[casi] FW: War crimes in Iraq

[Hassan Zeini <hasseini@DELETETHISyahoo.com>]

http://www.frontlineonnet.com/fl2011/stories/20030606003702900.htm

WORLD AFFAIRS

War crimes in Iraq

HIMANSHU RAJAN SHARMA

The military occupation of Iraq by coalition forces
has been tainted with the same cavalier disregard for
international legal norms as the war itself.

SEVERAL months [weeks?] after the fall of Baghdad, the
United States and the United Kingdom have been unable
to proffer a shred of tangible evidence to support
what was once described as a "credible threat" of
weapons of mass destruction in Iraq. The infamous
speech by U.S. Secretary of State Colin Powell at the
United Nations Security Council and the dire warnings
of Armageddon from U.S. President George W. Bush now
stand exposed as thinly-veiled pretexts for waging an
illegal and unjustifiable war.

It has been credibly suggested that the U.S. decision
to allow U.N. weapons inspectors back into Iraq was
little more than a ruse to buy time for massing
additional ground forces for the invasion. The recent
refusal of the Americans to allow the return of U.N.
chief weapons inspector Hans Blix and his team to Iraq
to continue their work not only seems to confirm this
suspicion, but is itself a damning indictment of the
Bush administration's deceit about the supposedly
"illegal" weapons in the hands of Saddam Hussein's
regime.

In fact, British Prime Minister Tony Blair was
recently compelled to issue a statement to mollify an
increasingly sceptical world that "some sort of
objective verification" of such weapons, if found,
would be "a good idea". Without the fig leaf of the
"imminent threat" from nuclear, biological or chemical
weapons, the conquest of Iraq will be permanently
stripped of the legal and moral legitimacy spuriously
claimed by the `coalition of the willing'.

As Joseph Cirincione, a weapons expert at the Carnegie
Endowment, noted, the purported existence of those
weapons "was the core reason for going to war with
Iraq and the reason we had to go now. If we don't find
fairly large stockpiles of these weapons, in
quantities large enough to pose a strategic threat to
the United States, the President's credibility will be
seriously undermined and the legitimacy of the war
repudiated".

The military occupation of Iraq by coalition forces
has been tainted with the same cavalier disregard for
international legal norms as the war itself. The U.S.
occupation has failed, from the very outset, to comply
with even the minimal requirements and obligations of
international law governing belligerent occupation
found in The Hague and Geneva Conventions. Under the
provisions of Hague Convention IV, a territory is
considered occupied "when it is actually placed under
the authority of the hostile army" and "[t]he
occupation extends only to the territory where such
authority has been established and can be exercised".
Article 4 of the Protocol I to the Geneva Conventions
provides, with regard to the status of the occupied
territory, that "[n]either the occupation of a
territory nor the application of the [laws of war]
shall affect the legal status of the territory in
question".

In other words, Iraq remains a sovereign nation
despite its occupation by hostile forces. The U.S.
Army Manual is more direct on this issue, stating that
military occupation only involves effective control
over a territory for a limited period of time and that
"[i]t does not transfer the sovereignty to the
occupant, but simply the authority or power to
exercise some of the rights of sovereignty". Article
64 of the Geneva Civilian Convention squarely places
the responsibility on the occupying power to issue
"provisions which are essential to enable the
Occupying Power to fulfil its obligations under the
[1949 Geneva] Convention, to maintain the orderly
government of the territory, and to ensure the
security of the Occupying Power..."

As the party primarily responsible for maintaining the
"orderly government of the territory", the U.S. has
completely failed to abide by its obligations to make
provisions for maintaining order and security for
Iraqi civilians, "protected persons" under the Geneva
Civilian Convention. In fact, by virtually all
accounts, the U.S. occupation authorities did
absolutely nothing to prevent the wholesale anarchy
and pillage that erupted as soon as the Iraqi regime's
authority had crumbled. Hospitals, offices, homes and
the general civilian infrastructure in Baghdad were
badly damaged and looted while U.S. marines camped out
in Saddam Hussein's palaces.

The Bush administration subsequently admitted that
U.S. soldiers and "embedded" journalists actually took
part in the plunder to some as yet unknown extent. It
has also been widely reported in the international
press that unidentified groups indulged in systematic
and seemingly organised destruction of government
buildings and offices in Baghdad in the presence of
U.S. and British troops who refused numerous requests
for assistance by Iraqis on the scene.

The most reliable accounts from residents of the city
and journalists said that the only government
institution spared during the sacking of Baghdad was
the Ministry of Oil where U.S. Marines had been
stationed. It is scarcely conceivable that the
decision to limit protection to the Ministry of Oil,
while allowing the rampage to continue for days on
end, could have been made without orders from
commanding officers who, in turn, would surely have
sought guidance from political authorities in
Washington and London.

The dismissive remarks of U.S. Secretary of Defence
Donald Rumsfeld that "stuff happens" in the "fog of
war" only lend credence to such a possibility. In any
event, the decision speaks volumes about the motives
of those who waged the war. Article 147 of the Fourth
Geneva Convention identifies as a "grave breach" the
"extensive... appropriation of property, not justified
by military necessity and carried out unlawfully and
wantonly". Under Article 8, Section 2(a)(iv) of the
Rome Statute for the International Criminal Court,
this type of conduct is categorised as a "war crime".

IN Mosul and elsewhere, U.S. troops have on several
occasions opened fire on civilians engaged in mass
protest and popular marches against the occupation.
Several dozen Iraqis have been killed in such
incidents. For instance, on April 28, U.S. troops had
fired on demonstrators in Falluja killing at least 13
Iraqis. Residents of Falluja complained to reporters
about U.S. troops engaging in intrusive patrols and
surveillance. "They are wandering inside and in
between houses and in front of schools, like cowboys,"
said Talib al-Janabi, head of a hospital.

As in each of the prior incidents, U.S. military
commanders in Falluja claimed that the crowd had fired
at their troops; local residents insisted that the
demonstrations were peaceful. The question of whether
the U.S. military has authorised their troops to use
live fire on unarmed civilian protestors merits
serious investigation under these circumstances,
particularly since, in combat, a staff of lawyers
reportedly oversees adherence to legal rules on a
minute-to-minute basis for U.S. troops in the field.
Article 147 of the Fourth Geneva Convention outlaws
the "willful killing" of protected persons under
military occupation and categorises such acts as
"grave breaches" of the Convention. Similarly, Article
8, Section 2(a)(i) of the Rome Statute defines the
extra-judicial killing of protected persons in
occupied territory as a war crime.

The plunder of thousands of priceless artefacts,
transcripts and archaeological material from the
National Museum in Baghdad was allowed to take place
despite repeated requests for protection from museum
officials to U.S. soldiers on the scene, resulting in
what even Colin Powell described as an "irretrievable
loss" to the cultural heritage of humanity. These
remnants from the Assyrian, Mesopotamian, Sumerian and
other civilisations will undoubtedly find their way to
the private collections of wealthy individuals in the
West or to the auction blocks at Sotheby's - just as
it happened to much of the world's cultural patrimony
in the past.

International law has codified the norms and rules
governing protection of cultural heritage during war
in the 1954 Hague Convention for the Protection of
Cultural Property in the Event of Armed Conflict, and
reaffirmed the general principle in Article 53 of the
1977 Additional Protocols to the Geneva Conventions of
1949. Forty-five countries signed the 1954 Hague
Convention at its inception, with the notable
exceptions of the U.S. and Great Britain. However, the
genesis of the 1954 Convention can be traced to
Article 56 of the 1907 Hague Convention to which both
the U.S. and the U.K. are signatories. That apart, the
provisions of 1907 Hague Convention, arguably, embody
the present status of customary international law on
the subject by which all nations would be bound.
Article 56 states that all seizure, destruction, or
wilful damage done to institutions of cultural
significance, historic monuments, works of art, and
science, is forbidden and should be made the subject
of legal proceedings.

In response to this kind of pervasive illegality, U.N.
Secretary-General Kofi Annan made a tepid public
request on April 24 to U.S.-led forces in Iraq "to
live up to their responsibility for civilians and
public order under the Geneva Conventions". The
rejoinder by Washington's Ambassador to the U.N. that
the U.S. forces had gone out of their way "from day
one" to meet all of their international obligations is
disingenuous, to say the least, based on the
undisputed facts on the ground in occupied Iraq.

The political reality of the matter, however, is that
the international community will in all probability
turn a blind eye to these "grave breaches" of
international law given the unseemly scramble among
states to position themselves to derive maximum
benefit from the post-war dispensation. Having more or
less acquiesced to the disastrous precedent of an
illegal and pre-emptive war against a sovereign
member-state, the U.N. can now be expected to bow like
a marionette, despite some well-publicised
hand-wringing, before the lack of political will among
its member-states, particularly the ones that count,
to do anything meaningful about these serious
violations of international law, especially if the
organisation is to have any role whatsoever in the
future of Iraq.

That future will depend considerably on whether or not
U.S. plans for the post-war regime will encounter the
same resistance that their British predecessors in
"nation-building" confronted during their tenure in
Iraq. Not unlike the presidential sound bite beamed
into Iraqi homes recently, the British proclamation
issued to the inhabitants of Baghdad shortly after
their occupation of the city on March 19, 1917
declared: "Our armies do not come into your lands as
conquerors or enemies, but as liberators." Yet,
British colonial policy was always predicated on
diluting the political muscle of two of the three main
ethnic groups in Iraq. Hence, while the Kurds were to
see their homeland partitioned among Syria, Turkey,
Persia and Iraq, the numerically predominant Shias had
to be persuaded to renounce power in Baghdad owing to
their alleged penchant for theocracy. Instead, the
British selected as ruler King Faisal, a Sunni Muslim,
but acceptable to the Shias as the member of a
Hashemite dynasty, direct descendants of the Prophet.
In just three years, however, Iraqis of all political
hues and ethnic backgrounds made common cause against
their British occupiers in the revolt of 1920 that has
been described, rightly, as the crucible of Iraqi
nationalism.

THE nature of Iraqi resistance to the occupation will
turn on how the U.S. chooses to pursue its strategic
objectives in Iraq. Despite the grandiose idiom of
empire currently in favour among the armchair warriors
in Washington, the long-term objectives of the U.S.
are probably more aptly understood as neocolonialism
of the standard variety that Washington has practised
throughout much of Latin America since the days of the
Monroe Doctrine. The Bush administration's talismanic
evocation of the language of "democracy" and
"liberation" for Iraqis suggests that the U.S. has
already wagered the dubious legitimacy of its war
against Iraq on the promise of installing some kind of
democracy, no matter how fragile, in Baghdad.

Given the fiasco on the weapons front, the U.S. needs
democracy in Iraq to vindicate retrospectively an
invasion that remains otherwise bereft of moral or
legal justification. U.S. Deputy Secretary of Defence
Paul Wolfowitz and other members of the Bush
administration have publicly committed the U.S. to
preserving the "territorial integrity" of Iraq. At the
same time, the Bush administration has already stated
that the U.S. would maintain a "long-term" military
presence in Iraq, including air bases, and reduce its
military profile in Saudi Arabia, where the infidel
footprint on the soil of the Islamic holy sites of
Mecca and Medina has been a favourite whipping-boy for
Islamic fundamentalists throughout the region after
the first Persian Gulf War. Almost by definition,
maintaining such a military presence in Iraq over the
"long term" in the context of a democratic regime
capable of preserving its territorial integrity would
require propping up a client state in the country that
would remain dependent on U.S. patronage for the
indefinite future.

Early indications are that U.S. planners favour a
Belgium-like federation with a weak central authority
in the hands of the Sunni Arabs flanked by relatively
autonomous Kurdish and Shia regions to the north and
south respectively. In addition to being an obvious
disappointment for the Shias who stand to lose the
most in this kind of federation, the weak statelet at
the central level of government will remain
precariously dependent upon Washington for its
continued survival. There are a number of compelling
reasons, however, why this neo-colonial model may run
aground in post-war Iraq.

The entire formula is eerily reminiscent of British
realpolitik in the region, albeit with a
semi-democratic flavouring, and may prove just as
untenable in the long run. For this divide-and-rule
strategy to work, the Shias would have to be persuaded
to trade their majoritarian aspirations in Baghdad for
an uncertain regional autonomy in the south and the
Sunnis, whose political primacy in Iraq has remained
unchanged since 1632 when the Sunni Ottoman Turks made
them a ruling minority, would have to trade primacy
over an undivided Iraq for a much-reduced authority
over the weakened federal structure.

Any framework for government in Iraq will have to
wrestle with the growing assertiveness of the Shia
majority. That will necessarily involve the Bush
administration, not known for its cultural sensitivity
to the European, let alone Muslim sectarian opinion,
in the Byzantine labyrinth of Shia factional politics
where a number of clerical leaders are already
jockeying for influence, some of whom have publicly
demanded an Islamic state under the Sharia law.

Democracy of any kind in Iraq, or regional autonomy
for that matter, would only enhance the influence of
the Shias and, inevitably, that of their Iranian
patrons. This prospect has already alarmed Iraq's
mostly Sunni Arab neighbours who had overwhelmingly
supported Saddam Hussein's 1980-88 war with Iran,
along with the U.S., to prevent precisely this kind of
outcome. The Bush administration's spokesmen have been
as blunt as usual: "We've made clear to Iran that we
would oppose any outside interference in Iraq's road
to democracy. Infiltration of agents to destabilise
the Shiite population would clearly fall into that
category."

For its part, Iran has denied any such interference,
while duly noting the sheer hypocrisy entailed in the
U.S.' demands that it not interfere in Iraq's
"internal affairs". Nonetheless, the Iranians have
long sponsored the Supreme Council for the Islamic
Revolution in Iraq, often called the "Hezbollah of
Iraq", which claims the support of some 10,000 armed
men and is a major contender in the battle for
leadership of Iraq's Shiites. The group has boycotted
U.S.-sponsored talks for the formation of an interim
government in Baghdad. Teheran has also called for the
U.N. to play the principal role in post-war Iraq which
suggests, at a minimum, that Iran fully intends to
exercise some kind of influence in the post-war
dispensation as the regional protector of its
co-religionists in Iraq. Any Iranian role of this kind
will be unacceptable to Washington, not to mention
Iraq's mostly Sunni neighbours such as Egypt and Saudi
Arabia.

The Bush administration's relentless profiteering and
the economic exploitation that is a characteristic
feature of U.S. neo-colonialism will only compound the
difficulties inherent in the project. The awarding of
a Pentagon contract to Kellogg Brown & Root, a
subsidiary of Vice-President Dick Cheney's former
oil-services company Halliburton, worth as much as $7
billion over two years, is just one example of the
bizarre mixture of crass opportunism and evangelical
zeal that drives Washington's policy these days. The
key adviser to the U.S. State Department's Future of
Iraq Oil and Energy Working Group, who is also the
cousin of Ahmed Chalabi, a convicted embezzler and the
Pentagon's choice to lead the post-war Iraqi
government, has already announced that Iraq may have
to withdraw from the Organisation of Petroleum
Exporting Countries (OPEC) and "privatise" its oil
industry.

Needless to say, democracy will not be the U.S.' only
export to Iraq. It has appointed Dan Amstutz, a former
senior executive of Cargill, the biggest grain
exporting multinational in the world, in charge of the
reconstruction of Iraq's agricultural sector. Kevin
Watkins, Oxfam's policy director, has charged that
Amstutz was more likely to try to dump cheap U.S.
grain on the potentially lucrative Iraqi market than
encourage the country to rebuild its once-successful
agricultural sector. "Putting Dan Amstutz in charge of
agricultural reconstruction in Iraq is like putting
Saddam Hussein in the chair of a human rights
commission," Watkins said. "This guy is uniquely
well-placed to advance the commercial interests of
American grain companies and bust open the Iraqi
market - but singularly ill-equipped to lead a
reconstruction effort in a developing country."

------------------------------------------------
Himanshu Rajan Sharma is an international lawyer,
author and political activist based in New York.


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