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.