Before punishing Syria for using chemical weapons, President Barack Obama must apologize to the people of Afghanistan and Iraq for the use of chemical weapons while President George W. Bush was in office. Otherwise, a military strike on Syria for the use of chemical weapons can only be described as an act of hypocrisy.
Upon receipt of a recently published book (George W. Bush, War Criminal?) from Chuck Todd of MSNBC just before his inauguration in 2009, Obama was informed that three types of chemical weapons were used in Afghanistan and Iraq contrary to international treaties that amount to war crimes:
1. The Use of Napalm
A hill outside Basra was napalmed during the initial invasion of Iraq. So were two bridges south of Baghdad.
Reports are based on an article by Andrew Boncombe (“U.S. Admits It Used Napalm Bombs in Iraq”) in The Independent on August 10, 2003, and a second source, Martin Savidge (“Protecting Iraq’s Oil Supply) broadcast on CNN on March 22, 2003.
The use of napalm is banned by Article 55(1) of Protocol 1 to the Geneva Conventions. Adopted in 1977, the provision reads “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.”
2. Use of White Phosphorous
During November 2004, white phosphorous, a chemical that can cause serious burns, was used as an anti-personnel airborne weapon in Fallujah, according to several American military officers. On the last day of the month, General Peter Pace, who headed the Joint Chiefs of Staff, defended the use of white phosphorous to illuminate targets at night.
Evidence was first reported by Peter Popham (“US Forces Used Chemical Weapons During Assault on City of Fallujah”) in The Independent on November 8, 2005, and affirmed as well by Ali A. Allawi in The Occupation of Iraq (Yale University Press, 2007, p. 339).
According to the Article 2 of the Protocol on Prohibition or Restrictions on the Use of Incendiary Weapons of 1980: “(1) It is prohibited in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons. (2) It is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons.”
3. Use of Depleted Uranium Weapons
Some 2,000 tons of depleted uranium bullets, which can combust into a ball of fire measuring 10,000 Centigrade degrees, were utilized in the invasion of Iraq. At least 200 tons were used after the invasion. Children exposed to the munitions have come down with leukemia.
There are many sources: Dahr Jamail, “What Have We Done?” Iraq Dispatches, August 6, 2005; Neil Mackay, “US Forces’ Use of Depleted Uranium Is ‘Illegal’,” Sunday Morning Herald, March 20, 2003; Angus Stickler, “Depleted Uranium Weapons—A BBC Investigation,” BBC Radio, August 21, 2007; Geert Van Moorer, “One Year After the Fall of Baghdad: How Healthy Is Iraq?,” Health-Now.com, April 28, 2004; Nao Shimoyachi, “Depleted Uranium Shells Decried: Citizens Find Bush Guilty of Afghan War Crimes,” Japan Times, March 14, 2004; World Tribunal on Iraq Declaration of the Jury of Conscience, Istanbul, June 25, 2005.
According to Article 11 of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management of 1997: “Each Contracting Party shall take the appropriate steps to ensure that at all stages of radioactive waste management individuals, society and the environment are adequately protected against radiological and other hazards.”
Unilateral military strikes against Syria would be illegal under international law. Eight legal avenues for countermeasures against Syria’s use of chemical weapons are being blocked. One, however, may be open.
1) China and Russia will veto the UN Security Council from taking action, although they have allowed a weapons inspection team.
2) Action could be taken at The Hague, headquarters of the Organization for the Prohibition of Chemical Weapons (OPCW), set up by the treaty banning chemical weapons (Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 1992), which has been ratified by most countries except for Syria. An OPCW expert team is part of the UN weapons inspection team in Syria. But on July 16, the American delegate complained that the Ukrainian chairing OPCW’s Executive Committee refused to place the issue on the agenda for discussion.
3) The treaty empowers the OPCW Conference of all ratifying countries to recommend sanctions against a violation. However, the latest meeting of the Conference was last year. Another meeting will take place in December.
4) The UN General Assembly, which could act under the powers of the Uniting for Peace Resolution of 1950, is not in session but is likely to block action when reconvened in September, as the membership is similar to the OPCW’s Conference.
5) Under customary international law, every country has the right of reprisal. That is, any country has the right to retaliate against unfriendly action by another, though the response must be proportional to the unfriendly action. If Britain, France, and the United States contemplate several military strikes against Syria, they must pretend that many of their own citizens were injured or are potentially threatened by the Syrian chemical weapons attack.
6) Regional organizations can take action when the UN cannot, according to some experts. The Arab League disapproves of any military strikes against Syria. The Gulf Cooperation Council has also not encouraged such action.
7) The Responsibility to Protect principle, adopted by the UN, allows action to prevent or stop genocidal action. A few military strikes, not having that aim, would not be consistent with that principle.
8) A new principle could be enunciated unilaterally by the United States. So argues John Bellinger III, who was legal adviser during the administration of George W. Bush. But his suggestion has not been followed by the White House.
9) Bellinger also suggests that the United States recognize a Syrian opposition group as the legal representative of Syria (as has the Gulf Cooperation Council). Then that group could call for military action, and Washington could come to the aid of a recognized government. But the Obama administration has resisted that option.
When President Barack Obama originally announced his “red line” on chemical weapons, the reference was to the possibility that the chemical weapons facility would get into the wrong hands during the civil war. Later, the objection was that the Syrian government would use or has used the weapons. Now the fear is that the United States will unleash further chaos without legal justification.
But we are talking about Mr. Drone Strike. The use of drones is extrajudicial execution, contrary to the International Covenant on Civil and Political Rights and a war crime. So, too, is an American military strike on Syria.
After the attacks on September 11, 2001, President George W. Bush declared a “War on Terror” and secured support in that “war” from Congress later that year in a resolution entitled “Authorization for Use of Military Force.” Based on that resolution, Bush commanded American troops to enter Afghanistan, and the Taliban was driven from power in the country. For a war to be in accord with the UN Charter, the UN Security Council must give approval. No such approval, however, was sought or granted. The Afghan War, in other words, was illegal under international law, although the UN Security Council later approved the occupying military force already inside Afghanistan by giving the force a mission to maintain stability in accordance with the Fourth Geneva Convention.
When Barack Obama became president, the “War on Terror” was replaced by the “War on Al-Qaeda.” Once again, no UN Security Council approval was sought or granted, so many observers felt that the pursuit of Al-Qaeda terrorists would change from a military to a police operation.
Under international law every country has the right of reprisal in response to an unfriendly violent act, provided that the response is proportionate. Thus, the killing of Osama Bin Laden in 2010 could be viewed as exercising the right of reprisal for the attack on 9/11 following his indictment in a New York court. Although the raid was conducted on the soil of another country without permission, the reprisal focused on one person and not on that other country.
But the Obama administration’s meaning of “War on Al-Qaeda” became clear during the first week of February 2013, when a White Paper was released to justify drone attacks against members of Al-Qaeda anywhere in the world, including persons who held American passports. The “War on Al-Qaeda” is in fact a military operation. As a military operation conducted on foreign soil, sometimes intruding into the sovereign territory of countries without their permission, failure to secure UN Security Council approval means that the War on Al-Qaeda is illegal under international law. Nothing in the White Paper justifies the War on Al-Qaeda on international legal grounds, though valiant efforts to cite American court cases might give the impression otherwise.
