Why Bush's War Is Illegal
By Paul W. Lovinger and Harry Scott
Not all 58,195 American bodies had come back from Vietnam yet when
in 1970
Three
days after the terrorist suicide attacks of Sept. 11, 2001, with only one nay (in the House), Congress enacted
another vague resolution that President George W. Bush has taken as license to
attack Afghanistan and any other
countries of his choice with bombs and troops. Congress will
repeal it, as it did in '70 – but will it take so much time and so many
bodies?
On
four main grounds, we charge that the resolution violates the Constitution, and
that the war it supposedly authorizes contradicts U.S. treaty obligations.
1. Congress's war resolution was
an unconstitutional delegation of power.
On
Sept. 14 Congress hastily turned over to the president its constitutional power
to declare war. He may fight
any "nations, organizations, or persons," if he
"determines" that they "aided" the Sept. 11 terrorist
attacks – or even "harbored" anyone who did.
The
resolution names no country and states no objective. After attacking the
Afghans, President Bush sent troops to fight Philippine rebels and escalated
Clinton's undeclared drug war in Colombia to a war on rebels there. He has planned an attack on Iraq to
overthrow its president and has considered actions in Somalia, Sudan, Yemen,
Syria, and Indonesia. He does not
seem to care any longer about Sept. 11.
He treats the congressional resolution as a blank check giving him
absolute, dictatorial power to wage lasting war, world war, or nuclear war.
The
Pentagon has studied some 60 countries as potential targets. Vice-President Dick Cheney warns that
the war may not be over "in our lifetime" (10-21-01). It may be nuclear. President Bush has ordered the military
to prepare plans to drop atomic bombs on at least seven countries and use
smaller nuclear weapons in battlefields (Los Angeles Times, 3-9-02).
Professors Francis D. Wormuth and Edwin Firmage wrote in To Chain
the Dog of War: The War Power of Congress in History and Law (1986): "Does the grant of the power to Congress ‘to declare
war' include the power ‘to declare future wars,’ whether by authorizing
presidential action or by other means? No, it does not.... One cannot enter into a future state of
war in the present, any more than one can enter into a future state of marriage....
Congressional declarations of war, whether general or limited ... have always
Congress did not declare war on Afghanistan or any other country. Instead it gave the president the go-ahead
to attack enemies that he would choose in the future. Attorney
2. Bombing communities and
hospitals violates international and U.S. law
Since
the bombing of Afghanistan began on Oct. 8, disastrous results have been reported
almost daily. Examples:
•
The village of Karam was razed and survivors spoke of 200 dead (BBC, 10-10-01).
•
Planes bombed a hospital in the city of Herat; the Afghans said over 100 died
(AP, 10-22-01). A mosque there and
a nearby village were also hit, with cluster bombs and armor-penetrating
explosives, the U.N. said (AFP, 10-25-01). (Such explosives, using depleted uranium, were dropped on
the Yugoslavs in the Clinton-NATO war of 1999.)
• Red Cross warehouses, marked on top, were bombed on three occasions
in Kabul, and one bomb meant for them "inadvertently" hit residences
(Reuters, 10-27-01).
•
In the city of Kandahar, bombs destroyed a bus, killing seven or eight
riders
(The Times, London, 10-28-01), and badly damaged a hospital operated by the Red
Crescent (Muslim equivalent of the Red Cross); a doctor said 15 were killed
(AP, 10-31-01).
• Waves of jets leveled the village of Chokar Karaiz, killing
at least 60, survivors said (AFP, 11-2-01).
•
More than 25 bombs destroyed the village of Kama Ado, killing between 100 and
200 civilians, witnesses and survivors said; and bombings killed at least 50
villagers at Khan-e-Muirajuddin, according to a security chief (AP, 12-1-01).
•
Warplanes attacked a convoy of tribal elders going from Paktia province to
Kabul, killing 15 and then 50 nearby villagers; later, planes attacked the
village of Naka, killing up to 40 and wounding up to 60 (The Guardian, UK, 12-28-01, citing Reuters).
•
In place of ten homes and up to 107 residents, many of them children and women,
piles of brick, pieces of human flesh and hair, and pools of blood remained
after a pre-dawn air raid demolished the village of Qalaye Niazi as its
inhabitants slept after a wedding celebration (Reuters, 12-31-01, and Los
Angeles Times, 1-8-02).
The
air raids violate The Hague Conventions (1899, 1907), banning the bombardment
of towns, villages, dwellings or undefended buildings; poisoned arms; arms to
cause unnecessary suffering; treacherous killing; and refusing to allow an
enemy to surrender. Geneva
Conventions outlawed attacks on any hospitals (1949). All were approved by the U.S. A 1977 protocol to the Geneva pacts condemned attacks on
civilians or indiscriminate attacks.
(The U.S. signed it; the Senate has not voted on it.)
Donald Rumsfeld, secretary of defense, says the military "does not target civilians." Yet he admits knowingly taking action that kills them: "There is no question that when one is engaged militarily ... [there will be] unintended loss of life." (Briefing 10-11-01) In a murder trial, the accused cannot argue, "It was an accident. I meant to kill somebody else."
The Pentagon has released lists of its "inadvertent" bombings
of civilians. It admitted intentionally
bombing the Red Cross warehouses, containing food, in a "targeting error."
The UN estimated that 7.5 million Afghans were near starvation.
Ted
Rall wrote, after a trip to the war zone, "We've already killed more
civilians than died in the 9-11 attacks – and as we know firsthand, seeing
innocent people killed creates rage among their survivors. To the Afghans, we're the terrorists" (Yahoo, 2-20-02).
Note that under Article VI of the Constitution, "all treaties made ... under the authority of the United States, shall be the supreme law of the land...."
3.
Bush refused to seek a peaceful solution, contrary to the U.N. Charter.
The
Charter of the United Nations is another U.S. treaty (1945, San Francisco).
Article
2: "All members shall settle
their international disputes by peaceful means" and "refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state."
Article 33: nations in any
dispute that endangers peace "shall, first of all, seek a
Bush
took none of those steps. When the
Afghan leaders, then the Taliban, offered to negotiate a peaceful solution
before Bush began his bombing, he refused. His aim, then supposedly to catch Osama bin Laden, became to
"get rid of this particular regime" (he told business leaders in
Sacramento, 10-17-01) – an aim for which the Charter prohibits force.
The
Sept. 14 resolution mentions "self-defense" as one of its
purposes. The U.N. Charter (Article
51) allows it only until the
Security Council has acted to restore peace and security. In a murder trial, no defendant could
get away with a "self-defense" plea if he had spent a month planning,
traveled far to break into his victim's home, and put a bomb there.
4. A U.S. treaty renounces war as
an instrument of national policy.
The
Pact of Paris, or the Treaty for the Renunciation of War as an Instrument of
National Policy, made aggressive war illegal and its initiation an individual
crime. The Nuremberg tribunal
sentenced Nazi leaders to death under it.
(The treaty, of 1928, is better known as the Kellogg-Briand Peace Pact,
after its promoters, Frank B. Kellogg, secretary of state under President
Calvin Coolidge; and Aristide Briand, French foreign minister.)
The
U.S. resolution lists among its rationales "the threat to the national
security and foreign policy...."
It wrongly states that the president has "authority under the
Constitution to take action to deter and prevent acts of international terrorism,"
implying that attacking countries will do so. But haven't our attacks and global presence caused violent anti-Americanism?
Standing
headlines say "America strikes back." The French news agency AFP has expressed the popular view
that the bombings were "retaliation" (10-23-01). Few consider the logic of killing
Afghans to punish terrorism committed mostly by Saudi-Arabians. But anyway, retribution is an unlawful
war aim. One columnist advocated
bombing Moslem peoples, converting them to Christianity and killing their leaders
(Ann Coulter, 9-13-01).
In
July 2001, two months before the terrorists struck the United States, U.S.
officials told of plans to attack Afghanistan in October and replace its
regime, a former Pakistani foreign secretary informed British Broadcasting
Corporation (BBC Internet report 9-18-01). Likewise Bush aims at replacing Iraq's regime. His objective in each case has been the
"nation building" that he told voters he opposed – far from
"self-defense."
Lovinger is WALL's founder and secretary, a journalist, and the author
of The Penguin Dictionary of
War and Law League (WALL), P.O. Box 42-7237, San Francisco, CA 94142
warandlaw@yahoo.com
/ www.warandlaw.homestead.com