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U.S. War Crimes in Iraq:
A Prima Facie Case

Respectfully submitted to the International Criminal Court

by Paul Rockwell
Oakland, California

The international dispatches about the U.S. invasion and occupation of Iraq -- replete with graphic details about overcrowded hospitals, U.S. cluster bomb shrapnel buried in the flesh of children, babies deformed by U.S. depleted uranium, farms and markets destroyed by U.S. bombs -- do not make pleasant reading. The mounting evidence from Iraq establishes what many Americans may not want to face: that the highest leaders of the land are violating almost every international agreement relating to the rules of war. Unless we address the possibility of the war crimes by the Bush administration -- and the prima facie evidence is overwhelming -- we betray our conscience, our country, and our own faith in democracy.

It was not until the mid-19th century, after the founding of the International Red Cross, that modern laws of war were framed and codified laws that reflect minimal obligations of all nations and individuals in times of war. Humanitarian laws were not written by pacifists or idealistic reformers. They were conceived by kings, tsars, chancellors, and military leaders shocked by the carnage of their own organized violence.

The United States is bound by customary law and international laws of war, by the Hague Conventions of 1889 and 1907, the Geneva Conventions of 1949, and the Nuremberg Conventions adopted by the United Nations (U.N.) December 11, 1945 -- all of which set limits beyond which, by common consent, decent peoples will not go. Under the Constitution, all treaties are part of the supreme law of the land. Humanitarian law rests on a simple principle; that human rights are measured by one yardstick. Without that principle, all jurisprudence descends into mere piety and power.

When laws of war were codified, military necessity ceased to be the final arbiter of human rights and civility. Nor do violations of the laws of war by one belligerent vindicate the war crimes of another.

For the high officials who planned and supervised military operations in Iraq, the "shock-and-awe" campaign encompasses three major types of war crimes, all in violation of the Geneva Conventions of 1949: The "wanton destruction of cities, towns, and villages" in violation of the Nuremberg principles. The premeditated use of weapons known to cause unnecessary suffering and indiscriminate destruction. The use of depleted uranium, the poison of radiation that is destroying the lives of untold numbers of civilians and soldiers, including American personnel.

We are not referring to incidental transgressions of humanitarian law, or even the war crimes of desperate infantrymen in the heat of battle -- like soldiers who recently fired bullets into crowds of anti-occupation demonstrators in Iraq -- follies committed out of fear, confusion, and the hatred that all war evokes. It's not the crimes of passion, but the crimes of calculation that require moral reappraisal.

War Crimes From The Air

"The crimes hereinafter set out are punishable as crimes under international law: wanton destruction of cities, towns, or villages, or destruction not justified by military necessity." -- Nuremberg conventions, Principle VI

Combatants "shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and, accordingly, shall direct their operations only against military objectives."
-- Geneva Conventions, part IV, Article 48

Under the Geneva Conventions and customary law, it is a war crime to launch indiscriminate attacks affecting the civilian population or civilian objects in the knowledge that such attacks will cause excessive loss of life, injury to civilians, or damage to civilian objects. The distinction between combatants and non-combatants is fundamental to all humanitarian law.

No Iraqi citizen who survived the air war in Iraq, especially the sustained six-day bombing of Baghdad, a city of 5 million people, will ever forget the devastation and terror of the "shock-and-awe" campaign against Iraq.

According to Peter Ford of the Christian Science Monitor, the air war over Iraq was "the deadliest campaign for noncombatants that U.S. forces have fought since Vietnam." Reports gathered from hospitals, homes, mosques and morgues show a level of civilian casualties that far exceeds the First Gulf War, which cost about 5,000 civilian lives. Nearly 100 villagers, for example, "were killed by U.S. bombing and strafing on April 5, including 43 in one house. 'There was no military base here,' said Hamadia. 'This is just a peasant village.' " (Christian Science Monitor, May 22)

The Campaign for Innocent Victims of Conflict (CIVIC) deployed 150 surveyors and carried out detailed interviews with victims. CIVIC recorded more than 1,000 civilian deaths in Nasariya alone.

In early April, Agence France Presse reported that "twenty people, including 11 children, were killed Saturday when a nighttime air raid hit a farm in the Al Janabin suburb on the edge of Baghdad." The next day Al Jazeera TV showed footage of Bartallah, a predominately Christian town north of Monsul, suffering heavy civilian casualties after a night of intense bombing. According to the chief surgeon at the local hospital, 120 dead and wounded civilians were brought into the hospital in one week. Commenting on the Iraqi toll, a representative of the Iraqi Red Crescent in Baghdad said, "It is a big disaster. Thousands are dead; thousands are missing."

