War crimes in Iraq

Published : Jun 06, 2003 00:00 IST

The grave of an Iraqi shot dead by the U.S. Army, draped in the national flag in Falluja, west of Baghdad on April 29. - MURAD SEZER/AP

The grave of an Iraqi shot dead by the U.S. Army, draped in the national flag in Falluja, west of Baghdad on April 29. - MURAD SEZER/AP

The military occupation of Iraq by coalition forces has been tainted with the same cavalier disregard for international legal norms as the war itself.

SEVERAL months after the fall of Baghdad, the United States and the United Kingdom have been unable to proffer a shred of tangible evidence to support what was once described as a "credible threat" of weapons of mass destruction in Iraq. The infamous speech by U.S. Secretary of State Colin Powell at the United Nations Security Council and the dire warnings of Armageddon from U.S. President George W. Bush now stand exposed as thinly-veiled pretexts for waging an illegal and unjustifiable war.

It has been credibly suggested that the U.S. decision to allow U.N. weapons inspectors back into Iraq was little more than a ruse to buy time for massing additional ground forces for the invasion. The recent refusal of the Americans to allow the return of U.N. chief weapons inspector Hans Blix and his team to Iraq to continue their work not only seems to confirm this suspicion, but is itself a damning indictment of the Bush administration's deceit about the supposedly "illegal" weapons in the hands of Saddam Hussein's regime.

In fact, British Prime Minister Tony Blair was recently compelled to issue a statement to mollify an increasingly sceptical world that "some sort of objective verification" of such weapons, if found, would be "a good idea". Without the fig leaf of the "imminent threat" from nuclear, biological or chemical weapons, the conquest of Iraq will be permanently stripped of the legal and moral legitimacy spuriously claimed by the `coalition of the willing'.

As Joseph Cirincione, a weapons expert at the Carnegie Endowment, noted, the purported existence of those weapons "was the core reason for going to war with Iraq and the reason we had to go now. If we don't find fairly large stockpiles of these weapons, in quantities large enough to pose a strategic threat to the United States, the President's credibility will be seriously undermined and the legitimacy of the war repudiated".

The military occupation of Iraq by coalition forces has been tainted with the same cavalier disregard for international legal norms as the war itself. The U.S. occupation has failed, from the very outset, to comply with even the minimal requirements and obligations of international law governing belligerent occupation found in The Hague and Geneva Conventions. Under the provisions of Hague Convention IV, a territory is considered occupied "when it is actually placed under the authority of the hostile army" and "[t]he occupation extends only to the territory where such authority has been established and can be exercised". Article 4 of the Protocol I to the Geneva Conventions provides, with regard to the status of the occupied territory, that "[n]either the occupation of a territory nor the application of the [laws of war] shall affect the legal status of the territory in question".

In other words, Iraq remains a sovereign nation despite its occupation by hostile forces. The U.S. Army Manual is more direct on this issue, stating that military occupation only involves effective control over a territory for a limited period of time and that "[i]t does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty". Article 64 of the Geneva Civilian Convention squarely places the responsibility on the occupying power to issue "provisions which are essential to enable the Occupying Power to fulfil its obligations under the [1949 Geneva] Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power..."

As the party primarily responsible for maintaining the "orderly government of the territory", the U.S. has completely failed to abide by its obligations to make provisions for maintaining order and security for Iraqi civilians, "protected persons" under the Geneva Civilian Convention. In fact, by virtually all accounts, the U.S. occupation authorities did absolutely nothing to prevent the wholesale anarchy and pillage that erupted as soon as the Iraqi regime's authority had crumbled. Hospitals, offices, homes and the general civilian infrastructure in Baghdad were badly damaged and looted while U.S. marines camped out in Saddam Hussein's palaces.

The Bush administration subsequently admitted that U.S. soldiers and "embedded" journalists actually took part in the plunder to some as yet unknown extent. It has also been widely reported in the international press that unidentified groups indulged in systematic and seemingly organised destruction of government buildings and offices in Baghdad in the presence of U.S. and British troops who refused numerous requests for assistance by Iraqis on the scene.

