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Three law professors debate the best forum in which to try Saddam Hussein.
One professor believes the war is illegal under international law and therefore a trial in any tribunal would be tainted.
The second professor "has questions about the legality of U.S. military action -- though not its legitimacy -- but said a tribunal could work."
The third professor "believes Iraq's violation of the Gulf War cease-fire and succeeding United Nations resolutions, coupled with humanitarian interests and the right of self-defense from weapons of mass destruction, give the United States more than enough justification to prosecute the war."
There are four basic tribunal options: U.S. Military Tribunals, Nuremburg-style tribunals, U.N. tribunals and hybrid tribunals, meaning ones with a mixture of international judges and judges from a newly formed Iraqi government.
Another expert says the U.S. "blundered" in not joining the International Criminal Court. That option most likely is not possible now. However, this expert thinks it might be possible to expand the jurisdiction of the U.N. Rwanda and Kosovo tribuanls to include Iraq.
Like some of the experts mentioned in the article, we see a difference between Osama bin Laden and al Qaeda, who directly attacked the U.S., and Iraq, who did not. The preemptive nature of the war, in our view, could make garnering support to try Saddam anywhere quite difficult.
Update: Brutal Hugs chimes in.
CBS News and the Associated Press reported today that lawyers carrying heavy law books are traveling with the American and British troops in Iraq in case the U.S. decides to impose martial law in Iraq.
Via Jurist's Paper Chase, you can find a detailed "explication" of rules and regulations to be applied in territories under the military jurisdiction of the US Army, in Chapter 6 of US Army Field Manual 27-10, The Law of Land Warfare, Occupation. We're going to study it for a while as we haven't read it before. As a sample, here's what it says about treatment of detainees (section 446.)Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country.They shall receive the medical attention required by their state of health.
They shall also have the right to receive any spiritual assistance which they may require.
Women shall be confined in separate quarters and shall be under the direct supervision of women.
Proper regard shall be paid to the special treatment due to minors.
Protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and of the International Committee of the Red Cross, in accordance with the provisions of Article 143.
Such persons shall have the right to receive at least one relief parcel monthly. (GC, art. 76.)
The charges laid out in William Safire's recent two part series -- "The French Connection" – have emboldened the anti-French chorus. But as former 60 Minutes producer Barry Lando writes, “Safire's double broadside is more Francophobia than fact. He is way off beam; the articles are filled with error and innuendo. What makes matters worse is that editors at both The New York Times and the International Herald Tribune knew there were serious questions about Safire's charges, yet the papers went ahead and published the second part of his series.”Barry Lando's full article can be read here.
John Broder and Eric Schmitt on CNN tonight said that military officials confirmed to him that new intelligence suggests that some of mechanics who strayed off the main road over the weekend were executed by Iraqi captors. This is apparently based on an intercepted converstation. Even though as of yet there is only a single source for this information, it appears credible when considered with the pictures shown over weekend of some GI's who appeared to have been shot at close range.
There were witnesses, townspeople present, during the alleged executions and an investigation is ongoing in which the Government is seeking corroborating evidence.
More information is available in a Wednesday New York Times article by Eric Schmitt and David Sanger, here.Some of the Army mechanics captured on Sunday after they took a wrong turn in the Iraqi town of Nasiriya were apparently executed by their captors, probably in front of townspeople, American officials charged tonight. The officials cautioned that the information was based on one source, apparently a communications intercept, and that they were seeking corroborating evidence. It is unclear how many of the seven soldiers were executed, rather than killed in fighting, as the Iraqis contend. Five other Americans were taken prisoner and at least three were still missing.
Mr. Bush says this invasion will be different. He has broadened his war aims in recent weeks from removing Mr. Hussein and any weapons of mass destruction to transforming Iraq into a beacon of freedom in the Middle East. In a news conference March 6, Mr. Bush said U.S. troops would remain to help run Iraq until a new, representative government could take control. With the passion of a convert to nation-building, he spoke movingly of confronting totalitarianism, of spreading "God's gift" of liberty "to each and every person," and of how "Iraqi lives and freedom matter greatly to us."Napoleon proclaimed a similar new era of equality and respect for "true Muslims" as he marched into Cairo in 1798, killing a thousand members of Egypt's ruling caste. He was accompanied by 100 French scientists, researching an encyclopedia and spreading European "enlightenment" to bemused Egyptian intellectuals.
"Peoples of Egypt, you will be told that I have come to destroy your religion," said Napoleon as he entered Cairo. "Do not believe it! Reply that I have come to restore your rights!""
In One Rule for Them , The Guardian's George Monbiot examines the hypocrisy of Rumsfeld's decrying Iraq's non-compliance with the Geneva Convention for American POW's while the U.S. has not afforded such protections to the prisoners at Guantanamo Bay in Cuba.
Here are the violations Monbiot lists with respect to the Guantanamo detainees:The US government broke the first of these (article 13) as soon as the prisoners arrived, by displaying them, just as the Iraqis have done, on television. In this case, however, they were not encouraged to address the cameras. They were kneeling on the ground, hands tied behind their backs, wearing blacked-out goggles and earphones. In breach of article 18, they had been stripped of their own clothes and deprived of their possessions. They were then interned in a penitentiary (against article 22), where they were denied proper mess facilities (26), canteens (28), religious premises (34), opportunities for physical exercise (38), access to the text of the convention (41), freedom to write to their families (70 and 71) and parcels of food and books (72). They were not "released and repatriated without delay after the cessation of active hostilities" (118), because, the US authorities say, their interrogation might, one day, reveal interesting information about al-Qaida. Article 17 rules that captives are obliged to give only their name, rank, number and date of birth. No "coercion may be inflicted on prisoners of war to secure from them information of any kind whatever". In the hope of breaking them, however, the authorities have confined them to solitary cells and subjected them to what is now known as "torture lite": sleep deprivation and constant exposure to bright light. Unsurprisingly, several of the prisoners have sought to kill themselves, by smashing their heads against the walls or trying to slash their wrists with plastic cutlery.Moniot debunks the Government's theory that the Guantanamo detainees are exempt from POW status.
But this redefinition is itself a breach of article 4 of the third convention, under which people detained as suspected members of a militia (the Taliban) or a volunteer corps (al-Qaida) must be regarded as prisoners of war. Even if there is doubt about how such people should be classified, article 5 insists that they "shall enjoy the protection of the present convention until such time as their status has been determined by a competent tribunal".We've argued these same points many times, most recently here.
Yes, we know the difference according to the Administration between enemy combatants and prisoners of war. The Administration argues that Al Qaeda members don't qualify because they don't have these qualifications: (1) being under a responsible command; (2) having a fixed distinctive sign recognizable at a distance; (3) carrying arms openly; and (4) conducting their operations in accordance with the laws and customs of war. At times they have included the qualification of wearing a military uniform. Back last February, Bush said the Taliban and Al Qaeda were enemy combatants. After a lot of heat, he revised his position to recognize that Taliban soldiers were entitled to POW protections but not Al Qaeda. This Administration has been making up the rules as it goes along and refuses to concede that enemy combatants are entitled to judicial review of its decision."Article 5 of the Third Geneva Convention states that if there is "any doubt" as to whether captured combatants should be recognized as POWs, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." In other words, if doubt exists, the status of each detainee must be determined individually, not by a blanket decision of the President."
"Even if not technically prisoners of war, al Qaeda and Taliban captives still qualify for "humane treatment" under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988."
We believe in treating all prisoners as human beings and with dignity. As we said here, "If we treat the citizens of other countries this way, why won't these other countries retaliate with similar or harsher treatment when they capture members of our military?" Don't we reap what we sow?
"International law experts are questioning the Bush administration's legal justification for entering into the war and examining whether the president can really try Iraqis who destroy their country's oil wells during the fighting. And when it's all over, will the U.N. be able to satisfy the claims for compensation from businesses, governments and individuals damaged by the conflict?"These are not opinion pieces, they air both sides of the debates, relying on legal scholars and other experts in their analysis.
"First of all, we are committed to the teachings of Islam. We are faithful Muslims. We take care of our prisoners of war in accordance with our teachings of Islam," Foreign Minister Naji Sabri told a BBC radio program. According to an Agence France-Presse report, the foreign minister said, "We are committed first of all to the teachings of Islam, and second we are committed to the conventions of Geneva in dealing with the prisoners of war."
THE BUTCHER'S BOY , as he is sometimes called, is reputed to be the most brutal member of Iraq's notorious ruling family. As an infant he reportedly played with disarmed grenades. By 10 he was accompanying his father to the torture chamber at Qasr-al-Nihayyah (the Palace of the End, where many political enemies, including deposed King Faisal II, were killed) to watch Saddam deal with dissidents. By 16 he bragged of committing his first murder, telling classmates he had killed a teacher who had upbraided him in front of a girlfriend.A human rights group has lodged a complaint with the International Olympics Committee, backed up by several affidavits of tortured athletes. There has been no investigation or action to date.For nearly 20 years Uday Hussein has been the most powerful force in Iraq's athletic hierarchy. In 1984, when Uday was 20, Saddam handed his son the reins of both the country's Olympic committee and its soccer federation, hoping Uday could help rebuild the spirit of the nation's youth while also proving himself a worthy successor to his father. ...Uday's penchant for violence has long been an open secret among international athletic officials. ...
"Two stories about Uday leap to mind," the State Department official told SI. "The first is the caning of the feet -- called falaka -- of the soccer team. That form of torture is well known to be used by Saddam's forces as well. They beat the soles of the feet, which breaks a lot of the smaller bones, causes massive swelling and leaves victims unable to walk for a while. There were also reports that after a loss Uday forced the volleyball team, which was made up of taller athletes, to remain in a room he had constructed with a five-foot-high ceiling. He built the room so small that not all of them could sit at the same time. The only way they could fit was by having half of them standing and leaning over while the other half were sitting with their knees in their chests. He considered this a motivational technique. There was always a psychological element to the kind of torture Uday employed.
IOC president Jacques Rogge acknowledged last week that his organization received the complaint and says it is in the hands of the ethics committee. But IOC member Richard Pound says that it is "important to remember these are just allegations, and you have to make sure this is not all tied to the Iraq-U.S. dispute, that we are not being used for propaganda. You just never know."This is disgusting, and we hope other rights groups join the effort to hold this son of Saddam accountable, assuming he wasn't killed last week. He belongs in the International Criminal Court. The court Bush refused to allow America to join. At least we can't think of any way Bush and Rumsfeld could intervene to stop any such proceedings brought against Uday.
The Nation has collected dispatches from people around the globe reporting on reaction to the Invasion of Iraq. The reports come from cities as diverse as Hanoi, Lagos, Cairo, Paris, Beijing, London and Jerusalem.
Also check out our new "warblog" blogroll on the right. These sites are updated continuously, particularly Sean-Pauls' the Agonist. Others are by Chris Allbritton, a non-embedded freelance reporter in Bagdad and Salam Pax, a resident of Bagdad who is still there.
This preventive war (it isn't even preemptive because there is no imminent threat to preempt) is among the most dangerous and reckless actions ever taken by a U.S. president. It isn't the first time the U.S. has launched an unjustified illegal war. But it is the first time such a war has been justified through a "doctrine" of preemptive war that abandons all understandings that war, with all its horrors, can be used only as the last possible resort when a nation's security and survival are threatened.Some of the points:
The war at homeWhat we should doThis war threatens Americans. We are now at greater risk. This war will increase anti-American sentiments around the world, and will serve as a recruiting poster for al-Qaeda and other terrorist organizations....This is an illegitimate war, and stands in violation of the UN Charter and international law. We hold the U.S. accountable for this illegal war.
The War Abroad
This war will be devastating for Iraq and Iraqis. The Pentagon's plan of "shock and awe" to open the main air attack against Baghdad will send 3,000 cruise missiles and precision-guided bombs into a crowded city of 6 million people. That is ten times the number of such bombs used in the entire Gulf War in 1991.
The humanitarian consequences will be severe.
We should demand that Congress refuse to pay for waging an illegal war. We should also be clear that the U.S. is accountable for paying the costs of rehabilitating Iraq's war-shattered infrastructure as well as the emergency costs of refugees, food aid, etc. That money should be channelled through the UN humanitarian agencies, not paid to U.S. corporations, especially those (like Halliburton - already offered a $1 billion + contract) with direct links to the Bush administration.
We should urge the General Assembly to convene in emergency session under the terms of the Uniting for Peace precedent at the UN. That allows the Assembly to take up issues ordinarily reserved for the Security Council - such as war in Iraq -- when the Council is paralyzed because of disagreements among the five veto-wielding permanent members. A General Assembly resolution (where there is not veto) could condemn the U.S. war (important for delegitimating future such wars), demand an immediate halt to the war, request an advisory opinion from the International Court of Justice on the legality of the war, or more."I'm not clear as to what a pre-emptive strike means," McCarthy said. "I don't think we should call it a war. It's kind of a police action."
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