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.
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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.
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.
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