War and law

A few days I contributed a comment to OurKingdom regarding Sir John Scarlett's comments to the Chilcot inquiry. As I said at the time (10 Dec), I had little to offer at that moment except sarcasm.

Several things have come to light since then, not least Tony Blair's statement that he would have found another pretext for invasion if not WMD. Jonathan Steele says:

Apart from WMD there was no other conceivable [legal] foundation for an invasion. Using force to produce regime change on humanitarian grounds is not permissible under international law, and the attorney general told Blair as much in July 2002. [1]

There's a chorus to condemn Blair now. It remains the case, however, that having no foundation in law to remove a regime on humanitarian grounds is not a satisfactory state of affairs. Governments that commit appalling large scale crimes ought to be vulnerable to removal by force approved under international law...at or very close to the time that those crimes are committed. [2]


[1] P.S. see also Hans Blix and Ken Macdonald

[2] In his Nobel acceptance speech, Barack Obama observed that the conditions that led doctrines such as a 'responsibility to protect' in the 1990s and early 2000s have not gone away:

wars between nations have increasingly given way to wars within nations. The resurgence of ethnic or sectarian conflicts; the growth of secessionist movements, insurgencies, and failed states -- all these things have increasingly trapped civilians in unending chaos. In today's wars, many more civilians are killed than soldiers; the seeds of future conflict are sown, economies are wrecked, civil societies torn asunder, refugees amassed, children scarred.

The prospects for co-ordinated international humanitarian action have, however, deteriorated.

Which is it, Mr Miliband?

I have had a copy of the infamous Bybee memo for months, and this allows us to consider which of the "enhanced interrogation techniques" the British government would rather keep under wraps. As identified by Bybee, the 10 techniques are:

(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.

-- from Britain's torture cover-up continues by Clive Stafford-Smith

England's glory

Jonathan Stevenson quotes Lord Denning on the right of jurors to follow their own judgment:

This principle was established as long ago as 1670 in a celebrated case of the Quakers, William Penn and William Mead. All that they had done was to preach in London on a Sunday afternoon. They were charged with causing an unlawful and tumultuous assembly there. The judge directed the jury to find the Quakers guilty, but they refused. The Jury said Penn was guilty of preaching, but not of unlawful assembly. The Judge refused to accept this verdict. He threatened them with all sorts of pains and punishments. He kept them 'all night without meat, drink, fire, or other accommodation: they had not so much as a chamber pot, though desired'. They still refused to find the Quakers guilty of an unlawful assembly. He kept them another night and still they refused. He then commanded each to answer to his name and give his verdict separately. Each gave his verdict 'Not Guilty'. For this the judge fined them 40 marks apiece and cast them into prison until it was paid. One of them Edward Bushell, thereupon brought his (case) before the Court of the King's Bench. It was there held that no judge had any right to imprison a juryman for finding against his direction on a point of law; for the judge could never direct what the law was without knowing the facts, and of the facts the jury were the sole judge. The jury were thereupon set free.

P.S. But Stevenson and his co-defendents were found guilty.

More than the photos

...to date the only Americans who have been prosecuted and sentenced to imprisonment for the criminal policies that emanated from the highest levels are ten low-ranking servicemen and women—those who took and appeared in the Abu Ghraib photographs, and embarrassed the nation by showing us what we were doing there. Charles Graner is the only one remaining in prison, serving ten years. His superior officers enjoy their freedom, and C.I.A. interrogators, who spent years committing far worse acts against prisoners than Graner did even in the darkest days at Abu Ghraib, have been assured immunity.

But, if full justice remains impossible, surely some injustices can be corrected. Whenever crimes of state are adjudicated—at Nuremberg or The Hague, Phnom Penh or Kigali—the principle of command responsibility, whereby the leaders who give the orders are held to a higher standard of accountability than the foot soldiers who follow, pertains. There can be no restoration of the national honor if we continue to scapegoat those who took the fall for an Administration—and for us all.

-- from Interrogating Torture by Philip Gourevitch.

Alternative sets of procedures

Mark Danner does a useful job on government sanctioned torture (US Torture: Voices from the Black Sites, The Red Cross Torture Report: What It Means). One can see the violence inherent in doublethink at work. As George W. Bush asked, 'What does that mean, "outrages upon human dignity"?'

