The aim of the War on Iraq is to declare a global state of exception that does away with the United Nations system.
By the Nizkor Team
Statement on the War on Iraq.
A few days ago we called upon all those governments in a position to convoke an emergency special session of the United Nations General Assembly to put into effect the provisions set out in the UN Charter and the so called "Uniting for Peace" Resolution.
We now call upon you again to convince your respective governments to take all actions necessary in order to put this mechanism into effect, thereby making use of the resources of the United Nations system so that all appropriate means are used to demand that the United States, England and Spain end military operations. These countries are using both diplomatic and military means to put an end to the United Nations and to declare a de facto state of exception at a global level allowing them to put aside norms of international law and in particular those of international humanitarian law and international human rights law.
The war with Iraq, or rather the war in Iraq, is nothing more than a pretext to legitimize a theory that really only seeks to eliminate the system of international law. This is similar to the justification for the Polish invasion at the hands of the army of the Third Reich, which according to Goering, put an end to the system of law imposed by the French Revolution.
If any doubt remains, the White House official - and the theorist of the neo-conservatism which is being forcibly imposed - has made these extreme views quite clear in an article which we have reproduced in English and translated into Spanish. The title of the article leaves no room for romantic interpretation: "Thank God for the death of the UN. Its abject failure gave us only anarchy. The world needs order". Its author goes on: "Saddam Hussein's reign of terror is about to end. He will go quickly, but not alone: in a parting irony, he will take the UN down with him. Well, not the whole UN. The 'good works' part will survive, the low-risk peacekeeping bureaucracies will remain, the chatterbox on the Hudson will continue to bleat. What will die is the fantasy of the UN as the foundation of a new world order. As we sift the debris, it will be important to preserve, the better to understand, the intellectual wreckage of the liberal conceit of safety through international law administered by international institutions"
And of course it is these people who will impose a "New Order," leaving behind the annoyance of international law. Richard Perle who signed the article, describes perfectly the profound and genuine view of what is at stake here. Richard Perle is the chairman of the defence policy board, an advisory panel to the Pentagon. (*)
It is evident that the point of the war is not the democratization of Iraq; in fact, that word is not used in any official communications. Nor could it be as that would be misleading. What is being attempted here is contrary to any form of rule of law or civil liberties as we know them. What is being attempted is to create a new category of persons who would be placed outside the ius gentium. No legal norm would apply to these persons. In order to achieve this, the United Nations must fall, and the system returned to that in effect before 1928, at the moment prior to the formation of the League of Nations.
That is why Jose Maria Aznar's discourse consistently invokes the relevance of the demise of the League of Nations.
The disproportionate use of force towards an enemy that has no real military response manifestly demonstrates that what is attempted is the intimidation of governments and civilian populations worldwide. The Dante-esque spectacle of using the latest technologies on a city such as Baghdad makes this patently clear. The explosives used have had a destruction capacity superior to those used in Hiroshima; albeit without using nuclear explosives.
A spokesperson for the Pentagon made clear the purpose of this disproportionate use of force. It is simply the application of terror in order to obtain control of the civil population. What is not said but is evident to any scientist in social psychological behaviour, is that the impact of the images transmitted through TV worldwide is intended to have the same effect on thousands of millions of people.
This is the explanation for the bombardments which, as we said, have shown us how to achieve the destruction capacity of Hiroshima in just a few seconds…, not days. And the purpose of it is to destroy the infrastructure of life in that city and thus to exhaust the civilian population physically, emotionally and psychologically in just two, three…, days.
As a senior Pentagon official has publicly stated: "There will not be a safe place in Baghdad... you have this simultaneous effect, rather like the nuclear weapon at Hiroshima, not in days or weeks but in minutes." The purpose is to "take the city down. By that I mean you get rid of their power, water. In two, three, four, five days, they are physically, emotionally, and psychologically exhausted"
[Center for Constitutional Rights (CCR) Press Release, NY, March 21, 2003]
What this spokesperson is saying (with the use of very precise language) is indicative of this form of terror planning and constitutes a flagrant violation, not only of international law, but also of the minimum standards granted by the Geneva Conventions, and even of those set out in the Lieber Code.
The Secretary of Defense of the United States, Donald Rumsfeld, has stated that the attack against Iraq will be of "a force and scope and scale beyond what has been seen before", and the TV images showed us how the Secretary violated "strictu sensu" Protocol I to the Geneva conventions.
Article 33 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Convention IV), states: "No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited", and "Reprisals against protected persons and their property are prohibited."
And Article 51 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), states:
"Protection of the civilian population
1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) Those which are not directed at a specific military objective;
(b) Those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(a) An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(b) An attack 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.
6. Attacks against the civilian population or civilians by way of reprisals are prohibited.
7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57".
And Article 52 - "General protection of civilian objects
1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military of advantage.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used".
Under this guise there is an attempt to achieve what Carl Schmitt described as a "state of exception," which in the terminology of the time was a state where the "sovereign is he who decides on the exception." In this case the "sovereign" is the neo-conservative forces which control the White House, and all those who support them recognize that ability through the exception. The exception is nothing more than the destruction of the system of international law; destruction which results in a permanent destabilization where the law of force can be applied as a means to solve conflicts.
