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War crimes
U.S.-Israel war on Gaza, Palestine, Lebanon:
What you don’t see on TV, hear on the radio, or read in the corporate press:
Condoleezza Rice (U.S. National Security Advisor), interviewed by Margaret Warner, “Rice on Iraq, War, and Politics” (PBS: Public Broadcasting Service, The NewsHour with Jim Lehrer, September 25 2002, 7:00 p.m.), video bb {17:15 bb}, audio {16:51, at 10:49}.
• Bombing Iran's IAEA safe-guarded nuclear facilities
• Palestine Peace Not Apartheid
• The Israel Lobby
• Silver bullet
• Iran uranium timeline
• Iraq wmd war timeline: 2002, 2003, 2004, 2005-2006, 2007-2008
U.S. officials allied with Israel and attacked Gaza, and the rest of Palestine, with a quarantine and blockade, in response to the Hamas election victory (January 25 2006), universally recognized to be a free and fair democratic election.
Inciting other countries to join this blockade, U.S. officials threatened to punish foreign banks, who transferred money to the Hamas government.
For example, money donated by foreigners, in foreign countries, and by foreign countries themselves.
Their war-aim was to overthrow the democratically elected government of Palestine.
This U.S. offensive war on Gaza, and the rest of Palestine, was not voted on by the U.S. Congress.
As the U.S. constitution requires.
It was planned, initiated, and launched, by the U.S. president and the rest of his cabal.
In the service of the U.S. Israel lobby, which aids, abets, facilitates, aggressive war on Gaza and violent war crimes too, illegal elements of that siege, and also armed robbery, ethnic cleansing, Israeli population of Palestinian land in Israeli-occupied Palestinian territory (West Bank including East Jerusalem), and violence to enforce these crimes.
There is no Israel-Arab lobby. Israeli Arabic Palestinians (about 20% of the Israeli population) are second class citizens, in their racist Jewish state.
But had it been submitted to a vote, Congress would likely have agreed to it.
Because virtually the whole of the political elites, in the U.S., both political parties, support the criminal agenda of the Israel lobby and the Israeli regime.
Zionism.
An aggressive political apartheid ideology.
Pursuing conquest.
By force.
Of their neighbors’ lands and resources.
Ethnic cleansing of non-Jews from their midst.
And permanent subjugation of their neighbors.
Corraled into ghettos.
Open prisons.
On waste land.
The Israeli regime doesn’t want.
And, because they fear their neighbors justly hate them, on account of their violent crimes, the Israeli regime pursues a particular military strategy.
The same strategy the U.S. regime pursues, which is certainly justly hated, for much the same reasons.
“They hate us.
Therefore they are a threat.
Which must be dealt with.”
In the case of the U.S. this takes the form of “forward basing,” with this slogan:
“Fight them over there.
So we don’t have to fight them over here.”
In the case of Israel, this takes the form of a concrete wall, and armored fence, constructed on their neighbor’s lands, and buffer zones, also beyond their borders.
Occupation of the West Bank (their neighbors’ land), to the Jordan river, in the east. A naval blockade of Gaza, in the west. Occupation of Syria and Lebanon, their territory, in the north (Golan Heights, Shaba Farms).
And now, recently, a 15 mile deep buffer zone, inside Lebanon, in the north. Which the Israeli regime sterilized, against human habitation, as best they could. Israel destroyed all housing, all infrastructure, all vehicles, and, in the final two days, sowed the whole area with land mines, a million {copy} anti-personnel cluster bomblets.
All of the above, prima facie war crimes, on a breathtaking scale, for which, justice requires, the Israeli Deck of Cards, be apprehended, and delivered for trial, before an international criminal tribunal.
The cluster bombs, prima facie criminal munitions (when used in an area not exlusively military), were supplied to Israel by their co-belligerent, the U.S.
The U.S. also resupplied Israel with other munitions, during the course of the U.S.-Israel war on Lebanon, an act of war by a belligerent.
During the course of the U.S.-Israel war on Lebanon, and in response to that attack, Hezbollah launched thousands of Katusha rockets, into Israel. These munitions cannot be further targeted, once in flight.
Israel claimed its attacks in Lebanon were justified, in self-defense against these rockets, which Hezbollah launched, in self-defense, against the Israeli military, and as reprisals, against Israeli civilians, for Israeli targeting of civilians, and civilian objects, in Lebanon.
Prior to this war, Hezbollah launched 10 rockets (according to an Israeli military talker, I heard on the radio) into Israel, over the years, since Israel’s withdrawal from most (but not all) of Lebanon.
Presumably these 10 rockets were launched as a reprisal, for something Israel did. But, I don’t know Hezbollah’s asserted reasons for launching these 10 rockets, or what damage they caused, if any (if they’re not fictional).
Hezbollah, DoS spelling: Hizballah, other transliterations (from wiki), Hezballah, Hizbullah, Hizbollah, Hisbollah, and Hizb Allah.
This second offensive war by the U.S., this time on Lebanon, was likewise once against launched by the U.S. president, and his cabal.
In violation of the U.S. constitution.
Without a vote in Congress.
And once again, had there been a vote, Congress would likely have agreed.
Because that’s what the Israel lobby, and the Israel regime, wanted to do.
The U.S. Axis partner.
The Axis Powers are now working to enleague the United Nations, to supply a military force, into the buffer zone, to defend the Israel aggressors, from a future attack, from the north, by Hezbollah, a Lebanese citizen militia, supported financially from international sources, Arabs in other lands and, apparently, the government of Iran.
This would be identical, for example, to Adolph Hitler, arranging with the League of Nations, to supply an international force, south of Paris, to protect his forces from attack, by the French Resistance.
If it is lawful for Hezbollah to attack Israel.
Then it is lawful for Hezbollah to attack international forces protecting Israel.
In Gaza — choked and strangled by the U.S.-Israel offensive war by blockade and quarantine — Palestinian fighters made a dramatic raid, on an Israeli military post (June 25 2006).
They tunneled under the border.
Killed two Israeli soldiers.
And captured one (Gilad Shalit).
With the aim of swapping their prisoner, to free a few hundred Palestinian women and children, held by Israel, as civilian detainees.
A tiny percentage of the 10,000 Palestinians detained in prisons by Israel, few of them charged with any offense.
Israel’s Guantanamo Bay.
This was a perfectly lawful attack.
By the Gaza fighters.
Under the laws of war.
The Israeli regime.
And the Israel lobby, in the U.S.
Promptly, and hysterically.
(Their normal decibel level).
Labeled this lawful attack “terrorism.”
And the U.S. president, and his cabal, and the U.S. press (disproportionately populated with Jewish voices), endorsed this propaganda as fact.
Thereby preempting any rational public analysis.
Of law and justice.
And, especially, any public discourse, about the offensive, aggressive, war by the U.S. and Israel, on Gaza and the rest of Palestine.
And their prima facie criminal war-aim (to overthrow the democratically elected Hamas government).
Israel then escalated its offensive war on Gaza, with a severe military attack, targeting “civilian objects” (a war crime), the Gaza infrastructure.
Claiming, they acted in self-defense.
Hezbollah soon staged a similar raid, attacking an Israeli military post, inside Israel, on the Lebanon border (July 12 2006).
Killing three Israeli soldiers and capturing two.
With a similar aim, to exchange their two prisoners, this time for Lebanese citizens, long held as prisoners by Israel.
Dating from Israeli’s invasion of Lebanon in 1982.
Hezbollah did not mention, as I recollect, that this attack was also in the collective defense of the Palestinians, then victims of the offensive U.S.-Israel war.
Attacking Israel from the north, or from any direction, for the purpose of assisting the Palestinian victims of the U.S.-Israel offensive war, is the continuing prima facie lawful right of all nations in the world.
