What constitutes a "legal" war?

Great Debates
1

In this thread, Diogenes the Cynic asserted that Bush was a war criminal because it was an “illegal” war. It seems to be the prevailing opinion of the liberal contingent on the SDMB that the war was “illegal” because Bush’s public justification was later proven to be false. Not that there weren’t many other justifications, mind you, but I will (and have, many times) concede that the “imminent threat” justification was the one that the Bush Administration used for their primary justification.

Now, without rationalizing anything, I would just like to point out a fact that, to me, renders the whole argument moot. Congress had the chance to shoot this down and failed to do so. Given that Congress is the body that declares war and essentially chose to do so (remembering that nowhere in the Constitution does it say what form the declaration is required to take), my take on the whole situation is that while unpopular with many people, this war was as legitimate as any other that we have fought, and with that consent from Congress Bush cannot be held as a “War Criminal”. That’s my stance. It’s all nice and legal as far as I can tell.

So what I’d like to see is the reasoning from people who claim that the war is “illegal” and that Bush is a “War Criminal”.

Discuss.

2

You are kind of mixing the kinds of ‘legality’ IMO. From the US perspective, the war was legal because we went through OUR political process correctly (i.e. followed the forms layed down in our constitution and governing structure), dotting all the ‘i’s’ and crossing all the 't’s. However, there are international laws in play as well. I’ve heard the term agressive war bandied about several times in reference to certain treaties we, the US, has signed.

Its unclear to me what takes precidence here, how binding said treaties are, the exact language of the treaties, how they impact the ‘legality’ of the US’s actions, whether or not the US is in violation, etc etc. Certainly I’ve not seen anything from the UN punishing the US for the actions we took. If we DID do something illegal, they should be the ones putting that forth. Maybe they are and I’m missing it. If they aren’t, I can think of two good reasons why they aren’t. First, because the US is in fact NOT in violation of said treaties, so there is no point. Second, the US IS in violation, however the UN is powerless to do anything about it…or the UN is unwilling to do anything about it.

To me, the legality has never been adaquately cleared up on this board. Instead we get into whether it was right or wrong. Maybe in this thread someone will come up with something concrete that illuminates this once and for all…but I’m not holding my breath.

-XT

3

You have to remember that congress was told the same lies we were. They bought it hook, line and sinker too.

4

From Reeder

Well, leaving aside the ‘lies’ part for a second, what about that makes it ‘illegal’? Want to expand on that?

Now…the lies part. If they were told LIES (I assume you mean by the administration), why aren’t they moving to impeach? Certainly didn’t stop congress from moving to impeach Clinton for his various indisgressions. You think that, if the democrats had anything real on him, they wouldn’t be crucifying Bush atm?

-XT

5

Were they? We have at least one Democratic Congressman running for President who said that he made the decision to vote for war on his own indepedant information, and stands by it.

6

AD:
The short answer is: what a makes a war legal is winning it, and not being challenged about it afterwards. But I tend to agree with you that all that what matters is going thru the internal legal process of our country. I personally don’t buy the whole “international law” concept, as a law without a court system to enforce it is a law in name in only.

7

Heh. Pretty hard to hold a crucifixtion when the target’s buddies are the ones holding the hammer and nails.

8

Did they? “Maybe I didn’t say every single syllable, no, but basically I said the words, yea.”

I realize that the constitution does not stipulate the exact form required to declare war, but should not such a declaration at least use the term war? I’m not trying to say the Bush did anything unconstitutional. Congress definately did give him permision to go into Iraq. However, it seems to me that countries should not move large armies into other countries unless they are willing to declare war. Not premtive strikes, military aactions, or whatever the exact phrase we used. They should be willing to declare war with all of the international law fallout associated with it.

BTW, I saw a recent documentary about war crimes. It seems that Japan had been a signaatory of a treaty which prohibited agressive war. The 14 years of conflict betweem themselves and china was always very carefully reffered to as an incident. This is just the sort of disingenuousness that we need to avoid.

There were reasons to go to war with Iraq. Just as there were good reasons to go to war with Afghanistan. We chose not to declare our actions in either place as a “war” in the traditional sense. So we fight a war on terrorism without ever declaring war on the countries which harbor it. It establishes a precedent which essentially allows us (and theoretically by extension any nation) to move armies into any country as long as they have the army to make it stick. We have essentially returned to a might makes right mentality in foriegn policy.

9

Wait wait, before this becomes a trainwreck, I think the OP needs to come back and set some groundrules. Is there ANY war he is willing to call illegal? Was Saddam’s invasion of Kuwait an illegal war, for instance?

10

Sorry, that quote of mine was from the movie “Army of Darkness” I should have said so.

11

It could be considered “illegal” as per the UN. UN Charter

The US didn’t get the Security Council to authorize the use of force as laid out in Article 39, and wasn’t acting in self-defense against an armed attack or an imminent armed attack as laid out in Article 51. However, not many actions have had the UN’s blessing, of course.

12

I’d expand on xtisme’s point about the war’s legality only being assessed relative to internal law of the participants, and expand it to consider the world community of which we are a part. War is, of course, an international affair and has to be considered in an international sense.

On that basis, the world community is already represented by a functioning (sort of) organization that institutionalizes it. The UN has both authorized and denounced many things in the name of the world community. It might well have authorized this war too, but that decision was preempted unilaterally by a participant. There being no resolution yet denouncing it, the war’s legality in the eyes of the world seems to be unresolved. That may, of course, have some connection to other aspects of US-UN relations.

More philosophically, I’d have to say that if the people of most other countries would agree that, if it had been their country involved, they’d have considered their participation in a war justified, then it’s morally acceptable and possibly even laudable. Short of that, it’s not. And yes, you do have to consider the assessments of the people of noninvolved countries - they’re far more likely to be objective than you, even if they can still be wrong.

13

From Apos

I assume you mean because congress is republican controlled? I still find it hard to believe that, if congress had proof that they were lied too by the administration, that even the republicans in congress (well, some of them) would be up in arms about it.

From John Mace

Its more on the ‘honor system’ IMO. However, international treaties between countries are vital, and its in the best interst of any soveriegn nation to honor them to the fullest extent possible. Sometimes a nation has to do whats best for themselves in spite of said treaties…but I don’t think this was one of those times. However, I’m STILL unclear that the US in fact DID violate any such treaties.

BTW, I think the recource that nations would have to enforce internation laws is embargo or sanctions to trade. Again, as far as I know, no one is currently saying that either should be enacted against the US…maybe a telling point, or maybe not.

-XT

14

Perv:

I agree strongly with your statement about the lack of a declaration of war wrt our actions in Afghanistan and Iraq. I guess it could be written off as semantics, but I believe the constiution gives Congress the sole authority to declare war for a good reason. By abdicating that responsibility, the constiution is weakened significantly.

15

Except it’s not the “UN”, it’s the Security Council. I can’t even recall if it’s just the 5 permanent members or the full SC, I think the latter (but the latter can usually be bought off with trade deals, etc).

So, what the UN “says” isn’t necessarily ‘world opinion’, it’s just that the white capitalist guys greased enough poor palms. And sometimes, in the full context of world suffering, that actually makes more sense. YMMV.

Nonetheless, ‘international law’ ‘precedents’ look a whole lot (to me) like a collection of the occasions when white, Christian, Capitalist guys got away with, or bribed their way to, a position they could then sell as moral to their constituents.

16

I know the UN has problems, but it’s the best thing we’ve got for institutionalizing world opinion. The way forward is to fix those defects, not flout or destroy the institution.

“International law” is like one’s reputation. If you want others in your society to respect you, you’ve gotta respect them. If you want to convince them you’re right, you’ve got to be able to accept that sometimes you might be wrong. If you want other people to abide by a set of rules, you have to as well. That is no different on a global scale than on a national or local one, except that the laws involved are fuzzier and less easily enforceable.

17

International law is not a set of laws like any citezens of nationas are used to thinking of them. They are not collected in a central location by a central authority to which all nations must submit. International law is simply the set of treaties between all the nations of the earth. Even the UIN is simply an organization set up by a treaty between most nations (aren’t there a few nations not part of the UN?). It has certain authority within this treaty to pass resolutions. However, it is not the last word in international law (its the closest thing we have, but its not quite there yet). For instance, I’m sure that none of the signatories to the UN ellevate that treaty above the highest law in their respective nations. So, while the UN can pass resolutions and call for action, it has no power whatsoever to enforce any of them.

In one sense, John Mace is correct in that the winners of wars typically write the justifications for those wars and these justifications become the precedents we try to live by. However, the winners are not the only participants. The other nations of the world also get a say in which precedents are accepted by signing or not the treaties which embody those precedents.

John, I think our lack of a declaration has also resulted in a decrease in our national standing. We had a once in a millenium opportunity to affect the "new world order"for the better after the first gulf war and 9/11. I think we have squandered the chance by not adhering to some formalities which (for Afghanistan at least) should have been trivial to observe. Its most frustrating.

18

When Tojo, as effective leader of Japan, waged war without the justification of self-defense, we called it “aggressive war” and a “crime against humanity”. We hanged him.

We later insitutionalized that concept in the UN, and signed a treaty to that effect, thereby establishing that “aggressive war” was illegal. Of course, the principle of self-defense remained in effect.

We were not attacked by Iraq, hence, our invasion of Iraq was illegal.

We tried to sell the Security Council on the notion that Iraq was in such flagrant violation of Resolutions various, that we should be authorized by the UN to take whatever actions we deemed appropriate. No sale. Such a resolution would have made such an invasion legal. We then invoked the Big Dog principle: We don’t care, we don’t have to, we’re the Americans. Fuck you.

The Bushiviks sold the war to us on the presumption that Saddam was simply crawling with Bad Mojo that he was going to use for dastardly purposes at some point either imminent or immediate or maybe someday why do you hate America so much? With the compliance of an utterly spineless Loyal Opposition, this went over. However, since it was entirely a presumption of a threat, and no demonstrated action had been taken, this had no bearing whatever on the international law. Technically, since the Constitution is the supreme law of the land, this action was illegal under American law as well. So what. Under the Nixon Principle, “when the President does it, its not illegal.” Close enough. Fuck you, Saddam loving peacenik. Who you gonna call? Ghandi?

Even if Iraq had been simply crawling with nuclear anthrax and intercontinental drone attack aircraft armed with VX smallpox gas, it would have had no bearing on the legality of the invasion. Only if we could have proven that he was about to use them on us, and military action was the only way to thwart such an attack could we have provided the necessary justification.

The fact that no such WMD’s have been found or are likely to be has no real bearing on the legality. It merely proves to a skeptical world that all the terrible stuff our enemies say about us has a basis in fact. Our treaties are just so much toilet paper, our word is crap, and raw power the only thing we respect. Because we have it, and they don’t.

Fuck you. We don’t care, we don’t have to care. We’re the Americans. Whaddaya gonna do about it, punk?

19

Self-defense is int he eye of the beholder. Your stating that the war was illegal does not make it so. What law was broken, and what court will the criminals be tried in? Innocent until proven guilty, right?

20

You must have a real hard believing things.

A few Republicans have made some limited criticisms, but if you really think a party is going to destroy itself over lies and a war that, utterly regardless of any lies still plays well at the voting booth, then I take it back: you don’t have a really hard time believing things. You’ll believe anything.