Building on the great successes of their Iraq campaign, the Americans are now considering the next illegal war of aggression, against Iran.
This time they discuss using nuclear weapons, as Seymour M. Hersh documents in an article in the New Yorker.
Update: British foreign minister Straw calls the idea of a nuclear strike against Iran "completely nuts", which seems about the appropriate reaction. He doesn't show much enthusiasm for more illegal wars of aggression in the region either, saying that Britain would not launch a preemptive strike, and that there is no justification for it.
Professor Laurence Tribe gave an interview to the German FAZ newspaper (in German).
He does not come over as a big fan of Bush. In his opinion, Bush should be impeached for lying intentionally about the reasons for the illegal war. However, this is not going to happen as long as the Republicans control congress.
While I agree with his opinion, I think it does not matter that the "reasons" for the war were fabricated. The invasion was illegal either way.
Link found at jurabilis.
of Americans still backing Bush's illegal war, while opposition has reached 65 percent, says latest Newsweek poll.
in Iraq now worse than under Saddam Hussein.
What was again supposed to be the excuse for illegally invading Iraq in an agressive war?
The mother of an English soldier killed in the illegal war in Iraq writes to Prime Minister Blair and wants some answers. Part of the letter is published in the Guardian.
by the end of the year, says Democrat congressman Murtha in this long CBS interview about the illegal occupation.
estimated at between $1-2 trillion by Nobel Laureate Joseph E. Stiglitz and Harvard budget expert Linda Bilmes.
It starts to dawn on some more influential American politicians that the American troops in Iraq are the problem, not part of the solution.
Now John Murtha reversed his support for the illegal war and calls for immediate withdrawal. He is the top Democrat on the House Appropriations defense subcommittee, not without influence on this kind of matters. Here are some of his comments:
"Our troops have become the primary target of the insurgency. They are united against U.S. forces and we have become a catalyst for violence," he said. "The war in Iraq is not going as advertised. It is a flawed policy wrapped in illusion."
Even if there might be some room for debate on the question if Bush deliberately lied to the world when talking about the Great Iraqi WMD Threat, there is no wiggle room left whatsoever to deny that Iraq right now has no WMD capability that threatens the American homeland in any way.
That means that America has no legitimate reason to continue occupying Iraq. How the Iraqis choose to govern their country after the end of the occupation is none of America's business.
Link to the full speech transcript.
The decision of the German Federal Prosecutor of February this year not to start a formal investigation against Rumsfeld and other Americans allegedly responsible for the Abu Ghraib torture has been appealed by the victims. Now that appeal has been rejected by a Court in Stuttgart (decision of 13 September 2005, see the press release of the court in German).
The reason for not investigating this case in the first place was that the Federal Prosecutor trusted the American authorities to do the necessary investigations. Maybe I have missed something here, but as far as I know, there is no official investigation in America against either Rumsfeld or Tenet.
Therefore, the trust of the German Federal Prosecutor in the integrity of the American criminal justice institutions seems to have been misplaced.
The Stuttgart High Court however has confirmed the Federal Prosecutor's decision.
It remains to be seen if there will be any meaningful criminal investigation in America against Rumsfeld. I would be rather surprised if that happened anytime soon.
According to gatt.org, new questions about the Iraq war are raised. It might be illegal under international trade law as well:
Six developing nations have lodged a complaint against the US, calling the Iraq War "history's biggest illegal trade subsidy" and "market distortion on a gargantuan scale." "In a free market, companies like Halliburton and Exxon should be funding their own market expansion projects instead of depending on their government for help," said a spokesperson for the consortium.
Readers are advised to note that gatt.org also recently reported the disbanding of the WTO when assessing the credibility of the report above.
To quote Jimbo Wales (on Lessig Blog): "It's a fine story, except for the tiny detail of being completely false."
But someone could complain about the billions of subsidies. That would certainly be an interesting WTO case.
Cindy Sheehan wants to know why her son died in Iraq. She is camping out on the street in Texas until Bush meets her and explains what he meant when referring to the "noble cause" her son Casey died for. Right now, this is the top story in America.
There is exactly one reason for the illegal war that makes sense. However, I am not sure if it quite qualifies as a "noble cause".
Bush refuses to meet Sheehan and explain his reasons. However, he has been talking to other people. One of them is a writer named Mickey Herskowitz, who was hired to ghostwrite an autobiography for Bush. As I noted before, Bush seemed to think that going to war would earn him a boost in his popularity at home. And he was right. The American voters seem to like illegal wars of aggression for no particular reason. So kicking ass in Iraq probably brought out the essential few percents of Republican voters to keep in cheating distance from the White House.
On the other hand, even that reason has probably ceased to make sense now. Recent polls show that support for continuing the illegal occupation is a minority position.
Only 26 percent support continuing the illegal occupation indefinitely. 61 percent disapprove of Bush's handling of Iraq. 57 percent think that the illegal war has made America less safe from terrorism. 54 percent say that starting this illegal war of aggression was a mistake.
Therefore, under the same logic that has produced the only reason to go to war in the first place (giving the voters what they want), the illegal occupation has to end immediately.
That however, would require that Bush either admits he was wrong in the first place or say that he has changed his mind. Both are extremely unlikely to happen.
So now the remaining noble cause is that keeping on the steady trickle of dead Americans is necessary to avoid making Bush look even worse than he looks right now to the American public.
I can understand why Bush doesn't even try to explain this to Mrs. Sheehan.
I expected the worldwide damage from the illegal war for American good will to be bigger than that of the 1989 Tiananmen massacre for China, as I said in this post from March 2003.
Now the latest polls confirm the amount of damage. America's image in most of the world is broadly negative.
That won't get better until America gets out of Iraq. Who runs Iraq is none of America's business.
The "Conclusion" of the report of the "Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction" begins with this:
"The harm done to American credibility by our all too public intelligence failings in Iraq will take years to undo."
It is nice to see Americans publicly acknowledge that the illegal war was based on one big "intelligence failure".
If they want to start that project of regaining some respect and credibility, first thing they need to do is get the hell out of Iraq already. Since that probably won't happen any time soon, "years" does not seem to be the appropriate time frame for getting any results.
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The Bush government continues its open hostility to international law by formally refusing to recognize the jurisdiction of the International Court of Justice, effective immediately.
This fits the recent pattern of American extreme unilateralism nicely.
So International Criminal Court and International Court of Justice are gone, which leaves the WTO dispute resolution mechanism as the only unconvenient obstacle to the great ideal of Outlaw Nation.
Update: As Michael Froomkin kindly points out in a comment, this withdrawal is only for one particular treaty. The jurisdiction of the International Court of Justice in other cases seems to be still intact for the time being.
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The German Federal Prosecutor has decided not to start a formal investigation against Rumsfeld and other high ranking Americans regarding the Abu Ghraib torture in answer to the criminal complaint filed last year.
The reason seems to be that it is America's turn first to hold this investigation. That would be Mr. Gonzales investigating, if I understand recent American developments correctly.
If you read the whole press release of the Federal Prosecutor (in German), it is quite clear that this dismissal is only temporary.
If it becomes undisputable at a later date that a serious investigation in America just isn't happening (probably wouldn't be much of a surprise to anyone), the basis for this decision is removed. As the decision (in German) says on page 3, Germany's jurisdiction would be established if America is "unwilling or unable" to investigate.
In contrast, the Federal Prosecutor seems to think that America is "willing" to investigate Rumsfeld. That is placing a lot of trust in the objectivity of the American system. Time will tell if that trust is deserved or not.
And if the Center for Constitutional Rights and the tortured Iraqi citizens happen to feel like it, German procedural law does give them the right to appeal this decision to a court right now.
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With all this talk about democracy in Iraq, now even this New York Times editorial proposes actually asking the Iraqi people in a referendum six weeks after the elections if they want the American occupation to stay.
Link credit: Balkinization (permalink not working).
I have supported this proposal earlier last month and in March 2003.
Yes, it is about time someone bothered asking the Iraqi people what they want to happen.
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is absolutely impossible if there is no clear objective of what you actually want to achieve.
If the propaganda tales used to justify the illegal aggression on Iraq were still in operation, the Americans could declare victory and go home.
While there might have been some people who believed in the Great Iraqi WMD Threat at the time, the American occupation has had just about enough time to assure that there won’t be any intercontinental missile attacks on the homeland originating from Iraq by now. The search for WMD in Iraq has finally been closed down officially, since it has now fulfilled its purpose of barely keeping Bush in cheating distance from the White House.
So now we are told the illegal occupation needs to continue to assure The Great Iraqi Democracy.
