Friday, February 25, 2005

War, Law, and Consistency

In discussing the Iraq War, many apologists for the Administration have picked up and discarded doctrines, methods of interpretation, and justifications, with alarming speed and with little concern for consistency. At the end of the day, if international legal rules concerning warfare are something they consider important, then they will have to enunciate a coherent view of what those rules are and where they came from.

That hasn’t happened yet, although Julian’s most recent posts made some observations that I would like to consider further.

Julian’s opening points can be essentially boiled down to this: international law matters in places like the U.K. because of enforcement concerns (such as through the ICC) or in Germany because of domestic political concerns. He then continues:

But the legality question matters far less in the U.S. because the domestic legality of the Iraq War is essentially undisputed (Congress authorized it, etc. etc.). The international legality of the Iraq War appears to have absolutely zero political significance (just ask John Kerry). Obviously, many people oppose the war, but the legality of the war is far from the most important reason they oppose the war.

This conflates legality with political expediency. Sure, U.S. political leaders may not worry much about international legality because American voters largely do not, but that in no way makes the U.S. action legal. Moreover, simply because the President met domestic legal standards for invading Iraq does not absolve the U.S. from its responsibilities under international law, responsibilities that we largely drafted at the birth of the U.N.

The next part of Julian’s argument is interesting for the way that it is a double-edged sword. He writes:

I am always struck by how formalist international lawyers can get sometimes with respect to interpreting the law governing the use of force. I wish sometimes they would be just as formalist with domestic constitutional and statutory law (where is that right of abortion in the Constitution anyway?)

As my comments to Julian’s earlier post point out, I am shocked by how conservatives jettison any aspect of textualism, originalism, or formalism the minute they discuss issues of international law and the use of force. All of a sudden we need not be so concerned with what treaties say and what framers meant but instead we should accept that there are “new rules” that are somewhere out there (even though no one else but the lawyers from the Office of Legal Counsel seem to be able to perceive them).

That is not “purposive” interpretation or viewing the Charter as a “living” text; it is, rather, tortured interpretation.

Take the idea that resolutions from either 1990 or 1991 could somehow justify the current Iraq War. The key resolutions, Resolution 678 from 1990 and 687 from 1991 are instructive in what each does or does not say.

Where in the 1990 resolution, or in any of the resolutions it cites to, is there anything about the authorization of the use of force to sweep Iraq for WMDs? Where is there anything besides specific resolutions concerning ousting Iraq from Kuwait? What Resolution 678 does have, though, is a grant of the ability to use force (an authorization “to use all necessary means”) to uphold Resolution 660 (the ousting of Iraq from Kuwait).

As for Resolution 687 from 1991, there are mentions of WMDs and missile capabilities but there is no operative language that authorizes the use of force. Not only is there no “all necessary means” language, there is an explicit catalogue of the means of implementing the language on WMDs. The method of implementation? Weapons inspections. If there was a consensus for “all necessary means” language it would have been there; such consensus did not exist (as has been reiterated constantly by members of the Security Council in the run-up to the current war) and so the language wasn’t there. You can’t use the language from the 1990 resolution because it is explicitly tied to ousting Iraq from Kuwait.

If anyone thinks that we should read these resolutions as authorizing the current war, then I would pose to them the question as to whether they would use such loose interpretational standards in domestic statutory construction (I wouldn’t).

As for Kosovo, as I have written before, I do not think there is consensus on humanitarian intervention and I, personally, do not see the NATO bombing of Serbia as one that was legal under norms of international law. I think the most honest analysis of this came from Professor Tom Franck of NYU who said that while we may view the act as morally legitimate (protecting an oppressed population), we cannot say that under the current set of norms it was legal. That means one of two things—either going forward we chould change the rules, or states that continue to act in this way face potential state responsibility. (I would note that there was an ICJ case by Serbia against the NATO countries, but it was dismissed in the jurisdictional phase, without a finding on the merits.)

Why can’t those who support the Iraq War take a similar approach? Why can’t they say we are acting because we think this is something that we must do, even if it is illegal. We will act and we will face the legal repercussions of our actions squarely because we do not want to take the rules of armed conflict and interpret them away into absurdities. We will act in this way because the world is a better place with these rules than without these rules.

That is an argument that I could respect. I may disagree with factual issues concerning the threat of Iraq (no WMDs), but, legally (and morally) speaking, that would be a position that at least would be consistent.

But consistency is in short order these days in Washington.


Anonymous Anonymous said...

I believe Richard Perle has taken the position that the Iraq War was illegal but morally legitimate.

2/25/2005 11:42 PM  
Blogger Marty Lederman said...

