Det danske Fredsakademi
Kronologi over fredssagen og international politik 22. november
2004 / Timeline November 22, 2004
Version 3.5
21. November 2004, 23. November 2004
11/22/2004
HUMANITARIAN LAW GROUPS FILE RIGHTS PETITION AT OAS AGAINST THE
UNITED STATES FOR ATTACKS ON HOSPITALS, CLINICS IN FALLUJA
By Karen Parker
Los Angeles-based Humanitarian Law Project/International
Educational Development (HLP/IED and San Francisco-based
Association of Humanitarian Lawyers (AHL), submitted a petition to
the Inter-American Commission on Human Rights of the Organization
of American States on behalf of “unnamed, unnumbered patients
and medical staff both living and dead” at the medical
facilities in Falluja. The Commission had authority to investigate
human rights violations committed by a member State of the OAS and
to seek remedies for victims.
“Attacks on hospitals and medical personnel are truly
shocking. We hope that this will result in the immediate
improvement of the situation of the patients and staff, to
additional remedies for these victims, and an end to the United
States violations of human rights and the Geneva Conventions in
Iraq,” stated Lydia Brazon, Executive Director of the United
Nations credentialed HLP/IED.
The Geneva Conventions prohibit attacks on any medical facility or
medical personnel, whether civilian or military. “Imagine the
outrage if the opposition in Iraq attacked one of the medical
facilities for American wounded. There would be calls for war
crimes tribunals,” stated Karen Parker, the attorney in this
action. “Rather than being “quaint” as
administration Attorney-General nominee Gonzales has said, the
Geneva Conventions and human rights agreements are meant to prevent
acts of barbarity in war. Besides preventing atrocities, they are
meant to protect GIs from the psychological damage that afflicts
people who carry out this type of action.”
In addition to the evidence already attached to their document, the
Petitioners will submit New York Times photographer Shawn
Baldwin’s photograph of patients lying on the floor with
their hands tied behind their backs, and a number of other photos
and stories about the tragedy. They also informed the Commission
that weapons containing depleted uranium, declared illegal weapons
by a United Nations human rights body, might have been used near
the hospitals, placing the victims at further risk of serious
harm.
The Petition was filed under the Commission’s emergency
provisions, enabling the Commission to order the United States to
undertake measures to prevent “irreparable harm” to
victims. The Petitioners also requested the Commission to visit
Falluja for a first-hand assessment.
PETITION
SUBMITTED TO THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
ORGANIZATION OF AMERICAN STATES
BY
THE ASSOCIATION OF HUMANTARIAN LAWYERS
ON BEHALF OF
UNNAMED, UNNUMBERED PATIENTS AND MEDICAL STAFF, BOTH LIVING AND
DEAD, OF THE FALLUJA GENERAL HOSPITAL AND A TRAUMA CLINIC
AGAINST
THE UNITED STATES OF AMERICA
Karen Parker
154 Fifth Avenue
San Francisco, CA 94118
415.668.2752 tel. and fax
415.533.1066 cell
ied@igc.org
Attorney for Petitioners
CONTENTS
BRIEF STATEMENT OF THE CASE
THE ORGANIZATIONAL PETITIONER
ORGANIZATIONAL PETITIONER MEETS ARTICLE 26 REQUIREMENTS
REQUEST FOR ARTICLE 25 PRECAUTIONARY MEASURES
EXHAUSTION OF DOMESSTIC REMEDIES
FACTS
VIOLATIONS
CONCLUSION
DOCUMENTS
Tab 1. Statement of Louise Arbour, United Nations High Commissioner
for Human Rights, 16 November 2004.
Tab 2. B. Dominick, “In Fallujah, U.S. Declares War on
Hospitals, Ambulances,” The New Standard (Australia), 12
November 2004.
Tab 3. “Aid convoy barred from “starving”
Falluja,” Al-Jazeera, 15 November 2004.
Tab 4. M. Georgy, K. Sengupta, H. McGavin, [News stories], The
Independent (UK), 15 November 2004.
Tab 5. United Nations, Emergency Working Group -- Falluja Crisis,
“Up-date Note,” 11 November 2004 and 13 November
2004.
Tab 6. “Hospitals hit as fighting rages in Falluja,” Al
-Jazeera, 9 November 2004.
BRIEF STATEMENT OF THE CASE
On Sunday, 7 November 2004, troops belonging to the United States
Special Forces seized the Falluja General Hospital in Falluja,
Iraq. The hospital patients were taken from their rooms, ordered to
lie on the floor and they had their hands bound behind their backs.
There are also credible reports that a medical clinic was attacked,
killing 20 doctors and unnumbered patients. Survivors are presumed
in urgent need of attention. Organizational Petitioner files this
Petition on an emergency basis as provided by Article 25 of the
Rules of Procedure of the Inter-American Commission on Human Rights
(Rules). Organizational Petitioners allege that the reports of the
impact of that attack on patients and medical staff, in conjunction
with current conditions at the hospital and clinic, if true,
justify Article 25 remedies and constitute violations of Articles I
(right to life, liberty and personal security); Article V (right of
freedom from abusive attacks on personal life); Article XI (right
to preservation of health and well-being); and Article XXV (right
to protection from arbitrary arrest) of the American Declaration of
the Rights and Duties of Man, adopted by the 9th International
Conference of American States (1948)(American Declaration).
The United States is a member of the Organization of American State
and is therefore bound by the American Declaration.
Petitioners have not raised the issues presented herein in a forum
that would invoke the duplication doctrine set out in Article 33 of
the Rules.
THE ORGANIZATIONAL PETITIONER
The Association of Humanitarian Lawyers (AHL) is a California
Organization duly registered with the California Secretary of
State, and has private, non- profit status under United States law.
Formerly known as International Disability law, its mission is to
educate about and seek compliance with human rights and
humanitarian law. AHL specifically seeks to protect the rights of
persons injured or disabled in armed conflict and to protect
medical personal, medical facilities and medical supplies from
harm.
ORGANIZATIONAL PETITIONER MEETS ARTICLE 23 REQUIREMENTS
Organizational Petitioner alleges that it complies with Article 23
of the Rules, which allows petitions on behalf of third persons by
groups legally recognized in a member State of the Organization of
American States. Organizational Petitioner assets that the to-date
unnamed and unnumbered Individual Petitioners are precisely the
persons that AHL seeks to protect and that the acts in questions
are those that AHL seeks to prevent or remedy.
REQUEST FOR ARTICLE 25 PRECAUTIONARY MEASURES
Article 25 of the Rules provides for measures to be undertaken in
emergency situations. This rules provides, in pertinent part:
1. In serious or urgent cases, and whenever necessary according to
the information available, the Commission may, on its own
initiative or at the request of a party, request that the State
concerned adopt precautionary measures to prevent irreparable harm
to persons.
Organizational Petitioner is convinced that the situation is
sufficiently grave to assume that surviving Individual Petitioners
are at great risk of loss of life and other irreparable harm.
EXHAUSTION OF DOMESTIC REMEDIES
Petitioners allege excuse from exhaustion of domestic remedies as
required by Article 31 of the Rules because this is an urgent case
governed by Article 25 of the Rules. Petitioners also assert that
United States domestic law does not provide remedies for victims of
violations of human rights that occur during armed conflict and
will make a showing of that if so requested by the Commission.
FACTS
Respondent State does not deny that at about 10:00 p.m. Sunday,
November 7, 2004 its Special Forces stormed Falluja General
Hospital, and both patients and staff were ordered to sit or lie
down. Their hands were then bound behind their backs. The front
page of the San Francisco Chronicle, November 8, 2004 has a
photograph taken by N.Y. Times photographer Shawn Baldwin at the
hospital showing the United States forces guarding a number of
patients who are lying on the floor with their hands bound. This
operation was admitted by Respondent to be among the first one
undertaken by its military forces in its goal of seizing Falluja
away from the hands of the enemy. There is strong evidence to
indicate loss of life, injury, worsening of medical condition and
other ills for the patients and staff at this hospital due to the
conduct of Respondent.
Petitioners allege that the information regarding the clinic is
sufficiently reliable to indicate that the Respondent’s
military forces carried out an aerial bombardment on a medical
trauma clinic, killing perhaps up to twenty doctors and unnumbered
patients. In this regard Reuters has issued a photograph of a sign
reading “Nazzai Emergency Hospital” that is all that
remains of that facility and two adjacent building used my medical
care providers. The opposition forces have no capacity for aerial
attacks.[1] American officials have allegedly defended these acts
by claiming that Falluja General Hospital is an “enemy field
hospital” but Petitioners assert that facts available to the
Respondent clearly indicate that this facility is a civilian one,
and statements issued at other times by Respondent indicates this
knowledge.[2]
There are numerous accounts, as well as photographs,[3] of American
forces shooting at or destroying ambulances.
On Monday, November 15, 2004 the Iraqi Red Crescent allegedly tried
to bring badly needed supplies to injured civilians, including the
patients, but were barred from doing so. Its convoy retreated to
the surrounding camps of internally displaced persons.
There is clear evidence that Abrams tanks are being used in
military attacks near and around the medical facilities, thereby
possibly further endangering patients and remaining medical staff
as these tanks have been used to fire weapons containing depleted
uranium. Depleted uranium weapons are radioactive, have a
devastating effect on life and health of all persons in the area,
and will continue to have a deadly effect long after the conflict
is over. It is for this reason that in 1996 the United Nations
Sub-Commission on the Promotion and Protection of Human Rights
found use of these weapons “incompatible” with existing
human rights and humanitarian law standards.
The urgency of the situation is indicated by an appeal of the
United Nations High Commissioner for Human Rights, who issued a
statement in this regard.
VIOLATIONS
Petitioners allege the above acts show violations of Articles I
(right to life, liberty and personal security); Article V (right of
freedom from abusive attacks on personal life);
Article XI (right to preservation of health and well-being); and
Article XXV (right to protection from arbitrary arrest)
War can provide an exception to certain of these rights. For
example, an enemy soldier killed in battle does not have a right of
action under the right to life provisions in human rights law. In
some instances civilian casualties may be viewed as
“incidental” ones and not, therefore, violations of
either human rights or humanitarian law. However, when a military
force carries out an illegal military action, then the resulting
violations are simultaneously violations of human rights and
humanitarian law. Thus, in order for the Respondent Government to
defend against the charges brought by Petitioners, applicable
humanitarian law must be consulted to see if there are exceptions
that relate to this Petition. There are not.
The violations alleged by Petitioner result from military
operations that are specifically forbidden in applicable
humanitarian law. Article 18 of Geneva Convention IV of 1949
provides, in pertinent part:
Civilian hospitals organized to give care to the wounded and sick,
the infirm and maternity cases, may in no circumstances be the
object of attack, but shall at all times be respected and protected
by the Parties to the conflict.
Article 19 of the same convention provides:
The protection to which civilian hospitals are entitled shall not
cease unless they are used to commit, outside their humanitarian
duties, acts harmful to the enemy. Protection may, however, cease
only after due warning has been given, naming, in all appropriate
cases, a reasonable time limit, and after such warning has remained
unheeded.
The fact that sick or wounded members of the armed forces are
nursed in these hospitals, or the presence of small arms and
ammunition taken from such combatants which have not yet [been]
handed to the proper service, shall not be considered to be acts
harmful to the enemy.
The facts clearly show that Falluja General Hospital was at all
times a civilian hospital and that the Respondent had to have known
this. Further, Respondent has publicly admitted that the attack on
Falluja General Hospital was a key part of its first phase of
military operations to seize Falluja. Various accounts attribute a
rational of preventing opposition forces from obtaining medical
care. In any case, there was clearly no Article 19 warning. And
while some enemy wounded were in the hospital, Article 19
provisions to not allow that facts to be construed an act harmful
to the enemy. Thus, the Respondent may not invoke an exception to
the right to life and security of the person and other American
Declaration Article I rights.
Even if Falluja General Hospital were an enemy field hospital,
Respondent could not legally carry out what it did. This is clear
from Article 19 of Geneva Convention I of 1949, which provides, in
pertinent part:
Fixed establishments and mobile medical units of the
[enemy’s] Medical Service may in no circumstances be
attacked, but shall at all times be respected and protected by the
Parties to the conflict.
Petitioners further conclude that the attacks on the medical
facilities show violations of the right to freedom from abusive
attacks as provided in Article V, violations of the right to health
as provided in Article XI, and, as many patients and doctors were
detained for some periods of time, a violation of the right freedom
from arbitrary arrest as provided in Article XXV. The failure of
the United States to provide for or allow provision for immediate,
emergency relief for the unnamed, unnumbered Petitioners is an
on-going violation of Article XI, and places them all at great risk
of loss of live, irreparable harm and further violations. The
possible use of illegal weapons containing depleted uranium would
indicate an aggravated violation of the right to health and
well-being as hospital patients would likely be particularly
effected by exposure to DU radiation.[4]
CONCLUSION
Petitioners respectfully request the Commission to take appropriate
action on this Petition with due consideration of the urgency of
the matter. At a minimum, Petitioners urge the Commission to
require of the Respondent full compliance with the American
Declaration as it is to be interpreted during armed conflict
invoking humanitarian law. Petitioners also request the Commission
consider an on-site investigation under its Applicable authority.
Petitioners also request leave to submit additional documentation
as this becomes available, and asserts a willingness to address any
issue raised by the Commission for further examination or
argument.
Respectfully submitted,
Karen Parker, J.D.
Attorney for Petitioners
The Los Angeles-based Humanitarian Law Project/International
Educational Development, a UN-credentialed non-governmental
organization has joined as "Organizational Petitioner." HLP/IED
works to protect victims of armed conflict and for full compliance
with humanitarian law.
[1] Petitioners assume that Nazzai Emergency Hospital is the
“trauma clinic” referred to in other accounts, but it
may be that two clinics were attacked.
[2] As will be apparent under the discussion of the violations,
Petitioners would still file this Petition even if Falluja General
Hospital were an “enemy field hospital.”
[3] Petitioners are collecting photographs that will be submitted
separately.
[4] If the facts show that DU weapons were in fact used in Falluja,
Petitioners will provide the Commission with United Nations
resolutions and reports on these weapons.
11/22/2004
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