Posts Tagged ‘The Geneva Conventions’

International Law: The First Casualty of the U.S. Drone War in Pakistan

December 15, 2009

A comprehensive legal analysis of U.S. drone strikes in Pakistan

Uruknet.com, Dec 14, 2009

By Max Kantar

ABSTRACT. This report utilizes well-established principles of both treaty and customary international law as a measuring stick for attempting to determine the legal and moral legitimacy of the covert U.S. policy of using drones to attack targets in Pakistan. This analysis is unique in that it uses both broad assessments as well as pertinent individual case studies with the purpose of chronicling the details of several drone attacks over a period of 45 months in the interest of legal evaluation. Drawing from a vast collection of reliable press reports, independent human rights testimonies, and the most prominent, mainstream studies, this report is quite possibly the most comprehensive analysis on the topic to date and likely the first of its kind to appear in the wake of the US-Pakistan drone controversy.

Continues >>

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Israel may face UN court ruling on legality of Gaza conflict

January 14, 2009

Children at a UN-supported school for pupils displaced from their homes Link to this video

Israel faces the prospect of intervention by international courts amid growing calls that its actions in Gaza are a violation of world humanitarian and criminal law.

The UN general assembly, which is meeting this week to discuss the issue, will consider requesting an advisory opinion from the international court of justice, the Guardian has learned.

“There is a well-grounded view that both the initial attacks on Gaza and the tactics being used by Israel are serious violations of the UN charter, the Geneva conventions, international law and international humanitarian law,” said Richard Falk, the UN’s special rapporteur on the Palestinian territories and professor emeritus of international law at Princeton University.

“There is a consensus among independent legal experts that Israel is an occupying power and is therefore bound by the duties set out in the fourth Geneva convention,” Falk added. “The arguments that Israel’s blockade is a form of prohibited collective punishment, and that it is in breach of its duty to ensure the population has sufficient food and healthcare as the occupying power, are very strong.”

A Foreign Office source confirmed the UK would consider backing calls for a reference to the ICJ. “It’s definitely on the table,” the source said. “We have already called for an investigation and are looking at all evidence and allegations.”

An open letter to the prime minister signed by prominent international lawyers and published in today’s Guardian states: “The United Kingdom government … has a duty under international law to exert its influence to stop violations of international humanitarian law in the current conflict between Israel and Hamas.”

The letter argues that Israel has violated principles of humanitarian law, including launching attacks directly aimed at civilians and failing to discriminate between civilians and combatants.

The letter follows condemnation earlier this week from leading QCs of Israel’s action as a violation of international law, and a vote by the UN’s human rights council on Monday on a resolution condemning the ongoing Israeli military operation in the Gaza Strip.

“The blockade of humanitarian relief, the destruction of civilian infrastructure, and preventing access to basic necessities such as food and fuel are prima facie war crimes,” a group of leading QCs and academics, including Michael Mansfield QC and Sir Geoffrey Bindman, wrote in a letter to the Sunday Times.

Israel has already been found to have violated its obligations in international law by a previous advisory opinion of the ICJ, and is likely to vigorously contest arguments that it is an occupying power. It previously stated that occupation ceased after disengagement from Gaza in 2005.

Its stance raises questions as to the utility of an advisory opinion by the ICJ after Israel rejected its finding in a previous case, which found the wall being constructed in the Palestinian territories to be a violation of Israel’s obligations under international humanitarian law.

Questions are also being raised as to whether the international criminal court, which deals with war crimes and crimes against humanity, would have any jurisdiction to hear cases against perpetrators of the alleged crimes on both sides of the conflict. Neither Israel nor the Palestinian territories are signatories to the Rome statute, which brings states within the jurisdiction of the ICC.

More likely, experts say, is the establishment of ad-hoc tribunals of the kind created to deal with the war in the former Yugoslavia and the genocide in Rwanda.

“If there were the political will there could be an ad-hoc tribunal established to hear allegations of war crimes,” Falk said. “This could be done by the general assembly acting under article 22 of the UN charter which gives them the authority to establish subsidiary bodies.”