That is probably just another propaganda tale, but let’s just take a couple of lines to tear it to bits.
Democracy is a great idea. However, it is really none of America’s business how Iraq is governed. This is certainly no excuse for invading or occupying other countries.
And if anything, America needs to introduce democracy at home first. With two presidential elections in a row tainted by all sorts of cheating I won’t go into in detail right now, America is certainly in no position to lecture any other country about democracy.
Okay, my point here is that if Bush keeps shifting the goal posts, the job can’t be done. You would need to know what the job is to have a goal that, when achieved, lets you declare victory.
And the fuzzy goal of “Democracy in Iraq” is far away from that.
Welcome to permanent war.
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Juan Cole points to this article about the Pentagon reaction to the recent criminal complaint against Rumsfeld and others.
Pentagon spokesman Lawrence DiRita said that
"I think every government in the world, particularly a NATO ally, understands the potential effect on relations with the United States if these kinds of frivolous lawsuits were ever to see the light of day."
Cole reports this under the title " Pentagon Threatens Germany over Rumsfeld Suit".
I am not sure if that DiRita comment should be described as a threat. I would rather want to understand it as a warning, and as one that only states rather obvious things. No German prosecutor needs this statement by DiRita to know that the American government will not be pleased if he decides to start a criminal investigation of the complaint.
And surely the Pentagon can't possibly assume that any threat might help influence the decision about what to do with that criminal complaint in a way favorable to Rumsfeld. Of course, if anything, a real threat could only damage his position. If German prosecutors are influenced at all by vague threats, it is probably only in a backfiring way.
And, as I remarked in my first post about this complaint, under German criminal procedure, there is no way to avoid that this case is going to court, short of having the Center for Constitutional Rights and the four Iraqi citizens back down. I don't know how much "light of day" the complaint will see, but it will certainly see some judges sooner or later.
Ian Ayres and Barry Nalebuff write on Jack Balkin's blog that there should be a referendum in the upcoming Iraqi election, giving the Iraqi people the chance to decide themselves if they want the illegal occupation of their country to end immediately.
I think that is a good idea. Actually I proposed something like this on March 11 last year, before this illegal war of aggression even started.
The fact that there has been no referendum to the Iraqi people on the question if they want the Americans to stay or leave until now is alone proof enough that the American government has no interest in Iraqi democracy, and that this is just the last surviving propaganda spin.
This is becoming just as ridiculous as the WMD fairy tales. If the Americans are so keen on democracy in Iraq, why don't the Iraqis get a fair chance to vote Bush out of their country after all that time?
Well, the simple answer might be that with the blackbox voting presidential elections Americans didn't get that chance either. Democracy in America is inferior to that in most other countries, and voting there is lacking international standards like nonpartisan election commissions and uniform election standards and procedures.
I don't know if the Ayres proposal has any chances. But anyhow, if there is an election, Iraqi candidates will have a chance to state before the election if they want the Americans to stay until hell freezes over or if they want them to get the hell out, like now, immediately.
And the insurgents can then drop their RPGs and use a much stronger weapon to get rid of the illegal occupation and take their country back.
The first posts by Becker and Posner on their new blog explain lucidly why preventive war is a great idea.
Sceptics like me will be easily convinced by pearls of wisdom like
"Suppose there is a probability of .5 that the adversary will attack at some future time, when he has completed a military build up, that the attack will, if resisted with only the victim’s current strength, inflict a cost on the victim of 100, so that the expected cost of the attack is 50 (100 x .5), but that the expected cost can be reduced to 20 if the victim incurs additional defense costs of 15. Suppose further that at an additional cost of only 5, the victim can by a preventive strike today eliminate all possibility of the future attack. Since 5 is less than 35 (the sum of injury and defensive costs if the future enemy attack is not prevented), the preventive war is cost-justified."
The same interesting theory is explained in detail in a recent Posner article named "Optimal War".
When talking about aggressive war, there are certain words that come to mind, like "stupid", and several others not suited for publishing here. "Optimal" was not one of them for me. I have learned from this article that it is theoretically possible to discuss war in the framework of an economic formula.
Of course, some people in the cynical anti-war crowd might point out that this kind of calculating "optimal" wars is much more fun in the safety of an American university office than in an Iraqi home bombed for the reason that, to quote from the paper
"preemptive attack is justified if the cost of such an attack are less than the discounted expected costs of conflict in period two" (page 12 of the paper)."
Disgusting.
I have just looked at the criminal complaint filed by the Center for Constitutional Rights against high-ranking Americans with the German Federal Prosecutor’s Office under the 2002 German Code of Crimes against International Law, asserting liability for torture at Abu Ghraib.
Under German law, even if the Federal Prosecutor should be not inclined to initiate an investigation, the plaintiffs can appeal that decision to a court. If the plaintiffs don't change their minds for some reason, this is heading to court one way or the other.
Helen Thomas is citing Mickey Herskowitz, who has talked a lot to President Bush for a biography project with this reason for the illegal war in Iraq:
He said Bush's circle of advisers had a fixation on the political capital that former British Prime Minister Margaret Thatcher collected from the Falklands war in 1982.
"They were just absolutely blown away, just enthralled by the scenes of the troops coming back, of the boats, people throwing flowers at (Thatcher) and her getting those standing ovations in Parliament in making these magnificent speeches."
Herskowitz, who also was the authorized biographer of the president's grandfather, Prescott Bush, said George W. Bush's beliefs about Iraq were based in part on the concept: "Start a small war, pick a country where there is justification you can jump on, go ahead and invade." If successful, you'll be hero at home.
The bogus reason of Iraqi WMD did not make sense even if you believed they existed. The United States afraid of the great Iraqi military WMD power? I never bought that.
But waging a war to gain a few points in the reelection campaign is a perfectly reasonable explanation of events. Not, maybe, morally acceptable to most people. But it does make sense.
And, judging by what most people assume to be the "results" of the election in the paperless blackbox Diebold Democracy, the strategy actually seems to have paid off.
If that is correct, then the bright side is that President Bush probably won't start any more illegal wars of aggression for no particular reason in the next four years. He can't run in 2008, so he doesn't need to beat up some other weak country to boost his campaign any more.
And while I'm at it, congratulations to the Republicans for winning the election. While it would have been nice to see American voters reject illegal aggressive war, there is a bright side to having Bush elected as well. Kerry might have actually received some military support for the American occupation of Iraq. In contrast, leaving Bush in charge will accelerate withdrawing of European countries from the Iraq mess.
to the BBC:
Q: It was illegal?
A: Yes, I have indicated it is not in conformity with the UN Charter, from our point of view and from the Charter point of view it was illegal.
Found at a Siva Vaidhyanathan Altercation guest blogging post here.
For predictable reactions from the other side see this article.
The latest poll has opposition to the illegal war in America at an "all time high" of 55 percent, which is more than would vote for either Bush or Kerry right now.
However, all those opposed to the war are left without a candidate. Bush obviously chose to invade Iraq for no particular reason. Kerry voted for the war and even now says he wants more troops in Iraq.
So what are those 55 percent opposed to the war to do in the presidential election? They have no acceptable candidate.
This is clearly a failure of what passes for democracy in the United States of America to achieve democratic representation of a large part of the electorate.
I wonder if Nader could win with 55 percent of the vote.
argues that the Iraq war was illegal under American constitutional law. I agree. And I think that is as obvious as the violation of international law by attacking and occupying Iraq for no particular reason in an undeclared war.
If Americans allow the Bush government to get away with this, that clearly makes America an inferior democracy.
Senator Fritz Hollings (of "Fritz chip" fame) is moving away from supporting the illegal occupation of Iraq in these Senate Floor Remarks.
says Chancellor Schroeder in Parliament.
And here is a short reminder: The EU, currently the world's biggest donor and paying billions for Afghanistan, said it won't pay for Iraq in February.
And that's exactly what will happen. The EU will pledge a symbolic sum of about $180 million at the donor conference in October.
Update October 4th: This eubusiness.com article says the sum will be 200 million Euro.
This USA Today article says that America is spending $1 billion a year on trying to raise the American image in the world.
All that money is not showing any results. Polls around the world show that anti-Americanism is rising to record levels.
The article then discusses the reason for that failure. They blame lacking coordination and people not even speaking the language of the country they should be working on.
That's possible. But basically, America is just a hard sell just about everywhere worldwide right now. Comparable to China in September 1989.
So even if that $1 billion was increased tenfold, and the people working for the program actually learned some languages, there really isn't much hope for a recovery in the short term. At least as long as the illegal occupation continues.
Lawrence Solum points to this SSRN paper by Freiburg University professor Dietrich Murswiek on the illegal war.
