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Illegality of Preventive Attack and Unilateral Use of Force
By Phil Shiner [continued]
I have about thirty cases of deaths at the hands of UK troops during policing functions. The following points can be made:
The soldiers killed civilians, some in their homes, whilst operating under rules of engagement, which should have been changed from the war to the different circumstances of the occupation.
The soldiers appear not to have been trained in the basic elements of Iraqi civil society. For example, people were killed after the customary discharge of guns at funeral parties were mistaken for gun battles.
In virtually all cases the Commanding Officer concluded on the basis of the soldiers' evidence only that there had been no breach of the ROE, which remain secret.
That no soldier, let alone officer, has been charged with any of the detention incidents let alone these unlawful killing cases.
That there appears to be a large number of civilian deaths at the hands of UK troops during the period May 2003 to January 2004.
As for US troops' actions during the occupation much of what they have done is hidden from view because of the role of the media. I want to focus on events in Falluja to give some legal input before the witness evidence in tomorrow's fourth session. It seems from what we know that US troops engaged in acts of collective punishment towards the civilian population of Fallujah from at least April 2004 onwards. Some of the few eyewitness accounts that exist are now emerging. One of the few reporters to reach the city is American Dahr Jamail of the Inter Press Service. He interviewed a doctor who had filmed the testimony of a 16-year-old girl:
"She stayed for three days with the bodies of her family who were killed in her home. When the soldiers entered she was in her home with her father, mother, 12-year-old brother and two sisters.
She watched the soldiers enter and shoot her mother and father directly, without saying anything. They beat her two sisters, then shot them in the head. After this her brother was enraged and ran at the soldiers whilst shouting at them, so they shot him dead."
Another report comes from an aid convoy headed by Doctor Salem Ismael. He was in Fallujah in February 2005. As well as delivering aid he photographed the dead, including children, and interviewed remaining residents. He reports: `
"The accounts I heard ... will live with me forever. You may think you know what happened in Fallujah, but the truth is worse than anything you could possibly have imagined."
Doctor Ismael relates the story of Hudda Fawzi Salam Issawi from Falluja:
"Five of us, including a 55-year-old neighbor, were trapped together in our house in Fallujah when the siege began. On 9 November, American Marines came to our house. My father and the neighbor went to the door to meet them. We were not fighters. We thought we had nothing to fear. I ran into the kitchen to put on my veil, since men were going to enter our house and it would be wrong for them to see me with my hair uncovered. This saved my life. As my father and neighbor approached the door, the Americans opened fire on them. They died instantly. Me and my 13-year-old brother hid in the kitchen behind the fridge. The soldiers came into the house and caught my oldest sister. They beat her. Then they shot her. But they did not see me. Soon they left, but not before they had destroyed our furniture and stolen the money from my father's pocket."
Naomi Klein has also produced evidence about what she sees as the US Forces laying siege to Fallujah "in retaliation for the gruesome killings of four Blackwater employees". She speaks of hundreds of civilians being killed during the siege in April 2004, and of a deliberate tactic of eliminating doctors, journalists and clerics who focused public attention on civilian casualties previously.
All of the above acts are arguably "crimes against humanity" "defined by section 7 ICC Statute) as "murder" (Article 7 (1)(a)), "extermination" (Article 7 (1)(b)) or "other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health" (Article 7 (1)(k)). Further, they may be "war crimes" (defined by Article 8 of the ICC Statute) as a "willful killing" (Article 8 (2)(a)(i)), "wilfully causing great suffering, or serious injury to body or health" (Article 8 (2)(a)(iii)) or "intentionally directing attacks against a civilian population as such or aga inst individual civilians not taking direct part in hostilities" (Article 8 (2)(b)(i)) or "intentionally launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" (Article 8 (2)(b)(iv).
As for the latter, questions need to be addressed as to military objectives and proportionality. If the force used was "clearly excessive in relation to the concrete and direct overall military advantage anticipated" then it would be disproportionate and unlawful. However, it must be remembered that this was a lawful occupation authorized by Resolution 1483. In its recitals, this recognized "the specific authorities, responsibilities, and obligations under applicable international law of [both] states as occupying powers under unified command". The UK and US had to respect Geneva Convention IV. Thus decisions about military objectives and proportionality cannot be approached as if this were a time of war. But even if they could, it is hard to see how the US could possibly justify these acts, if proven. Further, liability does not stop with the US. I have already set out the arguments about joint criminal enterprise and thus the responsibility of the UK for the acts of the US. Legally, these arguments as to joint responsibility are enhanced during the occupation. Not only were both states acting under de jure authority as occupying powers but also they were also senior partners within the CPA and thus responsible for all the legislative and administrative functions I have noted above. Thus, a legal analysis of the issue of accountability for incidents such as these from Fallujah, which may involve "war crimes" and "crimes against humanity", must begin by recognizing, first, the lawful authority of the US and UK to both occupy and administer Iraq, and second, recognizing the protection of civilians through international humanitarian law, specifically Geneva Convention IV, and international human rights law, especially the International Covenant on Civil and Political Rights and the ECHR. It is also critically important to appreciate that any proper accountability is entirely dependant upon a lawful independent investigation being conducted. That is the importance of the protection given to the Right to Life (ECHR, Art2; IICPR Art 6) by the requirement to hold such an inquiry. For example, if states know at the outset that killings and torture during an occupation will be investigated independently then this knowledge should be reflected in improved training for Armed Forces and thus more Human Rights compliant behavior. Further, the requirement for independence is not met by the military investigation. It is only when such an independent investigation unearths who is responsible that one gets to deal with questions as to who, if anyone, should be charged with "crimes against humanity" or "war crimes". Accordingly, one sees that it is pre-judging the issues arising from the incidents in Fallujah to say that those responsible in a few incidents were acting within the rules of engagement and using proportionate force.
