What makes a war legal or illegal?

I'm having trouble with the concept of a war being legal or illegal. There are many posts on ATS that state emphatically that the war in Iraq is illegal. Even more confusing, some say that the war in Iraq is illegal but the war in Afghanistan is legal. It is my understanding that both wars were voted on and approved by the US Congress – how is one legal and one not? Since the US Congress has no jurisdiction over Iraq or Afghanistan how can their vote make any war legal?

War is not a debate or an “action” or a game. War is large numbers of people trying to impose their will on somebody else by killing them until they give up or are all dead. I don't see how legality fits in at all except as a tool to promote or attack political agendas.

Who came up with the idea of a LEGAL war?

The legality of a war, like history itself, is decided by the winners.

That's not a one liner, I'm just being succinct.

The term relates to international law.

A legal war is one that is mandated by the UN security council, following a passed resolution that authorises the use of force against a nation.

An illegal war is one that is not mandated by the UN.

There are exceptions to this, where the UN recognises the right of a nation to defend itself from attack by a neighbour state or aggressor by the use of force as appropriate.

When Iraq invaded Kuwait in '91, the UN security council passed a resolution to allow the use of force to repel the invaders from the country.

When the US invaded Afghanistan, there was no UN mandate. When the US invaded Iraq, there was no UN mandate. The Afghanistan invasion was tolerated in general by the UN community on the back of the 9/11 attacks and the indisputable links between the Taleban and Al-Quaeda. The UN has since mandated the use of force in the country as a part of the peacekeeping efforts.

The Iraq invasion was carried out under a false-flag, namely that the US argued UN resolution 1441 authorised the use of force, where other nations said that 1441 was a precursor to a resolution that authorised the use of force. There has never been a UN mandate specifically sanctioning the invasion of Iraq since 1991.

Following an official declaration of War, the geneva convention applies to all parties on the battlefield.

The "War on terror" is not a war on a nation state, and there has been no formal declaration of war (you can't declare war on an adjective!), this then is where the US - almost exclusively - has exploited international law by coming up with the definition "enemy combatant".

Enemy Combatant is a murky grey definition as by rights terrorism is a criminal offence dealt with by law enforcement agencies, making people captured in the undertakings of anti-terror operations prisoners bound by the legal system of the country they are captured in pending extradition to the nation that seeks to try them.

"Enemy combatants", according to the US, can be detained by US forces, rendered, moved to US held territories without trial and tried by US military tribunals, without extradition proceedings or recognition of established legal systems, which is why the rest of the world has problems with the process, and GITMO as a whole.

[edit on 12/0607/07 by neformore]

Neformore –

Thank you for the response. This is a very good explanation.

I can see how international law, as you stated it, would apply to most situations. Nations should respect each other’s sovereignty and live together in peace. Any nation that launches an unprovoked attack on another would be taking an illegal action under international law. In 1991 when Iraq invaded Kuwait the international community pulled together (with a fair amount of encouragement) and joined forces to undo Iraq’s illegal act. The system was slow and painful but it eventually worked.

The next 10 years saw terrorist attacks that killed hundreds of innocent people. These attacks were treated as criminal offenses by the US and other countries in accordance with accepted international law. Then the 9/11 attacks in 2001 changed everything.

The 9/11 attacks caused destruction and loss of life greater than the 1941 attack on Pearl Harbor by the Japanese. Under international law, these attacks should have also been treated as criminal offences because, among other things, the attacks were not carried out by a nation. Most Americans, however, could not imagine treating attacks of such magnitude as a criminal offense rather than an act of war. We had declared war on Japan in 1941 as a result of a smaller attack on a military base – how could we do less for a larger attack against civilians?

The problem was that we did not have anyone to retaliate against. Even after we figured out that Al-Qaeda had carried out the attack – what could we do? Al-Qaeda was not a nation and had no distinct homeland. There was no provision in international law for how to address this situation. To strictly follow criminal justice rules and procedures would have meant that we could basically not touch Al-Qaeda in Afghanistan because it was a sovereign nation and did not want to cooperate with us. Using only criminal justice rules and procedures would have done little if anything to punish the perpetrators of the 9/11 attacks and nothing to prevent future attacks. That is where international law failed. That is where the US had no choice but to strike out into new territory and go beyond accepted international law.

This is the root of my question about defining a war as legal or illegal. If international law does not address the specifics of a given situation, how can a nation do anything that would be considered legal? Is the US expected to just absorb terrorist hits without doing anything while the international community debates – possibly forever? I don’t think any country should be expected to do that.

It seems to me that the international community needs to update international law to address the threats facing all nations today. Terrorist attacks are likely to continue and become more deadly. At what point does a terrorist act become an act of war rather than a law enforcement action?

Nations hardly protect one another's sovereignty when they pass international laws that bind them from making war, or nuclear power plants at their own discretion. Obviously international law has its purpose, but it only extends so far as the international community is willing to enforce it. The invasions of Afghanistan and Iraq may indeed be "illegal" to the international community, but that doesn't mean anything if they can't punish the perpetrator.

Edit: And to add I agree that the international community needs to redefine terrorism and how to respond to it. Especially when it is carried out on a large scale. I think that the whole Enemy Combatant/Guantanamo debate is part of that. I do support keeping the base open though because I have yet to hear any actual solutions from the world at large.

Though I suppose it is a question of whether or not the laws need to be re-evaluated.

[edit on 13-6-2007 by Langolier]

To understand what makes a law legal or illegal I recommend reading the UN charter. This document makes the issue rather clear. And if you are a U.S. citizen I would remind you that the constitution says that any international treaty that is approved by the senate becomes law of the land. So violation of the UN charter is a violation of both international and domestic law.

Vas

Neformore you got me there I was looking for the actual article to post.

Under Chapter VII of the United Nations Charter, to which the United States is a party, a nation's use of force is authorized under only two circumstances: in individual or collective self-defense, as outlined in Article 51, or pursuant to a Security Council resolution, as outlined in Article 42.
www.hrcr.org/hottopics/Iraq.html

Originally posted by marg6043
Neformore you got me there I was looking for the actual article to post.

Under Chapter VII of the United Nations Charter, to which the United States is a party, a nation's use of force is authorized under only two circumstances: in individual or collective self-defense, as outlined in Article 51, or pursuant to a Security Council resolution, as outlined in Article 42.
www.hrcr.org/hottopics/Iraq.html

So the U.S. uses the word Preemptive War and its okay to go to war?

But under Chapter VII it clearly states in SELF DEFENSE a country is allowed to attack if felt threatened.

So the U.S. feels threatened by Iraq and their weapons of mass destruction. They hit hard found no weapons. Isn't it illegal now under International Law for the U.S. to occupy Iraq since it is no longer a Preemptive War but rather just simply a War!