Tuesday, February 06, 2007

The Watada Case And The Legality Of The Iraq War

Sean Penn is currently in Tacoma as are hundreds of protesters, all here to offer their support for First Lieutenant Ehren Watada who goes on trial today for his refusal to deploy to Iraq with his unit. Watada is charged with missing a movement and conduct unbecoming an officer for his refusal and his public denunciations of President Bush and the war. While a number of enlisted men have refused deployment, Watada is the first officer to do so. Watada will claim that he has the right to refuse an unjust order and that the war is unjust because no weapons of mass destruction -- the primary justification for the invasion -- were ever found. This claim is exceedingly unlikely to hold up.

But it was not Watada's primary defense. His main reason for refusing deployment, which was thrown out of court by the military judge, was the the war is itself illegal. On what grounds could the war be considered illegal? For the war to be illegal, it must violate either national or international law.

The Iraq War is, plain and simple, legal under US law. Of this, there is no dispute. Congress authorized the war, but even if Congress had not done so there war would still have been legal. Congress has made no legislative effort to end the war or even to constrain the president's ability to prosecute it. Thus, the war is legal under US law (except as argued below).

What about international law? Watada's claim, now barred from being presented in court, was that the war violated US commitments under the UN Charter. The UN Charter is a treaty that was formally ratified by the US Senate; under the Supremacy Clause, ratified treaties are part of "the supreme law of the land"; thus, the UN Charter is, along with its restrictions on the use of force, supreme law of the United States and a war launched in violation of the UN Charter is illegal under both international and national law. Under the UN Charter, the use of force against a state is only permissible under two conditions: Authorization by the UN (which has only occurred twice: the Korean War and the first Gulf War), or in self-defense from an imminent attack (as in the case of Israel and the Six-Day War). Since there was no authorization from the UN, and since Iraq did not pose an imminent threat to the US, the invasion is, according to this logic, illegal.

Unfortunately, this argument fails to hold water on several grounds. First, while many analysts are skeptical, the Bush Doctrine conflates the concepts of preventive war with preemptive war, making it possible to argue that the invasion of Iraq was in fact preemptive. Whether or not one agrees with this claim, there is no objective measure of what constitutes an imminent threat. Thus, the argument fails from being too vague.

Second, the legal status of the UN is questionable in and of itself. Law can only be meaningful and enforceable when and where it enforced fairly and consistently, and the UN is far from meeting this standard. States are free to routinely violate their commitments and obligations to the UN with impunity; genocide occurs with little response; and the UN is incapable of implementing its own rules and laws. Law cannot be selective; if the UN fails to uphold its laws on non-proliferation or genocide it cannot expect adhere to other laws, such as those governing the use of force.

Most importantly, however, is the argument that rests on the Supremacy Clause. In order for a ratified treaty to become "the supreme law of the land" it must either be self-executing or must be passed into law by both houses of Congress, and not just ratified by the Senate. A self-executing treaty is one that is clearly intended to replace or supersede existing legislation and thus would need no further implementation by Congress. According to the American Society of International Law:
Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are "self-executing" or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so--sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent--or lack thereof--that the provision become effective as judicially-enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing. A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not.
In order for Watada's claim to hold up, the UN Charter must be seen as self-executing, as there has not been any legislation transferring the war powers of either the president or Congress to the UN. The relevant section of the UN Charter is Chapter VII, the most critical articles of which are:

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41

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. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

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.
That language certainly does not approach the level of specificity present in congressional legislation to make it self-executing. US courts have repeatedly held that the Charter is in fact not self-executing. Thus, absent legislation authorizing its provisions, the Charter cannot be held to supersede existing US constitutional law or legislation and therefore its rules concerning the use of force do not bind the US government.

Watada will go to jail, likely for four years. US military officers cannot decide for themselves when and where they will serve. I am disappointed that the court will not hear the real "meat" of Watada's argument, as it is both interesting and important. But that does not change the fact that Iraq War may have been ill-planned, but is not illegal.

UPDATE (2/24): The Army has refiled charges against Watada, who stands accused of missing deployment and four counts of conduct unbecoming of an officer for his public speeches. The Army has also added two new conduct-unbecoming charges that were dropped as a result of an agreement in the first trial. Watada's lawyer will file a motion to dismiss based on double jeopardy protections.


