By Carl Messineo and Mara Verheyden-Hilliard
[The authors, attorneys and co-founders of the Partnership for Civil Justice - LDEF, are members of the national steering committee of the A.N.S.W.E.R. (Act Now to Stop War & End Racism) Coalition.]
George W. Bush has declared his intention to wage a 'preemptive' war against Iraq and is now seeking to strong-arm the international community, the U.N., and the Congress into support and submission. As members of Congress rush to show their obedience and member states of the U.N. line up to receive the anticipated spoils of war, the administration is now waging a campaign to convince the people of the United States to fall into step and finance with money and blood this war brought for conquest on behalf of the corporate and oil interests that make up Bush's true constituency.
Bush's preemptive war is a war of aggression. The U.S. policy supporting the war is not the rule of law, but the rule of force.
But no U.N. resolution and no Congressional resolution can legalize an illegal war. With pen to paper and votes of support, they can only commit to wilful ratification, complicity and responsibility for illegal acts by endorsing a criminal enterprise.
A war of aggression violates the United States Constitution, the United Nations Charter, and the principles of the Nuremberg Tribunal. It violates the collective law of humanity that recognizes the immeasurable harm and unconscionable human suffering when a country engages in wars of aggression to advance its government's perceived national interests.
THE NATIONAL SECURITY STRATEGY:
BLUEPRINT FOR GLOBAL EMPIRE
On September 20, 2002, the Bush Administration issued its blueprint for global domination and ceaseless military interventions, in its comprehensive policy statement entitled "The National Security Strategy of the United States."
The National Security Strategy sets forth the U.S. military-industrial complex's ambition for the U.S. to remain the world's superpower with global political, economic and military dominance. The stated policy of the U.S. is "dissuading military competition" (See source I) and preventing any other world entity or union of states "from pursuing a military build-up in hopes of surpassing, or equaling, the power of the United States." (See source II)
The strategic plan elevates free trade and free markets to be "a moral principle . . . real freedom" (See source III) and endorses a comprehensive global conquest strategy utilizing the World Trade Organization, the Free Trade Act of the Americas, the International Monetary Fund, the World Bank, among other mechanisms.
The Washington Post reports that the National Security Strategy gives the United States "a nearly messianic role" in its quest for global dominance. (See source IV)
The National Security Strategy confirms and elaborates what was reflected in the January 2002 Nuclear Posture Review, that the Bush Administration maintains a policy of preemptive warfare contemplating the use of non-conventional weapons of mass destruction as a first strike measure. (See source V)
TURNING LOGIC ON ITS HEAD
Bush's preemptive war policy is a war without just cause. Under international law and centuries of common legal usage, a preemptive war may be justified as an act of self defense only where there exists a genuine and imminent threat of physical attack.
Bush's preemptive war against Iraq doesn't even purport to preempt a physical attack. It purports to preempt a threat that is neither issued nor posed. Iraq is not issuing threats of attack against the United States. It is only the United States which threatens war.
It is not a war for disarmament. It is the U.S. which has stockpiled nuclear, biological and chemical weapons. It is the U.S. which is directly threatening to use these weapons against another country. It is the U.S. which has bombed Iraq relentlessly for more than ten years, killing scores of innocent civilians.
The Bush Administration turns logic on its head, twisting reality in order to create the pretext for its war of aggression. The Administration claims that the necessary prerequisite of an imminent threat of attack can be found in the fact that there is no evidence of an imminent threat, and therefore the threat is even more sinister as a hidden threat. The lack of a threat becomes the threat, which becomes cause for war.
By the U.S. Government's own claims, it destroyed 80% of Iraq's weapons capability in the earlier Gulf War, and subsequently destroyed 90% of the remaining capacity through the weapons inspections process. There has been no evidence that Iraq is capable of an attack on the U.S., let alone possessing the intention of carrying out such an attack.
BUSH'S PROPOSED WAR AND CURRENT THREATS VIOLATE THE U.S. CONSTITUTION, THE U.N. CHARTER AND INTERNATIONAL LAW
Bush's preemptive war policy and proposed attack on Iraq cannot be justified under any form of established law.
