AMERICA’S WAR ON IRAQ
There may be many reasons why the United States feels the need to be at war with Iraq. The "party line" has been that Saddam Hussein is evil; he has weapons of mass destruction; he is a threat to the United States; he has violated UN resolutions; etc.
This writer believes that the real reason for warring with Iraq stems from the US desire to control vast deposits of oil in Iraq; to control an abundant supply of water (which Israel desperately needs); to protect Israel; and to accomplish the first step of a strategic vision of the Middle East to create a regional balance of power overwhelmingly in Israel’s favor. (See "Too Many Smoking Guns to Ignore: Israel, American Jews, and the War on Iraq" by Bill and Kathleen Christison, former CIA analysts, CounterPunch, www.counterpunch.org, January 25, 2003).
The thinking from the pro-Israeli, neo-conservative policymakers has been that after the ouster of Saddam Hussein, the United States would have more leverage to act against Syria and Iran, be in a better position to resolve the Israeli-Palestinian conflict, and become less reliant on Saudi oil. (id.).
In a letter to George W. Bush released on the eve of his State of the Union Address, the Project for the New American Century (PNAC), called for an increase in the defense budget by as much as $100 billion next year to deal with potential military problems around the world including Iraq, Afghanistan, and Central Asia as well as Korea, Iran, and China. The letter notes that removing Saddam Hussein is "…the first step in carrying out your (Bush’s) strategic vision for the Middle East…". (See "Pump Up the Pentagon, Hawks Tell Bush" by Jim Lobe, January 28, 2003, reprinted courtesy of the Project Against the Present Danger, www.presentdanger.org).
Some of these pro-Israeli neo-conservatives who support PNAC are Rupert Murdoch, William Kristol, Donald Rumsfeld, Dick Cheney, Paul Wolfowitz, Lewis Libby, Robert Kagan, Peter Rodman, Elliott Abrams, and Richard Perle. PNAC is closely tied to the neo-conservative American Enterprise Institute (AEI) from which it rents office space. (id.).
When Iraq had been at war with Iran, the United States supported Saddam Hussein’s war machine with arms, money, technology, and weapons of mass destruction, including chemical weapons. In a witness statement before the Senate Appropriations Committee on March 6, 1990, a person very knowledgeable of matters relating to the Middle East spoke about what he thought the United States should do regarding Iraq. To put the statement in context, one must remember that Iraq and Iran had been at war for several years. (See "U.S. Policy in the Persian Gulf and Kuwaiti Reflagging" by Michael H. Armacost, Undersecretary of State for Political Affairs in the Reagan Administration, reprint of a statement before the Senate Foreign Relations Committee on 16 June 1987, Air War College Associate Studies Vol. II, LSN 33, 1st Ed., pp. 115-118).
The senate witness said:
"The cease-fire with Iran has allowed Iraq to resume its bid for leadership and influence within the Arab world. Iraq ended the war with one of the largest and best-equipped military forces in the world...
Even though it enjoys a significant post-war military advantage over Iran, Iraq continues to import arms. Of greater concern, however, is its domestic arms industry, the most advanced in the region.
Although generally mistrustful of the U.S., Iraq would welcome measured U.S. participation in its economic development. Currently, oil exports make it America’s second largest Middle Eastern trading partner. The U.S. should continue to develop its contacts with Iraq by building selectively on existing political and economical relationships..." (See Reprint of a Witness Statement Before the Senate Appropriations Committee by Gen. H. Norman Schwartzkopf, Commander in Chief, United States Central Command, on March 6, 1990, Air War College Associate Studies Vol., II, LSN 33, 1st Ed., pp. 80-103).
The significance of this testimony is: (1) that it considered Iraq as a "partner" and not a "threat" to the United States; (2) that a year later the United States was at war with Iraq; and (3) that the testimony was given by General H. Norman Schwartzkopf, the field commander of the forces to defeat Iraq.
So why did the US have to go to war with Iraq? Was it really because Iraq invaded Kuwait?
Eight days before his August 2, 1990 invasion of Kuwait, Saddam Hussein met with April Glaspie, then America’s ambassador to Iraq. It was the last high-level contact between the two countries before Iraq went to war. She told Saddam that the United States would like him to settle his dispute with Kuwait (Kuwait had been slant oil drilling under Iraq) peacefully, but she added , "We have no opinion on the Arab-Arab conflicts, like your border disagreement with Kuwait." (See "Henry Hyde Has the Right Answer—Do We need a War with Iraq?" by Terence P. Jeffrey, Human Events On Line, The Week of October 29, 2001).
Saddam Hussein was stunned by the vehement response from the West to his occupation of Kuwait based on what Glaspie told him a little over a week earlier. Angry journalists confronted Glaspie, clutching copies of the transcript of her session with Saddam, accusing her of giving carte blanche to take over Kuwait. At one of these sessions a rattled Glaspie replied, "I didn’t think…the Iraqis were going to take all of Kuwait." (Emphasis added). (See "Bombs Over Baghdad: 10 years after Desert Storm" by Martin O’Malley & Owen Wood, CBS News On Line, January 2001). Glaspie was removed from her post.
After the set-up, the lies began.
