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From: wolda002@umn.edu
Date: Sun Mar 20 2011 - 01:19:05 EST
War Is Illegal – Even in
Libya<http://my.firedoglake.com/davidswanson/2011/03/14/war-is-illegal-even-in-libya/>
http://my.firedoglake.com/davidswanson/2011/03/14/war-is-illegal-even-in-libya/
It’s a simple point, but an important one, and one that gets overlooked.
Whether or not you think a particular war is moral and good, the fact
remains that war is illegal. Actual defense by a country when attacked is
legal, but that only occurs once another country has actually attacked, and
it must not be used as a loophole to excuse wider war that is not employed
in actual defense.
Needless to say, a strong moral argument can be made for preferring the rule
of law to the law of rulers. If those in power can do anything they like,
most of us will not like what they do. Some laws are so unjust that when
they are imposed on ordinary people, they should be violated. But allowing
those in charge of a government to engage in massive violence and killing in
defiance of the law is to sanction all lesser abuses as well, since no
greater abuse is imaginable. It’s understandable that proponents of war
would rather ignore or “re-interpret” the law than properly change the law
through the legislative process, but it is not morally defensible.
For much of U.S. history, it was reasonable for citizens to believe, and
often they did believe, that the U.S. Constitution banned aggressive war.
Congress declared the 1846-1848 War on Mexico to have been “unnecessarily
and unconstitutionally begun by the president of the United States.”
Congress had issued a declaration of war, but the House believed the
president had lied to them. (President Woodrow Wilson would later send
troops to war with Mexico without a declaration.) It does not seem to be the
lying that Congress viewed as unconstitutional in the 1840s, but rather the
launching of an unnecessary or aggressive war.
As Attorney General Lord Peter Goldsmith warned British Prime Minister Tony
Blair in March 2003, “Aggression is a crime under customary international
law which automatically forms part of domestic law,” and therefore,
“international aggression is a crime recognized by the common law which can
be prosecuted in the U.K. courts.” U.S. law evolved from English common law,
and the U.S. Supreme Court recognizes precedents and traditions based on it.
U.S. law in the 1840s was closer to its roots in English common law than is
U.S. law today, and statutory law was less developed in general, so it was
natural for Congress to take the position that launching an unnecessary war
was unconstitutional without needing to be more specific.
In fact, just prior to giving Congress the exclusive power to declare war,
the Constitution gives Congress the power to “define and punish Piracies and
Felonies committed on the high Seas, and Offenses against the Law of
Nations.” At least by implication, this would seem to suggest that the
United States was itself expected to abide by the “Law of Nations.” In the
1840s, no member of Congress would have dared to suggest that the United
States was not itself bound by the “Law of Nations.” At that point in
history, this meant customary international law, under which the launching
of an aggressive war had long been considered the most serious offense.
Fortunately, now that we have binding multilateral treaties that explicitly
prohibit aggressive war, we no longer have to guess at what the U.S.
Constitution says about war. Article VI of the Constitution explicitly says
this:
“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, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.”
[emphasis added]
So, if the United States were to make a treaty that banned war, war would be
illegal under the supreme law of the land.
The United States has in fact done this, at least twice, in treaties that
remain today part of our highest law: the Kellogg-Briand Pact and the United
Nations Charter.
WE BANNED ALL WAR IN 1928
In 1928, the United States Senate, that same institution that on a good day
can now get three percent of its members to vote against funding war
escalations or continuations, voted 85 to 1 to bind the United States to a
treaty by which it is still bound and in which we “condemn recourse to war
for the solution of international controversies, and renounce it, as an
instrument of national policy in [our] relations with” other nations. This
is the Kellogg-Briand Pact. It condemns and renounces all war. The U.S.
Secretary of State, Frank Kellogg, rejected a French proposal to limit the
ban to wars of aggression. He wrote to the French ambassador that if the
pact, “. . . were accompanied by definitions of the word ‘aggressor’ and by
expressions and qualifications stipulating when nations would be justified
in going to war, its effect would be very greatly weakened and its positive
value as a guaranty of peace virtually destroyed.” The treaty was signed
with its ban on all war included, and was agreed to by dozens of nations.
Kellogg was awarded the Nobel Peace Prize in 1929, an award already rendered
questionable by its previous bestowal upon both Theodore Roosevelt and
Woodrow Wilson.
However, when the U.S. Senate ratified the treaty it added two reservations.
