What do you think?
- Thread starter Dreadsox
- Start date
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TylerDurden
War Child
Dreadsox said:
I think when our great grandkids are studying modern history in the year 2060 and are learning about the first 20 years of this century, the details of the Iraq war itself will be a tiny footnote, but the events surrounding it will be very very important. We just watched a big old p*ssing contest to see whose idea of how to run the world is the way it's gonna be. Welcome to 'Pax Americana'.
STING2 said:
From the American Society of International Law:
The first overarching issue is whether Resolution 1483 could be regarded as an implicit approval of the legality of the coalition forces? invasion of Iraq. The United Kingdom/United States legal justification for the invasion was based primarily on previous Security Council resolutions dating back to Resolution 678, which was the basis for the military action against Iraq in 1991. That justification has not been universally accepted. [1] Nothing in Resolution 1483 explicitly approves of the 2003 invasion. The resolution does refer to the United States and United Kingdom as occupying powers, but the duties of an occupying power exist whether or not it was lawful to use the armed force that resulted in the occupation. Consequently no implication as to the lawfulness of the invasion can be drawn from the resolution?s recognition of the U.S. and U.K. as occupying powers.
The entire LEGAL opinion published by the American Society of International Law can be found here:
http://www.asil.org/insights/insigh107.htm
Dreadsox,
Seeing that the American Society of International Law was wrong on Resolutions 678, its no surprise to see that they are wrong on resolution 1483. Thank God the American Society of International Law has not been making US foreign Policy for the past 60 years. The US State Department, Defense Department, and the US congress and President elected by the American people have been conducting US foreign policy and will continue to do so in the future. But I'm sure members of the American Society of International Law will enjoy their next conference in Paris.
"The United Kingdom/United States legal justification for the invasion was based primarily on previous Security Council resolutions dating back to Resolution 678, which was the basis for the military action against Iraq in 1991. That justification has not been universally accepted."
You could say that about any justification for anything. Technically there is no such thing as "universal acceptance" especially in international relations.
"Nothing in Resolution 1483 explicitly approves of the 2003 invasion. The resolution does refer to the United States and United Kingdom as occupying powers, but the duties of an occupying power exist whether or not it was lawful to use the armed force that resulted in the occupation. Consequently no implication as to the lawfulness of the invasion can be drawn from the resolution?s recognition of the U.S. and U.K. as occupying powers."
Oh really "American Society of International Law"? So where was the resolution that recognized Iraq's Occupation of Kuwait in 1990/1991 and recognized IRAQ as the AUTHORITY? Was there a resolution that recognized the Soviet Unions occupation of Afghanistan and saw them as the AUTHORITY? Obviously, the fact that there was no resolution of recognition in those cases and there is in the current case of US and UK occupation of Iraq is solid proof that it is a legitamization of the military action to achieve that occupation. Otherwise, we would have no "resolution of recognition" like in the Iraqi occupation of Kuwait and the Soviet occupation of Afghanistan. More likely, if it was illegal as the ASIL believes, we would have a resolution calling for the withdrawal of US and UK forces rather than one that recognizes them as the AUTHORITY!
Seeing that the American Society of International Law was wrong on Resolutions 678, its no surprise to see that they are wrong on resolution 1483. Thank God the American Society of International Law has not been making US foreign Policy for the past 60 years. The US State Department, Defense Department, and the US congress and President elected by the American people have been conducting US foreign policy and will continue to do so in the future. But I'm sure members of the American Society of International Law will enjoy their next conference in Paris.
"The United Kingdom/United States legal justification for the invasion was based primarily on previous Security Council resolutions dating back to Resolution 678, which was the basis for the military action against Iraq in 1991. That justification has not been universally accepted."
You could say that about any justification for anything. Technically there is no such thing as "universal acceptance" especially in international relations.
"Nothing in Resolution 1483 explicitly approves of the 2003 invasion. The resolution does refer to the United States and United Kingdom as occupying powers, but the duties of an occupying power exist whether or not it was lawful to use the armed force that resulted in the occupation. Consequently no implication as to the lawfulness of the invasion can be drawn from the resolution?s recognition of the U.S. and U.K. as occupying powers."
Oh really "American Society of International Law"? So where was the resolution that recognized Iraq's Occupation of Kuwait in 1990/1991 and recognized IRAQ as the AUTHORITY? Was there a resolution that recognized the Soviet Unions occupation of Afghanistan and saw them as the AUTHORITY? Obviously, the fact that there was no resolution of recognition in those cases and there is in the current case of US and UK occupation of Iraq is solid proof that it is a legitamization of the military action to achieve that occupation. Otherwise, we would have no "resolution of recognition" like in the Iraqi occupation of Kuwait and the Soviet occupation of Afghanistan. More likely, if it was illegal as the ASIL believes, we would have a resolution calling for the withdrawal of US and UK forces rather than one that recognizes them as the AUTHORITY!
Sting,
Obviously we there is no room for anyone elses legal interpretation on this.
I have posted their opinions, of which they have presented both sides. The US Opinion and the well almost the rest of the world's opinion.
I am not certain if you took the time to read the entire link, however, they do address the issue of occupying power in the entire article.
I am still waiting for you to post one legal interpretation or link to back up what you say. I would even accept a State Department Lawyer's interpretation however, we, as intelligent readers of FYM will have to rely on your interpretation and the rest of the legal world be damned.
Peace
Obviously we there is no room for anyone elses legal interpretation on this.
I have posted their opinions, of which they have presented both sides. The US Opinion and the well almost the rest of the world's opinion.
I am not certain if you took the time to read the entire link, however, they do address the issue of occupying power in the entire article.
I am still waiting for you to post one legal interpretation or link to back up what you say. I would even accept a State Department Lawyer's interpretation however, we, as intelligent readers of FYM will have to rely on your interpretation and the rest of the legal world be damned.
Peace
Last edited:
Here is the State Departmenet Fact Sheet. Please identify at what point the State Department Fact sheet says 1483 legalized the military action in Iraq.
Fact Sheet
Office of the Spokesman
Washington, DC
May 22, 2003
UN Security Council Resolution 1483 Lifts Sanctions on Iraq; International Community Pledges Assistance for People of Iraq
In summary, UNSCR 1483:
Lifts the sanctions burden on the Iraqi people.
Encourages the international community to assist in helping the Iraqi people build a better future for their country.
Establishes the position of a UN Special Representative who will play a vital role in all aspects of Iraq?s reconstruction.
Winds down the Oil-for-Food program (OFF) over a six-month period, while providing for the continued delivery of priority civilian goods approved and funded under OFF to meet the immediate needs of the Iraqi people.
Supports Iraqis in charting their own political and economic future.
Reaffirms the Coalition's commitment to work with the UN and an Iraqi Interim Administration to transition authority to an internationally recognized, representative government of Iraq as efficiently and effectively as possible.
UNSCR 1483 fulfills the promise of a vital UN role and involves the international community in Iraq's recovery:
Stresses the right of the Iraqi people to freely determine their own political future and control their own natural resources. The resolution establishes a framework under Chapter VII of the UN Charter for the Coalition, the UN and others in the international community to participate in the administration and reconstruction of Iraq and to assist the Iraqi people in determining their political future, establishing new institutions, and restoring economic prosperity. The resolution will return Iraq's oil revenues to Iraq for the benefit of the Iraqi people.
Ensures the UN plays a vital role in Iraq?s reconstruction. The resolution establishes the position of a UN Special Representative of the Secretary General who will coordinate humanitarian and reconstruction assistance; assist in the development of representative government institutions; facilitate the reconstruction of key infrastructure; and promote economic, legal and judicial reform, and protection of human rights. The Special Representative will work with the Coalition and the people of Iraq to facilitate a process leading to an internationally recognized, representative government of Iraq.
Encourages international support for Iraq's recovery. The resolution makes it possible for states and organizations to support the Iraqi people in building a free, prosperous and secure Iraq, including by responding to UN humanitarian appeals, providing resources for reconstruction, and contributing to stability and security in Iraq.
Enlists the support of international financial institutions. UNSCR 1483 calls upon international financial institutions to assist the people of Iraq in the reconstruction and development of their economy and to facilitate assistance by the broader donor community, while calling on creditors to seek a multilateral and bilateral solution to Iraq?s sovereign debt.
The international community has come together to support Iraq?s recovery and economic reconstruction. UN Security Council Resolution 1483 :
Ends 13 years of sanctions. Sanctions had been imposed to compel Saddam Hussein's compliance with WMD requirements and contain the threat of his regime. By lifting these outdated sanctions, leaving in place only the weapons ban, the resolution will kick start Iraq's recovery and economic transformation.
Enables Iraq to rejoin the global market. By abolishing trade restrictions, the resolution will permit Iraq to trade freely in the international market.
Returns oil revenues to Iraq. Oil revenues from export sales will be deposited in the Development Fund for Iraq housed in the Central Bank of Iraq. The Development Fund will be monitored by an international board that includes representatives of the UN Secretary General, the IMF, the Arab Fund for Social and Economic Development, and the World Bank. Independent public accountants reporting to the board will audit the fund to ensure full transactional transparency.
Ensures Iraqi revenues are spent on Iraqi reconstruction. The resolution underlines that the Development Fund will be used in a transparent manner: for the humanitarian needs of the Iraqi people, economic reconstruction and repair of Iraq's infrastructure, the continued disarmament of Iraq, the costs of Iraqi civilian administration, and other purposes benefiting the people of Iraq.
Temporarily immunizes oil sales. To ensure that Iraqis have access to the critical resources needed for reconstruction during the transition period, oil sales will be immunized against attachment by international creditors or others with claims against the former regime until December 31, 2007.
Winds down the Oil-for-Food (OFF) program over a six-month period. The resolution allows the Secretary General, in coordination with coalition authorities and the Iraqi Interim Administration, to continue to prioritize contracts previously approved and funded by the UN for delivery to meet the immediate needs of the Iraqi people. Action on contracts judged to be of questionable usefulness in light of the changed circumstances will be postponed until an internationally recognized, representative government is established and in a position to make its own determination. One billion dollars of unallocated funds in the UN escrow account will be transferred to the Development Fund for Iraq to provide for immediate reconstruction needs.
Winding down OFF will not mean an immediate end to food distribution. This resolution is an important first step in Iraq's transition to a market economy. During the transition, food distribution will continue through a public distribution system.
Returns assets stolen by Saddam and his regime to Iraq. Stolen assets will be deposited into the Development Fund to support Iraq?s reconstruction.
Resolution 1483 also:
Promotes disarmament of Iraq. UNSCR 1483 reaffirms the need to disarm Iraq of its weapons of mass destruction.
Bars Iraqis alleged to have committed crimes and atrocities from receiving safe haven in other countries. UNSCR 1483 affirms the need for accountability for crimes and atrocities committed by members of Saddam's regime.
