War Crimes

German courts have rejected charges against former Secretary of Defense, Donald Rumsfeld.  The Center for Constitutional Rights (CCR), a New York based non-profit legal organization, has accused Rumsfeld, as well as Attorney General Alberto Gonzalez and former director of The Central Intelligence Agency George Tenet, of “torture and other war crimes committed in Iraq, Afghanistan, and Guantanamo.”  The complaint was filed in German courts on behalf of the CCR, more than 40 human rights groups, 12 former detainees of the Abu Ghraib facility in Iraq, and a Saudi citizen held at the US naval base in Guantanamo Bay, Cuba. 

In 2002, Germany enacted the Code of Crimes Against International Law (CCAIL) that enables prosecution of crimes against international law regardless of the location of the violation or the nationality of the perpetrator.  The CCAIL supplemented German accession to the International Criminal Court (ICC).  German jurisdiction over American citizens lies in the complimentary nature of the ICC.  This says that the States of origin of the perpetrators hold primary jurisdiction over alleged crimes committed by its citizens.  If States are unwilling or unable to prosecute crimes and a sufficient international tribunal can not be established, third party prosecution may proceed.

These developments follow the resignation of Rumsfeld as Secretary of Defense.  Under that role, Rumsfeld could claim diplomatic immunity, allowing him to freely represent the interests of the United States without interference or persuasion of foreign governments.  With the inaction of the Military Commissions Act (MCA), prosecutors argue that the US government may not prosecute Rumsfeld or others, effectively granting them full immunity.  The MCA also prevents ex post facto prosecution and creates a defense by narrowly defining liability under the War Crimes Act. 

Federal prosecutors in Germany rejected appeals by the CCR.  In their decision, German officials stated that the allegations did not occur in, by, or against Germany interests.  US officials have stated there were no such incidents of torture.  This is in contrast to the CCAIL. 

The Associated Press highlights documents by the Federal Bureau of Investigation that confirm “abusive and degrading treatment that including forcing [a plaintiff] to wear a bra, dance with another man, stand naked in front of woman and behave like a dog.”  Islam holds those as offensive and degrading acts.  Critics argue that only lower officials, such as former Army Brigadier General Janis Karpinski, have been prosecuted for torture.  Lawyers prosecuting the case against Rumsfeld have stated that Rumsfeld and others “should not feel they can travel outside the U.S. without risk.” 

The US is not party to the International Court and holds veto power over any amendments filed before the United Nations.

For in depth analysis of the legal aspects, refer to The American Society of Internatonal Law.

At 4:40 pm on April 26^th, 1937, the most advanced aircraft from Adolf Hitler’s “Condor Legion” approached the Basque town of Guernica. It was a Monday afternoon and the markets were packed with shoppers and peasants. The church bell suddenly rang out, signifying the approach of enemy aircraft. For the next three hours, Guernica was carpet-bombed with incendiary bombs, setting the town ablaze. Guernica had no air defense systems and the German and Italian aircraft were unabated. Those fleeing the attack were met with high-caliber gun fire by the low flying assault. According to reports filed by George Steer, a war correspondent for The Times of London, “The object of the bombardment was seemingly the demoralization of the civil population and the destruction of the cradle of the Basque race.” Steer continued, “The whole town of 7,000 inhabitants, plus 3,000 refugees, was slowly and systematically pounded to pieces.” The bridges and factories were not bombed and no strategic military objectives were targeted. It was one of the first aerial assaults against civilians in the history of warfare.

The attack was on behalf of General Fransisco Franco, who wanted to send a message to the Basque people during the Spanish Civil War. The Basque regions were central areas of opposition to Franco’s nationalist movement. The bombardment of Guernica was intended to terrorize the Basques. Estimates of the civilian death toll range from as few as 250, to over 1000, or nearly 15% of the population. Three quarters of the town was reduced to rubble. The world reacted with outrage at the random attack on a civilian population after the publication of George Steer’s account in The Times of London and New York. Three years after the bombing of Guernica, the German air force destroyed most of London with nearly a month of bombardment in 1940. Five years later, the city of Dresden was subjected to fire bombing, killing 25,000 civilians. And in August 1945, two atomic bombs were dropped on Japan, killing over 200,000 Japanese civilians.

