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May
17, 2003
Francis Boyle on War Crimes
Should
the Belgian Law Suit Accusing the US of War Crimes in Iraq be
Taken Seriously
CNN International
ZAIN VERJEE, CNN ANCHOR (voice-over):
A lawsuit filed in a Belgian court accuses the commander of U.S.
forces in Iraq of war crimes. The lawyer behind it says he represents
Iraqis who were victims of U.S. cluster bombs and U.S. troops
who fired on ambulances.
UNIDENTIFIED MALE: There was a pattern
of targeting civilians deliberately.
VERJEE: Critics call the legal action
a publicity stunt. Belgian authorities have condemned it and
the U.S. military says it could effect future meetings of NATO.
UNIDENTIFIED MALE: Obviously, it's looked
upon by the U.S. government as a very, very serious situation.
It's just going to have to be dealt with at that level. I have
no further comment on it, but it is serious and it clearly could
have a huge impact on where we gather.
VERJEE: On this edition of Q&A, a
publicity stunt or serious legal action?
(END VIDEO CLIP)
Hello and welcome to Q&A.
Legal action against the commander of
U.S. forces in Iraq. It's the latest in a string of lawsuits
to come out of Belgium that accuse prominent leaders of crimes.
Should this one be taken seriously?
On the line with us, from Brussels, is
the lawyer behind the suit, Jan Fermon.
Mr. Fermon, is this a case that we should
take seriously, or is this just a publicity stunt?
JAN FERMON, BELGIAN LAWYER: Well, I don't
know for whom it would be publicity. Of course, it's not a publicity
stunt.
Everyone -- each and every one of my
clients has been very seriously injured or lost a member of his
family by what has to be considered as unlawful military action.
I think any country, and government who
is confronted with this kind of allegation should take it serious
and at least should allow an independent inquiry to this kind
of problem.
VERJEE: What are the legal grounds for
a case like this?
FERMON: The first legal grounds are the
Geneva Conventions, which very clearly indicate that belligerents
in an armed conflict, an international armed conflict, should
do whatever is necessary and whatever is possible to distinguish
combatants and civilians. And in everyone of the incidents we
are citing in the complaint, it's very clear that U.S. troops
did not act in such a way in these incidents.
VERJEE: What are those specific incidents
that you're citing?
FERMON: Well, we have three cases, three
incidents related to U.S. troops firing at ambulances in Baghdad.
We have several cases of U.S. troops firing at civilians, clearly
identifiable as such, and at moments and places where there was
no military threat to the U.S. troops.
There is, of course, the action taken
by the U.S. Army against the building of the Al Jazeera television
network in Baghdad, where one journalist was killed. There is
also the use of cluster bombs and cluster ammunition in areas
where inevitably civilians had to be injured and hit by these
cluster bombs that were -- amongst the other incidents, three
children were very seriously injured because they picked up unexploded
sub-munition (ph) of these cluster bombs.
VERJEE: There's been strong opposition
to you doing this, from the United States, also from Belgian
authorities. The Foreign Minister Louis Michel said this was
an abuse of law.
FERMON: Yes, well, that's very interesting,
because he made that comment at the moment that he was unable
to read the complain, because he made that comment a few moments
after the complaint was filed to the national prosecutor, and
the text of the complaint was not made public. So that's a very
strange way for a responsible politician to act, I think, to
give comment on a file and a document which you even don't know.
So I don't take that comment of the minister
very serious. I see that in the afternoon yesterday, maybe when
he was able to read the document, his position was slightly different,
and he said, well, we will have the --we will have the prosecutor
-- we will let him do his work.
VERJEE: Jan Fermon, thank you for talking
to us -- appreciate that.
Joining us now is Stewart Baker, a lawyer
and a former general counsel of the U.S. National Security Agency.
Mr. Baker, what do you think about this?
Is something like this credible? Does it have serious grounds
for success?
STEWART BAKER, LAWYER: Well, I think
it reminds me of the debate over whether the United States was
acting unilaterally or in a paranoid fashion when it opposed
the International Criminal Court.
What the president said at the time was,
there will be politically motivated charges of war crimes brought
against the U.S. military. This kind of filing is exactly the
sort of politically motivated charge of war crimes that we would
expect to see in the criminal tribunal or in the courts of other
countries that opposed the war in Iraq.
It's shocking that this claim would be
brought in some foreign court that has no relationship whatsoever
to either the war in Iraq or the American military.
VERJEE: Do you think that the Belgian
courts will take this case?
BAKER: Prior to the amendments that came
earlier this year, I think there was a very good chance. Now
there's a reasonable prospect that the case will be rejected.
VERJEE: If they take the case, what should
Tommy Franks do, hire a lawyer? Defend himself?
BAKER: I think the United States should
make sure it has offered whatever appropriate defense should
be offered. At this stage, the case can't go forward until the
prosecutor has reviewed it and only if the prosecutor is prepared
to move the case forward will it go anywhere.
This is a publicity stunt by somebody
who's running for office in an election that's going to occur
on Sunday. He's running with an Arab extremist who has been associated
with days of rioting in Antwerp. It's obvious that he's got a
political agenda and that he's hoping to file this case before
and it can be rejected, in the hopes that it will help him in
the election.
