Iraq war illegal but trial unlikely, lawyers say

11.45am

BERLIN - US President George W. 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 UN 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 UN 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-defence 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 authorising 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 UN resolution 1441 passed unanimously last year -- demanding Iraq disarm or face "serious consequences" -- gives sufficient legal cover.

Amid criticism that 1441 does not explicitly authorise war, they have also argued that military action is legitimised 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-defence against any future attack.

The UN Charter says self-defence 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-defence, 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 authorised by earlier UN resolutions nor that the UN Charter allows self-defence against a perceived future threat.

Justice Richard Goldstone of South Africa's Constitutional Court, who was the lead prosecutor in UN 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 UN, 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 UN General Assembly, she said.

But Laetia Husson, a researcher at the International Law Centre at the Sorbonne university in Paris, said international action to declare a breach of the UN Charter was unlikely.

"There is little chance of condemnation by the United Nations because they will be paralysed by the US veto in the Security Council," she said.

Washington and Baghdad do not recognise 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 US allies that recognise 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 legitimise the Kosovo campaign in 1999 that lacked UN 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."

- REUTERS

Herald Feature: Iraq