Last week, the International Criminal Court (ICC) reached a verdict in the case of Congolese warlord Thomas Lubanga Dyilo for his role for the war crimes of enlisting and conscripting children and using them to participate actively in hostilities in the Democratic Republic of the Congo in 2002 and 2003.
Lubanga, former commander of the Patriotic Forces for the Liberation of the Congo militia and president of the Union of Congolese Patriots, was found guilty of conscripting children under the age of 15 and sending them into a brutal guerrilla war.
The United States welcomed the verdict with a statement calling it “an historic and important step in providing justice and accountability for the Congolese people.”
“This conviction puts perpetrators and would-be perpetrators of unlawful child soldier recruitment and other atrocities on notice that they cannot expect their crimes to go unpunished,” the State Department said.
Lubanga had been turned over to the court by the Congolese government in 2006, the first individual to be taken into custody by the ICC. The Prosecutor of the ICC, Luis Moreno-Ocampo of Argentina, charged Lubanga with the war crime of enlisting children under the age of 15, conscripting children under the age of 15, and using children under the age of 15 to participate actively in hostilities.
In its March 14 verdict, the ICC noted,
The crime of “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” as set out in Article 8(2)(b)(xxvi) of the Statute falls within “the established framework of international law” as one of the “other serious violations of the laws and customs applicable in international armed conflict”. The prohibition is based on Article 77(2) of Additional Protocol I to the Geneva Conventions of 12 August 1949.
In addition to the Geneva Conventions, the Court cited Articles 38(2) and (3) of the UN Convention on the Rights of the Child, ratified by every country in the world except the United States and Somalia, as part of the relevant legal framework.
As Article 38 of the Convention on the Rights of the Child reads,
1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.
2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.
Immediately following the ICC’s verdict, its broader implications were being recognized by human rights groups and international lawyers. Géraldine Mattioli-Zeltner, the international advocacy director for Human Rights Watch, said, “Military commanders in Congo and elsewhere should take notice of the ICC’s powerful message: using children as a weapon of war is a serious crime that can lead them to the dock.”
But could the ICC ruling also hold ramifications for the United States?
The U.S. military has long been criticized for skirting the international prohibition against the conscription of child soldiers through questionable recruiting strategies such as the Junior Reserve Officer Training Corps (JROTC), the Future Soldiers Training Program, forced military testing in American schools through the Armed Services Vocational Aptitude Battery, and the Army Experience Center, which bills itself as an “opportunity to virtually experience many aspects of Army life.”
“The Army Experience Center is an abomination,” says Sergeant Jesse Hamilton, who served nine years in the Army including tours in Iraq. “It targets impressionable minors, and it propagates the glorification of war. I am utterly disgusted that the Army which I loved and in which I served so long has resorted to such a deceiving recruiting strategy.”
In a 2008 report, “Soldiers of Misfortune: Abusive U.S. Military Recruitment and Failure to Protect Child Soldiers,” the ACLU exposed the U.S. military’s recruiting tactics that target children as young as 11 and disproportionately target low-income youth and students of color.
The report demonstrated that the United States is failing to observe minimum safeguards for recruitment of youth under 18 as required by the Optional Protocol on the Involvement of Children in Armed Conflict, which the U.S. Senate ratified in 2002. It also documented the military’s practice of recruiting children without parents’ consent and exposing youth to misconduct by recruiters, including coercion, deception, and sexual abuse.
As the report explains:
The JROTC oversees the Middle School Cadet Corps (MSCC), in which children ages 11 to 14 can participate. The military has invited children as young as 11 to join MSCC, or pre-JROTC, programs at their elementary and middle schools. Florida, Texas, and Chicago, Illinois offer military-run after-school programs to sixth-, seventh-, and eighth-graders. In Chicago alone, about 26 MSCC programs are offered. These programs involve drills with wooden rifles and military chants.
Legal challenges to military recruiting of youth have largely been ineffective. While the New York Civil Liberties Union succeeded in pressuring the Hutchinson Central Technical High School in Buffalo, New York to release students from a mandatory JROTC program in October 2005, other attempts to more comprehensively prohibit recruiters from high schools have failed.
Local ordinances in Eureka and Arcata, two northern California cities, which attempted to ban U.S. armed services recruiters from initiating contact with youths under 18 anywhere within city limits were declared unconstitutional by a federal judge in Oakland in 2009. The judge declined to hear oral arguments in the case, instead basing her judgment on the legal briefings filed by the parties, and threw out the laws despite the fact that they had passed with 73 percent of the vote in Arcata and 57 percent in Eureka.
