Americans don't seem to want to know about the darker side of what was done in their name, about all the brutality behind the stars and stripes, but all those responsible for these atrocities, including those at the top who signed off on this torture regime, deserve nothing less than to be punished as the war criminals they are.
The path to achieving justice in War Crimes Prosecutions of American official for the initiation and conduct of the illegal war of aggression and occupation in/of Iraq really began with the first actions against Donald Rumsfeld now a hunted man who dare not leave American soil lest he be caught/arrested abroad and be brought before the bar of International Justice at The Hague.
All too many American's believe that this nation and its leaders are immunized from such charges, prosecution and punishment. That is a fallacy. The Bush Administration did everything it could to paint a picture of immunity and exclusion from the rules of law and civility developed in the aftermath of World War II.
"It has often been remarked but seldom remembered that war itself is a crime. Yet a war crime is more and other than war ... It is an act beyond the pale of acceptable actions even in war. Deliberate killing or torturing of prisoners of war is a war crime. Deliberate destruction without military purpose of civilian communities is a war crime."
Rumsfeld Charged with War Crimes in a Chicago Court
http://www.uswarcrimes.com/?p=2405
Will Donald Rumsfeld face accountability for his actions in authorizing torture? After resigning as Secretary of Defense in 2006, a warrant for his arrest was issued in Paris during October 2007 soon after he arrived in France to give a talk. But he sneaked out of the country to avoid handcuffs and incarceration, and he was secretly driven to Germany before flying back to the United States, clutching a passport that he may now have shredded to avoid similar incidents in the future.
Less well publicized was a lawsuit filed just after Rumsfeld left office in 2006, Vance v Rumsfeld, until Judge Wayne Anderson ruled in early March 2010 that the case will proceed to trial in a Chicago federal court. The case, in which two Americans seek unspecified damages, alleges the following offenses were committed against them:
- false arrest
- denial of property without due processunlawful detention
- unlawful search and seizure
- denial of right to counsel in interrogations – coerced statements
- denial of Sixth Amendment right to counsel
- denial of right to confront adverse witnesses
- denial of right to present witnesses and evidence, and to have exculpatory evidence disclosed
- unlawful conditions of detention
- denial of necessary medical care
What happened to the two Americans also occurred to thousands of Afghans, Iraqis, and others who were not protected by the American constitution. But the same offenses could be repackaged as war crimes, as noted below.
The circumstances of the allegations by the two men, Donald Vance and Nathan Ertel, provide more substantiation of the abuses of Abu Ghraib and elsewhere. The fate of the case will serve as precedent for foreigners to file suit on the same basis. The following are facts alleged in their lawsuit:
- Ertel and Vance were employed in Iraq during 2005 as private security contractors of Shield Group Security (SGS). In that capacity they observed SGS agents making payments to insurgent Iraqi sheikhs, who in turn bought weapons from SGS. While on home leave, Vance reported the payoffs to the Chicago FBI office, which in turn asked Vance to collect evidence on the matter. Ertel, his roommate, was unaware of Vance’s quest to identify illegal actions by SGS, but tendered his resignation due to his suspicions.
- Rather than allowing Ertel to leave SGS housing, on April 14, 2006, to secure employment elsewhere, SGS confiscated both of their access cards, effectively imprisoning them in the SGS compound. When they asked FBI officials in Iraq for advice on what to do, they were told to barricade themselves in their room until they could be rescued. Army personnel arrived, liberated Ertel and Vance, and took them to the American embassy, where their property was seized and they were questioned. They, of course, provided testimony about SGS activities during the interrogation.
- However, three hours after their questioning, they were arrested, handcuffed, blindfolded, earmuffed, and accused of supplying weapons to insurgents. When they arrived at Camp Prosperity, they were strip searched, placed in a cage, and then held in solitary confinement in separate cells. Two days later, they were shackled, blindfolded, and transferred to Camp Cropper, where they were also strip searched and placed in solitary confinement. They were fed a breakfast (bread, a powdered rink, with occasional fruit) and a lunch and dinner (chicken and rice).
- While at Camp Cropper, they were repeatedly interrogated for long hours by unidentified military personnel, who used coercive methods, mentally and physically, including “walling,” that is, walked into walls while blindfolded. They were denied the right to counsel. The fluorescent lights were turned on continuously. Heavy metal or country music blared in the corridor most of the time. To further deprive them of sleep, they were awakened at random times and ordered to stand in their cold cells (with temperatures in the 50s). They tried to sleep in 9×9-foot cells on worn 3” foam mats on concrete slabs. The suit alleges that they were tortured and otherwise treated in a manner authorized by Rumsfeld.
- On April 20, they were informed that they would appear before the Detainee Status Board on April 23 to determine their status, but on April 22 they learned instead that their status was identified as “security internees.” Given the right to appeal, on April 26 they appeared before the Board to appeal their cases, though they were denied the evidence seized from them to present in their defense, and they were not allowed to testify on each other’s behalf.
On May 7, Ertel was reclassified as an innocent civilian and released on May 17. Vance was held for two more months of continuous questioning, called his fiancé at the end of his first week after the hearing, and requested blankets and legal representation. He wrote ten letters to his fiancé, who contacted Senator Richard Durban and others, but the only letter she received through the courtesy of the Red Cross was dated July 17. Vance was finally released on July 20. Neither was charged with any crime.
After they returned to Illinois, they sought legal counsel, and they filed their case on December 18, 2006. Rumsfeld, a resident of Maryland, sought to have the venue of the cased moved from Chicago, but Judge Anderson denied the request on October 11, 2007. Rumsfeld also sought to have the case dismissed, but that motion was denied on March 5, 2010.
