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It ain't worth the paper it ain't printed on

I am not a lawyer. Never attended law school, never had any legal training, just a layman's fascination with it. I think it was partly shaped by my early exposure to "The Paper Chase" (which also gave me a lifelong crush on Clare Kirkconnell).

In that film and TV series, John Houseman's character taught Contracts. He stressed the necessary elements of a legally binding contract, and three terms stuck with me to this day: Acceptance, Consideration, and Meeting Of The Minds.

Acceptance: Both parties to the contract must agree to be bound by the contract. If one party doesn't sign, then they are under no obligations. I can sign all the documents saying you owe me five thousand dollars, but unless you sign it too, it's worthless.

Consideration: There must be a benefit to both parties for a contract to be enforceable. "I agree to give you five thousand dollars, and you do nothing" is not legal.

Meeting Of The Minds: Both sides must agree with the terms of the contract, and share a common understanding of them. If you sign an agreement to give me five thousand dollars, you can not then give me that in Monopoly money or Confederate currency or even Canadian bills.

The principles behind contracts cover far more than arrangements between two people. It's the bedrock for all agreements everywhere. Even treaties.

Two series of treaties have been much discussed in recent times. In both cases, a solid argument can be made that they do not bind the United States. But in both cases, that seems to be irrelevant.

The Kyoto Accord on greenhouse gases was negotiated in the late 1990's. At the talks' conclusion, President Clinton brought it back to the United States. In response, the Senate unanimously passed a resolution rejecting it. They said (and I agree with them) that it was grotesquely unfair. It put all the burdens on the Western nations, while exempting many third-world states that generate considerable pollution. Had its shapers' intent been not to help the environment but economically cripple the West and give huge advantages to the rest of the world, they could not have done better.

Clinton, wisely deciding to avoid a futile fight, never submitted the treaty for approval. And it remains impotent (thank heavens) in the United States.

But that doesn't stop a lot of people from calling on the US to abide by the terms of the agreement. The concerns that united the Senate almost a decade ago are never brought up. Instead, the hysteria is whipped up, apparently in hopes that sheer volume will drown out legitimate concerns.

And the fact that there was never any Acceptance on behalf of the United States is ignored.

Likewise, the Geneva Conventions on warfare were negotiated by the great powers after World War I. These covered conduct in times of war, as well as treatment of prisoners and the like.

These are often treated as great humanitarian efforts, an attempt to reduce the carnage and mayhem and inhumanity of war. There's an element of that, to be certain, but there was something far, far more important at play.

The Geneva Conventions were a simple quid pro quo of terror: "we agree not to do certain things if you agree, too." Every nation that signed on did not do so out of compassion, but out of a desire to protect its own soldiers and civilians. The idea was that "we won't do these horrid things in war as long as you agree to the same."

Ironically enough, the number of conflicts fought between Geneva signatories who actually honored the pacts have been damned few. During World War II, Nazi Germany actually made a more than token effort towards abiding by them, and accordingly the Allies also behaved themselves, for the most part. Japan, on the other hand, did not.

The only other example I can think of would be the Falklands War, between the United Kingdom and Argentina.

Nowadays, though, the Geneva Conventions are seen as only applying to the signatory nations, and binding in all cases. In Iraq, the allied coalition is routinely fighting enemies who have a cursory knowledge of the Conventions -- just enough to know how to exploit them to their best advantage. In response, though, we are expected to treat them just as if they were honorable soldiers representing a nation that had signed and abided by the Conventions themselves. I've lost count of how many "war crimes" the terrorists/insurgents/scumbags violate on a daily basis, but it's grotesque.

You want a few? OK. Not wearing uniforms. Not abiding by a military hierarchy. Use of civilian structures like hospitals and mosques for military purposes. Deliberately targeting civilians. Use of chemical weapons. Torture and execution of prisoners. Mingling among civilians for shelter. Use of civilians as shields.

So, these terrorists/insurgents/scumbags are essentially using the Geneva Conventions as checklists to see what they can get away with. But when we catch them, they are to be accorded the full protections of an agreement that they not only never accepted, but willfully and deliberately flout. In Contract terms, there is no Agreement and no Consideration here. They are gaining the full benefit of the Conventions without accepting the burdens, while we are bound to it despite its not being accepted by the other party.

Those who repeatedly harp on this being an "illegal war" are just proving how little they actually know about law. And if a non-lawyer like me can see that, why the hell can't more people?


