Naomi Klein has also produced evidence about what she sees as the US Forces laying siege to Falluja "in retaliation for the gruesome killings of four Blackwater employees".
She speaks of hundreds of civilians being killed during the siege in April 2004, and of a deliberate tactic of eliminating doctors, journalists and clerics who focused public attention on civilian casualties previously.
All of the above acts are arguably "crimes against humanity" defined by section 7 ICC Statute) as "murder" (Article 7 (1)(a)), "extermination" (Article 7 (1)(b)) or "other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health" (Article 7 (1)(k)).
Further, they may be "war crimes" (defined by Article 8 of the ICC Statute) as a "wilful killing" (Article 8 (2)(a)(i)), "wilfully causing great suffering, or serious injury to body or health" (Article 8 (2)(a)(iii)) or "intentionally directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities" (Article 8 (2)(b)(i)) or "intentionally launching an attack in the knowledge that such an 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" (Article 8 (2)(b)(iv).
As for the latter, questions need to be addressed as to military objectives and proportionality.
If the force used was "clearly excessive in relation to the concrete and direct overall military advantage anticipated" then it would be disproportionate and unlawful.
However, it must be remembered that this was a lawful occupation authorised by Resolution 1483.
In its recitals, this recognised "the specific authorities, responsibilities, and obligations under applicable international law of [both] states as occupying powers under unified command".
The UK and US had to respect Geneva Convention IV.
Thus decisions about military objectives and proportionality cannot be approached as if this were a time of war.
But even if they could, it is hard to see how the US could possibly justify these acts, if proven.
Further, liability does not stop with the US.
I have already set out the arguments about joint criminal enterprise and thus the responsibility of the UK for the acts of the US.
Legally, these arguments as to joint responsibility are enhanced during the occupation.
Not only were both states acting under de jure authority as occupying powers but also they were also senior partners within the CPA and thus responsible for all the legislative and administrative functions I have noted above.
Thus, a legal analysis of the issue of accountability for incidents such as these from Falluja, which may involve "war crimes" and "crimes against humanity", must begin by recognising, first, the lawful authority of the US and UK to both occupy and administer Iraq, and second, recognising the protection of civilians through international humanitarian law, specifically Geneva Convention IV, and international human rights law, especially the International Covenant on Civil and Political Rights and the ECHR.
It is also critically important to appreciate that any proper accountability is entirely dependant upon a lawful independent investigation being conducted.
That is the importance of the protection given to the Right to Life (ECHR, Art2; IICPR Art 6) by the requirement to hold such an inquiry.
For example, if states know at the outset that killings and torture during an occupation will be investigated independently then this knowledge should be reflected in improved training for Armed Forces and thus more Human Rights compliant behaviour.
Further, the requirement for independence is not met by the military investigation.
It is only when such an independent investigation unearths who is responsible that one gets to deal with questions as to who, if anyone, should be charged with "crimes against humanity" or "war crimes".
Accordingly, one sees that it is pre-judging the issues arising from the incidents in Falluja to say that those responsible in a few incidents were acting within the rules of engagement and using proportionate force.
The US and UK should have been proceeding on the basis that a lawful approach to international humanitarian law and international human rights law relevant to the protection of civilians in an occupation would be expected of them and rigorously enforced by the international community through, for example, if appropriate, critical Resolutions of the Security Council.
But it is not too late for accountability, and this Tribunal may be part of a future process that leads to it.
The Iraq war and occupation challenges us all to face the threat to international law by the actions of the US, UK and other members of the coalition.
We must be resolute in our determination to make international law stronger and more concerned with peace.
There must be accountability for the dreadful numbers of Iraqi civilian casualties in this aggressive war and bearing in mind the use of indiscriminate methods of attack.
There cannot be impunity for the acts of torture in detention — and in some cases deaths — nor the wanton killing of civilians during the occupation.
In so far as US and UK interrogation techniques violate Article 1 of UN Convention on Torture, it cannot be acceptable that there be impunity.
Accountability — rather than impunity — rests on two building blocks:
That there be an independent investigation to establish who is responsible for what acts and how far up the chain of command should responsibility lie. That is the importance of the positive obligation of Article 3 of the ECHR, and thus the critical importance of UK cases that attempt to establish that the ECHR did apply during the occupation.
That the ICC Prosecutor fulfils its functions to make those responsible for these "war crimes" and "crimes against humanity" accountable through principles of individual criminal liability. In decisions over the next few months as to how, if at all, to investigate and prosecute these matters, it is important that he recognise the fundamental duty he has to uphold the rule of law.