Was the Iraq War Illegal?

[Zhade]

IMIO, yes. It was a breach of international law to attack a country that was not even threatening to attack us.

However, some say that since it has not yet been proven to be illegal in a court of law, it is not illegal. I can't accept that argument without some legal backing behind it.

So, DUers who are experienced in Constitutional and international law: was the war we waged on Iraq illegal, or not?

[Disturbed]

1. Even that Neo-con Richard Perle

stated that it was illegal under Intl. Law.

[FreedomAngel82]

24. Yes

It's very much illegal. It went against international laws. The reason why it hasn't been proven is because nobody has issued a suit against BushCo. I wish someone would. Is there any way we can pressure that?

[CWebster]

2. Yes, but hey, since they aren't wearing Uniforms

we have the right to torture them.

[stevebreeze]

3. If someone were to shoot a person in the head it is an illegal act

weather or not it has been proved in court.

[IndianaGreen]

4. And those American leaders responsible for it should be prosecuted

from Bush to Tommy Franks (for planning for the war), to the generals in the field, to the company commanders, and to those that supported the war.

[no_hypocrisy]

5. It isn't a "war". It's an invasion of a sovereign nation that did not

provoke an attack.

[ixion]

9. yep, I've maintained that point as well

which does indeed make it an illegal invasion, and a massive war crime.

[FreedomAngel82]

26. Isn't that like what

Hitler did with invading countries?

[Zhade]

58. Excellent point. It's why I normally say "War ON Iraq".

NT!

[ClintonTyree]

6. Without question...........

however when has the legality of any situation stood in the way of the bush Imperialists? Can you imagine the blind outrage had Bill Clinton done the same? The MSM and the right wing loonies would crucify ANY Democrat that took such an illegal and outrageous tack.
But as long as old god fearin' W is at the supposed helm it's OK 'cause god is on their side. I wouldn't be surprised if W gets all of his war plans directly from god, god being such a vengeful SOB to begin with.

[FreedomAngel82]

25. That's what makes me

so pissed off. NOBODY dares question der Bush and if they do they're called anti-American and supporting the terrorist. :grr: I want freakin justice. And of course Osama Bin Laden is still a live and out there. :eyes:

[ClintonTyree]

7. Who's the numbnut that voted "no"?

Come on you freep turd, expose yourself. Well, not in your usual way that is. Let us know who you are. ;)

[IndianaGreen]

10. Hopefully it is someone that will be enlisting in the military

to put his/her ass where the mouth is.

[Zhade]

57. I don't know if he's in the military...

...but Freddie Stubbs was the inspiration for this poll (though I'm not calling him a numbnut).

[HereSince1628]

8. They conspired to lie, thus didn't meet terms the IWR (included here)

The lies were important to fulfill the terms of the IWR. Without the lies the President couldn't meet the terms of



IRAQ WAR RESOLUTION

107th CONGRESS
2d Session
H. J. RES. 114
October 10, 2002

JOINT RESOLUTION
To authorize the use of United States Armed Forces against Iraq.
Whereas in 1990 in response to Iraq's war of aggression against and illegal occupation of Kuwait, the United States forged a coalition of nations to liberate Kuwait and its people in order to defend the national security of the United States and enforce United Nations Security Council resolutions relating to Iraq;

Whereas after the liberation of Kuwait in 1991, Iraq entered into a United Nations sponsored cease-fire agreement pursuant to which Iraq unequivocally agreed, among other things, to eliminate its nuclear, biological, and chemical weapons programs and the means to deliver and develop them, and to end its support for international terrorism;

Whereas the efforts of international weapons inspectors, United States intelligence agencies, and Iraqi defectors led to the discovery that Iraq had large stockpiles of chemical weapons and a large scale biological weapons program, and that Iraq had an advanced nuclear weapons development program that was much closer to producing a nuclear weapon than intelligence reporting had previously indicated;

Whereas Iraq, in direct and flagrant violation of the cease-fire, attempted to thwart the efforts of weapons inspectors to identify and destroy Iraq's weapons of mass destruction stockpiles and development capabilities, which finally resulted in the withdrawal of inspectors from Iraq on October 31, 1998;

