Iraq and the Laws of War

[busaunit 0]

Iraq and the Laws of War

By Francis A. Boyle
Professor of Law, University of Illinois

14 Oct 2005 "ICH" -- -- On 19 March 2003 President Bush Jr. commenced his criminal war against Iraq by ordering a so-called decapitation strike against the President of Iraq in violation of a 48-hour ultimatum he had given publicly to the Iraqi President and his sons to leave the country. This duplicitous behavior violated the customary international laws of war set forth in the 1907 Hague Convention on the Opening of Hostilities to which the United States is still a contracting party, as evidenced by paragraphs 20, 21, 22, and 23 of U.S. Army Field Manual 27-10 (1956). Furthermore, President Bush Jr.'s attempt to assassinate the President of Iraq was an international crime in its own right. Of course the Bush Jr. administration's war of aggression against Iraq constituted a Crime against Peace as defined by the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950) as well as by paragraph 498 of U.S. Army Field Manual 27-10 (1956).

Next came the Pentagon's military strategy of inflicting "shock and awe" upon the city of Baghdad. To the contrary, article 6(b) of the 1945 Nuremberg Charter defined the term "War crimes" to include: "... wanton destruction of cities, towns or villages, or devastation not justified by military necessity..." The Bush Jr. administration's infliction of "shock and awe" upon Baghdad and its inhabitants constituted the wanton destruction of that city, and it was certainly not justified by "military necessity," which is always defined by and includes the laws of war. Such terror bombings of cities have been criminal behavior under international law since before the Second World War: Nagasaki, Hiroshima, Tokyo, Dresden, London, Guernica.

On 1 May 2003 President Bush Jr. theatrically landed on a U.S. aircraft carrier off the coast of San Diego to declare: "Major combat operations in Iraq have ended." He spoke before a large banner proclaiming: "MISSION ACCOMPLISHED." As of that date, the United States government became the belligerent occupant of Iraq under international law and practice.

This legal status was formally recognized by U.N. Security Council Resolution 1483 of 22 May 2003. For the purpose of this analysis here, the relevant portions of that Security Council Resolution 1483
(2003) are as follows:

Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the "Authority"), ....

5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907;...

In that aforementioned 8 May 2003 letter from the United States and the United Kingdom to the President of the Security Council, both countries pledged to the Security Council that: "The States participating in the Coalition will strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq." No point would be served here by attempting to document the gross and repeated violations of that solemn and legally binding pledge by the United States and the United Kingdom from that date until today since it would require a separate book to catalog all of the war crimes, crimes against humanity, and grave human rights violations inflicted by the United States and the United Kingdom in Iraq and against its people. Suffice it to say here that no earlier than President Bush's 1 May 2003 Declaration of the end of hostilities in Iraq, and certainly no later than U.N. Security Resolution 1483 of 22 May 2003, both the United States and the United Kingdom have been the belligerent occupants of Iraq subject to the Four Geneva Conventions of 1949, the 1907 Hague Regulations on land warfare, U.S. Army Field Manual 27-10 (1956) or respectively its British equivalent, the humanitarian provisions of Additional Protocol One of 1977 to the Four Geneva Conventions of 1949, and the customary international laws of war.

I do not take the position that the United States is the belligerent occupant of the entire state of Afghanistan. But certainly the laws of war and international humanitarian law apply to the United States in its conduct of hostilities in Afghanistan as well as to its presence there. It is not generally believed that the United States is the belligerent occupant of Guantanamo, Cuba. But those detainees held there by United States armed forces who were apprehended in or near the theaters of hostilities in Afghanistan and Iraq are protected by either the Third Geneva Convention protecting prisoners of war or the Fourth Geneva Convention protecting civilians. In any event every detainee held by the United States government in Guantanamo is protected by the International Covenant on a Civil and Political Rights, to which the United States is a contracting party. A similar analysis likewise applies /pari passu/ to those numerous but unknown torture and detention facilities operated around the world by the Central Intelligence Agency. America's own "Gulag Archipelago." No wonder the Bush Jr. administration has done everything humanly possible to sabotage the International Criminal Court!

