_______________________________________________________________
 |
 |  http://legal.lege.net/new_world_order/
 |  http://www.eurolegal.org/uscivilrightspage4.htm (dead link)
 |  [ Also see:  http://www.eurolegal.org/useur/bbnewworld.htm ]
 |
 |
 |  The "New World Order" in Practice
 |  The Afghan War, the "War" on Terrorism, the War on Iraq
 |
 |
 |  [Note: Last Update to this page: 08.30 GMT 18 March 2003]
 |  (Though web-links re-viewed & updated on 06 October 2003.)
 |
 |
 |  Introduction - Misuse of Language Results in Confusion
 |
 |  In an endeavour to react to the tragedy of the twin towers,
 |  a lot of imprecise language has been used by people in both
 |  the Bush Administration and the Blair Government.
 |
 |  This language has served to inject unnecessary confusion
 |  into an already confusing situation.  A degree of loose talk
 |  may be acceptable in a political context.  Politicians do
 |  talk about a "war on drug traffickers" or a "war on child
 |  pornographers" when what they really mean is a concerted
 |  effort by law enforcement agencies to stamp out a particular
 |  criminal practice.
 |
 |  Such expressions should be understood for what they are: 
 |  political hyperbole to impress on electors their commitment
 |  to the funding and encouragement of the law enforcement
 |  effort, just as to call an official a "Drugs Czar" may mean
 |  that the person is invested with a lot of power but not the
 |  powers of an autocrat.
 |
 |  By talking of a "war" in relation to terrorists, one
 |  introduces into the debate all sorts of unnecessary
 |  connotations and issues which really ought to be of no
 |  relevance.
 |
 |  In the legal sense, one cannot go to war against a gang of
 |  criminals, but only against a sovereign state.
 |
 |  Thus, the Geneva Conventions are irrelevant in the case of
 |  persons who are arrested on suspicion having committed
 |  criminal acts, but equally a legally misconceived
 |  "declaration of war" against a non-sovereign entity is not
 |  grounds for emasculating the legal protections afforded to
 |  suspected criminals in a civilised society.
 |
 |  A law enforcement agency which overreacts to criminal
 |  conduct by throwing away the rule book itself becomes
 |  criminal.  The same is true at all levels of the executive
 |  in a country under the rule of law.  When a gang of
 |  policemen decide to become at one and the same time
 |  arresting officers, juries, judges and executioners in order
 |  to tackle a crime wave, they themselves become murderers.
 |
 |  When serious violations of the rights of a suspected
 |  criminal are sanctioned by the state itself, that state puts
 |  itself beyond the bounds of civilised behaviour and such
 |  state-sanctioned misbehaviour attracts penalties - for
 |  example, right thinking states will in such circumstances
 |  refuse extradition of suspects.
 |
 |  Likewise, upon examination a "coalition of the willing" can
 |  be seen to be no more than a gang of nation state thugs
 |  bypassing the protections established by international law
 |  to prevent nations using force against other nations and
 |  international law will in such circumtances permit the
 |  prosecution of the high officials who direct or implement
 |  such unlawful conduct.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  When is a War Not a War
 |
 |  In ascertaining what lawyers mean by "war", as good a place
 |  to start as any is with the web site of the Constitution
 |  Society [ http://www.constitution.org/ ] which has on line a
 |  copy of Vattel's Law of Nations edited by Chitty and
 |  commented by Ingraham as published in the United States in
 |  1883 by T & JW Johnson & Co of Philadelphia.
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  BOOK III.
 |
 |  OF WAR
 |
 |  CHAP. I.  - OF WAR,  --  ITS DIFFERENT KINDS  --  AND THE
 |  RIGHT OF MAKING WAR.
 |
 |  § 1. Definition of war.(136)
 |
 |  WAR is that state in which we prosecute our right by force.
 |  We also understand, by this term, the act itself, or the
 |  manner of prosecuting our right by force: but it is more
 |  conformable to general usage, and more proper in a treatise
 |  on the law of war, to understand this term in the sense we
 |  have annexed to it.
 |
 |  § 2. Public war.(136)
 |
 |  Public war is that which takes place between nations or
 |  sovereigns, and which is carried on in the name of the
 |  public power, and by its order. This is the war we are here
 |  to consider:  --  private war, or that which is carried on
 |  between private individuals, belongs to the law of nature
 |  properly so called.
 |
 |  § 3. Right of making war.(136)
 |
 |  In treating of the right to security (Book II. Chap. IV.),
 |  we have shown that nature gives men a right to employ force,
 |  when it is necessary for their defence, and for the
 |  preservation of their rights. This principle is generally
 |  acknowledged: reason demonstrates it; and nature herself has
 |  engraved it on the heart of man. Some fanatics indeed,
 |  taking in a literal sense the moderation recommended in the
 |  gospel, have adopted the strange fancy of suffering
 |  themselves to be massacred or plundered, rather than oppose
 |  force to violence. But we need not fear that this error will
 |  make any great progress. The generality of mankind will, of
 |  themselves, guard against its contagion  --  happy, if they
 |  as well knew how to keep within the just bounds which nature
 |  has set to a right that is granted only through necessity!
 |  To mark those just bounds,  --  and, by the rules of
 |  justice, equity, and humanity, to moderate the exercise of
 |  that harsh, though too often necessary right  --  is the
 |  intention of this third book.
 |
 |  § 4. It belongs only to the sovereign power.(137)
 |
 |  As nature has given men no right to employ force, unless
 |  when it becomes necessary for self defence and the
 |  preservation of their rights (Book II. § 49, &c.), the
 |  inference is manifest, that, since the establishment of
 |  political societies, a right, so dangerous in its exercise,
 |  no longer remains with private persons except in those
 |  encounters where society cannot protect or defend them. In
 |  the bosom of society, the public authority decides all the
 |  disputes of the citizens, represses violence, and checks
 |  every attempt to do ourselves justice with our own hands. If
 |  a private person intends to prosecute his right against the
 |  subject of a foreign power, he may apply to the sovereign of
 |  his adversary, or to the magistrates invested with the
 |  public authority: and if he is denied justice by them, he
 |  must have recourse to his own sovereign, who is obliged to
 |  protect him. It would be too dangerous to allow every
 |  citizen the liberty of doing himself justice against
 |  foreigners; as, in that case, there would not be a single
 |  member of the state who might not involve it in war. And how
 |  could peace be preserved between nations, if it were in the
 |  power of every private individual to disturb it? A right of
 |  so momentous a nature,  -- the right of judging whether the
 |  nation has real grounds of complaint, whether she is
 |  authorized to employ force, and justifiable in taking up
 |  arms, whether prudence will admit of such a step, and
 |  whether the welfare of the state requires it,  --  that
 |  right, I say, can belong only to the body of the nation, or
 |  to the sovereign, her representative. It is doubtless one of
 |  those rights, without which there can be no salutary
 |  government, and which are therefore called rights of majesty
 |  (Book I. § 45).
 |
 |  Thus the sovereign power alone is possessed of authority to
 |  make war. But, as the different rights which constitute this
 |  power, originally resident in the body of the nation, may be
 |  separated or limited according to the will of the nation
 |  (Book I. § 31 and 45), it is from the particular
 |  constitution of each state, that we are to learn where the
 |  power resides, that is authorized to make war in the name of
 |  the society at large. The kings of England, whose power is
 |  in other respects so limited, have the right of making war
 |  and peace.  Those of Sweden have lost it. The brilliant but
 |  ruinous exploits of Charles XII. sufficiently warranted the
 |  states of that kingdom to reserve to themselves a right of
 |  such importance to their safety.
 |
 |  (link to text
 |  [ http://www.constitution.org/vattel/vattel_03.htm ]) İ 1999
 |  The Constitution Society
 |
 |  |__________________________________________________________|
 |
 |
 |  From this one gets the principle that a state of war may
 |  only exist between sovereign states.  Thus, a state of war
 |  could have existed between the United States of America and
 |  its allies and the sovereign state of Afghanistan.  No state
 |  of war in the legal sense is capable of existing between the
 |  United State of America and terrorists because terrorists do
 |  not possess any sovereignty.
 |
 |  Wars are supposed to be declared.  In the latter half of the
 |  19th Century much diplomatic effort was expended on
 |  codifying "laws of war" with the aim of mitigating so far as
 |  possible the barbarity of war.  The Avalon Project at Yale
 |  University has a collection of the relevant conventions and
 |  treaties [
 |  http://www.yale.edu/lawweb/avalon/lawofwar/lawwar.htm ]. The
 |  Hague Convention of 1807 (in force as of 1910) on the
 |  Opening of Hostilities provided:-
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  Article 1
 |
 |  The Contracting Powers recognize that hostilities between
 |  themselves must not commence without previous and explicit
 |  warning, in the form either of a reasoned declaration of war
 |  or of an ultimatum with conditional declaration of war.
 |
 |  Article 2
 |
 |  The existence of a state of war must be notified to the
 |  neutral Powers without delay, and shall not take effect in
 |  regard to them until after the receipt of a notification,
 |  which may, however, be given by telegraph.
 |
 |  Neutral Powers, nevertheless, cannot rely on the absence of
 |  notification if it is clearly established that they were in
 |  fact aware of the existence of a state of war.
 |
 |  Article 3
 |
 |  Article 1 of the present Convention shall take effect in
 |  case of war between two or more of the Contracting Powers.
 |
 |  Article 2 is binding as between a belligerent Power which is
 |  a party to the Convention and neutral Powers which are also
 |  parties to the Convention.
 |
 |  (link to text [
 |  http://www.yale.edu/lawweb/avalon/lawofwar/hague03.htm ])
 |
 |  |__________________________________________________________|
 |
 |
 |  This text merely codifies between the contracting parties
 |  what was by then the universal custom of states.  However,
 |  formal ultimata and conditional declarations of war, or
 |  declarations of war have now gone very much out of fashion. 
 |  Perhaps the last examples were those relating to World War
 |  II.  For example, the United Kingdom gave an ultimatum to
 |  Germany delivered on 3rd September 1939 and, it having
 |  expired without satisfactory response, a note was handed to
 |  the German Chargé d'Affaires in London at 11.15 am on 4th
 |  September 1939 declaring that a state of war existed.
 |
 |  In the United States the power to declare war is vested in
 |  the Congress and the World War II Declarations are
 |  reproduced by the Avalon Project US Declarations of War page
 |  [ http://www.yale.edu/lawweb/avalon/wwii/dec/decmenu.htm ].
 |
 |
 |  Formal declarations of war have become unfashionable largely
 |  because the signatories of the United Nations Charter are
 |  not supposed to go around declaring war on other states, but
 |  to bring their disputes before the Security Council which
 |  may in an appropriate case authorise the use of force. - see
 |  Chapters VI and VII of the Charter of the United Nations. [
 |  http://www.un.org/aboutun/charter/ ]
 |
 |  In fact, because of the provisions of the UN Charter, there
 |  has been no formal declaration of war by any major power for
 |  more than 50 years.
 |
 |
 |  Nowadays, there is much use of euphemism to avoid calling a
 |  spade a spade.  The "Korean War" was a Chapter VII Action
 |  under United Nations auspices.  The "Vietnam War" was
 |  technically military assistance to the friendly foreign
 |  government of South Vietnam, etc.  The US bombings of Laos
 |  and Cambodia, or its mining of the ports of Nicaragua were
 |  (as we shall see) purely and simply unlawful as a matter of
 |  international law (as was the British, French and Israeli
 |  invasion of Suez in 1956).
 |
 |
 |  In relation to Suez (which is a good precedent for Iraq) it
 |  is worth recalling the position of the then US
 |  Administration which had the good fortune to be headed by
 |  the late President Dwight D. Eisenhower.  When in 1956,
 |  France, Israel and the United Kingdom sent troops to the
 |  Suez Canal without the authority of the United Nations,
 |  President Eisenhower addressed the American people.  He said
 |  this:-
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  President Dwight D. Eisenhower
 |
 |  Extract from an Address to the American People
 |
 |  31st October 1956
 |
 |  On Sunday [October 29] the Israeli Government ordered total
 |  mobilization. On Monday, their armed forces penetrated
 |  deeply into Egypt and to the vicinity of the Suez Canal,
 |  nearly one hundred miles away. And on Tuesday, the British
 |  and French Governments delivered a 12-hour ultimatum to
 |  Israel and Egypt -- now followed up by armed attack against
 |  Egypt.  The United States was not consulted in any way about
 |  any phase of these actions. Nor were we informed of them in
 |  advance.
 |
 |  As it is the manifest right of any of these nations to take
 |  such decisions and actions, it is likewise our right -- if
 |  our judgment so dictates -- to dissent. We believe these
 |  actions to have been taken in error. For we do not accept
 |  the use of force as a wise or proper instrument for the
 |  settlement of international disputes.
 |
 |  To say this -- in this particular instance -- is in no way
 |  to minimize our friendship with these nations -- nor our
 |  determination to maintain those friendships.  And we are
 |  fully aware of the grave anxieties of Israel, of Britain and
 |  of France. We know that they have been subjected to grave
 |  and repeated provocations.
 |
 |  The present fact, nonetheless, seems clear: the action taken
 |  can scarcely be reconciled with the principles and purposes
 |  of the United Nations to which we have all subscribed. And,
 |  beyond this, we are forced to doubt that resort to force and
 |  war will for long serve the permanent interest of the
 |  attacking nations.
 |
 |  Now -- we must look to the future.
 |
 |  In the circumstances I have described, there will be no
 |  United States involvement in these present hostilities. I
 |  therefore have no plan to call the Congress in Special
 |  Session. Of course, we shall continue to keep in contact
 |  with Congressional leaders of both parties.
 |
 |  I assure you, your government will remain alert to every
 |  possibility of this situation, and keep in close contact and
 |  coordination with the Legislative Branch of this government.
 |
 |  At the same time it is -- and it will remain -- the
 |  dedicated purpose of your government to do all in its power
 |  to localize the fighting and to end the conflict.
 |
 |  We took our first measure in this action yesterday. We went
 |  to the United Nations with a request that the forces of
 |  Israel return to their own land and that hostilities in the
 |  area be brought to a close. This proposal was not adopted 
 |  -- because it was vetoed by Great Britain and by France.
 |
 |  The processes of the United Nations, however, are not
 |  exhausted. It is our hope and intent that this matter will
 |  be brought before the United Nations General Assembly. There
 |  -- with no veto operating -- the opinion of the world can be
 |  brought to bear in our quest for a just end to this
 |  tormenting problem. In the past the United Nations has
 |  proved able to find a way to end bloodshed. We believe it
 |  can and that it will do so again.
 |
 |  My fellow citizens, as I review the march of world events in
 |  recent years, I am ever more deeply convinced that the
 |  processes of the United Nations represents the soundest hope
 |  for peace in the world. For this very reason, I believe that
 |  the processes of the United Nations need further to be
 |  developed and strengthened. I speak particularly of
 |  increasing its ability to secure justice under international
 |  law,
 |
 |  In all the recent troubles in the Middle East, there have
 |  indeed been injustices suffered by all nations involved. But
 |  I do not believe that another instrument of injustice -- war
 |  -- is the remedy for these wrongs.
 |
 |  There can be no peace -- without law. And there can be no
 |  law -- if we were to invoke one code of international
 |  conduct for those who oppose us -- and another for our
 |  friends.
 |
 |  (link to full text [
 |  http://www.us-israel.org/jsource/US-Israel/ike56.html ])
 |
 |  |__________________________________________________________|
 |
 |
 |  We would say that those were wise words from a political
 |  leader who, as a Supreme Commander of Allied Forces in World
 |  War II and as NATO's SACEUR in the immediate post-war
 |  period, had good reason to know the potential consequences
 |  of ill-advised war making.
 |
 |  Regrettably, the commitment of the Bush Administration and
 |  "Poodle" Blair's Government to the Charter of the United
 |  Nations is now in serious doubt.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  The United Nations Charter
 |
 |  The fundamental basis on which the United Nations is
 |  organised is that national states are sovereign within their
 |  own borders.  One state must not interfere by military force
 |  within the territory of another state for a matter falling
 |  within the sovereign competence of that state.
 |
 |  It is unquestionable that this national sovereignty
 |  principle leaves open the possibility of horrendous human
 |  rights abuses within the borders of nation states without
 |  there being any remedy.  No one in their right mind would
 |  seek to argue that the United Nations is the perfect vehicle
 |  for resolution of such issues.
 |
 |  The United Nations was the product of World War II and UN
 |  history since World War II is littered with examples of evil
 |  despotic regimes which have been tolerated by the UN.