The US and UK should have been proceeding on the basis that a lawful approach to international humanitarian law and international human rights law relevant to the protection of civilians in an occupation would be expected of them and rigorously enforced by the international community through, for example, if appropriate, critical Resolutions of the Security Council. But it is not too late for accountability, and this Tribunal may be part of a future process that leads to it.
Conclusion
The Iraq war and occupation challenges us all to face the threat to international law by the actions of the US, UK and other members of the coalition. We must be resolute in our determination to make international law stronger and more concerned with peace. There must be accountability for the dreadful numbers of Iraqi civilian casualties in this aggressive war and bearing in mind the use of indiscriminate methods of attack. There cannot be impunity for the acts of torture in detention - and in some cases deaths - nor the wanton killing of civilians during the occupation. In so far as US and UK interrogation techniques violate Article 1 of UN Convention on Torture, it cannot be acceptable that there be impunity. Accountability - rather than impunity - rests on two building blocks:
1. That there be an independent investigation to establish who is responsible for what acts and how far up the chain of command should responsibility lie. That is the importance of the positive obligation of Article 3 of the ECHR, and thus the critical importance of UK cases that attempt to establish that the ECHR did apply during the occupation.
2. That the ICC Prosecutor fulfils its functions to make those responsible for these "war crimes" and "crimes against humanity" accountable through principles of individual criminal liability. In decisions over the next few months as to how, if at all, to investigate and prosecute these matters, it is important that he recognize the fundamental duty he has to uphold the rule of law.
By Phil Shiner [continued]
I have about thirty cases of deaths at the hands of UK troops during policing functions. The following points can be made:
The soldiers killed civilians, some in their homes, whilst operating under rules of engagement, which should have been changed from the war to the different circumstances of the occupation.
The soldiers appear not to have been trained in the basic elements of Iraqi civil society. For example, people were killed after the customary discharge of guns at funeral parties were mistaken for gun battles.
In virtually all cases the Commanding Officer concluded on the basis of the soldiers' evidence only that there had been no breach of the ROE, which remain secret.
That no soldier, let alone officer, has been charged with any of the detention incidents let alone these unlawful killing cases.
That there appears to be a large number of civilian deaths at the hands of UK troops during the period May 2003 to January 2004.
As for US troops' actions during the occupation much of what they have done is hidden from view because of the role of the media. I want to focus on events in Falluja to give some legal input before the witness evidence in tomorrow's fourth session. It seems from what we know that US troops engaged in acts of collective punishment towards the civilian population of Fallujah from at least April 2004 onwards. Some of the few eyewitness accounts that exist are now emerging. One of the few reporters to reach the city is American Dahr Jamail of the Inter Press Service. He interviewed a doctor who had filmed the testimony of a 16-year-old girl:
"She stayed for three days with the bodies of her family who were killed in her home. When the soldiers entered she was in her home with her father, mother, 12-year-old brother and two sisters.
She watched the soldiers enter and shoot her mother and father directly, without saying anything. They beat her two sisters, then shot them in the head. After this her brother was enraged and ran at the soldiers whilst shouting at them, so they shot him dead."
Another report comes from an aid convoy headed by Doctor Salem Ismael. He was in Fallujah in February 2005. As well as delivering aid he photographed the dead, including children, and interviewed remaining residents. He reports: `
"The accounts I heard ... will live with me forever. You may think you know what happened in Fallujah, but the truth is worse than anything you could possibly have imagined."
Doctor Ismael relates the story of Hudda Fawzi Salam Issawi from Falluja:
"Five of us, including a 55-year-old neighbor, were trapped together in our house in Fallujah when the siege began. On 9 November, American Marines came to our house. My father and the neighbor went to the door to meet them. We were not fighters. We thought we had nothing to fear. I ran into the kitchen to put on my veil, since men were going to enter our house and it would be wrong for them to see me with my hair uncovered. This saved my life. As my father and neighbor approached the door, the Americans opened fire on them. They died instantly. Me and my 13-year-old brother hid in the kitchen behind the fridge. The soldiers came into the house and caught my oldest sister. They beat her. Then they shot her. But they did not see me. Soon they left, but not before they had destroyed our furniture and stolen the money from my father's pocket."
Naomi Klein has also produced evidence about what she sees as the US Forces laying siege to Fallujah "in retaliation for the gruesome killings of four Blackwater employees". She speaks of hundreds of civilians being killed during the siege in April 2004, and of a deliberate tactic of eliminating doctors, journalists and clerics who focused public attention on civilian casualties previously.
All of the above acts are arguably "crimes against humanity" "defined by section 7 ICC Statute) as "murder" (Article 7 (1)(a)), "extermination" (Article 7 (1)(b)) or "other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health" (Article 7 (1)(k)). Further, they may be "war crimes" (defined by Article 8 of the ICC Statute) as a "willful killing" (Article 8 (2)(a)(i)), "wilfully causing great suffering, or serious injury to body or health" (Article 8 (2)(a)(iii)) or "intentionally directing attacks against a civilian population as such or aga inst individual civilians not taking direct part in hostilities" (Article 8 (2)(b)(i)) or "intentionally launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" (Article 8 (2)(b)(iv).
As for the latter, questions need to be addressed as to military objectives and proportionality. If the force used was "clearly excessive in relation to the concrete and direct overall military advantage anticipated" then it would be disproportionate and unlawful. However, it must be remembered that this was a lawful occupation authorized by Resolution 1483. In its recitals, this recognized "the specific authorities, responsibilities, and obligations under applicable international law of [both] states as occupying powers under unified command". The UK and US had to respect Geneva Convention IV. Thus decisions about military objectives and proportionality cannot be approached as if this were a time of war. But even if they could, it is hard to see how the US could possibly justify these acts, if proven. Further, liability does not stop with the US. I have already set out the arguments about joint criminal enterprise and thus the responsibility of the UK for the acts of the US. Legally, these arguments as to joint responsibility are enhanced during the occupation. Not only were both states acting under de jure authority as occupying powers but also they were also senior partners within the CPA and thus responsible for all the legislative and administrative functions I have noted above. Thus, a legal analysis of the issue of accountability for incidents such as these from Fallujah, which may involve "war crimes" and "crimes against humanity", must begin by recognizing, first, the lawful authority of the US and UK to both occupy and administer Iraq, and second, recognizing the protection of civilians through international humanitarian law, specifically Geneva Convention IV, and international human rights law, especially the International Covenant on Civil and Political Rights and the ECHR. It is also critically important to appreciate that any proper accountability is entirely dependant upon a lawful independent investigation being conducted. That is the importance of the protection given to the Right to Life (ECHR, Art2; IICPR Art 6) by the requirement to hold such an inquiry. For example, if states know at the outset that killings and torture during an occupation will be investigated independently then this knowledge should be reflected in improved training for Armed Forces and thus more Human Rights compliant behavior. Further, the requirement for independence is not met by the military investigation. It is only when such an independent investigation unearths who is responsible that one gets to deal with questions as to who, if anyone, should be charged with "crimes against humanity" or "war crimes". Accordingly, one sees that it is pre-judging the issues arising from the incidents in Fallujah to say that those responsible in a few incidents were acting within the rules of engagement and using proportionate force.
The US and UK should have been proceeding on the basis that a lawful approach to international humanitarian law and international human rights law relevant to the protection of civilians in an occupation would be expected of them and rigorously enforced by the international community through, for example, if appropriate, critical Resolutions of the Security Council. But it is not too late for accountability, and this Tribunal may be part of a future process that leads to it.
Conclusion
The Iraq war and occupation challenges us all to face the threat to international law by the actions of the US, UK and other members of the coalition. We must be resolute in our determination to make international law stronger and more concerned with peace. There must be accountability for the dreadful numbers of Iraqi civilian casualties in this aggressive war and bearing in mind the use of indiscriminate methods of attack. There cannot be impunity for the acts of torture in detention - and in some cases deaths - nor the wanton killing of civilians during the occupation. In so far as US and UK interrogation techniques violate Article 1 of UN Convention on Torture, it cannot be acceptable that there be impunity. Accountability - rather than impunity - rests on two building blocks:
1. That there be an independent investigation to establish who is responsible for what acts and how far up the chain of command should responsibility lie. That is the importance of the positive obligation of Article 3 of the ECHR, and thus the critical importance of UK cases that attempt to establish that the ECHR did apply during the occupation.
2. That the ICC Prosecutor fulfils its functions to make those responsible for these "war crimes" and "crimes against humanity" accountable through principles of individual criminal liability. In decisions over the next few months as to how, if at all, to investigate and prosecute these matters, it is important that he recognize the fundamental duty he has to uphold the rule of law.
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