VERJEE: What if he's able to come out
with the evidence that proves what he says?
BAKER: If he thinks there is a basis
for a war crimes investigation, he should supply it to the military
authorities of the United States, to prosecutors in the United
States. The United States has laws against war crimes and a reasonably
good record of prosecuting members of the American military who
commit them.
I think it's highly unlikely that war
crimes were committed in the course of this war. There's never
been a war that's been fought with more concern for civilian
casualties than this one, at least on the U.S. side.
VERJEE: How do you think he's likely
to build the case?
BAKER: I, frankly, I think he's done
what he hoped to do by filing it, and I don't expect him to pursue
it very far now that he's filed it and gotten the publicity.
VERJEE: There's a theory that's called
a theory of command responsibility, meaning that any political
or military leader can be legally culpable for anything that
they fail to do, if they fail to do everything possible to prevent
isolated acts committed by soldiers during a war. Do you think
that there is no command responsibility at all by General Tommy
Franks?
BAKER: Well, he's the commander. He has
command responsibility for his troops. You would have to find
a war crime by the troops before you could begin to ask the question
whether Tommy Franks could have done anything about it, but I
think it's highly unlikely you're going to find war crimes here.
VERJEE: Francis Boyle joins our conversation
now. He's with the University of Illinois. He's an international
law professor.
Francis Boyle, what do you make of this
case?
FRANCIS BOYLE, LAWYER: Well, first I
want to make it clear, I did attempt to get a copy of the complaint
and I have not been able to and I have not reviewed it.
But if in fact it is substantiated by
credible evidence, it seems to me the Pentagon has an obligation
under the laws of war to take it seriously and look into it.
Of the charges we have heard, certainly
the use of cluster bombs in Baghdad has already been condemned
by Human Rights Watch and the use of cluster bombs in a civilian
area, in a city, certainly could raise to the level of war crimes.
I'm not saying General Franks ordered the use of cluster bombs,
but their fact is undeniable.
I think the Pentagon needs to determine
who gave the order to use cluster bombs in Baghdad.
VERJEE: Stewart Baker is saying that
this shouldn't be taken so seriously, that it's really a self-interested
motive by one lawyer, who's standing for an election, that ha
something to gain out of it. What do you think about that?
BOYLE: Well, again, Human Rights Watch
has condemned the use of cluster bombs in Baghdad while they
were used. So, certainly, I do not know Mr. Fermon one way or
the other or what motivates him.
I do know he has live clients right now,
and having been in that situation myself, where you have live
clients who have suffered, obviously it's a much more urgent
situation than Mr. Baker or I might feel under the circumstances.
But, again, Human Rights Watch has condemned
the use of cluster bombs in Baghdad. I think the Pentagon needs
to determine who gave the order to use the cluster bombs.
The second point is the question of command
responsibility. U.S. Army Field Manual 27-10, on the laws of
armed conflict, says that General Franks, quote, "shall
take all measures in his power to restore and insure as far as
possible public order and safety," unquote, in Iraq.
For some reason, General Franks failed
to give an order to secure Baghdad after it fell. I really do
not know why he failed to do this.
Clearly, the obligation in the Field
Manual and the Hague regulations are obvious and well-known to
any commanding officer in the United States Army, that they have
an obligation as the belligerent occupant, to preserve law and
order. That order was not given. There was widespread looting
and plundering in Iraq. People did suffer.
Again, I think we do need an investigation
as to why that order was not given.
(CROSSTALK)
BOYLE: I'm sorry, go ahead.
VERJEE: I just want to get Stewart Baker
to respond to some of what you were saying there -- Stewart.
BAKER: I guess I'd have to say that I
think it's preposterous.
Professor Boyle is suggesting that there's
an obligation under the laws of war to fight a perfect war and
never to have a mistake or always to anticipate anything that
could go wrong and to take action to prevent it.
That's really an argument that there
should never be a war, that the United States is always going
to be guilty of war crimes if it gets into a war, and that notion
that you can have a perfect war is preposterous. The laws of
war do not require that you prevent every possible harm that
could occur in the course of armed conflict.
VERJEE: Francis Boyle, will this case
succeed?
BOYLE: Well, that is not the point I
made. It is a standard boilerplate language in every United States
war plan, including the war plan for Iraq, that U.S. armed forces
are governed at all times by the Hague regulations of 1907 and
the four Geneva Conventions of 1949. Even U.S. Army Field Manual
27-10 says this quite clearly. No one expects a war to be perfect,
but the laws of war must be adhered to.
VERJEE: OK. Francis Boyle, Stewart Baker,
many thanks.
BAKER: Thanks.
VERJEE: That's Q&A for now. We'll
be back with more news in just a moment.
Francis A. Boyle,
Professor of Law, University of Illinois, is author of Foundations
of World Order, Duke University Press, The
Criminality of Nuclear Deterrence, and Palestine,
Palestinians and International Law, by Clarity Press.
He can be reached at: FBOYLE@LAW.UIUC.EDU
Yesterday's
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