Posted by andreas from p3EE3BFE0.dip.t-dialin.net (62.227.191.224) on Tuesday, January 28, 2003 at 1:32PM :
President George W. Bush
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500
Donald H. Rumsfeld Esq.
Secretary of Defense
1000 Defense Pentagon
Washington D.C. 20301
January 24, 2002
Re: CONSEQUENCES OF FUTURE USE OF FORCE AGAINST IRAQ
Dear Sirs:
We, the undersigned Law Professors and U.S. Non-Governmental Organizations write to you to raise our concerns about possible violations of international humanitarian law (IHL) that may occur in any future use of force against Iraq. This letter does not concede or accept that any future use of force would be lawful under international law. Nor do we accept that all “peaceful means” to resolve the dispute have been exhausted as required under Article 33 of the UN Charter. Indeed, we consider that any future use of force without a new U.N. Security Council Resolution would constitute a crime against peace or aggressive war in violation of the U.N. Charter.
Our primary concern in this letter is with the large number of civilian casualties that may result should U.S. and coalition forces fail to comply with IHL in using force against Iraq, in particular, the fundamental rules of distinction, military necessity and proportionality.[1] Large numbers of civilian casualties were documented during the Gulf War 1991 and there is now published information that there will be a large number of civilian casualties in this war. For example, a recently published confidential United Nations report which predicts that “as many as 500,000 civilians could require treatment to a greater or lesser degree as a result of direct or indirect injuries.” (citing WHO report estimates) as a consequence of any future war.[2] Many of the civilian deaths in the 1991 war could have been avoided had IHL been adhered to in a more rigorous fashion than it was by the U.S. and coalition armed forces. Similarly, in any future use of force, compliance with IHL will be a necessary prerequisite to ensuring the least number of civilian deaths.
Overall, IHL is aimed at minimizing, to the maximum extent possible, adverse impacts of armed conflict on civilian lives and infrastructure. It places certain constraints on the conduct of hostilities and prescribes that all feasible precautions must be taken in the choice of means and methods of attack so as to protect civilian life. These protections encompass both the selection of weapons or weapon systems and the manner in which such weapons are used. It prohibits not only direct attacks against civilians and civilian infrastructure, but also the planning and execution of attacks which fail to adequately distinguish between military targets and civilians or civilian objects as well as those attacks, which, although aimed at a legitimate military targets, have a disproportionate impact upon civilians or civilian objects. In accordance with these principles, the following means and methods of attack, all of which, to some extent, were used during recent armed conflicts in which U.S. armed forces have participated, violate IHL:
High level, indiscriminate, air-strikes on known centers of civilian population.
Carpet bombing.
Fuel-air explosives, cluster bombs, multiple rocket launcher systems or nuclear weapons, including B61-11s (tactical nuclear earth-penetrating weapons designed to destroy deep underground targets.)
Excessive targeting of electricity supplies causing damage to civilian facilities reliant upon such supplies, for example, water supply and treatment facilities and hospitals.
Bombing of works or installations containing “dangerous forces”, namely, dams, dykes and nuclear electrical generating stations.
Bombing specifically aimed at terrorizing or undermining the morale of civilians or that is designed to cause civilians to overthrow an existing government.
Our concerns that IHL will be violated during any war with Iraq stem from evidence of the past use of force by the United States and its coalition partners in the Gulf War 1991, Kosovo and most recently in Afghanistan. During these conflicts violations of IHL by all parties were extensively documented. Given these past violations, there is a reasonable basis for assuming that in any future military action against Iraq, these requirements will once again be breached.
Although you are obviously better placed than ourselves to know the exact details of the past use of force in the Gulf War, Kosovo and Afghanistan, the basis of our concerns stem from the following documented incidents. These particular incidents, most of which occurred during the 1991 Gulf War, all violated IHL and some indeed constitute grave breaches of the Geneva Conventions:
THE GULF WAR, 1991[3]
1. Illegitimate means and methods of attack
Daytime attacks on targets in or near urban areas:
A mid-afternoon attack on a bridge in Nasiriyya, Southern Iraq, killing 100 people and injuring 80 others.