The Christian Science Monitor estimates that 30 civilians die for every U.S. military casualty, a ratio that manifests criminality of military operations under Bush and Rumsfeld.

Writing for the Independent (U.K.) Robert Fisk, an un-embedded international reporter known for his impassioned dispatches, wrote: "On April 8 three weeks into the invasion, the Americans dropped four 2,000-pound bombs on the Baghdad residential area of Mansur. They knew they would kill civilians because it was not a 'risk-free venture'. They killed 14 civilians in Mansur, most of them members of a Christian family. No American officers have apologized for this appalling killing, and I can promise them that the baby I saw being placed under a sheet of black plastic was very definitely not Saddam Hussein."

Day after day, Robert Fisk describes the bombs that fail to distinguish between combatants and non-combatants, the "wanton destruction of cities."

"It was an outrage," Fisk writes, "an obscenity ... the human brains inside a garage, the incinerated, skeletal remains of an Iraqi mother and her three small children in their still-smoldering car. Two missiles from an American jet killed them all -- by my estimate, more than 20 Iraqi civilians torn to pieces ... Abu Taleb Street was packed with pedestrians and motorists when the American pilot approached through the dense sandstorm. ... Everyone I spoke to heard the plane.

"Abu Hassan and Malek Hammond were preparing lunch for customers at the Nasser restaurant on the north side of Abu Taleb Street. The missile that killed them landed near to the carriage way, its blast tearing away the roof of the cafe and cutting the two men to pieces. A fellow worker led me through the rubble. At least 15 cars burst into flames, burning many of their occupants to death."

Depleted Uranium

"It is especially forbidden to employ poison or poisoned weapons, to kill treacherously individuals belonging to the hostile nation or army, to employ arms, projectiles or material calculated to cause unnecessary suffering." -- Hague Convention IV, Article 23

Eleven miles north of the Kuwaiti border on the "Highway of Death," disabled tanks, armored personnel carriers, gutted public vehicles -- the mangled metals of Desert Storm -- are resting in the desert radiating nuclear energy. American soldiers who lived for three months in the toxic wasteland now suffer from fatigue, joint and muscle pain, respiratory ailments -- a host of maladies often known as the Gulf War Syndrome.

Ever since the end of Desert Storm, where the Pentagon unloaded 350 tons of depleted uranium (DU), American officials were well aware of the health hazards of the residue that is collected from the processing of nuclear fuel. When the Pentagon authorized new use of depleted uranium for the preemptive invasion of Iraq, the Bush administration not only committed a war crime against Iraq, it demonstrated reckless disregard for the health and safety of American troops.

Of all the violations of the laws of war by the highest officials of the country, none is more alarming or portentous than the widespread, premeditated use of depleted uranium in Iraq. What if other countries follow Bush's example?

The use of depleted uranium is a war crime. Article 23 of the Geneva Convention IV is clear: "It is forbidden to employ poison or poisoned weapons, to kill treacherously individuals belonging to the hostile nation or army, to employ arms, projectiles or material calculated to cause unnecessary suffering." the Geneva Protocol of 1925 explicitly prohibits "asphyxiating, poisonous or other gasses, and all analogous liquids, materials or devices."

The radiation produced by depleted uranium in battle is a poison, a carcinogenic material that causes birth defects, lung disease, kidney disease, leukemia, breast cancer, lymphoma, bone cancer, and neurological disabilities.

Depleted uranium is much denser than lead and enables U.S. weapons to penetrate steel, a great advantage in modern war. But under the Geneva Conventions, "the means of injuring the enemy are not unlimited." When DU munitions explode, the air is bathed in a fine radioactive dust, which carries on the wind, is easily inhaled, and eventually enters the soil, pollutes ground water, and enters the food chain. Unexploded casings gradually oxidize, releasing more uranium into the environment. Handlers of depleted uranium in the U.S. are required to wear masks and protective clothing -- a requirement that Iraqi and American soldiers, not to mention civilians, are unable to fulfill.

After the Gulf War in 1991, Iraqi hospitals recorded a surge in cancer and birth defects. Hospital statistics from Basra show that in 1988 there were 11 cancer cases per 100,000 people. By 2001, after schools, homes, and entire neighborhoods were leveled from the air, the number increased to 116 per 100,000. Breast and lung cancer and leukemia showed up in all areas contaminated by depleted uranium. Dr. Jawad al-Ali, cancer specialist at the Basra Training Hospital, noted that "The only factor that has changed here since the 1991 war is radiation." Thirteen members of his staff, all present when the hospital area was bombed, are now cancer patients.

The Christian Science Monitor recently sent reporters to Iraq to investigate long-term effects of depleted uranium. Staff writer Scott Peterson saw children playing on top of a burnt-out tank near a vegetable stand on the outskirts of Baghdad, a tank that had been destroyed by armor-piercing shells coated with depleted uranium. Wearing his mask and protective clothing, he pointed his Geiger counter toward the tank. It registered 1,000 times the normal background radiation. The families who survived the tragic decade of sanctions, even the children who recently survived the bombing of Baghdad, may not survive the radiated aftermath of military profligacy. Uranium remains radioactive for two billion years. That's a long time for reconstruction.

According to Dr. Doug Rokke, U.S. Army health physicist who led the first clean-up of depleted uranium after the Gulf War, "Depleted uranium is a crime against God and humanity." Rokke's own crew, a hundred employees, was devastated by exposure to the fine dust. "When we went to the Gulf, we were all really healthy," he said. After performing clean-up operations in the desert (mistakenly without protective gear), thirty members of his staff died, and most others -- including Rokke himself -- developed serious health problems. Rokke now has reactive airway disease, neurological damage, cataracts, and kidney problems. "We warned the Department of Defense in 1991 after the Gulf War. Their arrogance is beyond comprehension."

The growing outcry against the use of depleted uranium is not a matter of minor legal technicalities. The laws of war prohibit the use of weapons that have deadly and inhumane effects beyond the field of battle. Nor can weapons be legally deployed in war when they are known to remain active, or cause harm after the war concludes.

The use of depleted uranium is a crime whose horrific consequences have yet to run their course.

In his State of the Union address, President Bush said that Iraq tried to obtain uranium from Africa. Bush lied. Authorized by the Pentagon, 2,000 tons of depleted uranium in Iraq -- and the inevitable tragedies of radiation sickness -- came from U.S. merchants of death, not Africa. The epitaph for the Punic wars is quite appropriate for the U.S. in Iraq: "They made a wasteland and called it peace."

Cluster Bombs Are Indiscriminate

It is a war crime to launch "an indiscriminate attack affecting the civilian population in the knowledge that such an attack will cause an excessive loss of life or injury to civilians." Geneva Conventions, Article 85 "It is especially forbidden to kill treacherously individuals belonging to the hostile nation or army." -- Hague Conventions, Article 23

"The right of belligerents to adopt means of injuring the enemy is not unlimited"
-- Hague Conventions, Article 22

The formal war in Iraq has ended, and most of the big guns have fallen silent. Yet the death toll continues to rise, not merely because of the brutality of occupation and the resistance, but because of one of the most heinous, unpredictable weapons of modern war -- the cluster bomb.

All over Iraq, unexploded cluster bombs, originally dropped by U.S. troops in populated areas, are still killing and maiming civilians, farm animals, wildlife -- any living thing that touches them by accident.

A cluster bomb is a 14-foot weapon that weighs about 1,000 pounds. When it explodes it sprays hundreds of smaller bomblets over an area the size of two or three football fields. The bomblets are bright yellow and look like beer cans. And because they look like playthings, thousands of children have been killed by dormant bomblets in Afghanistan, Kuwait and Iraq. Each bomblet sprays flying shards of metal that can tear through a quarter inch of steel.

The failure rate, the unexploded rate, is very high, often around 15 to 20 percent. When bomblets fail to detonate on the first round, they become land mines that explode on simple touch at any time.

Human Rights Watch reports that 1600 Kuwaiti and Iraqi civilians have been killed, many more injured, by explosive duds following the Persian Gulf war.

Under the Geneva Conventions, cluster bombs are criminal weapons because it is impossible to use them in significant numbers without indiscriminate effects. It is a war crime to use weapons in the knowledge that they "will cause an excessive loss of life or injury to civilians."

In the war in Bosnia in 1995, Major General Michael Ryan recognized the inherent danger to civilians and, out of respect for the laws of war, prohibited the use of cluster bombs in the European theatre. According to Air Force reports, "The problem was that the fragmentation pattern was too large to sufficiently limit collateral damage and there was also the further problem of potential unexploded ordinance."

A U.N. clearance expert said that "Our experience in Kosovo showed us that children and youths are highly susceptible to the submunitions."

There is a humanitarian crisis in every country where the U.S. dropped cluster bombs -- in Kuwait, Afghanistan, and Iraq. Under Article 49 of the Geneva Conventions on Civilians, the Occupying Power has a responsibility to return evacuated personnel to their homes at the end of hostilities -- a responsibility which live cluster bombs make impossible to fulfill. Thousands of displaced persons in Afghanistan cannot return to their homes because their farms, houses and villages are replete with unexploded bomblets.

