- The Washington Times - Friday, March 21, 2003

The United States and Iraq accused each other of violating international law yesterday, with Baghdad filing a protest at the United Nations and Washington vowing to prosecute the Iraqi regime for placing military targets among civilians.
The Bush administration also expressed concern about the prosecution of U.S. soldiers in Iraq by the new International Criminal Court (ICC) at The Hague.
But administration officials said they felt no urgency to negotiate bilateral agreements exempting Americans from the jurisdiction of the tribunal. Twenty-four countries have already signed such accords.
"It's still an important issue, and we are concerned about an ICC that is not constrained," a senior State Department official said.
But, another official said, "there is no push because of Iraq" to speed discussions with other nations to protect U.S. soldiers and officials under Article 98 of the court's statute.
The United States refuses to participate in the ICC, which held its inaugural session earlier this month, fearing it will be used by U.S. critics to score political points by prosecuting American soldiers on missions abroad.
With reports from Iraq suggesting that President Saddam Hussein's regime has put military personnel and installations among civilians, the State Department declared such moves war crimes that should be prosecuted.
"We think quite clearly that intentionally taking civilians and putting them in harm's way or trying to shield an army by putting civilians around them is clearly a crime that needs to be dealt with," State Department spokesman Richard Boucher told reporters.
A group of 14 international-law experts released a letter calling such practices illegal.
"International laws of war impose duties, to protect civilians, on defending military forces and not just on attackers," said Kenneth Anderson, a law professor at American University who coordinated the drafting and release of the letter under the auspices of the Hoover Institution at Stanford University.
"The United States and its allies have obligations to take precautions to protect civilians, but so does the Iraqi military," Mr. Anderson said.
At the United Nations, Iraqi Ambassador Mohammed Aldouri sent a letter to Secretary-General Kofi Annan maintaining that the U.S.-led attack on his country was an act of aggression in violation of international law.
In addition, Iraq's U.N. mission issued a statement saying it will ask the Security Council to brand the United States a "terrorist state" for trying to assassinate Saddam with its first missile strikes of the war.
The Bush administration defended its actions with familiar arguments, citing three U.N. resolutions demanding Iraq's immediate disarmament that have been defied by Saddam for 12 years.
"The source of this authority is U.N. Security Council Resolution 678, which was the authorization to use force for the Gulf war in January 1991," the State Department's legal adviser, William Taft, said yesterday.
"In April of that year, the council imposed a series of conditions on Iraq, including, most importantly, extensive disarmament obligations as a condition of the cease-fire declared under U.N. Security Council Resolution 687.
"Resolution 1441 then gave Iraq a final opportunity to comply, but stated specifically that violations of the obligations, including the obligations to cooperate fully under 1441, would constitute a further material breach," Mr. Taft told the National Association of Attorneys General.
The last resolution, adopted unanimously in November, warned of "serious consequences" if Iraq failed to comply.
"Historical practice is also clear that a material breach by Iraq of the conditions of the cease-fire provides a basis for the use of force. This was established as early as 1992," Mr. Taft said.
"The United States, the United Kingdom and France have all used force against Iraq on a number of occasions over the past 12 years," he said.
He also maintained that under the U.S. Constitution, the president "has not simply the authority but the responsibility to use force to protect our national security."
"Congress has confirmed in two separate resolutions, in 1991 and again last fall, that the president has the authority to use our armed forces in the specific case of Iraq," he said.
Legal experts, however, are divided on the war's legality, with many saying that the existing U.N. resolutions do not go as far as to authorize the use of force.
The Bush administration tried to get another U.N. resolution to help British Prime Minister Tony Blair in the face of rising domestic opposition to war, calling the effort politically desirable but not legally necessary.
Washington withdrew the resolution without calling for a vote, amid opposition from France, Russia, Germany and other members of the 15-nation Security Council.
"I think you're going to find the historians, legal scholars will have differing conclusions about these matters," White House Press Secretary Ari Fleischer said Wednesday. "But the conclusion the president reaches is that Iraq's failure to disarm presents a threat to the people of the United States and, therefore, he is prepared to use force."

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