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- World Tribunal On Iraq -
Culminating Session - Istanbul 23.-27. Juni 2005
DECLARATION OF THE JURY OF CONSCIENCE
International Law Appendix
This international law appendix is intended to back up the Jury Statement that rests its assessments primarily on a moral and political appraisal of the Iraq War. The Statement relies upon the extensive testimony given in written and oral form by international law experts who have a world-class scholarly reputation during the Istanbul Culminating Session of the World Tribunal on Iraq (WTI). It also reflects the testimony and submissions on related issues of war crimes and the failure of the United Nations to protect Iraq against aggression.
The Jury of Conscience was not a body composed of jurists or international law experts. It did not hear arguments supporting the legality of the invasion of Iraq as would have been made before a judicial body under the authority of either the state or an international institution acting on behalf of the international community. The World Tribunal on Iraq throughout all of its session proceeded from a sense of moral and political outrage of concerned citizens from all over the world, with respect to the war. The Tribunal was not interested in a debate solely as to legality. The legal issues were relevant to the extent that they added weight to the moral and political purpose of the Tribunal, which was to expose the Iraq War as the crime it is, appealing to and drawing upon the deep bonds that link us all in our humanity. Therefore the Tribunal sought testimony and evidence to call into question the mantle of respectability thrown over the Iraq War by the aggressors, and the false impression disseminated by mainstream media, that the Iraq War was in any sense justified by political circumstances, moral considerations, or legal analysis.
The WTI is a worldwide process dedicated to reclaiming justice on behalf of the peoples of the world. It aims to record the severe wrongs, crimes, and violations that were committed in the process leading up to the aggression against Iraq, during the war, and throughout the ensuing occupation, continuing with unabated fury to this day. The role of international law is understood in light of these WTI goals.
The concerns of the WTI range much further than the demand for the implementation of international law, especially as much of this law currently serves the interests of wealth and power. Nevertheless, international law with respect to the use of force and recourse to war is important in relation to the work of the WTI. International law is useful for the WTI for the following reasons:
- International law grounds the political and moral demand for the criminal indictment and prosecution of those responsible for the Iraq War, and it clarifies the extent of criminal accountability as extending to corporate and media participation;
- International law rejects the dangerous imperialist claims of the United States and the United Kingdom to be exempt from international legal obligations.
In addition, the WTI makes use of international law to fulfill its mission:
- The WTI connects a call for global justice with the demand for the implementation of international law, but also for a rethinking of the premises and operations of international law so that it might be of greater relevance to the achievement of human security in the future;
- The WTI demands an interrogation as to why international institutions, particularly the United Nations, proved powerless against US unilateralism and aggression;
- The WTI insists that United Nations exercise its constitutional responsibility to protect its Members from aggression and illegal occupation;
- The WTI possesses the authority, as representing civil society, to declare and seek enforcement of international legal obligations when states and the United Nations fail to uphold international law in matters of war and peace.
It is important to distinguish:
- violations of international law, including the UN Charter, by a state; and
- crimes associated with these violation committed by political and military leaders, government officials, corporations and their officers, soldiers and private contractors, journalists and media personnel.
- International law consists of (1) international treaties, including the UN Charter [see list of documents]; (2) international customary law [especially in relation to the conduct of states in war]; (3) international criminal law [a sub-category of (1) resting on treaties and agreements among states, based on the framework of the Nuremberg Judgment in 1945, unanimously affirmed by the UN General Assembly’s adoption of the Nuremberg Principles in 1946, Res. 95(I)].
- In the War on Iraq the three principles of customary international law have been violated: (1) Principle of Proportionality: force can only be used to attain permissible legal objectives, and then only to the extent required by ‘military necessity’; (2) Principle of Discrimination: force and weaponry can only be used if confined to military targets; indiscriminate weapons and tactics are prohibited; (3) Principle of Humanity: force must never be used to cause unnecessary suffering and maximum care must be taken to protect civilian society, including its cultural heritage.
