VIOLATING INTERNATIONAL LAW

With the Iraq war, the US brings “cumulative evidence” into international law and damages international law and the burden of proof

By Ulrich Arnswald

[This article “Volker ohne Recht” published in: die tageszeitung, 3/21/2003 is translated from the German on the World Wide Web,  http://www.taz.de.]


The war of the US government against Iraq is based on a legal model without precedent in international law. In the past, the threatened party had to prove that an attack on it was unjustified. Those who wanted to wage war had to bring this evidence.

US Secretary of State Colin Powell tried to offer this evidence to the UN Security Council. His evidence did not go beyond indications, suspicions and apprehensions. In no constitutional court of the world could someone be condemned on such a basis. Powell’s presentation was in the style of a chief prosecutor in a criminal proceeding. Applied to international law, this means the US had to first prove to UN member states why an exception from the general prohibition against violence should be granted in the case of Iraq.

The Bush administration sidesteps this by insisting that Iraq has to prove its innocence (derived from UN resolution 1441). Because Iraq could not do this, the war against it was legitimated. However international law does not know this inversion of the burden of proof. This also would not be desirable since every proof of innocence could be rejected a priori. What the prosecutor recognizes as a proof of innocence would be left to his arbitrariness in the absence of international law criteria.

In this momentous case for the international community of states, the Bush administration had to present irrefutable facts that could prove Baghdad’s guilt beyond any doubt. The legitimation of a war needed the approval of the UN Security Council.

This war also cannot be legitimated as a preventive war. The US would have had to establish the necessity of immediate self-defense according to the Caroline clause. This clause acknowledged in international law up to today arose in 1837 when the US steamship “Caroline” was captured by British troops at the border to the British colonial Canada and subsequently fell into the Niagara waterfall. The American government vigorously opposed Great Britain’s argument at that time that this was an “anticipatory self-defense.” Great Britain violated the criterion of necessity. The so-called Caroline criteria include the impossibility of more negotiations and other methods.

The US cannot appeal to threes variants. An armed attack on the US or on a neighboring state of Iraq needing the help of the United States was not imminent and no one in Washington claimed this. A “preemptive war,” a war that nips possible dangers in the bud, is not provided in international law and therefore is prohibited.

Thus the governments in Washington and London did not bring evidence for an immediate Iraqi aggression. Rather both held the Iraq war to be legitimated by citing cumulative evidence and indications of the last twelve years. Thus Saddam Hussein did not legitimate the breach of international law of the current resolution 1441. The American-British burden of proof was derived from inadequate cooperation with UN resolutions of the last decade.

The UN inspectors were not sent into Iraq to seek and find weapons of mass destruction. Seeking was not their task, the governments in Washington and London argued. They were in Iraq only for inspections. Saddam Hussein had to destroy the weapons of mass destruction by himself.

What does Washington hope to establish in international law with this “cumulative proof”? Presumably the neo-conservative Bush administration seeks to enforce a dubious domestic legal practice applied for several years in international law, namely the new American maxim and legal rule borrowed from the popular sport baseball: “Three strikes and you are out.” Lifelong prisoners in America are called “strikers.” This maxim is an invention of Californian criminal law. The rule says whoever commits three criminal offenses is out.

This means: the third crime is automatically punished with 25 years to life even if the first two offenses were only petty offenses like shoplifting. In 1994 this rule was accepted by 72 percent of all Californians. A kind of Blitzkrieg against crime was launched. It seems this rule should now be applied as a legal maxim in YS-led international wars against rogue states. A supposedly sufficient reason for war by the US and Great Britain was constituted by accumulating all lapses, legal infractions and possible circumstantial evidence.

Historians will certainly judge the Iraq war in retrospect as against international law and as an historical turning point in that providing sufficient evidence was never an objective of the aggressive warriors. Rather the two governments aim at a new calibration of the end-means relation in international law. They derive the proportionality of the means to the end of war from a “decade of evidence.”

When the US breaks the norms of the community of states, the norms’ authority cannot be invoked by the US any longer. If the hegemonial power that should guarantee international law ignores this, international law also inevitably becomes weak for other states. How its enforcement is still possible in the name of the law is hard to see. Thus the action of the US touches the fundamentals of the international legal order. Believing this is incidental seems naïve just like believing that the world power US can hold together a complex world order in a single-handed effort on the strength of its superiority. The US could pay a bitter price in the near future for this erosion of international law.