The proponents of this view would replace international law and international humanitarian law with "classical military law" and apply the theory of the partisan; from this perspective, the law of exception consists of deeming the civil population to be part of the conflict, but divesting it even of the rights of a belligerent, thus placing it outside the law. As a consequence, the civilian population cannot rely on the protection of any normative system established by the laws of war.
Only when considered in this light, can the military destruction -in a matter of minutes- of the infrastructure of a city where more than five million people live, be understood. This is the manifestation of the anti-terrorist doctrine post-September 11 which has resulted in the resignation of the most senior member responsible for the battle against terrorism in the US National Security Council. His problem: Iraq is simply an excuse.
By destroying international law, and turning arrogance and impunity into virtues, a worldwide state of exception would ensue.
Benjamin Franklin expressed it with complete clarity a long time ago when he addressed the Pennsylvania Assembly on 11 November 1755: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety".
We must confront this situation.
Director del Equipo Nizkor
The illegality of this war from the perspective of International Law:
A) Acts of aggression and breaches of the peace in the Charter of the United Nations:
The Charter of the United Nations commences with the following declaration:
"We the Peoples of the United Nations Determined
to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, (...)
Have Resolved to Combine ours Efforts to Accomplish these Aims (..)"
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; (...)"
Article 2 of the Charter provides:
"(..) 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations (..).
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII".
The Charter dedicates Chapter VII to "Action with respect to the peace, breaches of the peace, and acts of aggression".
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations".
As the United States and other states such as the United Kingdom and Spain seem to lack any understanding of and are now in violation of the system of maintenance of international peace and security afforded by the United Nations, and indeed have clearly shown an intention to violate the United Nations Charter and the Nuremberg principles which underlie the birth of that organisation it is evident that the Security Council is unable to exercise its function to maintain international peace and security.
In the situation where the Security Council is powerless to act, there is a mechanism created by the members of the United Nations at an early stage to avoid the possibility that the UN woud have to breach its own objectives of maintaining peace at an international level.
In 1950, almost unanimously, the Organization of the United Nations approved Resolution 377 known as "Uniting for Peace":
The Resolution "Uniting for Peace", establishes that "(...) if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security".
Since 1950, the procedure set out in Resolution "Uniting for Peace" has been used on about 10 occasions: the 1956 Suez Canal crisis (where the UK and France exercised their veto in the Security Council); to put pressure on the former USSR to cease its intervention in Hungary, also in 1956; Lebanon in 1958, the conflict between India and Pakistan in 1971, the conflict in Bosnia-Herzegovina in 1992, etc.
In the current situation of paralysis where an act of aggression of Iraq may occur, the General Assembly should consider taking responsibility for the matter particularly given the threat to international peace and security now posed by the United States and its allies in the war, such as the UK and Spain.
This procedure can be implemented whether by seven members of the Securtiy Council or by a majority of the members of the General Assembly.
It is therefore necessary to persuade those governments who have publicly expressed their opposition to these illegal acts that it is essential to implement this procedure in order to ensure that the functioning of the United Nations is not interrupted.
We should "also" remember that the United Nations Charter provides:
The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters".
1. The General Assembly may consider the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both.
2. The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion.
3. The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security.
4. The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10".
Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations"
B) Crimes against peace in the Nuremberg laws.
The prohibition of aggression in general was first declared in the Briand-Kellog Pact in 1928. The first Convention concerning the definition of aggression took place on 24th April 1933 based on a draft of the Committee on Security Questions of the Disarmament Conference. In the said Convention acts of aggression were defined as: "(1) declaration of war upon another state; (2) invasion by its armed forces, with or without a declaration of war, of the territory of another State; (3) attack by its land, naval, or air forces, with or without a declaration of war, on the territory, vessels, or aircraft of another State; (4) naval blockade of the coasts or ports of another State; (5) provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take in its own territory all the measures in its power to deprive those bands of all assistance or protection."
In 1945 the Charter of the Nuremberg International Military Tribunal defined "Crimes Against Peace" in its Article 6(a): "namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;"
In his opening speech before the International Military Tribunal of Nuremberg in 1945, Robert Jackson, Chief Prosecutor of the United States, stated:"This trial represents mankind's desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world's peace and to commit aggressions against their neighbors." He also asserted "that launching a war of aggression is a crime and that no political or economic situation can justify it." He also declared that "If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
When Jackson left his position as a member of the Supreme Court of the United States, he was convinced that war and tyrany could only be stopped "when we make all men answerable to the law." He called for judicial action to ensure that anyone who initiated war would be held responsible for it.
As another of the former prosecutors of Nuremberg, Benjamin Ferenzc, has pointed out:
"After reviewing the precedents and the existing law, the learned Judges on the international Tribunal concluded:
"The charges of the indictment that the defendants planned and waged aggressive war are charges of the utmost gravity... To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
The Nuremberg definition of Crimes Against Peace was incorporated by the UN International Law Commission into the Nuremberg Principles as Principle VI(a) on the 29th July 1950. It is worth remembering that on the 13th February 1946 the UN General Assembly adopted resolution 3(1) in which it acknowledged the definition of crimes of war, crimes against peace and crimes against humanity as provided in the Nuremberg Charter of 8th August 1945.
