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June 30, 2007
Iraq War Debated Part 3
by Nick Freitas
Is the war in Iraq illegal according to international law........Nope
Here are some of the claims that those who believe that this war is illegal have put forth.
The war in Iraq is illegal because we are members of the United Nations and the United Nations Charter requires the respect of national sovereignty, and rejects preemptive war.
This is in fact, and accurate statement. The trouble reveals itself when we apply it to the war in Iraq. Despite President Bush's speech outlining the argument for "preemptive warfare" made at the West Point Graduation of 2002, the war in Iraq was not "preemptive". For those internationalists on the left who supported the invasion of Iraq under a UN resolution in the first Gulf War; to attempt to claim that this one is preemptive shows a considerable lack of knowledge about international law.
The coalition signed a cease fire with Iraq provided that the Iraqi government abided by certain conditions. Amongst these were destruction of their WMD, and to cease attempting to build such weapons, allowing access of UN weapons inspectors to conduct inspections unhindered, oil sales would not be permitted to be used for rearming past a agreed upon amount, adherence to the no fly zone, etc. etc. I would also note that firing on US and British planes patrolling an agreed upon NO FLY zone is by international law an ACT OF WAR.
Now for my friends on the left who fancy themselves intellectually honest, can you please tell me which of the aforementioned conditions Saddam did not violate?
The answer is, none of them. Saddam, almost immediately began violating all of these conditions ranging from bribing members of the UN charged with administering the Oil for Food program, to expelling weapons inspectors from the country, to actually firing on US and British planes patrolling the no fly zone.
Now can someone please tell me what happens when one member of the cease fire agreement fails to carry out their end of the bargain? You guessed it; the other side gets to reinstate hostilities.
Now whether you buy this argument or not for going to war is irrelevant. The question was, does this war violate international law. Well sorry guys, the answer is no.
But does this war violate domestic law, specifically the Constitution.......Nope
Many conservative Americans believe that this war is illegal based off of Article 1, section 8, Clause 11 of the constitution, often referred to as the war powers clause, which states that congress alone has the power to declare war.
This fact in and of itself is a very powerful argument; however it does not stand up against the test of historical context.
I happen to be a pretty strict constructionist when it comes to interpreting the Constitution. This means that I believe that the the text should be taken literally, in order to maintain the original intent. Original intent is not as elusive as many on the left would like us to think.
For instance some liberals believe that the death penalty violates the "cruel and unusual punishment" portion found in the 8th amendment. Since the term "cruel and unusual punishment is subjective, we must look at what forms of punishment were permitted immediately after the 8th amendment was adopted, and whether or not there was any challenges to accepted practice based off of the amendment. The answer to the liberal accusation that the death penalty violates the constitution, is that maybe they should brush up on their history before dictating to the rest of us what the intent of the amender's was.
Using this logic we interpret the Constitution. So yes, the Constitution does state that only congress has the right to declare war. Does this fact prevent the United States from engaging in any conflict without a declaration of war? Well the founders didn't think so. From 1801 to 1815 the United States Navy fought an undeclared, yet widely supported, war against the Barbary Pirates. So at a time when most of the signatories of the Constitution were still alive, they recognized that the war powers clause did not prevent all military action.
I do believe that congress should take greater responsibility when it comes to recognizing their role in the approval of armed response; but what is happening in the War on terror has broad historical support dating back to the first years of our Republic.
In short, for those who missed it, this war is not illegal. You may call it anything you like from immoral to illogical, these are subjective statements, but you may not declare it to be illegal, and at the same time be considered honest.
Posted by Post Scripts at June 30, 2007 01:36 PM