Vol. 4 Num 27 Tue. June 24, 2003  

The coalition in the dock!

Putting the other side in the dock has always been the privilege of the winners, although both sides might have perpetrated the crimes during the war. Because it is the victors who have often been able to turn might into right ignoring their own blatant excesses and violations and immorally penalising the adversary. The cases relating to Gulf War II are not going to be any exception. Yet at Nuremberg in 1945 the western states knew that their relentless bombing of German cities could pose awkward questions during the trial and quietly dropped their charges against the Luftwaffe. The western democracies sat alongside totalitarian Soviet Union in leveling charges against the axis powers which, many people argued at that time, could itself be regarded as offence on several of the same counts for which German leaders were indicted. The present global moral standard is left with few such qualms of conscience and the highly dubious western conscience will obviously have few problems in arraigning Saddam and his henchmen to ensure that they join Milosevic at the Hague as warning to the tyrants word wide that a grim justice awaits them. Saddam and his men will, of course, be expected to pay the way Hitler and his gang were in 1945.

But this time around the situation is different. The legal position of the parties involved in Gulf War II is anything but clearcut. A good deal of informed opinion worldwide regard today the Anglo-American invasion and conquest of Iraq as an illegal act of aggression in the course of which it is the coalition forces which have perpetrated numerous war crimes while pulversing Iraqi resistance which was legally and morally put up by the Iraqis in their right of self defence. If the WMD excuse for war proves to be a hoax -- as it is already a certainty -- the Nuremberg precedent might be invoked to argue that committing crimes in order to overcome tyranny is legally permissible but there is an awkward contrast with the treatment of German war crimes in 1945: now it is the US and Britain that many believe have waged a war of aggression.

An indictment of the coalition can have three main elements of prosecution. In the first place the US and Britain have waged an illegal war without the sanction of a UN resolution although such a resolution would have given only a dubious legality when it comes to a war launched in violation of UN charter and fought on such a grand scale. Any argument that Saddam's failure to disarm fast enough justified the invasion of his state, the destruction of Iraq's major cities and the killings of thousand of Iraqis fails on the legal concept of proportionality. The suspected -- but as yet unproven -- violations of disarmament resolutions cannot justify in international law the massive destruction and dislocation of the entire state of Iraq.

Ironically, the only one instrument the Allies could find in 1945 to explain that Hitler's wars were illegal was the Kellog-Briand Pact signed in Paris in 1928 at the behest of then US Secretary of State. The Pact had outlawed war as instrument of policy for all the signatory powers, including the US and Britain but its precise status in international law remained open to dispute. However, at Nuremberg, the American chief prosecutor Justice Jackson was adamant on using it as the foundation for the whole case against Hitler. In the same vein it can still be the foundation of the case against British and US invasion of Iraq.

The second and third elements of any prosecution derive not only from the presumption that the coalition has waged an illegal war. As at Nuremberg the subsequent killings of civilians and mistreatment of prisoners in a war of aggression also very much constitute war crimes in their own right. The American and British killings of thousands of Iraqis can be viewed in this light. The mistreatment of Iraqi prisoners are abysmal as the pictures of stripped and bound prisoners have already been released. The camps constructed early in the campaign were closed to the Red Cross in defiance of the Geneva Convention. If prisoners are subsequently taken to the US and subjected to the same treatment as the Afghan soldiers held at Guantanamo Bay, that too would be violation of international law.

Nevertheless, he sad truth is that the prosecution has always been a function of power. No one seriously believes that inspite of strong case of war crimes against them, Bush-Blair would ever be indicted. The international law works only against the weaker states. The big powers have an unmerited but unassailable immunity. Even if any one is brave enough to try to indict the coalition leaders, the US has already refused to ratify the statute establishing the International Criminal Court which came into force in 2002. Since then, however, the courts have been set up to deal with gross violations of international law and human rights. Technically, it can prosecute state nationals from the states that have not subscribed to the statute. But the view has been widely held that the US refused to support the statute because it wanted to dish out its own justice without subjecting its nationals to commonly agreed jurisdictions of International Court. It is also to invalidate the whole concept of such justice and confirm the fact already evident that political power, not justice will determine the future of the enterprise.

What the coalition does with impunity is hailed as a war crime when it is committed by the Iraqis. The image of crude American gun law -- evident in the effort to kill Saddam -- has ominously been Justified by American international lawyers. There is no prospect at all that Bush and Blair will be sharing a cell with Saddam at the Hague. The death and destruction meted out in their name will have to be lodged instead in their conscience.

In international affairs lawless behaviour is unaccountable, which is why at Nuremberg efforts were made to find some measures by which such lawlessness could be brought to account. There is now no means by which the big power immunity is to be combated.

Consequently, only three weeks of coalition violences have destroyed 60 years of patient international collaboration to build a sound framework for the conduct of the affairs between the states.

Brig ( retd) Hafiz is former DG of BIISS.