Text of Cumberland County Democratic Committee Iraq War Resolution
(see supporting FAQs posted below the text of the resolution)
Approved Nov. 20, 2005
Resolution Concerning the Maine National Guard and the War in Iraq
Whereas, the Town and its citizens strongly support the men and women serving in the United States Armed Forces in Iraq and recognize the sacrifices that each of them is making. The Town and its citizens stand ready to help these Mainers in any way they can.
Whereas, in October 2002 the United States Congress adopted a Joint Resolution to authorize the use of United States Armed Forces against Iraq, relying on statements that were untrue, when in fact the United States:
Whereas, in going to war, the President did not meet the conditions imposed by Congress, failing to show Congress why he:
- was not threatened with attack by Iraq,
- Saddam Hussein had no weapons of mass destruction,
- Saddam Hussein had no role in the 9/11 attacks.
Whereas, the war has resulted in serious and potentially long-lasting consequences for the United States and reduced the chance for a just and durable peace in Iraq and the Mideast;
- decided that diplomatic or peaceful means alone would not protect the national security of the United States or lead to enforcement of Security Council resolutions on Iraq,
- why he decided that going to war was a necessary action against Iraq on the theory - never proven - that Iraq authorized, committed, or aided in the 9/11 attacks.
Whereas, the United States Constitution provides that Congress shall have the power to "provide for calling forth the Militia to execute the Laws of the Union, to suppress insurrections and repel Invasions," and the Maine Constitution provides for the Governor, as commander in chief, to direct the organization, armament and discipline of members of the Maine National Guard for defense of the State;
Whereas, since 1986 the President and the Congress have had nearly total control over state militias, including the Maine National Guard;
Whereas, the costs of the call-up of Maine National Guard members for deployment in Iraq has been significant, as reckoned in lost lives, combat injuries, psychic trauma, disruption of family life, financial hardship for individuals, families, and businesses, interruption of careers, and damage to the fabric of civic life in many Maine communities;
Whereas, these are costs which would be suffered willingly were there a threat to our nation, but which are not tolerable where there is none;
Whereas, Mainers have joined the Guard to serve their neighbors in Maine-based emergencies, expecting active duty status only in the case of invasion, insurrection or declaration of war under the constitution of the United States;
Whereas, stop-loss orders violate the mutual understanding between Mainers in the Guard and the state and nation they agreed to serve; and
Whereas, there is reason to believe that the federalization and deployment of Maine National Guard members can render the remaining Guard force unable to carry out its state activities effectively;
NOW, THEREFORE, IT IS HEREBY:
Resolved, that the Town requests the members of Maine's Congressional Delegation to urge Congress to restore the balance between the federal government and the states, limiting federal control over State National Guard units to cases:
Resolved, that the Town requests the Legislature of the State of Maine, exercising its powers under Article IV, Part Third, Sec. 1 of the Maine Constitution, and the Governor, exercising his powers under Articles V, Sec. 7 and VII, Sec. 4 of the Maine Constitution to:
- where there is reasonable evidence that war powers are requested in order to protect against a threat to the territory of the United States,
- where there is an insurrection or a plausible threat of insurrection; or
- where there is a declaration of war under the United States Constitution;
Resolved, that the President and the Congress take steps to withdraw American troops from Iraq, consistent with the mandate of international humanitarian law; and
- investigate, discuss and report whether members of the Maine National Guard have been called to active service and assigned to duties relating to the war in Iraq in conformity with the U.S. Constitution and federal laws, including the 2002 Congressional Resolution on Iraq; and
- create a commission or other body to collect statutory, historical, and statistical information about the role of the National Guard in serving the State of Maine and to study the impact of the federalization and deployment of its members on the ability of the Guard to perform its mission in Maine;
Resolved, that the Town Clerk send a copy of this Resolution to each member of the Maine Congressional Delegation, the Maine Governor, the Speaker of the Maine House, the President of the Maine Senate, the Attorney General of Maine.
Frequently Asked Questions
Q. Why are we being asked to talk about the Iraq War at a Town Council Meeting? Isn't the war a national rather than a local issue?
A. First, war is a quintessentially local issue - ask anyone with a family member deployed and in Iraq. The war is also a local issue because it is being waged in our names, as citizens, and with our money, as taxpayers. It is our responsibility to participate in the decisions our country makes, and town meeting is the place to begin.
But use of the National Guard deepens the local connection. The war in Iraq is a local issue because the National Guard troops who are supposed to be available to respond to natural disasters, security threats and unrest at home have been deployed overseas and will not be here if and when we need them. The state legislature, as well as local politicians, should be investigating the impact of these deployments on the safety, security, and stability of the state and calling for Congressional Representatives and Senators to do the same. This is not just a national foreign policy issue.
The war in Iraq is a local issue because the deployment of our family members, neighbors and coworkers impacts our soldiers, our families, our communities and our state in numerous ways:
The recent proposals to increase the length of National Guard activations and deployments from a limit of 24 cumulative months to a limit of 24 consecutive months, which would allow multiple deployments of up to two years, would only add to the above-stated problems. And Maine National Guard members can be sent back to the Mideast as early as one year after their first deployment.
- By removing our police officers, firefighters, emergency medical technicians, teachers and other critical members of our communities, the war is making us all less safe at home and undermining critical security and support services in our communities;
- By increasing costs for towns, cities and state government who have to make up income losses, carry forward benefits and pay for replacement workers, the war takes money away from critical services here at home;
- By disrupting families and communities, the war is undermining families. In particular, the extended deployments of National Guard soldiers have been disastrous for families, employers and communities and have put an increasing burden on social services. Stories of deployment-related divorces and of deployment-related single parent or no-parent households abound;
- By creating a financial burden on employers the war is undercutting the financial security of our communities. Many employers have supported employees' service in the National Guard but assumed that deployments would be for relatively short periods of time in the face of real emergencies. The long deployments of large percentages of the Guard are leaving employers with an unanticipated financial burden as well as with the need to make up for the loss of key employees. Particularly for small employers, this is a significant burden;
- By creating an unmet and unanticipated need for social services after our soldiers return and re-integrate into our communities and state, the war is creating hidden costs for our communities. There is increasing evidence that post-traumatic stress disorder (PTSD) is a huge and growing problem for soldiers returning from the war in Iraq - a war of occupation where there is no clear enemy and no clear front line. PTSD is a very serious problem for all who experience it, and for their families. For National Guard soldiers who are police, firefighters, emergency medical technicians, etc., PTSD may have devastating impacts on their abilities to do their jobs back at home; and
- By undermining the long-term viability of the Maine National Guard, the war will make us less safe in the future. As a result of the deployments and misuse of the National Guard in this war, recruitment is down in Maine and many other states - creating the specter of a weakened force for years to come. The Army Reserve has already been called a "broken force" by its commanding general. The costs of re-building the National Guard will be in the billions.
Q. Aren't you just using the Guard members as political pawns to advance your political agenda?
- The National Guard & Reserves make up over 40% of the U.S. forces in Iraq
- National Guard soldiers are dying at rates 35% higher than other military
- 70% of Maine's National Guard has been deployed in recent years.
A. The Maine National Guard is front and center in the debate over the war. We speak only for ourselves. Some Guard members and families will agree with us, and others may not. But if they are anyone's "pawns," they are the pawns of those who have planned and executed this war on false pretenses and for unacceptable reasons. Speaking the truth about this war does not put Guard members "in the middle." As long as the administration is sending them to Iraq, it's everyone's right to talk about them. It's everyone's obligation.
Q. Isn't the resolution disrespectful of the Guard, just when they need all the support they can get?
A. This resolution is respectful of the Guard and Guard members, not only because it says so, but because it honors the idealism that it takes to join the ranks of a corps that stands ready to help out with emergencies at home and to serve if we are attacked. It honors Guard members to criticize those who ignore their dedication and seek to use them inappropriately.
Q. Won't the resolution campaign affect troop morale?
A. An old and often-hurled charge against the peace movement is that peace efforts hurt the morale of the fighting forces and that only a united country can fight effectively. The trouble with the argument - aside from the fact that it is unsubstantiated - is that it means that every war is the right war. As soon as the first shot is fired, dissent must stop, lest objectors affect troop morale. Democracies don't work that way. Some troops will suffer a decrease in morale, but others will feel boosted by the fact that there are folks outside of the service who care about their welfare and the reasons they are in a war.
Q. When the terrorists in Iraq see that every time they kill an American, some group in the states is going to come up with a resolution to stop the war, won't they conclude that they can do whatever they want?
A. Another old and discredited argument - "giving aid and comfort to the enemy." It is a shorthand way of saying no to peace movements - categorically. Advocating peace becomes sedition. The more important answer is that no adversary in wartime, like it or not, is stupid. In the world of satellite phones and instant messaging, both sides are aware of the political realities on the other side. The time when objections to an unjustified and unpopular war could be kept under wraps vanished long ago. Opposing nations in war can fantasize about peace movements dividing and undermining democracies. Deep down, they fear a working democracy. Peace workers are not set into motion by bad news from the front. This war itself, not reports from the field, has motivated opponents. The enemy knows this very well.
Q. The resolution seems narrow and limited. Many critics of the war in Iraq use more immediate language to describe the need to exit Iraq. Can these folks support this resolution?
A. Absolutely. This is a strong resolution and does not provide any "wiggle room" for the administration to prolong its stay in Iraq. But a community resolution sets down the points on which a majority of a community agrees, and it is the collective views of a majority of the very many people whose ideas have gone into this resolution that more than one line is needed to say what is local and feasible. It does not preempt calls that use just three words - exit Iraq immediately. It simply reflects the judgment that the text of the resolution will in fact bring the troops home as quickly as any other form of words, and that additional concerns about the impacts of the war can and should be considered. Hence, the reference to international humanitarian law (see below). Different towns and cities will express the same basic goals in different ways - this is as it should be.
In sum, there is much room for discussion among people who oppose this war about the right legal, moral, humanitarian, and practical way to exit Iraq.
Q. How can you state as a fact that Iraq did not pose a continuing threat to the national security of the United States? The President said the opposite. Isn't it a matter of opinion?
A. Not even the strongest supporter of the war has suggested that Iraq had the means to invade the United States or attack any of its bases outside of Iraq. The statements that Iraq posed a threat to the United States ultimately relied on Saddam Hussein's supposed production of weapons of mass destruction (WMD), pursuit of nuclear weapons, and ties to Al Qaeda. The burden of proof on all three of these questions was on the administration, and it offered proof on none of these points. The administration conceded the WMD point, and Colin Powell's UN statement about Saddam's search for nuclear raw materials in Africa was later discredited and dropped. The special presidential Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction called crucial weapons intelligence judgments on Iraq "dead wrong". That leaves the Al Qaeda connection, which most neutral observers dismiss. The CIA and other intelligence agencies and commissions have vigorously disputed any suggestion of a link between Saddam and Al Qaeda, though a lot of U.S. citizens believe that Saddam was involved in 9/11.
Q. What is the difference between the Joint Resolution on the Use of Force in Iraq and a declaration of war?
A. A declaration of war establishes a state of war, with the president as commander-in-chief. Only Congress can declare war, and that power is provided for under the United States Constitution. The Iraq war was started, not under a declaration of war, but rather after a Joint Resolution on the Use of Force passed by both houses of Congress. The habit of bypassing a congressional declaration of war in favor of a joint resolution by Congress - which is far easier to pass - grew up after Congress passed the War Powers Act in 1973. This act essentially authorizes the President to start a war so long as he notifies Congress, which then has 60 days to authorize the action. If Congress disapproves, the president must withdraw forces after another 30 days. The War Powers Act itself has been criticized because it delegates the war-making power to the President, subject to an after-the-fact approval by Congress.
In practice, given modern politics and the realities of the U.S. position in the world, the joint resolution route gives the president greater power and the Congress diminished power over the question of going to war. As one commentator has said of the comparison between a declaration of war under the Constitution and a resolution, "The war declaration is important because a state of war transforms the country. The entire country is at risk of being attacked, and the war becomes top priority for everyone, whether they like it or not. Because this is so serious, an explicit and specific declaration makes it very clear that this is what Congress, on behalf of the people, intends. By merely passing a resolution and providing funds, Congress is going along with a Presidential war rather than taking responsibility for starting a war." (Fred E. Foldvary, The Progress Report.)
Q. If Congress has taken away really all state power over National Guards, why are Maine towns being asked to consider this resolution, and why does the resolution ask the Legislature and Governor to consider the issue of National Guard deployment, since the sole power over deployment and use of the Guard now resides in Congress?
A. There are several answers, but the most important one is that grassroots opinions and political demands have historically been important, despite the rise of federal power in the years since the New Deal in the 1930s and the post-World War II expansion of federal programs and powers.
Interestingly, the fairly conservative U.S. Supreme Court is focusing more and more on state, rather than federal, powers in certain areas of the law. See, for example, Mark Tushnet, Foreword: The New Constitutional Order and the Chastening of Constitutional Aspiration, 113 Harv.L.Rev. 29, 72-76 (1998). Whether or not the Supreme Court's emphasis on localism constitutes progress toward a more just and equitable society, on broad political questions, there must be a new emphasis on local political initiatives, even where they may not be legally binding. Local involvement in defining public policy - even when the issues are national or global in scope - doesn't undercut either Congress or state legislatures.
Further, in an era of media concentration, local involvement is one answer to an excessive reliance on public opinion pollsters and talk radio hosts as the interpreters of public opinion. State legislatures cannot override acts of Congress, but they have the power to set the tone and content of debate among the states and between the states and the federal government. For example, local governments and the legislatures of several states have recently called attention to problems with the USA PATRIOT Act - a law passed in response to 9/11 that some think limits civil liberties. The issues surrounding the war in Iraq are no less important.
Q. Many Americans apparently believe that bringing down Saddam Hussein justified the war in Iraq. How can the resolution state as a fact that bringing down Saddam was not by itself grounds for initiating a war in Iraq?
A. People who believes that Saddam's downfall justified the military action in Iraq can, however, still agree that the reasons given to Congress justifying the war involved specific allegations that were not true. Think of it this way: Would Congress have been likely to adopt a resolution authorizing war in Iraq based solely on the presence there of a hated dictator with a notorious past (1) who lacked WMDs, (2) who lacked the muscle to attack the U.S. or its bases, and (3) who had no demonstrated connection to 9/11?
The text of the Iraq War Resolution suggests the contrary, as does the Constitution, which limits the call-up of troops to threats of invasion or insurrection. Most convincing is the fact that Congress has never adopted a resolution aimed solely at toppling a regime where there were no accompanying threats to this country. For a scholarly take on the same point, see "The Sources of American Legitimacy" by Robert W. Tucker and David C. Hendrickson, Foreign Affairs, November/December 2004. Here is an excerpt that makes the point:
By styling its doctrine of preventive war the "strategy of preemption," the administration sought to approximate its strategy to one of self-defense - for preemption, if the threat is imminent, can at least make a tolerable claim to legitimacy. This approach would have been unconvincing even if banned weapons had been found in Iraq - possessing weapons is not proof of impending attack - but it utterly collapsed when no weapons were discovered. Advocates for war then argued that the administration had never actually said that the threat was imminent, only that it was "grave and growing." Absent a showing of imminence, however, one could not make a plausible claim for the lawfulness of the action. In truth, the Bush administration did not care a fig for whether the war was lawful. It wanted its strategy of preventive war to seem lawful, but the doctrine's implementation never depended on whether the administration's lawyers could write a coherent brief in its favor.
Q. What happened in 1986 to tilt the balance between the powers of the states and the federal government over the National Guard so sharply in favor of the federal government?
A. President Reagan federalized some National Guard soldiers for training in Central America, some think as a show of force calculated to match the President's negative feelings about countries in Central America involved in guerilla or civil wars. Some governors withheld their states' National Guard members from this federal training initiative, and Congress responded with a law known as the Montgomery Amendment, which states: "The consent of a Governor . . . may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty."
Some people believe that the cumulative actions of Congress in the last century, concluding with the Montgomery Amendment, went too far in favor of the feds and took too much power away from the states, and should be reexamined. They hope to restore the balance that existed earlier between state powers over the Guard and those of the federal government, reexamining the historic role of the National Guard as a state entity and the modern need to involve all levels of the American government in decisions about the use of the National Guard in wars that do not involve invasion, insurrection, or some other national emergency.
