War Crimes

An Ethiopian rebel group is urging the international community to intervene to avoid another “African genocide” at the hands of the central government there.  The Ogaden National Liberation Front (ONLF) said in a statement that the Ethiopian government was sanctioning war crimes in the Ogaden region of Ethiopia, near the border with Somalia.  A United Nations fact finding mission to examine the allegations was hampered by government refusal to allow investigators in certain areas.  The U.N. has not released its findings and aid organizations, such as the Red Cross and Medecins Sans Frontieres, also claim they are being denied to the areas where the atrocities allegedly occured.

The ONLF called on the U.N. to investigate “rape, torture, [and] gunshot wounds” at the hands of troops under Ethiopian Prime Minister’s Meles Zenawi’s central government.  The ONLF alleges that the government was punishing civilians after the government launched a prodigious military campaign against the rebels.  Earlier this year, 74 people were killed during a raid at a Chinese-run oil exploration field.  In a statement, the ONLF said that the government’s campaign “continues to be a campaign of state-sponsored terror that largely avoids engagements with ONLF forces and instead focuses on collectively punishing our civilian population.”

There has been no independent verification of the claims by either side.  Both central government officials and ONLF rebel leaders blame each other for the death of hundreds of civilians.  ONLF statements claim the government had manipulated the U.N. mission and prevented its access to certain areas of concern.  Ethiopian officials, however, dismiss those claims.  “They said it is good that the U.N. has sent the fact-finding missions.  And now when the facts from the ground are found to be not supported their claims, they are fighting the fact-finding mission,” an adviser to the prime minister said.

ONLF rebels are fighting for autonomy in the Ogaden region, which is ethnically Somali.  Ethiopia recognizes the group as a terrorist organization supported by its rival, and neighboring, Eritrea.

AP/Reuters

WASHINGTON (Reuters) - The Pentagon on Thursday released an audio recording of a hearing for al Qaeda suspect Khalid Sheikh Mohammed at Guantanamo Bay but cut some remarks made by the self-declared mastermind of the Sept. 11 attacks.

Audio is available here.

The Lord’s Resistance Army (LRA) has pleaded to be removed from the U.S. State Department’s list of terrorist groups.  The LRA argued its removal from the list will help in peace negotiations between it and the Ugandan government.  A peace treaty was signed between the two parties last year, though peace negotiations have repeatedly stalled.  LRA representatives, however, have been frustrated by an agreement between Uganda and the Democratic Republic of Congo, which called for Congolese officials to act against militias operating there, including the LRA.

The LRA was added to the U.S. State Department’s list of terrorist organizations shortly after the attacks on September 11, 2001 on New York City and Washington D.C.  The LRA, who have been embroiled in conflict in northern Uganda for more than two-decades, was formed from several remnant rebel groups remaining after a coup in 1986.  They have been accused of abducting thousands of children, forcing girls into sexual slavery and conscripting young boys into military service.  A recent report by the United Nations highlights some of the worst atrocities.  A young boy testifies that “We were made to drink the blood of the corpses”, while a young girl who was abducted at 11, proclaims; “I was made to kill other children if they tried to escape.  Then I was forced to have sex with a big man.”

The International Criminal Court has issued arrest warrants for several members of the LRA, however, Ugandan leaders say they will not turn them over if peace deals are negotiated.  Peace talks have brought relative calm to northern Uganda, resulting in the closure of several refugee camps there.  However, the fragile peace could disintegrate if negotiations fail between the LRA, Congolese, and Uganda regarding the presence of LRA rebels in the DRC.  LRA spokesmen, though cautioning that they would not hesitate to return to combat operations, remained optimistic about possible peace deals.  “We are talking because we have seen there it is also possible to obtain the same thing we were trying tot get through military means through negotiations,” LRA spokesmen, Godfrey Ayoo, said yesterday.

AP/Reuters

The chief prosecutor for Darfur at the International Criminal Court has urged the U.N. secretary-general to press Sudanese officials to comply with arrest warrants issued by the ICC. Luis Moreno-Ocampo, the ICC prosecutor, urged the U.N. chief, Ban Ki-moon, to make the case for Sudanese compliance with the tribunal in The Hague, Netherlands. The U.N. secretary-general was in the troubled African region in late August to oversee peace negotiations and see that a 26,000 strong African Union peacekeeping operation is deployed quickly.