Gary Anderson said...

The Iraq war is illegal, and the reason it is illegal is that we went to war to claim Iraq oil. You are wasting the time of all your blog readers because your are nibbling at the edges instead of confronting the issue. Bush and Cheney and Rice (a former Chevron director), are lusting for oil and have done so prior to 9/11. They also have given our oil companies, who are running out of reserves, the reserves they need to compete in the world. But in order to gain this advantage, and void all the contracts other countries had with Iraq, the commander and thief had to invade Iraq illegally.

And on top of all this, he used deceptive methods to achieve this goal. He claimed WMDs. He claimed Al Qaeda connections. He claimed he wanted democracy. He claimed it was a crusade, even though the Lord said his kingdom was not of this world, a condemnation of all crusades.

This sleazebag of a president tried it all. And it all will be uncovered.

WeeZie said...

So much for that huh. He is a free man!

Seth Weinberger said...

He's free on a technicality only...and it's not yet clear that the government won't be able to re-try him. Watada's argument has in no way been validated.

WeeZie said...

Double Jeopardy insures that he will not be tried again, at least for refusing military orders. That begs the question, what can be possibly be charged with than?

The Bush Doctrine is "The right of self-defense should be extended in order to authorize preemptive attacks against potential aggressors cutting them off before they are able to launch strikes against the US".

Would you say that a country who doesn't have a nuclear weapon and even if they wanted one, couldn't get one for another five years, fall in this category?

WeeZie said...

On the legality of the war, Article 51 of the U.N. Charter reads "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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."

No WMD's although we were told they existed. Even worse, it was UNDERSTOOD by the people running the war, as well as the UN inspectors such as Scott Ritter, that their WERE NO WMDs. That shoots that argument down.

Article 39 provides three circumstances for the use of force: (1) a threat to peace, (2) a breach of peace and (3) an act of aggression.

U.N. Resolution 1441 didn't authorize the immediate use of force, only the inspections for WMD in Iraq, thus the war was not authorized by Article 39.

Laws are meant to be applied to everyone equally, not to be selected by the hegemon when it chooses that a particular law agrees with its interest.

Iraq was not threatening any one with war, although their was internal repression, the state was not destroying any world peace. The U.S occupation in Iraq breached peace (in Iraq at least), it was a war of aggression because Iraq had no connections to 9/11 and the country was itself crippled with sanctions making it very weak.

In effect, you are saying two things. First, that the U.S didn't break any U.N law and second, that the U.N is ineffective, thus its laws aren't meant to be followed. Well obviously if you believe that the U.N is ineffective, than that means you would say that all its laws, its charter and the like, should not be followed.

Am I correct?

Seth Weinberger said...

First, it's not clear that Double Jeopardy rules will protect Watada from a new trial. The question, which is an esoteric one that I am not qualified to answer, is whether the first trial progressed far enough to constitute a real "trial" that would prevent Watada from being re-tried. The prosecutors are claiming that it did not, and that Watada should be re-tried, and that is the question the court is considering now. We'll have to wait and see....

Second, you're right to claim that "Laws are meant to be applied to everyone equally, not to be selected by the hegemon when it chooses that a particular law agrees with its interest." But that's exactly why international law is less than binding. Did international law enforce its rules on Iraq? No...Iraq was in violation of numerous UN resolutions and yet the UNSC was unwilling to do anything or even threaten the use of force to get compliance. Perhaps if the UN was more willing to back up its laws, Bush would have been willing to wait and let the inspectors continue to scour the country. But the UN rarely, in cases of international security, is capable of enforcing its laws. It is international law that is suspect, not domestic law.

As to the question of the WMDs, please see my earlier post on "Analyzing the WMD Intelligence Failure in Iraq." It is simply incorrect to argue that it was known before the invasion that there were no WMDs.

Gary Anderson said...

Seth, two points. I do not claim to be a scholar. I appreciate your study and effort. But I do believe, and have a sense that the administration had a desire to invade Iraq for oil, then attempted to convince the world, and maybe themselves, that there were wmd. The problem was, Blix said there were none. The fact that there probably were not wmd's is not a reason to invade a country because of oil fever. We did nothing of the sort with N Korea because they had nothing we wanted.

You have been duped, Seth, by a very involved scam.

