War

By way of introduction, my name is Peter, I'm 47, my father thinks I'm a Marxist and my Marxist friends say that the dictionary should use my picture when defining "bourgeoisie"--so in short, I am proud to call myself a liberal. I am an editor and writer, an attorney and historian by training, one damn fine cook, a happily married man and the father of three great, albeit expensive children!

Obviously, the invasion of Iraq and the continuing struggle there is the defining issue of the day. Unfortunately, my foresight was as good as my 20-20 hindsight. I want no credit for this, and wish to God that I had been wrong. The question I have always asked is...how did anyone not see this coming?

First of all...

1. The war was illegal

Customary international law recognized the right of self-defense, and did not require a nation to be attacked before responding. U.S. Secretary of State Daniel Webster laid out the classic definition of anticipatory self-defense in the Caroline case in the 1830's. In this case, a U.S. vessel, the Caroline, was allegedly carrying supplies to Canadian rebels against English rule when it was attacked in New York and destroyed under British authority. Secretary Webster argued the U.S. position that the attack was unjustified, stating that to claim self-defense, a state must show a necessity of self-defense, instant, overwhelming, leaving no choice of means, no moment for deliberation. This definition eventually became recognized as the international legal standard.

I think it is rather self-evident that pre-war Iraq did not meet this standard. Its armed forces had been quickly expelled from Kuwait and severely damaged in the first gulf war. US and allied aircraft regularly flew over much of the country, and spy satellites closely monitored Iraq as well as on-ground intelligence. NO evidence existed of any impending Iraqi attack on the U.S. or any ally (This is a different issue than the claimed existence of WMDs which goes to the interplay of the various UN resolutions described below.)

As an example--throughout the Cold War, the Soviet Union certainly had the capacity to inflict serious damage to the U.S., and both an ideological and geopolitical motivation to do so. I do not believe that anyone could make a serious argument that a U.S. invasion of the Soviet Union would have been justified because of any "motive and opportunity" rationale barring significant credible evidence of overt acts of hostility.

The customary definition of self-defense is important today even though the international law in this area is defined by the UN charter and subsequent acts/documents, as reference is made to customary definitions when treaty terms need definition or in areas not fully covered by treaty (for an absolutely brilliant discussion of the interplay of customary and treaty-based international law, see Volume 3 of the 1981 University of Illinois Law Review. The piece is thoroughly researched and documented, and the author is nothing short of brilliant--and modest.)

Under the UN Charter, force is authorized only in two instances. The first is self-defense. Actually, the charter language is fairly restrictive here. Article 51 provides that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

Most international law scholars assume, however, that an actual attack is unnecessary and that the charter reflects the Caroline rule. Still, though, this right is rather tightly circumscribed, as the procedure for taking the matter to the Security Council is laid out. Also the "until the Security Council has taken measures necessary" suggests that the right of self-defense is indeed limited to an immediate emergency response. The same conclusions about the legality of the self-defense claim under the charter apply as under customary international law.

The other area in which force may be used is when authorized by the Security Council. Article 41 provides that "The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions" and "The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. "

Under Article 42, "Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."

Note that the operative language is that IT, i.e., the Security Council, is the body to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security." Other language throughout the charter reinforces this idea that lawful military force is to be used in the collective:

Article One defines one of the purposes of the UN as "To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace."

Article 48 provides that "The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine."

The question then becomes, had the Security Council "authorized" the U.S. invasion in the web of resolutions passed in the wake of the first Gulf War and leading up to the invasion?

Before doing so, it should be noted the general principles of construction applicable here. Under the Vienna Convention on the law of treaties (off the top of my head), treaty terms and acts thereunder should be given their plain meanings. Resolutions must also be read in light of the defined purposes of the UN Charter, including a commitment to collective action and a desire to avoid war. The various resolutions may be found at

http://www.fas.org/news/un/iraq/sres/index.html.

The UN resolution, 678, authorized the 1st gulf war with the language of "all necessary means to uphold and implement resolution 660." This earlier resolution, 660, called for Iraq to "withdraw immediately and unconditionally all its forces to the positions in which they were located on 1 August 1990. "The expulsion of Iraq from Kuwait is the SOLE object comprehended within 660, and hence, within 678.

(1990)

The oft-cited Resolution 687, the cease-fire agreement, places the various restrictions on Iraq, including arms restrictions. These restrictions apply ONLY because Iraq was a UN signatory and was subject to the authority of the Security Council. The resolution on its face contains NO enforcement provisions and its text belies enforcement by individual states, as the Security Council "Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area."

And then there is 1441. The language here is certainly vague and ambiguous. The clear wording of 678, in which the Security Council SPECIFICALLY authorized "Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means…" is nowhere to be seen. Rather, the Council "recalls" that it has repeatedly warned that Iraq will face "serious consequences."

The "serious consequences" language is hardly a specific mandate for war drafted by a council established for the furtherance of peace. "Consequences" could involve a multitude of sanctions well short of unilateral invasion. The U.S. had sought more definitive language and was unable to establish veto-proof support. In 1441, the Security Council further stated that it will "convene immediately upon receipt of a report… in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security." Hardly a "we authorize the U.S. to invade by X date." The resolution also expresses the will of the Security Council "to remain seized of the matter."

Nowhere in this language is there any explicit authorization for member state enforcement. It is more than a stretch to find even implicit authorization. The all means necessary language is found ONLY in 678 and this clearly was limited to the invasion of Kuwait and was SPECIFICALLY REJECTED in 1441. The charter and all the resolutions strongly reflect the continuing desire of the Security Council to maintain control of this matter. For the actions to be proper, the US would have to be acting ON BEHALF of the Security Council, and such a view is simply untenable in light of the SC members' specific disavowal of the same.

Note that I make no statement about the wisdom of these various provisions. One does not question whether an element of the law is wise or just when assessing its applicability. Many may disagree with the inherent restrictions placed on member states by the UN charter. However, the U.S. voluntarily and constitutionally accepted these obligations. Note also that the constitution makes treaties part of the law of the land domestically as well.

2. The consequences were thoroughly predictable

OK, let's see--we INVADE a Muslim country WITHOUT JUST CAUSE and OCCUPY it, and we think we will be seen as "LIBERATORS???" Hmmm...anyone notice that terrorist attacks increased after Gulf War I, when we set up bases (occupied?) in Arab countries?

The miscalculations are astounding. Initially, the planners of the war showed an absolute lack of understanding concerning the national, religious and ethnic powderkeg marked on the map as "Iraq." Anyone with a sophomore-level college class on Mid-East history would have seen the explosive mix of a Shi'a majority, a Sunni minority used to power and the Kurds was a conflagration just waiting for an American spark. The Shi'a majority had long disliked the U.S,, as they saw us as the ally of Hussein during Iraq's war with Shi'ite Iran. The theology of this branch of Islam, albeit not necessarily so doctrinally, also has been conducive to fundamentalist and radical interpretations.

Mix in the fact that we, oh, I don't know..INVADED THEIR COUNTRY? Blew up their homes, destroyed their businesses, killed their loved ones? No matter how much they wanted Hussein gone and sought political power, that little reality is a tough one to get past! And please do not let those GOP congressmen with their upraised purple fingers last January fool you. This "election" showed the will of Ayatollah Sistani to have the U.S.get the hell out. And the Sunni reaction? Oh sure, it was completely unexpected that countless thousands of those who had enjoyed political power would happily submit to an emerging theocracy based on a n alien theology and seen as allied with an enemy (Iran).

3. Things ain't gettin' better any time soon

Hmmm..I hate to drag out the Viet Nam analogy, but...add 1 cup Viet Nam and 1 cup Soviet Afghanistan and you get one whole clusterfuck of a mess. DIDN'T WE LEARN? CAN WE NOT BE TAUGHT??

There are so many things to say here. Let's see...

Small native forces can utilize terrain to offset numerical and technological advances,

We don't, and won't, control the roads, so people and stuff get moved in copters, which a kid can bring down.

There is a "baby boom" in Iraq's population of young men right now. Mix that with poverty and U.S. occupation and you get....hmmm..HELL?

Every day we are there makes the "government" less credible and

Our military is broken. They say they've met recruiting goals, and they've done so by LOWERING those same goals. Wait till hurricane season, when the National Guard, protectors of dams and seawalls, are missing. An unacceptable amount of citizen soldiers, veterinary technicians and insurance professionals, are the ground troops in Iraq.

And finally, the reason why it won't get better...the lie. We all learned as kids was that the only way to cover up a lie was to keep on lying.

Tomorrow...the designated hitter!

Peace.