Meanwhile, in the Hague …

by Daniel on May 12, 2004

Given the current revelations from Abu Ghraib, it is worth remembering that a major reason for the USA’s attempts to undermine the International Criminal Court was that making American troops accountable would impede them in the War on Terror. I personally don’t have much time for the Hague tribunal; I think that the US opposition to it on grounds of national sovereignty were valid and I don’t like unaccountable international institutions. But hell … isn’t it just a bit ironic that the US Army managed to achieve what nobody thought was possible (a successful war with minimal civilian casualties) and then fouled up on the kind of “war crimes” that nobody ever so much as imagined that the US Army would commit?

{ 41 comments }

1

Matt 05.12.04 at 7:12 pm

Why would we not think the US Army would do such things? A revealing article ran in the NY times a few days ago about quite similar abuse to middle-eastern or Pakistanii men rounded up, w/o charge or reasonable probable cause, in NY detention centers. I’m sure there was similar abuse in other detention centers. If we do it here in the US, why should we think it would not be done over-seas? Of course much worse things happened in Vietnam. Really, was there any very good reason think that things would be different this time, especially given the sort of directives coming down from the top? It seems a bit nieve to me to think that this wasn’t to be expected, given the situtation. (I don’t at all mean it’s forgivable or should not be harshly punished, particularly towards senior officers. But, it hardly seems unexpected.)

2

Alex Halavais 05.12.04 at 7:18 pm

While perhaps “unexpected,” I think a lot of people could have “imagined” US maltreatment of prisoners was possible. You don’t have to go back to Vietnam to find examples: US involvement in Latin America would do. It is only the process of othering that precedes any war that allows for the idea that Americans are somehow incapable of committing war crimes and atrocities.

3

Alex Halavais 05.12.04 at 7:19 pm

Um, what Matt said.

4

dsquared 05.12.04 at 7:30 pm

Why would we not think the US Army would do such things?

Well in my case, it simply didn’t occur to me; if I’d given it a moment’s thought I’d probably have suspected that they would, but I didn’t. Although thinking about it, IIRC (and I may not) the US Army acquitted itself pretty well on this count in the Balkans when the armies of a number of European nations behaved abominably.

5

Nate Oman 05.12.04 at 8:07 pm

I don’t think that U.S. opposition to the IIRC was premised on the idea that it was unnecessary because we can trust Americans to never do anything nasty. Rather, it seems like it was premised on the idea that Americans may well do nasty things, but we don’t trust international institutions to deal with it, and would rather prosecute crimes under the U.S. Code of Military Justice.

6

taak 05.12.04 at 8:13 pm

Also worth pointing out that the ICC would provide a legitimate-seeming venue to pursue this problem from purely a PR perspective on the Middle East.

7

Nate Oman 05.12.04 at 8:14 pm

Oops. Not “IIRC” but “ICC, ie International Criminal Court.”

8

Bob 05.12.04 at 8:18 pm

War crimes? What war crimes?

“Defence Secretary Donald Rumsfeld has defended interrogation techniques used by the military in Iraq. He told a Senate committee on Wednesday that methods such as sleep deprivation, dietary changes and making prisoners assume stress positions had been approved by Pentagon lawyers.” – from: http://news.bbc.co.uk/1/hi/world/americas/3708157.stm

9

Thomas 05.12.04 at 8:36 pm

The US opposition to the ICC predates the war on terror, by several years.

The US was accused of war crimes in the Balkans by serious people, and US troops were credibly accused of abusing prisoners in Kosovo.

10

Sean 05.12.04 at 8:37 pm

Along with what Nate said: Iraq aside, the US bears a disproportionate burden in dealing with the various nasties around the globe. And “the world”, speaking from both sides of its mouth, expects us to. It is not Belgian boys and girls who have to worry about busy-body leftists at the Hague scrutinizing their actions, it is Americans. I for one can do without that.

11

Thorley Winston 05.12.04 at 8:53 pm

Nate Oman and Sean both hit the nail on the head. No one ever seriously suggested that if you sent X thousands of Americans into combat situations around the world that the law of averages would not apply and no one would ever commit a crime or an atrocity. We correctly argued both from a position of national sovereignty and constitution protections for the accused that it was better to deal with such (rare) occurrences within the framework of our own laws.

Daniel Davies is simply setting up a strawman argument.

12

nick 05.12.04 at 8:54 pm

Rather, it seems like it was premised on the idea that Americans may well do nasty things, but we don’t trust international institutions to deal with it, and would rather prosecute crimes under the U.S. Code of Military Justice.

Well, we’re seeing that premise disintegrate in front of our eyes.

And sean’s post is so packed with inaccuracies that I shan’t bother itemising them.

What will be interesting to see is if the new provisional Iraqi government’s first bilateral agreement is a treaty exempting US troops from ICC prosecution. Because it’s quite feasible that the Rome Statute could be made to apply in these cases.

13

Randy Paul 05.12.04 at 9:03 pm

The ICC (and just once I would like someone to actually read the Rome Statute and Rules of Procedure and Evidence and be able to recite the name of the Chief Prosecutor before railing against it) operates under rules of complementarity:

The International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes.

If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute.

A country may be determined to be “unwilling” when it is clearly shielding someone from responsibility for ICC crimes. A country may be “unable” when its legal system has collapsed.

The Chief Prosecutor has stated that the first investigation he will undertake will be in the Democratic Republic of Congo and he also has indicated that he intends to investigate crimes against humanity by the LRA in Uganda.

14

sean 05.12.04 at 9:30 pm

Well, Nick, if the photographs we’ve seen so far from Abu Ghraib constitute images of “crimes against humanity” (as your “reply” to Nate suggests) then the ICC is going to be one busy institution. Of course it won’t have an iota of impact on actual injustices in the world, though I admit it is nice to think it might.

15

Thorley Winston 05.12.04 at 10:17 pm

In response to:

Rather, it seems like it was premised on the idea that Americans may well do nasty things, but we don’t trust international institutions to deal with it, and would rather prosecute crimes under the U.S. Code of Military Justice.

Nick wrote:

Well, we’re seeing that premise disintegrate in front of our eyes.

Really, how so? From what I’ve read, the six officers who failed to provide proper supervision have pretty much ended their careers while the seven who are alleged to have actually committed the abuses are facing criminal prosecution under the UCMJ. Looks like the system is working.

And sean’s post is so packed with inaccuracies that I shan’t bother itemising them.

Or more likely Sean’s post was dead-on for the most part and Nick is simply blustering.

16

Extradite the Neocons 05.12.04 at 10:33 pm

Who needs the IIC when you’ve got extradition treaties.

We will have an extradition treaty with the new, sovereign Iraq,

right?

17

Extradite the Neocons 05.12.04 at 10:33 pm

Who needs the IIC when you’ve got extradition treaties?

We will have an extradition treaty with the new, sovereign Iraq,

right?

18

Extradite the Neocons 05.12.04 at 10:37 pm

Looks like the system is working.

System? What system? Can you identify it? No one seems to agree on who was in charge, the Sec. of State contradicts Cambone, who’s been sent to contradict Taguba.
Please pass the Halcyon.

19

pepi 05.12.04 at 10:43 pm

I’m with dsquared and daniel on the being suprised part. The kind of sadism depicted in the photos and in the report, I would have never expected that.

I could picture the probability of episodes of torture of the CIA kind, for interrogation purposes; imagine the Rumsfeld-sanctioned sleep deprivation tactics getting out of hand; and of course you always take into account the existence of the rotten apples, and all that crap.

But what was photographed there, I dont think it can be described in those terms. It’s something else. It’s not just the cruelty, it’s the stupidity. It is inconceivable.

20

IXLNXS 05.12.04 at 11:14 pm

Anyone who has given the subject more than passing thought realizes our governement and armed forces do indeed condone torture. They just turn the other cheek to have plausable deniability.

Now torture in and of itself can be no more immoral and revolting than killing a person, and that is what war is about. Killing. If torture can possibly end a conflict and thereby save thousands of lives any one in their right mind should find it an acceptable evil.

But what we had in this case was Animal House. Bluto and the bunch not only tortured them in silly ways, but they had the lapse of reasoning to photograph it. This combined with the failure of their superiors and the administration to squash this as a matter of national security illustrate serious failures from the top on down.

Now I am not. I repeat not. Accusing Bush and Rumsfeld of actually doing any torture. But they did fail to keep this quit like it should have been. That is the way these things work. Denying it doesn’t change things.

But this all shall pass to. With the revelation of the decapitation video, American sentiment has shifted to the right again. Now many of the left or siding right because this was abhorrent. Civilized people cannot understand things as foul as premeditated killing for religious reasons. So the torture scandal will become a memory.

A few sacrificial sheep shall be slaughtered as is the price due. And the scandal of the torture shall be forgotten as all reasoning people realize war is an immoral buisness best left to professionals. After all does the public really want to dirty their hands with all the silly little details?

21

Tom Doyle 05.12.04 at 11:35 pm

“But what was photographed there, I dont think it can be described in those terms. It’s something else. It’s not just the cruelty, it’s the stupidity. It is inconceivable.”

Maybe that’s what “normal” torture looks like? I don’t know. It’s just a suggestion. Cruelty and stupididty aren’t mutually exclusive. And wouldn’t torture have to be sort of inconceivable, to make the desired impression?

I’m just speculating.

22

Sean 05.12.04 at 11:44 pm

Funny how reality has a way of smacking the world in the face at just the right moment. The murder of Nick Berg is just such a smack at precisely the right moment.

23

Thorley Winston 05.12.04 at 11:58 pm

IXLNXS wrote:

Now torture in and of itself can be no more immoral and revolting than killing a person, and that is what war is about. Killing. If torture can possibly end a conflict and thereby save thousands of lives any one in their right mind should find it an acceptable evil.

Depends on who it is that is being tortured and who it is that you are trying to save (the numbers are a secondary consideration). In the case of torturing the person who put innocents in danger or who was their accomplice, certainly. But that’s a far cry from finding it acceptable to torture an innocent person just to save a greater number of people who may or may not deserve saving.

24

Frank Wilhoit 05.13.04 at 1:58 am

Hm. What kind of unaccountable institutions *do* you like?

25

tr 05.13.04 at 2:00 am

_ironic_

Daniel: Wrong wrong word. US refuses to abide by international agreements because it can and is the most powerful nation on earth. There is no irony here at all. Empires come and go: Romans, British, Ottoman, American. International agreements sponsored by a collective of weaker European states are irrelevant while the empire is in full swing. The US is so powerful that it doesn’t need any friends.
Fast forward 50 years: Expect international agreements to become the flavour of the month in the USA in 2054 when China and the Muslim world have got rich, educated and equiped themselves with nuclear weapons.

26

Peter 05.13.04 at 2:48 am

Would anyone like to get the trials over first,surely even if the accused has had their picture splashed all over the Worlds media,doesn’t justice requires they get a fair trial?

27

pepi 05.13.04 at 7:29 am

tom doyle: yes, you’re absolutely right. I never implied there was a “normal” level of torture that could be _accepted_. I just said I could imagine some physical violence to prisoners, of the illegal and unacceptable kind too, but that one could describe as “interrogation tactics getting out of hand”. The freak show with safari photos doesn’t fit in that description.

But you’re right, I guess it’s futile trying to find a context in which a degree of abuse could “make sense” and therefore be expected, be likely to happen, occasionally – again, not in the “be acceptable” meaning, just in terms of at least originating from something with a purpose… other than sadism itself.

28

Dan Simon 05.13.04 at 7:48 am

TR: I don’t know if 2054 is the right date, or if China and the Muslim world are the right future superpowers, but otherwise, you’re exactly right. When the US grows weak, we can safely expect it to gain a newfound affection for international agreements.

