International organizations such as United Nations (UN) tribunals and the International Criminal Court (ICC) have had some success in prosecuting war criminals, but they are ineffectual in prosecuting suspects from powerful states. Individuals who act on behalf of powerful states have enjoyed impunity, though war crimes are evident, while some deposed leaders from less powerful states are brought to justice. This paper will present some examples of successful prosecutions, and give examples of possible war crimes perpetrated by the United States. Finally, this paper will present the proposition that adherence to international treaties would have restrained the US actions in Iraq that exacerbated the threat of terrorism.

The history of international prosecutions started soon after the Nuremberg trials when in 1946 a call was made for an international criminal code prohibiting crimes against humanity. In 1948 the UN General Assembly (GA) adopted the Convention on the Prevention and Punishment of the Crime of Genocide, and also the Universal Declaration of Human Rights. The major cold war powers hindered the creation of the ICC from 1949 – 1954. In 1974 the UN defined aggression. In response to the wars in Bosnia-Herzegovina and Croatia the UN Security Council created a tribunal for the former Yugoslavia. In 1994 the Security Council created a war crimes tribunal for Rwanda. In 1995 the NGO Coalition for the ICC was created to help coordinate human rights organizations such as Amnesty International, Asociación Pro Derechos Humanos, Fédération Internationale des Ligues des Droits de l’Homme, Human Rights Watch, Lawyers Committee for Human Rights, No Peace Without Justice, Parliamentarians for Global Action, Rights & Democracy and the Women’s Caucus for Gender Justice. In 1998 the Rome Statute of the ICC was formed. In 2002 the Bush administration announced its intention not to ratify the Rome Statute and to disregard the US signature under the Clinton Administration, and also pressured the Security Council to give UN peacekeepers immunity. The Board of Directors of the Victims Trust Fund of the ICC includes Queen Rania Al-Abdullah of Jordan, Oscar Arias Sanchez, former President of Costa Rica and Nobel Peace Laureate, Tadeusz Mazowiecki, former Prime Minister of Poland and former Special Rapporteur on the United Nations Commission on Human Rights on the Territory of the former Yugoslavia, Simone Veil, former Minister of Health of France and former President of the European Parliament, and Archbishop Desmond Tutu, former Chairman of the Truth and Reconciliation Commission of South Africa and Nobel Peace Laureate. In January 2004 the ICC prosecutor referred Uganda to the court for investigation and in April 2004 the Congo. In 2005 the SC referred Darfur, Sudan to the ICC. In 2006 the ICC made its first arrest of the Congo's Thomas Lubanga Dyilo who was transferred to The Hague (iccnow, “coalition timeline” 1-5).

Von Oppeln describes the Geneva conventions as explicitly saying, “First, starving the civilians as a method of warfare is prohibited. Secondly, with few exceptions it is prohibited to attack, destroy, remove, or render useless objects indispensable for the survival of the civilian population, e.g. food, agricultural areas, crops, livestock, drinking water installations and supplies and irrigation works” (Von Oppeln 8). The International Committee of the Red Cross is the only humanitarian organization authorized to represent civilians during war. Civilians can bring violations to the UN but it is very difficult to do so as many hurdles are put in the way. “The protection of civilians in armed conflict would be largely assured if combatants respected the provisions of international humanitarian and human rights law.” (Von Oppeln 19) Convention IV of the Geneva conventions was written in 1907 and was signed by the United States. It describes the protection of civilians in time of war, and requires that they be treated humanely, without cruel treatment or torture, and without “outrages upon personal dignity, in particular humiliating and degrading treatment” (ICRC, “convention”). Partial exceptions are made where a

“…person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be” (ICRC, “Convention IV”).

