War crimes nation, USA! - International Injustice/Law

In his recent book, Professor Michael Haas lists some of America's war crimes in Afghanistan (only). If we include crimes committed in the Balkans and Iraq the case against the USA is overwhelming!

Prof. Hass fails to realise that until such time as the culpable (Bush regime and those involved in protecting it) are held accountable, the entire nation stands accused and therefore bears the full weight of responsibility.

American and Israeli war crimes compromise not only the offending nations but the courts pretending to prosecute these matters -- perhaps we should all send emails to the Hague War Crimes Courts and accuse them of flagrant bias and partiality -- IT IS PLAIN TO SEE!

Following are only a few of the crimes the USA (and its allies) commit on a regular basis:

In "Guilt About the Past," based on guest lectures that Bernhard Schlink gave at Oxford University last year, the University of Berlin law professor describes the "long shadow" cast by the perpetrators of war crimes on their descendants.

"The act of not renouncing, not judging and not repudiating carries its own guilt with it," he states in the book published in January by University of Queensland Press.

Last week in this column I discussed issues of guilt and atonement as they relate to Germany and Japan. This week I will examine how concepts of responsibility and self-questioning apply to the United States of America.

U.S. presidents, secretaries of state and defense, and members of Congress are certainly quick to point out perceived human rights' abuses and political crimes committed in other nations. The assumption is always that the U.S. occupies the moral high ground of human dignity -- so allowing Americans to believe in themselves as altruistic and selfless.

OK, they tell themselves, we have made mistakes; but our actions have always stemmed from pure motives. Others' evil actions are motivated by intolerance and greed; our own regrettable actions are aberrations.

In fact, buried deep in America's moral high ground are the bones of millions of victims of whom most Americans seem purposefully oblivious.

Schlink speaks of the need to "master the past" -- that is, to come to terms with your nation's crimes through law, atonement and reconciliation for all involved. If Americans wish to avoid repeating the tragic blunders and crimes committed in Vietnam and Iraq (to name just two war zones), they would do well to heed his message:

"Guilt also reaches those who do not actively separate themselves from the perpetrators and participants through dissociation, judgment or repudiation."

In other words, it is not sufficient to merely "regret" past actions and believe that "looking forward" and "getting the country moving again" are substitutes for atonement. Future generations must, to use Schlink's term, "master the past" by taking responsibility for it. Americans demand this of others -- why not of themselves?

Let's get specific.

The U.S. is guilty of conducting the most massive campaign of chemical warfare since World War II -- far exceeding anything perpetrated by Saddam Hussein against the Kurds of Iraq. Between 1962 and 1970, American planes sprayed the countryside of Vietnam with dioxin in order to defoliate wooded areas its opponents used to hide themselves and their supply routes from aerial observation.

Of the 3 million Vietnamese estimated to have been exposed directly to this dioxin (known in the U.S. as Agent Orange), 1 million are acknowledged to have suffered serious health problems as a consequence. In addition, some 150,000 children have been -- and continue to be -- born with birth defects attributed to the use of this weapon of mass destruction.

However, all appeals by Vietnamese officials to the U.S. to apologize and pay reparations or compensation have fallen on deaf ears. The U.S. government has awarded up to $1,500 a month to the 10,000 U.S. service personnel adversely affected by Agent Orange. Why hasn't this been extended to non-American victims?

What is the difference between this and Japan's discrimination against non-Japanese radiation victims of Hiroshima and Nagasaki? Why are Americans so averse to recognizing guilt for actions toward others?

This tendency to bury, rather than master, the past is all the more conspicuous when crimes are being committed in the present.

The U.S. spearheaded an illegal war, based on false premises, in Iraq, and for the past six years has killed, maimed and traumatized millions of that country's citizens. Most Americans now consider the war a strategic error. But has anyone in power, even President Barack Obama, who opposed it from the beginning, spoken in terms of guilt and atonement? Do Americans care about the fates of those millions of people whose lives their state's actions have ruined?

Several weeks ago, Patrick Leahy, chairman of the Senate Judiciary Committee, proposed the establishment of a truth commission to investigate illegal practices by members of the Bush administration. Yet President Obama has repeatedly stated his opposition to this, instead declaring that he wants "to get it right [by] moving forward."

There's the political rub. By proposing "change we can believe in," as Obama has, you emphasize the importance of the future by bypassing serious reflection on the past. It's as if you go to the PAST file, highlight it and hit the DELETE button. Then you simply create a new file headed NEW IDEALS.

As Schlink puts it, ignoring past crimes has entangles you in them whether you like it or not. He writes:

"The principle is as follows: to not renounce the other includes one in that person's guilt for past crimes, but so that a new sort of guilt is created. Those in the circle of solidarity who are themselves not guilty through actions of their own, bring about their own guilt when . . . they do not respond by dissociating themselves from those who are guilty."

For instance, Americans are naturally perturbed by the intense animosity expressed toward them by Iranians -- yet they seem ignorant of the fact that their Central Intelligence Agency, together with British intelligence, engineered a coup against Iran's democratically elected government in 1953. Similarly, if the governments of Venezuela, Bolivia, Nicaragua and Chile have vented criticism against the U.S., wouldn't it be helpful if Americans were aware of their country's active intervention in Latin America to subvert the development of democratic processes?

These are old stories. Yet they need to be analyzed not as strategic or tactical errors, but as seriously unethical transgressions.

The Obama ideology of "moving ahead" without attempting to redress past wrongs implicates those in the present all over again. Even as the Obama reboot sweeps the old icons from the screen, Americans would do well to remember that the virus remains deep in the system.

What, then, is to stop them from instigating new fiascoes that result in untold misery and death? The smiling face of President Obama on the screen saver is no protection against the virus.

The era of U.S. exclusivity and pre-emption, so misinterpreted and degraded by George W. Bush and his advisers, is over. This means that Americans will be judged worldwide by the same standard once -- and still -- applied to Germans and Japanese.

"One deserves to be proud only of what one achieves, not of what one is," writes Schlink in "Guilt About the Past."

"Instead of assuring the younger generation that they have the right to be proud or denying them the right, we owe it to them to integrate the past into our collective biography."

What will be the world's collective view of post-Bush America? Americans should take a cold hard look at their past, as they so require of others. The world will forgive what is admitted to and atoned for. Without admittance and atonement, there is no moving forward. The positive example of Germany and the negative example of Japan should be ample testimony to that.

© 2009 The Japan Times

In the months following September 11, 2001, lawyers in the White House and the Justice Department interpreted U.S. and international law to provide legal support for the administration in its "war on terror." With regard to interrogation of terror suspects, John Yoo, David Addington, Jay Bybee, and others justified the use of such harsh and dangerous tactics as waterboarding and stress positions. In a 2002 memo, they advised that only actions causing severe pain equivalent to "organ failure" would violate the U.S. torture law. Moreover, the memo stated that only if they acted with the specific intention to cause such pain - rather than acting with the primary goal of obtaining information - would the interrogators violate the law. Finally, the memo argued that these interrogations were rooted in an inherent executive power to protect the nation. As such, other branches of government could not review or limit such policies.

The architects of the Bush administration's torture policy clearly wanted to facilitate the use of torture tactics and to insulate themselves from future civil and criminal liability. In the words of legal scholar Jeremy Waldron, they were using the U.S. legal definition of torture as "something to game, a determinate envelope to push."

A new administration is already taking steps to reverse Bush policies on torture and detention. Will it go the next step and pursue criminal prosecutions of Bush legal advisors?

The Nuremberg Precedent

Scott Horton has suggested that the Reich Justice Ministry cases, which were tried at Nuremberg after World War II, furnish precedent for trying Addington, Yoo, and others. The Reich Ministry cases involved prosecution of judicial officials who crafted policies and justifications for detention and killing of Jews, Roma, and other groups targeted by the Nazi regime. Also included in these prosecutions were judges who subverted the legal process by allowing high-ranking executive branch officials to direct the judges to reach certain results. Horton notes that the rulings in these cases established "a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law."

To be sure, Bush's legal advisors were, to say the least, "dismissive" toward international humanitarian law. To take one example, White House Counsel Alberto Gonzales called the Geneva Conventions "quaint" and "obsolete." This attitude wasn't limited to international law. The Bybee memo cited a federal health care statute to define the term "severe pain" as that term is used in the torture law. Of course, it makes no sense to use a statute concerning payment for medical treatment to authorize inflicting pain on a person. This definitional stretch, which would be laughable in a less serious context, is an indication of the unrestrained determination to find and use anything, no matter how inapposite or farfetched, to take the administration where it wanted to go with its torture policies. Federal court rules allow judges to sanction attorneys for making frivolous arguments. Such a "severe pain" argument should be subject to similar sanction.

The Bush advisors were wrong on the law when they suggested that executive torture policies were unreviewable, and they were wrong in their interpretation of the U.S. criminal law prohibiting torture (they admitted as much when they repudiated the 2002 torture memo two years later). In Hamdan v. Rumsfeld (2006), the U.S. Supreme Court specifically rejected the claim that prisoner treatment need not comply with the Geneva Conventions. On this issue, the Bush team clearly misinterpreted the law and then broke it. But how do we address the damage done to our democratic and constitutional values, to our standing in the world? Should criminal prosecutions be part of that effort, brought either in U.S. federal court or in an international tribunal?

Criminal Prosecutions

U.S. law specifically prohibits torture. It's a federal crime to commit torture, and the Bush advisors sought to interpret that law in a way that would permit such practices as waterboarding. The advisors' actions could be considered a conspiracy to violate the torture law. They themselves didn't engage in prohibited acts of torture, but they made it easier for others to do so.

The problem here is that the actions involved were themselves interpretations of law: State officials were making arguments about what the law meant and suggesting that it should be read narrowly. Horton suggests that lawyers aren't permitted, in such a case, to "get it wrong" and then be excused for doing so. In the Reich Justice Ministry cases, the judicial officials made decisions and created policies that were later found to be illegal, and many of those officials were convicted of war crimes at Nuremburg. The important difference, however, is that the Reich Justice Ministry officials were complicit in a criminal regime. The structural rules of the government were illegitimate, created by a chief executive (Hitler) to preserve and increase his own power.

In the U.S. case, the structuring rules of government were not illegal. The legislature and the courts continued to function according to the constitution, even though the president tried to shield his actions and those of his administration from review. In several instances - authorizing military action against Iraq, detainee treatment, denial of court review to detainees, immunity for warrantless wiretapping - Congress approved presidential actions, thus making it harder to argue that the government wasn't operating according to valid law. In fact, Congress even voted to confirm Jay Bybee to the U.S. Court of Appeals for the Ninth Circuit after he left the Bush administration. In short, the government's actions were illegitimate but the government itself was, unlike that of Nazi Germany, legitimate.

The case for a violation of international law might seem clearer, in a sense. Instead of defining a particular law narrowly as they did with U.S. torture statute, the Bush advisors said that a particular body of international law (the Geneva Conventions) did not apply at all. In other words, with regard to international law, the advisors denied the applicability and constraining force of a law altogether. Moreover, the Supreme Court expressly denied this administration claim in Hamdan. Again, however, the problem here concerns the provision of legal duties or advice as a crime, and specifically with the "fit" of the Nuremburg precedent. The court there held state officials liable for formulating policies and rendering decisions that assisted in a genocidal project and gave obeisance to a plan of government under which, according to the court opinion in the Justice Ministry cases, "Hitler did, in fact, exercise the right assumed by him to act as Supreme Judge, and in that capacity in many instances he controlled the decision of the individual criminal cases." The court reasoned that this construction of German law left Nazi officials susceptible to prosecution under international law. In the U.S. case, however, the wrongdoing that occurred was done against the background of a political and legal order whose legitimacy wasn't in doubt. The tripartite federal governmental system specified by the constitution operated throughout the period in question, and this fact distinguishes the two situations. This isn't to excuse or to diminish what occurred between 2001 and 2008 in the United States. But the Nuremberg case doesn't furnish an apt precedent for prosecution of the authors of the Bush torture policies.

Political Obstacles

In addition to the legal obstacles to prosecuting the architects of Bush's torture policies, there are significant political obstacles as well. The United States refused to recognize the jurisdiction of the International Criminal Court during the Bush years; Bush revoked the signatory status. Obama has indicated an interest in resigning the ICC agreement, but would he then deliver members of the previous administration to that court for prosecution? The likely partisan political tension and fallout from any prosecution, domestic or international, would create a disincentive for prosecution, especially for a pragmatic, centrist president. To be sure, nothing in Obama's executive orders thus far suggests that he intends to review past actions of the previous administration for possible criminal sanctions. The executive order relating to torture is written with a prospective focus, declaring that from Inauguration Day forward the torture policies of the Bush administration will no longer be followed, and that the standards the rest of the world adheres to, including the Geneva Conventions, will govern interrogation of terror suspects. While this statement is a welcome return to the rule of law, it leaves the past actions of Bush's advisors unaddressed.

On February 10, the Obama administration surprised some observers by indicating in court that it would adopt the past administration's posture in a torture-related case. Jeppesen Dataplan v. Mohamed is a suit against the flight planning company that allegedly facilitated the rendition of a terror suspect to a secret torture location. The Bush administration intervened and convinced the trial court to dismiss the suit, claiming that the case involved state secrets and would threaten national security if it were allowed to proceed. At oral argument in the Ninth Circuit, Attorney General Holder argued that the dismissal should be affirmed, rather than reversing the course set previously by the Bush Justice Department. The state secrets privilege is a court-created doctrine that allows the executive branch to terminate litigation simply by claiming that a particular dispute involves national security matters. Critics of excessive executive power hoped that the new administration would at least modify the scope of the privilege, but that hasn't happened yet.

Future of Prosecution

Hannah Arendt explored the problem of state crimes in her famous report on the 1961 trial of Adolf Eichmann in Jerusalem. Acting according to German law, Eichmann oversaw the transport of Jews and others to concentration camps as part of his administrative position in the German government. Thus, his official responsibility in the time period of the "final solution" was to facilitate genocide. Arendt points out that Eichmann's trial presented certain novel legal problems: He was a bureaucrat in a criminal regime, following orders to commit monstrous evil. In view of the Nazis' genocidal project, Eichmann's conviction and execution was a foregone conclusion, but the problem of prosecuting state-administered torture and killing remains half a century later. Today, with the issue of criminal conduct by members of the Bush administration, Arendt's question presents itself somewhat differently. Yoo, Addington, Bybee, and others sought to maneuver around legal and political obstacles within a regime outwardly functioning under rule of law. It was they who provided the chief executive with advice and arguments for the policies he wished to implement.

In view of the problems indicated here, it is unlikely that a criminal prosecution of the Bush advisors for their role in propagating torture will occur. This isn't to say, by any means, that their behavior was lawful. Rather, it's a recognition of the realities of the situation, both political and legal. Also, the officials themselves worked to shield themselves from liability, helping to create some of the obstacles facing the nation now as we attempt to reckon with the lawlessness of the past administration.

Certainly, the lessons of the past eight years provide a good reason to resign the ICC agreement. Also, the ethics investigations currently pending against individual officials are important, appropriate, and laudable. While they will yield less in the way of punishment, they also face none of the roadblocks indicated above. These roadblocks only underscore the final, painful lesson: Failure to stand up to an overreaching executive branch compounds the damage that branch can inflict on our system of government by making it more difficult ultimately to hold executive officials accountable.

Review of “George W. Bush, War Criminal,” by Michael Haas

As commander-in-chief of the military, former President George W. Bush was responsible for U.S. attacks on hospitals in Iraq and Afghanistan, the mistreatment of their personnel and patients, and the denial of medical supplies to them and to the general populations of those nations, an authority on war crimes says.

One of the most egregious of the Bush war crimes, the force-feeding of prisoners, is being continued by the Obama administration even though it is in violation of medical ethics and the first Protocol to the Geneva Conventions of 1977, the authority notes.

In a new book that compiles the war crimes committed by U.S. forces, “George W. Bush, War Criminal?”(Praeger), political scientist/author Michael Haas writes:

“In 2001, the children’s hospital in Kabul was bombed, and the hospital in Herat (both in Afghanistan) was targeted, resulting in about one hundred deaths.. The al-Nouman Hospital in Baghdad was hit in the initial bombing in 2003 resulting in the deaths of five persons” and the Central Health Center in Falluja (Iraq) was bombed in November, 2004, killing 35 patients and 24 hospital employees.

Moreover, the Nazzal Emergency Hospital in Falluja, run by a Saudi Arabian Islamic charity, “was reduced to rubble,” Haas writes, and when U.S. troops entered Falluja’s General Hospital, they forced all hospital employees and patients to lie on the ground and tied their hands behind their backs.”

The above acts violated the Red Cross Convention of 1864, which requires that “ambulances and military hospitals shall be acknowledged to be neutral…and shall be protected and respected by belligerents so long as any sick or wounded may be therein.” The acts also violate the 1929 Geneva Convention that says personnel ministering to the sick “shall be respected and protected under all circumstances.”

What’s more, on March 4, 2007, U.S. marines left the Jalalabad, Afghanistan, battlefield “without attending to those whom they had wounded,” Haas writes, and in July, 2008, U.S. soldiers blocked Afghan villagers from rescuing wounded civilians they sought to take to the hospital. This violates Article 1 of the Geneva Convention of 1949 that states “The wounded and sick shall be collected and cared for.”

Haas also notes that when Defense Secretary, Donald Rumsfeld issued an order denying prisoners the right to see a physician for six weeks from December 2, 2002, to January 15, 2003, even though the Geneva Convention of 1949, Article 15, states, “The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by the state of health.”

Haas writes that prisoners suffering from asthma, diabetes, heart conditions, hepatitis, leg wounds, and other maladies went untreated in the Middle Eastern countries invaded by the U.S. and that doctor visits also have been denied to Guantanamo prisoners “to induce cooperation.”

“Medical facilities, medicines, staff, and supplies were inadequate for the large number of prisoners at Abu Ghraib (Iraq),” Haas writes, and prisoners at Guantanamo were force fed even though the Tokyo Declaration of 1975 prohibits physicians to interfere medically with those who want to stop eating.

And where the Geneva Convention of 1949, Article 55, states, “the Occupying Power has the duty of ensuring the food and medical supplies of the population,” American and British vetoes in the Security Council blocked the release of $500 million in funds from the UN’s Iraqi oil-for-food account. Instead, they diverted the money to the Coalition Provisional Authority(CPA), “which failed to purchase needed supplies,” Haas writes..

And where the Geneva Convention of 1949, Article 56, states “Medical personnel of all categories shall be allowed to carry out their duties,” on May 23, 2003, the CPA fired top-level Iraqi government employees, including medical personnel. “The best hospital in Baghdad was converted into an American military hospital,” Haas writes, and the health administrator sent by the U.S. Agency for International Development, Dr. Frederick Burkle, was fired after one week “because he lacked political connections..” Haas adds that his replacement “failed to authorize funds for emergency rooms to treat victims of the insurgency, the most important medical problem at the time.”

According to Haas, a Belgian physician that visited 25 medical facilities in April, 2004, concluded, “Nowhere had any new medical material arrived since the end of the war” and that there was no sterile treatment at Al Nour Hospital, “as a result of which all patients with major burns are doomed to die.”

Haas states “the main result of the misoccupation of Iraq is an actual reduction in the state of public health.” He notes U.S. authorities actually “reduced the number of medicines available while occupying the country” and that children continue to be stricken with leukemia because the U.S. military “refuse to use Geiger counters to locate and dispose of ordnance containing depleted uranium despite pleading from the World Health Organization. “In matters of health, the Americans have descended like a plague of locusts on Afghanistan and Iraq,” Haas concluded.

Haas’s book lists 269 separate categories of war crimes for which former President George W. Bush was responsible. The book is arranged so that each category and the applicable war crimes statutes appear together. While those crimes concerning torture and the absence of due process are best known, the Haas book includes a wide range of war crimes violations from the failure to respect the legal framework of the invaded countries to the failure to promptly repatriate prisoners of war to the failure to protect public property.

Author retains copyright.

Topics

Other Press

Cleaves on Disc/Stick

The Nuremberg Precedent

Criminal Prosecutions

Political Obstacles

Future of Prosecution