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[casi] Reuters: Iraq War Illegal

Iraq War Illegal but Trial Unlikely, Lawyers Say
Wed March 19, 2003 01:47 PM ET

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

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."


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

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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