[JURIST] The British Overseas Agencies Group - representing Save the Children UK, Oxfam, Christian Aid and other UK-based humanitarian agencies - released a statement Thursday calling for immediate action, in accordance with international humanitarian law, to avert critical food shortages in Iraq:

The Geneva Conventions stipulate that the UK government and other warring parties must ensure the provision of food and other essential items such as medicines, water, and shelter to all those who need them, both during and after a conflict, including those whose supplies are cut off as a result of military action. 14 - 16 million Iraqis - two thirds of the entire population - currently depend on food rations provided through the UN's Oil for Food (OFF) programme and distributed by 45,000 food agents. It is essential that these supply and distribution systems continue to function during the conflict. The longer and more widespread the war, the less likely it is that this will happen, causing hunger to those who depend on this programme. The World Food Programme estimates that between 5 and 10 million people would become immediately vulnerable if OFF supplies are cut off. Therefore, as a matter of urgency, a new UN Security Council resolution is needed to establish alternative food distribution systems in the event of a breakdown of OFF distribution systems.

[W]arring parties, including the UK government...have a legal obligation to take all necessary precautions to avoid civilian loss of life, under the Geneva Conventions. In accordance with International Humanitarian Law, civilians and installations essential to the survival of civilians, such as water and sanitation infrastructure, must not be targeted. Disproportionate harm to civilians through damage to dual-use infrastructure, such as roads and electricity supply, must also be avoided. Iraq's largely urban population relies on water pumping and treatment stations for its water and sanitation requirements. These stations in turn rely on electricity to function and could cease to operate without electricity. Attacks that do not distinguish between combatants and non-combatants are prohibited in international law. By their very nature, cluster bombs, fuel air bombs, landmines, chemical, biological, radiological and nuclear weapons can only be indiscriminate, in our opinion. There is a high potential for civilians to be trapped in cities throughout Iraq during this conflict. Even if Iraq deploys human shields close to military targets, forces attacking Iraq still have a responsibility to avoid disproportionate civilian casualties.

[JURIST] President Bush Thursday issued an Executive Order freezing non-diplomatic Iraqi government assets in the United States:

I, George W. Bush, President of the United States of America, hereby determine that the United States and Iraq are engaged in armed hostilities, that it is in the interest of the United States to confiscate certain property of the Government of Iraq and its agencies, instrumentalities, or controlled entities, and that all right, title, and interest in any property so confiscated should vest in the Department of the Treasury. I intend that such vested property should be used to assist the Iraqi people and to assist in the reconstruction of Iraq, and determine that such use would be in the interest of and for the benefit of the United States.

[JURIST] A split panel of the US Ninth Circuit Court of Appeals [official website] ruled Thursday that the section of the federal statute that prohibits the possession of child pornography made with materials that have traveled in interstate commerce, 18 U.S.C. s.2252(a)(4)(B), is an unconstitutional exercise of Congress’s power under the Commerce Clause insofar as the statute is applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material. Read US v. McCoy [PDF opinion].

[JURIST] The House of Representatives [official website] Thursday passed a resolution condemning two US Ninth Circuit Court of Appeals rulings - the latest noted in JURIST's Paper Chase on February 28 - directly or indirectly impugning the constitutionality of the Pledge of Allegiance with the words "under God" included. The House declared:

the phrase 'one Nation, under God' should remain in the Pledge of Allegiance to the Flag and the practice of voluntarily reciting the pledge in public school classrooms should not only continue but should be encouraged by the policies of Congress, the various States, municipalities, and public school officials.... [T]he Ninth Circuit Court of Appeals...has created a split among the circuit courts, and [its ruling] is inconsistent with the Supreme Court's interpretation of the first amendment, which indicates that the voluntary recitation of the pledge and similar patriotic expressions is consistent with the first amendment.... [T]he Attorney General should appeal the ruling in Newdow v. United States Congress, and the Supreme Court should review this ruling in order to correct this constitutionally infirm and historically incorrect holding.

[JURIST] In an interview Thursday with the Canadian Broadcasting Corporation, Duke law professor Scott Silliman discussed the legality of personally targeting Iraqi President Saddam Hussein , as American forces did at the opening of the war in Iraq.

[JURIST] In a statement Thursday, FBI Director Robert Mueller outlined measures the agency was taking as part of Operation Liberty Shield to protect Americans from terrorism during the war with Iraq:

Over the past 18 months, the FBI has restructured from top-to-bottom to strengthen its ability to predict and prevent acts of terror. For the past year, it has been developing specific strategies to protect Americans in the event of a war with Iraq. Immediately upon declaration of war, the FBI launched its comprehensive plans. Steps include:

• Activating the Strategic Information and Operations Center, or "SIOC," at FBI Headquarters to serve as the 24/7 national command post;
• Setting up special command posts in each of the FBI's 56 field offices to work closely with Joint Terrorism Task Forces to gather intelligence and respond quickly to potential threats and reports of suspicious activity;
• Sending Special Agents to interview a number of Iraqi-born individuals and others in the U.S. to assure them of the FBI's responsibility to protect them from hate crimes and to elicit information on any potential operations of Iraqi agents or sympathizers; and,
• Actively investigating others who have links to terrorism.

[JURIST] With the launch of the ground campaign in Iraq, the US Army has deployed a new website for what is being dubbed Operation Iraqi Freedom.

[JURIST] In a press briefing Thursday Secretary of Defense Donald Rumsfeld warned Iraqi personnel that they would be prosecuted for war crimes if they committed various destructive acts:

If Saddam Hussein or his generals issue orders to use weapons of mass destruction, whether on coalition forces, Free Iraqi Forces, neighboring countries or innocent Iraqi civilians as they have done before, those orders should not be followed. Do not follow orders to destroy dams or flood villages. Do not follow orders to destroy your country's oil, which is the Iraqi people's, and they will need it to rebuild their country when that regime is gone. Following such orders would be to commit crimes against the Iraqi people. See those orders for what they are -- the last desperate gasp of a dying regime. Those who follow orders to commit such crimes will be found and they will be punished. War crimes will be prosecuted, and it will be no excuse to say, "I was just following orders." Any official involved in such crimes will forfeit hope of amnesty or leniency with respect to past actions.

[JURIST] US-led forces launched a sustained ground assault in southern Iraq soon after 1700 GMT. Watch live video on BBC News.

[JURIST] In advance of a planned TV address Thursday to the British people [BBC report] by Prime Minister Tony Blair, the British government has published its military campaign objectives for Iraq, which begin with the following legal analysis:

In UNSCR 1441, the Security Council decided that Iraq was in material breach of its obligations under UNSCR 687 and other relevant resolutions. The Council gave Iraq a final opportunity to comply by co-operating with the enhanced inspection regime established by UNSCR 1441, but warned of the serious consequences of failing to do so. The evidence shows that Iraq has failed to comply with the terms of UNSCR 1441 and is now in further material breach of its obligations. In these circumstances, UNSCR 678 authorises the use of force to enforce Iraq's compliance with its disarmament obligations.

The obstacle to Iraq's compliance with its disarmament obligations under relevant UNSCRs is the current Iraqi regime, supported by the security forces under its control. The British Government has therefore concluded that military action is necessary to enforce Iraqi compliance and that it is therefore necessary that the current Iraqi regime be removed from power. All military action must be limited to what is necessary to achieve that end. The UK is contributing maritime, land and air forces as part of a US-led coalition.

The UK's overall objective for the military campaign is to create the conditions in which Iraq disarms in accordance with its obligations under UNSCRs and remains so disarmed in the long term.

[JURIST] Russian Federation President Vladimir Putin issued a statement Thursday on the start of the war in Iraq:

Let me stress from the beginning that military actions are taking place contrary to the world public opinion, contrary to the principles and norms of international law and the Charter of the UN.

Nothing can justify this military action -- neither accusations of Iraq of supporting international terrorism (we have never had and do not have information of this kind) nor the desire to change the political regime in that country which is in direct contradiction to international law and should be determined only by the citizens of this or that state.

If we allow international law to be replaced by "the law of the fist" whereby the strong is always right and has the right to do anything and in choosing methods to achieve his goals is not constrained by anything, then one of the basic principles of international law will be put into question, and that is the principle of immutable sovereignty of a state. And then no one, not a single country in the world will feel secure. And the vast area of instability that has arisen will grow and cause negative consequences in other regions of the world.

[JURIST] After winning an Iraq war, the US might gain the trust of Iraqis and the world at large by obeying the international law of occupation. So says Suzanne Nossel, a former senior adviser to Richard C. Holbrooke, U.S. Ambassador to the United Nations, writing in the next issue of Legal Affairs, the new magazine associated with Yale Law School:

The challenge of rebuilding Iraq after Saddam may offer the United States the chance to recover from the crisis of legitimacy it suffered en route to Baghdad. When a prospective U.S. role in postwar Iraq was first discussed last year, critics pounced from both sides. They ridiculed leaked U.S. plans to install a proconsul in the Douglas MacArthur mold, strutting around with a cob pipe and dictating orders to a humiliated people. The notion of charging such an emissary with securing Iraq as a beachhead for democracy in the Middle East was dismissed as naïve. Yet critics also warned the United States against turning its back on Iraq and leaving the country to succumb to its ethnic divisions.

To shield itself from this dilemma, the Bush Administration should look to an unlikely source of support: international law, specifically the law of occupation. Despite the Administration's pattern of resisting international legal obligations as unbefitting a superpower, a commitment to uphold international law in Iraq will allow the United States to secure its own interests and restore its much-needed legitimacy in the eyes of the world. It will allow America to strike the right balance between overreaching paternalism and hands-off neglect. While the United States would do far better to style itself Iraq's temporary "trustee" or "protector" rather than its "occupier," a public commitment to the law would help to win the confidence of the Iraqis and the international community.

[JURIST] Addressing a press conference in Geneva Thursday morning, International Committee of the Red Cross [official website] President Jakob Kellenberger appealed to the belligerents in Iraq to respect international humanitarian law and to protect the civilian population. Listen to his speech , now online from the ICRC.

[JURIST] Has conservative US Supreme Court Antonin Scalia declared affirmative action constitutional [Balkinization post]? Yale Law's Jack Balkin [Balkinization blog] thinks so.... Also on Scalia, Eugene Volokh of UCLA Law School says that the Justice's request to exclude broadcast media from a Wednesday appearance in Cleveland at which he was to receive a free speech award was "quite proper"... Rick Hasen [Election Law blog] of Loyola Law School Los Angeles considers two ways for Republicans to "go nuclear" on the filibustered judicial nomination of Miguel Estrada [Election Law post].... Also from Loyola, Lawrence Solum [Legal Theory blog] rounds-up Thursday's scheduled faculty workshops [Legal Theory post] at law schools across the country.... Stanford Law's Larry Lessig [Lessig Blog] notes that MIT Press is standing up for fair use rights [Lessig Blog post] in the face of music owners prohibiting - or insisting on huge payments for - the reprinting of single lines from a couple of rock-and-roll songs.

[JURIST] UN Secretary General Kofi Annan made a statement Thursday on the war in Iraq. Watch recorded video from the UN. The Secretary General said:

Perhaps if we had persevered a little longer, Iraq could yet have been disarmed peacefully, or - if not - the world could have taken action to solve this problem by a collective decision, endowing it with greater legitimacy, and therefore commanding wider support, than is now the case.... My thoughts today are with the Iraqi people, who face yet another ordeal. I hope that all parties will scrupulously observe the requirements of international humanitarian law, and will do everything in their power to shield the civilian population from the grim consequences of war. The United Nations, for its part, will do whatever it can to bring them assistance and support. Let us hope the future will be much brighter for the Iraqi people than the recent past, and that they will soon have the chance to rebuild their country in peace and freedom, under the rule of law.

[JURIST] George Washington University Law School [official website] has announced that US Supreme Court Justice Sandra Day O'Connor will be its 2003 Commencement speaker.... Anti-death penalty activists - including David Kaczynski, brother of "Unabomber" Ted Kaczynski - spoke recently at Cornell Law School [official website] on the theme Justice Overcoming Revenge: Responsibility, Community and Healing in Response to Violence. The Cornell Chronicle has more.

[JURIST] UN High Commissioner for Human Rights Sergio Vieira de Mello issued a statement on the war in Iraq Thursday. He said:

At this moment, I must recall the international obligations of the Parties to adhere strictly to the fundamental human rights of all. These rights must remain our guide through the tragedy of conflict. Even wars have rules.

Fundamental human rights norms must be respected at all times. No one shall be arbitrarily deprived of his or her life. No one shall be arbitrarily detained and no one shall be subject to torture. Every person shall be presumed innocent. There must be no attacks on civilians and the sick and wounded must be cared for....

For some two decades, the people of Iraq have suffered enormously: wars, internal conflicts, denial of the entire spectrum of their rights and the human consequences of sanctions have created a nightmare scenario that can only inspire a huge sense of solidarity.

[JURIST] Thursday's apparent (and apparently-failed) attempt by US forces to hit a number of senior Iraqi leaders - including President Saddam Hussein - as a "target of opportunity" raises the question as to whether individual enemy leaders are legally-legitimate targets in wartime. The short answer seems to be "yes":

Both the Hague IV Convention and the laws of war permit attacks upon valid military targets at any time or place. What is included in the category of “targets,” however, is broader than just troops in the field. Noncombatants and civilians can be designated a valid target if they are sufficiently involved in the war effort. For example, any civilian who directly participates in hostilities would be equivalent, for targeting purposes, to a combatant. Although the exact level of involvement necessary for a civilian to become a valid target has not been fully defined legally, it is usually viewed as being a decision in practice based on context. Civilians who work directly to conduct the war, or occupy a role normally held by a soldier, are valid targets. There is also a legal consensus that a civilian head of state who serves as commander-in-chief of the armed forces falls within this category.

[JURIST] The White House has issued a 7-page report outlining US authority to use military force against Iraq. The report was released Wednesday in connection with the President's transmittal to Congress [JURIST report] of legal determinations required under the Joint Resolution to Authorize the Use of United States Armed Forces. In respect of law, the report states:

The President has full authority to use the armed forces in Iraq under the US Constitution, including his authority as Commander in Chief of the US armed forces. This authority is supported by explicit statutory authorizations contained in the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) and the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243).

In addition, U.S. action is consistent with the UN Charter. The UNSC [United Nations Security Council], acting under Chapter VII of the UN Charter, provided that member states, including the United States, have the right to use force in Iraq to maintain or restore international peace and security. The Council authorized the use of force in UNSCR 678 with respect to Iraq in 1990. This resolution - on which the United States has relied continuously and with the full knowledge of the UNSC to use force in 1993, 1996, and 1998 and to enforce the no-fly zones - remains in effect today. In UNSCR 1441, the UNSC unanimously decided again that Iraq has been and remains in material breach of its obligations under relevant resolutions and would face serious consequences if it failed immediately to disarm. And, of course, based on existing facts, including the nature and type of the threat posed by Iraq, the United States may always proceed in the exercise of its inherent right of self defense, recognized in Article 51 of the UN Charter.

[JURIST] In a statement released Thursday, the Geneva-based International Commission of Jurists said that now that war in Iraq has broken out, it must be conducted lawfully:

Now that the military attack has begun in earnest, it is imperative that States take care not to compound one unlawful action with others. All parties are obliged to follow the humanitarian and human rights prescriptions laid in out in the 1949 Geneva Conventions, other relevant international instruments and international customary law. In particular, the fact that Iraq has been illegally invaded in no way absolves it from scrupulously respecting international humanitarian law and human rights law. States which are not taking a part in the hostilities must benefit from, and themselves respect, the rules of neutrality. In particular, they may not allow their territory to be used for military purposes nor may they be made the object of attack.

Belligerents are obliged to treat humanely all persons in their power. They must not attack any persons surrendering. All parties to the conflict must take special care to distinguish between military objectives and civilian persons or objects. The latter may not be made a target of attack. The ICJ would like to stress that all States must scrupulously observe the rules prohibiting or limiting the use of certain weapons. No weapon that is excessively cruel or by nature indiscriminate may be used, even if it is not the object of a treaty prohibition. The ICJ is particularly concerned about reports that some parties may be contemplating using chemical agents. For those States party to the Chemical Weapons Convention, a strict interpretation is indispensable. In addition, the 1925 Geneva Protocol and customary law absolutely prohibit the use of chemical weapons.

[JURIST] In the wake of the breakout of hostilities in Iraq, the International Committee of the Red Cross Thursday called on all warring parties to abide strictly by the rules and principles of international humanitarian law:

The ICRC reminds all States party to the Geneva Conventions of their obligation not only to respect but also to ensure respect for international humanitarian law, whose main purpose is to minimize the effects of war on people not or no longer taking part in hostilities, and to protect their lives and physical integrity.

The requirement that persons not taking part in hostilities be treated with humanity in all circumstances is a basic principle of humanitarian law. Attacks directed at civilians are prohibited, as are attacks that do not distinguish between military objectives and civilians/civilian objects. In the course of military operations, all parties are obliged to take every feasible precaution to avoid, and in any case to minimize, civilian casualties and damage to civilian property.

The warring parties have the duty to ensure that the basic needs of the civilian population are met as far as possible. They must authorize and facilitate impartial humanitarian relief operations and ensure the safety of medical and humanitarian personnel. They must see to it that the sick and wounded have access to adequate medical care. The red cross and red crescent emblems must be respected by all parties. All combatants and civilians detained must be spared and protected against abuses in all circumstances and without discrimination; they must be treated in accordance with the relevant provisions of the Geneva Conventions.