Does the Law Work? Global Exploitation and Willful Ignorance of International Tribunals/Courts and Their Lack of Effectiveness in Adjudicating Justice and Reconciliation in International Criminal Law
Justine Taylor Robinson Haverford College Political Science Department Thesis Advisor: Professor Thomas Donahue Senior Thesis April 21, 2017
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Abstract: This thesis examines how the international criminal law system (ICLS) has so far failed to be an effective and impartial deterrent to those nation-states/governments who enact some of the most grievous crimes imaginable: genocide and torture. These crimes are displayed in two case studies to show the failure of the ICLS in stopping these violations of human rights and ethics. Moreover, the target perpetrator in these case studies will be the United States government, and how they both failed and abused their status as a powerful nation state to disregard and/or violated international criminal law in Rwanda and Iraq (Abu Ghraib Prison). Two major reforms are proposed in this thesis. First, the creation of a mobile tribunal/court system that would go to any nation state or victimized group that has submitted a report of ICLS violations, along with a security unit that would be dispatched to keep the peace and aid to the local people. Second, to make sure that reconciliation and justice are achieved at all cost, and employing human rights experts to “keep the peace” and send status reports to the central command of the tribunal/court system. These are solutions to help imagine the most efficient system of international criminal law, grant justice to those who need it most and to punish those who have purposefully ignored or violated the principles/laws of the ICLS.
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ACKNOWLEDGEMENTS
I would like to thank everyone who has helped me throughout this thesis writing process and given me invaluable knowledge along the way. I would first like to thank Professor Donahue for being an excellent teacher and mentor to me these past few years as a student in the Haverford
Political Science Department. His feedback and encouragement has been productive and encouraging throughout this yearlong process. I would like to thank my family for helping me with topic possibilities and looking at my outlines and drafts when I wanted/needed them to look at them. Finally, I would like to thank the Haverford Political Science Department and the Bi-
College Consortium as a whole, for giving me the opportunity and tools as a Bryn Mawr Student to major at Haverford and succeed as a student and community member.
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Table of Contents Title Page ...... 1 Abstract ...... 2 Acknowledgements……………………………………………………………………………………………….3 Introduction ...... 5 SECTION I: Key Terms ...... 7 SECTION II: The Disadvantages and Failings of the International Criminal Law System . 9 U.S. Ignorance and Exploitation of International Criminal Law ...... 12 SECTION III: Case Studies: Rwanda and Abu Ghraib/The “Torture Memos” ...... 15 Rwanda ...... 16 Background ...... 16 International Response ...... 21 Justice System after Genocide ...... 22 Why did the Rwandan Genocide happen? ...... 25 Abu Ghraib/The “Torture Memos” ...... 29 Background ...... 30 The Prison and Violations of International Criminal Law ...... 31 Torture Memos and Response ...... 36 US Disregard for Geneva Conventions and “Fallout”/Aftermath…………………………..38 SECTION IV: Proposed Reforms and Improvements to the International Criminal Law System ...... 44 SECTION V: Objections to the Thesis and Replies to Objections ……………………………………………………………………………………………………50 Conclusion………………………………………………………………………………………… …………………………………53 APPENDICES ...... 55 Appendix A: CNN Timeline of Abu Ghraib Prison Abuse Scandal ...... 55 Appendix B: New York Times Timeline & Summary of the Torture Memos...... 59 References……………………………………………………………………………………….63
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Introduction
We as humans live in a world that that is characterized by a broad diversity of cultures, technology, economics, education, and much more. Yet in one respect we are all similar – that is, how we all follow a strict structure of guidelines and rules worldwide: international law.
However, what if I were to tell you that not all nation states abide by the same structure of guidelines we do and instead tweaks the rules and the systems to their favor, cheating us and others out of a fair trial and justice; meanwhile the international law system has done and can do nothing to stop it. My research question for this thesis is, does international criminal law fail to be impartial and effective at deterring international crimes?
Why is this question so important that a whole thesis needs to be written about it? Well, one must ask how reliable is the international criminal law system, and go from there. Does it need to be strengthened and should it hold nation states more accountable? The significance of my question also addresses and helps answer the broader questions: Is the international criminal law system effective in and of itself and, if possible, how can international law adequately punish those governments/groups who enact and/or contribute to genocide, war crimes, and crimes against humanity? Can the international criminal law system eliminate these atrocious crimes?
The broader questions in place are intended to examine the shortcomings of the system that is currently in place.
My thesis states that international criminal law fails to be impartial and is ineffective at deterring international crime and moreover, that the international criminal law system needs to hold those who have violated its laws the most accountable for their actions. First, there needs to be a reformation process that involves changing/rebuilding of international criminal law
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systems/structure, that involves a star-chamber-based tribunal/court system that would dispatch prosecutors, defenders, judges, security personnel, and more to any nation-state that is wracked with ICL violations. Second that tribunal court/system would need to make sure that proper reconciliation and justice is brought to the victimized nation-state or group(s), not leave the area until that objective is secure, employing human rights experts to “keep the peace” and sending status reports to the central command of the tribunal/court system.
My argument for my thesis will be divided into five sections: the first will be a definition of key terms used throughout this document, for the reader to focus on and analyze its use and meaning throughout this thesis regarding my argument. The next section will be on "The
Disadvantages and Failings of the International Criminal Law System," this section will discuss how the ICLS is currently set up and the problems it faces with widespread disregard for and ignorance of its rules/guidelines from powerful nation-states that will not join these systems to be prosecuted for violation of various laws within the system. The third section of the thesis examines two case studies: “The Rwandan Genocide & The Abu Ghraib Prison Scandal/The
‘Torture Memos’”. Here, I will look at the United States and how its foreign policy ignored or violated ICL. Moreover, I will also discuss how the ICLS did not levy any significant sanctions or punishment against the U.S. for violations that occurred in each case. Section four will examine proposed reforms and potential improvements to the ICLS. Here I propose two major reforms that I think will help the ICLS become more effective in providing justice for victims.
Lastly, I anticipate objections that might arise to my arguments and discuss my responses to potential critics.
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SECTION I: KEY TERMS
This section explains key terminology used throughout this thesis. It is intended to provide
the reader with a better understanding of the concepts and contexts in which they have been
used by professionals and experts in the fields of international law and human rights
prevention. This part of the thesis will also help the reader to see how these terms have been
misused and disregarded in the cases studied.
Key Terms
Genocide: This definition of genocide is from the Prevent Genocide International
organization. “The international legal definition of the crime of genocide is found in Articles
II and III of the 1948 Convention on the Prevention and Punishment of Genocide.
Article II describes two elements of the crime of genocide:
1) the mental element, meaning the "intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such", and
2) the physical element which includes five acts described in sections a, b, c, d, and e. A
crime must include both elements to be called "genocide."
Article III described five punishable forms of the crime of genocide: genocide; conspiracy,
incitement, attempt and complicity.”1
Torture: This definition of torture in the legal sense, is from the Association for the
Prevention of Torture.
1 Fussell, Jim. "The international legal definition of genocide - Prevent Genocide International." The international legal definition of genocide - Prevent Genocide International. http://www.preventgenocide.org/genocide/officialtext-printerfriendly.htm.
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“Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment is the internationally agreed legal definition of torture:
"Torture means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in
an official capacity. It does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions."
This definition contains three cumulative elements:
the intentional infliction of severe mental or physical suffering
by a public official, who is directly or indirectly involved
for a specific purpose.
Other international and regional treaties, as well as national laws, can contain broader definitions
of torture, covering a wider range of situations.”2
2 "APT - A legal definition of torture." APT - A legal definition of torture. http://www.apt.ch/en/what-is- torture/.
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SECTION II: The Disadvantages and Failings of the International Criminal Law
System
There are many problems and inefficiencies with how the international criminal law
system operates. In this portion of my thesis, I will examine the roles/values of judges,
prosecutors, enforcement of tribunals/courts, the power of nations states and their
cooperation with the systems of international criminal law, the authority of international
courts/tribunals, and the biases they may hold in place.
First, we start out with the actors in charge of keeping international court/tribunals
running and providing the final verdicts: judges. In many ad hoc tribunals (International
Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda,
and The Special Court for Sierra Leone, for instance) there are three presiding judges over
each tribunal. After the prosecutor makes his or her case, two out of the three judges must
agree with the charges presented before a defendant can be convicted.3 Two major problems
can be seen in this setup. One, there are only three judges in these ad hoc tribunals. This is
understandable based on the fact that these are meant to be temporary systems of justice and
unlike the International Court of Justice (ICJ) which has up to 15 permanent judges and is
intended to be a permanent structure, and the International Criminal Court (ICC) which has
up to 18 permanent judges (on a nine-year rotation ), and a small tribunal that has limited
3 Meernik, James David. International Tribunals and Human Security. Lanham, MD: Rowman & Littlefield, 2016. 10.
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allocated for their work.4 5 However, with only three judges in tribunals that still decide the
fate of people who may or may not have committed crimes against humanity and further
extremes, it would also be naive not to consider the possibility of bribery on the judges.
Defendants who know that they are guilty and are of wealthy means, could potential bribe
two of the judges into denying the conviction and letting the guilty party/culprit go free.
Now, bribery is a potential problem for domestic and international courts alike.6
However, in international criminal law that deliberates on the issues of genocide, war crimes,
and human rights, in general, the stakes could not be higher to hold the proper people/groups
accountable for their crimes and justice to be achieved. Therefore, there needs to be
heightened security or a system in place that keeps lawyers, their clients, and judges
accountable for the actions and alert the United Nations (UN) security council or an internal
bureau of sorts of any transgressions among the actors in place within the ad hoc tribunal.7
Next, within these tribunals, there is the Office of the Prosecutor (OTP). These people
select, manage, and present cases at trial. These are the people responsible for bringing cases
of genocide, war crimes, and crimes against humanity into the judicial process. They have
the responsibility to explain their charges against the defendants and make sure proper
4 Public Affairs. "International Criminal Court." Judicial Divisions. https://www.icc-cpi.int/about/judicial- divisions. 5 ICJ. "International Court of Justice." Members of the Court | International Court of Justice. http://www.icj- cij.org/court/index.php?p1=1&p2=2.
6 Peppys, Mary Noel , and Susan Rose-Ackerman. "Part One: Comparative Analysis of Judicial Corruption." In Global Corruption Report 2007: Corruption and Judicial System, 3-24. Cambridge : Cambridge University Press , 2007.
7 Wolff, Mark L. . "The Case for an International Anti-Corruption Court." Governance Studies at Brookings , July 2014, 1-15. https://www.brookings.edu/wp-content/uploads/2016/06/AntiCorruptionCourtWolfFinal.pdf.
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accountability and justice is reached. However, because the role accompanies so much
responsibility, there are only so many people who are qualified to hold this position.
