Iraqis target Gen. Franks for war crimes trial
- Iraqis target Gen. Franks for war crimes trial
By Jeffrey T. Kuhner
THE WASHINGTON TIMES
Iraqi civilians are preparing a complaint to present in court in
Belgium accusing allied commander Gen. Tommy Franks and
other U.S. military officials of war crimes in Iraq, according to the
attorney representing the plaintiffs.
The complaint will state that coalition forces are responsible
the indiscriminate killing of Iraqi civilians, the bombing of a
marketplace in Baghdad, the shooting of an ambulance, and
failure to prevent the mass looting of hospitals, said Jan Fermon, a
Brussels-based lawyer. He is representing about 10 Iraqis who
say they were victims of or eyewitnesses to atrocities committed
during Operation Iraqi Freedom.
Mr. Fermon said the complaint will ask an investigative
magistrate to look into whether indictments should be issued
against Gen. Franks. If an indictment is filed against the general
and other U.S. officials, they could be convicted and sentenced
by a Belgian court.
"Belgium could issue international arrest warrants, but I don't
think we will get to that point," Mr. Fermon said.
If arrest warrants were issued, U.S. officials could be arrested
on entering Belgium.
The Bush administration has reacted angrily to the complaint.
A senior administration official warned that "there will be
diplomatic consequences for Belgium" if the complaint is taken
up by a court there and Belgian authorities issue indictments
against Gen. Franks and other U.S. officials.
"The complaint will be filed stating that unknown American
personnel are directly responsible for committing war crimes in
Iraq," Mr. Fermon said.
"On some of these questions there is an issue of command
responsibility for atrocities committed on the ground, and that
responsibility ends with Gen. Franks and those who are under
him in the U.S. military line of command," he said.
The administration official said the complaint highlights U.S.
concerns that laws regarding war crimes and institutions such as
the International Criminal Court (ICC) can be used to initiate
politically motivated prosecutions against American officials.
"This is obviously not a political case with the ICC, but it's
typical of what we can expect in the future," the official said on
the condition of anonymity.
Mr. Fermon said that because under international law
President Bush and Secretary of State Colin L. Powell cannot be
prosecuted for war crimes while they are in office, the complaint
will target Gen. Franks and other U.S. military officials.
"U.S. military officials had the authority but did nothing to
these war crimes from occurring," Mr. Fermon said. "A military
commander is responsible for war crimes even if he did not
commit or order them, but also if he fails to take all the necessary
steps to prevent the atrocities from happening."
Mr. Fermon said the complaint against U.S. officials is based
on a 1993 Belgian law that gives a Belgian court authority to
judge war crimes committed by noncitizens anywhere in the
world. The plaintiffs sought to file the complaint with the recently
inaugurated ICC, but "since the United States did not ratify the
treaty to join the institution, we felt compelled to go to a court in
Belgium," he said.
He said Belgium's law of "universal jurisdiction" recently
allowed indictments to be issued against Rwandan officials for
war crimes. He said a similar process is expected to take place
against Gen. Franks and other U.S. military officials.
"The most realistic scenario for us is that a serious,
independent inquiry is made, and then those U.S. officials with
serious responsibilities for the atrocities that were committed in
Iraq are subpoenaed to appear in court," he said. "If they do not
show up in court, then a court case can proceed with them being
absent. If the court finds them guilty, they will be convicted and
The filing of the complaint threatens to heighten tensions
between Brussels and Washington, which have been strained
since Belgium joined France and Germany to lead European
opposition to the war in Iraq.
Earlier this month, Mr. Powell said Belgium's law threatened
to hamper travel by U.S. officials to Brussels, where NATO
headquarters are located.
"It affects the ability of people to travel in Belgium without
being subject to this kind of threat. For a place that is an
international center, they should be a little bit concerned about
this," Mr. Powell said, according to the Associated Press.
Washington's concerns recently prompted Belgian lawmakers
to approve amendments to the law, making it harder for cases to
be filed against leaders of democratic nations.
Complaints that have been filed against high-ranking leaders
such as former President George Bush and Mr. Powell over the
1991 Persian Gulf war are to be sent back to Washington.
Under the amendments, the 10-year-old law only applies to
war crimes committed in countries that lack democratic
credentials and are unable to provide a fair trial.
But international-law observers say the amendments still
leave it up to the Belgian government to decide whether
complaints can go forward against U.S. officials.
"These amendments are a positive first step because they
help to restore some control over the complaint process by giving
the Belgian government the power to shape these kinds of
proceedings against the United States, but they are not a
panacea," said David Rivkin, a Washington-based lawyer and
former official in the Reagan administration and first Bush
administration. "They would not shield all possible defendants
from these kind of complaints because it is not clear that the
Belgian government can always be trusted to do the right thing."
He also said because the amendments have not been tested, it
is not clear whether U.S. military officials who are not political
leaders, such as Gen. Franks, can be shielded from prosecution.
The senior administration official said the complaint against
Gen. Franks was deeply flawed. "There are serious problems
with the principle of command responsibility being used in
international law as the basis for indictments," the official
goes well beyond what we could reasonably call criminal
But Mr. Fermon said that the principle of "command
responsibility" has been established in international law by the
war-crimes tribunals for Rwanda and the former Yugoslavia at
Mr. Fermon said the principle has been used especially
effectively in indictments against generals in the former
Yugoslavia, who have been charged not "for crimes that were
committed or ordered, but for command responsibility."
The most notable case has been that of Croatian Gen. Ante
Gotovina, whose indictment on charges of command
responsibility over a 1995 military operation has been criticized
by many Hague tribunal observers. Gen. Gotovina has refused to
hand himself over to the tribunal.
Although the administration official declined to discuss the
specifics of the Gotovina case, he said, "But I do think that the
indictments issued by the Hague tribunal based on the theory of
command responsibility risks establishing the principle in
international law," which could be used against U.S. officials.
Mr. Fermon said four Belgian doctors who were working in
Iraq during the war came into contact with Iraqi civilians who
said they were victims of war crimes by coalition forces. The
doctors, who were part of an association called Medicine for the
Third World, then told the Iraqis to submit their complaints to a
court in Belgium.
Mr. Fermon said that the plaintiffs number about 10 Iraqi
civilians, all of whom say they were victims in the war or family
members of victims.
"We don't yet know the precise number of plaintiffs because
complaints are still coming in," he said.
But the complaint, which Mr. Fermon said will be officially
filed in about two weeks, will accuse coalition forces of
numerous atrocities in Iraq. Among them:
*The failure to prevent the mass looting of hospitals in
Baghdad after the fall of Saddam Hussein's regime.
*Eyewitness testimony of U.S. troops firing upon an
*The indiscriminate shooting and wounding its driver by U.S.
armored vehicles of civilians in Baghdad.
*The bombing of a marketplace in Baghdad that killed scores
* The attack on a civilian bus with an "energy weapon" in the
town of al-Hillah, killing at least 10 passengers.
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