[Iraq War]

American War Crimes

I remember first considering whether America could be culpable for war crimes shortly after I first heard the words "shock and awe." The US had spurned its allies and the UN and invaded a country under the dubious new "Bush Doctrine" of pre-emption. It seemed to flout international laws, though the administration's novel reading thereof made for an interesting discussion.

But since then we've learned that the Bushies have ignored the Geneva Conventions, set up little Gulag-lites in Guantanamo and secret "black sites," engaged in torture, and sent prisioners, via "extraordinary rendition" to countries whose qualms about torture were even less stringent than Al Gonzalez's. I don't for a minute expect anyone from the US to stand trial--or even stand accused--of war crimes, but the 2003 discussion is certainly a lot more interesting now. That Americans will not be tried for war crimes doesn't eliminate the possibility they committed them. So, did they?

The Bush Doctrine
The context for questions about torture et. al. is the legality of the invasion itself. In legitimate wars even lawful countries may commit atrocities on the battlefield and not be accused of war crimes--war is hell and so on. But illegal wars cast atrocities in an entirely different context. Following the invasion, the Crimes of War Project picked up the question, looking at the legal questions, the administration's arguments, and mitigating circumstances.

They noted that pre-emption may be legal according to interenational law only in cases where the attack is "imminent and overwhelming." According to the experts they spoke to,* none thought Iraq met the criteria. However, the potential presence of WMD may have been a mitigating factor--some of the experts argued that this created an unusual circumstance in which it would be difficult to predict when Iraq might attack.

The qualified conclusion (the report was written 5 months before the invasion, in August 2002) was this:

Between these positions, our other experts maintained that some forms of pre-emptive self-defence were legitimate, but all questioned whether an US attack on Iraq would meet the necessary tests. Clearly, the strongest way for the administration to win support for its actions would be to provide convincing evidence that Iraq is working with terrorist groups in a way that threatens the use of weapons of mass destruction against the United States or its allies.... Since the September 11 attacks, such claims have often been floated, but so far nothing more substantial has emerged to confirm them.

As we know, the Bushies never gave inspections a chance, were unable to confirm the existence of WMD, cooked the intelligence to "prove" them, and went to war without international agreement. With the knowledge we now have, this really does look like a slam-dunk case: the war was illegal. (Just War theory is another lens to use on the legality of war; here's a post I wrote discussing it a year ago, and a series I wrote on the topic just after the invasion.)

Torture, Rendition, and Secret Detention
Now that the famous "torture memo" from Al Gonzales has come to light, it's difficult to imagine an argument that the administration hasn't sanctioned war crimes--no matter what the broader context of the war was. If we didn't need to have a memo to justify a practice of torturing Nazis, we don't need one to torture 18-year-old Afghanis who have been detained for years.

It is, however, worthwhile to mention that all three of the documented practices--torture, rendition, and secret detention--are illegal according to US and international law. They are just made all the more grave by the illegal invasion that delivered the prisoners to US torturers.

The last nail in this coffin is the degree to which the practices were established US policy--which would make specific individuals culpable for the crimes. Serendipitously, the New Yorker's Jane Mayer helped answer that question last week in her extraordinary article "The Memo." It documents the efforts of the administration to both conduct torture while subverting the knowledge that torture had become official policy--even among relatively high-placed officials in the administration.

When I spoke to[Lawrence Wilkerson] recently, he said, “I saw what was discussed. I saw it in spades. From Addington [a Cheney protege] to the other lawyers at the White House. They said the President of the United States can do what he damn well pleases. People were arguing for a new interpretation of the Constitution. It negates Article One, Section Eight, that lays out all of the powers of Congress, including the right to declare war, raise militias, make laws, and oversee the common defense of the nation.” Cheney’s view, Wilkerson suggested, was fuelled by his desire to achieve a state of “perfect security.” He said, “I can’t fault the man for wanting to keep America safe, but he’ll corrupt the whole country to save it.” (Wilkerson left the State Department with Powell, in January, 2005.)

And of course the country has been corrupted, and we have committed war crimes. Except through the most twisted, ideological explanations and legal rationales, no one can seriously argue otherwise. And on this point it's well to note one more point: members of the House and Senate (particularly, though not exclusively Republicans) who fail to open investigations into the actions of the Bush administration are every bit as complicit in these crimes as Cheney, Rumsfeld, Wolfowitz, Feith, Rice, and Bush. This is a national shame.

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*Thomas Franck, Director of the Center for International Studies at NYU Law School; Martti Koskenniemi, Director of the Erik Castren Institute of International Law and Human Rights at the University of Helsinki in Finland; Michael Byers, Associate Professor at Duke University School of Law; Eyal Benvenisti, Director of the Minerva Center for Human Rights at the Hebrew University of Jerusalem; Terence Taylor, Deputy Director of the International Institute for Strategic Studies, and formerly a Chief Inspector for the UN Special Commission on Iraq.