The United States government's installation of the so-called Interim Government of Iraq during the summer of 2004 did not materially alter this legal situation. Under the laws of war, this so-called Interim Government of Iraq is nothing more than a "puppet government." As the belligerent occupant of Iraq the United States government is free to establish a puppet government if it so desires. But under the laws of war, the United States government remains fully accountable for the behavior of its puppet government.

These conclusions are made quite clear by paragraph 366 of U.S. Army Field Manual 27-10 (1956):

366. Local Governments Under Duress and Puppet Governments

The restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed directly by the occupant. Acts induced or compelled by the occupant are nonetheless its acts.

As the belligerent occupant of Iraq, the United States government is obligated to ensure that its puppet Interim Government of Iraq obeys the Four Geneva Conventions of 1949, the 1907 Hague Regulations on land warfare, U.S. Army Field Manual 27-10 (1956), the humanitarian provisions of Additional Protocol One of 1977 to the Four Geneva Conventions of 1949, and the customary international laws of war. Any violation of the laws of war, international humanitarian law, and human rights committed by its puppet Interim Government of Iraq are legally imputable to the United States government. As the belligerent occupant of Iraq, both the United States government itself as well as its concerned civilian officials and military officers are fully and personally responsible under international criminal law for all violations of the laws of war, international humanitarian law, and human rights committed by its puppet Interim Government of Iraq such as, for example, reported death squads operating under its auspices.

Furthermore, it was a total myth, fraud, lie, and outright propaganda for the Bush Jr. administration to maintain that it was somehow magically transferring "sovereignty" to its puppet Interim Government of Iraq during the summer of 2004. Under the laws of war, sovereignty is never transferred from the defeated sovereign such as Iraq to a belligerent occupant such as the United States. This is made quite clear by paragraph 353 of U.S. Army Field Manual 27-10 (1956): "Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. Occupation is essentially provisional."

If there were any doubt about this matter, paragraph 358 of U.S. Army Field Manual 27-10 (1956) makes this fact crystal clear:

358. Occupation Does Not Transfer Sovereignty

Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and the occupying force....

Therefore, the United States government never had any "sovereignty" in the first place to transfer to its puppet Interim Government of Iraq. In Iraq the sovereignty still resides in the hands of the people of Iraq and in the state known as the Republic of Iraq, where it has always been. The legal regime described above will continue so long as the United States remains the belligerent occupant of Iraq. Only when that U.S. belligerent occupation of Iraq is factually terminated can the people of Iraq have the opportunity to exercise their international legal right of sovereignty by means of free, fair, democratic, and uncoerced elections. So as of this writing, the United States and the United Kingdom remain the belligerent occupants of Iraq despite their bogus "transfer" of their non-existent "sovereignty" to their puppet Interim Government of Iraq.

Even U.N. Security Council Resolution 1546 of 8 June 2004 "Welcoming" the installation of the puppet Interim Government of Iraq recognized this undeniable fact of international law. Preambular language in this Resolution referred to "the letter of 5 June 2004 from the United States Secretary of State to the President of the Council, which is annexed to this resolution." In other words, that annexed letter is a legally binding part of Resolution 1546 (2004). Therein U.S. Secretary of State Colin Powell pledged to the U.N. Security Council with respect to the so-called Multinational Force (MNF) in Iraq: "In addition, the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions." Pursuant thereto, the United States and the United Kingdom still remain the belligerent occupants of Iraq subject to the Four Geneva Conventions of 1949, the Hague Regulations of 1907, U.S. Army Field Manual 27-10 (1956) or respectively its British equivalent, the humanitarian provisions of Additional Protocol I of 1977 to the Four Geneva Conventions of 1949, and the customary international laws of war.

This brings the analysis to the so-called Constitution of Iraq that was allegedly drafted by the puppet Interim Government of Iraq under the impetus of the United States government. Article 43 of the 1907 Hague Regulations on land warfare flatly prohibits the change in a basic law such as a state's Constitution during the course of a belligerent occupation: "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." This exact same prohibition has been expressly incorporated in haec verba into paragraph 363 of U.S. Army Field Manual 27-10 (1956). To the contrary, the United States has demonstrated gross disrespect toward every law in Iraq that has stood in the way of its imperial designs and petroleum ambitions, including and especially the pre-invasion 1990 Interim Constitution for the Republic of Iraq.

As for any subsequent Security Council Resolutions, the United Nations Security Council has no power or authority to alter one iota of the laws of war since they are peremptory norms of international law. For the Security Council even to purport to authorize U.S. violations of the laws of war in Iraq would render its so-voting Member States aiders and abettors to U.S. war crimes and thus guilty of committing war crimes in their own right. Any Security Council attempt to condone, authorize or approve violations of the Four Geneva Conventions of 1949, the 1907 Hague Regulations, the humanitarian provisions of Additional Protocol I of 1977 to the Four Geneva Conventions of 1949, and the customary international laws of war by the United States and the United Kingdom in Iraq would be ultra vires, a legal nullity, and void ab initio.

In fact, the United Nations Organization itself has become complicit in U.S. and U.K. international crimes in Iraq in violation of the customary international laws of war set forth in paragraph 500 of U.S. Army Field Manual 27-10 (1956): "... complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable." The United Nations Organization is walking down the path of the League of Nations toward Trotsky's "ashcan" of history. And George Bush Jr. and Tony Blair are heading towards their own Judgment at Nuremberg whose sixtieth anniversary the rest of the world gratefully but wistfully commemorates this year. Never again!

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

[artistcalledian 0]

could somebody condense that down to under 10,000 words?

________________________________________
drive it like you stole it and f*ck the police

[AlexCrowley 0]

Pinko liberal traitor says Bush is bad and then twists written international law to prove his point.

TV's got them images, TV's got them all, nothing's shocking.

[AlexCrowley 0]

Sorry my mistake. That should have read:

Professor shows exactly which laws Bush et al have broken in their march to and execution of the Iraqi Distraction 2.

TV's got them images, TV's got them all, nothing's shocking.

[mr2mk1g 10]

He doesn't sound much like a law professor to me.

He's using the US Army Field Manual as authority for his position on the status of the occuaption of Iraqi in International Law.

Tard.

It's idiots like this who undermine any legitimate attempts to hold administrations to account for their actions. The guy needs strining up - not by the right, but by the left. 'Course... he's got the right to speek as much nonsense as he likes... it's just a pity for him that what he's saying is actually far more damaging to his cause than anything the Bush administration could ever publish.

[AlexCrowley 0]

Give him a break, he's from Illinois.

TV's got them images, TV's got them all, nothing's shocking.

[mr2mk1g 10]

He takes a long time to basically say that because the US Army Field Handbook says that the US army doesn't adopt sovereignty of a nation just by occupying some of it’s land there was no sovereignty to hand over to the interim government.

Thus the interim government does not have sovereignty and as such the US is an occupying power using the interim govt. as a puppet government.

The Hague Regulations of 1907 states that no occupying power may effect major legal changes in a country and as such the new constitution is illegal and Bush and Blair can be charged with war crimes for trying to change Iraq’s laws.

His biggest problems are: 1) hiding his actual point within a load of silly allegations which, however valid simply detract from what he's really trying to say 2) taking the opportunity to make it look like he knows something about international law at the expense of actually making his point 3) generally having the written skills of a baboon.

Relying on the US Army Field Handbook as authority for the position of the occupation in International Law is something I wouldn't even expect from a first year law student. That really is the height of stupidity.

The sad thing is he might actually be on to something with his conclusions... it's just because he's writing in such a blatantly partisan manner and fails to actually go to the source instead relying on some soldiers handbook he simply going to be looked on as a crank.

[tso-d_chris 0]

I'm not soo sure Army regulations have no legal weight. Criminal charges can be brought against soldiers for violations.

I'm not saying you are wrong, I'm just not clear on how you came to your conclusion.

[mr2mk1g 10]

Yep - Army regulations can be used to prosecute US soldiers by the US.

International law however is not based on what is written in the US Army Field Manual. It is no more authoritative than quoting the French Army Field Manual.

[rasmack 0]

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He doesn't sound much like a law professor to me.

It certainly does not sound like a legal brief . However it is not far from how you would expect a professional to explain to us mere mortals what this is about. For the record there is a Prof. Francis Boyle in Illinois:

Professor Francis Anthony Boyle
University of Illinois at Urbana Champaign
College of Law
204 Law Building
504 East Pennsylvania Avenue
Champaign, IL 61820

voice: 217/333-0931
fax: 217/244-1478
E-mail FBOYLE@law.uiuc.edu

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He's using the US Army Field Manual as authority for his position on the status of the occuaption of Iraqi in International Law.

No, he's showing that these laws are recognized by the US to the point of these laws being incorporated into the field manual.

HF #682, Team Dirty Sanchez #227
“I simply hate, detest, loathe, despise, and abhor redundancy.”
- Not quite Oscar Wilde...

[tso-d_chris 0]

I understand why other countries' troops cannot be held accountable to US Army regs, but why shouldn't US soldiers be held accountable to it?

Again, I'm not trying to argue, just trying to better understand.

[mr2mk1g 10]

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No, he's showing that these laws are recognized by the US to the point of these laws being incorporated into the field manual.

That would be one mechanism of explaining it yes. But what he fails to then do is back up his citations from the manual with authorities from international law.

That's very poor form. He's expecting the reader to take the content of the manual as authoritative. It is not. If he wishes to be taken seriously he needs to provide authorities for his position.

As I said, his position might well have merit. Its just a shame he only goes to the field manual for some of his points instead of straight to the primary source of the principle.

[mr2mk1g 10]

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I understand why other countries' troops cannot be held accountable to US Army regs, but why shouldn't US soldiers be held accountable to it?

The only problem is he's using the US field manual as an authority for what international law should say about the transfer of sovereignty between one nation and another during an invasion.

The transfer of sovereignty between two warring nations in international law does not depend on what the US field manual says but on international law. If there is a dispute between the field manual and international law – international law wins.

Even if the field manual says the same thing as international law, he needs to be quoting international law not the field manual to be seen as authoritative.

Imagine a lawyer writing about property law quoting a pamphlet handed out by a real-estate agent. The content might be correct, but then it's not exactly adding much weight to their argument by quoting it. Why not quote the actual primary legislation and actual regulations governing the sale of property instead of a real estate agent’s handbook?

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Again, I'm not trying to argue, just trying to better understand.

That's ok, I know – I much prefer to discuss things on here rather than argue as many seem to wish for.

[tso-d_chris 0]

Thanks. I better understand your point now.

[tcnelson 1]

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Give him a break, he's from Illinois.

yeah, just like abe lincoln.

"Don't talk to me like that assface...I don't work for you yet." - Fletch
NBFT, Deseoso Rodriguez RB#1329

[AlexCrowley 0]

Yeah, look at all the trouble he caused.

TV's got them images, TV's got them all, nothing's shocking.

[SudsyFist 0]

Party on, dudes!

[RunJct 0]

There's a difference between Army Regulations (such as AR 670-1) and Field Manuals (like FM 27-10 that was used here).

AR's are basically law (if under a strict definition of law you use the word rule). However FMs are not law. FM's are merely doctrinal guidance. You can't be punished by law if you fuck up FM 7-8 and don't follow the FM's written words in an assault.

Also, I have studied FM 27-10 and there's legal errors within it. The international laws ratified into our military are all in the UCMJ, not FM 27-10. We don't prosecute people under FM 27-10 authority because it has none, you prosecute under UCMJ authority with the proper article (which if this nimwit author would research maybe he'd realize this).

