War Crimes

The first person to face a US war crimes tribunal since WWII was formally sentenced at Gauntanamo Bay. David Hicks, and Australian captured in Afghanistan after fleeing al-Qa’ida frontlines in Kandahar, was originally sentenced to seven years, but his plea agreement allows him to only serve nine months. Hicks had originally faced a life sentence for war crimes committed against the United States. His sentence is to be served in Australia.

Hicks had originally been charged with attempted murder, providing material support to al-Qa’ida and supporting terrorist acts. All charges had been dismissed against Hicks except the material support. In the Hamdan case striking down the original Commissions at Guantanamo, the Supreme Court stated in its opinion that material support was not a violation of the laws of war.

Hicks’ plea agreement bars him from discussing his case with the media for one year. It also stipulates that any monetary compensation derived from his story be granted to the Australian government. He has also agreed to testify against al-Qa’ida and Taliban suspects. Hicks also retracted his initial allegations of torture at the hands of US officials, stating that he had “never been illegally treated by a person or persons while in the custody of the US government.” The plea agreement also bans Hicks from suing the US government and denies him any rights to appeal.

The Australian government, while pleased with Hicks sentence and pending return, has repeatedly stated that the tribunal system in place at Guantanamo fails to meet international standards, a sentiment echoed by various human rights groups monitoring the case. An amicus brief was filed in the Supreme Court on March 29^th by European and British Parliamentarians stating that the basic tenet of the Military Commissions Act (MCA) that established the existing tribunal at Guantanamo “fundamentally offend the rule of law and contravene treaties by which the United States is bound and upon which it is built.”

Quotes and information on the amicus briefs taken from SCOTUSblog’s reporting on Hamdan.

Reuters has coverage here.

Pertinent links and background have been extensively covered at this blog.

Photo credit: AP Photo. From Washington Posts’ coverage here.

David M. Hicks, the 31 year old Australian national being held at Gauntanamo Bay, will be returned to his home country within two months. Hicks plead guilty to charges of providing material support to al-Qa’ida on Monday. He is the first person to face the new tribunal system to try Gauntanamo detainees and his trial was seen as the first test of that process.

The Bush administration viewed the trial as a new start to the system in place in Guantanamo. The Supreme Court had ruled that the previous military commission there was unconstitutional. Hicks’ guilty plea, however, accelerated the trial and largely undermined a process seen as an opportunity to showcase the newly enacted Military Commissions Act (MCA). A complete trial would have brought to light some issues regarding coerced testimony, witness testimonial, and other litigious issues.

The MCA indoctrinated tribunal started with contentious issues almost immediately. Civilian defense lawyers were asked to sign on to the military rules prior to their completion. From this, tribunal judges dismissed Joshua Dratel, one of Hicks’ defense attorneys. Dratel was excused for refusal to sign onto regulations that had yet been finalized.

Hicks guilty plea must be formally accepted by tribunal judges. According to the regulations set forth by the US, Hicks must provide details under oath of his material support in order to explain his guilty plea. Hicks was handed a 7 year sentence, which he will serve in Australia. Australian officials are arguing to have his 5 year detainment in Guantanamo count as time served, however, it is not clear yet whether that will be accommodated. He has dropped his original accusations that he had been tortured by US officials while in custody.

UPDATE: In a major blow to the first test of the MCA, Hicks’ defense team negotiated his sentence to 9 months.  He had faced life imprisonment.  Washington Post has coverage here.
I’ve been covering this extensively; see side bar US cases.

NPR has reporting here.

Reuters has it here.

BBC has this.

Canadian courts have begun to hear testaments in their first trial for genocide and war crimes. The trials focus on the Rwandan genocides. The Canadian courts are calling on witnesses from five countries, as well as sending Justices to Rwanda to hear testimonials. A witness identified only as C-16 detailed accounts of rape and murder committed by Desire Munyaneza. C-16 gave testimonial describing incidents where Tutsi men were brutally bludgeoned to death after being paraded through the streets by Mr. Munyaneza. Mr. Munyaneza is the first person to face prosecution under the Canadian Crimes Against Humanity and War Crimes Act. He is accused of murder and rape and faces a life sentence if convicted. Canadian law does not utilize capital punishment.

