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August 04, 2007

Law Lesson: Illegal Wars [Gabriel Malor]

One of the things I’ve noticed over the last three or four years of national debate about the War on Terror is that it is oddly common for people to ignore international law—even when it supports their arguments. This has been a pet peeve of mine for a while, simply because I do not like to see anyone leave a good argument lying on the table.

With the hope that you never leave an argument alone simply because it’s about a sticky subject, here are some simple, straightforward, and useful facts about international law that may help you out the next time you’re stuck at the watercooler talking about current events.

Current Event That Prompts Discussion: You and your carpool are driving to work one day and you see a fellow standing at the side of the road with a sign that reads, “Stop Bush’s Illegal War.” Later, you’re back at the watercooler (your Leftist officemates not having learned enough from your last engagement) and you hear some variation of the following:

Leftist Commentary #1: The U.S. has no respect for national sovereignty. Just look at how we walked all over Iraq and Afghanistan. And now people are talking about invading Iran and even Pakistan (ahem, Obama)!?! Where is the U.N. in all of this? Shouldn’t we be getting permission to start bombing places?

Your Answer: You’re right! (Leave them hanging for just long enough for confusion to settle in and then finish: ) Partially. We didn’t respect Iraq’s or Afghanistan’s sovereignty. But that’s because the U.S. is under no obligations to respect the sovereignty of nations which aid or participate in aggression against us or allies. It is a basic principle of international law that countries may defend themselves or their allies. (If you must, you may insert a “Well, duh,” here, but I think it’s gratuitous. Also, be prepared for a diversion onto the topic of preemptive war. Take my word for it, preemption is okay under international law. We’ll have to come back to that another day for more discussion. You go on to your officemates:)

War is the one occasion when it’s okay to ignore the sovereignty of a nation. As my brother (Hi, Jahi!) who is in Iraq would say (and many others too), "that’s a feature, not a bug." The sticky sovereignty questions actually arise when activities short of war are going on. For example, invading an ally (::cough::ObamaPakistan::cough::) while in a state of peace with that ally.

As for the U.N. questions (Geek Points available if you remember the exact article number), Article 51 of the U.N. Charter reserves to members the rights of individual and collective self-defense. In short, the creators of the charter recognized that the U.N. may not always act in a situation which merits action. (You may shrug your shoulders, raise your eyebrows, and grin a little here to indicate how pleased you are at their foresight.) So, no. We do not need U.N. permission to defend ourselves.

Leftist Commentary #2: Wait. There’s been no official declaration of war by Congress. That means that we cannot be taking and holding POWs like you talked about the other day.

Your Answer: There is no such thing as an “official” declaration of war. (It’s distasteful, but use air quotes if you must; I know how some people cannot resist.) And even if there was, it wouldn’t matter. For you see, POWs—and therefore detaining countries—are entitled to their rights under the Geneva Convention (III) regardless of whether the detaining power even recognizes the sovereignty of the opposing power. In fact, the third Geneva Convention goes even further and states that POWs exist when combatants are captured even if a state of war is not recognized by one of the nations.

In other words, international law cares not a whit about “official” declarations of war. All that matters is that combat is taking place and that people are being captured.

(Here you can break off of your stunning knowledge of international law and hit them with some good homebrewed American wisdom.) And while we’re on the topic, there’s no such thing as an “official” declaration of war under domestic law, either. (I usually lay on the heavy snark right about now.) The Constitution gives to Congress the power to "declare War." That's it. Congress can choose whatever means it likes to make such a declaration, including Authorizations for the Use of Military Force.

Simply put, when Congress gives the military permission to fight Iraq, topple its government, and occupy its territory, its declaring war regardless of whether it uses some magic words in the enabling act.

Okay, that’s the end of the Law Lesson for today. Go knock’em dead at the watercooler. Next time: Unlawful Combatants, Fact or Myth.

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posted by xgenghisx at 08:25 PM

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