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Sunday, March 09, 2003

By Dennis B. Roddy, Post-Gazette Staff Writer

The Bush administration's determination to topple Saddam Hussein has rearranged conventional theories of international law -- the body of treaties and opinions by which nations navigate through conflicts ranging from the rate of tariffs to the throw weight of missiles.

Should President Bush defy the United Nations and launch a war against Iraq, critics say he will violate the U.N. Charter and rules that allow defensive wars only when the U.N. Security Council enacts a resolution of support.

International law experts supporting the president say the definitions of "defensive war" now on the books were written at a time that never envisioned suicide hijackers and terrorist cells that strike with neither warning nor in the uniform of a nation.

"We're dealing with an entirely new phenomenon and the rules have to be flexible enough for us to cover that threat," said Richard Thornburgh, a former U.S. attorney general who also worked as a U.N. undersecretary during the Reagan and first Bush administrations.

Some view such flexible interpretations as mere evasions of rules that threaten to undermine world order.

"It seems to me that the world is probably a safer place if you do have some rules that constrain states when they would like to go to war against another country for whatever reason. I think there is a kind of collective world interest in maintaining those norms," said John Quigley, a professor of law at Ohio State University and a strong critic of the Bush administration's Iraq policy.

Almost all of the argument turns on the U.N. Charter, adopted in 1945. It forbids one state from warring upon another, granting an exception in Article 51 for cases of self-defense -- notably in response to an armed attack. Another section of the charter requires any state that considers itself under threat to seek a resolution of support in the Security Council as opposed to taking unilateral preemptive action.

The United States has invoked Security Council Resolution 1441 as the basis for its assertion that military authorization is necessary. The resolution, passed unanimously on Nov. 8, reasserts an earlier U.N. resolution demanding that Iraq destroy its weapons of mass destruction and refrain from human rights abuses.

"I believe that international lawyers attempted from the very signing of the charter to hijack international law to serve their aversion to the use of force," said Abraham D. Sofaer, former legal adviser to the State Department.

Sofaer cited the example of Kosovo in the former Yugoslavia, where a U.S.-led coalition of NATO forces intervened to stop the expulsion of tens of thousands of ethnic Albanians "even though international lawyers virtually all agreed that the action was unlawful. Ironically, most of those lawyers also agreed that the use of force was necessary, regardless of the fact that Security Council approval could not be secured."

This theory of war as a sort of global act of civil disobedience in the interests of human rights plays against a curious backdrop of mass demonstrations in world capitals against U.S. action.

At the same time, it relies on a theory of law that is barely codified. While the U.N. Charter lays out some rules, other treaties, such as the one that established the International Criminal Court at The Hague, limit jurisdiction to those who signed on. Neither the United States nor Iraq did so.

"It's a set of really basic but flexible rules that are designed to govern nations but don't necessarily do so," said Thornburgh. "If there were indeed an international law, Saddam Hussein would long ago have been called to the bar of justice and we wouldn't have him on our hands."

As it is, when the United States wants to prosecute a national leader, the more likely scenario is one on which Thornburgh signed off as attorney general in December 1989. In that case, the United States, citing human rights abuses, abuses of Americans and involvement in narcotics traffic, invaded Panama, seized dictator Manuel Noriega, and brought him to trial in Miami.

Such tactics might work in the short run, say critics, but they amount to a game of chess as played by a checkers champion.

"The tensions we've created with our allies and with the rest of the world are going to come back and haunt us," said Jules Lobel, a professor of international law at the University of Pittsburgh."Power unconstrained by law can have short-term success. But in the long term I think the history of the last two centuries has shown it's law that brings stability and not raw power."

As stability and power contested before the U.N. Security Council Friday, the Bush administration made clear its willingness to proceed without a resolution authorizing force. Whether that would produce undesirable long-term effects was as unclear as what, precisely, rests in Saddam Hussein's bunkers.

"Everybody talks about this as a bad precedent for international law," said David Bederman, a professor and former State Department adviser at Emory University in Atlanta. "I have a radical theory. Incidents like this don't make for legal precedents."

Part of the reason, says Bederman, is that armed confrontation almost always overwhelms written codes. The other is that in international law "things are deliberately left ambiguous. Constructive ambiguity they call it."

As the week ended, the Bush administration was using it to build a case for war.