A daytime attack on bridges situated near crowded market places in Samawa city killing 100 civilians and injuring many others.
A 3.30 pm attack on an oil-storage tank, near a gas distribution point where civilians were known to have regularly gathered to purchase fuel for domestic purposes killing or injuring some 200 people.
Use of unguided missiles in urban areas during attacks on four cities Basra, Falluja, Samawa and al-Kut, damaging or destroying some 400 dwelling houses, mainly in poor areas; 19 apartment buildings and several hotels; two hospitals and two medical clinics; two schools and a mosque; restaurants and other commercial buildings as well as market areas.
An unannounced attack on the Ameriyya Civilian Air Raid Shelter killing between 200 and 300 civilians when it was known by coalition forces that the facility had been previously used as a civil-defense shelter.
The use of at least 320 tons of depleted uranium in air and tank rounds and sniper bullets.
Attacks on non-military targets
Attacks on Food, Agriculture and Water-Treatment Facilities:
The destruction of four government food warehouses in the city of Diwaniyya.
An attack on a dairy produce factory 30 kilometers from Basara.
The destruction of flour-milling facilities and grain-storage warehouses.
Attacks on the Electrical System:
The destruction of four of Iraq’s five Hydro-electric facilities, transforming the country from an energy-dependent society into, a “pre-industrial”[4] one.
Attacks on Civilian Vehicles on the Highway:
Indiscriminate daytime attacks on civilian vehicles on the highway killing some 60 people.
Attacks on objects dedicated to civilian purposes:
Indiscriminate attacks on Bedouin tents in Western Iraq leaving 46 dead civilians, including infants and children.
KOSOVO, 1999[5]
High altitude, indiscriminate bombing operation in the vicinity of Djakovica on April 14, 1999 killing over 70 ethnic Albanian civilians and wounding 100 others.
Deliberate attack on the Headquarters of Serbian State Radio and Television on April 23, 1999 killing 16 civilians.
AFGHANISTAN, 2001[6]
Day time cluster bomb attack on the village of Shaker Qala on October 22, 2001, killing 9 civilians and injuring 14.
Carpet-bombing by B-52s of frontline village near Khanabad on November 18, 2001, killing 150 civilians.
Mid-day attack on two residential areas in Ni on May 7, 2002 during which cluster bombs were dropped close to market place and hospital killing 14 and injuring 30.
Attack on a wedding party in July 2002 killing 40 civilians and injuring 60 others.
Arguably, many of the above violations of IHL constitute international crimes for which there is individual responsibility. For over half a century, the U.S. has participated in international efforts to ensure the accountability of those persons responsible for the commission of such crimes, including the establishment of the Nuremberg Tribunal and more recently, the Special Court for Sierra Leone. In spite of its opposition to the ICC, the U.S. has repeatedly and publicly reaffirmed its commitment to international justice and the need to prosecute those persons found responsible for the most serious international crimes, including crimes against humanity and war crimes.[7] Accordingly, we are committed to ensuring the accountability of those persons who may be found responsible for the commission of crimes against humanity and war crimes in this war. To this end, together with non-governmental organizations here in the U.S. and the U.K., we will seek to pursue prosecutions of persons responsible for such crimes with the Prosecutor to ICC, where they are nationals of state party to the statute. For non-party states, like the U.S., we will petition the Security Council to refer the matter to the Prosecutor under the Statute of the ICC[8] and actively pursue all other avenues of bringing them to account.
Crimes against humanity and war crimes are crimes under customary international law for which there is universal jurisdiction. States, including the U.S., have an international obligation to either prosecute individuals within their jurisdiction or to extradite them to a country that will prosecute. In recognition of this obligation in regards to war crimes, Congress enacted the War Crimes Act, under which civilian courts in the U.S. have authority to try either service members or civilians for certain violations of the laws of war, including grave breaches of the Geneva Conventions. If prosecutions are not initiated against U.S. nationals where there is evidence of their involvement in such acts, we commit ourselves to ensuring that such allegations are thoroughly investigated and prosecuted under this Act.