One of the main reasons for America going to war against Iraq in 1990 was because the White House declared there were satellite photos showing Iraqi tanks and troops massing on the borders of Kuwait and Saudi Arabia threatening invasion of Saudi Arabia. The reports fueled the war hysteria and frightened the Saudis, who then agreed to full cooperation with US military forces. They were a major reason used to convince the American people of the justification of the war to protect and defend the oil supplies so vital to the West. The photos were never released, and Russian Satellite photos show there was no such large scale massing of troops as the US claimed. (See "Unanswered Questions About the Supposed Iraqi Threat to Saudi Arabia in 1990" FROM PRESS REPORTS in 1990 by the Editor, Jon Basil Utley, Christian Science Monitor).
Thus, the Bush (the elder) administration lied when it stated on August 8, 1990, that the purpose of the US troop deployment to Saudi Arabia was "strictly defensive" and necessary to protect Saudi Arabia from an imminent Iraqi invasion.
As previously stated, Bush (the elder) wrestled with the idea of invading Iraq for a lot of disingenuous reasons until he decided it was to rescue Kuwait. He sought support from Congress to use American military forces in Iraq. Many members of Congress were not enthusiastic about giving the President a resolution supporting military action--they wanted to give the sanctions more time. The vote in Congress was going to be close. (See "Bracing for War" by Tom Morganthau, et al.,Newsweek, January 21, 1991, pp. 16-19).
Saddam Hussein proposed withdrawing from Kuwait if the United States would consider the Palestinian problem, which related to the allegations that Israel was occupying territory in Palestine in violation of United Nations’ resolutions, but American Jews did not want "linkage" of the two issues. (See "Why ‘Linkage’ Doesn’t Connect" by Jonathan Alter, Newsweek, p. 24, January 21, 1991). Ultimately, Jewish influence, through AIPAC, pressured the "doves" in Congress to give Bush the authority to commit U.S. troops to combat in Iraq. (See "Pro-Israel Lobbyists Quietly Backed Resolution Allowing Bush to Commit U.S Troops to Combat",Wall Street Journal, January 28, 1991, pp. A14-A15).
The propaganda war commenced when a teenaged Kuwaiti woman known only as "Nayirah" told a US Congressional committee that she watched Iraqi troops rip respirators from premature babies in a Kuwaiti hospital, leaving the infants to die. President George Bush, the elder, often spoke of the villainy, taking of "babies from the incubators and scattered like firewood across the floor". But this was all a lie. No respirators were ripped from any babies in any incubators. It was a fabrication to create loathing against Iraq. Little "Nayirah" turned out to be Nayriah Sabah, the daughter of Kuwait’s ambassador to the US. Her visit to the congressional committee had been arranged by the US advertising agency, Hill & Knowlton. (See "Bombs Over Baghdad: 10 years after Desert Storm" by Martin O’Malley & Owen Wood,CBS News On Line, January 2001).
Another reason spouted off by Bush (the elder) and George W. for toppling the "evil" Saddam Hussein is because he allegedly "gassed his own people". The accusation that Iraq has used chemical weapons against its citizens is a familiar chant by the warmongers. The hard evidence most often cited concerns the gassing of Iraqi Kurds at the town of Halabja in March 1988, near the end of the Iran-Iraq war.
Stephen C. Pelletiere, the former Central Intelligence Agency’s senior political analyst on Iraq during the Iran-Iraq war, and former professor at the Army War College from 1988 to 2000, was privy to much of the classified material that flowed through Washington having to do with the Persian Gulf. He also headed a 1991 Army investigation into how the Iraqis would fight a war against the United States. The classified version of the report went into much detail about the Halabja affair.
The gassing at Halabja occurred during the course of a battle between the Iraqis and the Iranians. Iraq used chemical weapons to try to kill the Iranians who seized their town, which is in northern Iraq not far from the Iranian border. The Kurdish civilians who died had the misfortune to be caught up in that exchange, but they were not Iraq’s main target. After the battle, the Defense Intelligence Agency investigated and produced a classified report, which asserted that Iranian gas killed the Kurds, not Iraqi gas; however, the condition of the Kurd’s bodies indicated they were killed with a blood agent—a cyanide-based gas—which Iran was known to use. The DIA found that both Iran and Iraq used gas against each other in the battle around Halabja.
The Iraqis probably had mustard gas in the battle and were not known to have possessed blood agents at the time. (See "A Crime or an Act of War" by Stephen C. Pelletiere, New York Times, Opinion, Friday, 31 January 2003).
Operation Desert Storm commenced, and the war was short-lived. The allied coalition forces heavily bombarded Iraq with "smart bombs", "dumb bombs", cruise missiles, and everything in between. Iraq was driven out of Kuwait in accordance with the UN objective, and Iraq was subjected to some UN mandates per Security Council Resolutions. What were the overall effects of the U.S. air raids in the Persian Gulf War? Greenpeace, the environmental protection organization conducted interviews with international relief workers, reporters, U.S. officials, and news reports. Greenpeace’s report said that over 150,000 people died as a result of the war with Iraq and at least 5 million lost their homes or jobs. (See "Gulf War Resulted In 150,000 Deaths, Greenpeace Says," Arizona Republic, May 29, 1991, p. A10).
The majority of the bombing casualties were caused by "dumb" bombs and by the 12 million to 16 million bomblets released by an estimated 60,000 to 80,000 cluster bombs dropped by allied planes. (Ibid.).
As much as the U.S. media (which was fed its information by the military) portrayed the "smart bombs" striking targets, the truth is that the majority of the munitions hurled on Iraq and Kuwait were "dumb" bombs. Allied jets dropped 88,500 tons of bombs on Iraq and Kuwait, but about 70 percent of them missed their targets. The precision-guided bombs, the icon of Pentagon briefings and the military’s preferred image of the war, made up barely 7 percent of the U.S. tonnage dropped on Iraqi targets, said General Merrill McPeak, Air Force Chief of Staff. (See "88, 500 Tons of Bombs -- 70% Missed", Arizona Republic, March 16, 1991, p. A2). A senior Pentagon official said 81,980 tons of "dumb" or unguided bombs had an accuracy of only about 25 percent. (Ibid.)
The extent of actual unnecessary death and destruction inflicted upon Iraqi non-military targets may never be known, but suffice to say that it is impossible to have conducted the awesome aerial bombardment of Baghdad and other populated areas of Iraq and not have inflicted massive civilian casualties. It is reasonable to conclude that there was a great deal of collateral damage—not destruction of military targets—caused by the extensive aerial bombardments of populated cities like Baghdad. (For a more in-depth discussion of the bombardment of Iraq during Desert Storm, see www.joeabodeely.com "Law of War Considerations of Aerial Bombardment of Iraq in Operation Desert Storm" by Colonel Joseph E. Abodeely, a Research Report for Air War College Associate Studies, Air University, October 1991).
The UN imposed sanctions on Iraq, after the war, 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, and, apparently, UNSCOM has not provided the "international supervision" as envisioned under paragraph 8 until recently.
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, and the United Nations who did not fulfill their obligation of "international supervision" had no concern about Iraq until George W. made an issue of non-compliance although the sanctions were still in place under Resolution 687.
Iraq has never attacked the US.
Some may say that the shooting at US pilots who fly over the "UN no-fly zones" by the Iraqis constitutes "attacks" on the US. US and British warplanes have bombed more that 80 targets in Iraq’s southern "no-fly" zone over the past five months, 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 does not recognize the no-fly zones or the US assertion that it is enforcing UN resolutions. Last fall, 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 says it fires at the aircraft because they are violating Iraqi airspace. (See "Airstrikes in Southern Iraq ‘No-Fly’ Zones Mount" by Vernon Loeb, Washington Post, January 15, 2003).
George W. Bush has done everything in his power to justify a US invasion of Iraq. He says he wants to attack Iraq because it may have weapons of mass destruction, but he lacks significant, credible evidence to support his claim. Hans Blix, chief chemical and biological weapons inspector, disputed allegations by the Bush administration about the Iraqis hiding illicit materials or hiding scientists or penetrating the UN inspection agency. (See "Chief Weapons Inspector Disputes Bush Spin On Iraq Report", Arizona Republic, p. A22, January 31, 2003). Mohamed ElBaradei, head of the International Atomic Energy Agency (IAEA), said, that in his view, Iraq was not yet in material breach of a UN resolution on disarmament contrary to what Britain and the United States have stated. (See "Iraq Not In Breach of UN Arms Resolution", Reuters, January 30, 2003).
On February 5, 2003 Secretary of State Colin Powell told the United Nations Security Counsel that Saddam Hussein violated UN resolutions, was a threat because he still had weapons of mass destruction, was assisting terrorists, and reliable "sources" proved his case. Although his presentation was glib, it lacked substance and was clearly insufficient to justify raining 800 Tomahawk Cruise missiles (2000 pound flying, guided bombs) on Iraqi mothers, fathers, sons, daughters, doctors, lawyers, taxi drivers, merchants, etc.
If Colin Powell were cross-examined on the identities, trustworthiness, or motives of his "sources", or on why he used drawings rather than satellite photos, or how he knew what was in trucks or buildings, or how Saddam is responsible for alleged poison camps supposedly run by terrorists in Kurdish areas outside of Saddam’s control, or why the US didn’t turn over its evidence to the inspectors as required by UN resolution 1441, he would probably look quite foolish. (See "Cross-Examining Colin" by William Rivers Pitt, Truthout| Perspective, Thursday, 06 February 2003). It has now been disclosed that a British intelligence dossier used by Colin Powell in his presentation has been discredited by several academics, who say they recognized most of the dossier as lifted, verbatim, from articles published in the U.S. journal, The Middle East Review of International Affairs and in Jane’s Intelligence Review. (See "Britain Stands By Iraq Report", Reuters, February 7, 2003).
Bush says Iraq has violated UN resolutions, but the UN and Bush know that Israel has violated, and is still violating, several times more resolutions than Iraq has. North Korea, Israel, and Pakistan—all have nuclear weapons and have not agreed to the nuclear non-proliferation treaty. Bush ignores this while Israel commits genocide in Palestine, which he also ignores.
Al Qaeda is a major threat, and an unjustified invasion against Iraq would inflame the Islamic extremists and add to their numbers and incite their wrath, which he ignores. The commander of US forces in Afghanistan said a war in Iraq could provoke attacks on Americans and coalition forces and against the US backed Afghan government. The war is not over in Afghanistan, and the warlords are not happy with the central government. (See "Iraq War May Stir Afghans", Arizona Republic, p. A23, February 2, 2003).
What is the real reason the US wants to invade Iraq? This writer believes that the US administration wants to control the vast oil reserves in Iraq. This writer also believes that Iraq is a threat to Israel, and the US is doing Israel’s bidding to protect Israel, possibly to secure water for Israel, to take the focus off the crimes against humanity that Israel is committing against the Palestinians, and to distract the world’s attention from the Palestinian-Israeli conflict so that Israel can make a major push to steal all of Palestine (e.g., displace the people and bulldoze their homes).
