War crimes update(s)

The world's great genocide test

Nat Hentoff
Monday, March 16, 2009

In 2005, after I had long been covering the atrocities committed by Sudan's president, Gen. Omar Hassanal-Bashir, on black Christians and animists in the south - followed by his genocide against black Muslims in Darfur - I saw an urgent message in The Washington Post by two senators, Democrat Barack Obama of Illinois and Republican Sam Brownback of Kansas. With the United Nations characteristically useless, the senators gave me some hope this holocaust could be ended.

In "Policy adrift in Darfur," the senators (Mr. Brownback has actually gone to Darfur) wrote: "If the United States does not change its approach to Darfur, an already grim situation is likely to spiral out of control. ... When the history of this tragedy is written, nobody will remember how many times officials visited the region or how much humanitarian aid was delivered. They will only remember the death toll."

As the death toll continued to mount, there was hope again on March 4 when the International Criminal Court at last issued an arrest warrant for Africa's Hitler, Gen. al-Bashir. He is charged with five crimes against humanity: murder, extermination, forcible transfer (of civilian populations), torture and rape.

This personification of evil will also be tried, if he can be apprehended, for two war crimes: intentionally directing attacks against civilians and for pillaging, his forces stealing livestock and burning villages, with black infants sometimes tossed into the flames. Strangely, the charge of genocide is not included, although there is ample evidence that Gen. al-Bashir fully intended to destroy the black tribes of Darfur - as his ruthless Janjaweed killers kept gleefully assuring their victims.

Also on March 4, before an orchestrated, huge crowd in Khartoum, Gen. al-Bashir, as he was dancing and swaying, told the ICC to "eat" its arrest warrant while the cheering crowd burned in effigy the court's undeviating chief prosecutor, Luis Moreno-Ocampo, who clearly should have been Time magazine's "Man of the Year."

In further strutting his contempt of the ICC, Gen. al-Bashir commanded 13 foreign humanitarian organizations to get out of the country within 24 hours as his thugs ransacked their offices, taking computers and whatever cash they could find.

U.N. Secretary-General Ban Ki-moon, at last summoning what appeared to be real clear anger at the bloodthirsty head of a sovereign state, emphasized that 4.7 million of Gen. al-Bashir's people are in need of aid. These are such basic needs as food, drinking water and medical care.

Amid clinics closing and deteriorating sanitation, such infectious diseases as cholera will spread. On March 6, The Washington Times and the Associated Press quoted World Health Organization spokeswoman Fadela Chaib on an outbreak of meningitis in Nyala, south of Darfur. Precisely in that area the Dutch branch of Doctors Without Borders was carrying out meningitis vaccinations. But this indispensable humanitarian organization was one of the 13 expelled by Gen. al-Bashir.

Said one of its ousted workers, who had been assigned to one of Darfur's largest refugee camps, "People have nothing there. The meningitis outbreak alone could lead to thousands of deaths." (The Washington Post, March 5.)

On Feb. 21, anticipating the ICC's issuance of this first arrest warrant for a sitting head of state, Gen. al-Bashir's rightly feared head of Sudan's National Security and Intelligence Service, Salah Gosh (a sometimes CIA Intelligence source about terrorists in Africa, but not in Khartoum) has warned anyone anywhere who intended to actually arrest his commander in chief:

"Anyone who attempts to put his hands to execute [International Criminal Court] plans, we will cut his hands, head and parts because it is a non-negotiable issue." And with unexpected frankness, he added (as reported by the invaluable sudantribune.com):

"We [the government] were Islamic extremists, then became moderate and civilized, believing in peace and life for everyone. However, we will revert back to how we were if necessary. There is nothing any easier than that." Mr. Gosh somehow omitted saying actually when the former National Islamic Front government had become civilized.

Presumably, Gen. al-Bashir is a wanted man anywhere he travels. The ICC's court registrar, Silvana Arbia, declares that the obligation to surrender Gen. al-Bashir falls on all 108 countries that are part of the ICC; members of the U.N. Security Council; "and any other state as may be necessary." And chief Prosecutor Moreno-Ocampo insists:

"The judges were clear. There is no immunity for heads of states before the ICC. As soon as al-Bashir travels through international air space, he can be arrested. It will be two months or two years, but he will face justice."

Will he really be in the dock at The Hague?

Next week: With Gen. al-Bashir still a free genocidaire, the only realistic way, so far, to ensure he and justice will finally meet begins with, as I shall explain, no-fly zones over Sudan. It will be up to NATO; the European Union, particularly France; and President Obama. George W. Bush was the first head of state to call this Sudan holocaust genocide. But it continued, and grew. Barack Obama's administration is "urgently" reviewing what should be done. We'll see.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press and is a senior fellow at the Cato Institute.

And this on Tony Blair:

I do not agree with THIS.

I think The Hague IS already acting. It's a multijurisdictional affair, afterall.

Any country involved in rendition and TORTURE is culpable, eh.

Local prosecutions and grassroots organizing are the key to saving AmeriKa from being a fascist, totalitarian state. What's needed is a special torture prosecutor, ASAP.

The DOJ led by Michael Mukasey has proven to be a sham. So We the People must do the job.

Here in CANADA, we must also act to ensure that feet are held to the fire and George W. BuZhCo. face prosecution for the SUPREME INTERNATIONAL WAR CRIME, which is genocide. Lots of ways to pursue this have been discussed extensively on this blog. See the recommendations made at the WAR CRIMES CONFERENCE in Andover Massachusetts ! There are many ideas. I think the ICC WILL be brought in, as a very last resort. A leash must be put on WAR CRIMINALS right quick, as the major party "candidates" intend to continue the war criminality.

This article is interesting, though.

Also, I always notice, when I read these articles and hear the speeches, no one mentions the FACT that Marcos was found GUILTY in the US of A. That is a heavy precedent to remember.

Virginia

By Peter Dyer
September 21, 2008

Q: What do Radovan Karadzic, former French Prime Minister Dominique de Villepin, and George W. Bush have in common? A: Each lives under the slowly growing shadow of a body of international criminal law

This law is evolving towards the ultimate goal of holding even the most powerful leaders personally accountable for crimes committed by the State.

It is manifested in international agreements and statutes such as the Geneva Conventions, case law, two ad hoc war crimes tribunals (Yugoslavia and Rwanda), and a permanent International Criminal Court.

Radovan Karadzic, former Bosnian Serb President, has been arrested and now awaits trial in The Hague before the International Criminal Tribunal for the former Yugoslavia (I.C.T.Y.) on charges of genocide and crimes against humanity.

Dominique de Villepin is one of 33 French military and political leaders who have recently been accused in a report released by the Rwandan government of arming and advising Hutu leaders in the genocide and crimes against humanity of 1994.

(At the time Rwanda was a French client state and de Villepin was chief aide to French Foreign Minister Alain Juppe. The 500-page report, based on a two-year investigation, accuses both men of crimes including enabling the genocide by violating a United Nations Security Council Arms Embargo against Rwanda.)

George W. Bush in March 2003 ordered “Operation Shock and Awe” (though officially dubbed “Operation: Iraqi Freedom”) – the unprovoked invasion and occupation of Iraq – presenting the world with a clear prima facie case of aggression.

Aggression, in the words of the judgment delivered at the first Nuremberg Trial, is “the supreme international crime” because it unleashes all the other devastation and inhumanity of war.

Personal accountability by state leaders for the crime of aggression – initiating an unprovoked war – is the most profound as well as the most difficult goal of the continuing evolution of international criminal law.