According to the Project on International Courts and Tribunal, ”The United States has been central to the creation and development of international courts and tribunals since the early 1900's. Currently, there is a perception that the US is unwilling to participate in, or comply with, such courts and tribunals” (PICT, “Project”). The United States appears to be an outlier on this issue. In the past twenty years, prosecutions have taken place against Jean Kambanda of Rwanda, Slobodan Milosevic of Yugoslavia, Milan Milutinovic of Serbia, Biljana Plavsic of Srpska, Jorge Videla of Argentina, Charles Taylor of Liberia, officers under Pinochet of Chile, and leaders of the Khmer Rouge of Cambodia. (Neier). Some prosecutions were made by tribunals and others by the International Criminal Court. Unlike the ad hoc tribunals, the ICC does not have jurisdiction that is retrospective to crimes committed before the ICC was created. Often, the ICC’s power is in shame and pressure on in-country courts to do their duty. Not all criminals come to trial. "Behind much of the savagery of modern history lies impunity. Tyrants commit atrocities, including genocide, when they calculate they can get away with them" (Roth). Another method, besides tribunals and the ICC, is universal jurisdiction. This concept is utilized when a nation prosecutes a person regardless of where the person has taken refuge. Precedent for this universal jurisdiction includes agreements on hijacking dating from 1970, the prosecution of Adolf Eichmann in Jerusalem in 1961, and the Torture Convention of 1984. The United States uses the principal of universal jurisdiction when it prosecutes terrorists or drug traffickers, such as Panamanian dictator Manuel Noriega. Another example is Japan's arrest of American military for rape on Okinawa (Davis). The United States was in favor of universal jurisdiction at the time of the 1984 Torture Convention. At the time, the State Department said:

“The United States strongly supported the provision for universal jurisdiction, on the grounds that torture, like hijacking, sabotage, hostage-taking, and attacks on internationally protected persons, is an offense of special international concern, and should have similarly broad, universal recognition as a crime against humanity, with appropriate jurisdictional consequences” (qtd. in GoldStone 2).

Universal jurisdiction was used when Augusto Pinochet of Chile was held in Britain on a extradition attempt made by a Spanish judge. The judge was investigating the death of Spanish nationals in Chile during a time when over 3000 people disappeared. "It was an American covert operation run by the CIA that paved the way in the early 1970s for the military coup against [the left-wing President] Salvador Allende" (Fryer). The extradition attempt was, in the end, unsuccessful.

Universal jurisdiction has limits, as shown in the previous example, and so does the ICC. In addition to the lack of retrospective jurisdiction, it lacks support from countries such as the United States. It may have indirect effects as it pressures nations to exercise domestic prosecution. “The best way for a state to safeguard its nationals from ICC proceedings is simply to exercise its own jurisdictional responsibilities” (Davis). American critics of the ICC are afraid it will become so powerful that it is independent of states. Supporters of the ICC hope for the same thing in order “either to constrain American power or to act on a duty to prosecute to end impunity for perpetrators” (Rodman). Both may be overestimating the potential of the ICC. The Rome statute forces the court to depend on sovereign cooperation, so that “the strength of the perpetrators and the limits of one's power would make legal proceedings either futile or counterproductive to other interests and values. Hence, decisions to prosecute must first be subjected to a test of political prudence, and then take place according to due process and the rule of law” (Rodman).

Prosecution has evolved from holding only the state responsible, to holding individuals responsible. The Nuremberg Tribunal “rejected the doctrine of state immunity in favor of a doctrine of individual criminal responsibility” (Hakki).

The United States has its own sordid past where, in the death of 500 civilians, the courts were unable or unwilling to prosecute senior officials:

“On 16 March 1968, Company C, 1st Battalion, 20th Infantry Regiment staged a helicopter assault on what was thought to be a Viet Cong base camp in or near the village of My Lai. They were not fired on when they landed, and the four to five hundred villagers were mostly old men, women, and children who had withdrawn into shelters when U.S. artillery and helicopter gunships softened up the target. Company C killed nearly everyone they found, including infants. Many of the women were raped and sodomized as well. Lt. Calley was, in fact, the only perpetrator to be convicted [but later pardoned]” (UPA, “Peers”)

The United States invasion of Cambodia in 1970 and the Christmas bombings of North Vietnam, orchestrated by Henry Kissinger, have been described as war crimes, but have never been prosecuted. The Christmas bombings included a hospital and residential areas where 2200 civilians were killed. The Swedish prime minister compared them to the Holocaust (Hanhimaki 254). Kissinger was never prosecuted for the “illegal carpet-bombing of neutral Cambodia, designed to deprive North Vietnam of troops and supplies, but which sowed the seeds for the murderous Pol Pot regime" (BBC, “Henry Kissinger Haunted”). An attempt was made by Spain to extradite Kissinger for questioning in the Pinochet case regarding his and the CIA’s role in “Operation Condor” which has been called “international terrorism” (Botsford).

