HEADLINE:   A advocates

PUBLICATION: Cape Times

PAGE NUMBER: 9

AUTHOR:     Zubeida Jaffer

DATE:       2003-05-08 08:31:56

US has violated legal precedents set by itself in Nuremberg, say SA advocates

Robert Fisk of The Independent in London has made an awful prediction. That America's war of "liberation" in Iraq is over. That its army of "liberation" has turned into an army of occupation. That Iraq's war of liberation from the Americans is about to begin.

Will these events make it impossible to soberly consider the legal implications of this war for the world? Not if a group of South African advocates have their way. They are exploring ways of holding the coalition governments and chiefs of staff accountable for a violation of international law.  

"Over the last 50 years, the world has worked out principles for when it is in order to go into another country," said Michael Donen, a member of the Cape Bar. "These leaders must be held accountable in terms of laws they themselves have fashioned."

The advocates also say that any South African who fought in the war on Iraq, on whichever side, can be prosecuted in terms of SA law.

Speaking at a public meeting in Wynberg last week, Donen and advocate Anwar Albertus said they were studying the terms of various legal agreements binding South Africa to assess whether such legal action could be brought locally.

South Africa's legal system is based on the notion of territoriality, they say. Unlike Germany, it cannot prosecute for crimes committed outside its borders. "What we can do," said Albertus, "is to prosecute in terms of customary international law that forms part of South African law."

The international law of war involves the law governing your going to war in the first place (ius ad bellum), and the law governing what is done when you are there (ius in bello). "The coalition has flagrantly breached the first and subtly avoided the second," said Donen.

While the US has squashed all attempts to make it accountable to the International Criminal Court, it remains tied in with international precedents of customary law.

The two key components that Donen and Albertus examine are the Nuremberg Principles and the 1928 "Pact of Paris".

They said that when the Nuremberg Tribunal dealt with the question of Germany's invasion of Norway, those accused claimed the invasion amounted to preventive action in foreign territory. The tribunal rejected this defence and held that preventive action could only be justified in cases of "an instant and overwhelming necessity for self-defence leaving no choice of means and no moment of deliberation". Said Donen: "No-one, not even Donald Rumsfeld, would suggest that this was the situation the coalition faced."

The accused at Nuremberg also claimed that the invasion of another sovereign state was not a crime under international law at the beginning of the war.

This defence was rejected because Germany had been a party to the general treaty for the renunciation of war of August 27, 1928, more generally known as the Pact of Paris. "It bound 63 nations, including Germany, Japan and the US by the outbreak of war in 1939," said Donen. "It still binds the US."

Ironically, the US secretary of state at the time, Henry L Stimson, said in 1932 that the US denounced as a law breaker any nation that resorted to war in violation of this treaty. The Nuremberg Tribunal agreed with him.

At Nuremberg, it was the US representative and chief prosecutor, Robert H Jackson, who said that the tribunal represented the practical effort of four of the most mighty nations, with the support of 15 more, to use international law to meet the greatest menace of our times - aggressive war. "One of the charges against the defendants was planning, preparing, initiating and waging a war of aggression or a war in violation of international treaties," said Donen.

Jackson stated publicly and was very clear on this point, according to Donen, that the law of Nuremberg would also bind the powers that were sitting in judgment, including the US and Great Britain. "These powers must now be held to their word," said Donen.

Both Donen and Albertus said that they shared the concern of all humanity about the tyrannical oppression which the Iraqi people had suffered in the past and were committed to protecting their human rights. 

They nevertheless advised that this was no reason to turn a blind eye to the violations of international laws and treaties by those who fashioned them. With the assistance of individual lawyers in South Africa and abroad, they are committed to exploring the possibility of holding the most powerful to account for committing crimes against the peace.

This effort, while legally possible, may be tenuous politically. It will focus attention on the neo-conservatism of the US, which some argue threatens that country's constitutional foundations. It, however, represents a fragment of an ordered response within the present disorder that has led Fisk to make his awful prediction. 

May their efforts and other lawful efforts the world over stand in contrast to the lawlessness that threatens present relations between nations.

l Jaffer is a freelance journalist and works as a political analyst for the Institute for Justice and Reconciliation (IJR). This article is part of a monthly IJR series published in the Cape Times.