Iraq and the Laws of War
On 19 March 2003 President Bush Jr. commenced his criminal war against Iraq by ordering a so-called decapitation strike against the President of Iraq in violation of a 48-hour ultimatum he had given publicly to the Iraqi President and his sons to leave the country. This duplicitous behavior violated the customary international laws of war set forth in the 1907 Hague Convention on the Opening of Hostilities to which the United States is still a contracting party, as evidenced by paragraphs 20, 21, 22, and 23 of U.S. Army Field Manual 27-10 (1956). Furthermore, President Bush Jr.'s attempt to assassinate the President of Iraq was an international crime in its own right. Of course the Bush Jr. administration's war of aggression against Iraq constituted a Crime against Peace as defined by the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950) as well as by paragraph 498 of U.S. Army Field Manual 27-10 (1956)...
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Iraq and the Laws of War
Francis A. Boyle
 |
October 14, 2005
On 19 March 2003 President Bush Jr. commenced his criminal war
against Iraq by ordering a so-called decapitation strike against
the President of Iraq in violation of a 48-hour ultimatum he had
given publicly to the Iraqi President and his sons to leave the
country. This duplicitous behavior violated the customary
international laws of war set forth in the 1907 Hague Convention
on the Opening of Hostilities to which the United States is
still a contracting party, as evidenced by paragraphs 20, 21,
22, and 23 of U.S. Army Field Manual 27-10 (1956). Furthermore,
President Bush Jr.'s attempt to assassinate the President of
Iraq was an international crime in its own right. Of course the
Bush Jr. administration's war of aggression against Iraq
constituted a Crime against Peace as defined by the Nuremberg
Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg
Principles (1950) as well as by paragraph 498 of U.S. Army Field
Manual 27-10 (1956).
Next came the Pentagon's military strategy of inflicting "shock
and awe" upon the city of Baghdad. To the contrary, article 6(b)
of the 1945 Nuremberg Charter defined the term "War crimes" to
include: ". . . wanton destruction of cities, towns or
villages, or devastation not justified by military necessity. .
." The Bush Jr. administration's infliction of "shock and awe"
upon Baghdad and its inhabitants constituted the wanton
destruction of that city, and it was certainly not justified by
"military necessity," which is always defined by and includes
the laws of war. Such terror bombings of cities have been
criminal behavior under international law since before the
Second World War: Nagasaki, Hiroshima, Tokyo, Dresden, London,
Guernica.
On 1 May 2003 President Bush Jr. theatrically landed on a U.S.
aircraft carrier off the coast of San Diego to declare: "Major
combat operations in Iraq have ended." He spoke before a large
banner proclaiming: "MISSION ACCOMPLISHED." As of that date,
the United States government became the belligerent occupant of
Iraq under international law and practice.
This legal status was formally recognized by U.N.
Security Council Resolution 1483 of 22 May 2003. For the purpose
of this analysis here, the relevant portions of that Security
Council Resolution 1483 (2003) are as follows:
. . . .
Noting the letter of 8 May 2003 from the Permanent
Representatives of the United States of America and the United
Kingdom of Great Britain and Northern Ireland to the President
of the Security Council (S/2003/538) and recognizing the
specific authorities, responsibilities, and obligations under
applicable international law of these states as occupying powers
under unified command (the "Authority"),
. . . .
5. Calls upon all concerned to comply fully with
their obligations under international law including in
particular the Geneva Conventions of 1949 and the Hague
Regulations of 1907;
. . . .
In that aforementioned 8 May 2003 letter from the
United States and the United Kingdom to the President of the
Security Council, both countries pledged to the Security Council
that: "The States participating in the Coalition will strictly
abide by their obligations under international law, including
those relating to the essential humanitarian needs of the people
of Iraq." No point would be served here by attempting to
document the gross and repeated violations of that solemn and
legally binding pledge by the United States and the United
Kingdom from that date until today since it would require a
separate book to catalog all of the war crimes, crimes against
humanity, and grave human rights violations inflicted by the
United States and the United Kingdom in Iraq and against its
people. Suffice it to say here that no earlier than President
Bush's 1 May 2003 Declaration of the end of hostilities in Iraq,
and certainly no later than U.N. Security Resolution 1483 of 22
May 2003, both the United States and the United Kingdom have
been the belligerent occupants of Iraq subject to the Four
Geneva Conventions of 1949, the 1907 Hague Regulations on land
warfare, U.S. Army Field Manual 27-10 (1956) or respectively its
British equivalent, the humanitarian provisions of Additional
Protocol One of 1977 to the Four Geneva Conventions of 1949, and
the customary international laws of war.