More recent examples come from Abu Ghraib. Janis Karpinski, the former commander of the prison, “accused the American Secretary of Defense, Donald Rumsfeld, of directly authorizing Guantanamo Bay-style interrogation tactics (Coman). Article 17 of the Geneva Convention “is considered part of the customary law of armed conflict. This means that even States not party to this Convention are bound by its rules (Knoops). It states that captors may not use physical or mental torture, may not be threatened, nor insulted. It defines torture as inflicting severe physical or mental pain or suffering. Even the Israeli Supreme Court has upheld the illegality of these methods:

“According to the existing State of the law, neither the government nor the heads of security services possess the authority to establish directives and bestow authorization regarding the use of liberty-infringing physical means during the interrogation of suspects suspected of hostile terrorist activities, GSS lacks the authority to employ any of the above-mentioned interrogation methods” (qtd. in Knoops).

Precedent upholding the illegality of abuse also exists in Europe where the European Court of Human Rights (ECHR) condemned techniques used by the British police against suspected Northern Irish terrorists including “stress positions”, “hooding”, and deprivation of sleep, food, or drink. (Knoops). The Supreme Court in Rochin v. California said, “So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society” (qtd. in GoldStone). “Experience in both democratic and oppressive societies demonstrates that law enforcement authorities will use torture and degrading treatment unless they fear the real prospect of being exposed publicly or, even more importantly, being punished for ordering or allowing its use” (Goldstone 3).

The current US administration seems to consider itself exempt from international law and seems not to see any long-term negative consequences to this exemption.

“In 2002, White House counsel Alberto Gonzales passed on to Bush a memorandum on torture by the Justice Department's Office of Legal Counsel (OLC). As noted by constitutional scholar Sanford Levinson: ‘According to the OLC, ‘acts must be of an extreme nature to rise to the level of torture… Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'‘ Levinson goes on to say that in the view of Jay Bybee, then head of the OLC, ‘The infliction of anything less intense than such extreme pain would not, technically speaking, be torture at all. It would merely be inhuman and degrading treatment, a subject of little apparent concern to the Bush administration's lawyers’” (Chomsky).

Violations to the Geneva Conventions have been alleged on the Iranian battlefield in the 2004 assault on the city of Falluja. Chomsky alleges it was depopulated via bombing, hospitals were targeted, patients forced from their beds, and the Red Crescent was denied access to the city.

“The UN Special Rapporteur on the Right to Food, Jean Ziegler, accused US and British troops in Iraq of ‘breaching international law by depriving civilians of food and water in besieged cities as they try to flush out militants’ in Falluja and other cities attacked in subsequent months. US-led forces ‘cut off or restricted food and water to encourage residents to flee before assaults,’ he informed the international press, ‘using hunger and deprivation of water as a weapon of war against the civilian population, [in] flagrant violation’ of the Geneva Conventions. The U.S. public was largely spared the news. Hatred of the United States, he continued, is now rampant in a country subjected to years of sanctions that had already led to ‘the destruction of the Iraqi middle class, the collapse of the secular educational system, and the growth of illiteracy, despair, and anomie [that] promoted an Iraqi religious revival [among] large numbers of Iraqis seeking succor in religion’ (Chomsky).

In September of 2004, UN Secretary General Kofi Annan told the BBC that the U.S./British invasion of Iraq was illegal under international law. Americans are not exempt from international law. The “supremacy clause” of article VI of the United States Constitution grants international treaties the same status as federal law. The Kellogg-Briand Pact made aggression illegal and rejected “preemptive self-defense”. The UN Charter cites that document. “The German defendants at Nuremberg defended their invasion of Norway on grounds very similar to those cited by President Bush today, claiming a reasonable fear that Norway would become a base for an Allied attack on Germany. The US Supreme Court has cited the Kellogg-Briand Pact, Article 39 of the UN Charter and the London Treaty (which established the Nuremberg War Crimes Tribunal) as the relevant body of international law regarding cases of aggressive war” (Davies). Legally, American politicians are not exempt from international law regarding illegal war and torture, though they may enjoy impunity.

"The legal prohibition against torture has the status of a peremptory humanitarian norm. That is, it is considered binding on all states and no derogation under any circumstances is permitted. As Henry Shue wrote in his classic essay of 1978: ‘No other practice except slavery is so universally and unanimously condemned in law and human convention.’5 While the practice of torture has been widespread, until recently it had come to be understood that no representatives of the state could openly admit that they would use torture for fear of being removed from office and of having their state ostracized by ‘civilized’ nations” (Foot).

Could President Bush and Prime Minister Blair be prosecuted by the ICC? Hakki lists seven possible charges: wanton destruction of property, intentionally directing attacks against civilians, bombing civilian objects such as water treatment plants, bombing towns that are undefended and not military objectives, attacks against religious buildings or hospitals, employing weapons that are indiscriminate such as cluster bombs, subjecting prisoners to cruel or humiliating treatment or torture. Jurisdiction can be triggered by the Security Council or by the prosecutor. The ICC won’t have jurisdiction over President Bush since Iraq is not a member state of the ICC and the US is not a member state. The ICC could prosecute Blair since the UK is a member, but the Security Council has veto power over any prosecutor bold enough to make the indictment.

Granted that the likelihood of prosecution of the powerful is probably nonexistent, what are the effects of these violations of international law? Foot says that “Since September 2001, however, the pre-eminence of this reputation of human rights protector or defender has been undermined.”

“The consequences of this US adjustment to its ‘valued reputation’ for other countries’ behavior are also devastating for the torture norm. Uzbekistan, for example, and prior to the 2005 announcement of US expulsion from bases in that country, had been described not as (or not only as) a human rights abuser of the severest kind, but – to quote Rumsfeld (again) in February 2004 – ‘a key member of the coalition’s global war on terror’ that has offered ‘stalwart support’ in the anti-terrorist campaign. Malaysia, previously criticized for its abuse of detainees, and indiscriminate and blatantly political uses of its Internal Security Act (ISA), has since been described as a model, moderate, predominantly Islamic country in Southeast Asia that is a ‘beacon of stability in the region’. Since 9/11 politically opportunistic behavior has been rife throughout Asia: for example, Uzbek security forces in May 2005 used indiscriminate force against civilians in Andijan, killing possibly between 200 and 700 people, on the grounds that these were groups linked with international Islamist terrorism.China has moved with alacrity to designate its problems with opposition and independence groups in Xinjiang, Tibet and elsewhere as part of the global anti-terrorist campaign. In September 2004, Beijing held what it described as an anti-terror exercise in Lhasa, involving joint operations among the army, police, paramilitary forces and militia, for no obvious security reason. Malaysian officials have tried to resist domestic calls for reform of the country’s ISA on the twin grounds that it chimes with the US Patriot Act and the US administration now supports rather than criticizes it. What is happening in Asia (and in other regions of the world) is an indication of how unrestrained many governments believe themselves to be when the most powerful state in the international system elevates counter-terrorist action above other values. Torture and other forms of abuse become commonplace and often more openly so. Shue has put this in succinct form: ‘We have no guarantee that a precedent of refraining from torture will be followed by others, but we can be sure that a precedent of engaging in torture will be followed’” (Foot).

One ray of hope is that the Carter Center believes that awareness is growing that this experiment in human rights abuse is counterproductive. In other words, government are once again beginning to realize that it doesn’t seem to work. Fowles sees potential that "a future Adolf Hitler may point to the U.S. action [in not joining the ICC] in telling his followers that they need not fear being held accountable” (Fowles). The “invasion [of Cambodia in1970] could be used by anyone else in the world as a precedent for invading another country in order, for example, to clear out terrorists” (Shawcross 156). Preemptive action by the US against Iraq could encourage India to do the same against Pakistan.

