International Law 03.19.03

from Reuters/ Yahoo News

BERLIN (Reuters) - President Bush and his allies are unlikely to face trial for war crimes although many nations and legal experts say a strike on Iraq without an explicit U.N. mandate breaches international law.

While judicial means to enforce international law are limited, the political costs of a war that is perceived as illegal could be high for all concerned and could set a dangerous precedent for other conflicts, lawyers say.

The U.N. Charter says: "All members shall refrain ... from the threat or use of force against the territorial integrity or political independence of any state." It says force may only be used in self-defense or if approved by the Security Council.

Many leading legal experts have rejected attempts by Washington and London to justify a war with Iraq without a new resolution explicitly authorizing force.

"There is a danger that the ban on the use of force, which I see as one of the most significant cultural achievements of the last century, will become history again," said Michael Bothe, chairman of the German Society for International Law.

Washington and London have argued that U.N. resolution 1441 passed unanimously last year -- demanding Iraq disarm or face "serious consequences" -- gives sufficient legal cover.

Amid criticism that 1441 does not explicitly authorize war, they have also argued that military action is legitimized by two other resolutions passed before and after the 1991 Gulf War (news - web sites), although Russia has fiercely rejected this argument.

Bush has also said that a war would be a legitimate "pre-emptive" act of self-defense against any future attack.

The U.N. Charter says self-defense is only justified "if an armed attack occurs." When Israel tried to justify its 1981 strike on Iraq's Osirak nuclear reactor as an act of pre-emptive self-defense, the Security Council unanimously condemned it.

Bothe said the attempt by Washington and its allies to justify an attack showed the political power of international law despite the paucity of formal legal devices to enforce it.

"There is unlikely to be a court case," he said. "Those responsible won't be jailed but they can be made uncomfortable."

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