Following the atrocities committed on all sides during World War II, the international community ratified four treaties conventionally known as The Geneva Conventions. These Conventions outline the treatment of prisoners of war and decries attacks on civilian targets. To date, 194 countries have ratified the treaty. Given the sterile moniker of ‘collateral damage’, civilian deaths during warfare are inevitable. Yet, with the genocide in Darfur, Mogadishu, Rwanda, Srebrenica, the killing fields in Cambodia, the regime of General Pinochet, Halabja in Iraq, and even the “shock and awe” campaign in Iraq, 70 years after the bombardment of Guernica, the conduct of man remains unchanged.

Prosecutors at The Hague Appeals Court today presented official documents by Sadam Hussein’s regime praising the Dutch businessman, Frans van Anraat, for supplying “rare, banned chemical substances” to Iraq “at a reasonable price”, and for “expos[ing] himself to extremely dangerous consequences.”  Van Anraat’s case is before the appeals court on genocide charges.  He was found guilty in 2005 for war crimes for supplying the dual-use materials converted to chemical weapons used by Iraq during the 1980-1989 war with Iran.  Van Anraat admitted to supplying Iraq with dual-use chemicals but stated at the time he did not know they were destined for conversion to poison gas.  Van Anraat is alleged to have used transit routes from the US to Belgium and Japan to Italy to traffic the sensitive material.  There are several reports that Iraq used mustard gas and nerve agents against Iran during the war.  Chemical weapons were also used in attacks on Iraqi civilians, notably in the city of Halabja, a Kurdish area where as many as 4,000 civilians were killed.

US authorities began investigating van Anraat in 1989 after trailing his Japanese counterpart, Hishiro “Charlie” Tanaka.  Van Anraat was requested on extradition charges from Italy and he fled to Iraq.  He then requested Iraqi nationality directly to Saddam Hussein and was granted concessions, including a monthly stipend.  He married and established himself in Baghdad by 1991.  He began to suspect his wife, Hanan Muhamed Mahmood, a Jordanian of Palestinian descent, was an agent for the US Central Intelligence Agency.  It was the CIA that discovered his chemical sales to Iraq.

For more information on chemical weapons sales to Iraq, review sources here and here.

The US investigation of van Anraat is derived from this. 

Omar Ahmed Khadr, a 20 year old Canadian, was formally charged with war crimes by the US at the detention facility in Guantanamo Bay, Cuba.  Khadr faces a murder charge for the death of Sgt. 1^st Class, Christopher Speer, with a hand grenade in 2002.  Khadr also faces charges of attempted murder, conspiring with al Qa’ida, providing material support for the group, and spying on US forces.  Khadr faced similar charges in the former tribunal system, but the Supreme Court ruled that tribunal was unconstitutional.  He is the 2^nd detainee to face formal charges, after the Australian David Hicks was given a nine-month sentence after pleading guilty to providing material support to terrorism.  

Khadr’s family has had close ties to Usamma bin Laden.  Omar Khadr’s father, Ahmed Said Khadr, was a known al Qa’ida financier who was killed in Pakistan in 2003.  Omar Khadr was born in Toronto, but lived in Pakistan for some time.  His family returned to Canada after the death of the senior Khadr.  Other family members face US extradition charges for their affiliation with al Qa’ida.  Though Canadian officials have acknowledged Khadr “faces serious charges”, Canada has been seen in the past as a point of exile for war criminals.   Khadr’s charges carry a penalty of death, though his charge sheet classifies the case as “non-capital”, presumably due to Khadr’s age of 15 when he was captured.

