The Poisonous Precedent: How the Iraqi Special Tribunal Undermines International Law

By Wolf, Paul | Case Western Reserve Journal of International Law, Spring 2007 | Go to article overview
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The Poisonous Precedent: How the Iraqi Special Tribunal Undermines International Law


Wolf, Paul, Case Western Reserve Journal of International Law


On October 6, 2006, the Frederick K. Cox International Law Center sponsored a public symposium reflecting on the successes and failures of the Saddam trial. The following transcribed speech is excerpted from the daylong event. ([dagger])

TRANSCRIPT:

I would like to thank Professors Bassiouni, Sharf, Ellis, Shabas, and Newton who invited me here. It shows the open-mindedness of the chairs of this symposium that they invited someone with an opposing view. And I really mean that. I will do my best. I am Paul Wolf, an attorney in private practice in Washington, D.C. Let me start by saying I am not a member of the president's defense team. The Iraqi lawyers have no idea who I am. I have helped Curtis Doebbler and Ramsey Clark in defending the Iraqi president, and this is the perspective that I can share with you today.

I think there are about twenty speakers today. I am the only one arguing for the defense. I only have twelve minutes, so I will have to be brief. I will start by making a proposal for you to consider. It has three parts. Number one: America apologizes for the war in Iraq. Number two: Saddam Hussein is reinstated as president. Number three: in return, the president agrees to restore order. He is the only person in the world who can do it. The U.S. should get out of there.

Please think about that while I use the balance of my time pointing out the main problem with this trial. And then I hope you'll ask me questions in the sessions that follow. I titled my talk The Poisonous Precedent because I think that is the main issue. What kind of precedent will this set for the future? If this is the trial of the century, as some of you are saying, what kind of a century will it be? A century of war?

I hope it is clear that Iraq did not have weapons of mass destruction. Iraq did not have a nuclear weapons program. Iraq was not supporting al Qaeda. Iraq was not behind the attacks of September 11. Iraq had been blockaded for twelve years and could not threaten the United States in any way. In 1991, after the Gulf War, the United States and Iraq agreed to a ceasefire. The terms were set forth in UN Resolution 687. Iraq never violated them. This ceasefire was still in force when the U.S. attacked Iraq in March of 2003.

Under Chapter VII of the U.N. Charter, only the Security Council can authorize military attacks to enforce U.N. resolutions. Otherwise, the use of military force is only permitted in self-defense. The Security Council did not authorize the U.S. war in Iraq. If you do not believe me, ask Vladimir Putin. Ask Jacques Chirac. Ask Jiang Zemin, the Chinese prime minister. All of them opposed the American attack. On March 5, 2003, France, Germany, and Russia issued a joint statement vowing to block any U.N. resolution authorizing the use of force. Two weeks later, America began the shock and awe bombing campaign. People claim that the U.N. Security Council authorized the shock and awe, and the deaths of thousands of people. It did not.

Now, you all know that international agreements, like U.N. resolutions and treaties, are interpreted as contracts between states. You look at the objective intent, the meeting of the minds, in this case among the members of the Security Council who signed Resolution 1441. Three permanent members said they never authorized the use of force. Russia, China, and France each have a veto. John Negroponte, the U.S. ambassador to the U.N., said Resolution 1441 contained no "hidden triggers" and no "automaticity" with regard to the use of force. That was John Negroponte who said that. There's the objective intent. Of course, you should also look at the plain language of the resolution itself. It did not authorize the use of force. It made references to "consequences" and "serious consequences" but said nothing about a U.S. attack.

The International Court of Justice has held that preemptive attacks violate customary international law as well as the U.

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