And we can also expect the US to attempt to use these agreements–if, indeed, there are any such beasts left by then–in petty and self-serving ways, to increase its own power at the expense of the more powerful, all the while invoking grand internationalist principles and claiming noble, altruistic intentions. Hypocritical self-interest, after all, is what international diplomacy is all about, and American diplomacy is no exception. I daresay today’s European and third-world advocates of the ICC are no different.

29

JamesW 05.13.04 at 8:58 am

The American soldiers and intelligence operatives who carried out, and are probably still carrying out, torture in Abu Ghraib and secret jails around the world are guilty of a crime under international as well as domestic law – not the ICC but the UN Torture Convention and other human rights instruments. They have joined the band of modern pirates that any state may prosecute. If I were involved in Abu Ghraib, and escaped prosecution in the US, I wouldn’t go on holiday in Spain or Belgium.

A case has started in London brought by Iraqi victims of British abuse in Basra for redress under the European Convention on Human Rights. This is a fairly long shot, but not pie in the sky; the UK government had to settle out of court in an ECHR case brought years ago by the German widow of a Moroccan officer who took part in General Oufkir’s failed coup against King Hassan of Morocco, fled in a plane to Gibraltar, and was handed back to a grisly fate by British officials. Human rights by definition apply to everyone under a state’s jurisdiction.

30

One-Eyed Undertaker 05.13.04 at 9:29 am

So who’s in favor of hauling Private First Class Lynddie England in front of the UN Torture Convention for crimes against humanity?

31

tr 05.13.04 at 9:45 am

Dan: it reminds me of this old quote

“Be nice to people on your way up because you’ll meet them on your way down.”

As the _way down_ is likely to happen after most of the people reading this thread have died, it need not apply to us, only our great grandchildren!

32

Ginger Yellow 05.13.04 at 10:21 am

I think you’re being astoundingly naive. The US refused to ratify the Convention on Torture for a reason. It has a long history of torturing detainees itself and assisting other countries in torturing people (think Operation Condor, or the more recent “rendering” of detainees to third countries). Britain’s record isn’t much better, although at least the attitude seems to have changed during the 90s. If, say, Norman Tebbit stood up in parliament and said what Inhofe said, he’d lose the whip immediately. That Rush Limbaugh can get away with calling these atrocities “no worse than a frat hazing” is a stain on the American media. And if you consider having your military career ended suitable punishment for allowing widespread abuse and torture under your command, then you have a seriously screwed up sense of proportion. The commanders should be facing twenty plus years in jail.

33

Matthew (ashamed brit) 05.13.04 at 2:34 pm

Let’s also remember that the “successful war with minimal civilian casualties” included napalm bombing, depleted uranium, and generous use of air bombardments (“surgical” ones of course)…
And the casualties increase daily…

34

Randy Paul 05.13.04 at 2:35 pm

Ginger Yellow:

The US is a signatory to the Convention Against Torture, the treaty has been ratified by the Senate and the implementing legislation to my knowledge has been signed into law.

The current president’s father also signed into law the Torture Victim’s Protection Act. Those who seek to rationalize the use of torture need to examine the US Constitution and should acquaint themselves with Article VI Clause 2. They might also want to read the 8th Amendment.

35

Barry 05.13.04 at 3:22 pm

In addition, last I heard, Gen. ‘Guantanmo’ Miller has been put in charge of the Iraqi prison system. That’d be the same SOB who suggested having the MP’s ‘prep’ the prisoners for interrogation.

So what is happening is that the system for commiting abuses is being strengthened, while a few sacrifices are being made. And from the viewpoint of the Pentagon/White House, a one-star reserve general counts as lower-ranking.

36

Donald Johnson 05.13.04 at 9:07 pm

I’d include among the minimal civilian casualties the unknown number of people who’ve died as a result of the sewage flowing in the streets. That could easily exceed the several thousand (where several means 4-10) civilians killed by bombs, bullets, and artillery, but AFAIK, no one is counting.

