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Given US/UK/Israel wars and lust for more, what do two ‘supreme Law’ treaties say about lawful and unlawful war?

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Carl Herman
Washington’s Blog
July 13, 2014

The short answer is war is lawful only in self-defense from armed attack by another nation’s government, and lawful response is to arrest US/UK/Israel leaderships for unlawful Wars of Aggression.

Background history: It’s easy to document the US as a neocolonial empire; offspring of Europe’s lust for material wealth that spawned two world wars in the century within which all current adults were born.

All of our families sacrificed through those wars. Please take a moment to feel what they went through. Please take a moment to experience the cumulative costs inflicted by “developed” nations’ imperialism and wars, including Israel’s escalating unlawful War of Aggression on Palestine that make Gaza the world’s largest concentration camp.

The two world wars begat two treaties to end nations’ armed attacks. They are crystal-clear in content and context: the Kellogg-Briand Pact (General treaty for renunciation of war as an instrument of national policy as official title), and the United Nations Charter.

Article Six of the US Constitution defines a treaty as US “supreme Law of the Land;” meaning that US policy may only complement an active treaty, and never violate it.

This is important because all of us with Oaths to the US Constitution are sworn to honorably refuse all unlawful war orders; military officers are also sworn to arrest those who issue them. Indeed, we suffer criminal dishonor if we obey orders for armed attack when they are not “self-defense” as clearly limited by treaty from dear experience of our families’ engagement in world war.

Treaty 1. Kellogg-Briand: General treaty for renunciation of war as an instrument of national policy:

  • A d v e r t i s e m e n t

The legal term renounce means to surrender access; that is, to remove that which is renounced as lawful option. This active treaty (page 466 “Renunciation of War”), usually referenced as the Kellogg-Briand Pact, states:

ARTICLE I

The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

ARTICLE II

The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.”

Treaty 2. United Nations Charter:

As I’ve written for years to point-out arguably the world’s most important single law:

The UN Charter is a Treaty in Force; an active US treaty. Article VI of the US Constitution declares treaties as having equal power with Constitutional law and laws from Congress. This is also known as the Supremacy Clause:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”

Therefore what the US president and 2/3 of the Senate have agreed to in a treaty is the law of the US until such time as the US rescinds that treaty obligation. The UN Charter is therefore the law of the US with its clear restrictions of using war as a foreign policy option.

It’s also helpful to understand what the UN is not. The only area of legal authority of the UN is security/use of force; all other areas are advise for individual nation’s legislature’s consideration. The UN is not global government. It is a global agreement to end wars of choice outside of a very narrow legal definition of national self-defense against another nation’s armed attack.

The preamble of the United Nations includes to “save succeeding generations from the scourge of war… to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and… to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used…”

The UN purpose includes: “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace…”

Article 2:

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter…

Article 24: In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 25: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Article 33:

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

Article 37: Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council.

Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40: In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable.

Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

The International Court of Justice (ICJ) is the judicial branch of the UN. Their definition of “armed attack” is by a nation’s government. Because the leadership of the CIA and FBI both reported that they had no evidence that the Afghan government had any role in the 9/11 terrorism, the US is unable to claim Article 51 protection for military action in Afghanistan (or IraqSyriaUkraine, and/or Iran). The legal classification of what happened on 9/11 is an act of terrorism, a criminal act, not an armed attack by another nation’s government.

The US is able to defend itself from any criminal act, of course, including an imminent threat, and does so daily, including using international cooperation to discover facts for the arrest and prosecution of the accused. The US use of force oversees could be a legal application of Article 51 if, and only if, the US could meet the burden of proof of an imminent threat that was not being responded to by the Security Council. To date, the US has not made such an argument.

American Daniel Webster helped create the legal definition of national self-defense in the Caroline Affair as “necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” The US attack on Afghanistan came nearly a month after the 9/11 terrorism. Article 51 only allows self-defense until the Security Council takes action; which they did in two Resolutions beginning the day after 9/11 (1368 and 1373) claiming jurisdiction in the matter.

In conclusion, unless a nation can justify its military use as self-defense from armed attack from a nation’s government that is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation,” all other acts of war are unlawful. The legal definition of “self-defense” ends when the attack terminates. In general legal definitionno party is allowed use of force under the justification of “self-defense” if the law can be applied for redress and remedy. 

We’ll consider the US government’s argument that current wars in Afghanistan and Iraq are legal in the analysis section.

Letter of the US 1973 War Powers Act (WPA): The authorization by Congress for US presidential discretion for military action in Afghanistan  and Iraq references WPA. This act, in response to the Vietnam War, reframes the Founders’ intent of keeping the power of war in the hands of Congress. It also expressly limits the president to act within US treaty obligations; the principle treaty of use of war being the UN Charter.

This means that presidential authority as commander-in-chief must always remain within the limitations of the UN Charter to be lawful orders. It’s not enough for Congress to authorize use of force; that force must always and only be within the narrow legal definition of self-defense clearly explained in the UN Charter and bitterly learned by our own families through the sacrifice, terror, and misery of WW2.

Philosophy/Spirit of US laws of war: After WW2, humanity spoke and legislated that all wars not in self-defense of an attack upon the nation are unlawful. The world’s citizens and leaders demanded peace.

We can anticipate that if a government wanted to engage in unlawful war today, they would construct their propaganda to sell the war as “defensive.” The future of humanity to be safe from the scourge of war is therefore dependent upon their collective ability to discern lawful defensive wars from unlawful Wars of Aggression covered in BS claims of defense.

An analogy of BS legal cover is the White House “legal” memos attempting to explain obvious torture as legal. When an authority in an expensive suit with a team of lawyers says something vicious is both legal and moral, you should also recognize that is the obvious strategy for a political faction to execute an unlawful war.

Unlawful war analysis: Governments have been vicious killers over the last 100 years, using BS to justify their wars. The UN Charter’s meaning to make war an unlawful act is abundantly clear in its detailed explanations. The US attack of Afghanistan on October 7, 2001 was a deliberate act of unlawful war, not defense that was “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” The burden of proof the US would have to provide is imminent threat of another attack in order to justify self-defense. US Ambassador to the UN, John Negroponte, in his letter to the UN Security Council invoking Article 51 for the attack upon Afghanistan mentions only “ongoing threat;” which does not satisfy this burden of proof.

Article 51 requires self-defensive war coming from an attack by a nation’s government, which the CIA and FBI refute in the case of the Afghan government with the terrorism on 9/11. Self-defense ends when the attack ends. The US war began four weeks after 9/11 ended; making the US war one of choice and not defense. Article 51 ends self-defense claims when the UN Security Council acts. Resolution 1373 provides clear language of international cooperation and justice under the law, with no authorization of force. This evidence doesn’t require the light of the UN Charter’s spirit of its laws, but I’ll add it: humanity rejected war as a policy option and requires nations to cooperate for justice under that law. The US has instead embraced and still embraces war with its outcomes of death, misery, poverty, and fear expressly against the wishes of humanity and the majority of Americans. These acts are clearly unlawful and should be refused and stopped by all men and women in military, government and law enforcement.

The Iraq war in 2003 includes these reasons and expands them with all claims made for war being known as false at the time they were told to the American people and our troops. Your examination of the disclosed evidence will prove that we were lied to as the evidence is obviously and criminally misrepresented. This link provides a summary explanation with further links of complete documentation.

Some war liars argue that UN Security Council Resolution 687 from 1991 authorizes resumption of force from the previous Gulf War. This resolution declared a formal cease-fire; which means exactly what it says: stop the use of force. The resolution was declared by UNSC and held in their jurisdiction; that is, no individual nation has authority to supersede UNSC’s power to continue or change the status of the cease-fire. The idea that the US and/or UK can authorize use of force under a UNSC cease-fire is as criminal as your neighbor shooting one of your family members and claiming that because police have authority to shoot dangerous people he can do it.

Further unlawful war analysis: The UN Charter is the principle law to end wars; designed by the US to produce that result. That said, West Point Grads Against the War have further legal arguments of all the violations of war from US attack and invasions of Afghanistan and Iraq, including further analysis of the UN Charter and expert supporting testimony of what I assert are “emperor has no clothes” obvious facts that these wars are not even close to lawful. Another resource for documentation and analysis is David Swanson’s War is a Crime.

Lawful war analysis: Negroponte’s letter invokes a legal Charter Article of self-defense in contrast with the loss of over 3,000 lives on 9/11. The letter portends legal evidence of al-Qaeda’s “central role” in the attacks and claims military response is appropriate because of al-Qaeda’s ongoing threat and continued training of terrorists. This reasoning argues for a reinterpretation of self-defense to include pre-emptive attack while lying in omission that such an argument is tacit agreement of current action being outside the law.

The US Army’s official law handbook provides an excellent historical and legal summary of when wars are lawful self-defense and unlawful War of Aggression in a seven-page Chapter One.

Importantly, after accurately defining “self-defense” in war, the JAG authors/attorneys explicitly state on page 6 that war is illegal unless a nation is under attack from another nation’s government, or can provide evidence of imminent threat of such attack:

“Anticipatory self-defense, whether labeled anticipatory or preemptive, must be distinguished from preventive self-defense. Preventive self-defense—employed to counter non-imminent threats—is illegal under international law.”

However, despite the US Army’s law handbook’s accurate disclosure of the legal meaning of “self-defense” in war, they then ignore this meaning to claim “self-defense” as a lawful reason for US wars without further explanation (details here).

Conclusion and policy request: As President Obama and other political/media “leaders” aggress for further criminal war on Iran under obvious lies (herehere, history here, with analogies to help understand herehere), Americans must quickly choose sides: support the US Constitution and our legal commitment to end wars of choice, or be satisfied with whatever BS our war leaders throw at you to allow government mass murder to continue.

Choose well; you may have to live in the world of your choice.

I request all men and women in our military, in government, and in law enforcement to embrace the facts of US unlawful war and all related orders. As such, our oath to defend and protect the United States Constitution from all enemies, foreign and domestic, must be honored and applied to refuse and stop all orders related to the engagement of unlawful wars. The obvious lawful and ethical response is to arrest the US War Criminals who lie and kill with war (and hereherehere).

Arrests or impeachments? Some people call for impeachments of US political leaders for these unlawful Wars of Aggression; notably leading author, David Swanson (rockin’ his “Arrest Bush & Obama” t-shirt), with impeachment arguments here and here.

I recommend demanding immediate arrests because war law is so clear with US/UK/Israel violations so “Emperor’s New Clothes” and “Big Lie” obvious, the importance to remove these people from power of literally life-and-death urgency, and because Wars of Aggression is the Orwellian opposite of upholding the US Constitution. In addition:

No wonder that people around the world view the US as the greatest threat to peace; voted three times more dangerous than any other country.

This article was posted: Sunday, July 13, 2014 at 6:56 am





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