As is attacking Israel with the war-aim of driving Israel back inside its borders, freeing the Palestinian occupied territories, freeing the 10,000 Palestinian detainees, and apprehending the Israeli civilian and military leaders, to stand trial, for their 40 years of prima facie crimes.
All nations (such as Iran) also have the prima facie lawful right, to provide money and arms, to local groups, like Hezbollah, who are courageous enough to attack Israel.
Once again, Israel asserted that its massive assault on Lebanon was—
Self-defense.
And, once again, nearly all nations of the world.
Endorsed this faulty analysis.
Israel has been illegally occupying Palestinian territory.
For 40 years.
An “aggression.”
Slowly, Israel has stolen the land they occupy (a war crime).
And the water (a war crime).
In recent decades, during the Reagan-Bush-Bush regimes, with no apparent opposition from the intervening Clinton regime, Israel has escalated their armed robbery.
Exporting 450,000 Israeli settlers (a war-crime).
To colonize their neighbors’ land.
In new settlements.
Paid for, facilitated, aided and abetted.
By U.S. taxpayers.
Exactly as Adolph Hitler did, in Poland.
Confiscating farms.
On his neighbor’s land.
Ousting their owners.
And delivering the stolen farms to German settlers.
Like Israel, Adolf Hitler also claimed the same.
His nation, too, needed living room (Lebensraum).
Israel escalated their violent military oppression.
Of the occupied peoples of Palestine.
During these recent decades.
An “aggression.”
To quell their agitation.
At the crimes against them.
By their military occupier.
This, in self-defense.
Israel claims.
To defend their aggression.
________________
Ministries {page 333}:
{p.333} It brought ruin to Germany
and a world-wide distrust
in the ability of its people
to govern themselves
as a peace-loving, and useful, nation.
Because of this record, the road back is long, and arduous, and beset with difficulty.
The attempt, which has been made to create the fiction and fable that the Third Reich acted in self-defense and was justified in its acts toward its neighbors, has no foundation and is, in fact, a disservice to the German people.
* * *
{p.334} The defense insists that the invasion of Norway was justified because of French and British plans to land expeditionary forces there, in violation of Norwegian neutrality, and, therefore, Germany acted in self-defense.
We may repeat the statement that having initiated aggressive wars, which brought England and France to the aid of the Poles, Germany forfeited the right to claim self-defense, but there are other and cogent facts which make this defense unavailable.
Long before the discovery of alleged British and French plans, and before any such plans existed, the Third Reich commenced to support and subsidize Quisling and his movement for the purpose of gaining control of the Norwegian Government and therefore of Norway.
* * *
{p.335} The German excuse for the attack on Greece is that England had landed certain troop elements in aid of Greece’s defense against Italy and that as a matter of self-defense Germany was compelled to intervene, but an aggressor may not loose the dogs-of-war and thereafter plead self-defense.
The only justification offered for the German invasion of Yugoslavia is the coup d’état which overthrew the government which had signed the Anti-Comintern Pact, and the fear that Yugoslavia would remain neutral only until such time as it might join the ranks of Germany’s enemies.
* * *
We think there is no doubt whatsoever that every country in Europe except {p.336} its Axis partners hoped for German defeat as the one insurance for its own safety, but such hopes cannot justify the German action against them.
The claim of self-defense is without merit.
That doctrine is never available either to individuals or nations who are aggressors.
The robber, or the murderer cannot claim self-defense, in attacking the police to avoid arrest or those who, he fears, disapprove of his criminal conduct and hope that he will be apprehended and brought to justice.
The invasion of Austria, the invasion of Bohemia and Moravia, and the attack on Poland were in violation of international law.
And, in each case, by resorting to armed force, Germany violated the Kellogg-Briand Pact.
It thereby became an international outlaw and every peaceable nation had the right to oppose it without itself becoming an aggressor, to help the attacked and join with those who had previously come to the aid of the victim.
The doctrine of self-defense and military necessity was never available to Germany as a matter of international law, in view of its prior violations of that law.
That the United States abandoned a neutral attitude toward Germany, long before Germany declared war, is without question.
It hoped for Germany’s defeat, gave aid and support to Great Britain and to the governments of the countries which Germany had overrun.
Its entire course of conduct, for over a year before December 11 1941, was wholly inconsistent with neutrality and that it had no intention of permitting Germany’s victory, even though this led to hostilities, became increasingly apparent.
However, in so doing, the United States did not become an aggressor; it was acting within its international rights in hampering and hindering with the intention of insuring the defeat of the nation which had wrongfully, without excuse, and in violation of its treaties and obligations embarked on a coldly calculated program of aggression and war.
But such intent, purpose, and action does not remove the aggressive character of the German declaration of war of December 11 1941 {on the U.S.}.
A nation which engages in aggressive war
invites the other nations of the world
to take measures, including force,
to halt the invasion and to punish the aggressor,
and if by reason thereof
the aggressor declares war on a third nation,
the original aggression carries-over and give the character of aggression to the second, and succeeding, wars.
We hold that the invasions and wars
described in paragraph 2 of the indictment against Austria, Czechoslovakia, Poland, the United Kingdom and France, Denmark and Norway, Belgium, the Netherlands, and Luxembourg, Yugoslavia and Greece, {p.337} the Union of Soviet Socialist Republics, and the United States of America
were unlawful and aggressive, violated international law, and were crimes within the definition of the London Charter and Control Council Law No. 10.
Our task is to determine which, if any, of the defendants, knowing there was an intent to so initiate, and wage, aggressive war, consciously participated in either plans, preparations, initiations of those wars, or — so knowing, participated, or aided in carrying them on.
* * *
{p.342} Planning, preparing, initiating, or waging aggressive war with its attendant horror, suffering, and loss is a crime which stands at the pinnacle of criminality. For it, there is no justification, or excuse.
–CJHjr
________________
Palestinian suicide bombers, targeting Israeli civilians.
Palestinian rockets, launched from Gaza, targeting Sderot, about a mile away, a town in Israel, and more distant towns, from 2008, Ashkelon and Ashdod, Beer-Sheva, and others. Mostly homemade Qassam rockets (Israeli spelling: Kassam), some few Grad rockets too, Israelis say, also launched as singles.
These attacks, targeting Israeli civilians.
Are they “terrorism”?
As U.S., U.K., French, German, Italian, Israeli officials endlessly assert?
Or, instead, are they lawful.
Lawful, law enforcement actions, by victims, of continuous unlawful actions, by Israel, killing, injuring, Palestinian civilians.
Yes. They’re lawful.
If Israel’s actions are unlawful.
That’s the official, formal, considered, written, view, of the U.S./U.K. governments.
Palestinian Qassam rockets, and suicide bombers, are lawful belligerent reprisals, lawful targeting of Israeli civilians, a lawful response to unlawful violence, war crimes, terrorism, by Israel and by its complicit partners: the U.S., the EU4 (U.K., France, Germany, Italy), Egypt, and others.
That’s what Israel’s complicit partners say.
To wit:
Mr. Tony Lloyd: I am pleased to be able to inform the House that the United Kingdom instruments of ratification of the two Additional Protocols of 1977 to the Geneva Conventions of 1949 for the Protection of War Victims are today being deposited with the Swiss authorities in Berne. ...
A copy of the note accompanying the instrument of ratification has been placed in the Library of the House. The note contains the statements made by the United Kingdom on ratification of Additional Protocol I on International Conflicts. In most cases these reflect similar statements made by the United Kingdom on signing Protocol I in 1977. ...