Whereas in Public Law 105-235 (August 14, 1998), Congress concluded that Iraq's continuing weapons of mass destruction programs threatened vital United States interests and international peace and security, declared Iraq to be in `material and unacceptable breach of its international obligations' and urged the President `to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations';

Whereas Iraq both poses a continuing threat to the national security of the United States and international peace and security in the Persian Gulf region and remains in material and unacceptable breach of its international obligations by, among other things, continuing to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations; Whereas Iraq persists in violating resolution of the United Nations Security Council by continuing to engage in brutal repression of its civilian population thereby threatening international peace and security in the region, by refusing to release, repatriate, or account for non-Iraqi citizens wrongfully detained by Iraq, including an American serviceman, and by failing to return property wrongfully seized by Iraq from Kuwait;

Whereas the current Iraqi regime has demonstrated its capability and willingness to use weapons of mass destruction against other nations and its own people; Whereas the current Iraqi regime has demonstrated its continuing hostility toward, and willingness to attack, the United States, including by attempting in 1993 to assassinate former President Bush and by firing on many thousands of occasions on United States and Coalition Armed Forces engaged in enforcing the resolutions of the United Nations Security Council;

Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq; Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of United States citizens;

Whereas the attacks on the United States of September 11, 2001, underscored the gravity of the threat posed by the acquisition of weapons of mass destruction by international terrorist organizations;

Whereas Iraq's demonstrated capability and willingness to use weapons of mass destruction, the risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces or provide them to international terrorists who would do so, and the extreme magnitude of harm that would result to the United States and its citizens from such an attack, combine to justify action by the United States to defend itself;

Whereas United Nations Security Council Resolution 678 (1990) authorizes the use of all necessary means to enforce United Nations Security Council Resolution 660 (1990) and subsequent relevant resolutions and to compel Iraq to cease certain activities that threaten international peace and security, including the development of weapons of mass destruction and refusal or obstruction of United Nations weapons inspections in violation of United Nations Security Council Resolution 687 (1991), repression of its civilian population in violation of United Nations Security Council Resolution 688 (1991), and threatening its neighbors or United Nations operations in Iraq in violation of United Nations Security Council Resolution 949 (1994);

Whereas in the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1), Congress has authorized the President `to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolution 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677';

Whereas in December 1991, Congress expressed its sense that it `supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 687 as being consistent with the Authorization of Use of Military Force Against Iraq Resolution (Public Law 102-1),' that Iraq's repression of its civilian population violates United Nations Security Council Resolution 688 and `constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region,' and that Congress, `supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 688';

Whereas the Iraq Liberation Act of 1998 (Public Law 105-338) expressed the sense of Congress that it should be the policy of the United States to support efforts to remove from power the current Iraqi regime and promote the emergence of a democratic government to replace that regime;

Whereas on September 12, 2002, President Bush committed the United States to `work with the United Nations Security Council to meet our common challenge' posed by Iraq and to `work for the necessary resolutions,' while also making clear that `the Security Council resolutions will be enforced, and the just demands of peace and security will be met, or action will be unavoidable'; Whereas the United States is determined to prosecute the war on terrorism and Iraq's ongoing support for international terrorist groups combined with its development of weapons of mass destruction in direct violation of its obligations under the 1991 cease-fire and other United Nations Security Council resolutions make clear that it is in the national security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations Security Council resolutions be enforced, including through the use of force if necessary;

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for Use of Military Force (Public Law 107-40); and

Whereas it is in the national security interests of the United States to restore international peace and security to the Persian Gulf region: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military Force Against Iraq Resolution of 2002'.
SEC. 2. SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS. The Congress of the United States supports the efforts by the President to--
(1) strictly enforce through the United Nations Security Council all relevant Security Council resolutions regarding Iraq and encourages him in those efforts; and
(2) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq.
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION- The President is authorized 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 relevant United Nations Security Council resolutions regarding Iraq.
(b) PRESIDENTIAL DETERMINATION- In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that--
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and
(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.
(c) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this joint resolution supersedes any requirement of the War Powers Resolution.
SEC. 4. REPORTS TO CONGRESS. (a) REPORTS- The President shall, at least once every 60 days, submit to the Congress a report on matters relevant to this joint resolution, including actions taken pursuant to the exercise of authority granted in section 3 and the status of planning for efforts that are expected to be required after such actions are completed, including those actions described in section 7 of the Iraq Liberation Act of 1998 (Public Law 105-338).
(b) SINGLE CONSOLIDATED REPORT- To the extent that the submission of any report described in subsection (a) coincides with the submission of any other report on matters relevant to this joint resolution otherwise required to be submitted to Congress pursuant to the reporting requirements of the War Powers Resolution (Public Law 93-148), all such reports may be submitted as a single consolidated report to the Congress.
(c) RULE OF CONSTRUCTION- To the extent that the information required by section 3 of the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) is included in the report required by this section, such report shall be considered as meeting the requirements of section 3 of such resolution.

