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writing for godot

US Voters Decide: A Country That Upholds International Law or One That Breaks It with Impunity

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Written by Judy Pasqualge   
Tuesday, 23 April 2019 23:49

A few weeks ago on CNN, Hillary Clinton was interviewed by Fareed Zakaria, prompting this article. What got to me was her focus on pride in US values ‒ in the context of the US 'having to play a role to uphold such values in cases of their breach by other countries' ‒ and more, her utter inability to state, on any issue, that she had made mistakes, or misevaluated things, and, even more, her utter lack of compassion for people who have been at the receiving end of US foreign policy.

It reminded me of the impression made by Madeleine Albright in relation to the deaths of hundreds of thousands of Iraqi children due to US sanctions in the 1990s. On 12 May 1996, as Bill Clinton's ambassador to the UN, Albright was asked by Lesley Stahl of 60 Minutes: "We have heard that half a million children have died. I mean, that's more children than died in Hiroshima. And, you know, is the price worth it?" Albright replied: "We think the price is worth it."[1]

There are many people, and all of us at one time or another, who actually believe that the good intention side of the self is enough ‒ no need to look at consequences, admit getting it wrong. The problem with this attitude in US foreign policy is that it is a deep one, with US military and economic power so strong as to produce deep consequences. Another problem is that too often the persona of good intentions is only a mask for bad ones.

As big a problem is that many people seem to think that politicians' false good intentions actually play out in always getting good results on the ground in other countries ‒ and so, such decisions are left to the 'experts,' ignoring the hidden hand of self-interest of very economically powerful individuals and groups.

These days there also seems to be a real push among opinion makers and consumers to insist that mankind is progressing ‒ in a general sense that then negates the need to deal with rationalisations that justify the actual self-interest and consequences hidden behind good intentions. And even more: talk of actual consequences can earn one the label of being a pessimist.

One problem with the above is that there is one area where progress has actually been made in the past 150 years or so, and that is in the codification of international standards, and enactment of them into state obligations and law, relating to the conduct of war and the issue of war crimes.

It is the position here that US foreign policy now, and for decades past, has shown the world that it seeks to act above the law, outside the law, against the law ‒ with barbaric consequences. As a corollary, in the end, likely, the greatest guarantee of national security is adherence to international law. And further, action to protest US foreign policy provides even more security.

It is up to the US voter to at least consider if this is an important issue, or whether leaving such things to others is alright ‒ to at least come to a decision on one's own, without leaving it to others.

Toward this end, the following provides a brief synopsis of some of the relevant international standards and conventions. I have to say, before starting to look more closely at this I was confused: humanitarian law, war crimes, crimes against humanity, the Hague Conventions, Geneva Conventions, the Nuremberg protocols ‒ all were a mishmash in my head.

International humanitarian law deals with the conduct of war, to both protect nonparticipants and to regulate the means and methods of combatants.[2] Such law includes the Geneva Conventions and the Hague Conventions; it is a body of law stretching back to origins in the mid-19th century, with much of it coalescing in 1949, with additions made later.

The Nuremberg principles arose during those famous trials after the Second World War, in an attempt to set guidelines on what constitutes a war crime.

The Geneva Conventions (GC)[3]

The first Geneva Convention dates to 1864, and not for nothing, in light of that time's major conflicts. A year earlier, during the US Civil War, a German immigrant (irony of ironies), Francis Lieber, devised a code for the Union Army that included issues of humane treatment of civilians and the forbidding of the execution of POWs. Also in 1863, in the context of the horror of the Crimean War, the International Committee of the Red Cross was founded.

The GC consist of four treaties, with three additional protocols added in 1977 and 2005:

First GC: covers the conditions/treatment of wounded and sick in the field; and the operation of medical and religious personnel, and medical units and transports.

Second GC: covers war and forces at sea, and hospital ships.

Third GC: covers POWs, including, with the cessation of hostilities, their release and repatriation without delay.

Fourth GC: covers the protection of civilians, including intentional attack against them, or attack on a military objective with knowledge of resulting excessive causalities. Persons covered include foreigners and civilians in occupied territory. Obligations are set for occupying powers, including humanitarian relief, and regarding the treatment of civilian internees.

All four treaties contain the same 'Common Article 3,' applying (for the first time) to non-international armed conflict, in the areas of: humane treatment of all held in enemy hands; prohibition against murder, mutilation, torture, cruel/humiliating/degrading treatment, the taking of hostages, unfair trials; and required care for the wounded and sick.

The three later protocols deal with:

I. (1977) regarding victims of international armed conflicts, including: outlaws: attacks on pilots/aircrews parachuting from an aircraft in distress (not airborne troops); indiscriminate attacks on civilian populations, destruction of food/water/other materials needed for survival, including use of biological weapons, nuclear weapons, land mines where scope of destruction cannot be limited; attacks on dams, dikes, nuclear power stations, places of worship; conscription of under-age-15 children; weapons that cause superfluous or unnecessary injury or widespread/long-term/severe damage to the environment. Parties recognise international fact-finding commissions enquiring into allegations. War crimes also include: not distinguishing between civilian and military targets; and the use of GC emblems to deceive.[4]

II. (1977) regarding victims of non-international armed conflicts, including: prohibits: murder, torture, mutilation, corporal punishment, collective punishment, taking of hostages, acts of terrorism, rape, enforced prostitution, indecent assault, slavery and slave trade, pillage, threats of all these; for provision of children's education, steps for family reunion, no recruitment of under age 15; regarding interned or detained: treatment for wounded/sick, provision of food/water and health safeguards, practise religion, separate women/men facilities except for families, receipt of mail, sites not near combat zones, medical examinations; procedures for prosecution of criminal offences; provisions regarding wounded, sick and shipwrecked; regarding civilians: prohibits threats of violence to spread terror, starvation as method of combat, and destruction of objects indispensable to survival; protection of dams, dikes, nuclear power stations; prohibits attacks on historic monuments, works of art, places of worship; prohibits forced movement of civilians.[5]

III. the international emblem to be used for identification, on par with the Red Cross/Crescent emblems.

There are now some 196 nation parties to the GC. All parties are required to enact and enforce legislation that sets penalties for deemed 'grave breaches' (see below); and they must search for persons who are alleged to have committed or ordered such crimes, and to bring them to trial.

Protocol I has been signed by 174 nations, and Protocol II by 168. The US has signed but not ratified both.

The Hague Conventions (1899 and 1907) (HC)[6]

These conventions deal with war proper and the rights and duties of belligerents. They define 'combatant,' deal with the means and methods of war, and the issue of military objectives. The HC drew a lot on the Lieber Code: behaviour during martial law; protection of civilians/civilian property; dealing with deserters, POWs, hostages, pillaging; dealing with partisans and spies; truces and prisoner exchange; conditions of any armistice; the assassination and murder of soldiers or citizens in hostile territory; and the status of individuals in a state of civil war against a government.

The 1899 HC also deals with the settlement of international disputes, and established the (still existing) permanent court of arbitration. It also covers wars on land and sea; balloon-launched projectiles; projectiles containing poisonous gases; and bullets that expanded or change form in the body.

The 1907 HC expands the dispute mechanisms; sets procedure for declaring war; covers rights and duties of neutral powers/persons; the situation of enemy merchant ships at the start of hostilities; submarine laying of mines; naval bombardment, naval right of capture; and balloon projectiles.

In 1925 a protocol was added to prohibit chemical and biological warfare.

War Crimes: the 'grave breaches' listed in the GCs[7]

GC III on POWs designates the 'grave breaches' as:

‒ willful killing, torture or inhumane treatment, incl. biological experiments

‒ willfully causing great suffering or serious injury to body or health

‒ compelling a protected person to serve in the armed forces of a hostile power

‒ willfully depriving a protected person of the right to a fair trial if accused of a war crime

GC IV on the protection of civilians identifies grave breaches as: taking hostages; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; and unlawful deportation, transfer or confinement.

It is noteworthy that a combatant who violates international law loses the protection and status of a POW, after he has appeared before a competent tribunal; then, as an unlawful combatant, he must still receive humane treatment, and if there is a trial it must be a fair one.

Also protected are spies and terrorists, if the holding power is in a state of armed conflict/war, and until deemed to be an unlawful combatant. Spies can be punished only after a trial. Terrorists who are captured in conflict, but who have not participated, are detained under GC IV and are entitled to a trial.

The Nuremberg Principles[8]

The principles state that a person who commits a crime under international law is responsible for it and liable for punishment, even if a country's law does not provide for this. The same is true if a person acted as head of state or responsible government official, or if a person is following an order of a government or superior. A charged person has the right to a fair trial on the facts and law.

Article VI deals with punishable crimes, which are also crimes under international law, in three categories:

1. crimes against peace:

a. planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

b. participation in a common plan or conspiracy for the accomplishment of any activity under above part a.

2. war crimes: include, but not limited to: murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in an occupied territory; murder/ill treatment of POWs or persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

3. crimes against humanity: murder, extermination, enslavement, deportation; persecutions on political/racial/religious grounds, when done in execution of or in connection with any crime against peace, or war crime.

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984, effective 1987)[9]

In light of the above standards set on the conduct of war, regarding combatants and civilians, it is well to consider the definition of torture provided in this UN convention, which in mid-2018 had been signed by 164 state parties. Torture is banned in territory under a power's jurisdiction ‒ no exceptions, including protecting public safety or to prevent emergencies; and a person cannot be transported to a country where it is reasonable to believe that she might be tortured.

Torture is defined as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted for such purposes as obtaining from him, or third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The US War Crimes Act of 1996[10]

In consideration of the above UN Convention against Torture, the Reagan administration stated reservations to it and redefined torture in its mental aspect to exclude sensory deprivation and self-inflicted pain. In 1994 President Clinton included these reservations in his (Convention implementing) legislation presented to Congress.[11]

It is noteworthy that in consideration of the Act, the Supreme Court ruled in 2006 that Common Article 3 of the GC does apply to the War on Terrorism, and thus to the interrogation techniques used in it. The Justice Department under George Bush had in 2002 determined that the GC did not apply to Al Qaeda and the Taliban.[12]

The ensuing Military Commissions Act of 2006 limited the breaches applicable under Common Article 3 to: torture (with the Reagan/Clinton redefinition), cruel or inhumane treatment, murder, mutilation or maiming, intentional causing of serious bodily harm, rape, sexual assault or abuse, and taking hostages.[13]

*   *  *   *

Whatever one thinks about war, the necessities of war, of enemies and of civilians, it is clear that US officials are often on shaky ground in pronouncements made about violations by other countries, and in ones that glorify their own country's values. Many people around the world label this as hypocrisy, or double standards. I prefer the construct of Noam Chomsky: this is an illustration of the US single standard: "all for ourselves, and nothing for other people," noted by Adam Smith as a "vile maxim"; and by Chomsky as "the one that great powers typically observe."[14]

The question is: who sets the standard?

And: who accepts such practices of former presidents as:

‒ Ronald Reagan (and Vice President Bush): the mining of harbours in Nicaragua, which in 1986 the International Court of Justice found to be an "unlawful use of force"[15]; breaking US law by funding the Contras to overthrow that government with funds obtained by selling arms to Iran (during the Iran-Iraq War); the invasion of Grenada and overthrow of its government in 1983; in the early 1980s use in El Salvador of the "Salvador option" ‒ death squads engaged in extrajudicial executions, other unlawful killings, disappearances and torture, including against whole villages.[16]

‒ George H.W. Bush: close involvement in the Iran-Contra programme, and pardon of six officials involved; support in 1991 for Croatians and hardline Muslims in Yugoslavia against coming to an agreement with the government[17]; continuation of above policy in El Salvador; action against and overthrow of the government of Panama; covert funding and technology to Iraq to develop nuclear, chemical and biological weapons infrastructure from the 1980s (a continuation of Iraqgate)[18]; the first Gulf War.

‒ Bill Clinton: sanctions on Iraq that included food and medicine, and that after about ten years had contributed to a tripling of the death rate and a doubling of infant mortality[19]; the beginning of rendition (kidnapping and transport without trial) in the mid-1990s, until Congress stopped it in 1998, only to be resumed by the next Bush[20]; support for radical Islamists to enter Yugoslavia, role in the expulsion of Serbs from Krajina in 1995,[21] and the NATO bombing of Serb areas in 1999 while a US proposal and Serb counterproposal were still on the table.[22]

‒ George W. Bush: the red herring of WMD used to justify the invasion and overthrow of the government of Iraq; the 2005 policy choice there of Ambassador John Negroponte's "Salvador option" of government-linked death squads against rebel leaders and sympathisers[23] (as ambassador in Honduras, 1981-1885, he was active in the campaign against Nicaragua), and the institutionalisation of kill lists/assassination as a central component of policy[24]; the shift in use of torture for intelligence collection to a form of punishment for noncooperation, including sensory deprivation, sleep disruption, stress positions, waterboarding, slapping, keeping lights on, treating like an animal[25]; the spread of interrogation methods used in Joint Special Operations Command facilities in Iraq to use in military prisons[26]; expanded support for warlords in Somalia in kill/capture operations.[27]

‒ Barack Obama: in ten months in 2009 in Afghanistan authorised more drone attacks than in the previous eight years,[28] and policy line that killed males of military age be counted as combatants[29]; expanded and codified Bush-era policies, including regarding kill lists, with personal involvement in the selection of individuals, a form of "pre-crime" justice[30]; in 2013 worked on the rules permitting the killing of US citizens if determined to be an 'imminent threat,' not on clear evidence[31]; expanded use of special operations forces to more than 100 countries,[32] including Yemen and Syria; the joint US/NATO bombing of Libya in 2011, justified as falling under a UN Security Council Resolution in which Russia, China, India, Brazil and Germany abstained, leading to the fall of the government and a second, continuing, civil war.

‒ Donald Trump: With all the attention being paid to the new president's domestic policy and outrageous statements, his actions abroad seem to be off the news radar screen. One has the impression that he reviews the options he inherited from previous administrations regarding various countries, and then chooses his preferred targets, such as Iran, Venezuela and Cuba. As with his predecessors, there is far too little push-back on these from the Democratic Party and the public.

Even with regard to the immigration/border issue, little importance is given to the US role for decades in supporting via funds and training the nexus of politicians/armed forces and police/private squads/mafias in countries such as Guatemala and Honduras ‒ policies that have resulted in the breakdown of law and order, terror and the flight of thousands of people.

Why do so many mainstream media stars express more indignation over one more Trump lie than over the effects of US sanctions on people in Venezuela and Iran, and over pat lines about the breach of values by other countries?

Where do the 2020 presidential candidates stand on the above past actions, and on the continuance of many of them?

Where do voters stand? What will be tolerated in the next president? What comes next? Does it matter?

 


[1] Wikipedia, Madeleine Albright, quoted from: The Mighty and the Almighty: Reflections on America, God, and World Affairs, HarperCollins.

[2] Wikipedia, International Humanitarian Law.

[3] Wikipedia, Geneva Conventions; and International Committee of the Red Cross, "The Geneva Conventions of 1949 and Their Additional Protocols," January 2014, https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols.

[4] Wikipedia, Protocol I.

[5] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475?OpenDocument.

[6] Wikipedia, Hague Conventions of 1899 and 1907.

[7] Wikipedia, Geneva Conventions.

[8] Wikipedia, Nuremberg Principles.

[9] Wikipedia, United Nations Convention against Torture.

[10] Wikipedia, War Crimes Act of 1996.

[11] Noam Chomsky, Who Rules the World?, United Kingdom: Penguin Books, 2017 (2016), 38.

[12] Wikipedia, War Crimes Act of 1996; Jeremy Scahill, Dirty Wars, London: Serpent's Tail, 2014 (2013), 30.

[13] Wikipedia, War Crimes Act of 1996.

[14] Noam Chomsky, Failed States, London: Penguin Books, 2006, 4-5; Noam Chomsky, Yugoslavia, Oakland: PM Press, 2018 (1999), 133.

[15] Chomsky, Failed States, 44.

[16] Jeremy Scahill, (a part quoting Peter Maas), Blackwater, London: Serpent's Tail, 2008 (2007), 351-53.

[17] Davor Džalto, in Chomsky, Yugoslavia, 2018, 60-61, n. 4.

[18] Joel Bleifuss, "This Isn't the First Time William Barr Has Sought to Hide Information from the Public," In These Times, 19 April 2019, http://inthesetimes.com/article/21847/mueller-redacted-report-william-barr-hiding-information-1992-bush?link_id=7&can_id=2ce894ede476de11e73e40c5389457bd&source.

[19] Chomsky, Failed States, 56-57.

[20] Scahill, Blackwater, 321-22.

[21] Džalto, in Yugoslavia, 59, 65.

[22] Chomsky, Yugoslavia, 85-87, 102-103 (1999).

[23] Scahill, Blackwater, 351-52.

[24] Scahill, Dirty Wars, 117.

[25] Scahill, Dirty Wars, 87-88.

[26] Scahill, Dirty Wars, 160.

[27] Scahill, Dirty Wars, 121, 191.

[28] Scahill, Dirty Wars, 251.

[29] Chomsky, Who Rules the World?, 95.

[30] Scahill, Dirty Wars, 284, 352, 513.

[31] Scahill, Dirty Wars, 513-14.

[32] Scahill, Dirty Wars, 513.

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0 # chapdrum 2019-04-25 13:36
People like the Clintons take positions a millimeter or two left of the Republicans, and that's supposed to represent them as "liberals" and "Democrats."
 

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