Book Reviews

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NO FIRE THIS TIME: FALSE ACCUSATIONS OF AMEEICAN WAR CFUMES IN THE

PEBSUNGULF'

REWU'ED

BY KElm D. B~RBER**

1. Introduction-Ramsey Clark and The Ftre Thzs Time

"In the exploitation of other peoples, no empire ever matched Amend' wrote former Uluted States Attorney General? Ramsey Clark in hs stndent attack on Amencan mtewentmn in the Persian Gulf War. In Clarks book, The Fire This Time, the United States was at fault for the Persian Gulf War and Saddam Hussein was blameless! Clark claimed that the United States deliberately provoked the Iraqi invasion of Ku-wait4 as a pretext to estabiish a United States presence in the Persian Gulf.' The United States frustrated every effort to negotiate a peaceful settiemem6 The United States conducted a brutal assault against a defenseless Iraq- that vlolated numerous provisions af international law? In response, Clark formed the Coalition to Stop United States Intewention in the Middle EastP and from this organization developed the Com- * Rc\lsn CURK, TXE RRE Tell nilE U S W*R CRIME3 I) THE GLLi (Thunder's Mouth Press 18821 384 oazes. 521 86 (hardcoierl $13 Qb feoftcoverl

..** &nuen e3 a second-year law student whde attending the Lmienlfy of Houston La% School The reirewer preilourly sewed m the United States Army Medicd Corns for eleven y e a .

RUtDISEY CURK. THE RRE THIS TIME L1 S W.4n CRIMES I\ THE GLLF 227 (1982) 'ClarksewedasUnifed Smfea Attome) Generadduring1heL3ndon~ohrc-onadmmiaUaUon SreJahnB Judir.?hrS~ronyeCateqJRamreyC~rh

Hos FarLeJf ConYau Go?.

THE UEU REPLBLIC. Apr 22.1891, at 23i See J m Haaglmd. Romey Clarh Wmng Agozn, WMH Posr. Mar 23. 1883. aLA21

See oiso Cunw. mpm note 1. BL 3 ("e careful look at Mlenem inr~lvemenf ~n the maon re>ealslhalfheU S government. notIraq, baapdmerarparwihillnifor Lhe war ") Id

'SeeCmr s~pl~nofe

1, at227'Seerd'See id at216 Seeakotnfmnofes 176S1andaccompm~ngten(drseusslng~le-gafionslharPreaidentBuphbrokeapromisefolOngHusseinofJordantoallow48 hamto "egotiate asalutlo")rSeetd at207 Seeois~iRfmnotes235-38andaecompm)uylen(dl~cussmgClarksargumenlfhaffherewarnoreal cambafdunngthuwar)iWa notes WB314 and aceompan)mgten (for Clarks rearoning on how Knifed Sfatesforces broke international law andthe acbdappmpnau appheaflonof vlfernanonal law)eRamJeyClark.PriceoJW~rTooH~gh,

EndtlwiVoOne WC~~.USATODAY,

Feb 16,

1901, at 0A

m15510n of Inquln for rhe International Bar Crlmes Tnbunal.-" Thm twenty-two member tnbunal investigated allegations of war climes and unanimously found President Bush. Vice hesldent Quayle, Secretm of Defense Cheney, Charman ofthe Joint Chiefs of Staff Calm Powell. and General Norman Schaarzkapf guilty on all nineteen charges

Some dismiss Clark's allegations as an anti-establishment extremisr." but others acknowledge his status a5 a former United States Attor-ne1 General and give his allegations credibihty.lJ On January 15, 1981 (the date of the United Nations (L S ) deadline for Iraq to xithdraw from Kuluat or face force 9 Lmted States Representative Henry B Gonzalez held a joint nms conference Kith Ramsey Clarklj and the next day introduced five articles of impeachment agunst President Bush

This book renew analyzes Clarks numerous allegations b) comparing them with the facts and international law and addresses the mue of Ramsey Clarlt's credibility

11. A Survey and .4nalyns of the Applicable International Law

.4n understanding of international law IS cntical to determine whether rhe L'mted States breached international law during the Penian Gulf War The L N. Charter establishes the circumstances under which a

nation may use farce." The Geneva Conventions of 1948 are the primaw guidelines of humamtanan law for conduct of international armed con-flict.ls Additionally, all nations are bound by "customary laws of war.""

A 7hhe United iVotiom Charter

"Ulat may be the single most important fundament of world order is reflected in Article 2(4) of the U 4. Charter."2o This promaon requires great restrant by member States in using force to sertle disputesz1 The same article mandates that U.K.members Settle disputes in a peaceful manner.22 This charter also establishes national sovereignty as a sacrosanct pnnciple!l

The U.N.

Charter descnbes at least two situations when nations may lawfully use farce against anather country One circumstance is when the U.N. Security Council detemunes that the U.N. should use force to advance world peace. The Security Council should tw less severe methods f~st,~'hut if the Secunty Council finds lesser measures inadequate then it may authorize farce.26 Micle 43 provides the U.N.authonty to call upon member states to contribute amed farces to advance intern.%-tional peace.2s

Secondly, nations maylamfdlyuse offorceagainst eachotherwhen they react in self defense to an outside artack. Under Article 61, member natiom may act unilaterally m either mdddual or collective self defense when any L' N. member IS attacked by another!'

B h e Geneao Conurnlions ojlS49

The four Geneva Conventions of I2 August 1Q4Q28are the pnncipal

mternatmnal humanitanan law applicable to international m e d conflict 2s One of the basic prm~lsmns of the Geneva Comentions is the pnnciple that the attacker and the defender share responsibility for minimining collateral daniage

To rense the law of warfare, international negotiations culminated m 1Qi7 and proposed additional protocols for the Gene\a Comentians called "Protocol I' and "Protocol IL"8- Protocol I1 applies only to the Protection of \-ictims of !iomnternational Armed Conflicts (e g.. internal conflicts such as revolution or cwll strife within a nation) and has no beanngoninternationalconflictssuchas the Persian GuifVar3'.4lthough Protocol I applies to international m e d conflicts like the Penian Gulf War,>? it was not directly applicable." "lraq and sereral Coalition members, including the United States, Great Bntain, and France are not par-ties to Protocol I therefore it was not applicable during the Persian Gulf

wary Authonues. except Rarnsey Clark. concur with this paint '' The International Court of Justice (ICJ), the "pnnciplejudicial organ of the

Id m 61 See oiso infra nofee I8i-20? and accornpanyng wit (dlicusiing i n l c l ~

51 s

dnictamhcabditb tothe Persian GulfWarand Ramsey Clarksfnlvre Ioe>oo discussthis

ammdconilicf ")

Id st 361ib Lnsed States Department of Defense. Conduct of the Peman Gulf Var Find Report " E 9 "Neither the Llllred Safes nor Iraq elected to became B pen) to Protaeol I to Congress 606 (1882) [heremafter Pentagon Final Report,

Therefore if uaz not applicable to the Penian Gulf l a r ' lnfeld, sup~anote 16 at 115

i. Id See olsu Goldman inpro note 19 at 363 ( The recent15 concluded hoitllltiei ber-e~oLhealliedcoalaian~dlraqurr~acl~js~cexampleofinremaUanal

I e infenrare

United 'iat~ons,"~~found that the 1977 Protocols were not applicable to

the United States during its mhtary and paramilitary actinties aganst Nicaragua 31 Instead, the court held the Umted States to standards enu-merated in the 1949 Geneva Conventions.3g

The scope of Protocol I IS significant because Ramsey Clarks's cantention that the Umted States violated the Geneva Canvenuons depends on his erroneous conmctian that the Umted States and Iraq are bound by Protocol 1." Clark states that "[bJath Iraq and the United States are sig-natories" to Protocol I." Regarding the United States, ths might be tech-nically comect, but it is misleading. The United States representatives to the Protocol signed it when the Conference concluded. but the United States Senate d d not ratify the treaty." Although Clark supports stdct adherence to the constitutional requirements for going to war,u he ig-nores the canstltutional requirement that atreaty be ratlfied by the United States Senate to be Sot only does Clark fai to inform his readers that the United States is not actually a parry to Protocol 1, but he also extensively quotes Protocol I and holds the United States to ths treaty by directly compaIing alleged atrocdies of the United States to wious provisions of Protocol I

C Customary International Law

1 Customary International Law and Pmtocol I-Mi nations are bound by customary international law founded on the general practice of nations.'6 Customan international law governed during the Pemm Gulf

War." The United States accepts customaq international law as binding upon all nations Protocol I IS binding on all nations regardless of ratification to the extent that It reflects or codifies preexisting customaly internauonal law Parts af Protocol I apply to the United States and all other nations because they are customaq intemauanal law,".'a

2 The Pnncipie of Dcscrimination as Customary International

Law-The principle of discrimination requires that civilian populations not be made the targets of attack." The United States accepts the notion of discrinunation,6. but rejects Protocol I's definition since It shifts "the responsbdity for the protection of the civilian population away from the host nation. . almost exclusively onto an attscker."SS The United States biiews this as a change from he traditional and customaq mie that the hast nation has the pnnopai responsibility for protecting its civlhans Protocol I requires that attackers employ all feasible precauuons to mini-mize loss of cinhan life and ~roperry.~~

The members of the diplomatic conference that drafted Protocol I intended "to shift entirely to The attacker the responsibility for civilian casualties incidental to a lauful attack upon a legitimate military objective."'6 Protocol I places responsibility on the attacker even if the defender vlolates other pr~vlsions that

deliberately place the ci\ilian population at nsk j- This is a de\iation from customw international lawF Under the customary law of w-ar the attacker, defender, and The civilian population all share m the ESPO~SI-biiity to differentiate militmy objectives from ciwhan objects with the defender and the indimdual ci\iihan beanng the plimq responsibility jW

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