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Iraq & International Law
this war is an abject illegality. Here is an excellent audio link explaining why, and condemning the media for not pouncing on it.
http://www.webactive.com/cspin/
Re: Iraq & International Law
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| Originally posted by JohnSmith this war is an abject illegality. Here is an excellent audio link explaining why, and condemning the media for not pouncing on it. http://www.webactive.com/cspin/ |
Is war with Iraq legal?
By Barnaby Mason
BBC diplomatic correspondent
Annan says unilateral action would defy UN charter
The question of whether a war on Iraq is legal under international law will become more pressing if the United States and Britain fail to get a new Security Council resolution.
They say the use of force would be legal but the UN Secretary General Kofi Annan says unilateral action taken outside the Security Council would not conform to the UN charter.
The UN charter allows military action in self-defence and that can include a pre-emptive strike - but only if there is an imminent threat.
Few accept that Iraq poses such a threat.
So the question comes back to authorisation by the Security Council.
Even the draft resolution now being debated is not clear-cut on this point; if it fails to pass, the key text is last November's resolution 1441.
'Final opportunity'
That gave President Saddam Hussein a final opportunity to give up weapons of mass destruction.
But as for what would happen if he did not do so, 1441 merely reminded him of the serious consequences threatened in previous resolutions.
It did not authorise member states to use all necessary means to enforce it - the key phrase in Security Council resolution 678 that gave authority for the expulsion of Iraqi forces from Kuwait in 1991.
The reason 1441 was ambiguous is that France and Russia would not agree to such clarity.
1441 gives Saddam a final chance to disarm
Many experts in international law say the absence of explicit wording means that 1441 does not authorise force.
But some agree with the UK Government that it may rely on previous resolutions that did.
To sum up the argument: the Security Council authorised war to end the occupation of Kuwait; the ceasefire in 1991 was conditional on Iraqi disarmament; so Iraq's failure to disarm revives the authorisation to use force.
This is controversial stuff - and certainly no Security Council resolution authorises toppling Saddam Hussein.
wow, thanks occrider, good article. have your really changed your mind about the war?
yoepus, i will have a rebuttal post for you later, i'm at work right now.
Kellogg-Briand Pact, anyone? 
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| Originally posted by JohnSmith wow, thanks occrider, good article. have your really changed your mind about the war? yoepus, i will have a rebuttal post for you later, i'm at work right now. |
I'm just stating that this war can't be classified as being illegal ... much like it can't really be classified as being legal. I can't be completely opposite to what I believe in today but I'll lean more towards anti-war until midnight ... (although even if I'm leaning a little more towards anti-war, I'm still firmly in the pro-war ouste saddam camp)
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| Originally posted by occrider No ... I'm just stating that this war can't be classified as being illegal ... much like it can't really be classified as being legal. |
This is reminding me of Election 2000.
In any case, i will concede that there is good arguments from both sides that it is both legal and illegal.
but, predictably, i see it as Illegal Vs. Limbo, leaning towards illegal.
Kofi Annan himself has declared it against the UN charter.
Resolution 1441 DELIBERATELY is ambigous, so as to avoid authorizing war without a second resolution. this resolution would never have passed with language specifically authorizing war, it was a concession that the US had to make to appease france at the time, and thought they could later wrangle out of by redefining the words serious consequences.
and as for 678 and 687, i disagree that this can "logically" be an extension of the gulf war. These resolution were passed well over a decade ago, and the situation has changed dramatically. I ask, if 678 and 687 were already in force, then why did the US stop attacking? why did 1441 even need to be passed?
Besides iraq is no longer attacking kuwait, IS disarming, or rather was until the US took inspectors out before beginning to bomb. The inspectors were not able to find anything prohibited whatsoever, with the exception of 16 EMPTY warheads, and 100 or so Al-SamoudII missiles, which were being destroyed when the US suddenly decided to order inspectors out.
