Clarifying the Legality of WP use by American Forces
How can it be legal to have used White Phosphorus against the Iraqi Insurgents?
Readers have asked for a definitive explanation of what I mean when I write that the United States did not violate international law when we used WP artillery rounds in Fallujah, although we did violate US Army doctrine.
The answer lies in which parts of the relevant international treaty the United States has ratified and which parts we have not.
In 1980 fifty-one states negotiated the original Convention on Certain Conventional Weapons (CCW). The initial treaty applied to incendiary weapons, mines and booby-traps, and weapons designed to injure through very small fragments.
Since then, treaty states-parties--now numbering 94 total--have added provisions to ban blinding laser weapons and address lingering dangers posed by unexploded munitions leftover after combat ends.
States that become CCW members must sign on to at least two of the convention's protocols, but do not have to become party to all of them. The United States ratified Protocols I and II on 24 March 1995.
* Protocol I prohibits the use of non-detectable fragments;
* Protocol II restricts the use of mines, booby traps, and other devices on civilian targets or in a way that may cause indiscriminate harm;
* Amended Protocol II strengthens the restrictions governing the use of mines, booby traps, and other devices;
* Protocol III prohibits making civilian populations the object of attack by incendiary weapons and restricts the use of incendiary weapons against military targets located within a concentration of civilians; and
* Protocol IV prohibits the use and transfer of laser weapons designed to cause permanent blindness to un-enhanced vision.
The protocol relevant to White Phosphorous is the third one. Let me emumerate the technical elements of Protocol III: Incendiary Weapons
Protocol III regulates the use of weapons designed to set fire to or burn their target. The protocol proscribes targeting civilians with incendiary weapons and restricts the use of air-delivered incendiary weapons against military targets in close proximity to concentrations of noncombatants. It also prohibits parties from targeting forests or other plant cover unless the vegetation is being used to conceal military forces. The protocol only covers weapons created intentionally to set fire or burn, such as flamethrowers. Weapons that ignite fires or burn as a side effect are not subject to the protocol.
How did it come about that we did not ratify the third protocol?
The United States has not signed protocol III on the argument that we must retain our ability to employ incendiaries "to hold high-priority military targets at risk in a manner consistent with the principle of proportionality that governs the use of all weapons under existing law."
One may agree or disagree with our rationale, but the fact remains that by not ratifying the relevant protocol in the Convention on Certain Conventional Weapons, the United States has preserved its legal right (not necessarily a moral right) to us WP.
What is worrisome it that our own doctrine (not law, but Army doctrine) prohibits using WP against people. Our internal doctrine limits permitted uses of WP to burning things (not people) or for purposes of screening by producing a dense smoke cloud.
<BLOCKQUOTE>SUBJ: IIR 2 243 1050 91/POSSIBLE USE OF PHOSPHOROUS CHEMICAL WEAPONS BY IRAQ IN KURDISH AREAS ALONG THE IRAQI-TURKISH-IRANIAN BORDERS; AND CURRENT SITUATION OF KURDISH RESISTANCE AND REFUGEES (U)</BLOCKQUOTE>
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November 22, 2005 11:46 AM | Reply | Permalink
When the Iraqis are under US direction how do the conventions and Army doctrine apply?
I remember reading that US forces use WP for illumination, where does that use fall?
Curious - do IEDs fall under Convention II?
John - Thks for adding the facts to the discussion.
November 22, 2005 12:01 PM | Reply | Permalink
Q: The State Department defended our use of WP in Iraq as an illuminant. Is this correct?
A: No. WP is not an illuminant. Modern illumination rounds use magnesium powder not white phosphorus. They include an illuminating "candle" which descends under a parachute after release at a pre-determined height. WP is not used in this manner.
Q: Does Army doctrine apply to non-Army US personnel.
A: No. Each service produces its own doctrine. However USArmy Field Manual 27-10 Law of Land Warfare
lays out rules which are, in practice, taught to Marines and intended to be observed by Marines.
Q: do IEDs fall under Convention II?
A: They very well might, but, unfortunately, the insurgents are not signatories to Convention II.
Q: When the Iraqis are under US direction how do the conventions and Army doctrine apply
A: When US forces are in the lead, yes, our rules apply. In other venues, where US forces may be acting as military advisors, our rules do not necessarily apply.
November 22, 2005 12:59 PM | Reply | Permalink
John - I asked about IEDs as amatter of interest and with no presumption that insurgents fall under rules or conventions. Asymmetric forces have to take advantage of every edge.
Do you have insight into why the government response on WP was contradictory? Is use a preexisting matter of contention amongst military and civilian so answers were were intended to buttress one side and/or target the other side?
November 22, 2005 2:12 PM | Reply | Permalink
Q: Do you have insight into why the government response on WP was contradictory?
A: the usual: SNAFU
November 22, 2005 2:29 PM | Reply | Permalink
Isn't the real problem here that our rules are aimed at wars fought between organized armies, and not a anti-insurgency or anti-guerilla campaign? Given that every one of the people who are fighting for the insurgency is a civilian, rules that prohibit use of certain arms against civilians are kind of iffy.
My opinion is that organized armies are still bound by the rules of war, regardless of whether or not their opponents follow those same rules. If we are to allow our armed forces to emulate the "morals" of their opponents we have already largely lost the battle.
November 23, 2005 8:30 AM | Reply | Permalink
In this discussion and one earlier this week I asserted that US army doctrine does not permit the use of WP against personnel (that is it doctinally permissible when used to burn things (not people) or to produce a smoke screen.
Based on what I have now learned, I would not make any unequivocal assertion about doctrine on this question.
The aggregation of US Military doctrine on WP use against human targets is not entirely clear-cut. There are as many as twenty doctrinal references to WP and some of them are contradictory.
Since my initial posting, I have had a detailed and informative discussion with two Army JAG officers. They tell me that the situation is ambiguous (which is probably not a good thing when dealing with the lethality of warfare).
Some official Army TRADOC (training and doctrine) say that WP use against humans violates "the law of land warfare". But the most authoritative written American Army statement on "the law of land warfare" doesn't say this in so many words.
It also turns out that some weapons and munitions manuals issued as guidance to soldiers in the field state the WP rounds are intended to be used, inter alia, against enemy personnel.
My JAG interlocutors tell me that when combat commanders ask for legal clearance to use WP against human targets they are normally advised not to do so.
They are, however, also told that using WP against physical enemy targets in ways that may collaterally injure enemy combattants is permissible.
Based upon this additional advice, I would revise my assertion that the use of WP against insurgent positions in Fallujah violated US Army doctrine.
Rather, I would say that it crossed into a "grey" or "contested" area of doctrine.
I also learned from the Army JAGs that the Marine Corps has issued quite specific guidance against using "flame weapons" (which they define to include WP) directly against personnel.
Perhaps one salutary outcome of the Fallujah incident will be the beginnings of an effort to clarify doctrine on this subject.
Lethal instruments are designed to produce binary outcomes. Policy ambiguity is not helpful when the choices are both binary and potentially irreversible.
John Stuart Blackton
November 23, 2005 8:46 AM | Reply | Permalink
"My opinion is that organized armies are still bound by the rules of war, regardless of whether or not their opponents follow those same rules."
Yes, indeed, you are quite right. The "law of landwarfare", that the US Military is taught to apply, does not release us from the rules of war when we fight enemies who may choose not to observe them.
The "law of landwarfare" does, however, distinguish very clearly between the rights of uniformed prisoners of war and those of non-uniformed insurgents. The latter do not enjoy the full legal protections afforded to proper POWs.
Lest one imagine that this distinction arose under the guidance of Vice President Cheney, the language on this subject has been consistent in US Military doctrine since 1956.
November 23, 2005 8:58 AM | Reply | Permalink
John -
How is the military expected to operate with confidence when there is gray?
How common is it for the military to need to enter these gray areas?
If it took you time, a lack of battlefield stress and multiple experts/lawyers to get answers what is reasonable in the field?
November 23, 2005 9:47 AM | Reply | Permalink
The "law of landwarfare" does, however, distinguish very clearly between the rights of uniformed prisoners of war and those of non-uniformed insurgents.
November 23, 2005 10:08 AM | Reply | Permalink
Q: Members of a uniformed, organized army are held to a different standard than ordinary citizens..... But, they certainly should not be placed in indeterminate detention, tortured, or otherwise treated inhumanely. Isn't that true?
A: Yes. The Army guidance on handling guerilla and insurgent prisoners does not lead to the Gonzales doctine. It simply states that such prisoners do not have guaranteed rights to standard POW treatment.
John Stuart Blackton
November 23, 2005 10:26 AM | Reply | Permalink
Q: "How common is it for the military to need to enter these gray areas?"
A: Very common. Most of war occurs under gray conditions. Plans and orders are overtaken by events. Guidance and doctrine doesn't exactly fit the situation one is confronting on the battlefield. The fog of war seeps over everything.
Under these conditions, ethically grounded officers with initiative and intelligence are the best recourse. They may or may not make the decision you might have made, but one hopes that they will make a sensible choice under the circumstances.