Q. In an age where international terrorism might require a military response at any time, is it appropriate for states to be arguing for the power to withhold Guard members from an effort that should be characterized by unity and not by division?
A. There is a big difference between the readiness to meet the threat of international terrorism as it may occur at home or abroad, and U.S. military actions overseas that might be executed as a strategic response to terrorist acts, or in response to perceived threats of terrorism.
All Americans recognize that unity is essential in meeting the challenges of international terrorism. But the very same loud call to war that a grievous act of terrorism may inspire raises the chances that a war following such an act may be started in haste and may be contrary to our longer term interest in resisting and defeating terrorists. Such a war would not enhance national unity. Adding the voices of the states in discussing the use of National Guard troops and restoring to the states some well-defined and limited powers over their Guards makes sense. And the power-sharing won't hurt military readiness. Congress can and should draft legislation that provides all the flexibility our leaders will need in the event of a national emergency, and yet maintain a sensible - and constitutional - balance between the states and the national government in deploying National Guard members.
Q. What about the fact that the troops all volunteered to be in the military? Shouldn't they accept their role without complaining or objecting?
There are many answers to these questions. First, listen to the voice of a Vietnam veteran on the issue of a volunteer military:
The government is failing to hold up its side of the bargain. The main issue is that the decision to go to war is a political, not a military decision. As citizens, we all have the right and in fact the duty to question the political decisions that are being made where there is no threat to this country - no invasion, no weapons of mass destruction, no cause for war. Despite the "small print" in enlistment papers, no one expected to be called up to serve in a war of choice. Recruiters certainly never gave anyone fair warning about that. National Guard soldiers who signed up to "stay at home and serve their country" were drafted into a war based on lies - were sent off to fight a war in another land that has nothing to do with protecting Maine or protecting the United States.
When I enlisted in the military during the Vietnam Era, I did so with the implied understanding that I would accept very little pay and be willing to jeopardize my life for American values.
In return, there was an implied contract that the political people who now held my life in their hands would be elected honestly, be of high integrity, put the good of the people, the nation and the world above business and special interests, be forthright with the people of the nation, hold high values and be intelligent enough to adhere to and implement those values.
Second, we would also point out that all those who said "we gotta go to war," weren't going anywhere, nor were their loved ones. When Congress voted to give the president the power to take us to war, only one member of the United States Congress and the United States Senate had a son or daughter in the enlisted services. None of the leaders of the administration that sent our loved ones off to war were sending their own loved ones as well.
Third, it is important to recognize that many of the troops now serving in Iraq, including many of the National Guard soldiers, were in fact the victims of a back-door draft when stop-loss orders extended their service in the military beyond the end of their contract.
Q. What is a stop-loss order as it pertains to the war in Iraq?
A. A stop-loss order is a military order that requires a National Guard member or reservist to remain in the military beyond the term of his or her enlistment for possible duty in Iraq. Some in Congress, including Republican Sen. John McCain, are referring to "stop-loss" as a synonym for "backdoor draft," because it maintains or increases the level of troops available for the war without major increases in recruitment or a national draft. Beyond the unfairness of stop-loss orders, they allow the commander-in-chief to urge the Congress and the nation to go to war without facing the hard decisions that war always brings and which should be discussed and debated. There is no question that in the event of an attack on America, that debate would be a short one, but the war in Iraq does not meet that standard. For that reason, stop-loss orders have the effect of allowing a war on the cheap.
Q. Didn't the Congressional Resolution give the president the go-ahead to start a war in Iraq?
A. Yes, but with conditions. Under the Resolution, the president had to show Congress why he decided that diplomatic or peaceful means alone would not protect the national security of the United States against a threat by Iraq, or lead to enforcement of Security Council resolutions on Iraq. He also had to show Congress why he decided that going to war was a necessary action against Iraq on the theory - never proven - that Iraq authorized, committed, or aided in the 9/11 attacks.
Q. Isn't the question of whether the president met the terms of the Congressional Resolution one of opinion? Isn't it within the president's discretion under such a resolution to say when peaceful means have been exhausted?