 |
 |  The doctrine of non-interference in the internal affairs of
 |  nation states is difficult to stomach when one considers the
 |  human rights abuses which have taken place inside some
 |  states, both during the cold war and since the cold war
 |  ended.  One can point to the abuses of Stalin in Russia, of
 |  Mao in China, of Saddam Hussein in Iraq, of Milosevic in
 |  former Yugoslavia.
 |
 |  There have been other perpetrators of human rights abuses
 |  albeit on a lesser scale.  None of the former colonial
 |  powers has been entirely free of blame for human rights
 |  abuses committed during the decolonisation process.  One
 |  could also point to the activities of the 20th Century's
 |  principal neo-colonial power - the USA - in Cambodia, Laos,
 |  Chile, Honduras and Nicaragua as well as of the USA's
 |  puppet, Israel, in the occupied Palestinian territories.
 |
 |  In fact, since the end of the cold war, the ability of the
 |  United Nations to deal with problems affecting world peace
 |  has much improved.  As Richard Butler points out in an
 |  article on the issue since the end of the Cold War the UN
 |  Security Council has met more frequently and achieved much
 |  more. Only seven vetoes were cast in the post-Cold War
 |  period, versus 240 in the first 45 years of UN life. Twenty
 |  peacekeeping operations were mandated, more than the total
 |  for all the preceding years.
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  Bewitched, Bothered, and Bewildered [
 |  http://www.foreignpolicy2000.org/library/issuebriefs/readingnotes/fa_butler.html ,
 |  http://www.foreignaffairs.org/19990901facomment1001/richard-butler/bewitched-bothered-and-bewildered-repairing-the-security-council.html
 |  ], an article by Richard Butler published in the
 |  September/October 1999 Foreign Affairs magazine gives a good
 |  analysis of the problem and makes sensible suggestions for
 |  improvement.
 |
 |  |__________________________________________________________|
 |
 |
 |  However, the principle on which the United Nations operates,
 |  is that sovereign states cannot be invaded to achieve regime
 |  change unless they pose a threat to world peace - and even
 |  then only with the authority of the Security Council and
 |  under the direction of the Security Council.
 |
 |
 |
 |  Under the UN Charter, all Members of the United Nations
 |  agree to accept and carry out the decisions of the Security
 |  Council.  The UN Security Council has 15 members-- five
 |  permanent members and 10 elected by the General Assembly for
 |  two-year terms. Each Council member has one vote. Decisions
 |  on procedural matters are made by an affirmative vote of at
 |  least nine of the 15 members. Decisions on substantive
 |  matters require nine votes, including the concurring (or at
 |  least abstaining) votes of each of the five permanent
 |  members. This is the rule of "great Power unanimity", often
 |  referred to as the "veto" power.
 |
 |  While other organs of the United Nations may make
 |  recommendations to Governments, the Security Council alone
 |  has the power to take decisions which Member States are
 |  obliged under the Charter to carry out.
 |
 |  In order to appreciate the legal position, it is necessary
 |  to consider Chapter VII of the Charter of the United
 |  Nations. [ http://www.un.org/aboutun/charter/chapter7.htm
 |  ]
 |
 |
 |  Article 42 of Chapter VII of the Charter authorises the
 |  Security Council to decide to use force to secure compliance
 |  with its will.
 |
 |
 |  Article 46 provides that plans for the use of force are to
 |  be drawn up by the Security Council with the assistance of
 |  its Military Staff.
 |
 |
 |  In the discussions which preceded the passing of the latest
 |  Iraq Security Council Resolution, France, Russia and others
 |  argued that the Charter of the United Nations vests these
 |  very important powers in the Security Council and contains
 |  no provision for the Security Council to delegate the
 |  exercise of these powers.  However, before considering
 |  further the Iraq position, it may be helpful to look at the
 |  legal position of the Al-Quaida terrorists and at the
 |  legality of the US Intervention in Afghanistan.
 |
 |  It is thus the case that Resolution 1441 does not of itself
 |  authorise the use of force by any state against Iraq.  That
 |  requires a resolution by the Security Council pursuant to
 |  Article 42 and plans pursuant to Article 46.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  Terrorist Acts of 11th September 2001 an Act of War ?
 |
 |  President Bush was in legal error when he proclaimed the
 |  events of 11th September 2001 as "an act of war".  Of
 |  course, in the loose language of politicians, he can be
 |  excused, given the horror of the event.
 |
 |  But the law requires precise definitions and the US Criminal
 |  Code at 18 USC 2331(4) carefully delimits an "act of war" so
 |  as to distinguish it from terrorism as:-
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  Any act occurring in the course of:
 |
 |  a.  a declared war;
 |
 |  b.  armed conflict, whether or not war has been declared,
 |      between two or more nations; or
 |
 |  c.  armed conflict between military forces of any origin.
 |
 |  |__________________________________________________________|
 |
 |
 |  This is useful, because it clearly defines the proper
 |  characterisations of the Al-Quai'da terrorists who launched
 |  the attacks of 11th September 2001.  They are not
 |  belligerants of a sovereign state.  They are common
 |  criminals, as are those who have aided and abetted them
 |  before or after the event.
 |
 |  As a matter both of the domestic law of the United States,
 |  of the United Kingdom and of public international law there
 |  cannot be a "war on terrorism".  War can only be against a
 |  sovereign state.
 |
 |  Therefore, Al Quai'da terrorists, or persons suspected of
 |  being terrorists, do not in our view properly benefit from
 |  any of the protections which might avail armed combatants of
 |  a sovereign state, regular or irregular, whether in US
 |  domestic law, or the domestic laws of any other country, or
 |  or as a matter of public or private international law.
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  The Crimes of War Project [
 |  http://www.crimesofwar.org/expert/expert-main.html ] - This
 |  website has some useful material on the subjects discussed
 |  on this page -in particular some useful expert contributions
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  Legality of US Intervention in Afghanistan
 |
 |  Was the United States military intervention in Afghanistan
 |  lawful as a matter of international law ?  Professor Robert
 |  Turner, who is apparently "Associate Director of the Center
 |  for National Security Law at the University of Virginia
 |  School of Law, former Charles H. Stockton Professor of
 |  International Law at the Naval War College and and former
 |  three-term chairman of the ABA Standing Committee on Law and
 |  National Security" asserted on the Jurist Web Site [
 |  http://jurist.law.pitt.edu/ ] that it was:-
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  INTERNATIONAL LAW AND THE USE OF FORCE IN RESPONSE TO THE
 |  WORLD TRADE CENTER AND PENTAGON ATTACKS
 |
 |  Professor Robert F. Turner - 8th October 2001
 |
 |  Did the terrorist attacks against the World Trade Center and
 |  the Pentagon constitute ``acts of War'' permitting the
 |  United States to use lethal force beyond its borders? The
 |  wording is archaic, as formalities of ``War'' largely lapsed
 |  more than half-a-century ago when the initiation of the kind
 |  of aggressive hostilities traditionally associated with
 |  declarations of War were outlawed. No country has clearly
 |  ``declared War'' in more than fifty years, and more
 |  sophisticated scholars today speak of the ``Law of Armed
 |  Conflict'' rather than the ``Law of War.''
 |
 |  Nevertheless, the underlying issue remains: May the United
 |  States resort to the use of lethal force beyond its borders
 |  in response to these horrific attacks; and, if so, how much
 |  force and against what targets? The clear answer to the
 |  first question is a resounding YES, but the second requires
 |  some elaboration.
 |
 |  International law outlaws the threat or use of lethal force
 |  by one sovereign state against another, with two clear
 |  exceptions. The UN Security Council may authorize states to
 |  use force, and states have an inherent right to defend
 |  themselves against unlawful uses of force and to aid other
 |  victims of aggression seeking help in collective
 |  self-defense. Such uses of lethal force must be necessary in
 |  the sense that effective peaceful alternatives are not
 |  available; and they must be proportional in the sense that
 |  force greatly excessive to that necessary to protect the
 |  state's lawful defensive interests is not permitted. Beyond
 |  that, international law also imposes constraints upon
 |  weapons and targets (thus, biological weapons are unlawful
 |  and hospitals may not be targeted unless used for military
 |  purposes, such as to house an anti-aircraft gun).