That is not to say that better plans, clear orders, and unambiguous doctrine are not desirable. They are. But no matter what, war remains gray.
Q: "How is the military expected to operate with confidence when there is gray?"
Well trained troops under intelligent command is the best prescription. The complexity of the modern battlefield, however, has added lawyers to the equation.
In modern American war-fighting, there is usually a JAG between the commander and the shooter.
Both shooter and commander know the general outlines of the ROE (rules of engagement), but these days a JAG usually makes the call before major combat actions are taken.
It sounds strange, I know, to think of lawyers in this position. But that is how things work these days.
My daughter is a military officer (and Arabist) recently returned from an Iraq deployment, she confirms the omnipresence of the JAG in the combat-decision loop.
It will not surprise you to know that most officers and troops in the field don't really like this introduction of the lawyer, but like-it-or-not they have come to accept it.
John Stuart Blackton
November 23, 2005 10:39 AM | Reply | Permalink
Primordial Ooze - Hi Mcdust, or is it Firebug? New alt login, same BS SPAM.
As already mentioned, that internal memo is not an official Pentagon weapon classification, it's an offhand comment and primarially deals with attacks on Kurds. It is not a weapon classification document.
Trying to read into that is tin foil hat stuff.
Pascal Riche seems determined to keep staking his reputation on such a shoddy argument. Guess he's a niche market guy.
November 23, 2005 11:48 AM | Reply | Permalink
Blackton – appreciate your comments. Very informative. It’s nice to have someone with military expertise and an independent mind address these issues factually.
Difficult question, perhaps beyond the scope of this conversation, but here goes anyways:
To what extent does the ethical irregularities of this war caused by civilian leadership, and the false pretense under which we entered into it, complicate the rules of engagement regarding quasi-civilian and non-uniformed combatants?
For example, every US soldier must presume they're on the ethical high ground serving their country and that any enemy combatants, uniformed or otherwise, are the bad guys. If someone shoots at a US soldier they must shoot back in the course of duty to achieve a larger military objective.
However, it does seem political leadership has put the military in a terrible situation with great complications. As one example, we’re supposed to be training the Iraqi forces to “stand up” to defend their country and fight along side us. The reality is many of those people turn on US troops, sometimes still wearing Iraqi defense uniforms, so we’re sometimes training people to shoot at our own troops.
I guess my question goes to the issue of “hearts and minds” and dilemmas troops must face on a daily basis when confronted with an armed insurgency in a hostile country for a war such as this. The military requires discipline and clear objectives, but the particulars of this war must be terrible for morale and make it extremely difficult for doctrine to straddle the contradictions to present the military with a “winnable” scenario.
Vietnam analogies come to mind, particularly the strong reaction many conscripted soldiers had to such a dilemma. Any thoughts of yours are appreciated.
November 23, 2005 12:27 PM | Reply | Permalink
Q: "The military requires discipline and clear objectives, but the particulars of this war must be terrible for morale and make it extremely difficult for doctrine to straddle the contradictions to present the military with a "winnable" scenario."
A: I've been in and out of Iraq quite a lot over the last two years. Surprisingly (to me), morale is, in actual fact, not too bad.
As with all wars morale tends to reflect local leadership. Troops with a good company CO and a good Colonel in Iraq are usually in moderately good spirits.
The big variable that I detect when I am there is not morale, but frustration.
One is forever hearing comments along these lines:
"We give soccer balls to some kids on the street in the morning"
"In the afternoon some of them take shots at us from behind a wall"
"We don't get them"
"They don't get us"
"So, what the F*** are we actually doing?"
As to the second part of your question about it being "extremely difficult for doctrine to straddle the contradictions", you are right on.
This isn't a conventional war-for- territory. Nor is it "total war" with the object of achieving unconditional surrender.
The truth is that neither the leadership nor the troops really know, in specific terms, what are our "war aims".
The first Gulf War had written war aims. Everbody knew what they were. We accomplished them rather quickly, and that was that.
Nobody in the field in this war really knows just exactly what constitutes our military objectives at the operational and strategic level.
In Iraq we can produce clear tactical military objectives which are usually wrapped up in their name: "operation such and such".
But the sum of our tactical objectives doesn't add up to recognizable operational objectives.
And the absense of operational objectives means we have no evident strategic objectives.
Under these conditions, doctrine is ambiguous and often misleading.
At a given moment is Lance Corporal Brown, as he dons full battle rattle at 0600 this morning, going to be in "nation building mode", "hearts and minds mode" or "full combat mode"?
