Just the facts mam...Legality of Iraqi war

Factual Questions
21

Actually, there are two bodies that are fully capable of determining compliance with international law. The first is the UN Security Council, which is charged with taking action on threats to international peace. The UNSC has, of course, avoided this subject.

There is also the International Court of Justice, also known as the World Court. It is an integral organ of the UN. This court ruled in 1986 that the US had violated international law by mining Managua’s harbors. The US has since refused to knoweldge that the Court has jurisdiction to hear such matters, so don’t hold your breath waiting for the ICJ to issue a verdict in this matter. Little more info.

There is the potential that there may in the coming years be a third body, the International Criminal Court. It will have jurisdiction to prosecute the crime of aggression, or aggressive war. That crime is currently undefined for purposes of the ICC, so really, it’s neither here nor there.

A significant number of intellectuals have weighed in on this as an academic matter, but the most authoritative opinion to date comes from the UN Secretary General, which was stated in a media interview, not as part of an official decree or anything: [Was the war in Iraq illegal?] "“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.” Link.

And I think this side commentary about whether there is international law or not is really on the verge of being poorly informed. There has been a formal body of international law since the time of Grotius, so we’re talking about a concept of law that has been formalized for centuries. It has a variety of sources, leading to considerable complexity. Customary international law has developed through precident, and treaty based law is really a complex maze of paper that sometimes have enforcement mechanisms, but often do not. It is a different kind of law, just like how criminal law is not the same as tort law. Just because someone does not go to jail for being civilly liable for some act or another doesn’t mean that tort law does not exist; by the same token, sometimes the only “punishment” meted out by international law is that all other nations know that Country X doesn’t play by the rules. That’s unsatisfying to many, but it is what it is.

However, the idea that international law does not exist or does not have a corpus is just incorrect.

22

Excuse me? I take you mean the apologists version.

Sorry. Don’t do that one.

Good post, Ravenman. Fits in well with what I’ve read on the matter.

Funny you should mention Kofi Annan as having the “most authoritative opinion,” since I made a similar assesment here and, well, read the responses I got.

Indeed. That’s been my point all along.

23

A good point. I think we can all pretty much agree that Saddam wasn’t any threat to the US, but the parallels with Kosovo are quite helpful. It’s important to remember that relative “peaceful” situation in Iraq during the 90s was due in large part because the US was enforcing no fly zones and keeping the Iraqi military out of the north and south of the country. We certainly weren’t under any obligation to maintain that military presence, and if we were to leave there is every reason to believe that the situation for Shiites in the south and Kurds in the north would have been precarious. I think it would be hard to make a case that the intervention in Kosovo was “legal” but the intervention in Iraq was not. Whether either or both are actually illegal is going to be a matter of debate.

There was certainly more world-wide opposition to the Iraq invasion than there was to the Kosovo intervention, but it’s often hard to figure out who was supporting either action for “real” reasons, or whether they were more or less coerced into giving their support. Bush listed some 50-odd countries as part of his “Coalition of the Willing”, but how many were just kissing the butt of the big guy on the block? And many of the nations were, not meaning an insult, of little consequence on the international stage. Kosovo was a NATO action, and presumably had the approval of the member nations, but it would be naive to think that Greece wasn’t needled into supporting a military action in favor of Muslims (read: Turks) and against an Orthodox state.

If we look to Western Europe and Japan as our “peer” countries, we’d get more votes for “illegal” than for “legal” from that group, I suspect. But it would hardly be unanimous.

24

Yes, Red used this cite in another thread. My questions would be…IS the UNSG authoritative on this subject? i.e. does his word carry weight, his judgement widely accepted? On what basis? Just the fact that he is UNSG, or does he have the legal background in international law to be respected on the subject? My other question would be, why a media interview and not an official decree? One of the reasons I was skeptical of Reds claim when he used this is that this was something he just popped off in an interview…and as far as I’m aware, neither the UN its nor the UNSG has made an official ruling (do they make such ruling??) on the subject.

Granted, this could be because they are afraid of the US…it just strikes me as odd and makes me question how authoritative such a statement is given solely to the press.

That said, if you say it IS an authoritative ruling Ravenman, thats going to carry some weight…least in my book.

