WAR CRIMES ROUNDTABLE
As the Abu-Ghraib prison scandal began to pierce through the public consciousness, Contributing Editor Mark LeVine brought together four leading experts on international and American constitutional law to explore the implications of the scandal and the larger issue of the violations of international and American law that have become part of the fabric of the US-led occupation of Iraq.
The extent of the daily violations of international law, including systematic war crimes by the US (and of course, other coalition forces and the insurgents as well), become impossible to ignore when you are on the ground in Iraq, which Levine visited in the early spring. What he saw first hand, and learned from speaking to people around the country - especially health professionals, NGO workers, lawyers, engineers, and academics - was how much the systematic commission of war crimes and other violations of international humanitarian law were part of the routine of the occupation. As important, it was clearly the result of official US policies that would seem to extend directly to the White House and senior US political and military officials, including the President, Vice President and Secretary of Defense.
This was the context for contacting the four participants in this roundtable, all of whom have a wealth of expertise on the issue of the culpability of members of the US military and senior politicians for violations of civil and human rights, and the commission of war crimes and crimes against humanity. Elizabeth Holtzman was a Congresswoman who drafted the impeachment papers for President Nixon during the Watergate hearings and has been researching the legal culpability of President Bush and his subordinates for the torture at Abu Ghraib and other crimes committed in Iraq and Afghanistan. Francis Boyle is a leading expert on the laws of war and the relationship between civilian and military personnel in investigating war crimes and other violations of humanitarian war, with particular experience in Israel/Palestine.
Viewing the situation from Canada, Michael Mandel has been among the leading voices bringing together lawyers across North America and Europe to deepen our understanding of the implications of the events and policies discussed in this roundtable, while Victor Conde has been among the foremost experts in defining the terminology and scope of international humanitarian war. While this roundtable was originally conducted in the summer of 2004, the ongoing revelations related to this story--that President Bush and other top officials were directly informed of abuses at Abu Ghraib and did nothing to stop them, or the declaration by Kofi Anan that the invasion of Iraq was "illegal" and violated the UN Charter (and thus was also a crime under the US Constitution)--only serve to confirm the arguments made by the roundtable participants.
- Mark Levine
Mark LeVine: Let’s start with an overview of the relevant international law: what a war crime is, why the issue of war crimes is so important, what the US is likely guilty of, and what the implications of its guilt are, legally and politically.
Condé: The specific legal definition of a war crime is most simply a criminal act in violation of the international Law of War. Conceptually, a war crime is derived from the limitation on the use of force by states and other parties to preserve a certain amount of humanity in armed conflict. For example, the Law of Armed Conflict is an attempt to preserve balance between the needs of military leaders to effectively carry out their military operations, what is called “military necessity” on the one hand, and the horrors of war and protection of humanity. War crimes are thus violations of the principle of humanity, including inflicting unnecessary suffering and harm, and interfering with normal functioning of a society during a military occupation, all of which are not accepted as legitimate actions by a combatant or a belligerent occupier. What we’re talking about here also involves the principle of reciprocity: We want our civilians and soldiers who are captured to be treated in a humane manner. Thus, it’s in our interest to do the same to captured enemy combatants and civilians, as we have increasingly seen more civilians than soldiers taken. Moreover, history has proven that when a state’s military acts within the confines of international law, it makes for a more efficient military force—you waste fewer bullets and resources than when it gets chaotic, excessively harmful savage and brutal. Subsequently, you leave less of a destructive aftermath, making it easier for the countries or groups involved to return more quickly to normal lives. Commission of war crimes is important because such acts cause more death, more destruction, more suffering, and more waste of resources, seldom with any significant military benefit.
