Bush Administration War Crimes in Iraq

"A Society of Sheep must in time beget a Government of Wolves" -- Bertrand de Jouvenal

The War Crimes Roundtable consists of the following Iraq and International Law scholars: Francis A. Boyle, Michael Mandel, Liz Holtzman, H. Victor Conde, and author Mark Levine.[1]

NB: The following is non-copyrighted and edited material with supplementary contributions relating to discussions on the potential culpability re war crimes committed by the Bush administration in Iraq:

The specific legal definition of a war crime is most simply a criminal act in violation of the international Law of War. Conceptually, a war crime is derived from the limitation on the use of force by states and other parties to preserve a certain amount of humanity in armed conflict. For example, the Law of Armed Conflict is an attempt to preserve balance between the needs of military leaders to effectively carry out their military operations, what is called "military necessity" on the one hand, and the horrors of war and protection of humanity. War crimes are thus violations of the principle of humanity, including inflicting unnecessary suffering and harm, and interfering with normal functioning of a society during a military occupation, all of which are not accepted as legitimate actions by a combatant or a belligerent occupier. What we're talking about here also involves the principle of reciprocity: We want our civilians and soldiers who are captured to be treated in a humane manner. Thus, it's in our interest to do the same to captured enemy combatants and civilians, as we have increasingly seen more civilians than soldiers taken. Moreover, history has proven that when a state's military acts within the confines of international law, it makes for a more efficient military force - you waste fewer resources than when it gets chaotic, excessively harmful savage and brutal. Subsequently, you leave a less destructive aftermath, making it easier for the countries or groups involved to return more quickly to normal lives. Commission of war crimes is important because such acts cause more death, more destruction, more suffering, and more waste of resources, seldom with any significant military benefit.

In my own research on war crimes committed by US forces in Iraq, I counted at least two-dozen classes of offenses systematically committed by the Occupation administration and US or US-allied military forces in the invasion and subsequent period of CPA (Coalition Provisional Authority) rule. This includes violations of articles and 17, 18, 33, and 147 of the Geneva Convention covering the killing, hostage-taking and torturing of civilians.[2] Subsequent to these acts the so-called insurgency has become more aggressive brutal in all types of hostilities, including incidents that the United States would simply brush off as "collateral damage".

1. The President and senior administration and/or government officials could be subject to the death penalty for war crimes committed by US personnel in Iraq assuming that they directed or authorized murder, torture or inhuman treatment of prisoners or, if they permitted such conduct to continue after they became aware of the abuse. The statute applies to "any US national" and there is no other limitation with regard prosecution. But getting these ‘high officials’ prosecuted would be no easy matter, even if their conduct fell well within the ambit of the statute.

Under the War Crimes Act of 1996[4] there are two sets of questions to determine potential criminal liability of high government officials, including the President: 1. What did they specifically order or authorize regarding interrogations of Iraqi prisoners and 2. Assuming they did not order or authorize murder, torture or inhuman treatment, what actions did they undertake once they knew of murder, torture and inhuman treatment; under international law, once a government official is aware of profound abuses of human rights, then that official has every duty to effectively act to stop them.

The Bush Administration has failed to release any information about the President's (and other high officials) orders with regard to the interrogation of Iraqi prisoners. Questions concerning what Bush knew about the abuse of prisoners in Abu Ghraib, when did he know it, and what did he do to stop it have never been addressed in any public forum. We know for example that Colin Powell advised the President on International Red Cross complaints re prisoner abuse, and the questions arise: when did that briefing occur? What was the President told about the Red Cross complaints and what did he do in response? This information must be disclosed by President Bush since the Fourth Geneva Convention directly addresses the matter of Red Cross access to prisoners and verification by the Red Cross that prisoners are treated humanely. [3]

But the most important issue is, legally and morally, who initiated the unlawful invasion of Iraq and why. We think we know the answers, but the reasons must be formally documented and entered into testimony by witnesses such as George Bush. Bush is certainly a key witness for deposition and if the Special Prosecutor rule had not lapsed after the excesses of Kenneth Starr then we might have a chance at prosecuting George Bush and others, or at least submit Bush to a discovery process as a witness to these crimes.