Murswiek states that this war is a so serious violation of international law that it constitutes an international crime.
And he discusses if it might be desirable to change international law to make legal tomorrow what was clearly illegal until now. He objects: That would lead to anarchy if Russia or China or everybody else asserts the same right to wage war without reason, or to inequality between states if that right is restricted to the U.S.
Joi Ito asked that question on his blog. I said in his comments section that we already know Iraqi WMD were non-existing or ineffective, since Saddam Hussein didn't use them even facing annihilation of his regime, as pointed out in detail on warblogging.com. Here is another answer.
While there were no Iraqi WMDs, new nuclear weapons are sprouting out all over the planet. The nuclear non-proliferation treaty is in crisis (Link credit: Richard Stallman). There is even speculation that Japan will go nuclear, the only country who was ever attacked with nuclear weapons.
The illegal war contributed nothing to the goal of reducing WMDs, but it did a lot to motivate many nations to acquire nukes. Iraq was attacked because the Bush forces could do so without risk, because it was weak, not because it had terrible weapons. Other countries note that fact, and the willingness of the Bush government to attack at will. The logical consequence is more WMDs on the planet, not less.
Article 1 of the NATO Treaty reads:
The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.
Since certain NATO members with quite some military capability have excused themselves from the requirement "to refrain from the threat or use of force" in that Article lately, while certain others refuse to dump international law, it makes sense that the law-abiding nations are looking into other forms of military integration to replace NATO.
This is necessary for reasons of German constitutional law.
The German Federal Constitutional Court found on November 22, 2001:
"The elements of the wording of Article 24.2 of the Basic Law preclude, however, the Federal Republic of Germany’s participation in a mutual collective system of military security that does not serve to maintain peace. The transformation of a system that originally fulfils the requirements of Article 24.2 of the Basic Law into a system that no longer serves the maintenance of the peace, or even prepares wars of aggression, is constitutionally prohibited and can therefore not be covered by the content of the Consent Act that was adopted on the basis of Article 59.2(1) and Article 24.2 of the Basic Law."
Since important NATO members now have a policy of waging illegal wars of aggression, Germany would violate the constitution by staying in NATO. Looking for alternatives becomes a logical and necessary step.
Even if one does not follow the above opinion of the Federal Constitutional Court, it does not make much sense to pretend that America and the UK still qualify as allies of countries who respect international law. NATO can't work anyway if its most basic foundation in article 1 is not recognized any more universally by all members.
not to violate international rules while "punishing" France. From an article about this:
The European Commission said on Wednesday it was sure that the United States would not break any of the rules of international relations if it carried out threats to punish France for its opposition to the war in Iraq.
Translation from diplomat-speak into normal English: We know that the present US government doesn't care about international law, but we are watching closely. Don't try any funny stuff, or you will have to deal with the whole block, not only with France.
Exactly this was one of the points of European unification in the first place.
Jack Balkin writes:
The stunning victory of American and British forces in overthrowing Saddam Hussein’s regime in a little more than three week’s time has changed the world forever. This is as momentous an occasion in its own way as 9-11.
This is not true.
The American military victory over Iraq is about as surprising as a victory of the German National Soccer team against an Iraqi high school team would have been. So why has the world changed because the result is that what everyone should have expected? And why should anyone be "stunned"?
On the other hand, I agree with Balkin. The fact that the military campaign was a success makes it more likely that the Bush government starts more illegal wars. Which would be a most unfortunate course of action, leading to all sorts of danger for the rather restricted standard of civil liberty that has survived several years of Bush presidency.
Larry Lessig links to articles hinting that India and Pakistan are contemplating pre-emptive strikes against each other.
Here are some short stories of three fictitious people and their problematic relation to the law.
First there is Ray, who has robbed a gas station. As he tells us:
“I’m sorry about shooting that kid’s leg. She was in the way. But I got my tank full all right, with no damage whatsoever to me. I think this operation was a full success.”
Then there is Harry. Hear what he tells us about his newest conquest:
“Of course I could have asked her first. But I had not much of a problem dealing with her resistance anyway. I’m much stronger than her. Actually she’s cheering me right now. Turns out she likes me. I think this operation was a full success.”
I have pointed out before: No one bothered to ask the Iraqi people before the invasion if they actually wanted a regime change war or not. So rejoicing in the cheers of some Iraqis now seems to be the moral equivalent of calling a rape a successful operation if the victim approves the next day.
Last in line is Joe. He is the leader of a revolution which succeeded in a certain country in the late 2080s:
“The decisive factor was surprise. Before they knew it, we controlled the media, the military, and the Internet. I think the operation was a full success.”
The illegal war seems to be mostly over – seamlessly followed by an illegal occupation now, which probably won’t be over anytime soon. I for one expected this great victory for the Americans. They do have more military power than Iraq had.
But the question from the legal point of view: Does that change anything? Is there any way a military success makes an illegal war legal?
To address that question, I compare the situation to that of the robber, the rapist, and the revolutionary.
The robber’s case is the easiest. The “success” of his operation doesn’t matter in the least. Even if he gets away with his crime for some reason, even if he lives happily ever after with his illicit gain of a full gas tank, that doesn’t make his action legal.
What about the rapist? Even if his victim really approves of his action after the fact, the act would stay illegal as well. However, in that case it is most likely that the victim won’t complain to anyone. As a practical matter, that probably removes any chance of a trial against Harry.
But the most interesting comparison is that with the revolutionary. Revolutionaries are terrorists, their acts illegal to the extreme – until the point they succeed. At that point, the old law system breaks down. It is replaced by a new order, which will praise Joe as “Great Hero of the Revolution”.
So in the case of the rapist, success of the operation might have some limited influence on the law; in the case of the revolutionary, the success of the operation REMOVES the law, making all his illegal actions legal after the fact.
Does the expected military success of the American operation remove the international law against aggressive warfare, just as the success of a revolution removes the old system? If not, what power does international “law” have left against superior military power?
One might call for a “realistic” view of international law. If America is not going to obey the UN Charter and no other nation has the military power to do anything about it, then the interdiction of aggressive warfare in the UN Charter is not law anymore as far as America is concerned.
That would mean that the expected American military success in Iraq would have changed the law just as the success of a revolution makes heroes out of terrorists.
The advantage of this view: There is not much sense in pretending something is law if there is no real chance that it will actually be enforced. Law should be more than a dream. Law needs to rule. Powerless law is no law at all, in a realistic view of things.
I don’t believe that winning against Iraq is the equivalent of a revolution removing the UN Charter.
International law is different from national law. The reason Iraqi law under the old regime had any power was the military force at the base of that regime. Which has collapsed. So the American victory is equivalent to a revolution as far as Iraq is concerned. It is a revolution with outside military means.
However, the reason international law has any power is different. International law is based on treaties. Treaties are contracts between states. The power of these contracts does not end with a change in government in one of these states.
The power of the interdiction of aggressive warfare would end if most other countries followed the American example. If everyone else would start merrily waging “preventive” wars with dubious reasons and no legitimacy under the UN Charter, the Charter would indeed become irrelevant. That would be the equivalent of a revolution. A world-wide revolution, that is.
But we are not there yet. Actually, most countries prefer the rule of law to the rule of pure power. The Bush government has isolated America in world opinion, by committing the mother of all material breaches of the UN Charter, but not yet succeeding in blowing up international law completely.
This is a practical view. The war was illegal. And the occupation following it is illegal as well, and must be ended immediately for that reason. Nothing changed.
Richard Stallman points to a NGO report "Rule of Power or Rule of Law", issued in May 2002, which spells out in detail the tendency of the U.S. in the last several years to disregard existing treaties, shape new treaties in negotiations only to reject them anyway, and generally weaken the rule of international law and rely on pure military power instead. The illegal war is just a logical extension of this policy; by far the most serious American action against the rule of international law to date, but certainly not the first one.
in Turkey AWACS missions: The Federal Constitutional Court rejected a motion for a temporal injunction against German soldiers participating in NATO AWACS missions in Turkish airspace without a decision of the German parliament. There is an English press release on the Court's website.
amending criminal law to limit war crime prosecution of foreign leaders. From an article at Yahoo News:
"It's a serious problem," said US Secretary of State Colin Powell, after he was named last week in a lawsuit for alleged crimes during the 1991 Gulf war along with former US president George Bush and current Vice President Dick Cheney.
Link credit: buzzflash.
John Perry Barlow on the Iraq war. There is also an excerpt from Mark Twain's "war prayer" at the end of that article.
Link credit: BoingBoing.
The EU has a new website on the Iraq conflict.
