Nicolas J S Davies

A collection of published articles and letters to policymakers regarding the crisis in United States foreign policy by Nicolas J S Davies.

Location: North Miami, Florida, United States

Thursday, January 15, 2004

Letter to Bush on Illegality of War in Iraq

President George W. Bush
The White House
Washington DC 20501

Thursday, January 15th 2004

Dear Mr. President,

I am writing today regarding the legality under international law of the invasion and occupation of Iraq. While you have equivocated on the question of legality, certain members of your administration have suggested that the United States is not strictly bound by international law, and Richard Perle has admitted that the invasion was in fact illegal (The Guardian, 11/20/03). You must be aware that the U.S. Constitution takes a very different view. Article VI Clause 2 reads: -

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”.

The Pact of Paris (Kellogg-Briand Pact), signed by President Coolidge in 1928 and ratified by the U.S. Senate, states: -

Article I – The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.

Article II – The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

At the Nuremberg trials in 1946, defendants were convicted of two categories of crime: (1) war of aggression; and (2) war crimes relevant to battlefield conduct. The judges based their convictions for the first category of crime, war of aggression, upon the above articles of the Kellogg-Briand Pact. I am including the following rather lengthy excerpts from the Nuremberg Judgement because they happen to address the very question and arguments we are confronting today: -

“The charges in the indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

… It is clear that as early as October 1939 the question of invading Norway was under consideration. The defense that has been made here is that Germany was compelled to attack Norway to forestall an Allied invasion, and her action was therefore preventive.

It must be remembered that preventive action in foreign territory is justified only in case of “an instant and overwhelming necessity for self-defense leaving no choice of means and no moment of deliberation.” (The Caroline Case, Moore’s Digest of International Law, Vol. II, p. 412.) …When the plans for an attack on Norway were being made they were not made for the purpose of forestalling an imminent Allied landing, but, at the most, that they might prevent an Allied occupation at some future date.

It was further argued that Germany alone could decide, in accordance with the reservations made by many of the Signatory Powers at the time of the conclusion of the Kellogg-Briand Pact, whether preventive action was a necessity, and that in making her decision her judgment was conclusive. But whether action taken under claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced…

Occupying the positions they did in the government of Germany, the defendants, or at least some of them, must have known of the treaties signed by Germany outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression.

This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of August 27, 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on sixty-three nations, including Germany, Italy and Japan at the outbreak of war in 1939…

The question is, what was the legal effect of this pact? The nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the pact, any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the pact. As Mr. Henry L. Stimson, then Secretary of State of the United States, said in 1932:

“War between nations was renounced by the signatories of the Kellogg-Briand Treaty. This means that it has become throughout practically the entire world…an illegal thing. Hereafter, when engaged in armed conflict, either one or both of them must be termed violators of this general treaty law…We denounce them as law breakers.”

For many years past, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by the Hague Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention.

The view which the Tribunal takes of the true interpretation of the pact is supported by the international history which preceded it… All these expressions of opinion, and others that could be cited, so solemnly made, reinforce the construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world, finds its expression in the series of Pacts and Treaties to which the Tribunal has just referred.”

The Nuremberg Tribunal based its judgment on international law in effect at the outbreak of war, and the trial procedures were formulated in the London Treaty. However, in 1945, the nations that signed the United Nations Charter made additional commitments to the peaceful resolution of international problems.

Article 2 (4) states: - “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.”

Article 39 confers the competence to use force on the Security Council, and not on individual states: - “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression, and shall make recommendations, or decide what measures shall be taken…to maintain or restore international peace and security.”

In the case of a Vietnam era conscientious objector (Mora v. McNamara, 1967), the U.S. Supreme Court cited Article 39 of the U.N. Charter, the Kellogg-Briand Pact, and the London Treaty as the relevant treaties governing “various aspects of wars of aggression”, and I am not aware of any more recent treaties that substantially alter this body of international law. You have argued that today’s world is so changed from earlier times that “old rules” no longer apply, but you have made no effort to legitimize this opinion by any new treaty or any amendment to the treaties cited above by the Nuremberg Tribunal and the U.S. Supreme Court.

The U.S. and British governments made considerable efforts to initiate an invasion of Iraq under the auspices of Article 39. The British parliamentary enquiry into the suicide of Dr. David Kelly has learned that MI6, the British military counter-intelligence agency, launched a program called Operation Mass Appeal to plant stories about illegal Iraqi weapons in newspapers in Poland, India and South Africa as early as 1997. These were supposed to filter back to mainstream media in Western Europe and North America to promote the belief that Iraq still retained effective stockpiles of the weapons that it imported from the U.S., Britain and elsewhere in the 1980s (The Sunday Times, 12/28/03).

These efforts failed, millions of people all over the world united in opposition to the prospect of war, and their governments voted in the Security Council and the General Assembly for an effective regime of weapons inspections in Iraq in place of precipitous military action. At this point, you ordered an invasion of Iraq, which Mr. Perle has now reportedly acknowledged as a deliberate violation of the Kellogg-Briand treaty and the U.N. Charter.

I believe that we, as Americans, now have a collective responsibility to right a wrong that we have committed, one that continues to this day in the bloody military occupation and the continuing effort to install an unelected pro-American regime in Iraq. The search for an appropriate remedy is already a subject of soul-searching and debate throughout our country, but the very first step should be a return to international legality by the submission of this entire problem to the U.N. Security Council, without prejudice, for its most urgent attention under Article 39 of the U.N. Charter. I hope that you will seriously consider taking this important step before there is further deterioration and even greater loss of life.

Yours sincerely