Group items tagged

But as Boyle noted in his address in San Juan, P.R., Obama, Vice President Joseph Biden, and the various secretaries of defense and state, the head of the CIA and the Pentagon Chiefs of Staff, as well as other Obama administration personnel, are also guilty of perpetrating ongoing war crimes themselves. Boyle accuses the Obama administration of continuing to conduct a “bogus” war on “international terrorism” including the ever escalating campaign of drone strikes in Pakistan, Afghanistan, Somalia, Yemen and other jurisdictions. He termed the president’s program of “targeted killings,” in which President Obama himself draws up the “kill list,” to be simply a case of “pure murder” under both traditional British common law and international law, and says these attacks constitute a “Crime against Humanity under Article 7(1)(a) of the Rome Statute for the International Criminal Court.”

Thus, the study clearly demonstrates how resources for fighting terrorism have mostly been used to target individuals who are suspicious and easier to prosecute because they practice a certain religion or have an “ideology” the general public will resent. And if most of these people were not people of color with Arabic-sounding names that could be used to promote a fear of foreigners in the criminal justice process, their crimes would be given the same light treatment other members of the general public typically receive.

Later, the government adds: …In March 2010, the [Justice Department] announced the merger of two Criminal Division components that were responsible for investigating and prosecuting various types of human rights violations. The creation of the new component, the Human Rights and Special Prosecutions Section (HRSP), underscores the commitment of United States authorities to end impunity for torturers and other human rights violators. HRSP and other DOJ components have prosecuted U.S. military and civilian personnel who have perpetrated human rights violations outside the United States… Although the government acknowledges the merger was “intended to enhance the government’s effectiveness in pursuing violators and denying them safe haven in the United States,” the detail is being provided within the context of what the US government is doing to prosecute US military and civilian personnel, who are implicated in acts of torture.

The Human Rights and Special Prosecutions section does not prosecute US officials involved in torture or human rights abuses.

What it has not prosecuted recently—Or, more importantly, what it has not publicly pursued is accountability for officials involved in torture in war zones like Afghanistan or Iraq. It has not sought to hold former Bush administration officials accountable for their role in torture in war zones or in secret detention facilities, where CIA interrogators operated either. The UN Committee Against Torture should not be misled. The HRSP has nothing to do with challenging the impunity US military and civilian personnel currently enjoy when it comes to torture. And, more than likely, it may never hold any current or former high-ranking officials accountable.

Rep. Steve Israel, D-N.Y., met with Netanyahu and other U.S. legislators to discuss the plans following the third day of a cease-fire between Hamas and Israel. According to The Post, Netanyahu asked the group to help Israel stay out of the International Criminal Court. Netanyahu told reporters that the U.S. should put in perspective the attacks from Hamas, saying, “Let’s imagine your country was attacked by 3,500 rockets.” “The prime minister asked us to work together to ensure that this strategy of going to the ICC does not succeed,” Israel told The Post by phone from Tel Aviv. Israel continued, saying Netanyahu “wants the U.S. to use all the tools that we have at our disposal to, number one, make sure the world knows that war crimes were not committed by Israel, they were committed by Hamas. And that Israel should not be held to a double standard.”

He also has Hamas to consider, since action against Israel would likely trigger a war crimes investigation of Hamas as well. The Islamic militant group seized Gaza from Abbas in 2007, and relations between the two rivals remain tense. However, they reached a power-sharing agreement in the spring and Abbas does not want to return to confrontations with Hamas.Last week, Abbas told leaders of PLO factions in the West Bank that he would only turn to the ICC if Hamas agrees, in writing. Abbas aide Saeb Erekat told The Associated Press on Monday that he put the request to the top Hamas leader in exile, Khaled Mashaal, in a meeting in Doha last week. Erekat said he was told that Hamas needs time to decide.

