The US and war and its illegality

In the Silence, War Continues -- by Larry Beinhart

During the first half of the 20th Century the United States spearheaded the movement to make war illegal.

Based on the standards that were set then, based on international and American law, and based on the facts, a clear-cut and convincing case can be made that the invasion of Iraq was a crime.

It is impossible to imagine that George Bush and Dick Cheney and the rest of their group will actually be brought into court and charged, and perhaps that is the reason that the response has been silence. We do not even discuss what makes a war legal or illegal. It has not and will not be debated on the floor of the US Senate. It won’t be the subject of an investigation in the Washington Post or the New York Times. It won’t be a segment on 60 Minutes or an item the NBC Nightly News. Anyone who says that the invasion of Iraq was a war crime will probably be dismissed as a member of the loony left.

Nonetheless, it is worthwhile to know where the moral high ground used to be.

* * *

The movement to seriously end war came out of the First World War.

All the nations marched to the battlefields eagerly. They had visions of flying banners, glorious cavalry charges, feats of courage and derring-do. What they met was a new kind of war. War as an industrial slaughter. It decimated an entire generation. It bankrupted a continent.

The Second World War reinforced that experience.

Although some of the victors emerged rich and powerful and although the movies and memoirs were filled with heroism and glory, the participants got together and said, this was a horror and whoever starts one of these things has committed a crime.

A terrible crime.

The Law

In 1928 the Kellogg-Briand Pact was signed. It renounced war as "an instrument of policy."

It’s a treaty and it’s still in effect and that makes it, according to Article VI of the Constitution, American law:
... all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.



Germany and Japan were also among the signatories. Obviously, they did not abide by it. But their violation of the treaty became one of the legal foundations for the war crimes trials.

Three types of war crimes were defined at Nuremberg in 1945: crimes committed during war as violations of the norms of war, crimes against humanity, like genocide, and, on top of the list, was to start a war:
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.



That same year, in another step toward trying to end war, at least between countries, the United Nations was formed. The UN Charter, Article 2, Section 4, says:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state ...



The United States, one of the founders of the UN, signed the charter. It is, like the Kellogg-Briand Pact, a treaty. Therefore it becomes, according to the Constitution, part of US law.

Self-Defense

Self-defense is legal.

Nothing in Kellogg-Briand or the UN Charter says or implies that a nation can’t defend itself.

Preventive War

Preventive war is an extension of self-defense.

The idea is that if a bad guy is coming down the street with a gun you don’t have to wait until he’s in your house before you can shoot back.

That sounds like rough common sense and it has a great deal of emotional appeal.

But bear in mind that if you yell at the guy and he runs away, or if he drops his gun, or if you have time to call the police and they’ve arrived, shooting the guy is no longer self-defense, it’s somewhere between hysterical manslaughter and murder.

Historically, the idea of preventive war has been very narrowly construed, just like shooting someone down in the street on the grounds that they are a threat to you. There has to be "a necessity of self-defense,” and it has to be “instant, overwhelming, leaving no choice of means, and no moment for deliberation," and the act of self-defense “must be limited by that necessity, and kept clearly within it."

Preemptive War

Preemptive war, also called Bush Doctrine, is an extension of preventive war.

The big difference is that the threat no longer has to be “instant” or even immanent.

The idea is that if an opponent has both nuclear weapons and the will to use them, then the downside risk is so grave that it requires action to be taken before “the smoking gun is a mushroom cloud.”

Once that’s said, the idea extends itself even further. It spreads out like an oil slick. The enemy doesn’t actually have to have nukes. They could have a program. Or merely the intent to have a program. Nor does it have to be nuclear. They could have the intent to have biological or chemical weapons programs. Nor is it necessary for them to exhibit or have a history of threatening to use those weapons against us. It is enough that if they have such a weapon sometime in the future, they might give it to someone else who is willing to use it.

Let us say that all makes sense and it is justifiable, the underlying justification still remains the same – self-defense.

If the enemy is disarmed, then the necessity for self-defense disappears.

Just as once a suspect has dropped his gun and raised his hands, no matter how horrible his crime is, no matter how good a person the policeman is, if the policeman shoots him, it’s murder.

Rogue States

There is one more legal way to go to war.

The UN Charter calls for “collective action” against a state that is out of control and dangerous to the rest of the world, a region or to one of it’s neighbors.

It requires Security Council agreement and there have been three UN authorized wars, the Korean War, Gulf War One and Somalia.

The United Nations did not authorize military action Iraq.

It authorized pressure against Saddam Hussein to get him to admit inspectors and to disarm.

The Facts

The United States and the United Nations demanded that Saddam Hussein accept weapons inspectors and give them unlimited access so as to prove that he had disarmed as he had agreed to do after the First Gulf War.

Saddam Hussein agreed to that, in both word and deed.

The inspectors went to Iraq. They got in everywhere they asked to go.

They did not find prohibited weapons, except for a few that had been overlooked or lost in the shuffle and the Iraqis promptly destroyed them. They did not find any programs to produce prohibited weapons.

As proving a negative is difficult, the inspectors could not guarantee that no weapons existed. They asked for more time.

Let us stop right there. Let us examine that moment.

If there was any doubt that Saddam was somehow not fully disarmed, he was like a “perp” up against the wall, arms and legs spread wide, being frisked.

Effectively, he was disarmed.

The need for self-defense, even a preventive or preemptive self-defense, was over. The justification for war was gone.

Instead of being pleased that the threat was over, the Bush administration demanded that the inspectors stop their work and leave Iraq.

Then they changed the rules. They no longer demanded that Saddam disarm. Or even that he prove that he had disarmed. Now, the only way to stop the invasion, was for Saddam to abdicate and leave the country.

If the invasion of Iraq was not a matter of self-defense – however much the definition was stretched – and it was not sanctioned as collective action – it was a war of aggression.

There are no mitigating circumstances, except, perhaps, the silence.

The silence, vast and still, came from the media. It came from our other politicians. From our historians, lawyers and generals, from our priests, ministers, rabbis, and imams, who failed to step forward and say, wait, once upon a time we said that waging an aggressive war was the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

Once upon a time we hung people for the crime of waging an aggressive war.

We are continuing that war. We have already begun the preparations for another war.

We may not be able to stop this administration from committing war crimes, we may not be able to bring them to justice, but we can end the silence.

(Larry Beinhart is the author of "Fog Facts: Searching for Truth in the Land of Spin," "The Librarian," and "Wag the Dog.")