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[casi] Text of Warning Letter Sent to Bush and Rumsfeld




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President George W. Bush

The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Donald H. Rumsfeld Esq.

Secretary of Defense

1000 Defense Pentagon

Washington D.C. 20301

January 24, 2002

Re: CONSEQUENCES OF FUTURE USE OF FORCE AGAINST IRAQ

Dear Sirs:

We, the undersigned Law Professors and U.S. Non-Governmental Organizations write to you to raise 
our concerns about possible violations of international humanitarian law (IHL) that may occur in 
any future use of force against Iraq. This letter does not concede or accept that any future use of 
force would be lawful under international law. Nor do we accept that all “peaceful means” to 
resolve the dispute have been exhausted as required under Article 33 of the UN Charter. Indeed, 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.

Our primary concern in this letter is with the large number of civilian casualties that may result 
should U.S. and coalition forces fail to comply with IHL in using force against Iraq, in 
particular, the fundamental rules of distinction, military necessity and proportionality.[1] Large 
numbers of civilian casualties were documented during the Gulf War 1991 and there is now published 
information that there will be a large number of civilian casualties in this war. For example, a 
recently published confidential United Nations report which predicts that “as many as 500,000 
civilians could require treatment to a greater or lesser degree as a result of direct or indirect 
injuries.” (citing WHO report estimates) as a consequence of any future war.[2] Many of the 
civilian deaths in the 1991 war could have been avoided had IHL been adhered to in a more rigorous 
fashion than it was by the U.S. and coalition armed forces.  Similarly, in any future use of force, 
compliance with IHL will be a necessary prerequisite to ensuring the least number of civilian 
deaths.

Overall, IHL is aimed at minimizing, to the maximum extent possible, adverse impacts of armed 
conflict on civilian lives and infrastructure. It places certain constraints on the conduct of 
hostilities and prescribes that all feasible precautions must be taken in the choice of means and 
methods of attack so as to protect civilian life. These protections encompass both the selection of 
weapons or weapon systems and the manner in which such weapons are used. It prohibits not only 
direct attacks against civilians and civilian infrastructure, but also the planning and execution 
of attacks which fail to adequately distinguish between military targets and civilians or civilian 
objects as well as those attacks, which, although aimed at a legitimate military targets, have a 
disproportionate impact upon civilians or civilian objects. In accordance with these principles, 
the following means and methods of attack, all of which, to some extent, were used during recent 
armed conflicts in which U.S. armed forces have participated, violate IHL:

High level, indiscriminate, air-strikes on known centers of civilian population.

Carpet bombing.

Fuel-air explosives, cluster bombs, multiple rocket launcher systems or nuclear weapons, including 
B61-11s (tactical nuclear earth-penetrating weapons designed to destroy deep underground targets.)

Excessive targeting of electricity supplies causing damage to civilian facilities reliant upon such 
supplies, for example, water supply and treatment facilities and hospitals.

Bombing of works or installations containing “dangerous forces”, namely, dams, dykes and 
nuclear electrical generating stations.

Bombing specifically aimed at terrorizing or undermining the morale of civilians or that is 
designed to cause civilians to overthrow an existing government.

Our concerns that IHL will be violated during any war with Iraq stem from evidence of the past use 
of force by the United States and its coalition partners in the Gulf War 1991, Kosovo and most 
recently in Afghanistan. During these conflicts violations of IHL by all parties were extensively 
documented. Given these past violations, there is a reasonable basis for assuming that in any 
future military action against Iraq, these requirements will once again be breached.

Although you are obviously better placed than ourselves to know the exact details of the past use 
of force in the Gulf War, Kosovo and Afghanistan, the basis of our concerns stem from the following 
documented incidents. These particular incidents, most of which occurred during the 1991 Gulf War, 
all violated IHL and some indeed constitute grave breaches of the Geneva Conventions:

THE GULF WAR, 1991[3]

1.                Illegitimate means and methods of attack

Daytime attacks on targets in or near urban areas:

A mid-afternoon attack on a bridge in Nasiriyya, Southern Iraq, killing 100 people and injuring 80 
others.

