If International Law Existed for US Officials…

Published on
by
CommonDreams.org

If International Law Existed for US Officials…

President Obama would be an international criminal. He would neither be the first U.S. president to reach such noble status nor would he be the last. He is simply the most recent president to flout international law as if it does not exist, as well as the U.S. president most supportive of international accountability—for others.

Under President Obama, the U.S. has been far more willing to openly support the prosecution of leaders of other countries. On numerous occasions, the Obama Administration has singled out other nations for accountability. The United States has lent its support for the International Criminal Court’s actions taken against President Omar al-Bashir of Sudan. Ben Chang, a spokesman for National Security Advisor James L. Jones, said, “It is in our country’s interest that the most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable.”

In the summer of 2009, during a visit to Africa, Secretary of State Clinton put pressure on the Kenyan government to take measures to investigate and prosecute those responsible for violence following the disputed 2007 presidential election. “I have urged that the Kenyan government find the way forward themselves,” she said, “But if not, then the names turned over to the ICC will be opened, and an investigation will begin.”

Most recently, the U.S. supported Resolution 1970, referring Libya to the ICC. The U.S. Ambassador-at-large for War Crimes Issues, Stephen Rapp, stated, “Basically we have made the determination that all these cases are appropriate and cry out for justice – and in the absence of genuine proceedings at the national level --they require effective international justice.” According to Ambassador Rapp’s logic, U.S. officials should be turning President Obama and President Bush over to the ICC due to “the absence of genuine proceedings at the national level.”

Of course, international law is only applicable to others, specifically those determined by the U.S and its allies to be rogue elements. The discourse surrounding American atrocities in U.S. elite political and media circles begins and ends with the impact of these crimes on domestic political support for the President’s foreign policy “successes” and on America’s relationship with the countries in which the attacks occur.

There exists enough evidence to investigate President Obama and his administration for no less than four violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), signed by the U.S. in 1988 and ratified in 1994. Let’s begin with President Obama’s decision to “look forward, not backwards.”

President Bush and Vice-President Cheney have both admitted to authorizing the use of waterboarding as an interrogation technique. Both Bush and Cheney said they would do it again. In 1947, the U.S. charged a Japanese officer with war crimes for the use of waterboarding. And following a recent Republican debate, President Obama explicitly stated, “Waterboarding is torture.”

This statement alone puts President Obama in violation of the Torture Convention. Article 6 (1) states, “Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offense referred to in article 4 (torture, attempt to commit torture, complicity or participation in torture) is present, shall take him into custody or take other legal measures to ensure his presence.”

I will summarize the above with an exercise in simple deductive reasoning: President Obama has declared waterboarding to be torture. Bush and Cheney have admitted to authorizing waterboarding. Therefore, Bush and Cheney violated the legal prohibition on torture. With that established, President Obama, under the Torture Convention, is legally obligated to detain Bush and Cheney for trial. His failure to do so puts him in violation of the Torture Convention as well.

When President Obama approved of Bradley Manning’s conditions of confinement, he accepted responsibility for those conditions. Bradley Manning was kept in solitary confinement for more than nine months. During his detention at Quantico, Manning was isolated in his cell for twenty-three hours every day, was forced to stand naked before his guards and the other prisoners, and was deprived of sleep.

If not torture, there can be no doubt that Manning’s conditions of confinement violated Article 16 of the Torture Convention, which states, “Each Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture…when such acts are committed…with the consent or acquiescence of a public official.” President Obama gave his consent to the Pentagon regarding Manning’s treatment. Further, President Obama has repeatedly refused UN Special Rapporteur on Torture Juan Mendez unfettered access, which is typical protocol, to interview Manning about his previous confinement.

Under President Obama’s leadership, the U.S. is also potentially in violation of Articles 3 and 4 of the Torture Convention for its actions in Afghanistan. Article 3 states, “No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” As noted previously, Article 4 criminalizes complicity in torture.  

In October, the UN released a report stating, “UNAMA’s [United Nations Assistance Mission in Afghanistan] detention observation found compelling evidence that 125 detainees (46 percent) of the 273 detainees interviewed who had been in NDS detention experienced interrogation techniques at the hands of NDS officials that constituted torture, and that torture is practiced systematically in a number of NDS detention facilities throughout Afghanistan.”

A story in the Washington Post alleges the State Department, the CIA, and the U.S. military were aware of the use of torture on detainees, having received warnings from the International Committee of the Red Cross. The story goes on to say, “Even as other countries stopped handing over detainees to problematic facilities, the U.S. government did not.” Knowledge of torture at Afghan detention facilities makes every single rendition of non-Afghans to said facilities a violation of the Torture Convention. Detaining Afghans and knowingly entering them into detention facilities in which systematic torture is perpetrated amounts to nothing short of complicity in the torture.

The continued use of secret prisons, or black sites, by the Obama administration is a violation of the Geneva Convention (III) Relative to the Treatment of Prisoners of War. Article 126 mandates access be given to “representatives…of the Protecting Powers,” including the International Committee of the Red Cross. Representatives are to have access to “all premises occupied by prisoners of war…They shall be able to interview the prisoners, and in particular the prisoners' representatives, without witnesses, either personally or through an interpreter.”

In July, Jeremy Scahill reported on the existence of a secret CIA prison underneath Somalia’s National Security Agency headquarters in Mogadishu. Secret prisons such as the one in Somalia are inherently violations of the Geneva Conventions. The ICRC and other protecting powers are refused their legal right to unhindered access to prisons and prisoners when prisons and other detention facilities are unmapped. Further, common article 3 allows for the application of the Geneva Conventions to cases of armed conflict not of an international character.

There is also the growing loss of civilian life in Afghanistan and Pakistan. Article 8 of the Rome Statute of the International Criminal Court establishes that harm to civilians, even in war, is not legally permissible without limits. It defines the following as a war crime: “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

In Pakistan, the Obama administration continues to wage a “secret” drone war. The Bureau of Investigative Journalism reports that, in October, the number of drone strikes in Pakistan reached 300, with the vast majority of the strikes occurring under President Obama. The Bureau’s statistics show that between 2,318 and 2,912 Pakistanis have been killed by drones. Of those killed, between 386 and 775 were civilians, with approximately 173 being children. Another 1,141-1,225 Pakistanis have been injured.

Taking the low end of each of the approximations, 386 civilians have been killed in the process of killing 1,932 alleged militants. One civilian is killed for every five alleged militants. Including those who have been injured, one civilian is injured or killed for every 1.5 alleged militants. At the high end, one civilian is killed for every 3.75 militants, with one civilian injured or killed for every 1.46 militants.

In November, only days after attending a meeting arranged to allow Pashtun tribal elders in Pakistan to discuss the effect of drone strikes, Tariq Aziz, only sixteen and the son of one of the elders, was killed, along with his 12-year-old cousin, by a Hellfire missile. The two were on their way to pick up their aunt. What military objective was achieved to rationalize the killing of two teenage boys?

In April, the LA Times reported on an attack on civilians in Afghanistan in February of this year. Three vehicles, traveling together for safety, carrying more than two dozen people were fired on by a drone and multiple Kiowa helicopters. They were fired upon despite questionable intelligence and the failure to secure positive identification. Depending on whose count one references, between 15 and 23 innocent people were killed. What military advantage was gained in killing only civilians among an all-civilian convoy?

In December of 2009, the U.S. used cluster munitions to attack an alleged Al Qaeda training camp in Yemen. The attack killed 55 people. Forty-one of those killed were civilians, including 14 women and 21 children. Forty-one innocent people were killed in order to kill 14 members of Al Qaeda. That is three civilians for every militant. Can a three-to-one ratio of innocents to militants satisfy the required military advantage that must be achieved to legally justify the loss of civilian life?

Unfortunately, the ICC has yet to establish a precedent on what an acceptable number of civilian casualties is for every militant killed. Further, the U.S. has guaranteed itself practical immunity from prosecution for international crimes. Through its refusal to ratify the Rome Statute, its ability to veto a Security Council referral to the ICC, and its growing list of bilateral immunity agreements, the U.S. and its leaders operate around the world with impunity.

The atrocities described above are just a miniscule sample of the death and destruction wrought on innocent civilians in the carrying out of America’s global war. And I did not include the question of extrajudicial killings employed by President Obama without judicial review or his acts of aggression.

This administration remains totally ignorant of its hypocrisy and its violations of international law. It is easy to ignore international laws and norms when you know with certainty that they cannot reach you. It is easy to pretend international law does not exist when you convince yourself that your actions are inherently just and, therefore, legal.

President Obama, like those before him, views American foreign policy through the lens of “American Exceptionalism.” This lens may blind those who use it from even the most remote possibility that the actions of the U.S. and its leadership could be in violation of international law, but the rest of the world can see.

Jeffrey Bachman

Jeff Bachman is a professor of human rights at American University in Washington, with a focus in state responsibility for violations of international human rights and humanitarian law. Follow him on Twitter: @jeff_bachman

Share This Article

More in: