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Weapons of Mass Destruction (WMD)

Washington File

07 April 2003

Iraqis Who Commit War Crimes Will Be Prosecuted, Parks Says

(Coalition accords full legal protection to Iraqi combatants) (1140)
By Jacquelyn S. Porth
Washington File Security Affairs Writer
A top U.S. military legal expert says coalition forces are granting
captured Iraqi soldiers all the protections called for by the Geneva
Conventions and other relevant laws, but those Iraqis found to have
committed war crimes will face prosecution.
In an April 7 Pentagon briefing, W. Hays Parks, special assistant to
the Judge Advocate General for the U.S. Army, noted that the United
States and Iraq are both parties to the Geneva Conventions requiring
them to treat prisoners of war (POWs) according to set international
standards. All parties are obligated to follow the laws of war, he
said.
The 1949 Geneva Conventions apply to anyone serving in the military
who is wounded or becomes sick on the battlefield, those who are in
the same category but are shipwrecked, POWs, and civilians who are
held by the enemy.
Any soldier who is captured or surrenders, Parks said:
-- must be treated humanely;
-- cannot be executed or endangered while in captivity;
-- should be removed from the battlefield as swiftly as possible and
protected "from physical or mental harm";
-- must be given adequate food, shelter and medical care;
-- must be protected from "acts of violence, insults or public
curiosity";
-- need only provide -- under questioning -- name, military rank,
serial number and birth date;
-- cannot be tortured physically or mentally; 
-- should be allowed to retain his or her personal property, or, if it
is collected it must be "receipted";
-- should be given access to representatives of the International
Committee of the Red Cross (ICRC) as soon as practical;
-- should be protected from assault, including sexual assault; and
-- if a soldier dies in captivity (or dies in battle), the body must
be protected from pillage and maltreatment, interred, and his or her
identification provided to the ICRC.
Coalition forces are adhering to these conventions, just as they did
during the 1991 Persian Gulf conflict when, Parks said, some 86,000
Iraqi POWs were processed. In contrast, he said those same protections
are not being respected by Iraq in the current military operation, nor
were they respected during the 1980-1988 Iran-Iraq war. While wounded
Iraqi soldiers are receiving medical care and Red Cross visits, the
Army official said, the Red Cross has yet to gain access to U.S. POWs.
The U.S. government will do all in its power, Parks said, "to bring to
justice anyone who by action or inaction, is responsible for
violations of the laws of war." He provided several concrete examples
of Iraqi violations that have occurred at the direction of the Iraqi
regime in recent weeks, including Iraq's state-run television
broadcast (and re-broadcast by al-Jazeera) of "pillage and
ill-treatment" of the bodies of dead U.S. soldiers; another broadcast
by Iraqi TV (and rebroadcast by al-Jazeera) of U.S. soldiers being
forced to answer questions under duress in a humiliating and degrading
manner and subject to "public curiosity"; and Iraqi soldiers either
dressed as civilians or waving the white flag of surrender to draw
coalition forces near enough to ambush them in what are legally called
"acts of perfidy."
Pierre-Richard Prosper, the U.S. ambassador-at-large for war crimes
issues, who also participated in the briefing, noted that there has
been a "systematic pattern" of abuses by Iraqi forces and "a complete
disregard for the law by the regime as well as ... for human life." He
accused the Iraqi regime of blurring the distinction between
combatants and non-combatants, putting thousands of Iraqi civilians
"in harm's way."
Providing concrete examples, the ambassador said Iraqi forces have
placed human shields in deliberate danger and fired mortars and
machine-guns against civilians fleeing combat areas. Prosper also said
civilians have been forced into military services under grave threat
and the regime has hidden weapons in mosques and other civilian
sanctuaries.
Prosper said accountability for war crimes and atrocities would be
pursued through an Iraqi-led process. "We must re-instate the rule of
law within Iraq," he said. Abuses that occurred prior to the coalition
military operation will be addressed through a mechanism that is being
formulated through Iraqi jurists and members of the Iraqi exile
community, Prosper said, and the United States stands ready to provide
any technical, financial or logistical support that may be required.
Parks said the government of Kuwait might also have an interest in
pursuing Iraqis who committed atrocities during the Iraqi invasion of
Kuwait in 1991.
In response to a question from a reporter, Prosper said prosecution of
current Iraqi abuses does not require the establishment of an
international tribunal. Instead, he said, the United States has the
sovereign right to process violations through military proceedings or
civilian courts. The International Criminal Court would not have
jurisdiction in any of these cases, according to the ambassador,
because neither Iraq nor the United States is party to the founding
treaty.
For now, Parks said the coalition is focusing on winning militarily in
Iraq. The focus also is on protecting Iraqi POWs and providing medical
care for them. In the next week or so, however, he said there would be
more attention given to initiating the judicial process that will
determine the status of the Iraqis being held. The status of detained
non-Iraqi soldiers, who fought along side Iraqi soldiers, will be
evaluated on a case-by-case basis, according to Parks, depending on
what type of uniform they were wearing at the time of capture and what
they are accused of doing.
Prosper said the penalties for those found guilty of crimes will range
from prison sentences to the death penalty. Parks said there are no
plans to send any Iraqi POWs to U.S. detention facilities in
Guantanamo Bay, Cuba, where alleged members of al-Qaeda and the Afghan
Taliban are being held.
Parks was questioned about the coalition practice of putting hoods
over the heads of prisoners. He said it is standard operating
procedure to either blindfold or place a hood over a prisoner when
captured for two reasons: to prevent escape and to prevent the
prisoner from gathering military intelligence should he escape
successfully. The prisoner is still able to breathe through the hood,
the official said, and it is not a form of prisoner abuse.
Asked about plans to prosecute top Iraqi regime leaders, such as
Saddam Hussein's son Uday, Prosper said he is among the top tier
leaders of most interest. A time line of abuses has been prepared, he
said, and Uday's role in conducting or promoting abusive practices has
been documented throughout the term of the Iraqi regime. His abuses,
and those of others such as his father and brother, have been
catalogued, the ambassador said, and evidence is being preserved.
(The Washington File is a product of the Office of International
Information Programs, U.S. Department of State. Web site:
http://usinfo.state.gov)



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