These principles were integrated into the judgements of the International Military Tribunal of Nuremberg on the 30th September and 1st October 1946. The Secretary General of the UN, Trygve Lie, in his supporting speech suggested on 21st October 1946 that the Principles of Nuremberg be adopted as part of International Law. In its resolution 95(I) of 11th December 1946, the General Assembly of the UN formally accepted the suggestion and "Affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal".
The effect of the said resolutions is to make universal the law created in the Statute and the Judgment of the Nuremberg Tribunal.
At the same time, by means of resolution 177(II) of 21st November 1947 concerning the establishment of the principles recognised by the Statute and the Judgement of the Nuremberg Tribunal, the General Assembly of the United Nations requested the International Law Commission (ILC) to formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal and to prepare a draft Code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the Nuremberg principles.
[GA Res. 177(II), 21 November 1947 (A/177(II))].
The Commission, at its first meeting between May and June 1949, developed the said Principles and Crimes, adopting them in 1950.
[Report of the International Law Commission on the work of their twelfth session, Official Documents of the General Assembly, fifth session, Supplement No. 12 (A/1316), pp.12-16 (french language version)].
See English text of these principles edited by Equipo Nizkor.
As a result, the states of the international community which include the United States, the United Kingdom and Spain, have an obligation erga omnes to apply the principles of Nuremberg among other reasons because, inherent in their membership of the United Nations and acceptance of its governing statute, is the acceptance of and compliance with the principles which were formulated at Nuremberg and are now part of International Law with binding effect, both under customary and conventional law.
Similarly Allied Control Council Law No. 10, under which a series of subsequent trials took place, provided for the crime of aggression in the following way:
1. Each of the following acts is recognized as a crime:
(a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing."
C) Crimes against peace as defined in the drafts of the Code of Offences against the Peace and Security of Mankind during the 50s.
As Benjamin Ferencz, former Nuremberg Prosecutor, explains, "In 1949, when it began its work, the ILC also had on its agenda the problems of defining the crime of aggression and considering an international criminal jurisdiction to cope with international crimes. A first Draft Code of Offences was submitted by Rapporteur Jean Spiropoulos in 1950." [UN Doc. A/CN.4/25 (1950), reprinted in  2 Y.B. INT'L L. COMM'N 253, 277]. "Nine international crimes were listed in the draft: aggressive war; invasion by armed groups; fomenting external civil strife; fomenting external organized terrorism; illegal weapons trafficking; violating arms limitation treaties; illegal annexation; hostile acts directed against national, ethnic, racial and religious groups; and violation of laws and customs of war."
In the 1954 draft of the said Code the acts which constitute crimes against the peace and security of mankind were determined as follows:
The following acts are offences against the peace and security of mankind:
(1) Any act of aggression, including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the United Nations.
(2) Any threat by the authorities of a State to resort to an act of aggression against another State.
(3) The preparation by the authorities of a State of the employment of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the United Nations.
(9) The intervention by the authorities of a State in the internal or external affairs of another State, by means of coercive measures of an economic or political character in order to force its will and thereby obtain advantages of any kind."
Regarding the responsibility for this type of acts, the said 1954 Code establishes:
Offences against the peace and security of mankind, as defined in this Code, are crimes under international law, for which the responsible individuals shall be punished."
In the same way art.3 sets out the principle of non-immunity for the commission of this type of crime by heads of state and other authorities.
Art. 4 contemplates the inadmissibility of a defence of due obedience to an accusation of these types of crimes.
D) Resolution 2131 of the General Assembly of the UN, 21st December 1965 A/RES/2131 (XX).
In Resolution 2131, " Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty" the General Assembly of the UN affirmed "... that armed intervention is synonymous with aggression and, as such, is contrary to the basic principles on which peaceful international cooperation between States should be built".
E) The crime of aggression in General Assembly resolution 3314/XXIX of 14th December 1974.
On 18th December 1967 The General Assembly of the United Nations approved Resolution 2330/XXII and created a Special Committee on the question of the definition of aggression, (in 1952, by virtue of Resolution 688/VII an attempt to do this had already commenced by an ad hoc committee).
The Committee of 35 countries (Algeria, Australia, Bulgaria, Canada, Czechoslavakia, Cyprus, Colombia, Ecuador, Egypt, Spain, Finland, France, Ghana, Great Britain, Guyana, Haiti, Indonesia, Italy, Madagascar, Mexico, Norway, Rumania, Sierra Leone, Sudan, Syria, Turkey, Uganda, Uruguay, USSR, United States, Zaire), after seven years of work, produced and agreed on 12th April 1974, a draft definition of "aggression" for final approval by the General Assembly. The draft was finally approvedd by the General Assembly by Resolution 3314/XXIX, dated 14th December 1974.
In Resolution 3314/XXIX aggression is defined as "... the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition". .." In this Definition the term "State": "(a) Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations; (b) Includes the concept of a 'group of States' where appropriate".