There are two basic types of war crimes. The most basic is aggression. In contrast with the aggression conducted by the United States in Afghanistan after 9/11, the drone war is so unrelenting as to constitute aggression as well. The second type of war crime is misconduct in battle, which has occurred during the Afghan War. Hundreds if not thousands of innocent civilians have been killed in drone attacks; such conduct would be a war crime if the killing were indiscriminate, but there is no evidence the innocent have been deliberately targeted.
Thus, the main issue is that drone attacks fall somewhere between legitimate reprisals and illegal aggression when conducted with the permission of another country. When conducted without permission, there is no doubt that repeated drone attacks constitute illegal aggression.
But the White Paper was not prompted by a desire to clarify whether the War on Al-Qaeda is in conformity with international law. The main concern is that American citizens might be shot dead by drones without the benefit of judicial process. The detailed analysis in the White Paper, however, ignores several important facts: An American citizen becomes a traitor in joining Al-Qaeda or a related group that is committed to attack American persons and property. Treason is a domestic crime. A person suspected of treason should first be indicted and given an opportunity to surrender to law enforcement authorities. But such persons will never surrender, so capture should be the next step, followed by trial. But capture of a person plotting treasonous acts is unlikely, too. The logic of the situation suggests that persons joining treasonous organizations, such as Al-Qaeda, have in effect renounced their citizenship and thereby have surrendered constitutional protections. Therein lies some of the unspecified logic of the White Paper, which advocates killing such persons by drone attacks, because their membership in a terrorist organization ipso facto means that an attack on American persons or property is “imminent.” The analogy is that Jefferson Davis could have been killed without trial while he was president of the Confederate States of America.
In other words, the White Paper makes a strong case for killing members of Al-Qaeda in countries where drones are permitted. However, one flaw in the White Paper is a failure to indict those targeted in an American court for specific offenses. The case is even weaker where drone attacks are not approved. Domestic law appears untidily to support drone attacks, but international law does not.
In 2012, Christof Heyns, UN Special Rapporteur on Extrajudicial Killings, Summary or Arbitrary Executions, referred to drone attacks as “war crimes,” and the UN Human Rights Council is now deliberating whether to concur. Nevertheless, extrajudicial executions are banned by Articles 6, 14, and 15 of the International Covenant on Civil and Political Rights as crimes against humanity.
Many American officials claim that drones encourage nonterrorists to become terrorists. Some discount that assertion. If Cuba employed drones over the United States, the American public would not sit idly by, so why should those living in neighborhoods frequented by drones within Pakistan and Yemen feel anything but hatred toward the United States?
Although there are no treaties dealing with drones, an estimated sixty countries now have drones, which could be deployed everywhere, creating a chaotic world. Accordingly, a treaty banning the use of drones crossing international borders is inevitable.
During the administration of George W. Bush, the subject of “war crimes” was taboo in the media, and that silence has continued under the administration of Barack Obama. Whereas the Bush administration openly flouted their war crimes, Obama’s approach toward the subject has been cosmetic and subtle.
But American war crimes remain. They are well recognized in other countries.
And some accountability for the crimes is inevitable.
After identifying the 269 war crimes violated while Bush was in office, I indicate how they rolled over to Obama, how the legal process for accountability has proceeded in American and European courts, and finally how Guantánamo could be closed soon.
Some 269 war crimes during the Bush administration, based primarily on autobiographical and journalistic reports in four categories—illegal decisions to go to war, the military conduct of war, mistreatment of prisoners of war, and the misoccupations of Afghanistan and Iraq. Without going into detail on all 269, what is of special interest is what happened when Obama took office.
Although 6 of the war crimes deal with decisions to fight illegal wars, Obama is protected by the fact that the UN Security Council has repeatedly approved of the wars in Afghanistan and Iraq after the fact. The UN Security Council mission has been to maintain stability in both countries.
Regarding the conduct of war, 11 crimes involve hitting prohibited targets. Obama’s military continue to commit 3–destroying undefended targets, bombing neutral Pakistan, and engaging in indiscriminate attacks against civilians through drones.
Four crimes under Bush involve the use of prohibited weapons, and they are apparently no longer used. Six Bush-era crimes dealt with soldier misconduct, and 2 have occurred under Obama—failing to provide proper burials to enemies killed and excessive targeting of civilians.
Thirteen Bush crimes identified misconduct by commanding officers. At least 4 still occur—failure to notify authorities of bombing targets, extrajudicial executions, excessive military force, and clearly a failure of commanders to ensure that soldiers understand their Geneva Convention obligations.
Two crimes deal with the use of mercenaries. Both continue today.
The third category of war crimes relates to the treatment of prisoners. Today prisoners at Bagram Air Force Base in Afghanistan and Guantánamo are mistreated. Of the 7 Bush-era violations of standards of decency, 3 continue under Obama–religious mistreatment, allowing journalists to put prisoners on display, denial of decent burials.
Bush, of course, boasted about improper interrogation methods. But of the 11 relevant war crimes, Obama appears to have stopped them. Fifteen Bush-era war crimes relate to unsatisfactory living conditions of prisoners, but apparently 6 continue under Obama. Of the 174 prisoners at Gitmo, 5 are scheduled to be transferred to Qatar by spring 2012, but 3 are being held after trial, thus converting the facility into a penitentiary, which is prohibited. Some are still held in solitary confinement, unable to prepare their own food and eat together. So far as I have heard, prisoners are not provided funds to purchase personal items.
The health of prisoners was a major scandal under Bush, accounting for 24 war crimes. Two remain. Bagram is improperly still in a combat zone, and I have heard of no attempt to rehabilitate those who were tortured.
Three crimes under Bush dealt with the lack of extramural activities, but today prisoners are allowed to play soccer. I am unsure whether they are allowed to smoke, but they have that right under the Geneva Conventions.
Four Bush crimes dealt with how and where prisoners were transferred in or out of Gitmo, but none under Obama.
The Geneva Conventions requires “Hogan’s Heroes” standards regarding the selection of prisoner representatives and the administration of discipline. Ten were committed under Bush, and half evidently continue under Obama. Prisoners are not allowed to lodge complaints about their treatment through appropriate channels. There has been no response to complaints about torture. Prisoners are separated into classes, and some are in indefinite solitary confinement.
The Geneva Conventions establishes juridical standards, of which 44 were violated under Bush. Obama had the Military Commissions Act revised, but many provisions are still being contested by defense attorneys, so there is no regularly constituted court to try or sentence them. Obviously there has been no speedy trial for anyone. Those who tortured have not been arrested, investigated, prosecuted, or compensated. Courts on the U.S. mainland have allowed Obama’s government attorneys to use the “state secrets” argument to avoid accountability.
Fifteen Bush-era war crimes of prisoners refer to outside groups and persons. Obama has still not established a neutral Central Prisoner of War Agency, as required by the Geneva Conventions. Evidently not all information has been shared with UN bodies, such as inquests. Those cleared for release have not been repatriated promptly, and families have not been allowed compensation for members of their family who died from torture, either at Abu Ghraib, Bagram, or Gitmo.
Five Bush-era crimes were various forms of discrimination, but they evidently no longer occur. When Obama took office, the 64 children confined at Gitmo by Bush had either been repatriated or were adults, so the 25 violations of their rights did not roll over to Obama.
Of the 12 victims of extraordinary renditions under Bush, one war crime remains under Obama—failure to prosecute those responsible for their disappearances.
