Isn't "assasinating" Saddam considered a war crime?

robbie380 · Mar 21, 2003

Originally posted by MacBeth
The US is currently operating an illegal war, as defined by the United Nations since 1947...the pre-emptive self-defense has been defined for years as an act of aggression, and as such outlawed without UN recomendation, which did not happen...As they are currently operating an illegal war in the face of UN legislation they were the primary architects of, I doubt seriously whether the US government cares all that much about breaking other international laws, or will stop short of comitting further war crimes. Might is right is the word of the day...
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Who said this is a pre-emptive war besides the peace protesters? Isn't this a war to enforce disarmament that has not occured?

MacBeth · Mar 21, 2003

Originally posted by sinohero
Contrary to popular myth, pre-emption is not illegal under the UN charter. This war is not in anyway, repeat in anyway illegal.

Besides, allow me to be the cowboy here, WTF can the UN do even if this is iilegal? The UN is a defunct organization. In fact it had never been of much use when its responsibilities call.

Personally I find it offensive to label a US action illegal based on a bogus claim on an incompetent organization that had Lybia on its human rights committee.

The UN is dead. Pax Americana has begun.
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1) Wrong. UN definitions of acceptable means of self-defense not only doesn't include pre-emptive self-defense, but specifically precludes it. The US actually played the biggest role in having this writen as it was largely a response to the USSR's tendancy to declare a smaller nation with assets they wanted to be a future 'threat', invade, and 'protect' themselves...When the UN decreed this to be an act of aggression, the USSR largely called the UN irrelevent. Sorry, but this is not myth, i's basic history.

2) I see..we state we are going into war to support UN reolutions when we agree with them, but when the UN disagrees with us they are essentially defunct abyways...Nice rationalization.

3) Pax Americana...lol...re: Pax Romana..." They make a desert and call it peace. .."

MacBeth · Mar 21, 2003

Originally posted by robbie380
Who said this is a pre-emptive war besides the peace protesters? Isn't this a war to enforce disarmament that has not occured?
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It would be impossible to 'enforce' a resloution when the governing body of said resolution has voted in opposition to force at this time, and who'se investigation team determined the disarmement process to be progressing. It would be akin to you and I storming into some guys house to enforce a law we thought important when the police themselves said we couldn't, as the person living there was in the process of co-operating, and thenm calling ourselves representatives of the law...never mind that other neighbours are also breaking laws in their homes, but we like them, so we leave them alone. This has also been called pre-emptive self-defense by several members of the administration, in one of their myriad of justifications for this action...

treeman · Mar 21, 2003

MacBeth:

Hey, you know, as for that whole "illegal operation" thing... You are aware that the original cease-fire resolution enables a restarting of hostilities if the Iraqi regime failed to live up to its obligations? Therefore this is not technically a "preemptive" war, it is a response to a ceasefire violation. Resolution 687 did not have a statute of limitations, and is still in effect.

Are you saying that the Iraqi regime is not in violation of its ceasefire obligations?

Try again, buddy. This war has plenty of legal justification. It's not a war crime (No Worries - nice one), and it is perfectly legal.

At any rate, if the original ceasefire resolution is not suffucient for you, choose any one of the intervening 16 resolutions. They all work.

DCkid · Mar 21, 2003

Originally posted by MacBeth
1) Wrong. UN definitions of acceptable means of self-defense not only doesn't include pre-emptive self-defense, but specifically precludes it. The US actually played the biggest role in having this writen as it was largely a response to the USSR's tendancy to declare a smaller nation with assets they wanted to be a future 'threat', invade, and 'protect' themselves...When the UN decreed this to be an act of aggression, the USSR largely called the UN irrelevent. Sorry, but this is not myth, i's basic history.

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It just seems like if the UN was so steadfastly against the use of "pre-emptive self-defense" as you claim, they would have never passed Resolution 1441 to begin with. To me, their is some gray area here. The US didn't believe Iraq was cooperating; therefore, they believed that by the Resolution 1441 the use of force was required and approved by the UN. To me, this seems more like the UN going against it's own policy than abiding by some long-standing UN Definition. It is because of this, that the legality of the current war is nowhere near as cut-and-dry as you are making it out to be.

