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Attack on Iraq Could Turn Bush into Criminal
Published on Tuesday, March 18, 2003 by the Toronto Star
Attack on Iraq Could Turn Bush into Criminal
by Thomas Walkom

There are many good reasons for Canada's decision not to join U.S. President George W. Bush's war against Iraq. The best is that such a war would be patently illegal.

Prime Minister Jean Chrétien hinted at this yesterday when he told Parliament that Canada would not support a U.S.-led invasion of Iraq because the U.N. Security Council has not authorized such an attack.

What he did not say, perhaps because he is too polite, is that in waging war without U.N. authorization, the U.S. and its ragtag "coalition of the willing" are putting themselves outside the boundaries of international law.

Or, to put it bluntly, they are transforming themselves into outlaw states.

"There is no legal basis for war," says Ted McWhinney, a former Liberal MP, professor and expert on international law. "None. That was clear from the beginning."

That the very nations which spearheaded efforts to rein in an outlaw state should themselves become outlaws is a rich, if tragic, irony. It will be appreciated as such in most countries, although possibly not in the U.S. where irony, like French toast, has been declared unpatriotic.

Yet this is what has happened. Iraq, a country that for 12 years did defy and obstruct the international community, is now seen by much of the world as a helpless victim. Even the villainous Saddam Hussein is viewed almost — almost — sympathetically.

The two men most responsible for this remarkable turnaround in world public opinion are Saddam and Bush.

Saddam's strategy was simple. When faced with pressure, he did what the Security Council told him to do. In the language of the U.N., he complied.

By contrast, Bush appeared capricious, arrogant and ever so slightly unhinged. The more Saddam complied, the more Bush complained that he wasn't. The more successes the U.N. weapons inspectors scored in their disarmament of Iraq, the more petulant Bush became.

Eventually, even those people who don't pay a great deal of attention to world affairs began to wonder which of the two was the madman.

Indeed, Bush's behaviour is difficult to fathom. For more than a year, he has seemed bent on invading Iraq, no matter what. Perhaps this single-minded focus on war explains his striking inability to win diplomatic support from the usually pliable members of the Security Council, most of whom are eager for American dollars. In the end, Bush couldn't even be sure of Mexico.

Which is why yesterday, the U.S., British and Spanish abandoned efforts to have the Security Council pass a resolution authorizing war. They now say they don't need one to invade Iraq legally. In fact, they do. Among experts, the overwhelming consensus seems to be that there is no legal authorization for an Iraq war.

Certainly, last fall's Security Council resolution 1441, the one that the U.S. cites to justify its actions, does not do the trick. Contrary to the common wisdom, it does not even threaten Iraq with "serious consequences" for non-compliance. It merely "recalls" that the council has warned of such consequences before.

Even Britain recognizes that resolution 1441 is a week reed. It insists that war is implicitly authorized by Security Council resolutions 678 and 687, both of which date from the early 1990s.

Nonsense, says McWhinney. Security Council resolutions are specific to time and place; they cannot be dragged out years later to justify unilateral actions.

"No country alone can be judge, jury and high executioner."

Besides, writes British lawyer Keir Starmer, the earlier Security Council resolutions don't quite work, either. Resolution 678 (1990) did authorize military action but only to force Iraq to abandon its occupation of Kuwait. And resolution 687 (1991), which established the ceasefire at the end of the first Gulf War, doesn't authorize force at all.

All of this is important in the context of the U.N. system set up by the U.S. and its allies after World War II to prevent war. Under the U.N. Charter, it is a crime for any nation to make war, except in self-defence or with the explicit approval of the council. Anyone in any country that makes war outside of these conditions is breaking international law.

This is not to suggest that Bush and British Prime Minister Tony Blair are about to be bundled into police vans — although there are precedents. Bush had foresight enough to refuse to recognize the new international war crimes court that is being set up in Holland. In any case, it's tough to arrest a man surrounded by nuclear weapons.

Still, says McWhinney, Bush — and indeed anyone involved in an illegal invasion of Iraq — would be wise to stay out of Belgium. That small country has aggressively pursued war criminals, arguing that it has the right to try them under its domestic law.

Theoretically, Bush could find himself sharing a Brussels cell with that other notorious international outlaw, Saddam Hussein.

Thomas Walkom's column appears on Tuesday.

Copyright 1996-2003. Toronto Star Newspapers Limited


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