Analysts estimate that 200,000 people have died and over 2.5 million were forcibly displaced in Darfur since ethnic Africans launched an uprising against the Arab-dominated central government in 2003. The non-Arab Sudanese accused the central government of backing the Janjaweed paramilitary group in response to the ethnic uprising. In 2005, the U.N. Security Council requested that the ICC handle investigations into violations of humanitarian law and other war crimes committed in Darfur. Arrest warrants were issued in February, and in July, the Security Council adopted a resolution authorizing a hybrid peacekeeping force to assist African Union forces already in place.

The arrest warrants were issued against the Sudanese humanitarian affairs minister, Ahmed Muhammed Harun, and Ali Kushayb, a Janjaweed commander. Both were allegedly involved in murder, rape, and torture of civilians in Darfur. Sudanese officials have refused to ratify the treaty that created the ICC tribunal, citing a lack of jurisdiction in the case. “Our position is very, very clear - the ICC cannot assume any jurisdiction to judge any Sudanese outside the country”, the Sudanese justice minister said.

The U.N. is largely handicapped for pushing the Sudanese to cooperate, however, it could impose sanctions against the government. Moreno-Ocampo is hoping to emphasize the issue at a conference on Darfur to be held this month in New York.

AP/Reuters

With memorials and various observations making headlines today, I will break with protocol and comment some of the legal ramifications of the war on terror. In response to the attacks against the Pentagon, the World Trade Center, and the failed attack that crashed in Pennsylvania, the Bush administration launched the “war on terror”; a military response targeting terrorist organizations - notably al-Qa’ida. On September 18, 2001, the U.S. enacted Senate Joint Resolution 23: Authorization for Use of Military Force (AUMF). This stated that;

“…the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

Additionally, Bush, on November 13^th, 2001, issued a military order entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”, in which he stated “The term ‘individual subject to this order’ shall mean any individual who is not a United States citizen with respect to whom I determine…” (emphasis added) was involved with a terrorist organization.

These statements have been used by the Bush administration as the justification to detain foreign nationals for suspected involvement with terrorists. In response to a succession of Supreme Court cases, however, the Bush administration was forced to reconfigure various legislation to conform with the U.S. Constitution, notably Article I, Section 8, which states it is within congressional authority to declare wars and “make rules concerning captures on land and water.” In response, Congress passed the Military Commissions Act of 2006, which defines the rules for prosecuting individuals accused of being terrorists, and classifies conspiracy - and other charges - are violations of the laws of war, according to U.S. law.

The use of terrorism is employed primarily to gain attention and to serve as a tool of propaganda. The attacks of militant groups are more propaganda than (more…)

A report by the New York based Human Rights Watch states that Israel conducted indiscriminate air raids against Lebanese civilians during the July War with the military wing of Hezbollah. The report alleges that Israel acted with “reckless indifference” regarding the fate of civilians and questioned Israel’s argument that Hezbollah was using civilians as human shields. The five month study said it could find no evidence that human shields were employed by the Shi’ite guerrilla movement, but also noted that Hezbollah “indiscriminately and at times deliberately” targeted Israeli civilians.

The 249 page report, entitled “Why They Died: Civilian Casualties in Lebanon during the 2006 War”, noted that Israel failed to make distinctions between military and civilian targets, often targeting Hezbollah’s social welfare and political interests. The report also notes that Israel did not distinguish between Hezbollah guerilla’s and civilians fleeing combat;

“Hezbollah fighters often didn’t carry their weapons in the open or regularly wear uniforms, which made them a hard target to identify. But that doesn’t justify the Israel Defense Force’s failure to distinguish between civilians and combatants, and if in doubt to treat a person as a civlian, as the laws of war require.”

Israel has countered that it was indeed acting within the standards of military conduct. Mark Regev, Israel’s Foreign Minister, stated Israel had acted accordingly, citing a CNN interview with a U.N. relief coordinator, Jan Egeland, who stated that Hezbollah guerrilla’s were “shielding themselves close to U.N. posts and close to the civilian population.” “Hezbollah had a clear pattern of behavior where it embedded itself among the Lebanese civilian population and exploited it as human shields,” Regev stated. Mr. Regev also noted that Israel had issued several warnings to citizens in southern Lebanon to evacuate the area, however, Human Rights Watch officials countered that “issuing warnings doesn’t make indiscriminate attacks lawful.”