Less publicized, perhaps, has been the widespread use of solitary confinement in U.S prisons and the ramifications of this practice, which is a form of torture. In his remarkable investigation, Hellhole, Atul Gawande observes:

With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago. Our willingness to discard these standards for American prisoners made it easy to discard the Geneva Conventions prohibiting similar treatment of foreign prisoners of war, to the detriment of America’s moral stature in the world. In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement—on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door

Extermination and genocide in law

There is a contradiction between the [International Criminal Court] judges' allowing of the charge of "extermination" (as a "crime against humanity") against Sudanese government forces and their rejection of the genocide charge. If there is reasonable evidence to suggest that Sudanese forces pursued a policy of extermination against some Fur, Masalit and Zaghawa, then this is surely prima facie support - even on a narrow "physical" definition of group destruction - for the charge of genocide against these groups "in part" (as the convention puts it).

In the end, however, the judges' key argument centres on the same point that the [International Court of Justice] used to reject (with the exception of Srebrenica) the claim that Serbian forces had committed genocide in Bosnia: the existence of a "special intention" for genocide... This rarefied legal concept of intention means that courts feel able to reject genocide claims even when the perpetrators manifestly intended to destroy the "enemy" society in whole or part, and even when they have attempted to physically exterminate some of its people.

-- from Sudan, the ICC and genocide: a fateful decision by Martin Shaw

'Lawfare'

If, therefore, a conclusion can be drawn from military violence it is that... there is a lawmaking character inherent in it.

-- Eyal quotes Walter. Is it possible, he asks,

that the attack on Gaza was not restrained by an extensive use of [International Humanitarian Law] - but rather, that a certain interpretation and application of this law have enabled, not only the justification of atrocities, but crucially, the affliction of otherwise inconceivable levels of destruction? Has the chaos, death and destruction been perpetrated with the full force of the law? If this is so, should those who oppose Israeli violence use the language of international law?

Politicide, part 841,239,017,973,986(b)

A report from Stephen Kamlish QC here. Short excerpt:

The use of phosphorus is only lawful under international rules of engagement when used as a smokescreen cover in open areas for combatants who are caught in the open and are under fire. However, the evidence on the ground makes clear that the Israeli Army systematically and unlawfully fired phosphorus shells directly over and into populated urban areas. We visited the site of a family devastated by the illegal use of phosphorous. The man we spoke to told us how his wife and three children were asleep in a bedroom of their house. A phosphorous shell came through the roof of the house exploding in the room where the family was sleeping. On impact the mother and children were engulfed in toxic flames smoke and fumes. They died an unimaginable death in that room. We stood in the room and saw the traces of white phosphorus on the walls in the otherwise completely blackened room. A woman came into the room and held up a piece of child’s clothing covered in phosphorus burns. Another man then showed us a picture of the body of a 10-month old child who had been in the room during the attack. The heat had been so intense that it had burned the baby’s legs off.

(Hat tip OT)

"All the elements of war crimes"

...says Navi Pillay, the UN high commissioner for human rights.

A necessary hypocrisy

Pursuing the Bush administration for crimes long known to the public may amount to a kind of hypocrisy, but it is a necessary hypocrisy. The alternative, simply doing nothing, not only ratifies torture; it ratifies the failure of the people to control the actions of their government.

-- Scott Horton

Liberty

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.

-- John Milton, 400 years old yesterday (hat tip, OD)

'The lexicon of totalitarianism'

Three sentences for four years of a young Afghan’s life, written in language Orwell would have recognized.

-- Roger Cohen on what Obama is putting behind

The ICC and Sudan

Gideon Rachman highlights an interesting debate on the ICC indictment of Omar al-Bashir.

Alex de Waal's guide appears on openDemocracy. de Waal himself thinks al-Bashir's actions "will be driven by calculations of internal threat more than by his assessment of how threatening the ICC or the UN troops in Sudan might be."

Richard Goldstone writes that criticism of the ICC is misdirected.

A few rotten apples

So hot is the speculation that war-crimes trials will eventually follow in foreign or international courts that Lawrence Wilkerson, Colin Powell’s former chief of staff, has publicly advised Mr. Feith, Mr. Addington and Alberto Gonzales, among others, to “never travel outside the U.S., except perhaps to Saudi Arabia and Israel.”

-- Frank Rich

Habeas schmabeas

when the Chinese international news agency reports that Britain has the longest period for detention without trial of any democracy, including Turkey. And the government wants to extend it.

[P.S. 21 Nov: but Alex Carlisle is unimpressed by Liberty.]