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After the War Issues and Analysis
Legalities of War
CBC News Online | March 27, 2003

»Was the bombing of Iraq TV legal?

On The Current Jim Brown talks to Shreesh Joyal of the University of Regina about the legal issues involved with urban warfare.
»Real Video runs 9:46

On The National The CBC's Carol Off looks at the law of war.
»Real Video runs 11:36

Producers: Alex Shprintsen, Darren Boisvert

The fierce Iraqi resistance at Basra has thrown Coalition ground troops off their planned course. To punch their way into the city may result in serious civilian casualties. But to sit the siege out could mean civilians die from lack of water and food.

This is a moral dilemma and it's also a legal one. Britain's tough Desert Rats, as they're called, operate under the codes of the Geneva Conventions. They have to do everything in their power to minimize civilian suffering. They are not just following the codes for the TV cameras. British soldiers are fighting in a brand new legal environment.

Law experts around the world have condemned the war in Iraq as illegal. But even if they could prove it, there's no place to take their case. They could go to the United Nations Security Council - but both the United States and Great Britain have vetoes there. But while it may be impossible to challenge the war as illegal, every act within the war is subjected to unprecedented scrutiny.

William Schabas
"You can argue whether a war is legal or illegal by going to the International Court of Justice," says William Schabas, a Canadian war crimes and international law expert who is director of the Irish Centre for Human Rights, University College Galway, Ireland.

The newly forged International Criminal Court - with a Canadian at its helm - is about to be tested. It cannot rule on whether the war itself is legal, but it can prosecute those responsible for crimes of war in Iraq.

"This is the new court that came into force last July and for which a Canadian Philippe Kirsch is now the president, the ICC would have jurisdiction over the British combatants and the Australian combatants and other combatants from countries that have ratified the statute of the ICC," Schabas says. "It doesn't apply to the Americans or the Iraqis because they haven't ratified the statute. It could be made to apply subsequently, by a declaration, by a Security Council resolution, by the U. S. or Iraqis accepting the jurisdiction of the court. Both are unlikely scenarios."

When he took office, President George W. Bush withdrew the U. S. support for the court that his predecessor Bill Clinton had given it. Republicans in Congress declared that they would tear the United Nations building apart brick by brick if an American ever appeared there.

Even as it rejected the court, the U. S. still seemed concerned about the potential for war crimes.

Before the invasion began, the Pentagon hinted it would hit Iraq with 3,000 bombs and missiles in the first 48 hours. It actually used a fraction of that number and claimed each one had a carefully chosen target.

The bombing of Baghdad
U.S. Defence Secretary Donald Rumsfeld told a briefing on March 21: "The weapons that are being used today have a degree of precision that no one ever dreamt of in a prior conflict -- they didn't exist. And it's not a handful of weapons; it's the overwhelming majority of the weapons that have that precision. The targeting capabilities and the care that goes into targeting to see that the precise targets are struck and that other targets are not struck is as impressive as anything anyone could see. The care that goes into it, the humanity that goes into it, to see that military targets are destroyed, to be sure, but that it's done in a way, and in a manner, and in a direction and with a weapon that is appropriate to that very particularized target."

Rumsfeld cites care and humanity but neglects to mention the law. Military commanders have to be able to prove - under international law - that civilian casualties or damage to their environment was in proportion to the military objective. The cost in human life has to be a price the military can justify was worth paying.

"You have to only attack marked military objectives and that the military objectives have to be attacked proportionately. Which means even if it 's a military objective, if there would be disproportionate collateral damage to civilians, you can't attack them either," Schabas says. "You certainly can't attack a civilian target; there are protected sites, archaeological sites, cultural sites, and hospitals and those sorts of things, and the lawyers are there to help the military people make those calls."

Both the United States and Britain have an army of lawyers who examine each target of this war and advise whether it is in proportion to civilian losses.

Jack Zimmerman was an artillery commander in Vietnam, and after earning a law degree, served as a military judge and as the deputy Chief Defense Counsel with the Marine Corps in Washington.

"When the targets in Baghdad were selected there is no doubt in my mind that there was a senior lawyer at some point who was consulted after the operational officer had decided that these particular targets A, B, C and D would be desirable from a military point of view. Then the whole area may have to be examined with an attorney there to make sure that, for example it is not co-located with a hospital."

"In other words, for them the lawyers are there to justify their actions after. They go ahead and do what they want and they bring in the lawyer and say, 'Talk your way out of this one for me.'"

"I think that when war crimes are at issue, you know you have some military types who look at it like mafia dons or something," Schabas says. "In other words, for them the lawyers are there to justify their actions after. They go ahead and do what they want and they bring in the lawyer and say, 'Talk your way out of this one for me.' You have on the other side people who are really governed by the law so they want to know what the lawyers say before they do it."

In 1999, NATO partners including Canada consulted an array of lawyers to examine each sortie and target as they bombed Yugoslavia. The lawyers were to determine our liability. There was no international criminal court at the time. There was something else.

Canadian Judge Louise Arbour warned NATO just before the attack began that they were bombing in her legal theatre. Yugoslavia was under its own ad hoc criminal court and Arbour was chief prosecutor. A group of lawyers tried to get Arbour and her successor to prosecute NATO countries - including Canada - for war crimes. Their petition was unsuccessful but it was a legal warning shot to the world about the reach and power of these new courts. Something British Prime Minister Tony Blair is all too conscious of.

"And if their leaders, and this is one of the threatening things for the leadership, both political and military, if the leaders don't supervise their troops, and their troops get out of control, then the leaders can be what amounts to negligent supervision," Schabas says. "And that goes right to the top. Goes to Tony, I don't know if the Queen gets involved in it, but certainly Tony Blair and his cabinet are affected by it as well as the rest of the military leadership. But it only affects British nationals."

World leaders are now all too aware of the new laws. Yugoslav president Slobodan Milosevic was the first world leader to be indicted while still in office. Augusto Pinochet, former leader of Chile, was picked up in Britain while getting medical care. Spain tried to prosecute him for war crimes. Belgium recently tried to get Israeli Prime Minister Ariel Sharon into court for his alleged role in the massacre of Palestinians. And former U.S. secretary of state Henry Kissinger is said to be wary of travelling to countries that pursue potential war crimes cases.

Whether the cases are mischievous or not, they have put a legal chill in the air for those who give the orders.

Sarah Sewall spent nine years as a foreign affairs advisor with the U.S. Senate and was deputy assistant secretary of defence. She now teaches at Harvard University.

"It's entirely possible that if your primary objective is to avoid seeing civilians shelled or shot, you could argue, one would be better off leaving Basra all together and not attempting to address the security situation there in an effort to provide humanitarian assistance. Obviously if they do that then the coalition forces will not have met their obligations under the Geneva Conventions as being an occupying power, to ensure the welfare of the civilian population. So here's a case in which the cost of engaging in conflict in order to both achieve security objectives and humanitarian objectives, that are possible only after the particular urban area has been secured, may lead you to cause more civilian deaths and suffering in the short term. It's virtually impossible to either prospectively, or even in the course of decision making, be certain you're doing the right thing."

Coalition commanders in Iraq are complaining that 50 per cent of their proposed targets are rejected by the senior command because they are too close to civilians - many of whom are used as human shields. Commanders complain that they have to contend with lawyers while the other side fights dirty.

"If the other side does it, if they fight dirty, then you're allowed to do things you wouldn't be able to do," Schabas says. "You can't commit reprisals against civilians and you can't commit them against prisoners of war. But you can probably commit them against other soldiers. So if they're fighting dirty, like wearing civilian clothes, or other military clothes, there's a certain extent where the Americans and British might be able to do the same, but the fact that the other side is breaking the rules isn't justification for doing this.

"The Iraqis are very clearly seeking to use the moral sensibilities of the U.S. military as a weapon in their efforts to defend Iraq."

"They have already 'loosened up' the rules of engagement, because they are, as the administration has taken great pains to explain, very frustrated by what should not have been surprising, but nonetheless is heinous action on the part of Iraqi defenders by using civilians as shields, by not wearing military uniforms, by basically taking refuge in protected sites," Sewall says. "The Iraqis are very clearly seeking to use the moral sensibilities of the U.S. military as a weapon in their efforts to defend Iraq."

Basra is just the first of many cities where coalition forces may be faced with street-to-street combat. Baghdad is expected to be particularly fierce.

Experts believe at some point the forces have to focus on their military objectives first.

"If there are actually still military targets in the area, I can assure you that the military commanders will eventually make a decision that they have to take those military targets and will try to minimize those civilian casualties," Zimmerman says, "If you face the possibility of wide-scale loss of human life, not from direct combat consequence, but, for example, from lack of water or lack of food, then, I believe, of course with the concurrence of the civilian leadership, the military commanders will make the decision to go in and wipe out any of that resistance that's holding up the provision of those necessary supplies. At some point that's going to happen."

"Putting the civilian population in a situation where they may die, is in many way no different than targeting civilians...or it's no different from excessive or disproportionate collateral damage to civilians. And if it's a war to liberate civilians, I mean, it's a good reason to sit there and wait them out," Schabas says.

The United States says Iraq is committing crimes of war in the way it has captured and possibly assassinated American prisoners of war.

George Bush has made it clear he plans to prosecute any captured Iraqi leadership. But he has not said what court would be in charge. Or under whose law they would be prosecuted. Afghan fighters were sent to Guantanamo Bay as unlawful combatants. But Bill Schabas thinks that everyone, both Iraqis and Coalition forces, should turn the war over to the new International Criminal Court.

Was the bombing of Iraq TV legal?

The story of the war that Iraqis – both in Canada and in Iraq – find on Iraqi TV is sharply different from the portrayal by CNN or Canadian channels.

Iraqi TV shows repeated speeches from Saddam Hussein, shots of Baghdad and, infamously, those pictures of American prisoners of war, as well as lingering shots of captured American soldiers' bloodied corpses.

That made Iraqi TV a legitimate military target, according to the U.S. military, although no evidence has been provided.

"Propaganda is not our concern. It's command and control aspects that run through the same type of station, that node, that caused us to attack it," U.S. Brigadier General Vincent Brooks told a briefing in Doha.

What he's saying is that the Iraqi military is using TV to communicate with its troops.

After the carnage of the Second World War, rules of war now specify that, generally, civilian targets are out of bounds. But is a TV station a civilian or a military target? It's one thing if broadcasts are being used to send coded messages to troops in the field. What if the station is just giving its own side, even if it's a very biased side?

Amnesty International goes as far as to say that bombing just to disrupt propaganda is a war crime.

"If the attack on the Iraqi TV station was carried out solely because of propaganda function, because they were relaying speeches by ministers, by President Saddam Hussein and the like, or because they're transmitting pretty unpleasant images that they shouldn't, such as those of the POWs and the like, then that would be an unlawful attack," says Claudio Cordone, legal director of Amnesty International in London:

As far as propaganda goes, there doesn't seem much doubt that Saddam Hussein is using Iraqi TV to give his own rendering of the course of the war.

"The Baath party, the general public, the clans, the tribes, Saddam's fedayeen and National Security guards, alongside the brave armed forces have done well," Saddam said. "So after the enemy has belittled your capability and came in by land as they have now, this attempt has been in our favour and will allow us to incur extensive damage to them."

Can this sort of propaganda, in and of itself, be a reason for bombing?

Robert Martinage, of the Centre for Strategic and Budgetary Assessment in Washington, says, "If it's being used for some military purpose, even arguably if it's just for propaganda, and to maintain and keep the regime in power, that in itself could be enough to justify it as a target. If, on top of that, there's reason to believe it's being used to send signals to regular military forces in the field, that really clinches the argument."

This isn't the first time this debate has raged. In 1999, when NATO forces hit the Serbian state radio and TV station in Belgrade, 16 civilians were killed and 16 more wounded.

The International Criminal Tribunal for the former Yugoslavia recommended against prosecuting NATO, although it noted that if the bombing had occurred for propaganda reasons alone, the legality might be questionable. But the case never went to trial, and no precedent was set.

There are those who feel now that, simply because of what Iraqi TV has shown, there is reason enough to take it out, if civilians can be spared as much as possible.

Errol Mendes, an Ottawa human rights and international law specialist says, "If the television stations in Iraq are used by Saddam Hussein to violate the Geneva Conventions, there may be some legitimacy in dealing with that type of use of broadcast facilities. It is utterly reprehensible to use state television to show dead bodies sprawled out. And in some cases it looks as though they have been executed."

Of course Western media are showing Iraqi bodies, although not so explicitly. While the debate over legality goes on, many simply want to know what's going on back home.

"I think they targeted the TV station in order not to get the real picture of what's going on inside Iraq," says Iraqi Canadian Maytham Ibrahim. "I think the atrocity, the killing, is huge, and that's why they don't want the people to see it from both sides."

Public opinion demands that the Coalition's claims of the justness and legitimacy of this war be verified, which means that every action will be scrutinized. The bombing of Iraqi TV may be subjected to the tests for fair play and the rule of law after the war is over.

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Neil MacDonald reports for The National
»Real Video runs 2:59



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Coalition claims face the test of time
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