The family of the US soldier, Speer, has filed a civil suit against Khadr and his father and was awarded $103 million.  In the past, notably the case of Filartiga v. Pena, US courts have ruled that they hold jurisdiction in such cases.  The human rights group, Amnesty International, has classified the current tribunal system as “shabby show trials” and has been advocating trying detainees in US civilian courts.  The unconventional nature of the “war on terrorism” has been a test for US and international law.  US law holds that as long as courts are open and functioning, they should hold venue.  However, with the US at war, the argument may be made for prosecution by military tribunal.  Yet, the war is not against any particular state; only an international criminal element.  In the past, the US has prosecuted terrorism according to the Racketeer Influenced and Corrupt Organizations Act (RICO), as it did in the first World Trade Center bombing in 1993.  In the current conflict, the US has only tried one major terrorism case in civilian courts; the trial of Zacarias Moussaoui.  The Moussaoui case was a cumbersome case for the US.  Its preference in dealing with the current terrorist issues has been to conduct proceedings where the US government has complete control over the court, as it does under the new congressionally mandated tribunal.

Reuters; AP

Memorials will be held today in California, Massachusetts, and Michigan marking the anniversary of the Armenian genocides that began in the Turkish Ottoman empire on this day in 1915. During World War I, hundreds of thousands, to millions of the Armenian community were forced on a death-march to Syria and Iraq. The Armenian diaspora in the United States has been urging the US government to formally recognize the deaths of more than a million Armenians as genocide. However, because of close ties between the US and Turkey, officials have been reluctant to comply. Currently, Russia, France, and Canada are among countries describing the events as genocide, while Israel, Britain, and the United States have voiced doubt.

Members of the Armenian elite were rounded up and executed on April 24^th, 1915 at the behest of the Ottoman government. This led to a watershed of persecution against Armenians, as the government forced the deportation of most of their population. A special unit known as the Teskilat-i Mahsusa, or Special Organization, had the mission to exterminate the Armenians. According to Vahakn Dadrian, a preeminent scholar on the Armenian genocide, The Special Organization’s mission “was to deploy in remote areas of Turkey’s interior and to ambush and destroy convoys of Armenian deportees … [The Special Organization’s] principal duty was the execution of the Armenian genocide.” It is estimated that millions of Armenians died of starvation and disease during their forced deportation.

Other evidence from the Memoirs of Naim Bey, an Armenian compendium of testimonies from survivors of the deportation, gives a more in depth account of the atrocities. According to the accounts outlined in a September 16^th, 1915 telegram, the Committee on Union and Progress, the party of the Young Turks, made it policy to “destroy completely all the Armenians living in Turkey.” It also makes statements that indicate explicit orders were given by Mehment Talat Pasha, a prominent Young Turk leader, to kill all Turkish Armenians. The media in the US at the time, notably The New York Times, published several accounts of the atrocities and US President Theodore Roosevelt called the massacre “the greatest crime of war.”

After the defeat of the Ottoman Empire, the new Turkish government held court-martials proceedings for the Young Turk regime and leaders of the Committee on Union and Progress. The charges included genocide. At least six domestic tribunals were assembled in cities were the atrocities occurred, with the main trial beginning in Istanbul a year after the deportations. Written testimonies from the tribunals described official orders to murder and exterminate the Armenian population. One tribunal resulted in the hanging of a former governor, though others received harsh prison terms.

The tribunals and the use of ‘genocide’, however, have been widely debated. Due process and normal rights to counsel were not honored for the accused. In addition, the rights of cross examination were withheld, as well as the ability to call witnesses. The presiding judge also served a prosecutor, questioning the accused and determining admissible evidence. In addition, all of the official documentation of the proceedings is “missing”, relegating details to secondhand accounts.

Turkey has criticized countries that officially acknowledge the deaths of Armenians as deliberate and the penal code there makes it illegal to recognize the Armenian genocide. Though officially not part of negotiations, many European members, including the French President Jacques Chirac, have linked acknowledgement of the Armenian genocide to Turkey’s admission to the European Union. Turkey is in the midst of presidential elections and the issue remains contentious today.

