Was the war in Iraq Illegal

Great Debates
1

I know we’ve done this before, several times, but I wanted to start this tread to really nail this down. In another thread, Sailor claims its a slam dunk case…that the US’s actions in Iraq were ‘illegal’ because they violated ‘international law’.

To my mind, in order to show that the US actions are illegal, first we’d need to look at the relevant international laws with reguards to US actions in Iraq. I’ll let the war is illegal side present their own arguements, but this seems to be the most referenced article, dealing with CHAPTER VII, articles 39-51 of the UN Charter.

These seem to be the relevant passages:

From Charter of the United Nations: Chapter VII

There is more there, but it seems fairly…sparse to base an entire ‘legal’ system on. It seems to me that Article 51 gives member nations some wiggle room to pursue their own agendas, within limits, but I conceed that this is only my interperatation of it.

I’m currently researching the laws that are BEHIND these statements (if any), but so far haven’t found anything relevant. I’ll rely on the illegal crowd to fill in what they think is relevant in any case.
Next we’d need to look at how our own constitution reguards international law…what takes precedence? Was congress’s actions illegal, or were they within their rights to grant the President the powers necessary to go to war in Iraq?

Here, things seem murky to me.

The US ConstitutionArticle VI

This seems to clearly say that all treaties made shall be “the supreme law of the land.” This seems to run counter to the appearent intent of the founding fathers, that the Constitution shall in fact be the supreme law of the land, which can be ammended but not superceeded. It begs the question, if an international treaty ratified by Congress is found to violate the constitution…what takes precedence? Does the treaty hold precedence in this case over the Constitution, thus nullifying it? Or does (as was appearently the intent of the founding fathers IMO) the Constitution take precedence over any ratified treaty until and unless the Constitution itself is ammended?

It seems that Article VI is and has been at the heart of the debate over this issue for a LONG time…since Jefferson at least.

This OP is getting overly long now, and I really want to let both the illegal war and legal war sides present their own cases, so I’ll cut off here and wait to see if Sailor and others want to present their sides as to why the US’s actions were either legal or illegal.

My own position (which appearently infuriated Sailor, for which I’m militantly unconcerned) is that the war was neither legal nor illegal, as the international laws in effect are vague and ambiguous on setting out the exact parameters by which a country is in violation. I base a lot of this on the fact that I’m unaware of any body actually filing charges against the US for an ‘illegal’ act, as well as the old standby that a person (or country) is innocent until FOUND to be guilty…and until a ruling is made by a properly impowered body, its shear arrogance to say it was definitively an ‘illegal’ act…or a ‘legal’ one for that matter. No judgement has been made…therefor IMO, any assertions are pure speculation.

I think a good case could be made that the US actions weren’t ‘legal’ (i.e. the US had no legal justification for war)…but thats not exactly the same thing as saying they are ‘illegal’ (i.e. they BREAK the laws). On the domestic side, it seems that Article VI is a contridiction, thus making the issue also murky as far as the Constitution goes. I’m looking for a Supreme Court ruling atm to see if they decisively ruled on this, but no luck so far. At a guess, they have decided not to touch this one at all, but thats just based on what I’ve read so far.

Reguards,
XT

2

You have to understand that laws and treaties ratified by Congress are always subject to to review by the SCotUS, if challenged, and that the court will use the Constitution as the guide to determine if the law (or treaty) is valid (under the Constitution). In this sense, the Constitution is a higher authority than any law (or treaty). Until and unless someone successfully challenges in court the act of Congress that allowed Bush to use force in Iraq, then that act is legal.

3

It’s a violation of the UN Charter and international law. It’s also a prima facie violation of US law although there’s not much case law for this kind of thing.

Regardless of US law, there’s no question it’s a vioaltion of international law so the anser to OP’s question is yes, and although the OP didn’t ask it’s also stupid and immoral.

4

DtC:
Can you expand on the prima facie argument about US law?

To the extent that there is such a thing as International Law, I would agree that the war was a violation of that.

I would not have called the war either stupid or smart, but I’d certainly call it moral. Taking out a brutal dictatorial regime is a moral act.

5

Can you explain which international law it is in violation of? Is there any treaty which the US signed and ratified that specifically bars offensive war without the explicit consent of the UNSC?

6

Fang, read through the Charter: Chapter VII. I believe that that is the relevant document with reguards to this arguement. If there is another international law or treaty in effect, I’m not aware of it so maybe one of the guys will post that in a following post.

BTW, reading through the Charter: Chapter VII, I don’t see the verbage ‘illegal’ used at all. Is this implied?

I found this also, that might be relevant…it goes through the US’s case against Iraq in some detail. There are 7 parts to it. I’ll only put in a few things and let others read through to see if they find anything relevant.

The case of the US vs Iraq; US claims, Part 1 of 7 : Violations of UN Resolutions

As I said, there are 7 parts, so its a bit lengthy. However, if we are going to talk about the legality, I thought that maybe laying this info out might be helpful to set a base line for the US’s case.

-XT

7

Examine the order of events:

  1. US attacks and soundly defeats Iraq when it attempts to invade a US ally, Kuwait.

  2. US maintains no-fly zones and police actions in the region, to ensure that Iraq doesn’t act up in the future.

  3. Iraq forces repeatedly and continually fire AA weapons at US forces patrolling the no-fly zone, established due to Iraq invading an ally of the US.

  4. A decade later, US attacks and trounces Iraq yet again.

Unless someone can establish any of those steps to be “illegal”, I fail to see how you can call the recent war “illegal”. Was it “illegal” for the US to come to Kuwait’s aid? No. Which would then follow that the enforcement of sanctions against Iraq was also fully legal. Which would then follow that Iraq’s attempts to attack US patrolling jets would justify any action that the US wanted to take against Iraq.

Frankly, the only thing I’m upset about is the fact that we let Iraq violate sanctions for over a decade before doing anything about it. Further, I’m also upset it required a lie about the Universal Bugbear to motivate America to have a passion about it, when there was ample reason to do it to begin with.

8

Umm, did you read the first post Fang?

9

That’s the illegal part right there. The US has no authority to enforce UN resolutions. It was anon-defensive invasion, which made it an aggressive act which made it illegal. Without self-defense you have no justification. Period.

10

I did read it. I don’t see anything in there that bars member states from taking aggressive action without the UNSC’s consent. It certainly gives the SC power to make decisions on international security and have access to military resources to enforce those decisions, and possibly even stop a particular action after the fact, but I don’t see anywhere that requires states waive their right to wage offensive war.

11

Fang, from my reading, Articles 41 and 42 address this, though I assume that there must be other documents that flesh this out, as the language is totally ambiguous…and again, fairly sparse IMO. I’m still looking for the treaties and other documents behind these articles.

From CHAPTER VII
ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

What this says, appearently, is that only the SC can AUTHORIZE the use of force. Countries not authorized are in violation of the treaty. However, I’ve yet to see how in violation=illegal, unless this is implied or I’m missing something.

I was reading earlier (I’ll try and find the cite again) that the SC can and will bring violators before the counsel, and that actions can be taken against nations that are in violation (action was vague, but I assume sanctions and such can be imposed). Afaik, this hasn’t happened (yet) to the US re: Iraq.

-XT

12

snipped from above

UNSCR 678 - November 29, 1990

  • Iraq must comply fully with UNSCR 660 (regarding Iraq’s illegal invasion of Kuwait) “and all subsequent relevant resolutions.”

  • Authorizes UN Member States “to use all necessary means to uphold and implement resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area.”

If I understand correctly, this wording was hammered out by the US for the express purpose of finishing the job. What the UN DIDN’T sanction was a specific engagement (the French, German, and Russian veto).

The only case I can see in Saddam’s defense would be to say he played the shell game for so long it became impossible for him to account for his own equipment as required by UN mandates.

13

Of course, it may be difficult to impossible to find a statute which says murder is illegal so I guess murder is not “illegal” either.

It also depends on what the meaning of “is” is. Not.

Reminds me of the Bush camp denial that the president had ever said the threat from Iraq was “imminent”.

14

Not that hard:

I don’t know what kind of law this “international law” is that’s based not on statutes but on whatever the people who are in favor of it say it is. Or perhaps it is based on vague generalities hinted at in the UN charter. Either way, that may be good enough for you, but you’re not going to convince me of it. Outside of the general moral idea known as “natural law”, law is not law without laws.

Also, was the action against Kosovo illegal?

15

Um Fang. . . I think you are missing my point. Your citation does not contain the word “illegal”.

16

Your ignorance on this matter is astounding. It has been discussed on this board extensively and I recently cited and linked to several pages. I am not going to do it all over again. You can do a search if you like.

Good. It will save you the search and it will save me having to repeat myself. You choose to remain in your ignorance.

You show your ignorance. International law is law. the fact that you are ignorant of it doe not mean it does not exist. The fact that you proclaim your intention to remain in your ignorance only reflect upon yourself, not about the objective facts.

Dunno. You tell me.

17

DtC

How was it ‘illegal’? Because the US was in violation of UN resolutions? Countries are in violation of UN resolutions all the time. Was NATOs acts in Kosovo also considered ‘illegal’? They didn’t have UN authorization afaik, and according to your logic, only the SC can authorize the use of force. Again, its the ‘illegal’ thing…but WHY illegal? Where are you getting that from? Is this an english thing (I really want to know this…it isn’t a dig) that in violation=illegal? Is it assumed? Is it infered?

Sailor thinks I’m playing semantics games here, but I really want to know this. To me, from my reading, countries are in violaton of UN resolutions all the time (especially, appearently Israel)…but you don’t say that a countrys acts that are in violation of UN resolutions are ‘illegal’. Is this a special case? Because there was a war involved? Were the acts of the NATO countries equally called ‘illegal’?

-XT

18

DtC has still not fleshed out his prima facie argument about the war being illegal according to US law. I’m interested to see how something explicityly authorized by Congress could be considered illegal.

19

Sailor, can you at least post links that you think show international laws the US was in violation of? I’ve posted the UN Charter, Chapter VII, but surely this isn’t all of it. I know you’ve already posted stuff elsewhere, but do you think you could post some of it HERE? I, for one, would appreciate it.

-XT

20

If insulting other posters is the best you can do, I think that reflects the strength of your argument. I am not asking for a whole background in international law. In fact, I am not even asking for the basis of international law’s authority, though that’s a legitimate question. I am asking for one treaty or law that in some way (but clearly) prevents any country from taking aggressive action against another country without the prior consent of the UNSC.

Please don’t misinterpret me. When I said “you’re not going to convince me”, the implication was clearly that arguments based on “it’s law, and you should believe me because I know and you don’t” wouldn’t cut it. If you don’t want to defend your position, that’s fine, don’t post to the thread. But if I say that I would like one believer that the Iraq war was illegal to provide a citation for that claim, there’s no sense posting just to say, “No, I won’t, and by the way you’re an idiot.”

You can keep saying that but it doesn’t make it any more true. In any case, I’m once again not asking for you to justify the existence of international law, I’m asking for a justification of the Iraq war going against international law. If you don’t want to provide a cite that’s fine, but don’t fill up the thread with content-free posts.

Well, I would think it the other way around, seeing as how you’re the international law expert here. However, the reason I mentioned this is that NATO specifically did an end-run around the SC because they knew Russia would veto any action (sound familiar?) against Serbia. Since the action in Kosovo was clearly not in self-defense, and not approved by the UNSC, I am asking whether the self-proclaimed proponents of international law would call it illegal.