US attacks in Iraq: legitimate?

In a recent piece on truthout.org, Aggressive War: Supreme International Crime, Marjorie Cohn argues forcefully that the United States has committed a variety of war crimes in the recent attack on Fallujah. She writes, "The Americans destroyed the Nazzal Emergency Hospital in the center of town. They stormed and occupied the Fallujah General Hospital, and have not agreed to allow doctors and ambulances go inside the main part of the city to help the wounded, in direct violation of the Geneva Conventions".

Ms. Cohn describes this basic tenet of international law:

The only two situations where the UN Charter permits the use of armed force against another state is in self-defense, or when authorized by the Security Council. Iraq had not invaded the U.S., or any other country, Iraq did not constitute an imminent threat to any country, and the Security Council never sanctioned Bush's war. Bush and the officials in his administration are committing the crime of aggression.

I generally agree with Ms. Cohn's conclusion that the March 2003 US attack on Iraq was a breach of international law. Furthermore, like Noam Chomsky, I believe that according to the Nuremberg Principles, acts subsequent to the initial Aggression also are war crimes "...when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime."

But I want to bring up for discussion one, two postings by Juan Cole.

The first of these refers to the horrific killing of a wounded Iraqi by a US Marine, in a mosque. Intense reaction has occurred throughout the Arab world, with much of the coverage underlining outrage over the "war crime" represented by this incident.

Cole points out, however, that UN Security Council resolutions were passed unanimously since the March 2003 invasion and conquest of Iraq. Most important is UNSCR 1546, recognizing the interim government of Iraq. I'm left wondering how to interpret the legality of "subsequent acts" under Nuremberg given post facto resolutions that seemingly legitimate the activities of the US military.

Professor Cole is a blogger I admire and respect greatly. His point is that the "legitimacy" of US forces operating in Iraq, flows from the authority conferred by UNSCR 1546. Cole writes:

Let me just clarify my comments. First of all, I did not say that the Iraq war was a legitimate war. It was not. It violated the charter of the United Nations. What I said was that the role of the US military and other multinational forces in Iraq is now legitimate because it was explicitly sanctioned by the United Nations Security Council. This is true. Many readers appear to have forgotten all about UN SC Resolution 1546 (2004), which was adopted unanimously. Here is what the Security Council said about the issue at hand:

9. Notes that the presence of the multinational force in Iraq is at the request of the incoming Interim Government of Iraq and therefore reaffirms the authorization for the multinational force under unified command established under resolution 1511 (2003), having regard to the letters annexed to this resolution;

10. Decides that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, interalia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, interalia, the United Nations can fulfill its role in assisting the Iraqi people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the timetable and program for the political process and benefit from reconstruction and rehabilitation activities;

11. Welcomes, in this regard, the letters annexed to this resolution stating, interalia, that arrangements are being put in place to establish a security partnership between the sovereign Government of Iraq and the multinational force and to ensure coordination between the two, and notes also in this regard that Iraqi security forces are responsible to appropriate Iraqi ministers, that the Government of Iraq has authority to commit Iraqi security forces to the multinational force to engage in operations with it, and that the security structures described in the letters will serve as the for a for the Government of Iraq and the multinational force to reach agreement on the full range of fundamental security and policy issues, including policy on sensitive offensive operations, and will ensure full partnership between Iraqi security forces and the multinational force, through close coordination and consultation...

So, the Marines at Fallujah are operating in accordance with a UNSC Resolution and have all the legitimacy in international law that flows from that. The Allawi government asked them to undertake this Fallujah mission.

To compare them to the murderous thugs who kidnapped CARE worker Margaret Hassan, held her hostage, terrified her, and then picked up a butcher knife, grabbed her by the hair, held her head back, and cut her throat completely through the spinal cord as she screamed with increasing difficulty, is frankly monstrous. The multinational forces are soldiers fighting a war in which they are targeting combatants and sometimes accidentally killing innocents. The hostage-takers are terrorists deliberately killing innocents. It is simply not the same thing.

Cole qualifies his sense that the US Marines are a "legitimate" force in Iraq with the notion that the initial invasion violated the UN Charter. I do not accept that UNSCR 1546 sweeps away the illegality of the initial UN Charter violation. This doesn't seem to be the Professor's exact point and I do not think he wants to absolve the US of bona fide war crimes. However, I'm just not sure you can separate activities "legal" under UNSCR 1546 from those illegal because the invasion was illegal. Perhaps 1546 is itself illegal.

Margaret Hassan
Furthermore, on the sickening Margaret Hassan matter, I don't think we know exactly who killed her. I fully agree with Juan Cole that this act was monstrous. However, take a look at this story by Robert Fisk. Fisk writes,

...when it percolated through to Fallujah and Ramadi that the mere act of kidnapping Hassan was close to heresy, the combined resistance groups of Fallujah -- and the message genuinely came from them -- demanded her release.

So, incredibly, did Abu Musab al-Zarqawi, the al-Qaeda man whom the Americans falsely claimed was leading the Iraqi insurrection, but who has definitely been involved in the kidnappings and beheadings. Other abducted women were freed when their captors recognised their innocence.

But not Margaret Hassan, even though she spoke fluent Arabic and could explain her work to her captors in their own language. If anyone doubted the murderous nature of the insurgents, what better way to prove their viciousness than to produce evidence of Margaret Hassan's murder?

What more ruthless way could there be of demonstrating to the world that the US and Interim Prime Minister Iyad Alawi's tinpot army were fighting "evil" in Fallujah and the other Iraqi cities?

The situation unleashed by the United States in Iraq is so murky that it is not hard to imagine Ms. Hassan's death came at the hands of people wishing to de-legitimate resistance to US aggression while building an image of white-hatted Marines riding in to clean up these horrible people. Professor Cole may have fallen into a bit of a trap here.

Update 23:20: As'ad AbuKhalil has posted today bewildered by the Fisk piece I just cited. The Angry Arab appears to be in full concurrence with Professor Cole on the likely Al-Qa`idah/Zarqawi pedigree of the killers. "They are defaming her on their websites already? And it would not be the first time that they would kill an innocent person). Zarqawi and Al-Qa`idah by the way found ways to justify not only their killing of innocent civilians, but also of innocent civilian Muslims", writes As'ad.