Speaking to Arutz Sheva, Shurat Hadin legal center's director Nitsana Darshan-Leitner said that if Abbas follows through on his threats, the PA's case would likely center around alleged war crimes committed by the IDF during the past summer's war with Gazan terrorists, as well as "settlement-building" - a euphemism for any Jewish communities built in Judea, Samaria, and large parts of Jerusalem. The veteran attorney and legal campaigner warns that if such a case is launched the prospects for Israel are bleak. "Israel will of course try to defend itself, but chances are they will lose. And if they lose and they're convicted for war crimes, it would be a game-changer. It would drop Israel to the bottom tier internationally," she said. Darshan-Leitner emphasizes that her pessimistic prediction is not borne out of a lack of confidence in Israel's legal position. On the contrary, she believes Israel can - and would - make a very strong defense case on either issue were it forced to do so. The problem, she says, is a political one.

"In addition, the court will issue arrest warrants against those individuals; Interpol will make it international and those people won't be able to leave the country - it will snowball." There is hope, however. If the ICC is Abbas's "doomsday weapon", Israel's hope lies in deterrence. "That's what were working on."

Indeed, Shurat HaDin has already threatened a "tsunami" of prosecutions if the PA chooses to file charges against Israel at the ICC. The NGO has already made good on its threats following unilateral actions by the PA in recent months, launching charges against Mahmoud Abbas himself as well as Hamas's Qatar-based terror chief Khaled Meshaal - both of whom are Jordanian citizens and thus already covered by the ICC's jurisdiction. Should the PA succeed in joining the Court, Shurat HaDin is already preparing a long list of other Palestinian leaders to target with a wide range of charges. "It could be crimes committed during the Intifada against Israelis - all the suicide bombings, all the drive-by shooting attacks. All the heads of the different armed factions have superior liability over what was done by their forces," Darshan-Leitner explains. "And there are also crimes committed against the Palestinian people themselves," from torture to public executions and the use of human shields, she adds. But won't the ICC just dismiss such cases for the same political reasons she cited?

"Nobody knows for sure - and that's why it's a deterrent for the Palestinians, because they don't know how the court will take these cases. I find it hard to believe though that the court would agree to prosecute Israel and not the Palestinians." But she cautions that, even though Palestinian leaders will also likely end up in the dock, it wouldn't undo the damage done to Israel. Short of coaxing the Palestinian Authority back to the negotiating table, the only way to stave off an ICC prosecution would be via a combination of threats of counter-prosecution, and concerted political pressure. "The US has threatened to cut all funding to the PA and even UNRWA if they go through with such a move, and obviously Israel will cut off all funding as well," she notes. "And the Palestinian Authority relies almost entirely on American and Israeli funding." The many vocal backers of the PA such as Arab states and the European Union have a poor track record of coughing up the goods, "so if that happens it will essentially collapse." With those considerations in mind, an ICC prosecution is Abbas's "weapon of last resort." And it appears the only real deterrent Israel currently holds in the threat of mutually-assured destruction.

Again, these are the findings of the Army's investigation into Sergeant Bergdahl's disappearance; they are not the apologies or fantasies of his legal team, Marines turned anti-war peaceniks like myself, or Obama fawning conspirators. The details behind these facts are contained in the Army's report, authored by Major General Kenneth Dahl, which has not been publically released, but hopefully will be made available to the public after Sergeant Bergdahl's preliminary hearing next month or, if the desertion and misbehavior charges are pursued, during his court martial. Just what events Sergeant Bergdahl witnessed that would compel him to risk his life, traveling unarmed through enemy controlled territory, to provide information to an American general, are not presently known. We do know that the unit Sergeant Bergdahl belonged to underwent serious disciplinary actions both before and after Sergeant Bergdahl's capture, that several of his unit's leaders were fired and replaced both prior to and subsequent to his capture, and, from communications between Sergeant Bergdahl and his family prior to his capture, Sergeant Bergdahl was sickened and distraught over the actions of his unit, including its possible complicity in the death of an Afghan child. It is quite possible Sergeant Bergdahl left his unit to report a war crime(s) or other serious crime(s) committed by American forces. He may have been trying to report a failure of his immediate leadership or it may have been something, in hindsight, that we would now consider trivial. Such an action on Sergeant Bergdahl's part would help to explain why his former platoon mates, quite possibly the very men whom Sergeant Bergdahl left to report on, have been so forceful in their condemnation of him, so determined not to forgive him for his disappearance, and so adamant in their denial to show compassion for his suffering while a prisoner of war.