As a first stage in ensuring accountability of persons responsible for these crimes, we understand that a tribunal under the auspices of the Permanent Peoples’ Tribunal will be convened in London to examine evidence of violations of IHL, crimes against humanity and war crimes, with a view to referring such evidence to the Prosecutor of the ICC, where appropriate. We wholly support this initiative.
A letter in similar terms will today be delivered to the governments’ of the UK and Canada. We request that you liaise with them and representatives of governments of other possible coalition partners to ensure that should force be used against Iraq, such force complies in all respects with the requirements of IHL as detailed in this letter.
Sincerely,
Professor Jules Lobel
Professor of Law
University of Pittsburgh
Michael Ratner
President
Center for Constitutional Rights
666 Broadway
New York, NY, 10012
In support:
Richard L. Abel
Professor of Law
UCLA
Jane H. Aiken
Professor of Law
Washington University School of Law
Lee. A. Albert
Professor of Law
University of Buffalo Law School
Maria Arias,
Assistant Professor of Law
CUNY School of Law
Elvia R. Arriola
Associate Professor
College of Law
Northern Illinois University
Milner S. Ball
Professor of Law
University of Georgia School of Law
Leslie Bender
Associate Dean &
Professor of Law & Women's Studies
Syracuse University College of Law
Robert Benson
Professor of Law
Loyola Law School
Arthur L. Berney,
Professor of Law, Emeritus,
Boston College Law School
Barbara Bezdek
Associate Professor of Law
University of Maryland School of Law
Susan H. Bitensky,
Professor of Law
Michigan State University-Detroit College of Law
Jerry P. Black, Jr.
Associate Professor of Law
University of Tennessee College of Law
Michael C. Blumm
Professor of Law
Lewis and Clark Law School
Cynthia Grant Bowman
Professor of Law
Northwestern University School of Law
Kevi Brannelly
Professor of Law
Golden Gate University School of Law
Melinda Branscomb
Associate Professor of Law
Seattle University School of Law
John C. Brittain
Professor and former Dean of
Thurgood Marshall School of Law
Texas Southern University
Mark S. Brodin
Professor of Law
Boston College Law School
Camilo Perez Bustillo
Professor of Law
W. Haywood Burns Memorial Chair in Civil Rights Law
CUNY School of Law
Robert K. Calhoun
Professor of Law
Golden Gate Law School
San Francisco, CA
Mark Cammack
Professor of Law
Southwestern Law School
Carol Chomsky
Professor of Law
University of Minnesota Law School
Craig W. Christensen
Professor of Law
Southwestern University
Leroy D. Clark
Professor of Law
The Catholic University of America
Alan Clarke
Assistant Professor of Criminal Justice
University of Wisconsin-Parkside
Rhonda Copelon
Professor of Law & Director
International Women's Human Rights Law Clinic (IWHR)
City University of New York
School of Law
Michael H. Davis
Professor of Law
Cleveland State University College of Law
Bernardine Dohrn
DirectorChildren & Family Justice Center
Associate Clinical Professor
Northwestern University School of Law
Dolores A. Donovan
Professor of Law
University of San Francisco
David Dorfman
Professor of Law
Pace Law School
Marie A. Failinger
Professor of Law
Hamline University School of Law
Marvin Fein
Associate Professor of Legal Writing and
Director of the Civil Litigation Certificate Program
University of Pittsburgh School of Law
Mary Louise Fellows
Professor of Law
University of Minnesota
Catherine Fisk
Professor of Law & William Rains Fellow
Loyola Law School
James L. Flannery
Visiting Assistant Professor of Law
University of Pittsburgh School of Law
Sally Frank
Professor of Law
Drake University
Peter B. Friedman
Director -- Research, Analysis & Writing
Case Western Reserve University School of Law
Craig B. Futterman
Assistant Clinical Professor of Law
University of Chicago Law School
Edwin F. Mandel Legal Aid Clinic
Phyllis Goldfarb
Professor of Law
Boston College Law School
Prof. Carlos E. Ramos-Gonzalez
