Legal assault
The manipulations of international law in the Anglo-American invasion of Iraq make an interesting case-study. They could also pave the way for future war-crimes prosecution, writes Aziza Sami
United States President George W Bush and his Defence Secretary Donald Rumsfeld were outraged when Iraqi television broadcast footage of the five American Prisoners of War (POW) being "interrogated" by a reporter.
The American officials invoked the third Geneva Convention, which protects prisoners of war against mistreatment or humiliation. Allegations were also made that Iraqi troops had "executed" surrendering US soldiers and broadcast images of the casualties on television.
Two days before, the French news agency Agence France Presse (AFP) published a photograph which received wide coverage in the international press. It showed two dead Iraqi soldiers wrapped in blankets in a trench at the port town of Umm Al-Qasr. The bodies were decapitated, with the listless hand of one soldier still clutching a white flag signalling surrender.
The possibility that the two soldiers might have been shot at close range while surrendering was dismissed in an onslaught of allegations by US and British military spokesmen that Iraqi troops had not adhered to the ethics of war. They had pretended to surrender, it was said, in order to shoot at the opposing troops.
By implication, the coalition troops will not be accountable for the scores of casualties in civilian clothes which can always be said to be "soldiers in disguise".
Less than a week later satellite channels broadcast images of Iraqi POWs who had been captured after fierce fighting at Umm Al-Qasr. The rough handling of these prisoners by coalition troops was in clear contravention of the Geneva Conventions.
The allegations and counter- allegations on humanitarian law violations are now being made within the context of a war which has been declared illegal -- although rather half- heartedly -- by the UN secretary- general, members of the UN Security Council and a large number of international legal experts.
The offensive on Iraq was launched on 20 March with an attempt to assassinate Saddam Hussein in a bid to decapitate the regime. This came on the back of a lengthy process within the UN Security Council which culminated in Resolution 1441, which, until the day of the offensive, constituted the framework for negotiating the Iraqi crisis. The resolution warned that if Iraq failed to comply with the ongoing weapons inspections, it would be held in material breach. The invasion of Iraq cut short the inspections process, in violation not only of Resolution 1441, but also Article 33 of the UN Charter which stipulates that all peaceful means for resolving a conflict must be exhausted before resorting to the use of force.
In their attempt to justify the war, the US and British regimes stated that all UN Security Council resolutions passed since the first Gulf War in 1991, and not only Resolution 1441, constitute legal grounds for war.
Based on this, Iraq could be considered to be in material breach and still harbouring weapons of mass destruction (WMD).
On the eve of the invasion UN Secretary-General Kofi Annan, on direct US orders" withdrew the UN weapons inspectors and UN peace-keeping troops positioned along the Iraq-Kuwait borders, from Iraq. The US State Department demanded that "all governments expel Iraqi diplomatic missions representing the regime of Saddam Hussein" from their countries. On the same day, the US announced it had "acquired" Iraqi financial assets in the range of $1.4 billion. The Food for Oil Programme, under which Iraq has paid for imports of food and medicine since 1996, was suspended. However, with the advance of coalition troops and their control of Iraqi crude oil reserves in northern and western Iraq, the UN Security Council issued a resolution last Friday, 28 March, for the resumption of the programme. Under this resolution the current Iraqi government no longer has the authority to sign oil contracts under the Oil for Food Programme, effectively annulling its status as head of a sovereign state.
In addition to other UN Security Council members such as Russia and France, who have accused the coalition of waging an illegal war, several legal associations are also concerned with the war's lawful status. Lebanese associations of lawyers have announced that they are taking a case against the US and Britain for violating the fundamental principle of international law, which is one of "non-aggression", whereby the invasion itself could be considered a war crime.
Concern over the legality of the war has already induced the British Foreign Office Deputy Legal Advisor Elizabeth Wilmhurst to resign from her post.
The war on Iraq was also criticised last month by 100 lawyers and non- governmental organisations (NGO) in an open letter to President George W Bush. The letter stated that prosecutions for the perpetration of war crimes would be sought if the US launched a war on Iraq.
Given "past violations in the 1991 Gulf War", wrote the lawyers, "there is reasonable basis to assume that in any future military action against Iraq, violations will once again occur. Senior American officials could face prosecution if US soldiers commit war crimes in Iraq."
Iraqi families -- civilian casualties of the 1991 Gulf War -- have already filed a suit in the Belgian courts against the US political and military command.
Concerns have also been raised over the use of banned weapons by the Anglo-American forces. According to reports by journalists accompanying US troops, American troops resorted to the use of WMDs in its bombing of Baghdad last Saturday. Bunker-busters, designed to generate massive explosions underground, were used in the attack on the Iraqi television broadcasting building -- a civilian target which, according to the US Head of the Joint Chiefs of Staff Richard Myers, is also a "propaganda" centre used for wartime communications. Several European- based media organisations have protested against the attack, citing it as a clear violation of the Geneva Conventions.
Six days into the aggression, British Labour MP Tam Dalywell wrote in the Guardian that, "in the current war, hundreds of cruise missiles have been launched to soften up the enemy. We are told that the US intends to use incapacitating bio-chemical and depleted- uranium weapons [and] use war in Iraq as an opportunity to test out a range of weapons: cluster aviation bombs with self-guided munitions and pulse bombs being examples."
A Republican Congressional report last month recommended using new kinds of WMDs for attacks on adversaries such as Iraq, Syria and other states deemed threatening to the US (see Al-Ahram Weekly issue 630).
The World Health Organisation (WHO) has estimated that up to 500,000 civilians could require treatment in the current war. The graphic photographs of fatal wounds sustained by Iraqi civilians during the first "smart bomb" raid on Baghdad, especially the lethal head-injury sustained by a 10- year-old boy, have done nothing but reinforce this concern.
The possibilities that the US can ever be prosecuted remain dim, since it did not ratify the treaty establishing the world's first ever International Criminal Court (ICC) which was set up last July. It has also negotiated bilateral agreements with 24 countries in the Middle East and Asia ensuring that its citizens are not extradited to the ICC without approval of the US government.
The only legal recourse for dealing with war crime prosecutions involving US forces remains the Universal Jurisdiction and War Crimes Act stipulated in the Geneva Conventions. This has been invoked by the Belgian judiciary for bringing charges against heads of state involved in war crimes.
But the US has already exerted pressure on Belgium to amend its current laws. Under this amendment -- which the Belgian senate must approve before it takes effect -- suits filed under "universal jurisdiction" would no longer be automatically accepted by the courts, each case being examined separately to decide whether or not it falls under universal jurisdiction.
The risk of the Geneva Conventions being violated further is clearly high, particularly with regard to the status of POWs.
At the outset of its "war on terror" in Afghanistan, the US had announced that it would not abide by the third Geneva Convention, particularly regarding specific guidelines for the treatment of prisoner combatants.
Afghan and Pakistani prisoners captured during the Afghan war were consequently considered 'unlawful combatants' and have remained outside the boundaries of any legal procedure, attested to by the fact that the "Guantanamo Bay" camp is still in existence. Iraqi POWs could well receive the same treatment.
The US-British military command has repeatedly alluded to Iraqi troops as "terrorists", and the US Head of the Joint Chiefs of Staff Richard Myers used the word to describe the Iraqi colonel who blew up himself and four coalition troops at a checkpoint near Negev. The word was also used to refer to "Iraqi soldiers disguised as civilians". The loose definition of "terrorism" can potentially place Iraqi POWs outside the bounds of accountability, thereby denying legal recourse to Iraqi troops who are fighting in what has unanimously been judged an illegal invasion of a sovereign state , against the will of the international community.
Al-Ahram Weekly Online : 3 - 9 April 2003 (Issue No. 632)
Located at: http://weekly.ahram.org.eg/2003/632/sc15.htm