Monsieur RedPhoenixxx wrote:
I studied Law at the London School of Economics (3rd best Uni in the UK) as an undergraduate, and I graduated in 2001. In 2003, I enrolled at Durham University for a Masters in Public Interntional Law, where I graduated with a First, including a grade of 76% at my dissertation, which was on on the legality of the economic reforms made by the CPA in Iraq. The 76% happened to be the highest grade in the year. Next year, I'm enrolling for a PhD, in Public International Law, to write a dissertation on the legality of France's military actions in its African former colonies between 1962 and 2001.
That's my basis.
Which means you've been sufficiently brainwashed to a particular view of international law. Doesn't mean you have an ounce of brainpower. Just that you're wiling and able to parrot back to the professors what they want you to say. Bully for you though.
I'm not impressed by degrees.
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What's yours? Newspapers? Did you read a textbook? Read the UN Charter? Seriously, i'm curous...
I'm smarter then you. I know how to think. I've been trained in critical thinking instead of blindly parroting what I've been told. Any monkey can get a degree. All he needs is time and funding. It is in no way a measurement of his ability to actually understand any given topic.
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Use of force is expressly forbidden in interntional law
(Chapter 2(4)):
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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.
There are only 2 expections to this.
One is self-defence (Chapter VII, Article 51):
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Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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
The other, collective actions taken under the guise of the UN, CXhapter VII, article 49:
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Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Nice. You can quote what other people wrote. Do you understand what this actually means?
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That's it.
So, for the war in Iraq to be legal, it would have to fall under either of those. It clearly doesn't fall under Article 49, since the UN did not get involved, and the 2nd resolution which would've authorised UN action was not even discussed.
So, the only way you could argue it was legal, was under self-defense. As far as I know, the US didn't come under attack from Iraq, so no self-defense.
Some would argue the Bush doctrine of "pre-emptive" self-defence, which is tenous at best, but acceptable in some cases, such as nukes. But Iraq was nowhere near attacking the US, and was not planning an attack on it. So even pre-emptive self-defense doesn't apply.
Um... You're deliberately employing your own, intentionally false, interpretation of what you think Bush's reasoning is. The only people I've ever heard actually use the "pre-emptive self defense" argument are people like yourself when attempting to argue *against* it. That's a strawman. While I'm sure Bush has made comments like "we need to attack them before they attack us", that's a political argument, not a legal one. As I pointed out before, there's a difference between why you *can* do something, and why you actually choose to do that thing. You're arguing the latter as though it is the former.
By definition, a cease fire means that all the member states are still at a "state of war" with the nation(s) in question. That is inherent in the definition of "cease fire". It's not a peace treaty. The mere fact of being at war with another state means that the "self defense" argument applies to all nations involved all the time.
The UN does not have the power to eternally keep member states in a state of war against their wishes. Had the UN negotiated a peace agreement, that would be perfectly ok, and the US would have abided by the terms of that agreement (as they are required). But the UN did not do this. It had ample opportunity to do so, but failed.
The sections you are quoting assume that we're starting from a condition of peace and the potential for war occurs. But that's *not* the situation here. Here we are already at war, and the UN is holding us in a state of war even when it becomes abundantly clear that the terms of the cease fire will not be met. The UN *should* have chosen to either resume the conflict until a resolution was reached, or crafted a peace treaty to resolve the state of war (with the potential for then imposing new, but non cease-fire related sanctions against Iraq). It choose not to do either of those things.
Thus. The US had the right to resume hostilites. Nothing in the UN charter specifies that a nation in an existing state of war can be prevented from from resolving that conflict in which it is already engaged via the use of military force.
In fact, the closest case to this situation present in the charter are the numerous exceptions placed for those states currently engaged in WW2 (the UN charter was signed prior to the end of that conflict). Clearly, the intent was *not* for the UN to be empowered to prevent nations from fighting wars they are already engaged in, but to mediate and attempt to prevent new wars from starting going forward.
You've read the charter, but you clearly don't understand what it means, nor how it must be applied in the situation we're discussing.
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- Breach of the terms of the cease-fire: Who determines that the terms have been breached? According to Paragraph 34 of Resolution 687, "[The Security Council] decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area."
So, if anyone was to decide that terms had been breached, it was the SC, not the US.
Again. You read, but don't understand. The UN SC is empowered to make decisions regarding the UNs actions on this (they "remain seized of the matter"). This still does not in anyway remove the right of any nation already in a state of war to resolve that conflict via the use of military force.
Also. The "current resolution" is the cease fire agreement. See, there's an odd bit of illogic going on here. A cease fire agreement by definition is non-binding. The resolution is a list of demands that Iraq must meet in order to qualify for a peace agreement (or at least to move on to the next stage towards one). You cannot argue that the resolution itself binds us to a cease fire with the conditions within since that's contrary to what a cease fire is. The cease fire is an agreement not to fire while those agreements are being reached. The UN is welcome to remain seized of the terms and enforcement of the peace agreement it's trying to negotiate, but that in no way removes the inherent right of any participant nation to a conflict to fight in that conflict if it feels that that is the appropriate action it needs to take.
If the UN truely wanted to put itself in the position of fully being seized of the matter, they should have resolved a peace agreement (purely to end the state of war), and then resolved new sanctions and terms to deal with Iraq. It could have done this, but didn't. Thus, it choose to keep the nations involved in a state of war, thus it did *not* remove their own rights with regard to that conflict.
Again. The UN as an entity does not have the power to keep member nations in a state of war indefinately. In fact, this runs counter to the entire stated purpose of the UN itself. But the only way your interpretation works is if this is the case. Clearly, it's not. Thus, clearly you are wrong. The UN is empowered to determine if/when the terms of that agreement have been reached, but it is *not* empowered to prevent any participant in the war from continuing it if they choose.
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But, I know what you're going to say. Maybe invoke Article 60 of the Vienna Convention? The one that states that:
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A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.'
Cos that would be an awesome argument, right? Totally awesome, even, if only it didn't say "bilateral treaty".
So no, that doesn't apply either.
It doesn't apply because there's no treaty involved. See the difference? We were in a state of "cease fire". By definition that is *not* a treaty of any sort. There's nothing to violate here. By assumption a cease fire is non-binding to the parties involved. They get to choose whether to fire or not at their own whims, and with no need for anyone else's permission.
Look up the definition of a cease fire sometime. It might help you with your legal interpretation.
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And, to further compund the point, it is worth noting that Article 33 of the resolution 687 says that: "upon official
notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678".
Hence the cease-fire was effective upon, and dependent on, the "notification" of the acceptance, not the continuing acceptance. I could even quote Dr Glen Rangwala, a famous international lawyer at Cambridge University,
who says that "'the standard view in international law — both from academics and from states — has been that a ceasefire returns the parties to a state of peace, and any prior right to use force is terminated."
Yes. A cease fire. Not a peace treaty. Get it yet?
The UN's rules for nations instigating military action apply only to nations currently at a state of peace. We weren't at a state of peace with Iraq.
Again: find me where in the UN charter it says that it has the power to authorize (or not authorize) nations currently at a state of war from fighting. It's not there... Thus, it's not a violation of the UN charter. Thus, it's not illegal.
It really is *that* simple...