The most reliable accounts from residents of the city and journalists said that the only government institution spared during the sacking of Baghdad was the Ministry of Oil where U.S. Marines had been stationed. It is scarcely conceivable that the decision to limit protection to the Ministry of Oil, while allowing the rampage to continue for days on end, could have been made without orders from commanding officers who, in turn, would surely have sought guidance from political authorities in Washington and London.

The dismissive remarks of U.S. Secretary of Defence Donald Rumsfeld that "stuff happens" in the "fog of war" only lend credence to such a possibility. In any event, the decision speaks volumes about the motives of those who waged the war. Article 147 of the Fourth Geneva Convention identifies as a "grave breach" the "extensive... appropriation of property, not justified by military necessity and carried out unlawfully and wantonly". Under Article 8, Section 2(a)(iv) of the Rome Statute for the International Criminal Court, this type of conduct is categorised as a "war crime".

IN Mosul and elsewhere, U.S. troops have on several occasions opened fire on civilians engaged in mass protest and popular marches against the occupation. Several dozen Iraqis have been killed in such incidents. For instance, on April 28, U.S. troops had fired on demonstrators in Falluja killing at least 13 Iraqis. Residents of Falluja complained to reporters about U.S. troops engaging in intrusive patrols and surveillance. "They are wandering inside and in between houses and in front of schools, like cowboys," said Talib al-Janabi, head of a hospital.

As in each of the prior incidents, U.S. military commanders in Falluja claimed that the crowd had fired at their troops; local residents insisted that the demonstrations were peaceful. The question of whether the U.S. military has authorised their troops to use live fire on unarmed civilian protestors merits serious investigation under these circumstances, particularly since, in combat, a staff of lawyers reportedly oversees adherence to legal rules on a minute-to-minute basis for U.S. troops in the field. Article 147 of the Fourth Geneva Convention outlaws the "willful killing" of protected persons under military occupation and categorises such acts as "grave breaches" of the Convention. Similarly, Article 8, Section 2(a)(i) of the Rome Statute defines the extra-judicial killing of protected persons in occupied territory as a war crime.

The plunder of thousands of priceless artefacts, transcripts and archaeological material from the National Museum in Baghdad was allowed to take place despite repeated requests for protection from museum officials to U.S. soldiers on the scene, resulting in what even Colin Powell described as an "irretrievable loss" to the cultural heritage of humanity. These remnants from the Assyrian, Mesopotamian, Sumerian and other civilisations will undoubtedly find their way to the private collections of wealthy individuals in the West or to the auction blocks at Sotheby's - just as it happened to much of the world's cultural patrimony in the past.

International law has codified the norms and rules governing protection of cultural heritage during war in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and reaffirmed the general principle in Article 53 of the 1977 Additional Protocols to the Geneva Conventions of 1949. Forty-five countries signed the 1954 Hague Convention at its inception, with the notable exceptions of the U.S. and Great Britain. However, the genesis of the 1954 Convention can be traced to Article 56 of the 1907 Hague Convention to which both the U.S. and the U.K. are signatories. That apart, the provisions of 1907 Hague Convention, arguably, embody the present status of customary international law on the subject by which all nations would be bound. Article 56 states that all seizure, destruction, or wilful damage done to institutions of cultural significance, historic monuments, works of art, and science, is forbidden and should be made the subject of legal proceedings.

In response to this kind of pervasive illegality, U.N. Secretary-General Kofi Annan made a tepid public request on April 24 to U.S.-led forces in Iraq "to live up to their responsibility for civilians and public order under the Geneva Conventions". The rejoinder by Washington's Ambassador to the U.N. that the U.S. forces had gone out of their way "from day one" to meet all of their international obligations is disingenuous, to say the least, based on the undisputed facts on the ground in occupied Iraq.

