FindLaw Legal News - Iraq War Illegal but Trial Unlikely, Lawyers Say (Reuters via Findlaw Legal News, Wednesday, March 19, 2003): 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.
You know, I would absolutely be willing to bet -- real money, even -- that there is someone out there willing to set this case before the International Criminal Court, or to take it to the Hague. I don't know that either court would be willing to take the case -- as a nonsignatory, the ICC lacks jurisdiction over the US, and it's probably somewhat out of scope for the Hague. But certainly there will be someone willing to try to get them to take the case.
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.
OK, now what planet does Mr Bothe live on? Surely it's not this one. Since the founding of the UN, every single one of the permanent members has engaged in what should be called, shall we say, extralegal activity. The US had fun in Grenada and Panama (Korea and Vietnam were, in fact, authorized UN "police actions"), China annexed Tibet and had periodic firefights with India and Vietnam, Russia invaded Hungary and Czechoslovakia and is currently engaged in the Chechnya morass, France has has various adventures in Africa, and Britain has attacked Egypt (among others). That also ignores various smaller wars all over the African and Asian continents, a few things here and there in South America, that obnoxious mess in the Balkans ... the question is not whether or not anyone has taken the ban on force seriously. Clearly, nations interpret the ban on the use of force somewhat liberally, to put it mildly.
The question really becomes, what exactly has the UN done over the past 50 years? And really, its achievements haven't been so much in the prevention of the use of force as in other humanitarian areas. UNESCO, working with the World Health Organization, that sort of thing. And it's possibly also valuable as a debating forum, as long as you acknowledge that the various countries are somewhat unlikely to listen to the other viewpoints when something important to them arises.
But useful in the prevention of the use of force? ... No, not really.
Findlaw's Writ: Dorf: Is the War on Iraq Lawful? ..... Does the Lawfulness of War Matter?
In the end, the question of whether war on Iraq is legally justified is less important than whether it is morally and practically justified. If the U.S. and its allies prevail in a relatively quick war with minimal loss of life, if further evidence of Saddam's malevolent intent surfaces, and if the Iraqi people welcome allied forces as liberators rather than conquerors, then quibbles about legality may be overlooked.
Nonetheless, one impact of a war of dubious lawfulness may be the continued erosion of respect for the United States as a nation committed to principles of justice under law. President Bush says that he is justified in using military might because his cause is just. To much of the rest of the world, however, it looks the other way around: that the U.S. and its allies act as they wish because, in the American view, might makes right.
In that respect, a bit of ancient history may be relevant. In Chapter Seventeen of his History of the Peloponnesian War (between Athens and Sparta in the Fifth Century B.C.), Thucydides recounted the reaction of the people of the small neutral island state of Melos to the invading Athenian navy. Before attacking Melos, the Athenians gave the Melians an opportunity to surrender. The Melians attempted to persuade the Athenians to leave them alone. According to Thucydides, the Athenians would have none of it. Questions of justice arise only among equals, the Athenians said, while the strong do what they will and the weak suffer what they must.