Abuse of Iraqi Detainees at Abu Ghraib: Will Prosecution and Cashiering of a Few Soldiers Comply With International Law? Commentary
Abuse of Iraqi Detainees at Abu Ghraib: Will Prosecution and Cashiering of a Few Soldiers Comply With International Law?
Edited by: Jeremiah Lee

JURIST Guest Columnist and international law scholar Jordan Paust of the University of Houston Law Center says that legal responsibility for the Abu Ghraib prison abuses extends beyond the few soldiers currently subject to investigation and prosecution…

There has been a great deal of attention paid in recent days to the investigation and prosecution of a few military personnel in connection with torture and abuse of Iraqi detainees at the Abu Ghraib prison near Baghdad, but US responsibility under international law demands far more by way of response. First, torture is not the only crime evident in the revelations. Second, the revelations demonstrate that more than a few soldiers were involved. This was not an isolated criminal activity and more than military personnel were party to it.

In addition to torture, customary and treaty-based human rights law prohibits “cruel, inhuman or degrading treatment.” The law of war also prohibits torture and such other forms of treatment regardless of the status of the person detained. For example, the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War includes various individual rights and duties evidenced in the following types of phrases: “Persons taking no active part in hostilities…shall in all circumstances be treated humanely;” “mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment” are proscribed (article 3); persons detained without trial have the right to be “treated with humanity” (article 5); with respect to most civilians and others who are longer taking an active part in hostilities, there shall be “respect for their persons, their honor…. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity” (article 27); “No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them” (article 31); persons in control are “prohibited from taking any measure of such a character as to cause the physical suffering…of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation…, but also to any other measures of brutality whether applied by civilian or military agents” (article 32); “all measures of intimidation” are outlawed (article 33); “grave breaches,” in addition to other war crimes listed, include “torture or inhuman treatment…, wilfully causing great suffering and serious injury to body or health” (article 147). In addition to human rights law and the laws of war, torture is also proscribed under a separate treaty ratified by the United States and implemented by 18 U.S.C. § 2340A.

Some forms of abuse can also constitute crimes against humanity under international law if they involved attacks on civilians or persecution on such grounds as race, religion, or nationality. Additionally, the customary international crime of forced disappearance occurs when persons are detained by “agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state,” and there is a refusal to disclose either the names or whereabouts of the detainees. It may be the case that some forms of coercion were even terroristic in purpose (i.e., were designed to produce intense anxiety or fear) and are condemnable as impermissible terrorism. Use of attack dogs to terrorize naked detainees would fit.

What is the responsibility of the United States under international law with respect to such alleged crimes? It is a responsibility to initiate prosecution of or to extradite any person, military or civilian, found within its territory or territory under its jurisdiction who is reasonably accused of such a crime or crimes. Does the President of the United States have the duty to faithfully execute that responsibility? Yes, under Article II, Section 3 of the Constitution, the President must faithfully execute the law, which includes treaties of the United States and customary international law that, as the Founders and Framers unanimously agreed, is part of the laws of the United States. The President has promised recently that those responsible will be prosecuted. Can the United States prosecute military personnel and others who have left the service or who were civilians at the time of an alleged crime in the federal district courts? Yes. Torture as such can be prosecuted under 18 U.S.C. § 2340A — and the statute is extraterritorial, reaching “Whoever outside the United States commits or attempts to commit torture.” War crimes, including “grave breaches” of the Geneva Conventions, can be prosecuted either under 10 U.S.C. § 818 (which incorporates the laws of war as offenses against the laws of the United States) coupled with 18 U.S.C. § 3231 (which provides federal district courts with original, and at least concurrent, jurisdiction over any offense against the laws of the United States) or under 18 U.S.C. § 2441 (for “grave breaches” and violations of article 3 of the Geneva Conventions committed by U.S. nationals). Some civilians can also be prosecuted under a new Military Extraterritorial Jurisdiction Act (18 U.S.C. § 3261). There is no federal statute that incorporates crimes against humanity or forced disappearances as such, but Congress, if it is really concerned about what happened at Abu Ghraib and elsewhere and seeks to assure that it won’t happen again and that the United States complies with international law, could create new legislation that operates retrospectively to reach what are already crimes under customary international law without violating any ex post facto prohibitions.

Moreover, rare press statements and reports from the International Committee of the Red Cross (ICRC) reveal that abuse of detainees in Iraq has occurred in several named places (the 2004 published report alone listing more than eleven sites), systematically in order to gain “confessions and extract information” if not elsewise, and throughout the last year — not just at Abu Ghraib and not merely early this year, which has been the focus of military investigations. ICRC officials and reports also state that they regularly complained and provided details of criminal activity last year and this year to prison authorities in Baghdad, senior officials of the Coalition Provisional Authority headed by Paul Bremer, and senior officials in the Bush Administration, which apparently included senior officials at the Pentagon and State Department. News stories also reveal that Secretary of State Colin Powell raised the issue of ICRC complaints at meetings of cabinet officials, but to no avail. Yet, Secretary Donald Rumsfeld testified that he did not learn of the abuses until mid-January when CENTCOM announced the problem. Various human rights organizations also complained of abuses directly to Paul Bremer and Condoleezza Rice, the national security adviser to the President.

What is even more disturbing has been the fostering of a culture wherein abuse can thrive by the President, the Secretary of Defense and others who have openly claimed at least since January 2002 that persons detained without trial during the war in Afghanistan and then later in Iraq were not entitled to protections under human rights law or the Geneva Conventions; that non-prisoners of war can be forcibly transferred from occupied territory in blatant violation of article 49 of the Geneva Civilian Convention (a war crime); that the names and whereabouts of numerous detainees will be kept secret in seriou
s violation of various international laws; that intimidation and stress-and-duress techniques of interrogation should be tolerated despite human rights and Geneva law prohibitions; that the President should have an unreviewable and unchecked power to decide who should be detained and interrogated, where, and how; that rewards “dead or alive” could be offered despite the fact that such conduct is a war crime; and that persons who might face prosecution for war crimes (using 10 U.S.C. §§ 818, 821) at Guantanamo must not have the minimal due process guarantees that are required by human rights law and the Geneva Conventions. The admitted failure to train soldiers in the laws of war as required by international law did not help.

Is the range of leaders responsible for dereliction of duty limited to those with formal command? No, it can include cabinet officials and others with effective authority, military or civilian. Is leader responsibility limited to circumstances where the leader knew of crimes committed by others? No, the general test is: knew or should have known, had an opportunity to act, and took no reasonable corrective action. Want of knowledge because of a failure to request reports or information is not an excuse. After crimes have been committed, inquiries and reports are not enough. Leaders must fulfill the responsibility to initiate prosecution of all of those who are reasonably accused of international crime. Leaders must assure that those who control other human beings have adequate training, at least in the laws of war. Failure to do so can form the basis for a leader’s dereliction of duty, a separate crime under the laws of war.

Jordan J. Paust is Law Foundation Professor at the University of Houston Law Center and a former Captain, U.S. Army Judge Advocate General’s Corps and member of the faculty of TJAG School (1969-1973).

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