For this reason, and because President Bush is head of the world’s most powerful state, clearly the shadow of the law is at present less ominous to him than to Karadzic or perhaps to de Villepin.

But there is no statute of limitations for any of these crimes. Things change over time, often unpredictably. And the international community has been working steadily towards this difficult goal for decades.

No doubt the work will continue.

Nuremberg Precedent

Although the effort to hold leaders personally responsible for crimes of state goes back to the late 19th century, the first significant watershed was the 1946 judgment of the first Nuremberg trial.

A panel of judges from the U.S., U.K., France and the Soviet Union held German leaders personally responsible and punished them for crimes of state, including aggression.

The roots of the Yugoslavia and Rwanda Tribunals are largely in Nuremberg as are those of the International Criminal Court, although neither ad hoc tribunal charter included aggression.

One of the most significant achievements of the Yugoslavia Tribunal was the first ever indictment of an acting head of state, Yugoslav President Slobodan Milosevic, for crimes committed while still in office.

According to the I.C.T.Y. Web site, “the question is no longer whether leaders should be held accountable, but rather how can they be called to account.”

A major problem with the two courts was that they were each temporary responses to a specific set of separate circumstances which had considerable legal overlap.

The ad hoc approach was clearly limited by issues of logistics, expenses and repetition, many of which could have been more effectively addressed by a permanent court.

The achievements of the two tribunals as well as their limitations gave new impetus to the decades-old effort to establish a permanent International Criminal Court.

On July 17, 1998, the great majority of countries of the world voted in Rome, 120 to 7 with 21 abstentions, to establish the International Criminal Court. With the signature and ratification of 60 states the International Criminal Court came into being on July 1, 2002.

Six years later, as of last June 1, 106 countries have ratified the Rome Statute. Written into the Statute is a provision for member states to meet seven years after the entry into force (2009) to consider amendments.

Because the Statute is the result of decades of evolution and five weeks of intense negotiations between 148 countries, it is full of compromises. Even so, it is remarkable.

Never before has the world community united to create an institution invested with legal authority to write, adjudicate and enforce international criminal law. And, despite compromises, it is remarkable for the degree to which so many were able to agree on some basics.

Most important among these is a set of “core crimes” over which the Court has jurisdiction. These are: 1) genocide, 2) crimes against humanity, 3) war crimes and 4) aggression (the waging of aggressive war).

Conflict over Definition

Unfortunately, the Rome conference was unable to agree on a definition of aggression.

Unwilling to leave out “the supreme international crime” containing within itself the “accumulated evil of the whole,” the conference compromised, including aggression among the ”core crimes” but leaving it undefined in anticipation of a future amendment defining the crime and setting out conditions for jurisdiction.

One of the weaker aspects of the Statute is, of course, enforcement. As American Professor Leila Nadya Sadat, a delegate to the Rome conference wrote: “Here classic paradigms of sovereignty in which each state is master of its territory prevail. …The I.C.C.’s ability to effectively enforce international criminal law remains an open question.”

Unfortunately, a major obstacle to the I.C.C., enforcement and otherwise, has been the United States. The U.S. was one of seven countries which voted against the Statute — part of a list which included Iraq, Libya, Israel, Qatar and Yemen. Despite the vote, President Clinton signed the Statute on Dec. 31, 2000.

Less than two years later President George W. Bush “unsigned it.”

Other countries such as Russia and Egypt have signed but not ratified the Rome Statute. Still others such as China and India remain opposed.

If major countries such as Russia, China, India and especially the U.S. ever do decide to join and throw their considerable weight behind the I.C.C. here are a few examples of what the organization may eventually be capable of:

--”Treaty crimes” such as hijacking and narcotics trafficking, while not yet covered by the Statute, are slated to be discussed and possibly defined and amended into the Rome Statue as early as 2009. There would be an international institution with the legal power to apprehend, try and punish future Osama Bin Ladens without the catastrophic destruction and waste of war.

--The genocide visited by Saddam Hussein upon the Iraqi Kurds (1984-1991) perhaps could have been stopped, or at least punished upon authorization by the Security Council.

--There will be a venue for resolving murky situations such as the recent violence in Georgia, where a court of law could be the only place to finally decide if and when aggression and/or other crimes occurred and who was responsible.

--Assuming that aggression is eventually defined and fully included in the Rome Statute, those who initiate wars of aggression, such as the U.S. invasion of Iraq, will do so knowing there is at least the legal possibility of arrest, trial and prison.

Ironically the United States led the way in establishing the precedent for this when the Allies at Nuremberg tried and punished Germans for aggression and other crimes.

At the moment, the prospect of an American president sitting in the dock of the International Criminal Court seems remote.

It should be remembered, however, that in 1973, nobody would have believed that 33 years later General Augusto Pinochet would die under house arrest in Chile, facing trial on charges of human rights abuses, including kidnapping and murder, committed during the dark days of Chile’s military government.

A lot can happen in three decades. Leaders come and go. Power ebbs and flows. National and international perspectives and relationships change.

Imagine the chilling effect the real prospect of arrest, trial and prison for starting a war would have on a head of state considering aggression. Such a simple and powerful deterrent could move humanity significantly closer to realizing the original vision of the United Nations: a world without war.

There simply can be no lasting peace without justice.

To quote Professor Sadat, “As humanity struggles to overcome its darkest impulses in this new millennium, impulses that led not only to the slaughter of hundreds of millions during the 20th century, but threaten our very survival, the creation of effective international institutions and regimes is essential … to transform the prohibitions on the commission of genocide, war crimes, crimes against humanity and aggression into real tools to deter the cruel and powerful.”

Next year in New York, the I.C.C. Special Working Group on the Crime of Aggression is scheduled to conclude their work on a definition of aggression for inclusion as an amendment to the Rome Statute.

A review conference of the full I.C.C. Assembly will convene in 2010 to consider this and other amendments.

The work continues.

Peter Dyer is a freelance journalist who moved with his wife from California to New Zealand in 2004. He can be reached at p.dyer@inspire.net.nz

Bush, Karadzic, de Veillepin and the ICC: Scoop

by Peter Dyer

Q: What do Radovan Karadzic, former French Prime Minister Dominique de Veillepin and George W Bush have in common?

A: Each lives under the slowly growing shadow of a body of international criminal law.

This law is evolving towards the ultimate goal of holding even the most powerful leaders personally accountable for crimes committed by the State.

It is manifested in international agreements and statutes such as the Geneva Conventions, case law, two ad hoc war crimes tribunals (Yugoslavia and Rwanda), and a permanent International Criminal Court.

Radovan Karadzic, former Bosnian Serb President, has been arrested and now awaits trial in The Hague before the International Criminal Tribunal for the former Yugoslavia (ICTY) on charges of genocide and crimes against humanity.

Dominique de Veillepin is one of 33 French military and political leaders who have recently been accused by the Rwandan government of arming, advising and in some cases, directly participating in genocide and crimes against humanity in Rwanda in 1994.

George W Bush ordered “Operation Shock and Awe”-the unprovoked invasion and occupation of Iraq- presenting the world with a clear prima facie case of aggression.

Aggression, in the words of the judgment delivered at the first Nuremberg Trial, is “the supreme international crime”.

Personal accountability by state leaders for the crime of aggression-initiating an unprovoked war-is the most profound as well as the most difficult goal of the continuing evolution of international criminal law.

For this reason, and because Mr Bush is head of the world’s most powerful state, clearly the shadow of the law is at present less ominous to him than to Mr Karadzic or perhaps to Mr de Veillepin.

But there is no statute of limitations for any of these crimes. Things change over time, often unpredictably. And the international community has been working steadily towards this difficult goal for decades.