He doesn't know for sure. And whatever the right answer happens to be at 0630 probably won't be correct at 1100.
No wonder Lance Corporal Brown is frustrated.
And much is the wonder that his morale is actually not too bad.
I guess it says something rather impressive about the resilience and grit of the Lance Corporals in our armed forces.
John Stuart Blackton
November 23, 2005 12:53 PM | Reply | Permalink
I appreciate Mr. Blackton’s careful consideration of the white phosphorous controversy, and his effort to take the law of war seriously, which requires that we apply it carefully to the facts– insofar as we know what they are. However, the broader context is important as well.
Weapons that are outlawed or whose use is limited by treaty typically have come to be restricted because their use, either in general or in particular circumstances, is likely to violate broader customary international law principles– for example, that the use of force should not be indiscriminate, and should not cause unnecessary suffering. The restrictions on the use of incendiary weapons to target civilians or against military targets where there are concentrations of civilians reflect these broader principles, and their use in Fallujah may in fact have violated the laws of war, even though the U.S. has not ratified the applicable treaty provisions. The likelihood that the use of such weapons (and of other kinds highly destructive firepower, such as aerial bombing) will be indiscriminate and disproportionate is even greater in a war of occupation against an irregular military resistance, conducted by a power with only a rudimentary understanding of the society it has invaded.
A broader point made by Mr. Blackton in his previous post should remain at the center of the discussion– that great destruction and killing was an inevitable outcome of choosing this war. Here I take issue with his (perhaps unintentional) implication in that post that war is legal if there are “vital national interests” at stake. This is not true; there must be a clear and imminent threat, with no alternative means to avert it besides military action. Iraq presented no such threat, a fundamental fact often obscured by the debate over whether Iraq had undisclosed stores of chemical or biological agents, or was attempting to revive its nuclear program. At the time of the U.S. invasion, it was subject to an intrusive inspection regime, and had been for a decade subject to aerial warfare (and sanctions) that had seriously eroded its military capabilities. Even before the war, the evidence was strongly against Iraq posing an imminent threat, and one did not need a security clearance to see this.
The United States started and continues to fight an illegal war of aggression, and its actions must be considered in that light. As the Nuremberg judgment in the trial of the major German war criminals stated, “War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
Further, extensive death and destruction will be an inevitable consequence of continued military action in Iraq by the United States. Given the doctrine, technology, and institutional habits of the U.S. military, which tends to rely a great deal on overwhelming firepower delivered from a distance, a great many Iraqi deaths at the hands of U.S. forces, including deaths of civilians either because they are mistaken for “insurgents” or because they happen to be in the vicinity, are a certainty. Given what the masters of military jargon call “casualty sensitivity,” only increased due to the unpopularity of the war, the preference for firepower from a distance as a matter of policy likely will grow the longer U.S. forces remain. This is the background for the various proposals to withdraw U.S. forces into enclaves or even “over the horizon” while a government and military acceptable to the U.S. is “stood up.”
For ordinary people seeking peace, demanding speedy withdrawal and making it clear we consider the war illegal and immoral is also the most practical path. Politics is not a linear enterprise. A rejection of aggressive wars, and a demand for an end to this one, might help rein in the war party now dominant in the United States (which includes many Democrats as well as Republicans). Anything less clear is likely to be drowned out or spun beyond recognition amidst the ceaseless competing propaganda campaigns that dominate our public discourse.
November 23, 2005 2:06 PM | Reply | Permalink
Thanks for the info.
I guess it says something rather impressive about the resilience and grit of the Lance Corporals in our armed forces.
Yes, and the institution in the post-Vietnam era.
Unfortunately I don't see how stop-loss measures, diminished recruiting, the continuing frustration on the ground, and strategic haze help. Actually they seem to be eroding the very progress the volunteer force has made since the Vietnam era. Progress that is directly responsible for the good qualities we're now depleting irresponsibly.
November 23, 2005 2:07 PM | Reply | Permalink
Reader: "Here I take issue with his (perhaps unintentional) implication in that post that war is legal if there are "vital national interests" at stake. This is not true; there must be a clear and imminent threat, with no alternative means to avert it besides military action"
A: The reader is correct that the doctrine of Just War involves a series of tests which include an imminent threat and a proportional response. I used to teach Just War theory at the National War College and I still lecture about it at my church.
My invocation of the narrower test of "vital national interest" reflects the reality that the decision to go to war has already been taken and it does not even meet that minimal test.
Throughout this discussion I have encouraged readers to concentrate more on the overall lethality of war and the seriousness of the decision to go to war.
I share the reader's concerns that the broader moral perspective of Just War theory be considerd.
John Stuart Blackton
November 23, 2005 2:21 PM | Reply | Permalink
the United States started and continues to fight an illegal war of aggression, and its actions must be considered in that light. As the Nuremberg judgment in the trial...
Sorry, but no. That's where the wheels fell off your argument when you started throwing around inflammatory terminology inappropriately. Any Nazi reference is pretty much an opening for a half baked comment to follow.
I don't support the war, but neither is it a cut and dried "illegal war of aggression” to be compared with Nazis or Nuremburg. It is a war of choice and one that we probably shouldn’t have chosen or handled much differently with better leadership and clearer objectives.
The Iraq war does sit in a gray area, and that is a serious problem for our troops not to mention the people of Iraq. However, Reducing it to such simplistic rhetoric is just uninformed hysteria and doesn’t help anyone. Furthermore, nobody serious has called for an “immediate” withdrawal to mean simply pulling out without any further responsibility as you seem to be calling for. Take India’s civil war and the ensuing nuclear standoff as an example of what happens due to irresponsible withdrawl, which can itself be an act of violence.
This is a moderate left site, an offshoot of the rational comments of Josh Marshall’s site. It’s not the screech anti-war movement site, or the Rt wing nut site, or the Nazi analogy site, or such.
November 23, 2005 2:24 PM | Reply | Permalink
My invocation of the narrower test of "vital national interest" reflects the reality that the decision to go to war has already been taken and it does not even meet that minimal test.
Throughout this discussion I have encouraged readers to concentrate more on the overall lethality of war and the seriousness of the decision to go to war.
I share the reader's concerns that the broader moral perspective of Just War theory be considerd.
Well said.
What I object to is the tone of marginal, the black and white indictment of the war as illegal. That is simplistic, would make all US forces illegal combatants, and the Nuremburg comparisons is a dangerous propaganda applied to the war generally.
Totally inappropriate, and is one step away from Vietnam irresponsibility.
I'm very glad to see the left is acting more responsibly this time around and nipping that sort of nonsense in the bud. Thankfully it’s been extremely marginal and the vast majority of Democrats have no patience for it.
November 23, 2005 2:36 PM | Reply | Permalink
The doctrines speak only about the use of white phosphorous as an incendiary against military targets, not civilian targets. One of the central issues here was the apparent indiscriminate use of this deadly and horrifying incendiary weapon either targetting civilians or with wanton disregard to whether civilians would be killed in large numbers. What are the international laws about the use of such devices in such a civilian-targetted or indiscriminate manner?
Someone mentioned something about "screechy" antiwar sites. I suppose that I would have to be among those who are considered "screechy" antiwar types. I consider US foreign policy to be imperialistic, which is why we are in Iraq, and to oppose so-called humanitarian wars, like the one in Kosovo. If we were really there for humanitarian reasons, we could find a lot more humanitarian 'bang for the buck' in other ways for the total $100 billion+ that the Kosovo War and its aftermath really cost, accepted estimates of TOTAL war money costs always being VASTLY too low.
I totally support the general 'war on terrorism' and feel (and said at the time) we should have gone after Al Qaeda full-force when they bombed those embassies (an attack on the US) in E Africa, instead of Serbia, Sudan, and now Iraq, and God knows who else.
November 23, 2005 3:16 PM | Reply | Permalink
I will refresh your memory, since you seem to be sadly unfamiliar with the minutae of the Nuremberg Trials. Article 6 of the constitution of the Tribunal: (emphases mine)
<a href="http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.ht m ">CONSTITUTION OF THE INTERNATIONAL MILITARY TRIBUNAL</a>
[...]The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
<h3>Article 7.</h3>The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment. [...]
--Between "including but not limited to" re the customs as well as laws of war and "whether or not in violation" of your own laws, like death camps, about covers all the atrocitys you could try to wiggle out of if you were a German in WWII. But of course, victors and hypocrites don't have to obey the laws we force others to abide by!
November 23, 2005 3:23 PM | Reply | Permalink
I am new to this site as a participant, but I am not aware that there are, as NickDoe suggests, substantive limits on what kinds of opinions it is permissible to express. I also was not aware that part of the “moderate left”perspective is hostility to free speech. I would hope that this site does not place particular opinions and perspectives outside the bounds of discussion, so long as they are rationally presented.
