War Criminals Watch & Marjorie Cohn / TruthOut – 2018-01-04 21:40:36
War Crimes and Crimes Against Humanity
War Criminals Watch
(January 4, 2018) — Since World War II, the United States has greatly expanded its global military presence and interventions around the world in order to protect overseas investments and to exploit global resources, including human labor, to establish itself as the dominant superpower.
But with the destruction of the World Trade Center in New York City on September 11, 2001, the United States government shifted from simply selectively ignoring human rights norms to categorically asserting the right to overturn decades of hard-won principles of international human rights law. The “war on terror” response to that horrific event brought to a new level and solidified the criminal program of the US government, sacrificing liberty to a false promise of security, encompassing:
* wars of aggression, unjust occupations, and the use of targeted killing by drones, causing the deaths of hundreds of thousands of civilians around the world
* mass surveillance on whole populations, with intent to chill protest and dissent/indefinite detention and torture of prisoners at GuantÃ¡namo and other sites, including torturing hunger strikers with force-feeding
* torture, intimidation and prosecution of whistleblowers while covering up for those responsible for crimes against humanity.
War Criminals Watch was originally founded to demand prosecutions of the Bush and subsequent Obama administrations’ high officials guilty of high crimes and misdemeanors. The new fascist Trump/Pence coterie is on a fast track to outdo the horrors of prior regimes. The climate change that Trump supporters deny represents another crime against humanity. There is still time to retard its advance — but not a lot.
Only an energized and politically active public can force accountability for war crimes and crimes against humanity. War criminals must be publicly shamed and prevented from occupying powerful positions in our society. We cannot give in to desperation. This situation is intolerable and must be stopped. It is crucial to build a united movement that prevents Trump/Pence from consolidating a hold on the reins of governmental power as part of our drive to stop US war crimes and to protect civil liberties and human rights at home and abroad.
A Look at International Law and US Behavior
The brutality of the US government’s “war on terror” has been condemned both by the court of international public opinion and by the Principles of International Law governing human rights. The wars of aggression in the Middle East and the torture of those caught up in them are clearly defined as war crimes by the UN Declaration of Human Rights, the Geneva Conventions, the Convention against Torture and other treaties to which the United States is a signatory. (The United States’ own US War Crimes Act defines torture as a war crime).
Seemingly endless war continues in Iraq and Afghanistan as well as Libya, Somalia, Pakistan and, most ferociously at this time, in Yemen and Syria. Under the aegis of “national security,” additional countries are being drawn into these conflagrations.
The Principles of International Law, recognized by the Nuremberg Tribunal, provide no defense for war crimes. Similarly, the Convention Against Torture, which defines torture as a war crime, provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”
The prohibition against war crimes is thus absolute. As US Justice Robert Jackson proclaimed at Nuremberg: “No grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy. The same applies to other war crimes as well. The war crimes of one’s opponents are no justification for one’s own.”
As he further stated, “If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
We find, however, that because of the political and military power of the United States, that US war criminals are not being brought to court for reckoning. The United States has refused to put itself under the jurisdiction of the International Criminal Court, making it extremely difficult and time consuming to hold any US official subject to criminal investigation and prosecution.
We have an obligation to prosecute war crimes and crimes against humanity after they occur as well as to stop the shameful policies that allow them to continue.
During the Obama administration, an aggressive, full-scale whitewashing of the “war on terror” crimes was completed in August 2012, when Attorney General Eric Holder announced the closing without charges of the only two cases under investigation relating to the US torture program. This decision, said The New York Times “eliminat[es] the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the CIA.”
Several leaders accused of Bush-era war crimes remained in the Obama administration — for example, Stanley McChrystal, Robert Gates, David Petraeus, Jonathan Fredman, and, of course, John O. Brennan, former head of the CIA. All have been involved in military and domestic “national security” policy.
In April 2012, Brennan was the first Obama administration official to publicly acknowledge the CIA drone attacks in Pakistan, Yemen, Somalia, Libya, Afghanistan and elsewhere.