The larger significance of the case is that the two Americans and an unidentified third at Camp Cropper appear to have been treated in a manner similar to the other prisoners (except for appearing in person before a tribunal, a right denied to all Iraqis but Saddam Hussein). Extrapolating from the way the Americans were treated to what the other Iraqis experienced as prisoners in an ongoing war, Rumsfeld is being judged in an American court for what a lawsuit filed by Iraqis at the same base might characterize as the following war crimes:
- Inhumane Treatment
- Depriving Prisoners of Their Property
- Cruel Treatment
- Outrages upon Personal Dignity
- Interrogation Beyond Name, Rank, and Serial Number
- Coercive Techniques
- Unpleasant Treatment
- Torture
- Failure to Prevent Torture
- Complicity or Participation in Torture
- Failure to Protect Prisoners from Intimidation
- Inadequate Shelter
- Close Confinement
- Inadequate Heating
- Inadequate Lighting
- Prisoners Disallowed from Food Preparation
- Solitary Confinement
- Lack of Prison Canteens
- Prisoners Not Allowed to Receive Funds to Purchase Personal Items
- Unhygienic Housing
- Unhealthful Incarceration
- Denial of Medical Care
- Failure to Rehabilitate Victims of Torture
- Failure to Allow Prisoners to Complain About Captivity Conditions
- Failure to Respond to Complaints of Prisoners Alleging Torture
- Failure to Allow Prisoners to Elect Representatives
- Repeated Punishment
- Corporal Punishment
- Confinement Without Daylight
- Punishment Exceeding Thirty Days
- Discipline Without Following Procedures
- Secret Detainees
- Failure to Advise Prisoners of Their Right to Counsel
- Denial of Right to Counsel
- Failure to Use a Competent Tribunal to Determine Whether to Detain Prisoners
- Failure to Disseminate Geneva Convention Protections
- Failure to Post the Geneva Conventions
- Failure to Publicly State How Prisoners Are to Be Handled
- Failure to Allow Visits Between Lawyers and Prisoners
- Denial of the Right to Call Witnesses
- Failure to Advise Prisoners of Geneva Convention Rights
- Failure to Facilitate Selection by Prisoners of Their Attorneys
- Failure to Allow the United Nations to Provide Attorneys for Prisoners
- Failure to Provide Attorneys Free Access to Prisoners
- Failure to Inform Prisoners Promptly of Charges Against Them
- Secret Judicial Proceedings
- Failure to Provide Appropriate Legal Advice to Military Commanders Regarding Prisoners
- Failure of Commanding Officers to Ensure That Subordinates Understand Geneva Convention Obligations Regarding Prisoners
- Failure of Commanding Officers to Prevent or Stop Subordinates from Mistreating Prisoners
- Attempting to Justify Torture
- Failure to Arrest & Prosecute Torturers
- Failure to Compensate Victims of Torture
- Refusal to Allow the Red Cross Access to Prisoners
- Failure to Establish a Central Prisoner of War Agency
- Failure to Request Assistance from a Humanitarian Organization
- Prisoners Prevented from Contacting the Red Cross and the Red Crescent Society
- Denial & Delay of Correspondence Between Prisoners & Their Families
- Failure to Compensate Dependents of Fatal Victims of Torture
- Extraordinary renditions
- Issues of executive orders authorizing enforced disappearances
The War Crimes Case Against Donald Rumsfeld
Although Bush has immunized Rumsfeld and others from prosecution in the International Criminal Court, they could be tried in any country under the well-established principle of universal jurisdiction.
November 13, 2006 | http://www.alternet.org/story/44213/
As the Democrats took control of the House of Representatives and were on the verge of taking over the Senate, George W. Bush announced that Donald Rumsfeld was out and Robert Gates was in as Secretary of Defense. When Bush is being run out of town, he knows how to get out in the front of the crowd and make it look like he's leading the parade. The Rumsfeld-Gates swap is a classic example.
The election was a referendum on the war. The dramatic results prove that the overwhelming majority of people in this country don't like the disaster Bush has created in Iraq. So rather than let the airwaves fill up with beaming Democrats and talk of the horrors of Iraq, Bush changed the subject and fired Rumsfeld. Now, when the Democrats begin to investigate what went wrong, Rumsfeld will no longer be the controversial public face of the war.
Rumsfeld had come under fire from many quarters, not the least of which was a gaggle of military officers who had been clamoring for his resignation. Bush said he decided to oust Rumsfeld before Tuesday's voting but lied to reporters so it wouldn't affect the election. Putting aside the incredulity of that claim, Bush likely waited to see if there would be a changing of the legislative guard before giving Rumsfeld his walking papers. If the GOP had retained control of Congress, Bush would probably have retained Rumsfeld. But in hindsight, Bush has to wish he had ejected Rumsfeld before the election to demonstrate a new direction in the Iraq war to angry voters.
Rumsfeld's sin was not in failing to develop a winning strategy for Iraq. There is no winning in Iraq, because we never belonged there in the first place. The war in Iraq is a war of aggression. It violates the United Nations Charter which only permits one country to invade another in self-defense or with the blessing of the Security Council.
Donald Rumsfeld was one of the primary architects of the Iraq war. On September 15, 2001, in a meeting at Camp David, Rumsfeld suggested an attack on Iraq because he was deeply worried about the availability of "good targets in Afghanistan." Former Treasury Secretary Paul O'Neill reported that Rumsfeld articulated his hope to "dissuade" other nations from "asymmetrical challenges" to U.S. power. Rumsfeld's support for a preemptive attack on Iraq "matched with plans for how the world's second largest oil reserve might be divided among the world's contractors made for an irresistible combination," Ron Suskind wrote after interviewing O'Neill.
Rumsfeld defensively sought to decouple oil access from regime change in Iraq when he appeared on CBS News on November 15, 2002. In a Hamlet moment, Rumsfeld proclaimed the United States' beef with Iraq has "nothing to do with oil, literally nothing to do with oil." The Secretary doth protest too much.
Prosecuting a war of aggression isn't Rumsfeld's only crime. He also participated in the highest levels of decision-making that allowed the extrajudicial execution of several people. Willful killing is a grave breach of the Geneva Conventions, which constitutes a war crime. In his book, Chain of Command: The Road from 9/11 to Abu Ghraib, Seymour Hersh described the "unacknowledged" special-access program (SAP) established by a top-secret order Bush signed in late 2001 or early 2002. It authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world. Rumsfeld expanded SAP into Iraq in August 2003.
The United Nations Special Rapporteur on Torture Manfred Nowak in an interview on Monday told CNN that the international body had enough evidence to prosecute Rumsfeld for his direct authorization of tortures at US detention centers in 2002.
"We have clear evidence," Nowak said. "In our report that we sent to the United Nations, we made it clear that former Defense Secretary Donald Rumsfeld clearly authorized torture methods and he was told at that time by Alberto Mora, the legal council of the Navy, 'Mr. Secretary, what you are actually ordering here amounts to torture.' So, there we have the clear evidence that Mr. Rumsfeld knew what he was doing but, nevertheless, he ordered torture."
The UN torture official earlier in an interview with Germany's ZDF television had said that "I think the evidence is on the table."
Nowak said that the United States had an "obligation" to probe former President George Bush's Administration for their involvement in torture.
A bipartisan Senate survey last month revealed that Rumsfeld and other high-ranking administration officials were responsible for detainee abuse at Guantanamo Bay Prison.
The Los Angeles Times said on December 12, 2008 that the report directed its most pointed criticism at Rumsfeld's decision in December 2002 to authorize the use of harsh interrogation techniques at the Guantanamo Bay facility. The report described Rumsfeld's directive as "a direct cause for detainee abuse" at Guantanamo and concluded that it "influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity and stress positions, in Afghanistan and Iraq."
The coercive measures were based on a document signed by Bush in February, 2002.
US new President Barack Obama has ordered for the notorious US facility at Guantanamo to be shut down. But the so-called "enhanced interrogation techniques" have already destroyed the lives of many who had kept for years at US prisons worldwide without even charges.
"It's too painful, it's too deep, it's too dark and fills me with sadness... They did everything they could to destroy me when I was completely innocent," says former US detainee Mohammad Saad describing six years of humiliation, interrogation and ill-treatment under US orders in Egypt, Afghanistan and Guantanamo Bay.
http://www.sourcewatch.org/index.php?title=Bush_Administration_War_Crimes_in_Iraq
"A Society of Sheep must in time beget a Government of Wolves" -- Bertrand de Jouvenal
http://www.cbsnews.com/stories/2009/03/28/world/main4900114.shtml
(AP) A Spanish court has agreed to consider opening a criminal case against six former Bush administration officials, including former Attorney General Alberto Gonzales, over allegations they gave legal cover for torture at Guantanamo Bay, a lawyer in the case said Saturday.
Human rights lawyers brought the case before leading anti-terror judge Baltasar Garzon, who agreed to send it on to prosecutors to decide whether it had merit, Gonzalo Boye, one of the lawyers who brought the charges, told The Associated Press.
The ex-Bush officials are Gonzales; former undersecretary of defense for policy Douglas Feith; former Vice President Dick Cheney's chief of staff David Addington; Justice Department officials John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes.
E-mail requests for comment left with Yoo and with Feith through his Hudson Institute address, and a phone message left for Yoo, were not immediately returned.
Spanish law allows courts to reach beyond national borders in cases of torture or war crimes under a doctrine of universal justice, though the government has recently said it hopes to limit the scope of the legal process.
Garzon became famous for bringing charges against former Chilean dictator Augusto Pinochet in 1998, and he and other Spanish judges have agreed to investigate alleged abuses everywhere from Tibet to Argentina's "dirty war," El Salvador and Rwanda.
Still, the country's record in prosecuting such cases has been spotty at best, with only one suspect extradited to Spain so far.
When a similar case was brought against Israeli officials earlier this year, Foreign Minister Miguel Angel Moratinos assured his Israeli counterpart that the process would be quashed.
Even if indictments are eventually handed down against the U.S. officials, it is far from clear whether arrests would ever take place. The officials would have to travel outside the United States and to a country willing to take them into custody before possible extradition to Spain.
The officials are charged with providing a legal cover for interrogation methods like waterboarding against terrorism suspects at Guantanamo, which the Spanish human rights lawyers say amounted to torture.
Yoo, for instance, wrote a series of secret memos that claimed the president had the legal authority to circumvent the Geneva Conventions.
President George W. Bush always denied the U.S. tortured anyone. The U.S. has acknowledged that Khalid Sheikh Mohammed, the self-described plotter of Sept. 11, and a few other prisoners were waterboarded at secret CIA prisons before being taken to Guantanamo, but the Bush administration insisted that all interrogations were lawful.
Boye said he expected the National Court to take the case forward, and dismissed concerns that it would harm bilateral relations between the two countries.
He said that some of the victims of the alleged torture were Spaniards, strengthening the argument for Spanish jurisdiction.
"When you bring a case like this you can't stop to make political judgments as to how it might affect bilateral relations between countries," he told the AP." It's too important for that."
Fast Fact
Garzon became famous for bringing charges against former Chilean dictator Augusto Pinochet in 1998, and he and other Spanish judges have agreed to investigate alleged abuses everywhere from Tibet to Argentina's "dirty war," El Salvador and Rwanda
Boye noted that the case was brought not against interrogators who might have committed crimes but by the lawyers and other high-placed officials who gave cover for their actions.
"Our case is a denunciation of lawyers, by lawyers, because we don't believe our profession should be used to help commit such barbarities," he said.
Another lawyer with detailed knowledge of the case told the AP that Garzon's decision to consider the charges was "a significant first step." The lawyer spoke on condition of anonymity because he was not authorized to talk to the media.
There was no immediate comment from Garzon or the government.
The judge's decision to send the case against the American officials to prosecutors means it will proceed, at least for now. Prosecutors must now decide whether to recommend a full-blown investigation, though Garzon is not bound by their decision.
The proceedings against the Bush Administration officials could be embarrassing for Spanish Prime Minister Jose Luis Rodriguez Zapatero, who has been keen to improve ties with the United States after frosty relations during the Bush Administration.
Zapatero is scheduled to meet President Barack Obama for the first time on April 5 during a summit in Prague.
http://www.talkleft.com/story/2010/6/8/2090/29988
http://jurist.law.pitt.edu/paperchase/2007/03/spain-judge-says-bush-and-iraq-war.php
FILED AGAINST BUSH, CHENEY, RUMSFELD, TENET, RICE AND GONZALES; INTERNATIONAL ARREST WARRANTS REQUESTED
In order to demonstrate your support for this Complaint you can contact the I.C.C. Prosecutor by letter, fax, or email as indicated below.
Champaign, U.S.A./The Hague, Netherlands (19 Jan 2010). -- Professor Francis A. Boyle of the University of Illinois College of Law in Champaign, U.S.A. has filed a Complaint with the Prosecutor for the International Criminal Court (I.C.C.) in The Hague against U.S. citizens George W. Bush, Richard Cheney, Donald Rumsfeld, George Tenet, Condoleezza Rice, and Alberto Gonzales (the “Accused”) for their criminal policy and practice of “extraordinary rendition” perpetrated upon about 100 human beings. This term is really their euphemism for the enforced disappearance of persons and their consequent torture. This criminal policy and practice by the Accused constitute Crimes against Humanity in violation of the Rome Statute establishing the I.C.C.
The United States is not a party to the Rome Statute. Nevertheless the Accused have ordered and been responsible for the commission of I.C.C. statutory crimes within the respective territories of many I.C.C. member states, including several in Europe. Consequently, the I.C.C. has jurisdiction to prosecute the Accused for their I.C.C. statutory crimes under Rome Statute article 12(2)(a) that affords the I.C.C. jurisdiction to prosecute for I.C.C. statutory crimes committed in I.C.C. member states.
The Complaint requests (1) that the I.C.C. Prosecutor open an investigation of the Accused on his own accord under Rome Statute article 15(1); and (2) that the I.C.C. Prosecutor also formally “submit to the [I.C.C.] Pre-Trial Chamber a request for authorization of an investigation” of the Accused under Rome Statute article 15(3).
For similar reasons, the Highest Level Officials of the Obama administration risk the filing of a follow-up Complaint with the I.C.C. if they do not immediately terminate the Accused’s criminal policy and practice of “extraordinary rendition,” which the Obama administration has continued to implement.
The Complaint concludes with a request that the I.C.C. Prosecutor obtain International Arrest Warrants for the Accused from the I.C.C. in accordance with Rome Statute articles 58(1)(a), 58(1)(b)(i), 58(1)(b)(ii), and 58(1)(b)(iii).
Francis A. Boyle
Professor of International Law
Law Building
504 East Pennsylvania Avenue
Champaign, Illinois 61820
Phone: 217-333-7954
Fax: 217-244-1478
The Honorable Luis Moreno-Ocampo
Office of the Prosecutor
International Criminal Court
Post Office Box 19519
2500 CM, The Hague
The Netherlands
Fax No.: 31-70-515-8555
Email: OTP.InformationDesk@icc-cpi.int
January 19, 2010
Dear Sir:
Please accept my personal compliments. I have the honor hereby to file with you and the International Criminal Court this Complaint against U.S. citizens George W. Bush, Richard Cheney, Donald Rumsfeld, George Tenet, Condoleezza Rice , and Alberto Gonzales (hereinafter referred to as the “Accused”) for their criminal policy and practice of “extraordinary rendition.”READ MORE
http://www.afterdowningstreet.org/node/49394
http://www.crimesofwar.org/news-afghan3.html
An amnesty law that prevents the prosecution of individuals responsible for large-scale human rights abuses has officially become law in Afghanistan.
The law states that all those who were engaged in armed conflict before the formation of the Interim Administration in Afghanistan in December 2001 shall “enjoy all their legal rights and shall not be prosecuted.” Brad Adams of Human Rights Watch said the law is “a disgrace” and “a slap in the face to all the Afghans who suffered for years and years of war crimes and warlordism.”
The National Reconciliation, General Amnesty and National Stability Bill was passed three years ago by the Afghan parliament, which is made up largely of lawmakers who once belonged to armed groups, some of whom have been accused of war crimes.
According to Article 1, the law is supposed to strengthen “reconciliation and national stability, ensuring the supreme interests of the country, ending rivalries and building confidence among the belligerent parties.” It seems, however, to fly in the face of President Karzai’s commitment to pursue justice and fight impunity as expressed in his 2006 Action Plan on Peace, Reconciliation, and Justice. Among other things, this Action Plan focused on the documentation of past violations and the pursuit of truth and reconciliation mechanisms that respect the rights of both victims and alleged perpetrators. The law also appears to contravene international law.
The blanket amnesty not only shields those involved in past violations, but seems to extend a similar reprieve to current armed groups engaging in acts of terrorism and hostility throughout the country, whom the law says will be granted immunity if they agree to reconciliation with the government.
Although President Hamid Karzai had promised not to sign the bill when it was first approved in 2007, a spokesman for Mr. Karzai, Waheed Omer, said on 16 March 2010 that since it was passed by a parliamentary majority and recently published in the official gazette in December, his signature was unnecessary. On other words, the lower house of parliament (Wolesi Jirga) can override presidential objections with a two-thirds majority vote pursuant to Article 94 of the Afghan Constitution. However another provision in the Constitution could theoretically be invoked by Karzai in order to overturn this law. Article 6 obliges the state to create a society "based on social justice, [the] protection of human dignity, [and the] protection of human rights."
The legality of the amnesty could also be challenged based on Afghanistan’s commitments under international treaty law and customary international law.
