Distinguishing between war crimes and war as a crime, by Abdelwahab El-Affendi aljazeerah.info

aljazeerah.info Opinion Editorials

Distinguishing between war crimes and war as a crime

Abdelwahab El-Affendi, Daily Star, 3/25/03

Calling the present conflict over Iraq a “war” may stretch the use of metaphor a bit too far. Both anti-war protesters and the proponents of the use of force are clearly aware of this. War is its own deterrent, and peaceful protests are not usually needed to point out to the perpetrators of war the high cost they have to pay for launching or sustaining it.
But the proponents of conflict do not see this as a war, as merely a “police action” to put an end to an ongoing crime and apprehend its perpetrators. As in police raids, it is anticipated that the targets for “arrest” will be taken by surprise and are not expected to put up a fight. If they did, they would be no match to their proportionately larger and better-equipped opponent.
Opponents of war are concerned that this very concept of war as a police raid is premised on the use of disproportionate force to avoid any direct confrontation and losses to troops. This, in turn, would entail wide-scale bombing and untold civilian casualties and destruction.
US and British leaders are hoping to answer their critics by launching a “swift war” and a relatively “clean” one. As indicated by the early stages of this campaign, they hope to avert full-scale war by decapitating the regime and inducing the bulk of the troops to surrender once the leadership is eliminated. Scenes of jubilant Iraqis welcoming their liberators would then offer the definitive answer to their critics.
The leaders may yet get what they bargained for. It is not a farfetched claim to anticipate a quick collapse of the over-centralized and deeply unpopular Iraqi regime following a series of well-targeted blows and a quick ground offensive. Not many Iraqis are keen to die defending Saddam Hussein and his oppressive regime. The jubilant scenes on the streets are also likely to materialize and be genuine enough. This does not, however, answer the fundamental questions regarding the legality of this kind of attack.
A number of legal experts in Britain have expressed the opinion that a British-American attack on Iraq without explicit UN Security Council authorization would be unlawful, given that the UN Charter prohibits aggression against member nations except in self-defense or with an explicit authorization from the Security Council. In which case, those guilty of engaging in such a war could be prosecuted for war crimes, either in the International Criminal Court or in British courts. Victims of such a war, including businesses that suffered losses as a result, could also be entitled to lodge civil suits against the political and military leaders involved.
The British government and its legal experts countered by producing a legal opinion that, in their view, confirms the legitimacy of their campaign. A complex act of juggling is involved.
According to this opinion, Security Council Resolution 678, which authorized the use of force against Iraq to liberate Kuwait in 1990, could be the basis for the current action. But that resolution authorized action to restore peace and security in a situation of conflict, while the current action is in effect meant to disturb an existing peace. It has also been superseded by Resolution 687, which suspended hostilities.
The British government’s legal experts counter that Resolution 1441 of last November offers the missing link, since it mentions that Iraq is in breach of its obligations under No. 687, which in turn reactivates that resolution. Critics in turn dismiss these arguments, since 1441 explicitly requires a return to the Security Council before any action is taken under it, while reactivating an old resolution superseded by others requires a new resolution.
American leaders, by contrast, are not at all concerned about the legality of their actions. America does not recognize the International Criminal Court, and it was only pressured into appealing to the UN by its British allies. The prospect of their war being illegal thus does not bother US officials in the least. No one is likely to hold them accountable, and whoever tries could be threatened with bombing.
The deeper issue of the morality of the war is another matter. Both US President George W. Bush and British Prime Minister Tony Blair argue vehemently that their war is morally justified. For Bush, it is an act of self-defense which is simultaneously an act on international benevolence: ridding Iraq of its weapons of mass destruction safeguards American security, while removing Saddam’s dictatorial regime helps promote democracy and peace in the region.
These arguments have been reiterated endlessly, with dubious shifts that cast serious doubts on their sincerity. But this is not the issue. The main question here regards the character of this “war,” in which in fact all victims are “civilians.” The Iraqi military itself is as harmless as civilians, since it does not have the means to inflict any harm on the invading forces. The invading forces will remain out of reach while it bombs targets from afar. And if deliberate attacks on harmless civilians are a war crime, then this whole campaign classifies as one sustained and pre-meditated war crime.
In a telling line of argument, some American and British officials have recently taken to justifying this “war” in terms of earlier atrocities. According to one version, the war is necessary in order to help lift the sanctions against Iraq, which have harmed civilians. It is to be recalled that when challenged on the immorality of these sanctions in the past, key American officials had made the brazen admission that the resultant death of over half a million Iraqi children was a “price well worth paying” to contain the Iraqi regime. Today, the argument has changed: These sanctions are harmful and have to be lifted. But only a war that removes Saddam could have them lifted.
One must give credit where credit is due. The Blair regime’s spin-doctors have turned a shameful episode of immoral conduct into the justification for new illegal and immoral conduct. This does not make immoral acts legitimate; it only takes them to a new level of immorality. But we are now in a new phase in which the morality of any new attack by superior forces on practically unarmed opponents becomes the subject of a big question mark.

London-based Abdelwahab El-Affendi is a Senior Fellow at the Center for the Study of Democracy, University of Westminster.

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