Was the war in Iraq Illegal

Great Debates
21

Well, as I said in the other thread, I am really not ineterested in doing the whole thing all over again. Don’t take it personally but there are a number of debates i feel I have done too many times already. I feel it is a waste of my time to spend hours searching for cites and links only for the satisfaction of documenting my points but knowing full well that it is going to make no difference and they will be dismissed. Others might want to take up this topic. For me it is quite simple: treaties are one of the pillars of International Law. The USA is a signatory of the UN charter which states nations renounce the use of force to settle their differences and only makes the exception that nations are allowed defensive action if they are under actual armed attack. (I think you can find the UN charter easily). The USA has breached its obligations under the UN charter and is therefore, IMHO, in breach of international law, in this particular case the UN charter. this has been explained to death and there is no point in me explaining it further. If you are not convinced then that’s OK. i am just stating my view that clearly the USA was not defending itself from any armed attack and was in breach of the UN charter where it says

The USA was clearly in breach of those articles which ironically were an invention of the victors of WWII in their condemnation of wars of agresion as a bad thing

Another source of International law is precedent and custom and The nazis and others have been convicted of waging wars of aggression.

I could go on but, as I say, there is no point, this has been hashed and rehashed to death and you can find all the arguments in past threads. I do not think I can add to what has already been said in other threads and I do not want to be arguing the same points over and over again in thread after thread. We have been arguing this point most of 2003 so maybe it’s time to give it a rest. At least for me.

22

Will the OP please show me where the US, or any member country for that matter, is subordinate to UN resolutions.

23

Thats fine, Sailor and I respect that and its certainly your call. As I said in the other thread, I’m sick of the subject myself, as to my mind this has never been resolved one way or the other, and its an endless merry-go-round. I’m unconvinced by either sides arguements, as to me there IS no short, easy answer…but thats just me. But don’t tell me to STFU next time when I go out of my way to try and provide an area to debate a subject you accuse me of sliding around. I didn’t appreciate that, as in the other thread, I was weary of the arguements as well, having also participated in several of them on this stupid subject. I can respect your position, even if I don’t see the act of being in violation of resolutions as being ‘illegal’. Try and refrain from hammering me next time just because I disagree with you on something is all I ask…I certainly don’t hammer YOU in similar fashion in other threads (nor have I ever insulted you).

Reguards,
XT

24

I’m not sure what you are asking for there, Duckster. Are you denying that the US is a charter member (hell a FOUNDING member) or the UN? That the UN resolutions were ratified by Congress? I’m sure I can find a cite for those things…but its like saying water is wet.

So, if the UN resolutions have been ratified, they then become a treaty that the US is bound too…as well as other countries that ratify them. No? The question on the domestic side is, do international treaties superceed the Constitution? If not, then the US can be in violation of UN resolutions yet still ‘legal’ domestically. If international treaties superceed the Constitution, then Congress violated our OWN laws in granting the President the powers to invade Iraq, and thus, it WAS illegal…and illegal in the (to me) real sense of the word. Violations of the UN charter are NOT illegal acts, IMO and afaik, based on the fact that the list is pretty long of countries that have and are currently violating them. However, if international treaties in fact DO superceed the Constitution, then Bush/Congress’s acts were in fact illegal.

Thats the rub though. It seems that the language is both ambiguous and contradictory. Part of the Constitution says IT is the law of the land, and can not be superceeded, only ammended. Another part of the Constitution says that international treaties, ratified by Congress are the law of the land. Which is right? God and maybe some lawyers only know…I sure don’t. John Mace has made a good case (in other threads) that the Constitution superceeds even international treaties, but his interperatation is not universally accepted (either here or on the various law threads I’ve been looking at today).

So, does this answer your question? Do you have anything to add? If it doesn’t answer your question, could you elaborate some?

-XT

25

Fang, for a few links to the basics of international law see my post in the other thread.

