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The War on Terrorism and Iraq
The War on Terrorism and in Iraq: America's Role and Conduct in a Fast-Changing World
(Reprinted from The Columbia Law School Report.)
In recent months, members of Columbia's faculty have been asked to comment on the war with Iraq in various fora, from teach-ins to Internet columns.
What follows are statements by some of these faculty that address the war and related issues, such as the fight against terrorism, the treatment of POWs, and the future role of the United Nations in the world.
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The UN's War on Terrorism
Given recent events in Iraq, most of the world's attention has been focused, understandably enough, on the United States' apparent rejection of multilateral fora, especially the United Nations. Criticism of U.S. unilateralism has suggested that all would be well in the war on terrorism if only the United States were to resort to the United Nations. This simplistic prescription ignores the fact that the United States has repeatedly turned to the United Nations for purposes of the broader war against terrorism and that, for the most part, the United Nations has responded positively to U.S. demands.
The resort to the United Nations has not resolved the two principal dilemmas emerging from efforts to combat terrorism namely, defining the scope of legitimate self defense or finding the appropriate balance between respecting the rights of those accused of terrorist acts and protecting national security. Consider, as one example, the U.N. Security Council's Resolution 1373 of September 28, 2001. That resolution, adopted only days before the United States commenced bombing Afghanistan, is rightly seen as one of the United Nation's principal accomplishments after 9/11, but it is not without its problems. In that resolution, the council, presumably with an eye to threatened military action by the United States, affirmed states' individual and collective right of self defense while also imposing on all states extensive obligations to freeze the financial assets of individuals and organizations involved in terrorism.
The council's apparent endorsement of U.S. action in Afghanistan suggests three addenda to the old rules governing the use of force: (1) that violence undertaken by non-state actors may constitute an "armed attack" for purposes of article 2 (4) of the U.N. Charter; (2) that a state's assistance to, harboring of, or ratification of such acts taken within its territory may make the state responsible for such acts and enable military action to be taken against it; and (3) that the right to respond with defensive force against both terrorist individuals and harboring states does not become impermissible retaliation or illegal anticipatory self defense merely because the threat of continued attack remains clandestine and unpredictable. In light of the uncertainties surrounding all three new rules, international lawyers worried about the Bush administration's new preemptive doctrine should keep an eye on the actions of the United Nations as well. Although the council did not endorse U.S. actions in Iraq, it is not clear whether that body will continue to stand in the way should the United States expand its "war" on terrorism to all 60 countries in which al Qaeda is said to operate or elsewhere, wherever weapons of mass destruction might be found. Those concerned about loosening the old constraints on the use of force without imposing new limits on permissible self defense may need to find an alternative to the United Nations.
Similarly those worried about the (im)balances struck between security needs and civil rights by John Ashcroft should not look for enlightenment from the current Security Council. Resolution 1373 and the subsequent lists of alleged terrorists released by the council evince little concern for the due process rights of those it identifies for financial sanction. On the contrary, the council's action, intended to provide a global template for counter-terrorist legislation modeled on the U.S. Patriot Act and related efforts, has drawn the opportunistic support of regimes long hostile to human rights, from Cuba to China. The council is providing a powerful cover for states with repressive laws against "saboteurs" as well as equally ill-defined terrorists. Those who violate human rights now have a new excuse: "The council made me do it." It remains to be seen whether the age of terrorism will displace Professor Louis Henkin's proclaimed "age of rights." If this occurs, the fault may lie at least partly with a U.S.-dominated Security Council.
- Professor José Alvarez
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Democracies at War
The decision to go to war is probably the most important decision that any democratic society can make, and it should be made through democratic processes. In 1991, 2001, and 2002, the U.S. Congress exercised its responsibility under the U.S. Constitution and the War Powers Resolution to decide whether to authorize the president to introduce U.S. armed forces into military hostilities. Comparisons among these cases reveal different degrees of support for the military actions in question, as well as differences in relation to deliberations going on in parallel at the U.N. Security Council.
The vote on the January 1991 Authorization for Use of Military Force Against Iraq Resolution was closely divided, with a vote distribution in the Senate of 52-47. In October 2002, broader support was shown by the votes of 77-23 in the Senate and 296-133 in the House for authorizing the renewed Iraq war. An even more impressive show of support is found in the resolution adopted after the September 11, 2001, attacks, which was unanimous in the Senate and had only one dissenting vote in the House.
While some have characterized the 2001 and 2002 resolutions as giving the president a blank check to conduct military operations not only in Afghanistan and Iraq but effectively around the world, in fact the Congress held back from giving the president everything the White House had requested. The 2001 authorization requires a nexus to the September 11 attacks, and the 2002 authorization requires the president to certify that diplomatic means to resolve the crisis have been exhausted.
In the case of the 1991 war, the U.N. Security Council had already acted in November 1990 to authorize military action, while in fall 2002 the U.S. Congress voted first (on October 10-11) and the Security Council adopted its Resolution 1441 only on November 8. The fact that Congress had already acted in October 2002 strengthened the Bush administration's hand in the negotiations with other Security Council members and potential coalition partners and thereby may have contributed to the successful diplomacy up through Resolution 1441. It is unfortunate that diplomatic initiatives foundered thereafter.
- Professor Lori Damrosch
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An Unauthorized War
When it became clear that the U.N. Security Council would not authorize the war on Iraq, President Bush and Prime Minister Blair argued that prior Security Council resolutions already authorized military action. Yet the particular resolutions they invoked do not support this claim.
In November 1990, the Security Council adopted Resolution 678, authorizing nations "co-operating with the government of Kuwait...to use all necessary means" of dislodging Saddam Hussein's troops from Kuwait. This resolution authorized force only for the purpose of driving the Iraqi military out of Kuwait, an objective that was fully accomplished by 1991.
At the conclusion of the Gulf War, the Security Council adopted Resolution 687. It called for Iraq's destruction and renunciation of biological, chemical, and nuclear arms. Resolution 687 makes clear that its disarmament provisions are governed by the Security Council's resolve "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."
That statement hardly reads as a blank check to any Security Council member or other state to act on its own to require Iraq's disarmament. Instead, it indicates that the Security Council itself, acting via additional resolutions, could act.
Finally, in November 2002, the Security Council passed Resolution 1441. It warned that Iraq would "face serious consequences" if it were to remain in "material breach" of its disarmament obligations. But the resolution expressly states that the Security Council itself, in the event of such a breach, will "consider the situation and the need for full compliance with all of the relevant council resolutions in order to secure international peace and security." Perhaps the war in Iraq was justified, but it was never authorized by the Security Council.
-Professor Michael Dorf
(This statement was excerpted from an essay that originally appeared on FindLaw.com.)
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Military Tribunals
You will notice that I am wearing a beret. This might become the appropriate symbol of resistance. The French did something at the United Nations that I wish our Congress would have had the courage to do namely, stand up and say no to the president of the United States.
For many, 9/11 was the day that stands out as the peak of tragedy. For me another date that comes close is November 13, 2001, when the president issued an executive order to reestablish military tribunals. These tribunals which meet in secret and can impose the death penalty by the vote of three military judges have a long history (dating back to the American Revolution). Bush has not the courage actually to convene a tribunal.
Yet this may all change in Iraq. The administration has said that it intends to prosecute war criminals in Iraq, and on the basis of crimes committed over the past few decades. Where could the government get the authority to do this? Federal court will not work. The answer lies in a Defense Department order issued on February 28, 2003, outlining the crimes that could be punished in military tribunals.
The details of these elements of crimes make it clear that the administration will seek to use military tribunals in the field to prosecute and execute the Iraqi leadership for various crimes in breach of the Geneva Conventions and specially minted crimes such as one called "terrorism." Herein lies the danger of new atrocities in Iraq. We must remain vigilant against the danger that military officers will sit in secret and systematically impose the death penalty on all those they capture in the current war.
-Professor George Fletcher
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