Before the invasion of Iraq, Human Rights Watch called for a moratorium on the use of cluster bombs. Human Rights director Steve Close predicted that "Iraqi civilians will be paying the price with their lives and limbs for many years." A U.N. weapons commission described cluster bombs as "weapons of indiscriminate effects."

In defiance of U.N. reports, Air Force studies, and repeated warnings from Human Rights Watch, Rumsfeld reauthorized the expanded use of cluster bombs with full knowledge of their indiscriminate and treacherous results.

The consequences of his war crime, as reported by international journalists and photographers, are appalling.

On April 10th Asia Times described the carnage of U.S. cluster bombs. "All over Baghdad, the city's five main hospitals simply cannot cope with an avalanche of civilian casualties. Doctors can't get to the hospitals because of the bombing. Dr. Osama Saleh-al-Deleimi at the al-Kindi hospital confirms the absolute majority of patients are women and children, victims of ... shrapnel and most of all, fragments of cluster bombs. 'They are all civilians, ' he said. 'The International Committee of the Red Cross is in a state of almost desperation ... casualties arriving at hospitals at a rate of as many as 100 per hour and at least 100 per day.' "

Anton Antonowicz reported in The Mirror (U.K.) from a hospital in Hillah: "Among the 168 patients I counted, not one was being treated for bullet wounds. All of them, men, women, children, bore the wounds of bomb shrapnel. It peppered their bodies. Blackened the skin. Smashed heads. Tore limbs. A doctor reported that 'All the injuries you see were caused by cluster bombs ... The majority of the victims were children who died because they were outside.'"

Reporting from Baghdad March 27th, Doug Johnson wrote: "I'm overwhelmed and tired. For three days now I've concentrated on visiting injured civilians in hospitals and seeing bombed sites. This morning we interviewed an extended family of 25 that had been living in six houses together on one farm just outside of Baghdad. At 6:00 p.m. yesterday, B-52s dropped cluster bombs on their farm destroying all six houses, killing four and severely injuring many others. Even the farm animals were killed. We were told that the yellow cylinders landed in their yard, and when they and the animals crept closer to investigate, the bombs detonated."

During the invasion of Iraq, Donald Rumsfeld lauded the accuracy of stealth bombers and missiles -- a boast met with mockery in the streets of Baghdad. But whatever we think about Rumsfeld's humanitarian missiles, he cannot plead ignorance about the traits and effects of cluster bombs. Ever since the Vietnam catastrophe, from the hospitals of Saigon to the clinics of Afghanistan, into the wailing hospitals of Iraq, doctors have been digging shrapnel out of the maimed bodies of once-playful children all around the world. Cluster bombs were always known for their inaccuracy, their indiscriminate and unpredictable nature.

A Backward Glance

Even before the U.S. invasion began, as Bush prepared to shock and awe a country crippled by sanctions, Iraqis feared for their lives, for their farms and small businesses, and for the safety of their children. Anticipation itself is a kind of terror. Thousands of citizens fled the city of Baghdad in search of safety, if not peace. No one knew what structures would be targeted, or when the rain of death would commence, but well-educated Iraqis knew all about U.S. air power -- the dropping of atomic bombs on Hiroshima and Nagasaki, the B-52 carpet bombing in Vietnam, the indiscriminate use of napalm and cluster bombs, the infamy of Agent Orange.

Gross violations of the laws of war in Iraq did not begin with George W. Bush and Donald Rumsfeld. The path from the first Gulf War to the current occupation is filled with horrific episodes.

Every major city in Iraq has stories to tell about civilian casualties, the chaos caused by fire storms from the skies. The entire Arab world remembers the infamous bombing of the civilian bomb shelter in Amariyah, where two firebombs burned more than a thousand civilians to death in the early morning hours of February 13th, 1991. While the story of Amariyah spread by word of mouth throughout Iraq, Western journalists acquired a videotape of the catastrophe. According to the Columbia Journalism Review, "the unedited Baghdad video feeds showed scenes of incredible carnage. Nearly all the bodies were charred into blackness. Rescue workers collapsed in grief."

After the first Gulf War, hundreds of soldiers and veterans, including active duty troops and reservists, came together and signed a call-to-conscience: "We are veterans of the United States Armed Forces. In the last Gulf War, as troops we were ordered to murder from a safe distance. We remember the road to Basra -- the Highway of Death -- where we were ordered to kill fleeing Iraqis. We bulldozed trenches, burying people alive."

While the mass burial in the sand, the raw images of death, never appeared on national TV -- owing to rigorous censorship of the sordid realities of Desert Storm -- the soldiers themselves will never forget what took place on the road to Basra, when thousands of disabled Iraqi troops, seeking to surrender, were mowed down by fuel air explosives, napalm bombs, and even super-bombs nearly equivalent to low-yield, short-range nuclear missiles.

The U.S. Army Field Manual, the GI's authoritative guide on the laws of war that contains extensive passages from the Geneva Conventions, states: "Members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely. The wounded and sick shall be collected and cared for."

Article 23 of the Hague Conventions is unequivocal: "It is especially forbidden to kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion."

At the March-April European Parliament hearings at the end of the Gulf War, Mike Erlich, member of the Military Counseling Network, described the execution of defeated soldiers: "Hundreds, possibly thousands of Iraqi soldiers began walking toward the U.S. position unarmed, with their arms raised in an attempt to surrender. However, the orders for this unit were not to take any prisoners...the commander of the unit began firing. At this point, everybody in the unit began shooting. Quite simply it was a slaughter."

Portions of the desert story did appear in the print media, after Newsday reporters got to see Pentagon videotapes of the deadly assault on defenseless units. According to Newsday (September 12, 1991) entire units of the Iraqi Army did not want to fight. Vehicles with white flags of surrender were destroyed, and pilots in attack planes likened the campaign to "shooting fish in a barrel." Veterans of Desert Storm describe the massacre on the road to Basra as "the turkey shoot".

The slaughter of helpless troops was followed by a second war crime: mass burial of Iraqi soldiers, some dead, some still living. Mounting ploughs on their tanks, U.S. soldiers were ordered to bulldoze Iraqi bodies into trenches, soon covered with sand.

Burial of the dead weighs heavily on religious people, and military authorities know the importance of proper burial to the morale of the survivors. The Geneva Conventions not only prohibit desecration of the dead, they require belligerents "to search for the dead and prevent them from being despoiled."

The televised and sanitized triumph of technology in Desert Storm will never eclipse the soldiers' memory of human carnage. Soldiers who are forced to act against the laws of war, against their religious faith and conscience, must live with their acts for the rest of their lives.

Still We Hold Our Tongues

Robert Fisk, the British journalist who witnessed U.S. air raids from the streets, markets, and hotels of Iraq, writes: "Three days ago, an entire family of nine was wiped out in their home. Pilots fire through computer-aligned co-ordinates. Of course the pilot who killed the innocents could not see his victims."

Fisk's insight about the insularity of industrial warfare recalls the writings of George Orwell, who survived another blitzkrieg, the air war over London in 1941. Orwell wrote: "As I write, highly civilized human beings are flying overhead trying to kill me. They do not feel any enmity against me as an individual, nor I against them. They are only doing their duty, as the saying goes. Most of them, I have no doubt, are kind-hearted law-abiding men who would never dream of committing murder in private life. On the other hand, if one of them succeeds in blowing me to pieces with a well-placed bomb, he will never sleep any worse for it. He is serving his country, which has the power to absolve him from evil. One cannot see the modern world as it is unless one recognizes the overwhelming strength of national loyalty. Christianity and international socialism are as weak as straw in comparison to it. Hitler and Mussolini rose to power in their own countries very largely because they could grasp this fact and their opponents could not."

Even before Hannah Arendt coined her ironic phrase, the "banality of evil," George Orwell called attention to the normalcy of war crimes in the 20th century, and he wrote extensively about the power of nationalism in destroying the essential decency of civilized, democratic peoples. Nationalism creates a culture of impunity that makes atrocities invisible, if not acceptable. No republic in time of war has ever held its own leaders accountable for war crimes committed in its name. One prod of the nerve of nationalism, and the plainest facts can be denied. If one harbors anywhere in one's mind a nationalistic loyalty or hatred, certain facts, although in a sense known to be true, are inadmissible. For the nationalist, actions are held to be good or bad, not on their own merits, but according to who does them. And there is almost no kind of outrage -- torture, the use of hostages forced labor, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians -- which does not change its moral color when it is committed by 'our' side. The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them.

Both Orwell and Arendt believed that, when great wrongs have taken place, it is the duty of moral men and women to call attention to such acts regardless of who actually commits them.

Years ago in the midst of France's brutal war in Algeria, the philosopher Jean Paul Sartre admonished the French intelligentsia: "It is not right, my fellow-countrymen, you who know very well all the crimes committed in our name. It's not at all right that you do not breathe a word about them to anyone, not even to your own soul, for fear of having to stand in judgment of yourself. I am willing to believe that at the beginning you did not realize what was happening; later, you doubted whether such things could be true; but now you know, and still you hold your tongues."

Paul Rockwell is a writer in the Bay Area

Published in In Motion Magazine January 31, 2004

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