# Kofi says Iraq war was illegal under UN charter **URL:** \ **Category:** Great Debates\ **Created:** [September 16, 2004, 8:56am UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660 "2004-09-16T08:56:04Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 20, 2004, 3:14pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/61 "2004-09-20T15:14:26Z")
> [@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. 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? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 20, 2004, 3:33pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/62 "2004-09-20T15:33:59Z")
> [@DrDeth](#): > > 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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 20, 2004, 4:13pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/63 "2004-09-20T16:13:52Z")
> [@Ravenman](#): > > **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? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 20, 2004, 4:31pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/64 "2004-09-20T16:31:27Z")
[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? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 20, 2004, 4:48pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/65 "2004-09-20T16:48:57Z")
> [@John Mace](#): > > 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. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 20, 2004, 6:44pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/66 "2004-09-20T18:44:43Z")
> [@Ravenman](#): > > 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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 20, 2004, 6:50pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/67 "2004-09-20T18:50:24Z")
**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 ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 20, 2004, 9:45pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/68 "2004-09-20T21:45:29Z")
> [@John Mace](#): > > **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? 😉 ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 20, 2004, 10:23pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/69 "2004-09-20T22:23:49Z")
> [@Ravenman](#): > > **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. ---
**Author:** ![PatriotX](https://avatars.discourse-cdn.com/v4/letter/p/c4cdca/32.png) [@PatriotX](https://boards.straightdope.com/u/PatriotX)\ **Post date:** [September 20, 2004, 10:46pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/70 "2004-09-20T22:46:13Z")
> [@John Mace](#): > > 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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 20, 2004, 11:02pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/71 "2004-09-20T23:02:16Z")
> [@SimonX](#): > > 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. ---
**Author:** ![PatriotX](https://avatars.discourse-cdn.com/v4/letter/p/c4cdca/32.png) [@PatriotX](https://boards.straightdope.com/u/PatriotX)\ **Post date:** [September 20, 2004, 11:54pm UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/72 "2004-09-20T23:54:59Z")
> [@John Mace](#): > > 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)? ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [September 21, 2004, 12:02am UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/73 "2004-09-21T00:02:13Z")
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. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 21, 2004, 12:06am UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/74 "2004-09-21T00:06:19Z")
> [@SimonX](#): > > 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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 21, 2004, 12:07am UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/75 "2004-09-21T00:07:05Z")
> [@SimonX](#): > > 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. ---
**Author:** ![pervert](https://avatars.discourse-cdn.com/v4/letter/p/bbe5ce/32.png) [@pervert](https://boards.straightdope.com/u/pervert)\ **Post date:** [September 21, 2004, 12:14am UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/76 "2004-09-21T00:14:44Z")
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. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 21, 2004, 12:15am UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/77 "2004-09-21T00:15:17Z")
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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 21, 2004, 12:20am UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/78 "2004-09-21T00:20:15Z")
**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. ---
**Author:** ![pervert](https://avatars.discourse-cdn.com/v4/letter/p/bbe5ce/32.png) [@pervert](https://boards.straightdope.com/u/pervert)\ **Post date:** [September 21, 2004, 12:29am UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/79 "2004-09-21T00:29:39Z")
> [@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. 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. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 21, 2004, 1:41am UTC](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660/80 "2004-09-21T01:41:30Z")
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](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. [Previous page](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660.md?page=3) [Next page](https://boards.straightdope.com/t/kofi-says-iraq-war-was-illegal-under-un-charter/264660.md?page=5)