-XT

25

He’s an authority, but not the authority. It would be like saying the President of a country is the authority on its constitution. If there is any authority on UN Charter violations it would be the UNSC, but that makes the 5 permanent members immune-- would anyone vote themselves to be a criminal? Thus, we’re left with the legal scholars themselves. Should we take a poll? Should we see who can find the most cites? There is no way to answer your question definitively.

26

The distinction you’re missing is the illegality was not in “intervention,” per se, but in the attack on sovereigny. It’s not just militray action that’s the problem it’s overthrowing a government. That’s the part that’s unequivocally in violation of the UN Charter and international law, not just the bombing or shooting.

Hussein’s alleged violations of the Security Council are irrelevant, by the way. No violation granted the US any authority for regime change.

27

Sevastopol. Do I need to remind you what forum you’re in?

Don’t do this again. Thanks.

samclem GQ moderator

28

I was careful to phrase that as the most authoritative opinion, and I’ll stick with that phrasing. The question of the Iraqi war legality really centers around the UN Charter, even though there are other legal arguments that could be made (I’ll keep my opinion to myself on those arguments). I believe the Secretary General is in a unique position to analyze this question, he’s certainly not prone to hysterics, and I do believe he speaks with considerable authority on this subject.

So why didn’t this come as some type of decree or official act rather than in an interview? Several reasons. First, I don’t think anyone would expect anything constructive would come of officially accusing the US of violating international law. Second, the UN Secretariat was really more interested at that time in developing some sort of response to the toll of the war in Iraq – a nuanced approach that fit somewhere between “the world really ought to help Iraq” and “you break it, you bought it, America.” Annan seems to have taken the option of taking a few jabs at the US Administration rather than try to start a legal battle.

29

http://www.rmpjc.org/2002/Iraq_War_Cannot_Be_Justified.html Cites UN lack of jusification .

30

I’m not missing any distinctions. You’re trying to create one where none exists. What was happening in Kosovo was a human tragedy, but it was all happening within the recognized border of a sovereign state. Preventing a government from operating within it’s sovereign territory is a violation of its sovereignty. Surely you’re not going to suggest that the UN charter is silent on the matter of a 3-month long bombing intervention aimed at severly weaking a countries entire infrastructure. If we started doing that to Iran right now, you’d be one of the first to claim that it violated the UN charter. NATO went in because it’s members knew that there was a humanitarian crisis and that neither Russia nor China would cast a vote in favor of such action in the UNSC.

31

Kellogg-Briand Pact Kellogg briand outlawed war and we signed.

32

As Shodan said, it was legal under US Law. Ruled on by the Courts and everything.

As Ravenman said, there are a number of International bodies that could rule the invasion illegal, and they have some grounds to do so. However, they have not yet done so. Absent such a ruling, the invasion continues to be legal.

The UNSG opinion is just that- an opinion. A very informed opinion, yes, but he has no authority to make a Ruling. (The UNSG has really very little actual authority).

Such Authority rests with the SC, and they are very likely not going to make such a ruling as there’d be a Veto by at least two Powers. Of course, we knew that going in.

Thus, although one can say the invasion is of “doubtful legality under international Law”; absent such rulings or hearings- that’s the best we can do.

Now, if you want to go to GD and ask “If the USA and GB did not have Veto Power in the UNSC would that body rule the invasion illegal” then that’d be an interesting debate. Or "If everyone on the SC ruled simply on the actual wording of the law rather than self-interest… "As long as we do have veto power, however, the point is somewhat moot.

I can hear dudes saying “Can the USA *really *rule on it’s own actions?” and the answer is “YES!”.

So we go back to point #1- the War is legal because *we *say it is.

33

So now that this has hit page 2 without a definite consensus that the war was Illegal, can we drop the “illegal war” meme on the SDMB unless, of course, more information comes to light than we where able to produce here. Qualifiers like “I think it was illegal” are valid of course.

34

What, the Grammar Police don’t have enough to do so they’re going to start handing out tickets every time someone fails to preface their views on a political question with, “In my opinion…?”

35

Not at all. But when they say…“but, but, it was an illeeegal war dontcha know, what are you, ignorant or something?”… kinda gets frustrating. Don’t act like you haven’t seen many a dopers claim that view as fact, not opinion and base their argument on it.

36

On the other hand the possibility remains that your position is entirely wrong. i.e. That the war is demonstrably illegal. Allow me:

Most posts in this thread have started from the position that the state is in the same position regarding legality/illegality as the private person.

For example, a person is not guilty until proven to have breached the law to the satisfaction of a court. The burden of that proof lies with the prosecuting authority generally. It is just like any other rational argument really. The person putting forward the affirmative proposition is responsible for establishing that position.

However, this is where the analogy between a private person and the state starts to break down. What if, instead of the state taking action and it being the responsibility of the person making the allegation, what if it was the responsibility of the state to prove that the action was legal.

Does this work? Let’s break it down to the specific example: What if a state had to make a case; in order to start a war legally?

Does this resonate? Of course it does because isn’t that exactly what was required in this instance.

To break it down a little further, an examination of the history shows that the burden of proving legality fell to the state, the US. Absent that case; the war is illegal.

It is all downhill riding from here. Case failed; absent justification; default position; war of agression illegal.

In other words, there are strong rational and policy reasons for holding that a state is not in the same position as a person vis a vis commencing a war. Or alternatively, that in establishing a justification to violence, the person/state must bear the burden of showing self-defence. Absent that proof, and the evidence of violence established, in normal circumstances illegality is also established.

37

I also do not follow the arguments shown here that the Iraq war was not illegal. Just because I can’t argue international law competently enough - being neither a lawyer or any kind of expert in this field - I still know and disagree with some of the reasoning: just because no International Court has ruled on the situation (the ICC wouldn’t count, since the US has passed laws not acknowledging this), or because the UN Security Council - which has conflicts of interest - hasn’t issued a decree of any kind, doesn’t mean the International law cited above wasn’t violated.

In other words: the International Law - widely recognized by civilsed, democratic countries and human citizens as basic (unalienable) rights for humans and states - states in clear language, unambigously, that attacking another state is illegal (and the exceptions don’t apply). Nothing about bucking sanctions (since Hussein complied at the last minute) or fabricated lies about WMD (the information was readily available before the attack of the USA) or similar are mentioned in the law.

And overthrowing a head of state is illegal, too. It doesn’t matter how much he’s insulted the POTUS, or that he sent assaisans (the USA sent assaisans against Fidel Castro - does he have the right to attack the US, too?), or how despotic he is - it’s illegal. (That is seperate from the question of how else we deal with tyrants, or how nice it would be if there were true democracies instead of tryranic dictatorships.)

That there is no Body or group of law that the US recognizes (or ever would recognize, given how strong the belief in “the US can do no wrong” is - see the resistance against the ICC), or that could possibly enforce this, doesn’t matter in determining the illegality of the act itself.

If a mobster kills somebody, but no policemen dares arrest him, and the judges quibble about which district he should be tried in - does all that make his deed not a crime?

38

This is where your reasoning breaks down in GQ sense. This is an apparent violation of the UN Charter (and not some grand construct of “International Law”). However the U.S., Britain and Spain all saidat the time and say now, and have competent legal authorities who said, that the previous resolutions made the invasion legal (hussiaen did not in fact comply at the last minute). So what could make this illegal in a SDGQ sense? Another Secuity Council resolution that says this is wrong. Failing that, failing some action by the UN to resolve this dispute it is not accurate to call the war “illegal under International law” That is not true. (You can call its legality debateable – maybe but not ‘illegal’)

To use this (offensive) analogy more accuratley as to what actually happened IRL : a Mobster has permission (from the DA, legislature and cops) to “use serious consequences” if the a person doesn’t hand over some money, and the person doesn’t hand over the money. The mobster kills him. The mobster says I had permission: that is what “serious consequences” meant. No policemen dares arrest him, and the judges quibble about which district he should be tried in and people on message boards go on and on about it being an “illegal act”.
Again though – I call return to calling BS on the concept that there is an International Law that doen’t need Interprtation or further enforcement that it simply “is” and that any citizen of earth can define the legality of a Nation’s actions

39

If one disagrees, it may be frustrating. But there’s nothing wrong with saying the Iraq war is illegal, no more than people repeatedly saying “George Bush is the worst President ever,” or “Barry Bonds is a steroid user.” None of these statements has been determined by consensus, or established as irrefutable fact, but they are all statements that appear to rest on a coherent and logicical reasoning, even if some may disagree.