First, the United States would not be obliged to enforce the treaty by
taking action against those who violated it. Excellent. So far so good. If
war is banned, it hardly seems a nation could be required to go to war to
enforce the ban. But old ways of thinking die hard, and redundancy is much
less painful than bloodshed.
The second reservation, however, was that the treaty must not infringe upon
America’s right of self-defense. So, there, war maintained a foot in the
door. The traditional right to defend yourself when attacked was preserved,
and a loophole was created that could be and would be unreasonably expanded.
When any nation is attacked, it will defend itself, violently or otherwise.
The harm in placing that prerogative in law is, as Kellogg foresaw, a
weakening of the idea that war is illegal. An argument could be made for
U.S. participation in World War II under this reservation, for example,
based on the Japanese attack on Pearl Harbor, no matter how provoked and
desired that attack was. War with Germany could be justified by the Japanese
attack as well, through predictable stretching of the loophole. Even so,
wars of aggression have been illegal (albeit unpunished) in the United
States since 1928.
In addition, in 1945, the United States became a party to the United Nations
Charter, which also remains in force today as part of the “supreme law of
the land.” The United States had been the driving force behind the U.N.
Charter’s creation. It includes these lines:
“All Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered.
“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.”
This would appear to be a new Kellogg-Briand Pact with at least an initial
attempt at the creation of an enforcement body. And so it is. But the U.N.
Charter contains two exceptions to its ban on warfare. The first is self-
defense. Here is part of Article 51:
“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence (sic) if an armed attack occurs
against a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security.”
So, the U.N. Charter contains the same traditional right and small loophole
that the U.S. Senate attached to the Kellogg-Briand Pact. It also adds
another. The Charter makes clear that the U.N. Security Council can choose
to authorize the use of force. This further weakens the understanding that
war is illegal, by making some wars legal. Other wars are then, predictably,
justified by claims of legality. The architects of the 2003 attack on Iraq
claimed it was authorized by the United Nations, even though the United
Nations disagreed.
The U.N. Security Council did authorize the War on Korea, but only because
the U.S.S.R. was boycotting the Security Council at the time and China was
still represented by the Kuomintang government in Taiwan. The Western powers
were preventing the ambassador of the new revolutionary government of China
from taking China’s seat as a permanent member of the Security Council, and
the Russians were boycotting the Council in protest. If the Soviet and
Chinese delegates had been present, there is no way that the United Nations
would have taken sides in the war that eventually destroyed most of Korea.
It seems reasonable, of course, to make exceptions for wars of self-defense.
You can’t tell people they’re forbidden to fight back when attacked. And
what if they were attacked years or decades earlier and have been occupied
by a foreign or colonial force against their will, albeit without recent
violence? Many consider wars of national liberation to be a legal extension
of the right to defense. The people of Iraq or Afghanistan don’t lose their
right to fight back when enough years go by, do they? But a nation at peace
cannot legally dredge up centuries- or millennia-old ethnic grievances as
grounds for war. The dozens of nations in which U.S. troops are now based
cannot legally bomb Washington. Apartheid and Jim Crow were not grounds for
war. Nonviolence is not just more effective in remedying many injustices; it
is also the only legal choice. People cannot “defend” themselves with war
any time they wish.
What people can do is fight back when attacked or occupied. Given that
possibility, why wouldn’t you also make an exception — as in the U.N.
Charter — for the defense of other, smaller countries that are unable to
defend themselves? After all, the United States liberated itself from
England a long time ago, and the only way it can use this rationale as an
excuse for war is if it “liberates” other countries by overthrowing their
rulers and occupying them. The idea of defending others seems very sensible,
but — exactly as Kellogg predicted — loopholes lead to confusion and
confusion allows larger and larger exceptions to the rule until a point is
reached at which the very idea that the rule exists at all seems ludicrous.
And yet it does exist. The rule is that war is a crime. There are two narrow
exceptions in the U.N. Charter, and it is easy enough to show that any
particular war does not meet either of the exceptions.
Libya has not attacked the United States.
The United Nations has not authorized bombing Libya.
On August 31, 2010, when President Barack Obama was scheduled to give a
speech about the War on Iraq, blogger Juan Cole composed a speech he thought
the president might like to, but of course did not, give:
“Fellow Americans, and Iraqis who are watching this speech, I have come here
this evening not to declare a victory or to mourn a defeat on the
battlefield, but to apologize from the bottom of my heart for a series of
illegal actions and grossly incompetent policies pursued by the government
of the United States of America, in defiance of domestic US law,
international treaty obligations, and both American and Iraqi public
opinion.