Therefore, there have been situations where the chief prosecutor for one ad hoc tribunal must
be the chief prosecutor for another tribunal that is starting its legal processes (ICTY and
ICTR).8 The responsibility of making certain multiple tribunals run smoothly and perfectly
can be overwhelming, and if the chief prosecutor cannot stand the pressure, mistakes could
be made and defendants who should have been convicted, could go free off on a
technicality/error. Of course, this is one of the worst-case scenarios that could be considered.
However, to prevent this from happening, there first needs to be a centralized system in place
that can train quality and identify qualified lawyers and have a ranking list that determines
which prosecutor should be next to help organize and adjudicate the next ad hoc tribunal that
comes up in the international criminal law legal system.
Here we come to our next transition and major problem that courts like the ICC for
example face, the lack of accountability from major world powers. World powers like the
United States, Russia, and China, refuse to sign onto treaties (most famously the ICC)
supporting and giving jurisdiction to international tribunals/criminal courts on the fact that
they do not want to be held responsible and investigated for possible human rights violations
they may have committed among other infractions in international criminal law. There is a
fear among major world powers that prosecutors from the ICC and other international
criminal courts will start a “witch hunt” against their nation state of choice, and will indict
8 Meernik. 14.
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and prosecute as many people in power/governments as they possibly can.9 Another
problematic situation for international criminal courts like the ICC is that organizations that
hold a fair amount of power and resources like the UN security council are not obligated to
refer or even help with cases of human rights violations.10 They can be the ultimate observer
and watch the international criminal court system flounder when they have the means and
resources to help and make an impact on these cases and human security.
Obviously, circumstances like these ones are frustrating because if the international
community cannot allocate their resources and hold themselves responsible for the most
atrocious crimes possible, then what is even the point of having a series of courts and
tribunals that try to adjudicate justice and accountability, when it cannot be properly done?
At this juncture, the system put in place cannot effectively do either of those things. That is
why the systems currently in place in international criminal law (the ICC and ICJ) need to be
revised and refurbished to have more autonomy and fit the needs of the people. If not, an
international court system created by humanitarians and concerned citizens alike needs to be
established and be granted the legitimacy of all nation states to operate and allow for
effective adjudication of justice to occur.
U.S. Ignorance and Exploitation of International Criminal Law
Now, even though this thesis is focused on the general/global exploitation and willful ignorance towards the international criminal law system, the target group/government in this thesis will be the United States government and the two specific examples in the case studies.
First, the Rwandan Genocide, where the United States government and the Clinton
9 Meernik. 19. 10 Meernik. 20.
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administration willfully ignored the mass devastation/the breakdown of the U.N. Security
Council in intervening Rwanda and preventing mass genocide. Moreover, second, the Abu
Ghraib Prison Scandal, where the Bush (43) administration and the direct violation/disregard for the Geneva Conventions on their statute on torture of armed combatants/prisoners of wars, among many other international laws that were and continue to be violated.
How and why do the United States not respect these concrete laws & ethics that many the
world abides by? Let’s examine the statement that Under Secretary of State for
Political Affairs, Marc Grossman, made about American legal values compared to the values
and standards of the international criminal law system and why the United States would not
sign and be a part of the Roman Statute/anti-ICC, at the Center for Strategic and International
Studies back in May of 2002.
"Here is what America believes in:
. We believe in justice and the promotion of law.
. We believe that those who commit the most serious crimes of concern to the international
community should be punished.
. We believe that states, not international institutions, are primarily responsible for
ensuring justice in the international system.
. We believe that the best way to combat these serious offences is to build domestic judicial
systems, strengthen political will and promote human freedom.”11
11 Wind, Marlene. "Challenging sovereignty? The USA and the establishment of the International Criminal Court." Ethics & Global Politics 2, no. 2 (2009): 89-90. https://www.law.upenn.edu/live/files/1519- windchallenging-sovereigntypdf.
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Marc Grossman continues by spelling out how the ICC is incapable of fulfilling these objectives: “Challenging Sovereignty
. We believe the ICC undermines the role of the United Nations Security Council
in maintaining international peace and security.
. We believe in checks and balances. The Rome statute creates a prosecutional
system that is an unchecked power.
. We believe that in order to be bound by a treaty, a state must be party to that
treaty. The ICC asserts jurisdiction over citizens of states that have not ratified the
treaty. This threatens U.S. sovereignty.
. We believe that the ICC is built on a flawed foundation. These flaws leave it open for
exploitation and politically motivated prosecutions."12
The Roman Statue referenced in Grossman's statement is the treaty that established the
International Criminal Court in a diplomatic conference in Rome in 1988 and has been in commission since 2002.13 As mentioned earlier, many prominent members of the U.N. Security
Council, including the United States, will not join the ICC, because they believe that their constitutional power and foreign policy influence will be deterred by the ethics and guidelines they will have to follow within the ICC if they join. As Grossman also mentions, U.S.
12 Wind, Marlene. "Challenging sovereignty? The USA and the establishment of the International Criminal Court." Ethics & Global Politics 2, no. 2 (2009): 89-90. https://www.law.upenn.edu/live/files/1519- windchallenging-sovereigntypdf.
13 International Criminal Court. "Rome Statute of the International Criminal Court." 1-16. https://www.icc- cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf.
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"sovereignty" is of the utmost importance, and any system, whether it be legal and for the benefit of the world's population, cannot threaten U.S. hegemony whatsoever. Grossman and the
American government’s concern are to keep the American legal system domesticated and
“isolated” from further scrutiny from other international legal courts/tribunals.
Grossman’s statement is just one of the few excuses/examples of how highly valued nation states have an advantage on international criminal tribunals/courts that try to spread and administer justice within the boundaries of international law and the global order of people it is meant to protect and guide. Systems like the ICC and the ICJ have a harder time "reigning" in controversial interventions or interactions by non-member states like the U.S., leaving these tribunal courts to act as "paper dolls," nice on the surface, but flimsy and weak once tested.14
SECTION III: Case Studies: Rwanda and Abu Ghraib/The “Torture Memos”
In this portion of my thesis, I will be examining two cases that illustrate the dysfunction of the international criminal law system: Rwanda and Abu Ghraib (along with the subsequent,
Torture Memos). In these case studies, the United States government ignored the call of “world policeman” and remained stagnate in the civil unrest and eventual genocide in Rwanda. and its foreign policy “initiatives” and “techniques” exploited the international criminal system to its advantage.
14 Donovan, Daniel. "International Criminal Court: Successes and Failures." International Policy Digest. March 23, 2012. https://intpolicydigest.org/2012/03/23/international-criminal-court-successes-and-failures/.
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Rwanda
The first case study that will be reviewed and analyzed in this thesis will be the Rwandan
Genocide and the Clinton Administration's following foreign policy "radio silence," along with a lack of human rights services being provided until the bloodshed had fully been enacted and the genocide completed. The UN Security Council and its "peacekeepers," who were responsible for
"keeping the peace," actions will also be analyzed as they are heavily responsible themselves, for the war crimes and genocidal acts that were about to ensue in the African nation.
Background
The Rwandan Genocide officially began in April of 1994 and lasted until the middle of July that same year. The ethnic majority of Rwanda, the Hutus, murdered up to what now has been estimated to be around 800,000 people, most of the victims were part of the ethnic minority population of the country, the Tutsis. So how did this "genocide," happen? Was it a spur-of-the- moment decision of the Hutus to just round up members of the Tutsis and subsequently just decide to "annihilate," and make sure their ethnic group was forever erased? Of course not.
When looking at cases of genocide, one must look to the past and find the minor cracks on the surface/notion of human cooperability and intra-nation ethnic relations, and see how those cracks became the fissures that would destroy the foundation of peace in that nation state, society, community, etc.
First, we need to start from how the nation-state was founded and formed. From the period of 1894 to 1918, the eventually-to-be-named, Rwanda, was an official colony under Germany
(German East Africa), however, these territorial boundaries would come into contention after the
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first World War. Once the events of WWI passed, the nation was under the League of Nations mandate of Belgium along with its neighboring state Burundi. During this period of colonization, the Belgians used eugenic/"Third Reich-esque" methods to determine racial superiority between the Hutus and the Tutsis. The Tutsis were favored by the Belgians for their taller and more
"Eurocentric" features, while the Hutus were deemed "short," "stubby," and "darker," therefore inferior to their minority counterparts. To make matters worse, the Tutsis were cattle herders compared to their Hutu counterparts were peasant farmers. The money the Tutsis manufactured from the cattle herding (with the help of the Belgian elite/colonialists) contributed to guiding them to political prominence and power in the nation-state. Rwanda soon became a classic case of "minority (privileged) rule over the majority," and tensions exploded between the two clans long before the genocide that would take place decades later. 15
In 1959, a Hutu revolution was born, and the revolutionary forces forced as many as 300,000
Tutsis to abandon their country, thus making the Tutsi minority even smaller. Next, by early
1961, the Hutus forced what was left of the Tutsi monarchy to exile, and the country was declared a republic. A United Nations referendum would be established later that same year, and like many colonized nations during this period, the Belgians relinquished control of the country, and in 1962, Rwanda became its independent nation state. However, tensions between the Hutus and Tutsis did not end at state independence. 16
In 1973, Major General Habyarimana rose to power and became the leader of Rwandan government for a little over twenty years. During his reign, Habyarimana founded the political
15 History.com Staff. "The Rwandan Genocide." History.com. 2009. http://www.history.com/topics/rwandan- genocide. 16 History.com Staff. "The Rwandan Genocide." History.com. 2009. http://www.history.com/topics/rwandan- genocide.
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party, the National Revolutionary Movement for Development (NRMD). He was continuously elected throughout the 1970s and 1980s as the sole candidate for government leadership.17
In the 1990s, Tutsi refugees who were part of a military rebel force called the Rwandese
Patriotic Front (RPF) invaded Rwanda from Uganda. After various minor, but tension-filled skirmishes, a ceasefire was called, and both sides (the Rwandan government, and the RPF) began to negotiate with one another. Habyarimana would eventually sign an agreement (August 1993) that demanded a new transition government was created that would include the Tutsi-run RPF.
Hutu extremists took offense of Habyarimana's agreement and made plans to enact an ethnic cleansing. 18
The breaking or "tipping point," for Hutu/Tutsi relations came on April 6, 1994, when the plane that carried the Rwandan and Burundi Presidents was shot down over Kigali, the capital of
Rwanda, and leaving no survivors and thus no official executive authority left. Although the culprits of the assassination of the two presidents were never determined, many people and experts have blamed the Hutu extremists, while others blame the RPF, even though committing said acts would have gravely harmed their chances of government control and citizen rights for their clan members. After the plane crash, members of the executive security council
(Presidential Guard), the Rwandan Armed Forces (FAR) and other militia groups that would involve Hutu membership/activity and would later become known as "Interahamwe" ("Those
Who Attack Together") and Impuzumugambi ("Those Who Have the Same Goal"), enacted action plans that included the barricading and blocking of roads, and with these steps helped
17 History.com Staff. "The Rwandan Genocide." History.com. 2009. http://www.history.com/topics/rwandan- genocide. 18 History.com Staff. "The Rwandan Genocide." History.com. 2009. http://www.history.com/topics/rwandan- genocide.
