War in Iraq
U.S. forces have entered Baghdad and post-war reconstruction is being discussed by the Bush administration and British Prime Minister Tony Blair. At the same time, Iraqi civilian assistance and relief efforts are underway. With the continuation of various relief efforts and civilian casualties, how are civil rights and laws being evaluated?
What are some legal issues dealt by relief organizations working with refugees? How are civilian rights protected during urban warfare? What are the legal implications for prisoners of war?
Claude Bruderlein, director of the Harvard Program on Humanitarian Policy and Conflict Research, which hosts the International Humanitarian Law Research Initiative, was online Wednesday, April 9, at 2 p.m. ET to talk about monitoring humanitarian law in Iraq.
Bruderlein is a research scientist at the Harvard School of Public Health and lecturer at the Harvard Law School. He currently advises the UN Secretariat on humanitarian issues, the negotiation of humanitarian access and conflict prevention strategies. Since 1985, he has been engaged in international humanitarian protection. He has served with the International Committee of the Red Cross as a delegate in Iran, Israel and the Occupied Territories, Saudi Arabia, Kuwait and Yemen. In 1996, he joined the United Nations in New York as special adviser on Humanitarian Affairs.
The transcript follows.
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Claude Bruderlein: Good afternoon. International humanitarian law (IHL) is a very important topic at this juncture. It provides a clear set of obligations for the military to ensure basic protection of civilians in the present crisis circumstances. IHL is composed on the Geneva Conventions and other legal instruments that have been ratified by almost all states.
Gaithersburg, Md.: I read that some of the aid that has been given out to citizens is later stolen from them by other citizens. How will the United States or the UN handle all the stealing of goods both from citizens stealing from each other and the looting of post-government goods? It seems that the weakest will not be able to secure enough food to survive unless there is massive military presence in every town.
Claude Bruderlein: Looting and insecurity in the present circumstances in cities such as Baghdad and Basra are very worrisome. The latest news shows how difficult the distribution of relief will be without the U.S. military securing access to the civilian population. Under the Geneva Conventions, if the U.S. military has effective control over the city, they have the obligation to provide relief to the civilians (food, water, shelter, health services). The priority now is to provide security and restore order.
Falls Church, Va.: Here is a war and law question that we've been playing with since the whole thing started.
If no weapons of mass destruction are ever found, then the U.S. justification for the war seems unfounded; and if Saddam somehow survived (let's say he's actually directing the war from a hotel room on the Syrian beach).
Then could he "legally" say I want my country back (he won the last election) and I would like to "sue" the U.S. and Britain for damages (several trillion dollars, I guess).
Don't get me wrong, no matter how you view the justification for the war, it certainly seems the country and people of both Iraq and the World are better off without him -- but I am wondering what the "legal" implications are, if the war is "unjustified."
Claude Bruderlein: From the start, there has been considerable debate around the question of the legality of the war. Those debates are likely to continue. IHL applies independently from any political or legal justifications for the use of force. IHL applies to all sides and focuses on the conduct of combatants in hostilities. It seeks to regulate and contain violence and thereby preserve a minimum of humanity.
Independence, Mo.: No doubt many of the Iraqi prisoners of war were likely conscripted and did not offer any major resistance. As I read of the many civilian casualties, I realize that many of these men are someone's son or brother or father. With so many families impacted and perhaps many children orphaned, what if anything can be done to reunite many of these men with their families quickly to insure greater stability to the family units and diminish the increased negative feelings as a result of the American and British actions?
Claude Bruderlein: The treatment of prisoners of war is one of the key components of the law applicable in times of conflict. The prisoners of war have to be protected and cared for by the Detaining Power. In the case of Iraqi prisoners of war, these prisoners must be hosted in appropriate camps until the end of hostilities. At this point, they must be repatriated and the difficult question here is to define when hostilities have ended.
Cherry Hill, N.J.: Is relief aid in Iraq substantial enough to be making a difference in the lives of those suffering from the effects of the war?