The political reality of the matter, however, is that the international community will in all probability turn a blind eye to these "grave breaches" of international law given the unseemly scramble among states to position themselves to derive maximum benefit from the post-war dispensation. Having more or less acquiesced to the disastrous precedent of an illegal and pre-emptive war against a sovereign member-state, the U.N. can now be expected to bow like a marionette, despite some well-publicised hand-wringing, before the lack of political will among its member-states, particularly the ones that count, to do anything meaningful about these serious violations of international law, especially if the organisation is to have any role whatsoever in the future of Iraq.

That future will depend considerably on whether or not U.S. plans for the post-war regime will encounter the same resistance that their British predecessors in "nation-building" confronted during their tenure in Iraq. Not unlike the presidential sound bite beamed into Iraqi homes recently, the British proclamation issued to the inhabitants of Baghdad shortly after their occupation of the city on March 19, 1917 declared: "Our armies do not come into your lands as conquerors or enemies, but as liberators." Yet, British colonial policy was always predicated on diluting the political muscle of two of the three main ethnic groups in Iraq. Hence, while the Kurds were to see their homeland partitioned among Syria, Turkey, Persia and Iraq, the numerically predominant Shias had to be persuaded to renounce power in Baghdad owing to their alleged penchant for theocracy. Instead, the British selected as ruler King Faisal, a Sunni Muslim, but acceptable to the Shias as the member of a Hashemite dynasty, direct descendants of the Prophet. In just three years, however, Iraqis of all political hues and ethnic backgrounds made common cause against their British occupiers in the revolt of 1920 that has been described, rightly, as the crucible of Iraqi nationalism.

THE nature of Iraqi resistance to the occupation will turn on how the U.S. chooses to pursue its strategic objectives in Iraq. Despite the grandiose idiom of empire currently in favour among the armchair warriors in Washington, the long-term objectives of the U.S. are probably more aptly understood as neocolonialism of the standard variety that Washington has practised throughout much of Latin America since the days of the Monroe Doctrine. The Bush administration's talismanic evocation of the language of "democracy" and "liberation" for Iraqis suggests that the U.S. has already wagered the dubious legitimacy of its war against Iraq on the promise of installing some kind of democracy, no matter how fragile, in Baghdad.

Given the fiasco on the weapons front, the U.S. needs democracy in Iraq to vindicate retrospectively an invasion that remains otherwise bereft of moral or legal justification. U.S. Deputy Secretary of Defence Paul Wolfowitz and other members of the Bush administration have publicly committed the U.S. to preserving the "territorial integrity" of Iraq. At the same time, the Bush administration has already stated that the U.S. would maintain a "long-term" military presence in Iraq, including air bases, and reduce its military profile in Saudi Arabia, where the infidel footprint on the soil of the Islamic holy sites of Mecca and Medina has been a favourite whipping-boy for Islamic fundamentalists throughout the region after the first Persian Gulf War. Almost by definition, maintaining such a military presence in Iraq over the "long term" in the context of a democratic regime capable of preserving its territorial integrity would require propping up a client state in the country that would remain dependent on U.S. patronage for the indefinite future.

Early indications are that U.S. planners favour a Belgium-like federation with a weak central authority in the hands of the Sunni Arabs flanked by relatively autonomous Kurdish and Shia regions to the north and south respectively. In addition to being an obvious disappointment for the Shias who stand to lose the most in this kind of federation, the weak statelet at the central level of government will remain precariously dependent upon Washington for its continued survival. There are a number of compelling reasons, however, why this neo-colonial model may run aground in post-war Iraq.

The entire formula is eerily reminiscent of British realpolitik in the region, albeit with a semi-democratic flavouring, and may prove just as untenable in the long run. For this divide-and-rule strategy to work, the Shias would have to be persuaded to trade their majoritarian aspirations in Baghdad for an uncertain regional autonomy in the south and the Sunnis, whose political primacy in Iraq has remained unchanged since 1632 when the Sunni Ottoman Turks made them a ruling minority, would have to trade primacy over an undivided Iraq for a much-reduced authority over the weakened federal structure.

