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War Crimes, USA

Could administration officials be called to account?

| Mon Dec. 5, 2005 3:00 AM EST

In normal times, suggesting that the leaders of our country might have committed war crimes would violate a firm taboo in American political discussion. Yet in the post-Abu-Ghraib era—and especially as President Bush has quarreled with Congress over the McCain amendment prohibiting abuse of all detainees in U.S. custody—observers can no longer profess shock at the idea that criminal breaches of humanitarian law have occurred. According to a recent editorial in the Washington Post, the amendment "would mandate an end to the hundreds of cases of torture and inhumane treatment, many of them qualifying as war crimes, that have been documented by the International Red Cross, and the Army itself at Guantanamo Bay, Cuba, and in Afghanistan and Iraq, and elsewhere."

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With the White House on the defensive about its justifications for the invasion of Iraq, and with European governments in an uproar over whether American abuse of prisoners has taken place in bases on the continent, scrutiny of alleged U.S. war crimes looks sure to intensify. And if debate about this inflammatory topic begins to rage, a new book, edited by Jeremy Brecher, Jill Cutler, and Brendan Smith, promises to add fuel to the fire. In the Name of Democracy: American War Crimes in Iraq and Beyond collects damning official documents, leaked e-mails, testimonies, commentaries, and investigative articles. Together, these items make a strong case that Bush administration actions overseas violate international norms and treaties, and that those responsible are subject to legal repercussions.

Are we actually going to see Donald Rumsfeld stand trial? Motherjones.com talked to the editors about why the issue of war crimes may become an ever-sharper thorn in the side of administration officials, about the potential and the limitations of international law, and about the obligation of citizens to prevent further crimes from being committed.

Historian Jeremy Brecher has written and edited over a dozen books, including the labor history classic, Strike! Jill Cutler is an assistant dean at Yale College and editor of Global Visions: Beyond the New World Order. Brendan Smith is a legal scholar and former congressional aide to Representative Bernie Sanders (I-VT).

Mother Jones: Does accusing United States of war crimes make you sound out of touch with mainstream American sentiment? Wouldn’t most people think that these accusations are coming out of left field?

Jeremy Brecher: If the United States is involved in committing war crimes, we as Americans have a responsibility to address that. I don’t think hiding from reality is a solution to the fact that no one likes to be told that they’re doing something wrong.

The second point, though, is that Americans actually are very worried that our country may be doing things that are not in accord with our own values. Appealing to that concern isn’t a matter of trashing our country, but of giving Americans a means of confronting what our government has been doing.

Jill Cutler: People who work at the FBI, Senators, and Congressmen are very concerned about our conduct in the war on terror. The FBI was concerned about the torture that was occurring in various places. Military officials are concerned that the Army’s field manual is not being observed.

Brendan Smith: The concept of war crimes is actually bringing together some unlikely allies. Paralleling the peace movement, we’re seeing what we could call a “law and order movement.” Here, you have organizations like Amnesty International and the ACLU that are concerned with civil liberties and human rights. But you also have a dozen retired military officials, led by Marine Corps General David Brahms, who wrote a letter to the Senate Judiciary Committee saying that it should not confirm Alberto Gonzales as Attorney General because he promoted violations of the Geneva Conventions.

JB: The public attitude about war crimes has changed a lot since the beginning of the 1990s. We’ve moved away from a situation where war crimes were just epithets that governments used to bash foreign leaders they didn’t like. Now, we’ve seen tribunals for the former Yugoslavia and for Rwanda. We have the International Criminal Court, which, even though the United States is not part of it, is designed for the purpose of trying war crimes. The United States itself has brought either formal charges or accusations of war crimes against other countries’ leaders–including, as we speak, against Saddam Hussein. So this is a concept that we are becoming more familiar with, something that is regarded as part of the fabric of law.

Mother Jones: The idea that the U.S. could commit war crimes is taboo, yet on the other hand, it's taken for granted that our country has a special role in the world--that America is an exception. And that exceptionalism gives the U.S. a certain prerogative to act without having to submit to an international litmus test.

JB: This is a claim that’s made by the Bush administration, but when you look at the poll data, it’s quite clear that this belief is not widely shared by the American people. There’s a very interesting set of polls done by an organization called PIPA, the University of Maryland’s Program on International Policy Attitudes. They show that most Americans believe that the United States is bound by international law and by the Geneva Conventions. It’s this fundamental belief in law, including both national and international law, that we’re hoping to appeal to.

For me personally, it goes back to the pictures I saw of the Nazi concentration camp victims when they first came out after World War II, and to hearing about the Nuremberg tribunal. I’m too young to remember the tribunal actually happening, but I certainly learned about it at an early age. The idea that top officials could be held responsible for crimes committed by those under their command seemed to me to be an essential part of how to make some decency and peace in the world.

There was an attempt to apply that idea to the Vietnam War, but there was no mechanism for actually enforcing it—even though the Bertrand Russell Commission held a tribunal in what we would now call civil society to investigate alleged U.S. war crimes. But as we moved through 1990s, war crime tribunals became live institutions. And that raised the question of whether this could really be meaningfully applied to every country, including the United States.

BS: Beyond exceptionalism, there is a more grounded principle in American society, which is that even the most powerful among us are accountable to the law. If you juxtapose those two principles, accountablilty and exceptionalism, I think the one that wins out is accountability.

Mother Jones: What specifically are the war crimes that you are identifying?

BS: We are talking about three categories. The first are crimes against peace. After Nuremberg an idea took hold that launching an aggressive war is the supreme international crime. There are only a few specific circumstances where a state can use force against another state. The U.N. charter says either you need a resolution from the Security Council or you need to be acting in self-defense from an imminent and immediate attack. In the current situation, the U.S. launched an aggressive war in Iraq that even Kofi Annan declared illegal.

The second category of crimes concern the conduct of the war and occupation. This would include the administration’s use of illegal weapons, such as napalm, white phosphorus, and cluster bombs. It includes a failure to protect civilians. It includes trying to break the Iraqi insurgency with collective punishment against the civilian population—with acts like cutting off water supplies. This is a practice we saw in Fallujah and elsewhere, and which the U.N. has condemned.

Fallujah actually summarizes several of these crimes. There we had eight weeks of bombing, we destroyed 36,000 houses, 60 schools, and 65 mosques. One of the military’s first acts was to storm the hospital. The U.S. cut off all food supplies, all power to the entire city. The Defense Department said that all the civilians were out at the time of the attack, but reports show that 30,000 to 50,000 civilians remained in the city. The U.S. blocked the Red Crescent from entering. All males between 15 and 55 weren’t allowed to leave. So in Iraq, Falljah has become iconic of American war crimes and brutality.

The third set of war crimes centers on torture. Here, the question is not whether it’s happening, it’s how often and who’s responsible. When we wrote the book there were 32 deaths of prisoners in U.S. custody reported. Now there are over 100. The FBI reports cases of strangulation, burning with cigarettes, routine beatings.

JC: Failure to count civilian deaths is also a war crime, a violation of the Geneva Conventions.

Mother Jones: Certainly, war is ugly. Terrible things happen in war. But the charge that these types of things are criminal seems to be controversial. The administration would respond, for example, that they are trying their best to prevent civilian deaths.

BS: Our claim is that there is more than enough evidence to bring an initial indictment or to hold an investigation. The finer questions of whether a certain attack—like the attack on the hospital in Fallujah, whether that was a legal attack because the building was overrun by insurgents or whether the facility was a functioning hospital serving the sick and wounded—is a factual question. It should be up to a jury; it should be up to a court of law to decide.

JB: The failure of the U.S. to record and investigate the deaths of civilians really goes to the heart of this. If you do not investigate the killing of civilians by bombs, or at road blocks, or in house-to-house fighting, you have no way to know whether your operations are being conducted in accord with international law or not. That’s why knowledge of the effects of warfare on civilians is the legal responsibility of military commanders. There are open statements—specifically by Mr. Rumsfeld—that these things are not being investigated, that no records of civilian deaths are being kept. That is an inherently criminal act.

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