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In the Name of Democracy
American War Crimes In Iraq And Beyond
By Jeremy Brecher, Jill Cutler, Brendan Smith
Henry Holt and CompanyCopyright © 2005 Jeremy Brecher, Jill Cutler, and Brendan Smith
All rights reserved.
For the last sixty years, the U.S. Supreme Court, military judges, international lawyers, and American-sanctioned war crimes tribunals have engaged in investigation and prosecution of war crimes activity. As early as 1946, the U.S. Supreme Court affirmed the criminal liability of a Japanese commander who failed to prevent atrocities by his troops. U.S. military operations manuals regularly incorporate Geneva Conventions provisions, with, for example, clauses for mandatory POW tribunals set up in the battlefield. And in the last decade alone, U.S. administrations have supported war crimes tribunals in the former Yugoslavia, Rwanda, Sierra Leone, and East Timor. As U.S. troops readied their attack on Baghdad, President Bush proclaimed that if Iraqis "take innocent life, if they destroy infrastructure, they will be held accountable as war criminals ... War crimes will be prosecuted. War criminals will be punished."
What happens when the same standards are applied to U.S. activities in Iraq and other aspects of the war on terror? The answer is obscured by the fact that reliable, independent information is difficult to acquire. In Iraq, American journalists are restricted to the fortified "Green Zone," free to attend Pentagon press briefings but often too threatened to independently investigate or talk to average Iraqis. It is further obscured by an Administration that, according to the New York Times, "drags its feet on public disclosure, stonewalls Congressional requests for documents and suppresses the results of internal investigations."
Indeed, the Bush administration is engaged in a large-scale cover-up of war crimes. Its suppression of information ranges from denying the use of illegal napalm on the battlefield and refusing to track the Iraqi civilian death toll to hiding "ghost detainees" from the International Committee of the Red Cross and withholding executive orders relating to the prisoner abuse at Abu Ghraib. These activities culminate in the systematic refusal of the Administration to open full and proper investigations into allegations of war crimes. In the words of John Dean, the former whistle-blowing Nixon counsel, this is a cover-up "worse than Watergate."
Despite the obstacles, intrepid journalists, lawyers, and investigators — aided by courageous whistle-blowers inside the government — have revealed evidence of terrible crimes, including civilian killings, use of illegal, indiscriminate weapons, and deliberate attacks on ambulances and residential areas. They show the now notorious prisoner abuse scandal to be the mere tip of the iceberg, indicating an administration engaged in large-scale and systematic criminal activity.
A court of law is the appropriate place to determine legal culpability. But the evidence presented in part I makes an overwhelming case that serious war crimes have been committed, and that those responsible for them should be removed from all positions of honor and authority and charged with criminal offenses.
"An Illegal War" tracks the Administration's launching of an illegal, aggressive war, deemed the ultimate crime by the Nuremberg Tribunal and the UN Charter. Drawing on the expertise of renowned international lawyers and scholars, it examines in detail U.S. arguments for invading Iraq, including claims of self-defense, humanitarianism, and implied authorization by the UN Security Council.
"Crimes of War and Occupation" illustrates that the Bush administration's crimes are not confined to aggression and torture, but rather extend to its conduct of the war and subsequent occupation of Iraq. For example, the Administration's bombing of residential neighborhoods, use of banned napalm, and denial of water to civilians violate the Geneva Conventions' primary requirement that occupying forces protect civilian populations from the brutalities of war.
Finally, "Tantamount to Torture" tracks the Administration's systematic use of torture to fight the war on terror. This emerging scandal is woven together with victims' statements, news articles, classified FBI memos, and investigative reports by the Department of Defense.
Part I does not seek to evoke a "shock effect" by presenting the most gruesome examples available. Rather, its goal is to provide the information needed to evaluate the legality of U.S. policies and practices. Later parts of this book will explore the social, political, and moral implications of these realities. This part presents the law and the facts.
AN ILLEGAL WAR
Following the attacks on the World Trade Center in 2001, key members of the Bush administration began pushing for the invasion of Iraq. Richard Clarke, the former counterterrorism chief for President Bush, recalls Secretary of Defense Donald Rumsfeld saying in the days after September 11, "We needed to bomb Iraq ... There aren't any good targets in Afghanistan. "This was despite clear evidence provided by the CIA and the U.S. State Department that Iraq played no role in the Trade Center bombings. But the war plans of the Pentagon faced a serious hurdle: it is illegal to invade another country.
Principle VI of the Nuremberg Charter states that it is a crime to engage in the "planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances." Of course nations still resort to war. But in the face of a general rule against the use of force, such violence must fall within one of two narrowly defined exceptions: either the attack has been authorized by the UN Security Council, or it is justified under the doctrine of self-defense.
Well aware of this prohibition, the Bush administration argued both exceptions simultaneously. First, asserting self-defense, it claimed Iraq to be a threat to the United States based on "evidence" of Iraq's stockpiling of weapons of mass destruction (WMD) — despite UN weapons inspectors' inability to find such evidence.Second, unable to garner support at the UN Security Council, the Administration argued an "implied" right to invade Iraq drawn from former UN Security Council resolutions.
The response by the national and international legal communities to these arguments was clear and resounding. A letter sent to the White House on behalf of more than one thousand law professors and U.S. legal organizations stated, "We consider that any future use of force without a new U.N. Security Council Resolution would constitute a crime against peace or aggressive war in violation of the U.N. Charter."
The selections in this section examine in detail U.S. arguments for going to war. "Tearing Up the Rules: The Illegality of Invading Iraq," a report prepared by the Center for Economic and Social Rights, addresses the Bush administration's self-defense claims, as well as subsequent humanitarian justifications. Also included is a short excerpt of a BBC interview with UN Secretary-General Kofi Annan, in which he unequivocally states, more than a year after the invasion, that the U.S. war "was illegal." Finally, in Some Legal Aspects of the Military Operation in Iraq, Christian Dominice, the Secretary-General of the Institute of International Law, examines and rejects U.S. arguments for implied authorization for the war by the UN Security Council.
If the Administration's legal case for war rested on stronger footing, this section might have required documents uncovered after the invasion that reveal the United States' misrepresentation of Iraq's WMD. These post-invasion documents include the secret "Downing Street Memo," which disclosed the minutes of a July 23, 2002, meeting of Tony Blair and his top military and intelligence officials. The head of the British intelligence service, MI6 (identified in the memo as "C"), reported on his recent trip to Washington: "Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy." Such documents revealing the Bush administration's intention to attack Iraq, and the failure to find WMD, merely heap excess evidence onto an already open-and-shut case.
Most of the following excerpts were written in 2003 during the lead-up to war and operate on the assumption that the Administration's factual claims were true. They clearly establish that the United States planned, prepared, and initiated a war of aggression.
The invasion of Iraq is illegal for good reason. International law forbids aggressive war in any form, whether under the cloak of "military security," "democracy," or "fighting terrorism." It forces nations to present their claims and build consensus; and with a few but firm binding laws it works to contain raw, self-interested aggression.
Selected Principles of International Law
CHARTER OF THE UNITED NATIONS
Article 2(3): All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
Article 2(4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
CHARTER OF THENUREMBERG TRIBUNALS
PRINCIPLE VI: (a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned in (i).
PRINCIPLE VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.
Tearing Up the Rules: The Illegality of Invading Iraq
CENTER FOR ECONOMIC ANDSOCIAL RIGHTS
As the United States and the United Kingdom prepared to invade Iraq, their officials made statements at the UN and elsewhere justifying their attack. Many international law scholars condemned their arguments and maintained that such an attack would be aggression and a crime against peace. The following excerpt is from a report that summarizes their main arguments. The report was prepared in March 2003 by the Center for Economic and Social Rights, an international human rights organization supported by the Ford and MacArthur foundations. Based in New York, the center holds consultative status with the United Nations.
PROHIBITION AGAINST FORCE IN INTERNATIONAL LAW
The United Nations was created in a mood of popular outrage after the horrors of World War II. Its central purpose was to serve as an instrument for maintaining peace in order "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind." Leading jurists consider the U. N. Charter as the highest embodiment of international law codifying and superseding existing laws and customs.
Under Article 1(1) of the Charter, the world organization's central purpose is "to bring about by peaceful means and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace." Similarly, Article 2(3) obligates member states to "settle their international disputes by peaceful means," while Article 2(4) provides that:
SOURCE: Available at http://www.cesr.org/filestore2/download/523. Copyright © 2005 by Roger Norman and Center for Economic and Social Rights.
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Only two exceptions, specified in the Charter and supplemented by customary international law, permit the lawful use of force. First is the right of individual or collective self-defense in response to an armed attack, under Article 51. Second is the specific authorization of force by the Security Council as a last resort to maintain international peace and security, under Chapter VII. If the planned attack by the U. S. and U. K. against Iraq fails to meet the specific criteria set forth in these exceptions, or under principles of customary international law, then it will be an unlawful act of aggression — defined and condemned by the Nuremberg Military Tribunal as "the supreme international crime."
RIGHT OF SELF-DEFENSE IN INTERNATIONAL LAW
Limits of Self-Defense in the UN Charter
Article 51 of the UN Charter recognizes that member states have the "inherent right of individual or collective self-defense if an armed attack occurs" (emphasis added). The urgency of responding to such attack entitles a state to defend its sovereignty through the unilateral use of retaliatory force — but only "until the Security Council has taken measures necessary to maintain peace and security." As discussed in Section IV below, once the Security Council formally determines the existence of a threat to international peace and security, individual states may no longer exercise the right of self-defense without the Council's express prior approval (as happened in the 1991 Gulf War).
Article 51 applies only in the event of an actual armed attack. As Iraq has not attacked the U. S. or U. K., and there is no credible, substantiated evidence connecting Iraq to the September 11th attacks, the U. S. and U. K. may not invoke self-defense under the U. N. Charter to justify attacking Iraq. They must therefore rely on the disputed doctrine of preemptive self-defense under customary law.
Preemptive Self-Defense in Customary International Law
Although the Charter itself does not provide legal authority to use force against a perceived threat of imminent attack, there does exist a disputed customary international law right of preemptive self-defense. According to the famous formulation of U. S. Secretary of State Daniel Webster, adopted by the seminal Caroline case, the legitimate exercise of this right requires "a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation."
This has been interpreted to establish a red line between "anticipatory" self-defense in response to an attack that might occur at an unknown point in the future, and "interceptive" self-defense in response to an imminent and unavoidable attack. It is generally accepted that "in the case of anticipatory self-defense, it is more judicious to consider such action as legally prohibited." Only in the rare case where interceptive self-defense can be shown, through clear and convincing evidence, as necessary to avoid a greater harm might it arguably be lawful to use force outside the limits of the Charter.
The U. S. and U. K. seek to justify war on the grounds that Iraq intended to acquire and use weapons of mass destruction against them at an unspecified point in the future. Yet despite advanced intelligence-gathering capabilities, neither country has presented any credible evidence that Iraq possessed any proscribed weapons, let alone the intent and capacity to use them in an imminent attack. After conducting more than 550 inspections in almost four months, UNMOVIC teams failed to uncover evidence that Iraq maintained either stocks of such weapons or the operational capacity to deploy and deliver them against the U. S. or U. K.Even Iraq's neighbors rejected the argument that military intervention from outside powers was necessary under the right of collective self-defense to protect them from an imminent Iraqi threat.
Under these circumstances, war against Iraq violated any reasonable interpretation of either the Charter's limited provision for self-defense exception or the customary law principle of preemptive self-defense. The potential threat Iraq posed to the U. S. and U. K. was not imminent, unavoidable, or even particularly credible. Launching a massive invasion to overthrow its government and occupy its territory in response to a dubious hypothetical future threat was neither a necessary nor proportionate response. In essence, the U. S. and U. K. argument for preemptive strike closely resembles the long-discredited doctrine of preventive war, definitively abolished after World War II.
Excerpted from In the Name of Democracy by Jeremy Brecher, Jill Cutler, Brendan Smith. Copyright © 2005 Jeremy Brecher, Jill Cutler, and Brendan Smith. Excerpted by permission of Henry Holt and Company.
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