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Does America have legal rights to try Iraqi officials?

Harun ur Rashid
THE US Central Command circulated to the US armed forces a list of 55 "most wanted men" in Iraq to capture or kill them. It is widely reported in the media that the US would put the captured Iraqi senior officials on trial for war crimes and crimes against humanity. The US claims that these officials constituted the core of the oppressive regime in Iraq and they were directly or indirectly responsible for the commission of horrendous crimes including the use of deadly chemical weapons killing Kurd population in Halabja in northern Iraq in March, 1988.
There is no doubt that the former Saddam Hussein regime had allegedly committed terrible crimes against his own people and those responsible should not certainly go unpunished. In the days of international concern with human rights, it is now acknowledged that sovereignty is not absolute and is limited by international law. Even the strongest supporters of state sovereignty appear to reconcile with the fact that the days of unrestricted exercise of sovereignty is over.
This new international public policy imposes an obligation to treat human beings with dignity. A government official, however so high, who commits or is responsible for crimes against humanity should be held accountable under international law. That explains, at least at a legal level, the refusal to accept Chile's sovereign immunity for President Pinochet or Serbia's sovereign immunity of President Slobodan Milosevic over atrocities in Kosovo.
Furthermore, individuals cannot escape from accountability under international law. The days of claiming defence of "superior orders" ( so-called Yamashita principle) cannot be invoked as it was rejected by the International Military Tribunals in Nuremberg and Tokyo while German and Japanese war leaders of the Second World War faced charges of war crimes and crimes against humanity. Many of them were convicted by the International Military Tribunals and hanged. The Nuremberg
Tribunal laid down clearly the accountability of individuals and stated that " Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."
There are a variety of institutions and supervisory systems established to ensure that those who commit or are responsible for international crimes are accountable. The most appropriate one is
the Permanent International Criminal Court, based in The Hague (Netherlands). All the 18 judges have been appointed including an independent prosecutor. The Court is now ready to hear any case that falls within its jurisdiction under the 1998 Statute of Rome
Before I discuss the main question as to the legality or otherwise of the claim of the US to put Iraqi officials on trial, let me briefly describe what constitute crimes against peace, war crimes and crimes against humanity.
Aggression against a state is a crime against peace. It is contrary to the UN Charter and international law. Aggression constitutes a serious breach of the 1970 UN Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States and the 1982 UN Declaration on the Peaceful Settlement of International Disputes.
Although war constitutes a defeat for humanity, there are laws how to conduct wars to minimise human suffering. The Fourth 1949 Geneva Conventions and the 1977 Protocols have set rules in conducting warfare. one of the rules is that during wars the amount of force must be proportional to the threat being faced. For instance sledgehammers should not be used to crack chestnuts. Secondly, weapons deployed during wars must distinguish between combatants and non-combatants (civilians). If any state violates these rules it commits war crimes.
The International Military Tribunal at Nuremberg (1946) specified another crime, i.e. crimes
against humanity ( killing people en masse). The principles of the Nuremberg Tribunal were affirmed and incorporated into international law by the UN General Assembly in a resolution in December 1946 and in the 1948 Genocide Convention.
In the light of the above background, the question is : Can the US put detained Iraqi officials on trial ? The short answer is No. The arguments are canvassed below:
First, the International Criminal
Court was set up in accordance with the 1998 Statute of Rome to which 122 states including Bangladesh have signed and more than 65 states have ratified. The US withdrew from it and by withdrawing its signature from the Statute of Rome, the US has ceased to have any legal and moral right to initiate any prosecution of any Iraqi officials for crimes and humanity before the Court. The Bush administration withdrew from it on the ground that its citizen should not submit to the jurisdiction of the Court. If a US citizen cannot be tried in the International Criminal Court, likewise no Iraqi citizen should stand trial before the Court.
Second, under the Statute of Rome, a trial can be held before the
International Criminal Court if the accused is a citizen of a state that ratified the Statute or if the crime is committed in a country that ratified the Statute. None is applicable to Iraqi nationals. This being the case, no Iraqi official can be put on trial before the International Criminal Court. The only exception is in the case of crimes that are so horrific that the UN Security Council decides to put suspected individuals on trial before the International Criminal Court. This means that the US will have to refer the matter
to the Security Council for a suitable decision.
Third, the US waged war on Iraq without UN authority. The UN Charter made it very clear that war is outlawed except in the case of an attack or imminent attack. Iraq did not attack the US and therefore by all canons of international law, the US had no right to launch an attack on Iraq. The US is a foundermember of the UN and signed the Charter which is a multilateral treaty and under Article 2 (2) of the Charter the US must fulfil in good faith the obligations in accordance with the Charter. The US has been in clear material breach of the UN Charter and thus it became an aggressor state.
sor state, forfeits the right to put on trial any Iraqi official before any international tribunal or domestic tribunal in the US. Rather there is a strong case for laying charges under international law against US leaders and military commanders who are responsible for crimes against peace and war crimes. By waging unprovoked war on Iraq, the US has destabilised international peace and security and committed crimes against peace. Furthermore, war weapons used in Iraq were not only disproportion-
ate to the threat warranted but also did not distinguish between combatants and civilians resulting into deaths of thousands of civilians including women and children. This indiscriminate use of weapons constitutes war crimes under the 1949 Fourth Geneva Convention.
Fifth, with regard to Halabja massacre, the US could be accused of indirectly responsible for such atrocities because it continued to sell to the former Saddam regime the ingredients of chemical weapons for another 20 months after the Halabja occurrence. Furthermore in February, 1989 the US Assistant Secretary of State John Kelly flew to Baghdad and met with former President Saddam Hussein and categorised him as a "moderate leader" in the region and sought cooperation in resolving the Israeli-Palestine conflict.
Sixth, another fact that merits attention is that the US used chemical weapons ( napalm and phosphorus) in the Vietnam wars in the 60s and 70s and Vietnamese people have been suffering until this day. Has any US leader or military personnel been put on trial and convicted for such barbaric crimes? Did Henry Kissinger who had a special degree of responsibility in Vietnam war face any trial ? In a book titled " The Trial of Henry Kissinger" (2001) noted US journalist Christopher Hitchens unmasked Henry Kissinger as a "war criminal".
Finally, the US as an occupying power in Iraq has been grossly negligent in restraining looters who ransacked the historic Baghdad Museum, a heritage of human-
kind and art galleries. It failed to impose any control on acts of inflicting "cultural genocide" in Iraq. The US is accused of relinquishing legal responsibility of an occupying power despite the massive presence of US forces with lethal weapons in Iraq. This inaction is a serious violation of the provisions of the 1949 Geneva Convention.
For all these grounds, no country, least of all the US, has the authority or competence to put Iraqi officials, now held under custody, on trial before any international or domestic tribunal. On the other hand there is a strong case for laying criminal charges under international law against US leaders and military commanders for waging bloodlust in Iraq.
It is reported that a Genevabased private group has already filed charges in Switzerland against the leaders of the US and Britain on behalf of Iraqi nationals whose members of family had been victims of war in Iraq. In Belgium, a case has been lodged against the Military Commander of the Anglo-American alliance Tommy Franks on the ground that 19 civilians were killed on March 20, the day of the commencement of war.
Realising the legal loopholes, in recent days US Defence Secretary Donald Rumsfeld reportedly told that US government lawyers had not decided whether any senior Iraqi official being held would face criminal charges. He however kept option for Iraqi courts saying that some could be tried in US, international or Iraqi courts, although a US venue was "not our first choice".
Who has the right?
Individuals who had committed, or responsible for, crimes during the former Saddam Hussein regime should not go unpunished. It is the Iraqi national courts, established under proper law, that will have jurisdiction to try them in public. The legitimacy of national laws will depend on in the make-up of the elected legislative body representing all ethnic and religious groups in Iraq and secondly on whether laws have been enacted taking account of internationally recognised norms of human rights. This implies that a broad-based democratic government in Iraq will have the right to put them on trial for alleged crimes under procedures established by law. The trial must be free, open and fair and accused persons must have adequate legal representation to defend themselves during trial.
Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN, Geneva.
***No country, least of all the US, has the authority or competence to put Iraqi officials, now held under custody, on trial before any international or domestic tribunal. On the other hand there is a strong case for laying criminal charges under international law against US leaders and military commanders for waging bloodlust in Iraq. ..Realising the legal loopholes, in recent days US Defence Secretary Donald Rumsfeld reportedly told that US government lawyers had not decided whether any senior Iraqi official being held would face criminal charges.***