Ceimsa/Bulletin N° 67 : Congressman Upton has been notified of the criminal nature of the attack on Iraq, and has been warned that criminal proceedings are likely to take place in U.S. courts against specific officials in the Bush administration who are responsible for this criminal activity.

Bulletin N°67

28 March 2003

Grenoble, France

Dear Colleagues and Friends,

Below is the copy of a letter written by Professor Ronald C. Kramer, Director of the Criminal Justice Program at Western Michigan University, and which was sent yesterday to U.S. Representative Fred Upton, a Republican lawmaker representing more than 230,000 voters the 6th Congressional District, in western Michigan.

As you will see in the letter below, Congressman Upton has been notified of the criminal nature of the attack on Iraq, and has been warned that criminal proceedings are likely to take place in U.S. courts against specific officials in the Bush administration who are responsible for this criminal activity.

Obviously, this event is one small part of a much larger social momement now happening across th United States of America.

We thank Robert Learner of Battle Creek Michigan for bringing this letter to our attention.

Sincerely,

Francid Feeley
Professor of American Studies/
Director of Research

________________________________________________________________________

Dr. Ronald C. Kramer
2116 Benjamin Avenue
Kalamazoo, Michigan 49008
269-382-2443

March 24, 2003

The Honorable Fred Upton
U.S. House of Representatives
Washington, D.C. 20510

Dear Representative Upton:

As a professional criminologist and one of your constituents, I wanted to inform you that the U.S. invasion of Iraq is a blatant violation of both international and domestic law. I also want to warn you that U.S. government officials who approve and support this illegal act are in direct violation of the Nuremberg Charter’s prohibition against "crimes against peace" and "crimes against humanity" and could be liable for criminal prosecution by the new International Criminal Court.

The invasion of Iraq violates three applicable bodies of law: the U.S. Constitution, the United Nations Charter, and the international laws of war. Please allow me to briefly review each of them.

Article I, Section 8 of the U.S. Constitution grants the power to declare war solely to the Congress of the United States, not to the President. As you know, the Founding Fathers did not want the awesome and fateful power to take the country to war to rest in the hands of only one man. They explicitly rejected the idea of granting this power to the president and very consciously gave it to the representatives of the people in Congress instead. I know that Congress approved a resolution last fall authorizing the President to use military force against Iraq if Saddam Hussein did not comply with appropriate U.N. resolutions. But given the plain language of the Constitution this was an unconstitutional act. Simply because the Congress abdicates its responsibility under the Constitution to declare war does not make it legal to do so. The U.S. invasion of Iraq without a Congressional declaration of war clearly violates the Constitution.

The next relevant body of law concerning the legality of the war in Iraq is the Charter of the United Nations. Article 103 of the UN Charter states that it is the highest treaty in the world, and that it supercedes any other international agreement. In addition, Article VI, Section 2 of the U.S. Constitution states that any treaties the U.S. enters into become "the supreme law of the land." Thus, the UN Charter, a treaty the U.S. has signed, is internationally binding and a part of U.S. law.

The Preamble to the UN Charter notes that the primary purpose of the UN is "prevent the scourge of war." Article 1 states that the UN’s role is to "maintain international peace and security" and Article 2 (3) establishes peremptory priority to the peaceful settlement of disputes. But the UN charter goes on to explicitly prohibit the use of military force in international affairs. Article 2(4) requires that: "All members shall refrain…from the threat or use of force against the territorial integrity or political independence of any state." This prohibition of the use of military force by member states is the peremptory norm of international law.

Under the UN charter, there are only two circumstances in which the use of force is permissible. Article 51 permits the use of force in collective or individual self-defense against an actual or imminent armed attack. Iraq has never attacked the U.S. and there was no evidence of any imminent armed attack on the U.S. or any other country by Iraq. Thus, Article 51 does not apply.

The only other exception to Article 2(4) is when the UN Security Council directs or authorizes the use of force to maintain or restore international peace and security under Chapter Seven of the Charter. Chapter Seven requires both a Security Council finding of a "material breach" of a previous resolution and a new resolution authorizing member states to use "all necessary means" to enforce the previous resolution. The Security Council has made no such finding with regard to Iraq and has not authorized the use of force at this time.

In 1991, the Security Council did authorize the use of force to compel Iraq to withdraw from Kuwait (Resolution 678). At the end of the first Gulf War, Resolution 687 then required Iraq to fully cooperate with UN weapons inspectors and required the entire Middle East region to disarm all weapons of mass destruction (all countries in the region, not just Iraq). Some have argued that that these resolutions provide legal authority for the current war. This is not true. UN Security Council resolutions are specific to time and place and they cannot be dragged out years later to justify unilateral actions. No country alone can be judge, jury and high executioner. Only the Security Council can find "material breach" and authorize "all necessary means." Neither Resolution 687, nor the current Resolution 1441 (setting up the most recent inspection process), authorizes military force. Under 1441, the Security Council "remains seized of the matter" which means that if Iraq had violated the resolution, the Council must meet again to decide what to do. Most recently the Council decided to give the inspection process more time and refused to pass a new U.S./ British resolution that would authorize force. Therefore, there is no Chapter Seven exception for the invasion of Iraq. The invasion is a clear violation of the UN Charter and the U.S. Constitution and thus, is illegal.

The U.S. war of aggression in Iraq also violates the international laws of war and the rules and principles of humanitarian law (the Nuremberg Principles). These laws are found in international agreements, treaties, and various customary practices and they set limits on the means or methods used in warfare. The Nuremberg Charter, for example, prohibits "Crimes against Peace" which are described as "planning, preparation, initiation or waging of wars of aggression, or a war in violation of international treaties or participation in a common plan or conspiracy to wage an aggressive war." The invasion of Iraq clearly falls under this category. The Nuremberg Charter notes that "to initiate a war of aggression…is not only an international crime, it is the supreme international crime."

The Nuremberg Charter also prohibits "crimes against humanity" which include murder, extermination, enslavement, and other inhumane attacks committed against any civilian population, before or during war." The general laws of war also prohibit the use of weapons or tactics that cause indiscriminate harm to noncombatants. The "shock and awe" bombing of Baghdad and the use of depleted uranium tipped shells appear to violate these laws of war. Government officials and military personnel who engage in these violations could be prosecuted under the new International Criminal Court. While this is not likely due to the fact that the U.S. is not a signatory to the ICC, the Iraqi government could remit to the UN and the ICC would have technical jurisdiction over any war crimes committed during the conflict.

In conclusion, with the invasion of Iraq a new and shameful chapter of American history has been opened. The U.S. is the aggressor nation in this situation in clear violation of both international and domestic law. Since I know you to be a man of integrity I ask that you investigate the geo-political strategy of global domination that appears to be behind this aggression (as outlined in the National Security Strategy of the U.S. and the Project for the New American Century documents) and publicly repudiate the doctrine of preemptive war that is the primary element of this strategy.

I love my country and I am ashamed that we have become an international outlaw in defiance of both world opinion and international law. I look forward to your response at your earliest convenience.

Sincerely,

Ronald C. Kramer
Professor of Sociology
Director, Criminal Justice Program
Western Michigan University