Fallujah War Crimes: Part 2

In my previous post I pointed out an article that suggested war crimes had been commited in the battle in and around Fallujah.

The response I got was predictably stern from some readers.

I have heard, over and over, that the insurgents do not qualify for protection under the Geneva or Hague Conventions because they are not signatories of those conventions… and somehow that absolves the US of any responsibility towards upholding the standards of the Geneva Convention.

It is clear that there have been possible cases of war crimes on both the Insurgency and Coalition sides. It should be up to an International Criminal Court to decide who qualifies for protection under the Conventions and who has or has not broken the rules. The US is an Occupying power… and as such has specfic articles to contend with under the Geneva Conventions.

I do want to point out one very important article in the 4th Geneva Convention that pertains to the Occupying Power in a country. (According to multiple UNSC resolutions, the US has taken responsibility as being the voice of the “Authority” and the multinational forces inside Iraq)

Article 49:
….
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. … Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.

There has been an incredible lack of information regarding the refugees from Fallujah… but those sections that I have bolded highlight areas where I suspect America has fallen far short of the spirit of the Geneva Conventions.

There were, as far as I know, no camps specifically made to harbour Fallujans before the offensive took place. Residents were simply told to Get Out.

The Geneva Conventions also imply an orderly and organised evacuation of residents… so that when the time came and military operations ceased (which they did in December) displaced residents and families could be moved back to their homes and compensated for their loss in a timely manner.

None of that, to my knowledge, has hapenned. If it had, I would fully expect the US Propaga… err State Department breifings to have filled us all in as to the wonderful work the US has done protecting civilians in Fallujah.

Strangely… we hear nothing about Fallujah… and what’s more worrisome is that no one seems to be asking.

11 thoughts on “Fallujah War Crimes: Part 2”

  1. “I have heard, over and over, that the insurgents do not qualify for protection under the Geneva or Hague Conventions because they are not signatories of those conventions… and somehow that absolves the US of any responsibility towards upholding the standards of the Geneva Convention.”

    “…somehow…”?!

    This isn’t complicated! The Geneva Convention is a CONTRACT.

    Just like ANY contract, it applies to the SIGNATORIES, and does NOT apply to those who don’t sign! A contract has obligations, and a contract has privileges. Those who don’t sign don’t get the privileges. And those who do sign do NOT have obligations to those who didn’t sign.

    The Geneva Convention(III) very clearly says that the rules ONLY apply when “conflict shall arise between TWO OR MORE of the High Contracting Parties.” (Emphasis added.)

    If you sign a contract with a rental car company, you agree to obligations, and you receive privileges. Those same rules do NOT apply if you borrow a friend’s car. For example, if you rent a car, the contract typically calls for you to return the car with the gas tank filled, or else you have to pay some (very high) refueling fee. If you rent a car from a friend, you are NOT legally obligated to return the car with the same amount of gas in it as when you borrowed it…unless you BOTH had some agreement to that effect (either written or oral).

    Can you follow that? Or is that too complicated?

    P.S. This is part of the reason why I will be absolutely outraged if my government ever agrees to have U.S. soldiers answerable to an International Criminal Court. I strongly suspect that such a court would have the same lack of understanding of basic legal principles as you. (Though they would no doubt be good leftists!)

  2. The Geneva Conventions simply aren’t as simple as you would like them to be.

    Just because the insurgency doesn’t wear badges or markers or is a signatory of the Conventions does *not* absolve the US from treating those combatants… and especially civilians, in according with the Geneva conventions.

    The day Saddam fell and the Authority took control the US was an Occupying Power. As such it is subject to the rules set out in the 4th Geneva Convention.

    To whit:

    Art 2:

    The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

    Art 3:

    Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties (Iraq), each Party (the US, UK, multinational, and Iraqi forces) to the conflict shall be bound to apply, as a minimum, the following
    provisions:

    Art 4: Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

    My interpretation of Article 4 is that even insurgents/terrorists who have travelled from other countries are protected by the Conventions as long as those countries are signatories of the Geneva Conventions.

    I will defer, however to Amnesty International… who produced a report in April 2003 on the responsibilities of the US and UK as Occupying powers.

    Within it it says:

    In fact, most of the basic rules on occupation are of a customary law character, and are universally binding. None allow for any derogation.

    In line with international humanitarian law, any occupying power is also under the obligation to respect the provisions of the human rights treaties to which the country whose territory is partially or totally occupied is a party, especially when, as in the case of Iraq, such treaties are formally incorporated in the occupied country’s legal system.

    Further, the Human Rights Committee, and other bodies monitoring the implementation by states of their human rights obligations under the treaties they have ratified, have consistently stressed that such obligations extend to any territory in which a state exercises jurisdiction or control, including territories occupied as a result of military action. In administering Iraq, the USA and UK must therefore respect their own international human rights obligations in addition to those under international humanitarian law.


    The question may arise whether the law on occupation still applies if new civilian authorities set up by the occupying power from among nationals of the occupied territories are running the occupied territory’s daily affairs. The answer is affirmative, as long as the occupying forces are still present in that territory and exercise final control over the acts of the local authorities.

    The responsibility of the occupying power does not mean responsibility for each and every act of the local civilian administration. But if the local administration lacks, for example, the means to provide adequate health care, it is the duty of the occupying power to take remedial action. It cannot relinquish its basic responsibility for the well-being of the territory’s inhabitants by claiming that local authorities are in charge.

    I don’t think I need to say anything more.

    It’s clear that the US and UK are bound by the Conventions and Treaties that they have signed. That means that they must follow both their own rules as set out in their own military manuals (specified by Am Int) as well as International conventions to which Iraq is a signatory.

    That means that:

    a) US Military personell can’t roll over wounded civilians or insurgents in the streets

    b) US military can’t shoot civilians or insurgents if they are obviously fleeing or *waving a white flag*

    c) the US and Iraqi gov. are responsible for providing shelter for refugees and then compensating and returning those refugees to their homes.

  3. The reason the US and many (but not ALL!) Americans don’t support the ICC is because they fear they will be prosecuted there.

    I can’t imagine why they would fear that… oh wait.. perhaps because their overly aggressive unilateral wars have led to crimes being committed by their troops and commanders.

    It’s simply not rational for the US to resist the ICC. Now, instead of sending away the Bad Apples of the US Armed Forces to the ICC, the US has to deal with them itself (or not), and face all the bad PR upfront.

    At least with the ICC they could say, Hey! This guy screwed up and we’re sending him to the ICC because he broke the law and because *we* don’t support such actions.

    I fail to understand what good it does to avoid it.

  4. “The Geneva Conventions simply aren’t as simple as you would like them to be.”

    If one can understand the concept of a contract, they ARE simple.

    The problem–from your standpoint–is that their language clearly and directly conflicts with what you would LIKE them to say. So you completely ignore the language of The Law, because it doesn’t seem “right” to you. For example, you write:

    “Just because the insurgency doesn’t wear badges or markers or is a signatory of the Conventions does *not* absolve the US from treating those combatants… in according with the Geneva conventions.”

    See, you ADMIT the “insurgents” don’t wear anything that distinguishes them from civilians. And you ADMIT that they are signatories of the Geneva Conventions. (You “conveniently” also fail to mention a bunch of other things that I have already pointed out, that clearly establish that they are NOT lawful combatants, and thus are clearly NOT covered by the Geneva Conventions.)

    So even though you ADMIT that the combatants don’t meet the requirements for protection by the Geneva Conventions, you still insist that they should be protected.

    Not only are you blatantly ignoring THE LAW, your position completely undermines the concept of any rules that protect LAWFUL combatants.

    Once again, the Geneva Convention(s) are a CONTRACT. Contracts are legal devices intended to provide privileges and extend obligations to the signatories.

    If an entity (the scumbag “insurgents”) gets the PRIVILEGES of the contract, without either signing the contract or abiding by its rules, there is absolutely no downside from NOT signing, and completely flouting the rules. That is precisely what the insurgents have done.

    And YOU would protect them…in direct contradiction of the plain language of the Geneva Convention(s).

    P.S. There are bombs going off in Iraqi cities just about every day. I wonder if those insurgents came to YOUR city and set off their bombs…would you still claim that they are protected by the Geneva Conventions? How about if they brought an AK-47, and started killing Canadian troops or civilians? Would you say, “Well, they don’t have any sort of uniform, and they answer to no commander, and they represent no government, but they’re still protected by the Geneva Conventions”?

  5. Mark:

    You obviously didn’t read my whole response.

    Yes I did say that the insurgents are not wearing badges… and thus if they were fighting a war with the US then they would not be covered by the Geneva Conventions.

    HOWEVER.

    The minute the Iraqi government collapsed and the Army disbanded the US/UK turned into an Occupying force and thus the 3rd Convention no longer applies… rather then 4th convention governing Occupying Powers takes effect and as the citizens the US and all Iraqi citizens are governed by the treaties their respective governments have signed (even if those governments don’t actually exist) they are both protected by them as well no matter who’s doing the fighting within Iraqs borders.

    Yes, if an *individual* insurgent terrorist is using a Mosque or other place forbidden by the Conventions for military operations then he forfeits his rights.

