[Peace-discuss] don't look for this in the N-G

[Ricky Baldwin]

Iraq War Illegal but Trial Unlikely, Lawyers Say

By Emma Thomasson, 3/19/03 

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) 



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