Francis Boyle on War Crimes

ZAIN VERJEE, CNN ANCHOR (voice-over): A lawsuit filed in a Belgian court accuses the commander of U.S. forces in Iraq of war crimes. The lawyer behind it says he represents Iraqis who were victims of U.S. cluster bombs and U.S. troops who fired on ambulances.

UNIDENTIFIED MALE: There was a pattern of targeting civilians deliberately.

VERJEE: Critics call the legal action a publicity stunt. Belgian authorities have condemned it and the U.S. military says it could effect future meetings of NATO.

UNIDENTIFIED MALE: Obviously, it’s looked upon by the U.S. government as a very, very serious situation. It’s just going to have to be dealt with at that level. I have no further comment on it, but it is serious and it clearly could have a huge impact on where we gather.

VERJEE: On this edition of Q&A, a publicity stunt or serious legal action?


Hello and welcome to Q&A.

Legal action against the commander of U.S. forces in Iraq. It’s the latest in a string of lawsuits to come out of Belgium that accuse prominent leaders of crimes. Should this one be taken seriously?

On the line with us, from Brussels, is the lawyer behind the suit, Jan Fermon.

Mr. Fermon, is this a case that we should take seriously, or is this just a publicity stunt?

JAN FERMON, BELGIAN LAWYER: Well, I don’t know for whom it would be publicity. Of course, it’s not a publicity stunt.

Everyone — each and every one of my clients has been very seriously injured or lost a member of his family by what has to be considered as unlawful military action.

I think any country, and government who is confronted with this kind of allegation should take it serious and at least should allow an independent inquiry to this kind of problem.

VERJEE: What are the legal grounds for a case like this?

FERMON: The first legal grounds are the Geneva Conventions, which very clearly indicate that belligerents in an armed conflict, an international armed conflict, should do whatever is necessary and whatever is possible to distinguish combatants and civilians. And in everyone of the incidents we are citing in the complaint, it’s very clear that U.S. troops did not act in such a way in these incidents.

VERJEE: What are those specific incidents that you’re citing?

FERMON: Well, we have three cases, three incidents related to U.S. troops firing at ambulances in Baghdad. We have several cases of U.S. troops firing at civilians, clearly identifiable as such, and at moments and places where there was no military threat to the U.S. troops.

There is, of course, the action taken by the U.S. Army against the building of the Al Jazeera television network in Baghdad, where one journalist was killed. There is also the use of cluster bombs and cluster ammunition in areas where inevitably civilians had to be injured and hit by these cluster bombs that were — amongst the other incidents, three children were very seriously injured because they picked up unexploded sub-munition (ph) of these cluster bombs.

VERJEE: There’s been strong opposition to you doing this, from the United States, also from Belgian authorities. The Foreign Minister Louis Michel said this was an abuse of law.

FERMON: Yes, well, that’s very interesting, because he made that comment at the moment that he was unable to read the complain, because he made that comment a few moments after the complaint was filed to the national prosecutor, and the text of the complaint was not made public. So that’s a very strange way for a responsible politician to act, I think, to give comment on a file and a document which you even don’t know.

So I don’t take that comment of the minister very serious. I see that in the afternoon yesterday, maybe when he was able to read the document, his position was slightly different, and he said, well, we will have the –we will have the prosecutor — we will let him do his work.

VERJEE: Jan Fermon, thank you for talking to us — appreciate that.

Joining us now is Stewart Baker, a lawyer and a former general counsel of the U.S. National Security Agency.

Mr. Baker, what do you think about this? Is something like this credible? Does it have serious grounds for success?

STEWART BAKER, LAWYER: Well, I think it reminds me of the debate over whether the United States was acting unilaterally or in a paranoid fashion when it opposed the International Criminal Court.

What the president said at the time was, there will be politically motivated charges of war crimes brought against the U.S. military. This kind of filing is exactly the sort of politically motivated charge of war crimes that we would expect to see in the criminal tribunal or in the courts of other countries that opposed the war in Iraq.

It’s shocking that this claim would be brought in some foreign court that has no relationship whatsoever to either the war in Iraq or the American military.

VERJEE: Do you think that the Belgian courts will take this case?

BAKER: Prior to the amendments that came earlier this year, I think there was a very good chance. Now there’s a reasonable prospect that the case will be rejected.

VERJEE: If they take the case, what should Tommy Franks do, hire a lawyer? Defend himself?

BAKER: I think the United States should make sure it has offered whatever appropriate defense should be offered. At this stage, the case can’t go forward until the prosecutor has reviewed it and only if the prosecutor is prepared to move the case forward will it go anywhere.

This is a publicity stunt by somebody who’s running for office in an election that’s going to occur on Sunday. He’s running with an Arab extremist who has been associated with days of rioting in Antwerp. It’s obvious that he’s got a political agenda and that he’s hoping to file this case before and it can be rejected, in the hopes that it will help him in the election.

VERJEE: What if he’s able to come out with the evidence that proves what he says?

BAKER: If he thinks there is a basis for a war crimes investigation, he should supply it to the military authorities of the United States, to prosecutors in the United States. The United States has laws against war crimes and a reasonably good record of prosecuting members of the American military who commit them.

I think it’s highly unlikely that war crimes were committed in the course of this war. There’s never been a war that’s been fought with more concern for civilian casualties than this one, at least on the U.S. side.

VERJEE: How do you think he’s likely to build the case?

BAKER: I, frankly, I think he’s done what he hoped to do by filing it, and I don’t expect him to pursue it very far now that he’s filed it and gotten the publicity.

VERJEE: There’s a theory that’s called a theory of command responsibility, meaning that any political or military leader can be legally culpable for anything that they fail to do, if they fail to do everything possible to prevent isolated acts committed by soldiers during a war. Do you think that there is no command responsibility at all by General Tommy Franks?

BAKER: Well, he’s the commander. He has command responsibility for his troops. You would have to find a war crime by the troops before you could begin to ask the question whether Tommy Franks could have done anything about it, but I think it’s highly unlikely you’re going to find war crimes here.

VERJEE: Francis Boyle joins our conversation now. He’s with the University of Illinois. He’s an international law professor.

Francis Boyle, what do you make of this case?

FRANCIS BOYLE, LAWYER: Well, first I want to make it clear, I did attempt to get a copy of the complaint and I have not been able to and I have not reviewed it.

But if in fact it is substantiated by credible evidence, it seems to me the Pentagon has an obligation under the laws of war to take it seriously and look into it.

Of the charges we have heard, certainly the use of cluster bombs in Baghdad has already been condemned by Human Rights Watch and the use of cluster bombs in a civilian area, in a city, certainly could raise to the level of war crimes. I’m not saying General Franks ordered the use of cluster bombs, but their fact is undeniable.

I think the Pentagon needs to determine who gave the order to use cluster bombs in Baghdad.

VERJEE: Stewart Baker is saying that this shouldn’t be taken so seriously, that it’s really a self-interested motive by one lawyer, who’s standing for an election, that ha something to gain out of it. What do you think about that?

BOYLE: Well, again, Human Rights Watch has condemned the use of cluster bombs in Baghdad while they were used. So, certainly, I do not know Mr. Fermon one way or the other or what motivates him.

I do know he has live clients right now, and having been in that situation myself, where you have live clients who have suffered, obviously it’s a much more urgent situation than Mr. Baker or I might feel under the circumstances.

But, again, Human Rights Watch has condemned the use of cluster bombs in Baghdad. I think the Pentagon needs to determine who gave the order to use the cluster bombs.

The second point is the question of command responsibility. U.S. Army Field Manual 27-10, on the laws of armed conflict, says that General Franks, quote, “shall take all measures in his power to restore and insure as far as possible public order and safety,” unquote, in Iraq.

For some reason, General Franks failed to give an order to secure Baghdad after it fell. I really do not know why he failed to do this.

Clearly, the obligation in the Field Manual and the Hague regulations are obvious and well-known to any commanding officer in the United States Army, that they have an obligation as the belligerent occupant, to preserve law and order. That order was not given. There was widespread looting and plundering in Iraq. People did suffer.

Again, I think we do need an investigation as to why that order was not given.


BOYLE: I’m sorry, go ahead.

VERJEE: I just want to get Stewart Baker to respond to some of what you were saying there — Stewart.

BAKER: I guess I’d have to say that I think it’s preposterous.

Professor Boyle is suggesting that there’s an obligation under the laws of war to fight a perfect war and never to have a mistake or always to anticipate anything that could go wrong and to take action to prevent it.

That’s really an argument that there should never be a war, that the United States is always going to be guilty of war crimes if it gets into a war, and that notion that you can have a perfect war is preposterous. The laws of war do not require that you prevent every possible harm that could occur in the course of armed conflict.

VERJEE: Francis Boyle, will this case succeed?

BOYLE: Well, that is not the point I made. It is a standard boilerplate language in every United States war plan, including the war plan for Iraq, that U.S. armed forces are governed at all times by the Hague regulations of 1907 and the four Geneva Conventions of 1949. Even U.S. Army Field Manual 27-10 says this quite clearly. No one expects a war to be perfect, but the laws of war must be adhered to.

VERJEE: OK. Francis Boyle, Stewart Baker, many thanks.

BAKER: Thanks.

VERJEE: That’s Q&A for now. We’ll be back with more news in just a moment.

Francis A. Boyle, Professor of Law, University of Illinois, is author of Foundations of World Order, Duke University Press, The Criminality of Nuclear Deterrence, and Palestine, Palestinians and International Law, by Clarity Press. He can be reached at: FBOYLE@LAW.UIUC.EDU