RELEVANCE OF THE UNITED NATIONS AND INTERNATIONAL LAW
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 UN Charter gives the Security Council primary responsibility for maintaining international peace and security. The Security Council, alone, has the power toback up its declarations with actions to ensure compliance with them.
Chapter VII, Article 39 provides:
"The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."
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, itmay 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."
Five of the Council’s 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. That is why, over the years, the US was able to defeat so many UN resolutions condemning Israel’s actions, particularly against the Palestinians.
The UN’s goals were idealistic, but the world had just ended an international conflict against some rogue nations who aggressively waged war against others who had not attacked the invaders. The world governments at the time, including the United States, wanted a mechanism in place to prevent self-anointed demagogues from invading other nations. The UN Charter did recognize the inherent right of individual or collective self-defense if an armed attack occurred against any member of the United Nations. In other words, if a UN member were attacked or invaded by another nation, the attacked nation could defend itself.
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."
Reprisal is a concept also recognized under international law but very seldom used, and even then, (1) can only be executed by agencies or instrumentalities of a state; (2) must be proportionate; and (3) must follow a failed attempt to resolve the violation by peaceful negotiation.
A reprisal is an act of self-help by the injured state, responding after an unsatisfied demand to an act contrary to international law on the part of the offending state. The reprisal would be illegal if the previous act contrary to international law had not furnished the reason for the reprisal. The aim of the reprisal is to impose on the offending state reparation for the offense or the return to legality in the avoidance of new offenses. Reprisals are different than acts of self-defense. In self-defense, force is applied to counter "an immediate and physical danger" to the state, whereas reprisals coerce another state to abide by international law.
Any actions by the United States to invade Iraq are not to counter an immediate and physical danger and certainly; therefore, it could not be considered to be self-defense; and such a devastating invasion for allegedly violating UN resolutions under these circumstances certainly would not be a proportionate response.
The United Stares has no more legal authority to invade Iraq than it did to invade Afghanistan under the pretense of fighting "terrorism". The issue is not simply about whether or not Iraq may have technically violated UN resolution 1441 by having some semi-trucks and trailers with some chemical or biological agents which could become weapons—the issue is whether the horrendous bombardment of Iraq by the US and its cronies becomes genocide, a violation of the law of war, or a crime against humanity, itself.
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 policy of the Department of Defense is to ensure: (1) that the law of war obligations of the United States are observed and enforced by the U.S. armed forces; (2) that a program designed to prevent violations of the law of war is implemented by U.S. armed forces; and (3) that alleged violations of the law of war whether committed by or against U.S. or enemy personnel are promptly reported, thoroughly investigated, and corrective action is taken if appropriate. (See Department of Defense, DoD Law of War Program, DoD Directive 5100.77, Washington, GPO, July 10, 1979).
The law of war is derived from two principle sources--Lawmaking Treaties (or Conventions) such as The Hague and Geneva Conventions and 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 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).
Of course, defended places such as forts, defended cities with military forces present or passing through, munitions factories, military supply camps, warehouses, transportation facilities, or other places devoted to support the military operations may be attacked or bombarded whether defended or not. (Ibid.).
The Conventions 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).
Specifically dealing with delivery of munitions from aerial platforms, the Hague Convention of 1907 said:
"There is no prohibition of general application against bombardment from the air of combatant troops, defended places, or other legitimate military objectives." (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 objective 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 Iraq:
"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, Department of the Army, Washington, GPO, p. 36, September 1979).
According to Article 51, the United Nations encourages self-defense by its members against an armed attack, but the invasion of Iraq by the United States is not an act of self-defense. This writer believes that if the US attacks and invades Iraq with ground forces simply because Iraq may have not stopped developing weapons of mass destruction, or was developing weapons of mass destruction, or actually has weapons of mass destruction, the US would be violating the UN Charter. Iraq would be justified in defending itself and could legally form a coalition to wage war against the United States.
Arguably, according to the UN Charter, to which the United States was a signatory, the other nations could vote to take unified military action in support of Iraq against the United States for its armed attack against Iraq. It is also possible that the US could bribe or otherwise coerce the United Nations to legitimize an invasion of Iraq through a UN resolution thereby making the aforementioned principles of international law irrelevant.
Did the United States violate the spirit and intent of the law of war relating to the bombing of Iraq in Operation Desert Storm? This writer believes that massive bombing campaigns on Iraqi civilian populated areas violate the aforementioned considerations relating to the law of war.
Is the US violating international law by invading Iraq’s air space? Yes. Is the US in violation of international law if it unjustifiably invades a sovereign nation like Iraq who has never attacked the US or otherwise "threatened" the US other than in self-defense? Yes.
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 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 individual’s interests. /24
The Rome Statute of The International Criminal Court gives the Court jurisdiction over the crime of genocide; crimes against humanity; war crimes; and the "crime of aggression", which has yet to be defined. Perhaps a US invasion of Iraq could 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 innocent Iraqi citizens could be cited as war crimes or crimes against humanity or even genocide.
If the European Union continues to grow economically and aligns militarily with Russia and China, rogue "political and military leaders", including those from of the US, could find themselves before the International Criminal Court. Americans often think of the other "guy" as the bad guy, and they find it difficult to understand that the world community might find the act of one nation invading another nation causing death and destruction for no justifiable reason to be repugnant.