LeVine: In my own research on war crimes committed by US forces in Iraq. I counted at least two-dozen classes of offenses systematically committed by the Occupation administration and US or US-allied military forces in the invasion and subsequent period of CPA (Coalition Provisional Authority) rule. This includes violations of articles and 17, 18, 33, and 147 of the Geneva Convention covering the killing, hostage-taking and torturing of civilians
Boyle: As I just argued at Fort Stewart Georgia in the court martial proceedings for Sgt. Camilo Mejia for desertion, the accountability here goes directly up the chain of command under the terms of the US Army Field Manual 27-10. Specifically, paragraph 501 makes clear that commanders who have ordered or knew or should have known about war crimes and failed to stop it are themselves guilty of war crimes. If you look then at the public record, it is clear that Gens. Sanchez and Miller ordered war crimes and both should be relieved of command immediately: abuse of prisoners in violation of the Geneva Conventions. As for General Abizaid, the overall commander of US forces in Southwest Asia, he admitted in his Senate hearings that he should have known about the war crimes at Abu Ghraib, so basically he’s already incriminated himself under the rules of the US Army Field Manual 27-10 In addition, above Abizaid you have Rumsfeld and Wolfowitz. Again my reading of the public record including the Taguba and Red Cross reports is that they either knew or should have known about all these war crimes. Indeed, if you read the ICRC report, - and as I testified under oath and under cross-examination (and was not contradicted) at the Mejia court-martial proceedings, - the widespread and systematic nature of these abuses rise to the level of crimes against humanity, going all the way up through the chain of command. Culpability also extends to Undersecretary of Defense for Intelligence General William G. Boykin and Defense Undersecretary Stephen Cambone, who reports directly to Undersecretary of Defense Douglas Feith. And through this line it appears to me that Rumsfeld is culpable, because he was at Abu Ghraib last fall. Indeed, Sy Hersch’s New Yorker article on Abu Ghraib claims with good substantiation that he was totally aware and even signed off on the use of techniques which are clearly torture. Rumsfeld was given a tour by Brig. General Janet Karpinski, who was supposed to be in charge of the prison—although she said nothing when she was prohibited from accessing certain areas of it—and so she’s also accountable. It’s important to understand that the Geneva Conventions, the Hague Regulations of 1907, the U.S. Army Field Manual, all mandate that a criminal investigation be opened. And how President Bush, as Commander in Chief would be accountable under Field Manual 27-10 precisely because he is Commander in Chief of the US armed forces under the US Constitution. We know the White House knows this because if you read White House Counsel Alberto Gonzales’s memo, he specifically tries to exempt the US from the Geneva Conventions for Guantanamo and Afghanistan. You can see that Gonzalez was afraid of Bush and others being held directly accountable. Moreover, because Powell dissented, we know there was a debate about this, so Bush had to have been aware of the implications of what was being done, which is also backed up by the memos from Ashcroft. These memos have been unearthed by Newsweek. So ultimately what we have here are people at the highest levels of the chain of command guilty of ordering or not preventing torture, which is both an international crime against the Geneva Conventions and the Torture Convention and a domestic crime as well. What we have then is a conspiracy among the aforementioned individuals to commit war crimes and crimes against humanity. Let me add one more thing that’s very important to remember: The principles set forth in 27-10 of personal criminal accountability for war crimes goes back to the Nuremburg Charter, Judgments and Principles derived from the post-World War II trials of Nazi war criminals. Similar principles of criminal accountability were applied by the United States to the Japanese Imperial War criminals.
LeVine: In fact, President Bush has compared the war on terror to the war against the Nazis.
Boyle: Then we have even more reason to bring this to people’s attention: The Nuremburg Principles were in fact originally the idea of the US Government which then orchestrated the prosecutions in Nuremburg. People need to understand the pedigree and heritage here. These are very grave offenses which the US government a generation ago prosecuted and executed Nazis for committing. And Japanese war criminals too.
LeVine: How can any of the people you mentioned be prosecuted?
Boyle: The military could do it, or the Dept. of Justice, which would have default power to do so if the military didn’t. But for this of course we’d need a special prosecutor and that law has been allowed to lapse. Attorney General Ashcroft, who is clearly part of the criminal conspiracy, would never push a war crimes investigations against his colleagues or President Bush.
LeVine: What about the attempts to use UN resolutions to exempt the US from criminal prosecution for war crimes committed in Iraq?
Conde: To my knowledge it hasn’t gone through yet. If it did, I believe it wouldn’t have legal validity in the sense that no UN Security Council Resolution can be in violation of the grave breach provisions of the Geneva Convention or international customary law, which is what Geneva Law has become.
