The Right Honourable Geoffrey Hoon MP
The Secretary of State for Defence
Ministry Of Defence
London SW1A 2HB
2 January 2003
PROPOSED USE OF FORCE AGAINST IRAQ - ISSUES OF INTERNATIONAL HUMANITARIAN LAW AND "WAR CRIMES"
We are acting for Mark Thomas, The Campaign for Nuclear Disarmament (CND) and other non-governmental organisations (NGOs). We are asked to write to you to put you on notice as to the consequences of any decisions by the UK Government to use further force against Iraq involving methods of attack or weapon systems that breach rules of international humanitarian law (IHL). Specifically we make clear that if the UK acts so as to bring any breaches of IHL within the definition of "war crimes" we, and other, will take steps to ensure that you, and other leaders of the UK Government, are held accountable within international criminal law.
The purpose of this letter is to put the UK Government on notice as to the position if requirements of IHL are breached in the forthcoming war. From the outset of the use of force various NGOs working in the field will be collecting evidence as to whether the use of force against Iraq adheres to the fundamental requirements of the international humanitarian law, in particular to the principles of distinction, military necessity and proportionality. In analysing this evidence, our clients will seek to determine whether the force used provides evidence of crimes against humanity and war crimes in violation of international criminal law, specifically, Articles 7 and 8 of the International Criminal Court Statute (the ICC Statute) and sections 50 and 51 and schedule 8 of the International Criminal Court Act 2001. In due course, either before the end of the use of force or shortly after its end, NGOs' written and oral evidence will be presented to a tribunal. The tribunal will be organised by the Permanent People's Tribunal (PPT) based in Italy. Its panel will consist of eminent international lawyers and others experienced in this field. The panel will hear evidence from various NGOs and others as to whether requirements of IHL have been breached. If the panel finds that there have been breaches it will prepare a report giving its judgement. That judgement, and the supporting evidence of NGOs and others, will then be presented to the Prosecutor of the International Criminal Court (ICC). The Prosecutor will be urged to initiate investigations on his own initiative, on the basis of this report and evidence as he is empowered to do under Article 15 of the ICC Statute. Thereafter, those who have initiated this process including various NGOs will work with the Prosecutor as he analyses the seriousness of the information received and makes a decision as to whether or not there is a reasonable basis to proceed with an investigation (Articles 15 (2) and (3) of the ICC Statute). If there is, in the opinion of the tribunal, and the various NGOs a reasonable basis to proceed with an investigation we shall urge that this investigation proceed against yourself and other senior members of the UK Government responsible, at the highest level, for decisions as to how force is used against Iraq and its civilian population. It is our position that pursuant to Article 25 of the ICC Statute,
you and other senior members of the UK Government will be responsible for any breaches of Articles 7 and 8 of the ICC Statute (defining "crimes against humanity" and "war crimes") notwithstanding the culpability of senior members of the armed forces. Thus we urge that you proceed in any forthcoming war with Iraq on the basis that if there are breaches by the UK Government of IHL you will at least be investigated by the Prosecutor and could likely face prosecution. Accordingly you should ensure that the use of force against Iraq complies with IHL and the principles of distinction, necessity, proportionality and humanity.
"Crime of Agression" and "Crimes against Peace"
We wish to raise with you at the outset of this letter our clients' concerns that the UK Government (and its leaders) are about to use force in circumstances where a "crime of aggression" is being committed and, thus, a "crime against peace." Our reasoning on this is as follows:
1.. You will be aware that the crime of aggression is included under Article 5 of the ICC Statute as one of the crimes along with genocide, crimes against humanity and war crimes, over which the ICC has jurisdiction. The ICC may not yet exercise jurisdiction over this crime, however, and will not be able to do so until an agreed definition of the crime is adopted in accordance with Articles 121 and 123 of the ICC Statute. There is nonetheless a broad consensus that the crime of aggression is a crime under international law. 2.. Crimes against peace were punishable under Principle 6 of the Nuremberg Principles. Principle 6 defines crimes against peace as 1.. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; 2.. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). 1.. The International Military Tribunal at Nuremberg described aggression as the 'supreme international crime.' 2.. The outlawing of aggressive war is reflected in Articles 1 and 2 of the United Nations Charter, and in particular in the prohibition on the use of force at Article 2(4). Article 1 (1) of the United Nations Charter states that the Purposes of the United Nations are (amongst other things) "To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace."
Article 2 states
"..(3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
(4) 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, or in any other manner inconsistent with the Purposes of the United Nations."
3.. On 9 September 2002 the Assembly of States Parties to the ICC Statute adopted a resolution proposed by the Preparatory Commission for the International Criminal Court in which it stated that it was desirous of continuing and completing the work on the crime of aggression and to that end established a special Working Group on the crime of aggression. The discussion paper which was attached to the Preparatory Commission's Draft Resolution suggested the following basic definition of the crime: "For the purpose of the present Statute, a person commits a "crime of aggression" when, being in a position effectively to exercise control over or to direct the political or military action of a State, that person intentionally and knowingly orders or participates actively in the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a flagrant violation of the Charter of the United Nations."
4.. Paragraph 2 of the discussion paper suggested that act of aggression be defined as an act referred to in United Nations General Assembly resolution 3314 (XXIX) ("Resolution 3314") of 14 December 1974. Article 1 of Resolution 3314 states:
"Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition."
Article 3 provides as follows:
"Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
5.. It is the widely held view of legal experts in the field that in the absence of the inherent right arising to take action in self-defence under Article 51 of the UN Charter, any military action taken by the United Kingdom against Iraq without a United Nations Security Council Resolution expressly authorising such force would be in clear violation of the UN Charter and international law. Background to our clients' concerns
Our clients' concerns are that, based on evidence of the use of armed force in the Gulf War in 1991, in Kosovo and in Afghanistan the US and the UK have clearly breached fundamental requirements of IHL in the past. Thus there is every reason to believe that these requirements will be breached again in any forthcoming war in Iraq. You are better placed than ourselves or the various NGOs that we represent to know the detail of the impacts of the use of force in the Gulf, Kosovo and, more recently, Afghanistan. You will, of course, appreciate that these three recent examples all pre-date July 2002 when the ICC came into being and that its jurisdiction over these matters requires now a fundamentally different approach by the UK. However, our clients' concerns include the following:
ILLEGITIMATE MEANS AND METHODS OF ATTACK
a.. The unannounced bombing of Amiraya Civilian Air Raid Shelter in Baghdad killing between 600 and 1000 civilians on February 13 1991 when it was known by coalition forces that the facility had been previously used as a civil-defence shelter;
b.. The deliberate killing of thousands of civilians especially Palestinians, killed as they tried to escape from Kuwait City after February 26 1991;
c.. What appears to have been the deliberate massacre, without quarter, of tens of thousands of Iraqi soldiers and civilians on the road to Basra on February 26 and 27, 1991;
d.. The bombing of cities which served as major military communications and supply centres, for example Basra, Ramadi, Diwaniya and Mosul;
e.. The fact that 93% of the bombs used were free-falling bombs and that most appeared to have been dropped from higher than 30,000 feet;
f.. The fact that only 7,000 tons were guided bombs leaving 82,000 tons of bombs used that were non-precision guided;
g.. The use by the US of massive amounts of fire bombs;
h.. The use by the US of fuel air explosives;
i.. The use by the US of BLU-82s (otherwise known as "daisy cutters");
j.. The use of cluster bombs and anti-personnel bombs;
a.. The use of the weapon system CBU-75 carrying 1800 bomblets called Sadeyes (each bomblet contains 600 razor sharp steel fragments lethal up to 40 feet).
a.. The declaration of Basra as a "free fire zone";
b.. The use of carpet bombing techniques;
a.. The targeting of chemical plants;
b.. The use of at least 320 tons of depleted uranium ammunition in air and tank rounds and sniper bullets.
ATTACKS ON OBJECTS DEDICATED TO CIVILIAN PURPOSES
a.. The destruction of civilian targets such as the Iraqi Ministries of Justice and Municipal Affairs;
a.. The destruction of between 10 to 20,000 homes, apartments, and other dwellings;
b.. The destruction of commercial centres with shops, retail stores, offices, hotels, restaurants and other public accommodation destroyed;
c.. The destruction or damage of scores of schools, hospitals, mosques and churches;
d.. The targeting of isolated Bedouin tents in Western Iraq leaving 46 dead civilians, including infants and children;
e.. The bombing of the "baby-milk" factory in Abu Gharaib on January 22 1991
DESTRUCTION OF IRAQI INFRASTRUCTURE
a.. The deliberate disproportionate targeting and destruction of Iraq's infrastructure towards the end of the war leaving it in a pre-industrial condition. Among the facilities targeted and destroyed were:
a.. Electricity power generation, relay and transmission
a.. Water treatment, pumping and distribution systems and reservoirs
a.. Telephone and radio exchanges, relay stations, towers and transmission facilities
a.. Food processing, storage and distribution facilities and markets, infant milk formula and beverage plants, animal vaccination facilities and irrigation sites
a.. Railroad transportation facilities, bus depots, bridges, highway overpasses, highways, highway repair stations, trains, buses and other public transportation vehicles, commercial and private vehicles
a.. Oil wells and pumps, pipelines, refineries, oil storage tanks, gasoline filling stations and fuel delivery tanks, cars and trucks, and kerosene storage tanks
a.. Sewage treatment and disposal systems
a.. Factories engaged in civilian production, for example, textile and automobile assembly
a.. Historical markers and ancient sites
a.. As a result of the above the deaths of tens of thousands of civilians from dehydration, dysentery and diseases caused by impure water, inability to obtain effective medical assistance and debilitation from hunger, shock, cold and stress;
CIVILIAN LOSSES IN AFGHANISTAN
a.. Disproportionate and indiscriminate bombardment of Afghanistan resulting in at least 3,767 civilians being killed between October 7 and December 6, 2001, in particular:
a.. Repeated bombing of the farming village of 450 persons of Karam, killing at least 160 civilians on October 11;
b.. Falling of a cluster bomb on the military hospital and mosque in Herat, killing 100 on October 21;
c.. Carpet-bombing by B-52's of a frontline village near Khanabad, killing at least 150 civilians on November 18.
