Subject: Re: legal angle To: rhisiart at earthlink.net CC: davela at lineone.net
I doubt that any resolutions so far have made the present war legal, because nowhere exists any clear definition of what 'the right of self-defence' in the Charter permits; nor (and yet more important) is there any suggestion that 'collective self-defence' widens the legality of any actions taken. The fact here is that the whole question is shrouded (a good word, in the circumstances), in doubt.
That this does not imply legality is made much stronger by the resolute abstention or refusal to request a ruling from the International Court of Justice on the legality of the measures now being employed against the Taliban. This failure to invoke the only authoritative source relating to international law is of course the deliberate choice of the nation-state governments, above all the permanent members of the Security Council. As long as there is no clear ruling of illegality, they can play ducks and drakes with international law on all sorts of issues.
But that does not make the war legal. John Roberts
At 06:26 PM 11/22/2001, you wrote:
>I asked Ian Williams to comment on Francis Boyle's talk, forwarded to this
>list, and to address the legality of the war in general. Here's his response.
>
>Doug
>
>----
>
>At 10:50 AM -0500 11/22/01, Ian Williams wrote:
>>The US did not seek the Sept 12 resolution. The French introduced it. That
>>resolution invoked the article of the Charter determining that the US would
>>be acting in self defence. Under the UN charter military action is illegal
>>unless authorized by the Security Council under Chapter VII, - or in self
>>defence. So the resolution made specific authorization of military action
>>un-necessary. It was a dangerous blank cheque, since at the time no one was
>>sure whether the Wolfowitz's would win in Washington.
>>
>>But it was a legal blank cheque. At the same time NATO Council decided that
>>it was an attack on one of its members which therefore permitted collective
>>action.
>>
>>Later the US did go back for resolution 1373, which repeated all the above,
>>listed specific measures to be taken and invoked under Chapter VII making
>>it legally binding. At no time for either resolution was there any
>>opposition whatsoever from any member of the Security Council, including
>>Russia and China. At no time has anyone on the Council raised any objections
>>whatsoever to US action.
>>
>>And Afghanistan was already under sanctions by the SC for refusal to hand
>>over Bin Laden over Nairobi etc.
>>
>>
>>As I think I said in ITT, it reminds me of all the people who opposed the
>>definitely UN authorized Gulf War and then tut-tutted because NATO did not
>>go to the SC over Kosovo.
>>
>>The war is definitely legal. You can oppose the tactics, and maybe even the
>>targets may be illegal - certainly if the bombing of AlJazeera was
>>deliberate is was a war crime, but the international community regards the
>>war itself as legal under international law. Perhaps the encouraging thing
>>is that the US did actually go out of its normally unilateralist way to
>>secure legal cover.
>>
>>
>>Is it a just war, or a fair war, Is it politically or ethically sound? They
>>are different questions. Of course there is a hypocrisy factor. As Francis
>>Boyle himself would point out, all of the countries concerned let Bosnia
>>stew in its blood for years despite UN resolutions that called upon them to
>>act. In an area swarming with NATO troops, Mladic and Karadjic are free
>>despite Srebrenica, which killed twice as many people as at the WTC.