Are the no-fly zones deployed by the United States and Britain over Northern and Southern Iraq a violation of international law? If so, is a citizen of the United States legally authorized to attempt to prevent their enforcement, even by trespassing on a military base?
For several months, activists who formed the Iowa Coalition to End War Crimes Against Iraq talked about the probability of war crimes perpetuated by the United States against Iraq.
On March 4, 2000, they found an opportunity to do something about it.
Twenty-two people formed a human blockade across the entrance at the Iowa Air National Guard and for a few minutes, disrupted normal operations for the military. That included drawing attention to the preparation of the Iowa Air Guard for their fourth trip to Turkey, where they participate in Operation Northern Watch over the skies of Iraq. All 22 demonstrators were arrested and several spent the night at the Polk County jail.
Four of the demonstrators - Michael Sprong, Jean Basinger, Rita Hohenshell, and Brook Heaton - pled not guilty and demanded jury trials. To their surprise, a Polk County prosecutor gave them an opportunity to present their case to a jury in Des Moines. A deal was struck between the prosecution and defense to drop the charges against all of the defendants except Michael Sprong, guaranteeing a public trial.
Thirty supporters, some of whom were arrested with Sprong on March 4, packed the court-room for testimony that included an appearance by Richard A. Falk of Princeton University.
Falk, a friend of Edward Said and the late Eqbal Ahmad, has authored textbooks on international law. He has appeared on behalf of activists in courtrooms across the United States, arguing citizens have a responsibility to demand that the government obey international law. His testimony helped win acquittals for defendants at the state level, including defendants who blocked the transportation of Trident Missiles in Washington.
On June 5, 2000 "The State of Iowa v. Michael Sprong" began with testimony from defense attorney Sally Frank of Des Moines. Frank argued that her client, Sprong, had attempted legal remedies to confront authorities about the illegality of the activities of the Iowa Guard in Iraq. He exchanged a series of letters with Gov. Tom Vilsack, passed out leaflets, and participated in demonstrations at the state capitol.
When this failed, Sprong tried to speak to members of the Air Guard at the base to convince them that the no-fly zones violated the United Nations Charter. He trespassed on to the base to tell them a war crime was being committed. "I was there to enforce the law," Sprong argued.
For Michael Sprong, this was new territory. As a member of the Catholic Worker for several years, he has followed his conscience to participate in peaceful demonstrations against war-making. In 1988, he participated in a gathering outside of the Iraqi Embassy in Washington D.C. protesting the use of chemical weapons by Saddam Hussein. "We could not get the State Department at that time to sanction Iraq, despite our efforts," he testified.
It was a conversation with some law professors that provided him another angle to challenge his government. "One professor told me that in the case of the no-fly zones my conscience just happened to be in coincidence with international law."
So what are the no-fly zones?
The United States, Britain, and France set up no-fly zones after the Gulf War that cover half the territory of Iraq. France left the coalition after the U.S. and Britain bombed Iraq in December, 1998. According to trial testimony, the rules of engagement are when U.S. and British jet fighters assess Iraqi radar is locked on their planes, they fire at them.
The Associated Press quoted Iraqi sources that reported 285 Iraqi civilian casualties since 1998 (4-21-2000, Des Moines Register, p. A2 "Reports of Casualties in No-Fly Zones.") John Pilger's documentary "Paying the Price-Killing the Children of Iraq" tells the story of a family in Bashiqua that lost a shepherd, his father, his four children and his sheep by British or American aircraft, which made two passes at them on May 1, 1999. Pilger said he stood in the cemetery where the children are buried and their mother shouted, "I want to speak to the pilot who did this."
Outside of Washington and London, it is difficult to find support that the no-fly zones have a basis in international law. In a search on the web of coverage on the no-fly zones, I found that 11 media agencies -- including the NY Times, CNN, Reuters, the Associated Press, Washington Post, British Broadcasting Company, Inter-Press Services - rightly reported that the no-fly zones are not authorized by the United Nations and are set up by the U.S. and Britain. Despite this finding, I could not find one news agency that took an editorial stand against them.*
During the trial, Lt. Col. Steve Young, an attorney for the Air Guard, and Gregory Sisk, who worked for the U.S. Justice Department (1986-1989), made arguments for the no-fly zones. Young said they were "pursuant to a de'marche issued by the Western governments to Iraq advising it that the no-fly zone would be enforced by denying Iraq the use of combat against its citizens" (it should be noted when the Kurds in the North and Shiites in the South rose up against the government of Iraq in 1991 they were denied military help from the West and their rebellion was crushed, exposed by Pilger and Chomsky).
Though a `government to government communiqué' is not independent legal authority, in this case "the underlying legal basis was supplied by UNSCR 678," according to the Air Force attorney. This was the resolution set up under Chapter 7 of the UN Charter and authorized the original use of force to expel Iraq from Kuwait.
According to Sisk, a Drake University law professor, as a result of the wording in the preamble of 678 "to restore international peace and security in the area" the use of force against Iraq can continue. In a response to a question, Young testified 100 years from now if UNSCR 678 is not rescinded the U.S. could use force against Iraq. In other words, Iraq lost its sovereignty, probably forever.
Falk took the stand as an expert witness to argue that the use of force requires a United Nations Security Council Resolution that has to be explicit. The UN, after all, was established to prevent war.
Falk testified, "There is no authorization that provides the authority to enforce the no-fly zones." Though UNSCR 678 gave the U.N. the authority to use force to remove Iraq from Kuwait, UNSCR 687 established a cease-fire, terminating the earlier authorization to use force.
If the United States and Britain wanted to use force, they need a new resolution explicitly authorizing it. . In light of the recent attitude of the Security Council against the no-fly zones, it is doubtful they could be successful. If the General Assembly could vote, Falk testified, the no-fly zones would be abolished.
After the state suggested it was "only his opinion" the no-fly zones were illegal and that other law professors argued they were legal, Falk responded, "It is difficult to find any experts on international law outside of the United States that take the position that the no-fly zones are legal." He explained, "Many international law experts see their role as rationalizing U.S. policy, no matter what it is."
Prosecutor Fred Gay disputed Falk, asking him if he was saying these individuals were not independent scholars. Falk responded, "You can usually find out how independent one is to the degree they have questioned U.S. policy … some of the individuals who argue a legal basis for no-fly zones have never done that."
Falk said citizens are responsible to force government to comply with international law, "because it underlies all connections that people have with one another." Article VI of the U.S. Constitution states treaties are the supreme law of the land, and the Supreme Court has ruled customary international law is part of the U.S. judicial process (customary international law is, for example, when courts hold that protection of U.S. property abroad is in accordance with the law).
Falk also raised the question if the United Nations Security Council can violate the U.N. Charter. In the case of the Security Council economic sanctions against Iraq, for example, the Geneva Convention prohibits "starvation of civilians as a method of warfare." (Protocol I, Additional to the Geneva Conventions-1977, Part IV, Section 1, Chapter III, Article 54). The World Court has not decided it has the authority to review contested actions by the Security Council (another reason to support the International Criminal Court of Justice treaty).
Falk testified Sprong's attempt to dialogue with members of the Air Guard was reasonable. "If members of the Iowa Guard knew that it was an illegal policy, they could be accessories to an international criminal act." The statement read by protestor Bill Basinger to members of the Air Guard, shown on a video tape of the demonstration to the courtroom, began: "We are bound by conscience and international law to sound the alarm that a criminal act is unfolding."
Since the no-fly zones have no legal legitimacy, any Air Guard members that kill civilians could be potential war criminals. According to the Law of Land Warfare, Department of the Army Field Manual FM 27-10, "It must be borne in mind that members of the armed forces are bound to obey only lawful orders" (par. 509b, pp. 182-183).
The trial raised questions about our system of checks and balances. Witnesses for the prosecution argued that the Supreme Court will not take a position on decisions made by members of the Executive Branch and Congress in regards to making war. The "political question" doctrine means federal courts refuse to hear cases where citizens argue the government is violating international law in regards to actions such as the invasion of Panama.
The judicial branch, if the testimony of these professors is accurate, has no authority to check the executive branch in matters of war. Perhaps one reason the U.S. objects to the International Court of Justice is that it might compel the judicial branch to take jurisdiction over activities of our soldiers abroad, now virgin territory.
In the end, Sprong was found guilty and received a sentence of 40 hours of community service and one year of probation. The Des Moines Register produced three articles on the trial, including a piece by Reka Basu (6-8-2000, p. 8) that concluded, "Something else was on trial besides trespassing and the legality of our Iraq policy: what it means to be a responsible citizen." Prosecutor Fred Gay stated in his closing remarks that "we need more citizens like Michael Sprong."
Condemnation of the no-fly zones has increased, with France, Russia, and China speaking at the UN in opposition, the irony that those who argue the no-fly zones are legal cite resolutions that three members of the Security Council do not regard as valid.
Meanwhile, the bombings continue and according to the UN, 4,000 Iraqi children die every month as a result of sanctions. In a private conversation, Falk observed, "When Americans don't die, there is no discourse."
*A copy of the Jeffrey Weiss report, "Are the No-Fly Zones Illegal: A look at Media Coverage" is available free of charge on request. Jweiss@afsc.org 515-274-4851
Jeffrey J. Weiss is an adjunct professor of Political Science at Des Moines Area Community College and works for the American Friends Service Committee.