Shall real justice prevail?
Soha Abdelaty investigates the possibilities for bringing US and British war officials to justice for committing crimes against humanity
Bombing densely populated residential areas and killing large numbers of civilians; shooting at civilians attempting to flee from Baghdad; using highly explosive bombs which failed to discriminate between civilian and military targets; bombing civilian buildings such as the telephone exchange; soldiers bragging about the destruction of statues and images of Saddam Hussein; these are just some examples of violations of international humanitarian law -- a law which is supposed to govern the rules of warfare -- committed by the Anglo-American forces during the United States-led war on Iraq.
"War crimes are crimes against humanity," says Fouad Riad, a former judge of the International Criminal Tribunal for the former Yugoslavia (ICTY) in an interview with Al-Ahram Weekly. "These are basically any [crimes committed against] civilians. Destroying buildings and cities and killing civilians who are not fighters [are classed as] crimes against humanity." This definition, continues Riad, also includes the destruction of any structure which makes up the backbone of a society.
Mistakenly targetting civilians is not, however, excused under international law. "If they knew that civilians could be harmed, as they did [here], then they should have aimed better," Riad said. "If there was a risk of making a mistake and they made it, then it's not acceptable. It's like trying to shoot someone in a crowd. Legally speaking, you cannot sacrifice innocent lives for the sake of targetting a criminal."
The US has compiled a list of war crimes committed by Iraqi leaders over the last two decades. The administration has been amassing information with the intention of bringing charges against these leaders who, they claim, have perpetrated war crimes.
The State Department recently donated $4 million to a United Nations Iraq War Crimes Commission, whose mandate is to collect evidence to be used in an international court of law to try Iraqi war criminals. The majority of the information in the four-million-page dossier was obtained from Iraqi secret police and intelligence agency files seized by Kurdish rebels more than a decade ago. Additional information was collected by the UN, as well as Kuwaiti, British, Iranian and US governments, and a number of prominent human rights groups.
The list of Iraqi crimes includes those committed during the Iran-Iraq war of the 1980s, the use of chemical weapons against the Kurds, the ethnic cleansing of the Shi'ites of southern Iraq, the execution of thousands of political opponents, the systematic use of torture against political detainees and war crimes committed during and following the invasion of Kuwait in 1990 and 1991. New additions to this list are the crimes the US believes were committed against its soldiers during the current war.
These crimes include the broadcasting of images of dead coalition soldiers, as well as footage of American and British prisoners of war (POW) "answering questions in humiliating and insulting circumstances designed to make them objects of public curiosity, in violation of the prisoner-of-war convention." The US also accuses the Iraqi regime of "acts of perfidy", which include soldiers carrying white flags and pretending to surrender, and employing army forces dressed as civilians to ambush Anglo- American troops.
The US had already decided where to take its list of war crimes, even before the fall of Baghdad. The cases of war crimes committed against the people of Iraq will be turned over to the liberated people of the "new Iraq". On 7 April, the Bush administration provided assistance with the establishment of domestic courts to try the individuals in question. "What we have been doing is working with Iraqi jurists, some members of the exile community, to create a mechanism that will be able to address these abuses," Pierre-Richard Prosper, US ambassador-at-large for war crimes issues told reporters after the decision had been announced. The plan envisions Iraqis from inside Iraq eventually taking part in the prosecution process.
With regard to the crimes committed against US forces, the Bush administration has decided to prosecute the offenders in US courts, possibly within the framework of the controversial military tribunals employed in relation to the Afghanistan conflict.
Even though POWs are repatriated and exempt from prosecution, the US administration has yet to decide if Saddams's fedayeen (martyrs) and the captured civilians who took part in the fighting will be treated as POWs and therefore avoid prosecution. International lawyers maintain the detainees are either POWs or civilians and that no other categories exist. Under international law, civilians are permitted the use of force against an occupying power, as long as this force is directed against military establishments. While physically occupying Iraq, the US insists that it has no intention of running the government and can therefore not be considered an occupying force. Legal experts have countered this by saying that physical occupation is considered de facto occupation, and has nothing to do with the intention to govern.
The decision to utlilise domestic courts, whether on US or Iraqi soil, brings with it other problems, and human rights organisations around the world have voiced their objections, recommending instead that the US resort to international means. The courts and judges appointed by the US, say these organisations, would be unable to shoulder the responsibility. "A tribunal composed of Iraqi jurists selected by the United States would not have the capacity to adjudicate the staggering scope of crimes [perpetrated] by the Iraqi government, including genocide, crimes against humanity, and war crimes," said a Human Rights Watch (HRW) statement issued on 7 April. "Iraq's [courts] have been instruments of repression rather than impartial judicial institutions. The Iraqi state has also interfered with other civil and criminal courts," the statement continued, "meanwhile, scholars, lawyers, and jurists in the Iraqi exile community should not be expected to shoulder the burden of handling a high volume of politically charged prosecutions."
Nevertheless, the US has completely ruled out the option of resorting to an international tribunal of any sort, mainly because it fears this could backfire.
The newly established International Criminal Court (ICC) would be the most obvious forum for such cases, having been established primarily to deal with crimes of this nature. Neither the US nor Iraq, however, are signatories to the ICC. This court can only hear cases in two instances, namely if the individuals concerned are from states which signed the 1998 Rome Statute establishing the international body or if a case is referred to it by the UN Security Council -- which is not an option given the current divisions in the Security Council. Furthermore, the court only deals with crimes perpetrated after 1 July 2002, when the ICC came into being, which means the US list of Iraqi war crimes committed from 1980 onwards cannot be dealt within this framework.
Another alternative would be for the Security Council to set up an ad hoc tribunal, such as those established in Yugoslavia and Rwanda. However, war tribunals set up after the war could open a Pandora's box for the US administration. American and British generals would also be answerable to the tribunal for war crimes committed against the Iraqi people during the current onslaught. The US administration has said it would not resort to tribunals of this kind.
Although there is very little the international community can do to bring American and British leaders to justice, some have suggested that perhaps US President George Bush and British Prime Minister Tony Blair could be tried in domestic courts for waging an illegal war. Lawyers point out that this can be done, but that is also very difficult. "A case can actually be filed, but each leader will be able to claim the sovereign immunity of a head of state," according to one American international human rights lawyer who has worked in numerous armed conflicts, adding that "both domestic and international law is likely to protect them. There are some exceptions to sovereign immunity, but they are narrow, and include, for example, acts that are not [performed] in the official capacity of the [perpetrator]. Under international and domestic law, head of state immunity is very broad."
Al-Ahram Weekly Online : 17 - 23 April 2003 (Issue No. 634)
Located at: http://weekly.ahram.org.eg/2003/634/sc7.htm