No doubt the work will continue.

Although the effort to hold leaders personally responsible for crimes of state goes back to the late 19th century, the first significant watershed was the 1946 judgment of the first Nuremberg trial.

A panel of judges from the US, UK, France and the Soviet Union held German leaders personally responsible and punished them for crimes of state, including aggression.

The roots of the Yugoslavia and Rwanda Tribunals are largely in Nuremberg as are those of the International Criminal Court, although neither ad hoc tribunal charter included aggression.

One of the most significant achievements of the Yugoslavia Tribunal was the first ever indictment of an acting head of state, Yugoslav President Slobodan Milosevic, for crimes committed while still in office.

According to the ICTY web site,

“…the question is no longer whether leaders should be held accountable, but rather how can they be called to account.”

A major problem with the two courts was that they were each temporary responses to a specific set of separate circumstances which had considerable legal overlap. The ad hoc approach was clearly limited by issues of logistics, expenses and repetition, many of which could have been more effectively addressed by a permanent court.

The achievements of the two tribunals as well as their limitations gave new impetus to the decades-old effort to establish a permanent International Criminal Court.

On 18 July, 1998, the great majority of countries of the world voted in Rome, 120 to 7 with 21 abstentions, to establish the International Criminal Court. With the signature and ratification of 60 states, including New Zealand, the International Criminal Court came into being on 1 July, 2002,

Six years later, as of 1 June, 106 countries have ratified the Rome Statute. Written into the Statute is a provision for member states to meet seven years after the entry into force (2009) to consider amendments.

Because the Statute is the result of decades of evolution and five weeks of intense negotiations between 148 countries, it is full of compromises. Even so, it is remarkable.

Never before has the world community united to create an institution invested with legal authority to write, adjudicate and enforce international criminal law. And, despite compromises, it is remarkable for the degree to which so many were able to agree on some basics.

Most important among these is a set of “core crimes” over which the Court has jurisdiction. These are: 1) genocide, 2) crimes against humanity, 3) war crimes and 4) aggression (the waging of aggressive war).

Unfortunately, the Rome conference was unable to agree on a definition of aggression. Unwilling to leave out “the supreme international crime” containing within itself the “accumulated evil of the whole”, the conference compromised, including aggression but leaving it undefined in anticipation of a future amendment defining the crime and setting out conditions for jurisdiction.

One of the weaker aspects of the Statute is, of course, enforcement. As American Professor Leila Nadya Sadat, a delegate to the Rome conference wrote:

“Here classic paradigms of sovereignty in which each state is master of its territory prevail…The ICC’s ability to effectively enforce international criminal law remains an open question.”

Unfortunately, a major obstacle to the ICC, enforcement and otherwise, has been the United States. The US was one of seven countries which voted against the Statute—part of a list which included Iraq, Libya, Israel, Qatar and Yemen. Despite the vote, President Clinton signed the Statute on December 31, 2000.

Less than two years later President George W. Bush “unsigned it”.

Other countries such as Russia and Egypt have signed but not ratified the Rome Statute. Still others such as China and India remain opposed.

If major countries such as Russia, China, India and especially the US ever do decide to join and throw their considerable weight behind the ICC here are a few examples of what the organization may eventually be capable of:

1)”Treaty crimes” such as hijacking and narcotics trafficking, while not yet covered by the Statute, are slated to be discussed and hopefully defined and amended into the Rome Statue as early as 2009.

There would be an international institution with the legal power to apprehend, try and punish future Osama Bin Ladens without the catastrophic destruction and waste of war.

2) The genocide visited by Saddam Hussein upon the Iraqi Kurds (1984-1991) perhaps could have been stopped, or at least punished upon authorization by the Security Council.

3) Assuming that aggression is eventually defined and fully included in the Rome Statute, those who initiate wars of aggression, such as the U.S. invasion of Iraq, will do so knowing there is at least the legal possibility of arrest, trial and prison.

Ironically the United States led the way in establishing the precedent for this when the Allies at Nuremberg tried and punished Germans for aggression and other crimes. At the moment the prospect of an American president sitting in the dock of the International Criminal Court seems remote.

It should be remembered, however, that in 1973, nobody would have believed that 33 years later General Augusto Pinochet would die under house arrest in Chile, facing trial on charges of human rights abuses, including kidnapping and murder, committed during the dark days of Chile’s military government.

A lot can happen in three decades. Leaders come and go. Power ebbs and flows. National and international perspectives and relationships change.

Imagine the chilling effect the real prospect of arrest, trial and prison for starting a war would have on a head of state considering aggression. Such a simple and powerful deterrent could move humanity significantly closer to realizing the original vision of the United Nations: a world without war.

There simply can be no lasting peace without justice. To quote Professor Sadat, “

As humanity struggles to overcome its darkest impulses in this new millennium, impulses that led not only to the slaughter of hundreds of millions during the 20th century, but threaten our very survival, the creation of effective international institutions and regimes is essential…to transform the prohibitions on the commission of genocide, war crimes, crimes against humanity and aggression into real tools to deter the cruel and powerful.”

Next year in New York the ICC Special Working Group on the Crime of Aggression is scheduled to conclude their work on a definition of aggression for inclusion as an amendment to the Rome Statute.

A review conference of the full ICC Assembly will convene in 2010 to consider this and other amendments.

The work continues.

*************

Blackwater grand jury hears from witnesses

Three Iraqis, including the father of a slain 9-year-old boy, appeared Tuesday before a federal grand jury investigating a deadly Sept. 16 shooting in Baghdad involving Blackwater Worldwide contractors.

The Iraqis were escorted to the closed-door session by federal prosecutors who are overseeing the U.S. investigation into whether Blackwater security guards illegally fired into a crowded Baghdad intersection, resulting in the deaths of 17 Iraqi civilians.

An Iraqi police major told The Associated Press in Baghdad that two of his officers were flown to the United States several days ago to testify. The major, who asked to remain anonymous because he was not authorized to speak publicly, said they were expected to remain in the United States for two weeks.

It was not known whether the officers, one of whom was identified as Serhan Dhiab, were among the three men meeting Tuesday with grand jurors at the federal courthouse in Washington.

One of the three Iraqis was Mohammed Abdul-Razzaq, whose son Ali, 9, was killed in the shooting. He left court holding what appeared to be a child's plush toy and a family portrait.

After about three hours behind closed doors, the men did not talk to reporters. But before leaving Iraq, Abdul-Razzaq told ABC News he agreed to testify because he wanted justice for "a crime that needs to be punished."

"It was a true massacre, a slaughter," said Abdul-Razzaq.

ABC identified Hussan Abdurrahman as one of the officers brought to testify. He told the network in a separate interview that the Blackwater convoy never was in danger.

"There were zero armed men in that area," said Abdurrahman.

Grand jury testimony is secret but Iraqi witnesses to the shooting have described it publicly as an unprovoked attack in which the U.S. contractors killed motorists, bystanders and children.

Blackwater, hired by the State Department to guard U.S. diplomats in Iraq, says its contractors were responding to a Baghdad car bombing when they were ambushed by insurgents, touching off a firefight.

The company is not a target of the investigation. The case has focused on as few as three or four guards and whether they acted illegally.

Over the past seven months, the grand jury has heard from Blackwater security guards, company managers and U.S. military officials.

The shooting enraged the Iraqi government, which originally sought to expel Blackwater and its 1,000 employees from the country, and strained diplomatic relations between Washington and Baghdad.

The shooting also raised questions at home and abroad about the U.S. reliance on heavily armed private contractors in war zones.

