Some day, someone is going to do a legal post-mortem of the War on Iraq. Among the various issues they'll hopefully cover is the legality of the invasion, the state of prosecutions for war crimes and human rights abuses, the performance of the US military tribunals, the number of US troops charged (and dismissed or lighly reprimanded) for war crimes, and of course, ultimately, the responsibility of the likes of Rumsfeld, Cheney, Powell and Rice for their role in war crimes.
There was a time when the US was at least nominally at the forefront of bringing human rights abusers to justice. Not any more. Here's a nice little retrospective of just one event for those who may not know how Rumsfeld and the Bush administration have evaded responsibility for war crimes thus far. It can be summarized in two phrases: "official immunity" and "state secrets".
Back in 1993, Belgium used to have a law on the books that allowed Belgian courts to pursue torturers and human rights abusers, regardless of where their crimes may have occurred, or whether the victims or accused had any relationship to Belgium. In 1999 the law was amended to say that the principle of "official immunity" would not prevent the application of the law.
Belgium was not the first country in the world to proclaim universal jurisdiction over human rights abuses, but this was the broadest law in force at the time since it did not require any link between Belgium and the the suspect, victims, or events. Anyone who was tortured anywhere by anyone could initiate proceedings in Belgian courts.
The law was effectively used in 2001 to try four Rwandans for their participation in the genocide. All four were convicted and sentenced to prison terms of 12-20 years, to universal applause. The Belgian courts also started investigating criminal complaints against Cuban President Fidel Castro, Iraqi President Saddam Hussein, a former minister of the Democratic Republic of Congo, former Iranian President Hashemi Rafsanjani, and others.
But then, in June 2001, 23 survivors of the 1982 massacre of Palestinian refugees by Israeli-backed Lebanese Phalangists at the Sabra and Shatila camps in Lebanon filed a criminal complaint against Ariel Sharon, who was the Israeli defense minister at the time. Another Israeli official, Amos Yaron, who had been the Israeli general in charge of the Beirut sector in 1982 was also named.
Sharon and 33 other Israelis retaliated by initiated proceedings against YasirArafat under the same law. And that's when the Belgians started to lose their spine.
In December 2001, four members of the Belgian Parliament tried to introduce legislation to limit the law to cases where individuals had not been tried for the same offense elsewhere and to channel such cases to certain "special" panels of judges.
As for Sharon's case, a Belgian appeals court ruled in June 2002 that he and Yaron could not be tried because such cases were inadmissible when the defendant was not in Belgium. But in Feb 2003, a higher Belgian court overruled that decision, stating that the presence of the accused was not necessary under Belgian law for the case to proceed. However, the higher court claimed that found that sitting heads of state had "official immunity" under customary international law, and so dismissed the case against Sharon but allowed the investigation against Yaron to proceed.
However, the ruling by the Belgian courts left open the possibility that Sharon could be tried after he left office. Nevertheless, when the French also threw out a similar case against Rumsfeld, they claimed that the "customary immunity for heads of state" extended to after they left office as well.
In response, Israel vehemently protested the action and withdrew its ambassador to Belgium.
Things got even hotter when in March 2003, seven Iraqi families requested an investigation of former U.S. President George H. W. Bush, Vice President (and former Secretary of Defense) Dick Cheney, Secretary of State (and former chairman of the joint chiefs of staff) Colin Powell, and retired general Norman Schwarzkopf for allegedly committing war crimes during the 1991 Gulf war.
The US starting pressuring the Belgians to drop the case. Secretary Powell warned the Belgian government that Belgium was risking its status as a diplomatic capital and the NATO host state. As a result, amendments were almost immediately applied to the law, to limit it scope. According to the amendments, more discretionary power was given to the Belgian federal prosecutor to decide whether to pursue a case.
After the amendments, Israel decided to sent its ambassador back to Belgium -- but the U.S. officials were still not happy.
On June 12, 2003, Secretary of Defense Donald Rumsfeld announced that the United States would refuse to fund a new headquarters building for NATO in Belgium and consider barring its officials from traveling to meetings there unless Belgium rescinded its law. Rumsfeld stated, "Belgium appears not to respect the sovereignty of other countries."
Within two days, the Belgians agreed to further amend the law's scope to apply only to cases with a direct link to Belgium. In introducing the amendments to the Belgian parliament, the Belgian prime minister Guy Verhofstadt claimed that the law had been subjected to "manifestly abusive political use."
Yes folks, when human rights laws are applied to the US or Israel, that's "manifestly abusive" and political.
Nor was this the first and only time that Rummy evaded interational criminal charges. There were a host of other suits against Rummy which had to be dismissed under similar legal technicalities.
For example, the U.S. District Court for the Eastern District of Virginia dismissed a lawsuit by Khalid El-Masri, a German citizen who had been kidnapped by the CIA in an "extraordinary rendition" in Macedonia and taken to Afghanistan where he was visciously tortured. El Masri's case in US courts was dismissed when the Bush administration invoked the "state secrets" privilege. A lawsuit brought in Germany on his behalf continued. However according to Speigel Online (translated text here), German authorities decided to simply drop requests for the extradition of CIA agents involved in El Masri's kidnapping since the request had "unofficially" met with a negative response from US authorities. El Masri's German lawyer summarized it best: "The German government has decided that relations with the U.S. are more important than the fate of one of their citizens . . . The German government is thus accomplice to the dark machinations of the USA."
The same thing happened in a similar lawsuit by Canadian citizen Maher Arar who was picked up on US soil, "renditioned" to Syria where he was tortured before finally being released. The same happened in the case of Ali v Rumsfeld and many others.
So, in effect, if you're being "officially" tortured, you have no claim and no legal right to redress -- not in the US (since the "state secrets" privilege can be arbitrarily invoked to kick our case out the courthouse doors) and not in any other country (since "official immunity" protects the tortureers.)
So much for international humanitarian law.
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