Association of Humanitarian Lawyers


SUPPLEMENTAL SUBMISSION
TO THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
ORGANIZATION OF AMERICAN STATES
BY
THE ASSOCIATION OF HUMANTARIAN LAWYERS AND
HUMANITARIAN LAW PROJECT/ INTERNATIONAL EDUCATIONAL DEVELOPMENT
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
Petition No. P-1258-04

Karen Parker
Attorney for Petitioners

CONTENTS

BRIEF STATEMENT OF THIS SUBMISSION

ADDITION OF NAMED PETITIONERS ON A CONFIDENTIAL BASIS

ADDITIONAL VICTIMS AND FACILITIES

SECOND REQUEST FOR ARTICLE 25 PRECAUTIONARY MEASURES

FALLUJA IS WITHIN THE JURISDICTION OF THE UNITED STATES

CONCLUSION

ANNEXES

1. D. Jamail, Iraqi Hospitals Ailing Under Occupation, (Brussels Tribunal, Association of Humanitarian Lawyers, et al., Brussels 2005).

2. S. Ali, “Al-Qaim: Tragedy Beyond Description,” www.brusselstribunal.org

3. S. Ali, “American Troops and Destroying Hospitals Tragedy: Damage beyond Repair,” www.brusslestribunal.org

4. [S. Ali], “Al-Qaim II,” www.brusselstribunal.org

 

BRIEF STATEMENT OF THE CASE

     This submission provides additional information about the continuing crisis in Falluja due to the United States assault on medical facilities beginning November 8, 2004. In addition it address legal issues that Petitioners consider important as this case progresses at the Inter-American Commission on Human Rights (the Commission).

ADDITION OF NAMED PETITIONERS ON A CONFIDENTIAL BASIS

     This public version of the “Supplemental Submission” does not contain the text due to the requests for confidentiality. The attorney for petitioners has also omitted in the rest of this “public” version, any information that might suggest a source of information who requests confidentiality. Under the confidentiality rules, the OAS Inter-American Commission on Human Rights will not transmit to the Respondent Government names or other means of identifying persons who might be at risk of retaliatory measures.

ADDITIONAL VICTIMS AND FACILITIES

     While the main focus of this Petition has been on the situation in Falluja, we submit evidence of the situation of medical care outside Falluja to illustrate that those injured or sick in Falluja have no viable alternatives for medical care. Petitioners also show subsequent attacks on hospitals outside of Falluja to show a purposeful intent by the United States forces to damage Iraq’s medical infrastructure in any area where the opposition forces could reasonably be expected to seek medical care and to show the purposeful obstruction with medical care for civilians and combatants alike.1

     Al-Amiriyat al-Falluja, about 10 kilometers from Falluja, was raided by United States forces on 29 November 2004. The medical personnel were handcuffed and interrogated. Many allege that they were tied up and beaten. The hospital’s ambulances were smashed or shot at, rending them useless, allegedly to prevent relief operations in Falluja proper.

     The clinic in the Jumaria Quarter of Falluja was attacked and its ambulances shot at, injuring a driver and killing a volunteer who came to help him.

     There is independent verification that Nazzal Emergency Hospital (incorrectly identified as Nazzai Emergency Hospital in Petitioners’ first submission of 18 November 2004) was completely destroyed.

     Al-Qaim hospital was partially destroyed by United States forces beginning on May 2, 2005. Two ambulances and another hospital vehicle were completely destroyed. The many civilian casualties were allegedly mostly women and children. (Annex 2).

     On May 7, 2005, Haditha Hospital came under attack with troops, tanks, helicopter. According to a doctor there, “troops entered the hospital and fighters raided the hospital around 9:30 firing on everything and everybody. , , , [One] building hs to be rooted and rebuilt again.” Further damage was don eon May 23, 2005. It is not known how many people were killed or wounded. (Annex 3).

     On June 20, 2005, the director of Al-Qaim Hospital issued an urgent appeal to the international community to lift the siege and to evacuate the wounded. (Annex 4.).


SECOND REQUEST FOR ARTICLE 25 PRECAUTIONARY MEASURES

     Reliable information indicates that the situation of the victims continues to be life-threatening for the survivors of the assault on Falluja’s medical facilities. There is not adequate food or water to sustain health, and there has apparently been little or no clean-up of the depleted uranium weapons and residue. Thus as people come back to Falluja, their future health maybe severely compromised. The United States, as the party responsible for health care for Falluja, is abjectly failing its duties under the Geneva Conventions in this regard.2 We view that the on-going situation in Falluja represents a grave breaches under Geneva Convention IV, Article 147, which includes “willfully causing great suffering or serious injury to body or health” and “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” on the enumeration of such violations.