The preemptive war policy and Bush's threatened new military assault on Iraq violates U.S. domestic law and international law. The warmongering, preparations for war, and threats of violence coming from Bush, Cheney, Rumsfeld, Rice and other White House and Pentagon hawks, are in and of themselves violations of international law and constitute crimes against peace.
Article VI of the U.S. Constitution establishes that ratified treaties, such as the U.N. Charter, are the "supreme law of the land."
The Article 1 of the U.N. Charter establishes
"The purposes of the United Nations are . . . To maintain international peace and sovereignty, and to that end: to take effective collective measures for the prevention and removals of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace . . ."
Article 2 states that all member states "shall act in accordance with the following Principles"
". . . All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
"All members shall 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 . . ."
Under this framework, acts of aggression, such as Bush's threatened attack, are to be suppressed and force is used only as a last and unavoidable resort.
The U.N. Charter was enacted in 1945 in the aftermath of the devastation and suffering of World War II. The Charter was enacted to bring an end to acts of aggression, "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind."
Disputes which might lead to a breach of the peace are required to be resolved *by peaceful means.*
Chapter VI of the U.N. Charter, "Pacific Settlement of Disputes," requires countries to "first of all, seek a resolution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."
NO RESOLUTION BY THE U.N. SECURITY COUNCIL CAN LEGALIZE A PREEMPTIVE WAR OR FIRST STRIKE PLAN
Bush has asked the U.N. Security Council to support execution of Bush's policy of a potentially nuclear "preemptive" war, as if that Council could endorse a war of aggression. The Security Council lacks the legal authority to grant such permission. The Security Council, by affirmative vote or by acquiescence to U.S. policy, cannot abrogate its own mandate. No collective action by the fifteen permanent and temporary members of the Security Council can lawfully violate the Charter which is the sole source of their collective authority.
This is made clear in the U.N. Charter itself, which provides in Article 24, that "In discharging these duties the Security Council *shall act in accordance with the Purposes and Principles of the United Nations*."
While there are, of course, procedures by which collective use of force may be authorized by the Security Council to maintain or restore international peace and security (Articles 41 and 42) those procedures may not be used to endorse aggression in violation of the primary purposes of the U.N. Charter. Article 51 of the U.N. Charter acknowledges the right to self-defense ?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." None of the provisions allow for authorization for Bush's war plans and first strike strategies. Any resolution authorizing a preemptive war of aggression is *ultra vires*, or null and void as beyond the authority of the Council to enact.
The very issuance of the Bush doctrine of preemptive warfare and also the threat to wage war against Iraq are, each, a violation of international law as a crime against peace, which is defined in the Nuremberg Charter as the "Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances."
RESPONSIBILITY FOR WAR CRIMES
Neither Congress nor the President has the right to engage the U.S. in a war of aggression and any vote of endorsement, far from legalizing or legitimizing global war plans, serves only as ratification of war crimes. Under the principles of universal accountability established at Nuremberg, "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law." (See source VI)
The execution of economic sanctions by the Bush I, Bush II and Clinton Administrations, which has caused the deaths of over one million people, primarily children and their grandparents, is likewise sanctionable as a crime against humanity under the Nuremberg Charter and under the International Criminal Court Statute as "the intentional infliction of conditions of life, . . . the deprivation of access of food to medicine, calculated to bring about the destruction of a part of a population. (See source VII)
The Bush Administration has rejected the International Criminal Court treaty signed by over 130 countries. This rejection is an admission of the administration's consciousness of guilt and of criminal intentions. The Bush administration acts with a conscious disregard of humanitarian laws and a stated intention to avoid accountability for their crimes under international law prohibiting crimes against the peace, war crimes and crimes against humanity. The National Security Strategy promulgated by the Bush administration states that the United States "will take the actions necessary to ensure that our efforts to meet our global security commitments and protect Americans are not impaired by the potential for investigations, inquiry or prosecution by the International Criminal Court (ICC), whose jurisdiction does not extend to Americans and which we do not accept." (See source VIII)
ENDLESS WAR, AGGRESSION AND TERROR
Once this policy of preemptive wars of aggression is invoked by the Bush Administration to justify unprovoked attacks against the centers of population in Iraq, the doctrine will be used by the hawks in the administration time and time again, and will also be adopted by nations and individuals internationally as a justification for the preemptive use of catastrophic violence against centers of population worldwide. The legitimization of preemptive wars of aggression will be used to justify attacks against U.S. centers of population, and will bring greater violent retribution upon the cities and people of the United States for actions that the government is taking in their names, without their informed consent.
