Friday, March 14, 2003
When Diplomacy Fails
People who are, for whatever reason, against war with Iraq (war being the use of military force, not a declared war - most of the people I have talked to who are "antiwar" don't seem to realize the legal distinction between the two), push for a diplomatic solution to the situation with Iraq. The people I have discussed this with don't really argue for a diplomatic solution - they don't support their case or offer diplomatic solutions - with rare exceptions. The actual arguments I have seen so far encompass:
- Instead of using military force, put Saddam on trial for war crimes (I would assume this would also include the upper tiers of the Ba'ath party as well).
- Allow UNMOVIC inspections to continue indefinitely in an effort to disarm Iraq, while leaving the current regime in place
That's really about it. Let's take a closer look at both of these, and some of the problems with each solution.
Why We Can't Try Iraq for War Crimes.... yet
Most people know that Slobdan Milosevic, the former Serbian president who authorized "ethnic cleansing" campaigns during his rule in the 1990s is being tried for war crimes/crimes against humanity in the Hague right now. Why can't we do the same for Saddam and his right hand henchmen like Tariq Aziz and sons Qusay and Uday?
First of all, it's kind of hard to put on trial someone you do not have in custody. A prerequisite for legal proceedings against Saddam and the Tier One Ba'ath Party personalities would be their surrender or capture. This kind of makes military action a requirement for a war crimes trial. The United States cannot send in law enforement such as the FBI HRT to apprehend Ba'ath Party leadership without a separate indictment in a US Federal court, and then they could not be turned over to an international court without a US trial first. If the United States had intelligence information accurate enough, one of the US military's special operations units could attempt to capture a Ba'ath party member, but that is incredibly unlikely. In short, an extensive military operation is required to take into custody the very people who would be put on trial. The chances of surrender are zero- several times Saddam has been offered exile or a chance to leave the country peacefully, even with the promise of amensty, and rejected it.
Second, Milosevic is being tried by the [International Criminal Tribunal for the Former Yugoslavia], a special court set up by the United Nations specifically to try Milosevic and his cohorts. UN special criminal tribunals are larely a thing of the past now (the ICTY was established in 1993 by [U.N. Security Council Resolution 827 (1993)]) since the [International Criminal Court] was established within the last year. The ICC has been the subject of a lot of controversy as the United States has chosen not to support it. That aside, one of the foundations of the court is that it cannot try crimes that occured before the Rome statue went into force on July 1st, 2002. So most of the Ba'ath party offenses that could be brought to trial (ie those there is ample evidence for in the public domain) cannot be brought before the ICC. These include:
- Massive deportations of Feyil Kurds in violation of articles  and  of the Geneva Convention
- Systematic and deliberate organized policies to destroy all or part of the Kurdish population
of northern Iraq during the Anfal operations in violation of the [Convention on Genocide (1948)].
- Use of chemical weapons in several regions, notably in [Halabja].
- Crimes against the Environment in [Kuwait], in the Kurdish region with destruction of water
springs, of thousands of trees, in southern Iraq with the [drying out of the marshes] and the
[destruction of the whole ecosystem] of that region.
- Attempted destruction of the Arabs of the marshes in southern Iraq in violation of the Convention
on Genocide (1948).
- Inhuman and degrading treatment, summary and arbitrary executions, displacements of
population in order to attempt to destroy the Shi’a populations in southern Iraq in violation
of [article 3] of the Geneva Convention.
- Systematic use of rape, torture and of summary and arbitrary executions as instruments of
repression in violation of articles  and  of the Geneva convention IV.
- Forced arabization and continuous [ethnic cleaning] of Kurds, Turkmen and Assyro - Chaldeans
in Iraqi Kurdistan.
- Invasion of Iran in 1980 in violation of article  of the Charter of the United Nations.
- Violation of the Geneva Protocol (1925) regarding the ban on using poison gas, nerve gas
or any other asphyxiate gas during the Iran-Iraq war.
- Invasion of Kuwait in 1990 in violation of article  of the Charter of the United Nations.
- [Rape], torture, arbitrary executions and illegal deportations in violation of article [147} of the
Geneva Convention IV during the occupation of Kuwait.
- Violation of the Geneva Convention on the Treatment of Prisoners of war (regarding the status of [Kuwaiti POWs] and [USN Lt Cmdr Michael Scott Speicher]).