I would also draw the attention of the House to statement (m) on Articles 51 to 55 and statement (n) on Articles 56 and 85, paragraph 3c. ¶
These statements reserve our right to threaten reprisals if attacks were launched against our own civilians or civilian targets and remove the virtual immunity under the Protocol for attacks on dams, dykes and certain nuclear facilities such as nuclear power stations, even when they are a significant part of the enemy’s war effort. ¶
Both reservations have been drafted with great care to show that these would be measures of last resort, to be decided upon only if all else had failed, and requiring high level authorisation. ¶
Our actions would still be subject to the classic rule of proportionality. ...
In accordance with the powers conferred in Section 7 of the 1957 Geneva Convention Act, as amended by Section 4(7) of the Geneva Conventions (Amendment) Act 1995, the Government will certify in an Order in Council the terms of the statements made on ratification.
Chapter 16
* * *
Nature of Reprisals
16.16 Reprisals are extreme measures to enforce compliance with the law of armed conflict by the adverse party. They can involve acts which would normally be illegal, resorted to after the adverse party has itself carried out illegal acts and refused to desist when called upon to do so. They are not retaliatory acts or simple acts of vengeance. Reprisals are, however, an extreme measure of coercion, because in most cases they inflict suffering upon innocent individuals. {p.421}
Nevertheless, in the circumstances of armed conflict, reprisals, or the threat of reprisals, may sometimes provide the only practical means of inducing the adverse party to desist from its unlawful conduct.
Conditions for Reprisal Action
16.17 In order to qualify as a legitimate reprisal, an act must comply with the following conditions when employed:
a. It must be in response to serious and manifestly unlawful acts, committed by an adverse government, its military commanders, or combatants for whom the adversary is responsible. 50
b. It must be for the purpose of compelling the adversary to observe the law of armed conflict. Reprisals serve as an ultimate legal sanction or law enforcement mechanism. Thus, if one party to an armed conflict breaches the law but then expresses regret, declares that it will not be repeated, and takes measures to punish those immediately responsible, then any action taken by another party in response to the original unlawful act cannot be justified as a reprisal.
c. Reasonable notice must be given that reprisals will be taken. What degree of notice is required will depend upon the particular circumstances of the case.
d. The victim of a violation must first exhaust other reasonable means of securing compliance before reprisals can be justified.
e. A reprisal must be directed against the personnel or property of an adversary.
f. A reprisal must be in proportion to the original violation. Whilst a reprisal need not conform in kind to the act complained of, it may not significantly exceed the adverse party’s violation either in degree or effect. Effective but disproportionate acts cannot be justified as reprisals on the basis that only an excessive response will forestall further violations.
g. It must be publicized. Since reprisals are undertaken to induce an adversary’s compliance with the laws of armed conflict, any action taken as a reprisal must be announced as such and publicized so that the adversary is aware of the reason for the otherwise unlawful act and of its own obligation to abide by the law. 51
h. As reprisals entail state responsibility, they must only be authorized at the highest level of government. 52 {p.422}
i. Reprisal action may not be taken or continued after the enemy has ceased to commit the conduct complained of.
Unlawful Reprisals
16.18 Reprisals are never lawful if directed against any of the following:
a. the wounded, sick, and shipwrecked, medical personnel and chaplains, medical units, establishments and transports; 53
c. protected persons and their property. 55
16.19 Additional Protocol I extends the categories of persons and objects against whom reprisals are prohibited to:
a. civilians and the civilian population; 56
c. historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; 58
d. objects indispensable to the survival of the civilian population such as foodstuffs, crops, livestock, drinking water installations and supplies, and irrigation works; 59
e. the natural environment; 60
f. works or installations containing dangerous forces, namely dams, dykes, and nuclear electrical generating stations. 61
16.19.1 However, on ratification of Additional Protocol I, the United Kingdom made the following statement:
The obligations of Articles 51 to 55 are accepted on the basis that any adverse party against which the United Kingdom might be engaged will itself scrupulously {p.423} observe those obligations. If an adverse party makes serious and deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the United Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government. Any measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise thereto and will not involve any action prohibited by the Geneva Conventions of 1949 nor will such measures be continued after the violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal warning given to an adverse party, and if that warning has been disregarded, of any measures taken as a result.
16.19.2 This means that reprisals taken in accordance with the statement are permissible by and against the United Kingdom. 62 However, commanders and commanders-in-chief are not to take reprisal action on their own initiative.
Requests for authority to take reprisal action must be submitted to the Ministry of Defence and require clearance at Cabinet level. 63
50 See the findings of the Italian Military Tribunal in the Ardeatine Cave Massacre Case (Trial of Kappler) (1948) AD 471, 473.
51 See the Bruns Trial (1948) 3 WCR 21-22 {6.53mb.pdf, source}.
53 GC I, Art 14; GC II, Art 16; GC III, Art 13; AP I, Art 20.
55 GC IV, Art 33. For a definition of ‘protected person’ in this context, see para 9.17.
58 AP I, Art 53(c). See also a similar provision, though with a different definition of ‘cultural property’, in the Cultural Property Convention 1954 (CPC), Art 4(4). The UK has not yet ratified this Convention.
61 AP I, Art 56. The UK made a separate statement on ratification in respect of this article, in the following terms: ‘The United Kingdom cannot undertake to grant absolute protection to installations which may contribute to the opposing Party’s war effort, or to the defenders of such installations, but will take all due precautions in military operations at or near the installations referred to in paragraph 1 of Article 56 in the light of the known facts, including any special marking which the installation may carry, to avoid severe collateral losses among the civilian populations; direct attacks on such installations will be launched only on authorisation at a high level of command’. See also para 5.30.
62 Although the Yugoslav Tribunal has stated that attacks on civilians by way of reprisal can never be justified (Prosecutor v Kupreškić, ICTY Case No IT-95-16 of 14 January 2000 {799kb.pdf, source} at part V of para 20) {see note below}, the court’s reasoning is unconvincing and the assertion that there is a prohibition in customary law flies in the face of most of the state practice that exists. The UK does not accept the position as stated in this judgment.
63 Statement, set out in para 16.19.1, by UK on ratification of AP I.
Chapter 8
Section I. Remedies and Reprisals
495. Remedies of Injured Belligerent
In the event of violation of the law of war, the injured party may legally resort to remedial action of the following types: ...
e. Reprisals.
* * *
a. Definition. Reprisals are acts of retaliation in the form of conduct which would otherwise be unlawful, resorted to by one belligerent against enemy personnel or property for acts of warfare committed by the other belligerent in violation of the law of war, for the purpose of enforcing future compliance with the recognized rules of civilized warfare. For example, the employment by a belligerent of a weapon the use of which is normally precluded by the law of war would constitute a lawful reprisal for intentional mistreatment of prisoners of war held by the enemy.
b. Priority of Other Remedies. Other means of securing compliance with the law of war should normally be exhausted before resort is had to reprisals. This course should be pursued unless the safety of the troops requires immediate drastic action and the persons who actually committed the offenses cannot be secured. Even when appeal to the enemy for redress has failed, it may be a matter of policy to consider, before resorting to reprisals, whether the opposing forces are not more likely to be influenced by a steady adherence to the law of war on the part of their adversary.
c. Against Whom Permitted. Reprisals against the persons or property of prisoners of war, including the wounded and sick, and protected civilians are forbidden (GPW, art. 13; GC, art. 33). Collective penalties and punishment of prisoners of war and protected civilians are likewise prohibited (GPW, art. 87; GC, art. 33). However, reprisals may still be visited on enemy troops who have not yet fallen into the hands of the forces making the reprisals.
d. When and How Employed. Reprisals are never adopted merely for revenge, but only as an unavoidable last resort to induce the enemy to desist from unlawful practices. They should never be employed by individual soldiers except by direct orders of a commander, and the latter should give such orders only after careful inquiry into the alleged offense. The highest accessible military authority should be consulted unless immediate action is demanded, in which event a subordinate commander may order appropriate reprisals upon his own initiative. Ill-considered action may subsequently be found to have been wholly unjustified and will subject the responsible officer himself to punishment for a violation of the law of war. On the other hand, commanding officers must assume responsibility for retaliative measures when an unscrupulous enemy leaves no other recourse against the repetition of unlawful acts.
e. Form of Reprisal. The acts resorted to by way of reprisal need not conform to those complained of by the injured party, but should not be excessive or exceed the degree of violence committed by the enemy. {p.178}
f. Procedure. The rule requiring careful inquiry into the real occurrence will always be followed unless the safety of the troops requires immediate drastic action and the persons who actually committed the offense cannot be ascertained.
g. Hostages. The taking of hostages is forbidden (GC, art. 34). The taking of prisoners by way of reprisal for acts previously committed (so-called “reprisal prisoners”) is likewise forbidden. (See GC, art. 33.)
Subject: 1977 Protocols Additional to the Geneva Conventions: Customary International Law Implications
This is in reply to your memorandum of 26 March 1986, same subject, to the undersigned. In that memo you asked our views on which articles of the Protocol are currently recognized as customary international law, and which should be supported for eventual incorporation into that law. Our views were to be based on the list of provisions provided by OJCS {Office of the Joint Chiefs of Staff}.
We view the following provisions as already part of customary international law:
* * *
g. Civilians: Articles 51, paragraph 2; 52, paragraphs 1 and 2 (except for the reference to “reprisal”); and 57, paragraphs 1, 2(c) and 4).
* * *
In addition to the undersigned, Lt Col Burrus M. Carnahan, USAF, and CDR John C. W. Bennett, JAGC, USN, participated in preparation of this memorandum.
The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions ...
Articles 51 and 52 ...
We do not support the portion of Article 51 and subsequent articles prohibiting the use of reprisals; this is not an expression of customary international law.
Agora: The U.S. decision not to ratify Protocol I to the Geneva conventions on the protection of war victims (cont’d):
The rationale for the United States decision ...
The unfortunate fact is that Third World and other countries chose not to respect our strong views and those of our European allies, and thus chose to create a new legal regime that we find unacceptable.
The Joint Chiefs of Staff, after a careful and extensive study, concluded that Protocol I is unacceptable from the point of view of military operations.
The reasons, spelled out in a detailed JCS report of more than a hundred pages, include the fact that the Protocol ... eliminates significant remedies in cases where an enemy violates the Protocol.
The total elimination of the right of reprisal, for example, would hamper the ability of the United States to respond to an enemy’s intentional disregard of the limitations established in the Geneva Conventions of 1949 or Protocol I, for the purpose of deterring such disregard.
Chapter 6, Adherence and Enforcement
* * *
6.2 Enforcement of the law of armed conflict
* * *
A belligerent reprisal is an enforcement measure under the law of armed conflict consisting of an act that would otherwise be unlawful but which is justified as a response to the previous unlawful acts of an enemy. The sole purpose of a reprisal is to induce the enemy to cease its illegal activity and to comply with the law of armed conflict in the future. Reprisals may be taken against enemy armed forces, enemy civilians other than those in occupied territory, and enemy property.
6.2.4.1 Requirements for Reprisal
To be valid, a reprisal action must conform to the following criteria:
* * *
7. A reprisal action must cease as soon as the enemy is induced to stop its unlawful activities and to comply with the law of armed conflict.
6.2.4.2 Immunity From Reprisal
Reprisals are forbidden to be taken against:
1. Prisoners of war and interned civilians
2. Wounded, sick, and shipwrecked persons
3. Civilians in occupied territory
4. Hospitals and medical facilities, personnel, and equipment, including hospital ships, medical aircraft, and medical vehicles.
“Sources of authority for statements of relevant law” and previous edition (1995 NWP 1-14M):
Lieber Code
27. The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.
28. Retaliation will therefore never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and moreover cautiously and unavoidably — that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence and the character of the misdeeds that may demand retribution.
Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages.
________________
Headquarters Cavalry Command,
Major-General Wheeler,
Commanding, C.S. Cavalry:
General: Yesterday a lieutenant and seven men and a sergeant of a battery were taken prisoners by one of your regiments — if I am correctly informed, a Texas regiment — armed with Spencer carbines and commanded by a lieutenant-colonel.
This officer and his men, after surrendering and being disarmed, were inhumanly and cowardly murdered.
Nine of my cavalrymen were also found murdered yesterday, five in a barn-yard, three in an open field, and one in the road. Two had their throats cut from ear to ear.
This makes in all eighteen Federal soldiers murdered yesterday by your people.
Unless some satisfactory explanation be made to me before sundown, February 23, I will cause eighteen of your soldiers, now my prisoners to be shot at that hour.
And if this cowardly act be repeated, if my people when taken are not treated in all cases as prisoners of war should be, I will not only retaliate as I have already mentioned, but there shall not be a house left standing within reach of my scouting parties along my line of march, nor will I be responsible for the conduct of my soldiers, who will not only be allowed but encouraged to take a fearful revenge.
I know of no other way to intimidate cowards.
I am, general, very respectfully, your obedient servant,
J. Kilpatrick,
Brevet Major-General, Commanding Cavalry.
–CJHjr
These countries back the U.S./U.K. position, the right to target civilians, in belligerent reprisals, 3 more EU NATO big hitters (France, Germany, Italy), and Egypt, paid to obey most orders from Israel and all orders from the U.S., $1.5-billion/year (CRS RL33003, “Egypt: Background and U.S. Relations”).
They all ratified Protocol I in the same way, with a reservation to the new law added by that 1977 protocol, outlawing reprisals targeting civilians and civilian objects not already proscribed by the 1949 treaties, e.g., civilians not in occupied territory.
Palestinians do not occupy Israel, and so the four 1949 Geneva Conventions do not prohibit belligerent reprisals targeting Israeli civilians in Israel, and in Israel’s colonies, the Israeli settlements on Palestinian land, looted by Israel, in the 1967 oPt (Israeli occupied Palestinian territory).
These countries, by their reservations, reject the new reprisal prohibitions (treaty law), so long as customary international law (non-treaty law) continues to allow such reprisals.
“11. The Government of the French Republic declares, it will apply the provisions of paragraph 8 of article 51 in so far as the interpretation of them does not prevent the use, in accordance with international law, of means it considers essential to protect its civilian population from serious, deliberate, and manifest violations by the enemy of the Geneva conventions and protocol.”
This section 11, and all the 18 reservations and declarations by France, were examined and adopted by the French government, and then by both parliamentary committees on foreign affairs, and then by both chambers of parliament, who enacted them, all 18 sections, into French law, the law which authorized the government to accede to the protocol. To wit:
Ronny Abraham: Section 11 should not be construed as opposing the prohibition of reprisals against civilian populations. (en: ‘La rubrique 11 ne doit pas être comprise comme s'opposant à la règle de l'interdiction des représailles sur les populations civiles.’).
“11. The Government of the French Republic declares that it will apply the provisions of Article 51(8) to the extent that their interpretation does not impede the use, in accordance with international law, of the means that it may deem indispensable to protect its civilian population against obvious and deliberate serious violations of the Geneva Conventions and the Protocol by the enemy.”
Did Protocol I (June 8 1977) change customary international law? two years later? when it entered into force? (December 7 1979), its new rules on reprisals? whether the objecting NATO5 like it or not?
Is it binding on them? even if they don’t ratify it? (U.S., Israel), even if they reject it? reserve against it? if they do ratify it? (EU4, Egypt).
Until then, December 7 1979, there’s no disagreement about it, it’s legal to target civilians, in belligerent reprisals, if they’re not in occupied territory, or otherwise in the repriser’s power (the 1949 special groups).
