yale.edu/lawweb/avalon/decade/decad029.htm
It delineates the conditions for the sanctioned use of military force and who makes the determination of whether that sanction is fitting.
Btw, as a duly ratified treaty, it’s a supreme law of the land as per Article VI of the US Constitution.

Rashak,
The invasion of Iraq was a preventative war by traditionale definitions. Pre-emption is a long established right, but is generally dependent upon the existence of an imminent threat. The Bush Admin has “adapted” the “concept of imminent threat” to effectively change the meaning from pre-emption to preventative. Hence the need for a letter writing campaign to tell Congress that we support a well established, centuries old concept of pre-emption. There’s of course no one who questions pre-emption. Preventative war is questionable though. Rather than say that we engaged in preventative war, the Admin decided to go all newspeak on us and “adapt the concept of imminent threat.”

14

Actually, he did put it to a congressional vote, and Congress gave him the okay.

15

reposted from here

Chapter VII of the Charter.

“The Security Council shall determine…what measures shall be taken…to maintain or restore international peace and security,” and “The action required to carry out the decisions of the Security Council…shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine,”
reposted from here:

This is part of the reason why the Iraq war was endorsed in terms of the threat to the US from Iraq.

If Iraq was an imminent threat to the US then the war is not an agressive war. It is part of a long sanctioned tradition of "preemption “Upon detecting evidence that an opponent is about to attack, one beats the opponent to the punch and attacks first to blunt the impending strike.”

As we all know, “For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.”

IMHO, one could make the case that the need to “adapt the concept of imminent threat” as laid out in the National Security Strategy Chapter V*, led to the actual adaptation the “concept of imminent threat,” in the national security strategy of the USA to include the threat presented by “rogue states and terrorists” and thus a change in what qualifies as preemption.
If Iraq was not an imminent threat to the US then the war may’ve been an example of a “preventive war”. Preventive war is based on the concept that war is inevitable and that it is better to fight now while the costs are low rather than later when the costs are high. It is a deliberate decision to begin a war."

Sure will be glad when the search function starts working again.

16

In short, while no country needs a permission slip to defend itself, to say that attacking Iraq was a case of self defense requires a strange, new, adapted definition of self defense.

17

Is there such a thing as international law?

And if in the forthcoming definition of international law the UN comes up, what if the UN abrogates its responsibilities? Can a member state act unilaterally? In doing so, does that violate international law?

18

Of course there is.

International law is the law which governs relations between states.

Does it exist as a system of law? Yes. It exists because its subjects - states - think it exists. We know this both from their statements and their behaviour. For instance, why would the United States bother to negotiate and ratify a vast network of treaties, or to complain when other states ignored them, if it didn’t believe that there was any imperative to respect treaties? Why would it afford immunity to diplomats accredited to the US, or foreign sovereigns visiting the US, and expect a similar immunity to be afforded to it and its diplomats abroad, if it didn’t think there were rules about this? Why would it bring cases before the International Court of Justice - which it has done many times - if it didn’t think there was any law for that court to administer? And so forth.

Well, the definition doesn’t involve the UN.

But on the wider question. Does unilateral action breach international law? The answer is the same as in domestic law; it depends on the action. If you’re talking particularly about military action, international law recognises an inherent right of self defence. So, to take an uncontroversial example, the Japanese attack on Pearl Harbor undoubtedly was a breach of international law, while the US response to that attack, when it came, undoubtedly was not.

But International Law doesn’t recognise a general right for an individual state to do what (it thinks) the UN ought to be doing, any more than domestic law recognises a general right for the citizen to do what (he thinks) the President ought to be doing.

19

How extensive and obvious does this threat need to be? If a percieved threat from Iraq was limited to the troops we had in the region, would that be enough? If the threat did not consist of army mobilizations, but instead consisted of terrorist like activities, would that have been enough of a threat?

I like the links you provided. I’m not sure they address the kind of nebulous warfare that international terrorism represents. Perhaps I missed something.

20

Well that, of course, is what all the debate here is ultimately about.

The classic formulation comes from the Caroline incident, in which (ironically) the US was the victim of a measure of pre-emptive self-defence (by the UK, from the then colonial Canada). The US Secretary of State of the time formulated two conditions necessary to justify pre-emptive self-defence which, since them, have come to be very widely accepted. They are

(a) pre-emptive self-defence is only justifed where “the necessity of that self-defense is instant, overwhelming, and leaving no choice of means and no moment for deliberation,” and

(b) the force used must not be “unreasonable or excessive”, the “act justified by the necessity of self-defence must be limited by that necessity, and kept clearly within it.”

On the face of it, it would be hard to bring the US action in Iraq within a simple application of those principles. The war was months in preparation; it cannot be said that the necessity of self-defence was “instant” and left no “moment for deliberation”. Nor, indeed, was there much evidence offered, then or now, that Iraq was contemplating an attack with WMDs on the US or on US forces.

But the Caroline case dates from the middle of the nineteenth century and, as you say, international terrorism (or, of more relevance, weapons of mass destruction) were not really in contemplation. How are those principles to be extended and applied today?

The issue arose when Israel bombed an Iraqi nuclear reactor in (I think) 1981. The international community generally condemned that action as illegal. A Security Council resolution condemned the attack as a clear violation of the UN Charter (which allows the use of force in self-defence) and, signficantly, the US did not veto the resolution – a very rare thing for the US at that time. As late as 1981, therefore, the US did not appear to consider that the development or suspected development of WMDs by a hostile state (Iraq was formally at war with Israel at the time) justified “pre-emptive self-defence”. Clearly, the US does consider that now, but it’s less clear that the international community at large accepts that view.

Probably the fairest thing that can be said is that a traditional understanding of the pre-emptive defence principles would certainly not cover the kind of measures undertaken here. In modern conditions, however, it is legitimate to ask whether the possession of weapons of mass destruction, coupled with an intention to use them against another state, should justify pre-emptive self-defence, and whether the principles of international law should be extended to cover that case. Iraq might have provided a useful case for this development, were it not for the fact that

(a) it doesn’t now appear that Iraq had any weapons of mass destruction, and

(b) there isn’t a huge amount of evidence for its aggressive intentions towards the US either (as opposed to political antipathy for the US, which Saddam had in spades, but which is certainly not a justification for war).

The second plank on which the US relied to justify the war was the terms of Security Council resolutions adopted in 1990 and 1991. That justification isn’t really cast-iron either, but at this stage it does look like the stronger of the two.

The Congressional Research Service – presumably not a source biassed against the United States – has published a useful paper on this subject which I found here: http://www.usembassy.at/en/download/pdf/iraq_intlaw.pdf