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Iraq and the Laws of War


By Francis A. Boyle

On 19 March 2003 President Bush Jr. commenced his criminal war against Iraq
by ordering a so-called decapitation strike against the President of Iraq in
violation of a 48-hour ultimatum he had given publicly to the Iraqi
President and his sons to leave the country. This duplicitous behavior
violated the customary international laws of war set forth in the 1907 Hague
Convention on the Opening of Hostilities to which the United States is still
a contracting party, as evidenced by paragraphs 20, 21, 22, and 23 of U.S.
Army Field Manual 27-10 (1956). Furthermore, President Bush Jr.'s attempt to
assassinate the President of Iraq was an international crime in its own
right. Of course the Bush Jr. administration's war of aggression against
Iraq constituted a Crime against Peace as defined by the Nuremberg Charter
(1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950)
as well as by paragraph 498 of U.S. Army Field Manual 27-10 (1956).

Next came the Pentagon's military strategy of inflicting "shock and awe"
upon the city of Baghdad. To the contrary, article 6(b) of the 1945
Nuremberg Charter defined the term "War crimes" to include: "... wanton
destruction of cities, towns or villages, or devastation not justified by
military necessity..." The Bush Jr. administration's infliction of "shock
and awe" upon Baghdad and its inhabitants constituted the wanton destruction
of that city, and it was certainly not justified by "military necessity,"
which is always defined by and includes the laws of war. Such terror
bombings of cities have been criminal behavior under international law since
before the Second World
War: Nagasaki, Hiroshima, Tokyo, Dresden, London, Guernica.

On 1 May 2003 President Bush Jr. theatrically landed on a U.S. aircraft
carrier off the coast of San Diego to declare: "Major combat operations in
Iraq have ended." He spoke before a large banner proclaiming: "MISSION
ACCOMPLISHED." As of that date, the United States government became the
belligerent occupant of Iraq under international law and practice.

This legal status was formally recognized by U.N. Security Council
Resolution 1483 of 22 May 2003. For the purpose of this analysis here, the
relevant portions of that Security Council Resolution 1483
(2003) are as follows:

....

Noting the letter of 8 May 2003 from the Permanent Representatives of the
United States of America and the United Kingdom of Great Britain and
Northern Ireland to the President of the Security Council (S/2003/538) and
recognizing the specific authorities, responsibilities, and obligations
under applicable international law of these states as occupying powers under
unified command (the "Authority"), ....

5. Calls upon all concerned to comply fully with their obligations under
international law including in particular the Geneva Conventions of 1949 and
the Hague Regulations of 1907;...

In that aforementioned 8 May 2003 letter from the United States and the
United Kingdom to the President of the Security Council, both countries
pledged to the Security Council that: "The States participating in the
Coalition will strictly abide by their obligations under international law,
including those relating to the essential humanitarian needs of the people
of Iraq." No point would be served here by attempting to document the gross
and repeated violations of that solemn and legally binding pledge by the
United States and the United Kingdom from that date until today since it
would require a separate book to catalog all of the war crimes, crimes
against humanity, and grave human rights violations inflicted by the United
States and the United Kingdom in Iraq and against its people. Suffice it to
say here that no earlier than President Bush's 1 May 2003 Declaration of the
end of hostilities in Iraq, and certainly no later than U.N. Security
Resolution 1483 of 22 May 2003, both the United States and the United
Kingdom have been the belligerent occupants of Iraq subject to the Four
Geneva Conventions of 1949, the 1907 Hague Regulations on land warfare, U.S.
Army Field Manual 27-10 (1956) or respectively its British equivalent, the
humanitarian provisions of Additional Protocol One of 1977 to the Four
Geneva Conventions of 1949, and the customary international laws of war.

