Kathryn Boughton
Cornwall Historian Explores Idea of American War Crimes
Mon Oct 31, 2005 02:38
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Cornwall Historian Explores Idea of American War Crimes
By: Kathryn Boughton 10/27/2005

CORNWALL-Could an American administration ever be tried for war crimes? The answer, according to Cornwall historian Jeremy Brecher, is yes-even if justice is ultimately delayed.

Mr. Brecher and two colleagues-Jill Cutler, a dean and professor of English at Yale, and Brendan Smith, an expert in international law and former senior Congressional human rights and defense aide-have edited a new book, "In the Name of Democracy, American War Crimes in Iraq and Beyond," scheduled to be released Tuesday.
Culling from a large collection of documents that range from FBI e-mails to legal briefs, victim and eyewitness testimonies and interviews with intelligence insiders, the trio addresses indications that the U.S. may have committed what could be termed war crimes, and who is responsible for those actions. It also examines the plans for the contested actions to continue, and presents the stories of those who refused to participate.
The editors carefully build their case for concluding that the U.S. could be charged with committing war crimes, laying fact upon fact to build a pyramid of evidence. They start by tracing the growing global consensus about what is and is not acceptable in warfare. War crimes, they report, are defined as actions "so heinous they are offenses not just against their immediate victims, but against all humanity."
The worst international crime, "differing from other war crimes in that it contains within itself the accumulated evil of the whole," is to initiate a war of aggression, according to the Nuremberg Tribunal convened after World War II. This concept has roots that reach far back into human cultures, including the "just war" doctrines of medieval Europe, which decreed that an armed attack on another country is a crime.
As early as 1863, Abraham Lincoln promulgated the Lieber Code, defining protections for civilians and prisoners of war, and only a year later the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field was agreed to by a number of nations.
Subsequent diplomatic conferences in 1899 and 1907 produced the Law of the Hague, which prohibits attacks on undefended towns, and the use of arms designed to cause unnecessary suffering, along with poison weapons, collective penalties and pillage.
World War II created a new category of international crimes known as crimes against humanity. The Nuremberg Charter defined them as "murder, extermination, enslavement, deportation and other inhumane acts committed against civilian populations ... or persecutions on political, racial or religious grounds ... ."
"By agreeing to the UN Charter, the Geneva Conventions and other such treaties, nations agreed to bind themselves to limitations on their sovereign prerogatives," the editors write. Although the treaties have often been ignored, the 1990s "saw a dramatic revival of the idea that neither states nor their leaders were above the law ... ."
The prohibition against war crimes is absolute. For instance, U.S. Justice Robert Jackson proclaimed at Nuremberg, "No grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy."
Similarly, the Convention Against Torture provides that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
These, according to the editors, are concepts now being disregarded by the administration of President George W. Bush, which has said it is not bound by the Geneva Conventions. According to the book, the U.S. launched an aggressive war against a country that did not attack it, disallowing a claim of self-defense, and failed to show that Iraq planned an imminent attack, which might have shielded its actions under the provision for defense against "imminent and unavoidable attack."
Since the war began, the military has used weapons prohibited by the international community, dropping cluster bombs designed to cause widespread and indiscriminate damage on civilian populations. In addition, depleted uranium bombs and napalm, both deemed illegal weapons of mass destruction under international law, have been dropped, the book claims.
According to one report included in the book that compares mortality before and after the war, the risk of death in Iraq has more than doubled. Approximately 100,000 Iraqis, mostly women and children, have been killed, the report asserts.
The U.S. has engaged in both the torture of, and the detention of, prisoners for long periods of time without resort to legal counsel, according to material included in the book, and the administration reportedly has endorsed any method of torture that does not intentionally kill the victim.
Additionally, the book argues that the administration does not expect to stop soon in its all-out assault on civil liberties. The editors cite investigative journalist Seymour Hersh, who reported that President Bush signed "a series of findings and executive orders authorizing secret commando groups and other Special Forces units to conduct covert operations against suspected terrorist targets in as many as 10 nations." And, they say, U.S officials are making plans to hold captives for their lifetimes without trials in countries around the world.
Additionally, the administration is said to be planning assassination squads modeled on the death squads of El Salvador to eliminate opponents in Iraq, according to information presented in the book.
All of these actions led Mr. Brecher to believe U.S. officials may someday be accused of war crimes. "If and when the issue is clearly drawn as one of war crimes and not just unwise political decisions, pressures to the draw the line on what is acceptable will increase all over the world," he said.
"The book includes a court case brought in a German court against [Secretary of Defense Donald] Rumsfeld," he continued. "The court said it was not wrong to bring the suit, but wanted Americans courts to take responsibility first. I think that over the long run, there could be action taken. War crimes issues are very slow to disappear-the Armenian genocide at the end of World War I is today one of the leading issues in Turkey, and war crime issues in Yugoslavia are extremely live at present, more than a decade later. Certainly Abu Ghraib and Guantanamo are burned into the public imagination around world. I think we will find many kinds of censures as time goes on."
Mr. Brecher said he was moved to create the book by his knowledge of World War II history. "I really think it goes back to the experience so many people had of seeing pictures from the Nazi Holocaust," he said. "I remember when I first saw them, I thought, 'How did people let this happen? How did they let the Nazi war crimes take place? Where were the good Germans?' This has haunted me through my whole life. I learned about the Nuremberg Tribunal, but those questions only happened after the war. Was it really the responsibility of the people to stop [the Nazi's actions] before it reached that stage? That's where this comes from-from an passionate feeling that we can't turn our backs on this, and that there needs for action by the average citizen."
Mr. Brecher said that over its history, the U.S. has tried to "justify actions that were quite questionable," but added, "This administration goes beyond past abuses in several ways. It has claimed the right to act unilaterally, even without an attack upon it and without UN approval. That has never before been claimed by America and directly violates the UN Charter. And the Bush administration has proclaimed that he, as commander-in-chief, has the right to engage in any activity, including torture."
He said the Abu Ghraib torture scandal was eventually blamed "on some low-level kids," but that leaks and an FBI report in the book show "the groundwork for these actions started at the highest levels."
Also included in the book is a memo that recommends the country opt out of the Geneva Conventions, explicitly because of the administration's concern about being prosecuted for war crimes.
Mr. Brecher lays the greatest responsibility for the alleged war crimes committed by this country at the door of the administration, but does not absolve the man in the street.
"Obviously, the highest responsibility lies with those at the top of the chain of command," he said, "but even those who didn't order the crimes are culpable of failing to halt them. Anyone who has knowledge and is in a position to halt them has a moral and, to some degree, a legal responsibility to do so. What those concrete measures should be depends on the individual and situation they are in. At the lowest level, it is when we vote or speak out about what is wrong. Many people have protested; many have gone to jail. I think the minimal responsibility is to speak out to our fellow citizens and publicly. The institutions of civil society-the media, universities and educational systems, religious communities-these are places with strong responsibility to raise the issue of American war crimes."
He says seemingly mundane acts of opposition appear to be having an effect. "I think we are seeing signs of change right now in the administration's loss of popularity, and because the majority of Americans now think the war should not have started," he said. "We are seeing the institutions of law and constitutional government beginning to wake up and address the complete lawlessness."
He said the special prosecutor looking into the Valerie Plawme CIA leak is a positive first step toward reestablishing the U.S. as a land bound by the rule of law.
"Really, the issue is this extremely clear-cut set of criminal acts," he said. "We need to establish legal control over those criminal acts. We should do that now when we have extremely blatant ones, and that will make it clear where the lines are that we should not cross. One of the reasons we did this book is to try to get people to confront the reality that this is not just an unfortunate sideshow, but goes to the most basic responsibilities of the people and the government."
He concluded that when Americans again embrace their ideals, there is a very real possibility that the current administration could be tried for war crimes. "There is a sentence in the book that says something like, 'Of course, we know the Bush administration is not going to be prosecuted anytime soon,'" he said, "but now we're expecting the special prosecutor to indict, and that will be part of it, exposing lies used to justify war. I think that when you put that together with what I said before, that these issues don't go away, there is a very realistic chance of prosecution for war crimes. I don't think I would have given that answer when I started this book, but I think now it is very reasonable."

©Litchfield County Times 2005
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