The law of war is derived from two principle sources (1) Lawmaking Treaties (or Conventions) such as The Hague and Geneva Conventions and (2) custom, which is a body of unwritten or customary law firmly established by the custom of nations and well defined by recognized authorities on international law. (See FM 27-10, The Law of Land Warfare, Department of the Army, Washington, GPO, p. 4, July 1956).
The following are examples of the body of international law relied upon by the United Nations, commissions, tribunals, and diplomats in addressing international issues and disputes:
- The Charter of the United Nations;
- The Universal Declaration of Human Rights, of 10 December 1948;
- The International Covenant on Civil and Political Rights, of 16 December 1966;
- The International Covenant on Economic, Social and Cultural Rights, of 16 December 1966;
- The (Fourth) Geneva Convention relative to the protection of Civilian Persons in Time of War, of 12 August 1949;
- The Geneva Conventions relative to the treatment of Prisoners of War, of 12 August 1949;
- The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 1 May 1954;
- The Hague Conventions of 1899 and 1907 respecting the Laws and Customs of War on Land.
The United Nations often relies on those resolutions relevant to the situation of civilians in occupied territories adopted by United Nations organs the General Assembly, the Security Council, the Economic and Social Council and the Commission on Human Rights in making decisions.
Treaties (or Conventions) to which the United States is a party are legally binding.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made or which shall be made, under the authority of the United States, shall be the supreme Law of the Land". (U.S. Constitution, Article VI).
The President can make treaties.
"He (President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties". (U.S. Constitution, Article II, Section 2).
The President has a duty to honor the terms of treaties to which the U.S. is a party, and he is obligated to enforce them because they are the supreme law of the land.
"(H)e (President) shall take care that the Laws be faithfully executed". (U.S. Constitution, Article II, Section 3).
The Geneva Conventions of 1949 for the Protection of War Victims and the Hague Convention No. IV of 1907 Respecting the Laws and Customs of War on Land were intended to be, and are, legally binding on the United States and its citizens, especially members of the armed forces. (See AR 350-216, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907, Department of the Army, Washington, GPO, 7 March 1975).
The Fourth Geneva Convention requires the parties to:
"Ensure respect for and protection of the civilian population and civilian objects and to distinguish at all times between the civilian population and civilian objects and military objectives. They also call upon the parties to abstain from any measures of brutality and violence against the civilian population to military operations."
The Geneva Conventions have some specific provisions relating to bombardments:
"The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited." (See FM 27-10, The Law of Land Warfare, Department of the Army, Washington, GPO, p. 19, July 1956).
The Conventions further prohibit unnecessary killing and devastation:
"... loss of life and damage to property must not be out of proportion to the military advantage to be gained. Once a fort or defended locality has surrendered, only such further damage is permitted as is demanded by the exigencies of war, such as the removal of fortifications, demolition of military buildings, and destruction of stores." (Ibid. p.20).
The Hague Convention of 1907 also specifically deals with the delivery of munitions from aerial platforms:
"There is no prohibition of general application against bombardment from the air of combatant troops, defended places, or other legitimate military objectives." (Emphasis added). (Ibid.)
Protocol I to the Geneva Conventions of 12 August 1949 relating to the protection of victims of international armed conflicts prohibits indiscriminate attacks on the enemy civilian populace.
"Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which cannot be limited as required by this Protocol;
and consequently, in each case, are of a nature to strike military objectives and civilians or civilian objectives without distinction." (Emphasis added). (See DAP 27-1-1, Protocols to the Geneva Conventions of 12 August 1949, Department of the Army, Washington, GPO, p. 36, September 1979).
The Protocol further states what may have the most direct application to consider of the United States aerial bombardment of Iraqi civilians in populated cities:
"Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." (See DAP 27-1-1, Protocols to the Geneva Conventions of 12 August 1949).
The Law of War and the provisions of these Conventions are applicable to U.S. armed forces actions in Afghanistan and Iraq and anywhere else the U.S. engages in military action. These same principles of international law are applicable to the Israeli Defense Forces actions against the Palestinians. Suicide bombings by the Palestinian "terrorists" do not justify Israeli mass reprisals or indiscriminate attacks (acts of terrorism) by the use of helicopters, jets, or tanks on innocent civilians in the occupied territories under principles of international law.
