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The facts, the law and unanswered questions

Does the above photo of a soldier grinning over the corpse of a prisoner who walked into the Abu Ghraib prison healthy and then died in US custody with the marks of a beating on his body disturb you? For widely varying reasons, it offends many Americans and may have an effect on the upcoming US elections. Outside the United States, the photographs on this page and others have sharply polarized world opinion against the Americans.

In Panama a large majority opposed the US invasion of Iraq from the start, but despite that anti-American feelings here are muted, both in political circles and in the general public. Still, the torture scandal coming out of Iraq will surely make it much harder for the Bush administration to convince Panamanians that it is in this country's interests to support such American military adventures as Plan Colombia.

Meanwhile the US government is refusing to release what are said to be the most gruesome photos of torture in Iraq, there are arguments going on within the US military and society about how high up in the command structure responsibility --- if there should be any responsibility --- should rest, and all the facts are not on the public record. Nevertheless, some facts are known and the applicable laws are fairly clear.

The Geneva Convention Relative to the Treatment of Prisoners of War can be found on the Internet at http://www.unhchr.ch/html/menu3/b/91.htm. Some of its relevant provisions include:

"1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely....

"To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

"(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

* * *

"(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

"(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

In relation to both Afghanistan and Iraq, the Bush administration has frequently asserted that those held prisoner by the Unites States and its allies are "illegal combatants" who are not subject to protection by the Geneva Conventions. Guerrillas who hide their weapons and wear no distinctive uniform or otehr mark identifying them as combatants are not considered Prisoners of War (POWs) under the above-cited convention when they are capture. In that case, howeer, as detainees of an occupying power they still have a right to fair trials on allegations that they are illegal combatants. Moreover, whether or not POW status applies, other treaties to which the United States is a party prohibit torture.

While it is fashionable these days in some American circles to scoff at international law, the standards set forth in the applicable treaties are a part of US domestic law. That's because Article VI of the US Constitution provides that: "[A]ll treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land...."

The US Army's Major General Antonio M. Taguba, assigned to investigate allegations of wrongdoing at the Abu Ghraib prison, compiled a 6,000-page report on the affair --- most of which remains classified and unavailable to the public --- and concluded that fault lay with commanders of the seven low-ranking men and women who have been charged with crimes in the affair. Indeed, the above photo has been asserted by some of the defense attorneys as proof that higher-ranking officers, US intelligence agents and "civilian contractor" mercenaries were present and directing the filming of simulated homosexual acts among the detainees, so as to use them for propaganda or blackmail purposes.

One military defense counsel even intends to offer evidence that the top US commander in Iraq was directly involved, as shown in the following trial transcript excerpt:

Military prosecutor: "Are you saying that Captain Reese is going to testify that General Sanchez was there and saw this going on?"

Defense counsel: "That's what he told me.... [I]t has come to my knowledge that Lieutenant General Sanchez was even present at the prison during some of these interrogations and/or allegations of the prisoner abuse by those duty [noncommissioned officers]."

On General Sanchez's behalf, the Pentagon has denied this.

Those parts of Taguba's report that have been made public specifically allege:

"[B]etween October and December 2003, at the Abu Ghraib Confinement Facility (BCCF), numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force (372nd Military Police Company, 320th Military Police Battalion, 800th MP Brigade), in Tier (section) 1-A of the Abu Ghraib Prison (BCCF).

"In addition, several detainees also described the following acts of abuse, which under the circumstances, I find credible based on the clarity of their statements and supporting evidence provided by other witnesses:

"a. Breaking chemical lights and pouring the phosphoric liquid on detainees;

"b. Threatening detainees with a charged 9mm pistol;

"c. Pouring cold water on naked detainees;

"d. Beating detainees with a broom handle and a chair;

"e. Threatening male detainees with rape;

"f. Allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell;

"g. Sodomizing a detainee with a chemical light and perhaps a broom stick.

"h. Using military working dogs to frighten and intimidate detainees with threats of attack, and in one instance actually biting a detainee.

"[T]he intentional abuse of detainees by military police personnel included the following acts:

"a. Punching, slapping, and kicking detainees; jumping on their naked feet;

"b. Videotaping and photographing naked male and female detainees;

"c. Forcibly arranging detainees in various sexually explicit positions for photographing;

"d. Forcing detainees to remove their clothing and keeping them naked for several days at a time;

"e. Forcing naked male detainees to wear women's underwear;

"f. Forcing groups of male detainees to masturbate themselves while being photographed and videotaped;

"g. Arranging naked male detainees in a pile and then jumping on them;

"h. Positioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture;

"i. Writing "I am a Rapest" (sic) on the leg of a detainee alleged to have forcibly raped a 15-year old fellow detainee, and then photographing him naked;

"j. Placing a dog chain or strap around a naked detainee's neck and having a female Soldier pose for a picture;

"k. A male MP guard having sex with a female detainee;

"l. Using military working dogs (without muzzles) to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee;

"m. Taking photographs of dead Iraqi detainees.

