Bush War: Military Necessity or War Crimes?
By Jennifer Van Bergen & Charles B. Gittings 1
t r u t h o u t | Tuesday, 15 July 2003
[Editor s Note] This is Part One of a three-part series that raises the question whether the Bush War namely, the domestic agenda in the so-called war on terrorism, the Military Tribunal Order of November 13, 2001, the illegitimate detention of suspects at Guantanamo Bay and elsewhere without due process -- are justified, as the Bush Administration claims, by the doctrine of military necessity, or whether they, in fact, constitute violations of the Geneva Conventions, which would thus be war crimes under United States law, subject to capital punishment. Part One introduces the question. Part Two discusses the Geneva and Hague Conventions, which the authors claim Bush is violating. Part Three discusses the doctrine of military necessity and concludes military necessity does not justify the Bush War.
The United States Constitution expressly incorporates international treaties as the supreme law of the land. Article 6 of the United States Constitution states: The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
All executive and judicial officers and members of Congress are bound by oath to support the Constitution, including Article 6. The term treaties includes those signed by the President and ratified by the Senate, as well as those not ratified or simply part of customary international law -- meaning those principles which are recognized by most nations. 2 The Geneva and Hague Conventions were signed and ratified by the United States in 1956. They have a long history. They were developed through many wars, starting in 1864. Their present versions arose out of the depredations of World War II. As the Geneva Convention requires, the United States codified their enforcement in the U.S. Code. 3
Geneva forbids 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. It is forbidden under the Hague Convention to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. 4 Think about what Bush has done by detaining combatants at Guantanamo for over a year without trial or by taking persons out of civil courts and throwing them in military brigs for eventual trial before military tribunals tribunals that do not have judicial guarantees that meet basic Constitutional or international human rights standards. Think about the lack of judicial guarantees, the lack of access to a jury of peers, of basic rules of evidence (that disallow hearsay, for example), the right to confidential communications with and zealous representation by an attorney, and the right to appeal to an independent judicial body. The Bush Military Tribunals fail to guarantee any of these protections.
In fact, the Geneva Convention not only requires due process by regularly constituted courts, but requires that every captured person whose status is in doubt have his status determined by a competent tribunal. The official Geneva Commentary states that [t]his amendment was based on the view that decisions which might have the gravest consequences should not be left to a single person The matter should be taken to court. Because combatants might be subject to capital punishment, a further amendment was made, stipulating that a decision regarding persons whose status was in doubt would be taken by a competent tribunal, and not a specifically a military tribunal. 5 A unilateral determination by the President that captives are unlawful enemy combatants does NOT meet the requirements of the Geneva Convention. It is rumored that some detainees have already been deported to other countries. (Some rumors have it that these persons were deported to countries that use harsher interrogation methods than we do.) The 1945 Charter of the International Military Tribunal forbids the deportation (not to mention the ill-treatment or murder) of civilian population of or in occupied territory for any purpose. 6 Geneva forbids the unlawful deportation or transfer or unlawful confinement of a protected person or willfully depriving a protected person of the rights of fair and regular trial. 7 Geneva defines protected persons as those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. 8 While Geneva makes rules for how combatants and civilians are to be treated, it also makes rules that apply to the nation who captures them and to those that violate the treaty. The Geneva Conventions were the first treaties to require States to prosecute violators, regardless of their nationality or the place where the offence is committed. Furthermore, under Geneva, States must not only respect but ensure respect for [international humanitarian] law. 9 The 1929 Geneva Convention abolished the provision that the Convention is binding only if all the belligerents are bound by it. In other words, Geneva is binding on all.
Finally, Geneva is applicable in all circumstances. This means that no Power bound by the Convention can offer any valid pretext, legal or other, for not respecting the Convention in all its parts. Whether the war is just or unjust, a war of aggression or of resistance to aggression, all parties are bound, not merely to take the necessary legislative action to prevent or repress violations, but to search for, and prosecute, guilty parties. No signatory can evade this responsibility. 10 The Bush Administration is denying terrorist suspects hearings by a competent tribunal on their status, and is disobeying the intent of the conventions that combatants should be classified as POWs until such a hearing finds otherwise. The legal processes that will be used in the military tribunals violate both the Conventions and any rational concept of justice; they presume guilt, lack independent counsel, and lack appeal to independent competent authority. These are all deeply troubling flaws that cannot be ignored. Any one of those things by itself would be a war crime. Taken together, they are an outrage against humanity.
The United States enacted section 2441 of Title 18 of the United States Code to enforce Geneva. Section 2441 states that Whoever, whether inside or outside the United States, commits a war crime shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. 11 In its pertinent part, subsection (c) defines a war crime as:
(1) a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party 12 Clearly, the Bush Administration is flagrantly violating Geneva, and in doing so, it is violating the United States Constitution, international humanitarian law, and domestic federal law. How can Bush get away with this? Military necessity.
Next, in Part Three of the Bush War, the authors discuss the doctrine of military necessity and conclude that it does not justify Bush s actions.
2 See Paquete Habana, 175 U.S. 677 (1900) and U.S. v. Belmont, 301 U.S. 324 (1934).
3 18 U.S. Code, section 2441.
4 Geneva Common Article 3(1)(d); Hague IV Annex (HR) Article 23.
5 International Committee of the Red Cross (ICRC) (Jean S. Pictet, ed.), Commentary to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (hereafter Geneva Commentary ), vol. 3, pp. 75-76.
6 IMT Charter (London 1945).
7 Hague IV Annex (HR) Art. 23-28.
8 Fourth Geneva Convention (Civilians) Article 4. Other definitions specifically include POW s. See Pietro Verri, Dictionary of the International Law of Armed Conflict, (ICRC, 1992).
9 Both quotes from: ICRC, Punishing Violations of International Humanitarian Law at the National Level: A Guide for Common Law States (2001), pp. 9-10 (emphasis in the original).
10 All information in this paragraph is from: ICRC, Geneva Commentary, vol. 3, p. 27.
11 See footnote 12 for link. This statute applies only to violations against U.S. citizens. See footnote 7 for the link to the Hague Convention articles.
12 http://www4.law.cornell.edu/uscode/18/2441.html. The clause ends with and which deals with non-international armed conflict. Thus, clause (1) and (2) apply to international conflicts, and clause (3) applies to non-international ones. The meaning of this is that there is no sovereign immunity for officials who commit war crimes against domestic rebels, criminals, or untermenschen. (Sub clause (4) relates to any person who willfully kills or causes serious injury to civilians under the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices.)