“The United Nations was established in 1945 in the wake of a series of
aggressive wars of conquest and the response to them, in which over 60
million people perished. Its purpose was to forbid such unjustified attacks,
and its charter specified that in future wars could only be launched on two
grounds. One is clear self-defense, when a country has been attacked. The
other is with the authorization of the United Nations Security Council.
“It was because the French, British, and Israeli attack on Egypt in 1956
contravened these provisions of the United Nations Charter that President
Dwight D. Eisenhower condemned that war and forced the belligerents to
withdraw. When Israel looked as though it might try to hang on to its
ill-gotten spoils, the Sinai Peninsula, President Eisenhower went on
television on February 21, 1957, and addressed the nation. These words have
largely been suppressed and forgotten in the United States of today, but
they should ring through the decades and centuries:
“‘If the United Nations once admits that international dispute can be
settled by using force, then we will have destroyed the very foundation of
the organization, and our best hope of establishing a real world order. That
would be a disaster for us all…. [Referring to Israeli demands that certain
conditions be met before it relinquished the Sinai, the president said that
he] “would be untrue to the standards of the high office to which you have
chosen me if I were to lend the influence of the United States to the
proposition that a nation which invades another should be permitted to exact
conditions for withdrawal….’
“‘If it [the United Nations Security Council] does nothing, if it accepts
the ignoring of its repeated resolutions calling for the withdrawal of the
invading forces, then it will have admitted failure. That failure would be a
blow to the authority and influence of the United Nations in the world and
to the hopes which humanity has placed in the United Nations as the means of
achieving peace with justice.’”
Eisenhower was referring to an incident that began when Egypt nationalized
the Suez Canal; Israel invaded Egypt in response. Britain and France
pretended to step in as outside parties concerned that the Egyptian-Israeli
dispute might jeopardize free passage through the canal. In reality, Israel,
France, and Britain had planned the invasion of Egypt together, all agreeing
that Israel would attack first, with the other two nations joining in later
pretending they were trying to stop the fighting. This illustrates the need
for a truly impartial international body (something the United Nations has
never become but someday could) and the need for a complete ban on war. In
the Suez crisis, the rule of law was enforced because the biggest kid on the
block was inclined to enforce it. When it came to overthrowing governments
in Iran and Guatemala, shifting away from big wars to secret operations much
as Obama would do, President Eisenhower held a different view of the value
of law enforcement. When it came to the 2003 invasion of Iraq, Obama was not
about to concede that the crime of aggression should be punished. The
National Security Strategy published by the White House in May 2010
declared:
“Military force, at times, may be necessary to defend our country and allies
or to preserve broader peace and security, including by protecting civilians
facing a grave humanitarian crisis…. The United States must reserve the
right to act unilaterally if necessary to defend our nation and our
interests, yet we will also seek to adhere to standards that govern the use
of force.”
Try telling your local police that you may soon go on a violent crime spree,
but that you will also seek to adhere to standards that govern the use of
force.
WE TRIED WAR CRIMINALS IN 1945
Two other important documents, one from 1945 and the other from 1946,
treated wars of aggression as crimes. The first was the Charter of the
International Military Tribunal at Nuremberg, the institution that tried
Nazi war leaders for their crimes. Among the crimes listed in the charter
were “crimes against peace,” “war crimes,” and “crimes against humanity.”
Crimes “against peace” were defined as “planning, preparation, initiation or
waging of a war of aggression, or a war in violation of international
treaties, agreements or assurances, or participation in a common plan or
conspiracy for the accomplishment of any of the foregoing.” The next year,
the Charter of the International Military Tribunal for the Far East (the
trial of Japanese war criminals) used the same definition. These two sets of
trials deserve a great deal of criticism, but a great deal of praise as
well.
On the one hand, they enforced victors’ justice. They left out of the lists
of prosecuted crimes certain crimes, such as the bombing of civilians, in
which the allies had also engaged. And they failed to prosecute the allies
for other crimes that the Germans and Japanese were prosecuted and hanged
for. U.S. General Curtis LeMay, who commanded the firebombing of Tokyo, said
“I suppose if I had lost the war, I would have been tried as a war criminal.
Fortunately, we were on the winning side.”
The tribunals claimed to start the prosecutions at the very top, but they
gave the Emperor of Japan immunity. The United States gave immunity to over
1,000 Nazi scientists, including some who were guilty of the most horrendous
crimes, and brought them to the United States to continue their research.
General Douglas MacArthur gave Japanese microbiologist and lieutenant
general Shiro Ishii and all the members of his bacteriological research
units immunity in exchange for germ warfare data derived from human
experimentation. The British learned from the German crimes they prosecuted
how to later set up concentration camps in Kenya. The French recruited
thousands of SS and other German troops into their Foreign Legion, so that
about half of the legionnaires fighting France’s brutal colonial war in
Indochina were none other than the most hardened remnants of the German Army
from World War II, and the torture techniques of the German Gestapo were
widely used on French detainees in the Algerian War of Independence. The
United States, also working with former Nazis, spread the same techniques
throughout Latin America. Having executed a Nazi for opening dikes to flood
Dutch farmland, the United States proceeded to bomb dams in Korea and
Vietnam for the same purpose.
War veteran and Atlantic Monthly correspondent Edgar L. Jones returned from
World War II, and was shocked to discover that civilians back home thought
highly of the war. “Cynical as most of us overseas were,” Jones wrote, “I
doubt if many of us seriously believed that people at home would start
planning for the next war before we could get home and talk without
censorship about this one.” Jones objected to the sort of hypocrisy that
drove the war crimes trials:
“Not every American soldier, or even one per cent of our troops,
deliberately committed unwarranted atrocities, and the same might be said
for the Germans and Japanese. The exigencies of war necessitated many
so-called crimes, and the bulk of the rest could be blamed on the mental
distortion which war produced. But we publicized every inhuman act of our
opponents and censored any recognition of our own moral frailty in moments
of desperation.
“I have asked fighting men, for instance, why they — or actually, why we —
regulated flame-throwers in such a way that enemy soldiers were set afire,
to die slowly and painfully, rather than killed outright with a full blast
of burning oil. Was it because they hated the enemy so thoroughly? The
answer was invariably, ‘No, we don’t hate those poor bastards particularly;
we just hate the whole goddam mess and have to take it out on somebody.’
Possibly for the same reason, we mutilated the bodies of enemy dead, cutting
off their ears and kicking out their gold teeth for souvenirs, and buried
them with their testicles in their mouths, but such flagrant violations of
all moral codes reach into still-unexplored realms of battle psychology.”
On the other hand, there is a great deal to praise in the trials of the Nazi
and Japanese war criminals. Hypocrisy not withstanding, surely it is
preferable that some war crimes be punished than none. Many people intended
that the trials establish a norm that would later be enforced equally for
all crimes against the peace and crimes of war. The Chief Prosecutor at
Nuremberg, U.S. Supreme Court Justice Robert H. Jackson, said in his opening
statement:
“The common sense of mankind demands that law shall not stop with the
punishment of petty crimes by little people. It must also reach men who
possess themselves of great power and make deliberate and concerted use of
it to set in motion evils which leave no home in the world untouched. The
Charter of this Tribunal evidences a faith that the law is not only to
govern the conduct of little men, but that even rulers are, as Lord Chief
Justice Coke put it to King James, ‘under … the law.’ And let me make clear
that while this law is first applied against German aggressors, the law
includes, and if it is to serve a useful purpose it must condemn aggression
by any other nations, including those which sit here now in judgment.”
The tribunal concluded that aggressive war was “not only an international
crime; it is the supreme international crime, differing only from other war
crimes in that it contains within itself the accumulated evil of the whole.”
The tribunal prosecuted the supreme crime of aggression and many of the
lesser crimes that followed from it.
The ideal of international justice for war crimes has not yet been achieved,
of course. The U.S. House Judiciary Committee included a charge of
aggression against President Richard Nixon for ordering the secret bombing
and invasion of Cambodia in its draft articles of impeachment. Rather than
including those charges in the final version, however, the Committee decided
to focus more narrowly on Watergate, wire-tapping, and contempt of Congress.
In the 1980s Nicaragua appealed to the International Court of Justice (ICJ).
That court ruled that the United States had organized the militant rebel
group, the Contras, and mined Nicaragua’s harbors. It found those actions to
constitute international aggression. The United States blocked enforcement
of the judgment by the United Nations and thereby prevented Nicaragua from
obtaining any compensation. The United States then withdrew from the binding
jurisdiction of the ICJ, hoping to ensure that never again would U.S.
actions be subject to the adjudication of an impartial body that could
objectively rule on their legality or criminality.
More recently, the United Nations set up tribunals for Yugoslavia and
Rwanda, as well as special courts in Sierra Leone, Lebanon, Cambodia, and
East Timor. Since 2002, the International Criminal Court (ICC) has
prosecuted war crimes by the leaders of small countries. But the crime of
aggression has loomed as the supreme offense for decades without being
punished. When Iraq invaded Kuwait, the United States evicted Iraq and
punished it severely, but when the United States invaded Iraq, there was no
stronger force to step in and undo or punish the crime.
In 2010, despite U.S. opposition, the ICC established its jurisdiction over
future crimes of aggression. In what types of cases it will do so, and in
particular whether it will ever go after powerful nations that have not
joined the ICC, nations that hold veto power at the United Nations, remains
to be seen. Numerous war crimes, apart from the overarching crime of
aggression, have in recent years been committed by the United States in
Iraq, Afghanistan, and elsewhere, but those crimes have not yet been
prosecuted by the ICC.
In 2009, an Italian court convicted 23 Americans in absentia, most of them
employees of the CIA, for their roles in kidnapping a man in Italy and
shipping him to Egypt to be tortured. Under the principle of universal
jurisdiction for the most terrible crimes, which is accepted in a growing
number of countries around the world, a Spanish court indicted Chilean
dictator Augusto Pinochet and 9-11 suspect Osama bin Laden. The same Spanish
court then sought to prosecute members of the George W. Bush administration
for war crimes, but Spain is being pressured by the Obama administration to
drop the case. In 2010, a judge involved, Baltasar Garzón, was removed from
his position for allegedly abusing his power by investigating the executions
or disappearances of more than 100,000 civilians at the hands of supporters
of Gen. Francisco Franco during the 1936-39 Spanish Civil War and the early
years of the Franco dictatorship.
In 2003, a lawyer in Belgium filed a complaint against Gen. Tommy R. Franks,
head of U.S. Central Command, alleging war crimes in Iraq. The United States
quickly threatened to move NATO headquarters out of Belgium if that nation
did not rescind its law permitting trials of foreign crimes. Charges filed
against U.S. officials in other European nations have thus far failed to go
to trial as well. Civil suits brought in the United States by victims of
torture and other war crimes have run up against claims from the Justice
Department (under the direction of Presidents Bush and Obama) that any such
trials would constitute a threat to national security. In September 2010,
the Ninth Circuit Court of Appeals, agreeing with that claim, threw out a
case that had been brought against Jeppesen Dataplan Inc., a subsidiary of
Boeing, for its role in “renditioning” prisoners to countries where they
were tortured.
In 2005 and 2006 while Republicans held a majority in Congress, Democratic
Congress members led by John Conyers (Mich.), Barbara Lee (Calif.), and
Dennis Kucinich (Ohio) pushed hard for an investigation into the lies that
had launched the aggression against Iraq. But from the time the Democrats
took the majority in January 2007 up to the present moment, there has been
no further mention of the matter, apart from a Senate committee’s release of
its long-delayed report.
In Britain, in contrast, there have been endless “inquiries” beginning the
moment the “weapons of mass destruction” weren’t found, continuing to the
present, and likely extending into the foreseeable future. These
investigations have been limited and in most cases can accurately be
characterized as whitewashes. They have not involved criminal prosecution.
But at least they have actually taken place. And those who have spoken up a
little have been lauded and encouraged to speak up a little more. This
climate has produced tell-all books, a treasure trove of leaked and
declassified documents, and incriminating oral testimony. It has also seen
Britain pull its troops out of Iraq. In contrast, by 2010 in Washington, it
was common for elected officials to praise the 2007 “surge” and swear they’d
known Iraq would turn out to be a “good war” all along. Similarly, Britain
and several other countries have been investigating their roles in U.S.
kidnapping, imprisonment, and torture programs, but the United States has
not — President Obama having publicly instructed the Attorney General not to
prosecute those most responsible, and Congress having performed an inspired
imitation of a possum.
WHAT IF THE COPS OF THE WORLD BREAK THE LAW?