This report is derived from “Revisiting the Armenian Genocide” by Guenter Lewy in the Middle East Quarterly.

Recent clashes between insurgents from the Union of Islamic Courts (UIC) and Ethiopian troops backing Somali government forces have resulted in at least 291 civilian casualties in the Somali city of Mogadishu. Spokesmen from the Elman Human Rights Organization, a Somali based group, have said many of the victims were caught in crossfire. Six insurgents were reported killed as well, though reports from early April put the total civilian death toll at over 600, as residents have been urged to abandon the capital city.

Figures from the United Nations state more than 320,000 people, nearly a third of Mogadishu, have fled since February. The UN has been warning a humanitarian disaster is imminent. Many residents have been dying from cholera and diarrhea, and food and water is increasingly scarce. The United Nations Children’s Fund (UNICEF) has urged warring parties to respect the laws of war and accuse combatants of blocking humanitarian aid to troubled regions.

The UIC were ousted in December after six months in power. The hardliners in the group swore they would start an insurgent war against the Ethiopian supported Somali transitional government. The insurgent forces of the group are also loyal to Hawiye clan, the largest clan in the region. The Hawiye clan declared war against the Ethiopian armies in early April.

Somalia has been under control of various warlords and has not had a legitimate government in 16 years. The UIC emerged from this chaos, as local businessmen wanted to have some method to ensure respect for contracts. During their control, the UIC stated they wanted to restore stability and order in Somalia, though their methods include strict observance of Islamic law and the banning of outside influence, football, and monitors radio and news programming. Though similar to the Taliban in Afghanistan, many locals welcomed the order the UIC brought.

The UN recognizes the Somalia transitional government that was setup in 2004. The region has been battling over border disputes for many years. Ethiopia’s rivals in Eritrea are accused of supplying the UIC forces with weapons and the battle in Mogadishu is symbolic of the larger conflict. African Union troops are trying to mediate the conflict, though their troops fall short of their stated goals. In January, US Special Forces were deployed to the region to hunt al Qa’ida operatives and provide training to Ethiopian and Somali forces.

Wire services are reporting heavy shelling in the Somali capital today, marking the 6^th day of conflict.

Photo credit: Reuters

Washington Post Staff Writer
Saturday, April 21, 2007; Page A01

The Marine Corps chain of command in Iraq ignored “obvious” signs of “serious misconduct” in the 2005 slayings of two dozen civilians in Haditha, and commanders fostered a climate that devalued the life of innocent Iraqis to the point that their deaths were considered an insignificant part of the war, according to an Army general’s investigation.

Maj. Gen. Eldon A. Bargewell’s 104-page report on Haditha is scathing in its criticism of the Marines’ actions, from the enlisted men who were involved in the shootings on Nov. 19, 2005, to the two-star general who commanded the 2nd Marine Division in Iraq at the time. Bargewell’s previously undisclosed report, obtained by The Washington Post, found that officers may have willfully ignored reports of the civilian deaths to protect themselves and their units from blame. Though Bargewell found no specific coverup, he concluded that there also was no interest at any level in investigating allegations of a massacre …

BBC: At least 113 civilians have been killed and more than 200 injured in three days of fighting in the Somali capital, Mogadishu, a human rights group says. The Elman Peace and Human Rights agency said it got the figures from hospitals, other humanitarian groups and counting bodies abandoned in the streets.

Heavy fighting is continuing, as Ethiopian troops clash with Somali clan militiamen and Islamist fighters.

The UN says more than 320,000 people have fled the fighting since February.

The new figure represents nearly a third of the population of the capital and is significantly higher than previous estimates.

I’ll follow up on this one.

