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Humanitarian law groups' petition at OAS officially registered
Association of Humanitarian Lawyers
December 4, 2004



HUMANITARIAN LAW GROUPS FILE RIGHTS PETITION AT OAS AGAINST THE UNITED
STATES FOR ATTACKS ON HOSPITALS, CLINICS IN FALLUJA.

OAS HAS REGISTERED THE LAWSUIT: "Petition N° P-1258-04 United States".



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 OAS has registered the lawsuit, given it a
number: "Petition No. P-1258-04 United States." and are investigating. 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.



Contact: Karen Parker: 415.668.2752 / 415.533.1066 -
<mailto:ied at igc.org>ied at igc.org



--------------------------------------------------------------------------------


PETITION

SUBMITTED TO THE

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

ORGANIZATION OF AMERICAN STATES

BY

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

AGAINST

THE UNITED STATES OF AMERICA


Karen Parker
154 Fifth Avenue
San Francisco, CA 94118
415.668.2752 tel. and fax
415.533.1066 cell <mailto:ied at igc.org>ied at igc.org
Attorney for Petitioners



CONTENTS


BRIEF STATEMENT OF THE CASE

THE ORGANIZATIONAL PETITIONER

ORGANIZATIONAL PETITIONER MEETS ARTICLE 26 REQUIREMENTS

REQUEST FOR ARTICLE 25 PRECAUTIONARY MEASURES

EXHAUSTION OF DOMESSTIC REMEDIES

FACTS

VIOLATIONS

CONCLUSION




DOCUMENTS



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 November
2004.

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
November 2004.


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.


FACTS


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 Respondent.

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.[1] 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.[2]


There are numerous accounts, as well as photographs,[3] 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 this
regard.


VIOLATIONS

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 part:

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.[4]


CONCLUSION

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.


Respectfully submitted,


Karen Parker, J.D.

Attorney for Petitioners

--------------------------------------------------------------------------------

[1] Petitioners assume that Nazzai Emergency Hospital is the "trauma
clinic" referred to in other accounts, but it may be that two clinics were
attacked.

[2] As will be apparent under the discussion of the violations, Petitioners
would still file this Petition even if Falluja General Hospital were an
"enemy field hospital."

[3] Petitioners are collecting photographs that will be submitted separately.

[4] If the facts show that DU weapons were in fact used in Falluja,
Petitioners will provide the Commission with United Nations resolutions and
reports on these weapons.


Courtesy of Dirk Adriaensens

<http://www.uruknet.info?s1=1&p=7819&s2=04>Read the full article / Leggi
l'articolo completo: www.uruknet.info?p=7819




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