war powers

[Francisco Martin]

Prof. Ides wrote in relevant part:
>This scenario also raises the interesting question of the extent to which
our
> foreign policy constitution is itself "constitutionally" infirm to the
> extent that it apparently allows the US to take military action
> regardless of international norms of conduct.

It is not clear that the US would be violating international law if it
escalated its attacks on Iraq.  Recall that since the "end" of the Gulf
War, Iraq has continued to engage US military aircraft that has required US
forces to attack Iraqi military targets. Under the Fourth Hague Convention
(art. 40) -- to which the U.S. is a party-- a serious violation of an
armistice allows the immediate recommencing of hostilities.  Therefore, the
US is very much still at "war" with Iraq.

Furthermore, the US has an affirmative state duty under international human
rights law to prevent the foreseeable (Osman v. UK) commission of
widespread or systemic violations of the rights to life and humane
treatment (Velasquez Rodriguez v. Honduras) committed extraterritorially
and to bring any persons before US courts committing grave breaches of the
Geneva Conventions (art.146).  Iraq continues to commit such violations in
Iraqi territory under both no-fly and fly zones, and (given its gassing of
the Kurds) it is certainly foreseeable that it will continue to do so in an
even greater manner if allowed to further develop weapons of mass
destruction. Also, the defense of others (e.g., Iraqis, Israelis, Saudis)
is a lawful defense under international law. See ICC Statute, art. 31.

Although the UN Charter prohibits the threat or use of force against the
territorial integrity or political independence of any state (art. 2(4)),
this jus cogens prohibition must be construed with other jus cogens norms,
such as the rights to life, humane treatment, and self-determination. And,
although the UN Charter requires Security Council authorization for
regional enforcement actions (art. 53), again, this provision must be
interpreted in conformity with the aforementioned jus cogens norms.

However, under international human rights and humanitarian law, force may
be used only if there is no other viable alternative, and when such force
is absolutely necessary, the means or methods implemented must cause the
least physical or mental suffering. See McCann v. UK, Satik v. Turkey, Ng
v. Canada.  Therefore, until the US exhausts all viable alternatives to
force, it may not use force. Such alternatives include effective
inspections.  If all such alternatives fail, then the use of force may
cause only the least amount of suffering. Even the President's military use
of force authorized by a congressional resolution allowing the violation of
these international legal requirements may be violative of the
Constitution. See US v. Macintosh, 283 U.S. 605 (1931) (Congress under war
powers authority may not violate international law) (dictum).

Francisco Forrest Martin