Home Latest News Iraq and the case for Australian war crimes trials: Part 1

Iraq and the case for Australian war crimes trials: Part 1

Crime, Law and Social Change

by C. Doran, and T. Anderson

Crime, Law and Social ChangeThe release of the Chilcot Report in the UK and Andrew Wilkie’s (Federal independent member for Dennison and former intelligence analyst in Australia’s Office of National Assessments) public statement: “… Prime Minister John Howard took Australia to war on the basis of a lie and stands accused of war crimes. That he has never been held to account, and that his Foreign Minister Alexander Downer is now Australian High Commissioner to London, is quite simply outrageous…” has brought Australians’ attention to the travesty of our country participating in the US led invasion of Iraq.

Below is posted a section from the article, “Iraq and the case for Australian war crimes trials” called Australian responsibility: cluster bomb deaths of civilians from the journal, Crime, Law and Social Change with permission of the authors, Chris Doran and Tim Anderson. This will be followed up by a another section called, Australian responsibility: the assault on Fallujah that will be posted next week.


Australian responsibility: cluster bomb deaths of civilians

There are two clear, specific cases regarding Australia’s direct participation in serious war crimes allegedly committed in Iraq. The first is the Royal Australian Air Force (RAAF) support for US and British ground troop use of cluster bombs on civilian populations during the initial invasion in March and April of 2003. The second is Australian military commanders’ responsibility for the assault on Fallujah in late 2004.

While there were significant numbers of civilian deaths resulting from aerial bombing in the geographical areas where the RAAF was reported as operating, this paper focuses on civilian deaths resulting from cluster bombs. The widespread use of cluster bombs in civilian areas by US ground troops supported by the Australian air force meant those civilian deaths were not only predictable, but also preventable. In an editorial calling for the Bush Administration to be tried for war crimes in Iraq, columnist Paul Rockwell (2004) describes a cluster bomb as:

Cluster bombsa 14-foot weapon that weighs about 1,000 lb [455 kg]. When it explodes it sprays hundreds of smaller bomblets over an area the size of two or three football fields. The bomblets are bright yellow and look like beer cans. And because they look like playthings, thousands of children have been killed by dormant bomblets in Afghanistan, Kuwait and Iraq. Each bomblet sprays flying shards of metal that can tear through a quarter inch of steel. The failure rate, the unexploded rate, is very high, often around 15 to 20%. When bomblets fail to detonate on the first round, they become land mines that explode on simple touch at any time [74].

Human Rights Watch found that the ‘targeting of residential neighbourhoods with these area effect weapons [cluster bombs] represented one of the leading causes of civilian casualties in the war’ [27: 80]. A USAToday four-month study found that the US dropped or fired nearly 11,000 cluster bombs or cluster weapons during the invasion, containing between 1.7 and 2 million bomblets [90]. Britain used 2,000 more [88].

Cluster bombs are prohibited under the Australian Anti-Personnel Mines Convention Act [12] but are not banned by the US and UK, and there is no
evidence that the RAAF used them. But the ADF’s direct support for US/UK aircraft dropping cluster bombs in densely populated civilian areas, and providing close air support for troops who used them as munitions, is a serious war crime charge. While technically not illegal as a weapon of war during the Iraq War, cluster bombs have long been condemned. Human rights groups have repeatedly called for a ban on their use. It is their inability to discriminate between military and civilian populations that is particularly offensive, as well as the ongoing danger to civilian populations from unexploded ordinance. Their use can thus comprise war crimes, under the Geneva Conventions [32]. Cluster munitions are now prohibited by nations that ratify the Convention on Cluster Munitions, which entered into force and became binding international law in August 2010. As of December 2010, Australia had signed but not yet ratified the treaty; the United States has refused to sign [79].

The Australian Defence Force outlines its participation in the Iraq War in its 2004 publication, ‘TheWar in Iraq: ADF Operations in the Middle East 2003’ [13]. Australia did not commit ground forces to the invasion, and its participation, codenamed Operation Falconer, was limited to 2,000 military personnel divided approximately equally between the navy, air force, and SAS (Special Operations). SAS units entered Iraq and were engaged in covert operations to identify and dismantle Iraq’s supposed ‘weapons of mass destruction’, primarily in western Iraq. The navy helped clear the Northern Persian Gulf of mines, ensured Iraqi leadership did not escape, and contributed to the overall coalition naval blockade. The RAAF supplied 14 FA18 Hornet fighter jets, three Hercules transport planes, and P3 Orion surveillance aircraft. The Hornets carried air-to-air weapons, surface missiles, laser guided and conventional bombs. Their role initially consisted of providing support for mid air refuelling and other operations where US/UK fighter planes were particularly vulnerable.

Within a week of the ‘Shock and Awe’ aerial bombing campaign which began on 20 March, 2003, the RAAF’s FA18 Hornet fighter jets’ primary role was to provide close air support for US ground forces engaged in battle on their way north towards Baghdad [13]. On April 7, ADF Brigadier Mike Hannan announced that the Hornet’s targeting policy was exclusively focused ‘only on engaging targets in direct support of coalition ground forces’ [39].

These ground troops that the RAAF Hornets were ‘in direct support of ’ fired extensive cluster bomb munitions on civilians. A Human Rights Watch investigation found that ‘Unlike Coalition air forces, American and British ground forces used cluster munitions extensively in populated areas … use of these weapons [cluster munitions] was widespread along the battle route to Baghdad’ [27: 80], with significant numbers of civilian casualties in southern Iraq [30] including al Hilla, Najaf, Kerbala, Nasiriyah, and Baghdad, as examined below.

The daily ADF briefings given to journalists from this time [2] did not disclose specific battles or locations in which the Hornets were involved. They did, however, make it clear that the RAAF Hornets were giving direct air support to US ground forces along the battle route north to Baghdad. ADF media briefings on April 1 and April 4 are typical:

April 1:
‘QUESTION: And the bombing on the outskirts, are we involved in the battle for Baghdad now?

GENERAL [ADF CHIEF PETER] COSGROVE: Well, we are, because we’re supporting the forces which are directly confronting Iraqi divisions on the
outskirts of Baghdad. We’re supporting those forces. So, yes, the bombing missions our planes are doing are directly in support of military operations
designed to step right up to Baghdad’ [24].

And April 4:
BRIGADIER MIKE HANNAN: ‘Now the issue with them [Hornets] is that they’ve been flying in that southern area of Iraq supporting the Coalition forces that are fighting in that area and attacking those, particularly those Republican Guard, and other Iraqi forces operating in the south’ [40].

In this area of Iraq, on the outskirts of Baghdad, many civilians were killed by cluster bomb munitions fired primarily by US ground troops. On 31 March, 48 people were killed, including many children, and more than 300 injured in a cluster bomb attack at al Hilla (also spelled Hillah, Hilya), 80 km south of Baghdad. At least 250 Iraqis were killed and 500 wounded over 17 days from late March, most the victims of cluster bombs [29].

Roland Hugenin-Benjamin, a spokesperson for the International Committee of the Red Cross in Iraq, described what happened in Hilla as ‘a horror, dozens of severed bodies and scattered limbs’ [29]. UK journalist Anton Antonowicz reported from a Hillah hospital:

Among the 168 patients I counted, not one was being treated for bullet wounds. All of them, men, women, children, bore the wounds of bomb
shrapnel. It peppered their bodies. Blackened the skin. Smashed heads. Tore limbs. A doctor reported that ‘All the injuries you see were caused by cluster bombs…The majority of the victims were children who died because they were outside’ [10].

The cluster bomb attack on al Hilla received international media attention, and was condemned by Amnesty International and Britain’s Diana Fund, founded by Britain’s Princess Diana to stop international land mine use [3, 4].

On 28 March, 36 civilians died from cluster munitions in Najaf (160 km south of Baghdad) and another 40 on April 2. A hospital survey of Najaf in mid April 2003 listed 378 dead and at least 920 injured [27: 88, 55, 6]. At least 405 civilians, including 169 children, were killed and 900 injured in Nasiriyah, further south. Most died in the extensive ground battle from the start of the invasion through 31 March [27: 132], with extensive use of cluster munitions [16, 54].