At the EU summit last week, not surprisingly, different views of the situation clashed again. However, there was a common statement:
With the beginning of the military conflict, we are faced with a new situation.Our hope is that the conflict will end with the minimum loss of human life and suffering.
Our common challenges are:
As regards Iraq:
The EU is committed to the territorial integrity, the sovereignty, the political stability and the full and effective disarmament of Iraq in all its territory, as well as to the respect for the rights of the Iraqi people, including all persons belonging to minorities.
We believe that the UN must continue to play a central role during and after the current crisis. The UN system has a unique capacity and practical experience in coordinating assistance in post-conflict States. The Security Council should give the United Nations a strong mandate for this mission.
We urgently need to address the major humanitarian needs that will arise from the conflict. The EU is committed to be actively involved in this field, in accordance with established principles. We support the UN Secretary General’s proposal that the humanitarian needs of the Iraqi people can continue to be met through the "Oil for Food" programme.
We want to effectively contribute to the conditions allowing all Iraqis to live in freedom, dignity and prosperity under a representative government that will be at peace with its neighbours and an active member of the international community. The Council invites the Commission and the High Representative to explore the means by which the EU might help the Iraqi people to achieve these objectives.
On the regional front:
We express solidarity with and stand ready to assist those countries that are faced with problems and risks as a result of the conflict, including possible refugee flows. The EU will actively engage in supporting regional stability.
We call on all countries of the region to refrain from actions that could lead to further instability.
The countries of the region have also a particular responsibility to prevent acts terrorism.
We will continue to work actively towards the reinvigoration of the Middle East Peace Process through the immediate publication and implementation of the roadmap as endorsed by the Quartet.
We will deepen our dialogue and cooperation in all fields with the Arab and the Islamic worlds. We hope that it will soon be possible to use the considerable opportunities offered by the Barcelona Process to good account.
In the international field:
We reiterate our commitment to the fundamental role of the United Nations in the international system and to the primary responsibility of the Security Council for the maintenance of international peace and stability.
We are determined to strengthen the capacity of the European Union in the context of the CFSP and the ESDP.
We remain convinced that we need to strengthen the transatlantic partnership, which remains a fundamental strategic priority for the European Union; to this effect, a sustained dialogue on the new regional and global challenges is necessary.
We will continue to contribute to the further strengthening of the international coalition against terrorism.
We will also intensify work for a comprehensive, coherent and effective multilateral policy of the international community to prevent the proliferation of weapons of mass destruction.
The above objectives are interrelated and complementary. They should be pursued in parallel, through coordinated action of all main international players. In this spirit, the restoration of the unity of the international community is an absolute imperative.
The primary responsibility of the Security Council. Reiterated.
The EU has said this before: As the result of the last summit in February, as well as in December.
And even the article of Blair and other European leaders of January 30th said: "The U.N. Charter charges the Security Council with the task of preserving international peace and security."
Mr. Blair has signed on repeatedly to the notion of "primary responsibilty of the Security Council."
Obviously, he can't be expected to act as he speaks. The decision for illegal war has bypassed the Security Council, which is _not_ in any way responsible for this decision.
So the British government is not only acting in bad faith in respect to SCR 1441. They are also acting in open contradiction to repeated summit conclusions they signed on earlier, and signed on even now.
It is probably too early to try figuring out how to kick Britain out of the EU. But existing trends to go ahead with the important stuff without England (as with monetary union) will probably get a major boost by this clear violation of international law and departure from common positions agreed to only weeks earlier.
Richard Perle thanks God for the death of the UN.
This is more of the same arrogance we have seen over the last few weeks and months. The UN is not dead just because the present American government chooses to ignore its Charter.
This comes at a price of about $ 100 billion. You wage illegal wars, you need to pay for them alone. Not to mention the sharp world-wide decline in American good-will.
$ 100 billion is about double of the federal education budget. Wasn't Bush supposed to make education his first priority?
And I would not get too cocky yet, Mr. Perle.
While some Americans are getting all exited about non-existing nukes in Iraq and their fantastic military ability to win against a third-world nation, the Russian lower house has just postponed indefinitely ratification of the nuclear arms treaty with America. That's several thousand nuclear missiles aimed at America right now which won't go away. These are real nukes, with real delivery missiles. No inspections necessary to verify that.
The Russians don't feel like scrapping them right now. They say that "we are standing on the treshold of World War III."
Obviously, America can take over Iraq if you don't mind paying the price. But don't get confused. Taking over Iraq is not exactly taking over the world.
And wasn't America going to ask for another Iraq resolution? Doesn't seem to fit with the view of a "dead" UN.
I noticed that the undeclared and illegal war has started.
So international law was not able to prevent the war. From now on, it will require to stop the war immediately. And when the war is over, international law will require the clear declaration that the war was illegal, to prevent further wars of aggression against other nations.
Nothing has changed, from a legal point of view.
One of the "coalition" countries actually contributing (200) troops to the illegal war is Poland.
The trouble with that is that Poland is not free to ignore international law at will. The U.S. might be able do whatever its government wishes without consequences, but Poland might possibly not be untouchable.
As professor Vedder of Augsburg university points out, the 1997 EU summit made respect for intenational law a condition for joining the EU. You can't join the EU if you are waging illegal wars.
To quote from the summit's presidency conclusions:
5. The members of the Conference must share a common commitment to peace, security and good neighbourliness, respect for other countries' sovereignty, the principles upon which the European Union is founded, the integrity and inviolability of external borders and the principles of international law and a commitment to the settlement of territorial disputes by peaceful means, in particular through the jurisdiction of the International Court of Justice in the Hague. Countries which endorse these principles and respect the right of any European country fulfilling the required criteria to accede o the European Union and sharing the Union's commitment to building a Europe free of the divisions and difficulties of the past will be invited to take part in the Conference.
The final decision about this question is with the member states. All member states need to ratify the accession treaty. That might prove difficult if the 1997 declaration is applied to Poland. At the time, it was aimed at Turkey, but in no way restricted to one possible accession state.
So this might be one case where the legal question actually matters. And no, it would not help in the least if the U.S. tried to back up Poland's accession if one or more member states refuse. For example if that member state is Germany or France, any attempt at assisting Poland would probably only make the situation worse. America's influence in Germany and France in a matter like that was not ever so great to begin with and is zero right now.
Maybe Poland can go join NAFTA instead.
to professor Jules Lobel's article "An American assault on international law" and to professor Michael C. Dorf's article "Is the War on Iraq Lawful?".
Link credit: Paper Chase blog, which has many more interesting links in this debate. Anybody interested in this question needs to read Paper Chase.
on the legality of war are linked to at the Paper Chase blog.
Some of them pretend that the U.S. have won Security Council approval where they obviously lost. President Bush couldn't even call a vote on a second resolution.
The fall-back position, in short: Never mind, the UN has already authorized this war. However, as noted in the opinion of the International Commission of Jurists:
"The bottom line is that nine members of the Security Council, including the five permanent members, need to actively approve the use of force - such support is blatantly lacking."
And it is lacking especially for the new war goal of regime change. The UN never authorized that in any resolution.
So what? The U.S. forces will go ahead anyway. Where is the court to enforce international law against the strong military power of America? That is the real question.
President Bush has declared:
"Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will result in military conflict, commenced at a time of our choosing."
Is this a declaration of war?
No.
It is an unreasonable and illegal ultimatum, requesting something NOT ONE of the many UN resolutions requested. But it is not a formal declaration of war.
And I doubt that we will see one. Formally declaring war would invite embarrassing questions about the powers the American Constitution gives to the President in that regard. And it would mean a marginally larger risk for the American military.
So I expect an undeclared war as well as an illegal one. To quote President Bush:
"Terrorists and terror states do not reveal these threats with fair notice, in formal declarations."
I don't think the U.S. will be much better in that respect. I would be surprised to see President Bush - or the American Congress - "reveal the threat with a formal declaration".
Article in the New York Times about how the U.S. is harming the international trade system.
Dismissing international organizations as "irrelevant" is not without risk. If you are the largest trading power, sabotaging the WTO will most certainly backfire.
NYT article about the damage to American trademarks like "McDonalds" expected from the illegal war. From the article:
"But Mr. Hallaq, the British franchising consultant, said that American companies, brands and ideas may get a much chillier reception if bullets fly in the gulf. "Everything was starting to open up," he said. "If we go to war, it will be a setback.""
Link credit: Trademark Blog.
Mark Dayton On The Senate Giving Up Its Constitutional Responsibility to Declare War
EU won't pay for reconstruction after illegal war.
I blogged that before.
From an article in the Independent on Commissioner Patten:
"In Afghanistan, the Commission and the member states pledged €830m (£570m) in reconstruction and humanitarian assistance and spent €750m, with €275m coming from the Commission alone. But, as the commissioner points out, in both cases there was political consensus or a UN mandate "either before or after the military action".
Mr Patten says pointedly: "How easy or difficult will it be in Iraq if the member states are divided about the military action and there is no UN mandate or authority? If, after the military conflict and Iraq is being run by an American general or an American general and a civilian authority, how easy or difficult will I find it to go to the [European] Parliament and get them to vote large funds for reconstruction assistance? You only have to pose the question to know what a no-brainer it is."
This is not political stance against war, but practical politics. Mr Patten is worried that the US and Britain will go it alone, then expect the EU to pick up the pieces. He makes clear that, under such circumstances, the question of EU aid will not even be posed. "One thing I'm reluctant to do is embark on suicide missions. The Germans pay for 25 per cent of the community budget. We know what German opinion is and I am a democrat."
See also this article on eubusiness.com.
Update 15.03.2003: See also this article about a speech by Patten at the European Parliament.
On occasion of adoption of SCR 1441, Ambassador Greenstock from the UK stated one position. That was then.
But now, the UK is taking the opposite of that position, proving they have not been sincere in the negotiation of SCR 1441.
For those who have not paid attention, or wish to forget, the UK position of November 2002 can be found here. The Ambassador remarked:
“….We heard loud and clear during the negotiations the concerns about “automaticity” and “hidden triggers” – the concern that on a decision so crucial we should not rush into military action; that on a decision so crucial any Iraqi violations should be discussed by the Council. Let me be equally clear in response, as a co-sponsor with the United States of the text we have adopted. There is no "automaticity" in this Resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in Operational Paragraph 12. We would expect the Security Council then to meet its responsibilities…."
Of course there is no automacity and no hidden trigger in SCR 1441. If there were, that resolution would not have been passed.
Now, Prime Minister Blair says that "there is sufficient justification for war in SCR 1441".
It should be obvious that this position is quite different from that expressed by Britain in November 2002. Britain and the U.S. got SCR 1441 because they explained to other Security Council members that there is no hidden trigger. Earlier drafts that would have authorized force were rejected to make sure of that result.
The new British position is not supported by SCR 1441, as is discussed in detail here. And it is so in bad faith. Anybody who believed the November 2002 British position while negotiating in the Security Council about SCR 1441 will feel the need to be very careful believing the British government again.
Fool me once, shame on you - fool me twice, shame on me.
Update 24.03.2003: The bad faith is the same with the Americans.
On March 11, the judges of the International Criminal Court were sworn in by UN Secretary General Kofi Annan.
The new court might get one very high-profile case soon: There are plans by British NGO's to prepare indictions for possible violations of humanitarian international law in an Iraq war against members of the British government.
Just an idea on how to avoid the illegal war or have a cease-fire after a few days:
The newest American reason for war is regime change. They want to bring democracy to Iraq.
Unfortunately, Iraqi citizens have not been asked if they wish that to happen. Why not? All kind of positions have been stated by all kinds of actors in the debate. Why not ask the Iraqi people?
Well, one problem might be that any vote of the Iraqi people on the matter might be dismissed as not obtained in a free election. That's where my idea comes in.
Send some UN vote inspectors in and have them organize a free vote. Ask Iraqi voters if they want to be liberated by military force or prefer to be ruled by Saddam Hussein. This obviously would need the cooperation of the Iraqi government.
This vote would have no legal force. But its moral force would be quite strong. Obviously, you can't very well use military force to "bring democracy to Iraq" if a democratic vote tells the world that this would not be welcome. If on the other hand the Iraqi people actually ask for liberation, that would give some credibility to the war. And it might help persuade Saddam Hussein to leave without war.
Since no one knows how that vote would go, it would be a gamble for both sides. And a way out for all parties involved without losing face.
And since there would no legal force from any vote of the Iraqi people, this could be done with a vote in only a part of the country. That means this would be one way to stop on the road to Baghdad. Assume the Americans have "liberated" Al Basra, a town in the south of Iraq close to Kuweit, likely to fall early in the campaign. Then such a vote could be taken in that city.
Or the UN could take seriously the American wish for democracy in Iraq and send vote inspectors now, organizing a vote, if the Iraqi government agrees.
This could be done easily. So if that "democracy to Iraq" statement is not just another propaganda spin, I would like to see some serious discussion about asking the Iraqi people. After all, it's their country.
idea of speaking before a parliament: Mirror.co.uk - BUSH: CLAP ME OR NO EU SPEECH.
It seems the EU parliament can't guarantee any standing ovations for President Bush right now.
members opposing the war (again).
They have been to Iraq in February and are now in America to talk with members of Congress, none of which seem to have been to Iraq lately.
Jack Balkin is discussing seperation of powers in a recent post to his blog. He is critical of the American government's reluctance to quote a number for the cost of the Iraq war.
My point here is that the concept of "separation of powers" is implemented in an inferior way in America, making America an inferior democracy.
Inferior to what?
For example Turkey. If the Turks had let their government decide about the war, they would have gone ahead, even with 95 percent of the population opposed. As it is, that question was debated and decided in the Turkish parliament. And the parliament decision was what the Turkish people wanted.
For example Germany. The German Federal Constitutional Court requires that "important" questions are decided in parliament. For example, in one of the cases, a government decision to introduce sex education in schools was overruled by the Court. That question is "important", so it needs to be decided by parliament. And German participation in a war (which is just about the most important question of all) of course also needs to be approved by parliament, see Federal Constitutional Court decision of 12 July 1994. Also, the government can't change the NATO treaty without asking parliament, see Federal Constitutional Court decision of 22 November 2001 (English translation).
The "separation of powers" concept can be implemented in a more or less far-reaching way. And it has been implemented in an inferior way in the US.
So what? What is the point of having the parliament decide on important questions?
There are much more members of parliament than of government. Which makes for more discussion. And these representatives are more likely to be in closer contact with the citizens of their respective districts than the President is with all citizens. So if democracy is government by the people, parliament is closer to the people than the government.
So I agree with Jack Balkin. The American Congress needs to defend actively what little is left of its powers to decide about war.
And I think it is obvious that only the American Congress can declare war under the American constitution. Any delegation of that power to the President would need an amendment.
But then, that's not an issue if you are not declaring war anyway, but just go ahead with hostilities. With the awe-inspiring, world-threatening, terrible powers of the Iraq regime (military budget seems to be 0.3 percent compared to America), probably you can't risk anything else. As the Japanese have demonstrated at Pearl Harbor, not warning the enemy by a formal declaration of war is really much more effective.
Update 09.03.2003: See this article by Edward Said for some more criticism on the inferior American democracy.
And this article in the New York Times gives some estimates about the cost of the war.
Update 13.03.2003:
Senator Mark Dayton demands that the Senate debate the Iraq question again.
Guess who is sabotaging a tobacco control treaty, working together with their good German friends? At least the EU is backing the treaty.
In related news: In protest against the illegal war, the EU tobacco directive of summer 2001 will be amended soon. Legislation to that effect should not take much more than three days. The general health warnings on cigarette packets will read:
1.„War kills“ or „War can kill you” or
2. War seriously harms you and others around you.
And the new additional warnings:
1. Soldiers die younger.
2. War clogs democratic liberties and causes fascist regime policies.
3. Uranium shells cause fatal cancer.
4. Bombing pregnant civilians harms their unborn babies.
5. Protect children: Don’t make them receive your missiles.
6. The Pope and the United Nations can help you stop your war.
7. War is highly addictive: Don’t start.
8. Stopping war reduces the risk of fatal terrorism and loss of good will.
9. War can cause a slow and painful death.
10. Get help to stop your war (telephone numbers of the Pope and of the United Nations).
11. War may reduce trade flow and causes recession.
12. War makes you look ugly.
13. War can damage international law and decreases stability.
14. War contains numerous risks no one can calculate.
When they are not busy bribing or threatening other governments into cooperating with operation "Big Mistake", American diplomats should look at the public reaction to the war plans abroad. Which is not pretty. Anti-American sentiment is on the rise everywhere.
The question for opponents as well as supporters of the war plans: Just how high is the political price to be paid in lost good will worldwide? I have a simple comparison.
I don't think America has ever lost so much in world opinion in so short time. And I am hard pressed to find examples of other world powers nuking their own good will on the same grand scale.
The best parallel I can offer is the Tiananmen massacre of June 1989. This unfortunate event extremely chilled Chinese good will worldwide.
The question now: Will the American political cost for the illegal war be higher or lower, compared to the damage to Chinese good will by Tiananmen?
