The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Wednesday, December 15, 2004

Prospect reaching on Bush's Iraq invasion blowback

Both the current and immediate past Leaders of the Free World (God help us!) have swept aside the UN Security Council and treated themselves to an illegal war - Clinton's humanitarian intervention in Kosovo teed up Bush's invasion of Iraq.

The US expects international impunity - and it's no fun if you don't push the envelope. The Nuremberg trials established that waging a war of aggression was a war crime; but recent US doctrine has been that war crimes laws are for losers [1].

A piece in American Prospect suggests a little poetic justice is coming in the form of the upcoming trial of Saddam Hussein. I suspect it's pure druther.

The nub is this: the trial will take place before the Iraqi Special Tribunal, which operates under its own Statute, signed into law on December 10 2003 by unlamented Gauleiter Paul Bremer.

The Prospect piece, in a Greg Palast tone, leads one to suppose a gotcha at the expense of Uncle Sam:
When presented with the draft statute, Salem Chalabi, then the president of the tribunal, insisted that the final version include a catchall provision for crimes recognized by Iraqi national law. This is not uncommon in international criminal law; the statute of the Special Court for Sierra Leone contains a similar provision.

It turned out to be a fateful decision. Because what the Pentagon lawyers apparently didn’t know at the time is that Iraq has had a law on the books since the 1950s that prohibits aggressive war. As it’s written, the law proscribes the “pursuit of policies” that may lead to war against a fellow Arab country. Now, because he invaded Kuwait, it appears that Hussein will be the first person since Nuremberg to be tried for the crime of aggression

I've not had sight of the travaux préparatoires of the Statute. But its final state lends no credence to such a tale.

Far from being legislated for by reference, the provision relating to aggressive war is plain and explicit on the face of the Statute (Article 14):
The Tribunal shall have the power to prosecute persons who have committed the following crimes under Iraqi law:

...c) The abuse of position and the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958, as amended.

That looks like a highly specialised provision sufficiently different from the Nuremberg version of wars of aggression as to deprive any decision against Saddam on that ground of any precedential value for the Nuremberg version.

(That is, of course, to the extent that, in relation to international criminal law, one may properly talk of precedent at all.)

From the surrender-monkey states, we get a diametrically opposed interpretation of Art 14(c): a July 2004 piece in the German Law Journal explains the provision as
[50]...While Articles 14(a) and (b) appear to be specific to Iraq the most important provision is Article 14(c). This is because Article 14(c) recognizes the crime of aggression albeit from a domestic perspective. This approach therefore begs the following questions. Why has the crime of aggression been listed under violations of stipulated Iraqi Laws? Why was it not addressed as a separate and independent provision?

[51] Finally, the answer to the above questions lie in U.S. interest. An international definition of aggression on the lines of Article 14(c), that is, "pursuit of policies that may lead to the threat of war or the use of the armed forces … against an Arab country," would equally affect U.S. actions in invading Iraq. In this respect it should be recalled that none of the UN resolutions on Iraq authorized the forcible removal of Saddam from power...It follows that aggression was included under Article 14 of the ISTCH Statute, so as to keep the spot light solely on Saddam.

Hardly an exhaustive search of the authorities on the question: but what there is of it suggests that a conviction of Saddam for Art 14(c) crimes would be little more than a footnote in the long litany of political embarrassments suffered by USG before, during and after the Iraq invasion.

It would not the first time that the left had suffered a prematurity problem about the law and the invasion: the fatuous CND challenge in the English courts, for instance [2].

  1. My piece of May 11 and other pieces linked there cover the ground on wars of aggression.

    The attitude is of a piece with the US decision to boycott the International Criminal Court - on which there have been several Plawg pieces.

  2. Piece of December 21 2002.


On the subject, we have (all PDF): a 2005 (!) Wayne Law Review article by Andreas Paulus Peace Through Justice: The Future of the Crime of Aggression in a Time of Crisis and a February 2004 NGO paper on redress for Saddam torture victims.


A page of useful links to various constitutional documents, articles, etc relevant to the Special Tribunal.

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