Global Policy Forum

By Shane Darcy*

The passage of time does not in any way alter the illegal nature of the war that has been waged by the United States and Britain in Iraq. From the moment their combined forces commenced hostilities without the express authorisation of the United Nations Security Council, the illegality of the invasion was confirmed. The Charter of the United Nations, universally accepted as legally binding, is clear and unambiguous on this issue:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state" (Article 2(4)), and further, it is for the Security Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" which would allow for any possible limited resort to armed force (Article 39).

While the dubious justification of pre-emptive self-defence was voiced in the lead up to war, now that no weapons of mass destruction have been found such an excuse is being made no more. In fact, the legality of this war, which was for so long an issue of contention and fierce debate has been all but forgotten.

Without the Security Council's consent it is clear that the invasion of Iraq amounted to an unlawful act of aggression in breach of the U.N. Charter, a violation of the jus ad bellum. The recently created International Criminal Court has jurisdiction over the crime of aggression, although it will be another five years before the definition of the crime will be resolved. By that time, Britain, who is a party to the Rome Statute of the ICC, will be much less likely to engage in such conduct for fear of prosecution. The opposition of the U.S. to the court is both well-documented and well-countered.

Those who ordered this war will be subject to individual criminal responsibility for that crime before the ICC -had this been 2008 it is not inconceivable that Tony Blair could have found himself in the dock on a charge of aggression.

And what of the massive propaganda campaign in the lead up to the invasion? Trumped up charges of the possession of weapons of mass destruction (based on what Hans Blix later described as "fabricated evidence"), spurious claims of links to al-Qaeda and a sudden deep concern for Saddam Hussein's atrocious human records, which for so many years had been wilfully ignored. All this was to garner public support for an attack that was legally groundless.

The International Covenant on Civil and Political Rights, ratified by both the U.S. and Britain, pulls no punches on this count: "Any propaganda for war shall be prohibited by law" (Article 20). Despite their concerted effort, world opinion did not succumb to the illegal propaganda and public opposition to the war was vociferous.

The illegality of the war itself and the unlawful build-up to it, do not, as some quarters would have it, make war criminals of the U.S. military and other forces currently fighting in Iraq. The rules of international humanitarian law, the laws that govern the conduct of war, apply regardless of the lawfulness of the initial resort to armed force. So during the initial hostilities, according to the jus in bello, it was perfectly legal for U.S. and British soldiers to engage Iraqi soldiers and to target military objectives. But the deliberate "fog of war" continues: we receive daily updates on the number of U.S. or coalition forces killed, and occasional reports of attacks on non-Iraqi nationals, but it is almost impossible to find out the number of Iraqi civilians or soldiers who have been killed during the war and subsequent occupation.

Modern history has proven that it is non-combatants, mainly women and children, who account for the majority of casualties in contemporary conflicts. One information source tracking the number of civilian deaths since the commencement of hostilities estimates that at least seven thousand Iraqis have been killed (www.iraqibodycount.org)

The deliberate targeting of civilians is of course a war crime under the laws of armed conflict, so too is the failure to observe the principle of proportionality in attacking military or dual-use targets. The bombing of a Baghdad market which left 62 civilians dead is an incident which merits serious examination. Human Rights Watch has recently condemned the U.S. military for "failing to conduct proper investigations into civilian deaths resulting from the excessive or indiscriminate use of force in Baghdad".

There is a recent war crime which we can discuss with particular certainty, one which was televised and broadcast right around the world. The destruction of the Saddam Hussein statue in Baghdad by U.S. forces breached Article 53 of the Fourth Geneva Convention which forbids any destruction of State property "except where such destruction is rendered absolutely necessary by military operations". Toppling the statue may have served as useful propaganda or as a morale booster, but it cannot be conceived that its destruction served any military purpose. As the British are only too well aware, any serious violations of the laws of armed conflict on their part, are potential fodder for the Prosecutor of the International Criminal Court.

Now that hostilities have been declared over and occupation has begun, a whole new set of rules apply, many emanating from the Fourth Geneva Convention. As Occupying powers, the U.S. and its counterparts must take all measures "to restore, and ensure, as far as possible, public order and safety". Free movement of humanitarian aid, medical supplies and foodstuffs must be guaranteed. The Occupying power must ensure that a state of normalcy resumes quickly, that access to work and education is respected. The lives of civilians and their property must at all times be respected.

The occupation of Iraq has provoked fierce and at times indiscriminate resistance by groups of Iraqis and alleged "foreign terrorists". The past few months have seen bloody attacks on the offices of the International Committee of the Red Cross and the United Nations, the latter leading to the death, among others, of Sergio de Mello, the U.N. High Commissioner for Human Rights. Such violence is undoubtedly fuelled by the resentment at a "liberation" turned long-term occupation, one which has seen the Ministry of Oil escape the missile barrage unscathed, allowing for an near-immediate resumption of oil production.

An occupying power does not have a carte blanche in responding to such attacks; its security interests must be balanced against those of the civilian population, of whom it is now the legal guardian. As the situation seems to deteriorate, withdrawal of the occupying forces seems like the best solution. Power should be returned to the people of Iraq, and any further procrastination only strengthens the claim of this war's imperial nature.

From an Irish perspective, the argument against the use of Shannon airport as a refuelling base for U.S. planes has also become no less compelling with the passage of time. The Irish Government's refusal to withdraw facilities at Shannon from the U.S. military is a violation of Ireland's Constitution and makes this country a party to the illegal war that is currently underway. Over 100,000 people marched in Dublin in February 2003 in opposition to the war and the military presence in Shannon. Saturday 6th December is the first demonstration in many months against the ongoing use of Shannon airport by U.S troops – over 10,000 U.S. troops passed through in the month of September alone.

The aim is to shut down the airport for a day, to throw a civil disobedience spanner in the works of this war machine. Given the close ties of the U.S. and Ireland, this is a stance that will make many uncomfortable. Given the current situation on the ground in Iraq, discomfort should be the least of our worries.

*About the Author: Shane Darcy is a doctoral fellow at the Irish Centre for Human Rights, in the National University of Ireland, Galway and a founding member of Human Rights for Change. He is the author of "Israel's Punitive House Demolition Policy: Collective Punishment in violation of International Law" (Al-Haq, Ramallah, 2003).

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