I don't remember 10 million people demonstrating against China in summer 1989. And while it is immoral to use tanks against civilians, the Chinese were slaughtering their own citizens. Certainly operation "Big Mistake" will kill more Iraqi citizens than Tiananmen has killed Chinese students.
So I suspect that the political cost for America will be higher than that of Tiananmen for China was.
And again, I refuse to take part in the coming great wave of anti-American hate. I call for sympathy for America by pointing out: The misguided policy of the present American government is unfortunate. But America is more than that government. Most Americans didn't even vote for Bush.
to the Lysistrata Project. They plan some action for March 3rd.
Link credit: Rittenhouse Review.
most of Iraqi oil right now. An American government website reports:
"During 2001, for instance, nearly 80% of Basra Light liftings, and over 30% of Kirkuk oil, went to the United States, with large importers including ExxonMobil, Chevron, Citgo, BP, Marathon, Coastal, Valero, Koch, and Premcor. During the first eleven months of 2002, the United States imported an average of 449,000 bbl/d from Iraq. In January 2003, approximately 1.2 million bbl/d of Iraqi oil went to the Americas (up from 910,000 bbl/d in December 2002 and 515,000 bbl/d in November), while 430,000 bbl/d went to Europe and 140,000 bbl/d to Asia. To some extent, increased Iraqi oil exports to the Americas have helped fill the loss created by a major oil strike and general unrest in Venezuela beginning in December 2002."
This is somewhat strange. While America is preparing a war against Iraq, they are stepping up oil imports from that country substantially. Usually one would assume that business volume should go down before a war. Or maybe even instead.
is required by the US government to avoid war.
This goal can't be achieved over the UN. All the resolutions called for disarming, not for regime change.
So the choice is either illegal war or no war, the choice being that of the American government.
Until a few days ago I thought that by this unfortunate turn of events the prohibition against threatening or using force in the UN Charter would become history.
However, another view is possible.
If someone violates the law, that does not remove the law. Actually it's the other way around.
As an example I offer the provisions in Japanese criminal law against crimes against the Emperor.
Those provisions were introduced in the Meiji restauration under foreign influence. The Japanese thought that kind of law was not necessary. No Japanese would think of a crime against the Emperor in the first place.
Then, under the American occupation, the provisions in the criminal code protecting the Emperor were abolished. The occupation did not like the idea of different levels of protection, that being against the principle of equality.
In this example, if the original idea of the Japanese in the 19th Century is correct and no one would dream of attacking the Emperor in the first place, there is no need for a special provision in the criminal code. And even having one does not change much of anything.
Back to the violation of international law. If no state violated the UN Charter in the first place, it would not be necessary. If one very powerful state (the US) wages an illegal war, that does not remove the law. On the contrary. That will be an opportunity to find out how strong it is.
The worldwide opposition to US war plans is motivated at least in part by the fact that the war will be illegal. Having to deal with strong opposition from powerful countries as Russia makes the war much more difficult for the US.
And, while the US seems to want to dump their obligations under the UN Charter, other nations have until now not asserted this position. That means that even if the force of the UN Charter to keep the US from waging illegal wars is in doubt right now, it is not in doubt for all other law-abiding countries.
The system of international law is certainly put to a test by the US government's war plans. But it might actually emerge strengthened from the crisis. International law becomes important the moment some government does not want to follow it anymore.
We will see what happens.
Update 02.03.2003: Canadian Prime Minister also critical of "regime change".
of the EU to Japan Bernhard Zepter's speech at the Asia-Europe Forum on 22. February provides some insights into why Europeans (especially France and Germany) are in no particular rush to start illegal wars.
From the speech manuscript:
"The consolidation of nation states on European soil drove a deeper and deeper wedge into our continent. Nationalism and imperialism did their part to split the continent further, culminating in the 20th century with the two world wars which have been described by historians as "European civil wars".
The maxim "never war between us" became, therefore, the guiding principle of the Founding Fathers of the Rome Treaty. The origin of recent regional integration in Europe was to free the continent from war and to promote peace and prosperity through co-operation. The EEC and its forerunner the ECSC were built on the principles of mutual dependence and reconciliation.
It is significant that it was France and Germany, the two major antagonists on the continent and belligerents in three long-lasting European wars within one hundred years, who were the driving force behind European integration. To begin the integration process with industrial production like coal and steel was not unintentional : To submit them to a common integrated structure allowed control of two important industrial items which had been in the past the basis for military power and aggression."
One point of European integration was to avoid new wars between European nations. That part has worked well for the last fifty years.
One other point was to acquire more weight in bilateral relations, especially with the US. Which comes in handy whenever the American government thinks they can threaten sovereign European states into doing what the Americans want, as opposed to what the majority of the European people want.
So what will happen once all international law is history, bombed to bits by the present American government? George Monbiot has an interesting view on the question: By tearing the global rulebook, the US is in fact undermining its own rule.
We'll see soon enough. Operation "Big Mistake" is only weeks away.
There is talk of countering boycotts of French and German products with the opposite, that is actively buying them for political reasons.
I think that is a natural idea. Actually the original boycott might easily backfire.
Those who say "don't buy French and German" on their blogs say so to readers who think like them. By doing that, they obviously risk that everyone else will do the opposite. Which might be a good idea if "everyone else" is a small group.
The opposition to war might be weaker in America than in Europe. But there are still large numbers of Americans who don't want this war, especially if it is started illegally without UN support.
For example Volkswagen would probably be ecstatic to get extra attention from more than 50 percent of the American population, at no cost for advertising.
But actually I would like to comment on the same question from a German (my) point of view.
I did not really appreciate being called a "weasel". English is not my first language, so maybe I missed the point. However, if that insult is intended to mean that Germans are cowards, it seems to be misguided. Iraq is much weaker than the US, so the cowardly and opportunistic position would be to follow orders from the White House.
And I feel that it is extremely dangerous for world peace that the most powerful nation on the planet starts waging illegal wars of aggression.
So I might be tempted to hate America and stop drinking Coke. Have a Perrier instead.
However, I am not going to lose to that temptation. Others might, but I won't. In fact, just as the good people who counter the boycott of French and German goods, I want to do the opposite of taking an anti-American position. I want to call for sympathy for America.
Actually, I like America.
While the present American government wants to start an illegal war, I know that America is more than that government. Eventually Americans will have the chance to vote Mr. Bush out of office. I hope they'll be able to fix their voting machines until then.
And with President Bush hell-bent on kicking of operation "Big Mistake" in the next few weeks, Americans will be in need of sympathy from their few remaining friends.
They will have to pay alone for the cost of the war, as well as for the cost of bribing other nations to make them willing. And for the cost of rebuilding Iraq after the destruction. The EU won't pay this time.
That money won't be available for the Americans themselves.
And many are those who think this is operation "Hostile Takeover". Or, in the words of Mark Twain, operation "Robbing Expidition".
I don't think so. I actually hope that this is not about the Iraqi oil. But that perception is spread wide and far.
So I expect a sharp decline in American good will world-wide after their government actually starts bombing Iraqi kids.
But I refuse to ride on that wave. I know that there is more to America than operation "Big Mistake".
There will be a Virtual Mass Demonstration on Feb.26th.
I have a similar idea.
1. Set up a date and time for a world-wide virtual demonstration.
2. Set up a website for the occasion and invite speakers to present text over an html-interface at that date and time.
3. Have a counter indicating the number of people attending.
There are some advantages over real-space demonstrations:
Nobody can obstruct by holding back a permit, as has happened with the New York demonstration. You would get an exact count of the number of people attending, not an estimate. And no one needs to freeze or travel to attend.
Update 28.02.2003 (via BoingBoing): This page gives an impression of how the demo went.
on eastern Europeans opinion are misguided.
The Greek presidency already raised the correct point: The statements of European leaders were made without the necessary consultation. This is the only merit of any criticism, but the timing is unfortunate, since we have a common EU position confirmed right now, after the necessary discussion in the European Council.
again confirms its opposition to a war without UN mandate:
"We are committed to the United Nations remaining at the centre of the international order. We recognise that the primary responsibility for dealing with Iraqi disarmament lies with the Security Council."
The opinion of the eight European leaders said the same, contrary to popular belief.
If the U.S. decides to violate international law and invade Iraq immediately without security council mandate, that step will be clearly opposed to the above opinion of the EU.
In this post I will briefly discuss the rest of the comments to my cross debate post. I don't plan to spend much time on this, since the main issue for me is that of international law, which I have addressed here.
First there is a comment from Mr. Bennett. He states that I am unable to distinguish a "genuine war of aggression" (a term not known to international law as yet) from "a war whose aim is to remove a severe violator of human rights in his and other countries from power" (again a concept not known to international law).
