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You can't Win an Illegal War

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Republican Representative Devin Nunes of California, and my representative, declared this week that he saw progress in Iraq during a recent trip to the Green Zone in Baghdad. The only places he visited were U.S. military bases. The conservative Democratic Senator Ben Nelson of Nebraska, Republican Senator Jeff Sessions of Alabama, and one other House Republican, traveled with Nunes. The Congressional members did not visit Iraqi markets or neighborhoods. During their trip at least 687 Iraqis were killed, and nine American service members.

The simple fact remains that you cannot win an illegal war. When President Bush took the Presidential Oath of Office during his inauguration, he pledged to “guard against presidential excess or wrongdoing.” He also pledged to “preserve, protect, and defend the Constitution of the United States.” If the president “intentionally” subverted or undermined the Constitution then he perverted the oath.

Furthermore, Bush also violated the UN Charter by invading and occupying Iraq. International law experts refer to the invasion and occupation of Iraq as a preventive war. Preventive war violates the UN Charter. The preamble states that “armed force shall not be used, save in the common interest.”

The second article of the Charter states that member nations must “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” The UN Charter prohibits wars which the UN Security Council did not authorize, save for self defense.

The UN Charter is part of US law. It was signed by then President Harry Truman, and subsequently ratified by the Senate. The Executive Director of the Meiklejohn Civil Liberties Institute, Ann Fagan Ginger, describes the UN Charter as the “supreme law of the land.” When the Senate ratified the Charter, “the United States made certain commitments to all other member nations to obey the law set forth in the Charter.”

According to Richard Falk, retired international law professor, the UN Charter “carries forward the idea that all wars that are not fought in self defense or with the approval of the UN Security Council are illegal wars…a crime against peace.” Falk believes the US has violated the UN Charter by invading and occupying Iraq, and violates the “spirit and letter of the U.S. Constitution.”

Former UN Secretary-General Kofi Annan answered yes when he was asked if the invasion and occupation of Iraq were illegal. ““I have indicated it is not in conformity with the UN Charter, from our point of view, and from the Charter point of view it was illegal,” he went on to say. A spokesman for Annan, Fred Eckhard said during a September 2004 press conference in New York, “He has over the past more than a year used the words 'not in conformity with the Charter' to describe his view of the Iraq war… His purposes in establishing the UN panel on change was to look at the question of preventive war and try to bring that in conformity with the Charter principles, which do not promote preventive war.”

In an article for the journal Foreign Affairs, professor of international law at Tufts University, Michael Glennon stated that UN Resolution 1441 which found Iraq in “material breach” of past resolutions did not “explicitly authorize force, however, and Washington pledged to return to the council for another discussion before resorting to arms.” Glennon also noted that the UN Charter’s Article 51 “permits the use of force only in self defense…if an armed attack occurs against a member of the UN.”

A treatise by Duncan E.J. Currie who practiced international law for over 20 years referred to the Bush administration’s preventive war doctrine as “departure from the prohibition of the use of force under international law” which is a part of the UN Charter. Currie described the Bush administration document the “National Security Strategy of the United States,” published in 2002, as implying “that the U.S…is willing to act beyond the constraints of international law and even beyond limits it has observed in the past.”

The British law practice Matrix Chambers published four opinions about military force against Iraq. One of the opinions declared that the “use of force against Iraq would not be justified under international law” unless Baghdad directly attacked the U.S. or U.K., or the UN Security Council “authorized the use of force in clear terms.” They wrote concerning UN Resolution 1441, “Russia, China, and France made clear: they did not want the resolution to authorize force.”

Scott Ritter and other experts on Iraq’s WMD capabilities

Bush also violated the Presidential Oath of Office by making misleading claims about Iraq. The Congress authorized the Bush administration to use force against Iraq based on faulty intelligence. Scott Ritter was the UN’s top weapons inspector until he resigned in 1998. Ritter debunked the administration’s claims in a series of editorials in various American and British newspapers. He insisted that there was a 90-95 percent level of verified disarmament.”

All chemical weapons Iraq produced pre-1990 “would have degraded within five years” except for mustard gas, according to Ritter. He assured that biological weapons “would have neutralized through natural processes within three years of manufacture.” Furthermore, Ritter declared that the monitoring of Iraq’s weapons of mass destruction (chemical and biological weapons) from 1994-1998 did not produce “any evidence of retained proscribed activity” by Iraq to reproduce chemical and biological weapons.

Ritter had strong words concerning the Bush administration’s statements about Iraq’s WMD capability, namely that the administration “provides only speculation,” and failed to provide factual details of their claims. “To date no one has held the Bush administration accountable for its unwillingness - or inability - to provide such evidence.”

The man the Bush administration chose to finish Iraq’s weapons inspections stated in a report released in 2004 that the ability of Iraq to produce nuclear weapons “progressively decayed” since 1991, and Iraq had not made efforts to restart the program. Duelfer told a Senate panel in October 2004, “We were almost all wrong [on Iraq].”

The top intelligence official at the U.S. State Department until resigning prior to the 2003 invasion of Iraq, Greg Thielmann, told Frontline the Bush administration diverged from “the kind of qualified and fairly carefully structured intelligence that they were being provided.” Thielmann believed the stories about Iraq’s attempts to purchase uranium from Niger “bad intelligence…it was something that made no sense, in terms of the structure of the country that was allegedly planning to provide the uranium.”

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Gina-Marie Cheeseman is a freelance writer with a passion for social justice. She grew up on a vineyard ranch in the San Joaquin Valley of California watching farmworkers toil in the searing sun. Her desire for social justice fermented along with (more...)
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