International & Constitutional law and the invasion of Iraq

Elk Grove Peace & Justice Forum
August meeting

Prof. John Sims of the University of the Pacific/McGeorge School of Law spoke about international law and Constitutional law with regard to the recent invasion of Iraq and the "War on Terrorism."

(These are my notes from the discussion. They are probably incomplete, but I believe everything that is here to be correct. --Jim)

The framework of international law, as it applies to the current situation, is largely the result of numerous multilateral international treaties. Examples are the UN Charter, the Convention Against Torture, and others which do not necessarily include the word "treaty" in the title. Ratification of treaties requires a 2/3 majority in the Senate. This supermajority requirement has blocked or stalled some treaties which should really have been "no-brainers", such as the convention against genocide.

The United States is a party to a number of relevant treaties:

• The UN Charter precludes the use of military force to settle disagreements between nations, except in the case of self-defense.
• The Convention Against Torture absolutely forbids torture and inhumane treatment.
• The Geneva Conventions (4 related treaties, which reached their current form in 1949) govern treatment of prisoners of war, ban certain weapons from the battlefield, require "tracking" of prisoners, and many other provisions. The US is currently violating many specifics of the Geneva Conventions, often by classifying those who have been captured as "unlawful combatants" and denying that they are prisoners of war.

Constitutional delegation of powers concentrates executive power in the President, as opposed to the legislative power, which is divided between the House of Representatives and the Senate. It is the President's responsibility to see that the laws of the nation are followed, unless a statute is unconstitutional.

The Congress has not been particularly vigilant since 11 Sep 2001 in exercising their Constitutional responsibility to work with the President to shape the Nation's response to an attack. On 18 Sep 2001 the Congress passed a statute that broadly authorized the President to use military force to bring the 9/11 terrorists to justice, leaving all decisions up to the President.

Another separation of powers issue concerns the role of the courts in reviewing the propriety of executive actions. The recent rulings by the Supreme Court confirm that even in a crisis there must be judicial review to assure compliance with the Constitution and statutes.

Prof. Sims highlighted a few issues that may arise in the future.

• National Security Adviser Rice recently declared that the US will not allow Iran to become a nuclear power. Is this within the authority of the Executive branch, or indeed even a matter for US unilateralism?
• The Geneva Conventions' underlying assumption is that sovereign states are fighting against one another in open warfare. Are revisions necessary in light of the realities of modern conflicts?
• International law may be enforced by the U.S. courts. For example, the Convention Against Torture requires that parties make torture a violation of domestic law, and the U.S. has done that. Also, damage claims may be brought by torture victims.

Audience questions:

Q: Could you describe the enforcement mechanisms of the Geneva Conventions or the UN Charter's prohibition against military force?

A: There is no real enforcement mechanism comparable to what exists with domestic law; however, there is the International Court of Justice, which sits at The Hague, which deals with cases where once country sues another. This is a relatively conservative approach, because it precludes action by individuals. An example was Ronald Reagan's mining of the harbors of Nicaragua. The US basically lost this case by default, but did not suffer directly from the decision. Another more recent example concerns the Israeli security wall.

Q: Comment a bit more regarding prisoners at Guantanamo Bay, Cuba.

A: The Supreme Court's recent decision is very narrow. The US position is that since G-Bay is not part of US, the (federal) writ of habeas corpus does not apply. The US asserts that they have the right to detain these people indefinitely without charge, but the Supreme Court ruled that since Guantanamo Bay has been under US control for decades, habeas corpus actions may be filed, although the Court did not specify what showing the detainees would need to make in order to prevail.

In the Hamdi case involving a US citizen held on the mainland, the Court indicated that the so-called "Mobbs Declaration" by a Defense Department official was insufficient, although the Court did not explicitly declare what would be considered due process. Fewer than 10 of the detainees have actually been charged with a crime.

Q: How will the US be perceived historically for its current actions?

A: At the least, the US will be regarded as a country that did not live up to its treaty obligations

Q: What about "secret detainees", those who are not made known to the Red Cross? Who can we contact to try and force these people to be declared to the Red Cross, gain legal representation for them, etc?

A: There doesn't seem to be any enforcement mechanism. It is a tragic mistake by the US and other countries to not identify all detainees, because the next time it could be a US citizen held by another country and facing the risk of mistreatment or "disappearance". Incidentally, the situation at Abu Ghraib probably pales in comparison to what we are likely to learn if and when information about secret detentions becomes known.

Next month, (Sep 2004), the Patriot Act will be discussed.

The Elk Grove Peace & Justice Forum regularly meets on the second Tuesday of every month at 7:00 P.M. in the Elk Grove United Methodist Church, 8986 Elk Grove Boulevard, Elk Grove, CA. For more information, contact:
Bill Myers, wemyers "at" cal "dot" net, (916)689-6943, or
Bob Fossgreen, bobfoss "at" lanset "dot" com, (916)685-3612.