In his speech at the Wilson Center, he argued for the legality, morality and effectiveness of the program. In 2011/2012 he also helped to codify the process, under the aegis of the Disposition Matrix database by which people outside of war zones are put on the list of drone targets. The reorganization helped “concentrate power” over the process inside the White House — which may prove even more disastrous now with Donald Trump at the helm.
As for targeting US citizens for drone attacks, former Attorney General Eric Holder openly adduced a new “permission” for such killing with the disingenuous claim that the “due process” clause of the 5th amendment does not require “judicial process.” In other words, the President can legally kill US citizens by doing “due process” in the White House. This is the legacy Obama left for his successor, who has already expanded drone attacks and has stated his plans to further do so.
No constraints by courts or Congress were placed on the Obama administration’s war crimes. Despite Obama’s declaration of transparency in government, a wall of secrecy shrouded the conduct of wars, including drone war and covert operations. By his words and rash actions, Trump has shown a willingness to attack foreign countries in violation of international law and in disregard of the constraints of the US Constitution which reserves to Congress the power to wage war.
This has been an outgrowth of the Authorization for the Use of Military Force (AUMF) which was passed by Congress in the aftermath of 9/11 expanding presidential military authority. (Note that the House of Representatives’ Appropriations Committee passed an amendment repealing the AUMF, which was then passed as part of the fiscal year 2018 defense spending bill in late June 2017 — this hasn’t gone to the Senate yet.)
Since the assumption of power by the fascist Trump/Pence Regime in January 2017 unusually large numbers of civilians have been killed despite and in open violation of US and international law. Authorization for air strikes is being outsourced more broadly, obfuscating at times the trail of responsibility.
Broad power has now been give to the CIA to conduct drone strikes, beyond Obama’s delegation of that power to the DoD’s Joint Special Operations Command. One outgrowth of this is removal of requirements to report on numbers killed during an operation.
And, if all the above isn’t frightening enough, we have Trump’s stated interest in using nuclear weaponry — along with his finger on the button.
For detailed information and extended analysis of the Trump administration and war crimes, see Congress Must Reclaim War-Making Authority and “Donald Trump’s War Crimes” [reposted below] .
Copyright 2017 War Criminals Watch. All Rights Reserved.
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Donald Trump’s War Crimes
Marjorie Cohn / TruthOut & War Criminals Watch
(April 15, 2017) — Just two and a half months into his presidency, Donald Trump has already distinguished himself as a war criminal. His administration is killing unusually large numbers of civilians, in violation of US and international law.
Killing Civilians in Record Numbers
The Trump administration began to kill civilians over inaugural weekend, with two drone strikes in Yemen that claimed 10 lives. One drone struck three people on a motorcycle. The other hit seven people riding in a car. Neither Trump nor Defense Secretary James Mattis admits to having approved the strikes. It is not clear who authorized them.
One week after his inauguration, Trump bemoaned the death of a US Navy Seal in a botched raid he personally ordered in southern Yemen. Trump made no mention of the 30 people, including at least 10 women and children, killed by the US bombers. The attack badly damaged a health facility, a school and a mosque.
Over the past month, the US-led coalition has killed an inordinate number of civilians.
“Almost 1,000 non-combatant deaths have already been alleged from coalition actions across Iraq and Syria in March — a record claim,” according to Airwars, a non-governmental organization (NGO) that monitors civilian casualties from airstrikes in the Middle East. “These reported casualty levels are comparable with some of the worst periods of Russian activity in Syria.”
Airwars says that US aircraft have inflicted most of the casualties in the coalition strikes.
Indeed, so many civilians have died from coalition airstrikes since Trump took office, Airwars is reducing its work on “alleged Russian actions in Syria — so as best to focus our limited resources on continuing to properly monitor and assess reported casualties from the US and its allies.”
During the last part of March 2017 alone:
* US drones bombed a mosque in Aleppo, Syria, claiming at least 47 civilian lives.
* US aircraft bombed homes, a school and a hospital in Tabqah, Syria, killing 20 civilians.
* A US-led coalition airstrike on a school that was housing 50 families displaced by the fighting near Raqqa, Syria, killed at least 33 civilians.
* A US airstrike in Mosul, Iraq, killed more than 200 people, causing the largest loss of civilian life since the United States began bombing ISIS in Syria and Iraq in 2014. The attack was approved somewhere in the Middle East, according to US defense officials, probably by a one-star general or a team working under her or him.
Abu Ayman, who lives in Mosul, told Reuters he saw several flattened houses and severed limbs scattered around. “I ran to my next-door neighbor’s house and with others we managed to rescue three people, but at least 27 others in the same house were killed, including women and children of relatives who fled from other districts,” he said. “We pulled some out of the rubble, using hammers and shovels to remove debris. We couldn’t do anything to help others as they were completely buried under the collapsed roof.”
Another Mosul resident said, “Now it feels like the coalition is killing more people than ISIS.”
Chris Woods, director of Airwars, told the Washington Post, “Casualty numbers from western Mosul are absolutely shocking. In Syria it’s a car here, a family there. It happens every day.”
The coalition forces’ use of white phosphorous, a chemical weapon that burns to the bone, has been documented in Mosul. And the US Central Command has confirmed that it has used depleted uranium, arguably a war crime, against ISIS in Syria.
Coalition Airstrikes Violate US Law
The Trump administration, like its two immediate predecessors, justifies the use of armed drones and other forms of targeted killing with reference to the Authorization for the Use of Military Force (AUMF) that Congress passed just days after the September 11, 2001, attacks. In the AUMF, Congress authorized the president to use force against groups and countries that had supported the terrorist strikes.
But Congress rejected the Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” Deterrence and preemption are exactly what Trump is purportedly trying to accomplish by sending robots to kill “suspected militants” or those who happen to be present in an area where suspicious activity has taken place.
In 2013, the Obama administration promulgated a Presidential Policy Guidance for targeted killing “outside areas of active hostilities.”
The guidance allows the targeting of a person who poses a “continuing, imminent threat” not just to “US persons” but also to “another country’s persons.” A 2011 Department of Justice white paper, leaked in 2013, said a US citizen could be killed even when there is no “clear evidence that a specific attack on US persons and interests will take place in the immediate future.” This makes a mockery of the “imminent threat” requirement. There is presumably an even lower bar for noncitizens.
In addition, the guidance requires “near certainty that an identified HVT [high-value target] or other lawful terrorist target” is present before using lethal force against him. Yet, like the Obama administration, the Trump regime probably mounts “signature strikes” that don’t necessarily target individuals, but rather all males of military age present in an area of suspicious activity.
And the guidance says there must be “near certainty that non-combatants [civilians] will not be injured or killed.” Given the large number of civilian casualties from drone strikes and other targeted killings, the Trump administration does not appear to be complying with this requirement.
Now, the Pentagon is proposing to expand “the battlefield” beyond Iraq, Afghanistan and Syria, so that other designated countries won’t be considered “outside areas of active hostilities.” The threshold for protecting civilians would thus be lowered from “near certainty” that civilians won’t be injured or killed to a “reasonable certainty.” This will invariably result in even more civilian casualties.
Trump has designated three areas in Yemen, and will soon designate Somalia, “areas of active hostilities,” or “temporary battlefields.”
Moreover, the National Security Council is contemplating whether to rescind the Obama guidance altogether, eliminating the “continuing and imminent threat” requirement. It’s possible that it could modify the “near certainty” standard to apply only to women and children, but not to men of military age.
Trump has granted broad power to the CIA to conduct lethal drone attacks. Obama had largely limited that power to the Defense Department’s Joint Special Operations Command. The CIA, unlike the Pentagon, doesn’t have to report how many people it kills during a strike.
In mid-March, 37 former government officials and national security experts from across the political spectrum sent a letter to Defense Secretary James Mattis, warning the administration to proceed cautiously when reviewing the targeted killing guidance. The letter said, “Even small numbers of unintentional civilian deaths or injuries … can cause significant setbacks.”
