Violation of International Law: Where is Obama’s “Authorization to Use Force” in Iraq
There was much enthusiasm in 2008 that President Barack Obama
would bring a saner and more lawful approach to issues of foreign policy
and war and peace. Six years later — with Americans still being killed
in Afghanistan, Guantanamo Bay still in active operation, US drones
killing people in several countries and even American citizens, and now
new mischief in Iraq — it is clear that President Obama has done little
more than expand the already large war-making powers of his predecessor
and fully enabled the vision of a “unitary executive”
with unfettered powers in war and peace.
Where is, for example, President Obama’s domestic authorization for the use of force in Iraq against the Islamic State? Obama has taken the position that
the 2001 Authorization of Use of Force (“AUMF”) passed by Congress in
the wake of the 9/11 attacks, as well as the 2002 AUMF against Iraq
passed before that war provide him with the legal basis for further air
strikes. None other than John Yoo, the famous ratifier of torture in the George W. Bush Administration, has rushed to Obama’s defense, claiming that Obama has all the legal authority he needs under the 2001 and 2002 AUMFs.
But the notion that these Authorizations support current military
action against the Islamic State more than a decade after they were
initially passed is highly flawed. The 2001 AUMF was specifically limited to terrorist groups that had planned or aided the 9/11 attacks.
There is zero evidence (and no government official has yet argued) that
the Islamic State is somehow tied to 9/11. The 2002 AUMF, which
provided the domestic legal basis for the Iraq War, is also untenable as
justification for this war as it was based on the purported “threat” posed by Saddam Hussein. Indeed, through his National Security Advisor Susan Rice, Obama himself called
for the revocation of the 2002 AUMF in July, mere weeks before now
claiming it as a renewed basis for the adventurism in Iraq.
The attacks are also bereft of any basis in international law.
Under the United Nations Charter, a country may only use armed force
against another country in self-defense, or when approved by the United
Nations Security Council. There is no resolution that has authorized the
US strikes in Iraq; and the notion that the United States must lob
bombs into Iraq as a matter of self-defense is simply not credible.
While not made explicitly (at least not yet), the White House will
likely rely on a tenuous theory in international law called the
“responsibility to protect,” which argues that countries may involve
themselves militarily in other countries in order to protect civilians
or prevent other imminent humanitarian harms. This was the basis of the
bombing campaign against the former Yugoslavia, which never had UN
Security Council authorization. Obama’s current Ambassador to the United
Nations, Samantha Power, is a well known advocate of this doctrine and
she has recently argued that the US has all the legal authorization it needs for the air campaign.
But there is no basis in international law for such a theory, and
more clear-minded observers have rightly concluded that the so-called
“responsibility to protect” is a thinly-veiled excuse for Western
meddling in countries thousands of miles away. As Antony Loewenstein notes:
We never hear any [responsibility to protect] backers
pushing for a military intervention in Gaza to protect the Palestinians
from Israeli missiles. Nobody is talking about protecting Egyptian
civilians from the brutal, US-backed dictatorship in Egypt. Barely a
word is raised to protect the repressed activists in Bahrain or Saudi
Arabia. Whether it’s dressed up as solidarity, a responsibility to
protect, or an intervention to prevent breaches of human rights, from
Iraq to Libya these are grotesque experiments on helpless civilians, the
conclusions of which are clear for us to see.
The Nuremberg Trials, which outlawed wars not conducted in conformity
in international law, made no exceptions for “responsibility to
protect,” and in fact labeled any war not conducted with a solid legal
footing as the “crime of aggression,” considered the supreme
international crime – largely because of the horrific consequences that
take place when wars break out. Yet here, too, this White House has recently argued to the Northern District of California that the Nuremberg Trials are “irrelevant” to the determination of whether Presidents can be held accountable for their actions with respect to war and peace.
From a historical point of view, it is ironic that a young senator
from Illinois who campaigned in large part agains the Iraq War and who
showcased his credentials as a constitutional scholar would be the
handmaiden of the permanent “state of exception” described by the
National Socialist philosopher Carl Schmitt, who argued that sovereigns
should have the right to suspend the legal and juridical constraints of
their societies so that they may act outside of law. This is the
opposite of the legal constitutionalism that forms the philosophical
basis of the American legal order, which can be summarized with the
words of Edward Coke: “The King himself should be under no man, but
under God and the Law.”
Even six years later, the stings and scars of the Bush-era wars still
haunt those who favor civilization over barbarity, and certainly
continue to physically affect those who fought on either side, as well
as the millions of civilians who always suffer when wars take place.
The failure of President Obama to seek a more rational foreign policy
is a disquieting but important lesson: those pressing for a lawful,
constitutional government that resolves international conflicts instead
of initiating them have far more work to do and cannot rely on the
promises — falsely given — by politicians from any political party. The
last Administration was wrong, but it was openly wrong and harbored no
pretenses that it sought an imperial Presidency. In contrast, this
Administration has cloaked itself in sanctimony even while consolidating
the grave excesses of its predecessor. Both parties remain committed to
imperialism and the wars that accompany them, or in the immortal words
of Tacitus, writing two millennia ago of those who dismantled the
ancient republic in Rome in order to create a dynastic and militant
empire: “To ravage, to slaughter, to usurp under false titles, they call
empire; and where they make a desert, they call it peace.”
D. Inder Comar is legal director at Comar Law.
Comar Law is currently litigating a lawsuit against members of the Bush
Administration for allegedly committing aggression against Iraq (Saleh
v. Bush, N.D. Cal. Mar. 13, 2013, 13-cv-1124 JST).
No comments:
Post a Comment