- The War on Iraq violates the Nuremberg Principles that set forth the following essential guidelines (as formulated by the International Law Commission of the UN in 1950 in response to request from General Assembly):
Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.
The fact that internal law does not impose a penalty for an act, which constitutes a crime under international law, does not relieve the person who committed the act from responsibility under international law.
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Any person charged with a crime under international law has the right to a fair trial on the facts and law.
The crimes hereinafter set out are punishable as crimes under; international law:
a) Crimes against peace:
i. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
ii. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
b) War crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.
Violations and Crimes:
I. The invasion of Iraq on March 20, 2003, together with the continuing occupation of Iraq, constitutes a violation of the core obligation of the United Nations Charter:
resolving international conflicts by recourse to force or the threat of force is unconditionally prohibited by Article 2(4) of the Charter;
the only exception to this probation is the right of states to act in self-defense against a prior armed attack as allowed by Article 51, but with the requirement that defending state report its claim to the Security Council;
the claims of the US/UK Governments based on doctrines of ‘preemption’ or ‘preventive war’ have no standing in international law, and reliance on such specious arguments was in any event unsupported by facts; even if weapons of mass destruction had existed in Iraq it would not provide a legal justification for the invasion; nor would the claim that ‘regime change’ would liberate the Iraqi people from dictatorial rule violative of human rights;
with respect to Iraq there existed no basis for claiming self-defense or acting on the basis of a Security Council authorization; the invasion of Iraq and the subsequent occupation of the country constitutes a continuing aggression against a sovereign state and member of the UN in violation of international law;
the cumulative effect of these violations is to create a strong factual and legal foundation for the indictment, prosecution, and punishment of the individuals responsible for planning, initiating, and waging a crime of aggression against Iraq.
II. Iraq War by the invading military forces, principally those of the United States and United Kingdom, and subsequent occupation, violated the law of war such as the Geneva Conventions on the Humanitarian Laws of War (1949), Additional Protocols to Geneva Conventions (1977) and Hague Conventions on the Laws of War (1899, 1907) in numerous respects, including the following:
use of cluster bombs, napalm, depleted uranium;
bombing of civilian targets and areas (e.g. markets, restaurants, media facilities, religious and cultural sites);
intense and indiscriminate military operations against many cities and towns causing massive civilian casualties (e.g. Najaf, Falluja);
repeated and systematic use of torture and degrading treatment of Iraqi civilian and military personnel detained in prison facilities or covertly transferred to foreign countries known for torture and severe prison conditions;
overall failure to protect the civilian population and their property, cultural heritage (shootings at check points; house raids; lootings of museums and other cultural sites; refusal to assess extent of civilian death and damage) [see especially common Article 3 of the Geneva Conventions imposing duty to take special measures to protect civilian population to the extent possible) (Also Geneva Convention IV specifies the obligations of the occupying power in Articles 47-78);
the cumulative effect of this pattern of flagrant and extensive violations of the laws of war is to create the foundation for the indictment, prosecution, and punishment of those individuals responsible, as policy makers, leaders, and as implementers at various levels of command;
Article 1 of the Geneva Conventions reads: "The High Contracting Parties [including US/UK] undertake to respect and ensure respect for the present Convention in all circumstances." The American legal specialists in Office of the Legal Counsel in the White House, in the Justice Department, and Department of Defense who advised on the ‘legality’ of torture and other behavior that violates the law of war are priority targets for indictment and prosecution.
III. The occupation of Iraq has fragrantly violated The Right of Self-Determination
of the People of Iraq:
- Article 1 of the International Covenant on Economic, Social, and Cultural Rights and of the International Covenant on Political and Civil Rights (1966): "(1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development";
- It is evident that the occupation, by its decrees, practices, imposition of an interim government, managed elections, and administered constitution-making process has violated the right of self-determination of the Iraqi people, a fundamental element of international human rights law.
IV. The occupation of Iraq has included massive abuses of the Iraqi civilian population, including the widespread and pervasive reliance on torture, the practice of which is unconditionally prohibited by international law:
- Article 5 of the Universal Declaration of Human Rights: "No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment (repeated in Article 7 of International Covenant on Civil and Political Rights (1966), including Article 4(2) that affirms there are no exceptions, even in conditions of war or emergency) and further confirmed by the widely ratified treaty—Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).
V. The United Nations has failed to uphold its obligations to protect sovereign states, especially its members, from violations of their legal rights to political independence and territorial integrity, passively allowing Iraq to be threatened and attacked for twelve years prior to the invasion of 2003:
the UNSC maintained sanctions on Iraq that had a demonstrated genocidal effect on the civilian population during the period 1991-2003;
the UNSC refrained from censuring and preventing repeated air strikes within Iraq territory during the period 1991-2003;
the UNSC refrained from censuring and preventing overt calls for the subversion and replacement of the Iraqi government, as well as the financing and training of exiles dedicated to armed struggle;
the UNSC failed to condemn or act to prevent aggressive threats or the actual initiation and conduct of an aggressive war against Iraq in 2003, and has to a limited extent cooperated in the illegal occupation of Iraq since the invasion .
The Jury Statement is consistent with an objective understanding of international law, including the United Nations Charter.
Members of the United Nations and governments of sovereign states have legal obligations to uphold the Charter and act to ensure respect for the laws of war.
All three categories of Nuremberg Crimes are associated with the invasion and occupation of Iraq.
The International Criminal Court should indict, prosecute, and punish the perpetrators and collaborators for this aggression against Iraq and the related international crimes arising from the subsequent occupation of the country.
The ICC should be supplemented by a specially constituted international tribunal with authority to indict, prosecute, and punish for crimes committed before 2002 when the ICC was established and to the extent that crimes associated with states not Parties to the ICC are not addressed.
The UNGA should be encouraged to implement international law with respect to the Iraq War and occupation.
National courts relying on universal jurisdiction should be urged to investigate and prosecute individuals associated with Nuremberg Crimes in Iraq.
Organs of civil society, including the WTI, should act to ensure that the recommendations and conclusions of the Jury Statement are promptly and fairly implemented.
Appendix: List of Legal Documents
- Hague Convention IV Respecting the Laws and Customs of War on Land (1907)
- Protocol for the Prohibition of the use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods (1925)
- General Treaty (‘Pact of Paris’) for the Renunciation of War as an Instrument of National Policy (1928)
- Universal Declaration of Human Rights (1948)
- Geneva Conventions (I-IV) on International Humanitarian Law (1949)
- Nuremberg Principles Recognized in the Charter of the Tribunal and in the Nuremberg Judgment (1950)
- European Convention on Human Rights and Fundamental Freedoms (1950)
- Convention on the Prevention and Punishment of the Crime of Genocide (1948)
- Convention on the Political Rights of Women (1953)
- Code of Conduct for the Armed Forces of the United States of America (1963)
- International Convention on the Elimination of all Forms of Racial Discrimination (1965)
- International Covenant on Economic, Social and Cultural Rights (1966)
- International Covenant on Civil and Political Rights (1966)
- American Convention on Human Rights (1969)
- Convention on the Prohibition of the Development, Production and Stockpiling of Biological Weapons and Toxin Weapons (1972)
- Universal (or Algiers) Declaration of the Rights of Peoples (1976)
- Principles of Co-Operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes or Crimes Against Humanity (1973)
- Protocol Additional (I-II) to the Geneva Conventions of 1949 (1977)
- Convention on the Elimination of All Forms of Discrimination Against Women (1979)
- African Charter on Human and Peoples’ Rights (1981)
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
- International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (1989)
- Convention on the Rights of the Child (1989)
- Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons (1992)
- Declaration for the Protection of War Victims (1993)
- Rome Statute of the International Criminal Court (1998)