# What constitutes a "legal" war? **URL:** \ **Category:** Great Debates\ **Created:** [December 1, 2003, 3:13am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168 "2003-12-01T03:13:10Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\ **Post date:** [December 2, 2003, 11:27pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/101 "2003-12-02T23:27:24Z")
> [@](#): > > \*Originally posted by New Iskander \* > \*\*Certainly as legitimate as WWI, Vietnam, Grenada, Panama, Somalia and Kosovo (vague distant danger given as justification). Certainly less legitimate than WWII (direct attack on US). Probably more legitimate than wars with Mexico and Spain (land grabs). \*\* Um, Somalia was an official UN operation. Not that the US _integrated_ in that operation, but technically, it was fully legitimate. > [@](#): > > \*\* > A question to esteemable left-leaning people here: if Bush (the Satan) would secure agreement with Shroeder (sold-out Socialist), Chirac (right-wing crook), Putin (KGB) and Chinese (Maoists), would that make Iraq invasion perfectly legitimate? \*\* Obviously you’re neither capable of reading the UN charter, nor do you have an idea about European politics. The answer to your question should be plain obvious if you did the former, and if you did the latter, you would realize that your labels are plain silly. ---
**Author:** ![New\_Iskander](https://avatars.discourse-cdn.com/v4/letter/n/db5fbb/32.png) [@New\_Iskander](https://boards.straightdope.com/u/New_Iskander)\ **Post date:** [December 3, 2003, 12:55am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/102 "2003-12-03T00:55:42Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*Nope. But it would have made it legal. \*\* Is that all you want? ---
**Author:** ![New\_Iskander](https://avatars.discourse-cdn.com/v4/letter/n/db5fbb/32.png) [@New\_Iskander](https://boards.straightdope.com/u/New_Iskander)\ **Post date:** [December 3, 2003, 12:59am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/103 "2003-12-03T00:59:57Z")
> [@](#): > > \*Originally posted by OliverH \* > \*\*Obviously you’re neither capable of reading the UN charter, nor do you have an idea about European politics. The answer to your question should be plain obvious if you did the former, and if you did the latter, you would realize that your labels are plain silly. \*\* Me no reader, me writer. ---
**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:** [December 3, 2003, 2:34am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/104 "2003-12-03T02:34:21Z")
> [@](#): > > \*Originally posted by OliverH \* > \*\*Once more: > > “All Members …, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.” \*\* Gee, thanks for explaining your view with such eloquence. :rolleyes: If that’s all you can find in the Charter to argue that Congress no longer has the right to declare war, that’s a pretty shaky argument. Surely a treaty that affects one of the most basic functions of any sovereign government would have some stronger or clearer language than simply “fulfill in good faith?” By that logic, Bush I must have violated the UN Charter when he proclaimed after the Iraqi invasion of Kuwait that “this aggression will not stand,” bearing in mind that bit about refraining from threats of force. I guess a loophole has been written into the First Amendment as well? And per your earlier point about a state “voluntarily restricting the freedom of its legislature,” surely if this was done at some point, one would write it down somewhere in clear language what powers exactly were being surrendered, it being a rather major issue and all. I’d like to see that, if you know where it is stated, since I sincerely doubt that anyone conceived that the U.S. was actually crossing out portions of Article I Section 8 when it ratified the Charter. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [December 3, 2003, 3:31am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/105 "2003-12-03T03:31:19Z")
