Iraq war illegal but trial unlikely, lawyers say

[Grojlach]

Iraq war illegal but trial unlikely, lawyers say

By Emma Thomasson

BERLIN (Reuters) - President Bush and his allies are unlikely to face trial for war crimes although many nations and legal experts say a strike on Iraq without an explicit U.N. mandate breaches international law.

While judicial means to enforce international law are limited, the political costs of a war that is perceived as illegal could be high for all concerned and could set a dangerous precedent for other conflicts, lawyers say.

The U.N. Charter says: "All members shall refrain ... from the threat or use of force against the territorial integrity or political independence of any state." It says force may only be used in self-defense or if approved by the Security Council.

Many leading legal experts have rejected attempts by Washington and London to justify a war with Iraq without a new resolution explicitly authorizing force.

"There is a danger that the ban on the use of force, which I see as one of the most significant cultural achievements of the last century, will become history again," said Michael Bothe, chairman of the German Society for International Law.

Washington and London have argued that U.N. resolution 1441 passed unanimously last year -- demanding Iraq disarm or face "serious consequences" -- gives sufficient legal cover.

Amid criticism that 1441 does not explicitly authorize war, they have also argued that military action is legitimized by two other resolutions passed before and after the 1991 Gulf War, although Russia has fiercely rejected this argument.

Bush has also said that a war would be a legitimate "pre-emptive" act of self-defense against any future attack.

The U.N. Charter says self-defense is only justified "if an armed attack occurs." When Israel tried to justify its 1981 strike on Iraq's Osirak nuclear reactor as an act of pre-emptive self-defense, the Security Council unanimously condemned it.

Bothe said the attempt by Washington and its allies to justify an attack showed the political power of international law despite the paucity of formal legal devices to enforce it.

"There is unlikely to be a court case," he said. "Those responsible won't be jailed but they can be made uncomfortable."

TURNING BACK THE CLOCK

Most experts in international law say they are not convinced either by the argument that military action against Iraq is authorized by earlier U.N. resolutions nor that the U.N. Charter allows self-defense against a perceived future threat.

Justice Richard Goldstone of South Africa's Constitutional Court, who was the lead prosecutor in U.N. tribunals on the Rwanda genocide and killings in the former Yugoslavia, said the United States risked undermining international law.

"The implications are serious for the future of international law and the credibility of the U.N., both being ignored by the most powerful nation in the world," he said.

In theory, international law could be upheld in several ways, said Louise Doswald-Beck, Secretary-General of the Geneva-based International Commission of Jurists.

"Political leaders in due course could be taken to a national court for an act of aggression," Doswald-Beck said.

Lawyers in the United States, Canada and Britain warned their governments in January that they could be prosecuted for war crimes if military tactics violated humanitarian law.

Alternatively, aggrieved states could take the United States and Britain to international courts, complain to the Security Council, or to the U.N. General Assembly, she said.

But Laetia Husson, a researcher at the International Law Center at the Sorbonne university in Paris, said international action to declare a breach of the U.N. Charter was unlikely.

"There is little chance of condemnation by the United Nations because they will be paralyzed by the U.S. veto in the Security Council," she said.

Washington and Baghdad do not recognize the International Criminal Court inaugurated last week and it has yet to define a crime of aggression. But it could still try Britain and other U.S. allies that recognize it on any war crimes charges.

Other legal experts say international law might have to adapt to take account of new justifications for war such as the humanitarian concerns used to legitimize the Kosovo campaign in 1999 that lacked U.N. support, but is now questioned by few.

Writing in The Sydney Morning Herald, George Williams, an international law expert at the University of New South Wales, and Devika Hovell, director of the International Law Project, said setting a new legal precedent was playing with fire.

"It may be that international law will adapt after the event to provide a retrospective justification for war," they wrote.

"However, to enter a war based on this expectation sees us revert to the 'just war' theory. In doing so, we fall into precisely the trap the United Nations was established to avoid.

"This decision to wage a just war is based upon an appeal to dangerously subjective standards of morality and the belligerents' conviction that their cause is right. After two world wars, the dangers of this approach are obvious." (With additional reporting by reporters in Geneva, Amsterdam, London, Paris, Johannesburg, Dubai, Beijing, Sydney)

Source: Yahoo! News

[ 03-21-2003, 09:34 AM: Message edited by: Grojlach ]

[Mordenheim]

Funny, unless I missed it somehow I see nothing about Sadam ignoring 12 year's of UN reolutions. Why were people not put together to go in and take him out or bring justice? Oh I see, that is what we are doing.

I also noticed not near a out cry when it was a non-muslim Milosevic. Funny huh even though we had to go in and get him as well. From my memory I do not recall any UN resolution then either.

The UN is like a gun with no bullets. Useless when it comes to tough choices

[Night Stalker]

If they want to debate legalities, pick any one of 18 UN resolutions that either justify or mandate force since UN686/7 in '91. The UN has pulled the equivilent of a conditional delayed sentancing, but when the time for sentancing came, they said "We've kindda forgotten about that, can we just ignore it?"

The UN invalidated itself when it specified a course of action for a condition set, and then failed to carry out that course of action. Reguardless of how people feel about what the course of action was. The UN said they were going to do something and didn't.

[Azred]

Personally, I say [img]graemlins/flickdown.gif[/img] to the UN. Who needs it? It is a useless and archaic dinosaur whose time has long since passed. The only impact it has really had is for those countries who dislike the US because it gives them a forum in which to gather freely.

[Timber Loftis]

Generally Night Stalker has the right of it on this one.

R's 686/687 and 1441 contain all that's needed, though the other ones along the way certainly support the notion that war is mandated. Just what does "all means necessary" mean in 1141 if not war I wonder.

Plus, as the US withdrew from ICJ compulsory jurisdiction after Reagan got ticked the UN didn't like his bombing in Nicaragua, the US would have to *agree* to any proposed trial or charges, anyway. And, before you cry foul, most countries withdrew from compulsory ICJ jurisdiction (France, for instance, withdrew after it got slapped for incessant nuclear testing in the south pacific).

As a final note, war in Iraq was declared in 1991 and was never un-declared. A cease-fire contingent on Saddam's disarmament prior to official peace was never realized. The war was simply never officially ended.

Wait - one more final note. Those very French and German bureauons who opposed further UN resolution pointed out *themselves* that no further resolution was needed for war and that Bush was merely participating in further discussions to get political support.

Let's be mindful that the numerous "lawyers" sending warning to the administration regarding how he is violating international law can come from any source, including those crappy ultra-liberal low-grade lawyers at all the namby-pamby NGO's (where they can't afford a *good* lawyer).

Further, I don't know the particular commentators quoted, but I can discern the following:

- Boothe, from the German Society for International Law is likely one of those NGO lawyers I mention above, and obviously has an agenda dictated by German politics

- Husson, at the Sarbonne U. International Law Center, Paris, is an academe at an academic NGO meaning she's out of touch with reality and probably not very competent, oh- and obviously has an agenda dictated by French politics

- Goldstone, the only one of the group having any worthwhile credentials, notes this "undermines" the UN. I agree. While I have for a long time wholeheartedly supported the UN, its failure to take any action for a dozen years on this issue spells the doom for the UN. It will change or it will fold - it is that simple. This does nothing for invalidating the legality of this war, however.

Finally, none of these folks, from what my internet search tells me, have ever worked at one of the world's top-30 law firms or have ever advised or written for the UN. Since I do and I have, you'll excuse me for not deferring to their expertise.