Wednesday, June 08, 2005

War Crimes: U.S. Insists Its Leaders [BushCo] Unaccountable to the World

War Crimes: US Insists Its Leaders [Bush & Co.] are Unaccountable to the World
By Edward Berger and Madeleine Rose

The US has escalated its efforts to place itself outside the jurisdiction of international justice. Not only has the US refused to join the International Criminal Court (ICC), but the administration insists that other countries accept that the US is above the law-or else, they lose economic and military aid. On Dec. 7, Bush signed an Appropriations Bill (HR 4818) that included a controversial provision denying economic assistance to countries that refuse to grant immunity to US citizens before the ICC. A previous bill in 2002 denied funds for military assistance to such countries. These explicit attempts to undermine the ICC are occurring amidst worldwide accusations that the US may be committing war crimes in Iraq and Guantanamo, and thus may be a strategy to protect US political and military leaders from prosecution as war criminals.

Internationally, there has been a succession of efforts to establish rules governing warfare. Best known are the four Geneva Conventions of 1949, which codified hundreds of provisions. The first two Geneva Conventions define appropriate treatment of wounded and sick members of the armed forces on land and sea, e.g., "Any attempts upon their lives or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated" [Article 12]. The third Geneva Convention defines humane and prohibited treatment of prisoners of war, e.g., "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever" [Article 17]. The fourth Geneva Convention deals with the protection of civilians and members of armed forces who are rendered noncombatant, because of sickness or wounds, e.g., "Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflicts" [Article 18]. The Geneva Conventions were updated in 1977 to provide greater protections for victims of armed conflict, e.g., "The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character" [Article 50].

Efforts to Bypass the Geneva Conventions

The US is a Party to the Geneva Conventions. Thus, the administration's arbitrary decision to label persons captured during the war in Afghanistan as "enemy combatants" rather than "prisoners of war" is highly controversial. It signals a brazen attempt by the US to circumvent the Geneva Conventions. Incredibly, Alberto R. Gonzales, the President's Counsel (and Attorney General nominee), advised Bush (Memorandum of Jan. 25, 2002) that the President could decide to ignore the Geneva Conventions, arguing that the Geneva Convention's restrictions were "obsolete.” His legal reasoning has since been repudiated by US Courts, which have ruled that the Geneva conventions do apply and that those imprisoned at Guantanamo are entitled to POW status.Recent allegations by the International Committee of the Red Cross that the US military is using tactics "tantamount to torture" on prisoners at Guantanamo imply ongoing violations of the Geneva Conventions. The horrific treatment of prisoners at Abu Ghraib violated prohibitions regarding POWs. Torture is a violation of other treaties to which the US is a Party. Torture is prohibited by the Universal Declaration of Human Rights (Article 5, General Assembly of the UN, 1948) and by the UN Convention Against Torture.

International Criminal Court: The Missing Link

While there have been multiple conventions and treaties regarding international humanitarian law designed to protect combatants and noncombatants, the missing link has been an effective legal body to interpret and enforce international law, and to hold individuals criminally responsible for the most serious violations. Following World War II, the Nuremberg and Tokyo tribunals prosecuted Axis war criminals. Nuremberg established that individuals, as opposed to abstract entities such as a State, could be held accountable for war crimes. However, tribunals have been done on an ad hoc basis, giving the impression of selective prosecution and creating omissions in who has been brought to justice. For example, no one has been tried for the "killing fields" in Cambodia.

Recognizing this limitation, members of the international community worked for over 50 years to establish an International Criminal Court (ICC). The United Nations sponsored the 1998 Conference in Rome that established the framework for the ICC. It was up to individual countries to become signatories to the Rome Statute, thereby proclaiming agreement, and then to ratify the Statute, thus becoming a Party to the ICC. As part of this process, each ICC country develops its own implementing legislation. On April 11, 2002, the Court received the 60th ratification, the number necessary to trigger realization of the ICC.

Crimes over which the ICC has Jurisdiction

On July 1, 2002, the ICC began its jurisdiction over genocide, crimes against humanity and war crimes. In the future, the ICC will also have jurisdiction over the crime of aggression. "Genocide" refers to acts committed with intent to destroy a national, ethnical, racial or religious group. A "crime against humanity" refers to a widespread attack directed against a civilian population, including murder, extermination, enslavement, deportation or forcible transfer, and rape. "War crimes" means grave breaches of the Geneva Conventions, including willful killing of protected persons, torture, and extensive destruction and appropriation of property not justified by military necessity. "War crimes" also include intentionally attacking civilians and buildings dedicated to religion or education, or hospitals. The Rome Statute also considers as war crimes the use of poison or poisoned weapons, and methods of warfare which may cause superfluous injury or unnecessary suffering, or which are inherently indiscriminate.

Heads of State Are Accountable

The ICC provisions apply equally to all persons without any distinction based on official capacity: "official capacity as a Head of State or Government, a member of a Government or parliament shall in no case exempt a person from criminal responsibility." Also, "A military commander shall be criminally responsible for crimes committed by forces under his or her effective command and control."
A goal of the ICC is to deter future war crimes. In the words of Kofi Annan: "Individual responsibility is important for two reasons: First, persons who are tempted or pressured to commit unspeakable crimes must be deterred by the knowledge that one day they will be individually called to account; And second, only by clearly identifying the individuals responsible for these crimes can we save whole communities from being held collectively guilty. It is the notion of collective guilt which is the true enemy of peace, since it encourages communities to nurture hatred against each other from one generation to the next."

Independence and Limitations of the ICC

The ICC is an independent judicial institution, although the UN had a key role in its creation. This independence is sometimes overlooked-particularly by ICC opponents and opponents of the UN. A limitation of the ICC is that it has jurisdiction only over persons who are citizens of ICC countries, or if relevant crimes have been committed on the territory of ICC countries. Thus, to be effective, the ICC needs worldwide participation. Thus far, the Statute has been signed by 139 countries and ratified by 97; therefore, more than half the 192 UN countries have ratified. ICC countries include all members of the European Union, Australia, Canada, South Africa, and recently, Afghanistan. Iraq and Iran (another prospective US target) are not Parties to the ICC (Iran has signed, but not ratified).

US Attempts to be above the Law

The US has not ratified the Rome Statute, and has taken action to be exempt from the ICC's jurisdiction. Near the end of his presidency, on Dec. 31, 2000, Clinton signed the Statute. However, in May 2002, the Bush administration defiantly "unsigned" the ICC treaty and declared its determination not to be a Party to the ICC.

Moreover, the US administration is pressuring ICC countries to exempt US citizens from the reach of the ICC, by signing Bilateral Immunity Agreements (BIA). In 2002 Congress passed the American Service Members' Protection Act, which slashed military assistance funds to ICC countries who refused to sign a BIA. Most recently, on Dec. 7, Bush signed an Appropriations Bill (HR 4818), which included an amendment by outgoing Rep. Nethercutt from Washington, eliminating Economic Support Fund (ESF) aid to ICC countries that have not signed a BIA. With a budget of $2.5 billion, the ESF promotes the foreign aid policies of the US. Over 50 countries could be affected by this antagonistic policy, including Venezuela, Ecuador, South Africa, Jordan, and Ireland.

North Bay Congressional Rep. Lynn Woolsey voted against the Nethercutt Amendment and against the final Appropriations Bill, which included the Amendment. Mike Thompson voted against the Amendment, but for the Appropriations Bill. Senator Boxer voted against the Bill; Senator Feinstein joined with the majority who voted for it.

Why Does US Want To Be Unaccountable?

Why does the US adamantly refuse to participate in the ICC and thus be unaccountable for violations of international law? The administration claims it does this to protect its servicemen and women from arbitrary prosecution. In reality, the ICC is a court of last resort and only gets involved if the national justice system is unable or unwilling to prosecute, i.e., the suspect is being "shielded from criminal responsibility." According to Dennis Kucinich, Co-Chair of the Congressional Progressive Caucus: "It is more likely that those whose protection the administrators seek wear not the uniform of our nation, but the business suits of top civilian government officials who wrap themselves in the flag and hide behind the troops while insisting upon impunity for the deadly consequences of their own political decisions."
Edward Berger is a retired math professor and lifelong social activist; Madeleine Rose is a social worker and an adjunct faculty member in the Department of Sociology at Sonoma State University.

1 Ratner, Michael, The Road to Abu Ghraib: Paved with the Legal Opinion of Alberto R. Gonzales, CommonDreams.Org November 18, 2004.

2 Statement of the Secretary General to the Inaugural Meeting of Judges, The Hague, March 2003.Coalition for the International Criminal Court, --

Peter Phillips Ph.D.Sociology Department/Project CensoredSonoma State University1801 East Cotati Ave.Rohnert Park, CA 94928707-664-2588


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