Iraq: Revisiting Hamdan and US Occupation War Crimes

American occupying ground forces in Iraq continue to engage in Geneva violations. Members of Congress and the President's cabinet are in a position, but have failed, to fully investigate and end the illegal war crimes.

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Hamdan affirmed the applicability of Geneva. It is well established under international and military law that occupying powers have the legal obligation to ensure civilians are treated humanely.

US military occupation forces are engaged in ongoing war crimes: Inadequate protection given to civilian detainees in violation of occupying forces obligations. [Yamashita: The failure of military commanders to ensure prisoners are treated humanely, given fair trails is a war crime by military commanders.]

The Tokyo War crimes trials are precedent for imposing war crimes liability on the Executives cabinet and those in a policy making position that knew of and failed to prevent war crimes.

Insufficient compliance with Geneva is more than a military obligation on ground commanders and the Joint Staff. The illegal activity creates a war crimes liability for [a] civilian planners and leaders in the President's cabinet and [b] members of Congress. American civilian leaders in both the Executive and Legislative branches share joint responsibility for ensuring the laws of war are followed and enforced.

Members of Congress, the President's cabinet, and the leadership on the Joint Staff have the ability to, and have refused, to investigate evidence of war crimes. Hamdan is fair notice of the ongoing Geneva obligations of the United States as an occupying power in Iraq and Afghanistan.

Judgments

The problem of insufficient ground troops is not unique to Iraq, but also applies in Afghanistan thereby raising the prospect of similar war crimes liabilities well beyond Kabul, Afghanistan.

US war planners prior to invading Iraq did not sufficiently provision for Geneva Compliance in Iraq. These deficiencies are well known to the Administration, private contractors, but there remains no plan to fully comply with US occupation obligations under Geneva.

War planners in know there are insufficient ground troops in both Afghanistan and Iraq to comply with occupying force obligations under Geneva. A significant increase in ground troops is known to be a requirement to comply with Geneva. The expected troop increases for both Afghanistan and Iraq will not be announced until after the November 2006 election.

Discussion

There is no merit to any argument that the Iraqis are responsible for the trials and detention. Occupying forces under Geneva have an obligation to ensure the requirements are met; occupying forces may not rely on local forces or resources when those resources are insufficient to comply with Geneva.

US occupation forces are engaged in war crimes. The misconduct relates to the illegal treatment of detainees. It is irrelevant whether the prisoners are civilians, combatants, or insurgents: All are entitled to Geneva protections. Hamdan affirms the US obligation to ensure the Geneva Conventions are enforced.

The US as an occupying power cannot reasonably defer to the Iraqi government. It is well established under international and military law that occupying powers have the responsibility to ensure civilians are treated humanely. This mandatory obligation upon the United States as an occupying power is not something that the United States, its military officers, or civilian leadership may delegate or assign to an inadequately resourced Iraqi government.

The current problems in Iraq relate to inter alia:

A. Failure of American occupying forces and military personnel to charge Iraqi civilians with any crime prior to detaining and imprisoning them;

B. Inadequate evidence presented at trial; insufficient provisions to ensure fair trials; no access to lawyers; failure to allow cross examination of witnesses;

C. Illegal home raids based on unreliable information;

D. Detention and abuse of innocent civilians;

E. Refusal to provide full access or comply with reasonable ICRC recommendations.

Hamdan is not the only precedent stating the proceedings must be fir. Sawada (1946 Nuremburg Commission) affirmed that the proceedings at trial must be fair. Yamashita 327 US 1 (1948) affirms that the military is liable for failing to control those who commit war crimes under their command. The Japanese Cabinet and German legal community were held complicit for war crimes in failing to investigate, stop, or otherwise assent to illegal war crimes planning.

Yamashita's problem was that he permitted war crimes. Lt Calley 46 CMR 1131 (1973) was liable for war crimes, even against those who were suspected of illegally waging war. The US as a military occupying force has an obligation to ensure the civilians, regardless their status, are protected and treated humanely. It is irrelevant and speculate what the civilians may or may not due while in detention; the Geneva requirements remain in full force and cannot be ignored or explained away by the President, DoJ Staff attorneys, Members of Congress, or other civilians who believe the Iraqis do or do not deserve what happens.

The issue for the American public and Grand Jury to review is who in the United States government was in a position and had the power to compel the Department of Defense to comply. Under our separation of powers, this duty isn't isolated to Members of Congress and the Executive. Rather, upon receipt of information, it falls upon the judicial system within the Military’s Judge Advocate Generals and other American Bar Association-related personnel. Again, Nuremburg and Ludwigsburg are precedent for bringing war crimes charges against the legal community, officers of the court, prosecutors and judges for failing to ensure the laws of war were fully followed and enforced.

