Crimes -- Committed In All Our Names: International Law

Bush's Dilemma

www.rense.com

October 2, 2005

* Bush and his vindicators still insist that that the occupation of Iraq would spread democracy and stability in the Middle East. That naïve declaration couldn"t be farther from the truth. Not only is Iraq in the clutches of a civil war, the US-led invasion threatens to destabilise the whole of the Middle East, if not possibly the world. It might have irrevocably done so already.

* More and more it appears that, as is the case in Iraq, the Taliban insurgency in Afghanistan is content to slowly bleed the US.

* Preoccupied with the carnage being wrought in Iraq, the US warlords became complacent over their Afghan policy and allowed the Taliban to regroup.

* In a grim landscape, a single reality stands out clearly: not only is the US presence the main source of civilian casualties both in Afghanistan and Iraq, it is also the primary contributor to the threat of civil war in Iraq. The longer they wait to withdraw, the worse the situation would become for the occupation.

By Ghulam Asghar Khan

The Frontier Post - Pakistan

10-3-5

In a highly significant decision "German Federal Court" ruled that the assault launched by the US and its allies against Iraq, was a clear war of aggression that violated the International Law.

The Judges scrupulously demonstrated that the German government, in contrast to its public protestations, had lend a hand in the aggression against Iraq without having any legal right to do so. Although the decision was made 3-months back but was barely mentioned in the German media. The judgement and its legal arguments have only just been made public. The court in particular referred to Article 4, Paragraph 4 of the UN Charter, which classifies "every" threat and use of military force against another nation as an act of aggression. It specifies only two exceptions: a formal resolution of the UN Security Council and for self-defence purposes. Neither of these was the case with Iraq. In particular, the US had no legal basis for attacking Iraq based on previous UN resolutions that it itself had introduced. UN Resolution 678 of 1990 had only authorised the expulsion of Iraq from Kuwait and the ceasefire Resolution 687 in 1991 certified that this aim was achieved.

As per this Resolution, Iraq was forbidden to use poisonous gases or other biological weapons and renewed the demand for Iraq to maintain a clear distance from 'international terrorism'. This Resolution was formally accepted by Iraq, and all the conditions laid down were not violated by Baghdad during the following 10-years when Iraq was ravaged by continual Anglo US bombings.

The court observed that the Security Council did threaten 'serious consequences', but it did not make explicit what form they would take. On the contrary, Resolution 1441 (which was made the basis for the unilateral attack) expressed unmistakably that the matter was yet to be determined by the Security Council. The court argued that the resolution did not give a free hand for military action, but rather left the decision about any consequences to the UN. It did not consider the objection valid that the resolution text was interpreted differently by the US and UK. It stated, "For the determination of what the UN Security Council had decided in one of its resolutions, what is decisive is not what government representatives 'thought' about the proceedings and resolutions themselves. It is far more dependent on what was actually laid down in the text of the agreed resolution and mental reservations of governments or their representatives were not valid insofar as international law was concerned.

As against that, President Bush embarked upon his latest campaign to convince the US citizens that the illegal and unwarranted invasion/occupation of Iraq was worth the sacrifice paid by other people's children. His first pro-war pep rally was in Utah at the convention of Veterans of foreign wars, where he explained that the only way to honour about 2,000 US troops killed in Iraq was to stay there and finish the task. In other words, the only way to ensure those soldiers who died in Iraq did not die in vain was to send more to their deaths. The logic of needless death honoured through more needless deaths was just appalling.

No matter how bad things might be in Iraq, and no matter how dim the prospects are for Iraq's future, Bush & Co. still manage to look the public straight in the eye, smirk and insist that the decision to invade was a good one. Not realising that by invading Iraq, they had opened up "Pandora's Box" with global consequences. Bush and his vindicators still insist that that the occupation of Iraq would spread democracy and stability in the Middle East. That naïve declaration couldn't be farther from the truth. Not only is Iraq in the clutches of a civil war, the US-led invasion threatens to destabilise the whole of the Middle East, if not possibly the world. It might have irrevocably done so already.

By most definitions and standards, Iraq is already facing the pangs of civil war. Whether defined as an internal conflict; or as an organised violence designed to change the government; or as a systematic and coordinated sectarian-based conflict; the requirements of civil war have long since been satisfied. People of Iraq aren't merely growing increasingly alienated from each other, as well as progressively opposed to US-led forces. Iraq's estrangement from rest of the Middle East and the Arab world is widening as well. Seen more and more as a proxy of the Iranian government, the Shiite/Kurd dominated Iraq finds itself at odds with the Sunni-dominated Middle East.

