Other view: Suddenly Bush believes in international law

By Steve Feldstein -- Special to The Bee - (Published March 31, 2003)

On March 17, 48 hours before the United States would begin the invasion of Iraq, President Bush addressed the nation and laid out his reasons for war. In his speech, he issued a stern warning to Iraqi soldiers not to destroy oil wells. He emphasized that "war crimes will be prosecuted. War criminals will be punished. And it will be no defense to say I was just following orders." On March 21, Defense Secretary Donald Rumsfeld reiterated the message.

Thus in an ironic twist, an administration that was best known for un-signing its involvement in the International Criminal Court, and for its general disinterest in war crimes prosecutions, had suddenly adopted war crimes tribunals as a primary tool of foreign policy. The question now is whether, from a legal perspective, the United States is justified in prosecuting Iraqi soldiers who set oil wells ablaze. The short and somewhat surprising answer is: most likely, yes.

The United States is no stranger to war crimes tribunals. In fact, it is primarily responsible for ushering in the current age of postwar jurisprudence when it established tribunals in Nuremberg and Tokyo to hold Nazi and Japanese leaders accountable for their actions in World War II. Under the Nuremberg Charter, three categories of activities were grounds for prosecution: crimes against peace (whether recourse to war by a state was justified); crimes against humanity (whether civilians and other noncombatants were targeted); and war crimes (violations of the laws and customs of war, such as the treatment of prisoners of war).

Since Nuremberg, the International Criminal Tribunal for the former Yugoslavia was set up by the United Nations in 1993 to address war crimes in the Yugoslav conflict; the International Criminal Tribunal for Rwanda was established to address the aftereffects of genocide in Rwanda; and in July 2002, the International Criminal Court (ICC) was set up to prosecute alleged dictators and war criminals for the most serious crimes, including genocide. Each tribunal uses its own legal standard for determining what is and is not a war crimes violation.

I am using the legal standard set by the ICC in assessing whether the United States has a legitimate case against Iraqi soldiers who commit "crimes of oil." Even though the United States refuses to participate in the actual ICC system, the ICC's legal standard incorporates the Geneva Conventions and Genocide Convention (both signed by the United States), and is universally recognized as the legal standard for determining war crimes violations.

Within the category of war crimes, the ICC specifically prohibits: "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly." Under this standard, the Bush administration can indeed pursue a war crimes charge against responsible Iraqi soldiers. As long as it can prove that burning oil wells is not related to military necessity and is extrinsic to Iraqi defense efforts, then the charge should stick.

Nonetheless, something doesn't feel right about equating war crimes with oil well fires. Maybe it's because Saddam Hussein and his regime have committed international law violations, such as attacking the Kurds with chemical weapons and rampant and systematic torture of opponents and dissidents, that far exceed setting fires. Further, such an undue emphasis on crimes of oil raises again the question of whether the war really is about securing a stable and unfettered oil supply: Is the rhetoric about weapons of mass destruction and Saddam's bankrolling of terrorists just talk?

The Bush administration may have sufficient justification in international law to prosecute Iraqi soldiers for setting oil wells ablaze. That doesn't mean it should. The administration must be consistent -- if it decides to try crimes of oil, it must not overlook Saddam's alleged human rights abuses.

Another caution is, if the administration really wants to set up tribunals that are viewed as fair and legitimate, it must refrain from administering "victor's justice," where only Iraqi soldiers are tried with war crimes. Instead, it should hold all parties on the battlefield accountable for their actions -- and if U.S. soldiers commit atrocities, then they should face the law as well.

Finally, from an international law perspective, the United States should rethink its position of prosecuting war crimes while simultaneously refusing to participate in the ICC. Most of the world has signed onto the institution, viewing it as the best way to insure that war crimes are minimized and civilians left unharmed. The United States must remember that there is nothing more unjust than one-sided justice.

Steven Feldstein is a second-year student at the Boalt Hall School of Law at UC Berkeley. He has worked for the International Rescue Committee nonprofit in Rwanda and Croatia. He can be reached at feldsten@hotmail.com.