Protects Iraq's heritage. UNSCR 1483 establishes a ban on international trade in Iraqi cultural property and other archaeological, historical, cultural, religious and rare scientific items illegally removed from the Iraq National Museum, National Library and other locations.
Supports continued efforts to account for Kuwaitis and others missing since Iraq's 1990 invasion of Kuwait. UNSCR 1483 directs the International Committee of the Red Cross and other appropriate organizations and individuals to continue efforts to account for the fate of Kuwaiti and Third Country missing persons and property unaccounted for since Saddam's 1990 invasion of Kuwait.
Provides for continued funding of the UN Compensation Commission, which deals with outstanding claims for victims of Saddam's aggression in Kuwait. Five percent of oil proceeds will be deposited into the UNCC Compensation Fund.
[End]
Released on May 22, 2003http://www.state.gov/r/pa/prs/ps/2003/20888.htm
Fact Sheet
Office of the Spokesman
Washington, DC
May 22, 2003
UN Security Council Resolution 1483 Lifts Sanctions on Iraq; International Community Pledges Assistance for People of Iraq
In summary, UNSCR 1483:
Lifts the sanctions burden on the Iraqi people.
Encourages the international community to assist in helping the Iraqi people build a better future for their country.
Establishes the position of a UN Special Representative who will play a vital role in all aspects of Iraq?s reconstruction.
Winds down the Oil-for-Food program (OFF) over a six-month period, while providing for the continued delivery of priority civilian goods approved and funded under OFF to meet the immediate needs of the Iraqi people.
Supports Iraqis in charting their own political and economic future.
Reaffirms the Coalition's commitment to work with the UN and an Iraqi Interim Administration to transition authority to an internationally recognized, representative government of Iraq as efficiently and effectively as possible.
UNSCR 1483 fulfills the promise of a vital UN role and involves the international community in Iraq's recovery:
Stresses the right of the Iraqi people to freely determine their own political future and control their own natural resources. The resolution establishes a framework under Chapter VII of the UN Charter for the Coalition, the UN and others in the international community to participate in the administration and reconstruction of Iraq and to assist the Iraqi people in determining their political future, establishing new institutions, and restoring economic prosperity. The resolution will return Iraq's oil revenues to Iraq for the benefit of the Iraqi people.
Ensures the UN plays a vital role in Iraq?s reconstruction. The resolution establishes the position of a UN Special Representative of the Secretary General who will coordinate humanitarian and reconstruction assistance; assist in the development of representative government institutions; facilitate the reconstruction of key infrastructure; and promote economic, legal and judicial reform, and protection of human rights. The Special Representative will work with the Coalition and the people of Iraq to facilitate a process leading to an internationally recognized, representative government of Iraq.
Encourages international support for Iraq's recovery. The resolution makes it possible for states and organizations to support the Iraqi people in building a free, prosperous and secure Iraq, including by responding to UN humanitarian appeals, providing resources for reconstruction, and contributing to stability and security in Iraq.
Enlists the support of international financial institutions. UNSCR 1483 calls upon international financial institutions to assist the people of Iraq in the reconstruction and development of their economy and to facilitate assistance by the broader donor community, while calling on creditors to seek a multilateral and bilateral solution to Iraq?s sovereign debt.
The international community has come together to support Iraq?s recovery and economic reconstruction. UN Security Council Resolution 1483 :
Ends 13 years of sanctions. Sanctions had been imposed to compel Saddam Hussein's compliance with WMD requirements and contain the threat of his regime. By lifting these outdated sanctions, leaving in place only the weapons ban, the resolution will kick start Iraq's recovery and economic transformation.
Enables Iraq to rejoin the global market. By abolishing trade restrictions, the resolution will permit Iraq to trade freely in the international market.
Returns oil revenues to Iraq. Oil revenues from export sales will be deposited in the Development Fund for Iraq housed in the Central Bank of Iraq. The Development Fund will be monitored by an international board that includes representatives of the UN Secretary General, the IMF, the Arab Fund for Social and Economic Development, and the World Bank. Independent public accountants reporting to the board will audit the fund to ensure full transactional transparency.
Ensures Iraqi revenues are spent on Iraqi reconstruction. The resolution underlines that the Development Fund will be used in a transparent manner: for the humanitarian needs of the Iraqi people, economic reconstruction and repair of Iraq's infrastructure, the continued disarmament of Iraq, the costs of Iraqi civilian administration, and other purposes benefiting the people of Iraq.
Temporarily immunizes oil sales. To ensure that Iraqis have access to the critical resources needed for reconstruction during the transition period, oil sales will be immunized against attachment by international creditors or others with claims against the former regime until December 31, 2007.
Winds down the Oil-for-Food (OFF) program over a six-month period. The resolution allows the Secretary General, in coordination with coalition authorities and the Iraqi Interim Administration, to continue to prioritize contracts previously approved and funded by the UN for delivery to meet the immediate needs of the Iraqi people. Action on contracts judged to be of questionable usefulness in light of the changed circumstances will be postponed until an internationally recognized, representative government is established and in a position to make its own determination. One billion dollars of unallocated funds in the UN escrow account will be transferred to the Development Fund for Iraq to provide for immediate reconstruction needs.
Winding down OFF will not mean an immediate end to food distribution. This resolution is an important first step in Iraq's transition to a market economy. During the transition, food distribution will continue through a public distribution system.
Returns assets stolen by Saddam and his regime to Iraq. Stolen assets will be deposited into the Development Fund to support Iraq?s reconstruction.
Resolution 1483 also:
Promotes disarmament of Iraq. UNSCR 1483 reaffirms the need to disarm Iraq of its weapons of mass destruction.
Bars Iraqis alleged to have committed crimes and atrocities from receiving safe haven in other countries. UNSCR 1483 affirms the need for accountability for crimes and atrocities committed by members of Saddam's regime.
Protects Iraq's heritage. UNSCR 1483 establishes a ban on international trade in Iraqi cultural property and other archaeological, historical, cultural, religious and rare scientific items illegally removed from the Iraq National Museum, National Library and other locations.
Supports continued efforts to account for Kuwaitis and others missing since Iraq's 1990 invasion of Kuwait. UNSCR 1483 directs the International Committee of the Red Cross and other appropriate organizations and individuals to continue efforts to account for the fate of Kuwaiti and Third Country missing persons and property unaccounted for since Saddam's 1990 invasion of Kuwait.
Provides for continued funding of the UN Compensation Commission, which deals with outstanding claims for victims of Saddam's aggression in Kuwait. Five percent of oil proceeds will be deposited into the UNCC Compensation Fund.
[End]
Released on May 22, 2003http://www.state.gov/r/pa/prs/ps/2003/20888.htm
Last edited:
War On Iraq Was Illegal, Say Top Lawyers
By Severin Carrell and Robert Verkaik
Independent
May 25, 2003
The war on Iraq will be condemned as illegal by a panel of eminent international lawyers at a conference being organised by the actor Corin Redgrave. The symposium, to be held next Sunday at the Young Vic theatre in London, will also hear senior legal experts allege that the conflict has seriously weakened the authority of the United Nations and potentially threatened global security.
The panellists include Professor Philippe Sands QC, a member of Cherie Booth's Matrix chambers, Professor Christine Chinkin, professor of international law at the London School of Economics, and Jan Kavan, the president of the UN General Assembly and former Czech foreign minister.
Another prominent speaker, Professor Burns Weston, a human rights lawyer at the University of Iowa in the US, fears that other countries might use the American decision to wage war illegally to justify their own unlawful wars. He is most concerned about India and Pakistan - two nuclear powers in dispute over Kashmir. "It is a very bad precedent for other countries that might seek, in their own lack of wisdom, to emulate the United States," he said.
The event, called "Liberation or War Crime" will be chaired by the former Radio 4 Today programme presenter Sue MacGregor and is expected to attract other prominent figures, including the playwright David Hare, the Booker Prize-winning Indian writer Arundhati Roy and the former foreign secretary Robin Cook.
Prof Sands, one of 16 prominent international lawyers who earlier this year publicly warned Tony Blair that the war was illegal, said the conflict raised two major issues. "First, did the Security Council authorise the use of force, and the answer to that is no. And [second] were we misled about the presence of weapons of mass destruction? Apparently, yes. These things are going to come back to haunt us," Prof Sands said.
Mr Redgrave, whose film roles include parts in Four Weddings and A Funeral, Enigma and In the Name of the Father, said one objective in staging and paying for the event was to investigate the damage caused by the war to international peace. "Very early on, before the war began, it seemed that one of the main casualties of war was the whole fabric of international law and convention," he said. "It seemed to me there was a willingness, indeed a desire, on the part of America at least, to rend that fabric in a way that would almost make it irreparable." The controversy over the legality of the war partly subsided on Thursday after the US supported an unexpectedly far-reaching resolution at the Security Council guaranteeing Iraq's independence and giving the UN a more powerful role in its reconstruction.
Although the resolution answered widespread concerns that the occupation of Iraq was also illegal - concerns shared by the Attorney General, Lord Goldsmith - British lawyers warned there were still serious worries over the legality of the coalition's conduct. Peter Carter QC, chairman of the Bar Council's human rights committee, said coalition forces were in breach of UN Resolution 1325, which requires participants in a conflict to have particular regard to the rights of women.
Since the war, Mr Carter said, women feared more for their safety because of the frequent looting, chaos and unlawfulness. "Women must feel free to walk the streets and go about their business. It is true to say that Iraqi women during Saddam's rule experienced greater freedoms than in other Arab countries."
Prof Sands said the new UN resolution had, for the first time, cancelled all previous legal or contractual rights to Iraq's oil - giving the coalition freedom to sell the oil to whichever firm they wanted. This raised "far-reaching" questions about the rights of an occupier to control a country's natural resources.
'There was no threat. There was no resolution'
Professor Philippe Sands QC Director of the Centre on International Courts and Tribunals, University College London The war was contrary to international law and it was contrary to international law whether or not they find weapons of mass destruction. The illegality was based on the absence of a Security Council resolution authorising the use of force. I think that is the view of almost every independent commentator. The claim by the Attorney General, Lord Goldsmith - that the war was legal because Saddam Hussein had failed to comply with UN resolutions dating back to Iraq's invasion of Kuwait - has received almost no support outside the UK or the United States from independent academic commentators.
Professor Robert Black QC Professor of Scots law, Edinburgh University, and architect of the Lockerbie trial in The Hague It's simple and straightforward. There are only two legal justifications for attacking another country: self-defence, or if the Security Council authorises you to do so. It is perfectly plain that none of the Security Council resolutions relating to Iraq authorised armed intervention. It's possible to cobble together what looks like a legal argument, but the real test of any legal argument is whether a court would accept that argument. I challenged the Attorney General to say what he thought the odds were of the International Court of Justice in The Hague accepting his argument. In my view, the odds against were greater than 10 to 1.
Professor Sean Murphy Associate professor of law at George Washington University, Washington DC I think there's a real question to be raised about whether the US, UK and Australian coalition properly intervened in Iraq without Security Council authorisation, and I think there are very sound reasons for saying that the intervention was not permitted. The US-UK legal justification, which is based on Security Council resolutions dating back to 1990-91, isn't credible. When you look closely at the resolutions and the practice of the Security Council, it's clear that the majority of members of the Security Council believed that further authorisation was needed in March 2003 than, in fact, existed.
Professor Vaughan Lowe Chichele Professor of Public International Law, All Souls College, Oxford The new resolution provides a firm legal basis for the coalition occupation of Iraq. It gives the UN a role that is prominent on paper but which, in fact, is not at all powerful on the ground. The coalition practically has a free hand in 'promoting' reform and the formation of an interim administration ... The key question is how far the coalition may proceed with economic and political restructuring in Iraq before the election of a government by the Iraqi people. The resolution does not spell that out; nor does it fix any timetable for the return of power to the Iraqi people. Nor does it stipulate how the massive reconstruction costs of the programme - and the benefits, in terms of commercial contracts - will be distributed.
Professor James Crawford Whewell Professor of International Law, Jesus College, Cambridge On the information available, none of the exceptions that permit the use of force applied. There was no UN Security Council authorisation, and no imminent humanitarian catastrophe, and no imminent threat of the use of force by Iraq. I think it was unlawful in the beginning, and they haven't found anything since to make one change one's mind. The earlier Security Council resolutions were related to the occupation of Kuwait, and that situation has completely changed. It's very contrived to treat Resolution 1441 as if it authorises the use of force.
Professor Mary Kaldor Professor of global governance, London School of Economics Going back to the 1991 UN resolutions is the real weakness of their argument. It is an awfully long time ago, and it's as though this isn't a new war - as if it is the same war we fought in 1991. I think that it is an incredibly weak legal case. I don't think there's any way we can argue that the Iraq intervention was legitimate, and it's illegitimate for two reasons. There was no real case that the inspectors weren't dealing with the weapons of mass destruction. And, we're now seeing what a lot of people warned we would see: that this will be bad for [curbing] terrorism rather than good.
By Severin Carrell and Robert Verkaik
Independent
May 25, 2003
The war on Iraq will be condemned as illegal by a panel of eminent international lawyers at a conference being organised by the actor Corin Redgrave. The symposium, to be held next Sunday at the Young Vic theatre in London, will also hear senior legal experts allege that the conflict has seriously weakened the authority of the United Nations and potentially threatened global security.
The panellists include Professor Philippe Sands QC, a member of Cherie Booth's Matrix chambers, Professor Christine Chinkin, professor of international law at the London School of Economics, and Jan Kavan, the president of the UN General Assembly and former Czech foreign minister.
Another prominent speaker, Professor Burns Weston, a human rights lawyer at the University of Iowa in the US, fears that other countries might use the American decision to wage war illegally to justify their own unlawful wars. He is most concerned about India and Pakistan - two nuclear powers in dispute over Kashmir. "It is a very bad precedent for other countries that might seek, in their own lack of wisdom, to emulate the United States," he said.
The event, called "Liberation or War Crime" will be chaired by the former Radio 4 Today programme presenter Sue MacGregor and is expected to attract other prominent figures, including the playwright David Hare, the Booker Prize-winning Indian writer Arundhati Roy and the former foreign secretary Robin Cook.
Prof Sands, one of 16 prominent international lawyers who earlier this year publicly warned Tony Blair that the war was illegal, said the conflict raised two major issues. "First, did the Security Council authorise the use of force, and the answer to that is no. And [second] were we misled about the presence of weapons of mass destruction? Apparently, yes. These things are going to come back to haunt us," Prof Sands said.
Mr Redgrave, whose film roles include parts in Four Weddings and A Funeral, Enigma and In the Name of the Father, said one objective in staging and paying for the event was to investigate the damage caused by the war to international peace. "Very early on, before the war began, it seemed that one of the main casualties of war was the whole fabric of international law and convention," he said. "It seemed to me there was a willingness, indeed a desire, on the part of America at least, to rend that fabric in a way that would almost make it irreparable." The controversy over the legality of the war partly subsided on Thursday after the US supported an unexpectedly far-reaching resolution at the Security Council guaranteeing Iraq's independence and giving the UN a more powerful role in its reconstruction.
Although the resolution answered widespread concerns that the occupation of Iraq was also illegal - concerns shared by the Attorney General, Lord Goldsmith - British lawyers warned there were still serious worries over the legality of the coalition's conduct. Peter Carter QC, chairman of the Bar Council's human rights committee, said coalition forces were in breach of UN Resolution 1325, which requires participants in a conflict to have particular regard to the rights of women.
Since the war, Mr Carter said, women feared more for their safety because of the frequent looting, chaos and unlawfulness. "Women must feel free to walk the streets and go about their business. It is true to say that Iraqi women during Saddam's rule experienced greater freedoms than in other Arab countries."
Prof Sands said the new UN resolution had, for the first time, cancelled all previous legal or contractual rights to Iraq's oil - giving the coalition freedom to sell the oil to whichever firm they wanted. This raised "far-reaching" questions about the rights of an occupier to control a country's natural resources.
'There was no threat. There was no resolution'
Professor Philippe Sands QC Director of the Centre on International Courts and Tribunals, University College London The war was contrary to international law and it was contrary to international law whether or not they find weapons of mass destruction. The illegality was based on the absence of a Security Council resolution authorising the use of force. I think that is the view of almost every independent commentator. The claim by the Attorney General, Lord Goldsmith - that the war was legal because Saddam Hussein had failed to comply with UN resolutions dating back to Iraq's invasion of Kuwait - has received almost no support outside the UK or the United States from independent academic commentators.
Professor Robert Black QC Professor of Scots law, Edinburgh University, and architect of the Lockerbie trial in The Hague It's simple and straightforward. There are only two legal justifications for attacking another country: self-defence, or if the Security Council authorises you to do so. It is perfectly plain that none of the Security Council resolutions relating to Iraq authorised armed intervention. It's possible to cobble together what looks like a legal argument, but the real test of any legal argument is whether a court would accept that argument. I challenged the Attorney General to say what he thought the odds were of the International Court of Justice in The Hague accepting his argument. In my view, the odds against were greater than 10 to 1.
Professor Sean Murphy Associate professor of law at George Washington University, Washington DC I think there's a real question to be raised about whether the US, UK and Australian coalition properly intervened in Iraq without Security Council authorisation, and I think there are very sound reasons for saying that the intervention was not permitted. The US-UK legal justification, which is based on Security Council resolutions dating back to 1990-91, isn't credible. When you look closely at the resolutions and the practice of the Security Council, it's clear that the majority of members of the Security Council believed that further authorisation was needed in March 2003 than, in fact, existed.
Professor Vaughan Lowe Chichele Professor of Public International Law, All Souls College, Oxford The new resolution provides a firm legal basis for the coalition occupation of Iraq. It gives the UN a role that is prominent on paper but which, in fact, is not at all powerful on the ground. The coalition practically has a free hand in 'promoting' reform and the formation of an interim administration ... The key question is how far the coalition may proceed with economic and political restructuring in Iraq before the election of a government by the Iraqi people. The resolution does not spell that out; nor does it fix any timetable for the return of power to the Iraqi people. Nor does it stipulate how the massive reconstruction costs of the programme - and the benefits, in terms of commercial contracts - will be distributed.
Professor James Crawford Whewell Professor of International Law, Jesus College, Cambridge On the information available, none of the exceptions that permit the use of force applied. There was no UN Security Council authorisation, and no imminent humanitarian catastrophe, and no imminent threat of the use of force by Iraq. I think it was unlawful in the beginning, and they haven't found anything since to make one change one's mind. The earlier Security Council resolutions were related to the occupation of Kuwait, and that situation has completely changed. It's very contrived to treat Resolution 1441 as if it authorises the use of force.
Professor Mary Kaldor Professor of global governance, London School of Economics Going back to the 1991 UN resolutions is the real weakness of their argument. It is an awfully long time ago, and it's as though this isn't a new war - as if it is the same war we fought in 1991. I think that it is an incredibly weak legal case. I don't think there's any way we can argue that the Iraq intervention was legitimate, and it's illegitimate for two reasons. There was no real case that the inspectors weren't dealing with the weapons of mass destruction. And, we're now seeing what a lot of people warned we would see: that this will be bad for [curbing] terrorism rather than good.
STING2 said:
It is interesting your clear disgust and lack of respect for the opinions that I have linked two over the past six months. FYI so far I have found Columbia Law and Boston University Law Schools have linked to these articles as well. They must not know what they are doing there as well.
Dreadsox,
"Obviously we there is no room for anyone elses legal interpretation on this."
"I have posted their opinions, of which they have presented both sides. The US Opinion and the well almost the rest of the world's opinion."
"I am not certain if you took the time to read the entire link, however, they do address the issue of occupying power in the entire article."
"I am still waiting for you to post one legal interpretation or link to back up what you say. I would even accept a State Department Lawyer's interpretation however, we, as intelligent readers of FYM will have to rely on your interpretation and the rest of the legal world be damned."
"It is interesting your clear disgust and lack of respect for the opinions that I have linked two over the past six months. FYI so far I have found Columbia Law and Boston University Law Schools have linked to these articles as well. They must not know what they are doing there as well."
Obviously there is no room for an opinion like mine here, even though its a minority opinion, at FYM that is? It must be illegal and immoral for me to have a difference of opinion with an "esteemed or group of esteemed lawyers"? After all, because their lawyers, that means their automatically correct in their views, right?
My own experience and education, that of my friends currently in Iraq/Kuwait, other friends and family, the US State Department, George Bush, Donald Rumsfeld, Colin Powell, Dick Cheney, Condulezza Rice, CIA, DIA, hundreds of thousands of US service personal, the MAJORITY of the American people, and the governments of 40 OTHER COUNTRIES means nothing next to the American Society of International Law and their similar opinionated colleages both legal and academic, right?
I don't agree with many things the American Society of International Law says on International Relations. I'm not the only one. The State Department, President, Congress, and the majority of the American people feel the same way. ITS OUR OPINION!
If you think what my best friend of 19 years did in Iraq from the period of March 19 to May 22 was illegal, FINE! That is your opinion. I respect that, but you in turn should respect other peoples opinions, my own and many others, that his actions were legal under both US and International Law!