Comments (17)

Much like rules and laws of... (Below threshold)
Gianni:

Much like rules and laws of Congress apply to (R) but not (D), the Geneva Conventions apply to the US, but not the (D), I mean the enemy.

Who is arguing that Kyoto i... (Below threshold)

Who is arguing that Kyoto is a contract we're bound to follow? The Kyoto-ites know it's not officially binding, they want America to 'accept' it and abide by the terms of the agreement. I disagree with them, but I see nothing wrong with the approach they're taking.

The same for the GC: who is arguing that we have to abide by it in the GWOT because the other side is? People argue that we ought to abide by the terms because that is the way we ought to treat people, even terrorists. As for me, I'm all for torturing prisoners to gain information that can save American lives, even if the prisoner comes from a GC signatory.

And the terrorists aren't using the GC to see what they can get away with. They're doing what they do in the hopes/expectations that it will advance their cause.

Your contracts framework is... (Below threshold)
jpe:

Your contracts framework is off - we look for benefit or detriment.

Regardless, a contract typically won't be rescinded by a court unless it's grossly unfair both substantively (ie, the terms aren't unfair) and procedurally (ie, one party had such a HUGE advantage in negotiating position that it stretches credulity to say the contract was freely consented to by the other party).

Fun stuff, though, and it's always a good exercise to apply different norms to situations to see if new insights pop out.

I'll be reading the remainder of this discussion with interest.

Those who repeated... (Below threshold)
jpe:
Those who repeatedly harp on this being an "illegal war" are just proving how little they actually know about law.

You're gonna wanna look up customary international law (CIL) on the laws of war.

We can differ over the weight one ought to give to CIL, but I don't think there's any doubt Iraq was illegal per even the vague parameters of CIL. The question, then, isn't the war's illegality, but whether we should pay any attention to CIL.

We were already at war with... (Below threshold)
George:

We were already at war with Iraq. We had a cease fire agreement with Saddam Hussein which he broke repeatedly. Every case was a declaration of war against the United States.

There is no doubt that there was nothing illegal about this war.

Jay, the fact that your leg... (Below threshold)
nogo postal:

Jay, the fact that your legal opinions are based on a movie and TV show diminishes your credibility as an independent thinker you usually demonstrate.
...The past three weeks or so...you have moved in your posts from a reasonable skeptic..to someone i don't recognize...

"And if a non-lawyer like me can see that, why the hell can't more people?"
What you are saying is if a person ignorant of law can see problems with the law it is obviously wrong?

Corinthians 13:11
When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.


I am confused... millions of us worldwide, ignorant of "intelligence", demonstrated believing there was no rationale for preemptive invasion of Iraq .
Our cry was "if people not in the CIA or in the DOD can see this why can't they?"

I am encouraged to find you agree that ignorance of a situation is a good thing...

I cannot believe that this is your real view..you have demonstrated too often in the past that you are a Critical/Cynical thinker...
...but then ..again...I am ignorant to who you really are... which of course allows me an opinion..


What was it that Tenet said... (Below threshold)
Peter F.:

What was it that Tenet said that Khalid Sheikh Mohammed said when he was first captured? Oh yeah...

"I'll talk to you guys when you take me to New York and I can see my lawyer..."

Read: I've chosen to violate every international law and rule of warfare, but those rules and laws really don't apply to me unless I need them to for convenience sake.

ANd in so many words were scolded for violating international law. What a joke.

ack!..."And, in so many wor... (Below threshold)
Peter F.:

ack!..."And, in so many words,..." and "we're", not "were"...

Although I disagree with hi... (Below threshold)
Brian:

Although I disagree with his position on the issues, steve sturm is exactly right with his summation of this post. It's based on one false or irrelevant claim after another.

And it culminates with the final bizarre and unrelated switcheroo that "Those who repeatedly harp on this being an 'illegal war' are just proving how little they actually know about law." This statement suggests that alleged violations of the GC are what feed the claims that this is an "illegal war". In fact, those claims have nothing whatsoever to do with the GC, but are actually founded on violations of the UN charter and other resolutions. And, of course, misleading the American people.

So by you carefully distancing the US from the GC and thus reasoning that the war is legal shows just how little you understand about the claims otherwise. Perhaps you should have written instead, "Those who repeatedly reject the claims that this is an illegal war by showing how the Geneva Conventions don't apply are just proving how little they actually know about those claims."

First the war was not illeg... (Below threshold)
MyFriendOtis:

First the war was not illegal, as UNSC Resolution 1441 recalled all previous UNSC res on Iraq, including those authorising war in the first place.
Second, the war is not illegal, as it has been retroactively endorsed by the UNSC, in the same way as the NATO bombing of Serbia etc was

The GC is only applicable to "High Parties" to the Convention(s). These are ONLY nation-states, nobody else has standing. This inclused the UN.

As an aside, WW2 troops carried chemical warfare protection on D-Day, as it was known that the Germans had considerable stockpiles of chemical weapons, mainly war gases. The Allies also had CW stocks, as the GC specifically authorises High Parties to respond in kind should they be attacked in violation of the GC.

It also authorises reciprocal treatment of prisoners; treat ours well, and your men will get the same.

The GC was written as a mutual-behaviour pact between nations. It was designed to use the self-interest of each side in keeping hostilities below a certain level of barbarity. If either side violated a particular convention item, the opposing side was immediately freed from any obligation under that item.

From a contract perspective... (Below threshold)
ulno:

From a contract perspective, the parties don't actually have to sign a document for a contract to exist. (Yes, I went to law school) If the parties bargain for a legal detriment, then the contract becomes valid. (ie, "If you give me a job, I will quit my current job." "Ok, I will give you a job". You quit your job, they back out , saying there was no written agreement; this could be still be an enforceable contract, though other employment laws come into play, another story...)

I think the people, such as the poster Brian, who claim the war is illegal because of "violations of the UN charter ...misleading the public" would not claim that former President Clinton's actions in Serbia were similarly illegal for the same reasons. Clinton was unable to get UN approval and initiated over 80 days of bombing of Serbia. There was no resolution 1441 for this action. A reading of Resolution 1441 says that Iraq faces serious consequences if it does not comply with inspections. There was little comparable to that for the Serbia and Kosovo actions.

Furthermore, the no-fly zones over Kurdistan and the Shiite southern areas were not sightseeing tours. Iraq was firing over 300 missiles per year at American fighter jets prior to 2002. This was active warfare, with the intention of regaining air superiority over those regions to permit a return to the policies of pre 1991, which involved genocidal attacks on those regions. There were over 300 mass graves in the north and south, with well over 100,000 casualties in those regions.

The United Nations was an organization that some consider a forum for international dialogue, while others consider a basis for global cooperative government. This premise has the belief that all nations have equally responsible ethics and behavior. Such moral relativism is highly naive. The UN has done very little for good in the world and is unable to take realistic stands on good versus evil. Consider the lack of action taken in Bosnia in 1994, in Rwanda in 1994, in Kampuchea in 1978, in Sudan over the past decade, in Zimbabwe over the past decade, in Cuba, or in Venezuela.

Even if the UN was not rife with corrupt officials and corrupt troops, the basic premise that the opinion of a Zimbabwe government official is equivalent to the opinion of the Italian official is flawed. A non-democratic government does NOT represent the views of the nation it runs.

Regardless, the United States is a powerful force for good in the world, even though leftist forces have made significant inroads in eroding its spirit of individual freedom, capitalism, and morality.

President Bush did not mislead the American public, despite the wishful thinking of some individuals. Revisionist history is convenient, and the willing accomplices in the media and schools are all too willing to endless repeat distortions and outright lies to further the insinuations. The goal is to weaken the will of the American public to fight, similar to the goal of the enemy. It's not just hatred of President Bush, or capitalists, or Christians, or people who value traditional families, or white people: it's a strong belief that the USA is not a force for good in the world, that the USA should lose.

I think that a significant portion of the West has lost its collective will to fight for its existence any longer. This group no longer believes that evil exists in the world, that individuals need to work, that there is any such thing as right and wrong. This group is quite happy to see the USA lose, because it believes that the US is wealthy and safe. This group thinks that if the USA loses, they can then go home that night and watch their tv, or drink their wine, or see Democrats elected from the complete safety of a rich, insulated society that is utterly unaffected by any possible world events.

During the civil war, Lincoln suspended Habeas Corpus, an unconstitutional action. Many legally minded individuals in the North were appalled and said "How can you break the law?" Lincoln replied "Should I sit by and allow every law to be broken except this one?"

