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Harold Koh, the Iraq War, and War-Crimes Liability
National Review ^ | 04-27-09 | [Ed Whelan

Posted on 04/27/2009 7:33:04 AM PDT by Ooh-Ah

State Department legal adviser nominee Harold Koh believes that notwithstanding congressional authorization, the Iraq war “violate[s] international law” because the United States did not receive “explicit United Nations authorization” for the war.

 

I’d be interested to learn how (apart from crass political considerations) Koh reconciles his position on the Iraq war with his support for President Clinton’s war in Kosovo.  The Kosovo war had a much weaker basis in international law than the war in Iraq (which, among other things, had at the very least a strong claim of having implicit United Nations authorization).  And, as a matter of domestic law, the Kosovo war was not authorized by Congress.

 

For present purposes, I’d like to ponder the implications of Koh’s position that the Iraq war violates international law:

 

1. Doesn’t it follow that Koh must maintain that President Bush is an international war criminal because he commanded an invasion of Iraq that, in Koh’s view, violated international law?

 

2. Doesn’t it follow that Koh must maintain that all members of Congress who authorized the war in Iraq and who did so without maintaining that additional United Nations authorization for the war was necessary are international war criminals?

 

3. Doesn’t it follow that Koh would maintain that all American corporations who assisted the war effort are liable in damages in Alien Tort Statute lawsuits for aiding and abetting the commission of war crimes?



TOPICS: Foreign Affairs; Front Page News; Government; News/Current Events; War on Terror
KEYWORDS: haroldkoh; internationallaw; iraq; statedepartment; un; waronterro

1 posted on 04/27/2009 7:33:05 AM PDT by Ooh-Ah
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To: Ooh-Ah
"Doesn’t it follow that Koh must maintain that all members of Congress who authorized the war in Iraq and who did so without maintaining that additional United Nations authorization for the war was necessary are international war criminals?"

Pre-war quotes from "lying" House and Senate democrats...

"In 1998, the United States also changed its underlying policy toward Iraq from containment to regime change and began to examine options to effect such a change, including support for Iraqi opposition leaders within the country and abroad.

In the 4 years since the inspectors, intelligence reports show that Saddam Hussein has worked to rebuild his chemical and biological weapons stock, his missile delivery capability, and his nuclear program. He has also given aid, comfort, and sanctuary to terrorists, including al-Qaida members, though there is apparently no evidence of his involvement in the terrible events of September 11, 2001."

"It is clear, however, that if left unchecked, Saddam Hussein wiill continue to increase his capability to wage biological and chemical warfare and will keep trying to develop nuclear weapons. Should he succeed in that endeavor, he could alter the political and security landscape of the Middle East which, as we know all too well, affects American security."
Sen. Hillary Clinton (D, NY), Oct 10, 2002
Congressional Record – Sen. Hillary Clinton

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2002_record&page=S10288&position=all

John Kerry: “I agree completely with this Administration’s goal of a regime change in Iraq – Saddam Hussein is a renegade and outlaw who turned his back on the tough conditions of his surrender put in place by the United Nations in 1991.” (July 2002)

John Kerry: “I believe the record of Saddam Hussein’s ruthless, reckless breach of international values and standards of behavior is cause enough for the world community to hold him accountable by use of force if necessary.”

"We have known for many years that Saddam Hussein is seeking and developing weapons of mass destruction." -
Sen. Ted Kennedy (D, MA), Sept. 27, 2002
U.S. Senate - Ted Kennedy

"We know that he has stored secret supplies of biological and chemical weapons throughout his country." -
Al Gore, Sept. 23, 2002
Transcript of Gore’s speech, printed in USA Today

http://www.usatoday.com/news/nation/2002-09-23-gore-text_x.htm

"When I vote to give the President of the United States the authority to use force, if necessary, to disarm Saddam Hussein, it is because I believe that a deadly arsenal of weapons of mass destruction in his hands is a threat, and a grave threat, to our security and that of our allies in the Persian Gulf region. I will vote yes because I believe it is the best way to hold Saddam Hussein accountable." -
Sen. John F. Kerry (D, MA), Oct. 9,2002
Congressional Record – Sen. John F. Kerry

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2002_record&page=S10174&position=all

John Kerry on the floor of the Senate
October 2002:

"With respect to Saddam Hussein and the threat he presents, we must ask ourselves a simple question:

Why?

