The American Society of International Law adopted the following resolution at its recent annual meeting:
The American Society of International Law, at its centennial annual meeting in Washington, D.C. on March 30, 2006, Resolves:
1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum).
2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949 and other international law (jus in bello).
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.
7. All states should maintain security and liberty in a manner consistent with their international law obligations.
The fact that this resolution even should be necessary reflects the depths of our current crisis. As Scott Horton, a leading international lawyer, put it in a PBS interview following the Abu Ghraib revelations, “…if adherence to the Geneva Convention becomes a political issue in this country, we have fallen into a deep moral gutter.”
Regarding resort to armed force, the ASIL resolution similarly states what should be the obvious. When considering both the U.S. invasion and occupation of Iraq and the possibility of military action against Iran, it is important to begin with the basic framework of modern international law. It is a framework this country played a major role in creating.
In the war crimes trials conducted after World War II, the United States and its allies declared aggressive war to be the most serious of all international crimes. Robert L. Jackson, the U.S. Representative to the International Conference on Military Trials, declared,
“We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.” Statement by Justice Jackson on War Trials Agreement; August 12, 1945.
“War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Judgment of the International Military Tribunal for the Trial of German Major War Criminals, 1946.
The United Nations, formed following the war, again with the U.S. taking a leading role, embodied this essential principle in its Charter. Recognizing that States likely to commence aggressive wars also are likely to create pretexts for them, and to lie to the world and to their own peoples about the reasons for war, the U.N. Charter created a system for preventing war and preserving the peace. It requires recourse to the Security Council when there are threats to peace. Article 39 of the Charter gives the Security Council the responsibility to determine when a threat to peace exists, and what the collective response will be. It should also be remembered that the U.N. Charter is a treaty of the United States, and as such is part of the “supreme law of the land” under the U.S. Constitution.
A state may not decide for itself alone that a threat that justifies war exists. The only exception is where it is actually attacked, or, at the very least, where there is a threat of attack that is immediate and unavoidable, and where there are no alternatives to the use of force. Secretary of State Daniel Webster, protesting an attack by British forces on American soil in 1837, stated it this way: “It will be for the government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” (Secretary of State Daniel Webster to British Prime Minister Lord Ashburton, July 27, 1842, protesting the attack that seized and burned the American vessel Caroline, killing several people.)
Nonetheless, even some “liberal” commentators largely are treating the issue of potential use of force against Iran as if evidence of a nuclear weapons program alone could justify an attack by the United States, with the main objections being pragmatic (the difficulty of destroying Iran’s nuclear facilities, the danger of wider war or retaliation). But without an imminent threat of attack by Iran, a U.S. strike to destroy Iran’s nuclear facilities would constitute an illegal war of aggression.