International War Crimes Trial


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International War Crimes Trial


Statement

Is the U. S. guilty of Crimes against Peace?

To many Americans, the idea that U. S. leaders could be prosecuted for war crimes comes right out of left field.

"What do you mean war crimes? Our leaders are only protecting our nation! No foreign court should be allowed to bring politically motivated charges against our leaders! It's a new world order! In the age of terrorism the old rules of war no longer apply!"

When you see a peace protestor shouting that Bush is a war criminal, you're hearing more than partisan hyperbole. When you hear someone refer to the war in Iraq as an illegal war, such an accusation is not made lightly. As Americans we are all party to having allowed this war to take place.

In the following articles we will look at American objections to being held accountable to the rest of the world. We'll look at the issues of World Court jurisdiction and International Law,the so-called Pre-emptive Doctrine, the so-called "Enemy Combatant" exemption, and the U. S. attempt to redefine "torture".

The Jurisdiction of International Law

American law wants to take a backseat to no other. American jurists point to the matter of jurisdiction: that an American, in America, is bound by only American laws. This is well and good for protecting American citizens from what might seem to be un-American laws passed by an un-American nation.

But international law is comprised of conventions and compacts agreed upon by the multitude of nations, at minimum the majority of nations. International law is democratic in that a clear majority have agreed upon the wisdom of those laws. And like any application of democracy, one cannot exempt oneself from those laws. In any case the U.S. has ratified every law and convention applicable to the crimes of this recent war.

Nations who have not signed on, such as the Serbia of Slobodan Milosevic, sometimes try to consider themselves exempt from such treaties. Milosevic is currently trying to defend himself on the basis that he doesn't recognize the authority of the court in which he is being tried. That argument is not working for him of course.

The necessity of applying international standards to nations who have not ratified them is particularly acute when addressing the issue of rebel nations. Rebel governments cannot by definition be signatories in advance of rising to power. But actions of rebel armies must be governed by the rules of war as any other conflict.

When Charles Taylor led rebel forces into Liberia, he held himself and his fellow rebels outside the dominion of international law and was responsible for countless war crimes. His men are currently being tried at the Special Court of Sierra Leone. Charles Taylor is being tried in absentia.

The laws, in brief:

The U. S. was signatory to the Nuremberg Principles of 1950, which delineated that no war criminal in any place or time is above the law.

The most egregious of war crimes was defined by the 1946 International Military Tribunal as the "Crimes against Peace: namely, planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances". The U. S. itself drafted this language to prosecute the surviving leaders of the axis powers.

A year before, the U. S. was a major party to the UN charter, drafted in 1945, which stated that the threat or use of force against the territorial integrity or political independence of any state was illegal.

How can the U. S. argue that it should not be bound by these laws?

The International Criminal Court: We haven't signed on.

The U. S. is for the time being not obligated to abide by the rulings of the International Criminal Court because it has not yet ratified the agreement under which it was created. The 2001 Rome Statute defined the creation of a permanent ICC in The Hague, Netherlands. The ICC was empowered to prosecute war crimes committed after July 2002.

The U. S. has fought for temporary exemption from this court under the guise of protecting its peace-keeping forces from charges it cautions might be politically motivated. The U. S. has threatened to withdraw its Bosnian peace-keepers if the temporary exemption is not extended.

But these exemptions are only delaying actions. The UN General Assembly in 1968 determined there was no statutory limitation to war crimes and crimes against humanity. The U.S. is signatory to that resolution.

The Pre-emptive War Doctrine: a whole new ball-game?

Another argument the U. S. government is attempting to hide behind is the notion that the imperative of pre-emptive war has no precedence in the traditional rules of war. It's argued that the need to pre-empt terrorists in the nuclear age trumps any rule of war agreed upon until now.

Two factors are used to describe these unprecedented times. First that we live in a time of peace between nations without parallel. Second, the U. S. is the first and lone superpower to find itself with the chief peace-keeping responsibilities over the rest of the world.

A lone peace-keeper.

This notion is patently ethnocentric. The dominion over which America reigns is no different than that of any previous empire. And each previous empire shared a similar delusion of its own omniscience: the British empire over which the sun never set, the Dutch trading empire, the vast Spanish empire, the Roman Empire. No one's rule has ever extended over China, the sleeping giant, even then.

And these empires each ruled a world at peace. La PAX ROMANA. A peace in name only.

Is it fair to say that our world today is at peace? Even before the Iraq war there have been conflicts raging on all continents, around the world.

There is no peace, we are not the lone peace-keeper, we are not above the law.
Just because the average American hadn't conceived of it before does not make it new. The concept of pre-emptive war is not new.

The Nazis used the initiative of pre-emptive war until it became a virtual policy to justify all their conquests. The Nazis rallied the German people by telling them we must invade Russia lest she invade us!