This knowledge may explain why the Taliban believed Sergeant Bergdahl had fallen behind on a patrol rather than deserted. If he truly was deserting, than Sergeant Bergdahl most likely would have told the Taliban disparaging information about US forces in an attempt to harvest friendship and avoid torture, but if he was on a personal mission to report wrongdoing, than he certainly would not relate such information to the enemy. This may explain why Sergeant Bergdahl told his captors a lie rather than disclose his voluntary departure from the platoon outpost. This would also justify why Sergeant Bergdahl left his base without his weapon or equipment. Before his departure from his outpost, Sergeant Bergdahl asked his team leader what would happen if a soldier left the base, without permission, with his weapon and other issued gear. Sergeant Bergdahl's team leader replied that the soldier would get in trouble. Understanding Sergeant Bergdahl as not deserting, but trying to serve the Army by reporting wrongdoing to another base would explain why he chose not to carry his weapon and issued gear off of the outpost. Sergeant Bergdahl was not planning on deserting, i.e. quitting the army and the war, and he did not want to get in trouble for taking his weapon and issued gear with him on his unauthorized mission.

This possible exposure to senior leaders, and ultimately the media and American public, of civilian deaths or other offenses would also account for the non-disclosure agreement Sergeant Bergdahl's unit was forced to sign after his disappearance. Non-disclosure agreements may be common in the civilian world and do exist in military fields such as special operations and intelligence, but for regular infantry units they are rare. Sergeant Bergdahl's capture by the enemy, possibly while en-route to reveal war crimes or other wrongdoings, would certainly be the type of event an embarrassed chain of command would attempt to hide. Such a cover up would certainly not be unprecedented in American military history.Similar to the assertions made by many politicians, pundits and former soldiers that Sergeant Bergdahl deserted because, to paraphrase, he hated America and wanted to join the Taliban, the notion that he cooperated and assisted the Taliban while a prisoner of war has also been debunked by the Army's investigation. We know that Sergeant Bergdahl resisted his captors throughout his five years as a prisoner of war. His dozen escape attempts, with full knowledge of the risks involved in recapture, are in keeping with the Code of Conduct all American service members are required to abide by during captivity by the enemy.

In his own words, Sergeant Bergdahl's description of his treatment reveals a ghastly and barbaric five years of non-stop isolation, exposure, malnutrition, dehydration, and physical and psychological torture. Among other reasons, his survival must be attested to an unshakeable moral fortitude and inner strength. The same inherent qualities that led him to seek out an American general to report "disturbing circumstances" could well be the same mental, emotional and spiritual strengths that kept him alive through half a decade of brutal shackling, caging, and torture. It is my understanding the US military's prisoner of war and survival training instructors are studying Sergeant Bergdahl's experience in order to better train American service members to endure future experiences as prisoners of war. Susan Rice, President Obama's National Security Advisor, was roundly lampooned and criticized last year for stating that Sergeant Bergdahl "served with honor and distinction". It is only the most callous and politically craven among us who, now understanding the torture Sergeant Bergdahl endured, his resistance to the enemy that held him prisoner, and his adherence to the US military's Code of Conduct for five years in horrific conditions, would argue that he did not serve with honor and distinction.

The court said it had examined "allegations of the most serious kind involving murder, manslaughter, the wilful infliction of serious bodily injury, sexual indignities, cruel inhuman and degrading treatment and large scale violation of international humanitarian law".The judgment from Sir John Thomas, president of the Queen's Bench Division, and Mr Justice Silber, added that there was evidence to support claims that some of the abuse had been systemic, and questioned whether responsibility for poor training and a failure to investigate promptly lay with senior officers and figures in government

“According to principles of international law,” the statement said, “when a state exercises its authority to objectively investigate accusations regarding violations of the laws of armed conflict, this will preclude examination of said accusations by external international tribunals (such as the International Criminal Court in The Hague).”

PERPETRATING ETHNIC CLEANSING ABROAD: Finally, just as President Bush defiled the Presidency by unwarrantedly invading Iraq in 2003 and lying through his teeth all the way there and afterward about it, Obama has defiled the Presidency in 2014 by overthrowing the democratically elected President of Ukraine and lying through his teeth all the way and afterward, about that. And Obama’s crime in Ukraine is even worse than Bush’s crime in Iraq, because it’s much more dangerous, with even bigger stakes and risks (all of which are purely downside for both the American and the Ukrainian peoples — much as Bush’s Iraq-invasion also was, for both Americans and Iraqis).

DO-OR-DIE TIME FOR DEMOCRATS: If Democrats don’t initiate impeachment proceedings against Obama, then the Democratic Party will be at least as dishonored as the Republican Party is after George W. Bush, for their protecting him; and I, for one, will quit it and urge its replacement, hoping for a leader like Abraham Lincoln to emerge, who had quit the Whig Party and who succeeded at replacing it by the new (and, tragically, only briefly progressive) Republican Party (which tragically then became taken over by northern aristocrats the very moment when Lincoln was assassinated). Either Democrats need to retake our Party, or else to end it, now. We have tolerated Obama’s outrages too long, as it is. For Democrats to retake the Party, requires Democrats to impeach President Obama.

The ICC can only move to charge Israel once its internal war crimes investigations closes. The ICC does not prosecute countries or leaders who are sanctioned by their own legal systems. Right now, Israel still has a handful of cases open that could lead to indictments. On the other hand, prosecution in the ICC could be nearing for Hamas for the alleged war crimes it committed during the war, including the targeting of civilians by rocket fire and the killings of so-called collaborators. The UN Human Rights Council report revealed the Islamic movement that rules Gaza does not have any system of internal review, which is the only mechanism that could outright block the ICC from opening charges. As a result, Hamas is currently more exposed to the long arm of the ICC than Israel.

The Prosecutor proceeds in 4 phases within any preliminary examination: (1) an initial assessment to analyze the seriousness of information received; (2) a jurisdictional analysis – the formal commencement of an examination involving “a thorough factual and legal assessment” of whether there is “a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court;” (3) an admissibility determination – assessing whether the gravity of the crimes or prospect of national investigations and prosecutions preclude the need for the ICC to proceed ; (4) prudential considerations — determining whether an investigation would serve the “interests of justice.” It appears that the examination of U.S. detention operations has reached the third phase and crossed over the important threshold of a finding that there is a reasonable basis to believe U.S. forces committed war crimes within the jurisdiction of the Court. Heller posited that some aspects of the Prosecutor’s Afghanistan examination had already reached this stage in 2013. The 2014 report provides further corroboration specifically with respect to U.S. detention practices. For example, paragraph 96 of the 2014 report states that the Office of the Prosecutor is now “analysing the relevance and genuineness of national proceedings by the competent national authorities for the alleged conduct described above as well as the gravity of the alleged crimes”—clearly a phase three inquiry. That said, paragraph 96 also states that the Office is “continuing to assess the seriousness and reliability of such allegations”—which sounds like phase two and even phase one.

95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence. In addition, there is information available that interrogators allegedly committed abuses that were outside the scope of any approved techniques, such as severe beating, especially beating on the soles of the feet, suspension by the wrists, and threats to shoot or kill. 96. While continuing to assess the seriousness and reliability of such allegations, the Office is analysing the relevance and genuineness of national proceedings by the competent national authorities for the alleged conduct described above as well as the gravity of the alleged crimes.

The OTP is considering whether the war crimes of cruel treatment, torture or outrages upon personal dignity were committed by U.S. forces. Article 8 of the ICC statute places something of a qualification on the jurisdiction of the Court over war crimes. It states that the Court shall have jurisdiction over war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” In 2013, the Prosecutor’s annual report stated that the Office “continues to seek information to determine whether there is any reasonable basis to believe any such alleged acts, which could amount to torture or humiliating and degrading treatment, may have been committed as part of a policy.” That reference to the “as a part of policy” qualification does not appear in the 2014 report. And, on the contrary, the 2014 report highlights elements that indicate the existence of a policy such as the Presidential Directive of 7 February 2002 on the determination of POW status and the senior US commanders’ approval of interrogation techniques.

Will bilateral agreements between the US and Afghanistan preclude the ICC from investigating or prosecuting “U.S. persons”? One final question that might arise from these proceedings is the legal viability of the bilateral agreement between the United States and Afghanistan regarding the surrender of persons to the International Criminal Court (full text).  Since the case arises out of Afghanistan’s status under the ICC treaty, the United States might try to claim that the bilateral agreement provides US nationals and employees immunity for actions that took place in Afghanistan. I have briefly discussed the legal viability of such article 98 agreements in an  earlier post at Just Security.

One Israeli official, who spoke on condition of anonymity because the legal strategy is confidential, said the Israeli government is planning a defense of the Gaza operation and that counter-claims, including against the administration of President Mahmoud Abbas, could follow if the ICC launches a case. "We are talking about terrorism involving officials, security personnel and others, from his administration, and emanating from areas under his control," the official said.

ICC membership has been described by diplomats and officials as the Palestinian "nuclear option" because it is the key leverage the Palestinians hold in negotiations. It would also expose the Palestinians themselves to possible prosecution. Nearly a month of fighting in Gaza "left us no choice" but to seek a case against Israel at the ICC, Palestinian Foreign Minister Raid al-Malki said on Tuesday after meeting with prosecutors to discuss joining the court. "An investigation by the ICC is becoming crucial in the absence of a real system of accountability, due to the existence of a pervasive culture of impunity given to Israel and resulting from the lack of action by the international community," he said. Malki said "there is no difficulty for us to show or build the case. Israel is in clear violation of international law."

MSF, which has condemned the attack as a war crime, is stressing the need for an international investigation, saying the raid contravened the Geneva Conventions.

In addition to the revenue freeze, an Israeli official said Israel was "weighing the possibilities for large-scale prosecution in the United States and elsewhere" of Palestinian President Mahmoud Abbas and other senior Palestinian officials.Israel would probably press these cases via non-governmental groups and pro-Israel legal organizations capable of filing lawsuits abroad, a second Israeli official said.Israel sees the heads of the Palestinian Authority in the occupied West Bank as collaborators with the Islamist militant group Hamas, which dominates Gaza, because of a unity deal they forged in April, the officials said.Netanyahu had previously warned that unilateral moves by the Palestinian Authority at the United Nations would expose its leaders to prosecution over support for Hamas, viewed by Israel and much of the West as a terrorist organization.

Abbas opted to join the ICC after losing a motion last week in the U.N. Security Council to set a 2017 deadline for a Palestinian state to be established in land occupied by Israel.The United States, Israel's main ally, supports an eventual independent Palestinian state, but has argued against unilateral moves like Friday's, saying they could damage the peace process.Washington sends about $400 million in economic support to the Palestinians every year. Under U.S. law, that aid would be cut off if the Palestinians used membership of the ICC to press claims against Israel.

Malki says the Palestinian Authority's current U.N. status, upgraded to "non-member state" from "entity" by a vote of the General Assembly in 2012, qualified it to become an ICC member and a decision on whether to apply could happen very soon.As neither Israel nor the Palestinians are ICC members, the court currently lacks jurisdiction over Gaza. This could be granted by a U.N. Security Council resolution, but Israel's main ally, the United States, would probably veto any such proposal.Membership of the ICC opens countries to investigations both on their behalf and against them. Several powers, including the United States, have declined to ratify the ICC founding treaty, citing the possibility of politically motivated prosecutions.The ICC is a court of last resort, meaning that it will only intervene when a country is found to be unwilling or unable to carry out its own investigation.