As an occupying power in Iraq, the United Sates must provide the proper resources and medical personnel to provide health care to the Iraqi detainees. It is irrelevant that the civilian contractors have had a difficult time. The US has military airlift capability, control of the air, and open access to ports to provide these mandatory humanitarian supplies.

Each of the abuses violates international law and obligations on the United States, military commanders, military personnel, and civilian leaders. Hamdan affirms the obligations of the United States to ensure the Geneva Conventions are followed. There is reasonable basis for the United States to immediately launch a criminal investigation into the pattern of abuses in Iraq to assess the scope of continuing occupation war crimes.

Each of these abuses is known to flag officers with the experience and education to comprehend the Geneva implications, but the White House has not sufficiently worked with the Secretary of Defense and Joint Staff to ensure sufficient US ground forces are in place to comply with Geneva.

Moreover, Members of Congress are in a position to conduct investigations into the violations, the needed manpower and training to comply, but have refused to take action, investigate what is known, or ensure compliance with Geneva. This malfeasance create subsequent war crimes liabilities for Members of Congress.

The problems with Geneva compliance in Iraq stems from the initial failed planning. There was insufficient consideration for the real manpower requirements; and the post-war occupation requirements were insufficient. These were known, or should have been known, well before the first shots were fired. Moreover, these deficiencies have been known to Members of Congress and have been highlighted in the wake of Hamdan.

Being insufficiently resourced does not alleviate Geneva requirements. Military and civilian personnel have a duty under Geneva to report violations of Geneva and ensure resources are provided to ensure the United States adequately complies with its requirements. It is irrelevant that the United States has assigned responsibility to the Iraqis; or that there have been Iraqi elections. The Iraqis remain in no position to independently comply with the Geneva requirements. Until Iraq is able to meet its legal obligations to comply with the Geneva requirements, the United States has under the Geneva conventions the legal obligation to ensure the manning and required supporting resources are in place to ensure Geneva obligations are fully met.

The Executive as a civilian planner and commander in chief has an obligation to listen to and ensure personnel have the resources, as occupying forces, to fully comply with the Geneva requirements. This President has failed to reasonable demonstrate any inclination to fully comply with the Geneva requirements. These are war crimes which any nation may lawfully prosecute against the President of the United States. It is irrelevant whether Members of Congress do or do not choose to investigate, impeach, or remove the President from office.

Again, Iraq as it currently stands is in no position to fully comply with its Geneva obligation requirements. Only the United States, as an occupying power, can and does have the resources to ensure that Iraqi civilians are treated according to the Geneva Conventions. Hamdan is fair notice that the Geneva Conventions remain requirements, irrespective of US military force location or mission.

It is irrelevant that the United States is incapable or unwilling to comply with the Geneva Conventions as an occupying power. The requirements exist regardless the Iraqi civilian populations' status: They are to be treated humanely, even if they have engaged in illegal warfare. The only lawful way to impose punishment is after a competent, fair trial, which the Iraqis in 2006 are not in a position to conduct: They do not ensure evidence is presented, that the witnesses are cross examined, or that the prisoners are given access to counsel.

Hamdan is fair notice that it is irrelevant that the detainees may or may not be insurgents, accused, innocent, or non-combatants. The US government, until the Iraqis are fully capable to independently comply, must provide the full infrastructure to ensure the detainees are treated according to the Geneva requirements. These requirements were known well before the United States National Command Authority, PNAC, and others may or may not have decided well before 2000 that the United States would invade Iraq.

Outlook

Unless the US Congress reasonably investigates the ongoing Geneva violations, they will have no defense at a war crimes trial.

The US voters are being given unreliable information on the true costs of the war, and the needed military draft to ensure fully compliance with Geneva. Even if the US were to ramp down manning and withdraw, this would merely create a new wave of actionable abuses at the feet of the retreating US occupation forces. This would be a subsequent violation of Geneva.

Putting aside the fact that the US war crimes duplicate the British Army abuses against the North American Colonists in the 1770s, the problem going forward is that the US war crimes are at odds with the founding principles supposedly at the core of the illegal invasion: To provide democracy. The legacy of the American military occupation in Iraq is the opposite: Despotic abuse of power and criminal war crimes inflicted upon innocent civilians.

Beyond being a disingenuous basis for the illegal invasion, the US ongoing war crimes in Iraq simply compounds the regional contempt for American occupation. The US criminal activity fuels the insurgency and substantially increases the likelihood of attacks directed at American civilian travelers around the globe.

This was a war of choice and openly planned. The United States knew the Geneva obligations before entering Iraq, but chose to ignore them. The United States occupation of Iraq has been more than a failure: It has been a reckless disregard for the laws of war as clearly promulgated under Geneva.

