In the wake of the Downing Street Memo and other leaked British documents created before the U.S.-led invasion of Iraq, many have begun to question the legality of the Bush administration's actions. In particular, families of soldiers, a few Democratic senators, and hundreds of thousands of outraged Americans, are calling for an independent investigation of the Bush administration's manipulation and outright fabrication of intelligence to justify the invasion of Iraq. The word "impeachment" is even being bandied about.
While it is certainly appropriate to demand an independent investigation of the Bush administration's pre-invasion shenanigans, as well as to pursue bringing articles of impeachment against the President for his official misconduct, there is something larger at stake. There is the matter of the Bush administration's post-invasion atrocities.
Pursuant to U.N. Security Council Resolution 1483, adopted on May 22, 2003, the U.S. and the United Kingdom identified themselves and were recognized as the occupying powers of Iraq. As an occupying power, the U.S. accepted duties that were coextensive with its area of occupation. That is, the greater its degree of control, the greater its degree of responsibility.
With the creation of the Coalition Provisional Authority, headed by men hand-picked by the Bush administration, the U.S. clearly and undeniably took control over every aspect of what remained of Iraq. Likewise, the CPA, by and through the U.S. military, provided the security (such that it was), created and enforced the laws (such as they were), and provided any semblance of infrastructure following the ouster of Saddam. In short, the U.S., and its coalition of the willing, assumed total control of post-Saddam Iraq.
The so-called handover of "authority" to the Iraqi transitional government did not change the status of the U.S. as an occupying force. The transitional government has no authority over the U.S. military or its civilian contractors. Indeed, without the presence of the U.S. military, there would be no transitional government. Furthermore, the transitional government operates under laws and regulations created and promulgated by the CPA. Therefore, the Iraqi transitional government is itself governed by the law of the occupying force, rendering it little more than a facade.
Having assumed control as an occupying
power, the U.S. also assumed responsibility for what occurred during its
occupation of Iraq. Among its responsibilities to the people of Iraq is
the duty to ensure against violence to life and person, including cruel
treatment and torture, as required under Article 3 of the Fourth Geneva
Convention. Article 3 establishes a minimum set of rights for all persons
under occupation, regardless of their status as civilian, unprivileged
belligerent, terrorist, or war criminal. (The United States is not only a
signatory to the Fourth Convention, but also expressly recognizes the
requirements of Article 3 via the War Crimes Act of 1996.) Furthermore,
under Article 31 of the Fourth Convention, "No physical or moral coercion
shall be exercised against protected persons [those subject to
occupation], in particular to obtain information from them or from third
parties." Article 147 expressly eliminates the defense of military
The interrogation tactics were imported from Guantanamo Bay where they were already known to be in violation of the Geneva Conventions and international law. Such tactics included the use of dogs, stripping prisoners naked, causing physical pain, exploiting Islamic concerns for modesty, sleep deprivation, isolated confinement, and chaining detainees to the floor for extended periods of time. All of these techniques were approved by the Bush administration, developed at Guantanamo, exported to Abu Ghraib, and known to be in violation of the Geneva Conventions.
Indeed, the interrogation techniques developed at Guantanamo and subsequently employed at Abu Ghraib were created pursuant to President Bush's declaration in February 2002 that those detained at Guantanamo were outside the protections of the Geneva Conventions. At the same time that the Bush administration was openly declaring the Geneva Conventions inapplicable to its war on terror, it was requesting legal justification from the Departments of Justice and Defense for interrogation involving physical abuse. Therefore, while the Bush administration might not have expressly authorized the more barbaric abuses which occurred at Abu Ghraib, by so radically changing and rejecting the laws of war, the Bush administration most certainly knew that the systemic sadism at Abu Ghraib was likely, if not certain.
As recognized by the U.S. Supreme Court in the decision In re Yamashita, "the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates." It is clear from another decision by the U.S. Supreme Court, Madsen v. Kinsella, that President Bush, as Commander-in-Chief of the military, is the commander of the military force by which the occupation of Iraq is held. Thus, Bush is responsible for the criminal acts of his subordinates in Iraq. Furthermore, based upon the "torture memos" commissioned by the White House, Bush certainly should have known that torture and abuse would be perpetrated at Abu Ghraib. For the White House to claim otherwise strains credulity.
As the occupying power, the U.S. is also obligated under Article 3 of the Fourth Convention to ensure that "the wounded and sick shall be collected and cared for." Thus, the intentional failure to provide adequate medical treatment, or a policy of denial and neglect involving foreseeable consequences, would be a clear violation of this duty.
Nevertheless, as repeatedly reported by Human Rights Watch and Amnesty International, as well as by the BBC and the New York Times, and as recently documented by journalist Dahr Jamail in his report, "Iraqi Hospitals Ailing Under Occupation," the U.S. is in gross violation of Article 3.
For instance, on November 6, 2004, as a prelude to its invasion of Fallujah, the U.S. military razed Nazal Emergency Hospital, the city's only healthcare facility for trauma victims. U.S. forces also detained doctors and patients, and prevented any surgeons from entering the besieged city. At Fallujah General Hospital, U.S. forces closed off all access roads and surrounded the hospital with troops and vehicles, preventing patients from getting medical care.
Additionally, U.S. snipers targeted civilian ambulances and medical clinics, and intentionally prevented physicians from entering hospitals to treat patients. U.S. troops also prohibited the delivery of necessary medicines or supplies into Fallujah. Similar incidences occurred during the U.S. military's recent offensive in Al Qa'im.
Not only do these actions constitute gross violations of the Fourth Geneva Convention, they also constitute war crimes under Article 8 of the Rome Statute of the International Criminal Court. Under the Rome Statute, it is a war crime to attack personnel or objects (i.e., ambulances and hospitals) involved in humanitarian assistance. It is also a war crime to attack "protected objects," including "hospitals or placed where the sick and wounded are collected."
As Commander-in-Chief of the military, Bush is liable for the acts of his subordinates in Fallujah and Al Qa'im. Bush meets regularly with the Joint Chiefs of Staff and is fully briefed on military operations in Iraq. He authorizes military operations (or at least acquiesces to them) and knows or should know something about what they entail. As such, he cannot reasonably plead ignorance of the consequences of his orders and decisions.
Moreover, Bush and his administration knowingly and deliberately created a climate in which it is presumed that the Geneva Conventions and international law are inapplicable to the crusade against terror. Not only did Bush issue his presidential memorandum declaring the Geneva Conventions inapplicable to terrorists (or alleged terrorists, as is more often the case), but his administration has been openly hostile to international bodies and laws which could hold him and his administration accountable.
For instance, aside from its obsessive denigration of the United Nations, the Bush administration is zealously opposed to the International Criminal Court and has even gone so far as to withhold aid from nations who refuse to sign agreements immunizing suspected U.S. war criminals from ICC prosecution. In some cases, the immunity agreements are reciprocal and the U.S. has agreed not to turn over to the ICC accused war criminals from Georgia, Sierra Leon, Tajikistan, Uganda, Israel, and Nicaragua, among others. Not exactly a group that staunchly protects and respects human rights and international law.
In such a climate, is it any wonder U.S. forces in Iraq torture prisoners, shoot at ambulances, and reduce hospitals to rubble? It certainly shouldn't be to Bush and his partners in crime.
Ken Sanders is a writer based in Tucson, Arizona. Visit his weblog at: www.politicsofdissent.blogspot.com/.
Other Articles by Ken Sanders
Other Articles by Ken Sanders