Holtzman: I think that right now this is a hypothetical issue because the US hasn’t objected to the applicability of the Geneva Conventions to its activities in Iraq. White House Counsel Alberto R. Gonzales recommended that the US exempt itself from the Geneva Conventions in Afghanistan to reduce the threat of war crimes prosecution for abusive interrogations of Al Qaeda and Taliban members. But, the US did not exempt itself from the Geneva Conventions respecting Iraq and there is therefore no question that US activities in Iraq are governed by the Geneva Conventions. Once the Geneva Conventions apply, so does the War Crimes Act of 1996, which is not an international statute but rather a US criminal statute. Like bank robbery, murder on federal property and a whole host of other federal crimes listed in Title 18 of the federal statutes, committing a war crime is a federal crime prosecutable in US federal courts. This point is clear not just from the language of the War Crimes Act itself, but from White House Counsel Gonzales’ January 2002 memo to President Bush. That memo was premised on the idea that so long as the Geneva Conventions applied to conduct in a country, then the War Crimes Act applied. Opting out of the Geneva Conventions, Gonzales thought, might allow top US officials to argue that the War Crimes Act didn’t apply, and allow them to escape prosecution. (The validity of the “opt out” gimmick has yet to be tested.) Under the terms of the War Crimes Act of 1966, any US national who engages in war crimes is subject to imprisonment, and if death results, the death penalty. A war crime is defined in the statute as a “grave breach” of the Geneva Conventions, which in turn means “murder, torture or inhuman treatment” of prisoners or detainees. Thus, theoretically at least, everyone up the chain of command, including the President, could be liable under the War Crimes Act for ordering or engaging in murder, torture or the inhuman treatment of prisoners in Iraq. Because there is no statute of limitations in death penalty cases, prosecutions of those who authorized or engaged in murder or authorized or engaged in torture or inhuman treatment of Iraqi prisoners that resulted in death could be commenced at any time in the future. (That was one reason White House Counsel Gonzales was so eager to avoid possible war crimes liability for Afghan war interrogations: control by President Bush of Justice Department prosecutions could not last forever.)
LeVine: Are you saying that the President and senior administration and/or government officials could be subject to the death penalty for war crimes committed by US personnel in Iraq?
Holtzman: Yes, assuming that they directed or authorized murder, torture or inhuman treatment of prisoners or, possibly, if they permitted such conduct to continue after they knew about it. The statute applies to “any national” of the US. That is the only limitation on who can be prosecuted. Of course, we are talking theoretically. Even if high officials’ conduct fell within the ambit of the statute, getting them prosecuted would be no easy matter.
LeVine: How would this happen?
Holtzman: I was one of the authors of the Watergate Special Prosecutor (later the Independent Counsel) law. We wrote the law because we knew that the Attorney General, when investigating the President or other top government officials, was not likely to do an aggressive, thorough or fully professional job--and would certainly not be perceived as doing so. Consequently, the law created a mechanism for a court-appointed special prosecutor when there were allegations of criminal wrong doing against certain high-level government officials. But this law, after the abuses of Kenneth Starr, was allowed to lapse. Now, investigations are up to the Justice Department alone. The decision to appoint any special prosecutor is solely in the hands of Attorney General Ashcroft. Under the War Crimes Act of 1996, there are two sets of questions to determine potential criminal liability of high government officials, including the President: 1. What did they specifically order or authorize regarding interrogations of Iraqi prisoners and 2. Assuming they did not order or authorize murder, torture or inhuman treatment, what did they do once they knew of murder, torture or inhuman treatment? Under international law, once you are aware of violations, you have a duty to act to stop them. Not surprisingly, the Administration has thus far failed to release information about what orders the President (and other high officials) gave with respect to the interrogation of Iraqi prisoners, as well as what the President and others actually knew about the abuse of prisoners, when they knew it and what they did to stop it. We know for example that Colin Powell claimed he advised the President about the complaints of the International Red Cross. When did that briefing occur, what was the President told about those complaints and what did he do in response to that and other information he may have received about prisoner abuse in Iraq. This information--as well as information on what he authorized or ordered-- must be disclosed. Mandel: Forgive me, but so far in this discussion I think we’ve left out the most important issue, legally and morally, which is who started this war in the first place. The invasion of Iraq was a “crime against peace,” the number 1 count in the Nuremberg Charter’s indictment of the Nazi war criminals: ‘planning, preparation, initiation [and] waging of a war of aggression, or a war in violation of international treaties’ – international treaties just like the Charter of the United Nations. It’s what the Nuremberg Tribunal called “the supreme international crime.” The President was made aware of this by a great number of international lawyers around the world before the invasion, and even if he claimed ignorance, I’m sure he’s heard that ignorance of the law is no excuse. Bush and his administration and the US commanders involved are all guilty of this supreme crime. Since the war was unlawful, the many thousands of deaths predictably resulting from it are also crimes, murder in fact, for which Bush and his officials and commanders are guilty in flagrante.
Conde: This is absolutely correct. I wrote a letter to Bush laying out these facts in the months before the war, specifically, so he couldn’t say he wasn’t aware that the invasion of Iraq was illegal, or that the war would not likely lead to grave breaches of international law. And he even wrote me back, which explicitly acknowledges his awareness of this fact, and thus his openness to prosecution for these crimes after the fact.
LeVine: What can be done to enforce these laws?
Mandel: This is the problem. As far as I understand it, because the war was authorized by the US Congress, it was legal under US law, but it’s still illegal under international law. But what does this really mean? There’s no institution capable of punishing this supreme crime. Even the International Criminal Court, which the US opted out of, left out the supreme crime against peace of waging an aggressive war. So how do enforce the law against perpetrators of war crimes? When Belgium tried to do this with Ariel Sharon, and then Tommy Franks and Rumsfeld and Bush himself, the US forced Belgium to repeal its ‘universal jurisdiction’ law (and in fact it was repealed and replaced by a watered-down version). When Spain tried to apply its law of universal jurisdiction against Pinochet, the UK ignored its extradition treaties and sent him home to a safe retirement. If you look at the recent prosecution of former Liberian President Charles Taylor by the Special Court for Sierra Leone, you see that the prosecutor is an American Defense Department lawyer! Basically, when the US and UK decided they wanted Taylor out, they deployed the war crimes issue. And this is a big problem for the peace movement: to rely on these international judicial institutions to obtain justice is a bad bet because they’re corrupt and inefficient and largely controlled by the US. This is why I believe that the global peace and justice movement should be fighting, as it has largely been doing, against war itself rather than against specific war crimes, which, however serious, are still minor in comparison to the major crime of war itself. There is no humanity in war. We can’t rely on international treaties, however well or poorly written, to make war human.
Holtzman: I’m not sure I can sit silently and appear therefore to assent to the idea that all war is bad or that war crimes jurisprudence is useless. The fact is that in the US we have a statute that makes it a crime to violate the Geneva Conventions. The question is how to make the statute work, particularly in light of what appears to be the inhuman treatment of so many Iraqi prisoners in US custody, in some cases resulting in death. Of course, many of us are pessimistic given the present Administration that the law will be vigorously enforced, but it is clearly better to have the law in place than no law at all.
LeVine: What could we do to force this issue?
Conde: It would be nice to be able to prosecute the aggressor. This is desirable but not likely. In another area of international law, the Fourth Geneva Convention points to the answer of public education. Geneva IV has a provision on dissemination, meaning that all the parties to the convention are legally bound in time of peace as well as in time of war, to teach the civilian population, as well as the military about the basic principles of the Conventions and to help them learn to know what the obligations to the treaty are. I had four military people in my class on international law. They were so changed by the end of the course because of what they now knew. We must make sure Americans know that the law is protecting civilians—including Americans—from being mistreated. It does something to the mind when you give people this information. Teaching them about the laws of armed conflict, the Geneva Conventions, Hague Law, even the UN Charter and International Declaration of Human Rights, has an enlightening and empowering effect that helps individuals learn and be equipped to speak truth to power. I hear the proof of that proposition loud and clear in you, Mark.
LeVine: Are you saying that we should be sending out mass emails or regular mail to every American family giving them this information?
Conde: Yes. We must do it because the US government will not do it, even though it is legally obligated to do so. This is because the government does not want an aware, knowledgeable American population. Bush himself in fact justified the war by saying that the US was invading to “restore the rule of law in Iraq,” so he must be held accountable for this. Americans need to become educated about why and how he and others are responsible and accountable for their actions.
Mandel: I agree, but the highest law in international law is the UN Charter, and it bans aggressive war. If this is not obeyed, the rest of the laws are pretty useless. How does one engage in a clean war? It’s impossible. So war crimes prosecution for lesser crimes (compared to the crime against the peace itself) in a way distract us from the issue that war itself is the major crime and must be stopped.