This wasn't the United States going after some random country without ever consulting the UN. The Resolution called for the use of force on a specific country if specific demands are not met in a timely manner.

Obviously, you believe Iraq was in cooperation, so of course you would believe that the United States is defying the UN. I, on the other hand, believe that Iraq cooperating at their own pace isnt' cooperation at all. Therefore, I believe the UN is going against it's own mandate as defined in the Resolution, more than it is the US defying the United Nations.

I think you would be hard-pressed to prove that Iraq was complying with disarmament requlations as defined in the Resolution.

HayesStreet · Mar 21, 2003

Originally posted by MacBeth
It would be impossible to 'enforce' a resloution when the governing body of said resolution has voted in opposition to force at this time, and who'se investigation team determined the disarmement process to be progressing. It would be akin to you and I storming into some guys house to enforce a law we thought important when the police themselves said we couldn't, as the person living there was in the process of co-operating, and thenm calling ourselves representatives of the law...never mind that other neighbours are also breaking laws in their homes, but we like them, so we leave them alone. This has also been called pre-emptive self-defense by several members of the administration, in one of their myriad of justifications for this action...
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Actually it would be akin to citizens of a community enforcing laws on the books when the police refuse to do so. And maybe MacBeth could point out the resolution that forbids action in Iraq? I haven't seen that one. On the contrary there is a resolution authorizing intervention with non-cooperation from Iraq. And said inspectors have certainly testified to non-cooperation from Iraq.

PhiSlammaJamma · Mar 21, 2003

Again, I see this as one of stupidest ideas ever. Please. Let's play pretend again. The only hope of these stupid poilicies like bannig chemical weapons, nuclear weapons, assassinations, and so on is that the other countries are so stupid that they won't do them. And I will admit that suprisingly some countries seem to be this stupid. So the U.S. has been able to initimdate some. But its not real. Anyone who actually believes this is a real deterrent is living in a pretend world in my opinion. All of these things will continue to happen no matter what silly resolutions are formed. Everyone will do whatever it takes to defens themselves. Especially in a time of war.

No Worries · Mar 21, 2003

This war IS NOT a pre-emptive war. The US was not in imminent danger when the war started; thus, this can not be pre-emptive. Now had the Iraqis struck our troups in Kuwait between Bush's ultimatum and the start of the war then that would have been pre-emptive.

This war IS a preventive war. GWB is concerned that sometime in the future Saddam will build WMD and give them to terrorists. (This is essentially a very weak argument since Saddam has had opportunity to do so in the last 12 years nad has not.)

Both pre-emptive and preventive wars are prohibited by the UN charter.

Resolution 1441 does not authorize force. The US attempted to get that language into the resolution but failed since they could not get it passed if it did. Sound familiar?

DCkid · Mar 21, 2003

http://www.number-10.gov.uk/output/Page3287.asp

Legal basis for use of force against Iraq

The Attorney General, Lord Goldsmith, has set out his view of the legal basis for the use of force against Iraq:

Authority to use force against Iraq exists from the combined effect of resolutions 678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security:

1. In resolution 678 the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.

2. In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under resolution 678.

3. A material breach of resolution 687 revives the authority to use force under resolution 678.

4. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution.

5. The Security Council in resolution 1441 gave Iraq "a final opportunity to comply with its disarmament obligations" and warned Iraq of the "serious consequences" if it did not.

6. The Security Council also decided in resolution 1441 that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution 1441, that would constitute a further material breach.

7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach.

8. Thus, the authority to use force under resolution 678 has revived and so continues today.

9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq's failures, but not an express further decision to authorise force.

I have lodged a copy of this answer, together with resolutions 678, 687 and 1441 in the Library of both Houses.

robbie380 · Mar 21, 2003

Originally posted by HayesStreet
Actually it would be akin to citizens of a community enforcing laws on the books when the police refuse to do so. And maybe MacBeth could point out the resolution that forbids action in Iraq? I haven't seen that one. On the contrary there is a resolution authorizing intervention with non-cooperation from Iraq. And said inspectors have certainly testified to non-cooperation from Iraq.
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Good analogy HayesStreet...I knew MacBeth's didn't sound right to me.

treeman · Mar 21, 2003

Resolution 1441 does not authorize force.
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Resolution 687 - which is still in effect - does. You know, ignoring that little fact will not make it go away. It is still legally binding.