The Canadian government has been an active participant in international regimes regarding crimes against humanity. Regarding its domestic system, Canadian policy holds that it “will not become a safe haven for persons who have committed war crimes, crimes against humanity or other reprehensible acts regardless of when or where they were committed.” Canada has actively supported the tribunals regarding the former Yugoslavia (ICTY), Rwanda (ICTR), and Sierra Leone (SLTRC). The chief prosecutor in the ICTY was Canada’s Madame Justice Louise Arbour and Phillipe Kirsch, Canada’s Ambassador to Sweden, served as the chair on a committee of the Rome Conference that enacted the International Criminal Court.

It is estimated that some 800,000 Rwandan’s, or about 80% the Tutsi ethnic group, were brutally massacred during 1994. The UN peacekeeping regime, headed by the Canadian General Romeo Dallaire, was not given the mandate to intervene with the process and was left largely bound to observe the atrocities. Canada has been linked to providing refuge to Nazi war criminals in the past and its enactment of the war crimes act in 2000 is largely seen as a response to those allegations. The Royal Canadian Mounted Police arrested Mr. Munyaneza following a five year investigation after the Crimes Against Humanity and War Crimes Act, which became law in October 2000. Witness C-16 is the second person to testify before the case against Mr. Munyaneza and the case is seen as a key test for war crimes law in Canada.

AP has coverage here

Allegations of violations of the laws of war by former Defense Secretary, Donald Rumsfeld, were dismissed in US District Court yesterday. Nine former prisoners of detention facilities in Iraq and Afghanistan represented by The American Civil Liberties Union and Human Rights First allege that Rumsfeld had personally approved torture techniques and violated the rights granted to prisoners under the Geneva Conventions and other aspects of international law. The judge in the case, Thomas F. Hogan, dismissed on grounds that government officials are normally immune from prosecution. Additionally, it was argued that only the US government may seek prosecution against war crimes, and only before a military commission. The case was brought before the court as a civil suit, and not a criminal case.

In the case of Filartiga v. Pena-Irala, the 2^nd Circuit Court ruled that “torture perpetrated by a person invested with official authority violates universally accepted human rights norms, regardless of the nationality of the parties. Whenever an alleged torturer is found and served with process by an alien within US territory, 28 U.S.C. § 1350 applies and provides federal jurisdiction”. The opinion by Justice Kaufman stated that “Although torture was once a routine concomitant of criminal interrogations in many nations, during the modern and hopefully more enlightened era it has been universally renounced. According to one survey, torture is prohibited, expressly or implicitly, by the constitutions of over fifty-five nations, (12) including both the United States”.

In a separate case, charges were brought against Rumsfeld, and others, in German courts. The plaintiffs in this case, filed in November 2006, include former prisoners of the Abu Ghraib facility in Iraq. According to a report by Time, the interrogation log of Mohammad al-Qahtani reveals that a “special interrogation plan” approved by Rumsfeld was used to produce intelligence information. Germany law provides “universal jurisdiction” - echoing Filartiga – granting the prosecution for war crimes wherever they may occur. Furthermore, the case contests, Rumsfeld’s resignation alleviates claims of diplomatic immunity.

Through the efforts of Senator John McCain, Congress passed the Detainee Treatment Act, (DTA) which excludes the use of inhumane treatment against those in US custody. However, the Graham-Levin amendment was seen to diminish the DTA, as the latter permits coerced testimonial. The legal definition of torture, however, remains contentious and beyond the scope granted here.

The Military Commissions Act, a response to Hamdan v. Rumsfeld, blocks the prosecution of those accused of abuses. In addition, the US has reversed its signing of the Rome Statute, which refuses US participation in the International Criminal Court. In a Texas case (Medellin v. Texas), the US has urged for the reversal of that courts ruling ensuring compliance with decisions emanating from the International Court of Justice at The Hague. The government’s position argues that the previous rulings undermine presidential authority to interpret treaty obligations. Citing Youngstown Sheet and Tube v. Sawyer, the government argued that presidential powers were at their pinnacle during times of war recognized by Congress. Solicitor General Paul Clement stated that “the Optional Protocol and the UN Charter are most sensibly read to entrust the President with the responsibility of deciding how to respond to an ICJ decision.” The defense countered, also from Youngstown, that presidential powers “are limited to executing, not creating law”, arguing plenary executive privilege.

Links to the Rome Statute et al are in the sidebar.

Quotes from General Clement are taken from SCOTUSblogs reporting.