While it is hard to say categorically that there is a general prohibition against amnesties in international law, international treaty law - including some of the conventions to which Afghanistan is a state party such as the Geneva Conventions, the Torture Convention, the Genocide Convention - obliges states to prosecute or extradite in relation to certain crimes. Afghanistan is also a party to the Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity (1983), which specifically bars State Parties from enacting legislation that provides for statutory or other limitations to the prosecution and punishment for crimes against humanity and war crimes and requires them to abolish any such measures which have been put in place (Article IV). The amnesty law appears to breach all of these obligations.
A reference to customary international law in the context of amnesties is particularly important for crimes which are not included in treaties, such as crimes against humanity and war crimes in internal armed conflicts. There is no clear answer as to whether customary international law generally prohibits amnesties for serious crimes. However, according to scholars including Anthony Cassese, despite some evidence of state practice to the contrary, there is a gradual evolution of a customary prohibition of amnesty for serious crimes. Cassese argues that States’ general obligation to uphold fundamental human rights is incompatible with impunity or blanket amnesties for serious international crimes.
There is a growing consensus among states and the United Nations that amnesties for international crimes are illegal. Principle 24 (a) of the UN Commission on Human Rights’ ‘Principles For The Protection And Promotion Of Human Rights Through Action To Combat Impunity’ says that “Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds: the perpetrators of serious crimes under international law may not benefit from such measures until such time as the … perpetrators have been prosecuted before a court with jurisdiction”.
Moreover, the UN Secretary General in his report on the establishment of the Special Court for Sierra Leone of October 2000 reiterated that: "the UN has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law." The Trial Chamber of the International Criminal Tribunal for Former Yugoslavia (ICTY) ruled in the case Prosecutor v. Furundzija on 10 December 1998 that amnesties for torture were prohibited under international law (paragraph 155).
Supporters of the amnesty law say that allowing prosecutions would risk another civil war, and that in any case, it still allows individuals to bring criminal claims against perpetrators. However, as mentioned above, international law requires states to investigate and prosecute serious crimes and human rights violations, obligations that cannot be transferred to individuals. Further, Human Rights Watch reports that access to justice for individuals is severely limited in Afghanistan, where the judicial system is almost dysfunctional, corruption is widespread, and there is no witness protection system.
Any attempt to extend the amnesty to cover recent or current fighting would be limited by the role of the International Criminal Court, to which Afghanistan has been a party since it ratified the Rome Statute on February 10, 2003. This means that the ICC has jurisdiction over war crimes and crimes against humanity committed on its territory after that date– whether by Afghan or international forces. A domestic amnesty would not affect the ICC’s power to prosecute an individual suspected of international crimes. It was reported in September that the Office of the Prosecutor of the International Criminal Court has started gathering information on alleged war crimes in Afghanistan.
Conflict has raged in Afghanistan since 1978, when the Marxist-Leninist People’s Democratic Party of Afghanistan (PDPA) staged a coup against then-President Mohammed Daoud Khan. The Soviet Union invaded the following year, installing a puppet regime that held power until 1992. Four years of chaos were followed by the rise to power of the Taliban, who controlled Kabul and much of the country until they were deposed following the US attack in 2001. War crimes including the massacre of tens of thousands of Afghans, widespread torture and indiscriminate bombing of residential areas were endemic throughout the conflict.
Among the most notorious incidents were the massacre by Uzbek fighters of 3,000 Taliban prisoners in Mazar-i-Sharif in 1997, and the killing of at least 2,000 people, mainly ethnic Hazaras, by the Taliban the following year .
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Will American War Crimes Be Revealed?
Like Vietnam vets did decades ago, a group of soldiers are poised to speak out about atrocities they say the U.S. committed in Iraq and Afghanistan.
"It has often been remarked but seldom remembered that war itself is a crime. Yet a war crime is more and other than war ... It is an act beyond the pale of acceptable actions even in war. Deliberate killing or torturing of prisoners of war is a war crime. Deliberate destruction without military purpose of civilian communities is a war crime."
-- Former infantry platoon leader William Crandell opening the "Winter Soldier Investigation" in Detroit, Jan. 31, 1971
More than 100 veterans gathered in a Detroit hotel in early 1971 to talk about things they had seen and done in the Vietnam War. Called the Winter Soldier Investigation, the group spoke about a horrifying array of allegations: convoys driving over civilians; burning of villages; bodies thrown out of helicopters; torture, mutilation and infamous "free-fire zones," where anyone not wearing a U.S. uniform could be killed.
Thirty-seven years later, more than 100 veterans will gather over the next several days for "Winter Soldier: Iraq and Afghanistan." The event is designed to be another purging of the horrors of war, and another effort to put American military policy on trial in the public eye. The gathering this time, at the National Labor College outside Washington, D.C., is sponsored by the group Iraq Veterans Against the War. "Soldiers will certainly be testifying about their experience and observation of actions which are absolutely in violation of international law," says IVAW spokesperson Perry O"Brien, who served as an Army medic in Afghanistan in 2003.
In interviews with Salon, several veterans from the group described incidents in Iraq that they believed constituted wrongdoing by the U.S. military, including disproportionate use of air power resulting in civilian deaths. The soldiers were unable to provide Salon with any conclusive evidence of war crimes. But as the fifth anniversary of the U.S. invasion of Iraq approaches, the allegations they and other Winter Soldier members will publicize in Washington this week add to a long-term set of questions about the damage and destruction wrought by U.S. military operations over years of war.
The first Winter Soldier Investigation, sponsored in 1971 by Vietnam Veterans Against the War, ultimately helped fuel the antiwar movement in the United States. And the kinds of atrocities in Vietnam they alleged have been well documented since then. The first event also resulted in the Senate Foreign Relations Committee asking John Kerry, the young veteran who would go on to be a U.S. senator, to testify three months later, when he famously asked, "How do you ask a man to be the last man to die for a mistake?"