BASIC U.N. PRINCIPLES AND PROCEDURES
World War II ended in 1945. In the same year, the governments of the world met to create a Charter for the United Nations. The "purposes and principles" as stated in the Charter were:
"To maintain international peace and security; to develop friendly relations among nations; to promote cooperation among nations for the purpose of solving economic, social, cultural, and humanitarian problems and promote respect for human rights and fundamental freedoms; and to serve as a center for harmonizing the actions of nations in attaining these common ends."
The United States is a member of the United Nations and is bound by the terms of its Charter. The UN Charter gives the Security Council primary responsibility for maintaining international peace and security. The Security Council, alone, has the power to back up its declarations with actions to ensure compliance with them. No one nation can tell the Security Council what to do, including the United States. Operation Iraqi Freedom was illegal, in part, because it lacked Security Council approval.
Article 41 provides:
"The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."
Article 42 provides:
"Should the Security Council consider that the measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."
Thus, other than for self-defense, a nation may use armed force against another nation only with the concurrence of the Security Council. Five of the Councils members are designated permanent members the US, Russia, Britain, France, and China. The other ten members are elected by the General Assembly for two- year terms. For a resolution to pass, it must receive nine "yes" votes with five of them being unanimous votes from the five permanent members.
THE BASIC RIGHT OF SELF DEFENSE
Article 51, UN Charter says:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of The United Nations, until The Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to The Security Council and shall not in any way affect the authority and responsibility of The Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
Terrorism has been defined as the calculated use of violence or the threat of violence to attain political, religious, or ideological goals by instilling fear or using intimidation or coercion. TC 19-16, Countering Terrorism On US Army Installations (April 1993). AR 190-52.
International terrorism involves violent acts or acts dangerous to human life that violate US federal or state law if they would have been committed in the US and appear to be intended to coerce a civilian population or to influence the policy of a government by intimidation or coercion or to affect the conduct of the government by mass destruction, assassination, or kidnapping and occur primarily outside the US or transcend the US boundaries by the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum. (Emphasis added). 18 USC 2331 (1)(A)(B)(C).
Domestic terrorism involves acts dangerous to human life that violate US federal or state law and appear to be intended to coerce a civilian population or to influence the policy of a government by intimidation or coercion or to affect the conduct of the government by mass destruction, assassination, or kidnapping and occur primarily within the territorial jurisdiction of the United States. (Emphasis added). 18 USC 2331 (5)(A)(B)(C).
Terrorism is a crime under US domestic law. A crime requires criminal intent; therefore, what does the terrorism statute mean when it prohibits acts which "appear to be intended" to do certain things? Mens rea (or guilty mind) is a prerequisite for the commission of a crime. Due process requires that the other trappings of a criminal justice system (e.g., right to be informed of charges against the accused, right to counsel, right to bond, right to a speedy trial, right to trial, presumption of innocence, requirement for proof beyond a reasonable doubt before conviction and punishment, etc.) also apply to "terrorists".
The U.S. used the "war on terror" as an excuse to violate many persons rights, especially if they were Arab or Muslim (e.g., the hundreds of arrests and incarcerations of individuals for minor visa related violations). On October 26, 2001, President Bush signed the USA Patriot Act (USAPA) into law which gave sweeping new powers to both domestic law enforcement and international intelligence agencies and eliminated checks and balances that courts previously had to prevent abuses. The law makes it easier to conduct electronic surveillance on citizens without "probable cause" to believe a crime has been or is being committed. "Terrorism" is defined more broadly to probably include legitimate protest marches which may result in someone being injured. The proposed USAPA II includes the term "enemy combatant" to mean a citizen who may have violated the new broader definition of terrorism under USAPA I. "Enemy combatants" could be held without the normal constitutional rights a criminal defendant would have, and they could be tried before military tribunals.
The U.S. also used the "war on terror" as an excuse to invade two sovereign foreign countries--Afghanistan and Iraq--in violation of international law and to treat captured Afghanis and occupied Iraqis in an inhumane manner. The United States had no more legal authority to invade Iraq than it did to invade Afghanistan under the pretense of fighting "terrorism". (See, generally, "U.S. Bombing of Afghanistan Not Justified As Self-Defense Under International Law" by Leslie M. Rose, Guild Practioner, January 2002). The U.S. occupation of Iraq and the reprisals against Iraqi citizens in the name of "security" also violate international law. It is obvious that the tons of weapons of mass destruction alleged to exist in Iraq immediately before the U.S. led invasion simply did not exist as stated by the U.S. administration. Whether or not WMD are found, the U.S. invaded Iraq for no legitimate reason under international law.
Israel has maintained its "security" in the "war on terror" by using rockets, tank rounds, or bombs to kill innocent Palestinian civilians (men, women, and children)as much an act of terror as the act of the individual who detonates explosives in a crowded Israeli gathering of innocent people. I believe that "security" should never be used as an excuse to violate the principles of freedom stemming from the U.S. Constitution and the principles of human rights embodied in international law.
UN RESOLUTION 687 IMPOSED SANCTIONS ON IRAQ
The UN imposed sanctions on Iraq, after Desert Storm, through UN resolutions. Resolution 687 (November 29, 1990) established cease-fire terms and set up the UN Special Commission (UNSCOM) to disarm Iraq, and it listed specific conditions for lifting sanctions. Under paragraph 8, Iraq was to destroy, remove, or render harmless, under international supervision, all chemical and biological weapons and all stocks of agents and related subsystems and components and all research, development, support and manufacturing facilities. Iraq was to get rid of its ballistic missiles with a range greater than 150 kilometers.
Under paragraph 11, Iraq was "invited" to reaffirm its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968. Under paragraph 12, Iraq was to unconditionally agree not to develop nuclear weapons or components or subsystems or to do nuclear research.
Under paragraph 22, if Iraq complied with the provisions of the resolution, then the prohibitions against the import of commodities and products originating in Iraq and the prohibitions against financial transactions related thereto would no longer have force or effect. In other words, if Iraq wanted to do commerce again with the rest of the world, it had to comply with the disarmament provisions. If it did not comply, the trade embargos would remain in effect, financial transactions would remain barred, and government assets would remain frozen. There was no provision in the resolution which authorized the invasion of Iraq if it did not comply. Iraq had never attacked the US, and the UN had allowed the status quo for over a decade
UN RESOLUTION 1284 REQUIRES QUARTERLY REPORTS TO SECURITY COUNCIL
UN Resolution 1284 (1999) established the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) to replace the special commission established pursuant to resolution 687. As Hans Blix stated in his report to the Security Council on March 7, 2003, UNMOVIC was working under resolution 1441 (2002) and several other UN resolutions. He was required to submit a quarterly report under resolution 1284 to the Security Council on "unresolved disarmament issues" and to identify "key remaining disarmament tasks" and the latter were to be submitted for approval by the Security Council in the context of a work program. (See Hans Blixs Report, March 7, 2003).
The Security Council was to determine the progress of the disarmament, not the United States. When the US invaded Iraq on March 19, 2003, it violated UN resolution 1284, the UN Charter, and the Geneva Conventions. One must also remember that all the rhetoric about the tons of weapons of mass destruction was the primary justification for the U.S. to invade Iraq. The location of the WMD has been a mystery even though the U.S. has spy-satellite cap-ability.
NO-FLY ZONES OVER IRAQ NOT SANCTIONED BY UNITED NATIONS
Some may say that the shooting at US pilots who flew over the "UN no-fly zones" by the Iraqis constituted "attacks" on the US, but US and British warplanes have bombed more that 80 targets in Iraqs southern "no-fly" zone during the last half of 2002, conducting an escalating air war even as UN weapons inspections proceeded and diplomats looked for ways to avoid war. The interesting point is that the United Nations did not recognize the no-fly zones or the US assertion that it was enforcing UN resolutions. In the fall (2002), Russia's foreign ministry said escalating attacks by US and British warplanes against Iraqi air defenses have made it more difficult for UN efforts to resume weapons inspections in Iraq. Iraq said it fired at the aircraft because they were violating Iraqi airspace. (See "Airstrikes in Southern Iraq No-Fly Zones Mount" by Vernon Loeb, Washington Post, January 15, 2003).
THE INTERNATIONAL CRIMINAL COURT
The obligations between states under the law of war have become obligations to protect individuals. The substitution of "international humanitarian law" for the terms "law of war" and "law of armed conflict" descriptively reflects this movement. Initially, the term "international humanitarian law" referred only to the four 1949 Geneva Conventions, but it is now increasingly being used to signify the entire law of armed conflict. The entire focus of the law of war has broadened from solely protecting states interests to increasingly protecting individuals interests. ("Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed Conflict" by Major Alex G. Peterson, Military Law Review, pp. 13-14, Vol. 171, March 2002).
The law of war recognizes prosecution by third-party countries under the principle of universal jurisdiction. Under the Geneva Conventions, signatory states have a duty to prosecute or extradite persons alleged to have committed violations of the law of war, regardless of whether the state was involved in the underlying conflict.
