Trinity Universe: Politics and International Law

[Alex Green]

Since it looks like we are going to continue, I'll branch this off.

Well, if you find it interesting here goes. I won't debate since I know I'm right anyway  ::wink

Here's info in the International Court of Justice I linked to the parties but you can easily jump to the other sections. I'd suggest reading the proceedings as well as who can apply.

Here's a list of Decisions of the ICJ

Here's a history of the International Criminal Court of Justice which isn't the same thing. Please note that even though the US signed under Clinton along most other nations the Rome Statute creating "the first permanant international court capable of trying indivdiuals accused of genocide, war crimes and crimes against humanity", when the Statute got the ratifications necessary to enter in force (meaning it's now applicable international law even to non ratifying treaty signatories) , less than a month later Bush administration formally declared their intention not to ratify, and more importantly, their view that they are no longer bound by the terms of the treaty.

In other words, lets look nice and sign this...then oh my god, we realise this will actually come into full force!, naaahh, the treaty doesn't apply to us then. The sickest thing about this is that this treaty was for genocide, war crimes, and crimes against humanity and the US refused to abide by the treaty.

They did the same thing with the Basel Convention if people want to read up on that you can do that here. The Basel Convention is also one of the rare sorry examples of Canadian non compliance to a treaty...though that's been changing recently. P.S. The Basel Convention states that first world countries can't export waste to third world countries even with that countries approval. You wouldn't believe what horror stories that brought up the need for the writing up of this treaty!

[Alex Green]

Well, thank you for the links.

Having read the NICARAGUA v. UNITED STATES OF AMERICA case. (http://www.lawschool.cornell.edu/library/cijwww/icjwww/idecisions/isummaries/inussummary860627.htm) I'm not surprised the US ignored them.

The following is from the majority opinion.

XI. Application of the law to the facts

The Court has to consider whether the acts which it regards as breaches of the principle may be justified by the exercise of the right of collective self-defence, and has therefore to establish whether the circumstances required are present. For this, it would first have to find that Nicaragua engaged in an armed attack against El Salvador, Honduras or Costa Rica, since only such an attack could justify reliance on the right of self-defence. As regards El Salvador, the Court considers that in customary international law the provision of arms to the opposition in another State does not constitute an armed attack on that State.  As regards Honduras and Costa Rica, the Court states that, in the absence of sufficient information as to the transborder incursions into the territory of those two States from Nicaragua, it is difficult to decide whether they amount, singly or collectively, to an armed attack by Nicaragua. The Court finds that neither these incursions nor the alleged supply of arms may be relied on as justifying the exercise of the right of collective self-defence.

So in other words, Nicaragua was trying to over throw the government of El Salvador by supplying guns to its rebels, and by occassionally sneaking over the boarder with them. But hey, that's no reason for the US to get involved and start violating Nicaragua's rights.

I liked Judge Schwebel's dissent:

Dissenting Opinion of Judge Schwebel

Judge Schwebel dissented from the Court's Judgment on factual and legal grounds. He agreed with the Court in its holdings against the United States for its failure to make known the existence and location of mines laid by it and its causing the publication of a manual advocating acts in violation of the law of war. But Judge Schwebel concluded that the United States essentially acted lawfully in exerting armed pressures against Nicaragua, both directly and through its support of the contras, because Nicaragua's prior and sustained support of armed insurgency in El Salvador was tantamount to an armed attack upon El Salvador against which the United States could react in collective self-defence in El Salvador's support.

Judge Schwebel found that, since 1979, Nicaragua had assisted and persisted in providing large-scale, vital assistance to the insurgents in El Salvador. The delictual acts of Nicaragua had not been confined to providing the Salvadoran rebels with large quantities of arms, munitions and supplies, which of themselves arguably might be seen as not tantamount to armed attack. Nicaragua had also joined with the Salvadoran rebels in the organization, planning and training for their acts of insurgency, and had provided them with command-and-control facilities, bases, communications and sanctuary which enabled the leadership of the Salvadoran rebels to operate from Nicaraguan territory. That scale of assistance, in Judge Schwebel's view, was legally tantamount to an armed attack. Not only was El Salvador entitled to defend itself against that armed attack, it had called upon the United States to assist it in the exercise of collective self-defence. The United States was entitled to do so, through measures overt or covert. Those measures could be exerted not only in El Salvador but against Nicaragua on its own territory.