No. That customary international law continues in force, just like the NATO5 say it does (U.S., EU4: U.K., France, Germany, Italy). They don’t agree to it, they’re not bound by it, the new restrictions. The NATO5, Egypt, Israel, other non-parties, the new reprisal restrictions of Protocol I do not apply, to their civilians.
Their civilians, and their civilian objects, remain lawful targets, for belligerent reprisals, e.g., the World Trade Center, in New York City, if that was an otherwise lawful belligerent reprisal (September 11 2001), e.g., for U.S. continuing complicity in Israel’s violent war crimes (settlements, confiscating/colonizing the 1967 oPt, and Israeli war crime violence to conduct and protect those two war crimes).
That’s what the ICRC says, their experts. The ICRC is “the guardian of international humanitarian law” (the laws of war), so due heed must be paid, to what the ICRC says, that’s what our masters tell us:
So what does the ICRC say, about belligerent reprisals, targeting civilians:
{page 144} [I]n 1970 the UN General Assembly adopted Resolution 2675 (XXV) {A/Res/2675(XXV)} which, among other things, states that ‘civilian populations, or individual members thereof, should not be the object of reprisals’.
At the Diplomatic Conference {Geneva, 1974-1977}, this extension of the prohibition of reprisals turned out to be a hard nut to crack. In contrast with the self-evident reaffirmation of the ban on reprisals in the framework of the protection of the wounded, sick and shipwrecked, the debate on reprisals in the context of the protection of the civilian population was long and difficult.
Two main currents opposed each other: those who advocated a categorical ban in this area too, and those who wished to maintain a possibility of recourse to reprisals against the civilian population.
Both sides advanced strong arguments. Representatives of the former group argued that just like reprisals against prisoners of war, measures of reprisal against the civilian population are bound to hit innocent people. Moreover, their chance of success (that is to say, the chance that a particular measure of reprisal would result in the adverse party giving up its unlawful behaviour) was deemed to be slight at best.
Members of the latter group argued, in contrast, that civilian populations cannot always be regarded as so entirely innocent of what the political and military leadership is doing; that it is unproven that reprisals against the civilian population will be ineffective in all cases, and, last but not least, that parties to the conflict simply have no other means at their disposal to bring about a change in the attitude of a non-complying adversary.
* * *
{page 145} After prolonged debate and negotiations the ‘ban’ current obtained a total victory, resulting in the adoption of prohibitions on attacks by way of reprisal against the civilian population or individual civilians (Article 51(6)), civilian objects (Article 52(1)), cultural objects and places of worship (Article 53(c)), objects indispensable for the survival of the civilian population (Article 54(4)), the natural environment (Article 55(2)), and works and installations containing dangerous forces (Article 56(4)).
These categorical prohibitions doubtless form part of the law. Equally doubtless, in practice they are typically vulnerable to considerations of ‘negative reciprocity’. It should be kept in mind, moreover, that a number of the provisions relating to the protection of the civilian population are complicated and phrased in terms which in practice may easily give rise to differences of opinion as to whether they are being respected or violated. To the extent that this may be a matter of fact-finding, mention may be made here of the possibility, created in Article 90 of the Protocol, for parties to a conflict to utilise for this purpose the International Fact-Finding Commission. Early recourse to this Commission in appropriate cases may be expected to contribute to curbing the tendency to take recourse to reprisals. (See further hereafter, chapter IV 3.5).
In 1986, in ratifying Protocol I, Italy declared that it ‘will react to serious and systematic violations by an enemy of the obligations imposed by ... Articles 51 and 52 with all means admissible under international law in order to prevent any further violation’. While this text does not specify what ‘means’ Italy regards as ‘admissible under international law’, the phrase in all likelihood was meant to reflect the traditional requirements for a lawful reprisal.
The declaration made by the United Kingdom upon ratification, in 1998, is explicit on this point. It reads, in relevant part: {quoted above}
{page 146} This is an accurate formulation of the requirements international law traditionally sets for recourse to belligerent reprisals. The declaration (which has not been the subject of complaint by other contracting states) may be understood to imply that the United Kingdom, while accepting the prohibition of ‘reprisals’ in the sense of plain retaliation, retains the right of recourse to duly considered, open, official, formal and strictly circumscribed acts of reprisal.
The effect is, of course, that potential adversaries of the United Kingdom will have the same right, again under the same strict conditions.
* * *
[S]ince the adoption of the Protocol, ... there have been numerous occasions where parties to armed conflicts have viciously retaliated against enemy civilian populations. The international community, far from condoning these practices, has more than once strongly reacted to such behaviour.
Even so, it remains doubtful, also in light of the Italian and UK declarations, whether the prohibitions of reprisals against the civilian population in Articles 51 et seq. can now be regarded as rules of customary law.
The long version (ICRC, 2005, reprisals) is in the annex, at the end of this page.
It makes no difference, what a court might decide, down the road.
5 members of NATO, including 3 permanent members of the U.N. Security Council, and Egypt, they say, belligerent reprisals, targeting civilians, are legal (except the special 1949 categories, which Hamas does not target).
And the ICRC (reluctantly) agrees with them, “the guardian of international humanitarian law,” in this case, where Israel thumbs its nose at Protocol I.
Plainly, Hamas is legally entitled to agree with the ICRC, agree with 5 leading NATO countries, agree with 3 permanent members of the U.N. Security Council, and assert the identical view.
If they all say it’s legal, then they cannot lawfully label Hamas “criminals” and “terrorists” for doing the very thing those countries, and the ICRC, say is legal, a lawful law enforcement measure, launching rockets targeting civilians in Israel.
The requirements, for belligerent reprisals, long settled in customary international law, are prima facie met. Chief among them, deliberate, intentional, continuing, violations of the laws of war by Israel, which kill and injure Palestinian civilians and destroy vast amounts of their civilian property. Many experts say, that’s what Israel is doing, and any reasonable informed person can reasonably agree.
When 5 NATO countries, 3 permanent members of the U.N. Security Council, their leaders, assert Hamas are “criminals” and “terrorists,” because they launch their rockets, those leaders thereby commit acts of complicity, in the violent war crimes of Israel.
And they presumably do it with specific intent, because they surely know, what they say, it’s contrary to the legal position of their very own countries, the countries they lead, and their NATO allies, and their fellow permanent members of the U.N. Security Council.
And also complicit acts, and also with specific intent, by their bureaucracies, each of their very many knowledgeable fellow officers, employees, advisers, who have a legal duty, the duty to inform, and confront, their leaders about it, whether their leaders want to hear it, or not.
This is criminal complicity.
Under every definition of criminal complicity.
The most restrictive, the most expansive, the most specific, the most general, in international law, in the national laws of their own particular countries.
Their false labeling of Hamas, as “criminals” and “terrorists,” this is lynchpin of their violent criminal enterprise, their principal act, their main overt act in their criminal conspiracies, the engine, which powers their material support for Israel’s continuing violent war crimes.
Each of these individuals, in each of these countries, is equally guilty with each Israeli official, as if they had picked up a gun, grabbed the keys to the Caterpillar bulldozer, and gone to work, armed robbery and felony murder, as they go about their business of looting Palestinian land, protecting the 500,000 illegal Israeli settlers, as they luxuriate in their stolen land, splash about in their stolen water, drive around on their exclusive roads built on stolen land.
But the leaders, of the U.S. and EU4, the NATO5, each of them, and their complicit bureaucrats, each of them, deserve far greater punishment (following their conviction) than any single Israeli official, because the NATO5 have enabled Israel to loot Palestine, kill Palestinians, corral them into walled ghettos, by their money, their arms, their diplomatic support.
The gangster Israeli regime, they could never have conducted their 40-year crime wave, without the criminal complicity of leaders in these complicit countries.