The fourth type of war crime refers to standards that an occupying power must maintain while in control of a foreign country. Of the 50 war crimes committed in the Bush administration, 11 remain under Obama. First, American forces have not established public order. They intimidate civilians from living ordinary lives through night raids. They do not protect journalists. Many live in refugee camps outside Kabul where conditions of food, housing, and shelter are inferior. Religious sensitivities are violated. Women and family honors are not respected. It seems scandalously clear that occupation personnel have not learned their Geneva Convention obligations.
That war crimes continue under President Obama is well known in the Moslem world. There is supposed to be civilian control of the military, yet the military is primarily responsible for most of the infractions and remains unpopular in Afghanistan.
My book on the war crimes of the Bush administration is well known in the White House. I sent Obama a copy. He hired for a time his favorite Harvard professor, Laurence Tribe, who knows all about my book. During Obama’s first year in office, I managed to piece together an apparent Obama 11-point plan for ending war crimes. Here it is:
1. Abide by the Geneva Conventions at Guantánamo.
President Barack Obama’s executive order of January 22, 2009, may have done some good, but the military defied him by limiting its compliance to just a few war crimes, most notably the ban on torture.
2. Close Guantánamo.
With no prisoners at Guantánamo, there would be no crimes committed against them. But those now imprisoned must be relocated. Cowardly opposition to their relocation within the United States has been expressed by politicians and pundits, and townspeople who might host them at secure prisons but have been unwilling to allow the prisoners into their towns. Were the prisoners to become bait in American prisons, attracting external or domestic terrorists, that possibility would make the FBI’s counterterrorism task much easier, as those seeking to free the prisoners could be efficiently trapped in an FBI lion’s den, but that possibility holds no water with fearmongers.
3. Transfer innocent prisoners to other countries.
A few countries accepted 45 of the prisoners (15 within Europe, 6 in Palau, 4 in Bermuda, and most of the rest to their homelands) during 2009. Two of the 15 were extradited to Italy for trial on terrorism charges. Diplomatic efforts were undertaken to place some 78 prisoners who are eligible for transfer. By midsummer 2010, some 20 were to be transferred out, and various countries agreed to accept 25 current Guantánamo prisoners. In March 2012, Qatar agreed to accept 5 former Taliban officials. The remaining 28 prisoners were scheduled to be returned to Yemen in December 2009, but their release was postponed because Obama believed that country lacked a satisfactory level of stability.
4. Put some Guantánamo prisoners on trial in federal courts for criminal offenses.
At least 5 who are associated with attacks on or over American property, at home or abroad, were to be tried in New York, Washington, or perhaps elsewhere, including those charged with conspiracy in the 9/11 attack, just as the “shoe bomber” was prosecuted earlier under Bush. That left 35 others to be tried, either in federal courts or by military commissions.
5. Try Guantánamo prisoners in military commissions for combat-related offenses. At least 6 will be tried by military commissions. For this purpose, Congress in 2009 amended the Military Commissions Act of 2006 to provide greater civil rights guarantees, presumably consistent with Geneva Convention requirements. Defense attorneys will, of course, challenge those presumptions.
6. Hold some prisoners indefinitely.
Those not cleared for release include 47 potentially dangerous prisoners who will never be put on trial because of tainted evidence against them. Obama wanted to moved them to a location somewhere in the United States or its Territories. Obama believes that Congress’ Authorization for the Use of Military Force resolution of 2001 permits all 47 to be indefinitely detained. Congress has yet to authorize or appropriate funds for facilities where they might be held.
7. Close all American-run prisons in Iraq.
Camp Bucca closed in September 2009. Obama ordered Camp Cropper to be closed by the end of 2009 and Camp Ashraf in July 2010. They are now completely closed.
8. Reduce the American military presence in Iraq.
The Marines evacuated in January 2010. By August 2010, most American troops were departed the country, leaving a residual force. Then even the residual force is to leaft by the end of 2011.
9. Stop indiscriminate aerial bombing of targets in Afghanistan.
The increase of troops to Afghanistan ordered by Obama during 2009 was premised in part on the ending the program to bomb targets by air that have killed far too many innocent civilians. Yet extrajudicial executions of enemy forces and innocent civilians continue.
10. Close the American-run prison at Bagram Air Base, Afghanistan.
A decision to do so was signed on January 16, 2010. However, some prisoners at the facility remained under American custody until an agreement in March 2012 for final transfer occurred by the burning of the Koran one month earlier.
11. Reduce the American military presence in Afghanistan.
Obama has begun withdrawing American military forces from the country, and a total pullout has been set for 2014.
But the most vexing problem is that Guantánamo remains in operation, costing $800,000 per prisoner per year, an acceptable amount even for those who decry federal deficits and “big government” spending. Accordingly, I have some suggestions:
1. Resettlement in the United States. Seventeen dissidents from Western China, the Uighurs held at Gitmo, could easily be accommodated with their brethren in Virginia. They were wrongly imprisoned, as they have no animosity toward the United States and instead oppose repression of Uighurs inside China. Yet in 2009 President Obama refused to accept a court order for their release to the Mainland United States, deferring to Congressional opposition.
2. Transfer to foreign countries. Congress currently allows transfer of prisoners cleared for release to settle abroad, provided that the Secretaries of Defense and State stipulate that the host countries meet specific strategic requirements. In March 2012, Qatar agreed to accept 5 former Taliban prisoners from Gitmo.
3. Swapping prisoners. Whenever an American is imprisoned or held hostage, they might be released by trading a Gitmo prisoner. Presidential candidate Herman Cain offered that idea and then backtracked on the same day. The problem is that there is a longstanding American policy of not negotiating with terrorists. A rash of American hostages would be taken by various terrorist organizations if they thought that they could get comrades back. Nevertheless, negotiations in 2012 involved a potential swap for Bowe Bergdahl, a 25-year-old US Army sergeant from Hailey, Idaho, who was taken prisoner on June 30, 2009 in Afghanistan, in exchange for the release of five Taliban prisoners to Qatar.
4. Transfer to the UN refugee authority. Part of Guantánamo now could be considered a refugee camp, as was the case with Haitians in the early 1990s. Prisoners already approved for transfer are technically “refugees,” as they reside neither in their home country nor in a country accepting them as residents, and they hope to leave soon. The UN High Commissioner for Refugees could handle those already cleared for release, as the agency agreed to do so for at least 3,000 Iranian refugees held by Americans in Iraq until 2011. If reassigned to the Geneva agency, Congressional strategic requirements could be met at existing UN refugee camps.
5. Join the International Criminal Court. If the United States joins the International Criminal Court (ICC), those with prosecutable offenses might be sent to The Hague for trial. However, the Senate must first be persuaded to ratify the ICC treaty, which seems unlikely at present, as that would open the door to prosecution of George W. Bush and company. However, a country that has ratified the ICC treaty might bring such a case.
6. Return prisoners to Afghanistan. Those held at Guantánamo who were engaged in active combat when captured could have remained under military detention in that country. In conformity with Geneva Convention requirements, some have already been sent back. Seventeen are Afghan citizens. The UN Security Council, which annually approves of the Afghan War, aiming to stabilize the country, might address their resettlement. The United States is building a new prison facility in Afghanistan today, possibly to accommodate those now at Guantanamo.