Finally, as occrider pointed out, the toppling of saddam, or the more euphemistic term "regime-change" is certainly not authorized anywhere, and that is the stated goal of the US, the one that has been the hardest to swallow for the international community. Even Tony Blair has stated he does not support regime change.
For those reasons, i belive this war illegal.
And, if by some legal wrangling similiar to election 2000 occurs, i fear for the future, when the precedent is set for attacking countries halfway across the world on the grounds of "Pre-emptive Self Defense"
nonetheless the war has already begun, and i suspect that the UN will simply ignore it, instead of specifically making a precedent.
Law only exists insofar as it might be enforced. There is no threat of these laws being enforced upon the United States, hence for all intents and purposes the laws do not exist (at least, within the scope of the present issue).
The Arbiter has spoken and has decided. The matter is settled then.
while i agree that this is pretty much true i don't think it's right. If we agree that "a law is only a law if it's enforceable" we have completely abandoned democracy, and have gone back to the law of the playground where the biggest bully sets the rules.
I for one, do not accept this point of view, and will continue to speak out against it until the situation is rectified
(or I am silenced by the bully i guess) 
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| Originally posted by JohnSmith while i agree that this is pretty much true i don't think it's right. If we agree that "a law is only a law if it's enforceable" we have completely abandoned democracy, and have gone back to the law of the playground where the biggest bully sets the rules. I for one, do not accept this point of view, and will continue to speak out against it until the situation is rectified (or I am silenced by the bully i guess) |
well, to be completely honest, I am not familiar with the situation in the Ivory Coast. I am aware that many, many injustices have been made against the people of the african continent, and indeed against many of the worlds people, not the least of them, the native people in america and canada.
I agree, these are problems that needs to be solved, and this is precisely what the UN is for. However, not knowing too much about these problems, i keep out of debates on them.
I have only become interested in geopolitical affairs since september 11th, and have only researched the affairs of the middle east, and hence i spoke out about wars in afghanistan, and will continue to speak out against the war in iraq.
As for Kofi Annan being a hypocrite, that is debatable, and i don't have the background to argue either side.
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| Originally posted by JohnSmith while i agree that this is pretty much true i don't think it's right. If we agree that "a law is only a law if it's enforceable" we have completely abandoned democracy, and have gone back to the law of the playground where the biggest bully sets the rules. I for one, do not accept this point of view, and will continue to speak out against it until the situation is rectified (or I am silenced by the bully i guess) |
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| Originally posted by Arbiter The problem with international law is it really doesn't have any source of legitimacy other than each sovereign nation's agreement to abide by it. This does not make for a very stable legal system, as any country can choose to instantly disregard it, and the only way to force them into compliance is with yet another war. I do think we should aspire to rise above this state of affairs, but I don't think it is realistic to believe that international law presently provides us with a good basis for analyzing the merits or demerits of a sovereign nation's chosen course of action. |
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| The problem with international law is it really doesn't have any source of legitimacy other than each sovereign nation's agreement to abide by it. This does not make for a very stable legal system, as any country can choose to instantly disregard it, and the only way to force them into compliance is with yet another war. |
Not to mention that the US has passed a law that "authorizes" them to use force if neccesary to avoid having any american soldier arrested by the ICC, or even to "liberate" them from this organization. Can't remember where i heard that, i will find a source later i hope.
It really pisses me off, that the US refuses to participate in this. They are the biggest war criminals around, and not having them a part of this makes the whole great idea of the ICC fall flat on it's face.
it reminds me of the american spin on the patriot act and other such invasions of privacy. "if you aren't doing anything wrong, you have nothing to fear" maybe they should apply that logic to joining the ICC and they will see that they have been doing wrong for a long time.