    However, as citizens of Iraq, or other signatory countries… if they are an identifiable groups launching mortar and rocket attacks against the Occupying forces from buildings or streets then they are, in my view, most definitely protected by Geneva Conventions…

    And most importantly the civilian population is protected by the Geneva Conventions no matter what the status of the “insurgents” so if the US army is going around shooting at people *WHO HAVE NO WEAPONS* and who *ARE WAVING A WHITE FLAG* then there is obviously a crime being committed there.

    What I find most disturbing about your position is that you imply that because one person may not qualify as protected by the Conventions than an entire group does not qualify and that somehow absolves you from any guilt in any crime.

    You’re right… people planting roadside bombs and then running away, or doing suicide bombings, are not covered by the Geneva Conventions, they are terrorists and criminals and are to be dealt with by security forces (police or army) appropriately.

    HOWEVER. We’re talking specifically about Fallujah. Where there was a specific concentration of insurgents. Where the Occupying Forces went in and launched a *military campaign* to clean out the city. And where, during that military operation, civilians and insurgents… the distinction is obviously blurry and important… were possibly harmed and killed in ways that contravened the Geneva Conventions.

    Even if you turn out to be right and every insurgent in Iraq is absolutely *not* covered by the Geneva Conventions… the civilian population *is* and always will be.

    As such, the US has a responsibility to determine who is an insurgent and who is a civilian while they are conducting military operations… it seems clear to me that shooting people from helicopters while they attempt to flee, unarmed, across a river, is… to be diplomatic… suspect.

    Your issue seems to be more that you can’t imagine that any American soldier would contravene the Geneva Conventions… unfortuantely, war brings out the worst in people… which is exactly why these rules exist.

    The US needs to do the honourable thing and submit itself to be investigated.

  6. Chrisale writes, “Yes I did say that the insurgents are not wearing badges… and thus if they were fighting a war with the US then they would not be covered by the Geneva Conventions.”

    Then,

    “However, as citizens of Iraq, or other signatory countries… if they are an identifiable groups launching mortar and rocket attacks against the Occupying forces from buildings or streets then they are, in my view, most definitely protected by Geneva Conventions…”

    Your “view” is completely contradicted by the actual writing of the Geneva Conventions.

    1) What identification do they wear to distinguish themselves from civilians? Since the answer is “none,” they are NOT protected.

    2) What is their chain of command (i.e. who are their leaders)? Since their leaders are NOT idenfitied, they are NOT protected.

    3) Did they fight from areas forbidden according to the Geneva Conventions (i.e., mosques)? Since the answer in Fallujah is unquestionably “Yes!” (a MAJORITY of the 100 mosques in Fallujah were used as fighting positions) then they are NOT protected.

    Your “view” seems to be that any Tom, Dick, or Mohammed who wants to fire at U.S. troops is protected. This is absolutely NOT the case, under the Geneva Conventions.

    The United States and its allies came into Iraq to topple Saddam Hussein’s government. While that was happening, Saddam Hussein’s soldiers were protected. After Saddam Hussein’s government fell, no one in Iraq was protected by the Geneva Conventions, UNLESS:

    1) They formed regular troops, wearing identification to distinguish themselves from civilians (NONE have done that), reporting to an established chain of command (NONE has been identified) and following the “rules and customs of war” (which certainly they did NOT do, especially in Fallujah),….or

    2) They were civilians who ended up occupied and didn’t have time to form regular troops or militias. This is NOT the case ANYWHERE in Iraq, since it has been OVER TWO YEARS since the U.S. and its allies invaded.

    Your “view” directly contradicts the plain language of the Geneva Conventions, and your “view” endangers the very civilians you presumably want to protect.

    “The US needs to do the honourable thing and submit itself to be investigated.”

    Bwahahahaha! By whom…legally ignorant and biased people?

    Tell you what: I’ll be charitable to the “insurgents” (criminals), and estimate that they committed 5 war crimes in Fallujah for every 1 war crime committed by the U.S. When the “insurgents” have voluntarily delivered up 5 of their own to an international tribunal for war crimes prosecution, then I’ll agree that 1 U.S. soldier should be brought before that same international tribunal. Until that happens (i.e., until Hell freezes over), I support the U.S. military dealing with its own soldiers.

  7. I wrote, “After Saddam Hussein’s government fell, NO ONE in Iraq was protected by the Geneva Conventions, UNLESS…”

    I meant “no one *engaged in combat* against the U.S. or Iraqi government was protected by the Geneva Conventions, UNLESS…”

    Civilians are protected at all times.

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