There may be many reasons why the United States feels the need to be at war with Iraq. The "party line" has been that Saddam Hussein is evil; he has weapons of mass destruction; he is a threat to the United States; he has violated UN resolutions; etc.
This writer believes that the real reason for warring with Iraq stems from the US desire to control vast deposits of oil in Iraq; to control an abundant supply of water (which Israel desperately needs); to protect Israel; and to accomplish the first step of a strategic vision of the Middle East to create a regional balance of power overwhelmingly in Israel’s favor. (See "Too Many Smoking Guns to Ignore: Israel, American Jews, and the War on Iraq" by Bill and Kathleen Christison, former CIA analysts, CounterPunch, www.counterpunch.org, January 25, 2003).
The thinking from the pro-Israeli, neo-conservative policymakers has been that after the ouster of Saddam Hussein, the United States would have more leverage to act against Syria and Iran, be in a better position to resolve the Israeli-Palestinian conflict, and become less reliant on Saudi oil. (id.).
In a letter to George W. Bush released on the eve of his State of the Union Address, the Project for the New American Century (PNAC), called for an increase in the defense budget by as much as $100 billion next year to deal with potential military problems around the world including Iraq, Afghanistan, and Central Asia as well as Korea, Iran, and China. The letter notes that removing Saddam Hussein is "…the first step in carrying out your (Bush’s) strategic vision for the Middle East…". (See "Pump Up the Pentagon, Hawks Tell Bush" by Jim Lobe, January 28, 2003, reprinted courtesy of the Project Against the Present Danger, www.presentdanger.org).
Some of these pro-Israeli neo-conservatives who support PNAC are Rupert Murdoch, William Kristol, Donald Rumsfeld, Dick Cheney, Paul Wolfowitz, Lewis Libby, Robert Kagan, Peter Rodman, Elliott Abrams, and Richard Perle. PNAC is closely tied to the neo-conservative American Enterprise Institute (AEI) from which it rents office space. (id.).
When Iraq had been at war with Iran, the United States supported Saddam Hussein’s war machine with arms, money, technology, and weapons of mass destruction, including chemical weapons. In a witness statement before the Senate Appropriations Committee on March 6, 1990, a person very knowledgeable of matters relating to the Middle East spoke about what he thought the United States should do regarding Iraq. To put the statement in context, one must remember that Iraq and Iran had been at war for several years. (See "U.S. Policy in the Persian Gulf and Kuwaiti Reflagging" by Michael H. Armacost, Undersecretary of State for Political Affairs in the Reagan Administration, reprint of a statement before the Senate Foreign Relations Committee on 16 June 1987, Air War College Associate Studies Vol. II, LSN 33, 1st Ed., pp. 115-118).
The senate witness said:
"The cease-fire with Iran has allowed Iraq to resume its bid for leadership and influence within the Arab world. Iraq ended the war with one of the largest and best-equipped military forces in the world...
Even though it enjoys a significant post-war military advantage over Iran, Iraq continues to import arms. Of greater concern, however, is its domestic arms industry, the most advanced in the region.
Although generally mistrustful of the U.S., Iraq would welcome measured U.S. participation in its economic development. Currently, oil exports make it America’s second largest Middle Eastern trading partner. The U.S. should continue to develop its contacts with Iraq by building selectively on existing political and economical relationships..." (See Reprint of a Witness Statement Before the Senate Appropriations Committee by Gen. H. Norman Schwartzkopf, Commander in Chief, United States Central Command, on March 6, 1990, Air War College Associate Studies Vol., II, LSN 33, 1st Ed., pp. 80-103).
The significance of this testimony is: (1) that it considered Iraq as a "partner" and not a "threat" to the United States; (2) that a year later the United States was at war with Iraq; and (3) that the testimony was given by General H. Norman Schwartzkopf, the field commander of the forces to defeat Iraq.
So why did the US have to go to war with Iraq? Was it really because Iraq invaded Kuwait?
Eight days before his August 2, 1990 invasion of Kuwait, Saddam Hussein met with April Glaspie, then America’s ambassador to Iraq. It was the last high-level contact between the two countries before Iraq went to war. She told Saddam that the United States would like him to settle his dispute with Kuwait (Kuwait had been slant oil drilling under Iraq) peacefully, but she added , "We have no opinion on the Arab-Arab conflicts, like your border disagreement with Kuwait." (See "Henry Hyde Has the Right Answer—Do We need a War with Iraq?" by Terence P. Jeffrey, Human Events On Line, The Week of October 29, 2001).
Saddam Hussein was stunned by the vehement response from the West to his occupation of Kuwait based on what Glaspie told him a little over a week earlier. Angry journalists confronted Glaspie, clutching copies of the transcript of her session with Saddam, accusing her of giving carte blanche to take over Kuwait. At one of these sessions a rattled Glaspie replied, "I didn’t think…the Iraqis were going to take all of Kuwait." (Emphasis added). (See "Bombs Over Baghdad: 10 years after Desert Storm" by Martin O’Malley & Owen Wood, CBS News On Line, January 2001). Glaspie was removed from her post.
After the set-up, the lies began.
