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."
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.