The US, and the West, is facing a crisis that is testing whether it is worthy of continued existence. Half of the West does not see this crisis at all. Another quarter is actively hoping for the end of the West. The tiny remainder is battling unimaginable odds to try to win this fight. The only comparable situation I can recall is the plight of Aetius in 451.

Russia, in alliance with India, is building a fleet of SU50s that will outclass and outnumber the USAF by 2013. The USAF, which is primary in keeping the US military advantage, has about 2500 F-16s and about 500 other jets. The F-16s were built in 1982. Hugo Chavez offered Iran his F-16s and they turned him down. The replacement F-22s, which are well designed superior fighters, will only have a fleet of 180 planes built. Total. Ever. The JTF or F-35, a cheap and lower-power jet, is designed to have 2000 replacement planes by the year 2012, to retire the F-16. Possibly. There is serious talk by Democrats to shut this down. India has beat the USAF in war games now for the past 5 years, and is training Iranian pilots this year. They are building the SU50/PacFas planes and Iran will get them as well as Russia. This are superior in every way to the F-35/JTF, and they are building 3000 of them. So the USA will no longer have any air superiority in 8 years, possibly in 6 years. Add in the long-range missiles and nuclear weapons programs of Iran and N.Korea, and it's seriously the end of American military superiority.

The demise of the West is at hand, and it's the responsibility of individuals to stand up and answer the call. From Leo's fight in the year 707 at the gates of Byzantium, to Charles Martel in 732, to the battles in Vienna in 1691, this fight is battle for the survival of the western way of life. Much as the US made alliances with Communist Russia to defeat Nazi Germany, the US must try to put aside the internal battle over anti-capitalist forces versus individual liberty, and hope and try to overcome this all encompassing battle for survival. Once this battle is won, the West must revisit the battle of equality versus freedom, and hopefully freedom will win out.

I think the people, such... (Below threshold)
Brian:

I think the people, such as the poster Brian, who claim the war is illegal because of "violations of the UN charter ...misleading the public"

I claimed no such thing. I said that those who do claim the war is illegal cite the UN charter and UN resolutions as their primary justification for that claim. Thus, Jay's mighty (and mightily flawed) challenge to the GC does nothing to support his declaration, much like your unsupported declaration that "President Bush did not mislead the American public".

To say the Iraq war is ille... (Below threshold)
RicardoVerde:

To say the Iraq war is illegal is only so much political posturing. What Clinton did in 1998 was no different than what Bush did. Japan didn't put ground troops in Hawaii, but what happened in the harbor was pretty much "war".

To say the war is/was illegal relies on one of two arguements: Either it was against the spirit and intent of various international treaties or charters, or it was a violation of some technicality. But technically, Iraq signed an agreement to cease hostilities in 1991, not a peace treaty. Technically we were still at war with Sadam, and he was subject to recommencement of hostilities any and every time he turned on his targeting radars. In what way was Kosovo more legal than Iraq?

It boils down to the Euros and the UN liked to work with Bill cause he talked their talk, and he fought the wars they wanted to put him up to fight.

What Clinton did in 1998... (Below threshold)
Brian:

What Clinton did in 1998 was no different than what Bush did.

There have been many arguments claiming Clinton did the same thing. Though you should also acknowledge that when Clinton did it, the Republican Congress railed against him and demanded that he withdraw the troops.

Ahhh Brian, having a politi... (Below threshold)
RicardoVerde:

Ahhh Brian, having a political temper tantrum is one thing but did anyone say it was illegal? Maybe they did, but it wasn't illegal. What Clinton did was an act of war (and without any new SC resolution, unlike Bush II). What Bush did was an act of war. There is no difference.

What SC resolution was passed for Kosovo? None. Why aren't the same people who are so concerned with the legalities worried with what happened in Kosovo? Political posturing, nothing more. Both sides do it.

Actually the terrorists are... (Below threshold)
Jeff:

Actually the terrorists are covered by the Articles in the Convention Jay ...
It is very clear that combatents following standard "insurgent" tatics can be summarily executed if caputred ...
I saw let's give them their Geneva rights ...

Jeff, Could you gi... (Below threshold)
Kaptain Krude:

Jeff,

Could you give a citation for that, please? I haven't seen any information like that before, and Wikipedia, though informative, doesn't have any legal opinions that touch on that. Thank you in advance.




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