[mike_c]

12. the IWR itself contains enough false claims to justify...

...an accusation of attempting to whitewash an illegal war of aggression by framing it, apriori, as a corrective action within the law. Vigilante justice at its best.

on edit: the situation is actually a bit more complex than it appears on the surface. The IWR is itself an essentially illegal document, IMO, since it offers justification for a breach of laws and treaties. The IWR is little different from a congressional resolution calling for extra-legal killing in that it seeks to cover flagrant violation of international law prohibiting wars of aggression-- laws that the U.S. was instrumental in drafting, BTW. The IWR is like a note from the local sheriff saying that "it's ok to break into Billy-bob's house, rape and kill his wife and kids, then drag him behind your pickup truck until his head pops off." Wave that in court and see how far it gets you.

[mike_c]

11. acts are not proven illegal in court....

Illegal acts are illegal by definition-- what's determined in court is whether the act was committed, who is responsible, etc. For example, no one has to "prove" that murder is illegal-- that's defined by law.

In this case there is no paucity of evidence that the invasion of Iraq occurred in contravention of international laws and treaties prohibiting wars of aggression. I suppose there's lots of room for legal wrangling about who is responsible, but little question about the legality of the invasion itself. The Bush administration and the American Congress have spent uncounted hours during the last several years trying to spin up some manner in which Iraq was a direct threat to the U.S., largely to skirt the issue of the invasion's illegality by making it a matter of self defense. I think that's pretty laughable by now.

A couple of people have thus far voted "no" in this poll-- I wonder what their reasoning is?

[Zhade]

59. Thank you. I agree.

NT!

[leesa]

13. So if a thief steals something and it's not proven in a court of law, it

wasn't stolen?? If that's truly the argument you are facing, it's sort of silly.

[Zhade]

60. It is, and it was an argument put forth by a DUer.

Probably supported the war, for all I know.

[marcologico]

14. Big time, like most of our wars. n/t

[CTLawGuy]

17. Howard Dean agrees with you

Kerry.... not so sure...

[Jack Rabbit]

15. No immanent threat from Iraq, no enabling resolution in the UN

Moreover, I believe beyond any doubt that the Bushies knew Saddam was not a threat.

The war was illegal, period. The invasion was a war crime on its face.

[mike_c]

16. a kick and a question for those who voted "no...."

Would anyone who voted "no" in this poll care to discuss their reasoning? I'm sincerely puzzled. How could the invasion and occupation of Iraq be considered legal?

[Nederland]

30. Sure

I believe the action complied with the terms of the IWR and was therefore "legal" from the standpoint of US law. From the standpoint of international law, I've yet to see anyone one this thread give me the precise piece of international law that was broken. Until I see that, I don't know why people think this war was any different from the action taken in numerous other wars.

[mike_c]

33. here you are....

Sorry for the poor formatting-- it's a screen grab.

on edit: as G_j and others note below, this has the full force of law in the U.S. under the Constitution, at least until Congress withdraws from treaties like the U.N. Charter. The IWR was at best a lame attempt to cast the invasion of Iraq as something other than a war of aggression, which is explicitly recognized as a "crime against peace" below.

on double edit: note that Principle IV makes individual soldiers who participate in a war crime-- including a war of aggression-- personally responsible for their crimes. They cannot hide behind the chain of command as long as a moral choice was available at the time. Note too that the law specifies a moral choice, not an easy choice, a practical choice, or an expedient choice.

________________________________________________________________________

Principles of the Nuremberg Tribunal, 1950

No. 82

Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. Adopted by the International Law Commission of the United Nations, 1950.