Strangely enough, not a single Middle East nation has sent an ambassador to Baghdad since after the US invasion. And despite promises to do so, the Arab League (of which Iraq was a founder) has yet to open its office in Baghdad, for which Iraqi diplomacy, or lack thereof, is also to blame. There are many reasons other than sectarianism for Iraq's alienation from the Middle East and Arab nations, security being the foremost. From chiding Qatar for sending aid to Katrina victims but not to Iraq, to arguing with Kuwait over border issues, to blaming Syria for the insurgency, Iraq's fledgling government seems to have taken diplomatic lessons from the Bush administration.

Iraq's varied relationships with Middle Eastern nations will be immensely significant should Iraq descend further into civil war. For instance, Saudi Arabia, Syria and Jordan would most likely come to the support of Iraqi Sunnis. There are already signs that the US-led invasion has vexed Saudi Arabia's Sunni population. According to a recent study, the invasion of Iraq has radicalised previously non-militant Saudis, sickened by the occupation of an Arab nation by non-Arabs. Iran would in turn increase its already staunch support for the Shiites. While, Turkey would also likely be drawn in, hoping to prevent any Kurdish move to spill across the border in quest of establishing a Kurdish autonomous state.

Moreover, Iraq's violent Shiite-Sunni discord, which was non-existent before the occupation, could easily spark similar strife in Middle East countries like Bahrain, Kuwait and Saudi Arabia. In such a worst scenario, Bush's illegal, ill conceived, myopic and naïve venture in Iraq would result in total chaos not just in Iraq and the Middle East, but the world over.

At any rate, while Bush tries to sell the US public on more death and destruction in Iraq, another, older war continues in Afghanistan. It is a war that has, to date, claimed the lives of 230 US soldiers and innumerable civilians. It is a so-called legal war, fought in a country actually tied to the attacks against the US on September 11, 2001. It is America's forgotten war, which again is gaining momentum. While the Taliban are no longer officially in charge of Afghanistan, they are not yet defeated either.

Instead, a neo-Taliban insurgency has emerged that instead of fighting the US troops head-on has developed guerrilla tactics such as operating in small units, staging hit-and-run ambushes and mixing with the local population. More and more it appears that, as is the case in Iraq, the Taliban insurgency in Afghanistan is content to slowly bleed the US. Thus, rather than having been destroyed as touted by the US administration, the Talibans have merely been transformed.

The evidence suggests that Taliban's bleeding strategy is becoming increasingly successful. Over the year, attacks with mines and improvised explosive devices increased 40% and picking up from their brethren in Iraq, the 'suicidal bomb attacks' is another lethal addition to unnerve the ISAF and Afghan government forces. Preoccupied with the carnage being wrought in Iraq, the US warlords became complacent over their Afghan policy and allowed the Taliban to regroup. As a consequence, the US now must fight ruthless insurgencies on two fronts. But on a grim landscape, a single reality stands out clearly: not only is the US presence the main source of civilian casualties both in Afghanistan and Iraq, it is also the primary contributor to the threat of civil war in Iraq. The longer they wait to withdraw, the worse the situation would become for the occupation. There still is time for the US to change its state of war strategy on Iraq and Afghanistan to avoid lurking catastrophe. That, of course, would require real leadership, which the Americans are sorely lacking. "A leader who doesn't hesitate before he sends his nation to war is not fit to be a leader", said none other than Golda Meir, Israeli Prime Minister from 1969 to 1974.

Copyright © 2004-5 The Frontierpost, All rights reserved

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German Court Declares Iraq War Violated International Law

by Justus Leicht

September 28, 2005
World Socialist Web Site

Just a few weeks ago, a highly significant judicial decision was handed down by the German Federal Administrative Court but barely mentioned in the German media. With careful reasoning, the judges ruled that the assault launched by the United States and its allies against Iraq was a clear war of aggression that violated international law.

Further, they meticulously demonstrated that the German government, in contrast to its public protestations, had assisted in the aggression against Iraq without having any legal right to do so. Although the decision was made three months ago, the judgement and its legal arguments have only just been made available in written form, comprising more than 130 pages.

The decision was made in relation to legal proceedings initiated by a German army officer who had refused to obey an order following the invasion of Iraq by the US-led coalition of forces because he feared that he would in effect be supporting the war. As a result, he was demoted from major to captain and the army filed a criminal complaint against him for insubordination. In its latest judgement, the Federal Administrative Court reversed the demotion and said the charges against the officer contravened Article 4, Paragraph 1 of the German Constitution, which guarantees the right to freedom of conscience.

The 48-year-old career soldier was assigned to work on the development of a computer program that he feared could be employed in the war against Iraq war. He informed his superior that he could not carry out the order. He then sought the army chaplain and his unit’s doctor and informed them that, in his opinion, based on what he had read in the German press, the war contravened international law. The doctor then sent him to a psychologist and even arranged for him to be examined to determine his mental sanity in an army hospital—a reaction that reminds one of Franz Kafka’s novels and the actions taken by Stalinist regimes against dissidents.

His superior also sent him to the army unit’s legal advisor so that “the legal background could be explained” to him. The advisor threatened him with dishonourable discharge and demotion. The soldier challenged the legal advisor over the war’s legality under international law, prompting the advisor to turn to the German defence ministry.

The advisor received a written reply stating that although the German government rejected the war, it had given permission to the US and Great Britain to use its airspace and their military bases in Germany, as well as agreeing to the operation of German AWACS airplanes for the surveillance of Turkish airspace.

The defence ministry defended its stance by citing Germany’s obligation as a member of NATO to assist the US and Great Britain, and United Nations resolution 1441, which threatened Iraq with serious consequences unless it proved that it had destroyed its weapons of mass destruction. It was “an open question” whether the employment of military measures required another UN Security Council resolution, the ministry said.

In other words, the German coalition government of the Social Democratic Party (SPD) and the Green Party used exactly the same legal reasoning as the Bush administration. As the officer was not prepared to accept these arguments and maintained his refusal to obey orders, he was demoted and a complaint filed against him. The German Federal Administrative Court has now pulled this argument to pieces and overturned it juridically.

Grave concerns for international law

Due to strong public resistance to the remilitarisation of Germany after the Second World War, under conditions in which the army leadership initially consisted largely of former members of the Nazi Wehrmacht, the rebuilding of the German army in the 1950s was tied to a series of democratic provisions. This included the right to not follow orders that contravened human dignity, the constitution or German law, or that violated international law.

The Constitutional Court, however, left open whether such criteria applied in this case. It said a decision on this issue did not have to be made. The defendant’s complaint was upheld because he made a difficult decision based on his conscience under special circumstances.

The court left no doubt, though, that it had “grave concerns for international law” arising from the Iraq war and Germany’s support for it.

The court referred to Article 4, Paragraph 4 of the United Nations Charter, which classifies “every” threat and use of military force against another nation as an act of aggression. It specifies only two exceptions: a formal resolution of the UN Security Council and for self-defence purposes. Neither of these was the case with Iraq.

In particular, the United States had no legal basis for attacking Iraq based on previous UN resolutions that it itself had introduced. UN Resolution 678 in 1990 had only authorised the expulsion of Iraq from Kuwait. The ceasefire Resolution 687 in 1991 certified that this aim had been realised. This resolution also threatened Iraq with “serious consequences” if it used poisonous gasses or other biological weapons and renewed the demand for Iraq to maintain a clear distance from “international terrorism.” This resolution was accepted by Iraq.

The court stated that UN Resolution 707 in 1991 did not revoke the ceasefire nor has it since been repealed. No subsequent resolution contained a justification for military operations, not even in relation to forcing Iraq to cooperate with weapons inspectors.

This fact was seen by the court as particularly valid in relation to Resolution 1441, passed on November 8, 2002, which was later used by the US and Great Britain to justify war.

This resolution gave instructions to the chief weapons inspectors, Hans Blix and Mohamed El-Baradei, to report any lack of cooperation from Iraq to the UN Security Council, so that it could properly assess the situation. The decisions that the UN Security Council would then take in such a situation were left open, according to the court.

Although the Security Council threatened “serious consequences,” it did not make explicit what form they would take. On the contrary, Resolution 1441 expressed “unmistakably,” according to the court, that the matter had yet to be determined by the Security Council. The court argued that the resolution did not give a free hand for military action, but rather—based on the UN Charter—left the decision about any consequences to the UN.

With the formulation “serious consequences,” Resolution 1441 only issued a general warning, but had deliberately distanced the Security Council from authorising the use of force by the US and the UK.

The court argued that only if the UN Security Council resolution text had explicitly provided for the use of military force, within the confines of the UN Charter, would military action against Iraq have been permitted. An apparent “silence,” or the position that the meaning of “serious consequences” was left unclarified, did not suffice to justify military action.