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| Originally posted by JohnSmith ... It really pisses me off, that the US refuses to participate in this. They are the biggest war criminals around, and not having them a part of this makes the whole great idea of the ICC fall flat on it's face. ... |
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| Originally posted by JohnSmith They [US] are the biggest war criminals around, and not having them a part of this makes the whole great idea of the ICC fall flat on it's face. |
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| Originally posted by JohnSmith it reminds me of the american spin on the patriot act and other such invasions of privacy. "if you aren't doing anything wrong, you have nothing to fear" maybe they should apply that logic to joining the ICC and they will see that they have been doing wrong for a long time. |
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| Originally posted by rupert The fact the USA and all the other usual suspects dont recognise the validity of the International War Crimes Tribunal doesnt mean one day their politicians and soldiers wont one day be hauled before it and deservedly punished for their crimes. |
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| Originally posted by Yoepus Hmmm... now why would the US never want to join the ICC? I'm sure it can't be because like minded people such as your sort already believe that the USA is "the biggest war criminal" around and would probably make sure to use the ICC against the US because of this unfounded believe in unproportional context to other alleged-criminals of the world. |
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| Originally posted by JohnSmith hmm.. so, your logic distilled is that the US doesn't want to join the ICC, because people might try to prosecute them for their crimes? |
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The Right Way To End the ICC Impasse by John C. Hulsman, Ph.D. and Brett D. Schaefer Executive Memorandum #822 July 8, 2002 | | The United States incited international furor this week when it vetoed renewal of the mandate for the United Nations Mission in Bosnia and Herzegovina under consideration by the U.N. Security Council. The United States expressed concern that the new International Criminal Court (ICC) would attempt to prosecute U.S. soldiers who participate in the peacekeeping operation even through the United States has not ratified the ICC treaty. The U.S. veto should come as no surprise to ICC proponents. America's serious objections to the ICC are well-known, and U.S. representatives gave clear warning that it would consider vetoing U.N. peacekeeping operations once the ICC entered into force. President George W. Bush must fulfill his responsibility as Commander in Chief to protect American soldiers and citizens from the threat of spurious prosecution by a court that has no lawful right to try and punish U.S. nationals. Unless a compromise can be forged that satisfies America's deep concerns, U.S. participation in and support for future U.N. peacekeeping operations is uncertain. To end the impasse, the United States has proposed that the Security Council determine whether individuals serving in a U.N. peacekeeping operation may be brought before the ICC. This position is fully supported by the U.N. Charter, which vests the Council with responsibility for maintaining global peace and security. No single state may authorize a U.N. mission, and no state or group of states can interfere with its activities. Thus, only the Security Council is in a position to determine whether criminal prosecution of peacekeepers by the ICC may be appropriate. Otherwise, the ICC would be in a position to interfere with the Council's authority and obligations enshrined in the U.N. Charter, to which ICC nations are party. This reasonable approach would allow the United States to veto prosecutions it considers without merit, safeguarding Americans' democratic rights while allowing the United States to continue working with the U.N. on missions around the world. If such a compromise is not forged, the Administration should end U.S. participation in peacekeeping missions. Source of America's Concern. As an unaccountable legal bureaucracy claiming the authority to arrest, prosecute, and punish nationals from any country who are accused of war crimes, genocide, crimes against humanity, and the undefined crime of aggression, the ICC invites political manipulation. The United States must protect its citizens from a court that would not observe such basic rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers. Under accepted norms of international law, the ICC should not even be a U.S. concern, since the United States has not ratified the treaty establishing it. Indeed, President Bush has "unsigned" the Rome Statute, notifying the Secretary General of the United Nations that the United States will not ratify it. A bedrock principle of the international system is that treaties and treaty organizations cannot be imposed on states without their consent. The statute violates international law by claiming that the ICC has authority to prosecute and punish the nationals of countries that are not party to it. President Bill Clinton waited until the last possible day, December 31, 2000, to sign the statute, expressing grave misgivings over that "flawed" treaty. His reasoning was that America needed a voice in the deliberations over the ICC's structure so that its serious concerns could be properly addressed. But America's efforts to change the ICC's structure were rejected by most of the other nations involved in the negotiations. The