Political Science professor Michael Haas published a book in 2009 the title
of which reveals its contents: “George W. Bush, War Criminal? The Bush
Administration’s Liability for 269 War Crimes.” (A 2010 book by the same
author includes Obama in his charges.) Number one on Haas’s 2009 list is the
crime of aggression against Afghanistan and Iraq. Haas includes five more
crimes related to the illegality of war:
War Crime #2. Aiding Rebels in a Civil War. (Supporting the Northern
Alliance in Afghanistan).
War Crime #3. Threatening Aggressive War.
War Crime #4. Planning and Preparing for a War of Aggression.
War Crime #5. Conspiracy to Wage War.
War Crime #6. Propaganda for War.
The launching of a war can also involve numerous violations of domestic law.
Many such crimes relating to Iraq are detailed in “The 35 Articles of
Impeachment and the Case for Prosecuting George W. Bush,” which was
published in 2008 and includes an introduction that I wrote and 35 articles
of impeachment that Congressman Dennis Kucinich (D., Ohio) presented to
Congress. Bush and Congress did not comply with the War Powers Act, which
requires a specific and timely authorization of war from Congress.
Bush did not even comply with the terms of the vague authorization that
Congress did issue. Instead he submitted a report full of lies about weapons
and ties to 9-11. Bush and his subordinates lied repeatedly to Congress,
which is a felony under two different statutes. Thus, not only is war a
crime, but war lies are a crime too.
I don’t mean to pick on Bush. As Noam Chomsky remarked in about 1990, “If
the Nuremberg laws were applied, then every post-war American president
would have been hanged.” Chomsky pointed out that General Tomoyuki Yamashita
was hanged for having been the top commander of Japanese troops who
committed atrocities in the Philippines late in the war when he had no
contact with them. By that standard, Chomsky said, you’d have to hang every
U.S. president.
But, Chomsky argued, you’d have to do the same even if the standards were
lower. Truman dropped atomic bombs on civilians. Truman “proceeded to
organize a major counter-insurgency campaign in Greece which killed off
about one hundred and sixty thousand people, sixty thousand refugees,
another sixty thousand or so people tortured, political system dismantled,
right-wing regime. American corporations came in and took it over.”
Eisenhower overthrew the governments of Iran and Guatemala and invaded
Lebanon. Kennedy invaded Cuba and Vietnam. Johnson slaughtered civilians in
Indochina and invaded the Dominican Republic. Nixon invaded Cambodia and
Laos. Ford and Carter supported the Indonesian invasion of East Timor.
Reagan funded war crimes in Central America and supported the Israeli
invasion of Lebanon. These were the examples Chomsky offered off the top of
his head. There are many more.
PRESIDENTS DON’T GET TO DECLARE WAR
Of course, Chomsky blames presidents for wars of aggression because they
launched them. Constitutionally, however, the launching of a war is the
responsibility of Congress. Applying the standard of Nuremberg, or of the
Kellogg-Briand Pact — ratified overwhelmingly by the Senate — to Congress
itself would require a lot more rope or, if we outgrow the death penalty, a
lot of prison cells.
Until President William McKinley created the first presidential press
secretary and courted the press, Congress looked like the center of power in
Washington. In 1900 McKinley created something else: the power of presidents
to send military forces to fight against foreign governments without
congressional approval. McKinley sent 5,000 troops from the Philippines to
China to fight against the Boxer Rebellion. And he got away with it, meaning
that future presidents could probably do the same.
Since World War II, presidents have acquired tremendous powers to operate in
secrecy and outside the oversight of Congress. Truman added to the
presidential toolbox the CIA, the National Security Advisor, the Strategic
Air Command, and the nuclear arsenal. Kennedy used new structures called the
Special Group Counter-Insurgency, the 303 Committee, and the Country Team to
consolidate power in the White House, and the Green Berets to allow the
president to direct covert military operations. Presidents began asking
Congress to declare a state of national emergency as an end run around the
requirement of a declaration of war. President Clinton used NATO as a
vehicle for going to war despite congressional opposition.
The trend that moved war powers from Congress to the White House reached a
new peak when President George W. Bush asked lawyers in his Justice
Department to draft secret memos that would be treated as carrying the force
of law, memos that re-interpreted actual laws to mean the opposite of what
they had always been understood to say. On October 23, 2002, Assistant
Attorney General Jay Bybee signed a 48-page memo to the president’s counsel
Alberto Gonzales titled Authority of the President Under Domestic and
International Law to Use Military Force Against Iraq. This secret law (or
call it what you will, a memo masquerading as a law) authorized any
president to single-handedly commit what Nuremberg called “the supreme
international crime.”
