Global sheriff is slowly gaining on the US and its cavalier way with the law

By Simon Tisdall


03/11/05 "The Guardian" - - In the opinion of many legal experts, the US government broke international law when it waged war on Iraq without explicit UN backing. Unrepentant, it has reserved the right to take similar action again, unilaterally if need be. But another key pillar of global jurisprudence - laws concerning individual liberty, dignity and human rights - is proving harder for Washington to ignore: like a sheriff with a posse of deputies, international law is slowly catching up with the Bush administration.


Despite its hostility to the international criminal court, the US may soon be forced by a UN security council majority to refer war crimes prosecutions in Sudan to the International Criminal Court. Diplomats say that would represent a big boost for supranational criminal justice.

Last week's US supreme court decision to abolish the death penalty for offenders under the age of 18 was partly a response to global opposition to capital punishment which the Bush administration has refused to heed. But from an internationallegal standpoint, the ruling in effect dragged the US into line with a key provision of the 1990 UN convention on the rights of the child.

In another test case, concerning Mexican citizens held on death row in Texas, the White House bowed this month to a ruling by the world court in The Hague, whose authority it has rejected in the past. The court said that the denial of consular assistance to the defendants, in breach of the 1969 Vienna convention, could have prejudiced their trials.

Despite its distaste for any international legal body or instrument that presumes to overrule the US constitution, the Bush administration has now belatedly ordered a judicial review.

Areas in which the US government or its agents have traditionally assumed legal immunity when acting in the national interest are also coming under challenge.

The American Civil Liberties Union, representing eight Afghan and Iraqi former detainees, is suing the US defence secretary, Donald Rumsfeld, and three army commanders for allegedly ordering "the abandonment of our nation's inviolable and deep-rooted prohibition against torture or other cruel, inhuman and degrading treatment".

Like the Guantánamo Bay controversy, the lawsuit is based on the contention that abuses at Abu Ghraib prison in Iraq, and Bagram jail in Afghanistan, not only breached the US constitution but also the Geneva and other UN conventions.

A legal precedent for holding top decision-makers, such as Mr Rumsfeld, responsible already exists in a supreme court ruling that says that the most senior Japanese military officials were ultimately to blame for abuses of allied prisoners of war during the second world war.

A multibillion-dollar class action now before a Brooklyn court has potentially even broader implications for US adherence to international law. The civil suit, brought on behalf of several million Vietnamese people, alleges that US chemical companies, including Monsanto and Dow Chemical, committed war crimes by supplying the government with Agent Orange in the Vietnam war. The toxic herbicide was extensively used by US forces, and is widely blamed for continuing birth defects, cancer and other serious health problems in Vietnam.

The companies have argued, in effect, that they were only following orders. But Judge Jack Weinstein suggested a parallel with Zyklon B, the gas used in Nazi death camps. Two Zyklon B manufacturers were convicted of war crimes and executed by the US and its allies after 1945.

The US justice department decried the Agent Orange lawsuit as "dangerous" and "astounding". A government court submission said: "The implications of the plaintiffs' claims ... would, if accepted, open the doors of the American legal system for former enemy nationals and soldiers claiming to have been harmed by US armed forces."

Yet it is precisely to avoid such chaotic scenarios that post-Iraq UN reformers want an agreed system of international rules governing war and peace.

At the Royal Institute of International Affairs this week, Philippe Sands QC suggested that the nomination of the hardline unilateralist John Bolton as US ambassador to the UN might further encourage Washington's disregard for international law.

Professor Sands warned that many in Washington remained committed "to remaking the international order to suit American interests and American values".

But as human rights law continues to develop beyond the reach of executive power, the future waging of unjust or illegal wars could become an increasingly problematic and costly forensic business.


The Guardian, 11-03-2005

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