To download the full brief, click here.
website: www.iccaction.com
contact: Glenn Floyd (http://floydaubrey.com)

The Prosecutor Mr. Luis Moreno-Ocampo,
The International Criminal Court,
Po Box 19519
2500 CM, The Hague,
The Netherlands

Re: War Crimes Allegations: Introduction

4 June 2008

Dear Mr. Moreno-Ocampo, pursuant to the initial report to you of 22 November 2007, this ‘Brief Of Evidence’ is furnished for your further consideration under the provisions of the International Criminal Court Rome Statute Part IV, Article 42, 1, http://www.un.org/icc/part4.htm  as persuasive, relevant substantiated evidence, supporting allegations of war crimes committed as defined within the jurisdiction of the International Criminal Court, those war crimes are alleged as committed by the unwarranted and excessively lethal armed attack and invasion of Iraq. Specific war crimes alleged are the loss of life and injury to Iraqi civilians detailed herein and on public record, and damage to civilian objects and widespread, long-term and severe damage to the natural environment of Iraq. The alleged war crimes identified directly arise from the self titled ‘Coalition-Of-The-Willing’ excessively lethal armed attack and invasion of Iraq as its optional but direct response choice; to its untested assertions of the republic of Iraq possessing weapons of mass destruction (WMD’s).

The submission is forwarded for your examination in support of specific and articulable facts and inferences that John Winston Howard Of Milner Crescent Wollstonecraft NSW Australia 2065, in respect of his express personal, executive order to commit Australian Defence Forces in direct support of the armed attack and invasion of Iraq; on and after 20 March 2003, caused significant deaths and injury to Iraqi civilians and widespread destruction of property and the natural environment of Iraq. It is therefore stated, that by this express personal executive decision and action, John Winston Howard is alleged to have committed war crimes by ‘the conduct’ of such an ‘unwarranted and excessively lethal’ armed attack and invasion. The allegation is made that the ‘excessively lethal’ nature, and the unwarranted ‘conduct itself’, of this armed attack and invasion upon Iraq; is a commission of war crimes.

In alleging the ‘unwarranted and excessively lethal nature’ of the armed attack and invasion is in itself ‘criminal conduct’, it is stated it was clearly excessive in relation to the concrete and direct overall military advantage anticipated. Accordingly, ‘during this unwarranted and excessively lethal action’; John Winston Howard is alleged to have committed war crimes as defined under the International Criminal Court Rome Statute Part II Jurisdiction, Admissibility and Applicable Law Article 8, 2, (b), (iv). http://untreaty.un.org/cod/icc/statute/99_corr/2.htm .

The case and evidence herein presented, relies on the claim at international law under the provisions of this statute; the ‘actual conduct’ of the action itself, as a reasonable option, is alleged as ‘criminal conduct’. That is to say, the ‘unwarranted and excessively lethal conduct itself’ of such an attack by way of its questionable necessity, reasonableness, severity and impact, violated the ICC Rome Statute Part II Jurisdiction, Admissibility and Applicable Law Article 8, 2, (b), (iv).

The violation is alleged because the clearly unwarranted, and excessively lethal decision and conduct was applied when Iraq had both declared it had no WMD’s and in good faith, to prove the facts of these untested assertions of possessing WMD’s, Iraq lawfully complied with the existing Security Council Resolution 1441(2002) inspections measures to prove the factuality of both this untested assertion and Iraq’s lawful declaration. In addition, Iraq being a totally economically and militarily broken country since the 1991 Gulf War; was not capable of disobeying any directives of the U.N. Security Council. It lawfully complied as obliged and as demanded.

Iraq’s non-functioning economy was ruined after its military collapse since the 1991 Gulf War, when a massive coalition force of 38 countries delivered the absolute destruction of Iraq, where only one hundred hours after the Gulf War ground campaign started, President Bush fulfilling U.N. Resolutions declared "Kuwait is liberated" and Iraq's army defeated” http://query.nytimes.com/gst/fullpage.html?
res=9D0CE0DB1638F93BA15751C0A967958260&sec=&spon=&pagewanted=all  . In this major military exercise 11 of Iraq's 26 major power stations and 119 substations were totally destroyed and damaged, causing electricity production collapse to four percent capacity. Infrastructure was almost non-existent with the destruction of the utility of all major dams, most major pumping stations and sewerage treatment plants, which all turned Iraq from one of the most advanced Arab countries into one of the most backward, where telecoms equipment, port facilities, oil refineries and distribution, roads, railroads and bridges were also destroyed. In addition, the parlous state of the entire societal workings of the Iraq republic at all levels was evident, and brought to further draconian collapse by the effective authorised U.N. economic sanctions, operating for over the following 12 years.

Iraq was utterly broken as a nation and Iraq lawfully declared it had no WMD’s as demanded by the U.N., further, the untested assertions of Iraq possessing WMD’s was being fully proven out by Security Council enforced authorised inspections Iraq had lawfully complied with. There was no case whatsoever for such a clearly unwarranted, and excessively lethal armed attack and invasion, this conduct was clearly excessive in relation to the concrete and direct overall military advantage anticipated. (See definitions of ‘Excessive’ pp12 to 13).

WAR CRIMES VIOLATIONS DEFINED.

War crimes as defined under the International Criminal Court Rome Statute Part II Jurisdiction, Admissibility and Applicable Law Article 8, 2, (b), (iv). http://untreaty.un.org/cod/icc/statute/99_corr/2.htm .

relevant statute ‘explicitly and clearly states’ a war crimes violation occurs when:

For the purpose of this Statute, "war crimes" means: Inter alia,

(b)     Other serious violations of the laws and customs applicable in international armed conflict, within the

Established framework of international law, namely, any of the following acts:

(iv)     Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment -which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Although the specific and articulable facts and inferences herein also presents compelling evidence that the decision and action are in themselves both unlawful and illegal, the case and evidence presented, does not rely ‘on the unlawfulness and illegality of the decision to commit an armed attack and invasion of Iraq’, nor does it rely on the ‘unlawfulness and illegality of the action of actually committing or assisting to commit the armed attack and invasion of Iraq’. Those matters of decision and action, although clearly unlawful and illegal, do not constitute material evidence of fact or commission of war crimes within the ICC jurisdiction, as it is understood the ICC has no powers to investigate lawfulness or illegality of any military actions within the provisions of The Rome Statute.

It is the ‘unwarranted and excessively lethal’ nature of the conduct itself of this attack and invasion defined under Article 8, 2, (b), (iv), which is the subject of war crimes allegations. However, the ‘unlawfulness and illegality’ of both the decision and action, do have bearing on additional compelling evidence, that this decision and action was utterly ‘excessive’ as ‘reasonable conduct’, when considering the potential impact of available options in achieving the stated aim of ‘proving the facts’ of untested assertions of the existence of WMD’s in Iraq. Consequently, the ‘unlawfulness’ has compelling direct bearing on the ‘excessiveness’ of the conduct itself of the attack and invasion; as it ‘utterly removes all grounds’ for any level of military action whatsoever, being justified in any way.

ARMED ATTACK AND INVASION AS A REASONABLE CONDUCT OPTION:

This Brief Of Evidence therefore, fully demonstrates, the ‘entire conduct itself’ of this unwarranted and excessively lethal armed attack and invasion of Iraq ‘as reasonable conduct’ under the circumstances was ‘clearly excessive in relation to the concrete and direct overall military advantage anticipated’. This allegation relies on the fact that the self titled ‘‘Coalition-Of-The-Willing’’ forces’ openly stated rationale for attack and invasion was its untested assertion that ‘Iraq actually possessed WMD’s.

However, this matter of ‘determining the facts of the existence’ of WMD’s as asserted, was ALREADY being fully managed ‘as reasonable conduct’ by the Security Council itself. This ‘reasonable conduct’ would have reasonably and fully tested at law, the facts of this WMD’s untested assertion, without any death, injury or destruction whatsoever.

In reasonably managing this most serious matter, the Security Council being the duly recognised authority itself, in also considering this potential attack and invasion path as a possible conduct option available, (with its intrinsic ‘excessively lethal impact’), chose to not attack, and instead used its powers and functions appropriately as ‘reasonable conduct’, to manage the risks of ‘untested assertions’ of WMD’s. The Security Council formally warned Iraq of serious consequences and not only gave Iraq the chance to comply with its warning to prove the untested WMD’S assertion, it actually forced Iraq into full compliance with the agreed WMD’s inspections testing regime. It therefore acted reasonably within the binding obligations of the war crimes Article 8, 2, (b), (iv) provisions; the untested WMD’S assertion was being legitimately and fully proven without risk and without an excessively lethal attack and invasion.

LAWFUL AUTHORITY TO MANAGE THE IRAQ MATTER

Only the Security Council had the lawful authority at international law to manage this ‘untested assertion’ of WMD’s and it reasonably chose this balanced ‘non lethal’ option by ‘proving the facts’ of the WMD untested assertion through inspections testing, without applying criminal conduct of an excessively lethal armed attack and invasion. It chose this reasonable path because it felt ‘proving the facts of asserted WMD’s through such a use of excessively lethal force; clearly, was not warranted. This was a deliberate, lawful, strong, effective, balanced and humanitarian decision.

Therefore, at law, given the object of Resolution 1441 to test the assertions of WMD’s and the consequential death, injury and destruction resulting from an attack and invasion; the duly authorised authority decided armed attack and invasion would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. The self titled ‘‘Coalition-Of-The-Willing’’ however, with no authority to do so, by their decision and action have chosen and executed, the unwarranted and excessively lethal option of armed attack and invasion; alleged as criminal conduct resulting in war crimes.

Deaths and injuries to civilians and and widespread destruction of property resulting from the armed attack and invasion of Iraq are widely identified in the public domain and are specifically identified in this Brief Of Evidence. Accordingly, it is requested your office examines these claims and evidence under PART 2.  JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW Article 15 (2) and further considers under Article 15, (3) http://www.un.org/icc/part2.htm, John Winston Howard’s alleged criminal culpability for indictment and criminal prosecution.

If your analysis of this Brief Of Evidence conforms with the view that a prima facie case of war crimes (identified in this Brief Of Evidence and elsewhere), exists as alleged and it is concluded that there is a reasonable basis to proceed with an investigation, it is requested you submit to the Pre-Trial Chamber; a request for authorization of an investigation in accordance with the Rules of Procedure and Evidence.

http://www.icc-
cpi.int/library/about/officialjournal/Rules_of_procedure_and_Evidence_English.pdf.

It is further requested therefore, if such investigations consequently accord with these allegations of war crimes made herein, John Winston Howard be indicted under Article 21,1 (b) seeking invocation of appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict for war crimes violations specified for prosecution for war crimes.

MATTERS OF *’UNLAWFULNESS AND ILLEGALITY’ SUBSTANTIVE TO DEFINING ‘EXCESSIVELY’ LETHAL BY UNWARRANTED ACTION:

It is previously stated the ‘unwarranted and excessively lethal’ nature of the conduct itself of this armed attack and invasion which is the subject of war crimes allegations. The unlawfulness and illegality of both the decision and action however, although not falling within the ICC war crimes jurisdiction, do have bearing on additional compelling evidence, that this decision and action was utterly ‘unwarranted’ as reasonable conduct (and therefore in this context, also excessive), in the total set of prevailing circumstances. This analysis is helpful in defining the use of the term ‘excessive’ when considering appropriate and reasonable options of conduct and the potential impact of all available options in achieving the stated aim of proving the facts of untested assertions of the existence of WMD in Iraq.

This focus is valuable because there are a wide ranging set of circumstances surrounding any behaviour in legal cases under analysis and many of them whilst not legally impinging upon defining criminality of actual decisions and actions of the case, have a direct bearing upon clear analysis of what is ‘reasonable behaviour’ (i.e. excessive behaviour), expected or obliged at law, in relation to the decisions and actions actually taken and acted upon.

There are two sides to analysis and determination of any war crimes committed under Article 8, 2, (b), (iv). They are the absolute severity of the impact of the action which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated and there is also the legal, practical and ‘moral imperatives’ which are operating. These are the factors in an enlightened society at play of the pure compelling reasons to do or not do something which has a severe impact. They consequently may be defined ‘excessive’ –simply because they are breaches of these accepted or binding imperatives and consequently affirm behaviour as unnecessary or unwarranted ‘under these specific circumstances’ and not so in others.

*A separate case is under preparation alleging the attack and invasion of Iraq is unlawful and illegal and ipso facto,

premeditated criminal conduct and/or criminal negligence.

This focus looks at any morays, ethics, values, laws, statutes, norms of behaviour that we all understand and accept as forming or defining ‘excessive, unnecessary or unwarranted’ or unreasonable behaviour. Such focus is material to the specific facts of the case itself because it shows by certain agreed societal operands we are clearly aware of, that such behaviour is clearly excessive, unnecessary and/or unwarranted etc. If the decision and action taken was also known to be unlawful, illegal and is wholly premeditated, this provides further strong evidence the decision was unwarranted, unnecessary as well as excessively lethal. The unlawfulness and illegality of such behaviour cannot at the ICC define war crimes, however the unlawfulness compounds the actual decision and action as irrefutable evidence the premeditated behaviour was fully understood as ‘excessive, unnecessary or unwarranted’ or unreasonable behaviour at law. It therefore displays full knowledge of excessive impact ‘and under these circumstances’ shows behaviour as war crimes, because the action or ‘conduct’ clearly shows at law, in attack, ‘any’ military advantage is non-existent.

continued...