Bybee’s memo declares that a president has the power to launch wars. Period.
Any “authorization to use force” passed by Congress is treated as redundant.
According to Bybee’s copy of the U.S. Constitution, Congress can “issue
formal declarations of war.” According to mine, Congress has the power “to
declare war,” as well as every related substantive power. In fact, there are
no incidental formal powers anywhere in my copy of the Constitution.
Bybee dismisses the War Powers Act by citing Nixon’s veto of it rather than
addressing the law itself, which was passed over Nixon’s veto. Bybee cites
letters written by Bush. He even cites a Bush signing statement, a statement
written to alter a new law. Bybee relies on previous memos produced by his
office, the Office of Legal Counsel in the Department of Justice. And he
leans most heavily on the argument that President Clinton had already done
similar things. For good measure, he cites Truman, Kennedy, Reagan, and Bush
Sr., plus an Israeli ambassador’s opinion of a U.N. declaration condemning
an aggressive attack by Israel. These are all interesting precedents, but
they aren’t laws.
Bybee claims that in an age of nuclear weapons “anticipatory self-defense”
can justify launching a war against any nation that might conceivably
acquire nukes, even if there is no reason to think that nation would use
them to attack yours:
“We observe, therefore, that even if the probability that Iraq itself would
attack the United States with WMD, or would transfer such a weapon to
terrorists for their use against the United States, were relatively low, the
exceptionally high degree of harm that would result, combined with a limited
window of opportunity and the likelihood that if we do not use force, the
threat will increase, could lead the President to conclude that military
action is necessary to defend the United States.”
Never mind the high degree of harm the “military action” produces, or its
clear illegality. This memo justified a war of aggression and all the crimes
and abuses of power abroad and at home that were justified by the war. At
the same time that presidents have assumed the power to brush aside the laws
of warfare, they have publicly spoken of supporting them. Harold Lasswell
pointed out in 1927 that a war could better be marketed to “liberal and
middle-class people” if packaged as the vindication of international law.
The British stopped arguing for World War I on the basis of national
self-interest when they were able to argue against the German invasion of
Belgium. The French quickly organized a Committee for the Defense of
International Law.
“The Germans were staggered by this outburst of affection for international
law in the world, but soon found it possible to file a brief for the
defendant.…The Germans…discovered that they were really fighting for the
freedom of the seas and the rights of small nations to trade, as they saw
fit, without being subject to the bullying tactics of the British fleet.”
The allies said they were fighting for the liberation of Belgium, Alsace,
and Lorraine. The Germans countered that they were fighting for the
liberation of Ireland, Egypt, and India.
Despite invading Iraq in the absence of U.N. authorization in 2003, Bush
claimed to be invading in order to enforce a U.N. resolution. Despite
fighting a war almost entirely with U.S. troops, Bush was careful to pretend
to be working within a broad international coalition. That rulers are
willing to promote the idea of international law while violating it, thereby
risking endangering themselves, may suggest the importance they place on
winning immediate popular approval for each new war, and their confidence
that once a war has begun no one will go back to examine too closely how it
happened.
THE ACCUMULATED EVIL OF THE WHOLE
The Hague and Geneva Conventions and other international treaties to which
the United States is a party ban the crimes that are always part of any war,
regardless of the legality of the war as a whole. Many of these bans have
been placed in the U.S. Code of Law, including the crimes found in the
Geneva Conventions, in the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, and in the conventions against
both chemical and biological weapons. In fact, most of these treaties
require signatory countries to pass domestic legislation to make the
treaties’ provisions part of each country’s own legal system. It took until
1996 for the United States to pass the War Crimes Act to give the 1948
Geneva Conventions the force of U.S. Federal Law. But, even where the
activities forbidden by treaties have not been made statutory crimes, the
treaties themselves remain part of the “Supreme Law of the Land” under the
United States Constitution.
Michael Haas identifies and documents 263 war crimes in addition to
aggression, that have occurred just in the current War on Iraq, and divides
them into the categories of “conduct of the war,” “treatment of prisoners,”
and “the conduct of the postwar occupation.” A random sample of the crimes:
War Crime #7. Failure to Observe the Neutrality of a Hospital.
War Crime #12. Bombing of Neutral Countries.
War Crime #16. Indiscriminate Attacks Against Civilians.
War Crime #21. Use of Depleted Uranium Weapons.
