Bush Administration War Crimes in Iraq
Bush Administration War Crimes in Iraq
"A Society of Sheep must in time beget a Government of Wolves"
-- Bertrand de Jouvenal
1. The President and senior administration and/or government officials could be subject to the death penalty for war crimes committed by US personnel in Iraq assuming that they directed or authorized murder, torture or inhuman treatment of prisoners or, if they permitted such conduct to continue after they became aware of the abuse. The statute applies to "any US national" and there is no other limitation with regard to who can be prosecuted. But getting these ‘high officials’ prosecuted would be no easy matter even if their conduct fell well within the ambit of the statute.
Under the War Crimes Act of 1996, there are two sets of questions to determine potential criminal liability of high government officials, including the President: 1. What did they specifically order or authorize regarding interrogations of Iraqi prisoners and 2. Assuming they did not order or authorize murder, torture or inhuman treatment, what actions did they undertake once they knew of murder, torture and inhuman treatment. Under international law, once a government official is aware of profound abuses of human rights, then that official has every duty to act to stop them.
Not surprisingly, the Administration has failed to release any information about what orders the President (and other high officials) gave with respect to the interrogation of Iraqi prisoners; ie what did Bush know about the abuse of prisoners, when did he know it and what did he do to stop it. We know for example that Colin Powell advised the President on International Red Cross complaints re prisoner abuse, so when did that briefing occur, what was the President told about those complaints and what did he do in response? This information must be disclosed. But the most important issue is, legally and morally, who initiated the unlawful invasion of Iraq and why. We think we know the answers, but the reasons must be formally documented and entered into testimony by witnesses such as George Bush. Bush is certainly a key witness for deposition and if the Special Prosecutor rule had not lapsed after the excesses of Kenneth Starr we might have a chance at prosecuting George Bush and others, or at least submit Bush to a discovery process as a witness to these crimes.
So we return to the fact that the invasion of Iraq was a "crime against peace", which is the number one count and criteria in the Nuremberg Charter for indictment of the Nazi war criminals:
..'planning, preparation, initiation [and] waging of a war of aggression, or a war in violation of international treaties' - international treaties just like the Charter of the United Nations. It's what the Nuremberg Tribunal called "the supreme international crime." The President was made aware of this by a great number of international lawyers around the world before the invasion, and even if he claimed ignorance, I'm sure he's heard that ignorance of the law is no excuse. Bush and his administration and the US commanders involved are all guilty of this supreme crime. Since the war was unlawful, the many thousands of deaths predictably resulting from it are also crimes, murder in fact, for which Bush and his officials and commanders are certainly guilty in flagrante.
The Bush administration charges that the Iraq conflict was authorized by the US Congress, but the military action in Iraq is still illegal under international law. So what does that really mean? Right now there is no institution capable of punishing this supreme crime, a state of affairs that the Bush regime continues to exploit. Even the International Criminal Court (of which the United States opted out) left out the supreme crime against peace of waging an aggressive so-called ‘pre-emptive’ war without qualification. So how do we enforce the law with regard to Bush, Wolfowitz, Rumsfeld, Perle, Feith and the other perpetrators of these Iraqi war crimes?
When Belgium tried to prosecute Ariel Sharon as a war criminal, and then Tommy Franks and Rumsfeld and then Bush himself, the US government forced Belgium to repeal its 'universal jurisdiction' law -- and in fact Belgium’s law was repealed and replaced by a watered-down version. When Spain tried to apply its law of universal jurisdiction against Pinochet, the UK ignored its extradition treaties and sent him home to a safe retirement.
The United States already has a statute on the books relevant to US criminal acts in repeated abuse of Iraqi prisoners in violation of the Geneva Conventions. The question is how to make the statute work, particularly in light of what appears to be inhuman treatment of so many Iraqi prisoners in US custody - in some cases resulting in death.
So now is the time to set a new precedent. We need to create a document, a brief, that sets forth the potential for criminal/legal liability on the part of top Bush Administration officials including President Bush himself, and the need for an independent, non-Justice Department-led investigation which will educate the press, the public, and Congress to the point where enough pressure builds for serious investigations to begin. Members of Congress, for example, could call on disclosure of information about the President’s knowledge and authorization of illegal Iraqi interrogations; for example when was Bush informed about the abuses, what did he do to stop the abuse, and did he ever authorize the torture of prisoners.
Congress could also call for the appointment of a special prosecutor. The press and editorial boards must be educated so that the administration will be questioned about non-disclosure on Bush’s authorization of illegal Iraqi interrogations; likewise Rice will formally be questioned about the appointment of a special prosecutor – this would certainly qualify as newsworthy!
2. According to US Army Field Manual 27-10 the chain of command itself determines accountability for war crimes, with the highest participating officer to be held most accountable. Specifically, paragraph 501 in the manual states that commanders who ordered criminal abuse (or who knew about such criminal abuse and then consequently failed to stop or report it) are then guilty of war crimes. If you look at the public record it is clear that Gens. Sanchez and Miller ordered war crimes and both should be relieved of their command immediately: abuse of prisoners is in violation of the Geneva Conventions. As for General Abizaid, the overall commander of US forces in Southwest Asia, he admitted in his Senate hearings that he should have known about the war crimes at Abu Ghraib, so he has incriminated himself under the rules of the US Army Field Manual 27-10. In addition, Abizaid's superiors Rumsfeld and Wolfowitz certainly knew about the abuses at Abu Ghraib. By any reading of the public record (including the Taguba and Red Cross reports) it can be shown that this group of high officials either knew about the crimes at Abu Ghraib or should have known about them.
If you read the ICRC report (which has never been contradicted) at the Mejia court-martial proceedings, the widespread and systematic nature of these abuses rise to the level of crimes versus humanity, escalating throughout the chain of command. Culpability also extends to Undersecretary of Defense for Intelligence General William G. Boykin and Defense Undersecretary Stephen Cambone, who reports directly to Undersecretary of Defense Douglas Feith. And through this line it appears that Rumsfeld is ultimately culpable, because he witnessed the abuses at Abu Ghraib in the fall of 2003. Hersch's New Yorker article on Abu Ghraib claims with substantiation that Rumsfeld was totally aware of the abuse and he even signed off on the use of torture techniques. Rumsfeld was given a tour by Brig. General Janet Karpinski, who was supposed to be in charge of the prison (even though she said nothing when she was prohibited access to certain parts of the prison) and so Karpinski is accountable.
It is important to understand that the Geneva Conventions, the Hague Regulations of 1907, and the U.S. Army Field Manual all mandate that a criminal investigation must be opened with regard to ongoing prisoner abuses. President Bush, as Commander in Chief, is equally accountable under Field Manual 27-10 precisely because of his position. If you read White House Counsel's (Alberto Gonzales) memo on prisoner abuse and interrogation in Afghanistan, he specifically exempts the US from the Geneva Conventions for Guantanamo and Afghanistan, so it is clear that the President was - and is - aware of this exposure. Gonzales was apparently concerned about the future exposure that Bush and his actuators would face when held accountable for Iraqi prisoner abuse under the terms of military law.
Justice calls for due diligence and a criminal investigation of the President, however an impeachment venue is not appropriate since impeachment involves a political process and Bush's alleged war crimes have not been perpetrated in isolation; ultimately George W Bush's crimes are collective crimes versus humanity involving at least as many Defendants as appeared at Nuremburg. The Iraq fiasco certainly qualifies as a "high crime" -- of that there can be no doubt. The only doubt concerns the manner in which President Bush and his co-conspirators must now be indicted and tried for crimes versus humanity, as the alleged proponents of an unlawful and brutal war. President Bush could only perpetrate his crimes with the assistance of others, while he aided and abetted others in a collective conspiracy to commit crimes versus humanity. So once again we must consider that Rumsfeld, Wolfowitz, Perle, Feith and others bear an equal brunt in the stakes for accountability.
3. The US did not exempt itself from the Geneva Conventions respecting Iraq and there is therefore no question that US activities in Iraq are governed by the Geneva Conventions. Once the Geneva Conventions apply, so does the War Crimes Act of 1996, which is not an international statute but rather a US criminal statute. Like bank robbery, murder on federal property and many other crimes listed in Title 18 of the federal statutes, committing a war crime is a federal crime which may be prosecuted in US federal courts.
This point is clear, not just from the language of the War Crimes Act itself, but from White House Counsel Gonzales' January 2002 memo to President Bush. That memo was premised on the idea that so long as the Geneva Conventions applied to conduct in a country, then the War Crimes Act also applied. Opting out of the Geneva Conventions, Gonzales thought, might allow top US officials to argue that the War Crimes Act didn't apply, and allow them to escape prosecution. (The validity of the "opt out" gimmick has yet to be tested.)
Under the terms of the War Crimes Act of 1966, any US national who engages in war crimes is subject to imprisonment, and if death results, subject to the death penalty. A war crime is defined in the statute as a "grave breach" of the Geneva Conventions, which in turn means "murder, torture or inhuman treatment" of prisoners or detainees. Thus, theoretically at least, everyone up the chain of command, including the President, could be liable under the War Crimes Act for ordering or engaging in murder, torture or the inhuman treatment of prisoners in Iraq. Because there is no statute of limitations in death penalty cases, prosecutions of those who authorized or engaged in murder or authorized or engaged in torture or inhuman treatment of Iraqi prisoners that resulted in death could be commenced at any time in the future.
The people and especially the media must therefore pressure for reinstatement of the executive Special Prosecutor to begin his or her investigation of President Bush with immediate effect. However since the United States government is now essentially a quasi-Corporate entity itself and since mega-Corporations control the media and not the people, it is unlikely that calls for Bush's indictment will originate with the media.
Another idea is to convene an international war crimes tribunal, however it is unlikely that any foreign nation[s] would undertake a perceived political action with potentially negative long-term political effect since Bush is now a lame duck/temporary executive.
The idea we need to explore is that of a US-based war crimes tribunal to be undertaken within the context of the judicial branch with military participation in a venue most similar to courts-martial. This is a precedent-setting case and will involve precedent-setting actions in a spectrum spanning legal scholars [and experts in international law] to the Supreme Court and the military courts-martial for all of the participants from the President on down.
The idea to indict Bush, Rumsfeld, Wolfowitz, Feith and others for their war crimes may seem fantastic now, but in 1985 who could have known that the corrupt Soviet leadership would be out of business merely six years later? We must begin our preparations and groundwork to bring President Bush and his cohorts to justice by a jury of their peers in a legal venue that does not rely upon the impeachment of one individual in this collective matter, and we must begin the preparations now. MONTOYA