The other day, in the diaries, someone posted as to the legal grounds under which Bush might actually be impeached. Everyone offered up their favorite suggestion, but the topic made me want to go and investigate the 1996 War Crimes Act, mostly because the main focus of the Gonzales memo seemed to be preventing any prosecutions of US Nationals under the provisions of that Act. What I have found has led me to three conclusions:
1. Alberto Gonzales is not as smart as he thinks he is.
2. The memo states that the DOJ opinion applies only to Afghanistan and the Taliban, Iraq isn't mentioned anywhere.
3. There is the very real possibility the Bush himself, if implicated in the decision to use the interrogation techniques found in Abu Ghraib (and extensively documented), could be prosecuted under the War Crimes Act.
War Crimes Act of 1996
8 U.S.C. § 2441. War crimes
(a) Offense.--Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances.--The circumstances referred to in subsection (a) are that the person committing such breach or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition.--As used in this section the term "war crime" means any conduct--
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non- international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.
There is really not a lot to it, because it mostly depends on treaties to which the US is already a party. Although Gonzales spends much of his time w/r/t defusing the Geneva Convention, again, this opinion applies only to the Afghanistan conflict, and a quick read of the applicable articles shows US culpability in Iraq. The real trouble for Gonzales (and Bush) comes in the annex to the Hague Convention IV.
Geneva Convention relative to the Treatment of Prisoners of War
Adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of
International Conventions for the Protection of Victims of War, held in Geneva
from 21 April to 12 August, 1949
entry into force 21 October 1950Article 1
The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.
Article 2
In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
2. The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Now, according to my understanding, based in the language of the 1996 Act, even though this is an international conflict, the language in article 3 w/r/t the treatment of prisoners clearly applies in Iraq, and should apply as well in Afghanistan, Guantanamo etc., because of subsection c/1. I also note that for everyone who says that the contractors have no legal oversight it states quite clearly in subsection b that US nationals are liable under this act. But onto the really good stuff.
Art. 23.
In addition to the prohibitions provided by special Conventions, it is especially forbidden -
To employ poison or poisoned weapons;
To kill or wound treacherously individuals belonging to the hostile nation or army;
To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;
To declare that no quarter will be given;
To employ arms, projectiles, or material calculated to cause unnecessary suffering;
To make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;
To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war;
To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war. (emphasis added)
Now, I'm no lawyer (nor do I play one on TV), but to me the last section of article 23 states pretty clearly that the entire DOJ/Gonzales stratagem is prohibited by the same 1996 War Crimes Act they are seeking to circumvent. Like it or not, they are on the hook for Guantanamo and Afghanistan, as well as Iraq. Talk about not doing your Homework!
According to my interpretation, any nation involved in hostilities has no standing to make such any decision vis a vis the legal rights of hostile nationals. Please note that this applies whether or not the hostiles belong to a failed state and whether or not they wear uniforms, both arguments made by Gonzales saying the Taliban failed to meet the standards in the Geneva convention for recognition under the treaty. However, under Article 23, also in the 1996 Act, these standards are irrelevant. If they are hostile nationals, as belligerents, we must respect all of their legal rights, either as criminals, or as POW's. Period. Anything else is a violation of the 1996 Act which means the violators are War Criminals. Furthermore, even if you accept the argument that the law didn't apply in Afghanistan, it clearly applies in Iraq, and, IMHO, we have very clearly violated it.
Two other items of interest: in his memo, Gonzales reviews arguments pro and con and states the US has previously made the determination that the Geneva convention didn't apply, specifically in 1989, Panama, under Bush I. He goes on to state that we still observed the Convention "for reasons of policy". The other is even creepier: "A determination that GPW (Geneva Convention) does not apply to al Qaeda and the Taliban could undermine US military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries"..
Seems to me that is a tacit admission of responsibility on the part of the White House, since that is exactly what happened in Iraq. And if they are legally responsible for what happened in Iraq, then they are, indeed, War Criminals. And they should be prosecuted as such.