 |
 |  If the evidence shows that any country intentionally aided
 |  or abetted the terrorists, the United States and its allies
 |  may use necessary and proportional lethal force against
 |  those states to bring an end to such aid. Pirates and other
 |  non-state actors who engage in terrorism have minimal
 |  protection under international law (for example, they may
 |  not be tortured), and bin Laden is already a lawful target
 |  because of his past acts of terrorism and his public threats
 |  to attack Americans at every opportunity. I would add that
 |  the use of lethal force against bin Laden as a measure of
 |  self-defense would not be ``murder,'' and thus, by
 |  definition, could not be ``assassination.''
 |
 |  If (as has been claimed by the US and UK governments) bin
 |  Laden masterminded the attacks on New York and Washington,
 |  Afghanistan is in breach of its state responsibility to take
 |  reasonable measures to prevent its territory from being used
 |  to launch attacks against other states. The United States
 |  and its allies thus have a legal right to violate
 |  Afghanistan's territorial integrity to destroy bin Laden and
 |  related terrorist targets. If the Taliban elects to join
 |  forces with bin Laden, it, too, becomes a lawful target. In
 |  that event, the Security Council may eventually wish to
 |  consider the option of authorizing the establishment of a UN
 |  trusteeship for Afghanistan to promote relief efforts to
 |  avoid massive starvation and to set the stage for the
 |  transfer of power to an elected government willing to live
 |  in peace with the world.
 |
 |  (link to text [
 |  http://jurist.law.pitt.edu/forum/forumnew34.htm ])
 |
 |  |__________________________________________________________|
 |
 |
 |  Unfortunately, this was just a brief comment on a web site
 |  and the learned Professor did not cite any precedents in
 |  support of his assertions, so one may have to look elsewhere
 |  for an answer.  In the first place the first two paragraphs
 |  appear to elide several issues.
 |
 |  One can begin by considering what what the United States of
 |  America was seeking to do with the use of force within the
 |  territory of a foreign sovereign state.
 |
 |  Insofar as the United States was engaged in hostilities
 |  against the state of Afghanistan for the purpose of
 |  overthrowing its de jure or de facto government, the United
 |  States of America was conducting a war in that it was a
 |  sovereign state conducting armed hostilities against another
 |  state.  It matters not for international law purposes that
 |  no war against Afghanistan was declared by Congress.
 |
 |  As a matter of public international law, the United States
 |  is bound by the United Nations Charter.  It may not
 |  accordingly commence hostilities against another sovereign
 |  state.  It may only engage in offensive military action
 |  against the state if mandated to do so by authorising
 |  resolutions of the Security Council under Articles 42-48 of
 |  the Charter.  That was not the case here.
 |
 |  Thus, the US war against the state of Afghanistan without UN
 |  authority was unlawful unless justified under Article 51 of
 |  the United Nations Charter.
 |
 |  Article 51 proclaims the "right of self-defence":  "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. Measures taken by Members
 |  in the exercise of this right of self-defence 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."
 |
 |  Note that the right is one of "...defence if an armed attack
 |  occurs, until the Security Council has taken measures.." and
 |  for that purpose the defending state has to report the
 |  exercise of the right to the Security Council immediately.
 |
 |  The definitive clarification of the scope of Article 51 is
 |  provided by the Judgmement of the International Court of
 |  Justice in Case No 70 of 28th June 1986 - Nicaragua -v-
 |  United States of America [
 |  http://legal.lege.net/images/pdf/icj_19860627.pdf
 |  ] [PDF format 137 pages].  This is a case with which several
 |  present officials of the Bush Administration should be
 |  thoroughly familiar, given their involvement in the subject
 |  matter of the case.  In its Judgment the Court held:-
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  "Whether self-defence be individual or collective, it can
 |  only be exercised in response to an 'armed attack'. In view
 |  of the court, this is to be understood as meaning not merely
 |  action by regular armed forces across an international
 |  frontier but also the sending by a state of armed bands on
 |  to the territory of another state if such an operation,
 |  because of its scale and extent, would have been classified
 |  as an armed attack had it been carried out by regular armed
 |  forces."
 |
 |  |__________________________________________________________|
 |
 |
 |  There is absolutely no evidence that the Government of
 |  Afghanistan sent the hijackers to the United States.  Nor do
 |  we think that any Court would hold that a criminal act of
 |  armed hijacking and murder conducted by a small number of
 |  terrorists (however horrific the consequences) could in law
 |  be equated to an armed attack by regular armed forces.  The
 |  events of 11th September 2001 do not therefore constitute an
 |  "armed attack" by Afghanistan for the purposes of Article
 |  51.
 |
 |  Two other important findings were made by the International
 |  Court of Justice which are relevant.
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  "263.  The finding of the United States Congress also
 |  expressed the view that the Nicaraguan Government had taken
 |  "significant steps towards establishing a totalitarian
 |  Communist dictatorship".  However the regime in Nicaragua be
 |  defined, adhrence by a State to any particular doctrine does
 |  not constitute a violation of customary international law;
 |  to hold otherwise would make nonsense of the fundamental
 |  principle of State sovereignty, on which the whole of
 |  international law rests, and the freedom of choice of the
 |  political, social, economic and cultural system of a State. 
 |  Consequently, Nicaragua's domestic policy options, even
 |  assuming that they correspond to the description of them by
 |  the Congress finding, cannot justify on the legal plane the
 |  various actions of the Respondent complained of.  The Court
 |  cannot contemplate the creation of a new rule opening up a
 |  right of intervention by one State against another on the
 |  ground that the latter has opted for some particular
 |  ideology or political system".
 |
 |  |__________________________________________________________|
 |
 |
 |  Seeking regime change on the basis that you do not like the
 |  ideology of another state is not justifiable in
 |  international law.  The Court also considered allegations
 |  that Nicaragua was violating human rights and held:-
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  "268.  In any event, while the United States might form its
 |  own appraisal of the situation as to respect for human
 |  rights in Nicaragua, the use of force could not be the
 |  appropriate method to monitor or ensure such respect.  With
 |  regard to the steps actually taken, the protection of human
 |  rights, a strictly humanitarian objective, cannot be
 |  compatible with the mining of ports, the destruction of oil
 |  installations, or again with the training, arming and
 |  equipping of the contras.  The Court concludes that the
 |  argument derived from the preservation of human rights in
 |  Nicaragua cannot afford a legal justification for the
 |  conduct of the United States, and cannot in any event be
 |  reconciled with the legal strategy of the respondent State,
 |  which is based on the right of collective self-defence."
 |
 |  |__________________________________________________________|
 |
 |
 |  One can at once see parallels between the Nicaragua -v-
 |  United States of America situation and that of the
 |  intervention in Afghanistan.  Dislike of the form of the
 |  Taliban government, or its alleged violations of the human
 |  rights of the Afghan people did not constitute legal
 |  justification for military intervention in Afghanistan under
 |  Article 51.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  States Harbouring Terrorists
 |
 |  Insofar as the United States was seeking to enter
 |  Afghanistan to capture and suppress bands of armed
 |  terrorists who had carried out criminal acts, that action
 |  could have been a limited international police action which
 |  could have been lawful with Security Council authority, but
 |  which authority the United States failed to seek.
 |
 |  There is a principle in public international law that states
 |  have obligations to other states in relation to criminals
 |  accused of serious crimes.  It is the principle "aut dedere
 |  aut punire" - the state where the criminal is must either
 |  extradite the criminal or itself prosecute.  This is the
 |  principle underlying extradition conventions in which states
 |  agree categories of crime which are sufficiently serious to
 |  justify extradition and the terms on which they will do so.
 |
 |  In the case of United States -v- Iran [
 |  http://www.icj-cij.org/icjwww/idecisions/issumaries/iusirsummary800524.htm
 |  ( now a dead link ) ] 24th May 1980 the International Court
 |  of Justice held that Iran was under an obligation to ensure
 |  the US Embasssy hostages were freed and to either prosecute
 |  those responsible or to extradite the perpetrators to the
 |  United States.
 |
 |  There is also a principle that certain crimes are so odious
 |  that they are crimes "of universal jurisdiction" for which
 |  every court everywhere in the world may take jurisdiction if
 |  its national law permits.  An early example was "piracy jure
 |  gentium" under which the English common law assumed
 |  jurisdiction over pirates no matter where the act of piracy
 |  as committed.  See also the discussion in relation to war
 |  crimes and torture in Regina -v- Bartle and the Commissioner
 |  of the Metropolitan Police Ex Parte Pinochet and Others [
 |  http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm
 |  ] - (UK House of Lords).
