The Apparent War Crimes of Robert Gates

One of the joys of my life is the correspondence I receive from the great minds drawn to peace. George Phillies, Ph.D., teaches physics and game design at Worcester Polytechnic Institute. Earlier this year, the Libertarian Party of New Hampshire made him their candidate for President. Phillies, currently working on his ninth book, edits Liberty for America magazine. A reader, donor and pen pal to Antiwar.com, Professor Phillies expects nothing less than a non-interventionist foreign policy. He can be reached at phillies@4liberty.net. –Angela Keaton

The Apparent War Crimes of Robert Gates
Suggestions from the Public Record

I consider here why friends of peace, including progressives and liberals as well as libertaians, should condemn the continuation in office of Secretary of Defense Robert Gates. He has arguably committed a variety of acts for which he should at least be impeached and convicted. I remind foreign readers that under the American Constitution impeachment and conviction are not a criminal trial and do not under our double jeopardy rules preclude later criminal trials for the same acts: In particular, Gates is arguably guilty of a variety of war crimes and crimes against peace:

Prosecuting a War of Aggression
Failure to Protect Civilian Populations – Bombing Unprotected Cities
Failure to Prosecute: Hostage Taking
Failure to Prosecute: Torture.

The Nuremberg Principles establish as a Crime against Peace “Crimes against peace: Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;”

The War on Iraq was unmistakably a war of aggression, because there was no attack by Iraq on the United States and there was no threat by Iraq to attack the United States. Furthermore, United Nations Security Council resolutions prior to the war clearly reserved to the Security Council authority to determine what enforcement actions should be undertaken. The Security Council did not authorize an attack on Iraq. The United Nations Charter is a treaty ratified by the Senate, so it is part of American law. Therefore, it was a violation of American law for the United States to attack Iraq. While Gates was not Secretary of Defense during the original attack on Iraq, he was Secretary of Defense while American Military operations were being conducted inside Iraq. Gates was involved in prosecuting the war of aggression against Iraq.

Failure to Protect Civilian Populations Credible estimates show that since the start of the RIaq more, more than two million Iraqis have fled their country, and hundreds of thousands of Iraqis have died. As has been repeatedly noted by Juan Cole and others, large parts of Baghdad have gone dark because ethnic cleansing campaigns have marched to completion.

It was the responsibility of the United States as the occupying power to prevent this level of catastrophe, and it failed to do so. As Secretary of Defense, Gates had extensive resources that he did not deploy. For example, the United States a military including to active divisions, Marine divisions, and reserve divisions, yet at any time nor more than five or six were deployed in Iraq. Deployment in war is ‘for the duration’, not ‘for a year’, so the excuse that forces needed to be rotated out of Iraq should be seen as inadmissible.

Bombing of Unprotected Cities. Under Gates, the United States has regularly bombed Iraqi cities under our protection. It has routinely bombed households in Afghanistan and, separately, Pakistan, often based on claims of informants and not actual forces engaged in combat against those positions.. As a result large numbers of civilians who we are required to protect died. These military actions are war crimes. Because Gates is second in the Chain of Command, and because he had failed to issue appropriate orders to prevent them, he is responsible for what has happened.

War crimes? The United States Code says of war crimes

“U.S.C. 18 Chapter 118 §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 war crime 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

(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; ”

The Geneva Conventions provide: “Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”

And the Convention provides with respect to protected persons

“Art. 147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

What if the war was over? After all, we are in the (some large number) of days since ‘Mission Accomplished”. The Fourth Geneva Convention, to which the United States is a party, tells us

” 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…In the case of occupied territory, … the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12…”

Failure to prosecute: Hostage Taking: Even if a crime did not occur on the Secretary of Defense’s watch, if it was committed by his subordinates he is obliged to ensure its prosecution. In particular, he has an obligation to arrange for the prosecution of war crimes. His failure to arrange for prosecution facilitates the conduct of further such crimes and is therefore itself arguably a war crime.

The Geneva Conventions define a variety of criminal acts. One is the taking of hostages:

The ACLU, whose FOIA suit revealed directions for putting prisoners in stressful positions, using loud music and light control, changing sleeping patterns, and the use of muzzled military working dogs. Sanchez was later forced to resign over the Abu Ghraib scandals. There is clear evidence that the torture of water boarding was used on a large scale.

There has been no systematic program to prosecute torturers. Is torture a crime? Federal law is clear. I remind readers of 18 U.S.C. provides:

“2340 (1) “torture” means an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from-
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profound1y the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

2340A:
(a) Offense.-Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.- There is jurisdiction over the activity prohibited in subsection (a) if-
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.-A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.”

Of course, some people will say that the torturers were only obeying orders. Ignoring the serious question of whether or not Befehl ist befehl should work better in an American courtroom than it did at Nuremberg, there is the modest matter than the law refers specifically to a person acting under color of law, and therefore when a defendant states he was obeying orders to torture someone, he is admitting to one of the conditions that must be established to rpove his guilt.

Because torture leading to death is a capital crime, persons accused of this crime must be provided with competent counsel, who may very well work vigorously to block any suggestion that defendants were acting under color of law.

What of the torture was actually performed by a foreigner? The law provides no particular exclusions for particular instruments of torture, such as rubber hoses wielded by foreign nationals.

Furthermore, the law includes a conspiracy section. Who might those conspirators include? Someplace out there are the faceless “lawyers” who told the torturers that they were not committing crimes. Those people, like the judges of the WW2 German “justice” system, may yet find themselves facing legitimate justice. Then, of course, there are the people who participated in transporting the torturers and their victims hither and thither. Perhaps those people had no association with the Department of Defense, and no one in a chain of command leading up to Gates knew anything about them.

Some torturers may claim ‘military necessity’ for their evil deeds. The Convention on Torture , which is American Law because it is a ratified treaty, tells us that ‘torture’ is

“Article 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

and

“Article 2. ….2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.”