Introductory note: Under General Assembly Resolution 177 (II), paragraph la), the International Law Commission was directed to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal." In the course of the consideration of this subject, the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgment constituted principles of international law. The conclusion was that since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text below was adopted by the Commission at its second session. The Report of the Commission also contains commentaries on the principles (see Yearbook of the International Law Commission, 1950, Vol. II, pp. 374-378).

Authentic text: English

Text published in Report of the International Law Commission Covering its Second Session, 5 June-29 July 1950, Document A/1316, pp. 11-14.

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle Vl

The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War crimes:

Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

{c) Crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII

Complicity in the commission of a crime against peace, a war crime or a crime against humanity as set forth in Principles Vl is a crime under international law.

[Nederland]

44. Questions

Which violation do you believe occurred?

(a) Crimes against peace
(b) War crimes
{c) Crimes against humanity

All of the above?

Do you believe that the IWR, which John Kerry voted for, was inherently incompatible with the above section of international law?

[mike_c]

54. wars of aggression are by definition...

...crimes against peace. I also believe that many of the violations of the Geneva Conventions that have occurred are additionally covered by the war crimes in (b).

Yes, I do think that the IWR was inherently incompatible with the statutes quoted above, but with the caveat that the IWR contains outright falsehoods about Iraq's belligerence, intent, and capability that, if true, would at least partially relieve some of the violations. However, even if ALL of the assertions in the IWR were true, I think it unlikely that a credible case could be made that the invasion was somehow in self defense or in defense of others rather than a simple war of aggresssion. It's a moot point however, because we now know that many of the assertions in the IWR were untrue.

[htuttle]

35. Article 1, Chapter 2 of the UN Charter

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

This ties into Article VI of the US Constitution, which states:

Article VI

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Treaties ratified by Congress have the same legal standing as the laws passed by Congress and signed by the President, and the Constitution itself.

How it is different from other wars is that the US did not go to the trouble of using some interpretation of Article 51 of the UN Charter (the so-called self-defense clause) as a pretext. In all previous aggressions since WWII, we've at least tried to justify our actions under international law. Even Grenada.

And then there's the whole 'enemy combatant'/Guantanamo/covert abductions thing. And the torture thing. We've violated many parts of the Geneva Conventions -- if not moreso than during Vietnam, certainly in a more arrogant and flagrant manner. Article VI of the US Constitution applies to these as well.

[Nederland]

45. As I said before

I don't understand why you believe that this war is any different from any other military action the US has taken since WWII.

[peace4all]

47. who says

those actions were legal either

[Nederland]

49. Fair Enough (nt)

[htuttle]

53. As I said right in the post you replied to

"How it is different from other wars is that the US did not go to the trouble of using some interpretation of Article 51 of the UN Charter (the so-called self-defense clause) as a pretext. In all previous aggressions since WWII, we've at least tried to justify our actions under international law. Even Grenada."

To summarize:
"the US did not go to the trouble of using some interpretation of Article 51 of the UN Charter (the so-called self-defense clause) as a pretext"

Past wars may have used Article 51 in a highly disingenuous manner, but they DID at least use it as an excuse.

[G_j]

18. Aggressive War: Supreme International Crime

Statement by U.S. Supreme Court Justice Robert L. Jackson
Chief U.S. Prosecutor
at the Nuremberg Tribunals
August 12, 1945
on War Trials Agreement; August 12, 1945

There are some things I would like to say, particularly to the American people, about the agreement we have just signed.
For the first time, four of the most powerful nations have agreed not only upon the principles of liability for war crimes of persecution, but also upon the principle of individual responsibility for the crime of attacking the international peace.

Repeatedly, nations have united in abstract declarations that the launching of aggressive war is illegal. They have condemned it by treaty. But now we have the concrete application of these abstractions in a way which ought to make clear to the world that those who lead their nations into aggressive war face individual accountability for such acts.
<snip>

"We must make clear to the Germans that the wrong for which
their fallen leaders are on trial is not that they lost the
war, but that they started it. And we must not allow
ourselves to be drawn into a trial of the causes of the war,
for our position is that no grievances or policies will
justify resort to aggressive war. It is utterly renounced
and condemned as an instrument of policy."
<snip>

U.S. Supreme Court Justice Robert L. Jackson
Chief U.S. Prosecutor
at the Nuremberg Tribunals
August 12, 1945

