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13 April 2007


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Clifford Kiracofe

Dear ICLStudent, you might want to brush up some before any exams unless your professors are Neocons or Neocon groupies in which case you are fine. There are lots of them (well, "Straussians") lurking around in Philosophy Departments, Political Science Departments and Law faculties. See, for example,

But you do raise an interesting issue, namely the concept of international law the Neocons have. Although there has been considerable analysis of it in academic circles, briefly we can note the work of the Neocon and Neocon groupie lawyers surrounding the Vice President, say David Addington as a major example.
As they don't believe in international law, anything goes for them including "preventive war." It is a "Hobbesian World", after all they say.

Of course, the core concepts of this perspective on international law have modern roots in the work of Carl Schmitt, the foremost Nazi legal theoretician. Schmitt was Leo Strauss's professor and patron.
Strauss, a Neocon guru, was one vector of Schmitt's concepts into the US. Some say this type of legal thought permeates the influential Federalist Society.
For Schmitt see the overview at:

Some argue the Neocon types, including the lawyers of the Bush Administration, have fashioned "W" into Schmitt's model for a dictator. But we can also consider the influence on Neocons of Weber's concept of the "charismatic leader": http://en.wikipedia.org/wiki/Charismatic_authority
And for the Christian Zionists, I would imagine W is full of celestial charisma....


to be more accurate, how does sound violation of Art. 2 IV UNC for you?

Ius ad bellum is currently dominated by Articles 2 IV and 51 UNC. These are the principal changes the Charter made in preexisting international law, which had accepted as legal each state's sovereign right to declare war at will. Article 2 IV UNC prohibits the international use of force against the territorial integrity or political independence of any state. The US agreed to that by ratifying the UNC. That proposition is now generally considered to be ius cogens, binding on all states.

Self-defense after Art. 51 UNC as a justification is ruled out for the US in case of Iraq. And given the history of UNSC resolution 1441 I cannot read a war mandate for the US after Art. 42 UNC out of it.

The UN blessing after the fact does little to change that, it simply stated the obvious when it found that, no doubt, the US occupy Iraq.

And there we are.

I am perfectly well aware of the dissatisfying situation in this case. The US in the UNSC is in a position of relative invulnerability. That reflects the reality of power in international law. The US have also not agreed to the jurisdiction of any international court in such matters, and I have little doubt that domestically, in a new found spirit of bipartisanship on the issue, the US will do nothing to try these goons.

It becomes interesting when we start pondering about universal jurisdiction.

In the context of torture the International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture. It went on that "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind." They determined universal jurisdiction for such crimes.

If I were Wolfie I would consider to be careful when traveling abroad when my mandate at the World Bank runs out. Same for the rest of the crew. Remember Pinochet. This story is only beginning.


How about an indictment under the RICO act?

Organized crime or criminal organizations are groups or operations run by criminals, most commonly for the purpose of generating a monetary profit. The Organized Crime Control Act (U.S., 1970) defines organized crime as "The unlawful activities of ... a highly organized, disciplined association...".

...The act of engaging in criminal activity as a structured group is referred to in the United States as racketeering. In the U.S., organized crime is often prosecuted federally under the Racketeer Influenced and Corrupt Organizations Act (RICO), Statute (18 U.S.C. Part I Chapter 96 §§ 1961-1968).

Organized crime, however defined, is characterized by a few basic qualities including durability over time, diversified interests, hierarchical structure, capital accumulation, reinvestment, access to political protection and the use of violence to protect interests.
In order for a criminal organization to prosper, some degree of support is required from the society in which it lives. Thus, it is often necessary to corrupt some of its respected members, most commonly achieved through bribery, blackmail, and the establishment of symbiotic relationships with legitimate businesses. Judicial and police officers and legislators are especially targeted for control by organized crime via bribes, threats, or a combination.
Lacking much of the paperwork that is common to legitimate organizations, criminal organizations can usually evolve and reorganize much more quickly when the need arises. They are quick to capitalize on newly-opened markets, and quick to rebuild themselves under another guise when caught by authorities.
Globalization occurs in crime as much as it does in business. Criminal organizations easily cross boundaries between countries.
The concept of the criminal organization came into being during the Nuremberg Trials. Several public sector organizations of Nazi Germany such as the SS and Gestapo were judged to be criminal organizations, while other organizations such as the German Army High Command [dubious — see talk page] were indicted but acquitted of charges.[citation needed]
This conception of criminal organizations was, and continues to be, controversial, and has not been used in human rights law since the trials at Nuremberg.
In addition to what is considered traditional organized crime involving direct crimes of fraud swindles, scams, racketeering and other RICO predicate acts motivated for the accumulation of monetary gain, there is also non-traditional organized crime which is engaged in for political or ideological gain or acceptance. Such crime groups are often labeled terrorist organizations and include such groups as Al Qaeda.

source: Wikipedia

The problem with this approach, of course, is that RICO charges are brought by US Attorneys...which may add another dimension to the evolving USA scandal under Abu Gonzalez!

Babak Makkinejad


I think we can all agree that International Law is not really "Law". It is mostly what tribal societies would have called "Custom". As such, adherence to it is neither mandatory nor obligatory - "I'll follow it if suits me & my purposes for now".

Col. Lang:

There is no difference between "conspiracy to commit crimes against peace; planning, initiating and waging wars of aggression; war-crimes; and crimes against humanity"


"conspiracy to commit crimes against Islam; planning, initiating and waging War against God & his Apostle, of fitna; and Corruption on Earth (mufsid fi al arz)"

International Criminal Law Student

PL re Jodl: Right. The Allied Control Council had jurisdiction over conspiracy to commit crimes against peace. No subsequent body has had that jurisdiction.

Clifford Kiracofe re neocon academia: I don't really understand your point, but I think you're accusing me of being some sort of neocon academic, or at least fogged by neocon professors. How does this follow? I and my Intl Law/Criminal Law professors have all been Bush critics committed to the international rule of law. I'm not trying to absolve Wolfowitz or argue that he SHOULD be immune from prosecution (again, I think he should rot in prison); I'm trying to clarify the fact that, UNFORTUNATELY, "the war crime of aggression" doesn't exist as a legal term at present.

confusedponderer: Actually, there's a lot of disagreement about whether the UN Charter bans war or leaves it on the table as a "dispute resolution method of last resort." Even if it bans it (as I'd like to believe), it only affects the responsibility of states, which would be hashed out in an ICJ suit that would be fraught with political and evidentiary difficulties. (Remember when Nicaragua tried this against the US?) The outlet for individual criminal liability under international law is the ICC, and it's a dead letter. I like jus cogens norms as much as the next guy, but you've got an uphill battle if you're gonna try to convince international jurists that a "crime of aggression" already exists despite the ICC definitional-amendment requirement.


"there's a lot of disagreement about whether the UN Charter bans war or leaves it on the table as a "dispute resolution method of last resort."

You gotta be kidding. What disagreement? You will be hard pressed to find this view outside of the anglo-saxon realm.

The sovereignty of nations and the invulnerability of this sovereignty is the cornerstone of international law. There is no right choose war as a legitimate foreign policy tool.
The ban on use of force except in narrowly defined exceptions is absolute. That is the fundamental change to pre-existing law.

Internationally the view you presented represents a minority opinion primarily held by US right-wing scholars seeking a legal vessel to allow for hegemonic policies, along the lines of the imperial German 'Politik der freien Hand'* of the early 20th century.

You're in the essence telling me not only that after 1945 nothing changed, but that it is 1914.

*'politics of the free hand', quite fitting for an enterprising hegemon.

Clifford Kiracofe

Law student: You may wish to review more carefully the initial list of references I provided as background. I would suggest consideration of the following scholarly article as representative on the issue of "preventive war" that I noted. The professor teaches at the Institute for Public Law, Freiburg:

Murswiek, Dietrich, "The American Strategy of Preemptive War and International Law" (March 2003). Available at SSRN: http://ssrn.com/abstract=397601 or DOI: 10.2139/ssrn.397601

The article analyzes the American war on Iraq in its context with the U.S. National Security Strategy and its possible consequences for the development of public international law. The attack on Iraq without U.N. consent is illegal. A mandate for military actions against Iraq cannot be derived from existing Security Council resolutions. Unilateral use of military force can only be justified by self-defence. Anticipatory self-defense is only allowed, if the government can prove that a threat of an armed attack is imminent and leaves no choice of other means than military self-defense and no time to apply to the Security Council. In the present Iraq crisis the U.S. government cannot meet these criteria. By claiming a right to preemptive action, the U.S. government is pushing a change in public international law. If other States don't object a beginning practice of preemptive war, there could emerge a new rule of public international law that allows preemptive wars. Such a rule would leave it within the subjective discretion of each individual State to decide, whether another State is to be qualified as a "rogue State", poses a threat to international peace and can legally be attacked. Nobody wants a new rule to become law, which would allow nearly every State to wage war against a lot of other States. Actually, the U.S. claims the right to preemptive action exclusively for itself. If the U.S. is successful in promoting this exclusive right to preemptive self-defense, then the fundamental principle of sovereign equality of States will be overthrown.

Keywords: preemptive war, preemptive action, preemptive self-defense, Iraq, war on Iraq, prohibition of the use of force, self-defense, Security Council Resolution 1441, sovereign equality of States

I concur with the Professor and his colleagues around the world, including the US, who have written from a similar position.


PS: I got riled up because of that argument you mentioned. In defense I would probably be required to make such an argument. As an impartial counsel I would firmly disagree, as I feel I would be obliged to. I firmly believe that there is a path in law that leads to whoredom and damnation.

* I concede that as Nicaragua showed the US would have to agree to the jurisdiction of the ICJ first. That they won't do.
* Same for the ICC.
* With US veto power we can forget about the issue brought before the UNSC.
* Leaves universal jurisdiction after which everyone can try 'hostis humani generis. That however, is coupled with probable US pressure and depende on how much US pressure the country is willing to endure for that end. Not too much I guess.

That a good example for how power and legality are interwoven in international law. The US did get away with aggression in the case of Nicaragua, probably will in case of Iraq. Saddam's Iraq did not when he invaded Kuwait. Nicaragua is a tragedy because the Nicaraguans played the case straight by the rules of law and lost to the US who did not. Sad.

Considering realities of US power the only fix for that is domestic.


confusedponderer: Sorry, I was confusing Art. 2(3) and Art. 2(4). You're right that 2(4) purports to ban international violence. The ambiguity is in its relation to 2(3), which either requires or merely provides for peaceful dispute resolution. (FYI, I studied this under an eminent Israeli professor, and one who has been deeply involved in promoting the international rule of law and peaceful dispute resolution at that. Hardly an int-law-skeptical US rightwinger.) As a practical matter, though, I maintain that this "illegality" isn't worth much if there's no mechanism for imposing sanctions. That's where the ICJ and ICC are supposed to come in, but see all my points above about how (UNFORTUNATELY) there's no crime of aggression as yet, because no nation-state wants to take the war option off the table (AND HOW I WISH THEY WOULD).


I agree that without teeth illegality seems pointless. But as far as ius cogens in particular is concerned it's about a moral judgement. I think the Jogoslavia tribunal put it quite well when they referred to torturers as hostis humani generis. Keep that picture in mind.

So far the price for illegality is a political one -- paid in perception abroad. And it is not cheap.

Among with alienating longtime allies and damaging relations, it increases the risk of acts of terror against the US. Bin Laden makes a correct point when he refers to the agression of the US against Iraq. So how are polls going for US standing atm? That's the price not the perps but the entire population of the US is paying.

When nation states act, the privileges of impunity are only for the rulers, the risks and ultimately the repsonsibility is collective. Insofar, there should be a genuine interest in America to prevent these loonies from completely FUBARing America.

For all practical purposes, seeing them discredited and unappointable and unelectable would serve the purpose perfectly well, even if it falls way short of an adequate punishment for the crimes they committed. That however would require a public verdict of them. But I am in doubt if that can happen when IMO America does not seem to have collectively grasped that America really did do much wrong.

What else can one conclude from the US public occupying themselves with Rosie vs. Trump, or Edward's haircut, or that allegedly Ms. Plame sent her hubby Wilson on a 'taxpayer junket' to Niger (which is utterly preposterous) instead of adressing the point that America started an illegal war and killed beople by the tens-of-thousands, or that the Bush crew has unchecked and unballanced been merrily deconstructing the constitutional form of government. That is not an Rs vs Ds thing.

Clifford Kiracofe

Nice piece in Salon by Sydney Blumenthal on Wolfie's "Girlfriend Problem":

"....the inspector general of the Defense Department should be ordered to investigate how Shaha Ali Riza was issued a Pentagon security clearance. And the inspector general of the State Department should investigate who ordered Riza's building pass and whether there was a Pentagon credentials transmittal letter...."
According to this article, "Wolfowitz's girlfriend, Shaha Ali Riza, is a Libyan, raised in Saudi Arabia, educated at Oxford, who now has British citizenship."

Clifford Kiracofe

"The independent agency charged with assessing the effectiveness of the World Bank has issued a searing indictment of Paul Wolfowitz’s leadership, warning that the situation at the bank risks causing “irreparable harm to worldwide efforts in poverty reduction and sustainable development”. http://www.ft.com/cms/s/7c2481a8-f0f3-11db-838b-000b5df10621.html

"To the Editor of the Financial Times,
For the good of the World Bank, Paul Wolfowitz should resign..."
Full Text at:


The Special Court for Sierra Leone has taken a somewhat novel approach to the problem - joint criminal enterprise and conspiracy. It's worth a closer look for those so inclined.

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