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International Law and War Crimes
by Michael Ratner
In the work of this Commission, we are undertaking an historic task. We are here to inquire into and ultimately judge whether the United States has 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 hurnani 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.
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; Nazis 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 by 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. Rep. Gonzalez's impeachment resolution and brief in support presented to Congress and printed in full in the Congressional Record (H. Res. 86, February 21, 1991, included in the printed report: ISBN 0-944-624-15-4). It is only the major commercial press which 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.
. . . Encouraging Kuwait 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 Rep. 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:
Immediately after the November 29 vote in the UN authorizing force, the administration unblocked a $140 million loan for the World Bank to China and agreed to meet with Chinese government officials.
The Soviet Union was promised $7 billion in aid from various countries and shipments of food from the United States.
Zaire was promised forgiveness of part of its debt as well as military assistance.
A $7 billion loan to Egypt was forgiven, a loan the President had no authority to forgive under U.S. law.
Syria was promised that there would be no interference in its Lebanon actions.
Saudi Arabia was promised $12 billion in arms sales.
The U.S., which owes the most money to the U.N., paid off $187 million of its debt immediately after the vote authorizing the use of force.
The administration attempted to coerce Yemen by threatening the cutoff of U.S. funds.[3]
But even were this not the case, can the UN apply measures of force such as the embargo, effectively a blockade and an act of war, and authorize all necessary means - which the U.S. saw as war - without negotiating first? It cannot do so according to the stipulations of its own Charter.
Nor was the UN permitted to embargo food and limit the importation of medicine. Neither the UN nor any country can take measures that intentionally or knowingly have the effect of starving and harming the civilian population. This is prohibited by every tenet of international law. It is well known that Iraq imports 60 to 70 percent of its food. As testimony presented elsewhere in book and in many reports from fact finding missions to Iraq since the end of the war, many children died because of the lack of infant formula and adequate food and medicine.
And what of this infamous resolution that authorized all necessary means to remove Iraqi forces from Kuwait? Did this authorize war? Not by its own terms. The resolution was left specifically vague, stipulating only "all necessary means." Nowhere did it mention war and certainly many other means were readily available for achieving the goals of the UN resolutions. All other means were never exhausted. From the U.S. standpoint, massively violent war was the first and only option. All other means had to be precluded at any cost.
Finally, on the point of the U.S. commission of crimes against peace even if we get over all of the other illegalities and assume that the UN had the authority to authorize war and did so in this case, what did it authorize? It authorized the use of force only to obtain the withdrawal from Kuwait. It certainly never authorized the incursion into, much less the occupation of, Iraq and the total subjection of that nation to the dictates of the UN acting out policies originating in the U.S. government. No one has authorized the U.S. to have even one soldier in Iraq. This is aggression in the classic sense. U.S. forces moved in from the north down to the 36th parallel and have set up camps for displaced Kurds. Nor did the resolution authorize any bombing of Iraq, certainly not the bombing of Baghdad or Basra or the near complete destruction of the economic infrastructure.
The second broad category we are concerned with are what are referred to as crimes against humanity. By this I mean both crimes against civilians and combatants. There is a long history of outlawing certain kinds of conduct once war has begun. The principle is that the means and manner of waging war are not unlimited. In other words, while it is of primary importance to prevent war, once war has begun there are limits on the types of targets that can be attacked and the weapons that can be employed. Central to these laws of war is the desire to protect civilians, noncombatants, soldiers who are no longer fighting, and the resources and infrastructure necessary to their survival. Again, at Nuremberg, the Nazis were tried for crimes against humanity which included killings of the civilian population and the wanton destruction of cities, towns or villages and devastation not justified by military necessity.
These laws are embodied in various treaties, including most importantly the Hague Convention of 1907, the Geneva Conventions of 1949, and Protocol I Additional to the Geneva Conventions. They all reflect a similar set of rules, violations of which are war crimes. They are built around two principles. First, military operations are to be directed at military objectives - the civilian population and civilian objects are not to be targets. So, massive bombing, as was engaged in by the U.S., which kills civilians and destroyed the water supply, is illegal. In fact, when the dispute was barely a month old, in September, Air Force chief of staff General Michael J. Duggan was fired for leaking to the press suggestions that the U.S. was already planning bombing targets which would include Iraqi power systems, roads railroads, and petroleum plants.[4]
At the height of the war, this sort of bombing campaign was defended by Pentagon spokespersons in terms reminiscent of the Vietnam War. Many parts of Iraq became "free fire zones" in which everyone who remains in such a zone is declared unilaterally by the U.S. as a legitimate target for destruction. The entire city of Basra, Iraq's second largest, became such a free fire zone, as described by Brigadier General Richard I. Neal. The Washington Post story recounts: "In Riyadh, Marine Brig. Gen. Richard I. Neal gave a detailed explanation of why repeated allied pounding of the southern Iraqi city of Basra is causing 'collateral damage.' Basra, Neal said, 'is a military town in the true sense, it is astride a major naval base and a port facility. The infrastructure, military infrastructure, is closely interwoven within the city of Basra itself.' The destruction of targets in and around Basra is part of what Neal described as an 'intensifying' air campaign against all 'echelons of forces, from the front lines and all the way back ... There is no rest for the weary, for any of them.... There is no division, no brigade, there is no battalion that really is spared the attacks from our pilots."'[5]
The second limit international law places on the conduct of war is the principle of proportionality - you can only use the amount of force against military targets necessary to achieve your objective. So, for example, destroying the retreating Iraqi army was disproportional for it was not necessary to achieve the Iraqi withdrawal from Kuwait. The whole conduct of the war, in fact, violates every conceivable notion of proportionality.
International law lays down rules for how the civilian population is to be protected. Obviously civilians cannot be intentionally attacked, but, indiscriminate attacks are prohibited as well. Such attacks are defined as those that "employ a method of combat which cannot be directed at specific military objectives." While the mass media, especially TV news, gave the impression during the war that the U.S. was using only "smart" bombs that directly hit their military targets, in fact 93 percent of the bombs used were "dumb" bombs of which at least 60 to 70 percent missed their targets, killing lots of people. Such bombs cannot be directed exclusively at a military objective and in my view are illegal. Nor can bombs dropped from a B-52 flying at thirty to forty thousand feet hit their targets.
There is a special law protecting objects indispensable to the civilian population - the infrastructure of a country. This includes prohibitions on destroying food supplies, water and sewer systems, agriculture, power, medical services, transportation and similar essentials. These cannot be attacked even if there is some military goal, if the effect would be to leave civilians without the essentials for life. In fact, the U.S. government openly stated its goal of destroying the infrastructure of Iraq including water, food supplies, the sewer system, electricity and transportation. The story was not reported in U.S. newspapers until late June of 1991, but the facts were obvious to even a casual observer. According to the Washington Post story, U.S. officials admitted that "Some targets, especially late in the war, were bombed primarily to create postwar leverage over Iraq, not to influence the course of the conflict itself.... the intent was to destroy or damage valuable facilities that Baghdad could not repair without foreign assistance.[6] A report of the United Nations Mission to Iraq led by Under Secretary General Martti Ahtisaari said that Iraq had been bombed into the pre-industrial age.[7] Thousands of additional people - all civilians and most children - are dying as a result.
Attacks are also to be limited to strictly military objectives. These are defined as those that make an effective contribution to military action and whose destruction offer a definite military advantage. Civilian objects are not to be attacked. In case of doubt, such as a school, it should be presumed that it is not used as a military object. What does this rule say about bombing of the al-Ameriyah shelter? At least 300 children and parents were incinerated in a structure that the U.S. knew was built as a shelter for civilians. Its possible use as a military communications center was only a matter of speculation and weak supposition. Or, what are we to make of the destruction of the baby milk factory at the beginning of the bombing campaign? Again, an American general has admitted that this was a mistake - a mistake that has cost many, many babies their lives.
