The legal aspects of war: America -- Iraq case

The legal aspects of war: America -- Iraq case

Sayidiman Suryohadiprojo, Former Governor National Resilience
Institute (Lemhanas), Jakarta

The United States seems to be very serious in going to war
with Iraq. Some of its leaders have stated that the U.S. will
proceed with its war even without a United Nations' resolution.
They say that credibility is at stake and the concentration of
military power in the Gulf area will not allow for a cancellation
of the war.

But people with even a little legal background are wondering
whether the U.S. leaders have considered the legal aspects of
war. Perhaps those leaders are thinking that might is right. And
because history has proved that the U.S. has been able to get
away many times without being accused of having infringed the
Laws of War, this time it will also be successful.

The aerial bombing of cities in Germany like Dresden and
Hamburg in World War II was clearly against the Hague Rules of
Aerial Warfare (signed Feb. 19, 1923). Articles 22 and 24 state
that aerial bombardments are only legitimate when directed
exclusively against military objectives, while an attack against
the civilian population is prohibited.

But all the U.S. aerial attacks, starting with World War II up
to its air operations against Afghanistan, have been a cause of
heavy suffering for civilian populations. When whole cities like
Dresden and Hamburg were indiscriminately bombarded, the civilian
population became the real targets of the attack.

This was even more so the case in Japan when the U.S. air
force bombed Tokyo and other cities with fire bombs, burning down
most of the paper and wood houses of civilians.

Ultimately, the atomic bomb attacks on Hiroshima and Nagasaki
were clearly directed at the Japanese population, because
everybody with a little knowledge, let alone the political and
military leaders who ordered the attacks, knew of the disastrous
effects of atomic bombs.

Heat and air pressure immediately destroyed and burned every
building in the impact area and its environs. It was then
followed by nuclear radiation that killed or seriously wounded
every living creature in the target area and around it. Those
persons who did not die immediately kept on living with all the
disastrous consequences of nuclear radiation. Most of them would
prefer to have died immediately than bear the suffering caused by
the radiation.

All these actions were against the Law of War. Nevertheless,
no action was ever taken to indict the culprits. There were
military tribunals in Nuremberg and later in Tokyo to punish
German and Japanese war criminals, but never were U.S. military
or civilian officials taken to court. The same story happened
when during the Vietnam War the U.S. attacked North Vietnam
systematically and continuously from the air, killing and
injuring many civilians with all kind of bombs, except atomic
bombs.

A few months ago, the U.S. military operations against
Afghanistan again caused a lot of civilian suffering. According
to available figures at least 13,000 people were killed and
injured, many more than the number of people killed during the
terrorist attacks on Sept. 11, 2001, against the World Trade
Center in New York, and the Pentagon.

So the attack against Afghanistan, which was, among other
things, meant as a retaliation for the New York terrorist attack
was heavily out of proportion. However, no legal action has ever
been taken against the U.S. and its military organization. It
seems to be taken for granted that the U.S. can do anything with
its overwhelming military power without any legal consequences.
Might indeed makes right!

The irony of the matter is that the U.S. is always preaching
about human rights, and made these an important pillar in its
foreign policy after the end of the Cold War. The U.S. government
criticizes other nations that it considers to be violating human
rights. Criticism is often followed by punishment when the U.S.
uses its economic and political power to isolate an accused
nation, thus making life difficult for its people.

In particular, weak developing nations have become the objects
of such U.S. human rights' diplomacy. At the same time, the U.S.
refuses to ratify the Rome Statutes of the International Criminal
Court, signed July 17, 1998. The U.S. says that it cannot
tolerate its servants being taken before an international court,
but at the same time demands that other nations uphold human
rights.

This controversial U.S. attitude has become more acute today
with the U.S. insisting on attacking Iraq even without the
agreement of the UN. It seems not to care about the existence of
a legal definition of Aggression.

The agreed definition of Aggression issued by the UN General
Assembly on Dec. 4, 1974, states in Article 1: Aggression is the
use of armed forces by a State against the sovereignty,
territorial integrity or political independence of another State,
or in any other manner inconsistent with the Charter of the UN,
as set out in this definition.

Therefore, if the U.S. attacks Iraq without a UN resolution,
it is committing aggression, which is a crime against
international peace. The U.S. might argue that it is engaging in
self-defense which is allowed under international law. However,
self-defense is subject to the state concerned having been the
victim of an armed attack.

The U.S. cannot prove that Iraq has attacked the U.S.,
although it is making strenuous efforts to tie Saddam Husein with
Osama bin Laden and al Qaeda, who are considered responsible for
the Sept. 11 tragedy.

Moreover, we cannot see any effort on the part of the U.S.
government to justify its war plans with Iraq except statements
declaring Saddam to be a menace to the U.S. and humanity, and
therefore meriting liquidation.

The U.S. seems to be convinced that its hegemonic power is a
legal carte blanche to do anything it considers necessary to
safeguard its imperial interests. It does not pay any attention
to the feelings of others or to their sense of justice. If this
thinking is the basis of the international order that the U.S.
wants to establish, a serious question mark is raised about what
kind of life humankind can expect in the future.