http://writ.news.findlaw.com/commentary/20030404_fletcher.html War Crimes Proceedings In Iraq? The Bush Administration's Dilemma By GEORGE FLETCHER
Friday, Apr. 04, 2003
Both before and after the initial strike against Iraq, President Bush and Secretary of Defense Rumsfeld repeatedly threatened Saddam Hussein and the senior Iraqi leadership with prosecution for war crimes - based on their conduct over the last two decades. The potential charges include killing civilians, torture, and using chemical weapons in the war against Iran.
The big question mark, however, is how will the Bush Administration find a court to hear these charges?
Why the ICC and the Federal Courts Are Off Limits
The U.S. cannot go the newly established International Criminal Court (ICC) for two reasons. First, the United States is not a signatory to the document that established the court. Second, the alleged war crimes occurred on Iraqi soil.
For non-signatory countries, ICC prosecutions require some connection either to the place of the crime or to the nationality of the perpetrators. Ironically, then, Iraq could, in theory, invoke the ICC to charge the United States for war crimes committed on their territory in the current campaign - but the U.S. could not invoke the ICC to charge Iraq with war crimes committed in the past on Iraq's own territory.
What if the U.S. tried to bring the prosecutions in its own federal courts? Again, it could not. Even if we assume that the Iraqi have committed war crimes in breach of the Geneva Conventions, the jurisdiction of the federal courts for these crimes is limited to offenses committed against Americans, or by Americans against foreigners. But the U.S. would be asking the federal courts to address, instead, crimes committed by Iraq against either its own nationals or the nationals of neighboring states.
What About An Ad Hoc International Tribunal?
Then should the U.S. try to invoke an ad hoc international tribunal under the auspices of the United Nations - similar to the International Criminal Tribunals for Yugoslavia and Rwanda? Unlike with the ICC and the federal courts, there would be no jurisdictional problem. But there might be a diplomatic one.
The United States broke faith with the Security Council by initiating the war over the objections of France, Germany, Russia, and China. In light of these events, gaining the U.N.'s cooperation for post-war criminal proceeding would require great diplomatic skill.
I would favor this gesture of American faith in the United Nations. But it appears that the Bush Administration has other plans.
The Administration's Apparent Post-War Plan: Military Tribunals
On February 28, with no fanfare and no media attention, the Department of Defense posted a 6000-word document on its website entitled: "Military Commission Instruction" ("the Instruction.") The Instruction outlines the most likely course of action for the U.S. with respect to postwar war crimes prosecutions of Iraqis. Its author is the General Counsel of the Department of Defense. Its explicit basis is the President's executive order of November 13, 2001 regarding military tribunals ("the Executive Order")
The Instruction's subject matter is described as "Crimes and Elements for Trials by Military Commission." The document defines twenty-four crimes that the government could prosecute against suspected foreign terrorists. The list of crimes is revealing, for it demonstrates that the Administration is contemplating the use of military tribunals in occupied Iraq to prosecute the Iraqi leadership for war crimes.
Most of the crimes described in the Instruction come straight from the Geneva Conventions, and run parallel to the war crimes defined in the Rome Statute established the International Criminal Court. These include the crimes of killing civilians, taking hostages, using poisonous weapons, and killing or injuring treacherously.
But, significantly, the list includes some new offenses - crimes not now recognized under American law. For example, the term "terrorism" is used, much like the phrase "organized crime," to refer to a category of offenses, rather than a single offense. No crime by the name of "terrorism" is to be found in either the Rome Statute or U.S. federal law.
The New Crime of "Terrorism," As Defined by the Instruction
The crime of "terrorism," as defined by the Instruction, has some unusual characteristics. Most of these conform to the usual federal definition of terrorism, which stresses that the perpetrator must have a political purpose of influencing a government by "intimidation or coercion." In addition, however, the terrorism must be associated with an "armed conflict" and it must be committed by persons who do not enjoy "combat immunity."
A perfect example of conduct targeted by this latter provision is the recent suicide bombing committed by Iraqi personnel wearing civilian clothes, and resulting in the death of four American soldiers.
Critiquing the Instruction: At Least It Avoids "Unlawful Combatant" Language
The debate that will occur when the Administration actually announces its intention to use tribunals is predictable. Those who supported military tribunals when the President issued his executive order in November 2001, will still support them. Those who opposed them then, will still oppose them now.
Opponents will have good reason for continuing their opposition: The tribunals infringe basic guarantees of due process. They permit secret hearings; the death penalty can be imposed by the unanimous vote of three military judges; there is no appeal to civilian courts. The standards of fairness fall far short not only of constitutional guarantees but of the simplified procedures allowed in general courts martial.
Nevertheless, we should acknowledge some positive points in the Instruction. It attempts to reach precision in the definition of offenses. It also employs the concepts of "combat immunity" and "belligerent immunity" - thus avoiding the confusing phrase "unlawful combatant." Understanding requires the significance of this shift in vocabulary requires a brief explanation.
The point of the new definition of "belligerent immunity" is to make it clear that fighters who qualify as combatants under Geneva Convention III - those who wear uniforms, carry their arms openly, and fight under a chain of command - are not going to be considered terrorists. They will not be subject to prosecution unless they exceed the privileges of warfare by killing civilians or committing some other well-defined war crime. Otherwise, they enjoy immunity and cannot be prosecuted for killing soldiers and destroying the instruments of warfare belonging to the enemy.
The unfortunate expression "unlawful combatant" used in the leading U.S. Supreme Court case of Ex parte Quirin has fostered misconceptions about how the punishability of combatants in civilian clothes. For instance, it has led many otherwise thoughtful commentators to think that merely crossing enemy lines without wearing a uniform should be considered a punishable war crime.
According to the Instruction, however, no unlawful combatant commits a crime merely by failing to qualify for immunity under the Geneva Convention. The relevant crime, these new regulations make clear, is not failing to enjoy combat immunity in itself. Rather, the crime occurs when someone who does not qualify as a combatant under international law commits a homicidal or destructive act against military personnel.
Under these Definitions, Can Military Tribunals Be Used Against the Iraqi Leadership?
By making this point clear, however, the Instruction reveals a fundamental conceptual problem in the potential use of military tribunals against the Iraqi leadership. As the jurisdiction of these tribunals was defined in the Executive Order, the only persons subject to military tribunals should be members of Al Qaeda and suspected terrorists. By seeking to prosecute war crimes in military tribunals, the Administration comes closely to merging the distinct categories of terrorists and war criminals.
In the minds of most people, there is a clear difference between terrorists and military personnel who cross the line of permissible warfare and commit war crimes. The American soldiers who committed war crimes at My Lai were not terrorists. They were combatants who went too far on a single occasion. Timothy McVeigh was considered a terrorist, but his blowing up the McMurrah Federal Building was not a war crime. This distinction between war crimes and terrorism is intuitively obvious even though it is hard to pin down in a tight definition.
It is equally clear that the war against Iraq is not a war against terrorists. It is a war against a nation that has fielded an army that has fought, as do all armies, to defend national interests. As for the leaders and their past atrocities against foreigners as well as their own citizens, these crimes do not convert Saddam and his ruling clique into terrorists.
To threaten these soldiers and their political leaders with prosecution for war crimes in a military tribunal, however, is to treat them as though they were terrorists on a par with the 9/11 hijackers. We must engage in this mixing of categories in order to hear war crime in tribunals that command jurisdiction only over terrorists. To engage in this conceptual confusion is to get trapped in our own propaganda linking Saddam Hussein with Al Qaeda.
A United Nations War Crimes Tribunal Is the Best Solution
Whatever one thinks about the war in Iraq, there is little to be said for using military tribunals originally designed for terrorists, against the Iraqi leadership and Iraqi prisoners of war suspected of war crimes.
Instead, it would be far better to realize that in a post-war occupation, we will need the cooperation of the United Nations. The place to begin would be to return to the Security Council and seek multilateral support for a special war crimes tribunal - one modeled after the International Criminal Tribunal for Yugoslavia.
George P. Fletcher is Cardozo Professor of Jurisprudence at Columbia University and the author of Romantics at War: Glory and Guilt in the Age of Terrorism.