On July 12, 2006, Hezbollah launched rocket attacks on Israeli targets, including Israeli border patrols. Hezbollah attacks killed three Israeli soldiers and captured two others. Israel responded with massive force against a wide range of targets in southern Lebanon, as well as bombing the runway of Beirut’s Rafik Hariri International Airport. Hezbollah responsed with Katyusha rocket attacks against civilian targets in Israel. After a U.N. brokered ceasefire, both sides were officially criticized for their actions during the conflict.

More than 1,000 Lebanese civilians were killed during the conflict, in addition to 119 Israeli soldiers and 40 Israeli civilians.

BBC/Reuters

Three Marine Corps personnel were officially disciplined for their role in the death of 24 Iraqi civilians during a raid in the town of Haditha in 2005.  Maj. Gen. Richard A. Huck, the former commanding general of the 2nd Marine Division, was given a letter of censure for the “actions he took and failed to take” in the Haditha raid.  Cols. Stephen W. Davis and Robert G. Sokoloski were also given letters of censure for failure to respond to the killings and unsatisfactory performance respectively.  In a statement, Gen. James T. Conway, commandant for the Marine Corps, said that “accountability and responsibility are the foundation fo all we do as Marines.”

Letters of censure impede future promotions and may result in a demotion in rank when considering future compensation and retirement benefits.  There is no appeal for letters of censure, though the officers can submit rebuttals to be entered into their official records.

Staff Sft. Frank Wuterich testified in military court yesterday in a preliminary hearing for his Article 32 tribunal - the military equivalent of a grand jury.  Wuterich testified that he was operating according to military rules of engagement when he lead the Marines of Kilo Company in a house-to-house raid in response to an IED attack on their convoy that killed Lance Corporal Miguel Terrazas.  The raid resulted in the deaths of Iraqi civilians, including woman and children.

Wuterich stated that he “advised the team something like shoot first and ask questions later or don’t hesitate to shoot.”  Captain Alfonso Capers, Wuterich’s reporting officer, stated that “shoot first, ask questions later means everyone’s expendable.  You can’t do that.”  Wuterich has admitted to killing five Iraqi’s he claims were fleeing from a white vehicle shortly after the IED attack.  Wutherich claims that the men “were not complying and, in fact, they were starting to run.”  Sgt. Sanick Dela Cruz, who was granted immunity in exchange for his testimony, stated that the Iraqi men were in custody and had their arms raised when Wuterich shot them.

Wuterich responded that “based on the information I had at the time, based on the situation, I made the best decision I could have at the time.”

Four Marines have been charged with murder for the events in Haditha, and four were charged with dereliction of duty.  Charges against three others were dropped.  Wuterich faces a life sentence if convicted on all charges.

NPR/AP/Reuters

The International Criminal Court is examining holding the trial for the only suspect held for atrocities in Congo in the African nation, rather then The Hague in Netherlands.  Thomas Lubanga, a Congolese warlord accused of conscripting child soldiers, was arrested in the capital city, Kinshasa, during a crackdown following the murder and mutilation of nine U.N. peacekeepers.  He allegedly forced children to undergo training for the armed wing of the Union of Congolese Patriots in order to kill members of rival tribes.

Deputy prosecutor for the ICC, Fatou Bensouda, said that “we are always in favor of bringing justice closer to the victims.”  By holding the trial in the Congo, it is believed that victims will have a wider and closer relationship to efforts at reconciliation.  According to Human Rights Watch, “the people would very much welcome that because for them the ICC is very far away,” adding that “they have the impression that the whole process is quite remote.”  Opponents note that conflicts have escalated in the region where the atrocities have occurred and may hamper the ICC’s efforts.  They also fear uprisings in response to Lubanga’s singular indictment, despite widespread atrocities by many groups.  While Lubanga is the only suspect in custody, arrest warrants have been issued for a Sudanese government minister complicit in the Darfur genocide, as well as the leader of the Lord’s Resistance Army, Joseph Kony.

In other African news,  more than half of the witnesses questioned in the war crimes tribunal for Desire Munyaneza - a rebel leader allegedly responsible for attacks on Tutsi minorities in the Rwandan genocide - positively identified him as leading or taking part in weaponized rape and murder.  Witnesses testified seeing Munyaneza leading a rebel group on a days-long campaign of rape and murder.  He was charged under the Canadian War Crimes Act, which allows prosecution of suspected war criminals for atrocities committed abroad.  Canada was previously criticized for providing safe-haven for many war criminals, including many for Nazi soldiers.   He was arrested in Toronto in 2005.

AP/AP

The appeals court to the Iraqi High Tribunal upheld the death sentence of Saddam Hussein’s cousin, Ali Hassan al-Majeed - widely known as “Chemical Ali” - for his role in an elimination campaign targeted against Iraqi Kurds in northern Iraq.  A appellate court judge, Munir Hadad, stated that “The government now has to carry out the execution against Ali Majid … any time within a 30-day period.”  The court also upheld the death sentences against Sultan Hashim, the former defense minister, and Hussien Rashid, the former deputy head of operations for the Iraqi military.

The death sentences stem from atrocities committed against the Kurdish population in a military campaign known as Operation ANFAL.   In June, 1988, Iraqi military - directed by al-Majid - killed up to 180,000 Kurdish civilians and guerillas as part of a crackdown against uprisings in Iraqi Kurdistan.  Al-Majid admitted to ordering troops to execute Kurds who would not participate with imposed displacements, however, he denied the use of chemical weapons during the campaign.  Prosecutors allege al-Majid had ordered the deployment of mustard gas and nerve agents during Operation ANFAL, earning him the nickname of “Chemical Ali.”  The defense, however, claims the Kurdish population were collaborating with Iran during the Iran-Iraq war and were therefore legitimate military targets.  Al-Majid was found guilty and sentenced to death in June.

Al-Majid was also standing trial for his role in the brutal suppression of a Shi’ite rebellion - which was allegedly backed by the United States - following the defeat of Iraq in the 1991 Gulf War.  It is estimated that tens of thousands were killed in the Shaaban Intifada and buried in mass graves.  Al-Majid is expected to be executed before this trial ends.

AP/Reuters

The U.S. Supreme Courts’ docket contains new reviews of the rights of detainees held by the United States in the “war on terror.”  The Supreme Court has been reviewing the basic tenets of law pertaining to the status of prisoners at the detention facility at the U.S. naval base in Guantanamo Bay, Cuba more or less since its current existence was established after the legislation was passed launching the “war on terror.”   In a military order issued on November 13, 2001, U.S. president George W. Bush deemed that detention criteria would be decided by the executive branch and ordered military tribunals to be established to examine the cases of detainees.

In its first series of reviews, the Supreme Court ruled that it is not within the power of the executive to issue military tribunals and declared the system in place at Guantanamo Bay was in violation of the constitution - and subsequently international law.  As a consequence, Congress passed the Military Commissions Act (MCA) in 2006, which both established a military commission to review detainee cases and stripped all U.S. civilian courts of jurisdiction over the Gauntanamo cases.  At least one of the new batch of cases - Boumediene v. Bush - challenges the validity of the MCA to strip “federal court jurisdiction over habeas corpus petitions filed by foreign citizens” at Guantanamo Bay.

The White House argues that the MCA provides appropriate remedies for habeas petitions by way of the combatant status review tribunals - an instrument by which detainees designation is reviewed.  Various legal teams for detainees argue, however, that the MCA did not meet constitutional provisions for what amounts to a suspension of habeas corpus.  According to Article 1, Section 9, of the U.S. constitution, Congress shall not suspend habeas except in “cases of rebellion or invasion”, which is arguably not the case in the United States.

Several groups have filed other briefs for the Courts review.  A brief filed by European parliamentarians asks whether the current legal circumstances would be deemed valid outside the constructs of the “war on terror.”  Another brief filed on behalf of countries of the British Commonwealth states that habeas has been in place at least since the 18th century in English law and that the appropriate venue for any status review should take place in the civilian courts.  To make assertions otherwise places the system heavily in the hands of the executive branch - which is runs counter to the notions of democracy.

The U.S. detention facility for foreign nationals suspected as “enemy combatants” was established at the naval facility at Guantanamo Bay, Cuba because the Bush administration  viewed the jurisdiction of the federal courts did not reach into non-U.S. territories.  The Supreme Court refuted that claim in 2004, stating the lease on the Cuban territory was the functional equivalent of U.S. territory, and customary U.S. law applies - including habeas.

NYT