This case belongs at the ICC ..

and Blackwater should not be on the US Payroll

Its crimes are MANY

Somewhere in my videos is the actual video of the

"incident"

Re-Evaluate Our Position Toward the International Criminal Court

Center for American Progress

April 15, 2008

Congress should re-examine its stance towards the International Criminal Court—the first permanent international court created to try those responsible for the most egregious international crimes—in the lead-up to the ICC Review Conference in 2009, when parties to the ICC can propose amendments to the Court’s statute.

The United States played an active role in conceptualizing the ICC, but since the statute came into force in July 2002 (without the United States as a participant) the Bush administration’s approach toward the institution has varied from uncooperative to downright hostile. As of today, 104 states have become parties to the statute,with the United States joining countries such as China, Cuba, North Korea, Iraq, Libya, and Burma in opposing the Court.

The ICC is an essential building block in the evolution of international and criminal law that the United States should be helping to lead, not tear down. A strong ICC could help deter genocide, crimes against humanity, and war crimes through the threat of accountability. It could also foster reconciliation in war-torn countries and encourage states to hold their own citizens accountable for serious violations of international humanitarian law and human rights.

The ICC is still developing a track record, but the Court has made significant progress so far. In its first few years, it has opened investigations into grave alleged crimes in Uganda, the Democratic Republic of the Congo, Sudan (Darfur), and the Central African Republic. U.S. critics of the ICC have consistently stated that the Court will bring politically motivated cases against U.S. soldiers and other citizens. Yet precisely because the United States was deeply involved in the creation of the ICC statute, the Court is designed to be a fair and independent judicial body, with one of the most expansive lists of due process guarantees ever created.

The ICC contains numerous safeguards to prevent politically motivated or frivolous cases from being brought against Americans. As Sen. Patrick Leahy (D-VT), chairman of the Appropriations Subcommittee on Foreign Operations stated,

“The ICC has refuted its critics, who confidently and wrongly predicted that it would be politicized and manipulated by our enemies to prosecute U.S. soldiers.”

Congress should lay the groundwork for the next administration and see the 2009 Review Conference as a chance for a fresh start with the ICC. While U.S. Senate ratification of the treaty before the Review Conference would be the ideal course of action, as a first step Congress should call upon the Bush administration (through a concurrent resolution or in an appropriations bill) to participate in both the ICC Assembly of States Parties and the Review Conference as an observer. As an observer, the United States would be able to participate significantly in Assembly debates, as well as suggest and respond to proposals, even if it does not become a party to the statute.

Congress should also hold hearings on the ICC in advance of the Review Conference to assess America’s position toward the Court. Such hearings should include military experts, officials from several ad hoc international tribunals in which the United States is involved, and international criminal law practitioners and scholars.

For more information on the Center's policies on the United Nations, please see:

• Congress and the United Nations: How to Build a Better Relationship and Move Forward on Needed U.N. Reforms by Spencer P. Boyer

Israel is holding 365 Palestinian children captive in its prisons

Tuesday February 05, 2008 00:05 by IMEMC News saed at imemc dot org

The Palestinian Center for Detainees’ Studies issued a press release on Monday revealing that Israel is currently holding more than 365 Palestinian children captive in its prisons, including 100 children who are 13-15 years old.

The Center reported that the underage detainees are subjected to harsh treatment and torture and that their continued arrest comes in violation to the International Law and the basic principles of human rights.

The Center also stated that all of the child detainees, currently imprisoned by Israel, were kidnapped by the army since during the Al Aqsa Intifada which started in 2000.

Ahmad Shawahna, head of the center stated, that the Israeli Prison Administration is subjecting the detainees to physical and psychological pressures in addition to threatening them to attack their families if they do not confess to charges filed against them.

Shawahna appealed the International Community to practice pressure on Israel in order to stop its violations against the detainees, especially child detainees, and added that these violations should be labeled as War Crimes.

The Afghan Genocide - important links

Top US Lawyer And UNICEF Data Reveal Afghan Genocide

By Dr Gideon Polya

08/02/08 "Countercurrents" -- - The United States invaded Afghanistan in October 2001 with the ostensible excuse of the Afghan Government’s “protection” of the asserted Al Qaeda culprits of the 9/11 atrocity that killed 3,000 people. In the light of as many as 6.6 million post-invasion excess deaths in Occupied Afghanistan as of February 2008 (see below), it is important to consider the major problems with this Bush-ite and neo-Bush-ite version of events as summarized below:

1. The US has a long history of “questionable” excuses for war e.g. the explosion of the Maine (the Spanish-American War), the sinking of the US arms-carrying Lusitania (entry into World War 1), the Pearl Harbor attack with now recognized US foreknowledge (entry into World War 2), North Koreans provoked into invading their own country (the Korean War), the fictitious Gulf of Tonkin incident (the Vietnam War; recently similarly but unsuccessfully attempted in the Persian Gulf as an “excuse” to attack Iran) and the extraordinary 1,000 post-9/11 lies told by Bush Administration figures, most notoriously about non-existent Iraqi Weapons of Mass Destruction (the Iraq War; post-invasion excess deaths now about 1.5-2 million).

2. The US supported and funded Al Qaeda and the Taliban from the late 1970s to the early 1990s associated with its anti-Soviet policies (see William Blum’s “Rogue State”).

3. Oil- and hegemony-related plans for the invasion of Afghanistan were all ready to go before 9/11.

4. No Afghans were involved in the 9/11 attack according to the “official 9/11 story” of the egregiously dishonest Bush Administration.

5. Even the right-wing, neo-Bush-ite Democrat Al Gore in his recent book “The Assault on Reason” (Chapter 6, National Insecurity, pp178-179) condemns the Bush Administration for effective passive complicity in the 9/11 atrocity i.e. they let it happen, just as a fore-warned US Administration permitted the Pearl Harbor attack to happen in 1941: “Their behaviour, in my opinion, was reckless, but the explanation for it lies in hubris, not in some bizarre conspiracy theory …These affirmative and repeated refusals to listen to clear warnings [prior to 9/11] constitute behaviour that goes beyond simple negligence. At a minimum, it represents a reckless disregard for the safety of the American people.”

6. However, further to point #5, the extremely eminent former 7-year President of Italy, law professor, senator for life and long-term Western intelligence intimate Francesco Cossiga recently (November 2007) told one of Italy's top newspapers that (a) the US CIA and Israeli Mossad committed the 9/11 outrage in order to further US and Zionist aims and that (b) major Western intelligence agencies are well aware of this (for details and documentation see: http://mwcnews.net/content/view/18569/26/ ).

As of February 2008, analysis of UNICEF data (see UNICEF statistics on Occupied Afghanistan: http://www.unicef.org/infobycountry/afghanistan_statistics.html ) allows the following estimate of 3.3-6.6 million post-invasion excess deaths (avoidable deaths, deaths that should not have happened) in Occupied Afghanistan:

1. annual under-5 infant deaths 370,000.

2. post-invasion under-5 infant deaths 2.3 million (90% avoidable).

3. post-invasion avoidable under-5 infant deaths 2.1 million.

4. post-invasion non-violent excess deaths 3.2 million (2.3 million /0.7 = 3.3 million; for impoverished, worst case Third world countries the under-5 infant deaths are about 0.7 of total non-violent excess deaths (see A Layperson’s Guide to counting Iraq deaths: http://mwcnews.net/content/view/5872/26/ ).

5. post-invasion violent deaths about 3.3 million (assuming roughly 1 violent death for every non-violent avoidable death i.e. roughly as in US-occupied Occupied Iraq where the ratio of violent deaths to non-violent excess deaths is 0.8-1.2 million to 0.7-0.8 million; see Continued Australian and US Coalition war crimes in Occupied Iraq: http://ruddaustraliareportcard.blogspot.com/2008/01/rudd-australia-report-card-1-continued.html ).
6. upper estimate of non-violent plus violent post-invasion excess deaths 3.3 million + 3.3 million = 6.6 million excess deaths.

For detailed documentation of the above see “Australian complicity in continuing Afghan genocide”: http://ruddaustraliareportcard.blogspot.com/ . A major cause of the carnage is revealed by WHO (see: http://www.who.int/en/ ) – the “total annual per capita medical expenditure” permitted by the Occupiers in Occupied Afghanistan is a mere $19 – as compared to as compared to $2,560 (the UK), $3,123 (Australia) and $6,096 (the US). This is in gross contravention of Articles 55 and 56 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (see: http://www.unhchr.ch/html/menu3/b/92.htm ) which unequivocally demands that the Occupier must provide life-sustaining food and medical requisites to its Conquered Subjects “to the fullest extent of the means available to it”. Compounding this is the appalling reality of 4 million Afghan refugees.

What is happening in Afghanistan is an Afghan Holocaust. One sees that post-invasion under-5 infant deaths in Occupied Afghanistan (2.3 million) vastly exceeds the number of Jewish children murdered by the Nazis in World War 2 (1.5 million). The upper estimate of post-invasion violent and non-violent excess deaths in Occupied Afghanistan (6.6 million out of an average 2001-2008 Afghan population of about 25 million) exceeds the number of Jews murdered by the Nazis in World War 2 ( 5.6 million out of 8.2 million Jews in German-occupied Europe in the period 1941-1945) (see: Gilbert, M. (1969), Jewish History Atlas (Weidenfeld & Nicolson, London) and Gilbert, M. (1982), Atlas of the Holocaust (Michael Joseph, London)).

Article 2 of the UN Genocide Convention

(see: http://www.edwebproject.org/sideshow/genocide/convention.html ) states “

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.”

From the data summarized above, it is apparent that the Afghan Holocaust is also an Afghan Genocide as defined by the UN Genocide Convention.

Outstanding US Law academic Professor Ali Khan of the Washburn University School of Law, Topeka, Kansas has also described what is going on in Afghanistan as genocide i.e. an Afghan Genocide (see “NATO Genocide in Afghanistan”: http://mwcnews.net/content/view/19831/42/ ).

The key legal verdict of Professor Khan is as follows: “The Convention on the Prevention and Punishment of the Crime of Genocide (entered into force, 1951) is binding on all states including the 26 member states of NATO. The Genocide Convention is jus cogens, the law from which no derogation is allowed. It provides no exceptions for any nation or any organization of nations, such as the United Nations or NATO, to commit genocide. Nor does the Convention allow any exceptions to genocide "whether committed in time of peace or in time of war." Even traditional self-defense - let alone preemptive self-defense, a deceptive name for aggression – cannot be invoked to justify or excuse the crime of genocide.”

Professor Khan proceeds to analyse the campaign of extermination of the Indigenous Afghan Taliban in Afghanistan in relation to International law. He states that in relation to Article 2 of the UN Genocide Convention “In murdering the Taliban, NATO armed forces systematically practice on a continual basis the crime of genocide that consists of three constituent elements - act, intent to destroy, and religious group.” His detailed analysis can be succinctly summarized as follows:

1. “The Genocidal Act” is prohibited as defined in the Genocide Convention as “a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” – but is is clearly occurring on a huge scale as indicated by the above data.

2. “The Genocidal Intent” is expressed in the Genocide Convention as “intent to destroy, in whole or in part, a national, ethnic, racial or religious group”- but is clearly present in the statements of the NATO leaders. The “Intent” is also apparent from the sustained, resolute conduct of this horrendously bloody war for over 6 years.

3. “The Genocidal targeting of a Religious Group” is clearly prohibited by the Genocide Convention by “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group” – but is clearly being carried out with the accompaniment of immense Islamophobic propaganda in the West.

Professor Khan concludes: “It may, therefore, be safely concluded that NATO combat troops and NATO commanders are engaged in murdering the Taliban, a protected group under the Genocide Convention, with the specific intent to physically and mentally destroy the group in whole or in part. This is the crime of genocide.”

As an agnostic humanist I certainly don’t care for the Taliban beliefs – but what agnostic humanists (such as myself) or people of other philosophic persuasions think about the religious beliefs and interpretations of the Taliban is beside the point from the perspective of the UN Genocide Convention.

And while I strongly object to human rights violations by the Taliban (especially in relation to women and application of their extreme interpretations of Sharia Law) one has to objectively give credit to the Taliban for (a) bringing Peace through victory in the middle 1990s and (b) for destroying 95% of the Afghan opium production in 2001 (as well of course banning the vastly more deadly use of alcohol and for prohibiting Afghan Government employees from the even more deadly practice of smoking tobacco in 1997). Smoking, alcohol and illicit drugs kill about 7 million people annually, the breakdown being 5 million (tobacco), 1.8 million (alcohol) and 0.2 million (from illicit drugs, about half opiate drug-related).

It can be estimated that 0.6 million people have died world-wide due to opiates in the last 6 years, about 0.5 million of these deaths being due to US Alliance restoration of the Taliban-destroyed Afghan opium industry from 5% of world market share (2001) to 93% (2007) (see UN Office on Drugs and Crime, UNODC, World Drug Report 2007: http://www.unodc.org/unodc/world_drug_report.html ).

The 0.5 million global US-NATO-linked opiate drug-related deaths plus 6.6 million post-invasion Afghan excess deaths bring an upper estimate of the carnage due to the US invasion and occupation of Afghanistan to 7.1 million deaths. If we include excess deaths associated with UK-US actions against Iraq in the period 1990-2008 (about 4 million) then the gruesome carnage of the Bush I plus Bush II Asian Wars now totals about 11 million excess deaths (and this ignores the impact of the Bush Wars through oil price rises and other factors on Third World avoidable deaths).

Occupied Afghanistan is the New Auschwitz of the US and its complicit allies (including former Axis countries Germany and Japan who have on US instigation joined the US-NATO Afghan Genocide)

(see: http://mwcnews.net/content/view/7616/26/ ).

Those Bush-ite and neo-Bush-ite politicians, military and Mainstream media executives complicit in the Afghan Genocide should be arraigned before the International Criminal Court

(see: http://ruddaustraliareportcard.blogspot.com/ ).

In his 2005 Nobel Prize Acceptance Speech (see: http://www.countercurrents.org/arts-pinter081205.htm ), UK playwright Harold Pinter urged the arraignment of Bush and Blair before the International Criminal Court for war crimes and stated “How many people do you have to kill before you qualify to be described as a mass murderer and a war criminal? One hundred thousand? More than enough, I would have thought.”

Eleven million? More than enough, I would have thought.

Dr Gideon Polya published some 130 works in a 4 decade scientific career, most recently a huge pharmacological reference text "Biochemical Targets of Plant Bioactive Compounds" (CRC Press/Taylor & Francis, New York & London, 2003). He has just published “Body Count. Global avoidable mortality since 1950” (G.M. Polya, Melbourne, 2007: http://mwcnews.net/content/view/1375/247/ and http://globalbodycount.blogspot.com/ ).

Click on "comments" below to read or post comments

Comments (43) Comment (0)

Rule of Law, Defined: http://www.nazisociopaths.org/mo...ticle.php/c1/ 34

Purpose of, Reasons For: http://www.nazisociopaths.org/mo....article.php/ 36

Mathematics of Rule (explains current economic stall):
http://www.nazisociopaths.org/mo...ticle.php/c1/ 32

A real world application:
http://www.divorcefraud.org/modu....article.php/ 21

Most in Holland know that if they don't slavishly follow the US/UK managers inhuman quest for power and profit, The Hague will be invaded by US troops. War criminal Bush even signed a law, The Hague invasion Act, concerning this idiocy. - Url.: http://www.hrw.org/press/2002/08.../ aspa080302.htm

Right now they are not respecting Human Rights, nor honesty and justice at the International Criminal Court, and don't even care to answer if one has the rightful question: murder is murder, or? - Url.: http://www.indymedia.org.uk/en/2.../03/ 336156.html

But none of all compliant cowards at the ICC ever answered...

More at APFN - Url.: http://disc.server.com/discussio...MESSAGE% 20BOARD

We are many in Holland trying to get war criminals in some kind of 'honest' court - and it's a hell of a battle. It must be done however, before they kill us all. - Url.: http://tinyurl.com/662pp

The 'Judas Millers' pouring out their propaganda at the NYT know this too. They know that 9/11 is an inside job by their own managers who triggered a new series of genocides for power and profit, but still they keep writing and publishing this kind of deception crap, instead of investigating the latest horrendous crimes perpetrated by the humanoids running the US and bleeding its colonies too. They think they are the 'chosen', the 'untouchables' - [http://tinyurl.com/yaojp9] - which since ages make the money and their own laws. In reality, and without most of us knowing it, this group has been running all the 'central banks' via their Swiss HQ in Basel, the BIS Bank of International Settlements - Url.: http://tinyurl.com/y6xmed

BLACKWATER: Legal Remedy Recommendation

Personal Opinions

Disclaimer: These are not statements of fact, but private, personal opinions which may or may not be widely held, and are not statements of law; nor are they assertions of any judicial findings from any tribunal.

It doesn’t matter if there are “holes” in US laws; Geneva remains unblemished.

Blackwater can be adjudicated under Geneva

The laws of war are binding on all combatants, regardless their willingness to be bound by the laws of war; or their belief about their accountability to any law. Combatants acting with the belief that they are not accountable to any law impermissibly allows combatants to descend to barbarism, in contravention to the objectives of Geneva in regulating combat operations.

When combatants ignore the laws of war; or, through their conduct and statements, show they are not willing to be bound by the laws of war, then the protections of the laws of war may be denied by a competent tribunal. Justice is not served when employees presuming that no laws of war hold them accountable; and/or act outside the law, yet are granted shields and immunities not afforded to similarly situated prisoners. It appears the following legal conclusions are reasonable by a grand jury, inter alia:

All evidence gleaned from the Blackwater employees was made without any _lawful_ promise by a competent _tribunal_ to grant that immunity;

All promises Blackwater employees, while under interrogation for alleged war crimes, were or should have been known to be methods to induce intelligence gathering, and secure information in a combat environment; and any method to glean information should foreseeably been known to include any method, including "foreseeable torture or abuse" including false or unenforceable promises by interrogators outside the tribunal;

Blackwater employees knew, or should have known, that the grant of immunity was not by a competent tribunal; any promise of immunity they knew could only be enforce by a tribunal; any promise of immunity by an interrogator or fact finding was or should have been known to be not enforceable as a right of any defendant acting outside US laws, or conducting their military affairs as if US laws or Geneva were not applicable;

Blackwater employees were not lawful combatants; were not protected by US law; nor were they in a position in this situation in Iraq to negotiate for protections of any laws related to immunity, shields, agreements, or contracts;

Blackwater employees and legal counsel did not reasonably conduct themselves within all legal requirements; in doing so, they do not appear to be entitled to privileges afforded only to lawful combatants;

Adverse inferences are warranted. The destruction of the evidence on the vehicles was, or should have been known to be related to an alleged effort to spoil evidence, in contravention to reasonable standards of conduct Blackwater employees knew or should have known were applicable in a serious incident; competent counsel should have immediately known that the vehicles should have been safeguarded as evidence; assertions that the vehicles "had" to be returned immediately are not supported by a reasonableness standard, especially given their alleged involvement with a serious alleged war crime involving non-combatant Iraqi civilians;

All evidence gleaned from Blackwater should be admissible; all evidence of spoliage should be fully admissible to The Hague and or war crimes tribunal, with adverse inferences. The information was obtained under interrogation conditions where Blackwater employees knew, or should have known, they might be subject to promises that were not enforceable, or they were not entitled; therefore,

Blackwater employees should be DENIED the chance to rely on any promise of immunity; the evidence gleaned through these interrogations should not be shielded; and the promised immunity is not enforceable.

Geneva does not recognize, as a defense to war crimes, that conduct is a "state secret". Such a legal conclusion would impermissibly permit perpetrators of war crimes to hide evidence of their Geneva violations behind a shield they knew, or should have known they could not reasonably expect any tribunal to recognize. Until the United States court system is brought fully under Geneva, it is our view that all judicial proceedings related to Blackwater, rendition, Guantanamo, and prisoner abuse are not competent; and not consistently enforcing Geneva relative to all detaining powers, combatants, non-combatants, and civilians.

Any court which refuses to enforce fully the laws of war, including on issues of Rendition, and inconsistently grant immunities and privileges to lawful or unlawful combatants should be subject to the same Nuremberg proceedings of the Justice Trial.

It is foreseeable that Members of the US Supreme Court could be adjudicated with war crimes before The Hague in re their alleged refusal to fully enforce Geneva against all combatants and detaining powers. The Hague appears fully positioned to impose like retaliation and reciprocal action, as permitted under Geneva: It too may assert its rendition program is a "state secret" of The Hague. The US Supreme Court, and for the most part US federal Courts and lawyers appear to be on the wrong side of the laws of war and Geneva Conventions; and the Justices and current/former US government legal counsel, in failing to fully enforce Geneva against all detaining powers, could foreseeably be rendered to The Hague/ICC. Whether The Hague seeks and secures the assistance of foreign powers outside the United States to enforce its "state secret rendition program to enforce Geneva before the ICC" remains to be seen.

If the above personal opinions and private views are not supported by US courts, then the best approach is to forward these cases to The Hague for adjudication. There is no statute of limitations.

Recommendation:

We urge the US to turn over to The Hague the Blackwater defendants; and release to The Hague all POWs held at Guantanamo for adjudication. The Hague can decide whether their detention was or was not lawful; and whether the evidence justifying their continued detention has or has not been a subsequent war crime. Then, The Hague can decide whether Blackwater leadership, US legal counsel, and US civilian policy advisors and civilian leadership should or should not be indicted for permitting, not stopping, or advising of these alleged war crimes.

Disclaimer: This is a draft opinion and personal view; not to be construed as a statement of law, nor a discussion of non-public information. All information below is gleaned through open sources and subject to revisions. Blackwater is not being accused of any crimes; all mentions of illegal warfare are to be construed as "alleged" war crimes; or "alleged unlawful combatants." All Blackwater employees are presumed innocent until proven guilty before a competent tribunal.

Some Blackwater employees are under investigation because they allegedly killed Iraqi civilians. The issue before the US Congress, Court, and Department of justice is the promise of immunity the State Department granted Blackwater: In exchange for truthful testimony, the Blackwater defendants allegedly involved were granted immunity. In December 2007, DOJ Staff briefed Congress about the problem: The State department immunity was not planned nor desired.

The question is whether evidence needed to convict the Blackwater employees could have been obtained without the grant of immunity; and, now that immunity has been granted, is there no possible way to prosecute any of the Blackwater employees.

In a broader context, the problem facing the US government is the issue of contractors used in a combat zone. This note is intended to provoke discussion and not be a legal argument for or against the US government policy or the Blackwater defendants.

The problem of operating outside US law and Geneva, yet expecting legal protections to be available

What is striking with the Blackwater situation and grant of immunity is Blackwater is alleged to be sitting on both sides of US Law: First asserting US laws do not apply to their conduct, or that they are subject to any prosecution; yet, also taking the opposite view: That regardless the ability of US prosecutors to prosecute Blackwater employees, Blackwater employees should rely on, and have the promise of immunity respected.

The inconsistency between US treatment of Guantanamo POWs and how Blackwater wants to be treated

Blackwater is asking that POWs held at Guantanamo not be a precedent for US treatment of Blackwater. This note argues the precedent -- rightly or wrongly -- of treatment of POWs and/or "unlawful combatants" at Guantanamo and Abu Ghraib should be relevant. The US cannot credibly ask that some be deprived of protections; while similarly situated personnel be entitled to unreasonable privileges outside their combatant status.

Using the precedent of US treatment of prisoners as a legal basis to revoke the promised immunity for Blackwater

When the US interrogated the Blackwater employees, the US granted immunity. However, let's consider the larger legal issues: When Blackwater was operaring in Iraq, they knew or should have known that the the legal nexus -- rightly or wrongly -- did not place them under any US jurisdiction.

This means -- focusing narrowly on the issue of whether the US could or could not prosecute; or whether the Blackwater employees could or could not rely on US laws -- the Blackwater employees should have have known they were niether subject to US laws for either prosecution nor protection.

Blackwater wants it both ways: They want to be immune to the US laws on issues of war crimes; yet, when it comes to legal protections, Blackwater wants to enjoy the US privilege of immunity in exchange for truthful testimony.

Blackwater legal counsel duties to fully prepare Blackwater employees for the legal nexus

This note argues that the proper legal framework which the Blackwater legal counsel should have made clear to the employees was: Since we are in Iraq and not subject to US laws, then we are not entitled to any protections; if you are promised anything under US laws to induce you to provide information, that promise -- because we are operating outside US laws -- is not a promise that is enforceable.

The specifics of Blackwater employees Combatant status

Under the laws of war, one requirement for a combatant to be a "lawful combatant" is that they are under the command of an organization leader, and subjected to various other standards including a system of discipline. That'ts the theory.

In practice, Blackwater is a special case:It's a contractor, but it is arguing -- and the US has implicitly accepted -- that Blackwater employees are "not under any US laws" while in Iraq.

Fine, let's accept that assertion: That, contrary to Geneva requirements in re "lawful combatants," Blackwter employees -- because they were acting utside US laws; and the US laws are asserted to be not applicable to their conduct -- should be classified as unlawful combatants: They were not acting under lawful authority responsible to a system of laws. Blackwater would argue that "no law" applies to them: Neither the laws of War in Geneva; nor US laws.

The problem with this assertion: _some_ laws must apply, otherwise we have barbarism. The issue is subtle: Just because "Blackwater and the US government agree that there are problems regulating Blackwater under US laws" it doesn't mean that Blackwater cannot be held accountable. The question becomes: Which standards would or should guide blackwater? The answer: Geneva and the Nuremberg precedents. Said another way: Even if the DOJ briefed Congress in December 2007 that they would have problems prosecuting Blackwater because of the immunity agreement, Geneva would be a source of law to guide the discipline process.

This note argues that a grant of immunity to a contractor deemed to be an unlawful combatant in this legal nexus -- is not one Blackwater should have relied on. Rather, when a contractor knows, asserts, and acts as if it is outside the law, for the purposes of privileges: It is outside the protections of those privildge. However, Blackwater appears to want it both ways: To be both "not subject to" either US law or Geneva as a standard of conduct; but entitled to protections of Geneva and US law respecting the promise of immunity.

This note argues the opposite: Once Blackwater acted outside the law, and agreed to engage in combat that was "not" subject to any law; and understood to be "not regulated" by Geneva, then BLackwater was stripped of any reasonable expectation that it could rely on any promise, agreement, or grant of immunity through US law.

Comparing Interrogations of POWs at Guantanamo to the INterrogation of Blackwater Employees

Let's revisit the US precedent of how the US treated POWs at Gurantanamo. Rightly or wrongly, the US DOJ said in Federal Court that the prisoners' evidence -- gleaned from alleged torture or waterboarding -- was "foreseeable"; and this was within the rules which the US was "allowed" to operate when interacting with the prisoners. They were deemed unlawful combatants while in custody, and were asserted to not enjoy any Geneva protections.

Let's take the above argument -- rightly or wrongly -- as the legal foundation or precedent the US government set. Whether that precedent was legal is secondary to the larger principle of Geneva: That similarly situated prisoners should be treated the same. Under Geneva, this principle was intended to mean that any protection provided to US troops under the UCMJ should be provided to prisoners held at Guantanamo; in practice this has been turned on its head. We leave that for another day.

Let's focus not on what Geneva intended, but what the US first did. Geneva creates a checking mechanism: If an army or military refuses to enforce, abide by, follow, respect or adhere to Geneva Convention requirements, constraints, or protections, then other nations on the principles of retaliation and reciprocity can commit like abuses.

Despite this principle of reciprocity, the US continued to mistreat Prisoners at Guantanamo, Abu Ghraib and Eastern Europe. Putting that aside, the issue with respect to Blackwater is: Should a "similarly situated" combatants be Blackwater employees and POWs at Guantanamo?

This note argues with a resounding, "Yes." Similarly situated means: Do the prisoners substantially enjoy the same conditions; have they engaged in the same kinds of conduct; and are they being subject to the same system of justice. If what was imposed on the Guantanamo POWs was "good enough" -- rightly or wrongly -- then those conditions should also be imposed on Blackwater.

Review

Blackwater's reliance on the promise of immunity is not reasonble. Legal counsel knew, or should have known, that Blackwater was acting outside US law and Geneva; and in doing so, could not reasonably rely on any promise only enforceable by US law. Once Blackwater agreed to allegedly violate Geneva, it lost all reasonable expectation that it could enjoy protections of US law; or that any promise made to any Blackwater employee was enforceable, or would be honored.

Rather, Blackwater employees, as the Gurantanamo POWs, were subjected to a system of interrogation. Under the balancing test of Geneva, once the US set the precedent for collecting evidence against Guantanamo POWs using coercion, then all other similarly situated prisoners -- including Blackwater employees -- should also expect to be subjected to similar coercive techniques, including false promises.

Once the US set the bar so low for the Guantanamo POWs that any evidence -- however obtained -- could be used against them, then this should have clearly told all Blackwater legal counsel and employees that they could be subjected to similar coercive techniques. Conversely, it would be inconsistent for the US to deprive POWs, protected under Geneva, of a right to challenge evidence; but then grant Blackwater, operating outside Geneva, privileges not afforded to similarly situated interrogation targets.

World Response

If we contrast the US approach to the Geneva POWs with how the Blackwater employees want to be treated, we'll understand the world reaction to the abuses in Iraq. Broadly, Geneva exists to ensure despite warfare, the treatment of non-combatants -- civilians, POWs, and others -- is humane and free from all abuse.

However, once the US treats one set of prisoners at Guantanamo -- who should be protected, because they are acting within the law -- yet, the US provides special favors to Blackwater -- despite their agreeing to operate outside the law, and not be subject to GEneva, despite its relevance -- the World views this as double dealing on the laws of war.

The US's problem is that its abused prisoners in contravention to Geneva; yet its granting legal protections to Blackwater that should not be granted to those operating outside the law. Once Blackwater crossed the line and agreed to operate outside US law, it lost a reasonable expectation that its employees could enjoy any protections of US laws.

Going Forward

A. Review Reasonableness of Reliance in this legal nexus

Blackwater employees have a problem. They've agreed to operated in a combat zone on the assumption that they are "outside" US laws and Geneva; yet, in truth, _some_ sort of legal system must be applicable. Indeed, even if Blackwater "agreed" to be immune to all prosecution as a condition of employment in Iraq, no reasonable person could rely on this promise as it would mean they "could" commit Genocide and not be prosecuted. This is unreasonable on its face; and in contravention to what Nuremberg established: There are some things, regardless the legal excuses, that are not legal and are war crimes.

This case appears to be such a case: A reasonable person working for Blackwater should have known there was some conduct -- regardless any promise of immunity as a condition of employment -- they could not engage. ANy promise that they were "not" subject to US laws is not reasonable in that it creates the false illusion that _no law_ would constrain them.

Putting that aside, this is what appears to have happened: Blackwater employees through they were, indeed, outside the law; and not subject to either the laws of war, UCMJ, or US Law. This is not only impermissible, but not reasonable. Because in asserting that "we are not subject to any law"-argument, Blackwater employees -- under the laws of war -- have allegedly engaged in unlawful combat: They've agreed to operate, rightly or wrongly, _outside_ a system of discipline, leadership, and laws that _is_ subject to rigorous oversight, command, and a legal foundation.

B. Review US Precedent At Guantanmo As Guidance For Reasonableness of Blackwater Assumptions As An Alleged Unlawful Combatant

Because they have stripped themselves of the status of "lawful combatant", we turn back to the US precedents of how "unlawful combatants" -- rightly or wrongly categorized -- _were_ treated; and what a _reasonable_ Blackwater employee and Geneva Counsel _should_ have done once they were legally no longer lawful combatant, but an alleged "unlawful combatant, subject to the Geneva principle of reciprocity."

Reasonable counsel should have said: "The US precedent at Guantanamo is relevant: Those alleged to be unlawful combatants were mistreated; if our employees are also unlawful combatants, we should reasonably expect to be mistreated in the same way." Recall, at Guantanamo, the POWs were subject to coercive interrogation: This should have told Blackwater employees: "Unlawful combatants will be treated harshly"; thus, when they were detained after allegedly killing the Iraqi civilians, those Blackwater employees were not reasonably relying on any grant under US law; rather, they were -- for purposes of this note only -- being subject to the same "interrogation tactics" which the Guantanamo POWs were subject: Deception.

C. Review Doctrine of Evidence Spoliage

Once they were "granted immunity" they should have known here was a formal investigation; and that the evidence in the vehicles should not be destroyed.

D. Examine Reasonableness of Expecting Any Privilege or Immunities While Allegedly Knowingly Operating Outside Geneva Protections, And Beyond A Reasonable Expectation of That Shield

Again, the Blackwater employees should have known the following: They were acting outside US laws and Geneva; they were not, as required of lawful combatants, acting under a system of discipline that _was_ consistent with Geneva; and yet were _unreasonably_ expecting to enjoy privileges of promises, immunity, and protections not afforded to similarly situated prisoners at Guantanamo.

Blackwater is asking that it stand on both sides of the aisle in re Geneva and the laws of war: That the laws do not apply to their conduct, but are only applicable when invoking shields. That fence sitting was _not_ a privilege granted to any POW at Guantanamo, but the opposite was true: Despite Geneva being applicable, it was not afforded; and despite protections being required, they were denied. Blackwater wants the opposite: To be outside the laws when it comes to respecting the leash on its use of power; but it wants to enjoy the shields of Geneva despite Blackwatrer not demonstrating it was, at all times, a lawful combatant subjecting itself to legal oversight.

E. Review Appearance of Justice

From what little we know, it appears the US government's problem is the precedent established at Guantanamo; Yet, it asks the world to forget Geneva when it comes to imposing like abuses against the similarly situated combatants under Blackwater. When the world sees this double standard on Geneva, the US support plummets.

F. Review ICC Jurisdiction, Benefits of ICC Adjudication

The way forward is for the US to wash its hands of the mess at Guanatanamo and Blackwater, and subject all US government legal counsel and Blackwater employees to ICC jurisdiction, for The Hague to adjudicate:
- To what extent did US legal counsel deprive POWs of protections;
- To what extent did Blackwater violate the laws of war, and unreasonably rely on legal protections and promises or privileges it was not, as an alleged unlawful combatant, to rely on during an interrogation

The issue isn't narrowly whether Blackwater was or wasn't properly treated, or whether the employees gave evidence they were or were not required to give; but whether the protections under Geneva have or have not been reasonably enforced to all combatants and civilians. The US and Blackwater have, by their actions, allegedly shown contempt for Geneva and laws of warfare, but should be respected by civilized nations.

The US government appears to be tainted: It cannot credibly gather evidence in this legal nexus; nor can it credibly enforce or revoke privileges or protections for one class of prisoners while denying to similarly situated prisoners the same protections and privileges. The way forward is for the US to accept that its legal community has not effectively enforce Geneva; and the civilian leadership want to inconsistently punish some combatants, while rewarding others despite their both engaging in alleged illegal warfare as unlawful combatants. Only the ICC can credibly differentiate between lawful or unlawful combatants at Guantanamo and Blackwater; and only the ICC can maintain an appearance of independence which justice requires. The Hague can decide whether evidence was or was not consistently gleaned through abuse, unlawful means; or obtained despite lawful reuses; or lawfully gleaned despite no reasonable reliance on any promise by the detaining power.

Recommendation

We urge the US to turn over to The Hague the Blackwater defendants; and release to The Hague all POWs held at Guantanamo for adjudication. The Hague can decide whether their detention was or was not lawful; and whether the evidence justifying their continued detention has or has not been a subsequent war crime. Then, The Hague can decide whether Blackwater leadership, US legal counsel, and US civilian policy advisors and civilian leadership should or should not be indicted for permitting, not stopping, or advising of these alleged war crimes.

More on the mercenary usage clusterfuck: TPM Muckraker

DoJ tells Congress: Prosecuting Blackwater for Nisour Square Shootings Will Be Mighty Difficult

By Paul Kiel - January 16, 2008

No surprise here:

Justice Department officials have told Congress that they face serious legal difficulties in pursuing criminal prosecutions of Blackwater security guards involved in a September shooting that left at least 17 Iraqis dead.

In a private briefing in mid-December, officials from the Justice and State Departments met with aides to the House Judiciary Committee and other Congressional staff members and warned them that there were major legal obstacles that might prevent any prosecution....

The officials from the Justice and State Departments “didn’t say they weren’t going to prosecute,” said one Congressional aide who attended the briefing. “They said there would be a lot of difficulties.”

To review: it's debatable whether Blackwater can even be prosecuted because they don't seem to be covered by any law. Beyond that, the State Department provided the Blackwater guards involved in the incident with limited immunity in order to get their version of events, thus further compromising the investigation. And don't forget that Blackwater quickly mended the trucks involved in the incident, destroying key evidence as to whether the guards were actually under attack when they opened fire (Blackwater says that State gave them the green light to do that).

So those are the difficulties. The DoJ did launch a grand jury investigation after the FBI determined that the guards had indeed opened fire without provocation. But don't hold your breath.