Why is Saddam Hussein pursuing weapons that most nations have agreed to limit or give up?

Why is Saddam Hussein guilty of breaking his own cease-fire agreement with the international community?

Why is Saddam Hussein attempting to develop nuclear weapons when most nations don't even try, and responsible nations that have them attempt to limit their potential for disaster?

Why did Saddam Hussein threaten and provoke?

Why does he develop missiles that exceed allowable limits?

Why did Saddam Hussein lie and deceive the inspection teams previously?

Why did Saddam Hussein not account for all of the weapons of mass destruction which UNSCOM identified?

Why is he seeking to develop unmanned airborne vehicles for delivery of biological agents?

Sen. John F. Kerry (D, MA), October 9, 2002
Congressional Record – Sen. John F. Kerry

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2002_record&page=S10171&position=all

“The Joint Chiefs should provide Congress with casualty estimates for a war in Iraq as they have done in advance of every past conflict. These estimates should consider Saddam's possible use of chemical or biological weapons against our troops.

Unlike the gulf war, many experts believe Saddam would resort to chemical and biological weapons against our troops in a desperate -attempt to save his regime if he believes he and his regime are ultimately threatened.”
Sen. Ted Kennedy (D-MA) Oct. 8, 2002
Congressional Record - Sen. Ted Kennedy

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=S10090&dbname=2002_record

John Kerry: “I would disagree with John McCain that it's the actual weapons of mass destruction he may use against us, it's what he may do in another invasion of Kuwait or in a miscalculation about the Kurds or a miscalculation about Iran or particularly Israel. Those are the things that--that I think present the greatest danger. He may even miscalculate and slide these weapons off to terrorist groups to invite them to be a surrogate to use them against the United States. It's the miscalculation that poses the greatest threat." (October 2002)

John Kerry: “If You Don’t Believe . . . Saddam Hussein is a threat with nuclear weapons, then you shouldn’t vote for me.” (January 2003)

John Kerry: Saddam Hussein is a brutal dictator who must be disarmed. (March 2003)

"Saddam Hussein's regime represents a grave threat to America and our allies, including our vital ally, Israel. For more than two decades, Saddam Hussein has sought weapons of mass destruction through every available means. We know that he has chemical and biological weapons. He has already used them against his neighbors and his own people, and is trying to build more. We know that he is doing everything he can to build nuclear weapons, and we know that each day he gets closer to achieving that goal."..."Iraq has continued to seek nuclear weapons and develop its arsenal in defiance of the collective will of the international community, as expressed through the United Nations Security Council. It is violating the terms of the 1991 cease-fire that ended the Gulf war and as many as 16 Security Council resolutions, including 11 resolutions concerning Iraq’s efforts to develop weapons of mass destruction." –
Sen. John Edwards, October 10, 2002
Congressional Record – Sen. John Edwards

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2002_record&page=S10325&position=all

"There is no doubt that since that time Saddam Hussein has invigorated his weapons programs. Reports indicate that biological, chemical and nuclear programs continue apace and may be back to pre-Gulf War status. In addition, Saddam continues to redefine delivery systems and is doubtless using the cover of a licit missile program to develop longer-range missiles that will threaten the United States and our allies." –
Letter to President Bush, Signed by Sen Bob Graham (D, FL,) and others, December 5, 2001
http://usinfo.org/wf-archive/2001/011207/epf510.htm