7. Trials in civilian courts. Some prosecutable prisoners at Guantánamo are accused of various crimes related and unrelated to air piracy and murder on 9/11, offenses that are appropriate for civilian courts, as they are criminal offenses. The International Covenant on Civil and Political Rights requires a civilian trial for them. Federal courts have already successfully prosecuted some 400 similar cases, including one transferred from Guantánamo, Ahmed Ghailani. On May 21, 2009, President Barack Obama declared that civilian trials were appropriate in these cases, echoed by Attorney General Eric Holder on June 16, 2011. But political leaders in New York objected to the cost of providing security for a high-profile trial in Manhattan, so there must be a change of venue. Security can be handled more economically around federal courts in Fargo, Grand Forks, or Minot, North Dakota, and elsewhere. Jury trials could even have defendants present through videoconference if necessary. If prosecution witnesses are called upon to confront defendants directly, they can be flown to Gitmo for that purpose.
8. Trials by military courts. “Dangerous prisoners,” who might be exonerated if put on trial because of tainted evidence could, nevertheless be put on trial anyway. Juries are unpredictable. If they are found guilty, they would be locked up. If they are found not guilty, they can be released, subject to current Congressional restrictions. And if they subsequently become terrorists, they can be tracked down, arrested, and tried in a manner similar to criminals released from American prisons who re-offend by committing arson, murder, or rape. Given the vast American counterterrorism network that has been erected since 9/11, only cowards would fear a few more potential terrorists on the loose today.
9. Plea bargains. Some prisoners may have committed minor offenses. They would jump at the chance to plead guilty to minor offenses if they could be sent home sooner. One already convicted at Gitmo, Salim Hamdan, is now home in Yemen on that basis.
10. Confinement in federal prisons. Whether convicted in civilian or military trials, the prisoners could be sent to prisons in Terre Haute, Indiana, or the Supermax prison in southern Colorado, which respectively incarcerate suspected or convicted terrorists. For that matter, all prisoners could be sent to either place or scattered among many federal prisons.
11. Reassignment to other territories. Gitmo is not the only possible venue. Prisoners could be split up and sent to military bases elsewhere in the United States or its territories, such as Guam, Midway Island, St. Thomas, Virgin Islands, or Wake Island. Although such transfers might be perceived as a shellgame, at least Guantánamo would be closed, once and for all.
12. Assertion of executive authority. President Barack Obama declared in a signing statement on December 23, 2011, that he would ignore Congressional meddling in the executive branch operations regarding Guantánamo. The constitutional separation of powers gives the executive branch full responsibility over the disposition of prisoners under the control of the national government. Congress, which did not arrest them, has tried to set administrative rules for handling them, thereby pretending to exercise a legislative veto over acts of the executive branch, in effect making those at Gitmo prisoners of Congress. Congressional laws on the subject, including the defense appropriation act signed on that date, nearly amount to passage of a Bill of Attainder, that is, an attempt to impose a sentence on prisoners by legislative means. According to former Chief Justice William Rehnquist, those who wrote the Constitution had experience with the English practice of “a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.” That’s why the Constitution prohibits bills of attainder.
Stopping war crimes is a top priority, but prosecuting for them remains on the agenda.
Torture, abuse, and possibly murder were committed at Gitmo, and their perpetrators have not been brought to justice. Until then, Guantánamo will remain an indelible stain on America, a recruiting symbol for Al-Qaeda. Meanwhile, justice is being denied, since major offenders remain unprosecuted.
Although compliance with the Geneva Conventions at Guantánamo has improved since Barack Obama took the oath of office, prisoners are still separated into classes. Some remain in solitary confinement without a speedy trial, fair or even unfair.
American and international law (the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1987) authorizes compensation for victims of torture and similar offenses. The U.S. Army routinely pays compensation to victims of collateral damage and prosecutes American military perpetrators of war crimes in court-martial trials. Civilian contractors have been convicted of war crimes offenses (for example, for murdering Afghan civilians) in domestic criminal courts. Of about one hundred cases referred by the Central Intelligence Agency (CIA) to the U.S. Department of Justice, two are now being readied for prosecution.
But many former prisoners at Guantánamo have been denied compensation. Although Australia, Britain, and Canada awarded compensation payments for their role in torture of their own citizens held by American authorities, federal courts have dismissed such cases (Al-Bihani v Obama, Al-Janko v Rumsfeld, Mohamed v Jeppesen), citing “national security” and “state secrets” justifications. In so doing, the judiciary is leaving “political” matters to the discretion of the executive branch.
One important court case, however, is now before a federal court in Chicago. The defendant is former Defense Secretary Donald Rumsfeld. He is being sued by two Americans who were wrongly held at Camp Cropper in Iraq, the same facility that held Saddam Hussein and other members of the “deck of cards.” The suit is based on Bill of Rights violations, including cruel and unusual punishment. The case, Vance v Rumsfeld, has met preliminary requirements for trial, though no trial date has yet been set. Similar cases (Doe v Rumsfeld and Ameur v Gates) are being pursued in other federal courts.
Several compensation cases against the United States have been filed abroad. According to the Geneva and Torture conventions, victims of torture can file claims in the courts of any country that has ratified the treaties and has provided a legal basis within its jurisprudence.
Since 1991, the UN High Commissioner for Human Rights has maintained a voluntary torture compensation fund. An Australian has recently filed a claim based on his detention at Gitmo.
One related case has been successful. In 2007, Italy charged twenty-two CIA officials and five Italian collaborators with capturing Osama Moustafa Hassan Nasr on the streets of Milan during 2003 for “extraordinary rendition” to Egypt, where he was tortured. In 2009, the court convicted the CIA officials in absentia. Now international fugitives, they have been ordered to pay compensation to the victim and his wife and will be sent to prison if extradited to Italy. Meanwhile, two of the Italians are serving three-year sentences.
Cases have been dismissed in Belgium, Britain, Denmark, Germany, and Lithuania due to American pressure or noncooperation in supplying evidence. As of mid-2011, nevertheless, active cases for compensation by torture victims have been pursued in Australia, France, Lithuania, Macedonia, Pakistan, Poland, Spain, and Switzerland. Two cases have been referred to the Inter-American Commission on Human Rights, one to the UN Human Rights Committee, and two to the European Court of Human Rights. The I-ACHR has just accepted one of the cases, involving a prisoner at Guantanamo.
The Polish case involves CIA torture inside a secret prison in Poland. The claimant, Abu Zubaydah, has been granted “victim status” by a Polish court. He is still held at Guantánamo.
Two former Gitmo prisoners filed the Swiss case in February 2011. A few days later, George W. Bush canceled a planned trip to Geneva. He could have been arrested upon arrival. Similarly, Ronald Rumsfeld had to sneak out of France in 2007 to avoid arrest after he landed in Paris to give a talk.
Generally war crimes are prosecuted after wars are over. Although the Kaiser was identified as a war criminal in the Treaty of Versailles, he escaped to neutral Netherlands and was never tried. But several Germans were. The Nuremberg trials were followed by trials in German courts during the Allied occupation of Germany after World War II.
Some want prosecutions of Bush now. And if Bush, why not Obama, too? In the end, domestic political considerations prevail over court decisions in the United States. Judges apparently view lawsuits against high-ranking officials as more political than juridical. American public opinion has been supportive of extreme measures to ensure national security. The media has refrained from any hint that war crimes might have occurred.
A trial of George W. Bush for torture might resemble what happened in France after Alfred Dreyfus was tried for treason during 1894: The entire nation was bitterly divided and immobilized for fifteen years thereafter.