I do not take the position that the United States is the belligerent
occupant of the entire state of Afghanistan. But certainly the laws of war
and international humanitarian law apply to the United States in its conduct
of hostilities in Afghanistan as well as to its presence there. It is not
generally believed that the United States is the belligerent occupant of
Guantanamo, Cuba. But those detainees held there by United States armed
forces who were apprehended in or near the theaters of hostilities in
Afghanistan and Iraq are protected by either the Third Geneva Convention
protecting prisoners of war or the Fourth Geneva Convention protecting
civilians. In any event every detainee held by the United States government
in Guantanamo is protected by the International Covenant on a Civil and
Political Rights, to which the United States is a contracting party. A
similar analysis likewise applies /pari passu/ to those numerous but unknown
torture and detention facilities operated around the world by the Central
Intelligence Agency. America's own "Gulag Archipelago." No wonder the Bush
Jr. administration has done everything humanly possible to sabotage the
International Criminal Court!

The United States government's installation of the so-called Interim
Government of Iraq during the summer of 2004 did not materially alter this
legal situation. Under the laws of war, this so-called Interim Government of
Iraq is nothing more than a "puppet government." As the belligerent occupant
of Iraq the United States government is free to establish a puppet
government if it so desires. But under the laws of war, the United States
government remains fully accountable for the behavior of its puppet
government.

These conclusions are made quite clear by paragraph 366 of U.S. Army Field
Manual 27-10 (1956):

366. Local Governments Under Duress and Puppet Governments

The restrictions placed upon the authority of a belligerent government
cannot be avoided by a system of using a puppet government, central or
local, to carry out acts which would be unlawful if performed directly by
the occupant. Acts induced or compelled by the occupant are nonetheless its
acts.

As the belligerent occupant of Iraq, the United States government is
obligated to ensure that its puppet Interim Government of Iraq obeys the
Four Geneva Conventions of 1949, the 1907 Hague Regulations on land warfare,
U.S. Army Field Manual 27-10 (1956), the humanitarian provisions of
Additional Protocol One of 1977 to the Four Geneva Conventions of 1949, and
the customary international laws of war. Any violation of the laws of war,
international humanitarian law, and human rights committed by its puppet
Interim Government of Iraq are legally imputable to the United States
government. As the belligerent occupant of Iraq, both the United States
government itself as well as its concerned civilian officials and military
officers are fully and personally responsible under international criminal
law for all violations of the laws of war, international humanitarian law,
and human rights committed by its puppet Interim Government of Iraq such as,
for example, reported death squads operating under its auspicies.

Furthermore, it was a total myth, fraud, lie, and outright propaganda for
the Bush Jr. administration to maintain that it was somehow magically
transferring "sovereignty" to its puppet Interim Government of Iraq during
the summer of 2004. Under the laws of war, sovereignty is never transferred
from the defeated sovereign such as Iraq to a belligerent occupant such as
the United States. This is made quite clear by paragraph 353 of U.S. Army
Field Manual 27-10 (1956): "Belligerent occupation in a foreign war, being
based upon the possession of enemy territory, necessarily implies that the
sovereignty of the occupied territory is not vested in the occupying power.
Occupation is essentially provisional."

If there were any doubt about this matter, paragraph 358 of U.S. Army Field
Manual 27-10 (1956) makes this fact crystal clear:

358. Occupation Does Not Transfer Sovereignty

Being an incident of war, military occupation confers upon the invading
force the means of exercising control for the period of occupation. It does
not transfer the sovereignty to the occupant, but simply the authority or
power to exercise some of the rights of sovereignty. The exercise of these
rights results from the established power of the occupant and from the
necessity of maintaining law and order, indispensable both to the
inhabitants and the occupying force....

Therefore, the United States government never had any "sovereignty" in the
first place to transfer to its puppet Interim Government of Iraq. In Iraq
the sovereignty still resides in the hands of the people of Iraq and in the
state known as the Republic of Iraq, where it has always been. The legal
regime described above will continue so long as the United States remains
the belligerent occupant of Iraq. Only when that U.S. belligerent occupation
of Iraq is factually terminated can the people of Iraq have the opportunity
to exercise their international legal right of sovereignty by means of free,
fair, democratic, and uncoerced elections. So as of this writing, the United
States and the United Kingdom remain the belligerent occupants of Iraq
despite their bogus "transfer" of their non-existent "sovereignty" to their
puppet Interim Government of Iraq.

Even U.N. Security Council Resolution 1546 of 8 June 2004 "Welcoming" the
installation of the puppet Interim Government of Iraq recognized this
undeniable fact of international law. Preambular language in this Resolution
referred to "the letter of 5 June 2004 from the United States Secretary of
State to the President of the Council, which is annexed to this resolution."
In other words, that annexed letter is a legally binding part of Resolution
1546 (2004). Therein U.S. Secretary of State Colin Powell pledged to the
U.N. Security Council with respect to the so-called Multinational Force
(MNF) in Iraq: "In addition, the forces that make up the MNF are and will
remain committed at all times to act consistently with their obligations
under the law of armed conflict, including the Geneva Conventions." Pursuant
thereto, the United States and the United Kingdom still remain the
belligerent occupants of Iraq subject to the Four Geneva Conventions of
1949, the Hague Regulations of 1907, U.S. Army Field Manual 27-10 (1956) or
respectively its British equivalent, the humanitarian provisions of
Additional Protocol I of 1977 to the Four Geneva Conventions of 1949, and
the customary international laws of war.

This brings the analysis to the so-called Constitution of Iraq that was
allegedly drafted by the puppet Interim Government of Iraq under the impetus
of the United States government. Article 43 of the 1907 Hague Regulations on
land warfare flatly prohibits the change in a basic law such as a state's
Constitution during the course of a belligerent occupation: "The authority
of the legitimate power having in fact passed into the hands of the
occupant, the latter shall take all the measures in his power to restore,
and ensure as far as possible, public order and safety, while respecting,
unless absolutely prevented, the laws in force in the country." This exact
same prohibition has been expressly incorporated in haec verba into
paragraph 363 of U.S. Army Field Manual 27-10 (1956). To the contrary, the
United States has demonstrated gross disrespect toward every law in Iraq
that has stood in the way of its imperial designs and petroleum ambitions,
including and especially the pre-invasion 1990 Interim Constitution for the
Republic of Iraq.

As for any subsequent Security Council Resolutions, the United Nations
Security Council has no power or authority to alter one iota of the laws of
war since they are peremptory norms of international law. For the Security
Council even to purport to authorize U.S. violations of the laws of war in
Iraq would render its so-voting Member States aiders and abettors to U.S.
war crimes and thus guilty of committing war crimes in their own right. Any
Security Council attempt to condone, authorize or approve violations of the
Four Geneva Conventions of 1949, the 1907 Hague Regulations, the
humanitarian provisions of Additional Protocol I of 1977 to the Four Geneva
Conventions of 1949, and the customary international laws of war by the
United States and the United Kingdom in Iraq would be ultra vires, a legal
nullity, and void ab initio.

In fact, the United Nations Organization itself has become complicit in U.S.
and U.K. international crimes in Iraq in violation of the customary
international laws of war set forth in paragraph 500 of U.S. Army Field
Manual 27-10 (1956): "... complicity in the commission of, crimes against
peace, crimes against humanity, and war crimes are punishable." The United
Nations Organization is walking down the path of the League of Nations
toward Trotsky's "ashcan" of history. And George Bush Jr. and Tony Blair are
heading towards their own Judgment at Nuremberg whose sixtieth anniversary
the rest of the world gratefully but wistfully commemorates this year. Never
again!

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Hurray! At last, a detailed expose of the precise manner in which the US is in violation of international law. This is what we should be shouting from the rooftops. FORGET ABOUT THE LIES!!! WHAT ARE THE CRIMES! When a murder is committed we do not become obsessed with the murderer’s alibi, but on what he/she did.

The antiwar movement has to do an about face. We have to face reality, i.e., the crimes that our government has committed and in which our GIs have participated in. In the eyes of the rest of the world, focusing on the troops makes us look selfish, as though we cared only about ourselves. The 2000th death of an Iraqi happened a long time ago.

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