Why hasn't the UN moved to condemn the US for this "illegal" attack? Why hasn't anyone even discussed it? Don't say that it's because everyone knows that such a move would fail. No one's mentioned it because under 16 previous UNSC resolutions, it is perfectly legal.

I know that you'd love to have something to try Bush for war crimes with, but you need to find something else. This war is totally, 100% legal.

JuanValdez · Mar 21, 2003

The invasion reminds me a lot of the raid Houston Police had a while back on the teenagers at K-Mart. The police come in and arrest everybody for trespassing without the behest of the store that they are supposed to be trespassing on. The US is the HPD, the UN is the K-Mart and Iraq is the teenagers. Iraq is doing something the UN should not like, but the UN doesn't want to stop them. Should the US be able to go in and enforce their rules for them?

Previous resolutions do allow continuation of hostilities. But, who do they allow to continue them? The United Nations or the United States? The first Gulf War was a UN war: Iraq broke UN rules, was invaded by a UN coalition, and was forced to sign a peace under UN terms. Who is the US to come in and pretend like Iraq broke an agreement with them? Iraq broke an agreement with the UN, not the US, and it should be up to the UN to decide what to do about it.

Here's an interesting article on the legaility of the war my Michael Dorf for Findlaw.

http://writ.news.findlaw.com/dorf/20030319.html

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.
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Batman Jones · Mar 21, 2003

Kind of funny as some of the people on here supporting the war also supported the cops in their illegal KMart raid.

treeman · Mar 21, 2003

I didn't.

mrpaige · Mar 21, 2003

I was against the KMart raid, but I've been back and forth on this Iraq thing.

The KMart thing, to me, was different in that we've got a clear set of laws that the police should follow.. but didn't.

In world affairs, there are so many more grey areas.

HayesStreet · Mar 21, 2003

Originally posted by JuanValdez
The invasion reminds me a lot of the raid Houston Police had a while back on the teenagers at K-Mart. The police come in and arrest everybody for trespassing without the behest of the store that they are supposed to be trespassing on. The US is the HPD, the UN is the K-Mart and Iraq is the teenagers. Iraq is doing something the UN should not like, but the UN doesn't want to stop them. Should the US be able to go in and enforce their rules for them?
http://writ.news.findlaw.com/dorf/20030319.html
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If K-Mart (the UN) had actually called the cops (the US) and complained about the teenagers (Iraq) for TWELVE YEARS, and if K-Mart (the UN) had clearly posted warnings (UN resolutions) against said teenagers (Iraq) continued actions, and the neighboring businesses like Sonic (Kuwait, Saudi Arabia, Jordan, Israel, Qatar, Barhain) also felt police action was acceptable, then that case would have been open and shut. So your parallel leaves something to be desired.

HayesStreet · Mar 21, 2003

Also let me say I think its absurd to claim, as MacBeth has done, that ANY intervention not taken by the UN is a 'war crime.' I guess we should put Clinton and Blair on trial as war criminals for the Bosnian and Kosovo interventions.

MadMax · Mar 21, 2003

Originally posted by HayesStreet
Also let me say I think its absurd to claim, as MacBeth has done, that ANY intervention not taken by the UN is a 'war crime.' I guess we should put Clinton and Blair on trial as war criminals for the Bosnian and Kosovo interventions.
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exactly...utopians seem to basically think that if any action is taken without UN approval, it's illegal. that all the nations of the world have thrown their own sovereignty at the door of the united nations. no thanks.

un = league of nations. its better days have come and gone.

JuanValdez · Mar 21, 2003

I remember when they arrested the kids at K-Mart I was happy about it because they annoyed the hell out of me when I lived near there. Then I found out that K-Mart didn't call the cops and I had to shut the hell up.

No point, just remembering.

No Worries · Mar 21, 2003

Originally posted by JuanValdez
Here's an interesting article on the legaility of the war my Michael Dorf for Findlaw.

http://writ.news.findlaw.com/dorf/20030319.html
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This article disputes many of treeman's facts; thus, it has to be wrong and probably best categorized as left wing propaganda, right?

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