Some issues of international law and genocide

Richard Fidler rfidler at
Fri Feb 21 08:46:51 MST 2003

À propos Mark Jones' post, here is an item I sent to the list a couple weeks
ago, but it bounced (Les said it was in HTML).

The projected private prosecution described below is a good idea, but its
political potential is seriously undermined by the loophole these
left-liberal lawyers provide for a UN-endorsed military assault on Iraq. As
Mark notes, even war under cover of a Security Council resolution will be a
war crime by any moral standard consistent with the Nuremburg judgments.

Michael Mandel, one of the initiators of Lawyers Against War, was the
initiator of the earlier (and of course unsuccessful) attempt to get the
Hague Tribunal to prosecute NATO leaders, including Clinton and Chrétien,
for war crimes in their assault on Yugoslavia. They later staged a citizens'
trial of the defendants with the collaboration of Ramsey Clark among others,
but the "trial" and "conviction" were virtually blacked out in the mass

It is likely that the Security Council will ultimately give the White House
and its allies the formal go-ahead, once all the maneuvering and blackmail
of the various powers is completed. It will be an object lesson in how
international law is trumped by imperialism.

Georgia Straight   February 6-13, 2003

Peace group warns Chrétien

By Charlie Smith

An international group called Lawyers Against the War has claimed it will
prosecute Prime Minister Jean Chrétien for war crimes and murder if Canada
joins any "illegal" attack against Iraq.

Vancouver lawyer Gail Davidson, a cofounder of LAW, told the Georgia
Straight that her organization would also likely lay charges against
Canadian military leaders, Defence Minister John McCallum, and Foreign
Affairs Minister Bill Graham if Canada attacks Iraq in the absence of a
legally valid United Nations Security Council resolution.

"We would be pursuing prosecutions of the responsible people," Davidson

She  said that a "huge change" occurred on July 1, 2002, when the
International Criminal Court came into existence, establishing criminal and
legal responsibility for people who conduct and authorize illegal military
actions. Canada has ratified the Rome Statute of the International Criminal
Court and passed "companion legislation" in Canada called the Crimes Against
Humanity and War Crimes Act.

As a result, Davidson said, it¹s possible to prosecute officials who order
illegal military actions, including the use of cluster bombs, carpet
bombing, spreading depleted uranium, bombing electrical and water
facilities, and bombing schools, hospitals, and villages. "All those things
are now crimes for which a person could and hopefully would be prosecuted -
if not in their own country, by the International Criminal Court," she said.

Davidson said her group would start by bringing evidence of "reasonable and
probable grounds" of war crimes and murder before a provincial court judge
or a justice of the peace.

"The International Criminal Court is a court of complementary jurisdiction,"
Davidson said. "If we were unable to get a court to pay attention in Canada,
that would initiate our right then to go to the office of the prosecutor in
the International Criminal Court."

On January 23, Davidson and the other founder of LAW, Osgoode Hall law
professor Michael Mandel, sent a warning letter and a legal brief to
Chrétien¹s office. Their letter stated that without a valid UN Security
Council resolution, any attack on Iraq would constitute "an illegal,
aggressive war, an act condemned by the Nuremburg Tribunal as 'the supreme
international crime'".

Their letter also stated that Canada's participation in such a war would
constitute "murder" under the Criminal Code of Canada, as well as a "crime
against humanity" under the Crimes Against Humanity and War Crimes Act.

"You, sir, are a lawyer and you know that intentionally killing anyone
without lawful justification is murder," Davidson and Mandel wrote. "You
also know that liability for domestic crimes and for war crimes is personal,
and that the official position of the criminal, whether Head of State, Head
of Government like yourself, or Minister like Mr. McCallum, confers no
immunity whatsoever from punishment."

The Prime Minister¹s Office did not return the Straight's call.

A group called Physicians for the Prevention of Nuclear War has estimated
that a minimum of 48,000 Iraqis, mostly civilians, would die in a U.S.­led
war against Iraq. A leaked United Nations "draft" document last December
estimated 100,000 "direct" casualties and 500,000 "indirect" casualties in
any military campaign against Iraq, in part because "the outbreak of
diseases in epidemic if not pandemic proportions is very likely".

Davidson said that the United Nations charter only permits military force in
self-defence and prohibits the use of aggression to settle international
disputes. She added that the charter states that the UN¹s "purpose" is to
maintain international peace and security.

"The Security Council is given the supreme authority to maintain
international peace and security," she said. "And the Security Council
hasn¹t authorized military action against Iraq."

Davidson said that even if the Security Council passed a resolution
approving the use of force, it would be legally valid only if there was a
"proven threat" to international peace and security and all peaceful means
had failed to contain the threat. She claimed that the use of force must be
proportionate to the threat.

"The UN charter includes a specific prohibition against the use of military
force to effect regime change," Davidson said.

On November 29, 1990, the UN Security Council passed Resolution 678, which
set a deadline for Iraq to comply with an earlier resolution demanding it to
withdraw from Kuwait. This resolution granted UN members "to use all
necessary means to restore international peace and security in the area".
This provided the legal authority for the 1991 Gulf War.

Davidson said the UN has not granted authority for military action in
Resolution 1441, which deals with UN weapons inspections.

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