Letter to the Prime Minister from Slater Gordon, solicitors, on behalf of
the Victorian Peace Network
20 March 2003
The Hon John Howard MP
Prime Minister
Parliament House
Canberra ACT 2600
Re: Complicity in potential war crimes
We act on behalf of 41 affiliates of the Victorian Peace Network (listed in
Appendix A, attached).
Our clients are concerned that violations of international humanitarian law
are likely to be perpetrated by United States military forces when the
proposed military action in Iraq proceeds. In that event, and given that
your government has committed Australian forces, we are instructed to put
you on notice that our clients will seek to have you and senior ministers
of your government investigated and, if appropriate, prosecuted for being
complicit in excessive and unjustifiable loss of civilian lives and
devastation of non-military infrastructure.
1. Crimes under the International Criminal Court Statute (the "ICC Statute")
Since the International Criminal Court (the "ICC") was established in July
2002, jurisdiction has been created over "the most serious crimes of
concern to the international community as a whole". These include crimes
against humanity and war crimes (Articles 5, 7 and 8 of the ICC Statute).
Like offences have been created in domestic law by Division 268 of the
Criminal Code Act 1995 (Cth) (the "Code"). For the reasons set out in
section 5 below, our clients hold grave fears that the proposed military
action by US forces will involve the commission of the war crime of
"intentionally launching an attack in the knowledge that such attack will
cause incidental loss of life or injury to civilians or damage to civilian
objects or widespread, long-term and severe damage to the natural
environment which would be clearly excessive in relation to the concrete
and direct overall military advantage anticipated". (Article 8(2)(b)(iv);
see also s268.38 of the Code).
Our clients are not alone in this view. Many of Australia's foremost
international law experts have made a warning to similar effect (see
Appendix B).
2. Complicity in war crimes
You and your senior ministers can be held personally and criminally
responsible for complicity in crimes committed during a military campaign.
Article 25 of the ICC Statute provides for individual responsibility of
persons who commit a crime within the ICC's jurisdiction and attributes
criminal responsibility in a number of circumstances, including where a person:
* orders, solicits or induces the commission of a crime;
* for the purpose of facilitating the commission of a crime, aids, abets or
otherwise assists in its commission or attempted commission, including by
providing the means for its commission; or
* intentionally contributes to the commission or attempted commission of a
crime by a group of persons acting with a common criminal purpose.
Division 11 of the Code is to similar effect in that it provides, inter
alia, that:
* a person who aids, abets, counsels or procures the commission of an
offence is guilty of that offence; and
* a person who incites the commission of an offence is guilty of an offence.
Moreover, the ICC Statute specifically provides that official capacity is
irrelevant to criminal liability:
"official capacity as a Head of State or Government, a member of a
Government or parliament, an elected representative or a government
official shall in no case exempt a person from criminal responsibility
under this Statute, nor shall it, in and of itself, constitute a ground for
reduction of sentence". (Article 27)
3. Information will be provided to ICC Prosecutor
The ICC Statute provides that the ICC Prosecutor may initiate
investigations on the basis of information on war crimes, shall analyse the
seriousness of information received, may seek additional information from
non-government organisations ("NGOs") and other reliable sources and may
receive written or oral testimony (Articles 13(c) and 15).
With a view to providing information to the ICC Prosecutor, our clients are
committed to inviting, receiving and collating any evidence of war crimes
committed by US forces in Iraq and of complicity in any such crimes by you
and senior ministers of your government. Our clients propose to co-operate
with NGOs and citizens' groups in other countries which will also be
monitoring the actions of US forces in Iraq and any complicity of their
governments in those actions.
Pursuant to Article 17(1) of the ICC Statute, a case may proceed before the
ICC unless Australian authorities have investigated the possible commission
of an offence and have prosecuted that offence or made a genuine decision
not to prosecute, or have shown themselves to be unable or unwilling to
launch an investigation or prosecution. Accordingly, if there is evidence
of US war crimes in Iraq, unless an Australian investigation into whether
you or your senior ministers will have been complicit in the commission of
those war crimes is initiated following the military action, our clients
will take steps to ensure that relevant information is referred to the ICC
Prosecutor for the purposes of an investigation under the ICC Statute, as
set out below.
4. Ad hoc Committee on War Crimes
Given our clients' commitment to ensure the accountability of persons who
may be responsible for the commission of such grave crimes, they have
decided that an ad hoc Committee on War Crimes constituted by a panel of
independent senior counsel will be established in Australia.
This Committee would be responsible for assessing the evidence of
complicity in any war crimes and crimes against humanity. If the Committee
reaches the conclusion that there are reasonable grounds for suspecting
that you or other senior ministers have been complicit in such crimes
perpetrated in Iraq, the Committee will forward the information to the ICC
Prosecutor and will urge the Prosecutor to initiate an investigation. If
the Prosecutor defers to an Australian investigation, the Committee will
also provide any such information to the Attorney-General of the day.
Brind Zichy-Woinarski QC (vice-president, International Commission of
Jurists Australia - Victorian Section) and Chris Maxwell QC (past
president, Liberty Victoria) have agreed to sit on the Committee.