But yeah, if you’re just looking at those actually at the receiving end of some American bomb, then the numbers are much smaller than what many in the antiwar movement predicted, presumably because Saddam’s army chose to fade away rather than turn Baghdad into Stalingrad. I do have a bit of a quarrel with antiwar groups that came out with these predictions –it should have crossed their minds that Saddam’s army might fold without putting up much of a fight, though it wasn’t certain, and people who want to do casualty forecasts and maintain their credibility should include best case as well as worst case scenarios in their predictions.

On the torture issue, like most American atrocities it’s been hidden in plain sight all along and the only thing surprising about it are the photos. I’ve always wondered what it would take to get the American press to treat an American war crime with the seriousness it deserved and now we know–it takes pornographic pictures on the front pages of the world’s newspapers, resulting in a foreign policy disaster that can’t be locked away in the journalistic ghetto on page A16.

One other random thought–people keep saying (though not here that I’ve seen) that only democracies openly admit their atrocities and allow them to be condemned in the press. That’s false–North Vietnam’s land reform of the 50’s resulted in several thousand killings (where several means between 3 and 15) and this was condemned in North Vietnam’s press. Ho Chi Minh ultimately apologized for it, as did Giap, though the wording of Giap’s apology leaves something to be desired. Maybe people can think of other examples where an authoritarian regime engaged in self-criticism. I don’t bring this up to praise North Vietnam, but just to point out that breast-beating about one’s own crimes isn’t necessarily confined to democracies. And anyway, there’s nothing praiseworthy in confessing to a crime when you’re caught in the act . The same senators who act concerned probably approved Negroponte’s appointment to be the new Iraqi proconsul.

For anyone interested in my Vietnam tangent, (I’m going for a tangent-setting record here) the info on the North Vietnamese land reform atrocities came from Duiker’s biography of Ho Chi Minh, though you can also find it summarized in (ahem) Chomsky’s Political Economy of Human Rights vol 1. Chomsky relies heavily on historian Edwin Moise, who wrote a book on land reform in Vietnam and China. Duiker uses Moise and others. Sheehan also discusses the event in his Vietnam book.

37

m 05.13.04 at 11:23 pm

I evaluate likely events in this manner: I ask, is action X one of the most vile, evil, pile of shit things some one could do to other people? If yes, then the US of A is probably doing it. 527 years of despicable bullshit and counting. While other nation states are nothing to brag about either, it will be quite a day when this one dies. **not to be overly rhetorical**

38

Aakash 05.14.04 at 5:49 am

This entry is quite good, and raises good points. I am glad that you think that the U.S. arguments against the ICC on sovereignty grounds were valid; I have made those arguments myself, when that was being debated.

As for the Hague Inquisition, that Kangaroo Court is illegitimate, and a farce. It should never have been formed.

39

Randy Paul 05.14.04 at 2:21 pm

How can you make a statement like that? They haven’t even prosecuted anyone yet.

40

Tom Doyle 05.15.04 at 9:21 am

“I personally don’t have much time for the Hague tribunal; I think that the US opposition to it on grounds of national sovereignty were valid and I don’t like unaccountable international institutions.”

a different view

FROM NUREMBERG TO ROME: A PERSONAL ACCOUNT

By Benjamin Ferencz

“Prosecuting crimes against peace and humanity was not invented at Nuremberg in 1945. Since ancient days, the legality of was itself and how wars were waged had been debated by renowned scholars from Plato to Grotius. Over 200 years ago, Immanuel Kant’s Zum Ewigen Frieden called for the protection of peace and human rights through the rule of international law.”

41

self 05.16.04 at 12:56 am

daniel,
Could you elaborate on your phrase “minimal civilian casualties” ? What figures, how reliable, historical comparisons, defects and delayed deaths… the usual stuff. I think this is a story yet to be covered and to conclude the damage as minimal at this point may be a premature judgement.

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