Because I have a difference of opinion with any or all the "legal experts" you have posted does not mean I have damned their opinions for good. More importantly, my difference of opinion with you or anything you posts can never be inferred as "disgusts". Having a different opinion on something is NOT an act of disrespect! But suggesting that my opinion is less valuable or that my intelligence is some how inferior because I have not taken the time to posts or link to "internet sites" is disrespectful.
In my last post, I dicussed the ASIL opinions on the resolutions and the war. In your latest posts, it seems your interested in discussing me personally. Instead of your thoughts on what I specifically said or answering any of my questions, it seems you have proceeded to accuse me of being disrespectful, my opinion invalid, and myself unintelligent. Even if NONE of that is true, the thoughts are directed towards me and not what we were actually discussing. All I did in my prior posts was give my honest opinion, none of it personally directed at you. I'd appreciate a non-personal response to that if thats possible.
Is it so hard for you to understand that recognition and approval of a stated condition legitamizes the actions taken to achieve that condition?
"Obviously we there is no room for anyone elses legal interpretation on this."
"I have posted their opinions, of which they have presented both sides. The US Opinion and the well almost the rest of the world's opinion."
"I am not certain if you took the time to read the entire link, however, they do address the issue of occupying power in the entire article."
"I am still waiting for you to post one legal interpretation or link to back up what you say. I would even accept a State Department Lawyer's interpretation however, we, as intelligent readers of FYM will have to rely on your interpretation and the rest of the legal world be damned."
"It is interesting your clear disgust and lack of respect for the opinions that I have linked two over the past six months. FYI so far I have found Columbia Law and Boston University Law Schools have linked to these articles as well. They must not know what they are doing there as well."
Obviously there is no room for an opinion like mine here, even though its a minority opinion, at FYM that is? It must be illegal and immoral for me to have a difference of opinion with an "esteemed or group of esteemed lawyers"? After all, because their lawyers, that means their automatically correct in their views, right?
My own experience and education, that of my friends currently in Iraq/Kuwait, other friends and family, the US State Department, George Bush, Donald Rumsfeld, Colin Powell, Dick Cheney, Condulezza Rice, CIA, DIA, hundreds of thousands of US service personal, the MAJORITY of the American people, and the governments of 40 OTHER COUNTRIES means nothing next to the American Society of International Law and their similar opinionated colleages both legal and academic, right?
I don't agree with many things the American Society of International Law says on International Relations. I'm not the only one. The State Department, President, Congress, and the majority of the American people feel the same way. ITS OUR OPINION!
If you think what my best friend of 19 years did in Iraq from the period of March 19 to May 22 was illegal, FINE! That is your opinion. I respect that, but you in turn should respect other peoples opinions, my own and many others, that his actions were legal under both US and International Law!
Because I have a difference of opinion with any or all the "legal experts" you have posted does not mean I have damned their opinions for good. More importantly, my difference of opinion with you or anything you posts can never be inferred as "disgusts". Having a different opinion on something is NOT an act of disrespect! But suggesting that my opinion is less valuable or that my intelligence is some how inferior because I have not taken the time to posts or link to "internet sites" is disrespectful.
In my last post, I dicussed the ASIL opinions on the resolutions and the war. In your latest posts, it seems your interested in discussing me personally. Instead of your thoughts on what I specifically said or answering any of my questions, it seems you have proceeded to accuse me of being disrespectful, my opinion invalid, and myself unintelligent. Even if NONE of that is true, the thoughts are directed towards me and not what we were actually discussing. All I did in my prior posts was give my honest opinion, none of it personally directed at you. I'd appreciate a non-personal response to that if thats possible.
Is it so hard for you to understand that recognition and approval of a stated condition legitamizes the actions taken to achieve that condition?
Dreadsox,
"Is it so hard for you to understand that recognition and approval of a stated condition legitamizes the actions taken to achieve that condition?"
Sorry that the above was left on the end of the posts above. It got pushed down and I was not planning on including it and I forgot about it and it became apart of the posts. I don't think its difficult for you to understand that point of view which is what I suppose it really is rather than an indisputable fact. A rather Ironic statement in light of the paragraph much further above it I know. But honestly, I want to avoid personal statements and opinions and stick to non-personal statements and opinions on organizations, governments, and the actions taken by both in international relations.
I do not feel that my opinions about the ASIL in the posts before lasts or my arguements in that post were personal in nature.
"Is it so hard for you to understand that recognition and approval of a stated condition legitamizes the actions taken to achieve that condition?"
Sorry that the above was left on the end of the posts above. It got pushed down and I was not planning on including it and I forgot about it and it became apart of the posts. I don't think its difficult for you to understand that point of view which is what I suppose it really is rather than an indisputable fact. A rather Ironic statement in light of the paragraph much further above it I know. But honestly, I want to avoid personal statements and opinions and stick to non-personal statements and opinions on organizations, governments, and the actions taken by both in international relations.
I do not feel that my opinions about the ASIL in the posts before lasts or my arguements in that post were personal in nature.
FizzingWhizzbees
ONE love, blood, life
STING,
On numerous occassions prior to the war you stated that the opinion of the UN was irrelevant to you and that the US ought to go to war regardless of whether it was supported or condemned by the United Nations. Why then do you now feel it's important to prove that the UN did approve the war, if it was so irrelevant prior to the war.
On numerous occassions prior to the war you stated that the opinion of the UN was irrelevant to you and that the US ought to go to war regardless of whether it was supported or condemned by the United Nations. Why then do you now feel it's important to prove that the UN did approve the war, if it was so irrelevant prior to the war.
Sting,
I do believe that we acted outside of the framework of the UN. SO by that technical definition, yes we acted illegally in my opinion.
I also stated in here before the war that with or without the UN I felt that the United States had the right to defind itself legal or not in the worlds' eyes. One of the reasons I feel that going for Resolution 1441 was wrong was that it did not clearly authorize force. It was AMBIGUOUS. Many legal opinions on 1441 say very clearly that it is AMBIGUAOUS. We should have either spelled it out that force would be authorized, or we should have acted under the belief that 678 authorized force. 1441 in my opinion put that into question, and did not clear it up. That is why I so wanted that last resolution to be put forward for a vote. Regardless of the French and Russian Veto, it was important to show that we were not attempting to circumvent the council, which I believe it can now be argued that the United States did just that.
Legal or Illegal, based on the information that this administration presented to the world, I was for the war. If the UN was not able to act, I believe in my heart it was the right thing to do based on the information. The problem now, is that my belief in the case presented by the administration now is looking more and more like swiss cheeses, full of holes. If I were still in the service, I would be very concerned that my life and the lives of my comrades were put at risk and are being put at risk daily, over a bunch of lies sold to the citizens of the US and the World. I am withholding judgement on this at this time.
As to it becoming personal with you and I, it is not. I am sorry that you take it that way. The fact is, when I or others post any statement that includes UN or Resolution, it deteriorates into the same old conversation and kills the thread. Anytime someone refers to the war being illegal, it becomes another lecture into 678 affirmed ect ect. We have read that, read that, read that. Good grief, even the law sites that I visit more often than not acknowledge that there are two opinions on the interpretation of the reolutions. Maybe Pax is right. If we had a thread in which both sides are presented with links, both sides could respond to each other with a link directly to the UN Resolution thread. That way the thread is not killed.
You do an excellent job putting the administrations case into your own words, but it would help if you would link to something to give us to read ourselves. Otherwise it continues to be I AM RIGHT and you are wrong. I hope that you start providing links to show where your opinions come from.
If Pax wants to make this the thread to debate the UN Resolutions that would be fine with me. International Law is Ambiguous the really cool thing about FYM is that I have found that our arguments here appear in some of the legal briefs on the resolutions after we have argued them out. Kind of cool that we here, have made some excellent cases.
I do believe that we acted outside of the framework of the UN. SO by that technical definition, yes we acted illegally in my opinion.
I also stated in here before the war that with or without the UN I felt that the United States had the right to defind itself legal or not in the worlds' eyes. One of the reasons I feel that going for Resolution 1441 was wrong was that it did not clearly authorize force. It was AMBIGUOUS. Many legal opinions on 1441 say very clearly that it is AMBIGUAOUS. We should have either spelled it out that force would be authorized, or we should have acted under the belief that 678 authorized force. 1441 in my opinion put that into question, and did not clear it up. That is why I so wanted that last resolution to be put forward for a vote. Regardless of the French and Russian Veto, it was important to show that we were not attempting to circumvent the council, which I believe it can now be argued that the United States did just that.
Legal or Illegal, based on the information that this administration presented to the world, I was for the war. If the UN was not able to act, I believe in my heart it was the right thing to do based on the information. The problem now, is that my belief in the case presented by the administration now is looking more and more like swiss cheeses, full of holes. If I were still in the service, I would be very concerned that my life and the lives of my comrades were put at risk and are being put at risk daily, over a bunch of lies sold to the citizens of the US and the World. I am withholding judgement on this at this time.
As to it becoming personal with you and I, it is not. I am sorry that you take it that way. The fact is, when I or others post any statement that includes UN or Resolution, it deteriorates into the same old conversation and kills the thread. Anytime someone refers to the war being illegal, it becomes another lecture into 678 affirmed ect ect. We have read that, read that, read that. Good grief, even the law sites that I visit more often than not acknowledge that there are two opinions on the interpretation of the reolutions. Maybe Pax is right. If we had a thread in which both sides are presented with links, both sides could respond to each other with a link directly to the UN Resolution thread. That way the thread is not killed.
You do an excellent job putting the administrations case into your own words, but it would help if you would link to something to give us to read ourselves. Otherwise it continues to be I AM RIGHT and you are wrong. I hope that you start providing links to show where your opinions come from.
If Pax wants to make this the thread to debate the UN Resolutions that would be fine with me. International Law is Ambiguous the really cool thing about FYM is that I have found that our arguments here appear in some of the legal briefs on the resolutions after we have argued them out. Kind of cool that we here, have made some excellent cases.
Dreadsox,
"As to it becoming personal with you and I, it is not. I am sorry that you take it that way. The fact is, when I or others post any statement that includes UN or Resolution, it deteriorates into the same old conversation and kills the thread. Anytime someone refers to the war being illegal, it becomes another lecture into 678 affirmed ect ect. We have read that, read that, read that. Good grief, even the law sites that I visit more often than not acknowledge that there are two opinions on the interpretation of the reolutions. Maybe Pax is right. If we had a thread in which both sides are presented with links, both sides could respond to each other with a link directly to the UN Resolution thread. That way the thread is not killed."
Your obviously talking about things that don't actually pertain to this thread. I never slag anyone off for offering their opinion on anything as long as it is not personal. Your comments above were not directed at what I said about the situation in Iraq itself. They were directed at me.