What is ironic is that the USA is the first one to talk about international law when it suits them. You can’t have it both ways. If you do not accept the existence of international law then the Nuremberg trials were illegal and the 9/11 events were just morally neutral political acts. If might makes right you are saying Bin Laden is entitled to try to kill Americans as much as America wants to kill him. I cannot support that.

26

Didn’t we go over this same mess just like two weeks ago?

The reason we’ve been going around and around on Chapter VII of the Charter is that that section deals with how the UN (and the UNSC) is supposed to respond to threats to peace. As far as the obligations of UN members to maintain peace:

Article 1: To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace....

Article 2: The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following  Principles..... All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.... # 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.

There you go. That’s pretty clear, in my reading, that state parties to the UN Charter have renounced the unilateral use of military force (except as protected in Article 51, for the purposes of defense against an actual attack).

As far as UNSC 678 goes, I’ll leave that to another post, but I find strained the contention that the UNSC intended in 1990 to authorize military action in 2003.

As far as UNSC 1441 goes, it had something about “serious consequences,” but that’s not an authorization. In fact, the US Ambassador to the UN said very clearly at the time 1441 was passed that there was no “automaticity” in the resolution, meaning that the US would return to the UNSC for a specific use of force resolution. When the war broke out, the Bush Administration revised that position and made a silly argument that “serious consequences” actually means “authorization for a preemptive war against a country that is a grave and growing threat.” We can take that as CYA, nothing more, nothing less.

So, the invasion of Iraq was clearly not authorized by the UN. In shorthard, it was illegal, but I think a better term would be that “the US failed to carry out its obligations to the United Nations, the international community, and international law.”

A few questions also answered:

No-fly zones: Technically, these were not authorized by the UN. Clinton made the argument that UNSC 678 was still in effect, which, in my view, is pretty damn tenuous. But the UNSC & the Secretary General did not press any case against the NFZ, so its hard to come to any conclusion on this.

Kosovo: No question about it, not authorized by the UN. However, what some more sophisticated foreign policy thinkers have argued (including Holbrooke) that although the war was “illegal” (or a failure to carry out obligations, etc), it had a degree of legitimacy because it was carried out by the 19 nations of NATO. Folks in this camp tend not to criticize Bush for carrying out an “illegal” war, but for carrying out an invasion that lacked a sense of “legitimacy” that approval from an organization like NATO would confer.

Congressional authorization: We must not mix apples and oranges. The President did not violate US law or the US Constitution when he invaded. The United States Government failed to carry out the specific, binding obligations placed upon the US by virtue of its membership in the UN. A very serious matter, in my view, but not one which could be argued should conclude in impeachment of the President and Congress and their subsequent imprisonment.

27

You have a problem with the word “illegal”? Again, that’s like saing Bush did not use the word “imminent”. Fine. You don’t want to use the word Illegal. The USA is in breach of its obligations under the UN charter, article 2, relevant sections which I cited. Is that better? From now on I will not use the word “illegal” but the word “plax”. When a country or a person are in breach of their obligations I will use the word “plax” instead. I assert the USA has clearly commited an act of plax with the invasion of Iraq because it has clearly broken the obligations it assumed unde the UN charter.

I just don’t understand what’s the problem. The USA hanged a few nazis who had been convicted of waging war of agression and that was before the UN charter. Why is it wrong for Germany to do it but OK for the USA? I don’t get it. Plax is plax no matter who does it. Or is the USA above the rules which apply to others?

28

OK, but surely you are not equating the German invasion of France with the US invasion of Iraq?

If claiming that the current conflict was authorized by 1990 resolutions is tenuous (and I agree that it is) then equating the US with Nazi Germany is just silly.

There do seem to be good points on both sides of this debate which keep going past each other. sailor, you seem to think that the UN charter forbids military action except for approved actions or armed invasions. I agree with you. However, the Bush administration did make a case (pretty weak, but existant) that this invasion was both. Specifically that terrorists are currently attacking us and that Iraq was helping them. Also that the earlier UN resolutions authorized the current war. I agree, that this case is tenuous, but it could be argued. It depends on a much more detailed analysis of the UN charter than we have undertaken.

xtisme, you seem to be getting stuck on the fact that UN resolutions require members to volunteer to enforce them. This enforcement method is weak, but it does exist. Consider that US laws require a DA to prosecute. If the presiding DA refuses to do so, there is little that others can do. This does not make unprosecuted acts legal. So, perhaps the invasion of Iraq was illegal, but not prosecuted.