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enact the beginning of an "ethnic cleansing" by killing Tutsis and “supportive” or “traitorous”
Hutus in scores. 19
After the Prime Minister of Rwanda (Agathe Uwilingiyimana, along with her U.N. sanctioned peacekeeping bodyguards) were killed in early April20, the political system collapsed and from the rubble emerged an interim government run by Hutu extremist military leaders by the ninth of that same month. Mass killings spread throughout Rwanda, from the capital to the countryside claiming a total 800,000 people over a three-month period. If the body count was not evidenced enough that these war crimes being committed were "genocidal" in nature, then the use of government/militia sponsored radio stations encouraging Hutu Rwandan citizens to murder their Tutsi brethren might change that notion.21
The RPF (Tutsi-led rebel group) resumed their civil war (while the genocide raged on) with the Hutu-dominated government, and managed to gain control of most of the country by early
July, including the capital. In response to the RPF's resurgence, over two million people (the majority Hutus), fled the country and went into refugee camps in the Congo and Zaire. With its newfound victory, the RPF created a coalition government (like the one Habyarimana tried to establish during his reign) with a Hutu and Tutsi as president and vice president/defense minister. The NRMD party (Habyarimana's party) was formally outlawed, as it had played a vital part in the genocide and a new constitution was formulated in 2003, that eliminated any explicit references to ethnicity in its text. President Kagame would come out as one of the biggest
19 History.com Staff. "The Rwandan Genocide." History.com. 2009. http://www.history.com/topics/rwandan- genocide. 20 Dallaire, Roméo, and Brent Beardsley. Shake Hands with the Devil the Failure of Humanity in Rwanda. London: Arrow Books, 2004. 245-246.
21 History.com Staff. "The Rwandan Genocide." History.com. 2009. http://www.history.com/topics/rwandan- genocide.
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“winners” in this crisis, as he was elected by the people into office in 2000 and continues to be the President of Rwanda to this day. 22 23 24 25 26
Map 1. Locations of Massacres that occurred in Rwanda in 199427
22 History.com Staff. "The Rwandan Genocide." History.com. 2009. http://www.history.com/topics/rwandan- genocide.
23 BBC News. "Rwanda: How the genocide happened." BBC News. BBC, 17 May 2011. Web. http://www.bbc.com/news/world-africa-13431486.
24 The National Security Archive. "The U.S. and the Genocide in Rwanda 1994: Evidence of Inaction. August 20, 2001. http://nsarchive.gwu.edu/NSAEBB/NSAEBB53/index.html.
25 United Nations. "Secretary-General's MDG Advocacy Group: Paul Kagame." United Nations. United Nations, n.d. Web. http://www.un.org/millenniumgoals/advocates/members/paul-kagame.shtml.
26 Power, Samantha. "Bystanders to Genocide." The Atlantic. September 01, 2001. https://www.theatlantic.com/magazine/archive/2001/09/bystanders-to-genocide/304571/.
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International Response
The international community was frozen with indecision throughout the events that directly preceded to the enactment of genocide, and during the genocide itself. The UN Security Council had sent in their "peacekeeping," forces (United Nations Assistance Mission for Rwanda) in
August of 1993 under the Arusha Accords that Habyarimana and his coalition had created before his assassination. The peacekeeping forces "tried" (I put quotes here because Chapter VI of the
United Nations Charter, forced peacekeepers to not attack unless provoked or all other
“measures” had been exhausted) to stem the burgeoning tensions between the Hutus and the
Tutsis. However, once the killing began in April of 1994, the Security Council voted that
UNAMIR withdraws most of its peacekeeping units and redrew plans for a more stable and adequate fighting force to stop the spread of genocide in Rwanda.
Five thousand troops were sent after a Security Council vote in mid-May of that year, but by the time the full force arrived in Rwanda, the genocide had ended months ago. However, the UN did not entirely manage to misread the situation and misuse resources in Rwanda, as French troops approved by the UN, entered Rwanda from Zaire in late June. Because of the RBF's rapid control of the country, at the time, the soldiers limited their efforts to setting up a "humanitarian zone" in Southwestern Rwanda, and as a result saved thousands upon thousands of Tutsi lives.
However, French forces also helped some of the politicians who planned the genocide, escape because of their previous ties to the French government during the Habyarimana regime.
27 Turkovich , Marilyn . Geographical map of areas where conflict and genocide took place in Rwanda. Digital image. Voices Compassion Education. October 18, 2011. http://voiceseducation.org/content/rwanda-poetry- genocide.
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Many in the international community were outraged at the "passivity" of the UN Security
Council and major world powers who failed to contribute any resources or physical "manpower" to the genocidal region. Once the RFP had claimed victory, the UNAMIR operation was sent back to Rwanda once the "coast was clear" and the real fighting/killing has been completed. The
UN-mandated operation remained in Rwanda until March of 1996, and to this day continues to be one of the largest humanitarian efforts ever organized.28 29
Justice System after Genocide
The genocide and civil war thoroughly destroyed the justice system that had been in place
for decades. It was determined that after the genocide that over a million people (one-fifth of
the Rwandan population) had been culpable to mass murder, war crimes, crimes against
humanity, and genocide after the summer of 1994. Once the genocide was over, the RBF
recorded more than 100,000 arrests over a two-year period. The arrests overwhelmed the
holding capacity of many of Rwanda's prisons, and human rights abuse allegations began to
spread, from the lack of adequate care and representation of those arrested. The country's
prisons were designed to hold about 18,000 people but exceeded that limit and reached
100,000 people, at its peak in 1998. 30
28 History.com Staff. "The Rwandan Genocide." History.com. 2009. http://www.history.com/topics/rwandan- genocide.
29 Dallaire, Roméo, and Brent Beardsley. Shake Hands with the Devil the Failure of Humanity in Rwanda. London: Arrow Books, 2004. 484-500.
30 Tiemessen, Alana Erin. "After Arusha: Gacaca Justice in Post-Genocide Rwanda." African Studies Quarterly, Fall 2004, 8, no. 1 (2004): 57. https://web.archive.org/web/20121216203838/http://www.africa.ufl.edu/asq/v8/v8i1a4.pdf.
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Along with government institutions and the judicial systems being destroyed, government
officials or anyone associated with the previous genocidal regime was murdered. For
example, out of the 750 judges that had presided over the judicial system before the
genocide, 506 had been eliminated by action either directly caused by or attributed to the
genocide. The inner workings of what makes the justice system function took years to repair.
Tiemessen in her article After Arusha: Gacaca Justice in Post-Genocide Rwanda, says, “As
late as 1997 the courts in Rwanda were left to function with only fifty lawyers and a notable
absence of infrastructure and administration, specifically Courts of Appeal, in all twelve
counties. The 130,000 prisoners arrested under suspicion of committing crimes during the
genocide, required a capable and extensive national court system.”31
Obviously, changes had to be made, and solutions had to be found, the end results being the
Gacaca courts and the International Criminal Tribunal for Rwanda (ICTR). The Gacaca courts were Rwanda's response to their legal system problems and prisoner overloads. The courts were initially created to handle the caseload overload and lessen the number of cases normal courts had to preside over. The courts handled the least severe cases and had initially dealt with conflicts within the community, but was later adapted to handle genocide crimes. The key goals of the Gacaca courts was to: identify the truth of what happened during the genocide, speed up the trials of genocide being tried, fight against cultural impunity (the attitudes and behaviors of a social group who considers themselves exempt from punishment32), contribute to the national unity and reconciliation process, and demonstrate the capacity of the Rwandan people to resolve
31 Tiemessen, Alana Erin. "After Arusha: Gacaca Justice in Post-Genocide Rwanda." African Studies Quarterly, Fall 2004, 8, no. 1 (2004): 59. https://web.archive.org/web/20121216203838/http://www.africa.ufl.edu/asq/v8/v8i1a4.pdf.
32 Collas, Solita. "Culture of impunity." Per Se. May 12, 2012. http://www.econ.upd.edu.ph/perse/?p=1054.
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their own problems. The court system ran for years and was estimated to have tried over a million cases. However, the court system was officially closed in June of 2012, after facing criticism for accusations of being "puppet governments," to the RDF among other things.33 34
Lastly, the International Criminal Tribunal for Rwanda (ICTR) was created in October of
1994 as an ad hoc international jurisdiction, by the United Nations and established in Tanzania.
The indicting of high-ranking people for their roles in the genocide began in 1995. The process itself was tough because numerous suspects had escaped during the genocide/civil war and could not be found. The ICTR system was originally given a mandate of four years by the U.N. to try and convict the high-ranking criminals they suspected of committing war crimes, crimes against humanity, and genocide, and addressing those crimes in general, but quickly had to revise those original positions. However, after years of existence, the ICTR closed in 2015, even though there have been worries by the Rwandans and the international community, about who will continue to pursue and prosecute those who have evaded capture and arrest for their various war crimes.35 36
The court system itself will be discussed later in my thesis.
33 Tully, L. Danielle. "Human Rights Compliance and the Gacaca Jurisdictions in Rwanda." Boston College International and Comparative Law Review, Symposium: Science and International Trade (Article 10), 26, no. 2 (May 1, 2003): 385-95. 2003. http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1156&context=iclr.
34 Rettig, Max. "Gacaca: Truth, Justice, and Reconciliation in Postconflict Rwanda?" African Studies Review, December 2008, 51, no. 3 (December 2008). https://www.cambridge.org/core/services/aop-cambridge- core/content/view/B819D89B7629941A01D7D696FBE5E79F/S0002020600002894a.pdf/div-class-title- gacaca-truth-justice-and-reconciliation-in-postconflict-rwanda-div.pdf.
35 Akhavan, Payam. "The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment." The American Journal of International Law 90, no. 3 (July 1996): 501-10. doi:10.2307/2204076.
36 "United Nations Mechanism for International Criminal Tribunals." The ICTR in Brief | United Nations International Criminal Tribunal for Rwanda. http://unictr.unmict.org/en/tribunal.
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Why did the Rwandan Genocide happen?
When one looks at the Rwandan genocide, one must look beyond the surface question of what could have been done to prevent it and instead ask why it happened. Yes, the UN, the US, and other human rights organizations should have paid more attention to the rising social/political turmoil of the African country. However, because of the history of minor skirmishes and turmoil between the Tutsi and Hutus, and the region itself having little to no valuable natural resources, the country was widely ignored until bloodshed erupted, and hundreds of people were killed. Moreover, even with UN assistance and the work of the peacekeepers, outside aide was vastly outnumbered and outmaneuvered by the Hutu-led forces and was forced to evacuate the country and leave behind many Tutsis to fend for themselves and be killed on mass. The genocide itself ended only a few months after its tumultuous beginnings, but during that time the UN and many powerful nations (primarily the United States) chose to
"ignore" the conflict and let the conflict "die down," before interfering or aiding. What made the
UN and the US malinger around the conflict in Rwanda compared to other genocidal conflicts like the Bosnian War and later, genocide, that had started two years prior, and had gotten the US and the UN's full attention at the time? Each case of genocide is different from the other; there are of course similarities in how the genocide began and which and a particular group being targeted, that is how genocide is defined. However, once the genocide started, and the targeted people are being eliminated from existence, one also should look at outside forces, and their response to the conflict, along with the conflict itself.
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The UN's hesitation to get involved, and then misuse of physical fighting forces and political power has been noted in this thesis. This next section will focus on the actions of the United
States (the primary subject of my thesis) and how/why they failed to intervene in the Rwandan conflict before it transformed into a genocidal nightmare. In the months preceding the genocide, the President at the time, Bill Clinton and the rest of his cabinet were informed about violent uprisings and political dissent happening in Rwanda. However, all the President did to get involved was send American soldiers and paratroopers to help UNAMIR forces to help evacuate
American citizens, diplomats, and executives. Once they were successfully rescued and sent out of the country, US troops along with remaining UNAMIR forces were ordered to abandon their post and evacuate the country before the conflict became any more violent.37 Why would the
President, a man who has championed himself as a humanitarian, and gave great aid and funds to other states that suffered through genocide (Bosnia-Herzegovina for example) decide to ignore
Rwanda?
There are various reasons and theories to suggest this response. First, as mentioned in a previous paragraph, Rwanda had no natural resources that the United States could take advantage of in the country. One might say that this is a pessimistic view and that all nation states that intervene in a human rights conflict have the wellbeing of human beings as their primary interest.
Unfortunately, this is an unrealistic and naive assumption; powerful nation states do not get involved in violent political conflict and bloodshed unless they get something in return. Natural resources are an important source/reason for why powerful nation states enter conflicts that have little to no effect on them (especially smaller less powerful nation-states). The United States did
37 Power, Samantha . "Rwanda: Response ("Not Even a Sideshow")." In A Problem From Hell: American and the Age of Genocide, 364. New York, NY: Basic Books, 2013.
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not invade Iraq and Afghanistan to defeat "terror" and spread "freedom purely," they invaded these nation states and others to gain access to the vast oil reserves these countries held and to lay claim to those land and resources for the considerable future. The same goes for Bosnia-
Herzegovina and their natural resources of valuable metals (a very convenient "coincidence" when deciding whom to give resources and aid to). So, when a minuscule country (in comparison to the US) is asking for global resources and assistance and has nothing to offer in return, why should the US respond and answer the call as the "world's policeman," when in fact, they have no desire or need to.38
President Clinton had already proved himself at this point with his response to the Bosnian
War and the aid/resources he outfitted to the people in need along with UN aid. The fact that a genocide had occurred in "Europe" once again, scared the world, and Clinton had to prove that it would "never happen again." By 1995, the Bosnian genocide had ended, and even though the casualties were numerous, the Clinton administration's efforts proved to be an effective source in stopping the violence and helping the remaining survivors find new homes and rebuild their lives once again. So, while in the middle of one genocide, why should President Clinton be expected to help some backward third-world nation that is killing its people over European notions of
"racial purity"? One must consider another factor that many would deny, but has an underlying presence; racial bias. As much as President Clinton and others in his administration would have a hard time admitting, race played a factor in deciding not to intervene in Rwanda.39
38 Power, Samantha . "Rwanda: Response ("Not Even a Sideshow")." In A Problem From Hell: American and the Age of Genocide, 364-66. New York , NY: Basic Books, 2013.
39 Power, Samantha . "Rwanda: Response (“Society-Wide Silence”)." In A Problem From Hell: American and the Age of Genocide, 373-376. New York , NY: Basic Books, 2013.
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Europe is the cosmopolitan of the world, free thought, western democracy, and secularism were born there, so to let "Europe" fall, would essentially be to let the civilization fall. Africa, on the other hand, has always been a place of the untamable, death, and misery. European powers tried to teach/give these values to the "ignorant" Africans, but once Colonialism ended, the
European powers were forced out, and the "ignorant" were left to govern themselves and thus their destruction. This type of message was of course, not explicit in the UN council members and the various world powers who watched as Rwanda descended into chaos. However, it was implicit and therefore held to excuse the inaction the United States and others demonstrated and waited for the "savages" to kill themselves before coming to rescue and rendering minimal aid and comfort for the survivors.
Lastly, if one would rather not want to focus on a "racial" aspect for non-intervention, then their focus can be turned to one of President Clinton's earlier failures as president: The Battle of
Mogadishu, otherwise known as "Black Hawk Down." In 1993, the country of Somalia was under turmoil, and President Clinton sent US military forces to "take care" of the civil unrest and help the citizens of Mogadishu and Somalia with medical supplies, food, and other resources.
The mission was "purely" humanitarian as Somalia had zero natural resources (just like Rwanda) and the goal of the mission was to take out a local warlord who was stealing from impoverished citizens trying to get food, water, and other supplies needed for survival. The mission,
"Operation Gothic Serpent," turned out to be a colossal failure militarily and foreign policy wise for the US. 18 US soldiers were killed, and various military weapons and other instruments of war were either sold or destroyed by the local militiamen and people to try and sell for scrap
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parts.40 That mission and failure could be considered the equivalent of President Kennedy's "Bay of Pigs" failure. President Clinton did not want a repeat of that incident, and unnecessarily lose
US personnel to a foreign conflict/war the US had no interest or reason to take advantage of the state's resources (or lack of it). Therefore, he and his administration decided not to intervene in
Rwanda, and just let nature take its course.41
The Rwandan genocide shows how the international criminal law system not only failed to properly intervene in a country that was embroiled in a civil war, but also placed little to no pressure on the power nation-states (like the U.S.) that could have intervened and helped the UN
Security Council and peacekeepers, but chose not to because of the risk factor and lack of profitable social and economic gains.
Abu Ghraib/The “Torture Memos”
The second case study that will be under review and analyzed in this thesis is the Abu
Ghraib Prison torture and abuse scandal, along with the subsequent leak of the Torture Memos, shortly after these events. This case study was chosen because of the blatant disregard the Bush
administration/American government had (and still does) toward international criminal law
protocol, including the Geneva Conventions. Abu Ghraib and the Torture Memos are prime
40 Bowden, Mark. "Philadelphia Online | Blackhawk Down." Philadelphia Online | Blackhawk Down. 1997. http://inquirer.philly.com/packages/somalia/nov16/rang16.asp.
41 "The US and the Genocide in Rwanda 1994." The US and the Genocide in Rwanda 1994. August 20, 1002. http://nsarchive.gwu.edu/NSAEBB/NSAEBB53/press.html.
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examples of how the US government exploited the international criminal law system in the name
of stopping “terrorism”, and promptly “ignored” or covered their tracks on any violations they
may have/did commit from the time the “War on Terror” was declared, to the end of the Bush
administration; with little to no intervention from the tribunal/court systems that be, within the
international criminal law system.
Background
After the September 11th attacks on the World Trade Center and the Pentagon, President
Bush and his administration took various "actions" to prevent further attacks from ever happening. These "actions" would lead to what would become known as the "War on Terror."
This war was a "unique" war in the sense that the people targeted were not just a single state entity, but in fact were people listed as "stateless actors" whose "power" came from the use of violent strategies like "suicide bombing" for example. Since these tactics/strategies were deemed to be so "extreme," the US government said that their "legitimate" techniques from the Cold War would not be of much use and that they would as former Vice President Dick Cheney said "[had} to work sort of on the dark side," and with that "had to use any means at [its] disposal".42
The Iraq War officially began in the in March 2003. The United States invaded Ba'athist
Iraq (a government run by Saddam Hussein), and the regime was displaced within a month.
However, the conflict was littered with insurgent fighting and fighting those groups that revolted
42 Smeulers, Alette, and Sander Van Niekerk. "Abu Ghraib and the War on Terror—a case against Donald Rumsfeld?" Crime, Law and Social Change 51, no. 3-4 (November 18, 2008): 327-49. doi:10.1007/s10611- 008-9160-2.
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against the post-invasion Iraqi government, and thus the American forces took the role as the occupying power during this period of insurgency.43
The Prison and Violations of International Criminal Law
The Abu Ghraib prison was a prison complex surrounded by 280 acres of land and based
20 miles outside of Baghdad, in the city of Abu Ghraib. It was built in the 1950s by British contractors. The prison held up to 50,000 prisoners (the official capacity is listed as 15,000) where torture and executions were frequent and were one of the most notorious prisons during the regime of Saddam Hussein. After the Hussein regime had collapsed, the prison was raided and looted and was taken over by the US military to use as a military prison. At the time, it was the largest of several detention centers in Iraq run by US forces, and by March 2004, it housed approximately 7,490 people. Most individuals who were held in prison at the time of US military control were considered "common criminals,” that were suspected of being involved in certain forms of insurgencies or with their leaders and accused of committing crimes against US occupying forces. Most of the prisoners live in tents outside the prison, but most abuses took place in cell blocks 1a and 1b. The prison itself was run by 800th Military Brigade whose commander was Brigadier General Janis Karpinski, who at the time oversaw all US-run Iraqi prisons. Those who committed the abuses at the detention center were members of the 372nd
43 FRONTLINE. "Frontline: The Invasion of Iraq: Operation Iraqi Freedom." PBS. 2004. http://www.pbs.org/wgbh/pages/frontline/shows/invasion/cron/.
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Military Police Company and was a sector of the 320th Military Police Battalion which was overseen by Karpinski's Brigade unit/headquarters.44 45 46 47
Because of the complicated and dense nature of the series of events that ensued after
November 2003 and to this present day, I have decided to embed a CNN documented timeline of the reported abuses and events of what happened in Abu Ghraib prison along with the key players/ "abusers" from the prison. You can find this timeline in Appendix A of the Appendix section of this thesis.
44 American Society of International Law. "U.S. Abuse of Iraqi Detainees at Abu Ghraib Prison." The American Journal of International Law 98, no. 3 (July 2004): 591-96. doi:10.2307/3181656.
45 Hersh, Seymour M. "Torture at Abu Ghraib." The New Yorker. August 20, 2015. http://www.newyorker.com/magazine/2004/05/10/torture-at-abu-ghraib.
46 Hersh, Seymour M. "The General's Report." The New Yorker. August 20, 2015. http://www.newyorker.com/magazine/2007/06/25/the-generals-report.
47 Taguba, Antonio. "Taguba Report: AR 15-6 Investigation of the 800th Military Police Brigade - Certified Copy." Www.thetorturedatabase.org. October 19, 2004. https://www.thetorturedatabase.org/document/ar-15-6- investigation-800th-military-police-investigating-officer-mg-antonio-taguba-taguba-.
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Map 2. Map of Iraq Showing Baghdad and Abu Ghraib48
48 En:User:Quadell. Map of Iraq with the location of Abu Ghraib. Digital image. Wikimedia Commons. November 24, 2005. https://commons.wikimedia.org/wiki/File:Iraq_map_Abu_Ghraib.png.
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Map 3. Map of Abu Ghraib Prison Complex49
Once the scandal came to the attention of mass media news/sources, human rights groups, and eventually the public; the question asked was how the US government could justify these actions of torture and crimes against humanity? The answer was through executive orders authorizing the use of torture to gain "imperative" information in the name of national security.
The American Civil Liberties Union (ACLU) released documents in December of 2004 that held internal memoranda from the Federal Bureau of Investigation (FBI) with the use of the Freedom of Information Act. The memorandums showed discussions of torture and abuse in Abu Ghraib,
49 Romulusnr. "Abu Ghraib Prison." Digital image. Virtual globetrotting. June 22, 2005. http://virtualglobetrotting.com/map/abu-ghraib-prison/.
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Guantanamo Bay, Afghanistan, and Iraq. One specific memorandum referenced that an
"Executive Order" that sanctioned the use of extreme interrogation techniques by US armed forces and their military personnel. The torture methods included hooding prisoners (as seen in the famous Abu Ghraib pictures), sleep deprivation, the removal of prisoner clothing, playing loud music, forcing the prisoners to stand in "stress positions" (for example, forcing a detainee to stand on a small block and threatening the electrocution of their genitals if they fall off the block) and the use of attack dogs. The writer of this specific memorandum stated that the Pentagon only allowed minimal uses of these techniques and had to follow a specific chain of command to allow authorization. "Physical beatings," "sexual harassment/torture" were outside the limits/boundaries of the Executive Order. The American Civil Liberties Union (ACLU) documents were the first internal evidence that the use of coercive force was being used and was authorized by the White House and the President himself. 50 51 More evidence of the authorization of torture was reported by the Washington Post and the ACLU whose writers released documents that a Lieutenant General in the US military by the name of Ricardo
Sanchez, authorized the use of torture through sleep deprivation, temperature control, sensory deprivation, and the use of dogs among other forms of control/torture.52 The chain of command
50 American Civil Liberties Union. "ACLU Interested Persons Memo on FBI documents concerning detainee abuse at Guantanamo Bay." American Civil Liberties Union. https://www.aclu.org/other/aclu-interested- persons-memo-fbi-documents-concerning-detainee-abuse-guantanamo-bay?redirect=cpredirect%2F19913.
51 "FBI Memorandum on Torture." May 2004, 1-2. December 2004. https://www.aclu.org/sites/default/files/torturefoia/released/FBI.121504.4940_4941.pdf.
52 Smith, R. Jeffrey, Josh White, and Washington Post Staff Writiers. "General Granted Latitude At Prison: Abu Ghraib Used Aggressive Tactics." The Washington Post. June 12, 2004. http://www.washingtonpost.com/wp-dyn/articles/A35612-2004Jun11.html.
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for those who authorized the use of "torture" would only go higher, as documents were released that Donald Rumsfeld himself, the then Defense Secretary of the United States, had authorized the use of torture, not just for US military personnel, but for hired civilian contractors as well.53
54 55
Torture Memos and Response
Following the aftereffects of Abu Ghraib, came the leaking and release of one of the internal memorandums from what would be infamously known as the "Torture Memos." The memos were originally drafted in August of 2002 by John Yoo, the Deputy Assistant Attorney
General of the United States and were later signed by Assistant Attorney General Jay S. Bybee.
The two advised the President of the United States, along with the CIA, and the Department of
Defense on the legality and approval of various forms of "enhanced interrogation techniques"
(waterboarding, sleep deprivation, physical confinement, etc.). In June of 2004, one of the memos was leaked, and the Office of Legal Counsel (OLC) was forced to backtrack the Yoo documents/memos and sent a warning to other government agencies, not to use them. However,
Jack Goldsmith who was the head of the OLC and had issued these comments was later forced to resign, and Attorney General John Ashcroft along with the new chairman of the OLC reaffirmed
53 Reuters. "Rumsfeld okayed abuses says former U.S. general." Reuters. November 25, 2006. http://www.reuters.com/article/us-iraq-rumsfeld-idUSL2572641320061125.
54 NSA Archives. "Memorandum for the Commander, US Southern Command ." April 16, 2003, 1-17. http://nsarchive.gwu.edu/NSAEBB/NSAEBB127/03.04.16.pdf.
55 Strasser, Steven, ed. The Abu Ghraib investigations: The Official Reports of the Independent Panel and the Pentagon on the Shocking Prisoner Abuse in Iraq. New York: Public Affairs, 2004.
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the approval of Yoo's memos. Later in 2005, the CIA requested new inquiries into their current interrogation techniques, and the OLC released three new memos authored by Steven G.
Bradbury, that ruled that the CIA's techniques be valid and legal if certain rules/constraints were followed.56 57 58 59 The memos themselves are immense and too broad to go into explicit detail and would derail from the main point of these case studies, which are to give a realistic look into how international criminal law is violated in a mix of major and minute ways. However, I have included an appendix (Appendix B) that has the New York Times' timeline and brief summaries of the memorandums and comments by various political, legal and military officials who either agreed or disagreed with them, from the years 2002-2003.
The memos would later be denounced by Colin Powell, who was then Secretary of State in the Bush administration and by many political allies, intelligence experts, mass media, and human rights organizations.60 The Obama administration rescinded all the OLC's previous guidelines during the administration's first term and did as much to distance itself from the
56 Yoo, John C. "Yoo letter to Judge Gonzales." August 1, 2002, 1-6. http://nsarchive.gwu.edu/NSAEBB/NSAEBB127/020801.pdf.
57 Mayer, Jane. "The Memo." The New Yorker. December 12, 2014. http://www.newyorker.com/magazine/2006/02/27/the-memo.
58 Smith, R. Jeffrey. "Lessons from the Justice Department's report on the interrogation memos." The Washington Post. February 28, 2010. http://www.washingtonpost.com/wp- dyn/content/article/2010/02/26/AR2010022602602.html?sid=ST2010022603283.
59 Cole, David, ed. "Introductory Commentary: Torture Law." In The Torture Memos, 1-40. New York , NY: The New Press, 2009.
60 Editorial. "The Torturers’ Manifesto." The New York Times. April 18, 2009. http://www.nytimes.com/2009/04/19/opinion/19sun1.html.
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memos as possible. However, they decided not to prosecute either of the memo's original authors along with the CIA and DOD contractors who enacted the interrogation techniques.61 62
US Disregard for the Geneva Conventions and “Fallout”/Aftermath
Now, although the "Torture Memos" provided a clear-cut example of the Bush administration and the United States military and intelligence personnel purposefully ignoring and breaking various international criminal laws for the allowance of "enhanced interrogation techniques," otherwise known as torture; the moment of disconnect between of legality and illegality in international criminal law can be seen in President George Bush's comments from
February of 2002. The President said that the Geneva Conventions did not apply to Taliban or al-
Qaeda soldiers because they were not members of the armed forces. However, Bush stated that the prisoners would be treated “humanely,” while his Secretary of Defense, Donald Rumsfeld stated that the Geneva Conventions were not crafted to deal with insurgent fighters like those from the Taliban and al-Qaeda. 63
The refusal to convene by the Geneva Conventions and thus, international criminal law, created an environment of uncertainty and confusion. Although, the Bush administration had
61 Stein, Sam. "Bush Torture Memos Released By Obama: See The Complete Documents." The Huffington Post. April 16, 2009. http://www.huffingtonpost.com/2009/04/16/bush-torture-memos-releas_n_187867.html.
62 Parker, Jennifer. "Obama Administration: No Prosecution of Bush Officials for Bush-Era Torture Policy." ABC News. April 19, 2009. http://blogs.abcnews.com/george/2009/04/obama-adminis-1.html.
63 Bush, George W. "Bush Memorandum ." Http://www.pegc.us/. October 12, 2006. http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf.
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made comments before February of 2002 about the United States’ government planned ignorance of the Geneva Conventions because their prisoners were unlawful combatants and therefore did not fall under the statutes of the Geneva Convention and it would reduce the possibility of domestic criminal prosecution. Secretary of State Colin Powell, was against the administration's stance on the rejection of the Geneva Conventions, just as he had been for the
Torture Memos. He argued that it would erase over a century of US foreign policy and the support of the Geneva Conventions, along with undermining the laws of war that had come to protect US military personnel for years.64 Bush's comments led to the highly controversial legal theories of the "Torture Memos" (as mentioned in the previous paragraph), and even with the disapproval of the Secretary of State and top military officers, the use of "enhanced torture methods." added with the rejection of arguably the most famous statutes of international law and military law, set the stage for the US military and Bush administration to violate as many laws and norms of the international criminal law system as possible.
In 2004, Judge James R. Schlesinger was the chairman for an independent panel to review the DOD (Department of Defense) Detention Operations. The Commission Report found that the
"enhanced interrogation techniques" approved by Donald Rumsfeld for use in Guantanamo Bay, had managed to migrate Afghanistan and Iraq, along with DOD and US military personnel, where they were used against prisoners with zero safeguards or limits.65 These abuses would
64 Powell, Colin. "Memo from Colin Powell to Alberto Gonzales." NSA Archives: George Washington University: Touring Democracy . 2008. http://nsarchive.gwu.edu/torturingdemocracy/documents/20020126.pdf.
65 Schlesinger, James R, comp. "Final Report of the Independent Panel to Review Department of Defense Detention Operations." August 2004, 18-19. http://www.npr.org/documents/2004/abuse/schlesinger_report.pdf.
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reach its height and infamy with the Abu Ghraib prison scandal. However, even when Donald
Rumsfeld was confronted with various allegations of ill-treatment and torture by US military personnel, Rumsfeld still denied that the Geneva Conventions were to be used in Iraq and said that "basic" rules were being implemented instead.66
It is interesting to look at the Geneva Conventions, as before the Bush administration they had been recommending as "provisions" for military personnel in the context of military law and conflict. If one wonders if there could be possible "gray zones" among the convention statutes about the status of torture and other cruel and unusual punishments, Common Article 3 of the
Geneva Conventions bans cruel and unusual/inhumane treatment of prisoners along with torture or any action or object that degrades the dignity of said "POW". This is where the interpretation of what and whom the law applies to becomes complicated. Because the Bush administration claimed that their prisoners (at least those accused of being a part of al-Qaeda, Taliban fighters were considered combatants under Afghanistan, a member of the Convention) were terrorists/"unlawful enemy combatants" they are therefore not officially sanctioned military personnel/fighters and therefore the law does not "apply" to them.67
66 Human Rights Watch. "The Road to Abu Ghraib: Circumventing the Geneva Conventions" Human Rights Watch. September 14, 2016. https://www.hrw.org/report/2004/06/08/road-abu-ghraib.
67 Office of the Press Secretary. "58. White House Press Secretary announcement of President Bush's determination re legal status of Taliban and Al Qaeda detainees (February 7, 2002)." U.S. Department of State. https://www.state.gov/s/l/38727.htm.
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However, because of Hamdan v. Rumsfeld, the interpretation of the Geneva Conventions and its use in US military conflicts changed. The case involved a man named Salim Ahmed
Hamdan, a former chauffeur for Osama Bin Laden and who was imprisoned in Guantanamo Bay, filed a petition to challenge his detention in federal court, but before that was tried before a military tribunal and was designated as an "enemy combatant." He was eventually tried in a district court and granted his habeas corpus petition and was given a hearing to determine whether he was a prisoner of war under the Geneva Conventions. The Circuit Court of Appeals and District of Columbia concluded that the Geneva Conventions could not be enforced in federal court. Thus, the military tribunal that was established, had been approved by Congress and was therefore not unconstitutional.68
In other words, the Geneva Conventions could be enforced by the Supreme Court because it is a part of the ordinary laws of war, along with the Uniform Code of Military Justice.
Therefore, the Geneva Conventions apply to prisoners not only in Guantanamo Bay but also in
CIA/DOD run prisons as well. The Bush administration and US government, of course, criticized the ruling of the legal case restricted government personnel too much in collecting/retaining valuable intelligence overseas from important contacts and terrorist suspects. President Bush also claimed that the "legalese" of Common Article 3 of the Geneva Conventions was too vague to fully understand and prevented his interrogators from doing their jobs because they did not want to break the law and be potentially prosecuted under domestic law.69 However, the
68 Oyez. "Hamdam v. Rumsfeld." https://www.oyez.org/cases/2005/05-184.
69 Beehner, Lionel. "The United States and the Geneva Conventions." Council on Foreign Relations. September 20, 2006. http://www.cfr.org/international-law/united-states-geneva-conventions/p11485#p1.
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administration eventually conceded their position on Common Article 3 and President Bush released an executive order that said the Common Article 3 would be applied to future CIA detention and interrogation efforts.70 With all the effort the Bush administration put into ignoring the Geneva Conventions, did they actually have the legal authority to do so?
The US government can only reinterpret parts of the Geneva Convention under U.S. domestic law. When a country signs the treaty (signatory/signatories), they can attach conditions, reservations, etc. at the time of signing or ratification. However, it is relatively uncommon for a signatory to revise or revoke their obligations after many years have passed since they joined the treaty.71 The issue that the Bush administration, the Obama administration, and the Trump administration now still face are foreign detainees (current/former) that suing the US government and its military/intelligence agency personnel in U.S. domestic courts for human rights abuse among other things.
There are technically other laws in place to hold US military personnel responsible for their crimes like The Uniform Code of Military Justice that punish and court-martial and discipline
US military personnel for the abuse of prisoners. Criminal provisions include Article 93 (cruelty and maltreatment), Article 118 and 199 (murder and manslaughter) Article 120 (rape and carnal knowledge), Article 124 (maiming), Article 128 (assault) and Article 133 (conduct unbecoming an officer).72
70 "George W. Bush: Executive Order 13440—Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency - July 20, 2007." The American Presidency Project. http://www.presidency.ucsb.edu/ws/index.php?pid=75569.
71 Beehner, Lionel. "The United States and the Geneva Conventions." Council on Foreign Relations. September 20, 2006. http://www.cfr.org/international-law/united-states-geneva-conventions/p11485#p1.
72 Powers, Rod. "Punitive Articles of the UCMJ: An Overview of UCMJ Articles 77-134." The Balance. September 16, 2016. https://www.thebalance.com/punitive-articles-of-the-ucmj-3356831.
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The violation of prisoner human rights by using "enhanced interrogation techniques,” violates The Convention against Torture and other Cruel, Inhuman, or Degrading Treatment and
Punishment which bans the use of torture, along with The International Covenant on Civil and
Political Rights, and the War Crimes Act of 1996 that makes it a criminal offense for various US military personnel/nationals to commit war crimes at its specification in the Geneva
Conventions.73 74
As it has been stated above, there are laws on the books that arrests and prosecutes US military personnel. However, even when those responsible for torture inside the Abu Ghraib prison were tried and prosecuted in military tribunals (Appendix A), many received light sentences, and the commanding officers in charge of the soldiers/contractors faced little to no prison time/were not held responsible for the allowance of torture and other degrading acts to take place in the prison. Moreover, agency officials, administrators and cabinet members from the Bush administration, like Donald Rumsfeld or George W. Bush himself, have never been held responsible for their public admittance of disregarding the Geneva Conventions and admitting/allowing the use of torture on prisoners/detainees in various U.S. run prisons in
73 Human Rights Watch. "Leadership Failure: Firsthand Accounts of Torture of Iraqi Detainees by the U.S. Army's 82nd Airborne Division." Human Rights Watch. April 29, 2015. https://www.hrw.org/report/2005/09/22/leadership-failure/firsthand-accounts-torture-iraqi-detainees-us-armys- 82nd.
74 Arnold, Roberta. "The Abu Ghraib Misdeeds-Will There Be Justice in the Name of the Geneva Conventions?" Journal of International Criminal Justice 2, no. 4 (December 1, 2004): 999-1006. http://www.lexisnexis.com.proxy.brynmawr.edu/hottopics/lnacademic/?verb=sr&csi=269090.
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Guantanamo Bay, Iraq, and Afghanistan.75 76 In the next section, I will explore, theorize, and give examples of how the International Criminal Law system could be improved upon and hold nation-states like the United States and its government responsible for its multiple and continuous violation of international criminal laws, while restoring justice to those who have been marginalized and “forgotten” by both the perpetrators/violators and the international criminal law system itself.
SECTION IV: Proposed Reforms and Improvements to the International Criminal Law
System
In this section, I will be proposing two main reform changes to improve the international criminal law system. This section will focus on the existing establishment of tribunal and courts within the international criminal law system and how to improve upon them. Each question that is asked in this section will help formulate and bring effective and plausible solutions that the
UN Security Council, ICC, and ICJ among other courts in the international criminal justice system currently face.
The examination of tribunals/courts and how they should be physically protected/enforced is an important criterion and scenario to consider. The first question that must be answered is this:
“Who should stop the violence and disregard for fundamental human rights, and would quicker
75 Human Rights Watch. "The Road to Abu Ghraib." Human Rights Watch. September 14, 2016. https://www.hrw.org/report/2004/06/08/road-abu-ghraib.
76 McCoy, Alfred W., and Alfred W. McCoy. "War on Terror/Impunity in America." In A Question of Torture: CIA Interrogation from The Cold War to the War on Terror, 108-87. New York , NY: Metropolitan Books, 2006.
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acts of interference from the courts/tribunals help it sooner?” Again, this is a very complicated question to tackle, and one that is debated about always, but in the end needs answers to help address the problem.
To start off, in an ideal situation the nation states’ law enforcement and the government should do whatever it takes to protect the people and dismantle the groups/organizations that are promoting violence against certain peoples. However, if the nation states’ law enforcement/governments have been dismantled and/or have proved to be ineffective, then further action needs to be taken by the international criminal law community. So, who takes charge of the situation?
Again, in an idealistic setting, this would be the UN security council and send in their peacekeepers to control and end the flow of violence within the nation state. However, the
Peacekeepers in the past have proven ineffective (UN peacekeepers in Rwanda, for example), and only cause further damage until the goals of the offending perpetrators are achieved, and severe violations have been committed against human rights (Genocide and other crimes against humanity). Many “peacekeepers” themselves have been accused of sexual abuses and other forms of deviances while serving in impoverished and war-torn countries.77 Courts like the ICC claim that they are the “last resort,”78 but should international courts/tribunals be the “first resort” instead?
77 Human Rights Watch. "UN: Stop Sexual Abuse by Peacekeepers." Human Rights Watch. May 04, 2016. https://www.hrw.org/news/2016/03/04/un-stop-sexual-abuse-peacekeepers.
78 Meernik. 19.
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I propose that if domestic courts where the international crime took place cannot effectively punish those who have committed human rights violations in a quick and efficient manner, then there needs to be an international judicial system in place (like the structure of the ICC and ICJ) that can swoop in and punish those responsible for acts of genocide and other permanent forms of damage/violence to particular groups of people are enacted upon. An immediate problem with this suggestion would be jurisdictional disputes, time, money, and energy put into an initiative like this one. In a situation where genocide and other severe human rights violations are occurring in the nation state, I would assume that states’ government/law enforcement would welcome any help they could get in helping stop the perpetrators (if they are not aiding and/or are the perpetrators), instead of waiting and seeing if third party states will help or watch the country collapse.
Next, a system put in place that resembles the UN security council would be responsible for dispatching this court system into place. Along with their unique version of UN peacekeepers who would have the jurisdiction to act in the community where the violence is stemming, stop it, and track down any perpetrators who have managed to escape the roundup. With the proper amount of training/education and initiative, a system like this one would set the agenda of who and human rights violations should interfere in and only look at the facts presented before them with zero biases to or against the nation state in trouble.
The formation of this court system would be like a “Star Chamber” in the general and international sense. The Star Chamber was a court created in English Law as a “side court” to help with the amount of cases the common-law courts saw. They were made up of judges and councilors, and were known for their enforcement of the law, and had the support of the king to
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fund the court’s investigation and procedurals.79 Of course, this court would not be funded/sponsored by a king, but the court in question would still be held to the same standards as a Star Chamber would and have the same amount of respect from the people, law enforcement, and law experts. Those in charge of dispatching law enforcement, prosecutors, and judges to the area of conflict, would have to be prominent humanitarian experts in the global community.
They would be voted into their position by a mix of informed citizens and experts in their fields, would by consensus, decide when and where to interfere with cases of extreme violence towards a group or groups of people. The funding for this initiative would have to come from either the average citizen or various world powers, and a treaty would need to be signed by every recognized nation state for this court system to ever be known/viable. So, what’s the problem, every nation state would love an international criminal court of law system that maintains world peace, right?
The second issue I want to tackle in my arguments section about the ineffectiveness of the international criminal court system is the presumed bias that ICC and other courts/tribunals hold toward Third World and particularly African countries.80 The ICC had been criticized for focusing their investigations on African countries and the prosecution of African leaders. Now, these actions may be warranted, as there is much conflict involving human rights violations stemming in Africa at this moment, however, it is odd that the ICC has focused so many of its current cases/initiatives in the continent. Does it bear a question that international justice, itself, is selective?
79 The Editors of Encyclopædia Britannica. "Court of Star Chamber." Encyclopædia Britannica. July 20, 1998. https://www.britannica.com/topic/Court-of-Star-Chamber.
80 Meernik. 37.
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From the information presented to the international public, prosecutors, judges, etc. I would have to say yes. We all share our individual biases, and when the media and prosecutors present evidence in a way that tries to convince people that the defendant(s) are guilty if you add a racial or “western” bias to those accounts, then you are confident certain parties are guilty while other are not. There is a fear that “victor’s justice” will prevail as was seen with the Nuremberg Trials and the Tokyo Tribunals, where there was a clear “hero” and “villain” dynamic being played throughout the trials. So, it is fair for those who have been accused of human rights violations and have been portrayed in a negative light, to claim unfair biases has been made and that there is discrimination among the actors and the system itself, especially if the accused are innocent of the crimes presented to them. So how does one solve a problem of biases among actors in the court and the system itself?
Honestly, this might be one of those unsolvable answers, just based on the perception of the people on the court. First, you must acknowledge that there is a bias put in place before you can solve it. Moreover, if you have most people who deny, deny, deny; then the issue will be pushed aside and left to be dealt with next time. Questions like these are along the lines of whether plea bargains should be allowed to be made in international criminal courts/tribunals. Many, including myself, would say no, especially if the guilty party has committed human rights violations, and with that plea bargain does not pay the full price for their actions. However, others would argue that plea bargains and other types of deals are needed in courts like these to get the perpetrators to admit to the full brevity of their crimes, and with that find more people/groups to be indicted and later prosecuted for their unlawful/immoral actions.
Differing opinions and constant disagreement are what bring chaos and destruction to our idealistic notions of peace and human security. However, without it, human culture would not be
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diverse and allow for different and enlightening viewpoints to be made. Therefore, it is necessary for our systems of rational and logic, even if it may lead to unnecessary and damaging biases.
However, with these biases, can reconciliation truly be achieved? As I said above, people need to allow different viewpoints and cultures to permeate world society. Moreover, there also needs to be a basic understanding of what human rights entails and if every person is entitled to that. International criminal law tribunals/courts can help the process of reconciliation with the proper adjudication of justice. And with that, it is ultimately up to the victims of the affected group, and the perpetrators to find similarities among the crimes committed in their community.
In an ideal system, the courts would have representatives (humanitarian experts, specifically) to facilitate these conversations and then monitor the situation within their jurisdiction. These experts would then submit reports to the central command of the tribunal/court system and make sure that the nation-state or affected group stays functional and violence free. Efforts like these take time, money, and energy, so after cases like these are solved, many people involved are left to pick up the pieces of their lives and still think and feel that “proper” just has not been enforced yet. In there lies the delicate line between “peace” / “violence” and “bitterness”/ “reconciliation” that has not been completely solved yet and may never be (unless a perfect system is established).
In conclusion of my argument for this section, international tribunals/courts are supposed to address and most efficiently solve the most challenging ethic/moral statutes that are violated in international law. However, the various tribunals/courts that have been created to addresses such issues have not been entirely successful in the elimination or even stagnation of genocide, war crimes, and crimes against humanity. In the public sphere, these courts and tribunals are a "pretty
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picture" or last ditch failsafe. They present the image that these issues in international law are being taken seriously, and efficient measures are taken place to address said problems in the international court of law. However, there are still many complications that these courts suffer from in normal circumstances.
Reconciliation is a fundamental concept to the promotion of tolerance, acceptance, and forgiveness between the abused group/victims and the former abusers. Without proper accountability of those who committed/contributed to these violent acts, both the defendants and plaintiffs will not be able to be judged on their actions in these crimes properly. Thus, peace and forgiveness will never be a possibility, and war crimes will continue to be committed as a form of revenge and tribal/racial pride.
SECTION V: Possible Objections to the Thesis
Objection #1
Critics and readers alike might object to my thesis because even if the court/tribunals within the international criminal law system are proven inefficient, alas, there is still a need for an international tribunal system/structure to deal with the unethical/immoral actions of such a high magnitude. It would take too much time, money, and energy to reform of a system of such magnitude, and there are ICL cases that need to be brought to justice now! Therefore, any tribunal or court system that is currently in place, no matter how ineffective it is, is better than no tribunal/court system at all.
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Response to Objection #1
Those people would be right. A system or group of systems that addresses crimes against humanity is necessary for international law to be practical and fruitful in representing the people, the state, and letting justice take place. However, the reader fails to address the notion that if the system/structure put in place fails to guarantee justice for the victims of the most grievous crimes possible, then that structure needs to change and completely scrapped for a new design. The design must make sure that these courts/tribunals are accessible to the victims and perpetrators alike, making sure no person and no deed go unpunished.81 Also, there needs to be a design that ensures that the trials taking place are given the proper time, commitment, energy, and initiative, to show that proper action is taking place to stop genocide, war crimes, and crimes against humanity.
Objection # 2
Scholars and the general audience alike might object to my thesis because the systems
established are the most comprehensive and extensive structures ever put in place of the
procedural criminal law to deal with various forms of international crime, including crimes
against humanity and genocide. Readers would claim that the system/structure itself is still
relatively new, and it needs more time to grow and become more established within the
international court of law. Once it gets out of the "childhood" stage, the tribunals and courts
will become steadily more efficient and deal out the most justifiable punishments possible to
the people, groups, and states responsible for crimes against humanity.
81 Meernik. 174.
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Response to Objection #2
It is easy to blame ineffectiveness and stagnant behaviors of a court system on "growing pains.” If the subject material on which the law was being dealt upon was any less severe, then this might be a valid excuse, and therefore a few more decades for the system/structure to find its place, could be granted, and those people would, therefore, be right in his opinion. However, the international criminal law system (and the tribunal/courts that preside in it) are responsible for the proceedings and judgment of crimes like acts of genocide, war crimes, and crimes against humanity. They are as previously stated, the most abhorrent and grievous acts possible that any person or group can commit to another individual/group. Therefore, the system/structure that was initially put into place needs to become top notch and airtight, making sure that no wrong deed goes unpunished.
Each case presented within this newly established or refurbished system needs to uniquely fit each case, instead of treating each case the same. If each case gets a “special” treatment, then the community affected by these crimes will make themselves more involved in the process and
“buy in” that justice is being properly adjudicated for that particular case. And with that, the system gains legitimacy from its reliable results, and the trust of the people is earned.82
Finally, those who have been proven in a court of law as guilty to these acts committed will be rightfully and harshly punished (meaning the death penalty needs to be a viable option). As well as strike fear and doubt into the people/groups who dare think they can get away with these acts. Only when the appropriate changes are made, will the public sphere and international law community see a significant change in human rights and security.
82 Meernik. 175.
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Conclusion
The fact of the matter is that genocide is “commonplace” in these contemporary times.
There is no clear-cut way of recognizing them early on or dealing with them effectively. Because genocides are most often deeply embroiled in international relations or inter-ethnic conflicts within nation-states, the current system of international laws is inadequate to deal with each newly risen conflict. The laws of nation-states are, in many instances, too fragmented and broken to deal with genocide. These circumstances often leave the victims of genocide without reconciliation, compensation, or adequate representation in the courts/tribunal system of the nation-state(s)/groups) afflicted.
Thus, the international criminal law system is a complicated and deeply fragmented system that needs to be fixed before more nation-states, like the United States government, military forces, and political entities in general, abuse and exploit the system to the point where it is not repairable. Those who hold power and preside over the various courts and tribunals that make up the international law system, need to restructure and refinance these courts to make them full-fledged legal outlets that can be accessible to the diverse range of humans who live on this planet and deserve a system that is valid and just. Because this thesis could only be so long, I was unable to address questions like "Is the US the only nation-state violate international criminal law?" or “What are the differences between domestic and international judicial proceedings and how do they affect prisoner's rights?" These questions and more can be researched and addressed in similar documents, books, and essays comparable to what this thesis has just presented.
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APPENDICES
Appendix A: CNN Timeline of Abu Ghraib Prison Abuse Scandal
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Citation: CNN Library. "Iraq Prison Abuse Scandal Fast Facts." CNN. March 05, 2017. http://www.cnn.com/2013/10/30/world/meast/iraq-prison-abuse-scandal-fast-facts/.
Timeline:
November 2003 - A detainee dies during an interrogation at Abu Ghraib.
January 2004 - Spc. Joseph M. Darby discovers photos on a CD-ROM of Iraqi prisoners being abused. He reports the abuse to superiors, prompting an investigation.
April 4, 2004 - Maj. Gen. Antonio Taguba releases his report to Lt. Gen. Ricardo Sanchez about misconduct in the 800th Military Police Brigade.
April 28, 2004 - "60 Minutes II" broadcasts graphic photos of Iraqi detainees being humiliated and tortured.
April 30, 2004 - The New Yorker publishes an article by Seymour Hersh reporting details in the Taguba report on the abuses at Abu Ghraib.
April 30, 2004 - Maj. Gen. Antonio Taguba's report detailing his investigation of the 800th Military Police Brigade is released. Taguba's report stated that the following abuses happened in this incident: - Punching, slapping, and kicking detainees; jumping on their naked feet. - Videotaping and photographing naked male and female detainees. - Forcibly arranging detainees in various sexually explicit positions for photographing. - Forcing detainees to remove their clothing and keeping them naked for several days at a time. - Forcing naked male detainees to wear women's underwear. - Forcing groups of male detainees to masturbate themselves while being photographed and videotaped. - Arranging naked male detainees in a pile and then jumping on them. - Positioning a naked detainee on a box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture. - Writing "I am a Rapest (sic)" on the leg of a detainee accused of rape, and then photographing him naked. - Placing a dog chain or strap around a naked detainee's neck and having a female soldier pose for a picture. - A male MP guard having sex with a female detainee. - Using military working dogs (without muzzles) to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee. - Taking photographs of dead Iraqi detainees.
May 4, 2004 - Gen. George W. Casey Jr. announces that in the past 16 months the U.S. Army has conducted more than 30 criminal investigations into misconduct by US captors during both Operation Iraqi Freedom and Operation Enduring Freedom.
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May 5, 2004 - President George W. Bush records interviews with Al Arabiya and US-sponsored Al-Hurra networks expressing his disgust with the mistreatment of Iraqi detainees.
May 6, 2004 - In a joint news conference with King Abdullah II of Jordan, President Bush says he's told the king he's "sorry for the humiliation suffered" by Iraqi prisoners at the hands of US troops in Iraq.
May 6, 2004 - The Justice Department announces that it is looking into three suspicious deaths of detainees, two in Iraq and one in Afghanistan, and the involvement of the CIA and contractors in the deaths.
May 7, 2004 - Secretary of Defense Donald Rumsfeld testifies before the Senate and House Armed Services Committees. "These events occurred on my watch...as Secretary of Defense, I am accountable for them and I take full responsibility.....there are other photos -- many other photos -- that depict incidents of physical violence towards prisoners, acts that can only be described as blatantly sadistic, cruel, and inhuman."
May 10, 2004 - President Bush views some of the photos at the Pentagon and announces his firm support for Rumsfeld.
May 12, 2004 - Rumsfeld testifies before the Senate Appropriations Subcommittee.
August 24, 2004 - An independent commission headed by former Secretary of Defense James Schleslinger reports that what took place at the prison was due largely to "sadism" on the part of officers working the night shift, but that responsibility for the mistreatment of prisoners went higher up the chain of command, back to Washington.
August 25, 2004 - The Fay-Jones report on the Abu Ghraib scandal finds 44 instances of abuse, some of which amounted to torture.
February 15, 2006 - A new set of graphic photographs and video from Abu Ghraib are aired on the Australian television network SBS's program "Dateline." The photos are reportedly from the same period in 2003 that the previous photos were shot, not new incidents.
June 1, 2006 - Sgt. Santos Cardona, an Army dog handler, is found guilty of two of five counts against him, including aggravated assault and unlawfully using his dog to threaten detainees. He is sentenced to 90 days hard labor and a reduction of rank. He must also forfeit $600 of pay per month for a year.
September 1, 2006 - Control of Abu Ghraib is handed over to the Iraqis after all of the detainees are transferred elsewhere.
February 2008 - A documentary about the Abu Ghraib scandal by Oscar-winning director Errol Morris, "Standard Operating Procedure", debuts at the Berlin Film Festival.
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February 21, 2009 - Abu Ghraib reopens after major renovations which include a new gym, barber shop, sewing room, outdoor recreational areas, a library, and computer room. Its name is changed to Baghdad Central Prison.
September 2009 - Saleh et al v. Titan Corporation et al, a federal class action lawsuit alleging abuse at Abu Ghraib by civilian contractors from CACI International is dismissed by a federal appeals court.
2012 - Defense contractor Engility Holdings Inc. agrees to pay 71 former detainees at Abu Ghraib and other sites $5.28 million to settle a lawsuit filed in 2008.
April 2014 - Iraq closes the prison due to security concerns.
March 20, 2015 - US District Judge Alvin K. Hellerstein orders the Defense Department to release photos that show detainees being abused in detention centers in Iraq and Afghanistan. January 18, 2017 - Hellerstein rules that the government must release an estimated 2,000 additional photos of prisoner abuse at Abu Ghraib and other military facilities in Iraq and Afghanistan.
Select players:
Spc. Megan Ambuhl 372nd Military Police Company October 30, 2004 - As part of a plea deal, Ambuhl pleads guilty to one charge of dereliction of duty. She is discharged from the Army without prison time.
Sgt. Javal S. Davis 372nd Military Police Company February 1, 2005 - Pleads guilty as part of a plea agreement. February 5, 2005 - Is sentenced to six months in a military prison. Late May 2005 - Is released after serving approximately three months.
Pfc. Lynndie England 372nd Military Police Company May 2, 2005 - England pleads guilty to reduced charges as part of a pretrial agreement. May 4, 2005 - A mistrial is declared after she pleads guilty but then states that she did not know her actions were wrong. September 21, 2005 - England's second court-martial trial begins at Fort Hood, Texas. September 26, 2005 - England is found guilty of four counts of maltreating detainees, one count of conspiracy and one count of committing an indecent act. September 27, 2005 - Is sentenced to three years in prison and given a dishonorable discharge. March 2007 - Is released from military prison after serving half of her 36-month sentence. 2009 - Releases her biography, "Tortured: Lynndie England, Abu Ghraib and the Photographs that Shocked the World."
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Staff Sgt. Ivan "Chip" Frederick II 372nd Military Police Company October 20, 2004 - Pleads guilty to conspiracy, dereliction of duty, maltreatment of detainees, assault, and committing an indecent act under a plea agreement. October 21, 2004 - Is sentenced to eight years in prison and also sentenced to a forfeiture of pay, a dishonorable discharge and a reduction in rank to private. October 1, 2007 - Is paroled after serving approximately three years in a military prison.
Spc. Charles Graner 372nd Military Police Company January 14, 2005 - Graner is found guilty of nine of 10 counts under five separate charges. January 15, 2005 - Graner is sentenced to 10 years in prison, downgraded to the rank of private with loss of pay, and receives a dishonorable discharge. August 6, 2011 - Graner is released from prison.
Spc. Sabrina Harman 372nd Military Police Company: May 16, 2005 - Is found guilty on six of the seven charges for her role in the Abu Ghraib prison abuse scandal. May 17, 2005 - Sentenced to six months in prison. Harman is demoted to private, and receives a bad conduct discharge after she finishes the sentence.
Lt. Col. Steven L. Jordan Director, Joint Interrogation and Debriefing Center during the fall of 2003. Jordan is the only officer charged with prisoner abuse. April 28, 2006 - Charged with eight counts, including disobeying an order, dereliction of duty, cruelty, false statements, fraud and interfering with an investigation. August 28, 2007 - Acquitted of charges that he failed to control soldiers who abused detainees, but is found guilty of disobeying a general's command not to talk about allegations of abuse at the prison. On August 29, he is sentenced with a reprimand. January 10, 2008 - Cleared of all wrongdoing, and the conviction and reprimand are removed from his record.
Brig. Gen. Janis Karpinski Commander of the Army Reserve's 800th Military Police Brigade, in charge of all 12 Iraqi detention facilities, including Abu Ghraib. May 5, 2005 - She is demoted from brigadier general to colonel by President Bush after an extensive investigation and is cited for two of four allegations against her, dereliction of duty and shoplifting. The probe clears her of "making a material misrepresentation to an investigating team" and "failure to obey a lawful order."
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Col. Thomas Pappas Commander of the 205th Military Intelligence Brigade. May 2006 - Reprimanded, fined, and relieved of command after using muzzled dogs inside interrogation rooms.
Lt. Col. Jerry L. Phillabaum Commander, 320th MP Battalion. April 2004 - He is reprimanded and relieved of command of the 320th Military Police Battalion for his role in the scandal.
Spc. Jeremy Sivits 372nd Military Police Company May 19, 2004 - Sivits pleads guilty as part of a pretrial agreement with prosecutors that leaves him open to testify against other soldiers charged in the scandal. He is sentenced to a year of confinement, discharge for bad conduct, and is demoted. ]
Appendix B: New York Times Timeline & Summary of the Torture Memos
Citation: The New York Times. "A Guide to the Memos on Torture." The New York Times. June 25, 2004. http://www.nytimes.com/ref/international/24MEMO-GUIDE.html.
“The New York Times, Newsweek, The Washington Post and The Wall Street Journal have disclosed memorandums that show a pattern in which Bush administration lawyers set about devising arguments to avoid constraints against mistreatment and torture of detainees. Administration officials responded by releasing hundreds of pages of previously classified documents related to the development of a policy on detainees.
Additional documents were released in December and January by the American Civil Liberties Union, which filed a civil lawsuit seeking to discover the extent of abuse of prisoners by the military. Those papers are posted at aclu.org.
2002
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JANUARY A series of memorandums from the Justice Department, many of them written by John C. Yoo, a University of California law professor who was serving in the department, provided arguments to keep United States officials from being charged with war crimes for the way prisoners were detained and interrogated. The memorandums, principally one written on Jan. 9, provided legal arguments to support administration officials' assertions that the Geneva Conventions did not apply to detainees from the war in Afghanistan.
JAN. 25 Albert o R. Gonzales, the White House counsel, in a memorandum to Pre sident Bush, said that the Justice Department's advice in the Jan. 9 memorandum was sound and that Mr. Bush should declare the Taliban and Al Qaeda outside the coverage of the Geneva Conventions. That would keep American officials from being exposed to the federal War Crimes Act, a 1996 law that carries the death penalty.
JAN. 26 In a memorandum to the White House, Secretary of State Colin L. Powell said the advantages of applying the Geneva Conventions far outweighed their rejection. He said that declaring the conventions inapplicable would "reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops." He also said it would "undermine public support among critical allies."
FEB. 2 A memorandum from William H. Taft IV, the State Department's legal adviser, to Mr. Gonzales warned that the broad rejection of the Geneva Conventions posed several problems. "A decision that the conventions do not apply to the conflict in Afghanistan in which our armed forces are engaged deprives our troops there of any claim to the protection of the conventions in the event they are captured." An attachment to this memorandum, written by a State Department lawyer, showed that most of the administration's senior lawyers agreed that the Geneva Conventions were inapplicable. The attachment noted that C.I.A. lawyers asked for an explicit understanding that the administration's public pledge to abide by the spirit of the conventions did not apply to its operatives.
FEB. 7 In a directive that set new rules for handling prisoners captured in Afghanistan, Pre sident Bush broadly cited the need for "new thinking in the law of war." He ordered that all people detained as part of the fight against terrorism should be treated humanely even if the United States considered them not to be protected by the Geneva Conventions, the White House said. Document released by White House.
AUGUST A memorandum from Jay S. Bybee, with the Office of Legal Counsel in the Justice Department, provided a rationale for using torture to extract information from
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Qaeda operatives. It provided complex definitions of torture that seemed devised to allow interrogators to evade being charged with that offense.
Dec. 2 Memo from Defense Department detailing the policy for interrogation techniques to be used for people seized in Afghanistan. Document released by White House.
2003
MARCH A memorandum prepared by a Defense Department legal task force drew on the January and August memorandums to declare that Pre sident Bush was not bound by either an international treaty prohibiting torture or by a federal anti-torture law because he had the authority as commander in chief to approve any technique needed to protect the nation's security. The memorandum also said that executive branch officials, including those in the military, could be immune from domestic and international prohibitions against torture for a variety of reasons, including a belief by interrogators that they were acting on orders from superiors "except where the conduct goes so far as to be patently unlawful.'
APRIL A memorandum from Secretary of Defense Donald H. Rumsfeld to Gen. James T. Hill outlined 24 permitted interrogation techniques, 4 of which were considered stressful enough to require Mr. Rumsfeld's explicit approval. Defense Department officials say it did not refer to the legal analysis of the month before.
DEC. 24 A letter to the International Committee of the Red Cross over the signature of Brig. Gen. Janis Karpi nski was prepared by military lawyers. The letter, a response to the Red Cross's concern about conditions at Abu Ghraib, contended that isolating some inmates at the prison for interrogation because of their significant intelligence value was a "military necessity," and said prisoners held as security risks could legally be treated differently from prisoners of war or ordinary criminals.
Other Memorandums
Some have been described in reports in The Times and elsewhere, but their exact contents have not been disclosed. These include a memorandum that provided advice to interrogators to shield them from liability from the Convention Against Torture, an international treaty and the Anti-Torture Act, a federal law. This memorandum provided what has been described as a script in which officials were advised that they could avoid responsibility if they were able to plausibly contend that the prisoner was in the custody of another government and that the United States officials were just getting the information from the other country's interrogation. The memorandum
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advised that for this to work, the United States officials must be able to contend that the prisoner was always in the other country's custody and had not been transferred there. International law prohibits the "rendition" of prisoners to countries if the possibility of mistreatment can be anticipated.
Neil A. Lewis contributed to this report. Online Document Sources: Findlaw.com and National Security Archive, George Washington University (gwu.edu)”
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