On April 2–3, hospital officials reported at least 43 civilians were killed during US attacks on Republican Guard units in Aziziyah and the nearby village of Taniya, with many of the dead being children [11]. At least 35 died at Kerbala, most from cluster bombs, after the city fell to US forces on April 6 [88]. These are official hospital death figures, undoubtedly underestimates; many civilian deaths went unreported, as many who died never made it to a hospital or a morgue.

The ADF consistently and emphatically stated that the RAAF was not involved in the extensive aerial bombing and cluster bomb munitions attacks on Baghdad. However, under the legal doctrine of common purpose [15, 22], senior Australian officials are responsible for those attacks, as well as for the March 28 US missile attack on Baghdad’s Al Nasser market, which killed at least 58 people, including many women, children and the elderly [59].

After first categorically denying they had used cluster munitions, the US then claimed that the high incidence of civilian deaths was because the Iraqis sited military installations- primary targets for US bombs- near civilian centres [88]. This is debatable, as eye witnesses in Hilla claimed the Iraqi military had fled before the cluster bomb attack [23]. Karbala civil-defence chief Abdul Kareem Mussan was quoted as saying that his ‘men are harvesting about 1,000 cluster bombs a day in places [US Military] said were not targets’ [88]. Regardless, under Article 85, 3(b) of the Geneva Conventions (Protocol 1), it is a war crime to launch ‘an indiscriminate attack affecting the civilian population in the knowledge that such an attack will cause an excessive loss of life or injury to civilians’ [32].

Cluster bomb use in populated areas also violates Article 48, which protects civilians from military attack, and Article 51, which prohibits indiscriminate
attacks. Section 3(b) (Article 51) defines indiscriminate attacks as ‘those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction’. Section 4(a) prohibits any ‘attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’ [33].

Defence Minister Robert Hill was questioned directly regarding the Coalition’s use of cluster bombs on Channel 10’s Meet the Press on April 6. He made it clear that Australia did not actively oppose their use by the US and UK [61]:

‘DEBORAH SNOW: Minister, I would like to ask you a question about cluster bombs which have been inflicting some horrendous injuries, it seems, in parts of Iraq–including segments of the civilian population. I know that Australia doesn’t use them, or assist in their use, so you’ve said, but do you actually condone the use of these weapons by our coalition partners the US and the UK in the Iraqi situation?

ROBERT HILL: I don’t think that the Americans have actually acknowledged using them…

DEBORAH SNOW: The British have.

ROBERT HILL: They have acknowledged, have they?

DEBORAH SNOW: As far as I am aware.

ROBERT HILL: Anyway, where it is possible to use an alternative munition, then we would prefer it. There are obviously aspects, in relation to cluster
bombs, that we don’t approve–and that is why we don’t use them and we don’t facilitate the use of them. Where there is not an alternative, that becomes a very difficult issue because we are in a conflict where Australian and other coalition lives are at risk. We want to achieve our goals as quickly and safely is possible.

DEBORAH SNOW: Have you not taken steps to try to ascertain whether they are being used or not, and if so made certain representations as to how you think they should be used, given that we are perceived, at least in the Arab world, as a part of the force that is using these weapons?

ROBERT HILL: No, I haven’t done that. As I just said to you, if our coalition allies believe that they have no other alternative to safely and effectively
achieve the mission, I am not going to condemn them for making that decision.’

Under the international legal doctrine of command responsibility, government and military officials can be held liable if they knew, or should have known, that anyone under their command was committing war crimes and they failed to prevent them [53, 56]. This doctrine of command responsibility is codified in Article 28 of the Rome Statute of the International Criminal Court. Further responsibility is specified under Article 28(a) regarding crimes committed by forces under their command if they ‘either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes’ [82].

Despite direct knowledge of their widespread use and lethal effect on Iraq’s civilian population, Hill still refused to condemn, or even question, their use by Australia’s allies. Nor did he act to stop the RAAF’s direct cover for US troops firing cluster munitions on heavily populated civilian areas. Hill, former Australian Defence Force head General Peter Cosgrove, and Brigadier General Mike Hannan, and other senior Australian ministers were direct participants, rather than simply accomplices, in this large scale killing of civilians. They should be tried accordingly for war crimes, in particular for violations of the Geneva Conventions which protect civilians and prohibit indiscriminate attacks on civilian populations, and as per Australia’s ratification of the Rome Statute of the International Criminal Court.


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