U.S.-Perpetrated War Crimes go un-probed: Obama soft peddles Bush era War Crimes

“There is a tension in U.S. foreign policy that’s pretty longstanding: The U.S. is far more comfortable as the maker of international rules than as subject to them,” says Stewart Patrick, director of the international institutions and global-governance program at the Council on Foreign Relations in Washington, a well respected Think Tank in the U.S.

This sentiment well suites the United States, a nation that sits on judgment on other nations’ war crimes, human rights abuses, extra-judicial killings and humanitarian situations, when an independent United Nations human rights investigator in a reports to the World Body released 28 May 2009 said that the United States is failing to properly investigate alleged war crimes committed by its soldiers in Afghanistan and Iraq.

The United Nations directed report of the Special Rapporteur on Extrajudicial, Summary
Or Arbitrary Executions Philip Alston that probed the possible war crimes by the United States stated "There have been chronic and deplorable accountability failures with respect to policies, practices and conduct that resulted in alleged unlawful killings -- including possible war crimes -- in the United States' international operations.”

"It's crucial the Justice Department investigate the torture and ill-treatment of detainees," said Kenneth Roth, executive director of Human Rights Watch. "The United States can't truly claim to have repudiated these egregious human rights violations unless it returns to the day when it treated them as crimes rather than as policy options."

Philip Alston citing lack of transparency by the United States regarding civilian casualties perpetrated by the U.S. military in this report, now posted in the UN Web Site, says: “U.S. Department of Defense (DOD) officials confirmed to me that the military does not systematically compile statistics on civilian casualties in its operations in Afghanistan or Iraq.

The purported reason is that “body counts” are not relevant to evaluating the effectiveness or legality of military operations. It is true that a simple “body count” may not on its own be useful. However, systematically tracking how different kinds of operations result in different levels of civilian casualties is critical if the United States is serious about minimizing casualties. Indeed, the Government’s own experience shows why this is so.”

Civilian deaths in the hands of Private Contractors (PC) commissioned by the U.S. Military too are unaccountable, and the report says that such civilian deaths run in to thousands.

“There have been numerous and credible accounts of private security and other contractors (PCs) engaging in a pattern of indiscriminate or otherwise questionable use of force against civilians. At least in Iraq, that use of force has resulted in a significant number of casualties, conservatively estimated to be in the hundreds, perhaps thousands. Yet the failures of reporting and transparency by PCs employed by various Government military and civilian agencies are even more dramatic than those for the military. For example, in Iraq, the DOD established Reconstruction Operating Councils (ROCs), administered by a private security contractor, to provide coordination between the military and security contractors. While in theory DOD contractors report casualties and use of force in serious incident reports (SIRs) to the ROCs, doing so has not been compulsory for all contractors.71 The most comprehensive study to date found that few firms ever report shooting incidents, that such incidents are often misreported, and that SIRs that are filed are almost uniformly cursory and uninformative.”

In June 2008 it was reported that Physicians for Human Rights who examined 11 former detainees from Abu Ghraib prison in Iraq and at Guantanamo Bay say they "uncovered medical evidence of torture, including beatings, electric shock, sleep deprivation, sexual humiliation, sodomy and scores of other abuses."

The detainees were never charged with crimes.

"We found clear physical and psychological evidence of torture and abuse, often causing lasting suffering," said Dr. Allen Keller, a medical evaluator for the study.
The report is prefaced by retired U.S. Major Gen. Antonio Taguba, who led the Army's investigation into the Abu Ghraib prisoner abuse scandal in 2003.

"There is no longer any doubt that the current administration (meaning Bush) committed war crimes," Taguba says. "The only question is whether those who ordered torture will be held to account."

"It's crucial the Justice Department investigate the torture and ill-treatment of detainees," said Kenneth Roth, executive director of Human Rights Watch. "The United States can't truly claim to have repudiated these egregious human rights violations unless it returns to the day when it treated them as crimes rather than as policy options."

Avoiding War Crimes charges/ICC

The Bush administration gave serious consideration to the possibility that their actions might lead to an indictment for war crimes, and they have taken legal measures to minimize their exposure to such prosecution. In a 25 January, 2002, memorandum obtained and publicized recently by Newsweek, Alberto R Gonzales, counsel to the president, outlined the pros and cons of the government's decisions about the treatment of prisoners in the so-called war on terrorism. Gonzales agreed with President George W Bush that because "the war against terrorism is a new kind of war," the Geneva Convention III on the Treatment of Prisoners of War need not be heeded. As Gonzales wrote, "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions... [It] eliminates any argument regarding the need for case-by-case determinations of POW status." An official presidential determination that the Geneva Convention "does not apply to al Qaeda and the Taliban," Gonzales opined, "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 USC 2441)." That statute, he added pointedly, "prohibits the commission of a 'war crime' by or against a US person, including US officials... Adhering to your determination that [the Geneva Convention] does not apply would guard effectively against misconstruction or misapplication of [the War Crimes Act]..." and thus would serve as "a solid defense to any future prosecution."

The International Criminal Court defines the following as international crimes:

(a) Crimes against Peace:

Namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing:

(b) War Crimes:

Namely, violations of the laws or customs of war. Such violations include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity:

(c) Crimes against Humanity:

Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The ICC was established in response to wartime atrocities in the Balkans and Africa in the 1990s. Since it opened in 2002, 108 nations have joined. Several others, including China, Russia and Israel, influence the court from the sidelines as observers, who can participate in discussions about policy. While Clinton signed the treaty establishing the court, he advised against becoming a member without guarantees to protect U.S. forces abroad.

The Bush administration took a hostile stance against the ICC and said it wouldn’t abide by the treaty. Bush garnered more than 100 agreements from countries receiving U.S. military assistance that they would never hand over American service personnel to the ICC. Today, the U.S. is the only major nation completely outside the court.

Before that, Newsweek magazine reported that Holder is considering opening a criminal investigation into the previous administration's abusive interrogation practices. Human Rights Watch said that such an investigation and appropriate prosecutions would send the strongest possible signal that the US government is committed to foreclosing any future use of torture and other ill-treatment.

Call for US War Crimes Probe

The US Department of Justice should open a criminal investigation into post-9/11 interrogation practices, Human Rights Watch said in a June 20, 2009 letter to Attorney General Eric Holder.

"It's crucial the Justice Department investigate the torture and ill-treatment of detainees," said Kenneth Roth, executive director of Human Rights Watch. "The United States can't truly claim to have repudiated these egregious human rights violations unless it returns to the day when it treated them as crimes rather than as policy options."

Before that, Newsweek magazine reported that Holder is considering opening a criminal investigation into the previous administration's abusive interrogation practices. Human Rights Watch said that such an investigation and appropriate prosecutions would send the strongest possible signal that the US government is committed to foreclosing any future use of torture and other ill-treatment.

American media noted that “By abolishing secret CIA prisons and banning the use of torture, President Barack Obama has already taken important steps toward setting a new course. But this effort to renew America's commitment to democratic values and human rights requires the administration to confront the past as well. Only by dealing appropriately with past abuses will the US government be seen to have surmounted them.”

"As the nation's top law enforcement officer, Attorney General Holder shouldn't be satisfied that crimes have stopped; he should punish the serious crimes that were already committed," Roth said. "He owes it to the victims, to the law, and to the prospect of deterrence."

Human Rights Watch called upon Holder to take steps to ensure that any investigation reaches the officials most responsible for serious abuses. The investigation should not be limited to low-level personnel who may have employed unauthorized interrogation techniques, but rather should examine the responsibility of the senior officials who planned, authorized, and facilitated the use of abusive methods that were in violation of US and international law.

Any investigation that failed to reach those at the center of the policy, while pinning responsibility on line officers, would lack credibility both domestically and internationally, Human Rights Watch said.

Human Rights Watch said in the letter to U.S. Attorney General Holder any failure to carry out a criminal investigation into torture and other ill-treatment would be widely understood as purposeful toleration of illegal activity - and as a way of leaving the door open to future abuses.

Jonathan Turley, constitutional law professor of the Georgetown University opined: “President Obama has insisted that “no one is above the law” but has refused to allow an investigation into a clear and knowing war crime by his predecessor. Under international law, such obstruction is itself a serious violation. Various senators and Bush officials have stated that, while Obama was pledging to guarantee that no one is above the law in such matters, he and Holder were assuring people privately that there would be no investigations into war crimes.”

A failure to investigate would also demonstrate to the nation and to the world that, despite promises of institutional reform, the Justice Department is unable to insulate itself from political influence, Human Right Watch said.

Several treaties ratified by the United States, including the 1949 Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, require that all states investigate and, if appropriate, prosecute those responsible for serious international crimes such as torture and cruel, inhuman or degrading treatment.

"By opening an investigation into the grave abuses carried out since September 11, you would begin the process of bringing the United States into line with its international obligations, and remedying the harm done to the US reputation abroad by its use of torture," Roth said in the letter.

On April 14, 2008 candidate Obama in reply to a media query whether his administration’s Justice Department “would aggressively go after and investigate whether crimes have been committed” here is his answer, in its entirety:

President Obama indicating that his administration would not investigate and prosecute alleged war crimes and torture practices has reiterated that he would like to look forward rather than backward.

(Begin Quote) What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it. (End Quote)

Obama backs out from human rights/war crime probe

Jonathan Turley, constitutional law professor of the Georgetown University opined: “President Obama has insisted that “no one is above the law” but has refused to allow an investigation into a clear and knowing war crime by his predecessor. Under international law, such obstruction is itself a serious violation. Various senators and Bush officials have stated that, while Obama was pledging to guarantee that no one is above the law in such matters, he and Holder were assuring people privately that there would be no investigations into war crimes.”

He further states, “There is a clear obligation of the Obama Administration to investigate and prosecute these crimes. Yet, the media has treated this as largely a political story and have rarely raised it with the President or pushed him on how he can say that “no one is above the law” while preventing high-ranking officials from being criminally investigated, let alone prosecuted.”

President Barack Obama will be “violating the law” if his administration declines to investigate Bush officials for their role in torturing detainees, a Democratic Party Congressman Jerrold Nadler commented in an interview August 21 with the prominent Internet Blog The Huffinton Post.

“If they follow the law they have no choice,” Nadler tells, citing the US role as signatory to the United Nations convention against torture and an anti-torture act passed in 1996.

If the Obama administration doesn’t investigate, the administration “would be violating the law,” Nadler remarked. “They would be not upholding the law; they would be violating it.”

President Obama indicating that his administration would not investigate and prosecute alleged war crimes and torture practices has reiterated that he would like to look forward rather than backward.

The treatment of detainees — and in particular, the death of detainees at the hands of US forces — was referred to federal prosecutors after a review of the cases in 2004. But after a preliminary Justice Department investigation, the Bush administration declined to prosecute those involved.

There is no indication from the Obama administration that it will pursue an investigation, leave alone prosecution, of the war crimes, human rights abuses and excessive use of interrogation techniques of the former Bush administration.

The quote at the outset of this report fits well with standards adopted by the United States for itself:

“There is a tension in U.S. foreign policy that’s pretty longstanding: The U.S. is far more comfortable as the maker of international rules than as subject to them,” says Stewart Patrick, director of the international institutions and global-governance program at the Council on Foreign Relations in Washington, a well respected Think Tank in the U.S.

- Asian Tribune -