Holtzman: Too much of the discussion has focused on violations of international law as opposed to US law. So, what has to happen? First, the American people must be informed that there is a War Crimes Act that could apply to the President and his top officials with respect to prisoner abuse in Iraq. Second, the American people must determine that everyone who violated the War Crimes Act and other laws with respect to Iraqi abuses must be held accountable. We established the principle in Watergate that no one is above the law, including the president of the United States. That principle needs to be reaffirmed today. Of course, if there is a serious investigation of wrongdoing with respect to Iraqi abuses, perhaps it will have a limiting effect on the willingness of future administrations to engage in the kinds of abuses that the Bush administration has engaged in here.
Conde: You’re absolutely right. Educating people that this war was illegal, that the Congress didn’t have the right under international law to authorize a preemptive, aggressive war is crucial. We need to get people to read, inter alia, the preamble and Articles 2.4, and 51 of the UN Charter. The preamble states that “We the Peoples of the United Nations, Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person,…, and to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained, …, and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest…Have resolved to combine our efforts to accomplish these aims,….” Article 2.4 of the Charter states that “All [UN] members shall refrain in their international relations from the treat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations.” Article 51 of the Charter says that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” But at the same time you can’t just hit them over the head; it’s better to provide them with the laws, statutes or treaties and let them make up their own mind. Most will understand that Congress can’t just violate international treaties and laws by approving a war like Iraq.
Mandel: That’s all well and good, but we outside the US watched the UN and especially the Security Council demonized so successfully by the American mass media I’m not sure how easy it will be to educate people just by showing them the relevant legal doctrines or laws…
Conde: Yes, that’s true. But the brainwashing against the UN Security Council can be overcome by showing what the standards are that the US has publicly set for itself and/or said it would comply with, and then show them what is clear that this country has done, and let them decide for themselves.
LeVine: So what do we do, then?
Holtzman: We need to create a document, a brief, that sets forth the potential for criminal or other legal liability on the part of the top Bush Administration officials and the need for an independent, non Justice Department led investigation and educate the press, the public and Congress to the point where enough pressure is created for a serious investigation to begin. Members of Congress, for example, could call for the disclosure of information about what the president ordered regarding Iraqi interrogations and when he was informed of abuses and what he did about them. They could also call for the appointment of a special prosecutor. The press and editorial boards need to be educated, so that the administration will be questioned as to why it is not disclosing information on what President Bush authorized regarding Iraqi interrogations and so that Ashcroft will be questioned about why he is not appointing a special prosecutor.
Conde: I think that such a document, signed by a large group of leading American and international lawyers, professors and jurists would have great impact.
Mandel: In Canada we can prosecute war crimes committed by anyone anywhere, so perhaps American lawyers should come up to Canada and ask the Canadian Attorney General to open an investigation, once Bush and his senior Cabinet level officials are out of office (now they have diplomatic immunity). But, theoretically, the military commanders could be tried now if they ever show their face in Canada.
Holtzman: At the very least, other countries could call on the US to enforce its own War Crimes Act.
Francis A. Boyle, Professor of Law, University of Illinois College of Law and recent author of Destroying World Order: U.S. Imperialism in the Middle East Before and After September 11th (Clarity Press: 2004).
H. Victor Condé LLM, former adj. Professor of International Law and Human Rights, Trinity Law School, California; lecturer at the International Institute of Human Rights, Strasbourg, , France, lecturer: UC Irvine recent author of A Handbook of International Human Rights Termin- ology (U of Nebraska Press: 2004) and Human Rights in the United States: a Dictionary and Documents, (ABC-Clio: 2000).
Michael Mandel, Professor, Osgoode Hall Law School, York University, Toronto, co-Chair of the Canadian-based Lawyers Against the War (www.lawyersagainstthewar.org) and author of How America Gets Away With Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity (Pluto Press, 2004)
Francis Boyle is a Professor of Law at the University of Illinois Chicago. He is the author of eight books, including Destroying World Order and Defending Civil Resistance Under International Law, and has served as an advisor to the Palestinian delegation to the Madrid peace negotiations.
Liz Holtzman is a former NY Comptroller and Congresswoman who served as a member of the House Judiciary Committee that drafter the letters of Impeachment for President Nixon during Watergate. She is currently a partner at Herrick, Feinstein in NYC and is researching the potential criminal culpability for President Bush and other Administration officials for war crimes for various actions in Iraq.
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