The court also did not consider the objection valid that the resolution text was interpreted differently by the US and UK. It stated: “For the determination of what the UN Security Council had decided in one of its resolutions, what is decisive is not what government representatives ‘thought’ about the proceedings and resolutions themselves. It is far more dependent on what was actually laid down in the text of the agreed resolution. If it is not in the text, an appropriate draft resolution is lacking. The mental reservations of governments or their representatives are not valid insofar as international law is concerned.”

The text of Resolution 1441 showed, on the contrary, that an exemption to the fundamental prohibition on the use of force had not been decided on. Nowhere did it contain an endorsement or an authorisation for any government or state to use force according to Chapter VII of the UN Charter. The term “authorisation” in this context did not even appear anywhere in the resolution.

The attempt of the governments in the US, UK and Spain to have a resolution passed immediately before the start of the war that would have authorised military action did not find majority support in the Security Council. To avoid the resolution being defeated, the draft resolution was withdrawn.

German support for the war violated international law

What was particularly noteworthy was that the judges continually referred to a paper published by the scientific study service of the German parliament committee on January 2, 2003, that also concluded that the UN resolutions did not legitimise an attack on Iraq. Even if one assumes that not every parliamentarian read this paper, one has to assume, at the very least, that members of the cabinet and German Chancellor Gerhard Schröder himself must have been made aware that the Iraq war violated international law.

The court said that the US and UK had, in their diplomatic notes to the UN Security Council, nowhere made a substantiated claim that a dangerous situation existed—something necessary if a right to self-defence was being put forward as the justification.

The court devoted much detail to the logistical support provided by Germany to the war—in particular, the use of military bases and the fly-over rights for the US and UK.

It soberly declared: “The support for an illegal military action can not only be expressed through military participation in combat operations, but also in other ways. A breach of international law can be committed through an action or—when an obligation exists under international law—through inaction. Support given to an offence under international law is itself an offence.” Article 26 of the German constitution, which prohibits the “preparation” of an illegal war, prohibits even more forcefully any support of such a war.

The obligations of Germany under international law were sourced to Resolution 3314, passed by a general sitting of the United Nations on December 14, 1974, the works of the International Law Commission of the United Nations, and various international treaties and customs that stem back to the Hague Convention of 1907.

The last-mentioned prohibited states from allowing their territory to be used for the transport of troops or military supplies. The Hague Convention also prohibited third nations from supplying telecommunication services in every form as well as airspace rights. By Article 25 of the German constitution, these general rules of international law, as part of German federal law, take priority over other laws.

The claim of the German government that it had a “partner duty” as a member of NATO did not invalidate these rules. The NATO Treaty refers to the UN Charter and does not compel its member states to support wars conducted by other NATO members that violate international law. In addition, the court stated that the clause that specifies supporting other NATO members only applies in those cases where an “armed conflict” takes place inside NATO territory. Nor did the NATO Council agree to any kind of cooperative action in the case of war with Iraq. In addition, the NATO Treaty contained a clause—inserted in 1949 at the behest of the US—where member states cannot be forced to fulfil obligations to the NATO Treaty or its implementation if this violates their own national constitutions.

The German government also did not have the right to offer its support for the war for political reasons, as it was bound to the rule of law by Article 20, paragraph III of the Constitution and by Article 25 to the general regulations of international law.

At first glance, it is amazing that this judgement did not make larger waves, as the German government has effectively been accused of violating both the German constitution and international law. The government’s claim that it did everything in its power to prevent war in Iraq was proven to be false by one of the highest courts in the land. Not only did the government have the legal possibility, but it also had the responsibility to bar use of German airspace and bases on German soil from use for the Iraq war.

In most of the media, Gerhard Schröder is celebrated for his supposed anti-war stance. Others accuse the SPD-Green coalition government of having damaged the transatlantic alliance with the United States over its handling of the Iraq war. If a coalition government consisting of the Christian Democratic Union, Christian Social Union and Free Democratic Party emerges out of the recent German elections, it will either continue the policy of Schröder or bring Germany closer to the US—and most likely confront decisions similar to those made by Schröder the next time the US attacks a country. As for the recently formed Left Party-Party of Democratic Socialism, one only needs to note that its leading candidate, Gregor Gysi, has praised Schröder’s policy with regard to Iraq.

© Copyright Justus Leicht, World Socialist Web Site, 2005

Source:
www.globalresearch.ca