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1)ASSASSINATION AND DISPLAY IN IRAQ: A RESPONSE TO PROFESSOR COHN 2) [Repost of the Prof. COHN's article:] ASSASSINATION AND DISPLAY IN IRAQ: THE KILLINGS OF UDAY AND QUSAI HUSSEIN IN INTERNATIONAL LAW ========== 1) http://jurist.law.pitt.edu/forum/forumnew122.php August 13, 2003 ASSASSINATION AND DISPLAY IN IRAQ: A RESPONSE TO PROFESSOR COHN Professor Robert F. Turner Center for National Security Law, University of Virginia School of Law JURIST Guest Columnist The great American tradition of academic freedom finds perhaps its clearest expression in the words of Thomas Jefferson—the founder of my university and the person for whom Professor Marjorie Cohn’s law school was named. In a December 27, 1820 letter to English historian William Roscoe, Jefferson wrote of his planned University of Virginia: “The institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” I commend JURIST for providing a forum for Professor Cohn’s views, and hope that I can assist readers in their search for the truth by providing a counterpoint to her recent piece on the deaths of Uday and Qusai Hussein — which I believe to be profoundly in error. The “Assassination” Allegation To begin with, Professor Cohn’s assertion that Uday and Qusai were “assassinated” is not supported by the facts. By most definitions, “assassination” is a form of “murder.” For example, the Oxford Companion to Law defines it as “[t]he murder of a person by lying in wait for him and then killing him, particularly the murder of prominent people from political motives, e.g., the assassination of President Kennedy.” Some background may be in order. On 22 May 2003, by a vote of 14-0, the UN Security Council passed Resolution 1483, which recognized the United States and Great Britain as the “Authority” in Iraq pending the establishment of an independent democratic Iraqi government and affirmed “the need for accountability for crimes and atrocities committed by the previous Iraqi regime.” Acting under Chapter VII of the Charter (and expressly recognizing that the situation in Iraq “continues to constitute a threat to international peace and security”), the Security Council: 3. Appeal[ed] to Member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice [a category clearly including both Uday and Qusai Hussein]; 4. Call[ed] upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future . . . .” Quite understandably, the Authority sought to locate Uday and Qusai Hussein, not merely to see them brought to justice for their horrendous abuses of the Iraqi people but also because they were reported to be involved in the planning of armed attacks that were taking place daily against Authority military forces. Information was received that Saddam’s sons were operating out of a building in Mosul, Iraq. Troops were dispatched to check out the report, and when they arrived they announced their purpose over a loudspeaker and demanded that the occupants surrender. When there was no response, a squad attempted to enter the building and came under automatic weapons fire. A fire-fight ensued, and when the shooting was over Uday and Qusai Hussein were among the dead found in the building. This was no more an “assassination” than any of numerous incidents in the United States and around the world where suspected criminals are instructed to surrender and elect to shoot it out with authorities. The major fighting may be over, but Iraq remains an area of armed conflict. Firefights occur almost daily. Nor is it legally relevant that the Authority had a much larger and better-armed force during the exchange of gunfire. Peacekeeping is not a sporting contest. A greatly superior force often facilitates a peaceful resolution of such a standoff by persuading the suspected criminals that they have no chance other than surrender or death. American officials have asserted that their hope was to take Uday and Qusai alive—both because they might provide useful intelligence and because they could then be held accountable in a court of law for their brutal oppression of the Iraqi people. To suggest that this incident was an “assassination” makes little sense. Professor Cohn would have us believe that this was an “extrajudicial execution” in violation of the International Covenant on Civil and Political Rights, which prohibits the arbitrary denial of the right to life. One of the characteristics of armed conflict is that people are often killed without first being brought before a magistrate and declared guilty of a capital offense. To equate returning fire during an armed conflict with a government executing its political critics without trial does not pass the straight-face test. The CIA “Assassination” Myth Professor Cohn writes: After the Senate Select Committee on Intelligence disclosed in 1975 that the CIA had been involved in several murders or attempted murders of foreign leaders, President Gerald Ford issued an executive order banning assassinations. Although every succeeding president has renewed that order, the Clinton administration targeted Osama bin Laden in Afghanistan, but narrowly missed him. Where to start? Well, first of all, the Senate Select Committee on Intelligence was not created until 1977 (as a Senate staff member, I helped draft the resolution). Nor is she correct when she writes that “every succeeding