Second, the destruction of the UN rules on prisoners is another proof to me that we were all duped. The talking points came from Fox, ie directly from the president to badmouth the UN. I support Israel, and the legitimacy of Israel is based upon the UN charter. I believe that it is highly dangerous for us to depreciate that charter.

I think this admin would ignore Israel in a heartbeat because they only care about oil. Condi Rice's comments last week are a proof of that lack of respect for Israel's position.

Also Seth, don't you remember that when we were ready to go into Iraq we were encouraging countries to go in with us and that we would reward those countries with contracts? That smacks of preplaning.

I am not a conspiracy guy, but you wonder if intelligence leading up to 9/11 was ignored by people in the know, hoping that something would happen to give us an excuse to go into Iraq. You wonder about Bush's behavior that day which appeared strange to say the least. Add on to all this the energy meeting that Cheney had with the oil companies that he adamently wanted to be kept secret, while at the same time Rummy was saying that oil did not enter into the plans in Iraq, and it all makes you wonder.

WeeZie said...

First, on the matter of U.N Law, Israel has not accepted one of the hundreds of U.N resolutions in the past 30 years. Israel was set up by the U.N, so is the fact that U.N laws are ineffective mean that Israel is fair game?

Next, you say their was no smoking gun. The Downing Street memo reads "Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record."

Now, is it international law when you start a War and than seek evidence? I always presumed the evidence should justify the War, not the other way around.

Seth Weinberger said...

Gary: You claim not to be a "consipiracy" guy, but your post is nothing but consipiracy theory stuff, plain and simple. The fact that the US planned the invasion of Iraq before invading is proof of nothing; all governments plan for all kinds of situations all the time, and they'd be foolish not to do so. Even if the US had made up its mind to invade Iraq long before, that still doesn't make the invasion ilegal. It's true Blix found no WMDs. But the inspectors had only visited approximately 25-30% of the suspected WMD sites...and Hussein was behaving to all accounts as someone trying to hide a WMD program and evade inspections. Please go read my post on Jervis' assessment of the WMD intel failure. Jervis is no fan of the Bush Administration, and is one of the most respected and influential political scientists in the US. In his assessment, and he was given total access to all the intel used by the CIA prior to the invasion, it is not reasonable, given the available intel, for the CIA to have concluded anything other than Iraq possessed WMD (although he does believe the CIA overstated the confidence levels).

WeeZie said...

the war was also a violation of the 1970 Declaration on Principles of International Law Conserning Friendly Relations and Co-operation Among States in Accordance With the Charter of the U.N.

Furthermore, "bunker busters" violates EVERY non proliferation treaty that ever exists.

Seth Weinberger said...

Sorry, but there's not a single arms control treaty or non-proliferation treaty that prohibits bunker busters, unless you're speaking nuclear BBs, which the US doesn't have. Furthermore, I fail to see how that point is at all relevant.

Gary Anderson said...

Seth, if what you say is true, why did Rummy say oil was not an issue? He lied. It was, and is an issue. It is interesting that Blair is pulling out now that Shell and BP got what they wanted in the Iraq contracts.

Seth, you didn't respond to the secret energy meeting with Cheney and the oil companies. We now know that this meeting was about Iraq contracts. This was central to the neocon plan.

And it is illegal to invade another country to pillage their resources. And it was done in a very subtle way, getting 30 year contracts that were more favorable than any of the contracts that were voided by the Bush admin. If Bush wanted to clear this up and maintain any integrety, Seth, he would have allowed the contracts that were in place to REMAIN in place.

How can you say with a straight face that this guy did right by voiding existing legal contracts? This is a violation of international law and makes any soldier involved a war criminal. They were fooled. But they are still war criminals. And Bush did this too them. The commander and thief.

Gary Anderson said...

One more point Seth, I am not a conspiracy guy. A conspiracy guy would say that the Bush admin planned or cooperated with the hijackers. I do not believe that. But it does appear that evidence of their activities reached the highest places in government and they looked the other way.

But it doesn't matter. It is FACT that Bush voided the existing oil contracts to help those companies that were located in the invading countries. No amount of SPIN Seth will ever change that. History will judge harshly on that fact. Bush will be seen as the lawbreaking president. And Cheney will be the bad footnote.

Gary Anderson said...

Seth I am pinning you on the above post.

If you want to get up off the mat please respond. If you cannot come up with a good reason why Bush would void LEGAL contracts in Iraq just because he was determined to get rid of Saddam then you cannot any longer support the commander and thief. You will need to change your whole approach. I am waiting. Its YOUR blog.

Seth Weinberger said...


Learn to be civil. This is an academic discourse, not a Screaming Heads talk show. If you can't conduct yourself in an appropriate manner, I'll simply delete your comments.

Seth Weinberger said...


Can you provide any facts or citations for your claims? A simple Google search tells us that while all old oil deals made with Saddam's regime were voided, many different companies, including Russian firms, have been awarded oil contracts.

Gary Anderson said...

Sorry for the enthusiasm, but a young soldier is fighting for his freedom while Bush plunders oil and while our press remains silent. BTW when you say these companies were awarded contracts, they were droppings compared to the original as seen here: "

The Bush administration's proposed war in Iraq is testing how much regional powers across the globe are willing to lose in their stand against further U.S. influence. As the talk of war in Iraq was still building late last year, France and Russia spoke out critically against the idea. They were especially concerned with the U.S. furthering its influence in the Middle East via war in Iraq and the creation of permanent military facilities there. France and Russia also knew that any attack on Iraq would put their lucrative oil contracts with the Hussein regime in jeopardy.

Yet at the beginning of 2003, the United States has ignored opposition and instead intensified their war plans. Washington has warned Russia and France that if they do not support or at least remain neutral in a U.S. intervention in Iraq, their oil contracts with the Hussein regime may be cancelled and redistributed in part to U.S. companies. Russia, for example, has been granted tremendous contracts by the current Iraqi government. LUKoil, the largest Russian oil company, has signed a multi-billion dollar oil production deal with Saddam Hussein, giving it a majority stake in West Qurna, a gigantic Iraqi oil field holding 11 billion barrels of oil. TotalFinaElf, the French oil giant, was granted a deal giving it rights to Iraq's largest oil field, Majnoon, holding 30 billion barrels of oil. However, these deals will not become active until the U.N. sanctions on Iraq are lifted."

Here is the link: http://www.pinr.com/report.php?ac=view_report&report_id=34&language_id=1

Gary Anderson said...

Be sure to cut and paste and read the entire article. It clearly shows that oil was one of two major objectives of the Bush admin. That alone, IMO makes him a war criminal. He invaded a sovereign nation to free up the oil. Plain and simple.

How can you suppport this violation of international law, Seth, when Israel exists because of UN rules, because the Nazis were prosecuted because of international rules, and because this is the America we knew growing up, unless you are just in your twenties.

I cannot imagine anyone thinking that America is in the right here. I am not rooting for Bush. That makes me a patriot and him I-don't-know-what.

Gary Anderson said...

Here is another great link that bares the dirty details: http://www.globalpolicy.org/security/oil/2002/12heart.htm

looks like all the oil companies, worldwide, are lusting for the treasure of Iraq. Only the US had the power. Sad, very sad. We probably want Iran oil, as we are excluded. See the article in the next to above post about that.

Gary Anderson said...

The following is a link that has a series of links describing the currency aspect of the Iraq war, that the war is essentially an oil currency war. The dollar needs to be used for petrodollars in order to maintain its value. I do believe that this little scheme is threatened by the housing bubble, but that may not be enough to unseat the value of the dollar if America can control enough of the world's oil. Again, my view is that this is wrong, and against historical international law, but this oil dollar grab appears to be real as the link shows: http://socrates.berkeley.edu/~pdscott/iraq.html

Gary Anderson said...

This link shows the relationship between foreign policy and the federal reserve. The fed's greatest fear is that another currency will replace the dollar in world trade and petro trade. I would add that this is the same fed that rigged the ponzi house bubble scheme.

It is interesting that this ponzi scheme kept the economy going and the dollar strong until this adventurism in Iraq and probably Iran reaps the wealth. In effect, the housebubble was a using of poor unsuspecting American citizens by unscrupulous bankers, with the final effect being a proping up of the dollar after the 2000 Nasdaq crash.

Just as George Bush sent soldiers to their deaths to prop up the dollar, the fed sent millions of citizens to their economic destruction through "exotic" bank loans, in order to prop up the dollar, and all this happened at exactly the same time!


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