Dave Meserve, the former Arcata councilman behind the laws, said it was disappointing that the judge ruled without hearing arguments on the case. “She doesn’t respond to any of our arguments in any way,” he said. “The order reads like a restatement of the government’s case.”
The case stemmed from a suit filed by the U.S. Department of Justice first filed suit against the California towns, claiming that these Youth Protection Acts fail under Article VI of the Constitution, which makes federal law supreme over contradictory state or local legislation.
The cities, however, countered that current military policy violates the Convention on the Rights of the Child’s Optional Protocol on Children in Armed Conflict, a separate but related treaty to the UN Convention on the Rights of the Child.
“When the government enters into an international treaty or protocol, that becomes the law of the United States,” said Arcata counsel Brad Yamauchi, also citing Article VI. The cities claimed that the U.S. military is in violation of the Protocol’s prohibition on the recruiting of children for military service.
This countersuit constituted the first time since the 2002 ratification of the protocol that the federal government’s compliance with the treaty had been legally questioned.
The court’s ruling was later upheld by the US Court of Appeals for the Ninth Circuit.
The case has not made its way to the Supreme Court, but considering the fact that the ICC has just issued its first verdict on the practice of recruiting child soldiers, the U.S. military and domestic courts might do well to take note.
While there are obviously substantial differences between the exploitation of children in an African civil war and the targeted recruitment of high school kids in the USA, the verdict of the ICC in the Lubanga case makes a strong case that underage youth should be considered off-limits to any sort of armed forces conscription.
“The term ‘child soldiers,’” reads the verdict, “includes all children under the age of 18 who participate in any circumstances in an armed group or force. Therefore, it is argued that this protection is not restricted to those children who actively fight, but rather it includes any child whose role is essential to the functioning of the armed group.”
In a report released today, the first anniversary of the launching of the U.S./NATO bombing campaign against Libya, Amnesty International documents that “scores of Libyan civilians who were not involved in the fighting were killed and many more injured, most in their homes, as a result of NATO airstrikes” in the bombing campaign to depose Libyan leader Muammar Gaddafi.
“The strikes were launched pursuant to UN Security Council (UNSC) resolution 1973 (2011) of 17 March 2011,” the report reads, “which authorized member states ‘to take all necessary measures (…) to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya’ and introduced a ‘no fly zone’ above Libya.”
But while acknowledging that NATO appeared to have taken certain precautions to minimize civilian casualties of the bombing campaign, the U.S.-led alliance nevertheless killed unacceptable numbers of Libyans and injured many more.
“Regrettably,” says Amnesty International, “more than four months since the end of the military campaign, NATO has yet to address these incidents appropriately, including by establishing contact and providing information to the victims and their relatives about any investigation which might have been initiated.”
The human rights organization said that “adequate investigations must be carried out and full reparation provided to victims and their families.”
Amnesty’s report comes on the heels of another report released in January by a coalition of human rights groups in the Middle East that presented exhaustively researched evidence of war crimes carried out in Libya by the United States and NATO during last year’s intervention.
Basing its work “primarily, and to the greatest extent possible, on information gathered firsthand,” the Independent Civil Society Fact-Finding Mission to Libya found that “a significant percentage of the sites” targeted by NATO “were clearly civilian objects.”
Although NATO had claimed that these sites were converted into military objectives by Gaddafi forces, which in some cases may have used civilian sites as weapons storage or military communications facilities, the report notes that “site investigations conducted by the Mission failed to reveal any traces of weapons, munitions, military or communications equipment, or secondary explosions, other than the remnants of the ordinance used in the destruction of the site.”
Another report, by the International Commission of Inquiry on Libya, established by the United Nations’ Human Rights Council last year, revealed that “all sides on the ground committed war crimes with no mention at all of a potential genocide conducted by the Qaddafi forces,” according to journalist Vijay Prashid.
The UN report also suggests a distinct lack of clarity regarding potential NATO war crimes.
According to Prashid, the UN report demonstrates that “the rush to a NATO ‘humanitarian intervention’ might have been made on exaggerated evidence, and that NATO’s own military intervention might have been less than ‘humanitarian’ in its effects.”
But while the international community calls for independent, impartial and thorough investigations into these allegations, it might be well served to take note of the fact that no comparable investigations have taken place related to another war launched on this date, nine years ago.
