Neo-Conned! Again

by D Liam O'Huallachain

  5. The IST is not impartial. The judges remain anonymous. The use of “faceless judges” has been held to be a prima facie violation of the right to fair trial4 and of the requirement of impartiality. The court's impartiality is further impugned by the fact that its former administrator, Mr. Salem Chalabi, has been one of the main opponents of the government of Mr. Hussein and openly sought his removal by force as head of state of Iraq for more than a decade, in violation of both Iraqi law and international law.

  6. The IST also violates international law because it denies its defendants' basic fair-trial and due-process rights. The defendants have not been able to meet their lawyers in any meaningful way or routinely. Evidence of the torture and mistreatment of defendants has not been investigated. The defendants have been denied facilities to prepare their defense; they have not been charged; they have been denied access to any of the alleged evidence against them. All of these failures constitute violations of the defendants' rights.

  In conclusion, only a tribunal created by international mandate and with truly impartial judges sitting can try a head of state who has been captured pursuant to an illegal invasion of his country. Furthermore, a competent, independent, and impartial tribunal is one that applies a rule of law fairly to all persons who should fall under its jurisdiction. In the case of international aggression this must be the aggressor as well as victims of aggression. It is crucial that a determination about the legality of the use of force against Iraqis is a conditio sine qua non for the trial of any person accused of having committed crimes in Iraq.

  That the United States' aggression against the Iraqi people is illegal is an opinion overwhelmingly, almost unanimously, shared among the world's legal scholars and world leaders. It is the first issue that should be litigated in any court of law in relation to the situation in Iraq. To act otherwise would not merely be to put the cart before the horse, but to shoot logic in the head in an attempt to cure a toothache.

  Iraq had not attacked any other country. Iraq was, in fact, abiding by the law. According to UN Secretary-General Kofi Annan, UN weapons inspector Mr. Hans Blix, and the overwhelming majority of international jurists around the world, the United States and its allies are aggressors.

  Already repeated attempts have been taken to use the courts of law to determine the illegality of the war. In Canada, American soldiers who have deserted from the U.S. military have claimed that their actions were justified because the war was illegal. Although blocking its immigration courts from addressing this question, the Canadian government admitted this question should be ruled upon by the International Court of Justice (ICJ).

  Indeed, the General Assembly of the United Nations could consider the proposal of any member state to request an advisory opinion on the legality of the use of force in circumstances such as those surrounding the United States' attack on the Iraqi people. A majority of the General Assembly could then send the question to the ICJ.

  If it is found that the situation in Iraq is the result of an illegal use of force then the aggressor must restore the situation to that which it was before the illegal act of aggression. Therefore, before any members of the Iraqi government headed by Iraqi President Saddam Hussein can stand trial, a determination should be made about the legality of the United States' use of force against the Iraqi people. Until this question of the illegality of the use of force against Iraq has been decided, all actions that emanate from the illegal acts cannot be accepted. The existence and popularity of the national liberation movement inside Iraq is testimony to this reality.

  This brief resume of the situation concerning Iraqi President Saddam Hussein and his government colleagues demonstrates that they are being denied their most fundamental legal rights. There is no sophistry that can mask this fact. The fact that the American occupying power feels that it must go to such extraordinary lengths to deny the defendants their rights – rights that are based on the entire Western legal tradition that a man is held to be innocent until proven guilty – is most assuredly a measure of how indefensible their legal “case” really is. This is disrespectful of the entire corpus of international and United States law that has been carefully constructed over centuries to guarantee basic rights to individuals and to ensure that individuals are not subjected to arbitrary treatment by governments. The treatment of the Iraqi President is an unfortunate contradiction of the notion that the United States is guided and governed by the rule of law. If nations such as the United States do not abide by the laws they themselves decreed, how can they be surprised if a national liberation movement in Iraq resorts to the use of force to try to displace the foreign and oppressive occupation of its country?

  To push forward with trials that have been widely referred to as “show trials” by prominent Iraqis themselves is a travesty of justice that will take generations to undo. Using a legal forum that fails to meet the most minimum basic requirements of justice is an insult to the rule of law and the legal profession. On the other hand, providing for a forum where all perpetrators of crimes in Iraq can be brought to justice, including those who have committed the most serious crimes against peace, would be a starting point for restoring justice in Iraq and restoring respect for the rule of law around the world.

  1. ISNAD is the Defense and Support Committee of President Saddam Hussein, His Comrades and all POWs and Detainees in Iraq; the acronym is an Arabic word that means “support” for justice.

  1. Those who would like to see the entire content of the petition may access it on the Internet at www.uruknet.info/?p=7329.-Ed.

  2. An in forma pauperis filing is one in which the individual making application warrants, usually via signed affidavit, that he does not possess sufficient monetary resources to pay for legal representation and other administrative fees.

  1. Landesman, Peter, “Who v. Saddam?” New York Times Magazine, July 11, 2004, online.

  1. For a detailed look at the irregularities and insufficiency of the January 2005 Iraqi election, see the article by Mark Gery on pp. 761-795 of the present volume.-Ed.

  1. Landesman, loc. cit.

  1. The ongoing attempt to purge “Ba'athists” from the IST is further evidence of its perception in the eyes of those running it as a means of eliminating any vestige of the “old regime.” See Edward Wong, “Iraqi Leaders Vows to Block Purges,” New York Times, July 29, 2005, online.

  1. Landesman, loc. cit.

  2. Ibid.

  3. Ibid.

  4. See, e.g., Ricardo Ernesto Gómez Casafranca v. Peru, Comm. No. 981/2001, UN Doc. No. CCPR/C/78/D/981/2001 (September 19, 2003) at para. 7.3.

  The path of endless war will bankrupt our treasury, devour our soldiers, and degrade the moral and spiritual values of the nation. It is past time to change course.

  —George McGovern, 1972 Democratic

  Presidential candidate and former

  U.S. Senator from South Dakota, and

  Congressman Jim McGovern (D-Mass.),

  June 2005

  APPENDICES.

  PERSPECTIVES ON GULF WAR I

  THE EDITORS' GLOSS: This brief look at the legal issues surrounding the first Gulf War – adapted from the author's 1992 book, War Crimes: A Report on United States War Crimes Against Iraq – brings full circle the discussion of America's “thirteen-years' war” against Iraq. Immediately following Iraq's surprising “victory” in the Iran-Iraq war, America adopted a bellicose stance towards the Ba'athist government, the only satisfying explanation for which is the comment made by Edward Luttwak to Maurizio Blondet before Gulf War I:

  After eight years of war against the Iranian regime of Khomeini, [Saddam] desperately needs to demobilize his Republican Guard, which incorporates so many of his technical elite, in order to rebuild the war-devastated country. These people are his technicians, his engineers. If they are put to work in the way Saddam wishes, they will rapidly make Iraq the most advanced power in the region, and we cannot allow this to happen.

  Meanwhile, after having marginalized
the UN in order to keep their invasion of Iraq on course, American neoconservatives are now rehabilitating UN regulations in order to prove they actually deposed a “bad guy.” Saddam is condemned for having directed oil-purchase opportunities – permitted to him by the UN Security Council's “oil-for-food” scheme, set up to address the Anglo-American created humanitarian disaster in Iraq – to countries who “supported him.” What nerve! He should, of course, have offered economic opportunities exclusively to those, like Britain and the U.S., who were bent on his destruction!

  Now we would never offer economic incentives to other nations to encourage them to support our policies. This is why Ratner relates – based on an impeachment resolution filed by the late Congressman Henry Gonzales (D-Tx.) – that “President [Bush 41] paid off members of the UN Security Council in return for their votes in support of war against Iraq or to abstain from voting contrariwise.” Egypt's debt was forgiven ($7 billion); a loan for China was agreed to ($140 million); Russia was promised aid (over $7 billion); Saudi Arabia was promised $12 billion in arms; and so the list goes on.

  Readers will notice a reference in the text to the U.S.'s continued “embargo against food” and engagement “in battle after a cease-fire.” Even from the perspective of 1992 it was apparent that this should have stopped once Gulf War I ended. It was probably hard to imagine then that it would continue through 2005, and constitute what is now even worse than thirteen years' worth of war.

  APPENDIX

  I

  Off to a Bad Start: International Law and War Crimes in the Case of Gulf War I

  ………

  Michael Ratner, Esq.

  IN THE WORK of the Commission of Inquiry for the International War Crimes Tribunal, we undertook an historic task. We inquired into and ultimately judged whether the United States, in the First Gulf War, violated laws that are fundamental to a civilized world; laws that are designed to protect people, human beings, from the barbarity of war. These laws prohibit war except in the narrowest of circumstances; they severely restrict who can be killed, the types of weapons that can be used and the appropriate targets. An indicia of a civilized country is adherence to these laws, not only by pious words but through actions. To act outside these laws, to disobey these laws, to flaunt these laws is to become hostis humani generis, an enemy of all mankind. In days past “enemies of all mankind” were slave traders and pirates. They could be brought to justice wherever found. Today such enemies include those countries and individuals who violate the fundamental laws that protect the peace and limit war. The testimony presented at the various Commissions of Inquiry here in New York and in other hearings throughout the world will determine whether the United States and its leaders are enemies of all mankind.

  As people living in the United States we have an obligation not to close our eyes, cover our ears and remain silent. We must not and cannot be “good Germans.” We must be, as Bertrand Russell said about the crimes committed by the U.S. in Vietnam, “Against the Crime of Silence.” We must bear witness to the tens of thousands of deaths for whom our government and its leaders bear responsibility and ask the question – “Has the United States committed war crimes with regard to its initiation and conduct of the war against Iraq?” As investigators we believe that the United States and its leaders have committed international crimes. Although we cannot bring them to justice, we can reveal their criminal conduct to ourselves, to the people of the United States, and to the world with the hope that U.S. conduct will be repudiated, conduct, which by the way, still continues. The U.S. still occupies parts of Iraq, it continues an embargo against food, and it engages in battle after a cease-fire.1

  Today I want to outline for you the legal framework in which we are operating and explain some of the broad principles of law applicable to judging the United States' conduct.

