[JURIST] A spokesman for the UK Forces in the Gulf issued the following statement early Thursday (GMT) concerning video of UK casualties [BBC News report] televised on Al Jazeera TV Wednesday:

We are shocked and appalled that the Iraqi regime have released close-up television pictures that they claim show dead UK military personnel. This is a flagrant and disgraceful breach of the Geneva Convention. We have yet to undertake formal identification, but it is probable that these are the two personnel currently listed as missing. The next of kin have been informed that these soldiers have now been categorised as missing believed killed. Our thoughts are with their families and friends. We deplore the decision by Al Jazeera to broadcast such material and call upon them to desist immediately. We request all media outlets not to become tools for Iraqi propaganda by rebroadcasting such material.

[JURIST] Ensuring humanitarian access to the civilian population is a key obligation under the Geneva Conventions and one of the most important duties of the coalition forces at this juncture. The International Humanitarian Law Research Initiative offers a review of the legal basis of the obligation to ensure humanitarian access [free registration required] and presents a series of recommendations for its proper implementation.

[JURIST] In the New York Times Wednesday, Adam Liptak notes that the Bush administration has launched a "second front" in Iraq - a public relations campaign in which officials have repeatedly accused Iraq of violating the Geneva Conventions and other international laws that govern the conduct of war.... Writing in the Washington Post, former US ambassador for war crimes issues David Scheffer says that the proper court for trying Iraqi war criminals would be an ad hoc international criminal tribunal established under the enforcement authority of the UN Security Council.... In the Legal Intelligencer, three law professors debate the best method for trying a captured Saddam Hussein.... The Australian Broadcasting Corporation notes that legal confusion is putting the Iraq oil-for-food program on hold.... In the UK Independent, Andrew Buncombe reports that British and American soldiers are building an internment camp at a secret location inside Iraq to hold thousands of Iraqi POWs.... In a letter to the London Times, Professor Robert Black of the University of Edinburgh School of Law suggests that the odds of the International Court of Justice hypothetically accepting the validity of the arguments advanced by the UK Attorney General on the legality of war against Iraq would be considerably in excess of 10-1 - against.

[JURIST] Speaking Wednesday at a UN Security Council open meeting on the Iraq war [UN News report], Iraqi ambassador Mohammed Aldouri called for the UN to take action to stop a war on his country that was in blatant breach of international law. Here is a summary of his statement, from the UN Press Office:

MOHAMMED A. ALDOURI (Iraq) said that his country - a founding Member of the United Nations - was being subjected to aggression, which was killing women, children and the elderly. Sanctions, which have lasted for almost 13 years, were also having a terrible effect on the country. The goal of changing the regime in his country, which had been proclaimed by the United States, constituted a blatant violation of international law and the Charter of the United Nations. The humanitarian effect of the war was devastating. The lack of water in Basra, for example, was likely to lead to outbreaks of disease. A mosque in Baghdad had been destroyed. In an attempt to terrorize Iraq, the United States and the United Kingdom conducted some 2,000 bombing sorties a day. The forces of the Iraqi army and the people of the country were fighting a heroic battle against the aggression, however.

The Council must take action to make sure that the rules of international law were observed, he continued. While the aggressors said that their goal was disarmament of Iraq, everybody knew that they were not the ones tasked with that mandate. The inspections during several months had found no evidence of weapons of mass destruction or proscribed activities within Iraq. The real reason was occupation of the country, its recolonization and controlling its oil wealth.

The international community was also well aware that the Security Council had not authorized the use of force by the United States and the United Kingdom, he said. Despite the position of the majority of the members of the Council and Iraq’s cooperation, the two countries had launched their aggressive war, which constituted a blatant material breach of international law and the United Nations Charter. It was also a material breach of relevant Security Council resolutions, which, without exception, called for respect for Iraq’s sovereignty and territorial integrity. This barbaric colonial military aggression against Iraq constituted a threat to international peace and security. The Council was called upon to stop the aggression and demand the withdrawal of United States and United Kingdom forces from the territory of Iraq. The Council must impose respect for its resolutions, particularly those relating to unjustified embargo against his country. He was still hopeful that the international community would be able to impose its will on those who had broken the international law. A failure to do so would mean the end of the United Nations system.

It was also peculiar that instead of considering the aggression itself, the Council had been busy discussing the humanitarian aspects of the problem, he added. Shouldn't the Council pay attention to the cessation of the aggression was first? Wasn't that putting the cart in front of the horse? The oil-for-food programme had been stopped, and the inspectors had been withdrawn from Iraq, with the Council's blessing. How had the Council allowed itself to be manipulated into such a situation? It was his hope that the Council would be able to stand up to the aggressors.

Recorded video

[JURIST] The United Nations Security Council [official website] is meeting at this hour to consider the Iraq war and possible UN responses. So far, some 50 speakers are inscribed, and the meeting is expected to continue on Thursday.

UPDATE [7:46 PM ET]: Opening the meeting, UN Secretary-General Kofi Annan said:

We all want to see this war brought to an end as soon as possible. But, while it continues, it is essential that everything be done to protect the civilian population, as well as the wounded and the prisoners of war, on both sides, and to bring relief to the victims. This obligation is binding on all the belligerents. The Geneva Conventions and all other instruments of international humanitarian law must be scrupulously respected. I would recall in particular the provisions of the Fourth Geneva Convention, under which those in effective control of any territory are responsible for meeting the humanitarian needs of its population, and are required to maintain dialogue and cooperation with international organisations engaged in humanitarian relief. No one, on either side, must obstruct that relief.

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[JURIST] From AP Wednesday:

American lawyers and legal officials in military uniform, toting weighty law books and ready to establish martial law, are traveling with U.S. and British troops surging into Iraq. The legal experts are hoping, however, that the Iraqi justice system won't fall apart in the event of a coalition victory, and will be able to maintain order once the shooting stops.

[JURIST] From US Central Command [official website] Wednesday, in indirect reference to what has been described in press reports [BBC News report] as a bombing of a Baghdad market early Wednesday (local time) that killed 14 Iraqi civilians:

COALITION FORCES STRIKE MISSILE LAUNCHERS IN BAGHDAD; CIVILIAN DAMAGE POSSIBLE
SOUTHWEST ASIA - Coalition aircraft used precision-guided weapons to target nine Iraqi surface-to-surface missiles and launchers in Baghdad at approximately 3 a.m. EST. The missiles and launchers were placed within a civilian residential area. Most of the missiles were positioned less than 300 feet from homes. A full assessment of the operation is ongoing. Military targets – such as the missiles and launchers placed in Baghdad – are a threat to Coalition military forces and will be attacked. While the Coalition goes to great lengths to avoid injury to civilians and damage to civilian facilities, in some cases, such damage is unavoidable when the regime places military weapons near civilian areas.

Collateral or incidental damage occurs when attacks targeted at military objectives cause civilian casualties and damage to civilian objects. It often occurs if military objectives such as military equipment or soldiers are situated in cities or villages or close to civilians. Attacks that are expected to cause collateral damage are not prohibited per se, but the laws of armed conflict restrict indiscriminate attacks. Article 57 of the 1977 Additional Protocol I to the 1949 Geneva Conventions [text] states that, in an international conflict, "constant care shall be taken to spare the civilian population, civilians, and civilian objects." In addition, under Article 51, carpet bombing is prohibited, as are attacks that employ methods and means of combat whose effects cannot be controlled. Finally, attacks are prohibited if the collateral damage expected from any attack is not proportional to the military advantage anticipated. Military commanders in deciding about attacks have to be aware of these rules and either refrain from launching an attack, suspend an attack if the principle of proportionality is likely to be violated, or replan an attack so that it complies with the laws of armed conflict.

[JURIST] Wednesday's field reports from the International Committee of the Red Cross [advocacy website] on the humanitarian situation in Iraq are now available online.

The water supply has been partly re-established in Basra:

The ICRC estimates that 50 per cent of the city's approximately 1.5 million inhabitants now have access to drinking water. This latest development will also considerably improve the quality of the drinking water available to the people of Basra. Technicians from the Basra Directorate of Water and ICRC engineers managed to start up three out of six back-up generators at Wafa' Al-Qaed pumping station. The station had not been operating since last Friday when electricity was cut off. However, a number of spare parts are still needed before it will be possible to start the three remaining back-up generators. The ICRC and local technicians are continuing their efforts to get the pumping station running normally again.... The repair work at Wafa' Al-Qaed became possible after the ICRC contacted all parties to the conflict in Iraq to obtain security assurances for its staff and the technicians of the Basra water board. The ICRC carried out the work with the full support and cooperation of the parties to the conflict.

General situation: Baghdad was covered by a huge sandstorm that engulfed the whole city.

Contacts with authorities: these continue, on the question of POWs held by Iraq as well as medical and water issues.

Hospital assessments: all hospitals are coping for the time being but are concerned about a sudden mass increase in the number of war-wounded. ICRC is trying to help them prepare for such an eventuality.

[JURIST] A Reuters report Wednesday quotes a US Defense Department official as saying that some of the 12 US soldiers whose supply convoy was ambushed near Nassiriya in southern Iraq on Sunday were killed by their captors although they tried to surrender. Article 50 of the First Geneva Convention [text], to which Iraq is a party, declares "willful killing" of protected persons (e.g. sick, wounded, or defenseless soldiers or civilians), a "grave breach" and thereby denotes that as a war crime. Several sections of the 1977 Additional Protocol 1 to the Geneva Conventions [text] are more specific:

Art 40. Quarter

It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.

Art 41. Safeguard of an enemy hors de combat

1. A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.
2. A person is hors de combat if:
(a) he is in the power of an adverse Party;
(b) he clearly expresses an intention to surrender; or
(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;
provided that in any of these cases he abstains from any hostile act and does not attempt to escape.

[JURIST] US Central Command announced late Tuesday that US Marines had secured a hospital flying the Red Crescent flag "being used as a military staging area for Iraqi para-military forces":

The Marines had been fired at from the hospital the day before....Misuse of a protected symbol, such as a Red Cross emblem or the equivalent Red Crescent, is a violation of the Geneva Convention and may subject persons to prosecution as war criminals.

3....[T]he following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health:...
(f) The perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol.

[JURIST] Amnesty International [advocacy website] released a statement Wednesday expressing concerns that war crimes may have been committed by both sides during the recent fighting in Iraq:

Coalition forces have confirmed attacking the main Iraqi television station early on Wednesday. According to reports from the BBC, US Central Command in Qatar has said that missiles struck Iraq's main TV station. The Pentagon is reported to have said that the purpose of the operation was to counter the command and control abilities of the Iraqi regime, and also to deal with propaganda and the disinformation campaign of Baghdad. "The bombing of a television station simply because it is being used for the purposes of propaganda is unacceptable. It is a civilian object, and thus protected under international humanitarian law," said Claudio Cordone, Senior Director for International Law at Amnesty International. "To justify such an attack Coalition forces would have to show that the TV station was being used for military purposes and that the attack properly balanced the concrete and direct military advantage anticipated with the incidental risk to civilian life. Attacking a civilian object and carrying out a disproportionate attack are war crimes. The onus is on the Coalition forces to demonstrate the military use of the TV station and, if that is indeed the case, to show that the attack took into account the risk to civilian lives."....

Iraqi forces are reported to have deliberately shelled civilians in Basra and to placing military objectives in close proximity to civilians and civilian objects. There have also been reports of Iraqis dressed in civilian clothes in order to allow surprise attacks on coalition troops. "Any direct attack on civilians is a war crime. Those who blur the distinction between combatants and civilians undermine the very foundations of humanitarian law," said Claudio Cordone.

[JURIST] We interrupt our continuing coverage of legal issues arising out of the Iraq war to bring you breaking news from US Supreme Court. DC Supreme Court litigators Goldstein & Howe [SCOTUSblog post] report:

The Court this morning issued the opinion in Brown v. Legal Foundation of Washington, No. 01-1325, affirming the decision of the Ninth Circuit that IOLTA assessments do not constitute unconstitutional takings of property under the Fifth Amendment. Justice Stevens wrote the opinion [PDF text]. Justice Scalia wrote a dissent [PDF text], joined by the Chief Justice and Justices Kennedy and Thomas. Justice Kennedy wrote a separate dissent [PDF text] suggesting a First Amendment question under the Abood/Keller line of cases.

[JURIST] Recorded audio of Wednesday's UN briefing from Amman, Jordan, on the humanitarian situation in Iraq is now available from the United Nations. The Baghdad market bombing, hospital conditions, the water and power situation in Basra and other topics relevant to international humanitarian law are discussed. Audio quality is mixed, with occasional drop-outs.

UPDATE [2:45 PM ET]: A full transcript is now available from the UN.

[JURIST] Speaking Wednesday to reporters at UN Headquarters in New York, UN Secretary-General Kofi Annan said he was "increasingly concerned" at the "humanitarian casualties" in Iraq, and in the wake of a missile hit on a Baghdad market [BBC report] reminded belligerents that they should respect international humanitarian law and protect civilians. Watch recorded video of his remarks from the United Nations. The Security Council holds an open meeting on Iraq this afternoon at 3 PM ET.

UPDATE [1:09 PM]: A full transcript of the Secretary-General's remarks is now available from the UN.

[JURIST] The Russian ITAR-TASS news agency reports Wednesday on a speech by Russian Foreign Minister Igor Ivanov to the Upper House of the Russian Parliament calling for UN action on Iraq and the need to reform UN institutions in the wake of the war if the organization is to survive:

Russia will call for "an immediate end to the hostilities in Iraq and for the resumption of the discussion within the United Nations of ways to normalize the situation in that country in keeping with the corresponding resolutions....The majority of Council members," he presumes, will express their indignation at the war in Iraq". It is the duty of the Security Council to assess the U.S. and British actions against Iraq, Ivanov stated.

"The reform of the United Nations," he added, "is ripe and necessary, but the backing of the majority of U.N. members is required to implement it". Otherwise, he noted, "the organization is bound to split up". In the minister's opinion, it is necessary to increase the number of permanent members of the U.N. Security Council by five more countries so that it would reflect the actually existing global balance of forces". According to Ivanov, not only Germany, Japan and India should be represented on the Council, but also delegates from Asia, Africa and Latin America.

[JURIST] According to a Russian Interfax wire story Wednesday, former Soviet President Mikhail Gorbachev [official website] has severely criticized the US-led war in Iraq. Echoing sentiments expressed earlier by current Russian President Vladimir Putin, he called the operation "a huge political mistake. It is a blow to the United Nations, primarily its Security Council and to international law as a whole." Read the complete Interfax wire.

[JURIST] The New York-based monitoring group Human Rights Watch [advocacy website] sent a letter Wednesday to Turkish Prime Minister Recep Tayyip Erdogan urging Turkey to take steps to ensure that the human rights of the local Kurdish population are protected in the event of any Turkish military operations in northeastern Iraq:

Turkish government statements have made it clear that Turkish forces may be sent into Northern Iraq during the course of any conflict there, in order to ensure that the northern cities of Mosul and Kirkuk remain part of the state of Iraq, to protect the Turkomen population in Kirkuk, and to prevent an influx of refugees into Turkey....During the conflict between Turkish security forces and the Kurdish Workers' Party (PKK) from 1984 to 1999 in southeastern Turkey, Human Rights Watch documented gross human rights violations committed by both sides against civilians and prisoners. State security forces detained thousands of citizens for interrogation under torture. Between 1980 and 2000, more than 400 prisoners died, apparently as a result of torture, at the hands of Turkish police or gendarmes. Security forces emptied large areas of the countryside in the southeast by bombing and burning unarmed peasant settlements. Hundreds of thousands are still displaced. In the early 1990s, the Turkish security forces are believed to have sponsored networks of killers to eliminate hundreds of suspected enemies of the state by gunning them down in the street or making them "disappear." Human Rights Watch is concerned about the potential risks to human rights if very large numbers of Turkish armed forces enter Northern Iraq....

[JURIST] The International Federation of Journalists [advocacy website], the world's largest journalist organization, issued a press release Wednesday condemning a US airstrike against Iraqi TV late Tuesday (ET), several days after it broadcast video footage of US POWs:

Under international law television and radio stations may be targeted if they are being used for military purposes. However, the IFJ says that there has to be evidence that this is the case before attacks are made. The IFJ also dismissed suggestions that Saddam Hussein may be using television broadcasts to send coded messages to his own army. "The idea that Iraqi soldiers are sitting in the desert watching television to get their orders is absurd," says the IFJ. "But it shows the desperate lengths that some will go to justify what is a serious and dangerous escalation of action against civilian targets."

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