A daytime attack on bridges situated near crowded market places in Samawa city killing 100 
civilians and injuring many others.

A 3.30 pm attack on an oil-storage tank, near a gas distribution point where civilians were known 
to have regularly gathered to purchase fuel for domestic purposes killing or injuring some 200 
people.

Use of unguided missiles in urban areas during attacks on four cities Basra, Falluja, Samawa and 
al-Kut, damaging or destroying some 400 dwelling houses, mainly in poor areas; 19 apartment 
buildings and several hotels; two hospitals and two medical clinics; two schools and a mosque; 
restaurants and other commercial buildings as well as market areas.

An unannounced attack on the Ameriyya Civilian Air Raid Shelter killing between 200 and 300 
civilians when it was known by coalition forces that the facility had been previously used as a 
civil-defense shelter.

The use of at least 320 tons of depleted uranium in air and tank rounds and sniper bullets.



Attacks on non-military targets

Attacks on Food, Agriculture and Water-Treatment Facilities:

The destruction of four government food warehouses in the city of Diwaniyya.

An attack on a dairy produce factory 30 kilometers from Basara.

The destruction of flour-milling facilities and grain-storage warehouses.

Attacks on the Electrical System:

The destruction of four of Iraq’s five Hydro-electric facilities, transforming the country from 
an energy-dependent society into, a “pre-industrial”[4] one.

Attacks on Civilian Vehicles on the Highway:

Indiscriminate daytime attacks on civilian vehicles on the highway killing some 60 people.

Attacks on objects dedicated to civilian purposes:

Indiscriminate attacks on Bedouin tents in Western Iraq leaving 46 dead civilians, including 
infants and children.

KOSOVO, 1999[5]

High altitude, indiscriminate bombing operation in the vicinity of Djakovica on April 14, 1999 
killing over 70 ethnic Albanian civilians and wounding 100 others.

Deliberate attack on the Headquarters of Serbian State Radio and Television on April 23, 1999 
killing 16 civilians.

AFGHANISTAN, 2001[6]

Day time cluster bomb attack on the village of Shaker Qala on October 22, 2001, killing 9 civilians 
and injuring 14.

Carpet-bombing by B-52s of frontline village near Khanabad on November 18, 2001, killing 150 
civilians.

Mid-day attack on two residential areas in Ni on May 7, 2002 during which cluster bombs were 
dropped close to market place and hospital killing 14 and injuring 30.

Attack on a wedding party in July 2002 killing 40 civilians and injuring 60 others.

Arguably, many of the above violations of IHL constitute international crimes for which there is 
individual responsibility. For over half a century, the U.S. has participated in international 
efforts to ensure the accountability of those persons responsible for the commission of such 
crimes, including the establishment of the Nuremberg Tribunal and more recently, the Special Court 
for Sierra Leone. In spite of its opposition to the ICC, the U.S. has repeatedly and publicly 
reaffirmed its commitment to international justice and the need to prosecute those persons found 
responsible for the most serious international crimes, including crimes against humanity and war 
crimes.[7] Accordingly, we are committed to ensuring the accountability of those persons who may be 
found responsible for the commission of crimes against humanity and war crimes in this war. To this 
end, together with non-governmental organizations here in the U.S. and the U.K., we will seek to 
pursue prosecutions of persons responsible for such crimes with the Prosecutor to ICC, where they 
are nationals of state party to the statute. For non-party states, like the U.S., we will petition 
the Security Council to refer the matter to the Prosecutor under the Statute of the ICC[8] and 
actively pursue all other avenues of bringing them to account.

 Crimes against humanity and war crimes are crimes under customary international law for which 
there is universal jurisdiction. States, including the U.S., have an international obligation to 
either prosecute individuals within their jurisdiction or to extradite them to a country that will 
prosecute. In recognition of this obligation in regards to war crimes, Congress enacted the War 
Crimes Act, under which civilian courts in the U.S. have authority to try either service members or 
civilians for certain violations of the laws of war, including grave breaches of the Geneva 
Conventions. If prosecutions are not initiated against U.S. nationals where there is evidence of 
their involvement in such acts, we commit ourselves to ensuring that such allegations are 
thoroughly investigated and prosecuted under this Act.