In Judge Schwebel's view, the Court's conclusion that the Nicaraguan Government was not "responsible for any flow of arms" to the Salvadoran insurgents was not sustained by "judicial or judicious" considerations. The Court had "excluded, discounted and excused the unanswerable evidence of Nicaragua's major and maintained intervention in the Salvadoran insurgency". Nicaragua's intervention in El Salvador in support of the Salvadoran insurgents was, Judge Schwebel held, admitted by the President of Nicaragua, affirmed by Nicaragua's leading witness in the case, and confirmed by a "cornucopia of corroboration".

Even if, contrary to his view, Nicaragua's actions in support of the Salvadoran insurgency were not viewed as tantamount to an armed attack, Judge Schwebel concluded that they undeniably constituted unlawful intervention. But the Court, "remarkably enough", while finding the United States responsible for intervention in Nicaragua, failed to recognize Nicaragua's prior and continuing intervention in El Salvador.

For United States measures in collective self-defence to be lawful, they must be necessary and proportionate. In Judge Schwebel's view, it was doubtful whether the question of necessity in this case was justiciable, because the facts were so indeterminate, depending as they did on whether measures not involving the use of force could succeed in terminating Nicaragua's intervention in El Salvador. But it could reasonably be held that the necessity of those measures was indicated by "persistent Nicaraguan failure to cease armed subversion of El Salvador".

Judge Schwebel held that "the actions of the United States are strikingly proportionate. The Salvadoran rebels, vitally supported by Nicaragua, conduct a rebellion in El Salvador; in collective self-defence, the United States symmetrically supports rebels who conduct a rebellion in Nicaragua. The rebels in El Salvador pervasively attack economic targets of importance in El Salvador; the United States selectively attacks economic targets of military importance" in Nicaragua.

Judge Schwebel maintained that, in contemporary international law, the State which first intervenes with the use of force in another State - as by substantial involvement in the sending of irregulars onto its territory - is, prima facie, the aggressor. Nicaragua's status as prima facie aggressor can only be confirmed upon examination of the facts. "Moreover", Judge Schwebel concluded, "Nicaragua has compounded its delictual behaviour by pressing false testimony on the Court in a deliberate effort to conceal it. Accordingly, on both grounds, Nicaragua does not come before the Court with clean hands. Judgment in its favour thus unwarranted, and would be unwarranted even if it should be concluded - as it should not be - that the responsive actions of the United States were unnecessary or disproportionate."

[brilyn]

So in other words, Nicaragua was trying to over throw the government of El Salvador by supplying guns to its rebels, and by occassionally sneaking over the boarder with them. But hey, that's no reason for the US to get involved and start violating Nicaragua's rights.

Um.... 'Cause the US does this all the time.....

I think it would be in the interest of collective self-defense of the rest of the world to invade the US....

In all seriousness, the US hasn't been involved in a conflict in the last 25 years or so that they DIDN'T supply the other side first.

Hussain

Al'Qaeda

Milosovich

All supplied by the US.

Good job dropping a nuke on a civilian population centre doesn't count as a War Crime.

No.... Wait.... only when the *US* does it, is it not a war crime.....

[ezekiel]

If you read carefully it states that:

"that in customary international law the provision of arms to the opposition in another State does not constitute an armed attack on that State."

Had the US simply armed Nicargua's opposition then they wouldn't have lost the case, would they? They went much further than that:

Here's a link for the case in a nutshell

I think it would be in the interest of collective self-defense of the rest of the world to invade the US....

That's a bit harsh, as far as tyrants go the US isn't that bad.

But...back to Nicaragua

Paramilitary bands, aided by the CIA front organisation American Institute for Free Labor Development (AIFLD), began armed attacks in the north, singling out volunteers in the health and literacy programmes to murder. In January 1981 Ronald Reagan took office under a Republican platform which asserted that "it deplores the Marxist Sandinista take-over of Nicaragua" and he greatly expanded the CIA's guerrilla warfare and sabotage campaigns. In November 1981 Reagan authorised a covert plan for $19 million to help the Argentina dictatorship train a guerrilla force operating from camps in Honduras to attack Nicaragua.