Apart from the said definition of "aggression" provided in Art.1, the preamble confirms the fact that .." the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another State in contravention of the Charter...", that is to say, without any Security Council resolution.
In Article 3 it is provided that: "Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its temtory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein".
Article 5 goes on to state:
"1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.
2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.
3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful."
In the words of Benjamin Ferencz, in the context of the works about the crime of aggression of the recently created International Criminal Court, if this definition is not perfect and some of the states would like to amend it, "the fact is that it has already been approved and accepted.... The most frequently voiced objection to accepting the 1974 definition of aggression now is that it was intended only as a non-binding guide to the Security Council (that paid practically no attention to it thereafter) and that it is not suitable in a criminal statute that, in fairness, must specify the elements of the crime. These objections are not well founded.
During the many years of debate by special U.N. committees, representative of all nations, no one ever suggested that the definition was to have only a very restricted and limited significance. The definition of aggression was intended as a definition of the crime of aggression! Its preamble said specifically that the definition was intended to deter a potential aggressor. The agreed definition specifically stated: "A war of aggression is a crime against international peace"(Article 5(2).) The consensus was consistent with the original General Assembly mandate based on the Nuremberg principles. The elements of mens rea, or guilty knowledge, flowed from the position of the defendants as important leaders. They could only be indicted for the crime if their knowledge, capacity and authority were made clear from the very nature of their authority. These criminal provisions and elements were considered adequate by the Prosecution and Tribunals at Nuremberg, were affirmed by the entire General Assembly, were recommended by the International Law Commission and a host of independent experts and a worldwide public that recognized the fairness of the Nuremberg trials. Surely, it should be possible - by way of compromise - for nations to accept what has already been so universally accepted."
[Note: See: Can aggression be deterred by law? and Deterring Aggression by Law both by Benjamin B. Ferencz]
F) Aggression in Article 16 of the draft Code of Crimes against the Peace and Security of Mankind: the responsibility of leaders and organizers for acts of aggression.
After 48 years, in 1996 the International Law Commission completed its draft code of Crimes against Peace and the Security of Mankind.
Applying the principles of international law set down in Nuremberg, the said Code defined "aggression" in the following way:
"Article 16 - Crime of aggression
An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.
(1) The characterization of aggression as a crime against the peace and security of mankind contained in article 16 of the present Code is drawn from the relevant provision of the Nürnberg Charter as interpreted and applied by the Nürnberg Tribunal. Article 16 addresses several important aspects of the crime of aggression for the purpose of individual criminal responsibility. The phrase "An individual ... shall be responsible for a crime of aggression" is used to indicate that the scope of the present article is limited to the crime of aggression for the purpose of individual criminal responsibility. Thus, the present article does not address the question of the definition of aggression by a State which is beyond the scope of the present Code.
(2) The perpetrators of an act of aggression are to be found only in the categories of individuals who have the necessary authority or power to be in a position potentially to play a decisive role in committing aggression. These are the individuals whom article 16 designates as "leaders" or "organizers", an expression that was taken from the Nürnberg Charter. These terms must be understood in the broad sense, i.e. as referring, in addition to the members of a Government, to persons occupying high-level posts in the military, the diplomatic corps, political parties and industry, as recognized by the Nürnberg Tribunal, which stated that: "Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats and businessmen" (113) (113. Nuremberg Judgment, p. 55)
(3) The mere material fact of participating in an act of aggression is, however, not enough to establish the guilt of a leader or organizer. Such participation must have been intentional and have taken place knowingly as part of a plan or policy of aggression. In this connection, the Nürnberg Tribunal stated, in analysing the conduct of some of the accused, that: "When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing". (114) (114. However, the Tribunal found Schacht, Doenitz and Bormann innocent of certain charges of crimes against peace, stating that: "It is clear that Schacht was a central figure in Germany's rearmament programme and the steps which he took, particularly in the early days of the Nazi regime, were responsible for Nazi Germany's rapid rise as a military power. But rearmament of itself is not criminal under the Charter. To be a crime against peace under article 6 of the Charter, it must be shown that Schacht carried out this rearmament as part of the Nazi plans to wage aggressive wars". With regard to the second defendant, the Tribunal stated: "Although Doenitz built and trained the German U-boat arm, the evidence does not show he was privy to the conspiracy to wage aggressive wars or that he prepared and initiated such wars. He was a line officer performing strictly tactical duties. He was not present at the important conferences when plans for aggressive wars were announced and there is no evidence that he was informed about the decisions reached there". As to the third defendant, the Tribunal suggested the possibility of inferring knowledge by virtue of a person's position: "The evidence does not show that Bormann knew of Hitler's plans to prepare, initiate or wage aggressive wars. He attended none of the important conferences when Hitler revealed piece by piece those plans for aggression. Nor can knowledge be inferred from the positions he held". Ibid, pp. 135, 137 and 164.).
(4) The present article refers to "aggression committed by a State". An individual, as leader or organizer, participates in that aggression. It is this participation that article 16 defines as a crime against the peace and security of mankind. In other words, it reaffirms the criminal responsibility of the participants in a crime of aggression. Individual responsibility for such a crime is intrinsically and inextricably linked to the commission of aggression by a State. The rule of international law which prohibits aggression applies to the conduct of a State in relation to another State. Therefore, only a State is capable of committing aggression by violating this rule of international law which prohibits such conduct. At the same time, a State is an abstract entity which is incapable of acting on its own. A State can commit aggression only with the active participation of the individuals who have the necessary authority or power to plan, prepare, initiate or wage aggression. The Nürnberg Tribunal clearly recognized the reality of the role of States and individuals in stating that: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced". Thus, the violation by a State of the rule of international law prohibiting aggression gives rise to the criminal responsibility of the individuals who played a decisive role in planning, preparing, initiating or waging aggression. The words "aggression committed by a State" clearly indicate that such a violation of the law by a State is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression. None the less, the scope of the present article is limited to participation in a crime of aggression for the purpose of individual criminal responsibility. It therefore does not relate to the rule of international law which prohibits aggression by a State.
(5) The action of a State entails individual responsibility for a crime of aggression only if the conduct of the State is a sufficiently serious violation of the prohibition contained in Article 2, paragraph 4, of the Charter of the United Nations. In this regard, the competent court may have to consider two closely related issues, namely, whether the conduct of the State constitutes a violation of Article 2, paragraph 4, of the Charter and whether such conduct constitutes a sufficiently serious violation of an international obligation to qualify as aggression entailing individual criminal responsibility. The Charter and Judgement of the Nürnberg Tribunal are the main sources of authority with regard to individual criminal responsibility for acts of aggression.
(6) Several phases of aggression are listed in article 16. These are: the order to commit aggression, and, subsequently, the planning, preparation, initiation and waging of the resulting operations. These different phases are not watertight. Participation in a single phase of aggression is enough to give rise to criminal responsibility".
[International Law Commission Report on the work of the 48th period of sessions - 6th May to26th July 1996, supplementary document No.10 (A/51/10).]
The 34 members of the International Law Commission concluded that not to include this crime would be counter-productive fifty years after Nuremberg and that practice would have to refine the parameters of the crime over a period of time. However, before an individual can be accused of aggression it is necessary for the Security Council to determine that an act of aggression by a State has occurred as provided by the Charter of the United Nations.
In the words of Benjamin Ferencz, "Article 1 of the U.N. Charter sets forth the goal of suppressing acts of aggression 'in conformity with the principles of justice and international law'. All members of the Security Council are bound by that mandate. Should a State member of the Council be accused of aggression and its representative on the Council fail to recuse himself from consideration or voting on the matter (as is customary) that would seem to be not in conformity with principles of justice..."
Finally, the Statue of Rome of the International Criminal Court, considers in its Art.5 that the crime of aggression is one of the four crimes within the competence of the Court, stating in para. 2 of this article that : " 2 . The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations".
A Working Group has been established to be responsible for this matter which will be tackled in the first conference to review the Rome Statute, seven years after it came into effect (1 July 2002).
The foregoing clearly demonstrates that the crime of aggression does indeed exist and as such is codified as a crime by international law and the system of the United Nations. Coincidentally, the three states whose elected leaders recently met in the Azores Islands, the USA, the UK and the Kingdom of Spain were all members of the Committee of 35 countries which produced the current definition of the crime of aggression, which was set out in the said Resolution 3314/XXIX of the the UN General Assembly on the14th December 1974, having been previously approved by the said Committee.
For all of the above reasons, the grave measures taken against the Security Council by the government of the USA and supported by Great Britain and Spain, without exhausting the procedure of convening with the General Assembly in the context of "Uniting for Peace", constitute a deliberate act of undermining the legitimacy of the international legal system, from which one can only conclude that the war against Iraq is outside international law and its purposes are to suppress the system of the United Nations and to usurp the application of the norms of international law by resorting to the principle known as a de facto state of exception, but in this case at a worldwide level.
Individual criminal responsibility lies in the planning, preparation, initiation and conduct of a war of aggression or of a war which presupposes the violation of international treaties, agreements or guarantees, or even the taking part in a common plan or a conspiracy where the purpose is the commission of a crime against the peace.
The general principles of international responsibility of the individual in criminal matters are a product of the Statute and Judgement of the Tribunal of Nuremberg. The Tribunal of Nuremberg established individual criminal responsiblity for offences against the peace and security of mankind, that is to say, for offences over which the tribunal had jurisdiction and which are set out in Article 6 of the Statute:
The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan".
Therefore, the individual responsiblity of the perpetrators of one or more of these crimes is a result as much of his individual action as it is of his involvement as a member of groups or organizations which have as a purpose the commission of these grave crimes against the conscience of humanity and for which they were declared criminal organizations by the judges of Nuremberg.
To eliminate any remains of impunity remaining as a consequence of the position as officers of the defendants, the Statute of the Tribunal states:
"Article 7: The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.
Article 8: The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires".
And for further clarification as to the meaning of individual responsility for membership of a criminal organization, the Statute continues:
"Article 9: At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.
After the receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application.If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard.
Article 10: In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individual to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.
Article 11: Any person convicted by the Tribunal may be charged before a national, military or occupation court, referred to in Article 10 of this Charter, with a crime other than of membership in a criminal group or organization and such court may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activities of such group or organization."
The Tribunal itself states in its judgement:
"Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced".
From this it is evident that one of the genuine and most important legacies of Nurmberg is the establishment of individual criminal responsibility, not only for the commission of one or several crimes within its jurisdiction, but also as for membership of a criminal organization or for participation in a common plan or conspiracy whose objective was the commission of one or more of the crimes described in Article 6, these latter offences being criminal by virtue of this objective.
Perhaps even more important, as was explained above, is the fact that the General Assembly adopted unanimously and without requiring a vote, a resolution ratifying the Principles of International Law Recognised by the Statute of the Tribunal of Nuremberg. The General Assembly of the United Nations by means of Resolution 95(I) of 11th December 1946 charged the International Law Commission with the duty to formulate the Principles of Nuremberg. As mentioned, Principle VI provides:
"The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
(b) War crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war, of persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime".
And Principle VII "Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law".
For its part, the UN International Law Commission in Article 2 of the 1996 version of the draft Code of Crimes against Peace and the Security of Mankind establishes the following in reference to this matter:
1. A crime against the peace and security of mankind entails individual responsibility..
2. An individual shall be responsible for the crime of aggression in accordance with article 16."
Commentary of the International Law Commission with respect to certain points of this article 2:
(1) The principle of individual responsibility for crimes under international law was clearly established at Nürnberg. The Nürnberg Charter provided for the trial and punishment of persons who committed crimes against peace, war crimes or crimes against humanity. The Nürnberg Tribunal confirmed the direct applicability of international criminal law with respect to the responsibility and punishment of individuals for violations of this law (...) The Nürnberg Tribunal further concluded that 'individuals can be punished for violations of international law'. The principle of individual responsibility and punishment for crimes under international law recognized at Nürnberg is the cornerstone of international criminal law. This principle is the enduring legacy of the Nürnberg Charter and Judgement which gives meaning to the prohibition of crimes under international law by ensuring that the individuals who commit such crimes incur responsibility and are liable to punishment.
(3) Article 2, paragraph 1 reaffirms the principle of individual responsibility for crimes under international law with respect to crimes against the peace and security of mankind. This is clearly indicated by the recognition of the fact that such a crime "entails individual responsibility". Notwithstanding the scope and application of the Code provided for in article 1, paragraph 1, the present paragraph is formulated in general terms to reaffirm the general principle of individual criminal responsibility with respect to all crimes against the peace and security of mankind irrespective of whether such crimes are listed in the present Code. The Commission considered that it was important to reaffirm this general principle in relation to all crimes against the peace and security of mankind to avoid any question concerning its application to crimes of such a character that were not listed in Part II
(4) Paragraph 1 also indicates that the scope of application of the Code ratione personae is limited to "individuals" meaning natural persons. It is true that the act for which an individual is responsible might also be attributable to a State if the individual acted as an "agent of the State", "on behalf of the State", "in the name of the State" or as a de facto agent, without any legal power. For this reason, article 4 establishes that the criminal responsibility of individuals is "without prejudice to any question of the responsibility of States under international law.
(7) Subparagraph 3 (a) addresses the responsibility of the individual who actually "commits such a crime". This subparagraph provides that an individual who performs an unlawful act or omission is criminally responsible for this conduct under the present subparagraph. As recognized by the Nürnberg Tribunal, an individual has a duty to comply with the relevant rules of international law and therefore may be held personally responsible for failing to perform this duty. The present subparagraph is intended to cover two possible situations in which an individual "commits" a crime by means of an act or an omission depending on the rule of law that is violated. In the first situation, an individual incurs criminal responsibility for the affirmative conduct of performing an act in violation of the duty to refrain from performing such an act. In the second situation, an individual incurs criminal responsibility for an omission by failing to perform an act in violation of the duty to perform such an act. While recognizing that the word "commit" is generally used to refer to intentional rather than merely negligent or accidental conduct, the Commission decided to use the phrase "intentionally commits" to further underscore the necessary intentional element of crimes against the peace and security of mankind. The principle of individual criminal responsibility under which an individual who commits a crime is held accountable for his own conduct set forth in subparagraph (a) is consistent with the Nürnberg Charter (article 6), the Genocide Convention (article II), the Geneva Conventions of 1949 30/ and the Statutes of the International Criminal Tribunals for the former Yugoslavia (article 7, paragraph 1) and Rwanda (article 6, paragraph 1). This principle is also consistent with the Nürnberg Principles (Principle I) adopted by the Commission."
The Statute of the International Criminal Tribunal for the Former Yugoslavia, in its article 7 (paras 1 and 2) and the International Tribunal of Rwanda in its Article 6 (paras. 1 and 2) provide with respect to crimes within their competence: "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 [2 to 4 Rwanda] of the present Statute, shall be individually responsible for the crime", and " The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment".
The Statue of the International Criminal Court approved in Rome on 17th July 1998 also applies the same principle:
"Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law."