NickDoe apparently has some misconceptions both about the law of war and about how law works generally. First, even if the U.S. invasion of Iraq constitutes an illegal war of aggression, this would not (at least based on the WWII precedent) subject ordinary soldiers to treatment as “illegal combatants.” Ordinary soldiers of the defeated powers were not tried and convicted after World War II solely for participating in the war on the side of the aggressors. Officers and officials found to have certain kinds of command authority were tried and convicted for crimes against peace, which included the planning and conduct of aggressive war. German officials, officers, and some in the lower ranks were tried and convicted for specific war crimes or for crimes against humanity, which included , e.g., a variety of offenses ranging from actions aimed at the extermination of Jews and other entire classes of people to various crimes against civilians in occupied areas.
Law depends in considerable part on precedent, and the precedents for trials and convictions for planning and conducting wars of aggression are scant. There is a tendency, verging on a quasi-theological orthodoxy, to prohibit any comparison of U.S. behavior to the precedents set by the trials and convictions after World War II. Yes, the crimes of the German leadership were far worse, but that does not mean that any lesser offenses are not crimes. Claiming that this is a “war of choice” supports, rather than undercuts, the argument for its illegality. We were not attacked, there was no imminent threat. Beginning with a campaign of extremely destructive bombing (which actually stretched back months before the March 2003 invasion), we attacked another sovereign state, destroyed much of its infrastructure, killed many thousands of its people, and destroyed and dispersed its entire political structure. It appears far more likely than not that the nation was brought to war by a campaign, sustained over many months, of calculated distortions and deception, if not outright lies. Those who can be proven responsible for planning and conducting this war, and particularly those who can be shown to have engaged in that campaign of deception, should be held to account.
I can accept a reasoned argument that applies the law to the facts of the Iraq war and concludes, on balance, that it would be difficult to convict U.S. officials, given what we know. But to dismiss this entire set of legal principles as irrelevant means that perhaps the most central precept of public international law– that wars of aggression are illegal– will mean little, being reduced largely to victors’ justice to be applied only to defeated and imprisoned officers and officials of losing states.
The United States played a leading role in creating the legal mechanisms under which the post World War II trials were conducted. We should be proud of this, and we should recognize that dismissing the post-World War II war crimes trials and the legal principles they helped to establish as a priori irrelevant to anything else implicitly undermines both their significance and their legal status. Further, the United States played a leading role in the establishment of the United Nations (whose Charter is a binding treaty that the U.S. has signed and ratified), which requires recourse to the Security Council where there are threats to peace. It does allow immediate self-defense in where there is an imminent threat and no alternative means of averting it are available, but that was not the case here. The Charter’s mechanism for dealing with threats to peace recognized that the kinds of leaders who will engage in acts of aggression also may try to deceive the world and their own populations regarding their reasons for going to war. Here, the process actually might have worked– unlike the (far too credulous) U.S. Congress, the rest of the world was not persuaded. But the Bush Administration, when it did not get the answer it wanted, chose to go to war anyway. Call it what you will, this war was undertaken outside the legal framework that many in the United States worked hard to put in place, and in some aspects (particularly the treatment of detainees) is being conducted outside that framework as well.
The statute of the International Criminal Court (to which the United States also is not a party)recognize wars of aggression as criminal, but has not yet fully defined the offense. It does state, however, that “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” Rome Statute of the International Criminal Court, Article 5, section 2. It should concern us that the U.S. government, which once took a leadership role in international legal institutions, has rejected participation in the ICC, and tends to express contempt for other international institutions.
November 23, 2005 7:43 PM | Reply | Permalink
US INTELLIGENCE CLASSIFIED WHITE PHOSPHOROUS AS A 'CHEMICAL WEAPON' By Peter Popham and Anne Penketh
Published: 23 November 2005
from The Independent published in the UK (let's see what coverage this gets in the US!)
The Italian journalist who launched the controversy over the American use of white phosphorus (WP) as a weapon of war in the Fallujah siege has accused the Americans of hypocrisy.
Sigfrido Ranucci, who made the documentary for the RAI television channel aired two weeks ago, said that a US intelligence assessment had characterised WP after the first Gulf War as a "chemical weapon".
The assessment was published in a declassified report on the American Department of Defence website. The file was headed: "Possible use of phosphorous chemical weapons by Iraq in Kurdish areas along the Iraqi-Turkish-Iranian borders."
In late February 1991, an intelligence source reported, during the Iraqi crackdown on the Kurdish uprising that followed the coalition victory against Iraq, "Iraqi forces loyal to President Saddam may have possibly used white phosphorous chemical weapons against Kurdish rebels and the populace in Erbil and Dohuk. The WP chemical was delivered by artillery rounds and helicopter gunships."
According to the intelligence report, the "reports of possible WP chemical weapon attacks spread quickly among the populace in Erbil and Dohuk. As a result, hundreds of thousands of Kurds fled from these two areas" across the border into Turkey.
"When Saddam used WP it was a chemical weapon," said Mr Ranucci, "but when the Americans use it, it's a conventional weapon. The injuries it inflicts, however, are just as terrible however you describe it."
In the television documentary, eyewitnesses inside Fallujah during the bombardment in November last year described the terror and agony suffered by victims of the shells . Two former American soldiers who fought at Fallujah told how they had been ordered to prepare for the use of the weapons. The film and still photographs posted on the website of the channel that made the film - rainews24.it - show the strange corpses found after the city's destruction, many with their skin apparently melted or caramelised so their features were indistinguishable. Mr Ranucci said he had seen photographs of "more than 100" of what he described as "anomalous corpses" in the city.
The US State Department and the Pentagon have shifted their position repeatedly in the aftermath of the film's showing. After initially saying that US forces do not use white phosphorus as a weapon, the Pentagon now says that WP had been used against insurgents in Fallujah. The use of WP against civilians as a weapon is prohibited.
Military analysts said that there remain questions about the official US position regarding its observance of the 1980 conventional weapons treaty which governs the use of WP as an incendiary weapon and sets out clear guidelines about the protection of civilians.
Daryl Kimball, director of the Arms Control Association in Washington, called for an independent investigation of the use of WP during the Fallujah siege. "If it was used as an incendiary weapon, clear restrictions apply," he said.
"Given that the US and UK went into Iraq on the ground that Saddam Hussein had used chemical weapons against his own people, we need to make sure that we are not violating the laws that we have subscribed to," he added.
Yesterday Adam Mynott, a BBC correspondent in Nassiriya in April 2003, told Rai News 24 that he had seen WP apparently used as a weapon against insurgents in that city.
The Italian journalist who launched the controversy over the American use of white phosphorus (WP) as a weapon of war in the Fallujah siege has accused the Americans of hypocrisy.
Sigfrido Ranucci, who made the documentary for the RAI television channel aired two weeks ago, said that a US intelligence assessment had characterised WP after the first Gulf War as a "chemical weapon".
The assessment was published in a declassified report on the American Department of Defence website. The file was headed: "Possible use of phosphorous chemical weapons by Iraq in Kurdish areas along the Iraqi-Turkish-Iranian borders."
In late February 1991, an intelligence source reported, during the Iraqi crackdown on the Kurdish uprising that followed the coalition victory against Iraq, "Iraqi forces loyal to President Saddam may have possibly used white phosphorous chemical weapons against Kurdish rebels and the populace in Erbil and Dohuk. The WP chemical was delivered by artillery rounds and helicopter gunships."
According to the intelligence report, the "reports of possible WP chemical weapon attacks spread quickly among the populace in Erbil and Dohuk. As a result, hundreds of thousands of Kurds fled from these two areas" across the border into Turkey.
"When Saddam used WP it was a chemical weapon," said Mr Ranucci, "but when the Americans use it, it's a conventional weapon. The injuries it inflicts, however, are just as terrible however you describe it."
In the television documentary, eyewitnesses inside Fallujah during the bombardment in November last year described the terror and agony suffered by victims of the shells . Two former American soldiers who fought at Fallujah told how they had been ordered to prepare for the use of the weapons. The film and still photographs posted on the website of the channel that made the film - rainews24.it - show the strange corpses found after the city's destruction, many with their skin apparently melted or caramelised so their features were indistinguishable. Mr Ranucci said he had seen photographs of "more than 100" of what he described as "anomalous corpses" in the city.
The US State Department and the Pentagon have shifted their position repeatedly in the aftermath of the film's showing. After initially saying that US forces do not use white phosphorus as a weapon, the Pentagon now says that WP had been used against insurgents in Fallujah. The use of WP against civilians as a weapon is prohibited.
Military analysts said that there remain questions about the official US position regarding its observance of the 1980 conventional weapons treaty which governs the use of WP as an incendiary weapon and sets out clear guidelines about the protection of civilians.
Daryl Kimball, director of the Arms Control Association in Washington, called for an independent investigation of the use of WP during the Fallujah siege. "If it was used as an incendiary weapon, clear restrictions apply," he said.
"Given that the US and UK went into Iraq on the ground that Saddam Hussein had used chemical weapons against his own people, we need to make sure that we are not violating the laws that we have subscribed to," he added.
