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War Crimes
By Marjorie
Cohn
truthout | Perspective
Thursday 13 May 2004
Trying to quell the growing firestorm last week, Defense
Secretary Donald Rumsfeld told reporters, "My impression is that what has
been charged thus far is abuse, which I believe, technically, is different
from torture." Rumsfeld said he hadn't had a chance to finish reading Army
Major General Antonio Taguba's report, which was completed two and a half
months ago.
Torture at Abu Ghraib
Rumsfeld apparently hadn't gotten to the part of the report
that described the "sodomizing of a detainee with a chemical light and
perhaps a broomstick," as well as "positioning a naked detainee on a box
with a sandbag on his head, and attaching wires to his fingers, toes and
penis to simulate electric torture," and "using military working dogs
(without muzzles) ... biting and severely injuring a detainee."
This conduct does amount to torture under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which occurs when a public official or one acting in an
official capacity intentionally inflicts, instigates or consents to the
infliction of severe pain or suffering on a person for the purpose of
obtaining information or a confession. Torture is never permitted, even in
times of war.
Evidently Rumsfeld also hasn't had time to read this
treaty, which the United States has ratified and thus is part of the law
of the land under our Constitution.
When Rumsfeld parsed his technical distinction between
abuse and torture, he probably hadn't yet seen the videotapes, which
purportedly show U.S. soldiers having [presumably nonconsensual] sex with
an Iraqi woman prisoner, troops nearly beating a prisoner to death, and
rapes of young boys by Iraqi guards at Abu Ghraib prison. These would also
qualify as torture.
Torture is a crime under federal law. When a U.S. national
conspires, attempts, or commits torture outside of the United States, he
can be sentenced to 20 years in prison. If his victim dies, the
perpetrator can receive life in prison or the death penalty.
Other acts chronicled in the Taguba report, such as forcing
groups of male detainees to masturbate themselves while being filmed, and
holding a naked detainee by a dog chain or strap around his neck, would,
at a minimum, amount to inhuman treatment. While testifying before the
Senate Armed Services Committee on Friday, Rumsfeld admitted that some of
the photographs that hadn't been made public depicted "sadistic, cruel and
inhuman" behavior.
Many of the findings in the Taguba report are confirmed in
the newly released report of the International Committee of the Red Cross,
which also found systemic abuse of security detainees at Abu Ghraib.
Shockingly, the Red Cross reports that 70 to 90 percent of detainees in
Iraq were arrested by mistake. The Red Cross characterized some of the
interrogation tactics as "tantamount to torture."
Torture and Inhuman Treatment are War
Crimes
Both torture and inhuman treatment are considered war
crimes under the Geneva Convention, another treaty the United States has
ratified. The War Crimes Act of 1996 provides that military or civilian
U.S. nationals could receive life in prison, or the death penalty if a
victim dies. There is evidence that at least one Iraqi died while being
interrogated at Abu Ghraib.
These atrocities are not, as the Bush administration would
like us to believe, confined to the Abu Ghraib prison or even to Iraq.
According to the Taguba report, Major General Geoffrey D. Miller, the
Commander at the Guantanamo prison, was sent to Iraq late last year "to
review current Iraqi Theater ability to rapidly exploit internees for
actionable intelligence." Miller used Guantanamo interrogation procedures
as baselines.
A prisoner released from Guantanamo told Amnesty
International that the interrogations there "were like torture."
Australian lawyer Richard Bourke reported on ABC Radio that one of the
Guantanamo detainees "had described being taken out and tied to a post and
having rubber bullets fired at them. They were being made to kneel
cruciform in the sun until they collapsed."
Torture has also been used in Afghanistan. In December
2002, the documentary "Massacre in Afghanistan" was broadcast on German
television. An Afghan soldier recounted being ordered by an American
commander to fire shots into the closed containers which transported
prisoners. Some died from suffocation; others were dumped in the desert,
shot and left to be eaten by dogs, as 30 to 40 American soldiers
watched.
A week after the documentary aired, the Washington Post
reported that "stress and duress" tactics were used on prisoners
interrogated at the U.S.-occupied Bagram air base in Afghanistan. The U.S.
military admitted that two prisoners were victims of homicide.
Rumsfeld Pans Geneva
When Rumsfeld decided the Third Geneva Convention didn't
apply to the prisoners at Guantanamo or Afghanistan, after unilaterally
declaring they weren't prisoners of war, he sent an implicit message to
future American interrogators in Iraq that detainees need not be treated
humanely.
Rumsfeld presumably overlooked the Fourth Geneva
Convention, which protects civilians in time of war. It prohibits the use
of physical or moral coercion to obtain information from them.
War Crimes Up the Chain of Command
Only seven U.S. soldiers have been charged with crimes at
Abu Ghraib under the Uniform Code of Military Justice. None of the
military or civilian (i.e., mercenary) personnel has yet been charged with
war crimes under U.S. civilian law.
The influential Army Times implicates both Gen. Richard
Myers, chairman of the joint Chiefs, and Rumsfeld in the Iraqi prison
scandal. It states that the responsibility "extends all the way up the
chain of command to the highest reaches of the military hierarchy and its
civilian leadership."
In its report, the Red Cross described physical and
psychological coercion by interrogators which "appeared to be part of the
standard operating procedures used by military intelligence personnel."
The myriad photographs confirm that the perpetrators felt they had nothing
to hide from their superiors.
Even though Taguba and Stephen A. Cambone, undersecretary
of defense for intelligence, disagree about whether military intelligence
or military police were in charge of interrogations at the Abu Ghraib
prison, the well-established doctrine of command responsibility supports
criminal liability for those who knew or should have known of the
misconduct, yet failed to stop or prevent it.
Rumsfeld's involvement in setting policy for Guantanamo Bay
is instructive here. Twenty of the most egregious interrogation techniques
used at Guantanamo, which Human Rights Watch describes as "cruel and
inhumane," were "approved at the highest levels of the Pentagon and the
Justice Department," including Rumsfeld, according to the Washington
Post.
In the words of the Army Times, "This was not just a
failure of leadership at the local command level. This was a failure that
ran straight to the top. Accountability here is essential - even if it
means relieving top leaders from duty in a time of war."
Policymakers must be held accountable. All those in the
chain of command should be investigated, and war crimes prosecutions
initiated of the responsible military and civilian personnel.
Donald Rumsfeld should not only be relieved of his duties
as Secretary of Defense. He must also be investigated for war crimes.
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Marjorie Cohn, a contributing editor to truthout.org,
is a professor at Thomas Jefferson School of Law, executive vice president
of the National Lawyers Guild, and the U.S. representative to the
executive committee of the American Association of Jurists.
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