Honest leaders, they would now terminate all support for Israel, until Israel terminates its violent war crimes and undoes those it can, removing its 500,000 Israeli settlers, from their looted land, in the 1967 oPt.
Their publics would clamor for it, I predict, if their complicit media blew the whistle on this massive criminal enterprise, in which many of them, in the media, are themselves likewise criminally complicit, most of them Jewish, or in the power or pay of Jews, lying to support the Jewish State, including, or despite, its criminal torts, commanded, and implemented, by its violent criminal officials.
If, instead, they blew the whistle, explained what happened, would the public, could the pubic, change the course of their complicit countries. If they knew:
Who did what, where, when, why, and how.
The long version (ICRC 2005):
{page 520} The prohibition on taking reprisals against civilians during the conduct of hostilities is codified in Article 51(6) of Additional Protocol I. 66 It is also found in both the original and amended versions of Protocol II to the Convention on Certain Conventional Weapons regulating the use of landmines, booby-traps and other devices. 67
At the time of the adoption of the Additional Protocols, the prohibition of reprisals introduced in Article 51(6) of Additional Protocol I was a new rule. In the vote on Article 51 as a whole, France voted against and 16 States abstained. 68 Of the 16 abstaining States, 10 have since become party to Additional Protocol I without entering a reservation. 69 Three States which have not ratified Additional Protocol I, namely Indonesia, Malaysia and Morocco, nevertheless support the prohibition of reprisals against civilians in general. 70
{page 521} The vast majority of States have, as a result, committed themselves not to make civilians the object of reprisals. Although practice in favour of a specific ban on the use of reprisals against all civilians is widespread and representative, it is not yet uniform.
The United States, which is not a party to Additional Protocol I, has indicated on several occasions that it does not accept such a total ban, even though it voted in favour of Article 51 of Additional Protocol I and ratified Protocol II to the Convention on Certain Conventional Weapons without making a reservation to the prohibition on reprisals against civilians contained therein. 71
The United Kingdom also voted in favour of Article 51, but on becoming a party to Additional Protocol I, made a reservation to Article 51 which reproduces a list of stringent conditions for resorting to reprisals against an adversary's civilians. 72 It has also ratified Protocol II to the Convention on Certain Conventional Weapons without making a reservation to the prohibition on reprisals against civilians contained therein.
Egypt, France, Germany and Italy also made a declaration upon ratification of Additional Protocol I in relation to the articles providing protection to the civilian population, but these are ambiguous in that they indicate that these States will react to serious and repeated violations with means admissible under international law to prevent further violations. 73 In referring back to what is lawful under international law, these declarations beg the question as to whether reprisals against civilians are lawful or not.
Subsequent practice of these States helps to assess their current position on the issue of reprisals against civilians.
At the adoption of Additional Protocol I, Egypt strongly supported the prohibition of reprisals against civilians and, more recently, in its submissions before the International Court of Justice in the Nuclear Weapons case, it stated that it considered this prohibition to be customary. 74 The recent military manuals of France and Germany prohibit reprisals against civilians, citing Article 51(6) of Additional Protocol I. 75 Italy's IHL Manual, however, supports a narrow possibility of reprisals against civilians in very general terms by stating that “reprisals cannot be directed against the civilian population, except in case of absolute necessity”. 76
The other practice of note is the series of reprisals that Iran and Iraq, both not party to Additional Protocol I, directed at each other's cities. In press releases in 1983 and 1984, the ICRC stated that civilians must not be the object of reprisals and appealed to Iran and Iraq to cease the bombardment of civilians. 77 In 1984, the UN Secretary-General, in a message addressed to the Presidents of {page 522} Iran and Iraq, stated that “deliberate attacks on civilian areas cannot be condoned by the international community”. He went on to state that reprisals and counter-reprisals resulted in loss of life and suffering to the civilian population and that “it is imperative that this immediately cease”. 78 In a statement by its President in 1986, the UN Security Council deplored “the violation of international humanitarian law and other laws of armed conflict” and expressed its “deepening concern over the widening of the conflict through the escalation of attacks on purely civilian targets”. 79 In 1987, both Iran and Iraq, in letters to the UN Secretary-General, justified their attacks on the other's cities as limited retaliatory measures to stop such attacks by the adversary. 80 In 1988, in another statement by its President, the UN Security Council strongly deplored “the escalation of hostilities ... particularly the attacks against civilian targets and cities” and stated that “the members of the Security Council insist that Iran and Iraq immediately cease all such attacks and desist forthwith from all acts that lead to the escalation of the conflict”. 81 Although the two UN Security Council statements do not explicitly use the term “reprisals”, it is significant that they condemn the escalation of attacks on civilians. The second statement was made after Iran and Iraq had sent the letters justifying the basis of the reprisals taken, which would suggest that the UN Security Council did not accept both parties' arguments.
Historically, reprisal action has tended to have the effect of escalating attacks on civilians, rather than stopping them, a fact commented on in several military manuals. 82 As explained by the US Naval Handbook, for example, “there is always a risk that [reprisal] will trigger retaliatory escalation (counter-reprisals) by the enemy. The United States has historically been reluctant to resort to reprisal for just this reason.” 83
Enforcement action based on attacking civilians not taking a direct part in hostilities does not fit well either with the development of human rights law and the importance given to the right to life. In addition, since the Second World War, both human rights law and international humanitarian law have recognised that civilians not taking a direct part in hostilities cannot be held responsible for their governments' violations of international law and therefore cannot be subject to attack (see Rule 1) nor to collective punishment (see Rule 103). {page 523}
Because of existing contrary practice, albeit very limited, it is difficult to conclude that there has yet crystallised a customary rule specifically prohibiting reprisals against civilians during the conduct of hostilities. Nevertheless, it is also difficult to assert that a right to resort to such reprisals continues to exist on the strength of the practice of only a limited number of States, some of which is also ambiguous. Hence, there appears, at a minimum, to exist a trend in favour of prohibiting such reprisals. The International Criminal Tribunal for the Former Yugoslavia, in its review of the indictment in the Martić case in 1996 and in its judgement in the Kupreškić case in 2000, found that there was such a prohibition already in existence, based largely on the imperatives of humanity or public conscience. 84
These are important indications, consistent with a substantial body of practice now condemning or outlawing such reprisals.
66 Additional Protocol I, Article 51(6) (adopted by 77 votes in favour, 1 against and 16 abstentions) (ibid., § 662).
67 Protocol II to the Convention on Certain Conventional Weapons, Article 3(2) (ibid., § 670); Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(7) (ibid., § 671).
68 The abstaining States were: Afghanistan, Algeria, Cameroon, Colombia, Federal Republic of Germany, Italy, Kenya, South Korea, Madagascar, Mali, Monaco, Morocco, Senegal, Thailand, Turkey and Zaire (see CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 163).
69 Algeria, Cameroon, Colombia, Democratic Republic of the Congo, Kenya, South Korea, Madagascar, Mali, Monaco and Senegal.
70 See, e.g., the military manuals of Indonesia (cited in Vol. II, Ch. 41, § 695) and Morocco (ibid., § 619) and the statement of Malaysia (ibid., § 747).
71 See the practice of the United States (ibid., §§ 709, 711 and 757-760).
72 United Kingdom, Reservation made upon ratification of Additional Protocol I (ibid., § 669).
73 See the reservations or declarations made upon ratification of Additional Protocol I by Egypt (ibid., § 664), France (ibid., § 665), Germany (ibid., § 666) and Italy (ibid., § 667).
74 See the practice of Egypt (ibid., §§ 729-730 and 748).
75 See the military manuals of France (ibid., § 689) {382kb.pdf, source} and Germany (ibid., §§ 690-692). {See “military manuals,” below.}.
76 Italy, IHL Manual (ibid., § 696) {880kb.pdf, source}.
77 See ICRC, Press Release No. 1479 (ibid., § 778) and Press Release No. 1489 (ibid., § 779).
78 UN Secretary-General, Message dated 9 June 1984 to the Presidents of the Islamic Republic of Iran and the Republic of Iraq (ibid., § 769).
79 UN Security Council, Statement by the President (ibid., § 763). The United States held the Presidency. Other members of the Security Council were: Australia, Bulgaria, China, Congo. Denmark, France, Ghana, Madagascar, Thailand, Trinidad and Tobago, USSR, United Arab Emirates, United Kingdom and Venezuela.
80 See the practice of Iran (ibid., §§ 737-740) and Iraq (ibid., § 743).
81 UN Security Council, Statement by the President (ibid., § 764). The Presidency was held by Yugoslavia. Other members of the Security Council were: Algeria, Argentina, Brazil, China, France, Germany, Italy, Japan, Nepal, Senegal, USSR, United Kingdom, United States and Zambia.
82 See the military manuals of Australia (ibid., §§ 67-68), Sweden (ibid., § 91), United Kingdom (ibid., §§ 94-95) and United States (ibid., §§ 97-99).
83 United States, Naval Handbook (ibid., § 99).
84 ICTY, Martić case, Review of the Indictment (ibid., § 776) and Kupreškić case, Judgement {799kb.pdf, source} (ibid., § 777).
In their commentary, the authors reach the right result but, along the way, they construct a competing result, on faulty foundations, for future reference. And so, for future reference, my reply:
Jean-Marie Henckaerts, Louise Doswald-Beck (authors), they cite 2 U.N. Security Council presidential statements as indications, that the Security Council condemned belligerent reprisals, targeting civilians. This, regarding the Iran-Iraq war (1981-1988), a phase of it, when Iraq attacked Iranian cities, far from the battlefield, and Iran replied, as a belligerent reprisal, to persuade Iraq to stop doing it. Neither country was, or is, party to Protocol I.
But, as they report, the 1986 statement condemns, not belligerent reprisals, targeting civilians, but rather escalation:
And the 1988 statement is more of the same, not a commentary on law, rather a political lament, that such targeting, provokes escalation, which interfers with an end to the war.
A feigned lament, by the U.S. at any rate, “I hope they kill each other,” Henry Kissinger famously said, Jewish, a former U.S. Secretary of State and National Security Adviser.
Vernon Walters (U.S. U.N. ambassador) read the 1986 statement (December 22 1986), the U.S. was president of the council that month, and his boss, 9 days earlier, the Secretary of State, in a letter to President Ronald Reagan (December 13 1986), formally finalized the U.S. position, rejecting Protocol I, condemning (among other things) its restriction on belligerent reprisals, targeting civilians.
So the U.S. was hardly going to say the opposite, at the very same time, in the U.N. Security Council. Ditto the other NATO members of the Security Council, who were in extensive consultations, with the U.S., about the details of Protocol I and the text of reservations — France, who voted against Protocol I article 51, in 1977, and the U.K., both of whom formally backed the U.S. position, later.
On this additional evidence, no court could accept it — the indication, the inference, the authors suggest, from the text of the statements — absent persuasive evidence the U.S. was then renouncing the very position the U.S. simultaneously adopted and reported to Congress. There is no such evidence — of that dramatic, sudden, u-turn — and so the evidence preempts, disproves, any such inference. That’s my opinion.
But more than disproves it, that additional evidence supports the opposite inference. A court would feel compelled, in my opinion, to observe, if presented with this evidence, that the U.N. Security Council had an opportunity, based on a lot of written complaints from Iran, and replies from Iraq (U.N. Security Council documents), and yet decided to not express an opinion about it, the legality of belligerent reprisals, targeting civilians, when prompted to do so, indicating there was no agreement, among the council members, that such reprisals are unlawful. Indeed, no evidence that even one of the 15 members believed that.
George Schultz (Secretary of State), in his letter to Ronald Reagan (U.S. President) (December 13 1986), printed, Senate Treaty Document No. 100-2 (cited next), he rejected Protocol I, alluding to reprisal restrictions as one of the reasons (“eliminates an important sanction against violations of those Conventions”), an allusion to reprisals his State Department lawyers later made explicit (quoted above), accord, memorandum from the 4 JAGs (May 8 1986) (quoted above), asserting the Protocol does not alter existing law of belligerent reprisals targeting civilians.
The U.N.S.C. presidential statements are consistent with an opinion, that the genesis was unlawful attacks by Iraq, targeting Iranian civilians/objects, which authorized Iran to conduct belligerent reprisals, targeting civilians/objects in Iraq, that Iraq’s counter reprisals (the escalation) were not lawful, because Iran’s initial reprisal(s) were lawful, not a violation of the laws of war, rather an enforcement of those laws. Hence, Iraq’s counter reprisal(s) were unlawful (the escalation), there being no violation of the laws of war by Iran to warrant targeting Iran’s civilians and civilian objects.
For example, Bushehr, a civilian object, Iran’s nuclear electricity generating plant, non-operational, a $1-billion inactive construction site, which Iraq bombed six times, a malicious violent war crime: 24 March 1984, 12 February 1985, 5 March 1985, 12 July 1986, and twice in November 1987, when U.S. military advisers were in Baghdad, helping Iraq wage war on Iran, a likely malicious violent war crime, complicity, by those U.S. officials, including their chains of command.
And, that U.N.S.C. language is also consistent with a decision to express no legal opinion about it, but rather to urge the parties to stop it, to promote conditions for a ceasefire.
In addition, their statement refers to a package of complaints, their most evident interest was not a concern for civilians, rather for oil and merchant shipping.
The ICRC authors cite 3 German military documents, which appear to contradict Germany’s reservation (above) against Protocol I, article 51(6) (belligerent reprisals targeting civilians) (ICRC, CIHL, p.521):
Those section numbers, in the footnote, refer to volume 2 of their study, pages 3408-3409, part of “Chapter 41, Enforcement of International Humanitarian Law” (page 3288), “C. Reprisals against Protected Persons” (page 3360), “Civilians in general” (page 3405) “II. National Practice, Military Manuals” (3407).
There, the ICRC authors say this (§ 691, page 3409):
Yes. That’s what the manual says:
(The German edition defines reference 4 and reference 5, in its appendix, as GC IV and AP I).
The German manual cites 1949 Geneva-4 article 33(3) (“Reprisals against protected persons and their property are prohibited”), e.g., civilians in occupied territory, and 1977 Protocol I article 51(6) (“Attacks against the civilian population or civilians by way of reprisals are prohibited”), i.e., all civilians.
But that language, in the German manual, does not “prohibit reprisals against civilians” (the ICRC text appending footnote 75).
The passive voice, in the German manual, conceals a key fact: It’s an agreement, yes, but Germany did not agree to it (article 51(6)). Germany rejected it, reserved against it, and so the manual cites an “agreement,” but not a German agreement, it does not apply to Germany, it does not bind Germany.
May be, that’s how German government lawyers will explain themselves if, at war, its civilians under attack, German leaders want to target enemy civilians, as a reprisal, to try to put a stop to it.
This is the manual they quote (cited, ICRC CIHL, volume 2, appendix, “Military Manuals,” pages 4196-4207, at 4200, “Germany” “Germany Military Manual (1992)”):
The second document is an 8-page soldier’s pocket card (en: Taschenkarte), without section numbers, prepared by the same law department (R II 3) of the German Defense Ministry (BMVg, en: Bundesministerium der Verteidigung). The ICRC authors label it, “Germany Soldiers’ Manual (1991).”
The ICRC authors say this (§ 690, page 3408):
Yes. That’s what the pocket card says (page 4):
No mention of the agreement Germany didn’t agree to, the manual language, reprisals proscribed “expressly by agreement” (en: Ausdrücklich vertraglich).
That condition omitted, the pocket card is nearly unequivocal.
“Nearly,” because the proscribed civilian target is now the population, not individuals (pocket card: -Bevölkerung, manual: -Personen).
Protocol I names both targets (article 51):
“The Phoenix program is aimed at identifying, by name ... the people who do these different jobs.”
Wm E. Colby, Feb. 20 1970
“The basic objective ... is to identify the individuals ... Thus, any individual sentenced, rallied or killed and recorded in the Phoenix program must be “definitely identified” by name and position in order to be included in Phoenix results.”
Wm E. Colby, July 19 1971
This dispels doubt, about civilian assassinations, in the guise of reprisals, a Phoenix Program, a civilian death list, a database, naming civilians, describing them, e.g., civilian politicians, civilian government workers, civilian religious leaders, civilian journalists, civilian school teachers, civilian police, civilian farmers, civilian business executives, civilian family of fighters, civilian friends and neighbors, civilian neighborhoods, civilian districts, civilian tribes, civilian clans, civilian voters.
The Protocol in German (en: Zivilbevölkerung, Zivilpersonen):
The BMVg lawyers equivocate further, in their pocket card:
They say (page 2), the rules don’t really have to be obeyed, only if they’re no bother, “Wherever practicably possible” (en: Soweit praktisch möglich), new language, added in the 2006 edition. See, Gerd Hankel, “Die Politik der Taschenkarte: Wie das Verteidigungsministerium das humanitäre Völkerrecht relativiert” {196kb.pdf} (Mittelweg 36, volume 17, number 2/2008, April/May 2008, HIS: Hamburger Institut für Sozialforschung) (en: “The politics of the pocket card: How the Defense Ministry relativised International Humanitarian Law,” Hamburg Institute for Social Research).
And, they say (page 1), their pocket card is “elaborated in accordance with” their lengthy manual (ZDv 15/2) (linked above), the manual which does not accord with their pocket card, which does not prohibit civilian reprisals legal under the 1949 Geneva conventions, but proscribed by Protocol I article 51(6), the agreement Germany disagrees with.
May be, that’s how German government lawyers will explain themselves, if German leaders want to target enemy civilians, in reprisals. Their pocket card conflicts with their manual, and so the manual controls, what it says applies, because the pocket card itself says so, implies such, asserts that very conflict of laws rule, on its cover, that the card complies with the manual.
This is the pocket card (cited, ICRC CIHL, volume 2, appendix, “Military Manuals,” pages 4196-4207, at 4200, “Germany” “Germany Soldiers’ Manual (1991)”). The ICRC authors cite a 1991 document, but I find only 4 later ones, on the internet (1996, 2004, revised, 2006, 2008). They all make that same statement, verbatim, on page 4:
The third document is a manual, prepared by the same law department (R II 3) of the German Defense Ministry (BMVg, en: Bundesministerium der Verteidigung). The ICRC authors label it, “Germany IHL Manual (1996)” (IHL: international humanitarian law).
The ICRC authors say this (§ 692, page 3409):
I don’t find this manual on the internet (ZDv 15.1), and so I can’t comment on it. The 1992 military manual says this about it, “an abridged version” of the “German triservice manual 15/2” (ZDv 15.2, cited above, English translation, preliminary remarks, paragraphs 4 and 1).
This is that manual (cited, ICRC CIHL, volume 2, appendix, “Military Manuals,” pages 4196-4207, at 4200, “Germany” “Germany IHL Manual (1996)”):
What they propose to say, the German Defense Ministry lawyers, I don’t know, to persuade their commanders, it violates neither German law nor international law, to target and kill enemy civilians in a reprisal, ordered by German federal civilian authorities. I asked them, those BMVg R II 3 lawyers, via the ministry press office, let’s see if I get a reply.
They certainly have their lawyerly explanations.
But a commander, facing prison, that’s not what s/he wants to hear, what the soldiers s/he commands want to hear.
They want a straightforward, honest, published, statement of the legal position, quoting the Protocol I reservation, just like the U.K. manual does, and they want a manual, and a pocket card, which do not contradict that. They want to point and say, “It’s legal, that’s what you say, it’s there for all to see.”
The ICRC authors advance faulty reasoning.
They say, two reserving countries (France, Germany), are silently, quietly, abandoning, renouncing, the position they took on ratification of Protocol I, their reservation against article 51(6) (reprisals targeting civilians).
The authors cite military manuals, which facially appear to contradict that policy.
But the authors do not, and they can not, negate the various ways those manuals can be explained away, subordinated by a conflict of laws law, superceded by a higher law.
And, a military manual can be revised, abruptly altered, to conform to national policy. A manual is a military order, issued with the stroke of a pen, on orders, by a chain of command, it’s not a act of parliament, a cumbersome, lengthy, process, with an uncertain result.
The national government, when they issue an order, to their military, to conduct a reprisal, targeting enemy civilians, they can, at the same time, order their military to issue an amendment to their manuals, permitting the reprisals, quoting, for authority, the protocol reservations by the EU4, pronouncements by the ICRC and U.S., about customary international law, and such.
Poof!
With the stroke of a pen, the evidence disappears.
It looks inviting, and substantial, the manual evidence, but it’s a mirage.
It’s a useful method, searching military manuals, to discover policy and practice in a country. It’s convenient, it’s on topic, it can bolster other evidence, and there might be no other evidence.
It can produce and bolster evidence, but it cannot defeat evidence, contrary, weighty, evidence.
Here, a deliberated, formal, announced, public policy, reached by deliberations, among many people, in multiple departments, within a civilian government, formalized with documents and signatures (the ratification document, articles of ratification).
This decision, by France and Germany, yes, it can wither and die, over a prolonged period of time, with contrary practice, a century may be.
But not in a year and a half. That’s the time between Germany’s ratification of Protocol I (February 14 1991) and publication of its military manual (August 1992, ZDv 15/1).
They made a big deal about it, when they adopted that policy, breaking with other countries.
They have to make an equally big deal about it, now, if they want to reverse that decision.
And they would want to make a big deal about it.
The safety of their civilian population is at stake. The French government, the German government, they would certainly want to announce it, if they changed their mind, renounced civilian reprisals. They would want to publish it, to publicize it, not quietly tie their own hands, and leave their adversaries free to attack, French, German civilians, every time their ally kills civilians in Gaza, Afghanistan, Pakistan, Iran, with an Israeli blockade, siege, Operation Cast Lead, a CIA Predator drone, an air force bomber, a mercenary army, terrorist covert operators.
The French, and the Germans:—
They have been through the fire.
They know wars, leaders and commanders, their inclinations.
They know, they have no way, to deter war crimes.
Except the biblical way.
What the Jews said, Moses said, God said.
An eye for an eye.
Accord:
Bible, Exodus 20:22; 21:1, 23-25
Torah, Exodus 20:19; 21:1, 23-25
Bible, Leviticus 24:1, 19-20
Torah, Leviticus 24:1, 19-20
Times change, since those days, when Jews wrote their books, later generations made their additions and, when they made their copies, presumably, embellished the originals too, now and again, to suit their agendas of the day.
No longer is warfare personal, for most, when war criminals can fear justice.
And so reprisals do not make them afraid, as Moses was said to say, now distant commanders, beyond reach of justice, Predator drone pilots in Las Vegas, munching pizzas, thumbing their satellite joysticks, killing Pakistanis, half a world away.
Yet, there is no other remedy still, to deter them.
{In progress}
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CJHjrCharles Judson Harwood Jr.
Posted August 31 2006. Updated May 25 2009.
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