People here reserve the right to say whatever they want about Bush or the Iraq war, over and over and over again! I have every right to state my opinion on those issues and will continue to do so in the future. If you don't like it, DON'T READ IT! I don't kill any threads nor do I start such debates that are accused of supposedly killing threads. I only respond to other things people say in the thread itself. But because my opinion on this particular issue is toxic to some people(which is absurd), I get attacked.
"You do an excellent job putting the administrations case into your own words, but it would help if you would link to something to give us to read ourselves. Otherwise it continues to be I AM RIGHT and you are wrong. I hope that you start providing links to show where your opinions come from."
My opinions come from reading and observing multiple pieces of information from various forms of media in multiple articles and from various people on TV. I go after details and rarely base my opinion on someone elses opinion piece. I formed most of my opinion on the UN resolutions by reading the resolutions themselves over and over again and putting them in the context of the events that happened. If you want a link to the UN documents center, I could provide that but I think you know where that is. Often what I read in journals like Foreign Affairs, Foreign Policy, the Economist magazine, Army Times, other magazines and newspapers etc, is often not available or at least not fully available on the internet.
I don't need to read an opinion article or legal opinion article in order to form an informed opinion on a particular issue. Everyone can easily collect the details themselves and form their own opinion without having to study another journalists or lawyer's opinion on the topic. Not to say that is not sometimes helpful, but to say that is a prerequisite for any type of discussion is absurd. Lots of good journalist come up with their opinions by observing and collecting details rather than reading an opinion piece by another journalist.
"Otherwise it continues to be I AM RIGHT and you are wrong. I hope that you start providing links to show where your opinions come from."
That is incorrect, it is simply my opinion. You are the one infers things beyond that. My opinions come from ME based on things I observe here and there often from things that are not immediately available online. I much rather take an idea or thought from an article if I think its relevant and mention in the context of something I'm saying rather than cut and paste the entire article which only contained a single nugget of info I was using. I'm sorry, but I do not look at the discussion forum here as being a place for presenting documented research papers. I see it as a discussion forum where people shoot from the hip, with whatever is on their mind. Thats simply my opinion and I respect yourself and everyone else that does things differently. I can't claim to have never posted any articles because I have a couple of times. But If I do that, its usually done as opposed to responding myself.
I honestly do not understand your obsession on whether or not a I posts someone elses opinion. I like to express my opinion as I have done here for nearly 3 years. Many if not most people at interference do the same. If you enjoy finding articles around the internet and posting them here, that is fine. I read most of them. But I'm much more interested in what YOU have to say.
I believe everyone here at interference is equal regardless of their opinion on a certain topic. I do not in any way attempt to devalue or criticize another person because of their opinion or the frequency in which they express that opinion in responding to frequent posts on that issue from other people.
As for resolution 1441, I do not think its ambigious at all when one considers the CONTEXT in which it is passed. "Serious Consequences" means military force simply because Iraq was already facing every consequence short of military force at the time the resolution was passed. Because in that context "Serious Consequences" can only have one meaning, there is nothing ambigious about it at all.
Resolution 1483 for me simply bolsters all the opinions I had expressed prior on the issue. Its kind of like the icing on the cake in my view. But I always realized before hand that there would be people who would never see it that way and thats fine, I respect that. But for me time and more reading, listening, and observing, on the issue has only strenthened my opinions and original arguements on the whole issue from several months ago.
The vast majority of the evidence that Bush and other leaders had for going into Iraq was the simple fact that Iraq had failed to comply with their obligations. Iraq was in material breech of its obligations. Iraq never complied with its obligations. Never before has a dictator like Saddam been given so many chances to comply and never faced any serious consequences until now. The UN report from the fall of 1998 and Iraq's failure to account for the WMD on that report is more than sufficient to justify any military action against Iraq. The allegations being leveled at Bush and Blair are primarily "political" by people who seem to be unaware about the facts of the UN report from 1998 and that the majority of the evidence they claim that Bush lied about is in fact from that report itself. If thats what the democrats to decide to run on in 2004, they will be swiftly beaten at the voting booth in November.
Just my opinion.
"As to it becoming personal with you and I, it is not. I am sorry that you take it that way. The fact is, when I or others post any statement that includes UN or Resolution, it deteriorates into the same old conversation and kills the thread. Anytime someone refers to the war being illegal, it becomes another lecture into 678 affirmed ect ect. We have read that, read that, read that. Good grief, even the law sites that I visit more often than not acknowledge that there are two opinions on the interpretation of the reolutions. Maybe Pax is right. If we had a thread in which both sides are presented with links, both sides could respond to each other with a link directly to the UN Resolution thread. That way the thread is not killed."
Your obviously talking about things that don't actually pertain to this thread. I never slag anyone off for offering their opinion on anything as long as it is not personal. Your comments above were not directed at what I said about the situation in Iraq itself. They were directed at me.
People here reserve the right to say whatever they want about Bush or the Iraq war, over and over and over again! I have every right to state my opinion on those issues and will continue to do so in the future. If you don't like it, DON'T READ IT! I don't kill any threads nor do I start such debates that are accused of supposedly killing threads. I only respond to other things people say in the thread itself. But because my opinion on this particular issue is toxic to some people(which is absurd), I get attacked.
"You do an excellent job putting the administrations case into your own words, but it would help if you would link to something to give us to read ourselves. Otherwise it continues to be I AM RIGHT and you are wrong. I hope that you start providing links to show where your opinions come from."
My opinions come from reading and observing multiple pieces of information from various forms of media in multiple articles and from various people on TV. I go after details and rarely base my opinion on someone elses opinion piece. I formed most of my opinion on the UN resolutions by reading the resolutions themselves over and over again and putting them in the context of the events that happened. If you want a link to the UN documents center, I could provide that but I think you know where that is. Often what I read in journals like Foreign Affairs, Foreign Policy, the Economist magazine, Army Times, other magazines and newspapers etc, is often not available or at least not fully available on the internet.
I don't need to read an opinion article or legal opinion article in order to form an informed opinion on a particular issue. Everyone can easily collect the details themselves and form their own opinion without having to study another journalists or lawyer's opinion on the topic. Not to say that is not sometimes helpful, but to say that is a prerequisite for any type of discussion is absurd. Lots of good journalist come up with their opinions by observing and collecting details rather than reading an opinion piece by another journalist.
"Otherwise it continues to be I AM RIGHT and you are wrong. I hope that you start providing links to show where your opinions come from."
That is incorrect, it is simply my opinion. You are the one infers things beyond that. My opinions come from ME based on things I observe here and there often from things that are not immediately available online. I much rather take an idea or thought from an article if I think its relevant and mention in the context of something I'm saying rather than cut and paste the entire article which only contained a single nugget of info I was using. I'm sorry, but I do not look at the discussion forum here as being a place for presenting documented research papers. I see it as a discussion forum where people shoot from the hip, with whatever is on their mind. Thats simply my opinion and I respect yourself and everyone else that does things differently. I can't claim to have never posted any articles because I have a couple of times. But If I do that, its usually done as opposed to responding myself.
I honestly do not understand your obsession on whether or not a I posts someone elses opinion. I like to express my opinion as I have done here for nearly 3 years. Many if not most people at interference do the same. If you enjoy finding articles around the internet and posting them here, that is fine. I read most of them. But I'm much more interested in what YOU have to say.
I believe everyone here at interference is equal regardless of their opinion on a certain topic. I do not in any way attempt to devalue or criticize another person because of their opinion or the frequency in which they express that opinion in responding to frequent posts on that issue from other people.
As for resolution 1441, I do not think its ambigious at all when one considers the CONTEXT in which it is passed. "Serious Consequences" means military force simply because Iraq was already facing every consequence short of military force at the time the resolution was passed. Because in that context "Serious Consequences" can only have one meaning, there is nothing ambigious about it at all.
Resolution 1483 for me simply bolsters all the opinions I had expressed prior on the issue. Its kind of like the icing on the cake in my view. But I always realized before hand that there would be people who would never see it that way and thats fine, I respect that. But for me time and more reading, listening, and observing, on the issue has only strenthened my opinions and original arguements on the whole issue from several months ago.
The vast majority of the evidence that Bush and other leaders had for going into Iraq was the simple fact that Iraq had failed to comply with their obligations. Iraq was in material breech of its obligations. Iraq never complied with its obligations. Never before has a dictator like Saddam been given so many chances to comply and never faced any serious consequences until now. The UN report from the fall of 1998 and Iraq's failure to account for the WMD on that report is more than sufficient to justify any military action against Iraq. The allegations being leveled at Bush and Blair are primarily "political" by people who seem to be unaware about the facts of the UN report from 1998 and that the majority of the evidence they claim that Bush lied about is in fact from that report itself. If thats what the democrats to decide to run on in 2004, they will be swiftly beaten at the voting booth in November.
Just my opinion.
STING2 said:
I eagerly await being warned or banned then if my comments were personal or if I was harshly attacking you. You were very flippant with the opinions I linked to and your comments about the ASIL meeting in France were uncalled for.
STING2 said:
Sad part is, that I probably agree with you philosophically on many of the issues here in FYM and War but I am however taking your advice.
Fizzing,
"On numerous occassions prior to the war you stated that the opinion of the UN was irrelevant to you and that the US ought to go to war regardless of whether it was supported or condemned by the United Nations. Why then do you now feel it's important to prove that the UN did approve the war, if it was so irrelevant prior to the war."
When a nation feels that its security is threatened to the point that it must take military action or potentially suffer serious consequences, then it must and has the right to act to defend itself independent of any organization. That being said, if time permits, it is politically, financially, and militarially beneficial to have the help and support of others. That is part of the reason that the USA reserved the right to act but sought a further resolution in the form of 1441. The USA already felt from the perspective of the UN that it had the legal right to act. 1441 was an attempt to garner political support, not an attempt really to provide legal justification for the action which already existed.
In light of the threat to US security and the fact that the UN had already approved the use force with the resolutions from the first Gulf War, I did find the French, German, and Russian 2002 resistence to US efforts to be irrelevant in that context. But I recognized the benefit that could be gained from convincing them and having them as apart of the coalition. In retrospect, the Bush administration succeeded in this in getting them to approve resolution 1441 which simply restated the legal justification for military action in light of Iraqi material breech of its obligations.
"On numerous occassions prior to the war you stated that the opinion of the UN was irrelevant to you and that the US ought to go to war regardless of whether it was supported or condemned by the United Nations. Why then do you now feel it's important to prove that the UN did approve the war, if it was so irrelevant prior to the war."
When a nation feels that its security is threatened to the point that it must take military action or potentially suffer serious consequences, then it must and has the right to act to defend itself independent of any organization. That being said, if time permits, it is politically, financially, and militarially beneficial to have the help and support of others. That is part of the reason that the USA reserved the right to act but sought a further resolution in the form of 1441. The USA already felt from the perspective of the UN that it had the legal right to act. 1441 was an attempt to garner political support, not an attempt really to provide legal justification for the action which already existed.