No self-reflective population wants to go to war unless they become convinced it is absolutely necessary. The Germans were convinced that everyone was against them. Each conquest was a preemptive measure to guarantee the sovereignty and reign of the Third Reich.

Napoleon offered the same argument to the French people the century before. Napoleon rationalized that he was defending the gains of the French Revolution against the traditional monarchies of Europe. The monarchs were allied to crush the French. All of Napoleon's campaigns were fought in the name of the pre-emptive defense of France.

Napoleon was right of course, but his wars were illegal. Ultimately he was defeated and vilified by foe and countryman alike.

Before Hitler, the world had never known a more despicable warmonger as Napoleon. The 1800's had Napoleon. Over a hundred years later it became Hitler to whom everyone resented being compared.

Unlawful [Enemy] Combatants

The U. S. has been trying to pioneer all sorts of novelties by which it hopes to circumvent responsibility to written law. Take the concept of "enemy combatant".

The idea of treating "enemy combatants" extra-judicially has been attempted by warring parties since time immemorial to excuse the mistreatment of each other's prisoners. There have been many treaties drawn through history to regulate and ameliorate the treatment of prisoners. These efforts came mostly due to pressure from the civilian populations themselves. A lord, for example, didn't much care what happened to his soldiers once they were no longer of use to him. The population back home, the families, their fellow soldiers, did. Modern agreements date back to maritime treaties drawn in the 1700s.

The most often cited regulations guiding the treatment of prisoners are the Hague Conventions of 1907 and the Geneva Conventions of 1949. The U. S. is signatory to both.

The Fourth Geneva Convention carefully defines every assortment of combatant. The definitions are inclusive of the vague novelty of "enemy combatant". There is no such undefined category. Citizens of undetermined nationality, fighting unconventionally, have long ago been determined to deserve the same human rights as any other.

Think of the professional soldier mercenary, the privateer, the pirate. Each would presently confuse the U. S. and fall under the its special rights-deprived category.

Five hundred years ago, even pirates were not hung outright, neither were they imprisoned indefinitely. Pirates were given their day in court. The colonial courts, the British courts, and the lords in the English Parliament were very careful not to abridge even a pirate's right to Habeas Corpus.

Redefining torture

The U. S. has signed and ratified the United Nations Conventions Against Torture. It defines torture as: 

"Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." 

The U. S. declared "doctrine of pre-emptive war", serves to prove the U. S. war of aggression was premeditated.

That the U. S. has tried to redefine its responsibilities to prisoners of war, that the U. S. has asked its legal team to find wiggle room in the above torture definition, that the U. S. has shown a reckless disregard for the protection of the Iraqi civilian population, all make an easy case for convicting the U. S. government leaders of war crimes, crimes against peace and crimes against humanity.

The details will merely be the assignment of guilt.


Initial Complaint

Charging:

George W. Bush, Richard Cheney, Colin Powell, Donald Rumsfeld, and Others named
with

Crimes Against Peace, War Crimes, Crimes Against Humanity and Other Criminal Acts and High Crimes in Violation of the Charter of the United Nations, International Law, the Constitution of the United States and Laws made in Pursuance Thereof.

Preliminary Statement

These charges have been prepared prior to the first hearing of the Commission of Inquiry by its staff. They are based on direct and circumstantial evidence from public and private documents; official statements and admissions by the persons charged and others; eyewitness accounts; Commission investigations and witness interviews in Iraq, the Middle East and elsewhere; photographs and video tape; expert analyses; commentary and interviews; media coverage, published reports and accounts gathered.

Commission of Inquiry hearings will be held where evidence is available supporting, expanding, adding, contradicting, disproving or explaining these, or similar charges against the accused and others of whatever nationality. When evidence sufficient to sustain convictions of the accused or others is obtained and after demanding the production of documents from the U.S. government, and others, and requesting testimony from the accused, offering them a full opportunity to present any defense personally, or by counsel, the evidence will be presented to an International War Crimes Tribunal. The Tribunal will consider the evidence gathered, seek and examine whatever additional evidence it chooses and render its judgment on the charges, the evidence, and the law.

Crimes Against Peace
from International Military Tribunal, 1946, article 6:

6(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing "

"Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan."

Crimes Against Peace: Responsibility

Five important principles are contained in these portions of the Charter:

(1) The Charter imposes "individual responsibility" for acts constituting "crimes against peace";

(2) The term "Crimes against peace" embraces planning, preparation, initiation, or waging of illegal war;

(3) The term "Crimes against peace" also embraces participation in a common plan or conspiracy to commit illegal war;

(4) An illegal war consists of either a war of aggression, or a war in violation of international treaties, agreements, or assurances; (these two kinds of illegal war might not necessarily be the same; it will be sufficient for the prosecution to show either that the war was aggressive irrespective of breach of international treaties, agreements or assurances, or that the war was in violation of international treaties, agreements or assurances irrespective of whether or not it was a war of aggression; but the American prosecution will undertake to establish that the wars planned, prepared, initiated, and waged by the Nazi conspirators were illegal for both reasons);

(5) Individual criminal responsibility of a defendant is imposed by the Charter not merely by reasons of direct, immediate participation in the crime. It is sufficient to show that a defendant was a leader, an organizer, instigator, or accomplice who participated either in the formulation or in the execution of a common plan or conspiracy to commit crimes against peace. In this connection, the Charter declares that the responsibility of conspirators extends not only to their own acts but also to all acts performed by any persons in execution of the conspiracy.

Precedence

The majority of the Nuremberg defendants were not charged for having perpetrated the Holocaust. The majority were charged with conspiracy to wage a war of aggression. Chief among the leaders were administrators, industrialists and propagandists.


Charges:

Conspiring and ultimately launching an aggressive war - committing war crimes - committing crimes against humanity.

The following acts are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) Crimes against Peace:
namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing:

(b) War Crimes:
namely, violations of the laws or customs of war. Such violations include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity:

(c) Crimes against Humanity:
namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated ...

Additional violations

  • The use of cluster bombs in civilian areas. Several witnesses report children being wounded by these munitions lying in the street.

  • The use of napalm, phosphorus, or other incendiary bombs. These are anti-personnel weapons outlawed under the 1977 Geneva Protocols.

  • Attacks on a non-combative population, non-military targets and defenseless towns, villages, settlements and buildings.

  • The natural environment was destroyed by air assaults that were disproportionate to the desired military objective.

  • Allowing the plundering of civilian and cultural institutions. Charges cites the Al Beit Al Iraqi cultural centre in Baghdad being plundered, although American tanks were closely monitoring the area.

Prohibited weapons

  1. The use of asphyxiating gases is prohibited. The U.S. violated this by its use of fuel-air explosive bombs on Iraqi frontline troops; these bombs are terror bombs which can burn the oxygen over a surface of one or two square kilometers, destroying human life by asphyxiation.

  2. These fuel-air bombs and the U.S. use of napalm are also outlawed by the Hague and Geneva Conventions, which prohibit the use of weapons causing unnecessary harm to combatants. A particular example is the stingray blinding laser system which is supposed to knock out optics on enemy weapons, but has the side effect of blinding soldiers as well who operate the weapons.

  3. The bombing of peaceful nuclear power facilities is forbidden and particularly so because of the dangers of the spread of radioactivity. The UN International Atomic Energy Agency classified the reactors as peaceful, yet the U.S. bombed them, not caring about the spread of radioactivity. The bombing was intentional and planned in advance, clearly in violation of international law.

  4. Both the Hague Convention of 1954 and Protocol I to the Geneva Conventions prohibit attacks against historic monuments, works of art, places of worship and sites which constitute the cultural and spiritual heritage of a people. Catholic churches, a 4th century monastery and a Sunni Moslem mosque represent just some of the massive violations that occurred.

  5. Protocol I of the Geneva Convention also requires protection of the natural environment against widespread and severe damage - the U.S. massive bombing, the blowing up of reactors, the hitting of oil storage facilities all violate this prohibition.


Charged

Leaders:

Baker III, James A.
Bennett, Bill
Bolton, John
Bush Sr., George H. W.
Cheney, Dick
Gingrich, Newt, Chairman Committee for Liberation of Iraq
Olson, Ronald L., Rand Corporation
Perle, Richard,
Rove, Karl
Schultz, George, Committee for Liberation of Iraq
Thomson, James A., Rand Corporation

CONSPIRATORS:

Adelman, Ken
Abrams, Elliot, National Security Council
Armitage, Richard Lee, Deputy Secretary of State
Ashcroft, John
Blackwill, Robert D., Council on Foreign Relations
Bush, George W., President
Feith, Douglas J., Deputy Secretary of Defense
Friedman, Stephen, National Economic Council
Gaffney Jr., Frank J., spokesman
Huntington, Samuel
Ledeen, Michael
Libby, Lewis S., Secretary General to VP
Rice, Condoleeza
Woolsey, James
Zakheim, Dov S., Pentagon

Organizers:

Clarke, Victoria, publicist
Downie, Colonel Richard D., School of the Americas
Eberhart, Ralph E., Commander in Chief Forces in US
Hadley, Stephen J., Deputy National Security Advisor
Hayden, Michael V., National Security Agency
Kirkpatrick, Jeane J., Reprisentative to UN Human Rights Commission
Pipes, Daniel
Poindexter, John M., Information Awareness Office
Powell, Colin L., Secretary of State
Reich, Otto, Director of the School of the Americas, terrorist
Tenet, George J., Director of CIA

COORDINATORS:

Abraham, Spencer, Energy Secretary
Bolton, John R., Deputy Secretary of State
Evans, Don, Commerce Secretary
Fleischer, Ari, White House spokesman
Norton, Gale, Secretary of the Environment
Snow, John William, Secretary of the Treasury
Worden, Simon P., Office of Strategic Influence
Zoellick, Robert B., Chief US WTO Negotiator

OBSTRUCTIONISTS:

Harris, Katherine
Rehnquist, William Hubbs
Scalia, Antonin
Starr, Kenn
Thomas, Clarence

Instigators:

Auchter, Thorne G., Grace News Network
Falwell, Jerry
Khalilzad, Zalmay
Kissinger, Henry
Kristol, William, Project for a New American Century
Mays, L. Lowry, Clear Channel
Murkowski, Frank
Murdoch, K. Rupert, News Corporation Ltd.
Robertson, Pat

PNAC SIGNATORIES:

Cohen, Eliot A.
Decter, Midge
Dobriansky, Paula
Forbes, Steve
Friedberg, Aaron
Fukuyama, Francis
Gaffney, Frank
Ikle, Fred C.
Kagan, Donald
Podhoretz, Norman
Quayle, Dan
Rodman, Peter W.
Roden, Stephen P.
Rowen, Henry S.
Weber, Vin
Weigel, George

Accomplices:

Armey, Richard
Barr, Bob
Bauer, Gary
Bush, Jeb
Card, Andrew
Chambliss, Saxby
DeLay, Tom
Dornan, Bob
Frist, William Harrison
Hastert, Dennis
Keyes, Alan
Lott, Trent
Olson, Ted
Nickles, Don
Racicot, Marc
Souder, Mark

PROPAGANDISTS:

Ailes, Roger
Coulter, Ann
Drudge, Matt
Graham, Franklin, Pentagon televangelist
Hannity, Sean
Hughes, Karen
Hume, Brit
Kagan, Robert, Washington Post columnist
Limbaugh III, Rush
Miller, Dennis
Novak, Bob
Noonan, Peggy
O'Reilly, Bill
Reed, Ralph
Scarborough, Joe
Snow, Tony
Weiner, Michael
Will, George

Participants:

Bremer III, L. Paul, Proconsul to Iraq
Myers, Richard B., Interarms Chief of Staff
Negroponte, John D., Ambassador to Iraq
Wolfowitz, Paul D., Deputy Secretary of Defense
Franks, General Tommy,

ALLIES:

Aznar, Jose Maria, Prime Minister Spain
Berlusconi, Silvio, Prime Minister Italy
Blair, Anthony Charles Lynton, Prime Minister UK
Gotha, Simeon Saxe-Coburg, Prime Minister Bulgaria
Hoon, Geoff, Defence Secretary UK
Ingram, Adam, Minister of State for the Armed Forces
Karzai, Hamid
Sharon, Ariel, Prime Minister Israel
Straw, Jack, Foreign Secretary UK

OPPORTUNISTS:

Bechtel, Riley P., Bechtel
Carroll, Philip J. , Shell Oil, USA
Caveney, Red , American Petroleum Institute
Derr, Ken, Halliburton
Ford JR., William Clay, Ford
Irani, Ray, Occidental Petroleum
Lesar, David J., Halliburton
Monsanto
Novak, David, Yum! Brands
O'Reilly, David J. , ChevronTexaco
Raymond, Lee, ExxonMobil
Scowcroft, General Brent, Qualcomm
Sutherland, Peter, British Petroleum
Wagoner Jr, G. Richard, General Motors
Williamson, Charles R. , Unocal

Participants:

Barton, Glen A., Caterpillar, Inc.
Burnham, Daniel P. , Raytheon
Carlucci, Frank, The Carlyle Group
Chabraja, Nicholas D. , General Dynamics
Coffman, Vance D. , Lockheed Martin
Condit, Philip M. , Boeing
David, George, United Technologies
Davis Jr., Don H., Rockwell Automation
Garner, Jay, SY Coleman
Gerstner Jr., Louis V., Carlyle Group
Hemingway, Jon, Stevedoring Services of America
Immelt, Jeffrey R., General Electric
Jackson, Bruce P., Lockheed Martin
Kean, Thomas , Amerada-Hess
Lombardi, Paul V., DynCorp
Lopez, Joe, Kellogg, Brown & Root
Nunn, Sam, General Electric
Rabaut, Thomas W. , United Defense Industries
Stevens, Robert J., Lockheed Martin
Sugar, Ronald , Northrop Grumman
Vuono, General Carl E. , Military Professionals Resources Inc.

FINANCIERS:

Browne of Madingley, The Lord John, Goldman Sachs
Buffet, Warren, speculator
Weill, Sanford, Citigroup
Export Credit Agencies
The International Monetary Fund
The World Bank Group
The World Trade Organization


Conventions

Historical treaties conventions and charters:

Peace of Westphalia, 1648
the recognition of national sovereignty

Fourth Hague Convention, 1907
prohibitions on mistreating prisoners and protecting the lives and property of civilians

UN Charter, 1945,
to "maintain international peace and security" and to suppress "acts of aggression or other breaches of the peace"

"the threat or use of force against the territorial integrity or political independence" of any state is illegal.

Fourth Geneva Convention, 1949
on the Protection of Civilian Persons in Time of War,

"willful killing, torture or inhumane treatment . . . willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person."

Nuremberg Principle, 1950
no accused war criminal in any place or time is above the law.

The Hague, 1954
the Protection of Cultural Property in the Event of Armed Conflict.

ICRC, 1956
the Limitation of the Dangers incurred by the Civilian Population in Time of War.

UN General Assembly, November 26, 1968.
the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.

The Charter of the United Nations

WE THE PEOPLE OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm With in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women, and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom....

Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its members....

2. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

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.

Chapter Vl: Pacific Settlement of Disputes

Article 33

  1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

  2. The Security Council shall, when it deems necessary, call upon the parties to settle their disputes by such means.

Principles of the Nuremberg Tribunal 1950

No. 82
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. Adopted by the International Law Commission of the United Nations, 1950.

Principle I
Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V
Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle Vl
The crimes hereinafter set out are punishable as crimes under; international law:

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 under (i).

b. War crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

c. Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.

Protocol 1: Additional to the Geneva Conventions 1977

PART IV: CIVILIAN POPULATION
Section 1: General Protection Against Effects of Hostilities


Chapter I: Basic Rule and Field of Application

Article 48: Basic Rule

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

Article 49: Definition of Attacks and Scope of Application

  1. "Attacks" means acts of violence against the adversary, whether in offense or in defense.

  2. The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.

  3. The provisions of this Section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.

  4. The provisions of this Section are additional to the rules concerning humanitarian protection contained in the Fourth Convention, particularly in Part II thereof, and in other international agreements binding upon the High Contracting Parties, as well as to other rules of international law relating to the protection of civilians and civilian objects on land, at sea or in the air against the effects of hostilities.

Chapter II: Civilians and Civilian Population

Article 50: Definition of Civilians and Civilian Population

  1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A 111, lIl, (31 and 161 of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.

  2. The civilian population comprises all persons who are civilians.

  3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.

Article 51: Protection of the Civilian Population

  1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.

  2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

  3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.

  4. Indiscriminate attacks are prohibited. 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 employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

  5. 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.

  6. Attacks against the civilian population or civilians by way of reprisals are prohibited.

  7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

  8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57.

Chapter III: Civilian Objects

Article 52: General Protection of Civilian Objects

  1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.

  2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

  3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. Article 53 Protection of cultural objects and of places of worship without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:
    a. to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;
    b. to use such objects in support of the military effort;
    c. to make such objects the object of reprisals.

Article 54: Protection of Objects Indispensable to the Survival of the Civilian Population

  1. Starvation of civilians as a method of warfare is prohibited

  2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

  3. The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse Party:
    a. as sustenance solely for the members of its armed forces; or
    b. if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.

  4. These objects shall not be made the object of reprisals.

  5. In recognition of the vital requirements of any Party to the conflict in the defense of its national territory against invasion, derogation from the prohibitions contained in paragraph 2 may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity.

Article 55: Protection of the Natural Environment

  1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.

  2. Attacks against the natural environment by way of reprisals are prohibited.

Article 56: Protection of Works and Installations Containing Dangerous Forces

  1. Works or installations containing dangerous forces, namely dams, dikes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.

  2. The special protection against attack provided by paragraph I shall cease:
    a. for a dam or a dike only if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;
    b. for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;
    c. for other military objectives located at or in the vicinity of these works or installations only if they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.

  3. In all cases, the civilian population and individual civilians shall remain entitled to all the protection accorded them by international law, including the protection of the precautionary measures provided for in Article 57. If the protection ceases and any of the works, installations or military objectives mentioned in paragraph 1 is attacked, all practical precautions shall be taken to avoid the release of the dangerous forces.

  4. It is prohibited to make any of the works, installations or military objectives mentioned in paragraph 1 the object of reprisals.

  5. The Parties to the conflict shall endeavor to avoid locating any military objectives in the vicinity of the works or installations mentioned in paragraph 1. Nevertheless, installations erected for the sole purpose of defending the protected works or installations from attack are permissible and shall not themselves be made the object of attack, provided that they are not used in hostilities except for defensive actions necessary to respond to attacks against the protected works or installations and that their armament is limited to weapons capable only of repelling hostile action against the protected works or installations.

  6. The High Contracting Parties and the Parties to the conflict are urged to conclude further agreements among themselves to provide additional protection for objects containing dangerous forces.

  7. In order to facilitate the identification of the objects protected by this Article, the Parties to the conflict may mark them with a special sign consisting of a group of three bright orange circles placed on the same axis, as specified in Article 16 of Annex I to this Protocol. The absence of such marking in no way relieves any Party to the conflict of its obligations under this Article.

Chapter IV: Precautionary Measures

Article 57: Precautions in Attack

  1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.

  2. With respect to attacks, the following precautions shall be taken:
    a. those who plan or decide upon an attack shall:
    i. do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
    ii. take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;
    iii. refrain from deciding to launch any 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;
    b. an attack shall be canceled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack 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;
    c. effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not pemmit.

  3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

  4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects

  5. No provision of this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects.


The Tribunal

Tribunal

An independent international tribunal investigating and documenting the very grave crimes the US and its allies have committed in Iraq in launching the attack, during the invasion and the current occupation. The embargo itself would need to be taken up for discussion - in terms of its devastating results. The tribunal would also consider the "full spectrum dominance", "pre-emptive war", etc. doctrines and various foreign and "defence" policy papers and discuss whether they, in themselves, constitute violations of international treaties and international humanitarian norms and values and discuss the role of the "Project for New American Century (PNAC)" in the process. The tribunal would, after examining reports and evidence, listening to witnesses (Iraqi and internationals), hearing interventions by victims, reach a decision.

The goal is to organize a genuinely respectable and credible tribunal which shall have worldwide impact. This requires that:

  1. The tribunal consists of internationally accepted and respected people of merit in their various fields.

  2. The tribunal should include people from as many different sectors/professions/groups as possible and from different continents - with representative capacity. In other words, this war of aggression having been a crime against peace and humanity as well as against the people of Iraq, the composition of the tribunal should in some way be acceptable as a representation of the conscience of the world as a whole.

  3. The tribunal should not remain an academic endeavor but should be backed by a strong international campaign. Anti-war and peace movements, which carried out the big mass movements against the attack on Iraq, have in principle adopted the idea of indicting the aggressors and turning this into a campaign. They are now being approached to confirm their participation. We have already taken the idea to the international anti-war coalition meetings in Berlin, Jakarta and Geneva.

To increase its worldwide impact and to turn it into a steadily rising campaign culminating in the final session - which will take place in Istanbul, Turkey - we developed the following idea which was accepted in Brussels:

It seems possible to group the basic areas of investigation under 4-5 titles. The tribunal would need to hold preparatory sessions / hearings to develop the investigation, to prepare preliminary reports and to map out what else needs to be done before the final session. There will be separate investigation commissions for each of the 4-5 main titles. These groups would each hold a preparatory / preliminary session in a different country - preferably in different continents. To these sessions only those people involved in that special area of investigation - investigators, some witnesses, report writers etc. and of course a representative from the tribunal to preside the session - would go.

All these commissions of inquiry or investigation will be working in conformity with an overall set of rules and norms that will apply to the whole tribunal and in close contact with the coordinating group and the tribunal board.

Tribunal discovery

The tribunal will broadly establish the following:

  1. The legality of war in Iraq

  2. What type of Human Rights violations and International War Crimes took place in the conduct of war and the effect on civilians from a variety of sources, for example human shields, journalists etc.

  3. To establish as a matter of principle whether certain methods of attack or use of certain methods of weapons (Depleted Uranium Рcluster bombs) are within the definition of War Crimes from Rome Statue.

  4. It will chalk out material and evidence collected along with the findings of tribunals, which will be presented to the prosecutor Luis Moreno Ocampo of International Criminal court at Hague (Netherlands) who will then decide whether or not there is a case under war crimes on the legality of war in Iraq.

Ocampo interview

Mr. Moreno-Ocampo was elected as the Chief Prosecutor by the Court's ratifying countries in April. He has a long history of prosecuting criminal and human rights cases including the extradition of a former Nazi officer from his home country of Argentina, political bribery, journalists' protection, and the military junta that seized power during Argentina's "dirty war."

The Prosecutor has also been a visiting professor at Stanford and Harvard Universities in the United States. Here's an excerpt from Mr. Moreno-Ocampo's responses:

"National States alone cannot offer individuals the protection they need and deserve, as the attacks on the Twin Towers in Manhattan show. The protection offered by national States is not sufficient to guarantee the life and freedom of their citizens if the international community, too, is not based on the rule of law. Only the existence of mechanisms for the protection of all persons in all countries can bring lasting, comprehensive peace."

Question 1:
Could the ICC have been an alternative to bringing Saddam Hussein -- or, for that matter, Osama bin Laden -- to justice?

Do you imagine that -- with or without U.S. approval -- the ICC can become a deterrent for the kinds of pre-emptive wars we've seen since 9/11?

Answer 1:
The International Criminal Court has no jurisdiction over crimes committed by Saddam Hussein or Osama bin Laden before the entry into force of the Rome Statute on 1 July 2002. The ICC may have jurisdiction over crimes committed by them on or after that date, provided that certain very clear requirements are met. A war crime, a crime against humanity or genocide must have been committed either on the territory of a State Party to the Rome Statute or by a national of a State Party for the ICC to have jurisdiction. There are currently 91 States Parties to the Statute, but Iraq is not one of them. Thus, crimes committed by Saddam Hussein in Iraq would not fall within our jurisdiction. Even if Iraq became a State Party, the Court has no retroactive jurisdiction, so some of the atrocities allegedly committed by Saddam Hussein prior to 1 July 2002, such as the gassing of the Kurds in Halabja in 1988, cannot be investigated by the Office of the Prosecutor.

The ICC is only designed to respond to atrocities that occur after a State ratifies the Statute. Although there is no agreed legal definition of terrorism under international law, it is possible that certain terrorist acts allegedly committed by Osama bin Laden could be qualified as either war crimes, crimes against humanity or even genocide, if the complex legal criteria defining these crimes are fulfilled. If this were the case, and provided the acts in question occurred on the territory of a State Party, or were carried out by the national of a State Party, and occurred on or after 1 July 2002, then there could be possible ICC jurisdiction.

Despite all of the above criteria, if a State is genuinely willing and able to investigate and prosecute a crime itself, then the ICC has no authority to act. This is because the Court is complementary to national justice systems. It is only when a crime within the jurisdiction of the Court has occurred, and national States are unwilling or unable genuinely to act, that the ICC will be able to assume jurisdiction.

For thousands of years the world has used war as an instrument of conflict resolution. Peace is a modern invention. Since weapons of mass destruction have unlimited effects, the ICC and other institutions are key for the creation of a world in which violence is controlled. The Court cannot exercise jurisdiction over alleged crimes of aggression until the crime is defined and the conditions for the exercise of jurisdiction are set out. The Assembly of States Parties of the ICC may adopt such a provision at a review conference to be convened in 2009. Thus, pre-emptive wars are not, at this time, within the jurisdiction of the Court.

Question 2:
For those of us less informed about the workings of political bodies, would you please explain in simple terms the necessity of a second international organization independent of the United Nations? Does the UN or its Security Council not already have the jurisdiction to try war and human rights criminals? Is there some clear advantage to functioning separately?

Answer 2:
The ICC was born from discussions that took place in the framework of the United Nations. However, some UN member States do not support the Court, and thus we are an independent organisation.

A fundamental difference between the UN and the ICC is that some UN member States have the power to veto Security Council resolutions. This alone sets the two institutions apart. The ICC acts independently and has an internal system of checks and balances. All of this accounts for the lack of support for the ICC of some States and to their unwillingness to ratify the Rome Statute.

The Tribunals for the former Yugoslavia and Rwanda were created by the UN Security Council exercising power under Chapter VII of the UN Charter. These Tribunals were created because the Security Council had determined that the situations in these countries constituted a threat to or breach of international peace and security. Their creation was thus a reaction to pre-existing situations. They can only prosecute crimes which occurred within those countries, and do not have the potential global reach of the ICC.

The ICC is intended to exist prior to any future atrocities occurring, so that those who choose to commit these atrocities will have knowledge before they act that there is an established Court ready to investigate and prosecute them. This means that the ICC has a significant global power of deterrence which previously did not exist.

It would not have been legally possible for the Security Council to create a prospective court for situations which had not yet occurred Рparticularly so when at the moment of creation, there has been no threat to or breach of international peace and security.

Furthermore, to create a truly global Court, global participation and consensus was required. The ICC was created not by a resolution of the Security Council, but by an extensive multi-lateral treaty negotiation which concluded in Rome in 1998. 160 countries attended the negotiations, with 120 finally voting to adopt the Rome Statute. This later increased to 139. Only 7 countries voted against it (including the US). Of this 139, the number of States who have become full participants of the ICC system is currently 91.

This means that, although it does have a close relationship with the UN, the ICC is an independent treaty body. The General Assembly sponsored the Rome Conference, and the Security Council can trigger the jurisdiction of the Court by referring a situation for investigation to the Prosecutor, thus avoiding the delays and costs involved in creating ad hoc tribunals as a reaction to atrocities

Question 3:
How can we, who believe that the US should be a participating member of the world community, convince those who fear that the ICC would be misused for political interests? What arguments can we make?

Answer 3:
In order to appease those who feared that the ICC would suffer from politically motivated bias, the putting in place of a rigorous system of selection of its officers and a system of checks and balances was necessary. These systems ensure that the Court is a serious institution, and one which possesses high technical quality.

Despite the assurances offered by these safeguards, individuals in some countries are disinclined to support a criminal court that is independent, because it limits the actions of certain States. The judicial system, as we know it, developed within national States in which the government controls the police and the army, and also designates the judges. In a world without a central government, without police and an army, a system of justice which is independent is a novelty and may give rise to fears and uncertainty.

Despite not currently being a supporter of the ICC, the US was an active participant of the Rome Conference in 1998 and played a major role in the inclusion in the Statute of a comprehensive series of safeguards to protect national sovereignty and to prevent the ICC from ever being used for frivolous or politically motivated prosecutions. As such, the Rome Statute contains a comprehensive system of checks and balances. Below is a selection of some of the most prominent safeguards.

Any investigation initiated by the Prosecutor himself will require the authorisation of a Pre-Trial Chamber of three judges who must examine the evidence the Prosecutor has gathered and be satisfied that there is a "reasonable basis to proceed". Further, any arrest warrant issued must also be confirmed by this Pre-Trial Chamber. An accused person, and any involved countries, will have the opportunity to challenge the indictment during confirmation hearings before the Pre-Trial Chamber. Also, the system of complementarily protects against politically motivated prosecutions because if States are willing and able to genuinely investigate and prosecute a matter themselves, they need never fear ICC involvement.

The need for the national proceedings to be genuine is crucial, though, as national action cannot be used to "shield" someone from ICC jurisdiction, and if done so, the ICC will have the power to act.

The Prosecutor himself and all the judges went through a rigorous process of scrutiny prior to their election as officials of the Court. There are strict criteria for their selection which includes they be experts whose reputation, moral character and independence are beyond reproach.

The judges are nominated by the States Parties and must be eligible for the highest judicial office in their home country. Whilst in office the Prosecutor and judges are prohibited from engaging in any activity which may threaten their independence, and, if they do so, they can be removed. Furthermore, if they abuse their power while in office, they can be impeached.

It must be emphasised that the crimes the ICC is empowered to prosecute are the most serious, horrendous and egregious crimes known to humanity and prior to the Rome Statute, the US was fully committed to preventing and punishing the commission of these crimes. The US does not operate a policy of committing these crimes, and as such should not fear prosecution of its nationals, particularly when all the safeguards are taken into consideration.

Question 4:
Some have argued that weak, poor countries should actually oppose the Court alongside the U.S. because it's unlikely the ICC will be able to pursue cases against the leaders of rich, powerful states on whose political support and deep pockets it will depend. In effect, the Court would not be able to avoid propagating a double standard of "justice" that reflects that power dynamics of global politics. Do you find this argument at all valid?

Answer 4:
National States alone cannot offer individuals the protection they need and deserve, as the attacks on the Twin Towers in Manhattan show. The protection offered by national States is not sufficient to guarantee the life and freedom of their citizens if the international community, too, is not based on the rule of law. Only the existence of mechanisms for the protection of all persons in all countries can bring lasting, comprehensive peace.

The life and freedom of individuals in any country can be threatened by internal and external elements. Internally, individuals may be attacked by groups over which the State has no control. This is what happens in countries in which the rule of law has broken down. The events that took place in Rwanda in the 1990s are an example of this type of threats. This is the kind of situation that can be repeated. It is taking place in Ituri, Democratic Republic of Congo's a second set of threats is external, and consists of attacks coming from other States.

In order to protect individuals from this type of threat, it is necessary for States to reach consensus regarding the definition of the crime of aggression. However, there is also scope for some of the crimes committed in this context to come within the purview of the ICC, if they constitute war crimes, crimes against humanity or genocide.

Question 5:
Given your comments on the role of corporations and the international banking system in the Democratic Republic of Congo, might the ICC be a mechanism to deal indirectly with businesses implicated in massive human rights violations, even if international business does not directly fall under the ICC's jurisdiction? Do you think that the issue of corporate responsibility might be an issue that should be raised at the ICC's review scheduled for 2009?

Answer 5:
The issue of corporate responsibility is central to our vision of ensuring the observance of the law in the long term. We need to align values, economic interests and decisions of national States. Corporations have to be aware of the fact that for there to be markets, there needs to be peace, and that they, too, can contribute to its construction.

The ICC has no jurisdiction over crimes such as money laundering and illegal exploitation of natural resources, both of which would be fuelling the war in Ituri according to credible reports. The Office of the Prosecutor is convinced that investigations and prosecutions into the financial aspects of the crimes being committed in Ituri will surely contribute to the winding down of the war in the country.

Conclusion:
As we can see from the comments of the ICC prosecutor Luis Moreno - Ocampo that if we can establish as a mater of fact and evidence whether war crimes have been committed and if so the tribunal will report to the prosecutor of the ICC and he will be urged to use his powers to start an investigation on his own initiative.


The IWCT.US

IWCT.US developed from an undergraduate International Policy seminar of Spring 2004. While still sponsored by our state university, at the department's request, the project was moved off campus and the website was moved to its mirrored address.

The object of IWCT.US is to bring the equivalent of the International Criminal Court to the U. S. shore. A hopeful hat-trick of reverse-outsourcing!

At its current stage, a handful of graduate and upper level students are coordinating an effort to solicit US host cities to bid for the opportunity to host the 2005 International War Crime Trials.

Until Mohammed can be made to go to the mountain, watch us bring it on to him. [Grave, grave apologies to Mohammed.]


Source:
International War Crimes Trial

Official website for the Tribunal to prosecute US war crimes.

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