Newsgroup: it.politica.internazionale
Titolo: L'inesistente "guerra globale"

Per le note (che avrebbero ulteriormente appesantito il post) si vada a
http://jurist.law.pitt.edu/forum/oconnell1.php#1
Shalom.
Namib
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WHAT IS WAR?
Mary Ellen O'Connell
Moritz School of Law, Ohio State University
JURIST Guest Columnist
On March 19, 2003, the United States went to war in Iraq. On October 7,
2001, the United States went to war in Afghanistan. President Bush also
declared a global war on terrorism following the attacks of September 11.[1]
He said the global war would last "until every terrorist group of global
reach has been found, stopped and defeated." [2] The Bush Administration
claims this third war is as much a war as the other two. It claims the
Geneva Conventions apply, just as in the other two, along with the other
legal rights and obligations of wartime. Important Bush Administration
policies turn on this legal claim, including its enemy combatant policy [3]
and the policy of targeted killing [4]. Yet, even a cursory review of
international law quickly reveals that as a matter of law, the United States
is not involved in a global war.
At one time a formal declaration of war meant a state was legally at war
whether or not a single shot had been fired. Those days of formalism,
however, are long over. Since the adoption of the United Nations Charter in
1945, declarations of war have little or no legal meaning. What matters is
the reality of fighting, not formal declarations. No US president has
formally declared war since Franklin Roosevelt. In international law today,
it is the fact of fighting and the nature of the fighting that are
all-important. For the privileges of war to apply, the fighting must be
among organized armed groups, and it must reach a certain threshold of
intensity, enduring for more than a brief period. [5] We tend to refer to
fighting below this threshold as "lawlessness" or criminality when it occurs
within a state. It is an "incident" when it occurs between two states. [6]
We were at war in Iraq and Afghanistan. But we are not engaged in intense
fighting everywhere in the world.
Thus, there is no global war. And because there is no global war, the US has
no global right to invoke wartime legal privileges. Nevertheless, soon after
September 11, 2001, some in the Bush Administration became aware that in
wartime, certain human rights are suspended and certain actions in violation
of human rights are permitted. As DoD's top lawyer, William Haynes has
pointed out: "War implicates legal powers and rules that are not available
during peacetime." [7] Relevant to the Bush policies: in wartime enemy
combatants may be attacked without warning; ships and planes may be stopped
and searched and cargoes seized; and people may be detained without trial
until the end of hostilities.
These are emphatically wartime, not peacetime, privileges. They are
necessitated by the exigencies of military conflict. They come at the
expense of peacetime rights. It follows that international law establishes
conditions-strict conditions-in which wartime privileges may be claimed. The
characteristics of the American struggle against terrorism generally do not
meet those conditions. We do not see military operations in multiple
theaters around the world as we did in World War II. What we see today in
the struggle against terrorism is a massive law enforcement effort,
operating under the law of peace.
Despite the plain facts, the Bush Administration has steadily put in place
policies that could only be lawful in global war:
  a.. Detainees at Guantanamo Bay will be held until the end of the global
war, not the hostilities in Afghanistan or Iraq.
  b.. The CIA launched a Hellfire missile against a vehicle in remote Yemen;
killing six alleged enemy combatants in the global war, not six criminal
suspects.
  c.. A US citizen, arrested in Chicago, is removed from the civilian
justice system and placed in a military prison as an enemy combatant until
the end of the global war.
  d.. Prosecutors seek to suppress evidence because this is "wartime." [8]
These and other incidents, involving the lives of hundreds of people
already, prove the claim of global war is not mere rhetoric for the Bush
Administration. But claiming global war and making a case for it under law
are two different things. Under the legal definition of war, self-evidently
most of the world is at peace, not war. Although Al Qaeda has been active in
Kenya, Germany, Morocco, Spain, Yemen, and elsewhere, none of these
countries recognize an armed conflict on their territories. Spain did not
declare war following the March 11, 2004 train bombings in Madrid. In all of
these countries, government institutions are functioning normally. They have
not proclaimed martial law. The International Committee of the Red Cross
(ICRC) has not set up operations in any of them. They are pursuing the
struggle against terrorism through police methods. Germany has already tried
two defendants, in civilian courts, for aiding the September 11 attackers.
The United States, like these other states, has been the victim of a
terrorist attack but is not a zone of war. Following the September 11 attack
and others against us from Afghanistan, the United States had the legal
right to take the fight to that country. We had the right to use force in
self-defense. Afghanistan became a zone of active military operations, a
theater of war. But the United States did not. The law of war became the
operative law in Afghanistan, not in the US. [9] The United States did not
have a defensible legal argument for waging war in Iraq; nevertheless, the
law of war became operative once the threshold to war was crossed on March
19, 2003. At that point the law of war applied on the territory of Iraq.
[10]
All this is not to say that we know with scientific precision what is war
and what is peace. Certain territory, at certain times, under certain
circumstances, can surely fall in a gray zone between war and peace.
However, we do know with precision that where a situation is not clearly
characterized as "war," international law demands that individuals enjoy the
greater legal protection of peace. The Bush Administration, however, is not
even struggling with gray zone cases. Claiming that Chicago's O'Hare Airport
was a war zone for purposes of detaining José Padilla is a simple absurdity
that the law cannot sustain.
In defending the Administration's legal position regarding Padilla and other
so-called enemy combatants, Judge Alberto Gonzales, the White House Counsel,
relies on a single legal authority: the 1942 United States Supreme Court
decision, Ex Parte Quirin.[11] Quirin, however, is inapplicable to the
question of whether the United States is today involved in a global war and
may claim wartime privileges everywhere. The facts, issues, and law in
Quirin are unrelated to this central question. Quirin was decided prior to
the adoption of the United Nations Charter and prior to the 1949 Geneva
Conventions. It involved defendants who were members of the regular armed
forces of a sovereign state in a declared war-when declared war meant
something. World War II was a very real war that did in fact reach around
the globe. The Quirin defendants were all charged with violations of the law
of war. Further, and most significantly, the issue before the Quirin court
was whether the President had the authority to try the defendants on the
charges against them before a military tribunal rather than in the regular
civilian courts.
Today's enemy combatant cases raise very different questions. The US has not
charged and is not seeking to try Padilla, Hamdi, or the vast majority of
detainees at Guantanamo Bay. Their cases do not, therefore, involve the
issue raised in Quirin. Rather, they raise the question what is war and when
may a government claim wartime privileges? Quirin does not speak to these
questions. Yet, Quirin is all the Administration invokes.
By contrast, ample authority in the international law on the use of force
and human rights law proves definitively that the claim of global war is
unjustified. The President and the Courts should see the claim for what it
is-too good to be true: The US gets to declare global war, claim wartime
privileges everywhere, and at the same time enjoy peacetime rights? It
cannot work that way.
"Global war" is fine rhetoric for rallying a nation. It is no justification
for denying rights.

Thus, there is no global war.
Ca***ta.  Non e' necessario che siano coinvolti direttamente gli USA in
"intense fighting". Basta che lo siano paesi alleati degli USA e che con
gli USA abbiano rapporti di mutua difesa.
Oltretutto "global" non implica necessariamente "everywhere in the
world" esattamente come "guerra mondiale" non implica che tutti i paesi
del mondo ne sono coinvolti.
-Stefano