Clark claims the war was not technically illegal, but "illegitimate" based on factors entailed in a war internationally accepted as "just." He explains his judgment that the several UN resolutions and the IWR (combined) provide technical legality.
I was shocked myself, but FYI, here it is.
The truth is, The War Powers Act says that if the President introduces forces, he has to terminate that military operation in 60 days unless there’s a declaration of war or unless Congress votes to extend it in some way, or the President certifies he needs another 30 days to safely remove the troops.
The War Powers Act has been invoked 114 times, and it remains highly controversial, but it was not an issue in the case of Iraq, because the President won Congressional support for his action - House Joint Resolution 144 on October 11, 2002. It gave the President of the United States what he needed which was the authority to use force. He took it to the UN and then he used it.
So, U.S. law hasn’t been an issue thus far in the intervention in Iraq, and international law - at least so far- has not technically been an issue. The U.S. action had international legal authority through a whole series of UN Security Council resolutions issued under the authority of Chapter 7 of the UN Charter, and dealing with the issue of Iraq’s compliance with the obligations enforced by the UN Special Commission that was sent into Iraq at the end of the Gulf War to search for and demobilize Iraq’s weapons of mass destruction.
UN Security Council Resolution 1441, dated 8 November 2002, gave the U.S. authority to act under Chapter 7 which is the the chapter of the UN Security Council, UN Security Charter, UN Charter which deals with the use of force or threats of force. And so, typically when you take action under Chapter 7, what that means is you’re authorized to use force, and in the- in this resolution if you read it, it, it states that it’s the final warning to Iraq. So, the administration did take that as the full authorization it needed.
Many nations sought a second resolution, but we don’t recognize this very often in our own domestic politics, but UN Security Council Resolutions have the force of international law, and some governments cannot take military action without it being authorized by the UN Security Council. It’s supposed to bind nations, and that’s the signatory of the, that’s what the signature of the Charter means when nations are admitted.
So, we went to war on legally sufficient grounds, both nationally and internationally. The problem wasn’t legality. It was legitimacy, for U.S. actions went against the broad notions of legitimacy which have emerged at the heart of Just War Theory, the adherence to which may be for more important than technical legality.
-snip
And what happened to us, I would submit, is that we begin immediately after 2002, after the UN Security Council resolution was passed, we begin undercutting our own legitimacy in the operation in Iraq. Even in 2002, the Neocon movement discussed broader aims and more intrusive motivations for the intervention in Iraq, and by February 2003 the President had begun talking about his aim of establishing Democracy, undercutting the Just War premise of the purpose for the operation which was directed at enforcing the UN SCR about weapons of mass destruction.
In the Neocon publications and the rumors circulating throughout the region, states in the region understood that the United States was going to Iraq as a first step, not a last step and that it wasn’t about weapons of mass destruction. It was about broader geostrategic issues. So, we had, from the outset, undercut the legitimacy of the legality that we received.
-snip
The administration begin to talk about the need to change a regime, but that wasn’t the purpose of the operation in international law. The administration tried to take credit for capturing Saddam and bringing him to justice, but that wasn’t the purpose for the operation. And when we failed to find weapons of mass destruction it furthered the sort of triple blow against the legitimacy of the operation.
Then we came along and insisted our soldiers not be susceptible to war crimes charges under the International Criminal Court. We made our allies sign statements to this. The actions at Abu Ghraib and Guantanamo further undercut the idea of legitimacy. We were going against the very international conventions that we had promoted ourselves, and then the news on the renditions and the secret prison sites, which violate U.S. and international law.
Then in the Q&A:
Michael Intrilligator: (inaudible) But I do want to challenge your one point. You made the point that this war is illegitimate but legal. I question the legality of this war. As I understand the situation, we are members of the, the UN treaty. We signed the UN Charter. The UN charter’s part of our Constitution as a, as a treaty that we, that we agreed to. The Charter says that a member state does not attack another member state unless there are two conditions: One that they’re attacked and in self defense and second is that they can, they have the approval of the Security Council. Now your, your fellow General Colin Powell went to the UN Security Council on February 5th, 2003 and made an impassioned speech to try to convince other members of the Security Council to endorse our attack of Iraq. They did not agree to that. So, by rules of the Charter, we are- this is an illegal war. We are as much an outlaw as Saddam was when he invaded Kuwait in our attack on Iraq. What is your reaction?
GENERAL WESLEY CLARK: Well you know, I’d hate to disagree with the Eminent Former Dean of the Burkle Center. (laughter) I think it gets into the technicality of what is legal and what- I’m accepting the administration’s case that their war is legal because of the wording of the UN Security Council Resolution which does have the force of law and which they cited, as well as the U.S. Congressional resolution. Now, you could go deeper into it and say that the UN Security Council resolution was buttressed by false evidence, and that evidence was debunked until (inaudible) should rightly come back and withdraw its authority to act. But I think that, were I to get lost in that discussion, it doesn’t help illuminate the more fundamental point that I’m trying to make. So, I’m accepting for sake of argumentation that there can be a case made that the war is legal, but even if you accept that case, you can’t help but recognize that we’ve lost legitimacy in the action we’re pursuing. And the legitimacy is far more important in winning the war than the administration’s technical claim of legality, and that’s my premise.
Transcript:
http://clarkiw.wordpress.com/2007/01/22/just-war-theory/