- In the opinion of many legal experts, the US government
broke international law when it waged war on Iraq without explicit UN backing.
Unrepentant, it has reserved the right to take similar action again, unilaterally
if need be.
-
- But another key pillar of global jurisprudence - laws
concerning individual liberty, dignity and human rights - is proving harder
for Washington to ignore: like a sheriff with a posse of deputies, international
law is slowly catching up with the Bush administration.
-
- Despite its hostility to the international criminal court,
the US may soon be forced by a UN security council majority to refer war
crimes prosecutions in Sudan to the ICC. Diplomats say that would represent
a big boost for supranational criminal justice.
-
- Last week's US supreme court decision to abolish the
death penalty for offenders under the age of 18 was partly a response to
global opposition to capital punishment which the Bush administration has
refused to heed. But from an internationallegal standpoint, the ruling
in effect dragged the US into line with a key provision of the 1990 UN
convention on the rights of the child.
-
- In another test case, concerning Mexican citizens held
on death row in Texas, the White House bowed this month to a ruling by
the world court in The Hague, whose authority it has rejected in the past.
The court said that the denial of consular assistance to the defendants,
in breach of the 1969 Vienna convention, could have prejudiced their trials.
-
- Despite its distaste for any international legal body
or instrument that presumes to overrule the US constitution, the Bush administration
has now belatedly ordered a judicial review.
-
- Areas in which the US government or its agents have traditionally
assumed legal immunity when acting in the national interest are also coming
under challenge.
-
- The American Civil Liberties Union, representing eight
Afghan and Iraqi former detainees, is suing the US defence secretary, Donald
Rumsfeld, and three army commanders for allegedly ordering "the abandonment
of our nation's inviolable and deep-rooted prohibition against torture
or other cruel, inhuman and degrading treatment".
-
- Like the Guant·namo Bay controversy, the lawsuit
is based on the contention that abuses at Abu Ghraib prison in Iraq, and
Bagram jail in Afghanistan, not only breached the US constitution but also
the Geneva and other UN conventions.
-
- A legal precedent for holding top decision-makers, such
as Mr Rumsfeld, responsible already exists in a supreme court ruling that
says that the most senior Japanese military officials were ultimately to
blame for abuses of allied prisoners of war during the second world war.
-
- A multibillion-dollar class action now before a Brooklyn
court has potentially even broader implications for US adherence to international
law. The civil suit, brought on behalf of several million Vietnamese people,
alleges that US chemical companies, including Monsanto and Dow Chemical,
committed war crimes by supplying the government with Agent Orange in the
Vietnam war. The toxic herbicide was extensively used by US forces, and
is widely blamed for continuing birth defects, cancer and other serious
health problems in Vietnam.
-
- The companies have argued, in effect, that they were
only following orders. But Judge Jack Weinstein suggested a parallel with
Zyklon B, the gas used in Nazi death camps. Two Zyklon B manufacturers
were convicted of war crimes and executed by the US and its allies after
1945.
-
- The US justice department decried the Agent Orange lawsuit
as "dangerous" and "astounding". A government court
submission said: "The implications of the plaintiffs' claims ... would,
if accepted, open the doors of the American legal system for former enemy
nationals and soldiers claiming to have been harmed by US armed forces."
-
- Yet it is precisely to avoid such chaotic scenarios that
post-Iraq UN reformers want an agreed system of international rules governing
war and peace.
-
- At the Royal Institute of International Affairs this
week, Philippe Sands QC suggested that the nomination of the hardline unilateralist
John Bolton as US ambassador to the UN might further encourage Washington's
disregard for international law.
-
- Professor Sands warned that many in Washington remained
committed "to remaking the international order to suit American interests
and American values".
-
- But as human rights law continues to develop beyond the
reach of executive power, the future waging of unjust or illegal wars could
become an increasingly problematic and costly forensic business.
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- Guardian Unlimited © Guardian Newspapers Limited
2005
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- http://www.guardian.co.uk/
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