Professor of Law
Interamerican University of Puerto Rico
School of Law
Nathaniel E. Gozansky
Professor of Law
Emory University School of Law
John DeWitt Gregory
Professor of Law
Hofstra University School of Law
Louise Halper
Professor of Law
Washington & Lee University School of Law
Kathy Hessler
Professor of Law
Case Western Reserve University School of Law
Rose L. Hoffer
Professor of Law
Brooklyn Law School
Ruth-Arlene W. Howe
Professor of Law
Boston College Law School
David Kairys
James E. Beasley Professor of Law
Beasley School of Law
Joseph J. Kalo
Professor of Law
UNC School of Law
Graham Kenan
Professor of Law
UNC School of Law
Walter J. Kendal III
Professor of Law
The John Marshall Law School
Arthur Kinoy
Professor of Law
Rutgers University Law School
Mary Kay Kisthardt
Professor of Law
UMKC School of Law
Thomas Kleven
Professor of Law
Thurgood Marshall School of Law
Juliet P. Kostritsky
Professor of Law
John Homer Kapp
James A. Kushner
Professor of Law
Southwestern University School of Law
Deborah LaBelle,
Senior Soros Justice Fellow
D. Bruce La Pierre
Professor of Law
Washington University School of Law
David P. Leonard
Professor of Law and William M. Rains Fellow
Loyola Law School
Carroll L. Lucht
Clinical Professor of Law
Yale Law School
William V. Luneburg
Professor of Law
University of Pittsburgh School of Law
Paula Lustbader
Professor of Law
Director, Academic Resource Center
Seattle University School of Law
Karl Manheim
Professor of Law
Loyola Law School
Holly Maguigan
Professor of Clinical Law
New York University School of Law
Susan J. Martin
Professor of Law
Southwestern University School of Law
Gary M. Maveal,
Associate Professor
University of Detroit Mercy School of Law
Judith A. McMorrow
Professor of Law
Christopher N. May
Professor of Law
Loyola Law School
Martha McCluskey
Professor of Law
SUNY Buffalo
Patrick McGinley
Professor of Law
West Virginia University
College of Law
Robert F. Meagher
Professor Emeritus in International Law
Fletcher School of Law and Diplomacy
Tufts University
Roy M. Mersky
Professor of Law
Harry M. Reasoner Regents Chair in Law
and Director of Research
The Jamail Center for Legal Research
Tarlton Law Library
The University of Texas at Austin
School of Law
Carlin Meyer
Professor of Law
New York Law School
Mary Mitchell
Professor of Law
Indiana University School of Law
Kimberly E. O'Leary
Professor of Law
Thomas Cooley Law School
Richard L. Ottinger
Dean Emeritus
Pace Law School
Peter Pitegoff
Vice Dean for Academic Affairs & Professor
University at Buffalo Law School
State University of New York
James G. Pope
Professor of Law
Rutgers University School of Law
Robert A. Pugsley
Professor of Law
Southwestern University School of Law
Florence Wagman Roisman
Professor of Law and Paul Beam Fellow
Indiana University School of Law - Indianapolis
Josephine Ross
Visiting Law Professor
Boston College Law School
Elizabeth M. Schneider
Professor of Law
Brooklyn Law School
Marci Seville
Professor of Law
Golden Gate University School of Law
Butler Shaffer
Professor of Law
Southwestern University School of Law
Julie Shapiro
Associate Professor of Law
Seattle University Law School
Katherine C. Sheehan
Professor of Law
Southwestern University School of Law
Marjorie A. Silver
Professor of Law
Touro Law Center
Abbe Smith,
Professor of Law,
Georgetown University Law Center
Beth Stephens
University of Rutgers School of Law
Eleanor Stein
Adjunct Professor
Albany Law School
Marc Stickgold
Professor of Law
Golden Gate University School of Law
David C. Thomas
Clinical Professor of Law
Chicago- Kent College of Law
Kenji Urata
Professor of Constitutional Law
Waseda University
Tokyo
Rachel Vorspan
Associate Professor of Law
Fordham Law School
Cynthia Williams
Associate Professor of Law
The University of Illinois College of Law
Gary Williams
Professor of Law
Loyola Law School
Charles Wilson
Associate Professor of Law
College of Law
Ohio State University
William J. Woodward, Jr.