As a first stage in ensuring accountability of persons responsible for these crimes, we understand 
that a tribunal under the auspices of the Permanent Peoples’ Tribunal will be convened in London 
to examine evidence of violations of IHL, crimes against humanity and war crimes, with a view to 
referring such evidence to the Prosecutor of the ICC, where appropriate. We wholly support this 
initiative.

A letter in similar terms will today be delivered to the governments’ of the UK and Canada. We 
request that you liaise with them and representatives of governments of other possible coalition 
partners to ensure that should force be used against Iraq, such force complies in all respects with 
the requirements of IHL as detailed in this letter.



Sincerely,



Professor Jules Lobel

Professor of Law

University of Pittsburgh



Michael Ratner

President

Center for Constitutional Rights

666 Broadway

New York, NY, 10012


In support:

Richard L. Abel
Professor of Law
UCLA

Jane H. Aiken
Professor of Law
Washington University School of Law

Lee. A. Albert
Professor of Law
University of Buffalo Law School

Maria Arias,
Assistant  Professor  of Law
CUNY School of Law

Elvia R. Arriola
Associate Professor
College of Law
Northern Illinois University

Milner S. Ball
Professor of Law
University of Georgia School of Law

Leslie Bender
Associate Dean &
Professor of Law & Women's Studies
Syracuse University College of Law

Robert Benson
Professor of Law
Loyola Law School

Arthur L. Berney,
Professor of Law, Emeritus,
Boston College Law School

Barbara Bezdek
Associate Professor of Law
University of Maryland School of Law

Susan H. Bitensky,
Professor of Law
Michigan State University-Detroit College of Law

Jerry P. Black, Jr.
Associate Professor of Law
University of Tennessee College of Law

Michael C. Blumm
Professor of Law
Lewis and Clark Law School

Cynthia Grant Bowman
Professor of Law
Northwestern University School of Law

Kevi Brannelly
Professor of Law
Golden Gate University School of Law

Melinda Branscomb
Associate Professor of Law
Seattle University School of Law

John C. Brittain
Professor and former Dean of
Thurgood Marshall School of Law
Texas Southern University

Mark S. Brodin
Professor of Law
Boston College Law School

Camilo Perez Bustillo
Professor of Law
W. Haywood Burns Memorial Chair in Civil Rights Law
CUNY School of Law

Robert K. Calhoun
Professor of Law
Golden Gate Law School
San Francisco, CA

Mark Cammack
Professor of Law
Southwestern Law School

Carol Chomsky
Professor of Law
University of Minnesota Law School

Craig W. Christensen
Professor of Law
Southwestern University

Leroy D. Clark
Professor of Law
The Catholic University of America

Alan Clarke
Assistant Professor of Criminal Justice
University of Wisconsin-Parkside

Rhonda Copelon
Professor of Law & Director
International Women's Human Rights Law Clinic (IWHR)
City University of New York
School of Law

Michael H. Davis
Professor of Law
Cleveland State University College of Law

Bernardine Dohrn
DirectorChildren & Family Justice Center
Associate Clinical Professor
Northwestern University School of Law

Dolores A. Donovan
Professor of Law
University of San Francisco

David Dorfman
Professor of Law
Pace Law School

Marie A. Failinger
Professor of Law
Hamline University School of Law

Marvin Fein
Associate Professor of Legal Writing and
Director of the Civil Litigation Certificate Program
University of Pittsburgh School of Law

Mary Louise Fellows
Professor of Law
University of Minnesota

Catherine Fisk
Professor of Law & William Rains Fellow
Loyola Law School

James L. Flannery
Visiting Assistant Professor of Law
University of Pittsburgh School of Law

Sally Frank
Professor of Law
Drake University

Peter B. Friedman
Director -- Research, Analysis & Writing
Case Western Reserve University School of Law

Craig B. Futterman
Assistant Clinical Professor of Law
University of Chicago Law School
Edwin F. Mandel Legal Aid Clinic

Phyllis Goldfarb
Professor of Law
Boston College Law School

Prof. Carlos E. Ramos-Gonzalez
Professor of Law
Interamerican University of Puerto Rico
School of Law

Nathaniel E. Gozansky
Professor of Law
Emory University School of Law

John DeWitt Gregory
Professor of Law
Hofstra University School of Law

Louise Halper
Professor of Law
Washington & Lee University School of Law

Kathy Hessler
Professor of Law
Case Western Reserve University School of Law

Rose L. Hoffer
Professor of Law
Brooklyn Law School

Ruth-Arlene W. Howe
Professor of Law
Boston College Law School

David Kairys
James E. Beasley Professor of Law
Beasley School of Law

Joseph J. Kalo
Professor of Law
UNC School of Law

Graham Kenan
Professor of Law
UNC School of Law

Walter J. Kendal III
Professor of Law
The John Marshall Law School

Arthur Kinoy
Professor of Law
Rutgers University Law School

Mary Kay Kisthardt
Professor of Law
UMKC School of Law

Thomas Kleven
Professor of Law
Thurgood Marshall School of Law

Juliet P. Kostritsky
Professor of Law
John Homer Kapp

James A. Kushner
Professor of Law
Southwestern University School of Law

Deborah LaBelle,
Senior Soros Justice Fellow

D. Bruce La Pierre
Professor of Law
Washington University School of Law

David P. Leonard
Professor of Law and William M. Rains Fellow
Loyola Law School

Carroll L. Lucht
Clinical Professor of Law
Yale Law School

William V. Luneburg
Professor of Law
University of Pittsburgh School of Law

Paula Lustbader
Professor of Law
Director, Academic Resource Center
Seattle University School of Law

Karl Manheim
Professor of Law
Loyola Law School

Holly Maguigan
Professor of Clinical Law
New York University School of Law

Susan J. Martin
Professor of Law
Southwestern University School of Law

Gary M. Maveal,
Associate Professor
University of Detroit Mercy School of Law

Judith A. McMorrow
Professor of Law

Christopher N. May
Professor of Law
Loyola Law School

Martha McCluskey
Professor of Law
SUNY Buffalo

Patrick McGinley
Professor of Law
West Virginia University
College of Law

Robert F. Meagher
Professor Emeritus in International Law
Fletcher School of Law and Diplomacy
Tufts University

Roy M. Mersky
Professor of Law
Harry M. Reasoner Regents Chair in Law
and Director of Research
The Jamail Center for Legal Research
Tarlton Law Library
The University of Texas at Austin
School of Law

Carlin Meyer
Professor of Law
New York Law School

Mary Mitchell
Professor of Law
Indiana University School of Law

Kimberly E. O'Leary
Professor of Law
Thomas Cooley Law School

Richard L. Ottinger
Dean Emeritus
Pace Law School

Peter Pitegoff
Vice Dean for Academic Affairs & Professor
University at Buffalo Law School
State University of New York

James G. Pope
Professor of Law
Rutgers University School of Law

Robert A. Pugsley
Professor of Law
Southwestern University School of Law

Florence Wagman Roisman
Professor of Law and Paul Beam Fellow
Indiana University School of Law - Indianapolis

Josephine Ross
Visiting Law Professor
Boston College Law School

Elizabeth M. Schneider
Professor of Law
Brooklyn Law School

Marci Seville
Professor of Law
Golden Gate University School of Law

Butler Shaffer
Professor of Law
Southwestern University School of Law
Julie Shapiro
Associate Professor of Law
Seattle University Law School
Katherine C. Sheehan
Professor of Law
Southwestern University School of Law

Marjorie A. Silver
Professor of Law
Touro Law Center

Abbe Smith,
Professor of Law,
Georgetown University Law Center

Beth Stephens
University of Rutgers School of Law

Eleanor Stein
Adjunct Professor
Albany Law School

Marc Stickgold
Professor of Law
Golden Gate University School of Law

David C. Thomas
Clinical Professor of Law
Chicago- Kent College of Law

Kenji Urata
Professor of Constitutional Law
Waseda University
Tokyo

Rachel Vorspan
Associate Professor of Law
Fordham Law School

Cynthia Williams
Associate Professor of Law
The University of Illinois College of Law