Former members of Somoza's National Guards (who had fled to Honduras when the Somozan regime was toppled) and other war criminals formed the basis of this force, which became known as the contras. By the autumn of 1983, 12,000 to 16,000 contra troops of the so-called FDN (Nicaraguan Democratic Force) were operating along the Honduran border. Smaller contra forces operated from bases in Costa Rica. They staged hit and run raids against rural towns and co-operatives in Nicaragua, before returning to their bases across the border. The CIA had no illusions about the contras' ability to overthrow the FSLN; in two years of operations, they failed to take and hold even a small village. The aim of the contras was to use terrorist tactics to stop Nicaraguan development projects in all areas: economic, education, health services and political organisations.

The contras blew up bridges, civilian power plants and schools, they burned fields of crops and attacked hospitals. Their tactics included rape, kidnappings of peasants and civilians, ambushes and massacres against small rural communities, farms, co-operatives, schools and health clinics. Contra raids caused extensive damage to crop fields, grain silos, irrigation projects, farm houses and machinery. Numerous state farms and co-operatives were incapacitated; other farms still intact were abandoned because of the danger.

Taken from this easy to read site

It goes on

By the mid-1980s, Reagan's dirty war against Nicaragua had caused 14,000 casualties. Apart from soldiers and civilian militia defending the government, those injured by the contra attacks included teachers, health workers, local government officials, technicians, school-children, church workers, peasants and other innocent civilians. The number of children and adolescents killed exceeded 3,000 and more than 6,000 children had been turned into war orphans.

The Nicaraguan government announced in November 1984 that since 1981 the contras had assassinated 910 state officials. In just over four years, the CIA-backed mercenaries had attacked nearly 100 civilian communities and caused the displacement of over 150,000 people from their homes and farms. Bridges, port facilities, granaries, water and oil deposits, electrical power stations, telephone lines, saw mills, health centres, schools and dams were all destroyed or damaged.

Wow...14 000 casualties...

Casualties? Warning, not for the weak of heart...

Witness For Peace, an American Protestant watchdog body, collected a list of contra atrocities in one year, which included murder, the rape of two girls in their homes, torture of men, maiming of children, cutting off arms, cutting out tongues, gouging out eyes, castration, bayoneting pregnant women in the stomach, amputating the genitals of people of both sexes, gouging out eyes, scraping the skin off the face, pouring acid on the face, breaking the toes and fingers of an 18 year old boy, and summary executions. These were the people Ronald Reagan called "freedom fighters" and "the moral equal of our founding fathers."

One survivor of a contra raid in Jinotega province, which borders Honduras, reported: "Rosa had her breasts cut off. Then they cut into her chest and took out her heart. The men had their arms broken, their testicles cut off and their eyes poked out. They were killed by slitting their throats and pulling the tongue out through the slit." The human rights organisation Americas watch, concluded that "the contras systematically engage in violent abuses…. so prevalent that these may be said to be their principle means of waging war."

Breasts and testicles cut off? Eyes gouged? Pouring acid on the face?! Oh yeah, the US got involved alright...Don't try to convince me that this is justified by Nicaragua supplying arms to rebels of El Salvador.

Oh...and by the way...you forgot to mention that the dissent is by Stephen M. Schwebel of the United States of America

[Alex Green]

RE: The contras

Yes, it was a bad horrible thing, and not the US at its best (to put it mildly).

Mitigating factors:

1) The Cold war.

2) The domino theory (see below).

3) Presumably if there were angelic rebels around for us to arm, we would have done that instead. Sometimes you have to use the tools available.

4) The US government, in the form of Congress, did in fact try to end our involvement with the Contras.

5) The President was more than a little senile, and had little control or oversight over some of his people (specifically CIA directory Casey in this case). This eventually led to congressional hearings and greatly damaged his Presidency.

But having said all that, I’m not clear what exactly you wanted the US to do, nor am I sure that the US was wrong.

In other words, I admit this was a bad thing to do and get involved with. However, I’m not sure doing NOTHING would have been better. Even the judges that ruled against the US said that Nicaragua was trying to destabilize its neighbors. Letting the communists start civil wars, and over throw governments would be a bad thing. Eventually they might move up the chain of countries into Mexico (domino theory). I don’t think this sounds like something that would increase civil rights and reduce the body count.