CIVILIAN LOSSES DURING NATO AIR STRIKES IN KOSOVO
a.. At least 489 civilians killed in the ninety separate incidents in Operation Allied Force, almost half of which resulted from attacks during daylight hours, when civilians could have been expected to be on the roads and bridges or in public buildings which may have been targeted;
b.. The most dramatic losses of civilian life came from attacks on fleeing or travelling refugees including repeated attacks on refugees on the Djakovica-Decane road, near Korisa and Savine Vode;
c.. Bombing of Dubrava prison on 21 May 1998;
d.. Attacks on populated urban areas in Belgrade, Nis and Vranje
e.. Use of cluster bombs, resulting in deaths of some 90 to 150 civilians and Britain's refusal to discontinue their use even after NATO confirmation of responsibility for the attack on Nis airfield in southern Serbia on May 7, 1998 and subsequent prohibition of cluster bomb use imposed on the US forces by the White House.
f.. Failure to provide clear advance warning of the attacks on state Serb Radio and Television headquarters in Belgrade on April 23, 1998 resulting in civilian deaths
The information that leads us to these conclusion includes:
a.. Personal accounts from representatives of NGOs.
b.. The report of the Commission of Inquiry for the International War Crimes Tribunal ("War Crimes. A report on United States war crimes against Iraq to the Commission of Inquiry for the International War Crimes Tribunal" by Ramsey Clark and others, available at www.deoxy.org/wc/wc-index.htm )
c.. Needless Deaths in the Gulf War, Human Rights Watch, available at www.hrw.org/reports/1991/gulfwar/
d.. The Secret behind the Sanctions: how the US intentionally destroyed Iraq's water supply, Thomas Nagy, available at www.progressive.org/0801icsue/nagy0901.html
e.. Joint WHO/UNICEF team report: A visit to Iraq (New York: United Nations, 1991). A report to the Secretary General dated March 20 1991 by representatives of the UN Secretariat, UNICEF, UNDP, UNDRO, UNHCR, FAO and WHO.
f.. Amnesty International annual report 1991, pp122-124.
g.. Counting the Human Cost of the Gulf War, Medical Education Trust background paper, London, July 1991
h.. US Bombing: The myth of surgical bombing in the Gulf War, Paul Walker, evidence to the Commission of Inquiry for the International War Crimes Tribunal, May 11 1991, available at www.deoxy.org/wc/wc-myth.htm
i.. International Law and War Crimes, Michael Ratner, evidence to the Commission of Inquiry for the International War Crimes Tribunal, May 11 1991, available at www.deoxy.org/wc-ilaw.htm
j.. Highway to Hell, Michael Kelly, New Republic, April 1991: 12
k.. The Gulf War: Not so Clean, George Lopez, Bulletin of the Atomic Scientists, September 1991, vol 47, no.7, available at www.thebulletin.org/issues/1991/s91/s91lopez.html
l.. Iraqis Reduced to a "Rabble," General Asserts, R W Apple, JR, New York Times, March 1991, p1
m.. Report to the Secretary General on Humanitarian Needs in Kuwait and Iraq in the Immediate Post-Crisis Environment, Martti Ahtisaari, United Nations Report No. 5122366, March 20, 1991
n.. Testimony of Joyce Chediac, a Lebanese-American journalist, report presented to the Commission of Inquiry for the International War Crimes Tribunal, May 11, 1991 available at www.deoxy.org/wc/wc-death.htm
o.. Various reports from the Washington Post and the New York Times and agency reports from Reuters and Agence France Presse available at www.globalsecurity.org
p.. Collateral Damage: the health and environmental costs of war in Iraq, November 2002, available at www.medact.org
q.. Iraq: Consequences of a war, Professor Paul Rogers, Oxford Research Group, October 2002.
r.. War Plan Iraq, Milan Rai, ARROW Publications, 2002
s.. War on Iraq, Scott Ritter, Profile Books, 2002
t.. Targeting Iraq: Sanctions and Bombing in US Policy, Geoff Simons, Saqi Books, 2002
u.. Material from Defence publications particularly Defense News, Jane's Defence Weekly, Aviation Week and Space Technology.
v.. Depleted Uranium Weapons: Lessons from the 1991 Gulf War, Dan Fahey, Laka Foundation, May 1999
w.. A Dossier on Civilian Victims of United States' Aerial Bombing of Afghanistan: A Comprehensive Accounting, Professor Marc W. Herold, December 2001, available at www.ratical.org/ratville/CAH/civilDeaths.html
x.. Medical ethics and human rights violations: the Iraqi occupation of Kuwait and its aftermath, Troyan Brennan and Robert Kirschner, Annals of Internal Medicine, 117:78-82 (1992)
y.. Civilian Deaths in the NATO Air Campaign - The crisis in Kosovo, report by the Human Rights Watch, available at www.hrw.org/reports/2000/nato/Natbm200-01.htm
We should make clear that our clients' main concerns are the civilian casualties caused by indiscriminate and/or disproportionate attacks. Further our clients are extremely concerned about the consequent civilian casualties caused by attacks on the economic infrastructure of Iraq as happened in the 1991 Gulf War.
To add to our clients' concerns the following are noted:
We note that the US Nuclear Posture Review (NPR) submitted to Congress on 31 December 2001 makes clear that the United States continues to plan for massive retaliation or a pre-emptive counter force attack in response to an actual or imminent nuclear attack, and for use of nuclear weapons against an overwhelming conventional attack. Much concern has been expressed about the US's willingness to contemplate a "first strike" against non-nuclear weapons states and particularly those characterised as "rogue states." You have made clear to both the UK House of Commons Defence Committee and to the Jonathan Dimbleby programme on BBC TV that the UK also might under certain circumstances be willing to engage in a "first strike" use of nuclear weapons against a non-nuclear weapon state, namely Iraq. This policy represents a fundamental breach of customary international law and particularly in the light of the International Court of Justice's Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. That opinion concludes at paragraph 105E:
"E. By seven votes to seven, by the president's casting vote,
It follows in the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;
However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.."
It is clear that the threat to use chemical or biological weapons against UK deployed forces in the filed is far short of a threat such that "the very survival" of the UK "is at stake." As such if the UK were to carry out the threat you have made to use nuclear weapons against Iraq in these circumstances it would be in clear breach of customary international law.
Other Weapons Systems
We know that in the Gulf War conflict from 1991, in Kosovo and in Afghanistan the following weapons systems have been used:
a.. Cluster bombs including the BL-755 and the US CBU-55B
b.. Fuel air explosives including the BLU-82B.
c.. The multiple launch rocket system
d.. Depleted uranium munitions including the British Challenger II and US M1A1, M1 and M60 tank rounds, aircraft rounds and 7.62mm calibre bullets.
Our client's concerns include that these weapons systems, and the UK's nuclear weapon system, all breach "intransgressible" rules of IHL and in particular the rule on discrimination (Articles 48 and 51 (4) and (5) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflict (Protocol 1) adopted at Geneva, 8 June 1977 (hereafter referred to as AP1)).
Relevant provisions of International Humanitarian Law
The above noted incidents are all examples of where the use of force failed to comply with fundamental principles of IHL, in particular the conventional and customary rules of distinction, military necessity and proportionality. You will be aware that failure to comply with these principles constitute grave breaches of the Geneva Conventions and will amount to violations of articles 7 and 8 of the ICC.
Art 35. Basic Rules
1.. In any armed conflict, the right of the Parties to the conflict to choose methods or means or warfare is not unlimited.
2.. It is prohibited to employ weapons, projectiles and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
3.. It is prohibited to employ methods or means of warfare which are intended or may be expected, to cause widespread, long-term and severe damage to the natural environment.
Art 48. Basic Rule
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations against military objectives.
Art 49. Definition of attack and scope of application
1.. "Attacks" means acts of violence against the adversary, whether in offence or defence.
Art 51. Protection of the civilian population
1.. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.
2.. The civilian population as such, as well as individual civilians , shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
3.. Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.
4.. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
1.. those which are not directed at a specific military objective;
2.. those which employ a method or means of combat which cannot be directed at a specific military objective; or
3.. those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
1.. Among others, the following types of attacks are to be considered as indiscriminate:
1.. an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects;
2.. an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated
Art 52. General protection of civilian objects
1.. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2.. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.
3.. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution, it shall be presumed not to be so used.
Art 54. Protection of objects indispensable to the survival of the civilian population
2.. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive