Franks could be prosecuted by a Belgian court for war crimes in Iraq

WASHINGTON, April 28 (IslamOnline.net & News Agencies) – Suffering from indelible psychological scars for losing their loved ones to the U.S.-led war on their country, Iraqi civilians are preparing to lodge a complaint with a Belgian court against Chief of the U.S. Central Command Gen. Tommy Franks and other U.S. military officials for committing unspeakable war crimes in Iraq, a leading U.S. newspaper reported Monday, April 28.

Representing 10 Iraqis who say they were victims of or eyewitnesses to atrocities perpetrated during the U.S.-led war, Jan Fermon, the Brussels-based lawyer, said the complaint will ask an investigative magistrate to look into whether indictments should be issued against Gen. Franks, the Washington Times wrote.

"The complaint will state that coalition forces are responsible for the indiscriminate killing of Iraqi civilians in Hilla, the bombing of a marketplace in Baghdad , the shooting of an ambulance, and failure to prevent the mass looting of hospitals," Fermon told the Times.

If an indictment is filed against the general and other U.S. officials, they could be convicted and sentenced by a Belgian court on entering Belgium .

" Belgium could issue international arrest warrants, but I don't think we will get to that point," Fermon said.

" U.S. military officials had the authority but did nothing to stop these war crimes from occurring. 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," averred the lawyer.

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 non-citizens anywhere in the world.

"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," said Fermon.

On November 24, 2001 , a Belgian court summoned Israeli Prime Minister Ariel Sharon to appear in a hearing concerning civil suits over his role in the 1982 massacres of up to 2,000 Palestinian refugees in Lebanon in light of a lawsuit filed by the families of the victims.

The complaint, filed on June 18, demanded that Sharon, who was defense minister at the time of the massacres, be indicted for crimes against humanity pursuant to the law of universal competence.

U.S. Furious

The Bush administration, for its part, 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 administration official, speaking on the condition of anonymity, 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.

He claimed 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 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 .

He stressed that 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, he added, has been that of Croatian Gen. Ante Gotovina, whose indictment was based on charges of command responsibility over a 1995 military operation.

The complaint, which Fermon said will be officially filed in about two weeks, will accuse the U.S.-led forces in Iraq of numerous atrocities including failure to prevent the mass looting of hospitals in Baghdad after the fall of Saddam Hussein's regime; firing, according to eyewitness testimony, upon an ambulance; the indiscriminate shooting and wounding of Iraqi civilians; 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.

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, U.S. Secretary of State Colin 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," Powell said.

Amendments to Escape Justice

Washington 's concerns, in effect, 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 Powell over the 1991 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.