On March 19, 2003, the United States and its “coalition of the willing” began bombing Baghdad in an effort to depose its ruler, Saddam Hussein. The bombing began with a limited assault on government targets, and intensified over the next couple days
The violations of international law, however, began even before the initial shock and awe bombing campaign. To this date, no high-ranking officials have ever been held accountable for these actions.
If the human rights community ever expects a thorough accounting of NATO’s war crimes starting a year ago, it would behoove us all to remember the war crimes commenced eight years beforehand.
As early as January 2003 — three months before the U.S. actually launched its attack — the Pentagon was announcing its plans for the “shock and awe” bombing campaign.
“If the Pentagon sticks to its current war plan,” CBS News reported on January 24, “one day in March the Air Force and Navy will launch between 300 and 400 cruise missiles at targets in Iraq. … [T]his is more than number that were launched during the entire 40 days of the first Gulf War. On the second day, the plan calls for launching another 300 to 400 cruise missiles.”
A Pentagon official warned: “There will not be a safe place in Baghdad.”
The intention of announcing these plans so early — before the UN weapons inspectors had finished their job and before diplomacy in the Security Council had been allowed to take its course — appeared to be a form of psychological warfare against the Iraqi people. If that was not the intent, it was certainly the effect.
A group of psychologists published a report in January 2003 describing the looming war’s effect on children’s mental health.
”With war looming, Iraqi children are fearful, anxious and depressed,” they found. ”Many have nightmares. And 40 percent do not think that life is worth living.”
Shock and Awe
“Shock and awe” began with limited bombing on March 19, 2003 as U.S. forces unsuccessfully attempted to kill Saddam Hussein. Attacks continued against a small number of targets until March 21, 2003, when the main bombing campaign began. U.S.-led forces launched approximately 1,700 air sorties, with 504 using cruise missiles.
The attack was a violation of the UN Charter, which stipulates that “Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” The only exception to this is in the case of Security Council authorization, which the U.S. did not have.
Desperate to kill Hussein, Bush ordered the bombing of an Iraqi residential restaurant on April 7. A single B-1B bomber dropped four precision-guided 2,000-pound bombs. The four bunker-penetrating bombs destroyed the target building, the al Saa restaurant block and several surrounding structures, leaving a 60-foot crater and unknown casualties.
Diners, including children, were ripped apart by the bombs. One mother found her daughter’s torso and then her severed head. U.S. intelligence later confirmed that Hussein wasn’t there.
Not Providing Security
After the fall of Saddam Hussein’s regime on April 9, the U.S. action in Iraq took on the character of an occupation, and as the occupying power, the U.S. was bound by international law to provide security. But in the post-war chaos, in which looting of Iraq’s national antiquities was rampant, U.S. forces stood by as Iraq’s national museum was looted and countless historical treasures were lost.
Despite the fact that U.S. officials were warned even before the invasion that Iraq’s national museum would be a “prime target for looters” by the Office of Reconstruction and Humanitarian Assistance (ORHA), set up to supervise the reconstruction of postwar Iraq, U.S. forces took no action to secure the building. In protest of the U.S. failure to prevent the resulting looting of historical artefacts dating back 10,000 years, three White House cultural advisers resigned.
“It didn’t have to happen”, Martin Sullivan – who chaired the President’s Advisory Committee on Cultural Property for eight years – told Reuters news agency. The UN’s cultural agency UNESCO called the loss and destruction “a disaster.”
During the course of the war, according to a four-month investigation by USA Today, the U.S. dropped 10,800 cluster bombs on Iraq. “The bomblets packed inside these weapons wiped out Iraqi troop formations and silenced Iraqi artillery,” reported USA Today. “They also killed civilians. These unintentional deaths added to the hostility that has complicated the U.S. occupation.”
U.S. forces fired hundreds of cluster weapons into urban areas from late March to early April, killing dozens and possibly hundreds of Iraqi civilians. The attacks left behind thousands of unexploded bomblets that continued to kill and injure civilians weeks after the fighting stopped.
Because of the indiscriminate effect of these duds that keep killing long after the cessation of hostilities, the use of cluster munitions is banned by the international Convention on Cluster Munitions, which the United States has refused to sign.
Possibly anticipating a long, drawn-out occupation and counter-insurgency campaign in Iraq, in a March 2003 memorandum Bush administration lawyers devised legal doctrines justifying certain torture techniques, offering legal rationales “that could render specific conduct, otherwise criminal, not unlawful.”