I do not take the position that the United States is the
belligerent occupant of the entire state of Afghanistan. But
certainly the laws of war and international humanitarian law
apply to the United States in its conduct of hostilities in
Afghanistan as well as to its presence there. It is not
generally believed that the United States is the belligerent
occupant of Guantanamo, Cuba. But those detainees held there by
United States armed forces who were apprehended in or near the
theaters of hostilities in Afghanistan and Iraq are protected by
either the Third Geneva Convention protecting prisoners of war
or the Fourth Geneva Convention protecting civilians. In any
event every detainee held by the United States government in
Guantanamo is protected by the International Covenant on a Civil
and Political Rights, to which the United States is a
contracting party. A similar analysis likewise applies /pari
passu/ to those numerous but unknown torture and detention
facilities operated around the world by the Central Intelligence
Agency. America's own "Gulag Archipelago." No wonder the Bush
Jr. administration has done everything humanly possible to
sabotage the International Criminal Court!
The United States government's installation of the
so-called Interim Government of Iraq during the summer of 2004
did not materially alter this legal situation. Under the laws of
war, this so-called Interim Government of Iraq is nothing more
than a "puppet government." As the belligerent occupant of Iraq
the United States government is free to establish a puppet
government if it so desires. But under the laws of war, the
United States government remains fully accountable for the
behavior of its puppet government.
These conclusions are made quite clear by paragraph 366 of U.S.
Army Field Manual 27-10 (1956):
366. Local Governments Under Duress and Puppet Governments
The restrictions placed upon the authority of a belligerent
government cannot be avoided by a system of using a puppet
government, central or local, to carry out acts which would be
unlawful if performed directly by the occupant. Acts induced or
compelled by the occupant are nonetheless its acts.
As the belligerent occupant of Iraq, the United
States government is obligated to ensure that its puppet Interim
Government of Iraq obeys the Four Geneva Conventions of 1949,
the 1907 Hague Regulations on land warfare, U.S. Army Field
Manual 27-10 (1956), the humanitarian provisions of Additional
Protocol One of 1977 to the Four Geneva Conventions of 1949, and
the customary international laws of war. Any violation of the
laws of war, international humanitarian law, and human rights
committed by its puppet Interim Government of Iraq are legally
imputable to the United States government. As the belligerent
occupant of Iraq, both the United States government itself as
well as its concerned civilian officials and military officers
are fully and personally responsible under international
criminal law for all violations of the laws of war,
international humanitarian law, and human rights committed by
its puppet Interim Government of Iraq such as, for example,
reported death squads operating under its auspicies.
Furthermore, it was a total myth, fraud, lie, and outright
propaganda for the Bush Jr. administration to maintain that it
was somehow magically transferring "sovereignty" to its puppet
Interim Government of Iraq during the summer of 2004. Under the
laws of war, sovereignty is never transferred from the defeated
sovereign such as Iraq to a belligerent occupant such as the
United States. This is made quite clear by paragraph 353 of U.S.
Army Field Manual 27-10 (1956): "Belligerent occupation in a
foreign war, being based upon the possession of enemy territory,
necessarily implies that the sovereignty of the occupied
territory is not vested in the occupying power. Occupation is
essentially provisional."
If there were any doubt about this matter, paragraph 358 of U.S.
Army Field Manual 27-10 (1956) makes this fact crystal clear:
358. Occupation Does Not Transfer Sovereignty
Being an incident of war, military occupation
confers upon the invading force the means of exercising control
for the period of occupation. It does not transfer the
sovereignty to the occupant, but simply the authority or power
to exercise some of the rights of sovereignty. The exercise of
these rights results from the established power of the occupant
and from the necessity of maintaining law and order,
indispensable both to the inhabitants and the occupying force
. . . .
Therefore, the United States government never had
any "sovereignty" in the first place to transfer to its puppet
Interim Government of Iraq. In Iraq the sovereignty still
resides in the hands of the people of Iraq and in the state
known as the Republic of Iraq, where it has always been. The
legal regime described above will continue so long as the United
States remains the belligerent occupant of Iraq. Only when that
U.S. belligerent occupation of Iraq is factually terminated can
the people of Iraq have the opportunity to exercise their
international legal right of sovereignty by means of free, fair,
democratic, and uncoerced elections. So as of this writing, the
United States and the United Kingdom remain the belligerent
occupants of Iraq despite their bogus "transfer" of their
non-existent "sovereignty" to their puppet Interim Government of
Iraq.
Even U.N. Security Council Resolution 1546 of 8 June
2004 "Welcoming" the installation of the puppet Interim
Government of Iraq recognized this undeniable fact of
international law. Preambular language in this Resolution
referred to "the letter of 5 June 2004 from the United States
Secretary of State to the President of the Council, which is
annexed to this resolution." In other words, that annexed letter
is a legally binding part of Resolution 1546 (2004). Therein
U.S. Secretary of State Colin Powell pledged to the U.N.
Security Council with respect to the so-called Multinational
Force (MNF) in Iraq: "In addition, the forces that make up the
MNF are and will remain committed at all times to act
consistently with their obligations under the law of armed
conflict, including the Geneva Conventions." Pursuant thereto,
the United States and the United Kingdom still remain the
belligerent occupants of Iraq subject to the Four Geneva
Conventions of 1949, the Hague Regulations of 1907, U.S. Army
Field Manual 27-10 (1956) or respectively its British
equivalent, the humanitarian provisions of Additional Protocol I
of 1977 to the Four Geneva Conventions of 1949, and the
customary international laws of war.
This brings the analysis to the so-called
Constitution of Iraq that was allegedly drafted by the puppet
Interim Government of Iraq under the impetus of the United
States government. Article 43 of the 1907 Hague Regulations on
land warfare flatly prohibits the change in a basic law such as
a state's Constitution during the course of a belligerent
occupation: "The authority of the legitimate power having in
fact passed into the hands of the occupant, the latter shall
take all the measures in his power to restore, and ensure as far
as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country." This
exact same prohibition has been expressly incorporated in haec
verba into paragraph 363 of U.S. Army Field Manual 27-10 (1956).
To the contrary, the United States has demonstrated gross
disrespect toward every law in Iraq that has stood in the way of
its imperial designs and petroleum ambitions, including and
especially the pre-invasion 1990 Interim Constitution for the
Republic of Iraq.
As for any subsequent Security Council Resolutions,
the United Nations Security Council has no power or authority to
alter one iota of the laws of war since they are peremptory
norms of international law. For the Security Council even to
purport to authorize U.S. violations of the laws of war in Iraq
would render its so-voting Member States aiders and abettors to
U.S. war crimes and thus guilty of committing war crimes in
their own right. Any Security Council attempt to condone,
authorize or approve violations of the Four Geneva Conventions
of 1949, the 1907 Hague Regulations, the humanitarian provisions
of Additional Protocol I of 1977 to the Four Geneva Conventions
of 1949, and the customary international laws of war by the
United States and the United Kingdom in Iraq would be ultra
vires, a legal nullity, and void ab initio.
In fact, the United Nations Organization itself has become
complicit in U.S. and U.K. international crimes in Iraq in
violation of the customary international laws of war set forth
in paragraph 500 of U.S. Army Field Manual 27-10 (1956): ". . .
complicity in the commission of, crimes against peace, crimes
against humanity, and war crimes are punishable." The United
Nations Organization is walking down the path of the League of
Nations toward Trotsky's "ashcan" of history. And George Bush
Jr. and Tony Blair are heading towards their own Judgment at
Nuremberg whose sixtieth anniversary the rest of the world
gratefully but wistfully commemorates this year. Never again!
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
Courtesy & Copyright © Francis A. Boyle
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:: Article nr. 16768 sent on 14-oct-2005 23:46 ECT
www.uruknet.info?p=16768
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