The Evidence
excerpted from the book
In the Name of Democracy
American War Crimes in Iraq and
Beyond
edited by Jeremy Brecher, Jill
Cutler, and Brendan Smith
Metropolitan Books, 2005, paper
p1
Opening statement of Justice Robert Jackson, chief American prosecutor
at the Nuremberg Tribunal, 1945
The ultimate step in avoiding periodic
wars, which are inevitable in a system of international lawlessness,
is to make statesmen responsible to law.
p1
John Bolton, Under Secretary of State, nominated 2005 for American
ambassador to the United Nations
It is a big mistake for us to grant any
validity to international law even when it may seem in our short-term
interest to do so-because, over the long term, the goal of those
who think that international law really means anything are those
who want to constrict the United States.
p4
The devastation associated with World War II led to the recognition
of a new category of international crimes, crimes against humanity,
which involved acts of violence against a persecuted group in
either war or peacetime. The Nuremberg Charter defined these acts
as "murder, extermination, enslavement, deportation, and
other inhumane acts committed against civilian populations, before
or during the war; or persecutions on political, racial or religious
grounds in execution of or in connection with any crime within
the jurisdiction of the Tribunal, whether or not in violation
of the domestic law of the country where perpetrated." The
definition of crimes against humanity has since been expanded
to include rape and torture.
p5
War crimes have several characteristics that make them different
from other crimes. War criminals are subject to universal jurisdiction,
meaning that they can be tried not just in their own country but
anywhere in the world. War crimes are likely to be the acts of
high government officials, and such officials are likely to be
in a position to prevent the courts of their own country from
bringing them to justice. While international law prefers that
each country deal with its own war criminals, international tribunals
and the courts of other nations have been given authority to try
war crimes cases where national courts fail to act.
p5
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."
p7
The military technology the United States is using in Iraq, such
as cluster bombs and depleted uranium, may be illegal in itself.
Under Article 85 of the Geneva Conventions it is a war crime to
launch "an indiscriminate attack affecting the civilian population
in the knowledge that such an attack will cause an excessive loss
of life or injury to civilians." A UN weapons commission
described cluster bombs as "weapons of indiscriminate effects."
A reporter for the Mirror (United Kingdom)" wrote from a
hospital in Hillah, "Among the 168 patients I counted, not
one was being treated for bullet wounds. All of them, men, women,
children, bore the wounds of bomb shrapnel. It peppered their
bodies. Blackened their skin. Smashed heads. Tore limbs. A doctor
reported that 'All the injuries you see were caused by duster
bombs'. . . The majority of the victims were children who died
because they were outside."
The third set of questions has to do with
the torture and abuse of prisoners in U.S. custody. This has been
a huge but unresolved issue since it was first indelibly engraved
in the public mind by the photos from Abu Ghraib prison. Cascading
disclosures have revealed that torture and other forms of prisoner
abuse have been endemic not only in Iraq but in Afghanistan, Guantánamo,
and many other U.S. operations around the world.
CULPABILITY
One of the most important principles established
at Nuremberg is that individuals are responsible for their own
actions, even if they were obeying orders, and that those in a
position to give orders are responsible for the actions of those
under them. "Complicity in the commission of a crime against
peace, a war crime, or a crime against humanity" is "a
crime under international law." Furthermore, "the fact
that a person who committed an act which constitutes a crime under
international law acted as Head of State or responsible Government
official does not relieve him of responsibility under international
law."
In those few instances where the Bush
administration has admitted that wrongdoing may have occurred
in connection with Iraq and the war on terror, it has consistently
blamed low-level personnel and denied its own responsibility.
But there are growing indications that, from the initial manipulation
of evidence to justify the attack on Iraq to the latest cover-up
of memos justifying torture, highest levels of the Bush administration
have been involved.
... As International Herald Tribune columnist
William Pfaff wrote, "Proposals to authorize torture were
circulating even before there was anyone to torture. Days after
the Sept. 11 attacks, the administration made it known that the
United States was no longer bound by international treaties, or
by American law and established U.S. military standards concerning
torture and the treatment of prisoners." In January 2002,
White House counsel Alberto Gonzales advised the president that
if he "simply declared 'detainees' in Afghanistan outside
the protection of the Geneva conventions, the 1996 U.S. War Crimes
Act-which carries a possible death penalty for Geneva violations-would
not apply." Later a legal task force from the Department
of Defense concluded that the president, as commander in chief,
had the authority "to approve any technique needed to protect
the nation's security." As Pfaff observed, "Subsequent
legal memos to civilian officials in the White House and Pentagon
dwelt in morbid detail on permitted torture techniques, for practical
purposes concluding that anything was permitted that did not (deliberately)
kill the victim."
p9
The United States has promoted war crimes prosecutions starting
with the Nuremberg trials after World War II and continuing to
the recent trials in Rwanda, the current trials of Slobodan Milosevik,
and the impending trial of Saddam Hussein. These trials have all
emphasized the accountability of top officials for acts committed
under their authority. Is there any reason the same standard should
not be applied to the top officials in the Bush administration?
p9
The Bush administration's security doctrine, as articulated in
the 2002, National Security Strategy, declared a war on terror
"of uncertain duration." It enunciated a doctrine of
preventive war in which "the United States will act against
such emerging threats before they are fully formed." It "will
not hesitate to act alone, if necessary, to exercise our right
of self defense by acting preemptively." As Senator Robert
Byrd commented, "Under this strategy, the President lays
claim to an expansive power to use our military to strike other
nations first, even if we have not been threatened or provoked."
p11
Bob Herbert, "It's Called Torture," New York Times,
February 28, 2005
"As a nation, does the United States
have a conscience? Or is anything and everything O.K. in post-9/11
America? If torture and denial of due process are O.K., why not
murder? ... Where is the line that we, as a nation, dare not cross?"
p23
CHARTER OF THE NUREMBERG TRIBUNALS
PRINCIPLE VI: (a) Crimes against peace:
(i) Planning, preparation, initiation
or waging of a war of aggression or a war in violation of international
treaties, agreements or assurances;
(ii) Participation in a common plan or
conspiracy for the accomplishment of any of the acts mentioned
in (i).
PRINCIPLE VII: Complicity in the commission
of a crime against peace, a war crime, or a crime against humanity
as set forth in Principle VI is a crime under international law.
p27
Nuremberg Ban on Preventive War
Preventive war is unequivocally illegal.
In 1946, the International Military Tribunal at Nuremberg rejected
Germany's argument that it had been compelled to attack Norway
and Denmark in self-defense to prevent a future Allied invasion."
The Tribunal concluded that these attacks violated customary law
limits on self-defense and instead constituted wars of aggression
whose prohibition was demanded by the conscience of the world.
As the Tribunal stated:
To initiate a war of aggression, therefore,
is not only an international crime; it is the supreme international
crime differing only from other war crimes in that it contains
within itself the accumulated evil of the whole."
Nuremberg's condemnation of preventive
war was incorporated into the U.N. Charter, affirmed by the General
Assembly,' and accepted by the Security Council. In 1978, the
U.S. mobilized the Security Council to condemn Vietnam's invasion
of Cambodia and overthrow of the violently repressive Khmer Rouge
regime, terming it a breach of the Charter and an act of aggression
in violation of international law. Similarly, in 1981, the Council
unanimously condemned Israel's "preventive" attack against
an Iraqi nuclear plant as a "clear violation of the Charter
of the UN and the norms of international conduct." A Council
member explained the consensus:
The concept of preventive war, which
for many years served as a justification for the abuses of powerful
States, since it left to their discretion to define what constituted
a threat to them, was definitively abolished by the Charter of
the U.N.'
The German argument in favor of preventive
war was judged and condemned by the Nuremberg Tribunal, and German
leaders held individually accountable as war criminals. Any return
to this doctrine by powerful states such as the U.S. and U.K.
would undermine world public order, and in the process encourage
states and non-state actors alike to launch unilateral acts of
aggression unconstrained by longstanding principles of international
law.
Humanitarian Intervention
The U.S. and U.K. have also sought to
justify war under the legally dubious doctrine of humanitarian
intervention, a new concept that
has not gained the support of the international
law community. This doctrine-recently advocated by several Western
countries and human rights organizations-proposes that the international
community has the right and duty to use military force for humanitarian
purposes such as stopping egregious violations of human rights."
This concept has aroused considerable skepticism from most international
lawyers, in part because it circumvents well-established procedures
and principles of the U.N. Charter and international law.' Even
supporters concede that humanitarian intervention is a moral argument
rather than a legal right.
The attraction of humanitarian intervention
lies in its capacity to redress gross human rights abuses that
otherwise might fall outside the scope of Security Council action-the
genocide in Rwanda, for example. However, this is a misreading
of the Council's authority. Major crises like the Rwandan genocide
have regional and international repercussions. The Council is
therefore already empowered, under Chapter VII, to respond with
force if necessary as a final resort to maintain peace and security
and uphold the U.N.'s fundamental purposes, which include "encouraging
respect for human rights and fundamental freedoms.""
As a matter of historical record, the Security Council did consider
military intervention in Rwanda but was blocked repeatedly by
its permanent members, including the U.S., the U.K, and France.'
The obvious danger of humanitarian intervention
is that it enables individual states to intervene wherever and
whenever they perceive a compelling humanitarian necessity, unaccountable
to established legal limits on the use of force. There is no safeguard
to prevent states from manipulating this concept to serve narrow
political interests rather than universal humanitarian concerns.
From the standpoint of preventing human rights abuses, it would
seem more effective, morally and legally, to promote principled
and consistent enforcement of the existing legal framework of
the U.N. Charter, the Universal Declaration of Human Rights, the
Geneva Conventions, and international law in general.
p37
... Amnesty International issued an urgent report titled Iraq:
Civilians Under Fire, calling for "an immediate moratorium
on the use of cluster bombs by the U.S./U.K. forces ... that are
inherently indiscriminate." Such weapons are illegal under
the Geneva Conventions, which expressly forbid "arms, projectiles
or materials calculated to cause unnecessary suffering" to
civilians.'
p39
CLUSTER BOMBS AND OTHER INDISCRIMINATE WEAPONS
by Amnesty International
The scenes at al-Hula's hospital on 1
April showed that something terrible had happened. The bodies
of the men, women and children - both dead and alive - brought
to the hospital were punctured with shards of shrapnel from cluster
bombs. Videotape of the victims was judged by Reuters and Associated
Press editors as being too awful to show on television. Independent
newspaper journalists reported that the pictures showed babies
cut in half and children with their limbs blown off. Two lorry-loads
of bodies, including women in flowered dresses, were seen outside
the hospital.
Injured survivors told reporters how the
explosives fell 'like grapes" from the sky, and how bomblets
bounced through the windows and doors of their homes before exploding.
A doctor at al-Hilla's hospital said that almost all the patients
were victims of cluster bombs.
Many of the cluster bombs reportedly dropped
from the air by U.S. forces on a civilian area of al-Hilla were
of the type BLU 97 A. Each canister contains 202 small bomblets
the size of a soft drink can. These cluster bombs scatter and
spray over a large area about the size of two football fields.
At least 5 per cent of the bomblets do not explode on impact,
turning them into de facto anti-personnel mines as they continue
to pose a threat to people, including civilians, who come into
contact with them.
The devastating consequences of using
cluster bombs in civilian areas are utterly predictable. If, as
accounts suggest, U.S. forces dropped cluster bombs in residential
areas of al-Hula, even if they were directed at military targets,
such an action could constitute a disproportionate attack. This
would be a grave breach of international humanitarian law. An
independent and thorough investigation must be held and those
found responsible for any violations of the laws of war should
be brought to justice. The U.S. and U.K. authorities should order
the immediate halt to further use of cluster bombs.
The rules of war prohibit the use of inherently
indiscriminate weapons. These are weapons which are incapable
of being used in a manner that complies with the obligation to
distinguish between civilians and combatants.
p43
U.S. Forces' Use of Depleted Uranium Weapons Is "Illegal"
by Neil Mackay
American forces are using depleted uranium
(DU) shells in the war against Iraq and flouting a United Nations
resolution which classifies the munitions as illegal weapons of
mass destruction.
DU contaminates land, causes ill-health
and cancers among the soldiers using the weapons, the armies they
target and civilians, leading to birth defects.
Professor Doug Rokke, ex-director of the
Pentagon's depleted uranium project and onetime U.S. army colonel
who was tasked by the U.S. department of defense with the post-first
Gulf war depleted uranium desert clean-up, said use of DU was
a "war crime."
Rokke said: "There is a moral point
to be made here. This war was about Iraq possessing illegal weapons
of mass destruction-yet we are using weapons of mass destruction
ourselves." He added: "Such double-standards are repellent."
According to a August 2002 report by the
UN [Subcommission on the Promotion and Protection of Human Rights],
laws which are breached by the use of DU shells include: the Universal
Declaration of Human Rights; the Charter of the United Nations;
the Genocide Convention; the Convention Against Torture; [and]
the four Geneva Conventions of 1949, which expressly forbid employing
"poison or poisoned weapons" and "arms, projectiles
or materials calculated to cause unnecessary suffering."
All of these laws are designed to spare civilians from unwarranted
suffering in armed conflicts.
Rokke told the Sunday Herald: "A
nation's military personnel cannot willfully contaminate any other
nation, cause harm to persons and the environment and then ignore
the consequences of their actions... To do so is a crime against
humanity."
p45
U.S. Admits It Used Napalm Bombs in Iraq
by Andrew Buncombe
American pilots dropped the controversial
incendiary agent napalm on Iraqi troops during the advance on
Baghdad. The attacks caused massive fireballs that obliterated
several Iraqi positions.
The Pentagon denied using napalm at the
time, but Marine pilots and their commanders have confirmed that
they used an upgraded version of the weapon against dug-in positions.
The upgraded weapon, which uses kerosene
rather than petrol, was used in March and April, when dozens of
napalm bombs were dropped near bridges over the Saddam Canal and
the Tigris River, south of Baghdad.
"We napalmed both those [bridge]
approaches," said Colonel " James Alles, commander.
"Unfortunately there were people there... you could see them
in the [cockpit] video. They were Iraqi soldiers. It's no great
way to die. The generals love napalm."
At the time, the Pentagon insisted the
report was untrue. "We completed destruction of our last
batch of napalm on 4 April, 2001," it said.
The Pentagon said it had not tried to
deceive. It drew a distinction between traditional napalm, first
invented in 1942, and the weapons dropped in Iraq, which it calls
Mark 77 firebombs.
Officials said that if journalists had
asked about the firebombs their use would have been confirmed.
A spokesman admitted they were "remarkably similar"
to napalm.
John Pike, director of the military studies
group GlobalSecurity.Org, said: "The U.S. is the only country
that has used napalm for a long time."
In
the Name of Democracy
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