Recently in Iraq War Category

US appeal of Blackwater case dismissal a step towards accountability
6:02 PM ET

Shaista Shameem [Chairperson/Rapporteur, Working Group on the use of mercenaries, Special Procedures Branch - OHCHR]: "The United Nations Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination welcomes the decision announced by the US Vice President Joe Biden to appeal a ruling dismissing charges against the five Blackwater guards in connection with the shooting in Nissour Square in Iraq in 2007 during which at least 14 people were killed and a further 20 injured, many seriously.

The Working Group expressed its concerns in a public statement released on January 7, 2010, following the decision of Judge Ricardo M. Urbina of the Federal District Court for the District of Columbia on December 31, 2009 to dismiss the indictment against Blackwater. The Group stated that while it respected the independence of the United States judiciary and the requirements for due process, it felt such a decision may lead to a situation where no one would be accountable for grave human rights violations.

During its visit to the United States in July 2009, but the Department of State and the Department of Defense stressed to the Working Group the importance of ensuring oversight and accountability of private security companies working on its behalf. The authorities explained the legislative steps taken by the Congress following the 2007 Blackwater shooting in Iraq to expand and clarify jurisdiction over offenses committed by private security and military contractors operating in areas of armed conflict and in peacetime.

While these news statutes virtually permit the US justice system to punish all crimes prohibited by human rights or humanitarian law, recent litigation has demonstrated that it remains a challenge to do so.

The Working Group hopes that through the appeal of the Blackwater dismissal, the US justice system will be able to consider all evidence gathered in this case in accordance with the law."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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New Iraqi election law leaves resolution of Kirkuk voting issue in limbo
8:11 AM ET

Marina Ottaway [Director, Middle East Program, Carnegie Endowment for International Peace]: "The new election law approved by the Iraqi parliament on November 8 has both positive and negative features. On the positive side, it will allow the voting to take place before the mandate of the present parliament expires and will thus prevent a constitutional crisis. The law has also avoided embedding confessionalism in the political system of Iraq, as other proposals under discussion would have done. On the negative side, however, the law does not address the substance of the problem of Kirkuk - the obstacle on which the legislation almost foundered - but simply postpones any discussion of it, creating a real possibility of post-election conflict. And the choice of a system of proportional representation with no minimum threshold for parliamentary representation and open lists is likely to contribute to the fragmentation of an already badly fragmented political spectrum - 296 parties and independent candidates have registered to participate in the elections.

The main obstacle to the passage of a new election law was the determination of who has the right to vote in Kirkuk, a city where Arabs, Kurds and Turkmens claim to have been the majority until Saddam Hussein's machinations and subsequent conflicts changed the population balance. Kurds argue that Kurds who were expelled have the right to return and thus to vote in Kirkuk, and many in fact have moved into the city since 2003. Arabs and Turkmens believe that many of the newcomers have simply been relocated there by the Kurdish parties and the Kurdistan regional government in order to facilitate the eventual annexation of Kirkuk by Kurdistan. Against this background, the composition of voter lists in Kirkuk became a bone of contention. Kurds argued that the voter list should reflect the 2009 population, while Arab and Turkmens favored using the lists prepared in 2004, which they claim reflect the natural composition of the population, before Kurds artificially inflated their numbers. Failure to solve the problem prevented provincial council elections to be held in Kirkuk and the surrounding Tamim province in 2009.

The compromise reached on November 8 is that voting will take place on the basis of 2009 lists, as Kurds demanded. As a concession to Arabs and Turkmens, however, in jurisdictions where population has increased by more than 5 percent a year since 2003, election results can be challenged and a process can be set up to verify that all those who voted had actually the right to do so - the law does not specify which criteria can be used to determine who had the right to vote where. It is clear that the potential for conflict after the elections is enormous. But while the law thus is quite problematic, simply postponing rather than solving the problem, it is less so than alternative solutions that were considered, including that of apportioning seats in Kirkuk among population groups, or of creating "compensatory" seats reserved for Arabs and Turkmens in order to make up for the increased migration of Kurds into the city. Such solutions would have embedded confessionalism in the Iraqi political system, creating precedent that would have been very difficult to overcome.

The decision to adopt an open lists system - allowing voters to choose not only a party but also specific candidates within it - was strongly encouraged as more democratic by the United States and international NGOs. When lists are closed, party bosses can decide which candidates in their party will probably be seated simply by placing them higher or lower on the list. If the list is open, voters' choices can modify the order. Iraq parliamentary elections of December 2005 were based on closed lists, the provincial council elections of January 2009 on open lists. There is no denying that the open list system decreases the power of party bosses and increases that of voters. In Iraq today, however, the main problem is less the excessive power of party bosses, but the tendency of all organizations to splinter. The open lists system may further weaken the parties, further complicating what will certainly be a very complicated process of cabinet formation after the elections."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Status-of-forces agreement with Iraq must recognize detainee rights under international law
1:05 PM ET

Joseph Logan [researcher, Middle East and North Africa Division, Human Rights Watch]: "In the debate over the Bush administration's push to wrap up a status-of-forces agreement and strategic pact with Iraq, there's a concerned party you aren't hearing about: the more than 20,000 Iraqis in US military detention.

The status-of-forces agreement now under negotiation would supersede the current U.N. Security Council resolution which expires at the end of the year and provides the Chapter VII mandate of US-led Multi-National Force-Iraq (MNF), including MNF detention in Iraq. This resolution provides the MNF authority to detain persons for "imperative reasons of security."

The US argues that these detainees should be treated in conformity with the Fourth Geneva Convention, which is applicable during military occupations. This interpretation of the Security Council resolution ignores the shift in the legal classification of the conflict with the declared end of the occupation in Iraq in 2004. Because the conflict in Iraq no longer concerns two opposing governments nor is an occupation, but is instead a fight by governments against an insurgency, the law on non-international armed conflict applies. During such conflicts, persons apprehended are to be treated in accordance with fundamental laws of war guarantees and international human rights law, but not the Fourth Geneva Convention as the US contends. This means at a minimum that detainees should be charged with a specific offense, be brought before an independent and impartial judge, and have access to a lawyer. The current US process for detainees does not meet these basic requirements.

Iraqis negotiating the status-of-forces agreement cite the goal of transferring to their authority much of the MNF detainee population - which the MNF itself has said it hopes to trim substantially through its expedited review and release procedures. No one, however, imagines a status-of-forces agreement bringing an end to the authority of a foreign military operating in Iraq to detain. Any agreement must reflect the commitment of both parties to upholding international law, including the elements of the International Covenant on Civil and Political Rights pertaining to the rights of persons in custody.

Critics of the proposed deal in Washington warn they won't be roped into an open-ended military commitment to Iraq. They should also reject the prospect of enshrining their country's status as a jailer operating outside international law on foreign soil."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Balkin [Yale]: To Our Great Shame
10:01 PM ET

Jack Balkin, Yale Law School:

"The hearings on the nomination of Alberto Gonzales to be Attorney General of the United States have begun. Will no one in Congress say what should be obvious? That Gonzales has brought shame on our country by trying to devise legal strategies and arguments to circumvent laws against torture and to define away the abuse of prisoners? That such a man should not be the nation's chief law enforcement officer? This is not mere cronyism or financial corruption we are talking about. It is torture.

How can we tell the other countries of the world that we are genuinely interested in democracy or in human rights? Who will listen to us when our own soldiers are captured and abused?

The public has so far been largely silent about this great injury to America's image around the world. The feckless Democrats in Congress, humbled by their recent electoral loss, lack the courage to denounce what should be denounced, or to act on the courage of their convictions. And the party that runs the country is all too happy to sweep the problem under the rug. But the rest of the world is watching. And they will not soon forget. For years to come we will hear about America's mistreatment of prisoners, and how we failed to punish the architects of that policy, indeed, how we elevated and honored them, even after the sorry details were disclosed to a public unwilling to face them.

Almost a year ago, President Bush stood before the United States Chamber of Commerce and waxed eloquent about the importance of bringing human rights, the rule of law and democracy to the countries of the Middle East. He denounced the "[d]ictators in Iraq and Syria [who] promised the restoration of national honor, a return to ancient glories, [but who] left instead a legacy of torture, oppression, misery, and ruin." And he spoke eloquently of the key ingredients of successful societies throughout history, societies, he explained, who "limit the power of the state and the power of the military," who "protect freedom with the consistent and impartial rule of law, instead of selectively applying the law to punish political opponents," who "prohibit and punish official corruption," and who "instead of directing hatred and resentment against others . . . appeal to the hopes of their own people."

In the past months we have learned that our country systematically tortured and abused prisoners. It was not, we have learned, the work of a few bad apples, but a widespread practice. At the same time, lawyers for the Administration spent countless hours crafting legal mystifications and specious arguments to justify abusive prisoner interrogations by the CIA and military forces, and to explain why the President of the United States, who swears an oath to make sure that the laws be faithfully executed, has no legal obligations whatsoever to abstain from torturing people.

The question I want to know is this: Is America still a successful society?" [January 6, 2005; Balkinization has the post]

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Posner [Chicago]: Preventive War
2:12 PM ET

Judge Richard Posner, University of Chicago Law School:

"The U.S. invasion of Iraq, the U.S. decision not to invade Afghanistan before the 9/11 attacks, and concern with the apparent efforts of Iran and North Korea to obtain nuclear weapons raise acutely the question when if ever a preemptive or preventive war is justified. If "preemptive war" is defined narrowly enough, it merges into defensive war, which is uncontroversial; if you know with certainty that you are about to be attacked, you are justified in trying to get in the first blow. Indeed, the essence of self-defense is striking the first blow against your assailant.

But what if the danger of attack is remote rather than imminent? Should imminence be an absolute condition of going to war, and preventive war thus be deemed always and everywhere wrong? Analytically, the answer is no. A rational decision to go to war should be based on a comparison of the costs and benefits (in the largest sense of these terms) to the nation. The benefits are the costs that the enemy's attack, the attack that going to war now will thwart, will impose on the nation. The fact that the attack is not imminent is certaintly relevant to those costs. It is relevant in two respects. First, future costs may not have the same weight in our decisions as present costs. This is obvious when the costs are purely financial; if given a choice between $100 today and $100 in ten years, any rational person will take $100 now, if only because the money can be invested and through interest compounding grow to a much larger amount in ten years. But the appropriateness of thus discounting future costs is less clear when the issue is averting future costs that are largely nonpecuniary and have national or global impact.

Second, and more important, and well illustrated by the failure to find weapons of mass destruction in Iraq, if the threat of attack lies in the future it is difficult to gauge either its actual likelihood or its probable magnitude. But this is not a compelling argument against preventive war. What is true is that a defensive war is by definition waged only when the probability of an attack has become one; the attack has occurred. The probability of attack is always less than one if the putative victim wages a preventive war, because the attacker might have changed his mind before attacking...." [December 5, 2004; The Becker-Posner Blog has more]

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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