In fact, the first Winter Soldier investigation was largely ignored by the media, initially. "I don't think we had nearly the effect we had hoped for," the Vietnam veteran Crandell told me in a telephone interview. "The reporters on the scene were very impressed," he said. "But the networks sat on it." Perhaps that was because it was held in the Motor City (a bad decision then, organizers admit). Perhaps it was because the country wasn't yet ready to hear how a seemingly invisible enemy in Southeast Asia had driven otherwise honorable American soldiers to commit unthinkable atrocities, including acts that were officially or unofficially condoned by military policy.
It is unclear whether Winter Soldier: Iraq and Afghanistan will gain wider attention from the media and the public, but its organizers say that today's technology could make a difference. "The modern soldier carries a digital camera almost as a sidearm," explained O'Brien. The group says that potentially explosive photos and video from Iraq displayed at this Winter Soldier investigation will help "expose the human consequences of failed policy" in the war zones. The searing images from Abu Ghraib, of course, came to light because soldiers working inside the prison made use of their personal digital cameras.
The veterans of Winter Soldier face the challenge of condemning U.S. military policy without the event being interpreted as -- or twisted into -- an unpatriotic attack on their fellow troops. "That is the tightrope they have to walk," explained Rick Weidman, a Vietnam veteran and director of government relations at Vietnam Veterans of America. "Don't blame the troops who are thrust into the middle of a goddamn civil war where you can't tell who the enemy is." He added: "You don't blame the troops for being put in an impossible situation. Some of this stuff is part of war. You could not retake Fallujah without what many people consider atrocities."
Vietnam veterans faced a similarly difficult balancing act 37 years ago. When Crandell opened the Winter Soldier Investigation in 1971, he tried to make it clear that the event was not intended to put American troops on trial. "There will be no phony indictments; there will be no verdict against Uncle Sam," Crandell said back then. The testimony, he argued, was supposed to expose "acts which are the inexorable result of national policy."
But it is unclear if Americans who are politically conservative will pick up on that distinction, particularly at a time when just about any critique of the war is quickly spun by both right and left. "I think they have to be as clear as they can," Crandell continued. "I still have conversations with Vietnam vets 40 years later who feel defamed by what we did. I feel sorry about that." But Crandell said this new Winter Soldier event should still go forward, "to whatever extent it helps with resolving the war or the maverick policies that need to be curtailed."
Some Iraq veterans agree that the pro-war crowd will work to create the impression that the event is an unpatriotic smear against the troops. "It troubles me a little bit," Paul Rieckhoff, executive director of Iraq and Afghanistan Veterans for America said about the coming event. "I hope that they are thinking this out, because there are plenty of people who are going to want to have their ass."
Rush Limbaugh is likely to be one who goes after them. The widely heard right-wing radio host last fall claimed that some veterans who oppose the war are, in fact, "phony soldiers."
Limbaugh has said he was referring to the case of Jesse MacBeth. Several years ago MacBeth, then an IVAW member, alleged he committed war crimes in Iraq as a soldier in the Army. In May 2006, the Army reported that MacBeth, in fact, had never served in Iraq at all.
IVAW counters that the MacBeth incident occurred before the organization put in place a requirement that members provide proof of service. For Winter Soldier, the group has also assembled a verification team of combat veterans to interview soldiers testifying, examine discharge paperwork and review corroborating evidence including additional witnesses, video and photos.
But even with all that evidence, people sitting in the audience at National Labor College may have trouble evaluating some of the testimony they hear. Wartime accounts are notoriously difficult to untangle and verify, even when coming from multiple primary sources who appear to be telling the truth to the best of their knowledge.
Soldiers are limited to a grunt's-eye-view of the world. They will tell it like they saw it, but admit that they don't have all the answers about what may have happened in a given incident.
One example that will likely be discussed at the Winter Soldier meeting in Washington involves a powerful air attack carried out on apartment buildings in Baghdad in 2003. Soldiers who witnessed the attack told Salon that they believe innocent civilians were killed. But they witnessed it at night, from a distance, and never saw direct evidence of dead civilians.
"I'm pretty sure we saw some pretty fucked-up shit," said Clifton Hicks, who was a private in the 1st Armored Division in Iraq in 2003 and 2004 and will be testifying at the Winter Soldier event. Hicks and two other soldiers from the division's 1st Squadron, 1st Cavalry Regiment described a Nov. 13, 2003, nighttime airstrike on five apartment buildings a few hundred yards outside the perimeter of Camp Slayer, their sprawling base located just south of the Baghdad airport.
In separate interviews with Salon, all three soldiers described the buildings as shoddily constructed structures, maybe four stories high. The Iraqis living there would stand and stare when the soldiers rode by on vehicle patrols. Laundry hung out to dry on the balconies. But the structures provided one of the few clear lines of sight into the soldiers' compound, and occasionally somebody would take a random pot shot at the base from one of the apartment buildings. After one such attack involving a lieutenant colonel on the base in fall 2003, the military launched an airstrike using an AC-130, a four-propeller gunship armed with powerful cannons.
The strike appears to have occurred as part of Operation Iron Hammer, an early effort to snuff out a growing insurgency through massive use of air power in Baghdad. The officer allegedly involved in calling in the airstrike, Lt. Col. Chuck Williams, was quoted on Nov. 13, 2003, by CBS News discussing Operation Iron Hammer. "If you are trying to send a message by firing and harboring yourself inside of an area like this, we want to send the message right back that you can be reached," he told CBS. "We will find you and surgically remove you." A Pentagon news article dated the next day noted only that an AC-130 "destroyed a building that had sheltered terrorists firing on U.S. forces for several days."
Steven Casey, who back then was a scout in the same Army unit, provided Salon with videotape of the strike taken from the roof of a building at Camp Slayer, date-stamped Nov. 13, 2003. While the airstrike can clearly be heard on the tape, darkness and distance render it mostly useless for verification purposes. (Word had quickly spread through Camp Slayer that the strike was coming and soldiers had gathered on a rooftop to watch.)
The Army would not comment on the airstrike. Williams, the lieutenant colonel allegedly involved in calling in the airstrike, refused a request for an interview.
But it is not just the darkness on the videotape that makes the story hard to gauge. News clips from that time period claim that the military was evacuating civilians prior to Operation Iron Hammer airstrikes, in an effort to destroy empty buildings that had been used to launch attacks on U.S. forces. Brig. Gen. Martin E. Dempsey, who commanded the 1st Armored Division at the time, claimed in a Nov. 20, 2003, press conference that "we have had no civilian casualties resulting from Iron Hammer."
Salon also contacted a human rights group, which said they had staff in Iraq at that time, but they could verify no details about the airstrike or its outcome. And the three soldiers interviewed admit that while they saw the heavily damaged buildings after the strike, nobody got out of their vehicles to see if there were, in fact, dead civilians in the rubble.
Regardless of what happened that night, dozens if not hundreds of interviews with returning veterans have shown that throughout the war, the military regularly responded to real or perceived threats with overwhelming firepower. Some of those incidents clearly resulted in unwarranted civilian deaths.Other attacks may have inadvertently resulted in an unknown but potentially significant number of civilian casualties. (It should also be said that many officers and soldiers have taken great pains to protect civilians throughout the war.)
The U.S. military's overall approach with using overwhelming force supposedly changed under the counterinsurgency strategy implemented by Gen. David Petraeus starting in early 2007. Civilians were now seen as the "center of gravity" in the war effort, and it was deemed that great lengths should be taken to protect them and win over their support. High-level military officials say Petraeus has been successful in changing the way the military conducts itself in this regard; the Air Force has implemented rigorous protocols to reduce collateral damage from airstrikes.
Still, the vast majority of the American public does not have a clear picture of what has gone on for years in Iraq and Afghanistan due to U.S. military operations. In the coming days, the new generation of veterans gathering for the Winter Soldier event hope to make it more clear.
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Demands For War Crimes Prosecutions Are Now Growing In The Mainstream
For obvious reasons, the most blindly loyal Bush followers of the last eight years are desperate to claim that nobody cares any longer about what happened during the Bush administration, that everyone other than the most fringe, vindictive Bush-haters is eager to put it all behind us, forget about it all and, instead, look to the harmonious, sunny future. That's natural. Those who cheer on shameful and despicable acts always want to encourage everyone to forget what they did, and those who commit crimes naturally seek to dismiss demands for investigations and punishment as nothing more than distractions and vendettas pushed by those who want to wallow in the past.
Surprisingly, though, demands that Bush officials be held accountable for their war crimes are becoming more common in mainstream political discourse, not less so. The mountain of conclusive evidence that has recently emerged directly linking top Bush officials to the worst abuses -- combined with Dick Cheney's brazen, defiant acknowledgment of his role in these crimes (which perfectly tracked Bush's equally defiant 2005 acknowledgment of his illegal eavesdropping programs and his brazen vow to continue them) -- is forcing even the reluctant among us to embrace the necessity of such accountability.
It's almost as though everyone's nose is now being rubbed in all of this: now that the culpability of our highest government officials is no longer hidden, but is increasingly all out in the open, who can still defend the notion that they should remain immune from consequences for their patent lawbreaking? As Law Professor Jonathan Turley said several weeks ago on The Rachel Maddow Show: "It's the indictment of all of us if we walk away from a clear war crime." And this week, Turley pointed out to Keith Olbermann that "ultimately it will depend on citizens, and whether they will remain silent in the face of a crime that has been committed in plain view. . . . It is equally immoral to stand silent in the face of a war crime and do nothing."
That recognition, finally, seems to be spreading -- beyond the handful of blogs, civil liberties organizations and activists who have long been trumpeting the need for this accountability. The New York TimesEditorial Page today has a lengthy, scathing decree demanding prosecutions: "It would be irresponsible for the nation and a new administration to ignore what has happened . . . . A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse." Today, Politico -- of all places -- is hosting a forum which asks: "Should the DOJ consider prosecuting Bush administration officials for detainee abuse as the NYT and others have urged?" Even Chris Matthews and Chris Hitchens yesterday entertained (albeit incoherently and apologetically) the proposition that top Bush officials committed war crimes.
Perhaps most notably of all -- and illustrating the importance of finally having someone like Rachel Maddow occupy such a prominent place in an establishment media venue -- Democratic Sen. Carl Levin, one of the Senate's most restrained, influential and Serious members, was prodded by Maddow last night into going about as far as someone like him could be expected to go, acknowledging the necessity of appointing a Prosecutor to investigate top Bush officials for the war crimes they committed and to determine if prosecutions are warranted:
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To be sure, the political class still desperately wants to avoid meaningful investigations and prosecutions, in no small part because every key component of it -- including the leaders in both parties -- are implicated by so much of it. But as more undeniable evidence emerges of just how warped and criminal and heinous the conduct of our top political leaders has been -- and the more Dick Cheney and comrades resort to openly admitting what they did and proudly defending it, rather than obfuscating it behind euphemisms and secrecy claims -- the more difficult it will be to justify doing nothing meaningful. That is why, even as the desire to forget about the Bush era intensifies with the Promise of Obama ever-more-closely on the horizon, the recognition continues to grow of the need for real accountability.
The weapons used to prevent such accountability are quite familiar and will still be potent. Those who demand accountability will be derided as past-obsessed partisans who want to impede all the Glorious, Transcendent Gifts about to be bestowed on us by our new leaders. The manipulative claim will be endlessly advanced that our problems are too grand and pressing to permit the luxury of living under the rule of law. When all else fails in the stonewalling arsenal, impotent "fact-finding" commissions will be proposed to placate the demand for accountability but which will, in fact, be designed and empowered to achieve only one goal: to render actual prosecutions impossible.
But with these new, unprecedentedly stark revelations, this facade will be increasingly difficult to maintain. It is already the case, as the TimesEditorial today notes, that "all but President Bush’s most unquestioning supporters [i.e., this] recognized the chain of unprincipled decisions that led to the abuse, torture and death in prisons run by the American military and intelligence services." That leaves only two choices: (1) treat these crimes as the serious war crimes they are by having a Prosecutor investigate and, if warranted, prosecute them, or (2) openly acknowledge -- to ourselves and the world -- that we believe that our leaders are literally entitled to commit war crimes at will, and that we -- but not the rest of the world -- should be exempt from the consequences. The clearer it becomes that those are the only two choices, the more difficult it will be to choose option (2), and either way, there is great benefit just from having that level of clarity and candor about what we are really doing.
http://www.icrc.org/web/eng/siteeng0.nsf/html/5KZMNU
How Are War Criminals Prosecuted Under Humanitarian Law?
Extract from ICRC publication "International humanitarian law: answers to your questions"
US Doctors Experimenting in Torturing Detainees - Shades of Nazi's Dr. Mengele.
Submitted by War Criminals Watch on Thu, 2010-06-10 21:25
http://www.afterdowningstreet.org/node/53036
Physicians for Human Rights Issued the Press Release Denouncing the Horrendous Breach of Ethics and Morality.
A broad coalition of human rights, health, and religious groups filed a formal complaint today with the US Department of Health and Human Services Office for Human Research Protections (OHRP) against the Central Intelligence Agency. This action is in response to new revelations by Physicians for Human Rights that the CIA allegedly engaged in illegal human subject research and experimentation on detainees as part of Bush-era interrogation practices. The CIA has denied the allegations and has refused to investigate evidence of experimentation presented by Physicians for Human Rights in a report entitled Experiments in Torture: Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program. The report is available at http://phrtorturepapers.org/?p=430
The following groups have joined the OHRP complaint so far:
“OHRP has a legal responsibility to investigate these disturbing new allegations about the CIA and possible illegal human experimentation on detainees, despite the refusal by Langely and the White House to do so,” stated Nathaniel Raymond, lead author of the Physicians for Human Rights report. “OHRP has a reputation for enforcing strict adherence to human research protections, which it must bring to bear against any CIA malfeasance that it uncovers.”
Reverend Richard L. Killmer, Executive Director of the National Religious Campaign Against Torture, stated, “The world recognized after World War II that illegal experiments on human beings go even beyond torture in defiling and breaking human beings. The National Religious Campaign Against Torture is joining the complaint asking the federal Office for Human Research Protections to investigate human experimentation on detainees by the CIA and is also continuing its call for a Commission of Inquiry to investigate ALL torture practices by the U.S. government since 9/11 and to recommend the needed safeguards to assure that U.S. sponsored torture will never happen again.”
Tom Parker, Amnesty International USA’s Policy Director for Terrorism, Counterterrorism and Human Rights, said: “Physicians for Human Rights’ report makes it clear that, if nothing else, mental health professionals on the US government payroll provided ‘material support’ to torture. We are calling on the relevant authorities to conduct a full investigation into these activities as they are required to do by law.”
OHRP is mandated by federal regulations known as “the Common Rule” to investigate complaints alleging violations of ethics, regulations, and statutes governing human subject research that is funded or conducted by the US government. The CIA is one of seventeen federal agencies covered by the Common Rule. OHRP can sanction institutions or government agencies receiving federal research monies that violate these standards. Sanctions can include suspension of research funds and activities, as well as referral of cases to other agencies, including the US Department of Justice.
Said Psychologists for Social Responsibility (PsySR) President-Elect, Stephen Soldz: “Psychological research is built upon the fundamental principles of informed consent and concern for the welfare of those we study and should never be used for harm. The new Physicians for Human Rights report on research and experimentation by the CIA suggests that psychologists and other health professionals in the “enhanced interrogation” torture program violated this fundamental ethical obligation. We call upon the Office of Human Research Protections, the Justice Department, and professional associations to investigate and sanction those found to have participated in this illegal and unethical research.”
The organizations filing the complaint with OHRP announced that they would mobilize their individual members to sign onto the complaint. This represents a unique moment where individual citizens and others concerned about detainee abuse and research ethics can directly request a formal investigation of alleged detainee abuse.
“Human experimentation is repugnant, and offensive to the post-WWII legacy that our nation’s veterans fought and died to establish,” said Shahid Buttar, Executive Director of the Bill of Rights Defense Committee. “Until senior officials responsible for human experimentation and torture programs face justice, our nation will continue to violate (and erode) the international laws we helped establish 60 years ago. Meanwhile, a legitimacy crisis continues to undermine our courts and prisons — which imprison millions of Americans, but none of the politically connected officials who continue to stand above the law.”
Center for Constitutional Rights Attorney Gitanjali S. Gutierrez emphasized, “These crimes must be investigated and health professionals held accountable. This complaint must also be the beginning of a more thorough investigation into the treatment of men in the custody of other US agencies, particularly Department of Defense, and held at the secret ‘Camp No’ at Guantánamo where the accounts of soldiers stationed at the base at the time have suggested our clients were tortured to death.”
Dr. Steve Miles, board member of the Center for Victims of Torture, professor at the Center for Bioethics, Department of Medicine at the University of Minnesota Medical School and author of Oath Betrayed: America’s Torture Doctors, agreed, stating, “As an organization committed to healing torture survivors and ending the practice of torture, the Center for Victims of Torture (CVT) is appalled by the implications of this report, and renews its call for an independent non-partisan commission to examine and report publicly on torture and cruel treatment of prisoners since September 11, 2001. Such a commission should be adequately funded and given subpoena power and a mandate to fully examine the facts and circumstances of such abuses and to recommend measures to prevent future abuses. ”