 |
 |  The hijacking of an aircraft and use of it as a missile is
 |  murder and air piracy.
 |
 |  But does the failure of a state to take measures to repress
 |  or surrender terrorists justify military intervention
 |  without express UN authority as a matter of international
 |  law ?  "Self-Help" - or taking military action inside the
 |  territory of another state to counter a breach of law has
 |  also been considered by the International Court of Justice.
 |
 |  United Kingdom -v- Albania [
 |  http://www.icj-cij.org/icjwww/idecisions/isummaries/Iccsummary490409.htm
 |  ( now a dead link ) ] 15th December 1949 was an
 |  International Court of Justice case concerning the laying of
 |  mines in Albanian territorial waters to prevent the right of
 |  innocent passage.  It was not proved who had laid the mines,
 |  but the Court held that Albania had not complied with its
 |  international obligations in respect thereof.
 |
 |  However the Court then went on to examine the actions of the
 |  United Kingdom in going into Albanian territorial waters to
 |  cut and remove the mines and said this:-
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  "As regards the operation on November 12th/13th, it was
 |  executed contrary to the clearly expressed wish of the
 |  Albanian Government; it did not have the consent of the
 |  international mine clearance organizations; it could not be
 |  justified as the exercise of the right of innocent passage.
 |
 |  The United Kingdom has stated that its object was to secure
 |  the mines as quickly as possible for fear lest they should
 |  be taken away by the authors of the mine laying or by the
 |  Albanian authorities: this was presented either as a new and
 |  special application of the theory of intervention, by means
 |  of which the intervening State was acting to facilitate the
 |  task of the international tribunal, or as a method of
 |  self-protection or self-help.
 |
 |  The Court cannot accept these lines of defence.  It can only
 |  regard the alleged right of intervention as the
 |  manifestation of a policy of force which cannot find a place
 |  in international law.
 |
 |  As regards the notion of self-help, the Court is also unable
 |  to accept it: between independent States the respect for
 |  territorial sovereignty is an essential foundation for
 |  international relations. Certainly, the Court recognises the
 |  Albanian Government's complete failure to carry out its
 |  duties after the explosions and the dilatory nature of its
 |  diplomatic Notes as extenuating circumstances for the action
 |  of the United Kingdom. But, to ensure respect for
 |  international law, of which it is the organ, the Court must
 |  declare that the action of the British Navy constituted a
 |  violation of Albanian sovereignty. This declaration is in
 |  accordance with the request made by Albania through her
 |  counsel and is in itself appropriate satisfaction."
 |
 |  |__________________________________________________________|
 |
 |
 |  In other words, even when a state is in breach of its
 |  international law obligations, another state cannot violate
 |  sovereignty and resort to "self-help".  Something more is
 |  needed, although the misconduct and failure of the state in
 |  breach may constitute extenuating circumstances.
 |
 |  Thus the announcement by President Bush that any country
 |  which "harboured" terrorists would suffer the fate of the
 |  terrorists themselves did not constitute in international
 |  law a legal basis for war or military intervention.
 |
 |  It could certainly be argued that the action or inaction of
 |  the Government of Afghanistan as regards Al-Quai'da was in
 |  breach of international law insofar as it must have been
 |  aware of the aims, objectives and preparations of Al-Qua'ida
 |  (perhaps not as regards the specific crimes of 11th
 |  September 2001) but certainly as to acts of terrorism in
 |  general (also becuause of the catalogue of previous
 |  incidents -see our Terrorism page [
 |  http://www.eurolegal.org/usmideast5.htm ( now a dead link,
 |  instead go to Bush War on Terrorism
 |  http://www.eurolegal.org/terror/uswaronterror.htm ) ]) yet
 |  it took no action to warn, investigate or repress.
 |
 |  In the wake of the events of 11th September 2002, the United
 |  Nations Security Council adopted two Resolutions, No 1368
 |  and No 1373.  Both are to be found on the Avalon Project
 |  September 11 Page [
 |  http://www.yale.edu/lawweb/avalon/sept_11/sept_11.htm ].
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  UN Security Council Resolution 1368 (2001)
 |
 |  September 12, 2001
 |
 |  The Security Council,
 |
 |  Reaffirming the principles and purposes of the Charter of
 |  the United Nations,
 |
 |  Determined to combat by all means threats to international
 |  peace and security caused by terrorist acts,
 |
 |  Recognizing the inherent right of individual or collective
 |  self-defence in accordance with the Charter,
 |
 |  1. Unequivocally condemns in the strongest terms the
 |  horrifying terrorist attacks which took place on 11
 |  September 2001 in New York, Washington (D.C.) and
 |  Pennsylvania and regards such acts, like any act of
 |  international terrorism, as a threat to international peace
 |  and security;
 |
 |  2. Expresses its deepest sympathy and condolences to the
 |  victims and their families and to the People and Government
 |  of the United States of America;
 |
 |  3. Calls on all States to work together urgently to bring to
 |  justice the perpetrators, organizers and sponsors of these
 |  terrorist attacks and stresses that those responsible for
 |  aiding, supporting or harbouring the perpetrators,
 |  organizers and sponsors of these acts will be held
 |  accountable;
 |
 |  4. Calls also on the international community to redouble
 |  their efforts to prevent and suppress terrorist acts
 |  including by increased cooperation and full implementation
 |  of the relevant international anti-terrorist conventions and
 |  Security Council resolutions, in particular resolution 1269
 |  of 19 October 1999;
 |
 |  5. Expresses its readiness to take all necessary steps to
 |  respond to the terrorist attacks of 11 September 2001, and
 |  to combat all forms of terrorism, in accordance with its
 |  responsibilities under the Charter of the United Nations;
 |
 |  6. Decides to remain seized of the matter.
 |
 |  |__________________________________________________________|
 |
 |
 |  This resolution certainly puts beyond doubt the terrorist
 |  nature of the offences and the obligation in public
 |  international law upon Afghanistan to bring the perpetrators
 |  and the aiders and abettors to justice.  It also expresses
 |  the willingness of the Security Council to take further
 |  steps.
 |
 |  Although it refers in its preambles to Article 51, the
 |  resolution did not authorise the United States (or anyone
 |  else) to intervene militarily in Afghanistan.  Security
 |  Council resolutions 1373 and 1390 provide for sanctions but
 |  neither resolution authorised the United States of America
 |  (or anyone else) to intervene militarily in Afghanistan.
 |
 |  As a matter of domestic law, Congress passed a resolution
 |  authorising the President to use force not only against
 |  Al-Quai'da terrorists, but also against those harbouring
 |  Al-Quai'da.  It would therefore be a very brave US judge
 |  indeed who would hold that the US actions in Afghanistan
 |  were unlawful as a matter of US domestic law and when it
 |  comes to considering the situation of persons in US custody,
 |  the public international law position may not be the
 |  consideration which most influences a court.
 |
 |  Insofar as the primary injured party of the unlawful US
 |  action is the State of Afghanistan, it is hardly likely that
 |  the interim Government installed at the behest of the United
 |  States will now take the United States to the International
 |  Court of Justice to claim reparations for ulawful warmaking
 |  (particularly since it is more than likely that the United
 |  States would simply "do a Nicaragua" and refuse to appear)
 |  and there is no international court before which individuals
 |  harmed by US actions can implead the United States.
 |
 |  As to whether innocent individuals could implead the United
 |  States before the domestic courts and claim in respect of
 |  loss and damage suffered, for example as a result of deaths,
 |  injuries or material damage caused by bombing, is a matter
 |  for US lawyers, and whether the fact that the intervention
 |  was unlawful as a matter of public international law (as
 |  opposed to US domestic law) would make any difference is a
 |  matter for the opinion of US lawyers - whose opinions on the
 |  subject would be welcome.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  Why Was Further Authority Not Sought ?
 |
 |  Given the willingness of the Security Council expressed in
 |  Resolution 1368 to take further steps to enforce its will,
 |  why did the United States not go back to the United Nations
 |  for a resolution for military intervention in Afghanistan ?
 |
 |  Perhaps the principal reason is the unwillingness of the
 |  United States to support steps by international institutions
 |  which might be seen as limiting its freedom to act as and
 |  when it sees fit.  The United States has developed a
 |  propensity to act contrary to international law when it
 |  wishes, as it did in Grenada, as it did in Nicaragua, as it
 |  did in Cambodia.