B) Individual criminal responsiblity of senior civilians and officers on the principle of "command responsibility"
The responsibility of command and generally, that of senior officers, is a recognised principle.
a) Historical and legal analysis of the principle of command responsibility
The concept of command responsibility, in its broader sense, encompasses two possibilities. In the first instance it covers the responsibility of a superior who orders a subordinate to commit an illegal act - for example a crime against peace. It also includes the situation where the subordinate claims absence of responsibility for an offence, because he acted in accordance with orders or what he presumed to be the wishes of his superior, such a defence being known as "compliance with superior orders" or "due obedience".
The origin of the concept of responsibility of the person in command can be dated to at least 500 years BC when Sun Tzu referred to it in his work "The Art of War".
It can also be found in an ordinance of 1439 of Charles VII of France who held his captains and lieutenants responsible for any abuses committed by a soldier in their company. Also, Gustavus Adolphus of Sweden in 1621, introduced punitive laws holding liable any colonel or captain who ordered a soldier to commit or participate in an illegal act.
Grotius, considered the father of international law, recognised this principle in De Jure Belli Ac Pacis Libri Tres (1625).
On the same subject, it is worth mentioning the Lieber Code which governed the conduct of American soldiers during the Civil War. The principle was also applied against Napoleon for violating his agreement to be sent into exile and for failing to respect humanitarian laws. The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties set up at the end of World War I, established criminal responsibility without distinction in rank (including heads of state) for those guilty of violations of humanitarian laws.
The Hague Convention of 1907 is the first treaty to attribute responsibility to a person in command for violation of humanitarian laws in the context of military conflict (art.3) Previously, in 1902, Brigadier-General Jacob H Smith had been removed from active service by President Roosevelt when it was determined that he had given illegal orders to his subordinates in the exercise of his command. This responsibility is also referred to in the Red Cross Convention of 1929 and clearly articulated in the Treaty of Versailles. Some jurists consider that by the time of the Second World War this doctrine had formed part of customary international law. The direct responsibility of the person in command was recognised in the statutes of Nuremberg and Tokyo, and the question was dealt with in many significant cases before these tribunals and the subsequent legal proceedings.
Given that the act of aggression envisaged as criminal by the Charter of Nuremberg can only be committed as a result of a decision by a head of state or responsible government officials, the Charter introduced the concept of command responsibility with respect to the "crime against peace" and the Tribunal had no alternative but to accept this as a norm which had to be complied with.
In the case of military commanders or principal or superior rank administrators in occupied territories, the responsibility of those in charge was attributed directly. Thus, "Keitel issued a directive that paratroopers were to be turned over to the SD...After the landing in Normandy, Keitel reaffirmed ("Hitler´s Commando Order"), and later extended it to include Allied missions fighting with partisans". When Canaris wrote to Keitel to say that the regulations concerning the ill-treatment of soviet prisoners of war were contrary to international law, Keitel responded in a written memorandum which bore his initials: " The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore I approve and back the measures". Keitel later testified that he agreed with Canaris and argued with Hitler about it but that he had lost. He was also found guilty of issuing orders for the killing of hostages in retaliation for attacks against German soldiers and for signing an order "that civilians suspected of offences against troops should be shot without trial, and that prosecution of German soldiers for offences against civilians were unnecessary."
In the same way, Kaltenbrunner had the authority to order internment of the population in concentration camps. The orders here were sent out generally bearing his signature. Kaltenbrunner knew about the conditions of the camps. Without doubt he had been to Mauthausen and witnesses testified that he had seen prisoners killed by the various methods of execution, hanging, shooting in the back of the neck, and gassing, all as part of a demonstration. Kaltenbrunner himself ordered the execution of the prisoners in these camps.
Rosenberg, the Reich Minister for the Occupied Eastern Territories, was aware of the brutal treatment and of the terror to which people in the East were subjected. He directed that the Hague Rules of Land Warfare were not applicable in the Eastern Occupied Territories.
Frank, Governor-General of occupied Poland, had described his proposed policy thus "Poland shall be treated as a colony: the Poles will become the slaves of the Greater German World Empire" His defense focussed to a large extent in trying to demonstrate that he was not in fact responsible; that he had only ordered the measures necessary for pacification; that the excesses were due to the activities of the Police which was not under his control; ...It is therefore possible that some of the crimes committed in the Government General (of Poland) were committed without Frank´s knowledge...But it is also certain that Frank was a willing and knowing participant in the use of terrorism in Poland...
Notwithstanding the foregoing, until the Second World War, and as can be seen, attention focussed principally on the responsibility of the person in command for issuing illegal orders which would have to be carried out by his subordinates. The Charter of Nuremberg, for example, makes no reference to responsibility by omission. It was not until the case of Yamashita, tried in front of a US Military Commission in Manila at the end of the Second World War, that the responsibility by omission of a superior was fully considered for the first time.
Other important cases of command responsibility for failure to act were heard during trials before the International Military Tribunal for the Far East (IMTFE) and the subsequent proceedings in Nuremberg before military tribunals of the US ( as for example the Hostage and High Command cases). In these cases, responsibility by omission was based specifically on Article 1(1) of the Hague Regulations of 1907, concerning the laws and customs of ground war, which establishes that the members of the armed forces should be "commanded by a person responsible for his subordinates").