They argued that the president or anyone acting on the president’s orders are not bound by U.S. laws or international treaties prohibiting torture, asserting that the need for “obtaining intelligence vital to the protection of untold thousands of American citizens” supersedes any obligations the administration has under domestic or international law.
“In order to respect the President’s inherent constitutional authority to manage a military campaign,” the memo states, U.S. prohibitions against torture “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”
Over the course of the next year, disclosures emerged that torture had been used extensively in Iraq for “intelligence gathering.” Investigative journalist Seymour Hersh disclosed in The New Yorker in May 2004 that a 53-page classified Army report written by Gen. Antonio Taguba concluded that Abu Ghraib prison’s military police were urged on by intelligence officers seeking to break down the Iraqis before interrogation.
“Numerous incidents of sadistic, blatant and wanton criminal abuses were inflicted on several detainees,” wrote Taguba.
These actions, authorized at the highest levels, constituted serious breaches of international and domestic law, including the Convention Against Torture, the Geneva Convention relative to the treatment of Prisoners of War, as well as the U.S. War Crimes Act and the Torture Statute.
These are just a few of the more obvious examples U.S. violations of international law from the earliest days of the invasion of Iraq, for which no one has been held to account. Of course, sadly, the crimes against the Iraqi people continued and intensified over the years.
There was the 2004 assault on Fallujah in which white phosphorus – banned under international law – was used against civilians. There was the 2005 Haditha massacre, in which 24 unarmed civilians were systematically murdered by U.S. marines. There was the 2007 “Collateral Murder” massacre revealed by WikiLeaks in 2010.
While each of the above-mentioned crimes should be dealt with in its own way, it is important to remember the words of American jurist Robert Jackson, who led the prosecutions of Nazi war criminals at Nuremberg. In his opening statement before the international military tribunal on Nazi war crimes, Jackson denounced aggressive war as “the greatest menace of our time.”
Jackson noted that “to start an aggressive war has the moral qualities of the worst of crimes.” The tribunal, he said, had decided that “to initiate a war of aggression … 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 whole.”
On this ninth anniversary of the unprovoked war of aggression against Iraq, it is worth keeping those words in mind. It is never too late to bring prosecutions against that war’s chief architects, including Donald Rumsfeld, Condoleezza Rice, Dick Cheney, Karl Rove, Richard Perle, Douglas Feith, and the chief war criminal George W. Bush.
And, of course, on the first anniversary of another legally questionable war – this time in Libya – we should apply those same standards to NATO leaders such as British Prime Minister David Cameron, French President Nicolas Sarkozy and U.S. President Barack Obama.
A barrage of recent legislative initiatives spearheaded by Republicans on the national and state levels – collectively dubbed the “war on women” by Democrats and women’s advocacy groups – threaten to roll back U.S. commitments on the international level on gender equality and human rights.
With Campaign 2012 in full swing, the controversies of the war on women have found their way to the top of the national discussion, with other domestic problems such as the economy seemingly taking a back seat this election year.
The battles have been fueled by outrageous statements by prominent Republicans such as Rush Limbaugh calling a defender of birth control access a “slut” and “prostitute,” as well as some rather absurd legislation being adopted, such as the recently signed Virginia law requiring women to submit to a medically unnecessary ultrasound before getting an abortion.
At a demonstration at the Virginia State Capitol protesting the ultrasound law earlier this month, 31 women’s rights advocates were arrested, prompting a rebuke of the police by State Delegate Delores L. McQuinn, (D-Richmond) who called the arrests “just the latest example of government overreach that we’ve seen in recent weeks.”
“The men and women who marched on Capitol Square have a right to peacefully protest without the threat that they will be arrested for exercising that right,” McQuinn said in a news release. “At several recent women’s rights events, there has been an overabundance of police presence.”
Republican presidential candidate Mitt Romney has waded into the fight with provocative statements about ending the Planned Parenthood program, which provides preventive health care for about five million women a year. According to Planned Parenthood, 76 percent of their clients have incomes at or below 150 percent of the federal poverty level.
The program has received federal funding since 1970, when President Richard Nixon signed into law the Family Planning Services and Population Research Act, which increased funding for family planning and maternal health care. In signing the law, Nixon said that “no American woman should be denied access to family planning assistance because of her economic condition.”
At the time, the legislation enjoyed bipartisan support from liberals who saw contraception access as increasing families’ control over their lives, and conservatives who saw it as a way to keep people off welfare. Now, however, national Republican leaders such as Mitt Romney flippantly declare that they would end the program. “Planned Parenthood, we’re going to get rid of that,” Romney said in an interview on Tuesday.
