Is An All Out Assault On Fallujah A War Crime?

Monday, 8 November 2004, 2:35 pm
Opinion: Alastair Thompson

Four years ago in December 1999 Grozny, the capital of the rebel Russian region of Chechnya, faced a very similar situation to that now faced by Fallujah. Ultimatums to surrender the city had expired several times and the Russian Government led by then interim Prime Minister Valdimir Putin had declared its intention to launch an all out offensive on the city to remove the rebels in the city once and for all.

And back then Putin had, if anything, a greater legal right to launch a final assault on Grozny than the Bush Administration presently has in Iraq.

Chechnya is legally a part of Russia, even if it would like not to be. Iraq is not (yet) a part of the USA.

But even so PM Putin and his Generals chose to to back down from their threats once informed of their legal responsibilities by several NGOs, a clutch of international officials, and a few thundering US newspaper editorials.

Legally the position is relatively clear. A military attack inside one's own country – in which the loss of large numbers of civilian life is a virtual certainty - is illegal.

Moreover in international criminal law the soldiers and officers involved in such an attack are personally liable for their actions, as are their commanders and their political bosses.

It seems likely it is for these reasons that today we are being told that "Marstial law" has been declared by the Iraqi interim Iraqi Prime Minister Iyad Allawi this morning. This is an attempt to provide the planned action with a legal cover.

More than that it is being implied clearly in recent news reports that it is Mr Allawi that is ordering this assault on Fallujah. Bolstering these claims are reports Iraqi troops will be used in the assault.

A clear signal being given is that former CIA employee Allawi is the intended fallguy should this come unstuck.

There are several implications of this:

Firstly, on the face of things we have a clear case of cowardice in the line of fire on the part of the newly re-elected U.S. Commander in Chief.

Only a few days after the election he is already attempting to palm off responsibility for his actions to subordinates. (That said Bush Administration acquired Congressional power to retrieve American military prisoners from European custody if necessary with the use of force is increasingly making sense. )

Secondly consideration of the legal hazard posed by the U.S. Military seems to have received a woeful level of both media and official attention.

At the time of the Grozny seige – in mid December 1999 - Putin was in a remarkably similar position to that Allawi is now. Like Allawi, Putin had not been elected to office. Like Allawi, Putin was appointed by a President (Yeltsin) to the role of Prime Minister out of relative obscurity. Like Putin, Allawi was strongly associated at the time with espionage (Putin was the boss of the FSB (aka KGB) and Allawi, as reported above, was a former CIA spy).

Unlike Putin though Allawi is not the effective power in Iraq at present. (Interestingly Putin effectively took over the role of President of Russia on December 31st 1999 – just days after the Grozny crisis.)

In fact in 2004 the situation is considerably more complicated legally - so far as the troops are concerned - than it was for troops operating under Putin's authority. And the remarks of senior officers such as those of the Marine Colonel who was reported widely this morning saying that the operation against Fallujah was intended to, "whipass", are simply pouring petrol on this dangerous legal situation.

According to the Washington Post on June 24 2004:

"Yesterday at the United Nations, the administration, citing opposition on the Security Council, withdrew a resolution that would have extended immunity for U.S. personnel in U.N.-approved peacekeeping missions from prosecution before the International Criminal Court.

"In Iraq, U.S. officials are already concerned about the potential fallout after June 30 among key players -- from Grand Ayatollah Ali Sistani, Iraq's most powerful religious cleric, to militant insurgents. But the Bush foreign policy team concluded that there are few alternatives until elections select a government that will be powerful enough to negotiate a formal treaty, U.S. officials said.

"The issue of immunity for U.S. troops is among the most contentious in the Islamic world, where it has galvanized public opinion against the United States in the past. A similar grant of immunity to U.S. troops in Iran during the Johnson administration in the 1960s led to the rise of Ayatollah Ruhollah Khomeini, who used the issue to charge that the shah had sold out the Iranian people. "Our honor has been trampled underfoot; the dignity of Iran has been destroyed," Khomeini said in a famous 1964 speech that led to his detention and then expulsion from Iran. The measure "reduced the Iranian people to a level lower than that of an American dog."

And so it seems likely - given the puppet like nature of Allawi's relationship with the US Military, and the fact that technically he has no legal command authority over U.S. Forces (as Putin had over Russian forces) - that the tissue of legality put in place to cover U.S. liability for war crimes in Fallujah will prove far too thin to provide any effective protection either for U.S. soldiers or their civilian masters.

Given time this attack could yet lead to a situation when Senior U.S. Cabinet members, and possibly the President himself, might find there are a number of International Criminal Court signatory states they are discretely advised not to visit.

*****

BACKGROUND LINK: Scoop Editorial: The Right Thing To Do - 12 December 1999, 2:21 pm

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Alastair Thompson

Scoop Publisher

Alastair Thompson is the co-founder of Scoop. He is of Scottish and Irish extraction and from Wellington, New Zealand. Alastair has 24 years experience in the media, at the Dominion, National Business Review, North & South magazine, Straight Furrow newspaper and online since 1997. He is the winner of several journalism awards for business and investigative work.

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