The treaties which followed the Second World War, including the Convention against Torture of 1984 and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, of 26th November 1986, allude to the responsibility of the commanding officer (the latter of the said conventions makes specific reference to the responsibility by omission of those in command), and it is set out as Principle III of the Principles of Nuremberg.
[For more detailed information see the Scilingo Case (SPA/ESP)]
If the Geneva Conventions of 1949 do not expressly set out the duties of commanders, the responsibility for the issue of illegal orders, or for failing to carry out one´s duty, can be extracted from various articles on the subject. It is just as easy to commit a serious violation of the Conventions by failure to act as it is to do so by means of a positive act.
The responsibility of a superior was not formally codified until 1977, when it was included in Protocol I additional to the Geneva Conventions. Articles 86 and 87 envisage the responsiblity of a person in command in those cases where he does not act or he fails to carry out a positive duty. It should therefore go without saying that serious violations of the Protocol, as described in articles 11 and 85 can be committed both by omission and by a positive action.
Article 7(3) of the Statute of the Tribunal for the former Yugoslavia is clearly modelled on article 86(2) of Protocol I, although one might argue that responsibility pursuant to article 7(3) is more far-reaching and is subject to a more objective test than pursuant to article 86(2)
At the time that the doctrine of responsibility of a person in command was being developed both directly and indirectly at an international level, it was also being developed at a national level in the military codes of various states and in certain significant cases brought before national military tribunals. Today there is a substantial body of opinion that the responsibility by omission of a person in command has the status of customary international law.
[This historical analysis has been based on the Bulletin of International Criminal Law for former Yugoslavia No.15/16 10-III-100 and the article which appeared in "Transnational Law and Contemporary Problems", Fall, 1995. University of Iowa College of Law, by LC Green.]
Protocol I of 1997 to the Geneva Conventions.
" Article 86.-Failure to act
1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.
2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
"Article 87.-Duty of commanders
1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.
2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.
3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof".
With reference to civilians and members of the armed forces who obey the unlawful orders to attack Iraq, according to the international law principles currently in effect, every person who commits such an act "is responsible for the same and is subject to sanction" Likewise, the fact that such individual has acted in his capacity as the head of State or with the authority of the State does not exempt him from liability. Nor will he/she be exempt from criminal liability for having acted in accordance with the orders of a superior in the hierarchy: this means that the principle of due obedience cannot be invoked to avoid punishment for these crimes, particularly when the crime at issue is the gravest that exists in international law, the supreme crime, that is a crime against the peace, the commitment of an act of aggression.
On this matter, Article 8 of the Nuremberg Charter provides:
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires".
And Principle 4 of the Principles of Nuremberg: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him".
Article 5 of the Draft Code of Crimes against the Peace and Security of Mankind provides: "The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility, but may be considered in mitigation of punishment if justice so requires".
The same principle is expressed, with respect to the crimes within the respective competence of the International Criminal Tribunal for the former Yugoslavia (in Article 7.4) and the International Criminal Tribunal for Rwanda (in Article 6.4).
Again, Article 33 of the Rome Statute of the International Criminal Court provides:
"Superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
For a specific case, as for example Spain, the members of the armed forces are subject to the provisions of the Military Criminal Code [Ley Orgánica 13/1985, de 9 de diciembre, del Código Penal Militar]:
(...). No se estimará como eximente ni atenuante el obrar en virtud de obediencia a aquella orden que entrañe la ejecución de actos que manifiestamente sean contrarios a las leyes o usos de la guerra o constituyan delito, en particular contra la Constitución." [It is not considered a defence or mitigation to have obeyed an order which entailed the execution of acts which are clearly contrary to the laws and customs of war or which constitute a crime, especially against the Constitution".
In consideration of the foregoing we declare the need:
- To convoke the General Assembly in accordance with the procedure "Uniting for Peace" as provided in resolution 377.
- To order the termination of hostilities in Iraq.
- To condemn the conduct of the United States as illegal according to current governing international law.
- To establish the international mechanisms necessary to guarantee peace in the region.
- To provide the logistical and financial means necessary to the International Committee of the Red Cross-ICRC with a view to guaranteeing aid to the displaced and the refugees from the conflict in the bordering countries, thereby complying with the provisions of the Geneva Conventions and their additional protocols.
- That the General Assembly request the International Court of Justice to issue a consultative opinion in accordance with article 96 of the Charter of the United Nations.
- That the General Assembly, through the legal mechanisms established in the Charter formally denounce all improper or illegal acts or acts in breach of international humanitarian law or human rights law which have been committed by any of the countries involved in these crimes, once the decision of the International Court of Justice is known.
European Union, March 22, 2003
Declaration of Equipo Nizkor.
For more information please contact Equipo Nizkor.
(*) The Spanish original version of this Statement was released on March 22, 2003, when Richard Perle was still chairman of the Defence Policy Board. He resigned on Thursday, March 27, 2003.
This document has been published on 15May03 by the Equipo Nizkor and Derechos Human Rights