The international community has devised another way to deal with rogue nations and war crimes. The Rome Statute of The International Criminal Court (July 1999) purports to impose jurisdiction over some accused criminals from non-consenting states, even those states which are not parties to the treaty that created the ICC. The Court has jurisdiction over the crime of genocide; crimes against humanity; war crimes (e.g., willful killing; willfully causing great suffering; extensive destruction and appropriation of property not justified by military necessity; unlawful deportation or transfer; intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated); and the "crime of aggression", which has yet to be defined.
The allegation that such a crime has been committed may be referred by a State Party (to the ICC), or may be referred by the Security Council, or may be received by the Prosecutor from any other source. If the Prosecutor determines that a reasonable basis to investigate exists, before investigating he must notify any states which would normally exercise jurisdiction over the crime alleged. Upon receiving such a deferral request, the Prosecutor must defer to the states investigation unless the Pre-Trial Chamber specifically authorizes the Prosecutor to proceed despite the deferral request. (See generally, "The Globalization of Justice: The Rome Statute of the International Criminal Court" by Lieutenant Colonel Bruce D. Landrum, United States Marine Corps, THE ARMY LAWYER, DA Pam 27-50-356, September 2002).
Perhaps this US invasion of Iraq might be cited as an example of a "crime of aggression". Perhaps a massive bombardment of non-military targets and the indiscriminate killing of hundreds or thousands of innocent Iraqi citizens could be cited as war crimes or crimes against humanity or even genocide. Perhaps the U.S. subjecting Iraqi prisoners to "cruel, inhuman, or degrading" conditions at U.S. detention centers might be considered a violation of international law as reported by Amnesty International. ("Rights Group Says U.S. Detentions Of Iraqis May Violate International Law" by Jim Krane, The Associated Press, 30 June 2003).
If the United Nations, the European Union, Russia, and China ever united to enforce these basic principles of international law, U.S. political and military leaders could be tried for war crimes.
The aforementioned international legal principles are applicable to all of the signatories of the relevant treaties and other international charters, agreements, protocols, memoranda of understanding, etc. between or among the nation-states involved. As previously noted, the "custom" of international law or the law of war or the law of human rights also has substantial influence among the nations of the world. Hence, if tribal war-lords or even a powerful nation-state were to act outside the norms of the international community by engaging in war crimes or genocide or an act of "aggression" which involved war crimes or genocide, they could be tried by an international tribunal even if they did not agree to be so tried.
On June 12, 2003 the United Nations Security Council approved another one-year exemption for American military from prosecution by the International Criminal Court. The resolution adopted by a 12-0 vote with three abstentions authorized a one-year exemption from arrest or trial for peacekeepers from the United States and other countries that have not ratified the Rome Treaty establishing the ICC. China indicated it was "positively considering" ratifying the Rome Treaty. In the previous years battle on this issue, the U.S. threatened to end far-flung peacekeeping operations established or authorized by the United Nations if it did not get an exemption. ("U.S. Given Exemption From War Crimes Prosecution", Associated Press, 12 June 2003).
Belgium had empowered its courts to try foreigners for serious human rights crimes no matter where they were committed. Several countries and most vociferously the United States criticized Belgium law which entertained lawsuits against Israeli Prime Minister Ariel Sharon, General Tommy Franks, former President George Bush, Secretary of State Colin Powell and General Norman Schwarzkopf. Secretary of Defense Rumsfeld vowed to freeze spending on NATOs new headquarters in Brussels unless the law was revoked. ("Belgium Sticks by War Crimes Law Despite U.S. Anger" by Bart Crois and John Chalmers, Reuters, 13 July 2003). Eventually, under pressure, Belgium changed its law to apply only to Belgium citizens or residents. ("Belgium to Scrap War Crimes Law" by Andrew Osborn, The Guardian, 15 July 2003).
The most recent U.S. action to alienate the world community and show disdain for the rule of international law occurred on July 1, 2003 when the U.S. suspended all U.S. military assistance to 35 countries because they refused to pledge to give U.S. citizens immunity before the international Criminal Court. The administration warned last year that under a provision of the new anti-terrorism law any country that became a member of the ICC but failed to give an exemption would lose all U.S. military aid, including education, training, and financing of weapons and equipment purchases. ("Bush Suspends U.S. Military Aid to 35 Countries Over the World Court" by Elizabeth Becker, New York Times, July 2, 2003).
The U.S. has been able to intimidate the international community and flaunt international law because of its military and economic might, but I believe it is inevitable that circumstances will change; and the ICC will eventually exert jurisdiction over U.S. criminal defendants. 7/03