READ THE ENTIRE STATEMENT HERE:
http://www.yale.edu/lawweb/avalon/imt/jack02.htm

----------------------
Marjorie Cohn | Aggressive War: Supreme International Crime
http://www.truthout.org/docs_04/110904A.shtml
------------------------
the denial of water to Iraqi civilians = Article 14 war crime

http://www.casi.org.uk/briefings-new.html

Denial of Water to Iraqi Cities

Water supplies to Tall Afar, Samarra and Fallujah were cut off during US attacks during the past two months, affecting up to 750,000 civilians. This appears to form part of a deliberate US policy of denying water to the residents of cities under attack. If so, it has been adopted without a public debate, and without consulting Coalition partners. It is a serious breach of international humanitarian law, and is deepening Iraqi opposition to the United States, other coalition members, and the Iraqi government.

This briefing outlines the evidence for the denial of water to Iraqi civilians, discusses stated justifications for these tactics, and analyses some of the implications. It calls for the immediate cessation of this tactic, which causes severe and undue suffering to civilians under attack.

Read the full briefing: "DENIAL OF WATER TO IRAQI CITIES"

http://www.casi.org.uk/briefings-new.html
-----------------------------------------
From Vietnam to Fallujah

......... by Fran Schor September 13, 2004



http://www.zmag.org/content/showarticle.cfm?SectionID=51&ItemID=6217


The recent controversy surrounding the "Swift Boat Veterans" ad challenging John Kerry's Vietnam record and his later statements as a leader of Vietnam Veterans against the War (VVAW) have fallen into predictable partisan perspectives. Republicans and their media attack machine still insist that Kerry's medals are suspect and his VVAW activities were treasonous. Kerry and the Democrats, in turn, have found further documentary evidence and eye-witness accounts to support his version of the Vietnam incidents. As far as Kerry's 1971 testimony about US atrocities in Vietnam, Kerry has reiterated that he was just recounting reports from the Winter Soldier Investigations. In addition, he tried earlier to deflect criticism of his VVAW positions by claiming that some of his statements were overzealous and part of the heated rhetoric of the times. In effect, the Bush Administration and Republicans have tried to deny that atrocities took place while Kerry and the Democrats have tried to minimize or marginalize them.

For those who have studied the historical record of the US prosecution of the war in Southeast Asia, neither the Republicans nor Democrats have confronted the full measure of those atrocities and what their legacy is especially in the war on Iraq. While most studies of the war in Southeast Asia acknowledge that 4 times the tonnage of bombs was dropped on Vietnam, Cambodia, and Laos than that used by the US in all theaters of operation during World War II, only a few, such as James William Gibson's The Perfect War: Technowar in Vietnam, analyze the full extent of such bombing. Not only were thousands of villages in Vietnam totally destroyed, but massive civilian deaths, numbering close to 3 million, resulted in large part from such indiscriminate bombing. Integral to the bombing strategy was the use of weapons that violated international law, such as napalm and anti-personnel fragmentation bombs. As a result of establishing free-fire zones where anything and everything could be attacked, including hospitals, US military operations led to the deliberate murder of mostly civilians.

While Rumsfeld and the Pentagon have touted the "clean" weapons used in Iraq, the fact is that aerial cluster bombs and free-fire zones have continued to be part of present day military operations. Villages throughout Iraq, from Hilla to Fallujah, have borne and are bearing US attacks that take a heavy civilian toll. Occasionally, criticisms of the type of ordnance used in Iraq found its way into the mainstream press, especially when left-over cluster bomblets looking like yellow food packages blow up in children's hands or depleted uranium weapons are dropped inadvertently on British soldiers. However, questions about the immorality of "shock and awe" bombing strategy have been buried deeper than any of the cluster bomblets.

In Vietnam, a primary ground war tactic was the "search and destroy" mission with its over-inflated body counts. As Christian Appy forcefully demonstrated in Working Class War: American Combat Soldiers and Vietnam, such tactics were guaranteed to produce atrocities. Any revealing personal account of the war in Vietnam, such as Ron Kovic's Born on the Fourth of July, underscores how those atrocities took their toll on civilians and US soldiers, like Kovic. Of course, certain high-profile atrocities, such as My Lai, achieved prominent media coverage (almost, however, a year after the incident.) Nonetheless, My Lai was seen either as an aberration and not part of murderous campaigns such as the Phoenix program with its thousands of assassinations or a result of a few bad apples, like a Lt. Calley, who nonetheless received minor punishment for his command of the massacre of hundreds of women and children. Moreover, as reported in Tom Engelhardt's The End of Victory Culture, "65% of Americans claimed not to be upset by the massacre" (224). Is it, therefore, not surprising that Noam Chomsky asserted during this period that the US had to undergo some sort of de- nazification in order to regain some moral sensitivity to what US war policy had produced in Vietnam



..more..

----

[mike_c]

19. excellent reply....

Thank you for posting this. I'm still hoping to hear a rebuttal from someone who believes there is some shred of legal justification for the invasion and occupation of Iraq-- as of this writing five people have voted "no" in the poll but not one has offered any explanation. I suspect the answer is simple, blind patriotism of the "my country can do no wrong" sort, but I would like to hope for a more considered response to so important a question.

[G_j]

21. there is no defense

in terms of international law.
I suppose if somebody wants to defend a NO answer, they will need the help of a serpant toungued Gonzales who thinks Bush is above and not subject to international laws and standards.

[Zhade]

61. Fantastic post. This country has much to be ashamed of.

Hell, even some good DEMS think Viet Nam was justified and that we never committed atrocities.

Man, to be that delusional...!

[tom_paine]

20. Well, considering it proceeded from a similar lie to the 1939

invasion of Poland

I would guess not

[cestpaspossible]

22. It was illegal under US law as well - the IWR was not complied with.

[CTLawGuy]

46. how

was it not complied with?


remember the IWR was the resolution Bush preferred.

[Nederland]

50. Exactly

The IWR was a blank check for war. It made everything depend upon "the determination of the President".

[CTLawGuy]

52. the meme

that Bush "didn't follow the IWR" is a means to rationalize excusing pansy Dems for their support of IWR.

Saying IWR "wasn't really a war resolution" makes some people feel better.

[cestpaspossible]

56. Bush did not fullfil Section 3, Subsection b

Just as a tax cheat filing a false return to the IRS did not fullfil their duty to file a tax return.

[Balbus]

23. I guess a lot depends on which law you're referring to...

In regards to international law, I don't think there's any doubt that this would be considered an illegal war.

But as far as U.S. Law it's a little more complicated. The president's proposal of war/action to invade Iraq was approved by the U.S. Congress in October of 2002 with a majority vote. So in that regards it's legal under U.S. Law. But the U.S. Constitution states (in Article VI, Clause 2) that "...all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land..." One can then make the argument that by going to war with Iraq violates that article of the Constitution since we, in effect, have a treaty with the U.N. Security Council who forbade military action against Iraq. We broke the treaty, which violates the Constitution, which violates U.S. Law.

[mike_c]

29. the U.S. is also signatory to treaties and conventions...

...such as the Nuremburg protocols and the Geneva Conventions. The former explicitly outlaws wars of aggression-- giving such prohibitions legal force in the U.S. as well as internationally-- and the IWR isn't worth the paper it's written on unless its false claims implying that Iraq somehow posed a threat to the U.S. are somehow substantiated, IMO. Again, the IWR is like a letter from the local school board giving the class bully permission to shoot his teachers-- not particularly compelling unless it contains evidence exonerating him from responsibility for the crime, or otherwise undermining the criminal nature of the action.

[G_j]

32. US Constitution Article VI

http://www.law.cornell.edu/constitution/constitution.articlevi.html

Article VI

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.


This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.


The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

[NewYorkerfromMass]

27. The question has been asked before

http://www.guardian.co.uk/law/story/0,3605,1042739,00.html

http://news.bbc.co.uk/2/hi/middle_east/3661134.stm

http://observer.guardian.co.uk/iraq/story/0,12239,1158859,00.html

http://www.findlaw.com.au/articles/default.asp?task=read&id=8418&site=GN

http://www.informationclearinghouse.info/article6917.htm

[Josh]

28. Technically it was just a renewal of hostilities -

there has always been an argument that it was legal to take military action according to the terms of the 1991 cease fire. Technically, the Gulf War never ended, so if you want to look at things semantically, then the war was technically legal. That would be a case, however, of using the letter of the law to undermine the spirit of the law.

[mike_c]

31. not so, IMO....

The Gulf War Coalition placed administration of at least part of the postwar "hostilities" in the hands of the U.N., i.e. the economic sanctions, oil for food program, and weapons inspections. The U.N. Security Council never asked to be relieved of those responsibilities, or reported that it was unable to meet with them. Even if we agree that the narrow argument for "resumption of hostilities" has merit, it seems clear that that decision was not up to the U.S. to make unilaterally, and the Security Council is on record as having opposed it.

Finally, the resumption of hostilities argument cannot be unbounded-- I mean, once an enemy has been defeated and has withdrawn, the victor can't wait for 10 years and then suddenly decide to start fighting again without genuine provocation, especially if the defeated party has not resumed any hostile or threatening actions. Remember, the Gulf War was fought to remove Iraq from Kuwait, and in March 2003 Iraq showed no signs of further belligerence toward Kuwait. Quite the opposite. At best, the U.S. can only argue that Iraq did not comply with essentially unrelated conditions that were imposed upon it and to which it had not agreed, but even that assertion would be wrong, because Iraq had complied with virtually all of the coalition's demands long before the invasion. In fact, the "resumption of hostilities" was likely intended to conceal that compliance or at least divert attention elsewhere, since it was only a matter of time before the U.N. certified that Iraq had met the terms imposed upon it by the coalition after the Gulf War. They were moving inexorably toward that certification when the last weapons inspectors fled in advance of the invasion.

[wuushew]

34. Technically the first Gulf War WAS ended

Enacted on April 3, 1991, Resolution 687, in its Operative Paragraph 6, terminated this authorization, contingent only upon Iraq's compliance with Resolution 686. The resolution "Notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with resolution 678 (1990) to bring their military presence in Iraq to an end consistent with resolution 686 (1991);"

Resolution 687 also introduced multiple disarmament demands on Iraq, but, regardless of whether Iraq is in violation of those (or subsequent) demands, the termination of force in OP6 is not made conditional on Iraq's compliance with those separate conditions. It is conditional only upon compliance with Resolution 686, which required Iraq to reimburse Kuwait for its losses, release prisoners of war, remove its war material from Kuwait, and in general complete the process of ending its war with Kuwait. Resolution 686 was not a disarmament resolution; the first such resolution was 687.

http://www.robincmiller.com/iraq6-fr.htm

[Zhade]

62. So does that mean we can attack North Korea with impunity?

After all, that war never technically ended, either.

[Hippo_Tron]

36. What defines an illegal war by international law?

I do know that we didn't have a majority approval by the permanent members of the security council, which frankly shouldn't be too hard to recieve it there were a legitimate threat, considering that no Islamic nations are permanent members of the security council.

[mike_c]

37. see #33 above for explicit definitions....

on edit-- these are based, in turn, on the report of the Nuremberg Tribunal, which is available online. Google it.

[htuttle]

38. See my reply #35

Whether it's illegal or not is defined by the laws in place -- that being the UN Charter. My reply details the conclusion that the Charter was definitely violated.

But now what happens next? There's no World Cop.

I've read that if a nation is named in a UN resolution, they can't vote on or veto it, but I'm not sure how that would really play out (they'd have to name not just the US, but the UK, etc...).

[mike_c]

39. one point I'd like to add to this discussion is that the invasion...

...and occupation of Iraq IS illegal, i.e. the OP speaks of the war of aggression in the past tense, when in fact the illegal actions continue daily.

[mvd]

40. Good point.. it's just one of the illegal activities

Even holding an election while another country is occupying the country where the election is being held is against the Geneva Convention..

[Zhade]

63. Thanks, that's entirely true and I fully agree with that conclusion.

NT!

[G_j]

41. kick

[Zynx]

42. Yes it was.

The war was undeclared, unprovoked, and was not approved by the UN as is necessary for such actions to be legal.

[peace4all]

43. yes but

that doesn't seem to matter anymore. Bush is God.

[Stand and Fight]

48. Absolutely, Positively, Affirmative and without a fucking doubt. n/t

[robbedvoter]

51. We judged Germany at Nuremberg for doing the very same

"Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or for altering those conditions."

US prosecutor opening statement

[durutti]

55. Richard Perle thought so. n/t

[Blue_Tires]

64. wow...i'd like to hear from the 20 ppl that voted no