Also, you keep proposing that treaties might superceed the constitution or federal laws. If you read the relevant article carefully, you will notice that several things are listed as “the supreme law of the land”. Not the Constitution, not congressional laws, nor ratified treaties. But all of them together. Also that they are listed in a particular order. I remember hearing that this has been interpreted as implying a hierarchy. That is 1)Constitution, 2)Federal laws, and 3)Ratified treaties in that order (although this order may only be infered).

Personally, I think the whole thing was badly handled. I tend to agree that Saddam was a bad guy. I think a good case for invading Iraq can be made. Unfortunately, the Bush administration did not do this. They could have spent a few more months courting France and Russia. They could have at least had a few more high level meetings before acting unilaterally. I think a case can be made for unilateral action. But this means using the big stick that Rosevelt talked of.

29

Ya, Ravenman we did…and as in the other threads, nothing was resolved. I’m thinking that this is an unresolvable issue.

Sailor, I have a problem with the inconsistant use of the word ‘illegal’ with reguards to violations of UN resolutions. I’ve seen pages and pages of OTHER countries that have violated UN resolutions, and have not seen many of THEM listed as ‘illegal’ or described as ‘illegal’ acts (if I’m wrong here, I’d appreciate if someone could show me where other countries on the list, besides Israel :), that are called ‘illegal’ for being in violation of UN resolutions).

I haven’t seen anyone use the term ‘illegal’ to describe NATO in Kosovo for instance. To me, its a very similar situation…the only difference was there were more countries involved. Some ME powers certainly use ‘illegal’ to describe Israel (who seems to be the BIGGEST violator afaict) as you would almost expect, but I haven’t come across anyone saying Russia’s acts in Chechnya. Again, my problem is that being in violation of UN resolutions means just that…you are in violation of them. It does NOT mean, IMO, that the acts were ‘illegal’. Maybe you think I’m splitting hairs…hell, maybe I am.

When/if the UN DOES charge the US (and others) with being in violation of the charter over Iraq, then the US will be in violation of the charter…but to my mind, the war will STILL not be ‘illegal’…it will simply be ‘unauthorized’ and totally unsanctioned. It will also be stupid and unnecessary, reguardless of its ‘official’ standing. Whatever the UN says or doesn’t say, that remains the same.

The other thing is, afaik, the UN has NOT said that the US IS in violation of specific articles. I’m willing to conceed that it certainly LOOKS like we are, but I’d kind of like to see it official before I completely conceed that the US is in fact in violation.

They (the UN) HAVE said that Isreal is for such and such (which the US blocked, but the violations were still read out), and for various other countries (Russia was on the list a few years ago as well). I know you don’t see this as important, and maybe its not…but to me its telling that they AREN’T on the being charged and there is no movement TO charge them (afaik the various NATO powers ALSO weren’t tapped for violations of UN resolutions…again, its telling IMO). Why isn’t/hasn’t the UN listed the US in violation of its resolutions when they have listed many other countries when THEY were in violation.

Why hasn’t the UN charged some of the ‘colition’ that was with us (like the UK) with the same violations? It basically only amounts to a slap on the wrist for a power like the US or UK (and thats assuming it wouldn’t just be vetoed, like the US does for UN violations in Israel), so why haven’t they done it?? Again, to me, until and unless the UN actually formally charges the US with such violations, even if they are vetoed (which they would be with the US and UK on the SC), the US is NOT in violation of UN resolutions.

Why is that such an unreasonable stance for me in your eyes? If the situation was reversed, would you take MY interperatation of some event or act, or would you prefer to see something official?? Seeing your past posts as I have, I think I have a pretty good idea of the answer to that.