president has renewed” President Ford’s Executive Order on intelligence activities. The current assassination ban remains in E.O. 12,333, which was signed by President Reagan in December 1981. (I was the Counsel to the President’s Intelligence Oversight Board in the White House, responsible for enforcing that Executive Order in its early years.) But these errors are obviously not serious. More substantively, the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities—the so-called “Church Committee” after its chairman, Senator Frank Church—reported that it could identify no instance in which the Central Intelligence Agency, or anyone acting on behalf of the CIA, had ever “assassinated” anyone. To be sure, there was a plan to kill Patrice Lumumba at one point and he was eventually killed, but the Church Committee concluded “It does not appear from the evidence that the United States was in any way involved in the killing.” Similarly, while the CIA did favor the 1961 coup to overthrown Dominican Republic tyrant Rafael Trujillo, the Church Committee acknowledged that the CIA “did not initiate the plot” to assassinate Trujillo and indeed the United States had made it clear that it would not condone assassination. The CIA generally opposed the 1963 decision to overthrow Ngo Dinh Diem in South Vietnam, but carried out orders from the White House and the State Department. But the Church Committee reported “there is no evidence that American officials favored the assassination” and noted the Director of Central Intelligence had sent a message clearly declaring that the United States would “have no part in such activity." Nor was the CIA involved in any “assassination” of General Rene Schneider in Chile in 1970. The Church Committee reported that the CIA had stopped supporting the group that attempted to kidnap General Schneider prior to that incident, and that in any event Schneider was not “assassinated” but rather died in an exchange of gunfire while resisting an attempt to kidnap him. The one case where the CIA did repeatedly plot to kill a foreign leader—pursuant to orders from the White House—involved Fidel Castro, who it should be remembered was actively involved in supporting guerrilla movements throughout Latin America in violation of the UN Charter and the OAS Charter. The reason the United States was interested in killing him was not over a political disagreement but because Castro’s unlawful actions were getting people killed and threatening the security of U.S. allies in the region—a setting where Article 51 of the UN Charter recognizes a right to resort to armed force. Indeed, Castro was condemned by the OAS for his “acts of aggression and of intervention against the territorial integrity . . . of Venezuela.” The OAS resolution expressly reserved the right of OAS members to “resort to armed force” against Cuba if these acts of “aggression” continued—which, of course, they did. In all capital letters, one of the conclusions of the Church Committee assassination report was that “NO FOREIGN LEADERS WERE KILLED AS A RESULT OF ASSASSINATION PLOTS INITIATED BY OFFICIALS OF THE UNITED STATES.” Indeed, it also noted that the two most recent Directors of Central Intelligence, Richard Helms and William Colby, had each issued clear directives prohibiting CIA personnel from any role in “assassination.” Distinguishing “Assassination” from Self-Defense For readers who may be interested, I have argued elsewhere that the intentional killing of individuals engaged in ongoing acts of aggression or terrorism ought not be characterized as “assassination,” on the theory that international law permits the use of necessary and proportional lethal force in self-defense or collective self-defense in such settings. U.S. laws prohibit the “assassination” of the president, presidential candidates, legislators, Supreme Court justices, and various other categories of people. But if an individual covered by one of these laws were to break into the home of a private citizen and start shooting family members without lawful cause, it would not be “assassination” for the homeowner to kill him with her hunting rifle or a kitchen knife. Since most definitions of “assassination” incorporate the term “murder,” and acts of self-defense are not “murder,” such a killing ought not be confused with real assassination—which is and ought to remain prohibited by executive order and also violates various criminal statutes. To be sure, there was once a rule that it was illegitimate to attack the other sides leaders even during war, but that rule developed before aggressive war was declared to be unlawful in the Kellogg-Briand Treaty and UN Charter and before heads of state and political leaders were subject to punishment as war criminals under the Nuremberg principles. The idea that major international aggressors ought to receive the kinds of special protections accorded to Red Cross and hospital workers during periods of armed conflict makes little sense, especially since the alternative may be the slaughter of countless thousands of relatively innocent soldiers. Even in that earlier period, the leading publicists recognized that the rule was founded not in moral principle but for the convenience of the leaders who made the rules. Thus, Alberico Gentili wrote in 1588 that “[o]ur worthy leaders consult for their own interests in this new fashion; for if they should come into the hands of the enemy, they would no longer have to fear for their own lives . . . .” Nearly two centuries later, Emerich de Vattel added that logic favored killing the enemy’s king, but it was “tacitly agreed among sovereigns that their persons shall be held sacred.”  Whatever logic that rule once may have held, it clearly did not survive Nuremberg. The great Chinese military theorist Sun Tzu observed in The Art of War that “to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.” And anyone who cares about either justice or deterrence must favor a policy that holds individual wrongdoers accountable for their crimes when the alternative is the slaughter of the innocent. The State of the Union “Sixteen Word” Issue Like many wannabe successors to the presidency and some in the media, Professor Cohn seeks to place great importance on what she describes as “the White House’s admission that the President used false information in his State of the Union address . . . .” It is difficult in some cases to tell whether such statements are mere theatrics or whether these individuals are so out of touch with reality that they believe that every piece of intelligence information acted upon by governments is either “true” or the official involved is a “liar.” Would that the world were so simple. As I understand the facts, the British Government learned that Iraq had sent a trade delegation to Niger (whose primary export is uranium, and where Iraq had previously purchased uranium for its nuclear weapons program), and along with other evidence (apparently including at least one written document that was later determined to be a forgery) reasonably concluded that Iraq was trying to purchase more uranium. This conclusion was reported to the United States Government, but the Central Intelligence Agency informed presidential staff members that they could not “independently verify” that the information was accurate—which is not the same thing as alleging the information was false. There is no evidence that this aspect of the issue was ever brought to the attention of the President, who in his State of the Union address asserted: “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” The Prime Minister of Great Britain has repeatedly confirmed that to the best of his knowledge and belief this statement was and remains true. But it doesn’t matter whether it is true or not. Intelligence information is often later found to have been inaccurate—sometimes intentionally so but often because intelligence information is frequently ambiguous—but there is not the slightest bit of evidence that President Bush (or, for that matter, Secretary of State Powell) did not believe their statements to be true when they were made. Nor, for that matter, was the report that Iraq was seeking uranium from Niger a critical justification for Operation Iraqi Freedom. Indeed, shortly before this controversy became public, I wrote a 46-page (15,000-word) book chapter on the legal basis for Operation Iraqi Freedom that did not even bother to mention this bit of reported intelligence information. Yes, I was well aware of the President’s statement and had also heard Secretary of State Powell mention the information, but it was in my view not a critical part of the case. To me, the two primary justifications for the intervention were: As a condition of the 1991 cease-fire agreement, Iraq agreed (and was legally bound to comply even without its consent) to permit international supervision of the destruction of the WMD programs it admitted it possessed—programs involving chemical, biological, and nuclear weapons. Then, for more than a dozen years, Iraq refused to cooperate with UN inspectors and was denounced time and again by the Security Council, which by failing to enforce its edicts had by 2002—when in Resolution 1441, acting under Chapter VII, it once more declared Iraq to be in material breach of its obligations and to constitute a threat to the peace, giving Iraq “a final opportunity” to comply—achieved the level of international credibility of the League of Nations in 1938. It should be kept in mind that the very first “purpose” set forth in Article 1 of the UN Charter was to act collectively to “remove” threats to the peace, but France and Russia (both of whom had been promised billions in reconstruction contracts if they could get UN sanctions removed and Saddam remained in power) refused to agree to enforce the law. Given Saddam Hussein’s long history of major international aggression (claiming an estimated one million or so lives) his use of illegal weapons of mass destruction both against his neighbors and his own citizens, and his open support for terrorism in violation of yet other UN Security Council resolutions, to give him yet one more “free kick” at the world community—which might involve simultaneous WMD attacks around the globe—was not a prudent policy option. I also felt that the record of Iraqi human rights abuses documented by the United Nations and by NGOs like Amnesty International and Human Rights Watch—which included widespread torture, rape, maiming, murder, the disappearances of tens of thousands of people, and the denial of food and medicines to innocent women and children that may well have cost the lives of hundreds of thousands of small children—justified international intervention under the doctrine of humanitarian intervention. As in Kosovo, the basic facts justifying intervention in Iraq had already been established by the UN Security Council. Most international lawyers appear to believe that Operation Iraqi Freedom was in violation of the Charter. As a legal matter, I think it is a closer call than some realize, and when considered in light of the totality of the circumstances—including Saddam’s long history of aggressive behavior, his flagrant violation of more than a dozen Chapter VII resolutions, the Security Council’s repeated determination that Iraq constituted a “threat to the peace” and was in “material breach” of the 1991 cease-fire accord, his support for terrorism, the flagrant violation of fundamental international human rights, the growth of human rights law since the Charter was adopted, and the Kosovo precedent—the legal case is a credible one. The “Grisly Photographs” Then there is the issue of the “grisly photographs” of the dead bodies of Uday and Qusai Hussein made public by the Authority. Professor Cohn asserts that this violated the 1949 Geneva Conventions. Specifically, as what we might call “count one” of her indictment, she alleges that any effort to “reconstruct” the faces of the two brothers would violate the First Convention’s prohibition against despoiling the bodies of combat dead. Article 15 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (“Convention I”), provides: Art. 15. At all times, and particularly after an engagement, parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled. I would invite readers to consult their dictionary of choice to determine if the process of having medical experts reconstruct the face of a dead enemy to facilitate identification constitutes despoliation of the body. Black’s Law Dictionary defines despoil as “To deprive (a person) of possessions illegally by violence or by clandestine means; to rob.” The Columbia Guide to Standard American English says it means “to rob, to take by force, to plunder . . . .” The Concise Oxford Dictionary of Current English says “Plunder, spoil, rob, deprive . . . .” Article 15 was designed to prohibit the practice of victorious soldiers mutilating or “despoiling” the bodies of dead enemies after a battle. Any medical “reconstruction” that may have been done to the bodies of Uday or Qusai Hussein was done to facilitate their identification and was not even arguably in violation of Convention I. A case can certainly be made that, all other things being equal, publishing photographs of dead people is in bad taste. Taking photographs of dead enemy soldiers was against the rules when I served in Vietnam, and one of the many items on the confiscation list as we outprocessed to return to America was photographs of enemy dead. It is clear that this issue was debated at length in Washington, and the decision to release the photographs came only after it became clear that many Iraqis did not believe that Saddam Hussein’s sons were actually dead. Most Iraqi’s lived in fear of Saddam and his sons, while some continued to fight in the hope that they could restore these tyrants to power. Releasing the photographs was designed to reassure the Iraqi people that they no longer had any need to live in fear of Uday or Qusai Hussein, while at the same time informing the small number of loyalists who hoped to restore the old regime to power that continuing to kill American soldiers could not restore these thugs to power. Under these circumstances, it was not an unreasonable decision. As Professor Cohn correctly notes, “The display of the photographs may backfire and turn the brothers into martyrs who stood against the foreign invaders. It could also result in even more violence against U.S. troops.” Washington policymakers presumably considered those risks, and history will eventually tell us whether their decision proved to be a wise one. But the assertion that their decision violated international law is unfounded. In what we might call “count two” of her indictment on this issue, Professor Cohn seeks to find legal authority in Convention III, noting that “When Iraqis displayed images of captured U.S. troops, Bush demanded that the POWs be treated humanely, and he warned that anyone who mistreated them would be tried for war crimes.” Article 13 of Convention III provides, inter alia, that “prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.” This is a very important rule, and violations may well constitute war crimes. But it is totally irrelevant to Uday or Qusai Hussein, since neither of them was ever in U.S. custody as a “prisoner of war”—the subject of Convention III. Surely Professor Cohn realized this, and while her reference to Convention III is in the paragraph discussing the “gruesome photos” of the “assassinated Hussein brothers,” the relevance is implicit rather than explicit. Indeed, in the same paragraph she complains: “Bush didn’t complain when American media outlets featured Iraqi prisoners down on their knees, blindfolded and handcuffed.” Perhaps that was the only reason for her reference to Convention III and she didn’t mean to lead her readers to believe it had anything to do with the killing of the Hussein brothers. I honestly don’t know whether President Bush personally “complained” to “American media outlets” or anyone else