The risk of suffering harm because of this doctrine is, of course, not distributed equally among all residents of the United States. Those who will lose their lives fighting in wars of aggression will be the young, disproportionately persons of color, and those who must enlist in the U.S. military because of bleak economic opportunity. Those who derive their wealth and security from the transactions of war, from increased oil profits caused by global instability or conquest of oil rich regions, and from the constant re-building and re-arming necessary to conduct endless wars against countless peoples premised on imperceptible threats -- they will have the means to acquire seclusion, protection and greater safety.
Preemptive war will not stop with Iraq. Constant military interventions worldwide are necessary to enforce Bush?s stated policy of global economic, political and military domination. Just four days after the September 11th attacks, the CIA presented its "Worldwide Attack Matrix" identifying scores of countries that the CIA wanted permission to attack. Bush approved the CIA wish list, and authorized immediate covert and lethal CIA operations in over sixty nations. (See source IX)
TAKING TO THE STREETS
As the U.S. moves at breakneck pace in execution of its stated policy of global domination and overt military interventions, the need for the people to take action is urgent.
Congress will not stop this policy of aggressive warfare and global domination. Many in Congress are well served with the tithing of the war profiteers and their corporate sponsors who see U.S. military domination as a way to enforce their interests, to exploit human labor at starvation wages overseas and to drive down wages domestically, to mine vast sources of environmental resources globally, and to impose and expand the reach of their "free" markets.
The U.S. Constitutional framework provides that, regardless of who temporarily holds office, all power remains in the hands of the people. It is time now for the people to take the reins of power back from those who have stated their intention to act in violation of all laws that humankind has struggled to create to end global conflagration and prohibit wars of aggression.
When law will not restrain the government, the people must. We must take to the streets in mass numbers in organized and spontaneous acts of resistance. The message must be clearly conveyed that if the Bush administration refuses to be accountable to U.S. domestic law, to the U.N. Charter, to international law, to all known standards of just conduct, then the people of conscience within the United States will rise up to demand accountability. And the message must be sent that the people of the U.S. will not allow the Bush administration to spend the blood of the people of the United States and the people of Iraq who are not our enemies, in a needless war for oil.
The authors, Carl Messineo and Mara Verheyden-Hilliard, constitutional law and human rights lawyers, are the co-founders of the Partnership for Civil Justice Legal Defense and Education Fund, a public interest legal organization in Washington, D.C., and authors of the forthcoming book "Empire at Home: George W. Bush and John Ashcroft v. the Bill of Rights."
FOR MORE INFORMATION, CONTACT:
Partnership for Civil Justice LDEF
1901 Pennsylvania Ave., N.W.
Washington, D.C. 20006
For a formatted, printable version of this article, go to http://www.civil-rights.net/webdocs/illegal_war.pdf (acrobat reader required)
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for "George Bush Plans High Crimes and Misdemeanors"
I) National Security Strategy of the United States, September 2002, page 29.
II) National Security Strategy of the United States, September 2002, page 30.
III) National Security Strategy of the United States, September 2002, page 18.
IV) Karen DeYoung and Mike Allen, The Washington Post, "Bush Shifts Strategy from Deterrence to Dominance," September 21, 2001, A1.
V) Walter Pincus, The Washington Post, "U.S. Nuclear Arms Stance Modified by Policy Study," March 23, 2002, A14; Thomas E. Ricks and Vernon Loeb, The Washington Post, "Bush Developing Military Policy of Striking First," June 10, 2002, A1.
VI) Principle III, Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (Adopted by the International Law Commission of the United States, 1950).
VII) International Criminal Court Statute, Article 7, paragraph 2.
VIII) National Security Strategy of the United States, September 2002, page 31.
IX) Bob Woodward and Dan Balz, The Washington Post, "At Camp David, Advice and Dissent," January 31, 2002, A1; Bob Woodward, The Washington Post, "President Broadens Anti-Hussein Order," June 16, 2002, A1.
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