But eliminating maternal health care for low-income women would push the United States further from the developed world’s standards for maternal health, and may even constitute a breach of international law.
The relevant legal framework providing for the rights of women include the International Covenant on Civil and Political Rights (ICCPR), which guarantees political equality between men and women, as well as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
As article 12 of the CEDAW reads:
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
Besides contravening international norms, eliminating programs such as Planned Parenthood would also likely have a disastrous impact on women’s health in the United States, which already ranks near the bottom of the developed world in terms of maternal mortality.
According to recent UN data, maternal health in the U.S. has declined significantly over recent years, with maternal mortality rates increasing from 6.6 deaths per 100,000 live births in 1987 to 13.3 deaths per 100,000 live births in 2006. From 2009 to 2010, the U.S. ranking on maternal mortality fell from 41st to 50th in the world. Women in the United States face a higher risk of maternal death than nearly all European countries, as well as Canada and several countries in Asia and the Middle East.
A recent Amnesty International report documents the challenges that women in the U.S. face in obtaining the services they need, and exposes multiple failures in the health care system, including: language barriers to care; lack of information about maternal care and family planning options; lack of active participation in care protocols; inadequate postpartum care; and a lack of accountability and oversight.
If Republicans have their way in eliminating existing programs for maternal health such as Planned Parenthood, all of these problems documented by Amnesty International will likely be exacerbated.
The war on women, however, is not limited to assaults on maternal health. While much of the debate has focused on GOP efforts to impede women’s access to prenatal care and abortions, the controversies also include largely partisan disputes over protection against gender-based violence.
The Violence Against Women Act, which was adopted overwhelmingly in 1994 and renewed easily in 2000 and 2005, has suddenly become a partisan issue this year. On Feb. 2, the Senate Judiciary Committee approved legislation reauthorizing VAWA on a party-line vote of 10-8. The legislation received no GOP support among committee members, which was, according to Committee Chairman Patrick Leahy (D-Vermont), the first time VAWA legislation did not receive bipartisan support out of committee.
Republicans objected to language in the bill that would extend protections against violence to undocumented immigrants and LGBT victims of domestic violence, as well as allowing Native American authorities to prosecute some non-native offenders.
These extended safeguards, however, are widely seen as vital to protect some of the most vulnerable members of society, who tend to lack even the most basic legal protections and access to justice, and could help bring the U.S. into compliance with UN recommendations.
As the United Nations Special Rapporteur on violence against women documented in a report last year, U.S. policies concerning domestic violence, sexual assault in the military and treatment of women in detention fall far short of adequately protecting victims.
The report pointed to “a lack of legally binding federal provisions providing substantive protection against or prevention of acts of violence against women. This lack of substantive protective legislation, combined with inadequate implementation of some laws, policies and programmes, has resulted in the continued prevalence of violence against women and the discriminatory treatment of victims, with a particularly detrimental impact on poor, minority and immigrant women.”
To remedy this situation, the UN official offered several recommendations, including:
(a) Explore more uniform remedies for victims of domestic violence, sexual assault and stalking. Expanding federal causes of action under VAWA, where possible, would mitigate current discrimination, and increase uniformity and accountability at the state and local levels.
(b) Review and more effectively address the disproportionate impact that violence has on poor, minority, and immigrant women.
(c) Re-evaluate existing mechanisms at federal, state, local and tribal levels for protecting victims and punishing offenders, given that calls for help often do not result in either arrests or successful prosecutions.
(d) Establish meaningful standards for enforcement of protection orders and impose consequences for a failure to enforce.
(e) Initiate local and national dialogues with relevant stakeholders to consider the effectiveness, in theory and application, of expedited proceedings, mandatory arrest policies, mandatory prosecution policies, and batterer’s programs.
The Special Rapporteur also recommended strengthening legal safeguards to prevent discrimination against victims in housing and employment, pervasive sexual harassment and assault of women in the military, violence against women in prison and the lack of enforcement of orders of protection.
Although the proposed changes to VAWA would go a long way in addressing some of these outstanding concerns, the bill faces the threat of a Republican filibuster in the Senate which could kill the legislation. As Huffington Post reports, “the bill has five Republican co-sponsors, but would need at least seven GOP votes to get to the 60 needed to break a filibuster and pass the Senate.”
While such a level of support seems achievable in the upper chamber, final passage would still be a difficult challenge for the Democrats, considering the House of Representatives is controlled by Republicans, who have made clear their agenda of waging war on women, and rolling back international standards on women’s rights. So far, the House has taken no action on companion legislation to the Senate’s version of VAWA.
In reaction to the latest atrocity of the U.S. war in Afghanistan – the methodical murder of 16 Afghan civilians over the weekend – Secretary of State Hillary Clinton asserted that “This is not who we are, and the United States is committed to seeing those responsible held accountable.”
“This incident is tragic and shocking, and does not represent the exceptional character of our military and the respect that the United States has for the people of Afghanistan,” said President Barack Obama in a statement.
Speaking at the White House Tuesday, Obama called the incident “heartbreaking” and said it does not reflect American values or represent the U.S. military.
It is a now familiar refrain, a slight variation on previous U.S. apologies, such as those issued over the January incident in which U.S. Marines were captured on video urinating on the corpses of suspected Taliban fighters.
In response to that episode, Clinton said that the “deplorable behavior” of the Marines “is absolutely inconsistent with American values.” A Pentagon spokesman further emphasized that “the actions portrayed are not consistent with our core values and are not indicative of the character of the Marines in our Corps.”
So what are the core values that these officials keep alluding to?
President Obama explained these values, fittingly, during his 2009 speech in which he announced the surge of 30,000 additional troops he was sending to Afghanistan. To prevail in the war against the Taliban and al-Qaeda, he said,
[W]e must draw on the strength of our values – for the challenges that we face may have changed, but the things that we believe in must not. That is why we must promote our values by living them at home – which is why I have prohibited torture and will close the prison at Guantanamo Bay. And we must make it clear to every man, woman and child around the world who lives under the dark cloud of tyranny that America will speak out on behalf of their human rights, and tend to the light of freedom, and justice, and opportunity, and respect for the dignity of all peoples. That is who we are. That is the moral source of America’s authority.
Since that time, of course, the prison at Guantanamo Bay has remained open, the U.S. has failed to speak out on behalf of the human rights of those living under tyranny in countries such as Bahrain and Uzbekistan – and indeed continues supplying weapons to those unsavory regimes – and has come under intense international criticism for its treatment of alleged whistleblower Bradley Manning, treatment which some say has amounted to torture.
The U.S. has also expanded its wars in the Middle East and Central Asia through the use of unmanned aerial drones, which have been strongly criticized by the international community as undermining the prohibition on the use of force in the UN Charter. Over the past few days, as the U.S. has scrambled to explain and apologize for the weekend massacre of 16 Afghans, U.S. drone strikes have killed at least 64 people in Yemen.
Ironically, as Clinton and Obama were proclaiming America’s “core values” of human rights in an effort at damage control following the massacre in Afghanistan, the UN Special Rapporteur on Torture Juan Mendez was slamming the United States for its mistreatment of Manning, which he noted violated international law, including the International Covenant on Civil and Political Rights and the Convention against Torture.
As Mendez told the Guardian newspaper:
I conclude that the 11 months under conditions of solitary confinement (regardless of the name given to his regime by the prison authorities) constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.
Following a 14-month investigation of Manning’s treatment, Mendez noted in a formal report issued on Feb. 29:
According to the information received, Mr. Manning was held in solitary confinement for twenty-three hours a day following his arrest in May 2010 in Iraq, and continuing through his transfer to the brig at Marine Corps Base Quantico. His solitary confinement – lasting about eleven months – was terminated upon his transfer from Quantico to the Joint Regional Correctional Facility at Fort Leavenworth on 20 April 2011.
In his report, the Special Rapporteur stressed that “solitary confinement is a harsh measure which may cause serious psychological and physiological adverse effects on individuals regardless of their specific conditions.”
Moreover, “[d]epending on the specific reason for its application, conditions, length, effects and other circumstances, solitary confinement can amount to a breach of article 7 of the International Covenant on Civil and Political Rights, and to an act defined in article 1 or article 16 of the Convention against Torture.”
Manning, a 24-year-old Iraq veteran, was arrested on May 29, 2010 outside Baghdad, where he was working as an intelligence analyst. He has been charged with 22 counts, including aiding the enemy, relating to the leaking a massive trove of state secrets to the whistleblowing website WikiLeaks.
The secrets that Manning is alleged to have shared with WikiLeaks include incontrovertible evidence of U.S. war crimes, including the “Collateral Murder” video documenting the callous killing of over a dozen people in the Iraqi suburb of New Baghdad in 2007 – including two Reuters news staff.
To date, Manning is the only individual who has been arrested in relation to that tragic incident.