Claude Bruderlein: International relief operations are of critical importance in Iraq and this was the case even before the war started. For the last ten years, Iraq has been under strict international sanctions. More than sixty percent of the population have relied on daily rations of food for survival. This food was distributed by the Iraqi government through the Oil for Food Program for the central and south of Iraq and by a consortium of UN and NGOs in the northern part of Iraq. With the collapse of the state infrastructure, there are major concerns about the lack of a distribution mechanism to feed at least 16 million vulnerable Iraqis for the months to come.
Cherry Hill, N.J.: Some Iraqi civilians do not approve of Saddam Hussein's harsh regime but would not trade a war that defeats him for a war that took a loved one's life. How do you expect the crisis in Iraq will be resolved with these animosities still lingering after the war is over? Iraqi people will want some type of vindication and how can the US give it to them?
Claude Bruderlein: It is the duty of the Occupying Power to ensure law and order in the territory under its control. Part of this duty is the prosecution of ordinary crimes. In the case of war crimes, it is the responsibility of every country party to the Geneva Conventions to ensure that individuals suspected of war crimes, wherever they are, are brought to justice. In all cases, it is important to underline that those suspected of crimes have special judicial guarantees under the Fourth Geneva Convention.
San Francisco, Calif.: Mr. Bruderlein,
The big question of the day seems to be the humanitarian crisis in Iraq, that more than looming, is compounding day by day?
What will happen if the major cities descend into complete chaos? How will this be dealt with along with the humanitarian crisis?
Claude Bruderlein: Coalition forces are now facing the critical challenge of transforming their presence from that of an invading force to a stabilizing and policing power. They will need to invest the cities and secure the ground around public infrastructure, and prevent reprisals and looting. This requires manpower and a new set of rules of engagement. This phase is extremely important to ensure a sustainable transition to a peaceful Iraq.
Cherry Hill, N.J.: As of now, there is a possibility that Saddam is dead. If this is true, what actions do you think the United States will take to restructure Iraq's current type of government? President Bush promises that the citizens of Iraq will be treated better if the United States takes control. Do you think this is true? Why/ why not?
Claude Bruderlein: The transition to a sustainable post-conflict government will require the involvement of the international community as well as the Iraqi people. As the situation in Afghanistan demonstrates, the development of a new legal order, the establishment of democratic institutions, and the establishment of security depend on the long-term commitment of all parties involved to international law. The U.S. should not go in with promises it cannot fulfill.
Falls Church, Va.: It would appear my question may not have been an IHL question, but really, what I was trying to ask was: If it is an "unjust" war, could Saddam ask for his country back?
Claude Bruderlein: The legality of war under international law is not linked to its just/unjust character, but to respect for a procedure described within the U.N. charter. In principle, war is illegal. Only in cases of self-defense or if authorized by the U.N. Security Council can military force be used against another country. In the case of Iraq, most of the Security Council members would argue that they did not authorize the use of force. In that sense, the war is illegal. However, the facts on the ground are likely to reshape the legal configuration of the war, as now European countries have an interest in rebuilding Iraq. We may expect in the coming weeks a "deal" at the U.N. Security Council that would provide some legitimacy to the U.S./U.K. intervention in exchange for a central role for the U.N. system in the reconstruction of Iraq.
Washington, D.C.: We have read several reports in the last week how the U.S. infiltrated Baghdad with spies who were on the look-out for targets. Obviously, they were not uniformed. Were they illegal combatants, or did they have any stature under the laws of war?
Claude Bruderlein: If these spies were members of coalition forces, the fact that they were not in uniform while engaged in hostilities is a violation of international humanitarian law. If they were captured, they would not have benefited from the status of prisoner of war. Although their deployment is legal, spies and mercenaries enjoy far fewer rights under international humanitarian law than ordinary combatants. This should be distinguished from the situation of soldiers wearing civilian clothing to engage in attacks, which is perfidy.
New Rochelle, N.Y.: I'm very concerned about aid not getting to those who need it and have made two donations to Oxfarm and UNHRC. I understand Doctors Without Borders is pulling out so please let me know what's more important sending money for food aid or organizations like Amnesty or Human Rights Watch? These are just some on my list so I'm open to any that are top rated organizations, it's just confusing because our press is not focused on this area and I need some help deciding. Thank you.
Claude Bruderlein: I think the Iraqi people will need all the support they can get in the present circumstances; however, it is the responsibility of the U.S. military to fulfill its obligation as an Occupying Force to ensure the survival of the population and the maintenance of law and order. In addition to donations, you should certainly consider writing to your representative in Washington and calling compliance with the obligations of Occupying Powers by the U.S. military in the zone under its control.
Somewhere, USA: Legality of the War: Security Council Resolution 678 authorizes any member state, working with the Government of Kuwait, to use "all necessary means" (i.e. war) to enforce resolution 660 (ejecting Iraq from Kuwait) "and all subsequent relevant resolutions".
Security Council Resolution 687, the ceasefire resolution (which is certainly relevant), requires Iraq to forswear any support for international terrorism (clause 32).
Given that Iraq has publicly been sending funding to suicide bombers outside of Iraq who target civilians, regardless of any discovery of weapons of mass destruction, Iraq was in breach of the ceasefire anyway.
You may not like the war. You may not agree with the war. But because the coalition had the support of the Government of Kuwait, and because resolution 678 was effectively a blank cheque, it was (unlike the vast majority of wars fought in the UN era) actually authorized by the UN Security Council.
Not that people let facts get in the way of good rhetoric.
Claude Bruderlein: The argument raised for the legality of the war referring to previous Security Council Resolutions has not convinced the majority of the Council to authorize the use of force in this present case. The use of force in Iraq has put into question the whole legal framework for the authorization for the use of force provided by the U.N. charter. I'm not taking a position in favor or against the war, but underlining the difficulty that we may face in the coming weeks and months to find a new framework for peace and security.
Claude Bruderlein: As we're getting close to the end of the discussion, I would like to reiterate the importance of respecting the basic rules of IHL as a means to build peace in Iraq. The responsibility for that will lie on the U.S. government and its interest in making sure that Iraqis can live in peace.
washingtonpost.com: Mr. Bruderlein,
Claude Bruderlein: As we are moving into a period of stabilization and occupation, the responsibility for applying international humanitarian law lies in the hands of the coalition forces. As an Occupying Power, they will have the duty to satisfy the basic needs of the population and maintain law and order. To fulfill this mission, they should count on the cooperation of relief agencies, NGOs, and other organizations. In return, these agencies should be given accurate information about the situation in the country and the needs of the population. IHL requires that they be provided access to vulnerable groups. Relief agencies and NGOs should be able to operate, maintaining neutrality and a clear separation from the military administration. Regarding the laws applicable at the domestic level, Iraqi laws are the laws of the land. Iraqi people can only be judged under Iraqi laws. The civil administration of the Occupying Force can set its own rules regarding security in the occupied territories, complying with the standards embodied in the Fourth Geneva Convention.
Somerville, Mass.: Hello Mr. Bruderlein. I am wondering what the Geneva conventions say about the militia forces we have heard about in different parts of Iraq. If Iraqis do suicide bombings against american troops, is this considered legal?
Claude Bruderlein: Suicide as a method of warfare do not as such violate IHL, as long as the attackers carry their weapons openly and aim at military targets. But when attackers pose as civilians, for example, using a civilian taxi, they are concealing their combatant status. This is an act of perfidy, which is prohibited under IHL. Clearly, the prosecution of such violations is difficult to implement if the attackers have killed themselves in the course of the operation. However, the responsibility for respecting IHL applies to those who have organized and directed these attacks. Efforts must be made to identify the line of responsibility to those responsible for such operations.
Claude Bruderlein: Thank you very much for your questions and interest in the laws of war. We are currently witnessing an important phase of the conflict where policy and legal decisions may have dramatic and far-reaching consequences. The law is here to help us in making these decisions in a wise and humane manner in order to ensure the protection of civilians in these circumstances. Good-bye.
That wraps up today's show. Thanks to everyone who joined the discussion.