There are also a series of very specific laws:
The use of asphyxiating gases is prohibited. The U.S. violated this by its use of fuel-air explosive bombs on Iraqi frontline troops; these bombs are terror bombs which can burn the oxygen over a surface of one or two square kilometers, destroying human life by asphyxiation.
These fuel-air bombs and the U.S. use of napalm are also outlawed by the Hague and Geneva Conventions, which prohibit the use of weapons causing unnecessary harm to combatants. The level of U.S. evil is demonstrated by the sending to the Gulf of a stingray blinding laser system which is supposed to knock out optics on enemy weapons, but has the side effect of blinding soldiers as well who operate the weapons.
The bombing of peaceful nuclear power facilities is forbidden and particularly so because of the dangers of the spread of radioactivity. The UN International Atomic Energy Agency classified the reactors as peaceful, yet the U.S. bombed them, not caring about the spread of radioactivity. The bombing was intentional and planned in advance, clearly in violation of international law.
Both the Hague Convention of 1954 and Protocol I to the Geneva Conventions prohibit attacks against historic monuments, works of art, places of worship and sites which constitute the cultural and spiritual heritage of a people. Catholic churches, a 4th century monastery and a Sunni Moslem mosque represent just some of the massive violations that occurred. [See Fadwa El Guindi's essay on archaeological destruction, Waging War on Civilization.]
Protocol I of the Geneva Convention also requires protection of the natural environment against widespread and severe damage - the U.S. massive bombing, the blowing up of reactors, the hitting of oil storage facilities all violate this prohibition.
What I have tried to outline today is the broad framework in which we can evaluate the criminal conduct of the United States. I believe that these hearings will establish beyond doubt the criminal nature of American actions in this war. I want to close with the words of Bertrand Russell when he addressed the war crimes that had been revealed at the War Crimes Tribunal held in 1967 in Stockholm and in 1968 in Copenhagen to judge U.S. actions in Vietnam:
It is not enough, however, to identify the criminal. The United States must be isolated and rendered incapable of further crimes. I hope that America's remaining allies will be forced to desert the alliances which bind them together. I hope that the American people will repudiate resolutely the abject course on which their rulers have embarked. Finally, I hope that the peoples of the Third World will take heart from the example of the Vietnamese and join further in dismantling the American empire. It is the attempt to create empires that produces war crimes because, as the Nazis also reminded us, empires are founded on a self-righteous and deep-rooted belief in racial superiority and God-given mission. Once one believes colonial peoples to be untermenschen - 'gooks' is the American term - one has destroyed the basis of all civilized codes of conduct.
Notes
See Appendix A for relevant selections from international law.
New York Times, August 22, 1990.
Michael Emty, "How the U.S. Avoided the Peace," The Village Voice, March 5, 1991.
Congressional Record, January 16, 1991: H520.
Rick Atkinson, "U.S. to Rely on Air Strikes if War Erupts," New York Times, September 16, 1990: Al.
"Ground War Not Imminent, Bush Says: Allies to Rely on Air Sower 'for a While,"' Washington Post, February 12, 1991: A14.
Washington Post, June 23, 1991: Al.
Martti Ahtisaari, "Report to the Secretary General on Humanitarian Needs in Kuwait and Iraq in the Immediate Post-Crisis Environment," United Nations Report No. S122366, March 20, 1991.
Michael Ratner is an attorney former director of the Center for Constitutional Rights, and past president of the National Lawyer's Guild. He has filed a lawsuit challenging the constitutionality of the Gulf War. This report was given at the New York Commission Hearing, May 11, 1991.
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Copyright © 1992 by The Commission of Inquiry for the International War Crimes Tribunal
-- Tony
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