This was a dirty, nasty business, and I suspect that there was very little that was legal about it on anyone’s side. I don’t know all the facts there, and I doubt the people making the decisions did either. Sometimes you have to choose the lesser of two evils. A hard decision is when you have to decide without having all the facts and people’s lives are at stake.

I have my doubts that the international court is a body that should be able to substitute it’s judgement over the President’s on matters like this.

[brilyn]

I have my doubts that the international court is a body that should be able to substitute it’s judgement over the President’s on matters like this.

What, you don't think a bunch of people have better judgement than a president who's "more than a little senile"?

Fact of the matter is, there's no such thing as an 'angelic rebel'. Armed insurrection results in people dying. Period.

The US (no, I'm not ignoring the UK or the rest, but we appear to be talking about the US, and I'm SOOOOO not a trend-breaker... ::wink) has been funding crazies since year 1.

The Cubans (that Bay of Pigs thing sure turned out great, right?)

The Iraqis (the US wanted to destabilise the region)

The Iranians (see above)

Milosovich (bad communism. Must fund whoever says they hate communism, no matter how much of a Fascist scumbag they are)

But hey, go Freedom!!

Here's a fun question:

How many US soldiers have died in the last 50 years (or so) from a bullet that was originally produced in the US?

Every conflict the US has been involved with in the last 25 has been against someone the US setup to begin with. If I were in marketing in the Military, and I wanted self-perpetuating funding, this is how I'd go about doing it.......

Give the scumbags the guns, then 10 years later:

"OMG, they're SUCH scumbags..... We better invade.....

"Look, there's more scumbags of there, but they don't like our scumbags (or us, but we'll ignore that for a moment). Quick arm them, they'll help us."

10 years later......

(rinse, repeat)

[ezekiel]

Ok, notwithstanding the fact that I'm aghast at your rationalizing and condoning of the USA's acts of terrorism, I'm pulling this debate back to its origins: International Law. Otherwise this'll just end up as a USA bashing fest.

Aggression, unauthorized violence, is prohibited as agreed upon by the members of the UN upon the signing of the Charter of the United Nations. We ban aggression for the same reason that we ban gunmen in our societies. We can't have a rule that says anyone can pick up a gun a do what they want.

So why not ban all violence? Cause that's not what's happened, States still have a right to the use of Force when authorized or for self defense.

1) There's no way the Nations would accept it otherwise.

2) Nations should have a right to protect themselves when otherwise they would be attacked (and this does NOT mean that the war on Iraq was justified and legal)

3) If there wasn't a right for the use of force then it would have removed all deterrent effect from the law. Defending Nations would receive the same sanctions as aggressors.

Now you could spend a lifetime studying the subject and you'd still be learning and having a jolly good time towards the end but I'll try to water it down for you. The Charter mentions use of force as being lawful:

Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Basically article 51 stated that customary law regarding self-defence remained in effect.

The second area of lawful use of force is any authorized coercion, as long as not ultra-vires (outside of their competence), as authorized by either the Security Council under article 24 or chapter 7 of the Charter, or little known to the public, as authorized by the general assembly acting under chapter 4 of the Charter. The General Assembly's competence is very limited and the use of force couldn't be for enforcement action but it could be for peacekeeping.

Finally, and this is the heart of the matter, there's article 2(4) of the Charter

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Please note that it also prohibits the threat of use of force. Anyway, now that we're through with the basics, onto other stuff...

For all lawful use of force under the right of defense, individual or collective, there is, under customary law, a requirement that the responding force be both necessary and proportional. So necessity and proportionality are read into the right of defense, even though they don't appear anywhere in the Charter. Just to be sure everyone's following me, there's no need for the security councils approval for the right of defense.

So what am I getting at? I'm not saying the International Courts should substitute their judgment over that of head's of states, far from it. I'm saying that Head's of States should act in accordance with International Law as stated within the UN Charter. Does a judge substitutes his judgment to that of a killer? No, he judges his actions when the killer should've abided by the law. The law is there, what's lacking is enforceability though the Nations have come a long way in very little time. What's sad is that certain nations, ok, just one really comes to mind, are really undermining what has been accomplished so far if not jeopardizing the UNs very being.