International law starts to bring Washington back into the fold
Simon Tisdall
Friday March 11, 2005
The Guardian
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 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 Guantánamo 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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