Regardless of the guidance, however, the coalition is still constrained by international humanitarian law.
Coalition Airstrikes Violate International Law
“Self-defense,” under Article 51 of the United Nations Charter, is a narrow exception to the Charter’s prohibition of the use of force. Countries may engage in individual or collective self-defense only in the face of an armed attack. To the extent the United States claims the right to kill suspected terrorists or their allies before they act, there must exist “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” under the well-established Caroline Case. Trump’s targeted killings do not meet this standard.
Drone attacks off the battlefield violate well-established principles of international law. Targeted or political assassinations — sometimes known as extra-judicial executions — run afoul of the Geneva Conventions, which include willful killing as a grave breach. Grave breaches of Geneva are punishable as war crimes under the US War Crimes Act.
The United States has ratified the International Covenant on Civil and Political Rights, which states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The Covenant also guarantees those accused of a crime the rights to be presumed innocent and to a fair trial by an impartial tribunal. Targeted killings abrogate these rights.
There is also a legal obligation to comply with the requirements of proportionality and distinction, two bedrock principles of international humanitarian law, as delineated in the First Protocol Additional to the Geneva Conventions.
Proportionality means an attack cannot be excessive in relation to the anticipated military advantage sought. The administration is using drones to take out convoys and is killing large numbers of civilians, compared with the number of “militants” it is targeting.
Distinction requires that the attack be directed only at a legitimate military target. The coalition has been targeting sites with no clear military purpose, including hospitals, schools, mosques and passenger ferries. And if the Trump administration is continuing Obama’s policy of launching signature strikes, bombs are being dropped on unidentified people located in an area of “suspicious” activity.
The Rome Statute for the International Criminal Court defines the following as war crimes: willful killing; willfully causing great suffering or serious injury; intentional attacks against civilians or civilian objects; and intentionally launching unjustified attacks, knowing they will kill or injure civilians.
US-led coalition bombings of schools, hospitals, homes and mosques, resulting in high numbers of civilian casualties, constitute war crimes.
Mosul Eye, a monitoring organization, warned Iraqi troops that civilians were trapped in homes days before the US airstrike, even sending the coordinates. Amnesty International concluded that the US-led coalition should have known its airstrikes would cause many civilian casualties because the government had told people to remain in their homes.
Amnesty International said the coalition was not using sufficient precautions to avoid civilian casualties in Mosul, calling it a “flagrant violation” of international humanitarian law. “Disproportionate attacks and indiscriminate attacks violate international humanitarian law and can constitute war crimes,” Amnesty International noted.
Trump Escalates in the Middle East
Meanwhile, the US military is planning to deploy an additional 1,000 troops to northern Syria. There are roughly 500 US Special Operations forces there already, as well as 200 Marines and 250 Rangers.
The administration reportedly plans to lift the troop caps of 5,000 in Iraq and 500 in Syria that were established by the Obama administration.
Trump is asking Congress to add $54 billion annually to the military budget for what he refers to as his “public safety and national security budget.”
Disturbingly, Trump has not ruled out the use of nuclear weapons as he prosecutes his “war on terror.” In an interview on MSNBC, he wondered, “Somebody hits us within ISIS [also known as Daesh], you wouldn’t fight back with a nuke?”
And Trump made the troubling assertion that he would consider killing innocent families of suspected terrorists, declaring, “When you get these terrorists, you have to take out their families.” Targeting civilians violates the Geneva Conventions.
The Trump administration will likely relax the rules of engagement for targeted killing, resulting in the deaths of increasingly large numbers of civilians, in violation of US and international law.
Under the doctrine of command responsibility, commanders — all the way up the chain of command to the Commander-in-Chief — can be liable for war crimes if they knew or should have known their subordinates would commit them and did nothing to stop or prevent them. Command responsibility is enshrined in Supreme Court case law and the US Army Field Manual.
Trump and other high officials in his administration should be held accountable for war crimes.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild and deputy secretary general of the International Association of Democratic Lawyers. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse; Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and Drones and Targeted Killing: Legal, Moral, and Geopolitical ssues. Visit her website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.
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