I’m not sure I’m entirely following this through the odd syntax, but there are two arguments that have been made along this line: first, that Iraq violated the cease-fire agreement that ended the 1991 war; and second, that UNSC Resolution 1441, which was the resolution which threatened consequences if Saddam did not allow inspectors in.

Keeping this discussion within the confines of GQ, those who disagree with those two arguments point out the following: the 1991 cease fire agreement was, for the purposes of the UN, concluded by the Secretary General and Iraq in relation to Resolution 678, which pertained only to the liberation of Kuwait. The US would have no more a right to determine that that cease fire had failed than I have a right to dispute how much you paid your dealership for your last car. In any case, UNSC Resolution 678 did not authorize force for the purposes of disarming Iraq, rather the disarmament was part of the cease fire (and Resolution 687). There quite simply was no existing UN authorization to use force to disarm Iraq.

Second, the argument that 1441 actually authorized force only surfaced AFTER the war began. At the time of its passage, US Ambassador to the UN, John Negroponte, stated: “As we have said on numerous occasions to Council members, this Resolution contains no ‘hidden triggers’ and no ‘automaticity’ with respect to the use of force. If there is a further Iraqi breach, reported to the Council by UNMOVIC, the IAEA, or a member state, the matter will return to the Council for discussions as required in paragraph 12.” Thus, before the war, the position of the US government was that 1441 DID NOT authorize force. That position only changed when it became evident that the Security Council would not pass a second resolution proposed by Britain.

40

Apparently, you have different news sources than me. I watched a clip of a press conference 48 hours before the attack where President Bush declared that, even if Saddam Hussein complied with all demands of the US and laid down the presidency and left the country, the USA was still going to attack.

I also saw several news reports in the weeks before the attack that Hussein was willing to let UN inspectors in the previously barred places - he only wanted to keep the CIA and other spies out (and there were US “observers” interested in getting military intel, not info about UN restrictions); but the USA said “Not enough”. (And no, these news reports weren’t from some Arabic station or similar, but German National TV, which has a good reputation for solid journalism. Considering that several high-ranking UN officials charged with checking the UN sanctions were satisfied with the access they were given before the attack, and said that there was no need for an attack, I do not accept the “serious consequences” line.

Besides, does the resolution say that “serious consequences” means an all-out attack with armed forces against the support of the majority of UN nations (unlike the Kuwait-Iraq Gulf war, where the majority of the UN was behind it, not only a bought/blackmailed coalition), and overthrow of the government? Was this a previous result for not following UN sanctions, something that would be expected everybody knows? No to both.

Are you seriously saying that every normal person would accept that killing = serious consequences, without getting explicit permission first??? Not beating up or breaking a bone, but outright killing stone dead?

I didn’t say that International law doesn’t need enforcment - I’m all for the UN having more power and having a real “World policeman”, instead of the US lying about law when enforcing its own self interests. But the Human Rights convention, the UN charta and similar laws are worded quite clearly, so that obvious intent can be gotten. That the US doesn’t feel responsible to answer anybody outside, or follow anything not written in the Constitution, doesn’t negate this. You say that International Law needs interpretation - why has the US then blocked the ICC, and even passed a law in Congress to make the ICC illegal?
I also didn’t say that any citizen of earth can define the actions. I talked about citizens from civilised, truly democratic countries. I don’t know about you, but I know my country’s constitution, and I can tell when it’s violated. I can’t enforce it myself, but I can call on our constitutional protection Court for that. Similar, I know basic Human Rights, and the other conventions, if not by heart, but by gist, and I can tell when they are violated.

If there is no International law together with an International police to enforce it, and an International Court to apply it - then how can the USA claim they were right because Hussein violated UN sanctions, given that the US otherwise ignores sanctions as it likes? And given the cherry-pick approach to the UN the US has used? It comes down to the old doctrine of “might makes right”, which may be believed by some Americans, but isn’t considered legal, or ethical, in Europe.