I plead guilty on his charge. In international law, there are illegal wars of aggression and legal wars.
And I note that the pro-war is not able to distinguish either, since they provided our side with all kinds of different concepts as an answer to question one.
Jane Galt points out that the US can attack anyone whenever they feel like it because they have "more military power than the rest of the world together". That being true, abusing that power for illegal aggression is all the more dangerous. I would be much less worried if Iraq started aggressive warfare again, since they aren't much of a threat to world peace.
Hunsvotti suggests that the national flag of the French should be white. We'll see if the French government will surrender easily to American pressure or if it acts as the French people want them to. I rather suspect that Americans won't be able to dictate their position easily, but again, we will see over time.
Then there is the question of law and morality, raised by Robin Goodfellow. I could easily answer that in about 500 pages of text if I limit my discussion to one percent of what has been said on the matter over the centuries.
But the short answer is: No, I don't think that in this case political or moral considerations should trump international law. But of course I'm biased in the matter, having spent the last twentyfive years of my professional life as a lawyer.
Caton says it's not fair that I didn't answer questions 3 and 5.
Actually I did answer those questions, when I said:
"Of course the U.S. can choose to dump international law and wage an illegal war of aggression. In my humble opinion, there are no possible circumstances justifying doing that."
"No possible circumstances" includes negating "extend possible benefits of Northern Iraq to the whole country" (question 3) and "bring democracy to Iraq" (question 5).
However, I welcome the occasion to point out: the pro-war people don't seem to have much respect for German and French democracy. While the population of these countries is firmly opposed to illegal war, America pressures their leaders to follow American orders. So I would ask for your kind cooperation to please refrain from using the concept of democracy and souvereignty for white-washing illegal aggression. You can come back with that argument once you show some respect for sovereignty and democratic government in western Europe. Until then I won't believe that the US is bringing democracy and sovereignty to Iraq, as opposed to installing a local US governor.
Before joining Aoyama Gakuin University I worked for several years at the Max-Planck-Institute for Foreign and International Criminal Law in Freiburg, Germany.
Several of the law researchers there have published an open letter to Chancellor Schroeder about the Iraq situation. They say:
1. Any war without UN mandate would be illegal. And that mandate would only be possible if there is a danger for world peace by Iraq WMD and no other options are sufficient to counter that danger. Any resolution without these conditions would be against the UN Charta.
2. Anyone preparing an illegal war with German participation would be in violation of Article 26 of the constitution and Article 80 of the Penal Code, if that preparing act is performed in Germany. That is a felony punishable by a prison term of at least ten years.
3. There are no rights to use German air space from the NATO treaty.
4. This means: Not only is any German participation in an illegal war of aggression impossible, Germany needs to deny the use of air space and stop US forces in Germany from participating.
A short comment to the above opinion: There is a real risk of penal prosecution for preparing a war of aggression with German participation under current German law. This might be one reason not known to the US government and public opinion German leaders are refusing to consider any action against Iraq in violation of the UN Charta.
Under current German law, international law is not to be dismissed lightly. There are serious consequences for violating it.
A formal complaint against chancellor Schroeder for violation of Article 80 penal law (agreeing that the US can use German air space) has been filed on December 16, 2002.
Update 21.03.2003: The Federal Prosecutor decided not to indict Schroeder because Germany has refused to take part in the war.
Blocking Movement of U.S. Troops. Austria will only allow the US to move troops or fly planes over the country if there is a UN mandate, see article in Spiegel magazine (in German).
Now we have Japan riding on the latest wave of "pre-emptive attack" philosophy: BBC NEWS | Asia-Pacific | Japan threatens force against N Korea.
Update 15.02.:
George Paine at warblogging.com has a substantial article showing that the Japanese position would be in line with international law.
in America opposing striking Iraq: U.S. Catholic Bishops - Social Development & World Peace.
that over 50 percent of the Iraqi population is under 15 years of age, see Reckless Administration May Reap Disastrous Consequences.
Read also this speech of a 12-year old American girl at one of the peace demonstrations.
This post is the first in a series adressing comments to my "cross-blog debate" post above.
I address the reasons given why war might be legal.
There are two points, most lucidly presented by Robin Goodfellow, but also by other comments.
If I wanted a legal war, obviously the best way to achieve that would be as in Gulf war number one, that is a security council resolution authorizing the use of military force to disarm Iraq supported by everyone.
The U.S. won't get that anytime soon. Actually quite a lot of countries are in opposition. Right now France, Russia, China (only counting those with veto power).
That leaves two options, both mentioned in the comments.
The weaker one is going back to the resolution authorizing force to kick Iraq out of Kuwait.
The problem with that option is that the scope of that authorization was only use of force for achieving that goal, see resolution 660 below:
"2. Demands that Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on 1 August 1990;"
The other option seems to be more realistic, that is relying on resolution 1441:
"13. Recalls, in that context, that the Council has repeatedly warned Iraq that
it will face serious consequences as a result of its continued violations of its
obligations;"
It might be arguable that "serious consequences" means war.
That's probably the best shot at legitimacy you can get without another resolution. Doesn't convince me. Nor the European Parliament.
For a substantial discussion of the reasons against legitimacy over 1441 see the opinion of November 15th, 2002.
In my humble opinion, which does not matter in the least, the U.S. is long on military power, but short on legitimacy.
The EUROPEAN UNION DEVELOPMENT AND HUMANITARIAN AID COMMISSIONER POUL NIELSON'S STATEMENT ON IRAQ gives some info on what policy the EU wants to follow to react to the humanitarian challenges of war in Iraq.
He also points out the need to find to a common position on Iraq, which probably is only possible with a qualified majority vote. I agree.
There will be an extraordinary summit next Monday.
for Iraq reconstruction if America goes ahead without UN mandate, see Guardian Unlimited | Special reports | Patten warns US over aid for Iraq.
The EU is currently the world's biggest aid donor and is paying billions of Euros for Afghanistan.
Here are some short comments to the questions from the pro-war fraction.
Feel free to comment or trackback. All flames will be ignored.
1) If you were President of the United States, what would be your policy toward Iraq over the next year? What advantages and disadvantages do you see in your proposed policies versus the current path being pursued by the Bush administration?
I would refrain from a war of aggression violating Article 1 Nato and Art. 2 number 4. UN Charter.
Advantages: I would preserve the trust of other nations and international law. And I would avoid starting World War III.
Disadvantages: I would leave Saddam Hussein in charge in Iraq, probably in possession of some WMD.
2) Is there any circumstance that you can conceive of where the United States would be justified in using military force without the support of the UN Security Council --- or does the UN always have a veto against US military action for whatever reason?
International law gives any nation the right of self defense, Article 51 UN Charta.
Of course the U.S. can choose to dump international law and wage an illegal war of aggression. In my humble opinion, there are no possible circumstances justifying doing that.
3) American and British military force has allowed Northern Iraq to develop a society which, while imperfect, is clearly a freer and more open society than existed under Saddam Hussein's direct rule. Do you agree that the no-fly zones have been beneficial to Northern Iraq --- and if so, why should this concept not be extended to remove Hussein's regime entirely and spread those freedoms to all Iraqis?
This line of reasoning is exactly why the rest of the world becomes very nervous at the idea of the planet's most powerful country excusing themselves from international law restrictions. The question implies that you can merrily go ahead invading other countries because you don't agree with their internal politics.
In this view of the world, America can attack anyone whenever their government feels like it.
4) Do you believe an inspection and sanctions regime is sufficient and capable of keeping weapons of mass destruction out of the hands of the Hussein regime --- and should this be a goal of U.S. policy? In what way is an inspection/containment/sanctions regime preferable to invasion? Civilian casualties? Expense? Geopolitical outcome?
No.
However, the goal of keeping WMD out of the hands of every country the U.S. doesn't feel comfortable with is unrealistic. Who's next, North Korea? Pakistan? Everyone else with WMD?
5) What, in your opinion, is the source of national sovereignty? If you believe it to be the consent of the governed, should liberating Iraq from Saddam Hussein's regime be U.S. policy? If so, how do you propose to accomplish this goal absent military action? (And if in your view the sovereignty of a state does not derive from the consent of the governed, then what is the source of sovereignty?)
Again, this line of reasoning is exactly why allowing "pre-emptive strikes" (wars of aggression) is extremely dangerous. There are lots of countries where there is doubt about the "consent of the governed". If you feel free to invade them all, there is nothing left of the long standing prohibition of aggressive war in international law.
I plan to attend the anti-war demonstrations on February 15th in Shibuya, Tokyo. This is likely to become the single largest day of protest in world history.