I know this is rambling and isn't worded so that it would make perfect sense and I skimmed over a lot of areas but sue me.....I'm tired. So y'all take care.

If "if" were a fifth, then we'd all be drunk

[tso-d_chris 0]

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AR's are basically law (if under a strict definition of law you use the word rule). However FMs are not law. FM's are merely doctrinal guidance. You can't be punished by law if you fuck up FM 7-8 and don't follow the FM's written words in an assault.

Good point. I guess I wasn't paying attention to detail. :)

For Great Deals on Gear

[busaunit 0]

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He takes a long time to basically say that because the US Army Field Handbook says that the US army doesn't adopt sovereignty of a nation just by occupying some of it’s land there was no sovereignty to hand over to the interim government.

Thus the interim government does not have sovereignty and as such the US is an occupying power using the interim govt. as a puppet government.

The Hague Regulations of 1907 states that no occupying power may effect major legal changes in a country and as such the new constitution is illegal and Bush and Blair can be charged with war crimes for trying to change Iraq’s laws.

His biggest problems are: 1) hiding his actual point within a load of silly allegations which, however valid simply detract from what he's really trying to say 2) taking the opportunity to make it look like he knows something about international law at the expense of actually making his point 3) generally having the written skills of a baboon.

Relying on the US Army Field Handbook as authority for the position of the occupation in International Law is something I wouldn't even expect from a first year law student. That really is the height of stupidity.

The sad thing is he might actually be on to something with his conclusions... it's just because he's writing in such a blatantly partisan manner and fails to actually go to the source instead relying on some soldiers handbook he simply going to be looked on as a crank.

funny to see that a Professor of Law has no idear what he talking about

and yet blind faith is put into a failed oil man


sorry not failed any more :p

http://news.bbc.co.uk/2/hi/africa/4349042.stm

maybe robert mugabe has a better idear on what is going on

[RunJct 0]

I was bored so I decided to get the online version of FM27-10 and reference my answer (to be a good little boy and always provide a reference i guess).

Chapter I:
"The purpose of this Manual is to provide authoritative guidance to military personnel on the customary and treaty law applicable to the conduct of warfare on land and to relationships between belligerents and neutral States."
....
"This Manual is an official publication of the United States Army. However, those provisions of the Manual which are neither statutes nor the text of treaties to which the United States is a party should not be considered binding upon courts and tribunals applying the law of war. However, such provisions are of evidentiary value insofar as they bear upon questions of custom and practice. "

There, I just had to do something to fill my time before bed so there's more reading for y'all.

Take care

If "if" were a fifth, then we'd all be drunk

[chuteless 1]

Rumsfeld should be handcuffed and sent to the Hague to stand trial as a war criminal.

Bill Cole

[Gawain 0]

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Give him a break, he's from Illinois.

yeah, just like abe lincoln.

Actually, Lincoln is from Kentucky.

So I try and I scream and I beg and I sigh
Just to prove I'm alive, and it's alright
'Cause tonight there's a way I'll make light of my treacherous life
Make light!

[kallend 2,026]

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Give him a break, he's from Illinois.

yeah, just like abe lincoln.

Actually, Lincoln is from Kentucky.

Yes, but he hasn't left Illinois for quite while now, so I think he qualifies as a resident.

Is it true he left Kentucky because he didn't want to marry his sister?

...

The only sure way to survive a canopy collision is not to have one.

[dustin19d 0]

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Next came the Pentagon's military strategy of inflicting "shock and awe" upon the city of Baghdad. To the contrary, article 6(b) of the 1945 Nuremberg Charter defined the term "War crimes" to include: "... wanton destruction of cities, towns or villages, or devastation not justified by military necessity
--------------------------------------------------

We didn't bomb the local 7-11 we bobmed sadams military HQ buildings(Command and Control) and his means to communicate to his troops in the field.

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