HUMANITARIAN LAW GROUPS FILE RIGHTS PETITION AT OAS AGAINST THE UNITED
STATES FOR ATTACKS ON HOSPITALS, CLINICS IN FALLUJA
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.
SUBMITTED TO THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
ORGANIZATION OF AMERICAN STATES
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
THE UNITED STATES OF AMERICA
154 Fifth Avenue
San Francisco, CA 94118
415.668.2752 tel. and fax
Attorney for Petitioners
BRIEF STATEMENT OF THE CASE
THE ORGANIZATIONAL PETITIONER
ORGANIZATIONAL PETITIONER MEETS ARTICLE 26 REQUIREMENTS
REQUEST FOR ARTICLE 25 PRECAUTIONARY MEASURES
EXHAUSTION OF DOMESSTIC REMEDIES
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
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
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.
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
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. 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.
There are numerous accounts, as well as photographs, 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
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
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.
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.
Karen Parker, J.D.
Attorney for Petitioners
Courtesy of Dirk Adriaensens