From Sailor

I thought most of the Nazi’s hanged were hanged for ‘crimes against humanity’. And basically, they were hanged (and several Japanese) because they DID commit crimes…not specifically because they waged war. They slaughtered innocents or perpatrated other autrocities, no?

I realize you hold America to higher standards than you do anyone else. I do too, and am disappointed in America over Iraq, though not for the same reasons you are obviously. For instance, I feel Afghanistan was justified, and I figure you probably do not, for the same reasons as Iraq. We have a different philosophy on the role of a major power like the US in the world, and how the various countries interact. I don’t think your stance is unreasonable, even if I don’t agree…I don’t see why you think MY stance is unreasonable either, even if YOU don’t agree.

To me, you are conflating the Iraq war being ‘wrong’ with it being ‘illegal’. I see the war as being ‘wrong’ (for reasons other than yours, but I still see it as wrong) but as being legal within our own system (Congressional approval being the key to legality from my perspective), and possibly in violation of UN resolutions…POSSIBLY because again, the UN has yet to act on them to even charge the US with being in violation.

-XT

30

XT:
Since it would be the UNSC to sanction the US, you’d hardly expect that to happen given the fact that the US (and Britain) has veto power over any UNSC resolution. I suppose this could be put to a vote of the UNGA, but I don’t believe that has the stamp of authority that the UNSC has.

31

From John Mace

Then why do they charge Israel with being in violations of the charter constantly…the US simply blocks it. But they DO still charge them with being in violation of the charter. If you don’t believe me, I can find a cite I was reading earlier with a bunch of countries on the list for various violations of the charter. MANY of them were blocked by the US (like Turkey and Morocco for instance, though I have no idea why we would block such for Morocco…or what they would possibly do there to BE in violation). So, even though its pretty well known that the US WILL block, say, a charge of violating the charter by Israel, they still read it out. Why? Why not for the US? Am I just being hard headed here and there is a good reason??

From pervert

I guess I’m stuck on the ‘illegal’ thing. Why is it that the US’s actions are ‘illegal’ from violating the charter (and I’ll get to this in a bit as its the second thing I’m stuck on) while other countries are reguarded simply as being in violation of the charter…with no stigma of their acts being ‘illegal’ (unless they are Iraq or one of the countries in bad odor of course…and then its more a retorical thing).

The second thing I’m ‘stuck’ on is…if the US IS in violation of the charter, why has the UN not at least gone through the motions of charging the US and its allies with that?? Sure, I understand that the US will simply veto the charges…but they would still be read out, and it would STILL be a slap in the face at the least. So, why haven’t they? Is there a good reason? For that matter, why weren’t the various NATO powers (and the US) charged with violations of the charter with reguards to Kosovo? Weren’t the two actions equally ‘illegal’? If not, why not?

Look guys, I’m not trying to be hard headed on this thing. I already have stated IANAL, nor do I really understand all his legal stuff…I’m a frickin engineer. I understand the constitution somewhat and the government somewhat because I had to study it to take my test for citizenship years ago. Things beyond that are a bit over my head. Give me a nice router or firewall and I’m in my element…this shit is beyond me.

So, I really don’t get it. If someone has a nice simple explaination that shows how stupid I’m being, I would appreciate it. I don’t want to look any more stupid than I have too here, so help me out.

-XT

32

Supremacy Clause.

I don’t remember congress repealing the UN Charter unless you want to argue that the “authorization” [snicker] to invade another country for no reason was a de facto repel and withdrawal from the UN.

The US can’t have it both ways. It can’t say it’s part of the UN but doesn’t have to follow the charter.

Illegal, immoral and stupid, say I.

33

How many member nations actually follow the charter at all times?

Marc

34

Besides the US and Israel I have no idea.

35

Man, that came out wrong. I meant say that besides the US and Israel I have no idea how many countries don’t follow the UN Charter at all times.

In any case it’s rather hypocritical for the US to claim Iraq’s alleged violations as an excuse to commit more violations, isn’t it?

36

Oh man that was good Diogenes, I was just reaching for the reply button before I got to the second post

37

What are you implying? Does the fact that people break the law when they speed mean it is ok to murder? So, How many nations have violated the UN charter so seriously? Very few. Or how many countries can you name that have invaded other countries unprovoked? Your post seems to imply the UN is worthless and not worth respecting. In that case the honest thing for the USA to do is withdraw. The UN charter was an invention of the USA and the USA feels comfortable using it when it suits them. The fact is that the USA is in breach of the cited article 2, there is no way around that. Or please explain how can the USA not be in violation.

The fact that the USA can breach the UN charter with impunity in no way changes the fact that it did so. It is wrong. War of agression is wrong and the USA did the wrong thing.

38

The charge of “illegal” basically goes beyond the obligations in the UN Charter.

One could define the war in Iraq as either “preventative” or “preemptive.” A preventative war is in which a Country A attacks Country B, because Country A believes the B will become more powerful over time, and that it is better to fight an unprovoked war now than wait for a worse one later. Preventative wars are basically considered aggression under customary international law, because there is no real case that can be made under this situation for the necessity of self-defense.

A “preemptive” war is one in which Country B threatens Country A, and not waiting for the first blow, Country A strikes first. Under customary international law, this is permissible, so long as the threat was imminent, leaving no moment for deliberation, and the force used is proportional to the threat. The war in Iraq can not be justified under this view, for Bush went to great lengths to literally describe Iraq as a “grave and growing,” as opposed to an “imminent,” threat (while implying that the threat from Iraq actually had some degree of imminence).

So far as this war can be evaluated by norms of international behavior, it comes up short. Well short. A fair shorthand phrase is indeed “illegal under international law,” but personally, I think that’s too easily misunderstood as meaning that Bush could be dragged before the International Criminal Court, which basically can’t happen.

As far as other countries being in violation of the Charter, it is more fair to say that they are in violation of UNSC resolutions. Yes, they are bound by the Charter to carry them out, but one could compare it to violating Federal law instead of violating the Constitution. Both serious, yes, but violating the Charter or the Constitution is more politically charged because it implies that a country or individual rejects the legitimacy of the political system established by either of those documents.

Violations of the Charter is cases like this would either be heard by the UNSC as a threat to international peace or be kicked over to the World Court for a judicial proceeding.

The reason it probably hasn’t been brought to the World Court is that Iraq basically lacks any legitimate government to try to initiate a lawsuit in this court. Saddam and his kin have had other things on their mind, apparently.

As far as referring the matter to the UNSC, it’s a dead end, like you say. Further, those who might bring the charges, say, France or the Secretary General, don’t really seem to be interested in dredging up all those bad feelings again for basically no point. I think the general approach of the UN-philes has been to try to convince the Bush Administration that the UN is a good thing and that we should all get along. Leveling charges of aggression wouldn’t help that, so I believe it is more of a political calculation than a legal one.

As far as Kosovo goes, IIRC, Kofi Annan tried to play peacemaker in 1999, but he seemed to think that the UN should take action against Serbia. But as to the opinion of Russia and China, who opposed the war, I’m just not familiar enough with the situation to say why they didn’t make a bigger deal out of it; but I could guess that they would not want to cause a sort of “constitutional crisis” of the UNSC, since much of their influence on world politics derives from their permanent seat on the UNSC, rather than providing leadership to the rest of the world.

I hope that helps somewhat.

39

I don’t think so. At best you might argue that there are two conflicting laws (Supremacy vs the Iraq resolution). IANAL, but is it not generally the rule that if there are two conflicting laws, the most recent law takes precedent? Surely Congress was well aware of the Supremacy Clause when it passed the Iraq resolution. Nore likely, Congress considered it’s act to be consistent with the UN Charter, which allows defensive acts. But, as I said, until and unless this is challenged in court, it remains legal under US law. And since no one seems to be doing this, you may need to do it yourself, DtC, if you actually want to proove your point.

40

Really? Does that it mean it’s legal to kill somebody as long as I don’t get caught?