when photos of Iraqi POWs were broadcast around the globe. I can say that I was upset about it and immediately sent an e-mail to the Legal Counsel to the Chairman of the Joint Chiefs of Staff—at the time a position occupied by a friend, colleague, and former student of mine—and received an immediate response that appropriate action was already being taken to prevent a reoccurrence. I don’t know if there were subsequent incidents, but I do know the U.S. military takes the Geneva Conventions very seriously and I am confident that serious steps were taken to prevent such images. (There was nothing wrong with handcuffing or blindfolding POWs at the time of their capture.) There is an inherent tension between the military’s desire for order and discipline and the demands of a free press for access in the interests of the people’s right to know—and these photos were apparently a consequence of that imperfect relationship. Conclusions It is my hope that this exchange will promote the search for the truth, and that readers will be encouraged to pursue the facts independently by studying the Geneva Conventions and the other sources of law mentioned in both articles. I am grateful to Professor Cohn for her willingness to share her views with others and for the opportunity she has provided me to express a somewhat different viewpoint. And I am particularly indebted to Professor Bernard Hibbitts both for his excellent work in creating and maintaining JURIST and for his willingness to permit views contrary to his own prejudices to be freely expressed. This is the way to promote discovery of truth. ---------------------------------------------------------------------------- ----  This essay is a response to a JURIST Forum column dated July 29, 2003, by Professor Marjorie Cohn, of Thomas Jefferson School of Law in San Diego, entitled “ASSASSINATION AND DISPLAY IN IRAQ: THE KILLINGS OF UDAY AND QUSAI HUSSEIN IN INTERNATIONAL LAW,” which can be found by clicking here.  For this and other definitions, see Robert F. Turner It’s Not Really “Assassination”: Legal and Moral Implications of Intentionally Targeting Terrorists and Aggressor-State Regime Elites, 37 U. RICH. L. REV. 787, 790 (2003).  Id. at 797-98.  For further information on the issue of alleged CIA involvement in assassinations, see id. at 791-98.  See id., and Robert F. Turner, Killing Saddam: Would It Be a Crime?, WASH. POST, Oct. 7, 1990, at D1; Robert F. Turner, In Self-Defense, U.S. Has Right to Kill Terrorist bin Laden, USA TODAY, Oct. 26, 1998, at 17A; and Robert F. Turner, Intentional Targeting of Regime Elites: The Legal and Policy Debate, 36 NEW ENGLAND L. REV. 785 (2002).  Perhaps it is because I was once a soldier and I have dealt with soldiers around the world, but I believe that international law should recognize that the lives of soldiers have moral value and ought not be needlessly sacrificed—especially when there is a chance that the aggression can be ended by the application of more discriminating force against the individual wrongdoers who began it. Saddam’s soldiers did not have the option to simply run off to Canada to avoid military service, and refusal to carry out orders could result not only in their own deaths or disfigurement but in the torture and abuse of their relatives and friends.  Quoted in Turner, It’s Not Really “Assassination,” supra note 2 at 798-99.  Id. at 799.  Intelligence services often go to great efforts to plant false information to mislead or embarrass their adversaries. Iraqi intelligence might have planted this information, hoping that the United Kingdom would release it and then be embarrassed before the world community. For that matter, the French (presumably a leading intelligence source on events in Niger) or Russian intelligence services might have taken great pleasure in “setting up” the British and Americans as part of their efforts to safeguard the regime of Saddam Hussein. I have absolutely no knowledge of what happened in this instance beyond having heard Prime Minister Blair on CNN assure the American press that he had provided the information to President Bush in good faith and continued to believe it to be essentially accurate. But if we were to impeach presidents every time they acted upon inaccurate intelligence information no president in the past half-century would have survived.  Robert F. Turner, Was Operation Iraqi Freedom Legal?, in LAURIE MYLROIE, BUSH V. THE BELTWAY 164 (2003). (For the record, I have never met Dr. Mylroie and still not had time to read the rest of this book, which was originally entitled “No Choice But War” and I was told would be a factual explanation of the need for international action to enforce Security Council resolutions on Iraq, and I have no position (at this point) on the allegation in Dr. Mylroie’s subtitle that “the CIA and the State Department tried to stop the war on terror.”)  Security Council Resolution 687 was passed under Chapter VII of the Charter (authorizing the Security Council to act with respect to threats to the peace and acts of aggression), and under Article 25 of the Charter all UN members are obligated to carry out decisions of the Security Council.  The Security Council had always permitted Iraq to import foodstuffs, medicine, and other humanitarian supplies, and the oil-for-food program expressly permitted Iraq to export oil to fund such purchases. But Saddam Hussein correctly believed that the world community cared more about the lives and welfare of Iraqi children than he did, so he refused to take advantage of these opportunities and callously allowed Iraqi children to starve in the hope that international protests would remove the UN embargo and permit him to once again start importing the materials he wanted for his WMD programs.  Keep in mind that a Soviet resolution in the Security Council to denounce the NATO humanitarian intervention in Kosovo as being in violation of the UN Charter was rejected by a margin of four-to-one.  BLACK’S LAW DICTIONARY 458 (7th ed., Bryan A. Garner, ed. 1999).  THE COLUMBIA GUIDE TO STANDARD AMERICAN ENGLISH 135 (Kenneth G. Wilson ed. 1993).  THE CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH 325 (H. W. Fowler & F. G. Fowler, eds, 4th ed. 1951).  I have absolutely no idea where Professor Hibbitts stands on any issue, but think it unlikely that he agrees strongly with both Professor Cohn and myself on the present topic. ---------------------------------------------------------------------------- ---- Robert F. Turner is a professor at the University of Virginia and co-founder of the Center for National Security Law. August 13, 2003 JURIST Guest Columnist Robert F. Turner is a professor at the University of Virginia and co-founder of the Center for National Security Law at the University of Virginia School of Law. He has been the Center's Associate Director since 1981 except for two periods of government service in the 1980s and during 1994-95 when he occupied the Charles H. Stockton Chair of International Law at the U.S. Naval War College in Newport, Rhode Island. A veteran of two Army tours in Vietnam, he served as a Research Associate and Public Affairs Fellow at Stanford's Hoover Institution on War, Revolution and Peace before spending five years in the mid-1970s as national security adviser to Senator Robert P. Griffin, a member of the Senate Foreign Relations Committee. He has also served in the Pentagon as Special Assistant to the Under Secretary of Defense for Policy, in the White House as Counsel to the President's Intelligence Oversight Board, at the State Department as Principal Deputy Assistant Secretary for Legislative Affairs, and as the first President of the congressionally-established United States Institute of Peace. A former three-term chairman of the ABA Standing Committee on Law and National Security (and for many years he edited the ABA National Security Law Report), Professor Turner has taught undergraduate courses at Virginia on International Law, U.S. Foreign Policy, the Vietnam War, and Foreign Policy and the Law in the Woodrow Wilson Department of Government and Foreign Affairs, in addition to co-teaching with Professor Moore the law school seminars on Advanced Topics in National Security Law I & II. The author or editor of a dozen books and monographs (including coeditor of the Center's National Security Law and National Security Law Documents) and numerous articles in law reviews and professional journals, Turner has also contributed articles to most of the major U.S. newspapers and has testified before more than a dozen different congressional committees on issues of international or constitutional law and related topics. ================= 2) http://jurist.law.pitt.edu/forum/forumnew121.php July 29, 2003 ASSASSINATION AND DISPLAY IN IRAQ: THE KILLINGS OF UDAY AND QUSAI HUSSEIN IN INTERNATIONAL LAW Professor Marjorie Cohn Thomas Jefferson School of Law JURIST Contributing Editor Last week the US military assassinated Uday and Qusai Hussein in a villa in Mosul, Iraq. Hundreds of troops armed with automatic weapons, rockets, rocket-propelled grenades, and tow missiles, and dozens of vehicles and aircraft, attacked four people armed with AK-47 automatic rifles. Mustapha, the 14-year old son of Qusai, was also killed in the operation, along with another individual who was apparently a bodyguard. The subsequent firestorm of media coverage momentarily diverted public attention from the Bush administation's failing Iraq war - its vain attempts to find any weapons of mass destruction or link between Saddam Hussein and Al Qaeda, the White House's admission that the President used false information in his State of the Union address, and the continuing deaths of American soldiers in an occupation with no end in sight. The assassinations prompted chest-thumping and back-slapping all around. Even Senator Ted Kennedy joined British Prime Minister Tony Blair, The New York Times and the Washington Post, in congratulating Bush on the good news. Then, after reportedly reflecting on the pros and cons, Secretary of Defense Donald Rumsfeld gave the go-ahead to display the grisly photographs of the Hussein brothers' reconstructed bullet-riddled faces. The Pentagon didn’t want to appear to be “gloating,” but Rumsfeld thought the photos would convince skeptical Iraqis that Uday and Qusai were indeed dead, which would reduce the attacks on U.S. troops and encourage informants to come forward without fear of retaliation by the old regime. Both the targeted assassinations and the photographic display violated well-established principles of international law. Targeted, or political, assassinations are extrajudicial executions. They are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. Extrajudicial executions are unlawful, even in armed conflict. In a 1998 report, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions noted that “extrajudicial executions can never be justified under any circumstances, not even in time of war.” The International Covenant on Civil and Political Rights, a treaty ratified by the United States, prohibits the arbitrary denial of the right to life, a right so fundamental, there can be no derogation from it even in “time of public emergency which threatens the life of the nation." The U.N. General Assembly and Human Rights Commission, as well as Amnesty International, have all condemned extrajudicial executions. After the Senate Select Committee on Intelligence disclosed in 1975 that the CIA had been involved in several murders or attempted murders of foreign leaders, President Gerald Ford issued an executive order banning assassinations. Although every succeeding president has renewed that order, the Clinton administration targeted Osama bin Laden in Afghanistan, but narrowly missed him. In July 2001, the U.S. Ambassador to Israel denounced Israel’s policy of targeted killings, or “preemptive operations.” He said “the United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.” Yet after September 11, former White House press secretary Ari Fleischer invited the killing of Saddam Hussein: “The cost of one bullet, if the Iraqi people take it on themselves, is substantially less” than the cost of war. Shortly thereafter, George W. Bush issued a secret directive, which authorized the CIA to target suspected terrorists for assassination when it would be impractical to capture them and when large-scale civilian casualties could be avoided. In November 2002, Bush reportedly authorized the CIA to assassinate a suspected Al Qaeda leader in Yemen. He and five traveling companions were killed in the hit, which Deputy Defense Secretary Paul Wolfowitz described as a “very successful tactical operation.” Nearly sixty years ago, the U.S. government opposed the extrajudicial executions of Nazi officials who had committed genocide against millions of people. U.S. Supreme Court Justice Robert H. Jackson, who served as chief prosecutor at the Nuremberg War Crimes Tribunal, told President Harry Truman: “We could execute or otherwise punish [the Nazi leaders] without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would … not set easily on the American conscience or be remembered by children with pride.” Americans should not feel pride in the public display of the gruesome photos of the assassinated Hussein brothers. The First Geneva Convention requires combatants to ensure that the dead are not despoiled. Reconstruction of their faces violates this treaty, which also provides that the dead be honorably interred; Islamic law requires immediate burial. When Iraqis displayed images of captured U.S. troops, Bush demanded that the POWs be treated humanely, and he warned that anyone who mistreated them would be tried for war crimes. But Bush didn’t complain when American media outlets featured Iraqi prisoners down on their knees, blindfolded and handcuffed. What’s good for the goose is good for the gander. Uday and Qusai Hussein should have been arrested and tried in Iraqi courts or an international tribunal for their alleged crimes. George W. Bush cannot serve as judge, jury and executioner. This assassination creates a dangerous precedent, which could be used to justify the targeted killings of U.S. leaders. The display of the photographs may backfire and turn the brothers into martyrs who stood against the foreign invaders. It could also result in even more violence against U.S. troops. ---------------------------------------------------------------------------- ---- Marjorie Cohn, a professor of law at Thomas Jefferson School of Law in San Diego, is executive vice president of the National Lawyers Guild. July 29, 2003 JURIST Contributing Editor Marjorie Cohn is a professor at Thomas Jefferson School of Law in San Diego, where she teaches Criminal Law, Criminal Procedure, Evidence, and International Human Rights Law. A news consultant for CBS News and a commentator for Court TV, she has co-authored a book on cameras in the courtroom with former CBS News Correspondent David Dow. Professor Cohn has also published articles about criminal justice, international human rights, U.S. foreign policy and impeachment. She is executive vice president of the National Lawyers Guild, editor of the Guild Practitioner and is on the Roster of Experts of the Institute for Public Accuracy. A criminal defense attorney at the trial and appellate levels for many years, Professor Cohn was also staff counsel to the California Agricultural Labor Relations Board. She has lectured at regional, national and international conferences, and was a legal observer in Iran on behalf of the International Association of Democratic Lawyers. Professor Cohn is a graduate of Stanford University and the Santa Clara University School of Law. _______________________________________________ Sent via the discussion list of the Campaign Against Sanctions on Iraq. To unsubscribe, visit http://lists.casi.org.uk/mailman/listinfo/casi-discuss To contact the list manager, email firstname.lastname@example.org All postings are archived on CASI's website: http://www.casi.org.uk