Violation of International Law: Where is Obama’s “Authorization to Use Force” in Iraq

Violation of International Law: Where is Obama’s “Authorization to Use Force” in Iraq

By Inder Comar
Global Research, September 22, 2014
Url of this article:
http://www.globalresearch.ca/violation-of-international-law-where-is-obamas-auth
orization-to-use-force-in-iraq/5403463

There was much enthusiasm in 2008 that President Barack Obama would bring a saner and more
lawful approach to issues of foreign policy and war and peace. Six years later — with
Americans still being killed in Afghanistan, Guantanamo Bay still in active operation, US
drones killing people in several countries and even American citizens, and now new
mischief in Iraq — it is clear that President Obama has done little more than expand the
already large war-making powers of his predecessor and fully enabled the vision of a
“unitary executive” with unfettered powers in war and peace.

Where is, for example, President Obama’s domestic authorization for the use of force in
Iraq against the Islamic State? Obama has taken the position that the 2001 Authorization
of Use of Force (“AUMF”) passed by Congress in the wake of the 9/11 attacks, as well as
the 2002 AUMF against Iraq passed before that war provide him with the legal basis for
further air strikes. None other than John Yoo, the famous ratifier of torture in the
George W. Bush Administration, has rushed to Obama’s defense, claiming that Obama has all
the legal authority he needs under the 2001 and 2002 AUMFs.

But the notion that these Authorizations support current military action against the
Islamic State more than a decade after they were initially passed is highly flawed. The
2001 AUMF was specifically limited to terrorist groups that had planned or aided the 9/11
attacks. There is zero evidence (and no government official has yet argued) that the
Islamic State is somehow tied to 9/11. The 2002 AUMF, which provided the domestic legal
basis for the Iraq War, is also untenable as justification for this war as it was based on
the purported “threat” posed by Saddam Hussein. Indeed, through his National Security
Advisor Susan Rice, Obama himself called for the revocation of the 2002 AUMF in July, mere
weeks before now claiming it as a renewed basis for the adventurism in Iraq.

The attacks are also bereft of any basis in international law. Under the United Nations
Charter, a country may only use armed force against another country in self-defense, or
when approved by the United Nations Security Council. There is no resolution that has
authorized the US strikes in Iraq; and the notion that the United States must lob bombs
into Iraq as a matter of self-defense is simply not credible.

While not made explicitly (at least not yet), the White House will likely rely on a
tenuous theory in international law called the “responsibility to protect,” which argues
that countries may involve themselves militarily in other countries in order to protect
civilians or prevent other imminent humanitarian harms. This was the basis of the bombing
campaign against the former Yugoslavia, which never had UN Security Council authorization.
Obama’s current Ambassador to the United Nations, Samantha Power, is a well known advocate
of this doctrine and she has recently argued that the US has all the legal authorization
it needs for the air campaign.

But there is no basis in international law for such a theory, and more clear-minded
observers have rightly concluded that the so-called “responsibility to protect” is a
thinly-veiled excuse for Western meddling in countries thousands of miles away. As Antony
Loewenstein notes:

We never hear any [responsibility to protect] backers pushing for a military intervention
in Gaza to protect the Palestinians from Israeli missiles. Nobody is talking about
protecting Egyptian civilians from the brutal, US-backed dictatorship in Egypt. Barely a
word is raised to protect the repressed activists in Bahrain or Saudi Arabia. Whether it’s
dressed up as solidarity, a responsibility to protect, or an intervention to prevent
breaches of human rights, from Iraq to Libya these are grotesque experiments on helpless
civilians, the conclusions of which are clear for us to see.

The Nuremberg Trials, which outlawed wars not conducted in conformity in international
law, made no exceptions for “responsibility to protect,” and in fact labeled any war not
conducted with a solid legal footing as the “crime of aggression,” considered the supreme
international crime – largely because of the horrific consequences that take place when
wars break out. Yet here, too, this White House has recently argued to the Northern
District of California that the Nuremberg Trials are “irrelevant” to the determination of
whether Presidents can be held accountable for their actions with respect to war and
peace.

From a historical point of view, it is ironic that a young senator from Illinois who
campaigned in large part agains the Iraq War and who showcased his credentials as a
constitutional scholar would be the handmaiden of the permanent “state of exception”
described by the National Socialist philosopher Carl Schmitt, who argued that sovereigns
should have the right to suspend the legal and juridical constraints of their societies so
that they may act outside of law. This is the opposite of the legal constitutionalism that
forms the philosophical basis of the American legal order, which can be summarized with
the words of Edward Coke: “The King himself should be under no man, but under God and the
Law.”

Even six years later, the stings and scars of the Bush-era wars still haunt those who
favor civilization over barbarity, and certainly continue to physically affect those who
fought on either side, as well as the millions of civilians who always suffer when wars
take place.

The failure of President Obama to seek a more rational foreign policy is a disquieting but
important lesson:  those pressing for a lawful, constitutional government that resolves
international conflicts instead of initiating them have far more work to do and cannot
rely on the promises — falsely given — by politicians from any political party. The last
Administration was wrong, but it was openly wrong and harbored no pretenses that it sought
an imperial Presidency. In contrast, this Administration has cloaked itself in sanctimony
even while consolidating the grave excesses of its predecessor. Both parties remain
committed to imperialism and the wars that accompany them, or in the immortal words of
Tacitus, writing two millennia ago of those who dismantled the ancient republic in Rome in
order to create a dynastic and militant empire: “To ravage, to slaughter, to usurp under
false titles, they call empire; and where they make a desert, they call it peace.”

D. Inder Comar is legal director at Comar Law. Comar Law is currently litigating a lawsuit
against members of the Bush Administration for allegedly committing aggression against
Iraq (Saleh v. Bush, N.D. Cal. Mar. 13, 2013, 13-cv-1124 JST).
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