Any framework for government in Iraq will have to wrestle with the growing assertiveness of the Shia majority. That will necessarily involve the Bush administration, not known for its cultural sensitivity to the European, let alone Muslim sectarian opinion, in the Byzantine labyrinth of Shia factional politics where a number of clerical leaders are already jockeying for influence, some of whom have publicly demanded an Islamic state under the Sharia law.

Democracy of any kind in Iraq, or regional autonomy for that matter, would only enhance the influence of the Shias and, inevitably, that of their Iranian patrons. This prospect has already alarmed Iraq's mostly Sunni Arab neighbours who had overwhelmingly supported Saddam Hussein's 1980-88 war with Iran, along with the U.S., to prevent precisely this kind of outcome. The Bush administration's spokesmen have been as blunt as usual: "We've made clear to Iran that we would oppose any outside interference in Iraq's road to democracy. Infiltration of agents to destabilise the Shiite population would clearly fall into that category."

For its part, Iran has denied any such interference, while duly noting the sheer hypocrisy entailed in the U.S.' demands that it not interfere in Iraq's "internal affairs". Nonetheless, the Iranians have long sponsored the Supreme Council for the Islamic Revolution in Iraq, often called the "Hezbollah of Iraq", which claims the support of some 10,000 armed men and is a major contender in the battle for leadership of Iraq's Shiites. The group has boycotted U.S.-sponsored talks for the formation of an interim government in Baghdad. Teheran has also called for the U.N. to play the principal role in post-war Iraq which suggests, at a minimum, that Iran fully intends to exercise some kind of influence in the post-war dispensation as the regional protector of its co-religionists in Iraq. Any Iranian role of this kind will be unacceptable to Washington, not to mention Iraq's mostly Sunni neighbours such as Egypt and Saudi Arabia.

The Bush administration's relentless profiteering and the economic exploitation that is a characteristic feature of U.S. neo-colonialism will only compound the difficulties inherent in the project. The awarding of a Pentagon contract to Kellogg Brown & Root, a subsidiary of Vice-President Dick Cheney's former oil-services company Halliburton, worth as much as $7 billion over two years, is just one example of the bizarre mixture of crass opportunism and evangelical zeal that drives Washington's policy these days. The key adviser to the U.S. State Department's Future of Iraq Oil and Energy Working Group, who is also the cousin of Ahmed Chalabi, a convicted embezzler and the Pentagon's choice to lead the post-war Iraqi government, has already announced that Iraq may have to withdraw from the Organisation of Petroleum Exporting Countries (OPEC) and "privatise" its oil industry.

Needless to say, democracy will not be the U.S.' only export to Iraq. It has appointed Dan Amstutz, a former senior executive of Cargill, the biggest grain exporting multinational in the world, in charge of the reconstruction of Iraq's agricultural sector. Kevin Watkins, Oxfam's policy director, has charged that Amstutz was more likely to try to dump cheap U.S. grain on the potentially lucrative Iraqi market than encourage the country to rebuild its once-successful agricultural sector. "Putting Dan Amstutz in charge of agricultural reconstruction in Iraq is like putting Saddam Hussein in the chair of a human rights commission," Watkins said. "This guy is uniquely well-placed to advance the commercial interests of American grain companies and bust open the Iraqi market - but singularly ill-equipped to lead a reconstruction effort in a developing country."

Himanshu Rajan Sharma is an international lawyer, author and political activist based in New York.

Sign in to Unlock member-only benefits!
  • Bookmark stories to read later.
  • Comment on stories to start conversations.
  • Subscribe to our newsletters.
  • Get notified about discounts and offers to our products.
Sign in


Comments have to be in English, and in full sentences. They cannot be abusive or personal. Please abide to our community guidelines for posting your comment