Gary Williams
Professor of Law
Loyola Law School

Charles Wilson
Associate Professor of Law
College of Law
Ohio State University

William J. Woodward, Jr.
Professor of Law
James Beasley School of Law
Temple University

Maryann Zavez
Professor of Law
University of Vermont Law School

Jihad Turk
Ph.d. Student
Center for Near-Eastern Studies
University of California, Los Angeles

David Rudovsky
Senior Fellow
Penn Law School

Joanne Bauer
Director of Studies
Carnegie Council on Ethics and International Affairs
170 East 64th Street
New York, NY 10021

Arturo Carillo
Acting Director
Columbia University Human Rights Clinic

Brian J. Foley
Lawyers Against the War (LAW).

Allison Guttu
Public Interest Law Center
110 West 3rd Street, 2nd Floor
New York, NY 10012

Roger Normand
Center for Economic and Social Rights

Donna M. Ryu
Hastings Civil Justice Clinic
San Francisco, CA  94102

  _____

[1] The most comprehensive statement of the rules governing the conduct of hostilities relative to 
international armed conflict is Protocol 1 Additional to the Geneva Conventions of 1949 and 
Relating to the Protection of Victims of International Armed Conflicts (Protocol 1). Protocol 1 was 
adopted in 1977 and has been ratified by 160 states. Although the United States has not ratified 
it, key provisions of the Protocol are incorporated in its military manuals and statements have 
been made by Senior Officials to the effect that the US considers them declaratory of customary 
international law. Indeed it is widely considered that many of its fundamental provisions are in 
fact part of customary international law and as such binding vis-à-vis non-part states as such.

[2] Likely Humanitarian Scenarios, United Nations, December 10, 2002.

[3] Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of 
the Laws of War, Human Rights Watch, July, 1991

[4] See Report to the Secretary General on Humanitarian Needs in Kuwait and Iraq in the Immediate 
Post-Crisis Environment, Martii Antisaari, United Nations Report No. 5122366, March 20, 1991.

[5] See Civilian Deaths in NATO Air Campaign, Human Rights Watch, February, 2000; “Collateral 
Damage” or Unlawful Killings, Amnesty International, June, 2000. Fatally Flawed: Cluster Bombs 
and Their Use by the United States in Afghanistan, Human Rights Watch, December 18, 2002; A Dossier 
on Civilian Victims of United States’ Aerial Bombing of Afghanistan: A Comprehensive Accounting, 
Professor Marc W. Herold, University of New Hampshire, December, 2001.

[6] See Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan, Human 
Rights Watch, December 18, 2002; A Dossier on Civilian Victims of United States’ Aerial Bombing 
of Afghanistan: A Comprehensive Accounting, Professor Marc W. Herold, University of New Hampshire, 
December, 2001.

[7] See e.g.  Speech by U.S. Ambassador for War Crimes Issues, Washington D.C. (May 6, 2002); U.S. 
Office of War Crimes Issues Fact Sheet, U.S. Department of State (May 6, 2002); John R. Bolton, 
Under Secretary for Arms Control and International Security, Remarks to the Federalist Society, 
Washington D.C. (November 14, 2002).

[8] See Article 13(b). There is also the possibility of the Court exercising jurisdiction over U.S. 
nationals who have committed such crimes if Iraq, being the state where the crime was committed, 
should accept the jurisdiction of the Court and refer the matter to the Prosecutor. See Article 
12(3) of the Statute of the ICC.


******************************
Jacob Park
Center for Economic and Social Rights
Emergency Campaign on Iraq
<http://www.cesr.org> http://www.cesr.org <http://www.cesr.org/iraq> /iraq
tel: 718.237.9145
fax: 718.237-9147
jpark@cesr.org <mailto:jpark@cesr.org>
******************************




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