 |
 |  The Bush Administration clearly did not wish to recognise
 |  the principle of international law that only the Security
 |  Council can authorise the use of military force.  As the
 |  Iraq pages [ http://www.eurolegal.org/usmideast.htm ( now a
 |  dead link, instead go to
 |  http://www.eurolegal.org/usmideast.shtml ) ] demonstrate,
 |  the US neoconservatives in the Bush Administration were
 |  already planning to invade Iraq "with or without UN
 |  authority" and asking for a UN Mandate for intervention in
 |  Afghanistan would have prejudiced that position.
 |
 |  There is also the problem that Chapter VII of the UN Charter
 |  puts the UN in command of military operations, as was the
 |  case in Korea. The US has long been unwilling to place its
 |  troops under UN command.
 |
 |  Asking for a UN Mandate might also have involved the
 |  establishment of an international tribunal for the
 |  terrorists.  Given the US general opposition to
 |  international tribunals (see our UN Courts page [
 |  http://www.eurolegal.org/uncourts.htm
 |  ( now a dead link, instead go to
 |  http://www.eurolegal.org/internat/intcourts.htm and also the
 |  http://www.eurolegal.org/useur/unlawfulcomb.htm page ) ]),
 |  that was also probably an unattractive proposition to the
 |  Bush Administration.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  Unilateralism - The "New World Order"
 |
 |  One of the recurring themes which runs through all that has
 |  been said and written about US policy since 11th September
 |  2001 is that of "US unilateralism".
 |
 |  Reduced to its essentials, this is the argument that since
 |  the advent of the Bush Administration, the United States of
 |  America has decided to abide by international law and
 |  treaties, such as the United Nations Charter, or the UN
 |  Torture Convention, only when it suits US policy objectives
 |  to do so.  When it does not, the United States is prepared
 |  to ignore international law secure in the knowledge that
 |  there is not much anyone can do to restrain the world's only
 |  hyper-power from acting as it sees fit.
 |
 |  One of the leading proponents of the unilateralist position
 |  is Professor Philip Bobbitt (Princeton, Yale, Oxford) who
 |  holds a chair in law at the University of Texas.  Bobbit is
 |  the advocate of the "market state" theory.
 |
 |
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 |
 |  Prof. Philip Bobbitt - "Satan's Theologian":  The Bobbitt
 |  Theory: Globalisation has brought the end of the territorial
 |  nation state and the advent of 'market-states', i.e,
 |  nation-states whose power extends beyond territorial
 |  boundaries. These powerful states have responsibility for
 |  the maintenance of order among backward 'pre-modern' states,
 |  for the enforcing of human rights, and for ensuring that
 |  such states do not spawn bellicose dictators or provide safe
 |  havens for terrorist and pirates - A New World Order
 |  enforced by the Powerful.
 |
 |  Bobbitt considers Al-Quaid'a to be a "virtual state"
 |  equipped with international political goals, income and
 |  followers. In his theory the Al Quai'da threat and that of
 |  "rogue states" requires the "right thinking" states to form
 |  "coalitions of the willing" to enforce their values - within
 |  the United Nations framework if possible, but outside it if
 |  necessary.
 |
 |  |__________________________________________________________|
 |
 |
 |  Bobbitt is a member of the American Law Institute, The
 |  Council on Foreign Relations, the Pacific Council on
 |  International Policy, and the International Institute for
 |  Strategic Studies. He has served as Associate Counsel to the
 |  President, the Counselor on International Law at the State
 |  Department, Legal Counsel to the Senate Iran-Contra
 |  Committee, and Director for Intelligence, Senior Director
 |  for Critical Infrastructure and Senior Director for
 |  Strategic Planning at the National Security Council (under
 |  Clinton). He is a former trustee of Princeton University;
 |  and a former member of the Oxford University Modern History
 |  Faculty and the War Studies Department of Kings College,
 |  London.
 |
 |  He has published six influential books: Constitutional
 |  Interpretation (1991), Democracy and Deterrence (1987), U.S.
 |  Nuclear Strategy (with Freedman and Treverton) (1989),
 |  Constitutional Fate (1982), Tragic Choices (with Calabresi)
 |  (1978) and most recently The Shield of Achilles: War, Peace
 |  and the Course of History (Knopf, 2002).
 |
 |  Bobbitt's latest work has been hailed on both sides of the
 |  Atlantic as enormously important.  Oxford Professor, Michael
 |  Howard, described it as "one of the most important works on
 |  public [ie international] relations to be published in the
 |  last 50 years".
 |
 |  It has to be said that "The Shield of Achilles" is readable
 |  - and because it is so readable, it is all the more a very
 |  dangerous work.  It is the sort of academic treatise which
 |  declares what the author would like the law to be.
 |
 |  Bobbitt argues that:-
 |
 |  globalisation has meant the end of the territorial nation
 |  state and the advent of 'market-states' by which he means
 |  nation-states whose power extends beyond territorial
 |  boundaries;
 |
 |  powerful such 'market-states' have responsibility for the
 |  maintenance of order among backward 'pre-modern' states, for
 |  the enforcing of such human rights as he is prepared to
 |  acknowledge and for ensuring that such states do not spawn
 |  bellicose dictators or provide safe havens for terrorists
 |  and pirates.
 |
 |  Of course, according to Bobbitt, it follows that it is the
 |  powerful 'market-states' which are to decide which are the
 |  backward 'pre-modern' states, which states are to considered
 |  as having 'bellicose dictators' and which are to be
 |  considered as providing 'safe havens' for terroists and
 |  pirates.  Bobbit argues for a New World Order enforced by
 |  his powerful "market-states" and for "pre-emptive action"
 |  against those backward 'pre-modern states' who do not comply
 |  with the wishes of the powerful 'market states'.
 |
 |  In an interview with Tim Sebastian on the BBC's Hard Talk
 |  programme, Bobbitt argued that military intervention against
 |  Iraq was "necessary" (and therefore justified) "to prevent
 |  weapons of mass destruction going to groups the US cannot
 |  deter".
 |
 |  It is easy to see why the Bobbitt Theory proved attractive
 |  in the USA after 11th September 2001 since it provides
 |  plausible justification for the Bush "war" on terrorism, for
 |  intervention in Afghanistan without UN authority and for
 |  invasion of Iraq, likewise if necessary without UN
 |  Authority.
 |
 |  The Bobbitt "New World Order" necessarily undermines the
 |  authority of the United Nations - of what value is that
 |  institution if a gang of powerful states (decribed in
 |  Bobbitt 1984-speak as "a coalition of the willing") can
 |  arrogate to themselves the power of decision as to which
 |  countries and governments are to survive and which to be
 |  overthrown.  The international behaviour which Bobbitt
 |  advocates for the United States of America is precisely the
 |  behaviour which the United Nations was established to
 |  prevent.  Of course, that was when the perils of fascism
 |  were fresh in everybody's mind.
 |
 |  Kofi Annan's U.N. Power Grab [
 |  http://www.aei.org/oti/oti11112.htm ( now a dead link ) ] a
 |  November 1999 article in William Kristol's Standard by John
 |  Bolton, now Undersecretary for Arms Control in the State
 |  Department, challenged the proposition that international
 |  military intervention must be authorised by the UN Security
 |  Council and argued that the US must be able to act
 |  unilaterally if action is vetoed in the Security Council.
 |  Not, you will note, on the basis that Kofi Annan was
 |  incorrectly stating international law, but on the basis that
 |  regardless of international law the US had to be free to act
 |  in its national interest.  Hitler could of course have
 |  argued that it was in Germany's national interest to annex
 |  Austria, invade Poland. etc.
 |
 |  It is plain that Professor Bobbit's theory is not compatible
 |  with international law as enunciated in the Charter of the
 |  United Nations and in the judgments of the International
 |  Court of Justice - sole body entitled to give a definitive
 |  ruling on the meaning of the Charter.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  The Bush Doctrine - Unilateralism
 |
 |  At a Graduation Ceremony at the US Military Academy at West
 |  Point on 1st June 2002, President George W. Bush delivered a
 |  speech which may well one day be recognised as the most
 |  infamous statement of defence policy in the history of the
 |  human race.  The "Bush Doctrine", as it has come to be
 |  known, espouses the Bobbitt Theory wholesale.