All those people worldwide giving all those flowers to US embassies. And its less than two years ago.
There is just about nothing left from that tidal wave of good will.
Via Gamers Nook.
to war without asking Congress again, see DeFazio, Paul Introduce Bill to Repeal Bush's Blank Check for War (01046).
The European Parliament adopted a resolution on January 30 on Iraq. From the EP web page:
"Parliament adopted a joint resolution on the situation in Iraq with 287 votes in favour, 209 against and 26 abstentions. Parliament reaffirmed its commitment to peace, democracy and respect for human rights and international law and reiterates the need for full application of and compliance with United Nations Security Council resolutions in order to guarantee international peace and security. MEPs state that they fully supports the work of Mr Hans Blix, and Mr El Baradei, and their team of inspectors in charge of the UN enhanced inspection regime as stipulated in UNSCR 1441. MEPs believe that breaches of UNSCR 1441 currently identified by the inspectors with regard to weapons of mass destruction do not justify military action and considers that any further steps must be taken by the Security Council after a full assessment of the situation. Parliament expresses its opposition to any unilateral military action and believes that a pre-emptive strike would not be in accordance with international law and the UN Charter and would lead to a deeper crisis involving other countries in the region; stresses that everything must be done to avoid military action. Furthermore, Parliament urges the Council and the Member States to take the initiative in proposing that the International Criminal Court should investigate the responsibility of the Iraqi leader's regime for the genocide against the Marsh Arabs and other crimes of war and crimes against humanity."
So the European Parliament agrees with my view that the war will be illegal.
Guardian Unlimited Observer | Comment | Terry Jones: I'm losing patience with my neighbours, Mr Bush
From the comments of EU High representative for the Common Foreign and Security Policy Solana to Powell's presentation:
"The EU countries have a common position on basic issues: First, the objective is the disarmament of Saddam Hussein of weapons of mass destruction. Second, the role of the inspectors is crucial and they should be helped, including with practical means, as it has been offered by the countries of the EU. Third, we want the process to continue within the Security Council of the UN. That should
be the place where the important decisions will have to be taken."
This is largely what the fifteen member states of the EU said in the December 2002 summit presidency conclusions. And as I mentioned before, the opinion of the eight said essentially the same.
in the coming war against Iraq is certain.
I remember Mike Royko writing, about ten years ago: “Those who opposed the war are either slinking in dark corners or bowing their heads and pleading ‘Forgive me for having been a wrong-headed weenie’.”
Ryoko was one of the smarter opponents of Gulf War I, but like most other peace advocates he overestimated Iraq’s capabilities.
While I happen to think that Gulf War II will be illegal I certainly expect America to win fast.
And, thanks to the clever plans of Harlan Ullman, this quick and decisive victory will have a good chance to beat the one Mark Twain called “incomparably the greatest victory that was ever achieved by the Christian soldiers of the United States” in that greatness department.
For those not familiar with American history or Mark Twain’s opinions on the subject, I offer a short explanation.
Twain was talking about American soldiers killing 600 Moros with minimal own losses by using their technological superiority. In the American occupation of the Philippines about 100 years ago. See “Responses to the Moro Massacre” by Jim Zwick for more background.
For reasons I don’t understand exactly right now, that particular essay of Mark Twain titled “Comments on the Killing of 600 Moros” at the time is said to be “still protected under copyright”. Twain died in 1910, so that seems somewhat of a stretch even under the new Eldred decision. Maybe the Eldred.cc crowd can figure out some way to free at least Mark (never mind Micky).
As a consequence, you can find only excerpts on the web. For example this part:
"The battle began - it is officially called by that name - our forces firing down into the crater with their artillery and their deadly small arms of precision; the savages furiously returning the fire, probably with brickbats - though this is merely a surmise of mine, as the weapons used by the savages are not nominated in the cablegram. Heretofore the Moros have used knives and clubs mainly; also ineffectual trade-muskets when they had any."
Or this one:
"General Wood was present and looking on. His order had been, "Kill or capture those savages." Apparently our little army considered that the "or" left them authorized to kill or capture according to taste, and that their taste had remained what it has been for eight years, in our army out there - the taste of Christian butchers."
Back to the greatness department. We will have to wait for the numbers to come in, but I expect rather more than 600 dead Iraqis. And probably more than 15 dead American soldiers.
But the general relation will probably stay intact. Only on a much bigger scale.
So the liberation of Iraq will be a greater victory than the Moro massacre. And it will be so in the same proud tradition.
Top spot on daypop for United Press International: Pentagon adviser: France 'no longer ally'.
From the article:
"Perle went on to question whether the United States should ever again seek the endorsement of the U.N. Security Council on a major issue of policy, stressing that "Iraq is going to be liberated, by the United States and whoever wants to join us, whether we get the approbation of the U.N. or any other institution."
"It is now reasonable to ask whether the United States should now or on any other occasion subordinate vital national interests to a show of hands by nations who do not share our interests," he added."
He did not say "whether that is legal under international law or not". But it does amount to the same, in my humble opinion.
I mentioned before that the coming US aggression on Iraq will be illegal.
I had not noticed at the time that this view is shared by an analysis of Prof. Georg Nolte in the German Frankfurter Allgemeine Zeitung of January 10, page 8 (its on the web, but you need to register and pay for it, so I won't bother linking to them).
As Prof. Nolte explains, in traditional international law, a preemptive aggression is legal if there is a danger of being attacked that is
"instant, overwhelming, leaving no choice of means, and no moment for deliberation".
In contrast, under the new rules the American government declared unilaterally, they can invade anyone whenever they feel like it. There is no certainty in applying these rules, as Prof. Nolte points out in detail.
I still think however that there is really no need to be an expert to understand this. Its obvious.
And again, the point is moot, since there is no way to have a court enforce the UN Charta against the power of the present US government.
On the other hand, there is a bright side to this. Since the US just refused to obey the most important rule in international law, the rest of the world has no reason to keep following less important rules, like for example TRIPS.
So when the debate about abolishing patents and limiting copyrights to five years or so starts in earnest as a natural reaction to the recent crazy explosion of intellectual property, any country can feel free to dump TRIPS unilaterally as well.
It says that the opinion of the eight was not coordinated with the presidency, but that there is as yet no need for an extraordinary European Council meeting.
As I pointed out already, the opinion of the eight is really not that far away from the presidency conclusions of December 2002, both documents giving no support to unilateral war without UN mandate.
The article by Blair and other European leaders does not support war without a UN mandate.
On the contrary, at the end it calls on the Security Council to face up to its responsibilities. That is in contrast to Bush's speech where he said he doesn't care about the decisions of others.
So the opinion of the eight European leaders actually is not far away from that of the fifteen at the Copenhagen summit in December, where the Presidency Conclusions said:
"The EU will continue to give its full support to the efforts of the UN to ensure full and immediate compliance by Iraq with Resolution 1441. The role of the Security Council in maintaining international peace and security must be respected."
CNN.com - Bush's State of the Union speech - Jan. 29, 2003:
"Yet the course of this nation does not depend on the decisions of others."
As expected, America will go ahead with the war regardless of what other nations might think.
I was wondering if a possible US attack on Iraq might be in violation of international law. One page I found was a speech by Hans C. von Sponeck, UN Humanitarian Coordinator for Iraq 1998-2000. He said:
"A unilateral military strike by the US against Iraq would in any case be a grave violation of international law".
And then there is a declaration of 315 American law professors stating that an attack would be illegal.
German famous international law scholar Prof. Frowein says that it is
for the most powerful nation on earth to try to circumvent or ignore international law.
And Prof. Bothe sees the danger that the prohibition of violence in international law will be history soon.
I am not a specialist for international law. Nor do I have to be. This is a no-brainer. There is no possible way this could be legal. If America can legally attack Iraq under present circumstances, no country on the planet would be safe from American "pre-emptive strikes".
However, there is the question of procedure. If the German government unilaterally ignored international treaties, they would find themselves very quickly as a defendant before the Federal Constitutional Court. Also, it is a crime under Article 80 of the German Criminal law to prepare a war of aggression (Angriffskrieg).
In contrast, if the American government decides not to worry about minor legal details like the UN Charter, who could sue them and where? If there is no way to bring this question to court, the question if the attack is legal or not seems to be moot.
The 315 American law professors declaring an attack to be illegal did not mention any way to actually enforce their view. Probably there is none under American law and the American government can go ahead merrily violating international treaties without having to face any consequence whatsoever for doing so.
Except, of course, the moral ones. It does not look good in the eyes of the world to kick international law squarely in the face from a position of military strength.