In Chile today, locals celebrate the feast of Saint Expeditus. Legend says that benevolence was granted to local pilgrims by officials after praying to the Saint. The recent history of the region, however, is not so seraphic. Chili’s former dictator, Augusto Pinochet, faces continued investigations into atrocities committed at his hands, four months after his death. A Chilean investigation has uncovered evidence that Pinochet ordered agents to kill ex-President Eduardo Frei Montalva with mustard gas in 1982. The investigation uncovered traces of poison in the exhumed remains if Montalva. Additionally, it was alleged that after Montalva’s death, doctors locked the room, removed his organs, and drained his bodily fluids.

Pinochet came to power following a CIA backed coup d’etat to remove the democratically elected Marxist regime in 1973. Following the coup, the regime took part in Operation Condor; a campaign meant to deter opposition forces and communist influence. It is estimated that some 3,000 people were killed or ‘disappeared’ as a result of Operation Condor in Chili alone.

Amnesty laws in the region made prosecution difficult, even after Chili returned to democracy in 1990. In response to extradition requests by Spain, General Pinochet was arrested in London in 1998. The House of Lords ruled in his arrest that Pinochet lacked immunity under international law; a motion which encouraged Chilean courts to seek justice. In 1999, Chilean courts overcame many of the hurdles by stating that ‘disappearances’ would be considered a crime until death was proven concretely. It was also determined that all applicable Geneva Conventions were in place in Chile due to its technical status of internal conflict following Pinochet’s coup. Since then, some 150 people have been convicted of human rights violations and nearly 400 military officials face prosecution.

The willingness and the ability to face past atrocities is a sign post in the maturation of nations. Some argue that these actions only highlight the dark stains in a nation’s history, while others make cries for justice. With no contribution to laws regarding human rights and benchmarks of normative behavior, the examination of the past make recovery for future generations possible.

In other news; In statements made at The Holocaust Memorial Museum in Washington DC, President Bush stated that “genocide is the only word for what is happening in Darfur.” This marks an important move in the resolution of the situation there.

The Economist has detailed coverage here.

Bloomberg has details of Frei Montalva here.

Branimir Glavas, an independent parlaimentarian in eastern Croatia, marched to prison in his general’s uniform to face war crimes charges at a local court in Osijek, Croatia. He is being detained for ordering the killing of civilians during the 1991 Serbo-Croatia war. The charges allege that Glavas formed a paramilitary unit and operated as a warlord, ordering his units to capture, torture, and kill Serb civilians. It is suspected that Glavas is responsible for 10 bodies found bound, gagged, and dumped in a local river. He is also the subject of a separate investigation in the Croatian capital of Zagreb for other atrocities committed in Osijek.

Glavas is the first senior state official to face war crimes charges stemming from the struggle for Croatian independence from Yugoslavia from 1991 to 1995. This may be indicative of Croatian willingness to face its past behaviors. The mandates of international forums, such as the International Criminal Court, state that these may amend domestic systems if they are lacking the will or the foundations to do so independently. In this case, Croatia is negotiating membership to the European Union and is set to become a NATO member in 2009. Its willingness to prosecute war crimes locally is seen as a part of its membership drive to both systems.

In other news; The UN Secretary General, Ban Ki-Moon has highlighted the need to re-examine the issue of hostages and establish a general consensus on international rules to deal with hostage crises. With hostage ordeals seeing increased propaganda usage, such as the BBC correspondent Alan Johnston, The Secretary General stated that “To address the issue of kidnappings, common rules are needed, and the U.N. is the right place to put them forward.”

A UN report states that the government of Sudan is in material breach of its international sanctions. According to the report, the Sudanese government is smuggling weapons into Darfur by disguising official planes as UN vehicles and is using government planes to conduct bombing raids. The United States invaded Iraq in part due to its material breach of its international agreements. While the UN is scheduled to begin deploying a large contingent to the region, the political will of the international community faces a dire and significant test in Sudan.

International Herald Tribune has the Croatian story here.

Reuters is highlighting the UN hostage rule.

The New York Times leaked the UN findings on Sudan. Photo Credit: UN Panel of Experts on Sudan.