"We should be hell bent on getting those weapons of mass destruction, hell bent on having a credible approach to them, but we should try to do it in a way which keeps the world together and that achieves our goal which is removing the... defanging Saddam.." -
Sen. Carl Levin (D, MI), Dec. 9, 2002
Online with Jim Lehrer – Public Broadcasting Service

http://www.pbs.org/newshour/bb/middle_east/july-dec02/iraq_12-10.html

"We know that he has stored secret supplies of biological and chemical weapons throughout his country." -
Al Gore, Sept. 23, 2002
Transcript of Gore’s speech, printed in USA Today

http://www.usatoday.com/news/nation/2002-09-23-gore-text_x.htm

"Iraq's search for weapons of mass destruction has proven impossible to deter and we should assume that it will continue for as long as Saddam is in power." -
Al Gore, Sept. 23, 2002
Transcript of Gore’s speech, printed in USA Today

http://www.usatoday.com/news/nation/2002-09-23-gore-text_x.htm

"We have known for many years that Saddam Hussein is seeking and developing weapons of mass destruction." -
Sen. Ted Kennedy (D, MA), Sept. 27, 2002
U.S. Senate - Ted Kennedy

"The last UN weapons inspectors left Iraq in October of 1998. We are confident that Saddam Hussein retains some stockpiles of chemical and biological weapons, and that he has since embarked on a crash course to build up his chemical and biological warfare capabilities. Intelligence reports indicate that he is seeking nuclear weapons..." -
Sen. Robert Byrd (D, WV), Oct. 3, 2002
Congressional Record – Robert Byrd

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2002_record&page=S9874&position=all

"When I vote to give the President of the United States the authority to use force, if necessary, to disarm Saddam Hussein, it is because I believe that a deadly arsenal of weapons of mass destruction in his hands is a threat, and a grave threat, to our security and that of our allies in the Persian Gulf region. I will vote yes because I believe it is the best way to hold Saddam Hussein accountable." -
Sen. John F. Kerry (D, MA), Oct. 9,2002
Congressional Record – Sen. John F. Kerry

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2002_record&page=S10174&position=all

"There is unmistakable evidence that Saddam Hussein is working aggressively to develop nuclear weapons and will likely have nuclear weapons within the next five years .. We also should remember we have always underestimated the progress Saddam has made in development of weapons of mass destruction."-
Sen. Jay Rockefeller (D, WV), Oct 10, 2002
Congressional Record –Sen. Jay Rockefeller

"He has systematically violated, over the course of the past 11 years, every significant UN resolution that has demanded that he disarm and destroy his chemical and biological weapons, and any nuclear capacity. This he has refused to do" –
Rep. Henry Waxman (D, CA), Oct. 10, 2002
Congressional Record – Rep. Henry Waxman

MY SOURCE FOR ALL OF THESE QUOTES:
http://www.americandaily.com/article/4694

2 posted on 04/27/2009 7:38:35 AM PDT by ETL (ALL the Obama-commie connections at my FR Home page: http://www.freerepublic.com/~etl/)
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To: Ooh-Ah
Related...

Former Abu Ghraib Brigadier General, Janis Karpinski AND House Judiciary Committee chairman/chief Bush "investigator", John Conyers Jr, are both endorsers of the Revolutionary Communist Party front "World Can't Wait". I think the 'investigation' needs to shift in a new direction!

http://www.freerepublic.com/focus/f-news/2236826/posts

3 posted on 04/27/2009 7:41:35 AM PDT by ETL (ALL the Obama-commie connections at my FR Home page: http://www.freerepublic.com/~etl/)
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To: Ooh-Ah

4. Doesn’t it follow that Koh should maintain that the invasion of Afghanistan was just as illegal since we did not seek authorization from the UN and congress did not officially declare war?


4 posted on 04/27/2009 8:52:17 AM PDT by messierhunter
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To: messierhunter

No no....it’s only illegal if a republican does it...


5 posted on 04/27/2009 10:40:10 AM PDT by Crim
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To: ETL
Thank you for the:
Pre-war quotes from "lying" House and Senate democrats...
and links!
6 posted on 04/27/2009 5:44:58 PM PDT by Ooh-Ah
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