A Resolution on Torture, Aggression and Repression

April 12th, 2006 - by admin

The American Society of International Law, – 2006-04-12 09:28:26


The American Society of International Law,
at its centennial annual meeting in Washington, DC on March 30, 2006,

• 1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum).

• 2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949 and other international law (jus in bello).

• 3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.

• 4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.

• 5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.

• 6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.

• 7. All states should maintain security and liberty in a manner consistent with their international law obligations.

• For commentary on the relevance of this resolution to US policy re Iran, see “What should go without saying” — April 6 post at the blog: http://disarmamentactivist.org

• See also other posts re Iran at http://disarmamentactivist.org/category/iran/

The fact that this resolution even should be necessary reflects the depths of our current crisis. As Scott Horton, a leading international lawyer, put it in a PBS interview following the Abu Ghraib revelations, “if adherence to the Geneva Convention becomes a political issue in this country, we have fallen into a deep moral gutter.”

Regarding resort to armed force, the ASIL resolution similarly states what should be the obvious. When considering both the US invasion and occupation of Iraq and the possibility of military action against Iran, it is important to begin with the basic framework of modern international law. It is a framework this country played a major role in creating.

In the war crimes trials conducted after World War II, the United States and its allies declared aggressive war to be the most serious of all international crimes. Robert L. Jackson, the US Representative to the International Conference on Military Trials, declared,

“We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.” Statement by Justice Jackson on War Trials Agreement; August 12, 1945.

The 1946 Nuremberg judgment in the trial of major German war criminals stated that “War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Judgment of the International Military Tribunal for the Trial of German Major War Criminals, 1946.

The United Nations, formed following the war, again with the US taking a leading role, embodied this essential principle in its Charter. Recognizing that States likely to commence aggressive wars also are likely to create pretexts for them, and to lie to the world and to their own peoples about the reasons for war, the UN Charter created a system for preventing war and preserving
the peace.

It requires recourse to the Security Council when there are threats to peace. Article 39 of the Charter gives the Security Council the responsibility to determine when a threat to peace exists, and what the collective response will be. It should also be remembered that the UN Charter is a treaty of the United States, and as such is part of the “supreme law of the land‚” under the US Constitution.

A state may not decide for itself alone that a threat that justifies war exists. The only exception is where it is actually attacked,
or, at the very least, where there is a threat of attack that is immediate and unavoidable, and where there are no alternatives to the use of force. Secretary of State Daniel Webster, protesting an attack by British forces on American soil in 1837, stated it this way: ‚”It will be for the government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means,
and no moment for deliberation.” (Secretary of State Daniel Webster to British Prime Minister Lord Ashburton, July 27, 1842, protesting the attack that seized and burned the American vessel Caroline, killing several people.)

Nonetheless, even some “liberal” commentators largely are treating the issue of potential use of force against Iran as if evidence of a nuclear weapons program alone could justify an attack by the United States, with the main objections being pragmatic (the difficulty of destroying Iran’s nuclear facilities, the danger of wider war or retaliation). But without an imminent threat of attack by Iran, a US strike to destroy Iran’s nuclear facilities would constitute an illegal war of aggression.


• 1.Dale Nesbitt Says:
April 7th, 2006

Putting all of the items together was helpful, and I will copy and carry it. However my comment- question is: While it seems obvious to me that the present US administration is in clear violation of almost all the treaties we have ratified and almost all generally accepted moral codes it is NOT OBVIOUS TO A LARGE PERCENTAGE OF THE US POPULATION and further there are many who are aware but believe that the US somehow has the right to do what ever it wants. The problem/question is how best to counter in the first case the lack of knowledge and in the second the belief in the concept of MIGHT equals Right ???

• 2. DisarmamentActivist.org

(April 8th, 2006) — As Andy Lichterman explained in a recent post, an attack on Iran would be an act of aggression, barred by the UN Charter and prosecuted at Nuremberg. That is, it would be aggression unless authorized by the Security Council or in response to an Iranian attack. (For in-depth analysis, see the piece I co-authored in Human Rights, and Peter Weiss‚Äôs presentation to the New York session of the World Tribunal on Iraq.)

The Security Council, however, may not even be able to agree on a resolution requiring Iran to cease enrichment-related activities, let alone a resolution imposing sanctions. The Council barely was able to agree on the recent non-binding presidential statement, given Russian and Chinese reluctance to engage in a confrontational course. Absent some very major change in circumstances, a resolution authorizing force is out of the question. […]