Dick Cheney Throws Down Gauntlet, Defies Prosecution for War Crimes

December 20, 2008

by Marjorie Cohn

Dick Cheney has publicly confessed to ordering war crimes. Asked about waterboarding in an ABC News interview, Cheney replied, “I was aware of the program, certainly, and involved in helping get the process cleared.” He also said he still believes waterboarding was an appropriate method to use on terrorism suspects. CIA Director Michael Hayden confirmed that the agency waterboarded three Al Qaeda suspects in 2002 and 2003.U.S. courts have long held that waterboarding, where water is poured into someone’s nose and mouth until he nearly drowns, constitutes torture. Our federal War Crimes Act defines torture as a war crime punishable by life imprisonment or even the death penalty if the victim dies.

Under the doctrine of command responsibility, enshrined in U.S. law, commanders all the way up the chain of command to the commander-in-chief can be held liable for war crimes if they knew or should have known their subordinates would commit them and they did nothing to stop or prevent it.

Why is Cheney so sanguine about admitting he is a war criminal? Because he’s confident that either President Bush will preemptively pardon him or President-elect Obama won’t prosecute him.

Both of those courses of action would be illegal.

First, a president cannot immunize himself or his subordinates for committing crimes that he himself authorized. On February 7, 2002, Bush signed a memo erroneously stating that the Geneva Conventions, which require humane treatment, did not apply to Al Qaeda and the Taliban. But the Supreme Court made clear that Geneva protects all prisoners. Bush also admitted that he approved of high level meetings where waterboarding was authorized by Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet.

Attorney General Michael Mukasey says there’s no need for Bush to issue blanket pardons since there is no evidence that anyone developed the policies “for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.” But noble motives are not defenses to the commission of crimes.

Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Second, the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers. When the United States ratified the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby making them part of U.S. law, we agreed to prosecute those who violate their prohibitions.

The bipartisan December 11 report of the Senate Armed Services Committee concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Lawyers who wrote the memos that purported to immunize government officials from war crimes liability include John Yoo, Jay Bybee, William Haynes, David Addington and Alberto Gonzales. There is precedent in our law for holding lawyers criminally liable for participating in a common plan to violate the law.

Committee chairman Senator Carl Levin told Rachel Maddow that you cannot legalize what’s illegal by having a lawyer write an opinion.

The committee’s report also found that “Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.” Those techniques migrated to Iraq and Afghanistan, where prisoners in U.S. custody were also tortured.

Pardons or failures to prosecute the officials who planned and authorized torture would also be immoral. Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantánamo.”

During the campaign, Obama promised to promptly review actions by Bush officials to determine whether “genuine crimes” were committed. He said, “If crimes have been committed, they should be investigated,” but “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”

Two Obama advisors told the Associated Press that “there’s little-if any – chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.”

When he takes office, Obama should order his new attorney general to appoint an independent prosecutor to investigate and prosecute those who ordered and authorized the commission of war crimes.

Obama has promised to bring real change. This must be legal and moral change, where those at the highest levels of government are held accountable for their heinous crimes. The new president should move swiftly to set an important precedent that you can’t authorize war crimes and get away with it.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and President of the National Lawyers Guild.  She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd), which will be published this winter by PoliPointPress.  Her articles are archived at www.marjoriecohn.com (The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

Deprivation and Desperation in Gaza

November 25, 2008

By JOE MOWREY | Counterpunch, Nov  24, 2008

As conditions in the Gaza strip approach a catastrophic level of deprivation, the world media, and in particular the U.S. media, remain largely silent. The United Nations, whose truckloads of food and medical supplies continue to be denied entry into Gaza by Israel, appears to be one of the few international voices of dissent concerning the collective punishment of 1.5 million human beings. This, despite the fact that more than 50% of the population in Gaza is comprised of children under the age of 15.

Israel claims to be defending itself against the crude, often homemade rockets which militant factions in Gaza fire randomly into southern Israel. Though it may be considered politically incorrect, this writer refuses to precede his remarks with the requisite, “It’s wrong for militant Palestinians to be firing rockets into Israel.” The ethics of Palestinian resistance to the Zionist colonization of Palestine and the dispossession of the Palestinian people is a subject for another article. The issue at hand is one of collective punishment. Regardless of the actions of certain factions in Gaza, the fact remains that Israel (with the approval of the U.S.and the world community) is depriving an entire civilian population of food, medicine and clean drinking water in response to the violent actions of a few among that population. By any civilized standard this behavior is wrong and should be condemned vociferously. To paraphrase the words of an alien from another planet in a not-so-great Hollywood movie of some years ago, every sentient being knows the difference between right and wrong.

