Fallujah assualt: legal issues

The ebulliently-named Vlad Unkovski-Korica and Anna Protano-Biggs here present a pretty swift challenge to a piece (not available online, unfortunately) that, as summarised below, briefly argued that the Marine who shot dead an injured insurgent in a Fallujah mosque was acting in accordance with international law. Protano-Biggs and Ukovski-Korica present a pretty damning assesment of the assualt based on the relevant law that is well worth a close read:

In his article, Mr Velshi argues that the recent killing of an “insurgent” in Iraq on 13th November by a US Marine was justified under the Geneva Conventions in international law. His argument rests on predominately on his interpretation of the Fourth Geneva Convention and the characterisation of the “insurgent”. He goes on to claim that the “insurgents in Fallujah have wrought havoc on the entire country”. Finally, he links the “anti-war left” or “Not-In-My-Name crowd” to President Bush’s statement: “you’re either with us or you’re with the terrorists”. This article attempts to reveal the major contradiction in Mr Velshi’s argument, and to take issue with his use of the word ‘terrorists’ to describe the Iraqi resistance.

The crux of Mr Velshi’s argument can be summarised by quoting last week’s article: ‘International law accords rights to those soldiers who abide by its provisions, partly as a way of encouraging combatants to respect the laws of war.’ We shall accept this contention, and show how it can be used against Mr Velshi. Essentially, this will involve raising the question of whether Mr Velshi has identified the legitimacy for the presence of occupying troops in Iraq and of their onslaught on Fallujah. Our contention would thus be that, whether or not Mr Velshi’s interpretation of the Geneva Conventions regarding the incident he decides to isolate from the general background of occupation is correct, this interpretation is entirely irrelevant to the situation.

It is our contention that it is impossible to find any legally or morally legitimate reason for the war on Iraq and the continued presence of occupying forces in that country. In March 2003 the International Commission of Jurists (ICJ) in Geneva expressed “deep dismay that a small number of states are poised to launch an outright illegal invasion of Iraq, which amounts to a war of aggression.” The ICJ added: “The competency of the Security Council to authorise the use of force is not unlimited. It may only do so to ‘maintain or restore international peace and security.’”

Art. 2(4) UN Charter – no use of force
Art. 51 UN Charter – right of self-defence
SC Res. 1441 – “material breach”
660 – condemns Kuwait invasion – Iraq ordered to leave
678 – “all necessary means” to uphold 660
686 – recognises end of fighting in Kuwait
687 – list of requirements on Iraq for a permanent ceasefire


If the war is seen as illegal under international law, Mr Velshi’s contention could be used to conclude that those soldiers participating in such a violation of international law have lost their rights accorded to them by their respect of international law. This, however, would be simply the beginning.

Within the framework of an unlawful war, the onslaught on Fallujah is an extension of the illegal invasion of sovereign Iraqi soil. New York Post columnist and former military officer Ralph Peters summed up the mentality guiding the White House and Pentagon during the attack. “We must not be afraid to make an example of Fallujah. We need to demonstrate that the United States military cannot be deterred or defeated. If that means widespread destruction, we must accept the price...Even if Fallujah has to got the way of Carthage, reduced to shards, the price will be worth it.” Perhaps one could also cite a US army corporal, Nicholas Federici: “We’ll kill as many faggots and bastards as we can”. Certainly, the vehemence of the attack echoes these words, and reflects the calculated intentions of the US forces to exact mass reprisal against the city and its inhabitants, for their continued defiance of US occupation since April 2004. This is in direct violation of Art. 51 of Protocol 1 of the Geneva Conventions which prohibits all acts of reprisal and collective punishment.

The attacks on Fallujah entailed the deliberate destruction of the city’s civilian and medical infrastructure. The first estimate of structural damage, according to the less than reliable US-installed Iraqi “interim government”, is that 700 of the 17,000 buildings in the city have been destroyed.

Furthermore, the attack had started in Rammadan. Iraqi journalist Fadil al-Badrani reported to Al Jazeerah that, even before the subjugation of the city had been completed, “almost half” of the city’s 120 mosques “have been destroyed after being targeted by US air and tank strikes”. Bakr al-Dulaimi told Al Jazeera that the bombings targeted everything in the city including the hospital, houses and cars. This is again in direct violation of the Geneva Conventions. Article 18 states that in no circumstances shall civilian hospitals be objects of attack.

