BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
THE Iraq War – declared illegal by the then UN secretary-general, and unauthorised by the Security Council – started on March 19, 2003. But its ramifications linger on; as does the clamour for justice by the victims.
An Iraqi woman – Sundus Shaker Saleh – filed a suit against former US President Bush and his war cabinet – Rumsfeld, Cheney, Powell, Condoleeza Rice, Paul Wolfowitz and 10 other former high-ranking officials.
Sundus was suing on behalf of “all innocent Iraqi civilians who, through no fault of their own, suffered damage”.
Last week, the 9th Circuit Court of Appeal summarily dismissed their case, refusing to give them their day in court. The trial would have decided whether or not the former president and his cohorts committed war crimes and therefore should be held accountable.
The plaintiffs were forced to flee their homeland because the US and its coalition wreaked utter destruction. The case – as outlined by the plaintiffs’ spritely lawyer, Inder Coma – exposed a case of deceit and chicanery at the highest levels of the US government.
It showed that the war to remove Saddam was planned as early as 1997 by Cheney, Rumsfeld, and Wolfowitz. In January 1998, Rumsfeld and Wolfowitz urged President Clinton to “implement a ‘strategy for removing Saddam’s regime from power’, and to undertake military action as diplomacy is clearly failing”.
As top officials when Bush became president in January 2001, the trio embarked on a plan to invade Iraq. Bush went along saying, “Fine. Go find me a way to do this.”
The Sept 11, 2001 attacks provided the defendants with a perfect pretext and they went about trying to link the 9/11 attack to Saddam and Al Qaeda using fabricated intelligence from dubious sources to prep the public for the invasion. Such as the claim by Bush that Iraq had tried to “obtain large quantities of uranium from Africa”.
The defendants were committed to the invasion whether or not the United Nations approved of the action and regardless whether UN inspectors uncovered evidence of Iraq developing nuclear weapons.
On March 7, 2003, International Atomic Energy Agency director-general Mohamed El Baradei “reported to the UN Security Council that there was no indication ‘of resumed nuclear activities’, ‘that Iraq has attempted to import uranium’, (or) ‘that Iraq has attempted to import aluminium tubes for use in centrifuge enrichment’. ”
Nonetheless, less than two weeks later, the US invaded Iraq – despite the UN Security Council’s refusal to approve the invasion.
The plaintiffs claimed the defendants’ conduct amounted to the “crime of aggression” and a conspiracy to commit the crime of aggression – a violation of the “law of nations” within the meaning of the Alien Tort Statute (ATS). This statute grants courts original jurisdiction for foreigners to bring a civil action for a tort “committed in violation of the law of nations or a treaty of the United States”.
The court ruling
The court dismissed the claim. It said the plaintiffs had not exhausted the administrative remedies as required by the ATS. Further, the individual defendants were entitled to official immunity under the Westfall Act, which gave federal employees immunity from common-law tort claims for acts undertaken in the course of their official duties; and that their acts fell within the scope of their employment.
Significantly, it held that international law treaties entered into by the US did not affect the decision to grant immunity. Finally, it said there was nothing wrong with the attorney-general certifying that the defendants were acting within the scope of their employment.
The court rejected the plaintiffs’ argument that substitution of the US Government in place of the defendants was improper because the former officials were not entitled to official immunity.
It is simply incredulous that the Court of Appeal upheld the immunity of the defendants for obvious violations of a norm of international law – jus cogens principles recognised by the international community as fundamental to international legal order and from which no derogation is permitted.
At the trial of Nazi officials for atrocities during World War II, US Justice Robert Jackson, the chief prosecution counsel at the Nuremberg Tribunal, argued that the Military Tribunal represented an effort “to utilise international law to meet the greatest menace of our times – aggressive war”; and that the law applied not only to govern the conduct of little men, but even rulers ‘under God and the law’. “Any resort to war – to any kind of war – is a resort to means that are inherently criminal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defence the law ever gave, and to leave the war-makers subject to judgment by the usually accepted principles of the law of crimes.”
The tribunal sentenced the several accused to death for waging the war – a “supreme international crime”.
In his famous opening, prosecutor Jackson declared that the crime of aggression for which Germany was being tried applied to the US. He intoned: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”
Justice Jackson admonished the tribunal that this elementary principle must be its guide, or else its proceedings would be nothing but legal farce, an act of vengeance, victor’s justice. “If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them.”
Yet the Court of Appeal decision thumbs its nose at international law and the treaties to which the US is a party – such as the Convention against Torture and the Geneva Conventions. Indeed the court put its imprimatur on illegality when it ruled that even the US Congress can provide immunity for federal officers for jus cogens violations, even when such immunity is inconsistent with principles of international law.
It is hard to envisage a clearer case of double speak that seems to characterise US standard approach to its international law obligations – a refusal to sip from the poisoned chalice.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKA