Iraq conflict holds potential cases for international criminal court
Ian Mulgrew
Vancouver Sun
Wednesday, March 19, 2003
British Prime Minister Tony Blair could face criminal charges for joining the U.S. war with Iraq, according to Vancouver-based international law specialists, and Canadian Prime Minister Jean Chretien had no legal option but to stay on the sidelines.
Ted McWhinney, a retired Liberal MP, academic and international consultant, says the U.S. is acting illegally and anyone involved in military action against Iraq could be prosecuted.
"The prime minister, a former justice minister, always appreciated this and made it clear we would not take military action in this situation," McWhinney said.
"It's black and white, there is no question. Armed force can only be used under the auspices of the United Nations or in self-defence, narrowly construed. There is no legal base for U.S. intervention in Iraq."
He says those involved in the U.S.-led coalition should be concerned because there is a growing international recognition and desire that anyone who does not respect such laws must be prosecuted, not only leaders of minor powers or defeated nations.
Although it didn't garner much attention last week amid the din of American war preparations, a Canadian was elected head of the new International Criminal Court.
Philippe Kirsch, a life-time blue-ribbon foreign affairs officer who was Canada's ambassador to Sweden, and the 17 other judges who named him their president, will begin hearing cases this year, which could put Bush, Blair and other world leaders in the court's crosshairs.
However, Joanne Lee, of the International Centre for criminal law reform and criminal justice policy, based at the University of British Columbia, says Bush thumbs his nose at the court.
Lee said the U.S. not only refuses to recognize the freshly minted global institution, it has negotiated two dozen treaties with other countries guaranteeing its citizens won't be handed over. However, Britain and Canada are among 89 countries who have signed and ratified the court's founding treaty, the Rome Statute, and Blair and Chretien are bound by it.
The Centre at UBC produced the explanatory manual on the treaty's ratification and implementation, which is already translated in every major UN language.
"Blair, for example, already is thinking twice about what limits he might need to put on his troops, the methods of warfare when he goes in, things like that," said Lee, an Australian lawyer and international law specialist.
Chretien also had to take international law into account before setting policy, she said.
On Monday, in what some regarded as a dramatic shift, Chretien announced Canada will not join in a war against Iraq that does not have new authorization from the UN Security Council.
"I'm not saying they should prosecute any little breach of the laws of war, but if there is a flagrant violation and there's no clear justification for it, I think it's appropriate for the court to say we're thinking of looking into this," Lee said.
For the past four years she has travelled the world explaining the court's birth and consulting with countries on what changes they must make to their domestic laws to comply with the Rome Statute.
The court grew out of growing international concern about crimes against humanity. Its gestation can be traced to the First World War and the horror inspired by the use of chemical weapons and targeting of civilians.
The Treaty of Versailles, which ended that war, created an international court to try the Kaiser and his generals but the German leader fled to the Netherlands and was never prosecuted.
There were 12 people tried at the so-called Leipzig trials but the handful who were convicted received light sentences.
Between the wars, the League of Nations mulled an international court but, like every other idea the dithering organization considered, it came to nought.
The end of the Second World War triggered creation of international military tribunals in Nuremberg and Tokyo and war-crimes tribunals in allied countries.
Those courts were established to punish "the major war criminals of the European Axis" and prosecuted so-called crimes against peace, war crimes and crimes against humanity.
In the era of the United Nations, member states adopted first the Convention for the Prevention and Punishment of the Crime of Genocide.
This legal instrument provided domestic courts with the jurisdiction to try cases of genocide or alternatively, provided for the striking of an international tribunal if the country in which the crime happened accepts its jurisdiction.
However, that initiative languished until 1989 when the UN again decided to address the issue, only then the motive had less to do with war crimes and more to do with global drug trafficking.
Since then, international justice has more frequently come into the spotlight, especially with the appointment by the Security Council in 1993 of tribunals to investigate atrocities in the former Yugoslavia.
Such working models and the publicity they generated spurred recognition that an international court was necessary. The intransigent isolationist stance by the U.S., however, always has been the single biggest impediment to the court's creation, legitimacy and survival.
It's fairly obvious why support for an international criminal court is growing. Until now justice dictated by the Security Council or the victors has been incredibly selective, ignoring numerous crimes and sheltering nationals of major powers.
However, there were and are incredible practical problems to forging such an institution.
There are questions of sovereignty and procedure: do you create a British common-law system or a French Napoleonic Code process? What about the cost? Such a court is going to be expensive.
In July, 1998, 120 states signed the Rome Statute.
The new treaty covers genocide, crimes against humanity and war crimes. It also covers the still undefined crime of "aggression." There is no statute of limitations.
It assumes jurisdiction when states are unwilling or unable to bring to trial war criminals or those who commit crimes against humanity. China, the U.S. and Israel were the biggest opponents of the decision and remain the court's most vociferous critics.
There is a long way to go no matter how you look at it.
Biological and chemical weapons are not covered by the law because of a dispute over whether nuclear armaments should be included.
There are concerns about the kinds of defences the court says it will recognize, such as, "I was too drunk to know I was massacring them."
There remain issues regarding its reach. The court exercises jurisdiction only with the consent of the state of the nationality of the accused or the state of the territory in which the crime was committed.
The best that can be said is the court is a good first step.
Already a host of groups are waiting in the wings to bring charges against those involved in recent conflicts in Colombia, the Congo and the Central African Republic.
The survival and viability of the court will be truly tested if Bush bombs Baghdad. McWhinney agrees such a war could spark a crippling crisis for the court and he said its architects should have made concessions to the U.S.
"The criminal court can only be a success if you have the big countries in," McWhinney said, "but some of the non-governmental organizations lobbying for the court really killed that."
He said they wanted to see former U.S. secretary of state Henry Kissinger as the first defendant before the court for directing U.S. foreign policy in Southeast Asia and South America under president Richard Nixon.
"No American administration would buy that," McWhinney said. "The problem is only the nice people in the world are involved in it right now."
Lee also said she worries a misguided prosecution might doom the court.
"It's symbolic in a way that they've put someone there who is really a very skilled political player because the judges decide which cases they pursue," she said.
"Kirsch knows what is at stake in terms of its credibility, having steered the court through the last five years. He knows exactly what the opinions of the countries are. He's had to deal first-hand with the U.S. criticisms and the pressure they've put on every country to give immunity to U.S. citizens. I'm sure for the first few months there's going to be a lot of discussion about what kind of court is this going to be, what should it be pursuing."
However, such qualms should not deter the court from investigating a Western leader, she said:
"Just for the court to make that point: We're here, we're watching what are you doing. That's why we need a court, if we want to have some legal accountability at the international level. I would like there to be a court making the decisions and putting some clear limits on what is and isn't acceptable."
McWhinney was more pessimistic about the court's future and said he thinks it much more likely Western politicians will face charges in domestic courts.
"Any court around the world can if it wishes exercise jurisdiction on international law grounds. International law is part of the common law of Canada," he said. "Don't forget it was a British court that consistently held [Chilean] General [Augusto] Pinochet could be extradited. I would advise people who were arrogant with power to watch where they go overseas for medical treatment. You could get a situation, for example, where any one of the coalition partners in this latest Iraq conflict comes to Canada and finds themselves charged. It could be very embarrassing."