  War crimes are violations by a country, its civilians, or its military personnel of the international laws of war. The laws of war are laws that must be obeyed by the United States, its officials and its military, and by the UN. The laws are contained in treaties that the U.S. has signed, for example the Geneva Convention of 1949 on Prisoners of War. They are reflected in what is called customary international law. This law has arisen over hundreds if not thousands of years. All countries must obey it.

  War crimes are divided into two broad categories. The first are called crimes against peace. Crimes against peace include the planning, preparation, or initiation of a war of aggression. In other words one country cannot make aggressive war against another country. Nor can a country settle a dispute by war; it must always, and in good faith, negotiate a settlement. The second category are what we can call crimes against humanity; I am including here crimes against civilians and soldiers. These are violations of the rules as to the means and manner by which war is to be conducted once begun. These include the following prohibitions: killing of civilians, indiscriminate bombing, the use of certain types of weapons, killing of defenseless soldiers, ill treatment of POWs and attacks on non-military targets.

  Any violation of these two sets of laws is a war crime; if the violations are done on purpose, recklessly or knowingly, they are considered very serious and called grave breaches; Germans and Japanese following World War II were hanged for such grave breaches.

  First, I want to discuss crimes against peace and give you some sense of its application here. This prohibition is embodied in the Charter of the United Nations, the Nuremberg Charter, which is the law under which the Nazis were tried, and a treaty called the Kellogg-Briand pact. As the Nuremberg Charter defines:

  Crimes against peace:

  Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

  Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

  The United Nations Charter is the highest expression of this prohibition on aggressive war and sets down very rigorous rules for avoiding the use of force – rules which were flagrantly violated by the United States and a Security Council it controlled. Article 2131 of the UN Charter requires that international disputes be settled by peaceful means so that international peace, security and justice are not endangered; Article 2141 requires that force shall not be used in any manner that is inconsistent with the purposes of the UN, and Article 33 requires that parties to a dispute shall first of all seek a solution by negotiation, inquiry, mediation, conciliation, arbitration judicial settlement, resort to regional agencies, or other peaceful means. Not until all such means are exhausted can force be used.

  So, taken together we have two basic rules: a nation cannot plan and make war, and second, if there is a dispute, the nations must exhaust every means of settlement – every means. Even then, only the UN can authorize war. There is strong evidence, some of which is presented in the papers here, that the U.S. violated both of these basic laws. These facts are not hidden. Much of the evidence indicating that the U.S. set up the war with Iraq is contained in U.S. Congressman Gonzalez's impeachment resolution and brief in support presented to Congress and printed in full in the Congressional Record (H. Res. 86, February 21, 19911). It is only the major commercial press that has ignored the facts. In part it includes the following revelations:

  As early as October 1989 the CIA representatives in Kuwait had agreed to take advantage of Iraq's deteriorating economic position to put pressure on Iraq to accede to Kuwait's demands with regard to the border dispute.

  [Kuwait was encouraged] to refuse to negotiate its differences with Iraq as required by the United Nations Charter, including Kuwait's failure to abide by OPEC quotas, its pumping of Iraqi oil from the Rumaila oil field and its refusal to negotiate these and other matters with Iraq.

  Months prior to the Iraqi invasion of Kuwait, the United States administration prepared a plan and practiced elaborate computer war games pitting United States forces against Iraqi armored divisions.

  In
testimony before Congress prior to the invasion, Assistant Secretary Kelly misleadingly assured Congress that the United States had no commitment to come to Kuwait's assistance in the event of war.

  April Glaspie's reassurance to Iraq that the dispute was an “Arab” matter and the U.S. would not interfere.

  Even if we suspend judgment and believe that the U.S. neither planned nor prepared this war, it had no right to initiate war until all means of negotiation were at an end. The U.S., however, never wanted to negotiate. It wanted war. According to the New York Times, the U.S. wanted to “block the diplomatic track because it might defuse the crisis at the cost of a few token gains for Iraq.''1 Iraq at about this time made an offer to negotiate to settle the crisis. It offered to withdraw from Kuwait for some form of control over two uninhabited islands that would give it access to the Gulf and control over the Rumaila oilfield. The offer was, according to the some U.S. officials, “serious and negotiable.” Offers continued until the eve of war and by that time Iraq was willing to withdraw totally from Kuwait. The U.S. instantly dismissed all offers to negotiate a settlement and refused to pursue them. “No negotiations” was the constant theme of U.S. President George Bush.2 The U.S. and its allies wanted to see the crisis settled by force. It is the U.S. that chose war and not peace; it is the U.S. that committed a crime against peace.

  I want to say a word about the UN Resolutions embargoing Iraq and supposedly authorizing the use of force. All of the UN Resolutions were suspect because of what Congressman Gonzalez called in his impeachment resolution the “bribing, intimidating and threatening of others, including members of the UN Security Council.” Gonzalez cites the following outright bribes: