Published on Friday, December 19, 2008 by CommonDreams.org
Under the doctrine of command responsibility, enshrined in U.S. law, commanders all the way up the chain of command to the commander-in-chief can be held liable for war crimes if they knew or should have known their subordinates would commit them and they did nothing to stop or prevent it.
Why is Cheney so sanguine about admitting he is a war criminal? Because he’s confident that either President Bush will preemptively pardon him or President-elect Obama won’t prosecute him.
Both of those courses of action would be illegal.
First, a president cannot immunize himself or his subordinates for committing crimes that he himself authorized. On February 7, 2002, Bush signed a memo erroneously stating that the Geneva Conventions, which require humane treatment, did not apply to Al Qaeda and the Taliban. But the Supreme Court made clear that Geneva protects all prisoners. Bush also admitted that he approved of high level meetings where waterboarding was authorized by Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet.
Attorney General Michael Mukasey says there’s no need for Bush to issue blanket pardons since there is no evidence that anyone developed the policies “for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.” But noble motives are not defenses to the commission of crimes.
Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Second, the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers. When the United States ratified the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby making them part of U.S. law, we agreed to prosecute those who violate their prohibitions.
The bipartisan December 11 report of the Senate Armed Services Committee concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”
Lawyers who wrote the memos that purported to immunize government officials from war crimes liability include John Yoo, Jay Bybee, William Haynes, David Addington and Alberto Gonzales. There is precedent in our law for holding lawyers criminally liable for participating in a common plan to violate the law.
Committee chairman Senator Carl Levin told Rachel Maddow that you cannot legalize what’s illegal by having a lawyer write an opinion.
The committee’s report also found that “Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.” Those techniques migrated to Iraq and Afghanistan, where prisoners in U.S. custody were also tortured.
Pardons or failures to prosecute the officials who planned and authorized torture would also be immoral. Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantánamo.”
During the campaign, Obama promised to promptly review actions by Bush officials to determine whether “genuine crimes” were committed. He said, “If crimes have been committed, they should be investigated,” but “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”
Two Obama advisors told the Associated Press that “there’s little-if any – chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.”
When he takes office, Obama should order his new attorney general to appoint an independent prosecutor to investigate and prosecute those who ordered and authorized the commission of war crimes.
Obama has promised to bring real change. This must be legal and moral change, where those at the highest levels of government are held accountable for their heinous crimes. The new president should move swiftly to set an important precedent that you can’t authorize war crimes and get away with it.


Israel Deeply Wary of 2009 Anti-Racism Meet
December 20, 2008By Wolfgang Kerler | Inter Press Service
UNITED NATIONS, Dec 19 (IPS) – At their anti-racism conference in Geneva next April, United Nations member states may find themselves — once again — in a heated dispute over how to properly address the Israel-Palestinian conflict in the context of racism, xenophobia and racial discrimination.
Meant to assess and accelerate progress on the implementation of anti-racism measures adopted at the somewhat infamous 2001 World Conference against Racism (WCAR) in Durban, South Africa, the Durban Review Conference will now have to deal with renewed resentments among U.N. member states.
The Asian countries reminded all parties of what had happened seven years ago: In their contribution to a still to be discussed draft declaration for the review conference, they called Israel’s policies towards Palestinians “a new kind of apartheid, a crime against humanity, [and] a form of genocide.”
Back in 2001, even a groundbreaking apology for slavery and colonialism by the developed world was not enough to save WCAR from being seen as a failure by many critics. Events at the forum of non-governmental organisations (NGOs) taking place parallel to the governmental negotiations had just been too tumultuous.
A number of NGOs — presumably backed by Iran and other Muslim countries — put through a final NGO declaration that condemned Israel with words similar to those now used by the Asian region: “apartheid”, “ethnic cleansings”, and “acts of genocide”. Clearly anti-Semitic cartoons and books were circulated at the forum — accompanied by statements that were equally anti-Semitic. To express their protest, Israel and the United States left WCAR.
Nevertheless, in early 2007, after the U.N. General Assembly had decided to hold a follow-up conference, Israel announced that it will take part in the Apr. 20-24, 2009 “Durban II” — as it is sometimes referred to — as long as there was no similar anti-Israel atmosphere. On Nov. 19, shortly after the release of the statements by the Asian region, Israel decided to withdraw from Durban II.
“It was perfectly predictable — and preventable,” Hillel Neuer, executive director of U.N. Watch, a Geneva-based watchdog affiliated with the American Jewish Committee, told IPS. “There is no country in the world that would want to willingly subject itself to a kangaroo court where it is demonised and delegitimised,” he added.
However, Navanethem Pillay, U.N. High Commissioner for Human Rights and appointed secretary-general of Durban II, told the press that “the ambassador of Israel came to see me to say if the objectionable language is remedied, they will continue to participate.”
She stressed that “we are a long way from coming up with the draft outcome document for the Review Conference” and urged that all countries participate, asking: “How can you influence the outcome document unless you are there?”
In April, a group of 94 NGOs — including Human Rights First and the American United Nations Association, for example — released a statement on the core principles for Durban II, pledging to “reject hatred and incitement in all its forms, including anti-Semitism, to learn from the shortcomings of the 2001 WCAR.”
Human Rights Watch (HRW), an international human rights advocate, also published a position paper on the Durban Review Conference. It called on participants to avoid “a repeat of the conduct that so marred the 2001 conference” — especially the singling out of Israel as the focal point of hostility.
HRW “does not seek to exempt Israel from criticism of its human rights record”, but is rejecting “hyperbolic accusations that cannot be factually supported or singling out one government to the exclusion of other comparable offenders,” the paper said.
For example, human rights violations and discriminatory policies are reported across the world, including in Libya and Iran — which have been elected to chair and vice-chair the preparatory committee of the Durban Review Conference, respectively.
Worried that the single focus on the question of anti-Semitism might further flaw the legacy of WCAR — or “Durban I” — Ibrahim Wani, chief of the Research and Right to Development Division of the Office of the High Commissioner for Human Rights (OHCR), told IPS: “[While] there is no question about the highly insensitive displays and statements at the [2001] NGO-Forum, it is important to distinguish this forum from the inter-governmental process.”
“There is no allegation anywhere that the governmental meeting itself witnessed a display of anti-Semitism,” he stressed.
Wani, who is involved with the preparations for Durban II, added that “at the end of the day [the U.N. member states] were able to reach compromise on some key issues — the Israel-Palestinian question, the issue of reparations and apology for slavery and colonialism, or the issue of migration.” No offensive language could be found in the outcome document.
With the mechanism put in place within the U.N. system, the commitments the member states agreed on, and the framework of actions it provides to address racism, Wani called the “Durban Declaration and Programme of Action” (DDPA) “a significant step forward in historical terms.”
Another historic event that occurred immediately after conference doors closed in Durban might cause dissent at Durban II — the 9/11 terrorist attacks and the Western counter-terrorism policies that followed.
Mourning the rise in Islamophobia since 2001, Muslim countries are pushing to include language regarding “defamation of religion” — especially of Islam — in the Durban II outcome document. Western countries oppose such claims, assuming that some states may want to excuse their own human rights violations — especially concerning freedom of speech – as “defamation of Islam”.
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Tags:a new kind of apartheid, anti-racism conference, Human Rights Watch, Islamophobia, Israel, Israel-Palestinian conflict, Palestinians, racial discrimination
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