One of the main reasons for America going to war against Iraq in 1990 was because the White House declared there were satellite photos showing Iraqi tanks and troops massing on the borders of Kuwait and Saudi Arabia threatening invasion of Saudi Arabia. The reports fueled the war hysteria and frightened the Saudis, who then agreed to full cooperation with US military forces. They were a major reason used to convince the American people of the justification of the war to protect and defend the oil supplies so vital to the West. The photos were never released, and Russian Satellite photos show there was no such large scale massing of troops as the US claimed. (See "Unanswered Questions About the Supposed Iraqi Threat to Saudi Arabia in 1990" FROM PRESS REPORTS in 1990 by the Editor, Jon Basil Utley, Christian Science Monitor).
Thus, the Bush (the elder) administration lied when it stated on August 8, 1990, that the purpose of the US troop deployment to Saudi Arabia was "strictly defensive" and necessary to protect Saudi Arabia from an imminent Iraqi invasion.
As previously stated, Bush (the elder) wrestled with the idea of invading Iraq for a lot of disingenuous reasons until he decided it was to rescue Kuwait. He sought support from Congress to use American military forces in Iraq. Many members of Congress were not enthusiastic about giving the President a resolution supporting military action--they wanted to give the sanctions more time. The vote in Congress was going to be close. (See "Bracing for War" by Tom Morganthau, et al.,Newsweek, January 21, 1991, pp. 16-19).
Saddam Hussein proposed withdrawing from Kuwait if the United States would consider the Palestinian problem, which related to the allegations that Israel was occupying territory in Palestine in violation of United Nations’ resolutions, but American Jews did not want "linkage" of the two issues. (See "Why ‘Linkage’ Doesn’t Connect" by Jonathan Alter, Newsweek, p. 24, January 21, 1991). Ultimately, Jewish influence, through AIPAC, pressured the "doves" in Congress to give Bush the authority to commit U.S. troops to combat in Iraq. (See "Pro-Israel Lobbyists Quietly Backed Resolution Allowing Bush to Commit U.S Troops to Combat",Wall Street Journal, January 28, 1991, pp. A14-A15).
The propaganda war commenced when a teenaged Kuwaiti woman known only as "Nayirah" told a US Congressional committee that she watched Iraqi troops rip respirators from premature babies in a Kuwaiti hospital, leaving the infants to die. President George Bush, the elder, often spoke of the villainy, taking of "babies from the incubators and scattered like firewood across the floor". But this was all a lie. No respirators were ripped from any babies in any incubators. It was a fabrication to create loathing against Iraq. Little "Nayirah" turned out to be Nayriah Sabah, the daughter of Kuwait’s ambassador to the US. Her visit to the congressional committee had been arranged by the US advertising agency, Hill & Knowlton. (See "Bombs Over Baghdad: 10 years after Desert Storm" by Martin O’Malley & Owen Wood,CBS News On Line, January 2001).
Another reason spouted off by Bush (the elder) and George W. for toppling the "evil" Saddam Hussein is because he allegedly "gassed his own people". The accusation that Iraq has used chemical weapons against its citizens is a familiar chant by the warmongers. The hard evidence most often cited concerns the gassing of Iraqi Kurds at the town of Halabja in March 1988, near the end of the Iran-Iraq war.
Stephen C. Pelletiere, the former Central Intelligence Agency’s senior political analyst on Iraq during the Iran-Iraq war, and former professor at the Army War College from 1988 to 2000, was privy to much of the classified material that flowed through Washington having to do with the Persian Gulf. He also headed a 1991 Army investigation into how the Iraqis would fight a war against the United States. The classified version of the report went into much detail about the Halabja affair.
The gassing at Halabja occurred during the course of a battle between the Iraqis and the Iranians. Iraq used chemical weapons to try to kill the Iranians who seized their town, which is in northern Iraq not far from the Iranian border. The Kurdish civilians who died had the misfortune to be caught up in that exchange, but they were not Iraq’s main target. After the battle, the Defense Intelligence Agency investigated and produced a classified report, which asserted that Iranian gas killed the Kurds, not Iraqi gas; however, the condition of the Kurd’s bodies indicated they were killed with a blood agent—a cyanide-based gas—which Iran was known to use. The DIA found that both Iran and Iraq used gas against each other in the battle around Halabja.
The Iraqis probably had mustard gas in the battle and were not known to have possessed blood agents at the time. (See "A Crime or an Act of War" by Stephen C. Pelletiere, New York Times, Opinion, Friday, 31 January 2003).
Operation Desert Storm commenced, and the war was short-lived. The allied coalition forces heavily bombarded Iraq with "smart bombs", "dumb bombs", cruise missiles, and everything in between. Iraq was driven out of Kuwait in accordance with the UN objective, and Iraq was subjected to some UN mandates per Security Council Resolutions. What were the overall effects of the U.S. air raids in the Persian Gulf War? Greenpeace, the environmental protection organization conducted interviews with international relief workers, reporters, U.S. officials, and news reports. Greenpeace’s report said that over 150,000 people died as a result of the war with Iraq and at least 5 million lost their homes or jobs. (See "Gulf War Resulted In 150,000 Deaths, Greenpeace Says," Arizona Republic, May 29, 1991, p. A10).
The majority of the bombing casualties were caused by "dumb" bombs and by the 12 million to 16 million bomblets released by an estimated 60,000 to 80,000 cluster bombs dropped by allied planes. (Ibid.).
As much as the U.S. media (which was fed its information by the military) portrayed the "smart bombs" striking targets, the truth is that the majority of the munitions hurled on Iraq and Kuwait were "dumb" bombs. Allied jets dropped 88,500 tons of bombs on Iraq and Kuwait, but about 70 percent of them missed their targets. The precision-guided bombs, the icon of Pentagon briefings and the military’s preferred image of the war, made up barely 7 percent of the U.S. tonnage dropped on Iraqi targets, said General Merrill McPeak, Air Force Chief of Staff. (See "88, 500 Tons of Bombs -- 70% Missed", Arizona Republic, March 16, 1991, p. A2). A senior Pentagon official said 81,980 tons of "dumb" or unguided bombs had an accuracy of only about 25 percent. (Ibid.)
The extent of actual unnecessary death and destruction inflicted upon Iraqi non-military targets may never be known, but suffice to say that it is impossible to have conducted the awesome aerial bombardment of Baghdad and other populated areas of Iraq and not have inflicted massive civilian casualties. It is reasonable to conclude that there was a great deal of collateral damage—not destruction of military targets—caused by the extensive aerial bombardments of populated cities like Baghdad. (For a more in-depth discussion of the bombardment of Iraq during Desert Storm, see www.joeabodeely.com "Law of War Considerations of Aerial Bombardment of Iraq in Operation Desert Storm" by Colonel Joseph E. Abodeely, a Research Report for Air War College Associate Studies, Air University, October 1991).
The UN imposed sanctions on Iraq, after the war, 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, and, apparently, UNSCOM has not provided the "international supervision" as envisioned under paragraph 8 until recently.
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, and the United Nations who did not fulfill their obligation of "international supervision" had no concern about Iraq until George W. made an issue of non-compliance although the sanctions were still in place under Resolution 687.
Iraq has never attacked the US.
Some may say that the shooting at US pilots who fly over the "UN no-fly zones" by the Iraqis constitutes "attacks" on the US. US and British warplanes have bombed more that 80 targets in Iraq’s southern "no-fly" zone over the past five months, 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 does not recognize the no-fly zones or the US assertion that it is enforcing UN resolutions. Last fall, 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 says it fires at the aircraft because they are violating Iraqi airspace. (See "Airstrikes in Southern Iraq ‘No-Fly’ Zones Mount" by Vernon Loeb, Washington Post, January 15, 2003).
George W. Bush has done everything in his power to justify a US invasion of Iraq. He says he wants to attack Iraq because it may have weapons of mass destruction, but he lacks significant, credible evidence to support his claim. Hans Blix, chief chemical and biological weapons inspector, disputed allegations by the Bush administration about the Iraqis hiding illicit materials or hiding scientists or penetrating the UN inspection agency. (See "Chief Weapons Inspector Disputes Bush Spin On Iraq Report", Arizona Republic, p. A22, January 31, 2003). Mohamed ElBaradei, head of the International Atomic Energy Agency (IAEA), said, that in his view, Iraq was not yet in material breach of a UN resolution on disarmament contrary to what Britain and the United States have stated. (See "Iraq Not In Breach of UN Arms Resolution", Reuters, January 30, 2003).
On February 5, 2003 Secretary of State Colin Powell told the United Nations Security Counsel that Saddam Hussein violated UN resolutions, was a threat because he still had weapons of mass destruction, was assisting terrorists, and reliable "sources" proved his case. Although his presentation was glib, it lacked substance and was clearly insufficient to justify raining 800 Tomahawk Cruise missiles (2000 pound flying, guided bombs) on Iraqi mothers, fathers, sons, daughters, doctors, lawyers, taxi drivers, merchants, etc.
If Colin Powell were cross-examined on the identities, trustworthiness, or motives of his "sources", or on why he used drawings rather than satellite photos, or how he knew what was in trucks or buildings, or how Saddam is responsible for alleged poison camps supposedly run by terrorists in Kurdish areas outside of Saddam’s control, or why the US didn’t turn over its evidence to the inspectors as required by UN resolution 1441, he would probably look quite foolish. (See "Cross-Examining Colin" by William Rivers Pitt, Truthout| Perspective, Thursday, 06 February 2003). It has now been disclosed that a British intelligence dossier used by Colin Powell in his presentation has been discredited by several academics, who say they recognized most of the dossier as lifted, verbatim, from articles published in the U.S. journal, The Middle East Review of International Affairs and in Jane’s Intelligence Review. (See "Britain Stands By Iraq Report", Reuters, February 7, 2003).
Bush says Iraq has violated UN resolutions, but the UN and Bush know that Israel has violated, and is still violating, several times more resolutions than Iraq has. North Korea, Israel, and Pakistan—all have nuclear weapons and have not agreed to the nuclear non-proliferation treaty. Bush ignores this while Israel commits genocide in Palestine, which he also ignores.
Al Qaeda is a major threat, and an unjustified invasion against Iraq would inflame the Islamic extremists and add to their numbers and incite their wrath, which he ignores. The commander of US forces in Afghanistan said a war in Iraq could provoke attacks on Americans and coalition forces and against the US backed Afghan government. The war is not over in Afghanistan, and the warlords are not happy with the central government. (See "Iraq War May Stir Afghans", Arizona Republic, p. A23, February 2, 2003).
What is the real reason the US wants to invade Iraq? This writer believes that the US administration wants to control the vast oil reserves in Iraq. This writer also believes that Iraq is a threat to Israel, and the US is doing Israel’s bidding to protect Israel, possibly to secure water for Israel, to take the focus off the crimes against humanity that Israel is committing against the Palestinians, and to distract the world’s attention from the Palestinian-Israeli conflict so that Israel can make a major push to steal all of Palestine (e.g., displace the people and bulldoze their homes).
RELEVANCE OF THE UNITED NATIONS AND INTERNATIONAL LAW
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 UN Charter gives the Security Council primary responsibility for maintaining international peace and security. The Security Council, alone, has the power toback up its declarations with actions to ensure compliance with them.
Chapter VII, Article 39 provides:
"The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."
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, itmay 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."
Five of the Council’s 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. That is why, over the years, the US was able to defeat so many UN resolutions condemning Israel’s actions, particularly against the Palestinians.
The UN’s goals were idealistic, but the world had just ended an international conflict against some rogue nations who aggressively waged war against others who had not attacked the invaders. The world governments at the time, including the United States, wanted a mechanism in place to prevent self-anointed demagogues from invading other nations. The UN Charter did recognize the inherent right of individual or collective self-defense if an armed attack occurred against any member of the United Nations. In other words, if a UN member were attacked or invaded by another nation, the attacked nation could defend itself.
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."
Reprisal is a concept also recognized under international law but very seldom used, and even then, (1) can only be executed by agencies or instrumentalities of a state; (2) must be proportionate; and (3) must follow a failed attempt to resolve the violation by peaceful negotiation.
A reprisal is an act of self-help by the injured state, responding after an unsatisfied demand to an act contrary to international law on the part of the offending state. The reprisal would be illegal if the previous act contrary to international law had not furnished the reason for the reprisal. The aim of the reprisal is to impose on the offending state reparation for the offense or the return to legality in the avoidance of new offenses. Reprisals are different than acts of self-defense. In self-defense, force is applied to counter "an immediate and physical danger" to the state, whereas reprisals coerce another state to abide by international law.
Any actions by the United States to invade Iraq are not to counter an immediate and physical danger and certainly; therefore, it could not be considered to be self-defense; and such a devastating invasion for allegedly violating UN resolutions under these circumstances certainly would not be a proportionate response.
The United Stares has no more legal authority to invade Iraq than it did to invade Afghanistan under the pretense of fighting "terrorism". The issue is not simply about whether or not Iraq may have technically violated UN resolution 1441 by having some semi-trucks and trailers with some chemical or biological agents which could become weapons—the issue is whether the horrendous bombardment of Iraq by the US and its cronies becomes genocide, a violation of the law of war, or a crime against humanity, itself.
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 policy of the Department of Defense is to ensure: (1) that the law of war obligations of the United States are observed and enforced by the U.S. armed forces; (2) that a program designed to prevent violations of the law of war is implemented by U.S. armed forces; and (3) that alleged violations of the law of war whether committed by or against U.S. or enemy personnel are promptly reported, thoroughly investigated, and corrective action is taken if appropriate. (See Department of Defense, DoD Law of War Program, DoD Directive 5100.77, Washington, GPO, July 10, 1979).
The law of war is derived from two principle sources--Lawmaking Treaties (or Conventions) such as The Hague and Geneva Conventions and 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 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).
Of course, defended places such as forts, defended cities with military forces present or passing through, munitions factories, military supply camps, warehouses, transportation facilities, or other places devoted to support the military operations may be attacked or bombarded whether defended or not. (Ibid.).
The Conventions 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).
Specifically dealing with delivery of munitions from aerial platforms, the Hague Convention of 1907 said:
"There is no prohibition of general application against bombardment from the air of combatant troops, defended places, or other legitimate military objectives." (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 objective 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 Iraq:
"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, Department of the Army, Washington, GPO, p. 36, September 1979).
According to Article 51, the United Nations encourages self-defense by its members against an armed attack, but the invasion of Iraq by the United States is not an act of self-defense. This writer believes that if the US attacks and invades Iraq with ground forces simply because Iraq may have not stopped developing weapons of mass destruction, or was developing weapons of mass destruction, or actually has weapons of mass destruction, the US would be violating the UN Charter. Iraq would be justified in defending itself and could legally form a coalition to wage war against the United States.
Arguably, according to the UN Charter, to which the United States was a signatory, the other nations could vote to take unified military action in support of Iraq against the United States for its armed attack against Iraq. It is also possible that the US could bribe or otherwise coerce the United Nations to legitimize an invasion of Iraq through a UN resolution thereby making the aforementioned principles of international law irrelevant.
Did the United States violate the spirit and intent of the law of war relating to the bombing of Iraq in Operation Desert Storm? This writer believes that massive bombing campaigns on Iraqi civilian populated areas violate the aforementioned considerations relating to the law of war.
Is the US violating international law by invading Iraq’s air space? Yes. Is the US in violation of international law if it unjustifiably invades a sovereign nation like Iraq who has never attacked the US or otherwise "threatened" the US other than in self-defense? Yes.
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 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 individual’s interests. /24
The Rome Statute of The International Criminal Court gives the Court jurisdiction over the crime of genocide; crimes against humanity; war crimes; and the "crime of aggression", which has yet to be defined. Perhaps a US invasion of Iraq could 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 innocent Iraqi citizens could be cited as war crimes or crimes against humanity or even genocide.
If the European Union continues to grow economically and aligns militarily with Russia and China, rogue "political and military leaders", including those from of the US, could find themselves before the International Criminal Court. Americans often think of the other "guy" as the bad guy, and they find it difficult to understand that the world community might find the act of one nation invading another nation causing death and destruction for no justifiable reason to be repugnant.
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