To answer a debate which may have already been definitively answered, the United States Supreme Court has weighed in on the issue of which has preeminence – the U.S. Constitution or international treaties. In _Reid v. Covert_, 354 U.S. 1 (1957), the Supreme Court ruled that constitutional guarantees cannot be abolished by either treaty or statute, stating: “no agreement with a foreign nation can confer power on Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” > [@](#): > > _Reid v. Covert:_ > There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision of Article VI make it clear that the reason treaties were not limited to those made in ‘pursuance’ of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights — let alone alien to our entire constitutional history and tradition — to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. So when there is a conflict between the Constitution and a treaty, the _Constitution_ prevails. _See also_: > [@](#): > > Thomas Jefferson, [A Manual of Parliamentary Practice, Sec. LII. – TREATIES.](http://www.history1700s.com/tjmpp.shtml) > (and also in the [107th Congress House Rules Manual](http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=42260022322+0+0+0&WAISaction=retrieve)): > Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation. > . . . . > [Congress cannot pass a treaty on subjects reserved for the states] for surely the President and Senate can not do by treaty what the whole Government is interdicted from doing in any way. > > _[Marbury v. Madison](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&page=137):_ > Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument. ---
**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:** [December 3, 2003, 3:41am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/106 "2003-12-03T03:41:12Z")
> [@](#): > > So when there is a conflict between the Constitution and a treaty, the Constitution prevails. It would be a strange situation indeed if it were otherwise. Congress could ratify a treaty with, say, Saudi Arabia that required the US to abolish trial by jury, to install Bush as the President for Life, and forbid women to drive cars. It sure would be a great way to do an end run around that pesky ol’ Constitution, though! ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 3, 2003, 4:25am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/107 "2003-12-03T04:25:07Z")
> [@](#): > > \*Originally posted by New Iskander \* > \*\*Is that all you want? \*\* Why, no, now that you ask. I’d kinda like GeeDubya to go nationwide with an address to the people and give his soon-to-be-famous “I _really_ screwed the pooch this time!” speech. It could reflect the famous words of another foreign policy visionary :“I will not seek, nor will I accept, the nomination of my party…” An act of _seppuku_, while tempting, is probably too extreme. Colin Powell recreates his UN jeremiad, but this time annotated, carefully detailing how little of his presentation bore even the remotest resembalance to fact. He might end up with a heartfelt homily to the youth of the world, a cautionary tale of integrity undermined by ambition. Then a pony. Thanks for caring! ---
**Author:** ![Mr.Svinlesha](https://avatars.discourse-cdn.com/v4/letter/m/22d042/32.png) [@Mr.Svinlesha](https://boards.straightdope.com/u/Mr.Svinlesha)\ **Post date:** [December 3, 2003, 8:14am UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/108 "2003-12-03T08:14:29Z")
**New Iskander** : > [@](#): > > - A question to esteemable left-leaning people here: if Bush (the Satan) would secure agreement with Shroeder (sold-out Socialist), Chirac (right-wing crook), Putin (KGB) and Chinese (Maoists), would that make Iraq invasion perfectly legitimate?\* I object to the way you sneaked “Bush (Satan)” into your question; I don’t equate Bush with Satan, even though I admit that as time has gone on I’ve become less and less willing to give him (Bush) the benefit of the doubt. In answer to your question, had the use of force been authorized by the majority of the UNSC, then yes, I would be much more inclined to consider the action legitimate. There are even ways around that; the support of a majority of the General Assembly in a vote, for example, might have helped legitimize the use of force should the SC decision be blocked by the veto of a single permanent member. Of course, in addition to the above, legitimacy would also be based on there being some truth/substance to the accusations leveled against Iraq regarding it’s “threat to world peace.” Were those accusation as feeble as the ones leveled by the neocons, I would still have trouble supporting the invasion, even if for some reason the majority of the SC/UN was behind it. If the invasion had broad international support, and was explicitly justified on the basis of Iraq’s human rights violations, I would also probably have supported it. But this brings up a delicate issue: how much leeway does the international community have to intervene in the internal affairs of a state? Many of the states in the General Assembly, and even on the SC, have human rights records as bad, or nearly as bad, as Iraq under the Hussein regime. The international system is based on the concept of sovereignty, and though it’s a deeply flawed system in many ways, I don’t know how one might go about improving it. ---
**Author:** ![New\_Iskander](https://avatars.discourse-cdn.com/v4/letter/n/db5fbb/32.png) [@New\_Iskander](https://boards.straightdope.com/u/New_Iskander)\ **Post date:** [December 3, 2003, 5:15pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/109 "2003-12-03T17:15:20Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*I’d kinda like GeeDubya to go nationwide with an address to the people and give his soon-to-be-famous “I _really_ screwed the pooch this time!” speech… > > Colin Powell … might end up with a heartfelt homily to the youth of the world, a cautionary tale of integrity undermined by ambition. > > Then a pony. > \*\* Then it’s all about Bush & Powell humiliation for you and the issue of legality secondary to that, isn’t it? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 3, 2003, 5:25pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/110 "2003-12-03T17:25:38Z")
Not even secondary. First, it was wrong. Second, it was stupid. Third and last, it was illegal. If it were stupid, wrong, and legal than would be a sprinkling of sugar on a spoonful of cyanide. ---
**Author:** ![New\_Iskander](https://avatars.discourse-cdn.com/v4/letter/n/db5fbb/32.png) [@New\_Iskander](https://boards.straightdope.com/u/New_Iskander)\ **Post date:** [December 3, 2003, 5:29pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/111 "2003-12-03T17:29:36Z")
> [@](#): > > \*Originally posted by Mr. Svinlesha \* > **…how much leeway does the international community have to intervene in the internal affairs of a state?.. The international system is based on the concept of sovereignty…** That concept went by the wayside when NATO invaded Serbia and took over Kosovo province (to prevent Serbo-Albanian war, presumably). ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 3, 2003, 5:35pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/112 "2003-12-03T17:35:58Z")
> [@](#): > > \*Originally posted by New Iskander \* > \*\*Me no reader, me writer. \*\* Well, so much for _that_. ---
**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:** [December 3, 2003, 5:56pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/113 "2003-12-03T17:56:26Z")
> [@](#): > > \*Originally posted by elucidator \* > **Colin Powell recreates his UN jeremiad, but this time annotated, carefully detailing how little of his presentation bore even the remotest resembalance to fact. He might end up with a heartfelt homily to the youth of the world, a cautionary tale of integrity undermined by ambition.** How about if he just recreates his own spontaneous, honest reaction to first reading the UN script he was given by the White House. Ladies and gentlemen of the United Nations: I’m not reading this. This is bullshit! ---
**Author:** ![New\_Iskander](https://avatars.discourse-cdn.com/v4/letter/n/db5fbb/32.png) [@New\_Iskander](https://boards.straightdope.com/u/New_Iskander)\ **Post date:** [December 3, 2003, 6:19pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/114 "2003-12-03T18:19:14Z")
> [@](#): > > \*Originally posted by elucidator \* > **…First, it was wrong. Second, it was stupid. Third and last, it was illegal…** Am I right to discern a glimmer of hope there? Could it be that someday we can debate such mature old-fart issues as right and wrong, wise and stupid, and in global context? Could we leave lies and truths to high school students, and leave legal and illegal to lawyers? Bah, humbug… ---
**Author:** ![Mr.Svinlesha](https://avatars.discourse-cdn.com/v4/letter/m/22d042/32.png) [@Mr.Svinlesha](https://boards.straightdope.com/u/Mr.Svinlesha)\ **Post date:** [December 3, 2003, 6:55pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/115 "2003-12-03T18:55:40Z")
> [@](#): > > - Am I right to discern a glimmer of hope there? Could it be that someday we can debate such mature old-fart issues as right and wrong, wise and stupid, and in global context? Could we leave lies and truths to high school students, and leave legal and illegal to lawyers?\* Gee, **Is** , do you think you could be just a _little_ more condescending? I’m not sure the quote above really communicates fully the intellectual and moral heights from which you look down up us “tiny liberals,” yet. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 3, 2003, 7:34pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/116 "2003-12-03T19:34:14Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*How about if he just recreates his own spontaneous, honest reaction to first reading the UN script he was given by the White House. > > Ladies and gentlemen of the United Nations: > > I’m not reading this. This is bullshit! \*\* Well, I share your hope that that really was his reaction. But he went and delivered the speech anyway. Perhaps he felt he had to in order to preserve what little hold reality had on the administration, or perhaps he got caught up in the cycle of self-delusion that the rest of them did. But he’s not talking, and until he does, he’s not entitled to the benefit of any doubt, either. ---