"These findings are amply supported by written confessions provided by several of the suspects, written statements provided by detainees, and witness statements.

"The various detention facilities operated by the 800th MP Brigade have routinely held persons brought to them by Other Government Agencies (OGAs) without accounting for them, knowing their identities, or even the reason for their detention. The Joint Interrogation and Debriefing Center (JIDC) at Abu Ghraib called these detainees "ghost detainees." On at least one occasion, the 320th MP Battalion at Abu Ghraib held a handful of "ghost detainees" (6-8) for OGAs that they moved around within the facility to hide them from a visiting International Committee of the Red Cross (ICRC) survey team. This maneuver was deceptive, contrary to Army Doctrine, and in violation of international law."

Now that courts martial are underway for some of the alleged participants in the abuses at Abu Ghraib, several of the accused have offered as their defense that they were only following orders. Very famously, at the trial of 21 high-ranking Germans at Nuremberg after World War II this defense was rejected. Indeed, if those who were sentenced to be hanged for war crimes and crimes against humanity in that case were following Adolf Hitler's orders, they in turn also ordered many subordinates to commit such atrocities.

However, superior orders, if not a complete defense, can be considered as a mitigating factor. A 1946 British military tribunal that heard the case of atrocities committed by the Japanese in Singapore thus handed down the following sentence:

"Chiba Masami, your participation in the horrible scene which has been described in this Court is undoubted. But it would be unjust to deal with you on the same footing as your superior officers. The sentence of this Court, subject to confirmation, is that you be kept in prison for the term of seven years."

Another explanation for the conduct of those accused of committing abuses at Abu Ghraib is that they had been sent to Iraq from Afghanistan and had not been told that in Iraq there would be different rules of engagement.

The war waged by the United States and its allies in Afghanistan has been much more popular than the Iraq War, both within the US and around the world. That's because of the grave provocation of the September 11, 2001 Taliban-sponsored al-Qaeda attacks on the United States, most of victims of which were non-combatant civilians, and because of the Taliban regime's obnoxious totalitarian character.

However, it must be pointed out that one salient feature of the US-led war in Afghanistan has been the torturing to death of captured members of the Taliban militia, whose only crime was to obey their government's call to arms against foreign invaders. Most notorious was a mass execution near Mazar-e-Sharif, in which US intelligence officers and an anti-Taliban militia locked hundred of captured fighters into unventilated metal shipping containers in freezing temperatures for several days, then shooting those few prisoners who had not died of suffocation or freezing. See, e.g. the Physicians for Human Rights documents on this at http://www.phrusa.org/research/afghanistan/report_graves.html and http://www.phrusa.org/research/afghanistan/report_graves.html. Those who would deny US participation in this atrocity would have to deny the well-known CNN tape of the notorious Mr. John Walker Lindh, the "American Taliban," being interrogated by a CIA agent who threatened to put him back into one of those containers.

Thus the "we did it in Afghanistan and we thought that was our job in Iraq as well" defense more than anything raises the question of culpability for war crimes to the top levels of the military command structure and the Bush administration.

And what is a commander's legal liability for war crimes committed by his or her subordinates?

If we go by the de facto precedent of the Vietnam War's My Lai massacre, there is none. In that case soldiers on the ground under a Captain Medina and a Lieutenant Calley killed hundreds of villagers, the great majority of them non-combatant civilians, first raping many of their female victims, while a Colonel Henderson looked on from a helicopter hovering above. Calley served a brief term of house arrest and Medina and Henderson were never tried.

But if we look to the US Supreme Court for guidance, we come to the case of General Yamashita, the last Japanese military commander in the Philippines, who ordered his men to surrender. Either in defiance of Yamashita's orders or because due to US military action those orders did not get through to the Japanese troops, many of the general's subordinates continued to fight and committed atrocites against civilians in Manila or Allied POWs. In its controversial decision, the US Supreme Court ruled that:

"The charge... is that petitioner [General Yamashita], between October 9, 1944 and September 2, 1945, in the Philippine Islands, "while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he . . . thereby violated the laws of war.

"These provisions plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals."

In the United States most of the antiwar movement, which represents a relatively small fringe of American society, advocates the proposition that, based upon the facts now known and the existing laws and precedents, Secretary of Defense Donald Rumsfeld and President George W. Bush bear ultimate legal responsibility for war crimes at Abu Ghraib. Rumsfeld and Bush have condemned the abuses, promised to punish those responsible and admitted no culpability of their own.

In the highly polarized United States, the suggestion that people at the highest levels of government are guilty of war crimes inevitably generates angry responses from many Americans.

In much of the rest of the world, however, people tend to agree with the antiwar activists' view.



Also in this section:
Panama News Briefs
USAID cuts off Panama's courts
Torture pictures and the law
Endara predicts new constitution despite PRD opposition
Young illegal immigrants easy prey in the USA
American Democrats gather in Panama

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