In light of the threat to US security and the fact that the UN had already approved the use force with the resolutions from the first Gulf War, I did find the French, German, and Russian 2002 resistence to US efforts to be irrelevant in that context. But I recognized the benefit that could be gained from convincing them and having them as apart of the coalition. In retrospect, the Bush administration succeeded in this in getting them to approve resolution 1441 which simply restated the legal justification for military action in light of Iraqi material breech of its obligations.
Nowhere to hide behind the letter of the law
March 19 2003
The legal basis for military action against Saddam Hussein is weak, write Devika Hovell and George Williams.
John Howard has committed Australian troops to a war in Iraq on the basis that this can be justified under international law. However, the legal case for unilateral pre-emptive action against Iraq is weak. The failure, despite several attempts, to gain a further Security Council resolution authorising the use of force means that an attack will breach international law.
According to its charter, the United Nations was formed to save succeeding generations from the scourge of war, and its overriding aim is to ensure that armed force shall not be used, save in the common interest. International law prohibits the threat or use of force by one state against another. This is subject to two exceptions.
First, force can be used with the authorisation of the Security Council, which is charged with determining what action should be taken in response to threats to the peace, breaches of the peace and acts of aggression. Second, a state can use force in self-defence.
The lack of evidence of an imminent attack by Iraq explains why Howard has chosen to rely on the first of these exceptions. The argument is that Security Council resolutions 678 and 687, dating from the Gulf War, provide a basis for the use of force in Iraq today. They suggest that since the early 1990s the United States and other countries have been in possession of a blank cheque enabling them to use force in Iraq whenever they believe that Iraq has failed to comply with the directions of the Security Council.
A reading of the resolutions shows that this argument is untenable. Resolution 678 was made after Iraq's invasion of Kuwait. It authorised member states, co-operating with the Government of Kuwait (an important limitation), to use force against Iraq. Resolution 687 transformed the cessation of hostilities into a permanent ceasefire. Of all the provisions in that ceasefire resolution, only one paragraph authorises the ongoing use of force. It does so only in the context of guaranteeing the Kuwait border, and then only by the Security Council and not by individual states.
The key to the Government's legal view is that Iraq's actions have somehow negated the basis of the 1991 ceasefire as expressed in Resolution 687. It has been argued the ceasefire declared by Resolution 687 was conditional on Iraq fulfilling the conditions required of it. However, the resolution makes clear the ceasefire will come into effect if Iraq simply accepts the terms of the resolution.
The resolution states that it is then up to the Security Council to take such further steps as may be required for the implementation of the resolution. No state or coalition of states acting outside the authorisation of the council retains the right to use force, even to punish Iraq for breaches of the resolution or to compel its compliance.
Hence, a further resolution of the Security Council is required. The closest we have come to this is resolution 1441 of November last year. It speaks in strong language of Iraq's obligations to disarm and to co-operate fully in this process. It also states that this is the final opportunity for Iraq to comply. However, in the event of non-compliance by Iraq, the resolution does not authorise the use of force. Instead, in the event of a material breach by Iraq, the Security Council should convene immediately to consider the situation. It also reminds Iraq that serious consequences will follow. Such consequences cannot be visited upon Iraq by the United States or any other country in the absence of the Security Council stating what those consequences shall be and who can enforce them.
Australia will breach international law if we engage in military action in Iraq as part of a US-led coalition. The use of force has not been authorised by the Security Council. It may be that international law will adapt after the event to provide a retrospective justification for war. This may occur if our actions are seen in hindsight to have been in the common interest of the international community.
However, to enter a war based on this expectation sees us revert to the "just war" theory. In doing so, we fall into precisely the trap the United Nations was established to avoid.
The decision to wage a just war is based upon an appeal to dangerously subjective standards of morality and the belligerents' conviction that their cause is right. After two world wars, the dangers of this approach are obvious. Australia will be better served by adherence to the international rule of law.
Devika Hovell, director of the International Law Project, and Professor George Williams are based at the Gilbert and Tobin Centre of Public Law at the University of NSW.
March 19 2003
The legal basis for military action against Saddam Hussein is weak, write Devika Hovell and George Williams.
John Howard has committed Australian troops to a war in Iraq on the basis that this can be justified under international law. However, the legal case for unilateral pre-emptive action against Iraq is weak. The failure, despite several attempts, to gain a further Security Council resolution authorising the use of force means that an attack will breach international law.
According to its charter, the United Nations was formed to save succeeding generations from the scourge of war, and its overriding aim is to ensure that armed force shall not be used, save in the common interest. International law prohibits the threat or use of force by one state against another. This is subject to two exceptions.
First, force can be used with the authorisation of the Security Council, which is charged with determining what action should be taken in response to threats to the peace, breaches of the peace and acts of aggression. Second, a state can use force in self-defence.
The lack of evidence of an imminent attack by Iraq explains why Howard has chosen to rely on the first of these exceptions. The argument is that Security Council resolutions 678 and 687, dating from the Gulf War, provide a basis for the use of force in Iraq today. They suggest that since the early 1990s the United States and other countries have been in possession of a blank cheque enabling them to use force in Iraq whenever they believe that Iraq has failed to comply with the directions of the Security Council.
A reading of the resolutions shows that this argument is untenable. Resolution 678 was made after Iraq's invasion of Kuwait. It authorised member states, co-operating with the Government of Kuwait (an important limitation), to use force against Iraq. Resolution 687 transformed the cessation of hostilities into a permanent ceasefire. Of all the provisions in that ceasefire resolution, only one paragraph authorises the ongoing use of force. It does so only in the context of guaranteeing the Kuwait border, and then only by the Security Council and not by individual states.
The key to the Government's legal view is that Iraq's actions have somehow negated the basis of the 1991 ceasefire as expressed in Resolution 687. It has been argued the ceasefire declared by Resolution 687 was conditional on Iraq fulfilling the conditions required of it. However, the resolution makes clear the ceasefire will come into effect if Iraq simply accepts the terms of the resolution.
The resolution states that it is then up to the Security Council to take such further steps as may be required for the implementation of the resolution. No state or coalition of states acting outside the authorisation of the council retains the right to use force, even to punish Iraq for breaches of the resolution or to compel its compliance.
Hence, a further resolution of the Security Council is required. The closest we have come to this is resolution 1441 of November last year. It speaks in strong language of Iraq's obligations to disarm and to co-operate fully in this process. It also states that this is the final opportunity for Iraq to comply. However, in the event of non-compliance by Iraq, the resolution does not authorise the use of force. Instead, in the event of a material breach by Iraq, the Security Council should convene immediately to consider the situation. It also reminds Iraq that serious consequences will follow. Such consequences cannot be visited upon Iraq by the United States or any other country in the absence of the Security Council stating what those consequences shall be and who can enforce them.
Australia will breach international law if we engage in military action in Iraq as part of a US-led coalition. The use of force has not been authorised by the Security Council. It may be that international law will adapt after the event to provide a retrospective justification for war. This may occur if our actions are seen in hindsight to have been in the common interest of the international community.
However, to enter a war based on this expectation sees us revert to the "just war" theory. In doing so, we fall into precisely the trap the United Nations was established to avoid.
The decision to wage a just war is based upon an appeal to dangerously subjective standards of morality and the belligerents' conviction that their cause is right. After two world wars, the dangers of this approach are obvious. Australia will be better served by adherence to the international rule of law.
Devika Hovell, director of the International Law Project, and Professor George Williams are based at the Gilbert and Tobin Centre of Public Law at the University of NSW.
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The National Lawyers Guild based in New York issued this document on Iraq and International Law.
In their opinion 1441 does not authorize force.
http://www.nlg.org/programs/mideast/iraq_fact_sheet.pdf
In their opinion 1441 does not authorize force.
http://www.nlg.org/programs/mideast/iraq_fact_sheet.pdf
Dreadsox,
"I eagerly await being warned or banned then if my comments were personal or if I was harshly attacking you. You were very flippant with the opinions I linked to and your comments about the ASIL meeting in France were uncalled for."
Did you direct your thoughts towards me or towards the topics and organizations being discussed?
I said I thought the ASIL was wrong on 678 and was not surprised that they would have an opinion that I felt was wrong on 1483! That is an honest opinion! The ASIL has a lot in common with the French Governments legal point of view on the whole aspect as well I'm sure with many in the French Law community and most people in France. I don't think there is anything wrong with that. People who think alike tend to enjoy each others company. I do not think its flippant or uncalled for to say that the ASIL will be warmly recieved at their next conference in Paris more so than others with the opposite opinion. Thats honestly what I think and I can't understand how you could say that is uncalled for or flippant. I don't think there is anything wrong with that fact though and hope they have a good time. Paris is a cool city.
"I eagerly await being warned or banned then if my comments were personal or if I was harshly attacking you. You were very flippant with the opinions I linked to and your comments about the ASIL meeting in France were uncalled for."
Did you direct your thoughts towards me or towards the topics and organizations being discussed?
I said I thought the ASIL was wrong on 678 and was not surprised that they would have an opinion that I felt was wrong on 1483! That is an honest opinion! The ASIL has a lot in common with the French Governments legal point of view on the whole aspect as well I'm sure with many in the French Law community and most people in France. I don't think there is anything wrong with that. People who think alike tend to enjoy each others company. I do not think its flippant or uncalled for to say that the ASIL will be warmly recieved at their next conference in Paris more so than others with the opposite opinion. Thats honestly what I think and I can't understand how you could say that is uncalled for or flippant. I don't think there is anything wrong with that fact though and hope they have a good time. Paris is a cool city.
Dreadsox,
From George Williams article:
"A reading of the resolutions shows that this argument is untenable. Resolution 678 was made after Iraq's invasion of Kuwait. It authorised member states, co-operating with the Government of Kuwait (an important limitation), to use force against Iraq. Resolution 687 transformed the cessation of hostilities into a permanent ceasefire. Of all the provisions in that ceasefire resolution, only one paragraph authorises the ongoing use of force. It does so only in the context of guaranteeing the Kuwait border, and then only by the Security Council and not by individual states."
The line that mentions cooperation with Kuwait is not a limiting factor at all in this context. Resolution 687 NEVER transformed or rescended resolution 678 which continues to be sited in UN resolutions in 2002. Resolution 678 authorized the use of all means necessary to bring about Iraqi compliance with the stated UN resolutions at the time and "ALL SUBSEQUENT RESOLUTIONS". Nothing in 687 specifically rescends or transforms that factor. Thus, if and when Iraq is found to be in material breech of its obligations, the member states are authorized to use all means necessary to reverse that condition.
