The crime of war: from Nuremberg to Fallujah
By Nicolas J S Davies
Jan 3, 2005, 22:16


A review of current international law regarding wars of aggression, and its implications for U.S. policy in Iraq and elsewhere

In September, U.N. Secretary General Kofi Annan told the BBC that the U.S./British invasion of Iraq was illegal under international law [1]. The following week, he dedicated his entire annual address to the U.N. General Assembly to the subject of international law, saying, "We must start from the principle that no one is above the law, and no one should be denied its protection." So, how was the invasion of Iraq illegal? How does that affect the situation there today? And what are the practical implications of this for U.S. policy going forward, in Iraq and elsewhere?

The Secretary General presumed what the world generally accepts, that international law is legally binding upon all countries. In the United States however, international law is spoken of differently, as a tool that our government can use selectively to enforce its will on other nations, or else circumvent when it conflicts with sufficiently important U.S. interests. For the benefit of readers in the U.S., I therefore feel obliged to preface a review of war crime in Iraq with a look at the actual legal status of international law, both in international terms and in terms of our own national framework of constitutional law.

When the president of the United States signs a treaty and it is ratified by the U.S. Senate, our country is making a solemn undertaking. The seriousness of such commitments is exemplified by the Nuremberg War Crimes Trials and subsequent international trials, in which individual national leaders have been held criminally responsible for treaty violations and, when convicted, have been sentenced to long terms of imprisonment or even death by hanging. In our own constitutional system, Article VI Clause 2 of the United States Constitution, known as the "Supremacy Clause," grants international treaties the same "supreme" status as federal law and the Constitution itself. It reads:

    "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

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The balance of this article can be found here.

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