Other secrets allegedly leaked by Manning include “the Afghan War Logs,” a huge cache of secret U.S. military files providing a devastating portrayal of the deteriorating war in Afghanistan. The war logs, made public in July 2010, revealed how coalition forces have killed hundreds of civilians in unreported incidents and how a secret “black” unit of special forces has hunted down suspected Taliban leaders for “kill or capture” without trial.
As the Guardian reported,
The logs detail, in sometimes harrowing vignettes, the toll on civilians exacted by coalition forces: events termed “blue on white” in military jargon. The logs reveal 144 such incidents.
Some of these casualties come from the controversial air strikes that have led to Afghan government protests, but a large number of previously unknown incidents also appear to be the result of troops shooting unarmed drivers or motorcyclists out of a determination to protect themselves from suicide bombers.
At least 195 civilians are admitted to have been killed and 174 wounded in total, but this is likely to be an underestimate as many disputed incidents are omitted from the daily snapshots reported by troops on the ground and then collated, sometimes erratically, by military intelligence analysts.
Since the release of the Afghan War Logs, evidence has continued to surface regarding atrocities being committed with chilling regularity in Afghanistan, including the activities of the 5th Stryker Brigade’s “kill team,” which made headlines last year with the publication of grisly war photos by Rolling Stone.
The kill team had staged three separate murders of Afghan civilians in Kandahar province and had attacked a whistleblowing private who had alerted military police of the kill team’s activities.
The investigation into those responsible for the kill team’s crimes led to “a letter of admonition” of Col. Harry D. Tunnell IV, the commander in charge of the 5th Stryker Brigade.
A secret U.S. Army report revealed by Der Spiegel last year confirmed that at least part of the blame for the culture of permissibility that enabled the kill team’s activities fell on Tunnell. As Der Spiegel reported,
The report suggests that Tunnell helped to create, at least in part, conditions that made the cruel actions of the kill team soldiers possible. “Tunnell’s inattentiveness to administrative matters … may have helped create an environment in which misconduct could occur,” the report reads.
The US Army spent one month investigating the circumstances surrounding the kill team incidents. The report was compiled by General Stephen Twitty, who interviewed 80 Army personnel of various ranks. The 532-page report paints a damning picture of the military culture in the Stryker Brigade Combat Team (SBCT), which was under Tunnell’s command and which the “kill team” soldiers belonged to.
According to one witness quoted in the Army’s report, Tunnell himself had spoken about “small kill teams,” which he wanted to ruthlessly hunt down the Taliban. He outlined his preferred “counterguerrilla” strategy in speeches to soldiers under his command, which amounted to “search and destroy” missions to ferret out Taliban fighters.
One soldier quoted in the report summed it up by saying: “If I were to paraphrase the speech and my impressions about the speech in a single sentence, the phrase would be: ‘Let’s kill those motherfuckers.'”
While Tunnell got off with a reprimand, the soldier who led the kill team was convicted of premeditated murder and sentenced to life in prison, eligible for parole in nine years.
The 38-year-old Army staff sergeant who allegedly murdered 16 Afghan civilians over the weekend – including nine children and three women – may face the death penalty, according to Defense Secretary Leon Panetta.
If executing the soldier is intended to demonstrate America’s core values, however, the U.S. may want to reconsider this approach. The United States’ infatuation with the death penalty has long a source of alienation with U.S. allies, particularly in Europe. Following last year’s controversial execution of Troy Davis, for example, European allies expressed shock and dismay.
EU foreign policy chief Catherine Ashton said, “The EU opposes the use of capital punishment in all circumstances and calls for a universal moratorium. The abolition of that penalty is essential to protect human dignity.”
Rather than responding to the weekend’s war crimes in Afghanistan with even more bloodlust, the United States might do well to consider a new strategy, perhaps starting by ending its wars and prosecuting all war crimes in Iraq and Afghanistan all the way up the chain of command.
Releasing alleged whistleblower Bradley Manning from prison and compensating him for his months of “cruel, inhuman and degrading treatment” would also be a welcome step toward demonstrating America’s commitment to its “core values.”
U.S. Attorney General Eric Holder this week laid out the Obama administration’s most comprehensive defense yet of its extrajudicial assassination policies.
Holder’s speech at Northwestern University School of Law on March 5 was notable both for its sweeping redefinitions of certain legal principles – on both the domestic and international levels – and for its skillful utilization of Orwellian doublethink to simultaneously trumpet principles of “American exceptionalism” while undermining the core values that underline those principles.
Holder boasted, for example, that “even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals.” He proudly cited, in particular, the Fifth Amendment to the Constitution, “which says that the government may not deprive a citizen of his or her life without due process of law.”
The attorney general then went on to rationalize the U.S. government’s systematic betrayal of the Fifth Amendment’s due process clause, particularly through its indefinite military detention policies and its program of targeted drone strikes on U.S. citizens and foreign nationals who have been designated by the Executive Branch as enemies of the United States.
This policy has been roundly condemned by human rights organizations and the international community, especially after last fall’s assassination-by-drone of U.S. citizen Anwar al-Awlaki in Yemen.
As Reuters described the assassination program last October,
American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.
There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.
In his speech at Northwestern, Holder defended the process by which individuals are targeted for elimination, arguing that although it is done entirely in secret, it nevertheless follows the Fifth Amendment’s due process requirements.
“Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces,” Holder said. “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”
However, as former State Department diplomat Peter Van Buren explained in an article at Huffington Post, Holder’s word games over due process vs. judicial process flies in the face of the original intent of the Fifth Amendment:
Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity and clarity. When you are saying something true, pure, clean and right, you often do not need many words: “… nor be deprived of life, liberty, or property, without due process of law.”
There are no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for war, terrorism, mass rape, creation of concentration camps, acts of genocide, child torture or any evil. Those things are unnecessary, because in the beauty of what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government would be made up of us, the purpose of government was to serve us, and the government would be beholden to us. Such a government would be incapable of killing its own citizens without care and debate and open trial.
Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, pointed out the inherent danger with entrusting one man – in this case the president of the United States – to decide who lives and who dies based on secret evidence without any sort of judicial review:
Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.
In addition to arguing the constitutionality of the extrajudicial killings of American citizens, Holder also blithely asserted that the policy is in compliance with international law.
While acknowledging that “it is preferable to capture suspected terrorists where feasible,” Holder claimed “that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.”
“This principle has long been established under both U.S. and international law,” he said. Citing the President’s wartime powers purportedly authorized by Congress in 2001, he elaborated on the corresponding authority that supposedly exists on the international level:
Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.
This claim, however, ignores longstanding complaints from the international community over the United States’ lawless prosecution of the war on terror in general, and the drone assassination program in particular.
A 2010 United Nations report stated that a targeted killing outside of an actual battlefield “is almost never likely to be legal.” It rejected “pre-emptive self-defense” as a justification for killing terrorism suspects far from combat zones.
“This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the U.N. Charter,” said Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”
Failing to mention these grave concerns articulated by the international community regarding the legality of the U.S. drone program, Holder instead zeroed in on the word “assassination,” which he called a “loaded term.” He acknowledged that if these killings were considered assassinations, they would be unlawful.
“Some have called such operations ‘assassinations,’” he said.
They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.
Most definitions of “assassination” include two components: that the killing is carried out as a surprise and/or secret attack, and that it is done for political and/or religious reasons.
As the Harvard Law Review pointed out in 2006:
Black’s Law Dictionary defines assassination as ‘the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.’ If termed ‘assassination,’ then attacks on leaders have been construed as prohibited by Article 23b of the Hague Convention of 1899, which outlaws ‘treacherous’ attacks on adversaries, and by the Protocol Addition to the Geneva Convention of 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), which prohibits attacks that rely on ‘perfidy.’
Whether the targeted drone strikes authorized by the President fall under common definitions of “assassination” is a matter of debate. Without a doubt, the strikes contain certain aspects of what are traditionally considered assassinations, in that they are deliberate, surprise, targeted killings of public figures outside of combat zones.
But regardless of the terminology used to describe the killings, the larger point is that the law explicitly prohibits extrajudicial executions, including state-sponsored assassinations, and requires that even the worst criminals be granted due process and fair trials.
In his essay “Politics and the English Language,” George Orwell observed that political prose was formed “to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”
By separating concepts of “due process” and “judicial process,” and distinguishing unlawful “assassinations” from allegedly legal “targeted killings,” Eric Holder’s speech to Northwestern has taken this maxim to a whole new level.
The fact that the highest law enforcement official in the land was making these spurious arguments to one of the nation’s most elite law schools should send chills down the spine of anyone concerned about the future of the rule of law, and the rights of people anywhere to be protected from arbitrary, state-sanctioned, extrajudicial murder.
To sign a petition demanding that the Justice Department release all legal documents justifying targeted killing of Americans, click here.