The Pentagon’s detainee offices have released the transcripts of KSM’s (among others) trial before the CSRT. Inquiries have also been made regarding Hick’s trial yesterday.

David Hicks will be arraigned for war crimes before a US military tribunal enacted at Guantanamo Bay, Cuba at 1pm this afternoon. Hicks, 31, is charged with providing material support for al-Qa’ida during the US led conflict in Afghanistan to oust the Taliban regime and track down associates of bin Laden’s group. In a previous case tried before the Supreme Court (Hamdan v. Rumsfeld), it was declared that ‘material support’ is not in itself a war crime. The US, however, has amended provisions in order to include that charge as a violation.

Hicks, an Australian national, is the first Guantanamo detainee to face the newly formulated tribunal system. The previous tribunal was overturned by the Hamdan decision, causing Congress to amend and enact various legislations in response (see previous report on Hicks here). Hicks could face a life sentence, however, the chief prosecutor for the tribunals, Air Force Col. Moe Davis, has suggested they would recommend a 20 year sentence. There have also been discussions regarding a plea agreement in return for a reduced sentence.

There has been criticism expressed by various human rights groups regarding the validity and transparency of the war crimes tribunal established to try Guantanamo detainees. Reuters is quoting officials from Amnesty International as stating that; “These trials threaten to cut corners in pursuit of a few convictions and add to the injustice that the Guantanamo detention facility has come to symbolize.” Amnesty also criticizes the ex post facto nature of the new regulations, which “backdate the war” to allow prosecution for crimes committed before September 11^th, 2001.

In the US legal system, lawyers in the case of Al Odah v. US raise “substantial doubt” about the access to the appeal system available to detainees. Lawyers in Al Odah also express reservations regarding access to “a neutral decision-maker” in the tribunal hearings, a sentiment echoed by Amnesty International.

In other news, the Japanese Prime Minister, Shinzo Abe, has expressed “sympathy toward the comfort women and apologize for the situation”. Abe has faced mounting criticism for denying Japan had forced woman into brothels during World War II.

Mr. Abe stopped short of alleging Tokyo’s responsibility in officially sponsoring the brothels.

UPDATE: According to a report issued by Reuters, Hicks has made claims he was “sodomized, beaten, and subject to forced injections while in U.S. custody”. Hicks also stated that, while satisfied with his legal counsel, he would wish to have further representation to reach parity with the tribunal system. More as this case develops.

UPDATE: The AP is reporting that Hick’s plead guilty. The Defense Department has not released press materials at their site for commissions at Gitmo (see right).

The Washington Post has details on Hicks here.

SCOTUSblog has details on Al Odah et al here.

BBC world service has been commenting extensively on the Hicks trial this morning and has coverage here.

AP notes on Abe here.

Dr. Vali Nasr, one of leading experts on Islam and Muslim politics, presented a lecture for Grand Rapids Community College’s Diversity Lecture Series at Fountain Street Church. Dr. Nasr is the author of many books, including The Shia Revival, and is a Professor at the Naval Postgraduate School. He is also an adjunct Senior Fellow at the Council on Foreign Relations.  Gregory Johson is hosting my synopsis on his Middle East site.

The author with Dr. Nasr

The former Iraqi Vice President, Taha Yassin Ramadan, was executed by hanging in Baghdad overnight. The Iraqi Tribunal had originally handed down a life sentence for Ramadan, but an appeals court ruled the sentence “too lenient”.

Ramadan was the fourth member of the former Iraqi regime to be hanged for the Dujail massacre. The motorcade of the former President, Saddam Hussein, was attacked in an assassination attempt by members of the rival Dawa Party; a pro-Iranian Shiite party. Following the attacks, Saddam Hussein ordered a retaliatory response that resulted in the death of 148 men deemed complicit in the attack. In addition, thousands were arrested and tortured by the regime, and many others were sent to detention camps. Saddam Hussein, the former intelligence chief of Iraq, Barzan Hassan, and Awad Bandar, former head of Iraq’s Revolutionary Court, have also been executed as a result of the Tribunals findings regarding Dujail.

As mentioned in previous reporting on March 16^th, the Iraqi government is considering abolishing the death penalty. In purely speculative fashion, it is conceivable that some form of victor’s justice is in place solely for Saddam’s regime. The execution of Saddam was botched; video of his death was released (itself a war crime), some view his execution escalated the former dictator to martyrdom, and it occurred on the eve of the Islamic holy festival of Eid, which is forbidden according to Sharia Law.

The Tribunal is currently excused, as allegations regarding contempt are being contemplated against the US backed defense. It is scheduled to resume on March 26^th.

Bloomberg has reporting on the former VP here.

I’ve reported on this on March 16^th.

NPR has commentary here and reports on Dujail here.

This is a brief; topics will be detailed further throughout the week.

Walid Mohammad bin Attash confesses to USS Cole attack.

The CSRT system in Guantanamo Bay has been hearing the cases of fourteen high value detainees transferred there from CIA black sites. The transcripts of Khalid Sheik Mohammed have been outlined previously here. This weekend, the Pentagon released the transcripts of Walid Mohammad bin Attash, who has confessed to playing a large role in planning the USS Cole attacks, where suicide bombers killed 17 and wounded 37 US soldiers.

AP is reporting here. The BBC is developing the story here. A link to transcripts is pending.

SCOTUS blog is also reporting on the Supreme Court reviews of Gitmo cases here.

Japanese Prime Minister denies WWII sexual slavery allegations.

The Japanese Prime Minister, Shinzo Abe, has denied allegations of sexual slaves serving soldiers at brothels during World War II. Abe has been on a diplomatic junket attempting to repair regional accusations of Japanese imperialism, which were reinforced by Abe’s predecessors’ previous actions regarding. The diplomatic junket was in coordination with discussions regarding the 1937 massacre at Nanjing, where an Allied tribunal suggested a death toll of 137,000 at the hands of the Japanese.

Reuters has details here. Details of the Nanjing massacre are here.

Egyptians protest POW massacres.

Egyptians continue to express disdain over allegations of the massacre of Egyptian POW’s by Israeli forces during the 1967 War. Reporting here details the events. This weekend, Egyptian police broke up protests sparked by the documentary, Sprit of Shaked.

I’ve reported on this on March 8^th.

Iraq War Crimes Trials Postponed.

War crimes prosecutions have been postponed in Iraq. A defense attorney had been ejected by judges, who claimed he had been in contempt due to a recent interview. US officials, however, have argued that press communiqué are not grounds for contempt. The trials have been adjourned until March 26^th.

Forbes has details here.

Sudan halts ICC cooperation.

Sudanese officials have suspended their cooperation with the International Court. The Sudanese government in Khartoum has long denied the ICC holds jurisdiction over crimes committed there. Sudanese officials maintain the domestic court system is adequate to try offenses there, though many of the court decisions have been relatively minor charges.

I’ve reported on this here. The Media Line outlines this development here.

Former Iraqi Vice President, Taha Yassin Ramadan, has been sentenced to death by hanging by the appeals chamber of the Iraqi High Tribunal (IHT). The IHT had originally handed down a life sentence in regards to the Dujail massacres of 1982, which followed a failed assassination attempt against former Iraqi President, Saddam Hussein – himself executed by the Iraqi government in 2006. The appeals court had ruled that the original life sentence was too lenient, despite Ramadan’s pleas of innocents and many human rights groups calling for an examination of the IHT and the use of capital punishment. Human Rights Watch, for example, has expressed “serious concerns about the fairness of the Dujail trial.”

The IHT was established under the US orchestrated Coalition Provision Authority (CPA) and was continued once Iraq was granted full sovereignty. The CPA, under L. Paul Bremer, had originally abolished the death penalty in Iraq, though it was reinstated by the Iraqi interim government in 2004.

The IHT is an example of imposing ex post facto, as Iraqi law lacked explicit provisions for human rights violations under Saddam Hussein. The IHT relies heavily on international laws of war outlined in the Geneva Convention and incorporates some national Iraqi law in regards to general abuse of power and interfering with the judicial process.

This is a novel example of the Tribunal system attempting to seek justice for past atrocities. It is rather unconventional for an atrocities regime to be established while occupying forces are still holding sovereignty. Further, the IHT does not appear to incorporate jurists from the international community, bringing various issues of venue into question. And, the enforcement of penalties prior to full exploration of other atrocities occurring in Saddam’s Iraq leaves many questions of justice unresolved.

Iraq’s human rights minister is reported as stating intentions to abolish the death penalty there, though Iraqi law requires the carrying out of sentence within 30 days of their delivery.

The Law of the Supreme Iraqi Criminal Tribunal may be found here.

The Center for Defense Information has a detailed exploration into the IHT here.