I am far from an international law expert, so please indulge me, Prof. Borgen, if this is a simplisitc or inapposite question. When you write that the Iraq and Kosovo wars were "illegal" because they constituted U.S. breaches of treaty obligations, I wonder exactly what you mean by "illegal."

These are not cases in which the President unilaterally violates treaty obligations, or where the President claims the power to "suspend" the operation of a treaty as to certain signatory states. (That's what OLC informed the President he could do with respect to the Geneva Conventions and Afghanistan -- a fairly novel theory of Executive power that appears to me to be very significant and certainly open to serious constitutional doubt.) Instead, these are cases in which Congress enacted *statutes* that violated U.S. treaty obligations. (Assume for the purposes of this discussion that Congress's enactments did, in fact, authorize what the Executive has done in Iraq and Kosovo.)

OK -- let's assume that, by virtue of passing and implementing such a statute, the U.S. has violated a treaty. Presumably the U.S. must risk suffering whatever international law sanctions are appropriate for such a breach. But that's not very unusual, is it? Isn't the whole point of the "last in time" rule that later-enacted statutes trump earlier ratified treaties for purposes of domestic law and, more importantly, for purposes of the Supremacy Clause?

That is to say -- Congress *often* enacts "last in time" statutes that effectively violate treaties, or that breach federal contracts, or that contradict earlier statutes. In many such cases the federal government must, of course, suffer the consequences of the change in law, such as (sometimes) paying for contract breaches, or suffering international sanctions, etc. But we rarely characterize the new statute as *unlawful* simply because it violates a previous promise that we have made.

Because there are serious ramifications for breach of a treaty, we ought to enact breaching legislation only rarely, and only after very solemn and careful deliberation. And in accord with the Charming Betsy canon, statutes should be construed, wherever possible, to be consistent with U.S. treaty obligations. But in what sense is a treaty-breaching statute illegal under U.S. law -- including the Supremacy Clause?

Thanks in advance for any response.

2/26/2005 4:22 AM  
Anonymous Anonymous said...

Having had Prof. Brogen as a teacher in the past, I've always found his approach to international law worthy of serious considering. However, I fail to grasp the ardent viewpoint of those with a strong predilection toward placing international law on the same footing as domestic law in all circumstances.

Prof. Borgen notes the inconsistencies often presented by (and I'd say it's done by those on both sides of the political spectrum) cherry picking one's approach int'l law. However, I generally find myself much more in line with Prof. Ku's political and legal approach to the situation. Prof. Borgen states that Ku's view on the legality of the Iraq war " conflates legality with political expediency." My answer is that when it comes to international law, politics in reality trumps legality in more instances than I can shake a stick at, and in the practice of more countries than I can name without an atlas. And this highlights, I think, a fundmental view of int'l law held by the populace in the U.S. that "international law" is less law, and more akin to diplomacy and politics. In line with our representative republic, then, it's only both consistent and natural, that our representatives reflect this view. After all, who can I directly complain to at the U.N. or in Brussels? It's hard enough getting the hear of one's own congressman or senators, but at least you know where to direct your opinion.

2/27/2005 1:26 AM  
Anonymous Warmongering Lunatic said...

All the 678-687 combination does is maintain consistency with the 678-688 combination.

The establishments in 1991 of the Kurdish Protection Zone (established jointly by the US, UK, France, Denmark, and Germany) and No-Fly zones (established jointly bu the US, UK, and France) were justified on the grounds that resolution 688 (which called on Iraq to stop oppressing its people) referred to "peace and security in the region" and resolution 678 referred to peace in the area; so reading resolution 678 together with resolution 688 allowed force to be used to enforce 688.

This may be a quite questionable interpretation, but it is clear that the US, UK, France, Denmark, and Germany all adhered to it in 1991.

Since resolution 687 also refers to "the threat that all weapons of mass destruction pose to peace and security in the area", the interpretation that 678 plus 687 allowed the Iraq War is fully consistent with the 1991 argument that 678 plus 688 allowed the otherwise-illegal establishment of the Kurdish Protection Area and the No Fly Zones.

Furthermore, the invasion of Iraq itself can be justified under the existing 678-688 combination as ending the oppression of the Iraqi people. If the US, UK, France, Denmark, and Germany could legally invade northern Iraq to eliminate the Iraqi soverignty over some Iraqis to deliver them from oppression, it seems an invasion to liberate all the Iraqis is a reasonable extension of the principle.

One, of course, can object to the interpretation, but consistency would require then that we hold not just the Iraq War, but the Kurdish Protection and No-Fly Zones and the military force used to establish and maintain them, to have been equally illegal.

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