Professor of Law
James Beasley School of Law
Temple University
Maryann Zavez
Professor of Law
University of Vermont Law School
Jihad Turk
Ph.d. Student
Center for Near-Eastern Studies
University of California, Los Angeles
David Rudovsky
Senior Fellow
Penn Law School
Joanne Bauer
Director of Studies
Carnegie Council on Ethics and International Affairs
170 East 64th Street
New York, NY 10021
Arturo Carillo
Acting Director
Columbia University Human Rights Clinic
Brian J. Foley
Lawyers Against the War (LAW).
Allison Guttu
Public Interest Law Center
110 West 3rd Street, 2nd Floor
New York, NY 10012
Roger Normand
Center for Economic and Social Rights
Donna M. Ryu
Hastings Civil Justice Clinic
San Francisco, CA 94102
_____
[1] The most comprehensive statement of the rules governing the conduct of hostilities relative to international armed conflict is Protocol 1 Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1). Protocol 1 was adopted in 1977 and has been ratified by 160 states. Although the United States has not ratified it, key provisions of the Protocol are incorporated in its military manuals and statements have been made by Senior Officials to the effect that the US considers them declaratory of customary international law. Indeed it is widely considered that many of its fundamental provisions are in fact part of customary international law and as such binding vis-à-vis non-part states as such.
[2] Likely Humanitarian Scenarios, United Nations, December 10, 2002.
[3] Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, Human Rights Watch, July, 1991
[4] See Report to the Secretary General on Humanitarian Needs in Kuwait and Iraq in the Immediate Post-Crisis Environment, Martii Antisaari, United Nations Report No. 5122366, March 20, 1991.
[5] See Civilian Deaths in NATO Air Campaign, Human Rights Watch, February, 2000; “Collateral Damage” or Unlawful Killings, Amnesty International, June, 2000. Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan, Human Rights Watch, December 18, 2002; A Dossier on Civilian Victims of United States’ Aerial Bombing of Afghanistan: A Comprehensive Accounting, Professor Marc W. Herold, University of New Hampshire, December, 2001.
[6] See Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan, Human Rights Watch, December 18, 2002; A Dossier on Civilian Victims of United States’ Aerial Bombing of Afghanistan: A Comprehensive Accounting, Professor Marc W. Herold, University of New Hampshire, December, 2001.
[7] See e.g. Speech by U.S. Ambassador for War Crimes Issues, Washington D.C. (May 6, 2002); U.S. Office of War Crimes Issues Fact Sheet, U.S. Department of State (May 6, 2002); John R. Bolton, Under Secretary for Arms Control and International Security, Remarks to the Federalist Society, Washington D.C. (November 14, 2002).
[8] See Article 13(b). There is also the possibility of the Court exercising jurisdiction over U.S. nationals who have committed such crimes if Iraq, being the state where the crime was committed, should accept the jurisdiction of the Court and refer the matter to the Prosecutor. See Article 12(3) of the Statute of the ICC.
******************************
Jacob Park
Center for Economic and Social Rights
Emergency Campaign on Iraq
<http://www.cesr.org> http://www.cesr.org <http://www.cesr.org/iraq> /iraq
tel: 718.237.9145
fax: 718.237-9147
jpark@cesr.org <mailto:jpark@cesr.org>
******************************
-- andreas
-- signature .
Follow Ups: