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December 30, 2006

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Phillip_Bach

Capital punishment is commanded by God in the Bible. Not that the governments or Iraq or the United States need to follow the Scriptures, but one would think the Vatican would take it into consideration if they're going to take a position on this. In any case, I'm even more uncomfortable with the Catholic church's entanglement with politics and religion generally, than with their position on any given issue. I think Christians should have a voice in government, but as individual citizens, not institutionally. I don't associate with Robertson or Falwell either, and I don't go to a church that tells me how to vote, though some commentary on social issues is inevitable may be appropriate.

I know that wasn't the main thrust of your posting, but just wanted to throw in my two cents on that. Other than that, I'm glad that Saddam Hussein is dead. No, it won't be a magic bullet for peace in Iraq, but there's always a sense of satisfaction when justice is done, apart from utility. I don't buy this argument that killing the enemy creates martyrs. If I had my way, we'd be making a lot more martyrs. Starting with Al-Sadr and his band of thugs.

MarkD

Phillip, the constitution of the Bible (if you will), the Ten Commandments, clearly state; ‘You shall not kill.” As far as I am aware, there are no qualifications in that statement. It does not say you should not kill, accept in these circumstances.... It does not say, you should not kill; unless of course the person you are killing committed a crime or is a bad guy. It simply states; “You shall not kill.” I take that statement to mean (under Biblical law) that killing is proscribed in all circumstances. Jesus’ actions the night he was arrested would also add Godly precedent to the notion that all killing is proscribed. Did he not stay Peter’s hand – even in an action of self-defense?

As for Saddam, well I won’t mourn his passing. As for the impact his execution will have on the war, as you said in your entry of the other day, only time will tell. I did however find the comments of the crowd praising Sadr very telling – and an ill portent of things to come.

By-the-way, I very much enjoyed your last entry. I found your legal review of the UN Charter very helpful and interesting. Thank you for providing the review of ‘legal wars’ under the UN Charter. It is good to have a legal scholar in the group, my thanks to you.

However, your entry begs a couple of questions, on my part. I have never called the Iraq war an illegal war, the case for claiming that the war is illegal is ambiguous at best. But I think you would agree with me that the written legislation in only part of the equation in interpreting the law. One must also look at the intent of the framers of the law and also one must look to legal precedent to see how the law has been interpreted in the past. Herein lies the danger in the Bush Doctrine.

First, let us look at the framers’ intent. I wouldn’t claim to have the training to match you in your ability to interpret the law, you have legal training and I don’t. But I do have training as a historian and that training can be very helpful in putting legislation into context. What was the purpose of Article 51? What was the historical context? The framers of the UN Charter were attempting to define a just war. They were cognizant of the fact that both Nazi Germany and Imperial Japan had started WWII by claiming that they were acting in self-defense. Germany invaded Poland after staging a minor incursion into its own territory. Germany claimed that they were acting in self-defense of German citizens in Danzig (Gdansk, Poland). The Nazis claimed that they were required to pre-emptively strike against Poland in defense of the German citizens of that city. Let us also not forget that Japan’s insane attack on Pearl Harbor was seen by the Imperial War Cabinet as a pre-emptive defensive strike against a hostile and a rapidly arming America.

The framers of the Charter wanted to provide a legal definition of self-defense to prevent misuse of the term ‘defensive war’ in the future. In that context, I think it does become clear that the phrase ‘armed attack’ in Article 51 refers to a major military incursion by an organised national military. Germany’s invasion of Poland would therefore be illegal; Poland’s subsequent defensive actions and the declarations of war on Germany by Britain and France are therefore legal under Article 51. Under this interpretation, Bush’s attack against Iraq would clearly be illegal. However, as you rightly point out, there is still the justification of a police action enforcing a UN resolution (though that would require authorisation on the part of the Security Council and there is disagreement as to whether that authorisation was granted).

Which leads me to my second point, precedent. Given the language of Article 51 and the subsequent lack of evidence supporting the notion that Iraq posed a military threat to America, one must then rely on the notion that the war was justified as an appropriate police action to enforce UN resolutions. Is this really a precedent we want to set? I remind you and the readers of this blog that Iraq is not the only country in violation of UN resolutions. Israel is in violation of at least three UN resolutions. Bush has just given Israel’s Arab enemies the precedent they need in claiming a police action against Israel to enforce UN resolutions. Is that a precedent we wish to set? In addition, Bush’s expanded notion of defensive war creates dangerous precedent in other areas of the world. Can China not claim a defensive war against a militarily aggressive Taiwan? What of North Korea? Bush has just given Kim legal cover to claim a legal self-defensive war, and under the Bush definition of defensive war, he would be justified in making that claim. And let us not forget the most dangerous situation of all, India/Pakistan. Under Bush’s definition of defensive war, India at this very moment would be legally justified in invading Pakistan. In fact, India’s case against Pakistan (under the Bush Doctrine) is much more defensible then Bush’s position regarding Iraq and Afghanistan.

I’m opposed to the Bush Doctrine of defensive war because of the precedent it sets. Bush’s actions are reckless and dangerous. But then, that ought not be surprising, in the 2000 election Bush clearly stated that he intended to be a revolutionary president: and isn’t that what revolutionaries do, they overturn the established order? Isn’t revolution just another word for war?

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