**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:** [December 3, 2003, 8:04pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/117 "2003-12-03T20:04:52Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > \*\*Well, I share your hope that that really was his reaction. But he went and delivered the speech anyway. Perhaps he felt he had to in order to preserve what little hold reality had on the administration, or perhaps he got caught up in the cycle of self-delusion that the rest of them did. But he’s not talking, and until he does, he’s not entitled to the benefit of any doubt, either. \*\* Very good point. No one here can invoke Powell as being “on my side and not really in favor in the war, since we all know what he really thought.” It’s an intersting theory, but has no basis in fact. Bush led the charge for this war, but he had plenty of co-conspirators, if you will. Not only Powell, but many prominent Democrats (including all the serious presidential candidates in Congress and HRC herself) as well as Tony Blair. I watched much of Powell’s speach in front of the UNSC, and was thoroughly underwhelmed. The evidence for weapons was thin, at best, although it did seem pretty clear that S.H. was giving the UN Inspectors the run-around. Anyone who voted for the war did so based on their own evalutation of the evidence. “Bush made me do it” doesn’t cut it. ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [December 3, 2003, 8:07pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/118 "2003-12-03T20:07:55Z")
I still have this little fantasy where Colin Powell tends his resignation from the Bush Cabinet in January 2004, then comes out with a tell-all book about the inner workings of the Bush Administration in July 2004. Chapter titles would include “Yes, we lied about Iraqi WMDs,” “What Bush needed to learn from Bill Clinton,” and “Secrets of the 2000 election hijack revealed.” Of course, he’d instantly be on the hit-list of every Republican zealot out there, but he’d make so much money from the book deal that he could move to a private island in the Carribean and live the rest of his life in luxury. 😉 ---
**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:** [December 3, 2003, 8:31pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/119 "2003-12-03T20:31:05Z")
**rjung** : An interesting hypothetical. If it were to come true, of whom would have the lower opinion: Bush or Powell? From my side it would be Powell. Bush, presumubly, had some reason for invading Iraq but felt he needed to lie about it in order to ensure he could actually procede with the invasion. Powell would have gone along with something he thought was morally reprehensible for the sole purpose, it would seem, of preserving his own position of power. ---
**Author:** ![Weird\_AL\_Einstein](https://avatars.discourse-cdn.com/v4/letter/w/c67d28/32.png) [@Weird\_AL\_Einstein](https://boards.straightdope.com/u/Weird_AL_Einstein)\ **Post date:** [December 23, 2003, 1:43pm UTC](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168/120 "2003-12-23T13:43:55Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*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. \*\* Interesting that you would mention the post-World War II trials. You may recall that they also held a bunch of them in Nuremburg. The Nazi officers held for trial there tried to mount a defense based on the idea that they were only following orders, ie that they were only obeying the law. This defense was definitively rejected, thus establishing the principle that, in at least some instances, it is unnacceptable to ignore a higher moral principle in favor of merely “obeying the law”. Whether or not the invasion of Iraq was truly in obedience to a higher moral principle can of course be debated (or more likely, given where I am posting this, dismissed with a sneer), but simply asserting, or even proving, that the war was illegal ought not to be the end of debate about the war itself. [Previous page](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168.md?page=5) [Next page](https://boards.straightdope.com/t/what-constitutes-a-legal-war/216168.md?page=7)