A. Yes, it was the president's call, and it may be argued that Congress did not set sufficiently detailed conditions for the president to meet before going to war. But the case for the president's meeting even the broad standards set by Congress is not strong. The time given to the diplomatic effort through the UN was short, and there is evidence that preparation for the war followed a timetable that went forward without a "time out" for serious diplomatic negotiations concerning the potential threat to the United States or concerning enforcement of UN resolutions relating to Iraq. These factors are underscored by considerable evidence that the invasion of Iraq was on the drawing board well ahead of formal consideration by Congress.
The condition in the Resolution dealing with proof of Saddam's complicity in the 9/11 didn't just ask for the president's personal opinion. Again, to comply with the resolution, the president had to show Congress the reason for his decision that a war against Iraq was a "necessary action[s] against . . . nations, organizations or persons who planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001." As a matter of record the president never submitted any evidence about Saddam Hussein's involvement in the 9/11 attacks.
Q. Why does the resolution include support for a bill in the Maine Legislature and Governor to set up a commission to study and report on the impact of the federalization and deployment of National Guard members on the ability of the Guard to perform its mission in Maine?
A. Congress steadily took away state powers during the Twentieth Century, removing the last powers with a 1986 law. We now need to restore the balance that existed historically between state and federal powers over the Guard. To get that process started, states should take advantage of a narrow exception to the 1986 law, granting governors the power not to agree to some federal requests where readiness to respond to emergencies would be compromised in their state. Activating this narrow exception (involving training) would be a positive step and would magnify the chances of moving Congress to the next step: Giving governors the power to say no to deployments for wars of choice - wars that are not undertaken to defend the nation but for other policy ends. A commission, established by law, might produce the kind of evidence of the need for Guard personnel in Maine that would meet the tough test which a court would impose, should a governor's decision be challenged by the federal government.
Q. But haven't we heard that readiness has not in fact been adversely affected by Guard deployments?
A. The readiness issue is in fact complicated and multi-faceted. It is about number deployed but not only about numbers deployed.
First, a large percentage of our National Guard troops have been deployed outside of Maine in the past year. This means that we have been without many of the troops who are supposed to be available in times of emergency.
Second, the percentage deployed understates the impact on the availability and preparedness of the Guard for emergency duty at home for three reasons:
Third, people in the National Guard have dual duties - they are part time soldiers, as well as full time members of their communities. They work regular jobs, and generally, jobs that are important to the functioning of a community. So not only are they unavailable for emergency service in their National Guard role when they are deployed, they also leave a void in their work (and family) lives. They are teachers, EMT's, firefighters, police, nurses, they work for municipalities and small businesses doing vital work, they are parents, childcare providers, on and on.
- Deploying units are generally under-staffed prior to deployment and are brought up to appropriate levels by taking personnel from other units - leaving the remaining units less effective;
- Particular key skills are in high demand and therefore are disproportionately deployed, leaving the units at home without;
- Equipment is taken from non-deploying units for use by deploying units, leaving the units at home under-resourced. In addition, returning units are leaving much of their equipment in Iraq for use by their replacements (or because it has been destroyed), exacerbating the under-resourcing problem.
Fourth, readiness is also being affected is longer term. The National Guard is already having trouble recruiting new members and retaining current ones. They are losing skilled and experienced soldiers who are not re-enlisting. This will leave our state more vulnerable in the future. The people, who would join in order to serve their community, are being dissuaded by this new use of the Guard.
Fifth, Guard members who have returned from active duty can be redeployed at any time, not only in this elective war but the next one, thereby creating a condition of uncertainty for Guard members, their families, their employers and the state.
These are strong grounds to ask for a commission to be set up to determine how Maine is being affected by National Guard deployments. It is the duty of the Maine Legislature and Governor to represent the citizens of Maine, including those who have signed up to serve their country through the Maine National Guard. When a misuse of the National Guard is taking place, the Legislature and Governor should, at a minimum, investigate. When the citizens of Maine are being left unprotected due to the policies of the federal government, the Legislature and Governor should, at a minimum, investigate. When the costs to the state, both economic and social, are increasing daily and will be with us for decades, the Legislature and Governor should, at a minimum, investigate. Setting up a commission is the least the Legislature and Governor can do.
Q. The Resolution asks the president to withdraw American troops from Iraq, consistently with international humanitarian law. Does this mean that if the United States fulfills its duties as an occupying power, it then has a legal presence in Iraq? Can the administration then argue that the war in Iraq is a just war?
A. No - not at all. First, let us define what we mean by international humanitarian law (IHL). The obligations of belligerents under international humanitarian law consist of the four Geneva Conventions and "Hague" Law. Its purpose is to protect those not (or no longer) taking part in hostilities (Geneva Law), and to limit the methods and means of warfare (Hague & Geneva Law). The Fourth Convention specifies the duty of an occupying power to ensure the adequate provision of food and medical supplies, and the maintenance of public health in the territory that it controls. IHL spells out the duties of belligerents, but does not attempt to speak to the question of whether an occupying power has a right to be an occupying power in the first place, i.e., the question of whether the war was consistent, for example, with the U.N. Charter as a war begun in self-defense.
So the bottom line is that withdrawing from a territory that a power has occupied in a manner consistent with IHL does not affect whether or not the war had been begun legally under international law or domestic law.
As reported in the Guardian on September 16, 2004, Kofi Annan has cast doubt on the legality of the war in Iraq:
"The United Nations secretary general, Kofi Annan, declared explicitly for the first time last night that the US-led war on Iraq was illegal. Mr. Annan said that the invasion was not sanctioned by the UN Security Council or in accordance with the UN's founding charter. In an interview with the BBC World Service broadcast last night, he was asked outright if the war was illegal. He replied: "Yes, if you wish." He then added unequivocally: "I have indicated it was not in conformity with the UN charter. From our point of view and from the charter point of view it was illegal."
For a good general overview of the arguments on the question of the legality of the war, visit this website.
If - and only if - you want some more background, let's begin with a (relatively) brief summary of the governing international principles:
"International humanitarian law provides that once an occupying power has assumed
authority over a territory, it is obliged to restore and maintain, as far as possible, public order
and safety (Hague, art. 43). Under the Fourth Geneva Convention, the occupying power
must also respect the fundamental human rights of the territory's inhabitants, including noncitizens (Geneva IV, arts. 29, 47).
Q. But explain international humanitarian law in more practical terms. What does it mean "on the ground?"
- The occupying power does not, through occupation, gain sovereignty over the occupied territory.
- Occupation is considered a transitory phase in which the rights of the population must be respected by the occupying power until formal authority is restored.
- When exercising authority, the occupying power must take into account the interests of the inhabitants as well as military necessity.
- The occupying power must not use its authority to exploit the population or local resources for the benefit of its own population and territory." (For the full document, go to the Human Rights Watch website.
A. A simpler reading of "international humanitarian law" is that the U.S. has obligations to Iraq because of the damage to that country resulting from the occupation, destruction of infrastructure, and the resultant threats to overall health and well-being. It is a given that the U.S. military cannot rebuild Iraq, despite the fact that some U.S. contractors have had limited success in some areas. The legacy of two years of war is too deep, and even hard-liners will have to concede that the long-term hope for Iraq is for others to help that country on the ground, with the U.S. footing the bill.
The only way for the U.S. to honor its obligations under IHL is to (1) leave Iraq and (2) pick up the bill for reconstruction and training, with the work to be done by Iraqis and those nations that the Iraqi government decides in its sole discretion that it will work with.
This is a very feasible scenario. Instead of outsourcing further war, we would be, in effect, outsourcing the performance of duties we owe in a legal as well as a practical sense to Iraqis and others. It would include roads, water facilities, etc., which we would pay for, but not perform ourselves.
The hawks' alternatives are grim: hang around and let the war fester, invite more killing, and postpone the kind of intense work that needs to happen if Iraq is to avoid a civil war.
Thus, under this scenario, the withdrawal must be swift in order to work. It is not "bring the troops home now," but it is pretty close, and since the IHL strategy has the makings of a plan, it may be taken more seriously (and more quickly) than the other formula.
There is nothing within IHL that requires a stable government in the occupied land before the occupier is allowed to leave. A stable government might take years and might never be achieved. But by using IHL as the formula, leaving, and in effect paying Iraqis and others to finish the work needed for stability, security, and peace, we just might do the right thing, come as close as we possibly can to ensuring the safety of the Iraqi people(s), and get our women and men out of harm's way in the quickest and most practicable way.