So we return to the fact that the invasion of Iraq was a "crime against peace", which is the number one count and criteria in the Nuremberg Charter for indictment of the Nazi war criminals:

..'planning, preparation, initiation [and] waging of a war of aggression, or a war in violation of international treaties' - international treaties just like the Charter of the United Nations. It's what the Nuremberg Tribunal called "the supreme international crime." The President was made aware of this by a great number of international lawyers around the world before the invasion, and even if he claimed ignorance, I'm sure he's heard that ignorance of the law is no excuse. Bush and his administration and the US commanders involved are all guilty of this supreme crime. Since the war was unlawful, the many thousands of deaths predictably resulting from it are also crimes, murder in fact, for which Bush and his officials and commanders are certainly guilty in flagrante.

The Bush administration charges that the Iraq War was authorized by the US Congress, but the military action in Iraq is still illegal under international law. So what does that really mean? Right now there is no institution capable of punishing this supreme crime, a state of affairs that the Bush regime continues to exploit. Even the International Criminal Court (of which the United States opted out) left out the supreme crime against peace of waging an aggressive so-called ‘pre-emptive’ war without qualification. So how do we enforce the law with regard to Bush, Wolfowitz, Rumsfeld, Perle, Feith and the other perpetrators of these Iraqi war crimes?

When Belgium tried to prosecute Ariel Sharon as a war criminal, and then Tommy Franks and Rumsfeld and then Bush himself, the US government forced Belgium to repeal its 'universal jurisdiction' law -- and in fact Belgium’s law was repealed and replaced by a watered-down version. When Spain tried to apply its law of universal jurisdiction against Pinochet, the UK ignored its extradition treaties and sent him home to a safe retirement.

The United States already has a statute on the books relevant to US criminal acts in repeated abuse of Iraqi prisoners in violation of the Geneva Conventions; the question is, how can that statute be made to work, particularly in light of inhuman treatment of so many Iraqi prisoners in US custody - in some cases resulting in death.

Legal scholars and experts in International Criminal Law are presently researching the idea of a legal brief that sets forth the potential for criminal/legal liability on the part of top Bush Administration officials including President Bush himself. Such a brief will define the need for an independent, non-Justice Department-led investigation which will educate the press, the public, and Congress to the point where enough pressure builds for serious investigations to begin. Members of Congress, for example, could call on disclosure of information about the President’s knowledge and authorization of illegal Iraqi interrogations. For example, when was Bush informed about the Iraqi prisoner abuses, and what did he do to stop the abuse, and did he ever authorize the torture of prisoners.

Congress could also call upon the appointment of a Special Prosecutor to investigate the President. Under such auspices key members of the Bush administration will be questioned about non-disclosure on Bush’s authorization of illegal Iraqi interrogations; likewise the Attorney Generally will be formally questioned about the appointment of a Special Prosecutor and the official's own statements concerning Weapons of Mass Destruction in Iraq in tandem with questions concerning prisoner abuse in Iraq and other oustanding questions relating to International Criminal law.

2. According to US Army Field Manual 27-10 the chain of command itself determines accountability for war crimes, with the highest participating officer to be held most accountable. Specifically, paragraph 501 in the manual states that commanders who order criminal abuse (or who knew about such criminal abuse and then consequently failed to stop or report it) are then guilty of war crimes. If you look at the public record it is clear that Gens. Sanchez and Miller ordered war crimes and both should be relieved of their command immediately: abuse of prisoners is in violation of the Geneva Conventions.

As for General Abizaid, the overall commander of US forces in Southwest Asia, he admitted in his Senate hearings that he should have known about the war crimes being committed at Abu Ghraib, so he has incriminated himself under the rules of the US Army Field Manual 27-10. In addition, Abizaid's superiors Rumsfeld and Wolfowitz certainly knew about the abuses at Abu Ghraib. So, by any reading of the public record (including the Taguba and Red Cross reports) it can be shown that this group of high officials either knew about the crimes at Abu Ghraib or should have known about them.

If you read the ICRC report (which has never been contradicted) at the Mejia court-martial proceedings, the widespread and systematic nature of these abuses rise to the level of crimes versus humanity, escalating throughout the chain of command. Culpability also extends to Undersecretary of Defense for Intelligence General William G. Boykin and Defense Undersecretary Stephen Cambone, who reports directly to Undersecretary of Defense Douglas Feith. And through this line it appears that Rumsfeld is ultimately culpable, because he witnessed the abuses at Abu Ghraib in the fall of 2003. Hersch's New Yorker article on Abu Ghraib claims with substantiation that Rumsfeld was totally aware of the abuse and he even signed off on the use of torture techniques. Rumsfeld was given a tour by Brig. General Janet Karpinski, who was supposed to be in charge of the prison (even though she said nothing when she was prohibited access to certain parts of the prison) and so Karpinski is accountable.

It is important to understand that the Geneva Conventions, the Hague Regulations of 1907, and the U.S. Army Field Manual all mandate that a criminal investigation must be opened with regard to ongoing prisoner abuses. [2] President Bush, as Commander in Chief, is equally accountable under Field Manual 27-10 precisely because of his position. If you read White House Counsel's (Alberto Gonzales) memo on prisoner abuse and interrogation in Afghanistan, he specifically exempts the US from the Geneva Conventions for Guantanamo and Afghanistan, so it is clear that the President was - and is - aware of this exposure. Gonzales was apparently concerned about Bush's future exposure when held accountable for Iraqi prisoner abuse under the terms of military law.

The potential commission of war crimes in Iraq calls for due diligence and a criminal investigation of the President and high officials. An impeachment venue is not appropriate since impeachment involves a political process and Bush's alleged war crimes have not been perpetrated in isolation; ultimately George W Bush's crimes are collective crimes versus humanity involving at least as many Defendants as appeared at the Nuremburg trials. The Iraq fiasco and mistreatment of prisoners certainly qualify as "high crimes" in which President Bush and/or his staff may be implicated, the only doubt concerns the manner in which President Bush and his co-conspirators might be investigated, indicted and tried for their crimes versus humanity as the alleged proponents of an unlawful and brutal war resulting in war crimes. If proven, President Bush could only perpetrate his crimes with the assistance of others, while he aided and abetted others in a collective conspiracy to commit crimes versus humanity. So once again we must consider that Rumsfeld, Wolfowitz, Perle, Feith and others bear an equal brunt in the stakes for accountability.

3. The US did not exempt itself from the Geneva Conventions with regard to the Iraq war and there is no question that US activities in Iraq are governed by the Geneva Conventions. Once the Geneva Conventions apply, so does the War Crimes Act of 1996 [4] which is a US criminal statute and not an international statute. Like bank robbery, murder on federal property and many other crimes listed in Title 18 of the federal statutes, committing a war crime is a federal crime which may be prosecuted in US federal courts. This point is clear, from the language of the War Crimes Act itself, and from White House Counsel Gonzales' January 2002 memo to President Bush - that memo was premised on the idea that so long as the Geneva Conventions applied to conduct in any country, then the War Crimes Act also applied. Opting out of the Geneva Conventions, Gonzales thought, might allow top US officials to argue that the War Crimes Act didn't apply, and allow them to escape prosecution. (The validity of the "opt out" gimmick has yet to be tested.)

Under the terms of the War Crimes Act of 1996,[4] any US national who engages in war crimes is subject to imprisonment, and if death results, subject to the death penalty. A war crime is defined in the statute as a "grave breach" of the Geneva Conventions, which in turn means "murder, torture or inhuman treatment" of prisoners or detainees. Thus, theoretically at least, everyone up the chain of command, including the President, could be liable under the War Crimes Act for ordering or engaging in murder, torture or the inhuman treatment of prisoners in Iraq. Because there is no statute of limitations in death penalty cases, prosecutions of those who authorized or engaged in murder or authorized or engaged in torture or inhuman treatment of Iraqi prisoners that resulted in death could be commenced at any time in the future.

The question remains as to how an executive Special Prosecutor may actually be appointed to begin his or her investigations of President Bush with immediate effect. Since the United States government is now a quasi-Corporate entity itself and since mega-Corporations control the media and not the people, it is unlikely that calls for a Special Prosecutor and/or Bush's indictment [if applicable] will originate with the media; certainly as a political act in a Congress controlled by Republicans the odds that Congress may appoint a Special Prosecutor become very slim. Another idea is to convene an international war crimes tribunal, however it is unlikely that any foreign nation[s] would undertake a perceived political action with potentially negative long-term political effects since Bush is now a lame duck/temporary executive.

It is possible that a US-based war crimes tribunal could be undertaken within the context of the judicial branch review with military participation in a venue most similar to courts-martial. This is a precedent-setting case and a theoretical situation where such legal action would require precedent-setting actions in a spectrum spanning legal scholars [and experts in international law] to the Supreme Court and the military courts-martial for all participants from the President on down. In other words, such action would take place behind closed doors in a sealed Grand Jury type of venue. The possibility of such action depends upon applicability of the War Crimes Act of 1996. [4]

The American people must be informed that there is a War Crimes Act[4] that applies to the President and his top officials with respect to prisoner abuse in Iraq, and the American people must determine that everyone who violated the War Crimes Act and other laws with regard to Iraqi abuses must be held accountable and punished if convicted. The principle that no one is above the law, including the President (and especially the President) was established with the Watergate conspiracy. If there is a serious investigation of wrongdoing with respect to Iraqi abuses it will have a limiting effect on the willingness of future administrations to engage in the kinds of abuses that the Bush administration has already, apparently, perpetrated.

The Iraq war is illegal, and the US Congress did not have the right under international law to authorize a preemptive, aggressive war without any justification. All citizens should read, inter alia, the preamble and Articles 2.4, and 51 of the UN Charter. The preamble states that:

“We the Peoples of the United Nations, Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person,..., and to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained, ..., and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest...Have resolved to combine our efforts to accomplish these aims,....” Article 2.4 of the Charter states that “All [UN] members shall refrain in their international relations from the treat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations.” Article 51 of the Charter says that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

The idea to indict Bush, Rumsfeld, Wolfowitz, Feith and others for their war crimes may seem fantastic now, but in 1985 who could have known that the corrupt Soviet leadership would be out of business merely six years later? We must begin our preparations and groundwork to bring President Bush and his cohorts to justice by a jury of their peers in a legal venue that does not rely upon the impeachment of one individual in this collective matter, and we must begin the preparations now.

Cited References

[1] War Crimes Roundtable:

Mark Levine: Professor, Dept. of History, UC Irvine, author of Why They Don’t Hate Us: Lifting the Veil on the ‘Axis of Evil’. Francis A. Boyle: Professor of Law, University of Illinois, is author of Foundations of World Order, Duke University Press, The Criminality of Nuclear Deterrence, and Palestine, Palestinians and International Law. Michael Mandel: professor of law at Osgoode Hall Law School in Toronto, specializes in international criminal law. Liz Holtzman House of Representatives, D-NY. H. Victor Condé teaches International Human Rights Law at Trinity International University in California and at the International Institute of Human Rights in Strasbourg, France.

[2] From the 4th Geneva Convention:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Article 6 of the Fourth Geneva Convention: In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.

[3] Article 11 of the Fourth Geneva Conventions:

If protection cannot be arranged accordingly, the Detaining Power shall request or shall accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers under the present Convention.

[4] War Crimes of 1996, US House of Representatives Legislation.

TBC.