A bu Musab Al Zarqawi is dead. The Jordanian-born Zarqawi was in a meeting with associates at a “safe house” just north of Baghdad last Wednesday (June 7) when he was killed in a joint operation with Iraq carried out by U.S. air forces. Zarqawi has been called the head of “the Sunni insurgency” and the leader of “al-Qaeda in Iraq.” On June 8, the Washington Post characterized him as “the mastermind behind hundreds of bombings, kidnappings and beheadings in Iraq.”
However, in April the Washington Post revealed that military documents showed Zarqawi was not as important as was widely believed. The documents showed that the U.S. intentionally magnified Zarqawi’s importance both in Iraq and in the U.S. in order to direct violence against Zarqawi from other Iraqis.
Additionally, Greg Palast has made a compelling case that Zarqawi’s insurgency was the result of the U.S. policy to sell off Iraqi assets to big business rather than allowing elections to go forward.
More complicating factors in Zarqawi’s death: there have been recent unconfirmed reports of a possible rift between Zarqawi and al Qaeda that may have resulted in his demotion or in him being “cut loose,” and only minutes after his death was announced, the long-unfilled seats of Iraqi interior minister, defense minister, and national security adviser were quickly filled “in a giddy session of parliament.”
The coincidence between these events and Zarqawi’s death seems too great to be ignored.
The Creation of Zarqawi
The “Zarqawi PSYOP Program,” as it was called in one internal military briefing, was apparently seen as “the most successful information campaign to date.” Another briefing defined the purpose of the program as being to “Villainize Zarqawi/leverage xenophobia response.” The program used three methods: media operations, special (covert) operations, and PSYOP.
PSYOP is the military term for military actions designed to influence the perceptions and attitudes of individuals, groups, and foreign governments. PSYOP is short for “psychological operations.”
One document reveals that Col. Derek Harvey, who was a military intelligence officer in Iraq and on the Joint Chiefs of Staff, considered that “The long-term threat is not Zarqawi or religious extremists, but these former regime types and their friends.”
Another briefing, possibly quoting Brig. Gen. Mark Kimmitt, the military’s chief spokesman in 2004, said: “Through aggressive Strategic Communications, Abu Musab al-Zarqawi now represents: Terrorism in Iraq/Foreign Fighters in Iraq/Suffering of Iraqi People (Infrastructure Attacks)/Denial of Iraqi Aspirations.”
Was Zarqawi made into a terrorist by “aggressive strategic communications” of the U.S. military? Perhaps the Pentagon is taking more credit than is due it, but if Palast is correct, the actions and policies of Paul Bremer in Iraq contributed to Zarqawi’s rise.
Bremer’s policies, according to Palast, caused the insurgency. Bremer “instituted democracy Bush style: he canceled elections and appointed the entire government himself.” Two months later, Bremer “ordered a halt to all municipal elections including the crucial vote to Shia seeking to select a mayor in the city of Najaf.” Then Bremer issued “”Order Number One: De-Ba’athification.” Palast says that “In effect, this became ‘De-Sunni-fication.'”
According to Palast, “The Plan” “101-page document to guide the long-term future of the land we’d just conquered” was to sell off Iraqi assets and create a corporate-owned Iraq. Bremer began to bust Iraqi collaborators those who had secretly collaborated with the U.S. invasion. According to one collaborator, this action was “a gift” to foreign insurgents who, in Palast’s words, “now gained experienced military commanders, Sunnis, who now had no choice but to fight the US-installed regime or face arrest, ruin or death.” These insurgents soon linked up with Zarqawi, “who was committed to destroying ‘Shia snakes.'”
If it is true that Zarqawi was not as significant a threat as portrayed, that “aggressive strategic communications” made him seem more than he really was, or, in any case, that Bremer’s policies “created” Zarqawi, can he still be a legitimate target?
An alleged propaganda video of the “terror mastermind” obtained by the Pentagon shows him as an incompetent leader, confused about how to operate an automatic weapon. Michel Chossudovsky notes that Zarqawi’s supposed incompetence “seems at odds with previous media reports” and with Colin Powell’s historic presentation to the UN Security Council on February 5, 2003 in which “Zarqawi is upheld as a casus belli” cause of war.
“Meanwhile,” says Chossudovsky, “the US has set up an elaborate military command structure . . . to protect the homeland against Zarqawi . . . ”
Was Zarqawi a Pentagon or Bremer creation? Was he simply incompetent? Or was he an enemy combatant? Or was he all of the above . . . or something else altogether (a terrorist criminal)? If he was a Pentagon/Bremer creation, was his killing an assassination rather than a lawful targeted wartime killing? If he was a criminal (terrorist), shouldn’t he have been captured (arrested) and charges have been brought against him?
The April Post story suggests that even if Zarqawi was a legitimate military target during wartime, the Pentagon may have decided to take him down when it was no longer a political advantage to use him.
Under the international laws of war, the legitimacy or illegitimacy of an armed conflict has no effect on whether the conduct of the military during that conflict is proper or not. Thus, even if the “Iraq War” is not considered legitimate under international law such as, say, because it was a war of aggression rather than defense Zarqawi may still be a lawful military target during that conflict.
Further, even if Zarqawi was a Pentagon or Bremer creation, unless all the public information we have about him is incorrect, he may still be considered a legitimate military target. Assuming that the Zarqawi videos and his bombings and beheadings were real, he would be a legitimate target as long — as there is still an international armed conflict.
Was Zarqawi killed during an international armed conflict? Despite all the U.S. rhetoric about the ongoing “war on terror,” probably not. He was killed either during an occupation or during internal civil war. (We discuss occupation in more detail below.) In either case, the killing of Zarqawi would have been unjustified (although it is not clear whether there would be a remedy for it). Instead, Zarqawi should have been captured and brought to trial.
Proportionality & Necessity
The killing of Zarqawi raises numerous other questions under international law. Let us assume for a moment that the U.S. is right, that Zarqawi was legitimately killed in the war on terror in other words, that the killing took place during an international armed conflict. Was the bombing proper? Under international law, an attack must be proportional and “justified by military necessity and must not be carried out unlawfully or wantonly.”
Was the manner in which Zarqawi killed “proportional” to the military end desired? The neighborhood in which the attack took place is a civilian neighborhood with no military targets and the house could readily have been surrounded and taken by troops. Yet the U.S. apparently made no attempt to capture Zarqawi and rather than using troops, the U.S. bombed the house, killing not only Zarqawi and his associates but also a woman and a child inside, as well as damaging other houses and injuring more than a dozen others outside the safe house.
Dr. Curtis F.J. Doebbler, an International Human Rights Lawyer who practices in the Middle East, says that “the assassination of al-Zarqawi was a disproportionate use of force use to achieve a military advantage that could easily have been achieved with less loss of innocent civilian life.”
Others disagree, saying a raid was as likely to have the same level of damage as a bombing. Ewen Allison, a Washington, D.C. attorney specializing in international humanitarian law, writes: “Between a) bombing Zarqawi’s safe house and b) on-the-ground attack or siege, I think the probabilities of a better outcome for civilians are in equipoise . . . . Offhand, I’d say that 16 casualties is in the range of what we’d expect from a firefight, particularly one with a leader who has a significant number of well-armed followers.”
Charles Gittings, an independent researcher who founded the Project to Enforce the Geneva Conventions (PEGC),says:
<blockindent> Personally, I think resorting to an air strike in that situation was inexcusable. They claim they didn’t have any troops available, but I think that’s got to be [untrue] because I think it’s inconceivable they couldn’t have deployed an adequate force of airmobile troops on short notice. This is what, 30 miles from Baghdad? The house was 3000 yards from the nearest neighbor and could easily have been cordoned off, and this is technically a law enforcement situation, in my opinion. The Iraqi police were on the scene fairly quick, and we had somebody there shortly after — soon enough that Zarqawi was still alive.</blockindent>
Considering the violence attributed to Zarqawi, his capture or killing would seem necessary to the public safety, but the method may not have been and the bombing in fact may have been disproportionate to the military end and the killing may have been unjustified, as we discuss below.
Can an Occupying Power (OP) engage in military actions against the inhabitants of the occupied country? The United States was both the invading and the occupying power in Iraq. Would it still be considered the OP?
The Fourth Geneva Convention Relative to the Protection of Civilians in Time of War (GC IV) requires that an OP protect the population. Protected persons include any person who finds himself in the hands of the OP. “Such duty is essentially similar to that of a police force. A police force cannot simply go and extra-judicially kill people. It must make bona fide attempts to detain people suspected of endangering public order,” says Elias Davidson of Iceland, an independent researcher who has published in international law journals on these issues. It is a grave breach of GC IV to willfully kill a protected person and persons suspected of crimes must be prosecuted under the laws of the occupied territory.
But there are questions whether the conflict has ended and whether the U.S. has relinquished its responsibilities as an occupying power. Allison notes that the answer depends on several factors, among them, “whether the Iraqi government really is independent and in power.” But also, “there’s a rule that occupation continues as long as there’s an active enemy armed force in the field,” says Allison.
Article 42 of the Hague Regulations of 1907,which is still considered customary international law, states that “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
“Perhaps the central question,” says Allison, “is whether some kernel of Iraqi resistance remained cohesive enough to survive from the start of the invasion to this day and still count as an armed force in the field.”
Davidson feels that “the situation in Iraq (like in Palestine) is that of belligerent occupation and the full responsibility for the situation in Iraq is borne by the US, as the Occupying Power, flanked by the UK.”
Where’s the Battlefield?
Whether or not the invasion of Iraq is considered legitimate or the ongoing conflict is viewed as an international armed conflict (and assuming Zarqawi a legitimate military target), there is still the question: where is the field of battle? A legitimate military target may not be killed away from the battlefield. Clearly, in Iraq, everywhere is the battlefield, but can this be correct under the laws of war?
Gittings says “What I’d question the most is the idea that the entire country is a battlefield. A battlefield is the site of a battle, which is an engagement between hostile forces within a *theater* of operations.”
Yet, in World War II, all of Europe was the battlefield.
Zarqawi Beaten by American Soldiers?
Newsday reported on Saturday, June 10, three days after the killing and press statements by the U.S., that an Iraqi man claimed that Zarqawi survived the bombing, but American soldiers “beat him on his stomach and wrapped his head with his dishdasha,” a traditional Arab robe and “stomped on his stomach and his chest until he died.”
This raises questions of either criminal violations of domestic Iraqi law (or of occupation laws) or of grave breaches of the Geneva Conventions for the Treatment of Prisoners of War (GPW III) or of GC IV, which applies to treatment of civilians during wartime. In any of these scenarios, the alleged beatings would be prosecutable as crimes.
In any event, the killing of Zarqawi is far from being as simple as the media is portraying it. While everything we think we know about Zarqawi shows that he was a violent terrorist, it is not so clear that a military solution was the internationally legal one, or that the killing was justifiable under either international or domestic laws.
JENNIFER VAN BERGEN, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004). She writes frequently on civil liberties, human rights, and international law. Her book, ARCHETYPES FOR WRITERS, about the characterization method she developed and taught at the New School University, will be out in 2006. She can be reached at email@example.com.