Even as American and British troops proceeded to war, with President Bush saying that U.S. troops would “enforce the just demands of the world,” legal advisers in several countries suggested a war without U.N. approval might violate international law. But as with most laws, and especially with the vagaries of international law, the real issue is enforcement.
Some foreign officials have argued that any U.S. attack would be illegal because international law allows only two legal means of waging war, both sanctioned under chapter 7 of the U.N. charter. A member state can go to war to defend itself against “armed attack”; otherwise, it must win the approval of the Security Council. If a country gets the OK, provisions are in the charter for other nations to lend assistance.
Otherwise, aggression is barred by article II of the charter, which prohibits “the threat or use of force against the territorial integrity or political independence of any state.”
Given the long odds they faced in the Security Council — with France and Russia, both permanent members, threatening a veto — the Bush administration ultimately turned to the self-defense argument. In his Monday speech, Bush cited “a duty to defend our people by uniting against the violent” and in a March 18 letter to Congress, argued that “peaceful means” of dealing with Iraq would no longer “adequately protect the national security of the United States.”
Rarely in U.N. history has self defense been cited for a first-strike attack, though smaller-scale invasions such as Panama have been so defended and Israel has claimed “anticipatory self-defense” for such attacks as the 1981 destruction of the Osiraq nuclear facility. But the massive scale of current effort has prompted the speculation about the legality of U.S. efforts.
“The argument is that we are stretching the bounds of self-defense,” says Frederic Kirgis, a law professor at Washington and Lee University and expert on U.N. law. “We are stretching it to a preemptive attack when there is no threat against our own territory or sovereignty.”
The previous U.S. argument was that U.N. resolution 1441, passed last October, backed the use of military force when it warned Iraq of “serious consequences” for not cooperating with weapons inspections.
Parsing 'serious consequences'
But if certain phrases in U.N. diplomatic language have implicit meanings — Kirgis points out that “all appropriate means,” for example, is a reference to the use of armed force — there’s no history of “serious consequences” referring to military action.
In part, the U.S. had to eventually turn away from that phrase because it was a compromise during last fall’s negotiations that fell short of U.S. hopes to win authorization for war.
“It was pretty clear back in November that the two sides had agreed to disagree,” says Anne-Marie Slaughter, dean of the Woodrow Wilson School of Public and International Affairs at Princeton University. “Now it’s the court of public opinion that will decide who will have the better argument.”
Slaughter pointed out in a recent New York Times op-ed that the war could win legitimacy after the fact, as was the case with the 1999 war in Kosovo. Fearing a Russian veto, the Clinton administration avoided a U.N. vote and passed war plans through the willing members of NATO. After the war, the Security Council approved a U.N. mission to Kosovo which, if not approving the war, provided what Slaughter calls “evidence of legitimacy.”
This time, though, U.S. allies will be more cautious. Australia, for example, has said it would only fight according to its own rules of engagement, which are more stringent than the United States. In doing so, officials pointed out they are subject to international treaties the U.S. government hasn’t joined.
Taking U.S. to court
Those who see the war as illicit have several options to pursue — none of them terribly effective. Even the most vigorous critics of the war’s legality acknowledge a prosecution against U.S. efforts would be difficult given the weakness of most international courts and tribunals.
“The United States has essentially gutted or pulled out of any institution that could take meaningful action here,” says Michael Ratner, president of the Center for Constitutional Rights. “It’s very hard ever to get a remedy against the most powerful country in the world.”
The most obvious options:
- The Security Council can pursue justice against any nation that violates the U.N. charter, even approving war against it. But with the United States as a permanent member that can veto any proposal — no condemnation of the Iraq war will conceivably come from council chambers.
- The matter could be sent to the U.N. General Assembly. This option has recently taken hold among peace groups, who want to invoke a use of General Assembly resolution 377, which allows the assembly to take up a matter when the Security Council has deadlocked. Known as “uniting for peace,” it would allow the assembly to consider a resolution condemning a war on Iraq. But the assembly essentially has no power to force nations to take action.
- The General Assembly could also refer the matter to the International Court of Justice in the Hague, which presides over legal disputes between nations. But the United States has not accepted the court’s rulings as binding since 1986, when President Reagan withdrew support over a case involving U.S. support for Nicaraguan contras.
- Some nations have given their courts “universal jurisdiction,” which allows them to prosecute those who have committed some crimes under international law. Belgium’s efforts to prosecute Israeli leader Ariel Sharon and prosecutions of Chile’s Augusto Pinochet were pursued under these principles. But war opponents would need to find a willing nation and any prosecution would be stalled until a named defendant was taken into custody.
The International Criminal Court, which will try criminal violations of international law, would not have jurisdiction — and not only because the Bush administration reversed U.S. efforts to sign on as a participant. (The White House argued U.S. troops could be subject to unfair, politically-based prosecutions.) The ICC begins hearing cases this July; only offenses committed after that point can be prosecuted. Also, as Kirgis points out, it “doesn’t yet have jurisdiction to deal with acts of aggression” — only specific war crimes and other criminal violations.
What if we capture Saddam?
Regardless of the war’s legality, prosecutions for war crimes will surely follow. But even with Saddam Hussein or his top aides in hand, the scope of those prosecutions remains tricky, especially if the United States wants to include prior atrocities, such as the 1988 gassing of Iraqi Kurds in Halabja.
Under the rules of the Third Geneva Convention, U.S. officials could hold their own tribunals for Iraqis accused of war crimes.
The process, though, guarantees defendants the same legal rights and processes as accorded in U.S. courts-martial. (Crtitics have questioned whether tribunals for Afghan war prisoners held in Guantanamo Bay, Cuba, meet those standards.)
Moreover, as a purely political matter, unilateral U.S. prosecutions of Iraqis would face the scrutiny of already skeptical Arab nations whose support will be crucial in rebuilding Iraq.
“There’s the old adage that justice must not only be done, but must also seem to be done,” says Payam Akhavan, who served as legal adviser at the International Criminal Tribunal for the Former Yugoslavia. “For that reason, the wisdom of prosecuting the Iraqi leadership before U.S. military commissions, I think, is questionable.”
The time frame for war crimes also poses a dilemma. Bush and his aides hope to try Iraqi officials for crimes that occurred over a decade ago — a tricky task under Geneva Convention rules. And the United States will want to step gingerly around any allegations from the Iran-Iraq war, when U.S. officials openly backed Saddam in his efforts.
Bringing in the U.N.
War crimes can also be prosecuted by a special U.N. tribunal, such as those set up to handle war crimes in Yugoslavia or Rwanda. One big advantage is a U.N. imprimatur, which would not only soothe concerns about the U.S. role but could, as Akhavan points out, also help soothe tensions created during the recent Security Council tangle.
A tribunal could also be set up as a hybrid, similar to the system set up in Sierra Leone after its lengthy civil war — incorporating both international judges and the legal system of a new Iraq. That process could be augmented with nonjudicial proceedings similar to South Africa’s truth commissions after apartheid.
Again, at this point, the ICC is not an option unless war continues past July and specific crimes are documented. And because it won’t join the court, the United States would have to turn over any prisoners to Britain or another court member. Also, because Iraq is not a court signatory, it’s unclear whether any crimes committed on Iraqi soil would fall under ICC jurisdiction.
But Slaughter suggests that the Bush administration could petition the Security Council to grant jurisdiction to the ICC, which can take on additional responsibilities granted by the council. That particular solution could bolster U.S. concerns about the court, including worries about its independence from the Security Council.
“It would go very far to heal the source of the split with the international community, which is that they feel we’re acting like an outlaw,” she says.