War crimes: US seeks protection, two
firms sued By Thalif Deen and Emad
Mekay
NEW YORK and WASHINGTON - After securing a
unanimous United Nations Security Council resolution
supposedly granting "full sovereignty" to Iraqis, the
United States is shifting its focus to winning a second
decision that would protect its troops from possible
war-crimes prosecution.
The original resolution
granting immunity to US peacekeepers that was first
adopted by the Security Council in July 2000 was renewed
last year, and remains valid until the end of this
month. The present resolution, which is a call for a
second renewal, is due to come up for a vote before July
1.
"With a pliant interim government in Baghdad,
this should not be a problem in Iraq," said an Asian
diplomat. "But Washington obviously wants international
legitimacy from the Security Council - and it may well
get it."
China, a veto-wielding permanent member
of the Security Council, has already expressed
reservations. But, according to diplomatic sources here,
the Chinese government may signal its displeasure by
abstaining on the resolution, not vetoing it.
"The question is: Will the other 14 members of
the Security Council allow themselves to be intimidated
once again if the United States insists on a renewal?"
asked Hans Corell, who until recently was the UN legal
counsel. "Can they afford damaging their own reputation
- and the council's? And can the United States afford
continuing in this way when they need all the support
they can get from the United Nations in other matters?"
The 15-member Security Council has already been
accused of wilting under US pressure when it unanimously
adopted a resolution on Wednesday endorsing the military
occupation of Iraq.
The US attempt to seek
exemptions from war crimes comes at a time when its
soldiers in Iraq are accused of brutalizing and
humiliating detainees in violation of Geneva Conventions
that govern the treatment of prisoners of war, and
include the prohibition of torture, rights to legal
representation and family visits.
The military
atrocities committed by US soldiers warrant war-crimes
prosecutions, according to constitutional lawyers, but
the United States cannot be hauled before the
International Criminal Court (ICC) because it has
refused to accede to the Rome Statute creating the ICC.
Exemption from war-crimes prosecutions would
also nullify the very basis of the ICC.
"For
someone who is a warm supporter of the United Nations,
the ICC and the United States, it is obvious what must
be done in this particular case. It is time to stop this
nonsense," Corell said.
Francis Boyle, professor
of international law at the University of Illinois, said
the Security Council has no authority to exempt the
United States from the laws of war, including and
especially the Geneva Conventions, since they constitute
jus cogens - peremptory norms of international
law that can never be derogated from.
"The
adoption of such a second resolution by the Security
Council would be ultra vires under UN Charter
Article 24 (2), which requires that the Security Council
'shall act in accordance with the purposes and
principles of the United Nations'," he said.
Even if passed, said Boyle, such a resolution by
the Security Council would be null and void around the
world, except perhaps before the ICC.
Meanwhile,
lawyers for Iraqis tortured while in US custody have
sued two private security companies for allegedly
abusing prisoners to extract information from them with
the goal of winning more contracts from the US
government.
According to the class-action
lawsuit filed on Wednesday by the New York-based Center
for Constitutional Rights (CCR) and a Philadelphia law
firm, the private security corporations named conspired
with US officials to "humiliate, torture and abuse
persons" detained by US troops in Iraq. The suit, which
was filed in federal court in San Diego, California,
names as defendants the Titan Corp of San Diego and CACI
International of Arlington, Virginia, that company's
subsidiaries, and three individuals who work for the
firms.
Lawyers of at least nine Iraqi victims
say they are seeking undisclosed compensation and to
have the two companies barred from receiving future
contracts from the US government. The suit accuses the
companies of violating the Racketeer Influenced and
Corrupt Organizations Act (RICO), alleging that they
engaged in a wide range of "heinous and illegal acts in
order to demonstrate their abilities to obtain
intelligence from detainees, and thereby obtain more
contracts from the government".
RICO enables
persons financially injured by a pattern of criminal
activity to seek redress through state or federal
courts, and penalizes acts of "racketeering" and other
serious crimes.
The lawsuit also charges that
three individuals, Stephen Stephanowicz and John Israel
of CACI Inc, and Adel Nahkla of Titan, directed and
participated in illegal conduct at the Abu Ghraib prison
in Iraq.
"We believe that CACI and Titan engaged
in a conspiracy to torture and abuse detainees and did
so to make more money," said Susan Burke of Montgomery,
McCracken, Walker and Rhoads, a lawyer for the
plaintiffs. "It is patently clear that these
corporations saw an opportunity to build their
businesses by proving they could extract information
from detainees in Iraq, by any means necessary. In doing
so they not only violated a raft of domestic and
international statutes but diminished America's stature
and reputation around the world."
A spokesperson
for Titan said the company merely provided translation
services for the US government in Iraq and was not in
control of Iraqi prisoners.
"We believe the
lawsuit is frivolous and we will defend against it
vigorously, and we do not know of any government
allegations on this issue nor have we heard of any
government allegation or charge against the single
former employee that is mentioned in the lawsuit," said
Titan's Wil Williams. "We have never had control of
prisoners or how they were handled."
While US
soldiers have appeared responsible for the atrocities
that began to emerge via still and video photos this
spring, more recent pictures of the abuse of Iraqi
detainees are bringing to light the role that the mostly
unregulated private contractors working in occupied Iraq
played in the interrogation of detainees.
Lawyers for some of the soldiers already tried
in Iraq for abusing prisoners said they claimed to be
acting in part under the instruction of mercenaries
hired by the Pentagon as interrogators.
While
seeking the exemption from the ICC, Washington has
signed bilateral immunity agreements with some 75
countries that have agreed not to prosecute US soldiers
on their soil. They range from Botswana and Chad to Sri
Lanka and the Solomon Islands. But, according to the UN
Treaty Section website, none of the bilaterals have been
registered with the world body.
"It is a
mandatory obligation imposed on all member states by the
Charter that all treaties and agreements concluded by
them be registered," said Palitha Kohona, head of the UN
Treaty Section. "There are no exceptions to this
requirement envisaged under the Charter. Article 102
seeks to ensure transparency with regard to all legally
binding agreements concluded by member states. The fact
that none has been registered so far seems to give rise
to interesting legal implications," she said.
One speculation, according to a UN lawyer, is
that the bilateral compacts are not being registered
because the parties that signed with Washington do not
consider them to be treaties. If that were the case,
there would be doubts about their legally binding nature
and their enforceability, he said.
"Of course a
superpower could enforce bilateral obligations other
than through legally available means. The tendency to
resort to extralegal means is something that the
international community should be concerned with," he
said.