All of those charges against the Ba'ath Party leadership can be substantiated by hard evidence in a court right now. Since the ICC cannot prosecute charges that occured before July 1st, 2002, all of the charges listed above could not be brought before the ICC. At this time there is little or no evidence of Iraqi war crimes or crimes against humanity since July of 2002 (this isn't saying there aren't any, just that there is no hard evidence in the public domain. Iraq is a closed society, after all).
Since bringing thse charges before the ICC is not legal, another special tribunal is the only option to bring these crimes to justice within the international legal system. Establishing a special tribunal for the prosecution of Iraqi war crimes would be incredibly difficult for a number of reasons, not the least of which would be that it would require the support of France, Russia, China, and the other Security Council states, and for those charges to be brought to trial one of the criminals would have to be captured and taken into custody (again, this would require military action in Iraq). A war crimes trial would also be very embarassing for France and Russia. The sheer number of contract personnel in Iraq from those two countries (especially in support of the Ba'ath Party's Special Security Organization) could mean that French or Russian citizens witnessed or were a party to some of those crimes. The dams and drainage systems used to dry the marshes of Shiite southern Iraq were build largely with Chinese assistance. The chemical weapons used against the Kurds were developed with direct support from French and Russian companies. It is not in the interest of those three Security Council members to see an Iraqi war crimes trial happen, and it's likely they will go to great lengths to prevent that.
And, oddly enough, in many juristictions, heads of state can have blanket immunity.
[This article] has a good summary of how an Iraqi war crimes trial might happen.
[Scotland Yard's investigation into possible charges against Saddam]
[US State Dept. Focus on Human Rights in Iraq]
And carry a big stick
Inspections themselves don't do anything for the situation in Iraq. The core of the problem is that an unstable regime with a history of aggression has weapons of mass destruction and their delivery systems, with which it's likely they will threaten the stablity of the region. The inspections themselves, at most, could discover that Iraq has indeed developed chemical, biological, or nuclear weapons that were outside Iraq's international commitments.
This is not news. Every round of inspections has brought new "revelations" concerning how Iraq has violated the Nuclear Non Proliferation Treaty of similar such agreements it has committed to being a part of. None of these revelations has yielded significant changes in Iraq's WMD programs. For example, [evidence that Iraq had far more biological growth media] for it's biological warfare programs didn't not prompt Iraq to produce the media for destruction.
Inspectors scoured Iraq, including Al Hakam, for growth media, but could account for only 22 of the 42 tons purchased. Iraq said the other 20 tons had been used in diagnostic tests.
"You could never in your lifetime use 20 tons in any hospital, in any diagnostic institute anywhere in the world," says one former inspector.
The missing media provided enough ammunition for UNSCOM to find Iraq in breach of its requirement to disclose fully its weapons programs. Desperate to get sanctions lifted, in July, Iraq admitted to producing 2,200 gallons of anthrax and 500 gallons of botulinum toxin with the missing material, enough to fill 75 missiles or 115 bombs.
However, when inspectors analyzed Iraq's new data with a formula known as mass balance calculation, the numbers still did not add up. UNSCOM reckons that Iraq could have produced several times more toxin than it declared.
Iraq was in noncompliance yet refused to cooperate with the UN. AS a direct result, the United States conducted punitive air strikes as part of [Operation Desert Fox] in support of the United Nations. The air strikes had little effect, as they mostly targeted WMD facilities - punitive measures the regime did not respond to. Inspectors were barred from re-entering the country and only returned in 2002 when the threat of military force was returned by the United States.
It is important to note that the United States was not proposing more air strikes against WMD facilities, but was directly threatening the Ba'ath Party's ability to control the Iraqi people and thus their hold on power in Iraq. Impending regime change was stimulus that the Iraqis responded to by not only allowing UNMOVIC inspectors back into Iraq, but also actually destroying Al Sammoud missiles that were in violation of UN ceasefire agreements. Iraq, however, is still not fully cooperating with the UN. Flying two U-2s over Iraq at the same time, with declared flight plans could not possibly be perceived as a [hostile act ]unless Iraq was attempting to hide something from overhead reconnaissance.
Direct threats to the regime in Iraq work but will not work repeatedly. A credible threat of military force against the Ba'ath Party's hold on power in Iraq will only work once, if that. As a result, military action now may be the only option.
[ 3/14/2003 08:48:00 PM ] [