 |
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 |
 |  Bush at West Point Graduation Ceremony.
 |
 |
 |  Extract from Bush Remarks to West Point Graduands
 |
 |  1st June 2002
 |
 |  In this speech, Bush announced that the US was abandoning
 |  its "no first strike policy" and would in future act
 |  pre-emptively against perceived threats.  The fact that he
 |  was applauded says much about the US military.  To be fair,
 |  the minds of the graduands were probably on other things and
 |  the pernicious new "Bush doctrine" was wrapped up in a lot
 |  of patriotic rhetoric.
 |
 |
 |  The gravest danger to freedom lies at the perilous
 |  crossroads of radicalism and technology. When the spread of
 |  chemical and biological and nuclear weapons, along with
 |  ballistic missile technology -- when that occurs, even weak
 |  states and small groups could attain a catastrophic power to
 |  strike great nations. Our enemies have declared this very
 |  intention, and have been caught seeking these terrible
 |  weapons. They want the capability to blackmail us, or to
 |  harm us, or to harm our friends -- and we will oppose them
 |  with all our power.
 |
 |  For much of the last century, America's defense relied on
 |  the Cold War doctrines of deterrence and containment. In
 |  some cases, those strategies still apply. But new threats
 |  also require new thinking. Deterrence -- the promise of
 |  massive retaliation against nations -- means nothing against
 |  shadowy terrorist networks with no nation or citizens to
 |  defend. Containment is not possible when unbalanced
 |  dictators with weapons of mass destruction can deliver those
 |  weapons on missiles or secretly provide them to terrorist
 |  allies.
 |
 |  We cannot defend America and our friends by hoping for the
 |  best. We cannot put our faith in the word of tyrants, who
 |  solemnly sign non-proliferation treaties, and then
 |  systemically break them. If we wait for threats to fully
 |  materialize, we will have waited too long.
 |
 |  Homeland defense and missile defense are part of stronger
 |  security, and they're essential priorities for America. Yet
 |  the war on terror will not be won on the defensive. We must
 |  take the battle to the enemy, disrupt his plans, and
 |  confront the worst threats before they emerge.
 |
 |  In the world we have entered, the only path to safety is the
 |  path of action. And this nation will act.
 |
 |  (link to full text [
 |  http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html
 |  ])
 |
 |  |__________________________________________________________|
 |
 |
 |  The dangers of the neoconservative position on nuclear
 |  weapons strategy has not gone unnoticed - see the article
 |  below by William D. Hartung who is the president's fellow at
 |  the World Policy Institute at New School University and a
 |  military affairs adviser to Foreign Policy in Focus.
 |
 |  See the other docments below from the Global Securityı web
 |  site which particularise the US Nuclear Weapons posture of
 |  the Bush Administration.
 |
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 |
 |  Bush's Nuclear Doctrine: From MAD to NUTS?
 |
 |  William D. Hartung, World Policy Institute
 |
 |  The Bush foreign policy team is quietly contemplating
 |  radical changes in U.S. strategy that could set off a global
 |  nuclear arms race that will make the U.S.-Soviet competition
 |  of the cold war period look tame by comparison.
 |
 |  In his only significant public pronouncement on the subject,
 |  delivered last spring, Bush put forward a schizophrenic view
 |  of the nuclear conundrum. On the positive side, he spoke of
 |  making unilateral cuts in U.S. nuclear forces and taking
 |  those forces off of hair-trigger alert. He even implied that
 |  the cold war doctrine of Mutually Assured Destruction (MAD
 |  was a ``dead relic'' of a bygone era. On the negative side
 |  of the ledger, Bush endorsed the deployment of a massive
 |  missile defense program on the scale of Ronald Reagan's
 |  ``Star Wars'' plan, complete with interceptor missiles based
 |  on land, at sea, in the air, and in outer space.
 |
 |  The seeming contradiction in the Bush view -- taking
 |  reassuring steps by reducing the size of the U.S. arsenal
 |  and taking forces off of alert on the one hand, while
 |  provoking other nuclear powers with a massive Star Wars
 |  program on the other -- disappears if you look at the common
 |  thread uniting these proposals: nuclear unilateralism.
 |
 |  Spurred on by the ideological rantings of conservative think
 |  tanks like the Heritage Foundation and Frank Gaffney's
 |  Center for Security Policy, a powerful bloc within the
 |  Republican Party has increasingly come to treat negotiated
 |  arms control arrangements -- like the Anti-Ballistic Missile
 |  Treaty of 1972, the Strategic Arms Reduction Treaties (START
 |  I and II), and the proposed Comprehensive Test Ban treaty --
 |  as obstacles to U.S. supremacy rather than guarantors of a
 |  fragile but critical level of stability in the nuclear age.
 |
 |  The right-wing rallying cry is ``peace through strength, not
 |  peace through paper.'' If that means shredding two decades
 |  of international arms control agreements (most of which were
 |  negotiated by Republican presidents), so be it.
 |
 |  This unilateralist approach to nuclear strategy is a
 |  disaster waiting to happen. Bush advisers like Stephen
 |  Hadley have suggested that the U.S. can significantly reduce
 |  the numbers of nuclear weapons in its current arsenal of
 |  8,000 to 10,000 strategic warheads. Simultaneously, the U.S.
 |  would need to modernize the force by developing low-yield
 |  nuclear weapons that could be used for missions like
 |  destroying hardened underground command centers or hidden
 |  weapons facilities.
 |
 |  The barely concealed premise of this emerging nuclear
 |  doctrine is a desire to make U.S. nuclear weapons more
 |  usable. This dubious proposition is grounded in the notion
 |  that a low-yield weapon could more readily be used as a
 |  threat, or actually dropped on a target, without sparking
 |  nuclear retaliation by another nuclear power. Some
 |  conservative analysts have even suggested that low-yield
 |  nukes are a ``humanitarian'' weapon, claiming that they can
 |  be used to take out underground biological warfare
 |  laboratories, for example, with less loss of life than would
 |  result from other approaches to destroying such facilities!
 |
 |  Of course, in the unfortunate event of a nuclear exchange
 |  prompted by a U.S. threat to use ``mini-nukes,'' the Bush
 |  doctrine would trust in our spiffy new Star Wars system to
 |  protect us. The fact that such a system is far from reality
 |  and may never successfully be built does not seem to cool
 |  the passions of the new generation of nuclear use theorists
 |  (or NUTs, as some critics have called them).
 |
 |  At least one sector of American society will benefit from
 |  this dangerous new doctrine. The big four weapons
 |  contractors -- Lockheed Martin, Boeing, Raytheon, and TRW --
 |  will reap billions in taxpayer funds to build the Bush
 |  version of Star Wars, which could cost as much as $240
 |  billion over a ten- to fifteen-year period.
 |
 |  It's not like we haven't been through this before. Ronald
 |  Reagan came into office in 1981 with guns blazing, pushing
 |  for a new generation of nuclear weapons and a Star Wars
 |  system. By the end of his second term, however, he had put
 |  Star Wars on the shelf and signed on to two major nuclear
 |  arms reduction treaties, the Intermediate Nuclear Forces
 |  (INF) treaty, and the Strategic Arms Reduction Treaty
 |  (START). Reagan's historic reversal came as a direct result
 |  of pressure brought to bear by the nuclear freeze campaign,
 |  the European Nuclear Disarmament movement (END), and
 |  pressures from European allies and our erstwhile adversaries
 |  in Moscow, led by Mikhail Gorbachev, who wouldn't take no
 |  for an answer.
 |
 |  It will take a similar international outcry to stop Bush's
 |  reckless nuclear doctrine. The sooner we get started, the
 |  safer we'll be.
 |
 |  (link to full text [
 |  http://www.foreignpolicy-infocus.org/commentary/0012nuclear_body.html
 |  ])
 |
 |  ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
 |
 |  PRE-EMPTIVE USE OF NUCLEAR WEAPONS - JANUARY 2002
 |
 |  U.S. military forces themselves, including nuclear forces,
 |  will now be used to "dissuade adversaries from undertaking
 |  military programs or operations that could threaten U.S.
 |  interests or those of allies and friends." (p. 9)
 |
 |  Nuclear Posture Review - Department of Defense to Congress
 |  January 2002 [
 |  http://www.globalsecurity.org/wmd/library/policy/dod/npr.htm
 |  ]
 |
 |  ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
 |
 |  BUSH'S NATIONAL STRATEGY ON WMD
 |
 |  "Weapons of mass destruction (WMD) -- nuclear, biological,
 |  and chemical -- in the possession of hostile states and
 |  terrorists represent one of the greatest security challenges
 |  facing the United States. (...) An effective strategy for
 |  countering WMD, including their use and further
 |  proliferation, is an integral component of the National
 |  Security Strategy of the United States of America. As with
 |  the war on terrorism, our strategy for homeland security,
 |  and our new concept of deterrence, the U.S. approach to
 |  combat WMD represents a fundamental change from the past.(*)
 |   To succeed, we must take full advantage of today's
 |  opportunities, including the application of new
 |  technologies, increased emphasis on intelligence collection
 |  and analysis, the strengthening of alliance relationships,
 |  and the establishment of new partnerships with former
 |  adversaries."
 |
 |  National Strategy to Combat Weapons of Mass Destruction [
 |  http://www.globalsecurity.org/wmd/library/policy/national/wmdstrategy2002.pdf
 |  ] - PDF format (9) pages
 |
 |  |__________________________________________________________|
 |
 |
 |  *  The "fundamental changes" are "pre-emptive-strikes" and
 |  abandonment of the "no first use of nuclear weapons" policy.
 |
 |
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 |
 |  http://www.globalsecurity.org/    The Global Security Web
 |  Site [ http://www.globalsecurity.org/ ] provides systematic
 |  and scientific analysis of defence materials world wide and
 |  is much relied on by the news media as a source of accurate
 |  information.
 |
 |  |__________________________________________________________|
 |
 |
 |  Before one considers the Bush Doctrine further, one has to
 |  consider its precise implications in practice:-
 |
 |  The Bush Administration considers it essential that the USA
 |  be able to enforce its will on land, in the air, at sea and
 |  in space;
 |
 |  The Bush Administration considers itself entitled to enforce
 |  its will against sovereign states if it considers necessary
 |  by the use of lethal force including nuclear weapons,
 |  without the sanction of any world body;
 |
 |  The Bush Administration considers itself entitled without
 |  the sanction of any world body, or even without the warrant
 |  of any US Court, to use lethal force against individuals
 |  inside or outside the United States if the President in his
 |  absolute discretion deems that person to be an "unlawful
 |  combatant"; and
 |
 |  The Bush Administration considers itself entitled, without
 |  the sanction of any world body or even without the warrant
 |  of any US Court to be entitled to detain any person
 |  indefinitely without trial and in the case of a foreign
 |  national to send him or her to a state where the person will
 |  be at risk of torture or execution without the sanction of
 |  any court.
 |
 |  If these doctrines are accepted or acquiesed in by the
 |  international community, what they mean is the abrogation of
 |  international law as we know it and its substitution by an
 |  unreviewable discretion vested in the President of the
 |  United States.  There is a single word which adequately
 |  describes this kind of "new world order" - Fascism.
 |
 |
 |  ____________________________________________________________
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 |
 |
 |  Unilateral Intervention in Iraq - Illegal
 |
 |  See our Iraq War - Legality page. [
 |  http://www.eurolegal.org/usmideast8.htm ( now a dead link,
 |  instead go to http://legal.lege.net/war_legal/ or to
 |  http://www.eurolegal.org/useur/bbnewworld.htm
 |  ) ]
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  "Poodle" Blair espouses the New World Order
 |
 |  The supporters of the Bobbitt Theory, or of the Bush
 |  Doctrine, point to the past failures of the United Nations. 
 |  As discussed above, no-one in their right mind would suggest
 |  that the UN as presently configured is a perfect vehicle for
 |  resolving conflict, and particularly for dealing with human
 |  rights abuses.
 |
 |  Yes, the UN Security Council was paralysed over
 |  Bosnia/Kosovo by the threat of Russian veto.  But hard cases
 |  make bad law.  In particular, if the Security Council can be
 |  paralysed by the Great Power veto, that is an argument for
 |  reforming the Great Power veto, not for throwing the baby
 |  out with the bathwater and leaving the policing of the world
 |  to the whim of a hyperpower, particularly when that
 |  hyperpower has the human rights and civil liberties record
 |  of the Bush Administration.
 |
 |  Many of the US neoconservatives who have espoused the
 |  Bobbitt theory are former marxists and trotskyites who have
 |  gone from one political extreme to the other.  With the
 |  enthusiasm of the convert, they have sought to become "more
 |  catholic than the Pope" and have passed from the extreme
 |  left to the neofascist far right.  The same phenomenon is to
 |  be observed at the heart of the Blair Government and in
 |  particular among the Blair/Straw/Blunkett Troika who have
 |  the conduct of UK policy on the Iraq crisis and the war on
 |  terrorism.
 |
 |  It is worth recalling that Jack Straw was considered by the
 |  UK security services to be a "Communist sympathiser" and he
 |  was certainly on the radical left as President of the NUS
 |  between 1969 and 1971.  Many older readers will recall that
 |  David Blunkett was regarded as being on the "loonie left" of
 |  the Labour Party in 1985 when as leader of Sheffield Council
 |  he was said to run the "Socialist Republic of South
 |  Yorkshire".  It appears that the BSB Troika have all been
 |  infected with the neoconservative virus and have moved from
 |  the left to the far right.
 |
 |  When the British Prime Minister said in the House of Commons
 |  on 15th January 2003 that the Government had to reserve the
 |  right to support US unilateral action if someone in the
 |  United Nations interposed "an unreasonable veto", everyone
 |  understood him to mean that he was prepared to sacrifice
 |  British troops on the altar of his supposed ``special
 |  relationship'' with George W. Bush even if Canada, France,
 |  Germany and other NATO allies were not.  On 21st January
 |  2003, Blair told Chairmen of Committees of the House of
 |  Commons that he reserved the right to join in military
 |  action, even if a UN Security Council member vetoed such a
 |  move.  He said that if UN weapons inspectors concluded that
 |  the Iraqi leader was in breach of Security Council
 |  resolutions and "somebody puts down an unreasonable veto",
 |  action should still follow.
 |
 |  There are only 5 states with the Security Council veto
 |  power:  China, France, Russia the United Kingdom and the
 |  United States of America.  Which state does the Prime
 |  Minister think is going to be "unreasonable" ?  And how far
 |  should his proposition be taken ?  Suppose a resolution for
 |  the enforcement of peace in the Israel-Palestine conflict
 |  should shortly come before the Security Council (as well it
 |  might) and be vetoed as usual by the United States (which,
 |  incidentally has vetoed more resolutions than any other
 |  Security Council Member, generally to protect its puppet
 |  Israel) - does Mr Blair then think that it would be
 |  legitimate for a "coalition of the willing" (say Algeria,
 |  Egypt, Lebanon, Pakistan, Russia and Syria) to proceed to
 |  enforce peace in the Occupied Territories without UN
 |  authority ?
 |
 |  Even though 80% of British voters think a UN Resolution
 |  autorising action is an essential prerequisite of military
 |  action against Iraq, the British BSB Troika showed
 |  themselves prepared to defy public opinion and put British
 |  servicemen in harm's way without UN authority.  Small wonder
 |  that the British and world public opinion now thoroughly
 |  distrusts the judgment of both the Bush Administration and
 |  the BSB Troika on the issue of making war on Iraq.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  Undermining the UN
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  Europeans Demonstrate Against an Iraq War
 |
 |  United Kingdom    Italy    Spain    Turkey    Greece
 |
 |  |__________________________________________________________|
 |
 |
 |  If the world's largest superpower is permitted to treat the
 |  UN Security Council and international law on the use of
 |  force as if it matters not, then there are hard times ahead
 |  for the international community.  If Americans do not
 |  understand this yet, Europeans certainly do.  There are huge
 |  popular majorities agianst war in all the countries in
 |  Europe and there have been some of the biggest
 |  demonstrations seen since 1945 in all major European
 |  capitals.
 |
 |  It is perhaps salutary to recall that four countries in
 |  particular have known life under US-supported fascist
 |  military dictatorships, Greece, Portugal, Spain and Turkey. 
 |  Some leaders would do well to remember the quite recent past
 |  in their own countries and understand the reasoning behind
 |  the popular opposition to the US acting as the world's
 |  policeman outside the scope of the UN.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
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