threat became very real on July 1, 2002, with the Rome Statute entering into force after the required 60 nations--many of them undemocratic and few having a major role in enforcing international peace--had ratified it. In May 2002, U.S. Ambassador to the United Nations John D. Negroponte explained America's concerns when the U.S. voted to continue the U.N. Mission of Support for East Timor. On June 20, White House Press Secretary Ari Fleischer echoed those sentiments, stating that "the United States is very concerned about U.S. forces on U.N. peacekeeping missions, and that they may be subject to politically motivated prosecutions by the ICC." Proponents of the ICC who chose to ignore these warnings professed outrage when the United States followed through on its concerns and acted to protect its citizens on June 30. The debate is about nothing less than the fundamental question of where ultimate authority lies--with national sovereignty, which holds the only possibility of democratic accountability, or with unaccountable and opaque international bureaucracies that have no direct democratic link to the people over which they claim jurisdiction. Given this question of first principles, President Bush was right to state that the United States would not reauthorize the Bosnia mission. The furor that arose obscures the main imperative: U.S. military personnel must be protected from the possibility of politically manipulated prosecution if the United States is to participate in U.N. peacekeeping missions. The Way Forward. In an effort to overcome this impasse, the Administration has proposed a 12-month immunity from ICC prosecution for soldiers on U.N. peacekeeping missions who do not represent countries that are party to the Rome Statute. This period would be used to forge a compromise on using the Security Council to arbitrate over potential cases that involve U.N. peacekeepers. The ICC would be able to investigate and prosecute a case against a peacekeeper only if the Security Council were to vote its approval. This reasonable solution is consistent with the principles outlined in the Rome Statute. By their nature, U.N. peacekeeping operations are not authorized by a single state and are accountable to the Security Council. Its members should be viewed collectively as the authorizing body alone equipped to determine whether a criminal investigation by another international body is appropriate. Such a process, given an American veto possibility, would provide ample opportunity for the United States to protect Americans while participating in and supporting U.N. peacekeeping. If such a sensible compromise is shunned, the Administration should continue to veto renewals of peacekeeping extensions. Conclusion. It is not in the interests of the United States or the United Nations to perpetuate this impasse. The United States has proposed a reasonable compromise--placing the U.N. Security Council, as the ultimate authorizing body, in a position to determine whether ICC investigation of U.N. peacekeepers is appropriate. If other nations truly believe the international system can enforce justice through the ICC, they should not object to giving the international institution charged with protecting international peace a say in cases that come before it. |
Thanks occrider, interesting read. I think that the compromise is a good one. However, i wonder why the US is the only country that has objections?
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| Originally posted by biznology so who is going to step up and do something then? protesters? and who is to say that saddam/(other opressive regimes) killing his/their own people any better? would sanctioning the US peacefully change this idea of 'war criminality'? if this is such a big problem than the world better step up and do something! sadly i think too much of the world is so obsessed with a perceived fear of the US they wont| |
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Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has - Margaret Mead |
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| Originally posted by occrider Did you read my response to renegade when he posted about the "International War Crimes Tribunal"??? NOBODY recognizes the international war crimes tribunal because it's not affiliated with any world body of politics at all!!! It's a hokey organization that took an official sounding name so they can SEEM affilitated with the UN. Take a look at the judges of this "tribunal," they are all left-wing peace activists. They provided no supporting evidence for their "convictions" and they only prosecute the United States! NOBODY else! What does that tell you? What are they gonna do when politicians are hauled in front of them??? Place them under citizen's arrest??? What a joke ... |
The second is that most of the people from every single country that has dealings with that court are convinced that their country is the only one that is being the target of that court. Every time somebody from Serbia/Croatia/Bosnia is against that court, the prime argument is "We are the only ones who are turning our commanders in while all the other countries are protect their generals, even though their generals are criminals and ours aren't." I see US has joined the bunch. Just for the record, there are over 30 people from Serbia sentenced there, about 15 from Bosnia, and about 20 bosnian croats. Also there are a few Rwandan war criminals (a country that commited genocide over 800 000 people and is now a proud member of the coalition), although I don't know how much. So that court isn't only after the US.
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