Apparently not. Israel’s Foreign Minister and likely future Prime Minister, Tzipi Livni, recently dismissed the notion that Israel’s actions in Gaza amount to collective punishment and claimed those actions were a justifiable response to the rocket attacks on Israel. She stated, “The international community must be more decisive in making itself heard and in using its influence in the face of these attacks.”

To suggest that the international community should condemn “these attacks” by militant Palestinian factions, yet ignore the humanitarian disaster being imposed on Gaza by the government of Israel demonstrates a nearly incomprehensible level of hypocrisy. But more importantly, the fact that Jews are the ones perpetrating these unconscionable actions in Gaza is a tragedy of historic proportions. The Geneva Conventions, particularly those articles addressing the  of civilian populations, were largely crafted in response to the treatment of Jews by the Nazis during World War II. Has the sense of exclusivity and entitlement created by the Zionist experiment in Israel become so great that people there no longer see themselves in the mirror of their own history? The irony of Jews, among the most egregiously persecuted and maligned people in history, denying food to hundreds of thousands of children in order, allegedly, to insure their own security, is breathtaking. Who could ever have imagined such a thing?

As people of Gaza suffer, here in the U.S., the vast majority of so-called progressives continue to revel in the recent election of the first Black man to the Presidency. While Obama has garnered a great deal of political and financial support by pledging his unconditional support for the Zionist regime in Israel, he remains completely silent on the plight of the children of Gaza. Our first Black President not only refuses to speak out against the collective punishment of an oppressed people, he actively supports and encourages the regime responsible for this behavior. This too is a tragedy of historic proportions. Have we come this far in the struggle against racism in our country only to see Barack Obama put a minority face on U.S. support for violations of international law and essential human dignity by Israel? Again, one has to say, who could ever have imagined such a thing?

Each morning I peruse the alternative media online and hope to see at least some minor degree of outrage at the situation in Gaza. A small but courageous handful of progressive web sites dare to criticize Israel and speak out against the abuse of the Palestinian people. But for the most part, the glorious and powerful “NetRoots” movement is too busy congratulating itself on the so-called victory it has achieved in the recent elections, too busy celebrating the illusion of change which Barack Obama represents, to admit the absence of any indication of substantive change in U.S. foreign policy in Palestine or the Middle East under his coming administration.

Does it ever occur to those who so blindly and passionately rallied ‘round their candidate for the Presidency that they might now use their voices to encourage him to oppose the human rights abuses being orchestrated in Gaza? The sad reality is, not even a chorus of such voices is likely to alter the course Obama appears to have taken. He has surrounded himself with a familiar cast of armchair militarists, corporatists and hard core pro-Zionist zealots who will continue to give their unconditional support to Israel regardless of what barbaric tactics the government there uses to advance the colonization of Palestine. He is choosing to turn his back on the men, women and children in Gaza and the West Bank who suffer chronic malnutrition, desperate poverty, dispossession and daily humiliation at the hands of the Israeli military.

We should stand up in opposition to instances of human rights abuses whenever and wherever they occur. The situation in Gaza is only one on an unfortunately long list, locally, nationally and internationally. And U.S. government (that means you and me) support for and complicity in many such instances is no secret. If each of us were to do just one thing per week to address these issues, the result might surprise us all. Take a minute out from the long and endless chatter of day to day living and speak to a friend about the idea of social equality. Write one letter to the editor of your local paper in support of human rights. Spend just one percent of your online hours learning the truth about our complicity as U.S. citizens in the exploitation and degradation of other people and their cultures. Turn off your television. Go stand on a corner with a sign to protest war. Wear a button promoting peace and justice. One small thing at a time.

To those who became politically active, possibly for the first time, and expended their valuable enthusiasm and energy in order to see Barack Obama elected: thank you for being a part of history. Now why not try on the mantel of social activism? Write our President-elect a letter and suggest that he at least acknowledge the suffering of the people in Gaza. It is doubtful it will change him or his policies, but it may change you. And that truly is “change we can believe in.”

Every sentient being knows the difference between right and wrong. The question is, why do so few of us act on that knowledge?

Joe Mowrey is an anti-war and Palestinian rights activist. He lives in Santa Fe, New Mexico, with his spouse, Janice, and their three canine enablers. You can write to him at jmowrey@ix.netcom.com.


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