Global Policy Forum

By Thalif Deen

The United States and allies who attack Iraq without United Nations sanction could face international legal action, even though Washington has opted out of the new International Criminal Court (ICC), experts and peace activists said Thursday.

''For the first time since the end of the cold war, an act of deliberate aggression is being advanced under the pretext of legality by a major power,'' James E. Jennings, president of Conscience International, told IPS.

''The U.S. refusal to join the International Criminal Court will not permit its leaders to escape trial before a world court and other international tribunals on war crimes charges,'' he warned. Jennings said that an attack on Iraq in the absence of an enabling Security Council resolution would constitute a violation of the U.N. charter, the Universal Declaration of Human Rights, the Geneva Conventions and other international obligations.

The United States has said that it is prepared to go to war with a ''coalition of the willing'' - about 12 unnamed military allies, reportedly including Britain, Canada, Australia, Kuwait and Qatar. The London Guardian said last month that if Britain uses force, it would be the first time that British soldiers and their political superiors would be subject to ICC jurisdiction.

''But while the British citizens could be hauled up before the ICC, the real protagonists - the United States and Iraqi nationals - cannot be,'' the newspaper said. Neither nation signed on to the statute that created the ICC last year. A U.S. attack without Security Council authorization would not only undermine the United Nations but also jeopardize countries joining the military coalition, said Michael Ratner, president of the Center for Constitutional Rights.

''We, along with lawyers from the U.K. and Canada, have already sent letters to those countries and the United States warning them of the consequences of violating the Geneva conventions,'' he said. The United States and other nations violated the conventions in the 1991 Gulf War and the 1998 attacks on Kosovo, he added.

''With regard to the U.K. and Canada (and Australia), we said we would bring evidence of such violations to the ICC,'' Ratner said. U.S. officials could be prosecuted in certain countries because such crimes are subject to universal jurisdiction, he added.

At a meeting of the Security Council on Monday, an overwhelming majority - 11 out of 15 members - wanted to give more time to U.N. arms inspectors to continue their search for weapons of mass destruction in Iraq, instead of going to war. The United States, which is skeptical about continued arms inspections, has threatened to launch a military attack on Baghdad even without the blessing of the world body.

U.S. Secretary of State Colin Powell has promised to provide the Security Council with more ''evidence'', based on U.S. intelligence, of Iraq's weapons programs next Wednesday. U.N. Secretary-General Kofi Annan told reporters Thursday that U.N. arms inspectors have made it clear that they would appreciate receiving ''actionable information'' from all governments that have it. ''They have received some and I hope they would also use whatever information that is given next week that will be helpful for their work,'' he added.

Washington has indicated that it plans to go ahead with an attack on Iraq even if it does not win new converts on the Security Council. ''Given the U.S. and British desire for the Security Council to take the unprecedented step of authorizing the use of force to actually overthrow the government of a member state, there is understandable reluctance to do so unless the evidence of Iraqi non-compliance is significant and undeniable,'' Stephen Zunes, a Middle East expert and associate professor of politics at the University of San Francisco, told IPS Thursday.

More time is needed for inspectors get a clearer assessment of Iraqi compliance, including to determine if the Iraqi reluctance to be more forthcoming is because officials are deliberately hiding significant information or because of sloppy record keeping, political posturing or other reasons, he said. ''There may also be a sense that, even if Iraq does have proscribed materials hidden somewhere, the ongoing presence of inspectors and the concomitant international attention would make it impossible for Iraq to develop or deploy significant offensive weapons of mass destruction capability,'' Zunes said.

In other words, he argued, though the United Nations and its arms inspectors may not be able to force total disarmament of Iraq, they will have effectively forced functional disarmament, which is ultimately what matters. Asked about the vulnerability of coalition members to ICC charges of war crimes, Zunes said, ''My impression is that the ICC would only bring such charges if there was evidence of pre-meditated and deliberate atrocities.''

''Given that there are plenty of perpetrators of deliberate massacres still un-indicted, I believe that there would be a reluctance to extend the reach of the ICC to prosecute soldiers who accidentally kill civilians in the course of a war.'' At the same time, he said, there are serious moral and legal questions regarding accidental civilian casualties in war that will have to be addressed in the future and the ICC would seem to be a logical venue to do that.

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