War--what's it good for? absolutely nothin'

[Stephen Bragaw]

Unfortunately, it is exactly this line of argument which is why the United
States should never ratify the International Criminal Court.  In my humble
opinion, the ancient and useful notion of international law has been highjacked
by those who operate from the original position that the United States is ipso
facto a racist, genocidal, colonialist, imperial regime that cannot act
legitimately, and therefore must be stopped always and everywhere at all costs.
 The attitude "AQ **perhaps** has committed crimes against humanity, but we all
know who the REAL war criminals are....wink wink, nudge nudge...the Americans
and the Zionists" is doing great damage by erroding belief in the proper
role--and place--of international law itself.  And that is a great tragedy.


Quoting Francisco Martin <ricenter at IGC.ORG>:

> I think that the analogy of al-Qaida to pirates is very appropriate for
> another reason.  Pirates sometimes were privateers earlier because they had
> received letters of marque and reprisal from a national government
> authorizing them to wage war on military vessels of enemy states and seize
> the vessels and their cargo as prize.  They became pirates when they
> violated the laws of customs of war by seizing non-military vessels or
> vessels from non-hostile states. When apprehended, these pirates sometimes
> claimed that they had authority under international law by virtue of these
> letters.
>
> Bin Laden subsequent to the 911 attacks mistakenly claimed that al Qaida
> was complying with international law because the U.S. was acting as alien
> occupier of Saudi Arabia and other Islamic countries.  Bin Laden -- not a
> great international law expert -- did not fulfill all the conditions
> allowing for non-state actors to receive protection under the First
> Additional Protocol to the Geneva Conventions which governs conflicts in
> which "peoples are fighting against colonial domination and alien
> occupation and against racist regimes in the exercise of their right to
> self-determination." GC-I, art. 1 (4).
>
> The reason why al Qaida members do not receive combat immunity for
> attacking U.S. military targets is that there is no combat immunity
> available under the customary international law of armed conflict for such
> persons committing international crimes, and al-Qaida clearly has committed
> crimes against humanity.  However, this does not mean that any force used
> against al Qaida members is lawful under international law. International
> human rights law only allows force to be used if there is no other viable
> alternative, and such force must be calculated to cause the least amount of
> physical and mental suffering.  Unfortunately, I think that the U.S. may
> have committed such war crimes by using disproportionate force in some
> circumstances.
>
> Francisco Forrest Martin
> President
> Rights International, The Center for International Human Rights Law, Inc.
> <ricenter at rightsinternational.org>
>
>
> > [Original Message]
> > From: Michael Froomkin - U.Miami School of Law <froomkin at LAW.MIAMI.EDU>
> > To: <CONLAWPROF at listserv.ucla.edu>
> > Date: 11/5/2002 10:27:55 AM
> > Subject: Re: War
> >
> > On Tue, 5 Nov 2002, msellers wrote:
> >
> > > The difference is this: al-Qaeda violated the laws of war and of
> humanity by
> > > its attacks on U.S. Embassies, the World Trade Center, the Pentagon,
> > > commercial airliners and many other acts of terror and attempted acts
> of
> > > terror around the world.  Under international law these are erga omnes
> > > violations of international law such that every state has the right to
> punish
> > > the perpetrators.  The United States, as the particular target of these
> >
> > But doesn't this sound exactly like a campaign against piracy? The
> > one-sidedness of international rights is one of the ways anti-piracy
> > differs from "war," a state in which the rights/duties are symmetrical.
> > The other, arguably, is that such a campaign doesn't trigger whatever
> > special constitutional regime of more-limited civil rights is appropriate
> > "for the duration" -- and one of the reasons is that there is no knowable
> > end to the campaign.
> >
> > One consequence of equating terrorism with piracy is that it
> > strengthens our international case for universal condemnation of the
> > 'pirates' -- and an international right (obligation?) to act against
> them.
> >
> > But, it seems to me tha the domestic constitutional law consequence of
> the
> > 'piracy' approach is that, while we could profitably discuss whether a
> > campaign against modern pirates with the ability to do us great harm on
> > home soil requires some evolution of our constitutional doctrine, we'd
> > need to do so practically from first principles rather than simply
> > plugging in 'wartime' precedents regarding reductions on civil rights.
> >
> >
> > > attacks, also has a special obligation of security to its citizens that
> > > requires the government to take action to punish these violations of
> > > international law and to prevent further attacks.  By waging war
> against
> > > al-Qaeda and killing al-Qaeda combatants, the United States is
> enforcing
> > > international law.
> > >
> > > Al-Qaeda, however, has no legitimacy of any kind under international
> law.  It
> > > has no right to wage war, and has not in any case ever respected the
> laws of
> > > war, or expressed any desire to do so.  On both counts any use of armed
> force
> > > of any kind by al-Qaeda operatives is illegal under international law.
> > >
> > > >===== Original Message From Discussion list for con law professors
> > > <CONLAWPROF at listserv.ucla.edu> =====
> > > >-For those who think we are at war with al-Qaeda, I assume it follows
> that it
> > > is at war with us?  That is to say, if it is a legitimate act of combat
> for us
> > > to kill an al-Qaeda leader driving across a desert in Yemen because we
> think
> > > he helped plan
> > > >the raid on the USS Cole, then on the same theory is it a legitimate
> act of
> > > combat for an al-Qaeda member to kill a US general walking across a
> street in
> > > London because the organization believes that the general helped plan
> raids on
> > > Osama bin
> > > >Laden's caves?
> > > >Is there some way as a legal matter that one of these could be combat
> and the
> > > other murder? -E.
> > > >
> > > >
> > > >             ***********
> > > >      Prof. Eric M. Freedman
> > > >      Hofstra Law School
> > > >      Hempstead, NY  11550
> > > >      LAWEMF at Hofstra.edu
> > > >      Tel. 516-463-5167
> > > >      Fax 516-463-5129
> > > >  Home Office:
> > > >   Tel. 212-665-2713
> > > >    Fax 212-665-2714
> > > >            ***********
> > >
> >
> > --
> >                 Please visit http://www.icannwatch.org
> > A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> > +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
> >                         -->It's hot here.<--
>