Michael Griffiths
Rock n' Roll Doggie
This question entails much more than pure legalities, but it's an interesting question to pose. Many believe a just war has to meet several conditions (which have been outlined in many international documents), and one of which involves imminent threat of attack in order to justify pre-emptive strike. There are also other conditions that need to be met. Regardless of which side of the fence you reside, here's an interesting article to get the brain working...
http://news.findlaw.com/international/s/20030319/iraqlawdc.html
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)
http://news.findlaw.com/international/s/20030319/iraqlawdc.html
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)
