Military Intervention in Iraq and International Law

Interview With Ronald Rychlak, Vatican Delegate to International Court

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ROME, MARCH 30, 2003 ( Amid the debates over the legality, or lack thereof, of the U.S.-British military intervention in Iraq, ZENIT interviewed Ronald Rychlak, Vatican delegate to the International Criminal Court.

Rychlak is also associate dean for academic affairs of the University of Mississippi.

Q: Does it make sense to talk of a system of international laws or, in a world still dominated by nation-states, does a lot still depend on a mutual consensus reached at the political level?

Rychlak: I think you are right in your implication. Treaties, agreements and even United Nations resolutions all depend to a significant degree on mutual consensus.

If one party to a treaty decides to violate it, the options for the other party, beyond unilateral retaliation — which may range from a very minimal economic retaliation to war — really depends on the willingness of the offending party to assent to something like the jurisdiction of the International Court of Justice.

Q: There are a number of institutions intervening in legal matters at the international level: the International Court of Justice, the World Trade Organization in trade disputes, etc. Yet often their decisions are ignored. In terms of enforcement of international laws, how do you see the future?

Rychlak: For these organizations to be effective, they must present themselves in such a way that all parties recognize their validity and the importance of cooperation with them.

Unfortunately, political decisions sometimes affect these institutions, giving nations a reason — at least facially valid — for questioning the legitimacy of the institution or its ruling. Unless we are willing to give these institutions real police power — and I do not think we are anywhere near willing to do that — they will remain occasionally helpful but limited in real authority.

Q: Many countries have said military action, apart from strict self-defense, must be authorized by the U.N. Security Council. The United States and Britain defend the action against Iraq as being justified by previous Security Council resolutions. Others point out the difficulty of establishing clear legal principles governing war. Who is right?

Rychlak: Two military actions in all of history have been authorized by the Security Council — Korea and the Gulf War.

Some people think that we are moving into an era of when the Security Council should more often, if not always, be the entity to decide these matters. I think that is a bit unrealistic.

Whether it is due to its own unwillingness to enforce its resolutions or the U.S.-British decision to move ahead without U.N. approval, it seems that the Security Council’s authority in this area has been seriously weakened.

All Americans would feel better if the U.N. backed this war, but I do not think that most nations are willing to cede the authority to declare war to any international agency.

Q: International humanitarian law is a rapidly growing area. Now that the International Criminal Court is set to commence its activities, what developments do you see in the near future? What effects will the refusal by the United States to adhere to this institution have?

Rychlak: The ICC is a tool. Handled properly, it can help bring justice to the world — primarily by bringing tyrants to justice.

At the same time, the court could be the cause of great mischief. I think we can anticipate many efforts to use the court to shape the policies of independent nations.

All institutions need to be managed by caring and competent humans. The ICC tries to assure justice by creating a mathematical formula that minimizes human discretion. National amnesties will not be recognized; all wrongdoers will be prosecuted. In some cases — South Africa and Chile come to mind — such an approach, by which human discretion is eliminated, may lead to more bloodshed, not less.

I am also doubtful that true evildoers will be deterred by the threat of a prosecution in the ICC. Such a prosecution would come with lawyers, due process, and no threat of a death penalty.

I am not advocating that the court adopt a death penalty, but deterrence is usually measured based upon certainty of punishment and severity of punishment. The ICC seems to increase neither, compared to what a tyrant like Mussolini faced.

Q: Do you think the Muslim world can make any significant contributions to international law?

Rychlak: Absolutely. We cannot know what the future will hold, but there is at least the hope that following the current war, nations in the Mideast will flourish, and we will all enjoy peace and prosperity.

At such time, those nations could make important contributions, as they have in past times. When it comes to protecting unborn life, for instance, the Arab nations are often closely allied with the Holy See.

Q: In a historical perspective, how does the behavior of the United States vis-à-vis Iraq compare to the behavior of other countries in pursuing their own military strategies?

Rychlak: Being isolated as it is, compared to Europe, America has not often fought wars to defend its borders. More often, at least in the past 100 years, America has fought for ideas, principles, or to come to the aid of others around the globe.

Because our national interests are not always obvious, there is a significant movement within the nation towards isolationism. In other words, since these bad things are happening «over there,» why should we get involved? There is, of course, something to be said for that.

Usually, however, Americans have decided to get involved because it is seen as «the right thing to do» and because if we do not act, things can grow and eventually become a threat to our nations — Pearl Harbor and Sept. 11 are the most notable examples.

Americans have not fought these wars for conquest; we have most often been seen as liberators. Certainly we have made mistakes. Perhaps we will look back on the current war as a blunder. Most Americans, however, think that our forces are trying to do the right thing. We shall know in a matter of months.

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