February 18, 2009
by Robert W. Barker
| Comment on the Blog
War crimes are not exclusive to the military and are often perpetrated through command from the political top-down. Many Nazis were prosecuted following WWII that never pulled a trigger or gassed an individual, yet sent orders and directives aimed at genocide, torture and/or mass executions.
The precise lawful classification of a war crime is simply: "A criminal act in violation of international Laws of War."
Theoretically, a war crime is consequence of the limitation on the use of force by states and other parties to preserve a certain amount of humanity in armed conflict. War crimes, by definition, are crimes against humanity.
Included in this category are crimes of inflicting unnecessary suffering and harm on civilian populations, and intrusive acts that prevent 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 and or civil conventions.
As an example, the so called "Law of Armed Conflict" is an effort to safeguard balance between the needs of martial leaders to effectively carry out their military procedures, what we call "military necessity" on one side, and the horrors of war and protection of humanity on the other. This can be a delicate balance.
War crimes are thus disobedience of the code of humanity.
What we're concerned with here engages the principle of legal reciprocity and civil codes of behavior in times of bellum.
We put forth a desire that our own civilians and soldiers who are captured to be treated in a humane manner, and therefore, certain rules apply. Furthermore, the past has confirmed that when a state's military acts within the boundaries of international law, it makes for a more competent military force. We waste fewer assets than when war gets hectic, exceptionally destructive, or savage and brutal. Consequently, we weave a less negative outcome, making it easier for the countries or groups occupied to return more quickly to customary living conditions.
Beheadings and terror by the insurgents and groups outside the civil codes were used as an excuse to blindside all civil treaties and behaviors deemed civilized. Yet are we also terrorist or do we behave in a civilized manner?
War crimes in Iraq cover the gamut of the definitions of war crimes - extreme torture, secret imprisonment, indiscriminate bombings, use of illegal substances, banned by the Geneva Convention, detainment without notice of civilians, and many other crimes against humanity.
On the fourth treaty of the Geneva Convention these articles were passed and ratified by the USA:
Nations must refrain from these activities in times of war when treating hostile prisoners.
(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.
There is scant doubt that the Bush Administration may be guilty of all or at least some of these articles, and as such they are libel for prosecution.
Further, it seems apparent they are also guilty of breeches of trust right here in the USA.
Under the American War Crimes Act of 1996, there exist two sets of questions to determine potential criminal liability of high government officials, including the President:
1. What did the leadership expressly order or approve. {Concerning interrogations of Iraqi prisoners}
2. Assuming leadership did not arrange or approve murder, torture or inhuman treatment, what measures were commenced once they were aware of murder, torture and callous treatment? Under international law, and the War Crimes Act, once a government official is aware of profound abuses of human rights, then that administrator has a sworn duty to effectively end them.
The Bush Administration failed to make public information about the President's -and other high officials orders- involvement with regard to the grilling of Iraqi prisoners. When did they know and did they approve or even if they did not approve or know, were they trying to stop said actions?
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The Special Prosecutor rule used against Clinton lapsed after the excesses of Prosecutor Kenneth Starr were revealed. Yet if it remained we might have a chance at prosecuting George W. Bush and others, or at least submit Mr. Bush to a discovery process and deposition as a witness to these crimes.
Mr. Bush and Dick Cheney should be, at the minimum, subjected to a deposition or cross examination to help us understand their role in this sordid affair
Therefore, we turn to the 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. Perhaps the fact of the false pretense they gave for the Iraqi invasion is alone enough to prosecute these criminals of the highest order.
The United States did not exclude itself from the Geneva Conventions with regard to the Iraq war, so there is no doubt that US activities in Iraq are governed by the Geneva Conventions.
Therefore the acts of the Geneva Conventions do apply, and so does the War Crimes Act of 1996 which is a United States criminal law and not an international statute. Similar to bank robbery, slaughter on federal property and numerous additional crimes listed in Title 18 of the federal statutes, committing a war crime is also a federal crime which can be prosecuted in US federal courts.
This position is apparent, from the words of the War Crimes Act itself.
White House Counsel Gonzales' January 2002 "Opt Out" memo to President Bush - that odd memo was predicated on the suggestion that so long as the Geneva Conventions applied to conduct in any country, then the War Crimes Act also applied.
So "Opting out" of the Geneva Conventions, Gonzales thought, may allow Bush and others to avoid prosecution of the War Crimes Act.
The legality of the "opt out" gimmick by Alberto Gonzales has yet to be tested.
The USA needs to cleanse itself in the face of the globe; we need the cathartic decontamination of our souls before the international community to prove we are a transparent and civil society. Our moral platitudes reach other ears in a cynical manner, our ability to stand on platforms of moral values is limited by our ignoring this criminal administrations wrongs.
War crimes of torture such as water-boarding were prosecuted by the USA in Japan and Germany, yet the Bush bunch saw themselves as above the laws of the entire globe.
We should begin our planning and foundation to bring President Bush and his minions like Rumsfeld, Gonzales, Cheney and others to justice by a jury of their peers, in a legal venue that does not depend upon the impeachment of individuals in this matter.
Today is the time, now is the moment, or forever the rest of us will be burdened with the guilt of crimes committed in our name - and the American dream of equality and justice will lay shattered and corrupted in the eyes of the world.
Further, and perhaps of supreme importance, is the precedent set in allowing executive privilege to extend to criminal acts.
This sets us up for likely future abuses, and a point of precedent is laid out that future executives may seize. Bush Doctrine and his various precedents thrust us further into the realms of permitted criminal behaviors and reciprocity grows impossible tomorrow, because the NeoCons of today were allowed a free pass.
Mr. Obama and Speaker Pelosi have indicated little or no interest in following up on criminal charges for those involved in the biggest power grab scam in American history, and possible war crimes.
Perhaps a world court like the one in The Hague, but there are serious doubts a charge will ever be filed.
As the Teflon president and his gang of NeoCons rides away into the sunset, laughing and back-slapping about the shaft they slammed into the gut of America, those of us that see their crimes, cringe in our American souls.
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Robert W. Barker [send him email] is a writer, professional photographer and travel aficionado from Eureka Ca. His work is carried on many web sites around the globe, a first novel recently copyrighted in the library of Congress, is soon to be published.
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