by Jeffrey T. Kuhner
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 for 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.
U.S. General Tommy Franks punches the air before making his speech at a town hall-style meeting, also attended by U.S. Defense Secretary Donald Rumsfeld, not pictured, at Camp As Sayliyah in Doha, Qatar, Monday, April 28, 2003. (AP Photos/Richard Lewis)
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 stop 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 sentenced."
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 said. "It goes well beyond what we could reasonably call criminal behavior."
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 The Hague.
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 ambulance.
“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 of civilians.
? The attack on a civilian bus with an "energy weapon" in the town of al-Hillah, killing at least 10 passengers.