War Crimes

The U.S. Defense Department announced Monday it formally charged a Saudi Arabian national held at the detention facility at Guantanamo Bay with plotting the bombing of the USS Cole in October 200 in the Yemeni port of Aden.

The Pentagon said it charged Abd al-Rahim al-Nashiri with eight charges associated with the suicide attack that wounded 47 U.S. Navy personnel and killed 17 others. The Pentagon considers Nashiri one of the “high value” detainees held at Guantanamo Bay, along with the self-professed mastermind of the Sept. 11 attacks, Khalid Sheik Mohammad.

“Five of the eight charges carry the maximum penalty of death,” said Air Force Brig. Gen. Thomas Hartmann, a legal adviser to the tribunal system at Guantanamo.

U.S. officials say Nashiri was the chief of operations in the Arabian peninsula for al-Qaida. He apparently met with al-Qaida leader Osama bin Laden during the course of his tenure.

Beyond the Cole bombings, U.S. prosecutors claim Nashiri coordinated failed attacks on the USS Sullivans in January 2000 and the French SS Limbrug in October 2002, both in the Gulf of Aden.

Officials with the CIA admitted to coercing Nashiri during interrogations using the controversial technique known as waterboarding.  Nashiri confessed to the Cole bombing, but claims he did so only so CIA interrogators would stop torturing him. Hartmann said any challenges to testimony gleaned from the technique would be addressed during trial.

“All the evidentiary issues are going to be resolved in the courtroom. That is the beauty of this system,” he said. “We’ll leave that to the trial process.”

Unlike in the cases of its neighbors Bosnia and Croatia, the Yugoslavian government made no extended attempt to reconquer Slovenia when it seceded in 1991. The military conflict was ten days long and created less than 100 total casualties.

One colonel in the Yugoslav National Army has been indicted by the Slovene government for his role in the conflict. The Serbian war crimes division and the Helsinki Monitor watchdog group both expressed considerable skepticism about the indictment, and Slovenia has not issued an arrest warrant.

Jonathan Adler notes the DC Circuit’s Tuesday release of Simon v. Iraq, a case where US servicemen alleged that Saddam Hussein’s Iraqi intelligence services had taken them hostage and tortured them during Gulf War I. The court concluded (in contrast to earlier, similar lawsuits) that the suit could go forwards.

The plaintiffs rely on an exception to the Foreign Sovereign Immunity Act passed as part of the Anti-Terrorism & Effective Death Penalty Act of 1995, which holds that countries on the State Department’s list of state sponsors of terrorism are not immune from suit for certain kinda of offenses committed against American citizens. Iraq was on the list from 1990 until after the overthrow of the Hussein regime.

The exception was amended in the National Defense Authorization Act for FY 2008. The amendment provided, among other things, an amendment to the terrorism exception by explicitly granting a federal cause of action to plaintiffs, which the DC Circuit had not found in prior cases. It also newly permitted President Bush to waive the relevant sections of the NDAA with respect to Iraq.

The executive attempted to do so here, but the court concluded that because the plaintiffs had sued Iraq before the NDAA amended FSIA, the old FSIA provisions controlled the suit. The court then found the plaintiffs had a cause of action and permitted the plaintiffs’ suit to go forwards.

Iraq will almost certainly petition for certiorari in the United States Supreme Court, so any jury trial is almost certainly more than a year away. Nonetheless, for the moment, the court’s decision makes it much easier for American POWs who suffered war crimes during the Gulf War conflict to recover damages.

Full disclosure: As a law school student, the author assisted attorneys for a different group of tortured POW’s filing suit under FSIA.

The U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously that there is no justification for the “enemy combatants” designation of detainees held at the U.S. naval facility in Guantanamo Bay, Cuba.

The case involves Hazaifa Parhat, a member of the Chinese dissident group, Uigher. The federal appeals court ruled the Pentagon used the “enemy combatant” designation inappropriately and ordered the government to release him, transfer him to another country, or afford him the right to appeal his detention in federal court; an apparent consideration of the U.S. Supreme Court decision in Boumediene v. Bush and Al Odah v. U.S.

The case marks the first court test of the “enemy combatant” designation. The circuit ruling is part of a review process enacted by Congress as part of the Detainee Treatment Act of 2005.  The DTA, the government argued in Boumediene, served as an effective substitute for the writ of habeas court.  The designation, however, is part of the Combatant Status Review Tribunal, a military proceeding whereby suspects are determined illegible for detention at Guantanamo, but are afforded no right to counsel, have no access to evidence against them, nor are they made aware of the charges they face.

Parhat and 16 other Uighers were captured in Afghanistan in the early stages of the so-called war on terror.  The group is a dissident Muslim sect considered a foreign terrorist organization by the U.S. government following a formal request by Beijing.  The group has not engaged in hostile acts against the United States.

The lawyers for Parhat said that while the decision was announced Monday, their client remained unaware of the decision because he remains in solitary confinement in Guantanamo.

NPR’s Nina Totenburg in her commentary on the case said the decision amounts to “big trouble” for the Bush administration.

The Security Council demanded that all sides to armed conflicts around the world stop using violence against women as a tactic of war and take much tougher steps to protect women and girls from such attacks. In a resolution adopted unanimously after a day-long debate on women, peace and security, Council members said women and girls are consistently targeted during conflicts “as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group.”

The effect is to also prolong or deepen conflicts and to exacerbate already dire security and humanitarian conditions, particularly when the perpetrators of violent crimes against women go unpunished for their actions.

The resolution demands that all parties immediate stop sexual violence against civilians and begin taking measures, from the training of troops and upholding of military discipline procedures, to protect women and girls.

Sexual violence crimes should be excluded from amnesties reached at the end of conflicts, the 15-member Council added, calling on States to also strengthen their judicial and health-care systems to provide better assistance to victims of violence.

The resolution was adopted after dozens of speakers told the Council about the appalling effects of sexual violence during armed conflicts, with Secretary-General Ban Ki-moon saying the problem had reached “unspeakable and pandemic proportions” in some countries.

Mr. Ban announced he will soon appoint a UN envoy tasked entirely with advocating for an end to violence against women.

Opening today’s meeting, United States Secretary of State Condoleezza Rice said the truest test of the will of the international community was the protection it gave to the most vulnerable.

“When women and girls are raped, we cannot be silent… we must be their advocates,” Ms. Rice said.

South African Foreign Minister Nkosazana C. Dlamini Zuma called for “the silence” around sexual violence to be broken. Many women were afraid to speak out about their ordeal, the minister said, because they were so traumatized and stigmatized by the crimes they endured.

Speaking on behalf of the European Union, Slovenia’s Sanja Štiglic stressed the need for a gender-sensitive approach to post-conflict countries, from awareness training for judges and court staff to stepped-up efforts to ensure that women’s voices are heard in decision-making processes.

Philomène Omatuku Atshakawo, Minister of Gender, Family and Children in the Democratic Republic of the Congo (DRC), where sexual violence has reached epidemic levels in the east of the country, said such violence was leading to the feminization of poverty.

Female victims were no longer able to work the land or work at all, she said, adding that as a result the Government was trying to introduce a range of measures – economic, security and psychosocial among them – to ameliorate the situation.

China’s Liu Zhenmin backed the Secretary-General’s zero-tolerance policy against sexual exploitation of women and girls by UN peacekeepers and urged troop-contributing countries to boost their training and monitoring of their blue helmets.

From U.N. News Service

WARNING: THE “SLAUGHTER” LINK CONTAINS GRAPHIC IMAGES

A case before a Dutch court will determine whether Dutch peacekeepers operating under the flag of the United Nations are liable for the 1995 massacre of thousands of Muslims in the Bosnian town of Srebrenica.

In July 1995, forces from the paramilitary group The Scorpions, oversaw the detention and subsequent slaughter of 8,000 Bosnian Muslim males determined to be of military age.

The families of roughly 6,000 victims killed by the paramilitary force are suing the United Nations because the Dutch peacekeeping force did not intervene in the massacre. Srebrenica at the time was a U.N. mandated safe haven.

The United Nations, supported by Amsterdam, claims immunity in the case.

Taking an apparent page from claims supporting the U.S. decision to not sign onto The International Criminal Court, Amsterdam’s lawyer Bert-Jan Houtzagers said the United Nations must be permitted to conduct peacekeeping operations without facing prosecution, the BBC said Wednesday.

“The Bosnian Serbs are the ones who are to blame, especially General (Ratko) Mladic. He is a war criminal,” he said.

We’ve rightly been focused on the Boumediene decision for the last few days, but the good people at the Enough Project were before the UN Security Council today. Co-Chair John Prendergast’s testimony is here. In a column Prendergast wrote on Huffington Post, he emphasized the continuing spillover of the Darfur conflict into neighboring Chad. In this case, the spillover was allegedly due to the Sudanese military.

In a declaration drawn up two weeks ago, the Security Council called on Sudan to turn over suspects to the ICC, and threatened to sanction Sudanese who do not cooperate.

The Diane Rehm show Tuesday hosted a round-table discussion on the latest decision from the U.S. Supreme Court regarding the rights of detainees held at the U.S. detention facility at Guantanamo Bay, Cuba.

Thursday the Supreme Court ruled it unconstitutional to deny Guantanamo prisoners the right to challenge their detention. Implications of the ruling, and the debate between creating a new “national security court,” vs. trying militarily detained terrorism suspects into the federal court system.

Guests

Shayana Kadidal, senior managing attorney for the Guantanamo Global Justice Initiative at the Center for Constitutional Rights

Glenn Sulmasy, national security fellow at Harvard University’s Kennedy School of Government; judge advocate and law professor, U.S. Coast Guard Academy

John Hutson, adviser to Sen. Barack Obama’s presidential campaign; president and dean, Franklin Pierce Law Center; former judge advocate general for the U.S. Navy

Kori Schake, foreign policy adviser to Sen. John McCain’s presidential campaign

The audio link to the show is provided here

Today, the Supreme Court denied certiorari over a mandamus action filed by Syrian Abdul Rahim Abdul Razak Al Ginco. While this was the first detainee challenge to be acted on since last week’s Boumediene decision, it was a mandamus action rather than a habeas action and so Boumediene probably did not affect the justices’ deliberations.

Applying Boumediene, lawyers for a detainee whose case is before the Fourth Circuit have filed a supplemental brief arguing that language in Boumediene precludes the executive branch from ordering him indefinitely detained. The Supreme Court explicitly declined to reach that issue, and since that detainee - Ali Saleh Kahlah Al-Marri - had already been granted habeas rights by a prior Fourth Circuit decision, it is unclear what effect Boumediene will have on his case.

For those interested in a more detailed treatment of the Boumediene decision, the international law blog Opinio Juris is running a symposium.

In yet another resounding slap in the face to the Bush administration on its policies during the so-called war on terror, the U.S. Supreme Court Thursday ruled 5-4 that foreign nationals held at Guantanamo Bay have a right to challenge their detention in civilian courts.

“We hold these petitioners do have the habeas corpus privilege,” Justice Anthony Kennedy said, writing for the majority.

The Court, issuing its opinion on Boumediene/Al-Odah v. Bush, cautioned it was not ruling the detainees were unjustly detained. That, Kennedy said, was a matter left to District Court judges.  Instead, the court ruled that Congress has violated the constitution when it took away habeas rights.  If Congress wishes to suspend the writ of habeas corpus, the Court said, it may only do say when the United States is facing a rebellion or an invasion.  Presumably, the international threat posed by transnational terrorist groups, such as al-Qaida, do not fall within that Constitutionally defined doctrine.

The Supreme Court in earlier cases deemed the prior Bush-indoctrinated war crimes tribunal illegal because only Congress has to the right to establish laws of merit. In response, Congress enacted a new set of tribunal procedures and amended the Uniform Code of Military Justice to include, among others, conspiracy to commit terrorist acts against the United States as a violation of the laws of war.

The ruling follows the beginnings of the tribunal proceedings for self-proclaimed Sept. 11-mastermind, Khalid Sheik Muhammad and other co-conspirators.