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[casi] Should the Belgian Law Suit Accusing the US of War Crimes in Iraq be Taken Seriously

May 17, 2003

Francis Boyle on War Crimes

Should the Belgian Law Suit Accusing the US of War Crimes in Iraq be Taken
CNN International

ZAIN VERJEE, CNN ANCHOR (voice-over): A lawsuit filed in a Belgian court
accuses the commander of U.S. forces in Iraq of war crimes. The lawyer
behind it says he represents Iraqis who were victims of U.S. cluster bombs
and U.S. troops who fired on ambulances.

UNIDENTIFIED MALE: There was a pattern of targeting civilians deliberately.

VERJEE: Critics call the legal action a publicity stunt. Belgian authorities
have condemned it and the U.S. military says it could effect future meetings
of NATO.

UNIDENTIFIED MALE: Obviously, it's looked upon by the U.S. government as a
very, very serious situation. It's just going to have to be dealt with at
that level. I have no further comment on it, but it is serious and it
clearly could have a huge impact on where we gather.

VERJEE: On this edition of Q&A, a publicity stunt or serious legal action?

Hello and welcome to Q&A.
Legal action against the commander of U.S. forces in Iraq. It's the latest
in a string of lawsuits to come out of Belgium that accuse prominent leaders
of crimes. Should this one be taken seriously?
On the line with us, from Brussels, is the lawyer behind the suit, Jan
Mr. Fermon, is this a case that we should take seriously, or is this just a
publicity stunt?

JAN FERMON, BELGIAN LAWYER: Well, I don't know for whom it would be
publicity. Of course, it's not a publicity stunt.
Everyone -- each and every one of my clients has been very seriously injured
or lost a member of his family by what has to be considered as unlawful
military action.
I think any country, and government who is confronted with this kind of
allegation should take it serious and at least should allow an independent
inquiry to this kind of problem.

VERJEE: What are the legal grounds for a case like this?

FERMON: The first legal grounds are the Geneva Conventions, which very
clearly indicate that belligerents in an armed conflict, an international
armed conflict, should do whatever is necessary and whatever is possible to
distinguish combatants and civilians. And in everyone of the incidents we
are citing in the complaint, it's very clear that U.S. troops did not act in
such a way in these incidents.

VERJEE: What are those specific incidents that you're citing?

FERMON: Well, we have three cases, three incidents related to U.S. troops
firing at ambulances in Baghdad. We have several cases of U.S. troops firing
at civilians, clearly identifiable as such, and at moments and places where
there was no military threat to the U.S. troops.
There is, of course, the action taken by the U.S. Army against the building
of the Al Jazeera television network in Baghdad, where one journalist was
killed. There is also the use of cluster bombs and cluster ammunition in
areas where inevitably civilians had to be injured and hit by these cluster
bombs that were -- amongst the other incidents, three children were very
seriously injured because they picked up unexploded sub-munition (ph) of
these cluster bombs.

VERJEE: There's been strong opposition to you doing this, from the United
States, also from Belgian authorities. The Foreign Minister Louis Michel
said this was an abuse of law.

FERMON: Yes, well, that's very interesting, because he made that comment at
the moment that he was unable to read the complain, because he made that
comment a few moments after the complaint was filed to the national
prosecutor, and the text of the complaint was not made public. So that's a
very strange way for a responsible politician to act, I think, to give
comment on a file and a document which you even don't know.
So I don't take that comment of the minister very serious. I see that in the
afternoon yesterday, maybe when he was able to read the document, his
position was slightly different, and he said, well, we will have the --we
will have the prosecutor -- we will let him do his work.

VERJEE: Jan Fermon, thank you for talking to us -- appreciate that.
Joining us now is Stewart Baker, a lawyer and a former general counsel of
the U.S. National Security Agency.
Mr. Baker, what do you think about this? Is something like this credible?
Does it have serious grounds for success?

STEWART BAKER, LAWYER: Well, I think it reminds me of the debate over
whether the United States was acting unilaterally or in a paranoid fashion
when it opposed the International Criminal Court.
What the president said at the time was, there will be politically motivated
charges of war crimes brought against the U.S. military. This kind of filing
is exactly the sort of politically motivated charge of war crimes that we
would expect to see in the criminal tribunal or in the courts of other
countries that opposed the war in Iraq.
It's shocking that this claim would be brought in some foreign court that
has no relationship whatsoever to either the war in Iraq or the American

VERJEE: Do you think that the Belgian courts will take this case?

BAKER: Prior to the amendments that came earlier this year, I think there
was a very good chance. Now there's a reasonable prospect that the case will
be rejected.

VERJEE: If they take the case, what should Tommy Franks do, hire a lawyer?
Defend himself?

BAKER: I think the United States should make sure it has offered whatever
appropriate defense should be offered. At this stage, the case can't go
forward until the prosecutor has reviewed it and only if the prosecutor is
prepared to move the case forward will it go anywhere.
This is a publicity stunt by somebody who's running for office in an
election that's going to occur on Sunday. He's running with an Arab
extremist who has been associated with days of rioting in Antwerp. It's
obvious that he's got a political agenda and that he's hoping to file this
case before and it can be rejected, in the hopes that it will help him in
the election.

VERJEE: What if he's able to come out with the evidence that proves what he

BAKER: If he thinks there is a basis for a war crimes investigation, he
should supply it to the military authorities of the United States, to
prosecutors in the United States. The United States has laws against war
crimes and a reasonably good record of prosecuting members of the American
military who commit them.
I think it's highly unlikely that war crimes were committed in the course of
this war. There's never been a war that's been fought with more concern for
civilian casualties than this one, at least on the U.S. side.

VERJEE: How do you think he's likely to build the case?

BAKER: I, frankly, I think he's done what he hoped to do by filing it, and I
don't expect him to pursue it very far now that he's filed it and gotten the

VERJEE: There's a theory that's called a theory of command responsibility,
meaning that any political or military leader can be legally culpable for
anything that they fail to do, if they fail to do everything possible to
prevent isolated acts committed by soldiers during a war. Do you think that
there is no command responsibility at all by General Tommy Franks?

BAKER: Well, he's the commander. He has command responsibility for his
troops. You would have to find a war crime by the troops before you could
begin to ask the question whether Tommy Franks could have done anything
about it, but I think it's highly unlikely you're going to find war crimes

VERJEE: Francis Boyle joins our conversation now. He's with the University
of Illinois. He's an international law professor.
Francis Boyle, what do you make of this case?

FRANCIS BOYLE, LAWYER: Well, first I want to make it clear, I did attempt to
get a copy of the complaint and I have not been able to and I have not
reviewed it.
But if in fact it is substantiated by credible evidence, it seems to me the
Pentagon has an obligation under the laws of war to take it seriously and
look into it.
Of the charges we have heard, certainly the use of cluster bombs in Baghdad
has already been condemned by Human Rights Watch and the use of cluster
bombs in a civilian area, in a city, certainly could raise to the level of
war crimes. I'm not saying General Franks ordered the use of cluster bombs,
but their fact is undeniable.
I think the Pentagon needs to determine who gave the order to use cluster
bombs in Baghdad.

VERJEE: Stewart Baker is saying that this shouldn't be taken so seriously,
that it's really a self-interested motive by one lawyer, who's standing for
an election, that ha something to gain out of it. What do you think about

BOYLE: Well, again, Human Rights Watch has condemned the use of cluster
bombs in Baghdad while they were used. So, certainly, I do not know Mr.
Fermon one way or the other or what motivates him.
I do know he has live clients right now, and having been in that situation
myself, where you have live clients who have suffered, obviously it's a much
more urgent situation than Mr. Baker or I might feel under the

But, again, Human Rights Watch has condemned the use of cluster bombs in
Baghdad. I think the Pentagon needs to determine who gave the order to use
the cluster bombs.
The second point is the question of command responsibility. U.S. Army Field
Manual 27-10, on the laws of armed conflict, says that General Franks,
quote, "shall take all measures in his power to restore and insure as far as
possible public order and safety," unquote, in Iraq.

For some reason, General Franks failed to give an order to secure Baghdad
after it fell. I really do not know why he failed to do this.

Clearly, the obligation in the Field Manual and the Hague regulations are
obvious and well-known to any commanding officer in the United States Army,
that they have an obligation as the belligerent occupant, to preserve law
and order. That order was not given. There was widespread looting and
plundering in Iraq.
People did suffer.

Again, I think we do need an investigation as to why that order was not


BOYLE: I'm sorry, go ahead.

VERJEE: I just want to get Stewart Baker to respond to some of what you were
saying there -- Stewart.

BAKER: I guess I'd have to say that I think it's preposterous.
Professor Boyle is suggesting that there's an obligation under the laws of
war to fight a perfect war and never to have a mistake or always to
anticipate anything that could go wrong and to take action to prevent it.
That's really an argument that there should never be a war, that the United
States is always going to be guilty of war crimes if it gets into a war, and
that notion that you can have a perfect war is preposterous. The laws of war
do not require that you prevent every possible harm that could occur in the
course of armed conflict.

VERJEE: Francis Boyle, will this case succeed?

BOYLE: Well, that is not the point I made. It is a standard boilerplate
language in every United States war plan, including the war plan for Iraq,
that U.S. armed forces are governed at all times by the Hague regulations of
1907 and the four Geneva Conventions of 1949. Even U.S. Army Field Manual
27-10 says this quite clearly. No one expects a war to be perfect, but the
laws of war must be adhered to.

VERJEE: OK. Francis Boyle, Stewart Baker, many thanks.

BAKER: Thanks.

VERJEE: That's Q&A for now. We'll be back with more news in just a moment.

Francis A. Boyle, Professor of Law, University of Illinois, is author of
Foundations of World Order, Duke University Press, The Criminality of
Nuclear Deterrence, and Palestine, Palestinians and International Law, by
Clarity Press. He can be reached at: FBOYLE@LAW.UIUC.EDU

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