The Lincoln Plawg - the blog with footnotes
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 .
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.
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:
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
...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?
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 .
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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