"The resolution states that it is then up to the Security Council to take such further steps as may be required for the implementation of the resolution. No state or coalition of states acting outside the authorisation of the council retains the right to use force, even to punish Iraq for breaches of the resolution or to compel its compliance."
Thats false because the Security Council give member states the authorization to use all means necessary to bring about compliance with all subsequent resolutions as stated in resolution 678 which, contrary to this Lawyers opinion, has never been rescended or transformed in any way.
"However, in the event of non-compliance by Iraq, the resolution does not authorise the use of force. Instead, in the event of a material breach by Iraq, the Security Council should convene immediately to consider the situation. It also reminds Iraq that serious consequences will follow. Such consequences cannot be visited upon Iraq by the United States or any other country in the absence of the Security Council stating what those consequences shall be and who can enforce them."
This opinion in regards to 1441 I feel is wrong as well. In light of the fact that the only consequence that Iraq was not facing at the time was the use of large scale military force, the term "Serious Consequences" is already defined because it can only mean one thing in light of the context. Perhaps this lawyer needs to be reminded that the term "military force" was not used in the resolutions that authorized the removal of the Iraqi military from Kuwait. Using his logic, I guess we could argue that action was a violation of international law as well because it did not specifically define or use the term "military force"!
"The decision to wage a just war is based upon an appeal to dangerously subjective standards of morality and the belligerents' conviction that their cause is right. After two world wars, the dangers of this approach are obvious. Australia will be better served by adherence to the international rule of law."
Or we should say, his interpretation of the international rule of law. I wonder what George had to say about the war in Kosovo?
From George Williams article:
"A reading of the resolutions shows that this argument is untenable. Resolution 678 was made after Iraq's invasion of Kuwait. It authorised member states, co-operating with the Government of Kuwait (an important limitation), to use force against Iraq. Resolution 687 transformed the cessation of hostilities into a permanent ceasefire. Of all the provisions in that ceasefire resolution, only one paragraph authorises the ongoing use of force. It does so only in the context of guaranteeing the Kuwait border, and then only by the Security Council and not by individual states."
The line that mentions cooperation with Kuwait is not a limiting factor at all in this context. Resolution 687 NEVER transformed or rescended resolution 678 which continues to be sited in UN resolutions in 2002. Resolution 678 authorized the use of all means necessary to bring about Iraqi compliance with the stated UN resolutions at the time and "ALL SUBSEQUENT RESOLUTIONS". Nothing in 687 specifically rescends or transforms that factor. Thus, if and when Iraq is found to be in material breech of its obligations, the member states are authorized to use all means necessary to reverse that condition.
"The resolution states that it is then up to the Security Council to take such further steps as may be required for the implementation of the resolution. No state or coalition of states acting outside the authorisation of the council retains the right to use force, even to punish Iraq for breaches of the resolution or to compel its compliance."
Thats false because the Security Council give member states the authorization to use all means necessary to bring about compliance with all subsequent resolutions as stated in resolution 678 which, contrary to this Lawyers opinion, has never been rescended or transformed in any way.
"However, in the event of non-compliance by Iraq, the resolution does not authorise the use of force. Instead, in the event of a material breach by Iraq, the Security Council should convene immediately to consider the situation. It also reminds Iraq that serious consequences will follow. Such consequences cannot be visited upon Iraq by the United States or any other country in the absence of the Security Council stating what those consequences shall be and who can enforce them."
This opinion in regards to 1441 I feel is wrong as well. In light of the fact that the only consequence that Iraq was not facing at the time was the use of large scale military force, the term "Serious Consequences" is already defined because it can only mean one thing in light of the context. Perhaps this lawyer needs to be reminded that the term "military force" was not used in the resolutions that authorized the removal of the Iraqi military from Kuwait. Using his logic, I guess we could argue that action was a violation of international law as well because it did not specifically define or use the term "military force"!
"The decision to wage a just war is based upon an appeal to dangerously subjective standards of morality and the belligerents' conviction that their cause is right. After two world wars, the dangers of this approach are obvious. Australia will be better served by adherence to the international rule of law."
Or we should say, his interpretation of the international rule of law. I wonder what George had to say about the war in Kosovo?
Is the War on Iraq Lawful?
By MICHAEL C. DORF
----
Wednesday, Mar. 19, 2003
As of this writing, American and British forces are poised to attack Iraq. Questions of military strategy, geopolitics and morality loom large, but so do questions of law.
Is the war to disarm and dislodge Saddam Hussein justified under international law? Has it been adequately authorized under U.S. law, with proper Congressional approval?
It is doubtful that any court will ever address either question, but that may provide all the more reason to consider these issues in the court of public opinion.
The International Law Issue: Three Possible Grounds for War
Under international law, force is authorized in essentially two or, at most, three circumstances.
First, Articles 39 and 42 of the U.N. Charter permit the Security Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to authorize the use of force "to maintain or restore international peace and security."
Second, Article 51 of the U.N. Charter recognizes "the inherent right of individual or collective self-defence" against "an armed attack."
Third, an international norm may be emerging that would permit nations to use military force to prevent genocide or other humanitarian catastrophes. However, while Saddam Hussein has, in the past, committed horrific acts against his own people, the U.S. has not argued that intervention is necessary to address ongoing crimes against humanity.
Do either of the first two grounds - based on U.N. Charter provisions - justify war?
U.N. Security Council Authorization: The First Possible Ground For War
In his March 17 speech, President Bush claimed that prior U.N. resolutions have already provided the necessary legal authority for attacking Iraq. Speaking for the Blair Administration, British Attorney General Lord Goldsmith made the same point. Are they correct? The answer is no.
In November 1990, the U.N. Security Council adopted Resolution 678, authorizing nations "co-operating with the Government of Kuwait . . . to use all necessary means" of dislodging Saddam Hussein's troops from Kuwait.
This resolution authorized force only for the purpose of driving the Iraqi military out of Kuwait, an objective which was fully accomplished by 1991. It would be arguably relevant now only if Saddam reinvaded Kuwait.
Then, at the conclusion of the Gulf War, the Security Council adopted Resolution 687. It called for, among other things, Iraq's destruction and renunciation of various weapons, including biological, chemical and nuclear arms. And it stated the Security Council's intention "to take as appropriate all necessary measures" to guarantee the inviolability of the Iraq-Kuwait border. Although that language is broad, it does not refer to the disarmament provisions. Resolution 687 makes clear that its disarmament provisions are governed by the Security Council's resolve "to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area."
That last statement hardly reads as a blank check to any Security Council member or other state to act on its own to require Iraq's disarmament. Instead, it suggests, quite to the contrary, that the Security Council itself, acting via additional resolutions, could take "further steps."
Last November, the Security Council passed Resolution 1441. It warned that Iraq would "face serious consequences" if it were to remain in "material breach" of its disarmament obligations. Employing the Resolution's language, the Bush Administration has argued that Iraq is in "material breach" and that war is thus justified.
However, as I explained in an earlier column, Resolution 1441 implies that the Security Council itself will decide if a material breach has occurred, and expressly states that the Security Council itself, in the event of such a breach, will "consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security."
We know that the Security Council does not think that a serious breach warranting all-out war has occurred. Perhaps the Security Council, under veto threat from France (and possibly Russia as well), has behaved unreasonably and irresponsibly in this respect, as suggested by American and British diplomats. But if so, that still does not alter the fact that the Security Council did not authorize war. At most, it bolsters the moral case for war, not the legal case.
Self-Defense: The Second Possible Ground for War
The boldest argument for war is that the United States and other countries face the prospect of an "armed attack" by Iraq, thus justifying the sovereign right to use force in self-defense. But certainly Iraq was not about to invade the United States or even Kuwait, where thousands of American and British troops have patrolled the border since the Gulf War. Nor have Bush and Blair pointed to any information indicating an imminent threat; instead, they have rested their arguments primarily on the fear of Saddam's future direct or indirect use of weapons of mass destruction.
Thus, the argument for self-defense must be based on an expansion of that concept - from self-defense as repelling an ongoing or imminent attack, to self-defense as pre-emption of a feared future attack.
Under the pre-emption doctrine, touted by the Bush Administration, an enemy that is in the process of acquiring weapons of mass destruction can be attacked before using those weapons. The underlying concern is no doubt a serious one. The doctrine, however, remains outside of international law and could potentially prove quite dangerous.
Self-defense, as it traditionally has been understood under international law, is very much like self-defense in the law governing individuals. If an aggressor is in the midst of, or just about to, attack, one need not absorb the first blow before fighting back. The attack, however, must be imminent, if not already underway.
The imminence requirement is extremely important in international affairs. If the U.S. can take non-Security-Council authorized pre-emptive or preventive military action, then other countries can as well. Thus, regional powers fearing the rise of neighboring rivals could decide that it is better to act against their future enemies before the threat fully materializes.
Not every invocation of the doctrine of pre-emption will be justified. Some will be based on misjudgments, and others will simply be pretextual - justifying aggression under the guise of pre-emption. Ultimately, the doctrine allowing pre-emption of long-term threats has the potential to be enormously destabilizing.
Was War Constitutionally Authorized by Congress?
The international law arguments in favor of the war's legality, then, are weak at best. What about the war's legality as a matter of U.S. law? There, the question is closer.
The U.S. Constitution sets no limits on the reasons for which the United States may go to war. Its primary limit is procedural. While the President is the Commander-in-Chief of the armed forces, Congress alone has the power to declare war.
Congress has not formally declared war since World War II. As I explained in an earlier column, the failure to issue formal declarations of war partly reflects the fact that such declarations are antiquated. But Congressional equivocation also reflects Congressional ambivalence. Members of Congress do not want to have to take the heat for a war that goes badly, but they also want to appear supportive of our troops. Thus, they have a built-in incentive to sit on the fence.
Judged by the standards of recent American military actions, Congress provided President Bush with crystal clear authority to make war on Iraq. In October 2002, Congress passed a joint resolution authorizing the President "to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all United Nations Security Council resolutions regarding Iraq."
The constitutional problem with the Congressional authorization, if there is one, is not lack of clarity; it's that Congress passed the buck. A number of commentators and even some individual members of Congress have argued that Congress may not delegate to the President the power to declare war. The Constitution, on this view, puts the power to declare war in the hands of Congress so that members of Congress--who must stand for frequent re-election--will make the hard decisions themselves.
This objection would be a good one if Congress had delegated something approximating its entire warmaking power to the President. But under the circumstances, the delegation appears reasonable. If one believed that Saddam would only disarm under military pressure, then to make the threat of war credible, Congress had to delegate power to the President. It would have been premature for Congress actually to declare war back in October, before further planned diplomatic efforts were undertaken. The Constitution is best interpreted to permit Congress to use this type of carrot-and-stick tactic.
