Iraq War Illegal but Trial Unlikely, Lawyers Say

[codeorama]

World - Reuters

Iraq War Illegal but Trial Unlikely, Lawyers Say

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By Emma Thomasson

BERLIN (Reuters) - President Bush (news - web sites) and his allies are unlikely to face trial for war crimes although many nations and legal experts say a strike on Iraq (news - web sites) 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 (news - web sites), 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 (news - web sites) 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)

[Riggo-toni]

:snore: :snore: :snore:

So when is Clinton's trial for bombing Belgrade coming up?

Two good possible outcomes of this war:

The end of the UN

The humbling of France

[Kilmer17]

Cant you picture some sleazy lawyer in a plaid jacket and bad comb-over showing up at 1600 Pennsylvania Avenue to serve a summons?

[Sarge]

I feel so much better

[Canyonero!]

First of all, leave it to Reuters to deliever this "news." Anyway, UN Resolution 1441 gives us authority to use force if Iraq doesn't comply. Hello? They haven't complied, so there's no base for any possible trial anyway.

[Glenn X]

:laugh:

Isn't Reuters the same news organ that refuses to call terrorists terrorists because, in their view, "One person's terrorist is another person's freedom-fighter"? Even The New Republic felt compelled to call BULLSH*T on that one, Reuters.

Honestly, this is the kind of under-the-carpet op-ed piece that passes for "unbiased journalism" these days. Ms. Thomasson clearly has a difference of opinion with Mr. Bush and Mr. Blair over how to handle The Iraq Question... but since she doesn't get paid by Reuters to write opinion columns, she decided to go out and find a bunch of internationalist-minded legalists who wholeheartedly agreed with her views on this matter and were more than happy to provide her with a whole article's worth of quotes for her "just-the-facts-ma'am" report.

Was there even one -- just one! -- legal expert she quoted who voiced an opposite perspective, arguing that Bush and Blair do have a legal basis for what they're doing to Saddam Hussein? Nope. Not one.

Sorry, Emma, but I gotta call BULLSH*T on you here.

[fansince62]

ditto.....:laugh: