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 Courthouse.
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 courtroom for testimony that included a pro bono appearance by Richard
A. Falk of Princeton University.
Falk 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 obeys international law.
His testimony helped to win acquittals for defendants at the state level,
including defendants who blocked the transportation of Trident Missiles
On June 5 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 that war crimes were
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 had 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, DC 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
What Are 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 (“Reports of Casualties in No-Fly Zones,” Des Moines
Register. 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, 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 (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 that 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. Young testified
that if, 100 years from now, UNSCR 678 is not rescinded, the U.S. could
use force against Iraq. In other words, Iraq lost its sovereignty, probably
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
as the UN 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 UN 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 needed 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
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 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
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 for 40 hours
of community service and one year of probation. The Des Moines Register
produced three articles on the trial, including a piece 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
Condemnation of the no-fly zones has increased, with France, Russia, and
China speaking at the UN in opposition, the irony being 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. Z
Jeffrey J. Weiss is an adjunct professor of Political Science at Des Moines
Area Community College and works for the American Friends Service Committee.