There is one further wrinkle under U.S. law. Article VI of the U.S. Constitution makes treaties into which the U.S. has entered "the supreme Law of the Land." The United States is a signatory to the U.N. Charter, and as discussed above, under the Charter, there is no clear legal authority for war on Iraq. Accordingly, if the war violates international law - as I have suggested it does - then it also thereby violates U.S. law.
That is not to say that any court will entertain a challenge to military action. U.S. courts have long treated such questions as committed to the political branches. And it is clear that Congress and the President have made their decision.
Does the Lawfulness of War Matter?
In the end, the question of whether war on Iraq is legally justified is less important than whether it is morally and practically justified. If the U.S. and its allies prevail in a relatively quick war with minimal loss of life, if further evidence of Saddam's malevolent intent surfaces, and if the Iraqi people welcome allied forces as liberators rather than conquerors, then quibbles about legality may be overlooked.
Nonetheless, one impact of a war of dubious lawfulness may be the continued erosion of respect for the United States as a nation committed to principles of justice under law. President Bush says that he is justified in using military might because his cause is just. To much of the rest of the world, however, it looks the other way around: that the U.S. and its allies act as they wish because, in the American view, might makes right.
In that respect, a bit of ancient history may be relevant. In Chapter Seventeen of his History of the Peloponnesian War (between Athens and Sparta in the Fifth Century B.C.), Thucydides recounted the reaction of the people of the small neutral island state of Melos to the invading Athenian navy. Before attacking Melos, the Athenians gave the Melians an opportunity to surrender. The Melians attempted to persuade the Athenians to leave them alone. According to Thucydides, the Athenians would have none of it. Questions of justice arise only among equals, the Athenians said, while the strong do what they will and the weak suffer what they must.
The Melians refused to surrender; the Athenians prevailed militarily; they killed the adult Melian males; and they sold the women and children into slavery. But ultimately with aid from Persia (modern-day Iran), Sparta defeated and conquered Athens, which never regained its glory.
Even as we hope that President Bush can bring the spirit of Athenian democracy to the cradle of civilization, we may fear that he has forged a different, and darker, connection to ancient Athens.
By MICHAEL C. DORF
----
Wednesday, Mar. 19, 2003
As of this writing, American and British forces are poised to attack Iraq. Questions of military strategy, geopolitics and morality loom large, but so do questions of law.
Is the war to disarm and dislodge Saddam Hussein justified under international law? Has it been adequately authorized under U.S. law, with proper Congressional approval?
It is doubtful that any court will ever address either question, but that may provide all the more reason to consider these issues in the court of public opinion.
The International Law Issue: Three Possible Grounds for War
Under international law, force is authorized in essentially two or, at most, three circumstances.
First, Articles 39 and 42 of the U.N. Charter permit the Security Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to authorize the use of force "to maintain or restore international peace and security."
Second, Article 51 of the U.N. Charter recognizes "the inherent right of individual or collective self-defence" against "an armed attack."
Third, an international norm may be emerging that would permit nations to use military force to prevent genocide or other humanitarian catastrophes. However, while Saddam Hussein has, in the past, committed horrific acts against his own people, the U.S. has not argued that intervention is necessary to address ongoing crimes against humanity.
Do either of the first two grounds - based on U.N. Charter provisions - justify war?
U.N. Security Council Authorization: The First Possible Ground For War
In his March 17 speech, President Bush claimed that prior U.N. resolutions have already provided the necessary legal authority for attacking Iraq. Speaking for the Blair Administration, British Attorney General Lord Goldsmith made the same point. Are they correct? The answer is no.
In November 1990, the U.N. Security Council adopted Resolution 678, authorizing nations "co-operating with the Government of Kuwait . . . to use all necessary means" of dislodging Saddam Hussein's troops from Kuwait.
This resolution authorized force only for the purpose of driving the Iraqi military out of Kuwait, an objective which was fully accomplished by 1991. It would be arguably relevant now only if Saddam reinvaded Kuwait.
Then, at the conclusion of the Gulf War, the Security Council adopted Resolution 687. It called for, among other things, Iraq's destruction and renunciation of various weapons, including biological, chemical and nuclear arms. And it stated the Security Council's intention "to take as appropriate all necessary measures" to guarantee the inviolability of the Iraq-Kuwait border. Although that language is broad, it does not refer to the disarmament provisions. Resolution 687 makes clear that its disarmament provisions are governed by the Security Council's resolve "to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area."
That last statement hardly reads as a blank check to any Security Council member or other state to act on its own to require Iraq's disarmament. Instead, it suggests, quite to the contrary, that the Security Council itself, acting via additional resolutions, could take "further steps."
Last November, the Security Council passed Resolution 1441. It warned that Iraq would "face serious consequences" if it were to remain in "material breach" of its disarmament obligations. Employing the Resolution's language, the Bush Administration has argued that Iraq is in "material breach" and that war is thus justified.
However, as I explained in an earlier column, Resolution 1441 implies that the Security Council itself will decide if a material breach has occurred, and expressly states that the Security Council itself, in the event of such a breach, will "consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security."
We know that the Security Council does not think that a serious breach warranting all-out war has occurred. Perhaps the Security Council, under veto threat from France (and possibly Russia as well), has behaved unreasonably and irresponsibly in this respect, as suggested by American and British diplomats. But if so, that still does not alter the fact that the Security Council did not authorize war. At most, it bolsters the moral case for war, not the legal case.
Self-Defense: The Second Possible Ground for War
The boldest argument for war is that the United States and other countries face the prospect of an "armed attack" by Iraq, thus justifying the sovereign right to use force in self-defense. But certainly Iraq was not about to invade the United States or even Kuwait, where thousands of American and British troops have patrolled the border since the Gulf War. Nor have Bush and Blair pointed to any information indicating an imminent threat; instead, they have rested their arguments primarily on the fear of Saddam's future direct or indirect use of weapons of mass destruction.
Thus, the argument for self-defense must be based on an expansion of that concept - from self-defense as repelling an ongoing or imminent attack, to self-defense as pre-emption of a feared future attack.
Under the pre-emption doctrine, touted by the Bush Administration, an enemy that is in the process of acquiring weapons of mass destruction can be attacked before using those weapons. The underlying concern is no doubt a serious one. The doctrine, however, remains outside of international law and could potentially prove quite dangerous.
Self-defense, as it traditionally has been understood under international law, is very much like self-defense in the law governing individuals. If an aggressor is in the midst of, or just about to, attack, one need not absorb the first blow before fighting back. The attack, however, must be imminent, if not already underway.
The imminence requirement is extremely important in international affairs. If the U.S. can take non-Security-Council authorized pre-emptive or preventive military action, then other countries can as well. Thus, regional powers fearing the rise of neighboring rivals could decide that it is better to act against their future enemies before the threat fully materializes.
Not every invocation of the doctrine of pre-emption will be justified. Some will be based on misjudgments, and others will simply be pretextual - justifying aggression under the guise of pre-emption. Ultimately, the doctrine allowing pre-emption of long-term threats has the potential to be enormously destabilizing.
Was War Constitutionally Authorized by Congress?
The international law arguments in favor of the war's legality, then, are weak at best. What about the war's legality as a matter of U.S. law? There, the question is closer.
The U.S. Constitution sets no limits on the reasons for which the United States may go to war. Its primary limit is procedural. While the President is the Commander-in-Chief of the armed forces, Congress alone has the power to declare war.
Congress has not formally declared war since World War II. As I explained in an earlier column, the failure to issue formal declarations of war partly reflects the fact that such declarations are antiquated. But Congressional equivocation also reflects Congressional ambivalence. Members of Congress do not want to have to take the heat for a war that goes badly, but they also want to appear supportive of our troops. Thus, they have a built-in incentive to sit on the fence.
Judged by the standards of recent American military actions, Congress provided President Bush with crystal clear authority to make war on Iraq. In October 2002, Congress passed a joint resolution authorizing the President "to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all United Nations Security Council resolutions regarding Iraq."
The constitutional problem with the Congressional authorization, if there is one, is not lack of clarity; it's that Congress passed the buck. A number of commentators and even some individual members of Congress have argued that Congress may not delegate to the President the power to declare war. The Constitution, on this view, puts the power to declare war in the hands of Congress so that members of Congress--who must stand for frequent re-election--will make the hard decisions themselves.
This objection would be a good one if Congress had delegated something approximating its entire warmaking power to the President. But under the circumstances, the delegation appears reasonable. If one believed that Saddam would only disarm under military pressure, then to make the threat of war credible, Congress had to delegate power to the President. It would have been premature for Congress actually to declare war back in October, before further planned diplomatic efforts were undertaken. The Constitution is best interpreted to permit Congress to use this type of carrot-and-stick tactic.
There is one further wrinkle under U.S. law. Article VI of the U.S. Constitution makes treaties into which the U.S. has entered "the supreme Law of the Land." The United States is a signatory to the U.N. Charter, and as discussed above, under the Charter, there is no clear legal authority for war on Iraq. Accordingly, if the war violates international law - as I have suggested it does - then it also thereby violates U.S. law.
That is not to say that any court will entertain a challenge to military action. U.S. courts have long treated such questions as committed to the political branches. And it is clear that Congress and the President have made their decision.
Does the Lawfulness of War Matter?
In the end, the question of whether war on Iraq is legally justified is less important than whether it is morally and practically justified. If the U.S. and its allies prevail in a relatively quick war with minimal loss of life, if further evidence of Saddam's malevolent intent surfaces, and if the Iraqi people welcome allied forces as liberators rather than conquerors, then quibbles about legality may be overlooked.
Nonetheless, one impact of a war of dubious lawfulness may be the continued erosion of respect for the United States as a nation committed to principles of justice under law. President Bush says that he is justified in using military might because his cause is just. To much of the rest of the world, however, it looks the other way around: that the U.S. and its allies act as they wish because, in the American view, might makes right.
In that respect, a bit of ancient history may be relevant. In Chapter Seventeen of his History of the Peloponnesian War (between Athens and Sparta in the Fifth Century B.C.), Thucydides recounted the reaction of the people of the small neutral island state of Melos to the invading Athenian navy. Before attacking Melos, the Athenians gave the Melians an opportunity to surrender. The Melians attempted to persuade the Athenians to leave them alone. According to Thucydides, the Athenians would have none of it. Questions of justice arise only among equals, the Athenians said, while the strong do what they will and the weak suffer what they must.
The Melians refused to surrender; the Athenians prevailed militarily; they killed the adult Melian males; and they sold the women and children into slavery. But ultimately with aid from Persia (modern-day Iran), Sparta defeated and conquered Athens, which never regained its glory.
Even as we hope that President Bush can bring the spirit of Athenian democracy to the cradle of civilization, we may fear that he has forged a different, and darker, connection to ancient Athens.
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