War Crime #31. Extrajudicial Executions.
War Crime #55. Torture.
War Crime #120. Denial of Right to Counsel.
War Crime #183. Incarceration of Children in the Same Quarters as Adults.
War Crime #223. Failure to Protect Journalists.
War Crime #229. Collective Punishment.
War Crime #240. Confiscation of Private Property.
The list of abuses that accompany wars is long, but it’s hard to imagine
wars without them. The United States seems to be moving in the direction of
unmanned wars conducted by remote-controlled drones, and small- scale
targeted assassinations conducted by special forces under the secret command
of the president. Such wars may avoid a great many war crimes, but are
themselves completely illegal. A United Nations report in June 2010
concluded that the U.S. drone attacks on Pakistan were illegal. The drone
attacks continued.
A lawsuit filed in 2010 by the Center for Constitutional Rights (CCR) and
the American Civil Liberties Union (ACLU) challenged the practice of
targeted killings of Americans. The argument the plaintiffs made focused on
the right to due process. The White House had claimed the right to kill
Americans outside the United States, but it would of course be doing so
without charging those Americans with any crimes, putting them on trial, or
providing them with any opportunity to defend themselves against
accusations. CCR and the ACLU were retained by Nasser al-Aulaqi to bring a
lawsuit in connection with the government’s decision to authorize the
targeted killing of his son, U.S. citizen Anwar al-Aulaqi. But the Secretary
of the Treasury declared Anwar al-Aulaqi a “specially designated global
terrorist,” which made it a crime for lawyers to provide representation for
his benefit without first obtaining a special license, which the government
at the time of this writing has not granted.
Also in 2010, Congressman Dennis Kucinich (D., Ohio) introduced a bill to
prohibit the targeted killings of U.S. citizens. Since, to my knowledge,
Congress had not up to that point passed a single bill not favored by
President Obama since he entered the White House, it was unlikely that this
one would break that streak. There was just not enough public pressure to
force such changes.
One reason, I suspect, for the lack of pressure was a persistent belief in
American exceptionalism. If the president does it, to quote Richard Nixon,
“that means that it’s not illegal.” If our nation does it, it must be legal.
Since the enemies in our wars are the bad guys, we must be upholding the
law, or at least upholding ad hoc might-makes-right justice of some sort. We
can easily see the conundrum created if people on both sides of a war assume
that their side can do no wrong. We would be better off recognizing that our
nation, like other nations, can do things wrong, can in fact do things very,
very wrong — even criminal. We would be better off organizing to compel
Congress to cease funding wars. We would be better off deterring would-be
war makers by holding past and current war makers accountable.
David Swanson is the author of “War Is A Lie” from which this is excerpted:
http://warisalie.org
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2 Responses to War Is Illegal – Even in Libya
1. Phoenix Woman <http://my.firedoglake.com/members/phoenix/> March
14th, 2011 at 9:52 am
*«<http://my.firedoglake.com/davidswanson/2011/03/14/war-is-illegal-even-in-libya/#comment-265405>
*
Of course, Gaddafi has no qualms about the use of force. Unlike Egypt,
which has a lucrative tourism industry and so has some concern for the good
opinion of the rest of the world, Libya is nearly as closed off a society as
North Korea; the only reason we’re seeing any news footage of it now is
because the rebels do what Gaddafi won’t, and have allowed in foreign
journalists. Once Gaddafi regains control over the eastern half of the
country — and since he has more and better-trained troops than do the
rebels, this will happen in less than two weeks, I imagine — he will once
again bring down the curtain. The foreign journalists will be packed off at
gunpoint, he will hunt down those who dared oppose him, and also keep the
internet locked down so that clandestine, furtive Twitterings will be about
the only way to have a clue as to what’s happening.
Now the rest of the world — especially the Arab League — really doesn’t
want him gone, or they would have effectively answered the rebels’ pleas by
now. But oil — or rather, oil money — trumps everything in their calculus.
2. Michael Monk <http://my.firedoglake.com/members/mmonk/> March 15th,
2011 at 4:25 am
*«<http://my.firedoglake.com/davidswanson/2011/03/14/war-is-illegal-even-in-libya/#comment-265406>
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It seems there is little that can be done about either abuse of the
Security Council by powerful members or the myths of American
exceptionalism. That is, unless people somehow find a spine and hold
“leaders” accountable. Accountability is single weapon we have left against
aggressive war. Thanks David.
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