Barack Obama’s preference for nonconfrontational politics and his desire to unite the country suggest that no prosecution of Bush-era officials for torture or other crimes at Guantánamo or elsewhere will occur. And now Obama is implicated in some of the same Geneva Convention violations. Although American government compensation may never be paid to victims of torture, Donald Rumsfeld might be held personally liable.
Al-Qaeda, pointing to war crimes under the Bush administration that are not being prosecuted under the Obama administration, will continue to have a basis for recruiting more terrorists to attack the United States. Although Attorney General Eric Holder is determined to close Gitmo before the end of 2012, he lost a turf battle with the Department of Defense, and has no such power. Congress will have to be persuaded to give President Obama more latitude to deal with the problem.
Attorney General Eric Holder told the European Parliament in September 2011 that he would try to close Guantanamo by Election Day 2012 or at least by the end of the year. How he would do so was not specified, but ten suggestions appear below.
First, however, it is useful to recall that when the Afghan War began, General Tommy Franks ordered compliance with the Geneva Conventions on October 17, 2001. On November 13 he was countermanded by an executive order in the form of a military order from President George W. Bush regarding prisoners who were then being collected, though no specific mention was made of the Geneva Conventions. When the first prisoners arrived at the Naval Base on January 11, 2002, the commanding general, Brigadier General Rick Baccus, ordered compliance with the Geneva Conventions. His order was then rescinded on February 7 by another executive order signed by George W. Bush making specific reference to the inapplicability of the Geneva Conventions of 1949 but not the 1929 Geneva Convention.
Despite Baccus’s initial attempt at compliance, the world viewed blindfolded, bound prisoners on their knees wearing orange jumpsuits together behind barbed wire. The photo, which has flashed across screens many times, already suggested six Geneva Convention violations:
- inhuman treatment (Article 3 of both the 1929 and 1949 treaties)
- humiliating and degrading treatment (Article 3 of both the 1929 and 1949 treaties)
- cruel treatment (Article 3 of the 1949 treaty; Article 46 of the 1929 treaty)
- close confinement (Article 21 of the 1949 treaty; Article 9 of the 1929 treaty)
- public display of prisoners (Article 13 of the 1949 treaty; Article 2 of the 1929 treaty)
- deprivation of personal property (Article 18 of the 1949 treaty; Article 6 of the 1929 treaty)
It was not the stalag of Hogan’s Heroes!
According to Human Rights First, some 779 prisoners have been housed at Guantánamo over the years. Today, there are 174. Of the 605 no longer at Gitmo, most were sent home or to countries that received them as refugees. Eight have died at Gitmo, 4 of whom were considered suicides, though some may in fact have been murdered. One, who pled guilty, is back home in Australia. Another, who was convicted, was sent back to Yemen.
Three others, who have been prosecuted, remain as prisoners at Gitmo, making the facility a penitentiary, contrary to Article 56 of the Geneva Convention of 1929 and Article 22 of the Third Geneva Convention of 1949.
Today, the following categories of prisoners remain:
- 3 confessed or convicted prisoners who may never be released
- 5 temporary detainees (Uighurs from China who await resettlement)
- 84 conditional detainees (30 Yemenis, who want to go home, are held due to instability there but are otherwise cleared for release)
- 46 dangerous prisoners who will not be prosecuted because of “tainted” evidence
- 36 prosecutable prisoners, some for civilian offenses.
I envision ten options:
Resettlement in the United States. Seventeen dissidents from Western China, the Uighurs held at Gitmo, could easily be accommodated with their brethren in Virginia. They were wrongly imprisoned, as they have no animosity toward the United States and instead oppose repression of Uighurs inside China. Yet in 2009 President Obama refused to accept a court order for their release to the Mainland United States, deferring to Congressional opposition.
Transfer to foreign countries. Congress currently allows transfer of prisoners cleared for release to settle abroad, provided that the Secretaries of Defense and State stipulate that the host countries meet specific strategic requirements.
Transfer to the UN refugee authority. Part of Guantánamo now serves as a refugee camp. The 89 prisoners already approved for transfer are technically “refugees,” since they reside neither in their home country nor in a country that will accept them as residents, and they hope to leave soon. The Geneva-based UN High Commissioner for Refugees could be asked to handle those already cleared for release. If sent to Geneva, Congressional strategic requirements could easily be met. Existing UN refugee camps, however, may offer inferior accommodations.
Join the International Criminal Court. If the United States joins the International Criminal Court (ICC), those with prosecutable offenses might be sent to The Hague for trial. However, the Senate must first be persuaded to ratify the ICC treaty, and that seems unlikely at present, as that would open the door to prosecution of George W. Bush and company. However, a country that has ratified the ICC treaty might bring such a case.
Return prisoners to Afghanistan. Those held at Guantánamo who were engaged in active combat when picked up should have remained under military detention in that country. To conform to Geneva Convention requirements, they should be sent back. The UN Security Council, which annually approves of the Afghan War, aiming to stabilize the country, might address their resettlement. The United States is building a new prison facility in Afghanistan today, possibly to accommodate those now at Guantanamo.
Trials in civilian courts. Some prosecutable prisoners at Guantánamo are accused of various crimes related and unrelated to air piracy and murder on 9/11, offenses that are appropriate for civilian courts, as they are criminal offenses. The International Covenant on Civil and Political Rights requires a civilian trial for at least some of them. Federal courts have already successfully prosecuted some 400 similar cases, only one of which (Ahmed Ghalani) was housed for a time at Guantánamo. On May 21, 2009, President Barack Obama declared that civilian trials were appropriate in many cases, and Attorney General Eric Holder as recently as June 16, 2011, expressed a preference to try all terrorists in civilian courts, but he has lost a turf battle with Congress. Political leaders in New York objected to the cost of providing security for a high-profile trial in Manhattan of those charged with 9/11 offenses, so there must be a change of venue. Security can be handled more economically around federal courts in Fargo, Grand Forks, or Minot, North Dakota, and elsewhere. Jury trials could then have defendants present through videoconference if not in person. If prosecution witnesses are called upon to confront defendants directly, they can be flown to Gitmo for that purpose.
Trials by military courts. “Dangerous prisoners,” who might be exonerated if put on trial because of tainted evidence could nevertheless be put on trial anyway. Juries are unpredictable. If they are found guilty, they would be locked up. If they are found not guilty, they can be released, subject to current Congressional restrictions. And if they subsequently become terrorists, they can be tracked down, arrested, and tried in a manner similar to criminals released from American prisons who re-offend by committing arson, murder, or rape. Given the vast counterterrorism network that has been erected since 9/11, only cowards would fear a few more terrorists on the loose today.
Confinement in federal prisons. If convicted in civilian or military trials, the prisoners could be sent to prisons in Terre Haute, Indiana, where suspected terrorists are already held in federal prisons. Or to the Supermax prison in southern Colorado, which houses convicted terrorists. For that matter, all prisoners could be sent either place.
Reassignment to other venues. Gitmo is not the only possible venue. Prisoners could be split up and sent to military bases elsewhere in the United States or its territories, such as Anderson Air Force Base on Guam, which was originally considered. Midway Island, St. Thomas, Virgin Islands, and Wake Island are also possible. Although such transfers might be perceived as shellgames, at least Guantánamo would be closed, once and for all.
Assertion of executive authority. Attorney General Eric Holder and President Barack Obama could ignore Congressional meddling in the implementation of operations by the executive branch of government regarding Guantánamo. The constitutional separation of powers gives the executive branch full responsibility over the disposition of prisoners under the control of the national government. But Congress, which did not arrest them, has set administrative rules for handling them, thereby pretending to exercise a legislative veto over acts of the executive branch. Obama threatened a veto in 2011 for having the legislative branch interfere with executive authority, in effect making those at Gitmo prisoners of Congress. Indeed, Congressional laws on the subject nearly amount to passage of a Bill of Attainder, that is, an attempt to impose a sentence on prisoners by legislative means. According to former Chief Justice William Rehnquist, those who wrote the Constitution had experience with the English practice of “a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial” and therefore prohibited bills of attainder in the Constitution.
Guantanamo could close very soon, but President Barack Obama and Attorney General Eric Holder would have to act with more determination.
Torture is considered a violation of inherent human rights, with the United Nations declaring it one of the most damaging violations known. Despite the international stance in opposition, torture still continues to be practiced in many countries around the world. As an official response, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment was adopted by member states, which then required to pass anti-torture laws. Unfortunately, only countries affiliated with the UN are covered by the treaty.
The UN defines “torture” as any action against another that causes severe physical and mental suffering and is inflicted purposely on a person for such reasons as obtaining a confession or information. Types of torture include sleep deprivation, physical attacks, exploitation of fears, mock executions, rape, simulated drowning, isolation, and sensory deprivation.
Victims of torture usually suffer lasting psychological trauma afterward, most often in the form of the anxiety disorder known as post-traumatic stress disorder (PTSD). Symptoms of PTSD may include flashbacks and nightmares of the event, depression, detachment and emotional avoidance, depression, hypervigilance, trouble sleeping, and increased nervousness. Whereas some victims of torture experience PTSD, Dr. Ibrahim Kira’s research shows that some torture victims actually prove to be better at coping with difficulties than victims of other types of trauma. Unfortunately, post-torture resilience may not last, as victims can handle only so many traumas before exceeding a threshold. Then any additional trauma will bring to the forefront previous traumas, resulting in more severe symptoms. His study also shows that some torture victims had better attitudes concerning recovery from the physical symptoms of torture, were less anxious, had fewer violent tendencies, and were better adjusted socially and culturally.
For torture victims, acknowledgment and acceptance of the event is usually the place to start in returning to normality. Having a strong support system or joining a support group with those having similar experiences may also help. However, the most important step a victim can take is to promptly seek psychological help from a trained professional, especially one qualified to treat PTSD. One method of treatment, desensitization, has the victim remember the traumatic event and share any associated feelings. This kind of repeated exposure helps to lessen feelings of anxiety and fear over time. Medication can be prescribed to curb depression, if necessary.
The psychological effects of torture aren’t limited to the victims, as research has shown that the people who commit acts of torture may experience similar effects. While the effect of torture on victims is well-known, little is said about the psychological effects on the person committing the torture. Dr. Richard Kulka, who studied readjustment among Vietnam veterans, discovered that acts of torture committed by soldiers strongly correlated with their development of PTSD, even more so than the effects of battle alone. Soldiers who engaged in torture, he found, had no history of abuse, nor were they abused as children.
Lara Battles, a psychologist who treated a member of a US military unit responsible for torturing Iraqi prisoners, claims that it’s hard for soldiers to live with what they’ve done, even if it was ordered. Many experience a distorted concept of correctness and question their ability to distinguish moral from immoral. However, not all perpetrators of torture experience psychological trauma. Those who feel no guilt for the abuses they committed rarely experience negative effects. But those who feel an abundance of guilt almost certainly will suffer psychological consequences.
Torture is a gross violation of human rights. Compensation for victims is required by international law. The United Nations encourages torture victims to find relief from their distress and attempt rehabilitation through a fund that was established especially for these purposes. Obtaining grants for torture victims takes priority so that these victims can receive appropriate medical and psychological care, along with any legal and monetary assistance required. Notably, David Hicks, an Australian terrorist who was detained in Guantanamo Bay and later authored Guantanamo, is seeking reparations for inhumane treatment. He claims that he confessed to terror charges in order to get a ticket home. The UN also provides funds for training health professionals to engage in post-torture therapy.
Victims of torture can endure intense emotional anguish for the rest of their lives. Although the United Nations and human rights organizations protest human rights violations, yet not every country complies. Until the movement against torture garners more support in the international community, no one can be safe from the possibility that they will be tortured some day.
Essay by Allison Gamble
Three former prisoners have received compensation for their ordeal at the hands of torture approved by the United States. But their payments have been from Australia, Britain, and Canada—not the United States. Nevertheless, claims have been filed in American courts as well as courts of other nations, and several cases are pending today.
Cases Filed in American Courts
- Khaled El-Masri, a German of Lebanese ancestry, filed a claim for compensation for his capture, extraordinary rendition, and torture. The American government later admitted its mistake. El-Masri v Tenet was filed in 2005, changed to El-Masri v United States on appeal, but was finally dismissed in 2007 on grounds of national security—that “state secrets” would have to be disclosed. However, the case was under investigation by a grand jury in mid-2011.
- Maher Arar, due to incorrect information, was whisked out of an American airport in 2002 under the extraordinary detention program and tortured. Released in the following year, he filed a claim in 2004 for compensation (Arar v Ashcroft), which was denied on “state secrets” grounds; the final appeal was in 2009. A Syrian-born Canadian, the Ottawa government paid him compensation for its role in supplying the incorrect information to American authorities.
- Rasul v Rumsfeld was filed in 2004 on behalf of four former Gitmo inmates, alleging torture. The case was later dismissed.
- 30 of 200 lawsuits filed by the Society of Victims of the U.S. Occupation in Iraq were accepted by federal courts by the end of 2008. The 200 were filed in Maryland, Michigan, and Virginia, but no follow-up information has appeared.
- Mohamed v Jeppesen involved five former Gitmo prisoners, one of whom (Binyam Mohamed) had his penis slashed three times while in custody in Morocco because of the Bush-era practice known as extraordinary rendition. Although Mohamed, a British citizen of Ethiopian ancestry, received compensation from Britain for its role in the matter, the Obama administration invoked “national security” to quash the case, arguing that a trial would have to reveal “state secrets” regarding how the extraordinary rendition was carried out. The final appeal was denied in May 2011.
- Al-Zahrani v Rumsfeld is filed on behalf of the family of two Gitmo prisoners who died under suspicious circumstances in 2006. Rumsfeld and other officials are accused of abuse, wrongful detention, and murder. The district court dismissed the case on grounds of “state secrets,” but in 2011 the case was on appeal.
- Saleh v Caci, filed on behalf of 26 prisoners abused at Abu Ghraib (beatings, sexual humiliation, exposure to extreme temperatures, rape), was dismissed in June 2011.
- Janko v United States was filed after his release in 2009, accusing officials of both the Bush and Obama administrations of beatings, harsh interrogation, sleep deprivation, torture, urination upon him.
- Vance v Rumsfeld was filed in a Chicago federal court during 2006 by two American contract workers, who seek unspecified damages for their detention at Camp Cropper, Iraq, after whistleblowing on financial irregularities of their contractor. While at Camp Cropper, they were repeatedly interrogated for long hours by unidentified military personnel, who used coercive methods, mentally and physically, including “walling,” that is, walked into walls while blindfolded. They were denied the right to counsel. Fluorescent lights were turned on continuously, and heavy metal or country music blared in the corridor most of the time. To further deprive them of sleep, they were awakened at random times and ordered to stand in their cold cells (with temperatures in the 50s). They tried to sleep in 9×9-foot cells on worn 3” foam mats on concrete slabs. The suit alleges that they were tortured and otherwise treated in a manner authorized by Rumsfeld, including false arrest, denial of property without due process, unlawful detention, unlawful search and seizure, denial of right to counsel in interrogations, coerced statements, denial of Sixth Amendment right to counsel, denial of right to confront adverse witnesses, denial of right to present witnesses and evidence, and to have exculpatory evidence disclosed, unlawful conditions of detention, denial of necessary medical care. Although Rumsfeld tried to have the case dismissed, his motion was denied, and the case is currently in preparation for trial.
- Rumsfeld is being sued by another former military contractor, whose identity has been withheld. He was subjected to the same treatment at Camp Cropper.
Cases Filed in Courts Outside the United States
- A Guantánamo prisoner of British nationality filed Abbasi v Secretary of State with a British court in 2002 to ask the British government to act on his behalf, but his motion was rejected because the court cited lack of jurisdiction.
- Three cases were filed in Belgium during 2003 regarding damages resulting from the wars in Afghanistan and Iraq, not Guantánamo. One, charging General Tommy Franks, specifically referred to injuries from cluster bombs. All three were later dismissed
- Cases against the United States were filed in German courts in 2004 and 2006 on behalf of four victims of torture. Filed against Donald Rumsfeld, George Tenet, and ten others. They were both dismissed.
- As soon as he was sent home to Australia from Guantánamo in 2005, Mamdouh Habib pressed the Canberra government for compensation. He received a payment in 2011 with which he plans to sue Egypt and the United States over his torture.
- A criminal case was filed in Argentina in 2005 regarding torture at Gitmo. No further information on the case has been reported.
- A criminal case was filed in Sweden in 2007 on behalf of a former Gitmo prisoner who was tortured. No progress on the case has been reported.
- After Donald Rumsfeld had resigned as Secretary of Defense, he flew to Paris in 2007 to give a talk. Upon arrival in France, a summons was issued to take him into custody because an unidentified former Gitmo inmate had complained in 2007. Rumsfeld fled to Germany and then back to the United State to avoid arrest. The complaint was dismissed three weeks later.
- In 2008, a case was filed with the Inter-American Commission on Human Rights, asking the United States to admit responsibility for the wrongful detention of Khaled El-Masri. Compensation, not requested, is implied. The case is now El-Masri v Obama.
- Djamel Ameziane, now held at Guantánamo, filed a similar case (now Ameziane v Obama) with the Inter-American Commission on Human Rights in August 2008. An Algerian, testimony before the Commission on October 29, 2010, alleged that his continued detention is unlawful, and included his request for a Latin American country to host him as a refugee, since he fears torture if returned to his homeland. Release from Gitmo might also mean a later request for compensation.
- Poland opened an investigation in September 2008 on the use of facility in its borders by American officials for purposes of extraordinary rendition and torture of Abu Zubaydah, who is currently detained at Guantánamo. The American government is not cooperating with the investigation.
- In 2009, Baltazar Garzón, a judge in Madrid, began investigating the case of Lahcen Ikassrien, a Moroccan-born citizen of Spain, who claims that he was tortured in Guantánamo. Three others are involved in the case. Although Garzón was removed from the case for an unrelated reason, the case was reassigned to another judge and is still pending.
- In 2009, Eloy Velasco, another Spanish judge, decided to look into a suit against Alberto Gonzales and five other Bush-era officials for authorizing torture at Gitmo. The suit was referred to the U.S. Department of Justice in April 2011, but that ruling is on appeal.
- On November 5, 2009, a Lithuanian parliamentary investigation committee investigated allegations that Lithuanian officials were involved in an American extraordinary rendition, including torture. The inquiry did not result in a lawsuit, and the investigation was later dropped.
- On November 29, 2010, Karim Khan’s lawyer revealed plans to sue the United States in a Pakistani court for killing his relatives in drone attacks during 2009. There has been no press confirmation that a case has been filed.
- In 2010, the Danish Justice Ministry rejected a case filed by Slimane Abderrahman, who had been held at Gitmo.
- Khaled El-Masri filed a compensation claim in February 2011 against the government of Macedonia, which turned him over to American officials for extraordinary rendition.
- Two former Gitmo inmates filed a case against Bush in Switzerland during February 2011. Bush cancelled his scheduled trip to the country as a result.
- Algerian-born Saber Lahmar alleges that he was tortured at Gitmo. The case was filed in France during May 2011.
- Abd Al-Rahim Al-Nashiri, now held at Guantánamo, has been granted “victim status” in a case filed in Poland during May 2011 for his torture while incarcerated in a secret prison in the country.
- Two cases have been filed in Pakistan. One is by Sadaullah, who lost both his legs and three relatives in a drone attack in September 7, 2009. The other is by Kareem Khan over a strike on December 31, 2009, which killed his son and brother in the village of Machi Khel in North Waziristan. In both cases, the defendant is John Rizzo, until recently acting general counsel for the Central Intelligence Agency, who has publicly admitted approving drone attacks. The two plaintiffs are being represented by Clive Stafford Smith, famous author of a book on mistreatment of prisoners at Guantanamo.
Al-Qaeda’s dissatisfaction with the United States has been based on foreign policy differences, as ably documented in Michael Scheuer’s recent book Osama Bin Laden (Oxford University Press, 2011) and many other sources. A major aspect of that disapproval has been over the presence of American military forces in countries with Muslim majorities.
Accordingly, the details of the death of Osama Bin Laden (OBL) are important in assessing what Al-Qaeda will do next. The iconic Osama Bin Laden is dead, but Al-Qaeda’s cause remains because American foreign policy has not fundamentally changed.
There are two aspects of the raid that produced OBL’s death—what happened and the legal grounds for the operation.
The details of the raid are still incomplete. Did the Seals ask for the surrender of the inhabitants of the compound before opening fire? Could the operation have been conducted without any deaths? Exactly who died and who survived the raid? Were innocent civilians killed? Was an unarmed Osama Bin Laden killed?
Reports state that there were at least 22 in the compound, but there was no advance assurance that Osama Bin Laden was inside. President Barack Obama says that he preferred to capture OBL alive. Most in the residence stood out of the way or surrendered and had zip ties applied to their wrists. Aside from OBL, four were killed. OBL, who vowed never to be taken alive, was unarmed and did not put up a fight. The Seals were ordered to capture him alive only if there was evidence that he did not have access to ordnance—for example, if he were naked.
On the flimsy pretext that no country would agree to give him a decent burial, OBL was then dumped into the waters near the where U.S.S. Cole was attacked in 2000. The U.S. military claims that the burial was in accordance with Muslim requirements, though no neutral party was present to affirm what they did.
In 1998, OBL had been secretly indicted for conspiracy to attack the American defense installation in Mogadishu, Somalia, during 1993. Now that indictment will be quashed.
What is the legal basis for a foreign military force to enter a civilian home? Was the raid an example of extrajudicial execution or the exercise of the right of reprisal?
Under customary international law, the right of reprisal gives every country a right to respond to another country’s unprovoked attack. The unprovoked attack on 9/11 violated the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970 and an American law with provisions implementing the treaty. Both Pakistan and the United States have ratified the treaty.
The treaty obligated Pakistan to take action to arrest OBL and any others responsible for 9/11. Pakistan did indeed capture some of those responsible and turned them over to the United States, which in turn imprisoned them at Guantánamo. But Pakistan did not take OBL into custody.
Action under the treaty and the law does not include a right of military reprisal for air piracy. That may be why the 9/11 attack was elevated by President George W. Bush into a “war on terror,” since what was interpreted as an unprovoked military attack was used to sanction military retaliation against Afghanistan. President Barack Obama continued to avoid the term “war” until May 1, 2011, when he defined his policy as a more limited “war on Al-Qaeda.”
Any reprisal under customary international law must be proportionate to the initial attack, so the war waged against the entire country of Afghanistan, including support for one side in what became a civil war, was initially illegal. More proportionate was a limited American aerial attack on Libya during 1988 in response to Colonel Muammar Khaddafi’s complicity in the bombing of a discotheque in Berlin during 1986, as evidenced by his refusal to surrender those responsible inside Libya’s embassy in East Germany for the attack.
The illegality of the American war in Afghanistan ended on December 20, 2001, when the UN Security Council approved of the presence of NATO forces to stabilize the new Afghan government. Ever since, the UN Security Council has approved the presence of foreign military forces to support the government in Afghanistan, though their actions are limited by international human rights guidelines.
International law from 1648 has recognized the right of rescue. That is, a country may intervene in another country to rescue its nationals from danger, such as Israel’s Entebbe Raid of 1976. The 1970 treaty against air piracy authorizes extradition of those complicit with the hijacking of aircraft, but the United States never requested OBL’s extradition from Pakistan. Washington neither requested arbitration nor went to the International Court of Justice to hold Pakistan accountable, actions that the United States could have taken in accordance with the provisions of the 1970 treaty.
The 1970 treaty authorizes capture and trial of those involved in carrying out and plotting air piracy. A raid against Osama Bin Laden’s residence, thus, might be seen as a proportionate form of reprisal for the 9/11 attack or as consistent with the terms of the 1970 treaty. But there is no legal precedent for an armed military unit of country #1 to enter country #2 to arrest those responsible for conspiracy to engage in air piracy in order to murder civilians in country #1. In 1989, American military captured President Manuel Noriega in the midst of an invasion of Panamá and flew him back to Miami for trial, but that was in the context of war, and he was charged with offenses other than air piracy.
Based on the principle of universal jurisdiction, the capture of Adolf Eichmann in Argentina involved a raid by Israel that might have been similar to the events of May 1, 2011, but only if Osama Bin Laden had been rounded up for trial. Instead, the leader of Al-Qaeda was shot and killed during the raid. However, may we conclude that Osama Bin Laden was the victim of extrajudicial execution, which is contrary to Articles 6 and 14(2) of the International Covenant on Civil and Political Rights? That’s why the details of the raid within the compound in Pakistan are important in vindicating the American unilateral action.
Current accounts of the half-hour incident, which took place after 2 a.m., are in conflict over exactly how OBL was killed. Evidently one of his wives rushed toward an armed American soldier, provoking him to shoot her, whereupon shots were fired, and she was hit in the leg. OBL, who after standing in his bedroom hallway to view the unexpected intruders, went back to his bedroom, an act interpreted as non-surrender, with the possibility that he was going for a weapon inside his bed chamber. He was gunned down as he retreated.
The other deaths were of one of OBL‘s brothers, a son, an unidentified woman, and a courier. How they died is uncertain. The courier, who lived in a guesthouse, reportedly opened fire, whereupon the Seals shot and killed him along with the unidentified woman.
Going to the main house, the Seals evidently shot their way up from the ground to the third floor. The brother, with hands behind his back as if he were about to reach for a weapon, was immediately targeted and killed on the first floor. The son, unarmed, charged them as they were ascending, whereupon he was shot dead. OBL, initially sleeping in his bedclothes, was never given the order to surrender or to strip naked, to prove that he did not have a bomb or other lethal device on his person. He was therefore killed on suspicion that he had access to a hidden weapon. Al-Qaeda can now claim that his death was an example of extrajudicial execution. Police would have handled the situation more professionally.
Pakistan investigators report that none in the residential compound opened fire, so they claim that some deaths were murder.
With martyred Osama Bin Laden out of the picture, Al-Qaeda may now justify terror attacks on the United States on new grounds. That American authorities are redoubling efforts to anticipate retaliation from Al-Qaeda suggests that they are aware of the possibility of reprisal, though of course Al-Qaeda may not claim that right under international law because it is not a sovereign state.
The death of Osama Bin Laden has resulted in much rejoicing within the United States and around the world. But the continuation of policies by the United States to which OBL objected, including war crimes on battlefields as well as at Guantánamo, ensures that militant opposition will continue.
To forestall retaliation by jihadists, withdrawal of American troops from Afghanistan and the closure of Guantánamo might now serve as condign signals to the world. President Barack Obama has claimed that war on the Taliban is necessary to prevent Al-Qaeda from returning to a safe haven in Afghanistan. Now, with Al-Qaeda’s leader dead, that justification rings hollow, even to Republican Senator Dick Lugar, who sees little strategic value in the war.
Is the world safer now that Osama Bin Laden is dead? Time alone will tell.
According to the Convention on Duties and Rights of States in the Event of Civil Strife of 1928, countries must be neutral in civil wars. However, Article 42 of the UN Charter empowers the Security Council to authorize “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”
Vietnam’s intervention in Cambodia in 1978, which drove the Khmer Rouge from power, was justified by Hanoi as “humanitarian intervention.” Legal scholar Gary Klintworth agreed in an official Australian government publication, but the UN and the United States did not.
In Nicaragua v United States (1986), the International Court of Justice ruled that humanitarian intervention in a civil war was justified “to protect life and health and to ensure the respect of persons.” In so doing, the court rejected the mining of a Nicaraguan harbor in 1984 by the United States as justifiable. In other words, that action was identified as a war crime, and the ruling implicitly accepted Vietnam’s claim.
In 1994, the world community failed to stop preventable genocide in Rwanda. Accordingly, legal scholars developed the concept of “responsibility to protect” so that there would be a clearer basis for intervention in internal conflicts within the corpus of international law. That concept was finally endorsed by the United Nations in 2009.
The concepts of international humanitarian intervention and “responsibility to protect” are not settled in international law, as one relies on the abovementioned court decision and the latter on UN General Assembly Resolution 63/308, not a treaty.
Security Council Resolutions 1970 (unanimously adopted) and 1973 (adopted by a majority without a veto) make no specific claim that Libya has failed to maintain international peace and security. Instead, the resolutions imply that the civil strife has been internationalized because (a) refugees are fleeing to neighboring countries, (b) civilian Libyans and civilians in Libya from outside countries have been placed in jeopardy by military actions of the Libyan government. The latter condition, in turn, enabled the Security Council to invoke the Rome Statute of the International Criminal Court as grounds for demanding the arrest and trial of Colonel Al-Qadhafi and others who have violated international humanitarian law.
Now that military operations have begun in accordance with limited goals set forth in Resolution 1973, questions have arisen whether the actions exceed the UNSC authorization. UNSC has the authority to monitor such excesses if indeed they constitute war crimes.
In other words, the action in Libya may serve as a precedent that the “responsibility to protect” empowers the UN Security Council to act in a manner similar to Resolution 1973 in future situations, such as when the Burmese government slaughters peaceful protests by monks if joined by foreigners.
Thus, a lot is at stake for the future of the international system in the situation within Libya today. Predictions about the outcome cannot be made with certainty.