US forces have responded to small arms fire from homes and other buildings with artillery barrages, volleys of tank fire, and air strikes with 2,000-pound bombs. Indiscriminate use of force wrought by US forces is illustrated by a report from an embedded New York Times journalist in which he reports that to dislodge just one Iraqi sniper holding up US marines a three-storey complex was hit with two 500-pound bombs, 35 155mm artillery shells, 10 120mm shells from Abram tanks and some 30,000 rounds from machine guns and small arms. All indiscriminate attacks are expressly prohibited under Article 51 of Protocol 1 of the Geneva Conventions, including ones “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. A potential counterclaim that these buildings have ceased to be civilian in nature and it is therefore justified to attack those inside is invalid as Article 50 of Protocol I says: “The presence within the civilian population of persons that do not come within the definition of civilian does not deprive the population of its civilian character.”

There is then the fact that humanitarian and medical aid was refused access to Fallujah during the onslaught. The US stopped an aid convoy from entering the city (Courier-Mail, 15/11/2004). Firdoos al-Abadi, head of the Red Crescent's emergency committee has said "It is a disaster inside Falluja. There is no water, no electricity, no food. They are forbidding doctors from helping the people." US military officials had described the US operation as "humane" and say they "do everything possible to protect non-combatants". It doesn’t look like they did.

By isolating the killing incident from the whole picture, one obscures the issues at stake and effectively ends up labelling the legitimate battle of the Iraqi people against the occupiers ‘terrorism’. Mr Velshi should probably be asking himself who the terrorists are.

Certainly, there seems little difference between his contentions and the fact that no opportunity is lost by mainstream politicians to present acts of resistance as insurgent, extremist, religious-motivated, anti-democratic acts of terrorism by maniacs bent on imposing on the helpless Iraqi people a sinister theocracy. But what does the Iraqi population think of all this? Do they think the members of the resistance are terrorists? In fact, the Coalition Provisional Authority commissioned a face-to-face poll in May 2004 to gauge the popular mood. The results are staggering: 92 percent of Iraqis considered the U.S. ‘occupiers’ while a meagre 2 percent considered them ‘liberators.’ 80 percent had an ‘improved opinion’ of Moktadr al-Sadr, a Sunni cleric and one of the leading figures of the resistance in Sadr City, Najaf and other areas of Iraq who had at the time been actively fighting ‘Coalition’ troops. 64 percent believed that the activities of the resistance had helped unify Iraq. Is it not a further sign of what the Iraqis want that they blame the U.S. for the deaths their friends and relatives, killed by a suicide bomb or machinegun-fire gone astray? In October 2004, the families of 35 children who were killed in a series of bombings in Baghdad blamed the US military for the catatrophe that had befallen them, not those who had actually set up the bombs. Al-Badri, who's son lost one leg in one of the explosions while standing near some U.S. troops, stated, ‘I blame the Americans for this tragedy. They wanted to make human shields out of our children. They should have kept the children away from danger.’ (Sameer N. Yacoub, October 2, 2004 in Associated Press).

Unlike Mr Velshi, the left and antiwar activists do, or at least should, distinguish between the more powerful and devastating (and sometimes ‘sophisticated’) violence of the oppressor (in this case, the occupying ‘Coalition’ troops) and the violence of the oppressed (the Iraqi people). The two cannot be equivalent: the former has at its disposal aircraft, satellites, guided missiles, armoured vehicles, and an array of high-tech gear, reflecting perhaps the U.S. defence budget, which stood in 2002 at $331 billion. The latter is based on what on small arms or similar weaponry they can find or smuggle in; that which they can transport unseen; that which they can use quickly and with maximum damage. This weaponry is often crude or inaccurate. Yet, it is a manifestation of the weakness of the Iraqi people as the oppressed.Its violence in itself reflects the violence of the occupier because it is an attempt to show the occupier that it can be equivalent to him.

The war in Iraq is the product of US imperialism. It was the war of the Western corporations, the U.S. state and its satellites, against a sovereign nation which had not committed an act of aggression against the U.S. or any of the invading countries. This war still carries on with inevitably devastating consequences. 100 000 people, according to research published by the Lancet Medical Journal, have died since the beginning of the war. The Iraqi people themselves blame US occupation for this. Any struggle for real social justice in Iraq, whether for freedom of speech and assembly, for the right of association, for jobs and security, for education and welfare, for workers’ control over workplace conditions and production, for women’s liberty – for freedom and self-determination – cannot be understood or achieved separately from the posing the issue of ending the occupation of Iraq, which is epitomised in its horror by the assault on Fallujah. Mr Velshi, like President Bush, has presented us therefore with a false dichotomy: war or terrorism. We say there is an alternative: the self-determination and self-emancipation of the Iraqi people. We leave the Iraqis to do what they can and wish to drive out the occupiers. Our methods must of need be demonstration, mass civil disobedience, strike and unity. Our demand, though, is the same as that of the Iraqi people – self-determination now.

(Here, meanwhile, is a selection of briefing papers, notes and other material relating to the legality of the invasion and occupation.)