Yesterday Adam Mynott, a BBC correspondent in Nassiriya in April 2003, told Rai News 24 that he had seen WP apparently used as a weapon against insurgents in that city.
November 23, 2005 9:14 PM | Reply | Permalink
John,
Thanks a lot for injecting much needed clarity on this specific matter. If people want to treat the WP "affair" on the chemical weapon angle, they certainly need to come here first, and hopefully feel a bit deflated.
The issue in Fallujah wasn't the use of WP but the fact of sending the troops in such a large scale operation when the area was still full of civilians, by all evidences and despite all claims of evacuation. This gotcha focus on WP is a distraction from the real story.
November 24, 2005 2:38 AM | Reply | Permalink
I don't support the war, but neither is it a cut and dried "illegal war of aggression” to be compared with Nazis or Nuremburg. It is a war of choice [...]
Hitler's wars were wars of choice.
The Iraq war does sit in a gray area, and that is a serious problem for our troops not to mention the people of Iraq. However, Reducing it to such simplistic rhetoric is just uninformed hysteria and doesn’t help anyone.
Declaring the war a "gray area" is the perfect obfuscation concerning the war's beginnings. It isn't a gray area, it is a war sold to the American public with the use of false documents and false allegations, suppression of relevant facts and quite possibly, outright lies.
So long as apologists are allowed to declare a "gray area" while attempting to discredit those who seek to challenge the rationale for the war, there remains the possibility that great crimes will go unexamined.
richard myers
Denver
November 24, 2005 10:47 AM | Reply | Permalink
By George I think Nick's got it (although what "it:" had to do with the post he responed to originally will ever remain a mystery.
The war was illegal. It violated the UN Charter and though subsequently the UN authroized the occupation, agreements to ratify a criminal's conduct made under durress are void ab initio as any first year law student can tell you.
The war was illegal - a cause of concern for the Brit MOD and Atty Gen Goldsmith.
No the soldiers fighting that war today aren't at legal risk but any number of their superiors certainly are or should be in the dock with Saddam, with Slobo..
By the way Nick, the post you attempted a reposne to...The Greatest Strategic Disaster in US history, that illegal war, was and is gravely immoral.
4 criteria for just war...I challenge anyone here to pick just one, the easiest case to make that US aggression against Iraq was just
If not just..then capital murder...mass murder
At one and the same time:
- the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;
- all other means of putting an end to it must have been shown to be impractical or ineffective;
- there must be serious prospects of success;
- the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modern means of destruction weighs very heavily in evaluating this condition.
November 25, 2005 6:53 AM | Reply | Permalink
Peter Goldsmith & The Downing St Memos
Iraq, the secret US visit, and an angry military chief
The legality of the Iraq war exploded on to the agenda last week, causing chaos to Labour strategy. Here we reveal the key US officials who persuaded Britain that invasion was legal - and the astonishing reaction from our military chiefsto
The Goldsmith Memo
November 25, 2005 7:13 AM | Reply | Permalink
jmascf writes:
4 criteria for just war...I challenge anyone here to pick just one
This challenge is just too tempting for an old professor at the National War College. Plus, it is a good subject to think about during the Thanksgiving holiday
There are innumerable formulations of the criteria for Just War. As most readers no doubt know, the concept has its roots in 5th Century Christianity when the Church was finding ways to reconcile itself to the realities of the Roman Empire.
Although it moved gradually into the sphere of humanistic philosophy and ultimately into international law, the roots of Just War Doctrine are religious.
The simple Christian tests for going to war, and for the conduct of a war justly entered into are these:
1. Right authority
War can only be waged by a legitimate authority. At the time St Augustine was wrting, this meant a Prince or a King.
2. Just cause
A just cause avenges a wrong. Or protects the innocent.
3. Right intention
A right intention is to be held by those waging war. Peace, not land or oil. Showing mercy in victory. Somber regret.
4. Last Resort
The genuine prospect of of imminent attack
If the decision go to war passes these tests the conduct of the war is just only if it adheres to these:
1.. Proportionality
War can only be fought by legitimate means. Means must be proportional.
2.. Discrimination
Respect for the immunity of the innocent and non-combatants.
3.. Reasonable hope for success
A good subject for discussion with friends and family who are at home recovering from holiday indulgence might be to parse which (if any) of the criteria to go to war were met in the case of Iraq, and to what extent we are now doing a good job on the criteria for conducting a war already entered into (whether you believe the first decion was just or not).
I know this topic well, and would be pleased to return to the discussion to moderate questions and issues.
John Stuart Blackton
November 25, 2005 8:19 AM | Reply | Permalink