May 26, 2004
Conspiracy to Commit War Crimes
Bush uses "war on
terror" as a pretext to commit war crimes, then White
House lawyer tortures the truth.
By
Frederick Sweet
President George W. Bush knew for over two years that his
administration has been promoting policies that qualify as
war crimes under the 1996 federal War Crimes Act, the
international Third Geneva Convention, and the Torture
Convention.
An article in the May 24 issue of Newsweek titled
"The Roots of Torture" reveals that White House
Counsel Alberto Gonzales wrote a January 25, 2002 memo to
Bush, urging him to disregard the "obsolete" and
"quaint" provisions of the Geneva Convention. He
advised the Bush administration to do this precisely because
the interrogation methods it was already using on prisoners
captured in Afghanistan violated the Convention, leaving US
officials open to prosecution for war crimes.
Geneva Convention "Obsolete"
In his January 25 memo, Gonzales urges Bush to declare the
war in Afghanistan, including the detention of Taliban and
Al Qaeda fighters, exempt from the provisions of the Geneva
Convention. This could be accomplished, Gonzales advised
Bush, by inventing a technicality: declaring the detainees
arrested in the "war on terror" to be outside the
Geneva Convention -- and by extension, beyond the Torture
Convention and the U.S. War Crimes Act. He gave his
assurances that such a technicality "renders obsolete
the Geneva's strict limitations on questioning of enemy
prisoners." Thus the ambiguity of Bush's newly created
and constantly repeated "war on terror" gave his
administration carte blanche to do anything it pleased with
anyone labeled an "enemy combatant."
"Your determination would create a reasonable basis in
law that [the War Crimes Act] does not apply which would
provide a solid defense to any future prosecution,"
Gonzales wrote. The best way to guard against such
"unwarranted charges," Gonzales concluded, would
be for President Bush to stick to his decision -- then being
strongly challenged by Secretary of State Powell -- to
exempt the treatment of captured Al Qaeda and Taliban
fighters from the Geneva Convention's provisions.
Newsweek obtained Gonzales' memo and strongly stated
dissents by Secretary of State Colin Powell and his chief
legal advisor, William Howard Taft IV. These are among
hundreds of pages of internal administration documents on
the Geneva Conventions and related issues that have been
reported for the first time in the May Newsweek
magazine. Newsweek also made some of these documents
available on the Internet.
Recycling War Crimes
Dismissing the Geneva Conventions is nothing new.
Fifty-eight years ago, after World War II, the Nuremberg War
Crimes Tribunal showed that by labeling certain Allied
soldiers terrorists, the Third Reich used a legalistic
policy for attempting to get around the Geneva Conventions.
Openly armed and uniformed Allied troops had been landed
behind German lines in occupied France and Norway. In
response, Adolf Hitler signed the Commando Order.
Hitler's legalistic directive claimed that Allied units
inside of German occupied territory were engaged in terrorist
activities. Thus the Commando Order provided for
captured commandos to be summarily executed. A related order
directed the population to retaliate against Allied airmen
who parachuted from disabled aircraft. The airmen had been
accused of indiscriminately and illegally attacking
civilians -- in bombing raids -- thus making them
terrorists. Clearly, similar principles were adopted by
Gonzales so that Bush could ignore the Geneva Conventions to
advance his policies for his so-called "war on
terror."
By February 2002, the White House issued a statement
declaring that while the United States would adhere to the
Geneva Conventions in the conduct of the war in Afghanistan,
captured Taliban and Al Qaeda fighters would be exempt from
prisoner of war status under the Conventions. Administration
lawyers believed that this maneuver would protect U.S.
interrogators who mistreated prisoners and also their
superiors in Washington so that they could not be subjected
to prosecutions under the War Crimes Act.
The Nuremberg Tribunal had ruled that various defendants
were liable for the abuse of prisoners of war. The Court
conceded that some captured combatants were physically
depleted. But this was not the cause of their death. They
had been made to work in harsh conditions and deprived of
food, clothing, and hygiene. The Tribunal concluded that
such mistreatment violated a commander's responsibility to
insure that prisoners received proper care and were not
compelled to work in dangerous conditions. The summary
execution of prisoners who allegedly had attempted to escape
was also criminal. In addition, commanders were culpable for
issuing and transmitting orders that transferred prisoners
to the Security Police for "special treatment."
Admitting Nothing
On May 15, 2004, The New York Times published a
column by Alberto Gonzales titled "The Rule of Law and
the Rules of War." This was a defense of the Bush
administration’s use of torture, sexual abuse and severe
"stress" techniques against detainees in
Afghanistan, Guantanamo Bay and Iraq. Reading Gonzales'
article can only lead to two possible conclusions: either
Gonzalez is completely ignorant of the Third Geneva
Convention and its well established interpretations since
1949, or he has simply become an unmitigated propagandist
for the war crimes of the Bush administration.
Gonzales’ column was printed only two days after Deputy
Defense Secretary Paul Wolfowitz and the Joint Chiefs of
Staff vice chairman General Peter Pace were summoned by a
U.S. Senate committee to admit that interrogation techniques
ordered by the Pentagon in Iraq violated the Geneva
Convention on prisoners of war, and were "not
humane." During questioning, Wolfowitz hesitated for a
long time before answering the question (which he first
tried to avoid): "Do you consider keeping a bag over a
prisoner’s head for 72 hours to be humane?"
Grudgingly, Wolfowitz finally said, "no."
Sounding like their counterparts at Nuremberg fifty-eight
years ago, Wolfowitz and Pace claimed ignorance of the
"Rules of Engagement Relative to Interrogation"
approved by Lieutenant General Ricardo Sanchez. The top US
commander in Iraq, Sanchez had adopted a policy that allowed
prisoners to be placed in painful positions, deprived of
sleep for up to 72 hours, threatened with dogs and kept in
isolation for more than 30 days. Each of these methods is a
clear violation of the Third Geneva Convention on the
Treatment of Prisoners of War.
Contradicting his own January 25, 2002 memo (discussed
above), Gonzales claimed, "There has never been any
suggestion by our government that the [Geneva] conventions
do not apply in that conflict…. The United States
government understands and seeks to comply with its legal
obligations and will act swiftly and responsibly under the
law to address violations of those obligations."
However, Article 12 of the Third Geneva Convention states:
"Prisoners of war are in the hands of the enemy Power,
but not of the individuals or military units who have
captured them. Irrespective of the individual
responsibilities that may exist, the Detaining Power is
responsible for the treatment given them."
Who's Responsible For What?
Even if Bush and Rumsfeld did not personally order the
violation of the Convention, Article 12 of the Convention
holds them -- not the individual soldiers directly involved
-- responsible, as the leadership of the "Detaining
Power," for the maltreatment of detainees. Thus, in
theory, not only General Sanchez but President Bush and his
Defense Secretary Rumsfeld should be placed on trial for
violating the Geneva Convention, and also the 1996 federal
War Crimes Act, and the Torture Convention.
The Geneva Convention's Articles 13 to 17 protect prisoners
of war against interrogation, never mind torture. POWs are
only obliged to provide their name, rank, date of birth and
serial number. They must be treated "humanely" and
with "respect," and may not be subjected to
"cruel," "humiliating" or
"degrading" treatment or any "form of
coercion." Article 17 states:
"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 whatsoever. Prisoners of
war who refuse to answer may not be threatened, insulted, or
exposed to any unpleasant or disadvantageous treatment of
any kind."
The Convention also stipulates that prisoners must not be
held in close confinement and "shall be quartered under
conditions as favorable as those for the forces of the
Detaining Power who are billeted in the same area." The
now notoriously over-crowded cells and tents of Abu Ghraib
prison are textbook violations of the Geneva Conventions.
Gonzales claimed that Iraq was a "very different
situation" to Afghanistan and Guantanamo Bay, because
"in February 2002 President Bush determined that Al
Qaeda terrorists were not prisoners of war under the treaty
known as the Third Geneva Convention."
It is false that Al Qaeda supporters captured in Afghanistan
are not covered by the Geneva Convention because Al Qaeda
"is not a state." Article 2 of the Convention
specifies that it governs the conduct of the signatories
(such as the U.S.) even if the detainees were fighting for a
power that had not signed the Convention. Moreover, the
alleged Al Qaeda members were covered by Article 4, as
"members of militias or volunteer corps" fighting
in defense of the Taliban administration, at the time the de
facto government of Afghanistan, a signatory of the Geneva
Convention.
Bush claims that Taliban soldiers do not qualify as
prisoners of war because the Convention stipulates that
combatants must distinguish themselves from the civilian
population, "which the Taliban clearly did not."
But Article 4 of the Convention makes no such distinction.
It simply requires members of militias, volunteer corps and
"organized resistance movements" to have a
commander, have distinctive insignia, carry arms openly and
conduct their operations in accordance with the laws and
customs of war. Article 4 also protects inhabitants of a
territory who, on the approach of the enemy,
"spontaneously take up arms to resist the invading
forces, without having had time to form themselves into
regular armed units."
White House Lawyer Tortures Truth
Gonzales declared that alleged combatants must
"earn" prisoner-of-war status by complying with
the Convention. In fact, the treaty says the opposite:
anyone who has been captured after committing a
"belligerent act" must be protected until a
properly constituted tribunal decides their status.
Accordingly, Article 5 of the Convention makes it clear that
Bush had no right to make a unilateral, executive decision
to strip the Taliban of legal protections. It specifies that
where any doubt arises as to whether or not a person is a
POW, the detainee shall be accorded the protection of the
Convention until a "competent tribunal" has
determined their status. No such tribunal had been provided
by Washington. This is consistent with the Bush
administration’s inventing an arbitrary, extra-legal
machinery of rules.
Gonzales claimed that the invasion of Afghanistan was a war
against the Afghan people, indiscriminately conducted
against ordinary civilians. This then raises the following
question: if the troops of a U.S.-led coalition couldn't
recognize combatants, but instead regarded any civilian as a
potential "enemy combatant," then isn't it most
likely that most of those taken to Guantanamo Bay for
interrogation and endless incarceration are innocent
civilians?
Bush "reaffirmed" his claim that the U.S. has a
policy of treating Al Qaeda and Taliban detainees
"humanely" and "in keeping with the
principles of the Third Geneva Convention." But
released British detainees from Guantanamo Bay have
confirmed that the prisoners there have been treated just as
cruelly as those in Abu Ghraib.
Recently, Gonzales has spoken on behalf of the White House
with statements that reveal the administration’s complete
and general contempt for international law. The crudeness of
his legal analysis and the cynicism of his defense is a
direct expression of the increasingly Great Criminal style
of the Bush administration.
Evidence is mounting of a Bush administration policy for
torturing detainees at Guantanamo Bay and Iraq. A case can
be made for war crimes charges to be filed against all of
the American high officials, civilian and military,
responsible for the invasion and conquest of Afghanistan and
Iraq. Bush, Rumsfeld, Powell, Rice, Myers, Cambone and
others should all be placed in the dock. It is impossible
for these perpetrators to ever wind up as defendants in a
trial such as was held in Nuremberg sixty years ago.
However, the U.S. Constitution does provide for the
impeachment of the President or government officials who can
be charged with "high crimes and misdemeanors."
Conspiring on January 25, 2002 to violate the 1996 federal
War Crimes Act, the international Third Geneva Convention,
and the Torture Convention, Bush and Gonzales should
promptly be made to lead a parade of the other
administrators in front of a Special Prosecutor to be tried
for conspiracy to commit war crimes.
Frederick Sweet is Professor of Reproductive Biology in
Obstetrics and Gynecology at Washington University School of
Medicine in St. Louis. You can email your comments to Fred@interventionmag.com
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