The perception of the United States harboring war criminals does nothing to win the hearts and minds of potential terrorists. The prevailing attitude of an Islamic fundamentalist is that of moral outrage against the United States. Rosen describes Salafi prisoners’ outbursts in a trial in Jordan of suspected terrorists: “‘Jihad is not guilt,’ shouted another. ‘Is jihad in the way of Allah guilt? Fighting the Americans and Jews and infidels is now guilt? We are protecting the honor of our sisters in Iraq. Is that guilt?” To the Salafis, every action by the United States is on trial, and anything resembling immorality (such as materialism and modernity and abuse of power) is condemned.

“Salafis seek to purify Islam of innovations introduced over the centuries since the Prophet first received his revelations from God. They wish to return to a way of life within the Sunni tradition similar to that of the early Muslim community, basing their lives on the Koran and the sunna, or the recorded words and deeds of the Prophet. Often erroneously called Wahhabis, a term some incorrectly use to describe the strict Saudi brand of Islam, Salafis argue that the Koran is the literal word of God and not subject to interpretation. Although the original meaning of ‘jihad’ meant to strive or to struggle to improve oneself, to the young men on trial and others like them, jihad has come to mean holy war against the enemies of Islam. These jihadist Salafis, or takfiris, were pouring into Iraq to fight the Americans and the Shias. To Salafis, Shias are beyond the pale, worse than Christians or Jews, and they are referred to as rafidha, or rejectionists, a pejorative equivalent to the word ‘nigger.’ Not all Salafis engage in violence. Muhammad Nasir al-Din al-Albani, who brought Salafism to Jordan in the 1970s, was a traditionalist who eschewed political activism, preferring to focus on theological issues and obey the tradition that demand fealty even to unjust rulers. Reformists seeking Radical Islam had received a needed boost from the Afghan jihad that began in 1979, but it was after the first Gulf War of 1991 that jihadism became an international ideology. The Saudi government’s dependence on the American infidels to protect it from Saddam Hussein, and the U.S. presence in the holiest Muslim land, coincided with the jihadhis’ increasing resentment of their own governments. Arabs who had fought in Afghanistan against the Soviet occupation began returning home and sought to bring the jihad with them. The planners of the American war in Iraq hoped that the democracy they were certain would replace Saddam’s dictatorship would spread to other authoritarian states. Nearly three years later, with religious parties dominating the Iraqi elections, Hamas winning the Palestinian elections, the Muslim Brotherhood increasing its power in Egyptian elections, and regimes in the region appearing unthreatened by democracy, it was radical Islam that experienced a renaissance, and jihad was resurgent. The followers of Ibrahim also had to renounce impious tyrants, naming them and their followers as infidels. Such ‘tyrants’ might include graves, a reference to the Sufi and Shia practice of visiting the graves of saints and revered imams. ‘Tyrants’ could also include the laws made by men. It was one’s duty to expose all such forms of worship and idolatry. According to Maqdasi, democracy was a heretical religion and constituted the rejection of Allah, monotheism, and Islam. It was an innovation (bid’a) that placed the people (the ‘tyrant’) above Islam. Only Allah could make laws (Rosen).

The United States’ lack of restraint fuels the fire of extremism. Extremists cite the invasion of Panama, Iraq and Somalia, and the use of nuclear bombs on Japan as evidence of US immorality. “Although in the past most recruits were uneducated and poor, Khreis said, ‘after the war in Iraq, many educated men joined, like engineers. This was new. Most men going to Iraq now are educated men from Irbid, and most are Jordanians. They come from good families.’ He added that most families of accused terrorists were proud of their sons” (Rosen). Al Qaeda sees an advantage in prolonging the war in Iraq as it is a tremendous recruiting tool. “A letter that has been translated and released by the US military indicates that Al Qaeda itself sees the continued American presence in Iraq as a boon for the terror network, which has recently shown signs of expanding into the Palestinian territories and North Africa. "The most important thing is that the jihad continues with steadfastness ... indeed, prolonging the war is in our interest," says the writer, who goes by the name Atiyah. The letter, released last week, was recovered in the rubble of the Iraqi house where Abu Musab al-Zarqawi, former leader of Al Qaeda in Iraq, was killed by a US bomb in June” (Murphy). The United States Intelligence community seems to agree. The National Intelligence Estimate (NIE) credits the Iraq war with spreading Islamic radicalism and increasing the threat of terrorism. It “represents a consensus view of the 16 disparate spy services inside government. The report ‘"says that the Iraq war has made the overall terrorism problem worse,’ said one American intelligence official” (Mazzetti).

Others charge that the war has weakened the US military, economy, reputation, and the democracy. According to Davies, “Clearly the force of current international law on aggression leaves little doubt that the United States and the United Kingdom are guilty of a serious international crime, and that their citizens are paying for this crime with increasing isolation from the international community and growing opposition to their strategic and economic interests throughout the world.”

Unrestrained behavior by the United States is alienating Latin America. President Bush’s visit to the Asia-Pacific summit was greeted with protests in Santiago, Chile. Scheman lists four contributing events: US indifference to the Argentine financial crisis of 2002, the Iraq war, the attempted coup in Venezuela, and US indifference when Bolivia’s elected leader was forced to flee. "The Bush administration simply watched as groups aligned with the drug mafias became the new power brokers. The antidrug network throughout the Andean region built with billions of dollars of US taxpayer money is now in grave danger of unraveling" (Scheman).

A recent peer-reviewed study by epidemiologists at Johns Hopkins University's Bloomberg School of Public Health and published in the Lancet estimates Iraqi civilian casualties at 400,000 to 800,000. The group Iraq Body Count disputes that number as being intuitively impossible since that number would mean a daily death toll in excess of that during the “Shock and Awe” campaign. “The great majority of deaths were also substantiated by death certificates. Ronald Waldman, an epidemiologist at Columbia University who worked at the Centers for Disease Control and Prevention for many years, called the survey method "tried and true," and added that "this is the best estimate of mortality we have" (Brown). Regardless, the numbers will be used to fan the flames of extremism.

The recent letter to President Bush from Iran’s President Ahmadinejad illustrates the attitude of more and more people around the world and illustrates the damage that unrestrained US action has had upon the US reputation:

"Can one be a follower of Jesus Christ (PBUH), the great Messenger of God, Feel obliged to respect human rights, Present liberalism as a civilization model...But at the same time, Have countries attacked; The lives, reputations and possessions of people destroyed... the entire village, city or convoy set ablaze. Or, because of the possibility of the existence of WMDs in one country, it is occupied, around one hundred thousand people killed, its water sources, agriculture and industry destroyed, close to 180,000 foreign troops put on the ground, sanctity of private homes of citizens broken, and the country pushed back perhaps fifty years. At what price?

There are prisoners in Guantanamo Bay that have not been tried, have no legal representation, their families cannot see them and are obviously kept in a strange land outside their own country. There is no international monitoring of their conditions and fate. No one knows whether they are prisoners, POWs, accused or criminals. European investigators have confirmed the existence of secret prisons in Europe too.

The people will scrutinize our presidencies. Did we manage to bring peace, security and prosperity for the people or insecurity and unemployment? Did we intend to establish justice, or just supported especial interest groups, and by forcing may people to live in poverty and hardship, made a few people rich and powerful -- this trading the approval of the people and the Almighty for theirs'? Did we defend the rights of the underprivileged or ignore them?

If Prophet Abraham, Isaac, Ishmael, Joseph or Jesus Christ (PBUH) were with us today, how would they have judged such behavior?” (CNN, "Ahmadinejad")

 

Representatives of major powers such as the United States seem to enjoy impunity from prosecution regarding actions that are likely war crimes. If these individuals had not had immunity, it might have had a restraining effect on the United States regarding civilian casualties, preemptive war, and detentions. The benefit might have been greater prestige, trust, cooperation, and security. Restraint by the U.S. could result in a less imperialist image and an image as an impartial, honest broker in the Middle East.

The prevailing attitude of radical jihadists is that of moral indignation. Perceived lack of moral action by the United States exacerbates the situation and makes the United States less secure in the future.

 

Works Cited

 

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