October 28, 2005
The War Crimes Act of 1996, a federal statute set forth at 18 U.S.C. § 2441,
makes it a federal crime for any U.S. national, whether military or
civilian, to violate the Geneva Convention by engaging in murder,
torture, or inhuman treatment.
The statute applies not only to those who carry out the acts, but also to those who ORDER IT, know about it, or fail to take steps to stop it. The statute applies to everyone, no matter how high and mighty.
18 U.S.C. § 2441 has no statute of limitations, which means that a war crimes complaint can be filed at any time.
The penalty may be life imprisonment or -- if a single
prisoner dies due to torture -- death. Given that there are numerous,
documented cases of prisoners being tortured to death by U.S. soldiers
in both Iraq and Afghanistan, that means that the death penalty would
be appropriate for anyone found guilty of carrying out, ordering, or
sanctioning such conduct.
Here's where it gets interesting. The general in charge of the notorious Abu Ghraib prison in Iraq stated this week that Secretary
of Defense Donald Rumsfeld and other top administration officials
ORDERED that inhuman treatment and torture be conducted as part of a
deliberate strategy.
It has also recently come out that, even after the torture at Abu Ghraib hit the news, torture still continues at that prison and, indeed, the U.S. is still torturing people worldwide. Even to the casual observer, it is obvious that the administration has no plans to stop, but has instead been working tirelessly to make it easier to carry out torture in the future.
Let's
recap. We now know that torture in Iraq was ordered by top officials,
and that torture is continuing, notwithstanding the administration's
claims that it was only "a couple of bad apples" that were responsible
for Abu Ghraib. Making a potential prosecutor's job easier, U.S.
Attorney General Alberto Gonzales wrote a memo in January 2002 to
President Bush saying that America should opt out of the Geneva
Convention because top officials have to worry about prosecutions under
18 U.S.C. § 2441. By attempting to sidestep the Geneva Convention,
Gonzales created a document trail that can be used to prove that top
administration officials knowingly created a policy of
torturing prisoners, and that such a policy could reasonably have been
expected to result in the death of some prisoners.
The U.S. did opt out of the Geneva Convention for the Afghanistan war, but we never opted out of the Geneva Convention for Iraq.
Indeed, President Bush has repeatedly stated that Geneva applies in
Iraq (although he has since claimed that foreign fighters captured in
Iraq are not covered). Thus, there would be very little room for fancy
footwork by defense lawyers in a prosecution against top officials
concerning torture in Iraq.
The Abu Ghraib general's recent
statements about torture coming from the top is an important piece of
evidence for convicting Bush, Cheney, Rumsfeld, Gonzales, and a host of
other top administration officials for violation of the War Crimes Act
of 1996. Upon conviction, they could be sentenced to life in prison, or
even death.
Additionally, violation of the war crimes act almost
certainly constitutes a "high crime or misdemeanor" which would allow
impeachment of such officials.
posted by George Washington
ANNEX
United States Code
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 118 - WAR CRIMES
U.S. Code as of: 01/06/03
Section 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 (as defined in section 101 of
the Immigration and Nationality Act).
(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;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of War on
Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the
international conventions signed at Geneva, 12 August 1949, or
any protocol to such convention to which the United States is a
party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and
contrary to the provisions of the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices
as amended at Geneva on 3 May 1996 (Protocol II as amended on 3
May 1996), when the United States is a party to such Protocol,
willfully kills or causes serious injury to civilians.
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