FALLUJA IS WITHIN THE JUSRISDICTION OF THE UNITED STATES

     International forums addressing violations of human rights law by States that occur outside its official territory and to persons not its own citizens have been unanimous in accepting what is frequently referred to as the “extraterritorial” application of human rights law.3 This Commission itself, in a case previously brought by the Association of Humanitarian Lawyers (then International Disability Law) and Disabled Peoples’ International, admitted our petition against the United States for attacking the hospital for mentally ill and mentally retarded in Grenada. (Disabled Peoples’International, et.al. v. United States, Case 9213, 1987 Ann. Report 184, OEA/ser.L/V/II.71, doc.9 rev.1, 1987).4

     The European human rights system has also upheld the extraterritorial application when the European Commission issued its opinion in Cyprus v. Turkey. (Cyprus v. Turkey, Application No. 25781/94, judgment of 26 April 1979, Series A, No. 30). Subsequently, the European Court found that Kurdish leader Abdullah Ocalan was within the jurisdiction of Turkey at the time that they seized him in Kenya. (Eur. Ct. H.R., Application 46221/99, judgment of 12 March 2003.)5

     The Human Rights Committee has issued numerous Concluding Observations involving extraterritorial application of human rights involving, inter alia, Syria in Lebanon (CCPR/CO/71/SYR) and Israel in the Occupied Territories (CCPR/CO/ 78/ISR) and has addressed the issue in cases such as Lopez Burgos.6

     In defending the extraterritorial application of human rights law, regional forums and the United Nations treaty bodies (primarily the Human Rights Committee) generally address three criteria: (1) territorial control by the State in question of the State of the victims;7 (2) control over the physical bodies of the victims or petitioners;8 and (3) control over the situation in which the violations occurred.9

     The situation in Falluja meets all three of these criteria. First of all, at the time of the events cited in this Petition, Iraq as a whole was effectively under the control of the United States. Elections had not yet been held, and the United States Authority was the executive power. In this sense, Iraq was then an occupied territory of the United States. Further, as the military power carrying out the acts cited in this petition, the United States was in effective control of the victims -- whether living or dead. Third, only the United States had control over the situation in Falluja in which the violations occurred.

CONCLUSION

     Petitioners respectfully request the Commission to address this situation under Article 25 of the Rules of Procedure. Petitioners also request that the Commission request the Respondent State to answer this Petition in a timely fashion in compliance with the Commission’s Rules of Procedure.

Respectfully submitted this 8th day of July, 2005.

Karen Parker, J.D.
Attorney for Petitioners

___________________________________________

1See, generally, D. Jamail, Iraqi Hospitals Ailing Under Occupation (Brussels Tribunal, Association of Humanitarian Lawyers, et al., Brussels 2005)(Jamail)(Annex 1) While much of the material presented in this report predates the attack on medical facilities in Falluja, it shows that medical care in Falluja and throughout Iraq was already in a very precarious situation, with sporadic military assaults by United States forces on both facilities and ambulances, severe curtailment of the provision of medical assistance by others, and a near total failure for the United States to provide any aid whatsoever to them or the personnel.
2See Jamail, 36-37 for sections of the Geneva Convention especially relevant to this case.
3This issue does not arise regarding application of humanitarian law.
4Petitioners in Grenada did not raise the extraterritorial issue as there is no jurisdictional clause in the American Declaration except to restrict organizational petitioners, who in that case, as in this case, meet that jurisdictional requirement. The Respondent Government also did not raise this point, focusing its defense on arguing, inter alia, that the Commission did not have jurisdiction over humanitarian law. The Association of Humanitarian Lawyers also submitted a brief amicus curiae in Salas et al. v. United States, Case 10,573, 1992 Ann. Report IACHR 312, on similar issues arising when the United States militarily attacked Panama.
5The documents of the Council of Europe, including Charter and human right instruments, are remarkably similar in language to those of the OAS, so one would expect a similar finding on extra-territorial application.
6U.N. doc. A//36/40 at 176. The Committee stated: “[I]t is not to the place where the violation occurred, but rather to the relationship between the individual and the State in relation to a violation of any of the right sin the Covenant, wherever they occurred.” Id., para. 12.2. Petitioners also point out that the International Court of Justice also accepted the extraterritorial application of human rights law in Advisory Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, 2004 I.C.J [ ], an opinion that is also instructive on the relationship between human rights and humanitarian law.
7Cyprus v. Turkey and the cases at the Human Rights Committee (except for Lopez Burgos) cited above relied on this criteria.
8Ocalan and Lopez Burgos relied on this criteria, as did the Commission in Coard et al, v. United States, Case No. 10, 951, 1999 Ann. Report IACHR.
9This is illustrated by the cases presented at the United Nations Working Group on Arbitrary Detention. See Opinion 5/2003, U.N. Doc. E/CN.4/2004/3/Add.1. The US did not question the jurisdiction of the Working Group in the cases concerning US held detainees , but withheld information on the grounds of national security.