5. Grounds for fears that crimes will be perpetrated
Our clients believe their fears about criminal actions in Iraq are well
founded on the basis of both what has occurred in recent military actions
and the likely consequences of the planned attack on Iraq.
(a) Recent military actions
Serious breaches of international humanitarian law have been perpetrated
during recent conflicts. There is strong evidence that the military
strategies adopted and weapons used by the United States forces in the Gulf
War (1991), Kosovo and Afghanistan showed serious disregard for fundamental
principles of international humanitarian law: military necessity, avoiding
unnecessary suffering and proportionality (see Appendix C). Such strategies
and use of such weapons could have justifiably led to war crimes
prosecutions had the ICC been in existence and had jurisdiction at the time.
To highlight one example: in the Gulf War, the targeting of Iraq's
electrical power facilities shut down water purification and sewage
treatment plants, resulting in epidemics of gastroenteritis, cholera and
typhoid, leading to perhaps as many as 100,000 civilian deaths and a
doubling of the infant mortality rate.
Given this history of abuse it is reasonable to suspect that the
anticipated military campaign by United States forces in Iraq will again
involve flagrant disregard for fundamental international principles
applicable to warfare, resulting in serious crimes being committed in
contravention of the ICC Statute. Our clients' main concerns are the
civilian casualties caused by indiscriminate and/or disproportionate
attacks, in addition to the consequent civilian casualties caused by
attacks on the economic infrastructure of Iraq.
(b) Likely consequences of the proposed attack on Iraq
US military officials have reportedly stated that 3,000 "precision-guided
bombs and missiles" would be unleashed in the first 48 hours of the
proposed conflict.
Medact, the British affiliate of the International Physicians for the
Prevention of Nuclear War , has estimated that the proposed war could cause
between 48,000 and 261,000 deaths on all sides within the first three
months, with another 200,000 long term deaths from adverse health effects .
A confidential draft UN document entitled Likely Humanitarian Scenarios
predicts that:
* The war will create an estimated 900,000 Iraqi refugees, 100,000 of whom
will be in need of immediate assistance.
* 500,000 people could require medical treatment as a result of direct or
indirect injuries, based on World Health Organisation (WHO) estimates of
100,000 direct casualties and 400,000 indirect casualties.
* The electricity grid could be severely disrupted, with consequent impacts
on water, sanitation and health sectors.
The legality of the planned US action can only be assessed in the context
of the actual conditions in Iraq.
A recent statement issued by most of Australia's aid agencies pointed out
that Iraq's people are already enduring a humanitarian crisis:
"With Iraq's economy undermined by war and sanctions, up to 16 million
people - more than two-thirds of the population - are dependent on the
food-rationing system set up by the international community. Authoritative
reports indicate that 23% of children in Iraq are already chronically
malnourished. Any military action targeting Iraq's ports and roads would
cause serious disruption to the food distribution system.
"A number of reports by the United Nations and aid agencies working in Iraq
confirm that the water and sanitation systems are in a parlous and
vulnerable state. Clean water supplies, as well as the sewage system,
depend on electricity. If power lines and power stations are targeted,
sewage will not be pumped away and clean water will not be available.
Inevitably, disease will sweep through a population whose child-mortality
rates have already more than doubled in the last decade. Over 70% of
current deaths in Iraq are caused by diarrhoeal and respiratory diseases".
It is against this background that the proportionality of US military
action in Iraq will fall to be assessed. Because of the existing
humanitarian crisis in Iraq, the consequences of any additional damage to
non-military infrastructure will be all the more severe for the civilian
population, with the proposed US military action certain, in our clients'
view, to create a humanitarian disaster in Iraq.
6. Illegality under international law
It should not be assumed from the above that our clients accept that the
proposed use of force in Iraq would be lawful under international law as
asserted by you and your government. On the contrary, our clients believe
that this military action would be a clear violation of international law
and the prohibition on the use of force contained in the United Nations
Charter. In our clients' opinion, none of the Security Council resolutions
on Iraq, including SC Resolution 1441, authorise the proposed military
action. We note that our clients' view is in accord with the position
expressed recently by the United Nations Secretary General, Kofi Annan:
"If the United States and others would go outside the Council and take
military action, it would not be in conformity with the Charter".
7. Conclusion
For the reasons set out above, our clients fear that the proposed US
military action in Iraq is likely to involve the commission of war crimes
on the basis that the disastrous consequences to the civilian population in
Iraq would be clearly excessive when compared to any anticipated military
advantage.
If the US forces do commit such war crimes in Iraq, and given that you and
your government have decided to commit Australian forces to supporting the
US action, our clients believe you and your senior ministers would be
liable to be prosecuted for aiding and abetting the commission of such war
crimes by the US forces.
In those circumstances, our clients would be determined to do everything
possible to see that investigations and prosecutions are pursued.
Yours faithfully,
Marcus Clayton
Partner
Industrial, Employment & Public Interest Unit
SLATER & GORDON
