DOING IT WRONG WOULD BE A CRIME...
The Director of the Center for International Human Rights at Northwestern University's School of Law writes a great editorial that is in today's Chicago Tribune...
Doing it wrong would be a crime
By Doug Cassel
Editorial
The Chicago Tribune
Published September 22, 2002
If the United States attacks Iraq without authorization by the United Nations Security Council, will we violate international law? Will our commander in chief commit an international crime? Does it matter?
Yes, it would be unlawful. Quite possibly a crime as well. And, yes, it matters.
One can understand the presidential demand to put Saddam Hussein out of business. We have already been the victim of one devastating surprise attack. President Bush is determined not to let it happen again.
As the president argued persuasively to the UN this month, Hussein represents a unique threat. His track record includes massacres of civilians by poison gas, military aggression against his neighbors, systematic deceit, a dictatorial regime led by an unstable personality with no internal checks, and a covert program to perfect chemical and biological weapons and develop deliverable nuclear bombs.
But how immediate or certain is the threat? Does he amass an arsenal in order to attack the United States, only to face certain annihilation by nuclear retaliation? Or does Hussein covet nukes for the same reason as most countries--to gain power and respect in geopolitics? To enter the exclusive club of nations too potent to be pushed around? To lead the Arab world?
Some fear he would share his deadly arsenal with international terrorists, leaving no fingerprints. But that reasoning, too, is flawed. Aside from the odds of being caught, no proof links Iraq to the Sept. 11 attacks, and mutual distrust separates secular Hussein from Al Qaeda's religious zealots.
It is one thing for Hussein to harbor Al Qaeda fugitives, as Washington now claims, but quite another to supply them with arms that might be turned on their host. Just ask Abu Nidal, the infamous terrorist recently given sanctuary in Baghdad, only to turn up dead in the company of Iraqi security agents.
Not that anyone should rest easy in a world where Hussein wields power. Whatever doubts there are about the certainty, magnitude or imminence, in the words of the UN Charter he represents a threat to "international peace and security." Because this relatively low standard is met, the UN Security Council has authority to act, by force if necessary.
But the Charter grants this power exclusively to the council. Its premise is that there is likely to be more wisdom and less aggression in the collective than in a unilateral decision to use force. If the case against Hussein is strong enough, it should convince a majority of the 15 Security Council members and escape a veto by any of the permanent five.
But what if the council does not act? Then individual UN members--such as the U.S. and Britain--are governed by other Charter rules mandating that all UN members "shall settle their international disputes by peaceful means" and "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." Plainly these rules bar invasions for purposes of regime change.
One exception may apply. Nothing in the Charter "shall impair the inherent right of individual or collective self-defense if an armed attack occurs."
The president asserts pre-emptive self-defense. At West Point in June, he warned: "If we wait for threats to fully materialize, we will have waited too long." Our security will require "pre-emptive action when necessary."
Before the UN, he specified that the "first day we may be completely certain [Hussein] has nuclear weapons is when, God forbid, he uses one." We must "prevent that day from coming."
However, the Charter speaks of self-defense when an armed attack "occurs," not when one is merely anticipated in some indefinite future. Only the Security Council can authorize such pre-emptive strikes.
Granted, the Charter reference to the "inherent right" to self-defense must allow individual nations at least some anticipation; surely if the bomb is being assembled, we need not wait until it is wheeled to the launch pad. But how certain or imminent a threat is required?
Precedent can be found in the prosecutions of German leaders for "crimes against peace"--wars of aggression--at Nuremberg. The Germans claimed that their invasions of several countries were justified as self-defense to pre-empt occupations by Britain and France. Most of these bogus claims were summarily rejected.
But one case--Norway--was troubling. Although the evidence was mixed, at least one internal memo warned Adolf Hitler of the "disadvantages to Germany which an occupation by the British would have." His chief of naval operations "harbored the firm conviction that England intended to occupy Norway in the near future." Hitler's secret order for the invasion gave, among other reasons, that it "should prevent British encroachment."
And in fact, he barely beat the British to the punch; only a last-minute postponement of English mining of Norwegian waters allowed German troops to get there first.
Yet the tribunal rejected the defense. "[P]reventive action in foreign territory," it ruled, quoting an oft-cited 19th Century letter by U.S. Secretary of State Daniel Webster, "is justified only in case of `an instant and overwhelming necessity for self-defense, leaving no choice of means, and no moment of deliberation.'"
The Germans failed this test because their attack was not "for the purpose of forestalling an imminent Allied landing, but, at the most, that they might prevent an Allied occupation at some future date."
The same could be said of a pre-emptive U.S. invasion of Iraq. Barring any new revelations, our invasion would not forestall an imminent Iraqi attack, but at most, might prevent one at some future date. For such a crime seven top Nazis were found guilty at Nuremberg.
Should George Bush follow in their footsteps?
Not that he is in imminent jeopardy. The crime of "aggression" will not be put on the docket of the new International Criminal Court for at least seven years, and then only if its members reach overwhelming agreement on a legal definition, which likely will require prior certification by the Security Council, where the U.S. has a veto. Still, is this any kind of company to keep?
Some may object that the Nazis were evil aggressors, while our president means well. But in convicting German diplomat Ernst von Weizsacker, another Nuremberg tribunal rejected "the claim that good intentions render innocent that which is otherwise criminal." Aggressive war "is a crime which stands at the pinnacle of criminality. For it there is no justification or excuse."
Which brings us to whether all this matters. The president asked the UN whether it will act against Iraq, "or will it be irrelevant?" In effect he also asked, will international law be irrelevant?
Battered and torn as it may be, international law is not irrelevant, either to our own success or to what we can expect from others in an ever more interdependent world.
The evidence for our own success is right before our eyes. Hawks urged the president to bypass the UN and dispatch our troops to invade Iraq. This lawless, lone wolf approach--not yet ruled out--would succeed militarily, but only at a higher cost in American casualties and deficits. And it would lead to minimum support and maximum hostility from many governments whose cooperation we need globally against terrorism.
Instead--so far--the president went to the UN, and now it appears support might come from unexpected quarters.
And how might the behavior of others be shaped by what Henry Kissinger calls "our first pre-emptive war"? Kissinger rightly cautions that "it is not in the American national interest to establish pre-emption as a universal principle available to every nation."
In other words, the international law rule against pre-emptive strikes is in our national interest. If it is repealed by Bush, powers like India, China and Russia may be tempted to force a few regime changes as well. We can hardly ask them to play by more peaceful rules than we do.
Do we really want a world ruled even less by law and more by raw power, with fewer restraints on war? In evaluating the uncertainty of an unspecified threat in some indefinite future, we cannot but weigh carefully the cost of throwing out the rule book written by American diplomats and judges after World War II.
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Doug Cassel is director of the Center for International Human Rights at Northwestern University's School of Law
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