War Crimes

The Iraqi Presidential Council said Friday they removed the blockade on the execution of Ali Hassan al-Majid, better known as “Chemical Ali.”  It was delayed in June 2007 over obstacles in the legal procedure for handing down death sentences.  The council is made up of Iraqi President Jalal Talabani, a Kurd, and his two vice presidents. Majid was found guilty of war crimes, genocide and crimes against humanity for the Anfal campaign targeting ethnic Kurds.  Though Iraq has not asked the United States to assume custody of Majid, which would mean his execution was imminent, it is expected that the sentence will be carried out within 30 days.

In June, 1988, the Iraqi military - directed by Majid - killed up to 180,000 Kurdish civilians and guerillas as part of a crackdown against uprisings in Iraqi Kurdistan.  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.  Majid also faced death for his role in the suppression of a Shi’ite rebellion - which was allegedly backed by the United States - following the defeat of Iraq in the 1991 Gulf War.

An adviser to Iraqi Prime Minister Nouri al-Maliki said the execution will be carried out in “a matter of days.”

I’ve been critical of this tribunal in the past.  The Iraqi High Tribunal examining the case came into power while Iraq existed under the mandate of the Coalition Provisional Authority, the transitional government of Iraq ran by the United States as the occupying power. Some critics, including this author, say the Iraqi tribunal should proceed in coordination with the international courts, which it does not.  The Iraqi code of law did not recognize crimes against humanity and other war crimes until the CPA allowed it to do so.  On that front, the Fourth Geneva Convention curtails the legal limits an occupying power must exercise when defining the laws in its subject country.  The CPA defining, or at the very least participating in, the definitions of war crimes and subsequent penalties smacks of victor’s justice.

Another issue here is the ability to proceed in a war crimes tribunal in a fair matter so soon after the overthrow of the previous regime.  As mentioned, a member of the Council determining his fate is himself a Kurd, making impartiality dubious indeed.  Others view the imposition of the death penalty as a violation of international law because the tribunal does not use a jury system, instead proceeding with a review panel of judges.

Various members of U.N. judicial councils also view the trials as unfair, and thereby the death penalty here, unjust.

See “Iraq” category for more on this, or search for “Anfal.”

Officials overseeing the tribunal examining the atrocities committed by Cambodia’s notorious Khmer Rouge regime led its seminal prison leader, Kaing Guek Eav, known simply as “Duch,” through the prison system he once ran.  Tribunal officials lead Duch through a “re-enactment” of the systematic torture conducted at the converted high-school called the S-21 prison.  Duch, a 65-year-old former math teacher, led the S-21 detention facility where more than 14,000 people were tortured under his strict authority.  Only 14 people survived their detention there.

“Under his authority, countless abuses were committed, including mass murder, arbitrary detention and torture,” the presiding judge said at the opening of his tribunal in November. A former guard at the facility said Duch never directly participated in an execution, but was known to visit the Choeung Ek killing field to observe the executions.

Three survivors of the prison accompanied Duch on the tour of the facility, which now serves as a genocide museum.  Witnesses to the atrocities and the survivors told Duch of their recollection of the events as they toured the facility.  A spokesman for the tribunal, Reach Sambath, said Duch wept openly as he explained what happened under his tenure at the prison. Witnesses to the “re-enactment” said Duch broke down near a tree on the prison grounds where executioners killed child captives by repeatedly bashing their heads against the trunk. 

I’ve written here before that the mixed tribunal system employed in the Khmer Rouge tribunal is admirable.  It was on the verge of collapse last fall because participants sympathetic to the Khmer Rouge regime sought to impose certain restrictions on the proceedings that would have significantly hampered the case, but it seems to be moving along as several high-ranking members of the Khmer Rouge now face prosecution. In January, the tribunal held a sort of town hall meeting introducing the proceedings of the tribunal to locals in a village ravaged by the Khmer Rouge. The audience watched a 25-minute film explaining how the tribunal process works and received a general panel discussion as well. 

But parading a 65-year-old man through a genocide museum 30 years after the atrocities?  This almost smacks of victor’s justice.  It’s certainly within the realm of remote possibility that the images running through Duch’s mind are enough torment, but then again, the Khmer Rouge are responsible for millions of deaths during their torturous rule.  It’s said the Duch converted to Christianity in the early 1990’s and considers himself a peaceful man, and it seems the tribunal is proceeding with the interest of the Cambodians in mind, but this tactic is questionable.  It’s easy to cry “bastard!” and shove their noses in it, so to speak but does reconciliation, which it seems this sort of prosecution aims for, include revisiting or reliving the atrocity?  In Iraq, the horrors of the al-Anfal campaign come up again and again, regarding Srebrenica, the graphic video of several young men being led to their execution serves as a reminder of the horrors of mankind, but a “re-enactment” tour of a genocide museum seems to be inflicting emotional trauma on the accused which hardly seems an act of pragmatic justice.

AP 

Reuters

Tuesday, February 26, 2008

GUATEMALA CITY: Guatemala’s new President Alvaro Colom said on Monday he will open army files for the first time to make public details of massacres and torture by soldiers during the country’s 36-year civil war.

“We are going to make all of the army’s archives public so we can know the truth, to start building on a foundation of truth and justice,” said Colom, who beat a right-wing former general to take office in January.

Almost a quarter of a million people were killed or disappeared during the 1960-1996 conflict between leftist guerrillas and the government. Over 80 percent of the murders were committed by the army, according to a United Nations-backed truth commission.

The commission, which compiled thousands of interviews with victims after the 1996 peace accords, named no officials, in part because the army files were not open to the public.

Colom’s uncle, Manuel Colom Argueta, a leftist politician with presidential ambitions, was killed by the army in 1979 in a well-coordinated ambush.

Rights groups say the new army files will help solve war crimes when matched with information in the police archive discovered in June 2005, as police collaborated with the army.

Colom said all the information from the military will be turned over to the human rights ombudsman, also in charge of cleaning and categorizing the thousands of police documents left molding in an old warehouse behind a dump for rusted cars.

The massive paper trail gives hope to family members who are looking for answers about their long-disappeared relatives.

Eighty-year-old Emilia Garcia hopes the army files will contain clues about her son Fernando Garcia, a union leader shot by police in 1984, taken to a military hospital and never heard from again.

“We have been waiting 24 years for the state to give us some answers. All I want is to find my son’s remains, he is not a lost dog,” she said.

The federal prosecution against a former U.S. navy sailor for terrorism charged opened Monday in Connecticut.  Hassan Abu-Jihaad stands accused of providing material support to terrorists with the intent to harm or kill U.S. citizens.  The U.S. government alleges that Abu-Jihaad obtained classified evidence regarding Navy fleet movements in the Straits of Hormuz and sent that information to a suspected terrorist living in London.

Abu-Jihaad pleaded not guilty to the charges, which are considered war crimes in military legal code.  He could face 25 years in prison if convicted on all charges.  The U.S. government also alleges he distributed classified information deemed relevant to national security.

Abu-Jihaad, formerly known as Paul Hall, was awarded an honorable discharge from the Navy in 2002.  He is charged in the same case as a British computer expert, Babar Ahmad, who used Web sites to generate funds, provide military equipment such as night-vision goggles and recruit individuals to support terrorist-related causes and activities.

The case is one of the first such investigations to look into internet-based terrorist activity following the Sept. 11 attacks on the United States. The prosecution says this case illustrates how the Internet can be used as a propaganda tool to radicalize Muslim converts and other susceptible targets.

Abu-Jihaad sent e-mails to Ahmad in 2000 and 2001 while the former was on active duty.  He praised in the e-mails the bombing of the USS Cole in 2000 and lauded the workings of al-Qaida leader Osama bin Laden.  He also bought terrorist videos.  Prosecutors say the videos, e-mails and information allegedly outlining U.S fleet activity suggests he was conspiring to commit terrorist acts against U.S. interests.

AP

The former chief military prosecutor for the war crimes tribunal at the U.S. naval detention facility in Guantanamo Bay, Cuba said he would testify on behalf of the personal driver for Osama bin Laden, Salim Ahmed Hamdan. Air Force Col. Morris Davis told The Associated Press Thursday he would appear at the Hamdan trial. “I expect to be called as a witness … I’m more than happy to testify,” Davis said, calling it “an opportunity to tell the truth.”

Hamdan’s military counsel, Lt. Brian Mizer, told the AP they will argue that political interference referenced in reporting by The Nation this week violated the Military Commissions Act.  The Nation reported that the general counsel for the Department of Defense, William Haynes, said in August 2005 that anything less than a successful prosecution of the argument presented by the U.S. government in the war crimes tribunal would cast the entire legal process in a bad light.

Davis further alleges in The Nation that the entire legal process is politically biased to legitimize the process by appointees of the Bush administration.  Davis wrote in a Dec. 10, 2007, piece for the Los Angeles times that he “concluded that full, fair and open trials were not possible under the current system.”  In an interview with The Nation, Davis said that the process “had become deeply politicized” to the point that he resigned from his position in protest.

Davis backed up his allegations in The Nation citing the August 2005 conversation he had with Haynes, who coincidently now sits in an oversight position for the tribunal process at the Pentagon. Davis claims he pointed out to Haynes that some of the Nuremberg cases resulted in an acquittal, “At which point, (Haynes’s) eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions,’” Davis said.

The Bush Administration nominated Haynes for a lifetime seat on the Court of Appeals for the Fourth Circuit.  The Fourth Circuit previously gave the Bush administration near carte blanche authority in its handling of Sept. 11 conspirator Zacarius Moussaoui, Yaser Esam Hamdi, and “dirty bomb” suspect Jose Padilla.  Republican Sen. Lindsey Graham, S.C., blocked his appointment, however, because Haynes supervised the writing of Defense Department briefings advocating “extraordinary” interrogation tactics.  Now, Haynes sits as the general counsel for the Defense Department and oversees the military tribunal established at Guantanamo Bay.

Military authorities captured Salim Hamdan in Afghanistan in November 2001 with two anti-aircraft missiles in the trunk of his car. The U.S. government claims he worked as a key al-Qaida operative providing support to bin Laden. He faces a life term for conspiracy to commit and providing material support for terrorist activities against the United States.  His trial is expected to proceed in April.

VIENNA, Austria (AP) — A woman who was being investigated in Austria for allegedly beating an inmate to death while serving as a Nazi concentration camp guard has died, authorities said Thursday. She was 85.

Erna Wallisch died in a hospital Saturday of unspecified causes, the Austrian Interior Ministry said.

Because of her death, Austrian authorities closed the murder investigation, the state prosecutor’s office said.

The case was launched last month after Polish authorities provided new evidence implicating her in the beating death of an inmate at Poland’s Majdanek death camp.

She had evaded prosecution on murder charges in the 1960s for lack of evidence, and efforts in the 1970s to charge her with battery and assault at Majdanek failed due to rules on the statute of limitations that apply to those crimes. There is no statute of limitations for murder in Austria.

Wallisch had steadfastly proclaimed her innocence.

The Nazi-hunting Simon Wiesenthal Center in Jerusalem criticized the Austrian government for inaction, and said Wallisch’s death “should serve as a reminder to all the governments which are dealing with the cases of Nazi war criminals that they had best expedite these prosecutions while justice can still be achieved.”

The group had tracked Wallisch down several years ago after receiving an anonymous letter suggesting she was alive in the Austrian capital, Vienna, it said.

It said she guarded and brought prisoners to gas chambers at Majdanek. She also served at Ravensbrueck, a concentration camp in northern Germany.

From UPI.

Uganda and LRA close to cease-fire deal

Published: Feb. 19, 2008 at 1:40 PM

KAMPALA, Uganda, Feb. 19 (UPI) — Ugandan officials agreed to let domestic courts try alleged war criminals as part of negotiations for a final peace agreement with rebels, a report says.

The Ugandan national newspaper, New Vision, said Monday Ugandan officials said a final cease-fire agreement could be signed between the Ugandan government and the LRA by the end of February. A Ugandan official is quoted in the BBC Tuesday saying a final deal will be signed “soon.”

The LRA so far refused to lay down their weapons because the International Criminal Court has warrants out for three of its top leaders. The ICC charged LRA chief Joseph Kony in 2005 with ordering attacks against civilians.

Ugandan negotiators said they will use a division of the Ugandan High Court to deal with grave matters instead of the ICC. The lower traditional systems of justice will handle lesser crimes, the BBC said.

Negotiation teams consider the dismantling of the LRA part of the final cease-fire, though New Vision said many LRA rebels left their strongholds in neighboring Democratic Republic of Congo for the Central African Republic.

Uganda has asked for a monitoring team to find rebel strongholds, calling the movement to CAR a violation of cease-fire agreements.

“Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution”

Uh … yeah?

Supreme Court Justice Antonin Scalia entered the torture debate Tuesday in an interview with the BBC making some pretty astonishing statements.  Scalia jumped in after the U.S. government announced Monday it was seeking the death penalty in six cases in Guantanamo Bay, including the self-proclaimed architect of the Sept. 11 attacks.

To avoid repeating the words of academics and pundits, it should be simply noted that it should not rest in the hands of the Supreme Court to determine a threat level.  Scalia makes the doomsday argument that the extremity of the threat should be equated with the extremity of the interrogation, and in a doomsday scenario, “extraordinary” tactics may be permissible.

The “ripening” of international law is reflected in the laws of nations.  International law as agreed upon by civilized nations makes it way into the codified doctrines of international law.  Despite the debate over torture, the U.S. military banned the use of waterboarding, which the CIA admitted to using against Khalid Sheik Mohammad, explicitly during the Vietnam War. The U.S. State Department defined a similar interrogation technique as torture in 2005.  International law prohibits the its use and, if we go by the edict that, when U.S. law is considered, “international law is part of our law” then Scalias statements, by deduction, are dubious indeed.

The U.S. Defense Department said Monday it will ask for the death penalty for six high-value targets at Guantanamo Bay, including the alleged mastermind of the Sept. 11 attacks, Khalid Sheik Mohammed. The legal advisor to the military commission overseeing the Guantanamo Bay cases, Brig. Gen. Thomas Hartmann, said the men will be charged with conspiracy and murder “in violation of the law of war.”

One of the contentious issues in the case will be the presentation of evidence gleaned from coerced and “enhanced” interrogation tactics. The U.S. Central Intelligence agency admitted recently to using the simulated drowning technique known as waterboarding against KSM while he was held on secret detention facilities in eastern Europe at allegedly at Guantanamo Bay. Many observers equate waterboarding with a form of torture, which the U.S. repeatedly says it does not do. U.S. President George Bush permitted the CIA to use the tactic and CIA director Gen. Michael Hayden testified before Congress that he was unsure whether waterboarding fit the legal definition of torture. Regardless, Congressional legislation outlining the proceedings for the military tribunals at Guantanamo Bay allows the use of evidence derived from interrogations considered “extraordinary.”

Also at issue is the use of the death penalty. The United States remains among the lone advanced nations currently using capital punishment in its criminal justice system. Thought the U.S. has not executed anyone for violating the military codes of warfare since the 1960’s, it is not unreasonable that Washington will seek it out, particularly against KSM. The past experience with high-profile uses of capital punishment, notably the execution of the former Iraqi President Saddam Hussein, suggests the United States does not have a particular benign record when it comes to the practice. Any death sentence must meet the scrutiny of civilian appeals court, and presumably such a case would make its way to the Supreme Court.

KSM’s record must also be mentioned here. KSM confessed repeatedly to bringing the plot to al-Qaida chief Osama bin Laden in the late 1990’s. The Sept. 11 plot may have been an offshoot of the famed Oplan Bojinka plot that involved the assassination of Pope John Paul II, among others, and the simultaneous detonation of 11 commercial aircraft. He also confessed to beheading Wall Street Journal reporter Daniel Pearl in Pakistan shortly after the Sept. 11 attacks. Sept. 11 was his baby and KSM set out in various testimonies to describe himself as the preeminent terrorist mastermind. His confessions and boasting led some analysts to call much of his testimony simply delusional statements of grandeur. Undoubtedly, he confessed to the Sept. 11 in many well documented cases, but bringing evidence before a war crimes tribunal seeking his death should be taken with a certain degree of caution, especially considering the use of coerced testimony. This is not meant as a sympathetic statement, only a precautionary one.

Finally, Washington’s success with the military tribunal at Guantanamo Bay is checkered to say the very least. It has been repeatedly admonished by international reviewers and the United States Supreme Court. One observer expressed great caution at the announcement of the death penalty convictions, saying Washington has been unable to handle even the simplest of cases. For example, the military sought a life term Australian native David Hicks, but was forced to reduce the term to nine months following a plea agreement and demands from the Australian government.

This is far from over, but it may be a turning point in the long awaited closure of Guantanamo Bay. If the government wins its conviction in the military tribunal, the cases are inevitably slated for the civilian court system on review, which is what many observers, including this one, have called for in the first place. Stay tuned.

IHT

A lead prosecutor for the war crimes tribunal at the U.S. detention facility at Guantanamo Bay said the U.S. military lost a year’s worth of records pertaining to the detention of Osama bin Laden’s driver, Salim Ahmed Hamdan. Hamdan’s legal counsel requested access to the records to support their claim that his detention left him mentally unfit to stand trial. One of the prosecutors, Navy Lt. Cmdr. Timothy Stone, told the court that it handed over all of the records detailing Hamdan’s prolonged isolation and treatment at Guantanamo bay “with the exception of the 2002″ records. Lawyers for Hamdan said the records include details they say indicate their client was coerced into making statements that could be used against him in his war crimes trial.

The Supreme Court declared the prior tribunal system enacted by U.S. President George Bush unconstitutional based on Hamdan v. Rumsfeld. The military dismissed charges against Hamdan twice, but refilled amended charges in both circumstances.

Military authorities captured Hamdan in Afghanistan in November 2001 with two anti-aircraft missiles in the trunk of his car. The U.S. government claims he worked as a key al-Qaida operative providing support to bin Laden. He faces a life term for conspiracy to commit and providing material support for terrorist activities against the United States.

His legal counsel asked the court Thursday to drop all charges on the grounds that the conspiracy charges were not defined as war crimes in 2001. Legal precedence holds the use of ex post facto law, a law that retroactively defines a crime, a violation of normally recognized inalienable rights in a democratic society. The Justice Department relies on the prosecution of Nazi members during the Nuremberg tribunals, saying that organization was declared a criminal organization following World War II.

This brings about questions of jurisdiction. The British government Thursday approved the extradition of the radical cleric Abu Hamza al-Masri to the United States to face terrorism charges. Abu Hamza is wanted by U.S. authorites for organizing a “training camp” in Oregon and plotting to take Western hostages in Yemen in 1998. He also faces charges for funding trips to al-Qaida camps in the Middle East. British authorities imposed a seven-year sentence on Abu Hamza for inciting racial hatred and murder. The United States says they will not seek the death penalty and will not send him to the detention facility at Guantanamo Bay.

Why not? Taking a case like Hamdan, the argument could be presented that he was captured on the battlefield in Afghanistan at the height of U.S.-led operations there. But where does the battlefield in the so-called “war on terror” end and where does it begin? When did the “war on terror” start? Prosecutors in the Hamdan case say he entered the war in 1996 when he came into employment with bin Laden while al-Qaida was gaining momentum. Couldn’t you take the “war on terror” then back to the 1980’s when Hezbollah targeted U.S. Marines in Lebanon? Or the 1950’s when the father of radical Islam, Sayid Qutb, wrote “Milestones”, his seminal work? Or the 1920’s when the Muslim Brotherhood began to emerge in Egypt?

The U.S. captured Sept. 11 mastermind Khalid Sheik Mohammed in Pakistan in 2003. Pakistan is a key U.S. ally and the Pakistani government repeatedly refused to allow the U.S. military operational capacity on its soil, so does the battlefield in the “war on terror” not extend into Pakistan? But KSM is at Guantanamo Bay and not subject to the civilian courts.

These factors and the continued duplicity in prosecuting suspected terrorist leaders by the U.S. government makes the continued use of the war crimes tribunal at Guantanamo Bay something that completely defies logic.

Reuters/BBC