Nuremburg is precedent for brining war crimes charges against the legal community. The DoJ Staff Attorneys, DoD Judge Advocate Generals, Congressional attorneys, RNC General Counsel, the American Bar Association, and civilian attorneys working in concert with civilian contractors in Iraq have jointly and individually been reckless in failing to ensure the laws of war and US occupation have had adequate legal competence as required under Article 82 of the Geneva Conventions.

WWII is precedent for indicting civilians for war crimes. The civilian Republican Party, by assenting to these illegal war crimes has done more than expose themselves to war crimes prosecution. The American leaders have recklessly put American lives around the globe at risk, substantially undermining any claim that the President or Congress is interested in American national security.

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The problem, besides lack of information and non-existent Congressional oversight, is that the Congress has no basis to increase or decrease troops along any timeline: Congress is shooting in the dark. Even if the US withdrew along a timeline, the US would remain liable for the Geneva violations: Failure to
[a] Provide security;
[b] Prevent war crimes during the occupation; and
[c] Ensure that the locals had a stable, sustainable situation as required under Geneva (a US non-discretioary obligation as an occupying power).

The real answer: US needs a three pronged approach, fully coordinated with the Iraqis. (This approach needs to be applied not only to Iraq, but to Lebanon):

1. Geneva Compliance Plan to Maintain Security and Stability

A plan to increase occupying US troops to ensure Iraqi stability, and ensure US compliance with Geneva;

2. Plan for Peacekeeping

An approach that includes the phased introduction of peacekeepers to [a] overlap with the US forces, [b] continue working with the Iraqis, and [c] provide sufficient force to maintain peace after the US departs;

3. Plan for US Withdrawal

A US plan to realistically withdraw from Iraq, as the peacekeepers [a] replace the US troops, and [b] provide assistance to the Iraqis to maintain security.

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Recommendations

1. The United States must ensure that the Iraqi criminal justice system has the manpower to fully comply with the Geneva Conventions.

2. Immediately notify Members of Congress of war crimes issues related to Administration Cabinet and US occupation forces in Iraq.

3. Prepare voters for likely increase in combat troops in Iraq, and possibility of a draft to meet Geneva-manpower requirements.

4. The General Accounting Office and DoD Inspector Generals [NICS, OSI, and CID] need to coordinate with the JAGs to assess the scope of war crimes, and then work with independent analysts to assess the real US manpower requirements in Iraq to comply with Geneva.

5. Members of Congress, to comply with their Geneva obligations and Article II powers (raise, support, and ensure combat forces comply with the law), shall, inter alia:

A. Document their knowledge of and/or failure to investigate the American military occupation war crimes;

B. Document [1] their knowledge of Hamdan implications as they relate to Geneva obligations of occupying-detaining forces; and [2] the requirements to ensure there are sufficient resources, manpower, leadership, and training to fully comply with Geneva obligations of an occupying power;

C. Commit with a Congressional resolution to a line of inquiry that will identify the scope of US ground force Geneva violations in both Iraq and Afghanistan;

D. Gather independent assessments of the time and resources required to ensure Iraqi military and civilian resources are [1] fully capable of complying with Geneva requirements; and [2] can adequately, fully assume current US occupation duties related to Geneva;

E. Oversee a military draft to substantially increase US ground forces in Iraq, thereby ensuring the US fully complies with its Geneva requirements as an occupying force in Iraq; and

F. Work closely with NATO allies and the President of Afghanistan to ensure there are sufficient ground forces in Afghanistan to ensure the NATO forces have the manning, resources, leadership, staff support, and legal training to fully comply with Geneva requirements.

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Other Information

Ref: US Occupation forces are not complying with Geneva requirements -- failing to ensure fair trials, cross examination of witnesses, or bringing charges against prisoners.

Ref: Congress is not serious about their Geneva Obligations to ensure the laws of war are enforced.

Ref Ref Geneva imposes obligations on occupying nation (the US) to provide stability and resources the locals are unable to provide.

Ref Manpower shortages have been long known, and a US military draft is required to put into place sufficient US ground forces to meet minimal Geneva requirements of the US as an occupying nation. United States Geneva requirements and obligations were affirmed by Hamdan, regardless whether the United States does or does not agree that the invasion was or was not legal.

Ref: Prisoner abuse continues despite Abu Ghraib investigations and photos.

Ref Unlike US war criminals in Iraq, some in the United States still believe in speedy trials.

Ref: Arrests without charges.

Ref Congress knows something, but is suppressing it until after November 2006.

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The 2006 election isn't the last chance to change Congress. There will still be more revelations of illegal conduct between now and 2008, which can still be a factor in an impeachment investigation. Note carefully the different election Calendars: Members of Congress take their seat at the beginning of January 2009, while the President will still be in office for another two weeks.

It's still possible to hold an impeachment trial in the first weeks of 2009, after the 2008 election of the new Senate. Bush is not out of the woods until he's physically left office in 2009. What happens in 2006 may or may not be the final word on whether Bush and Cheney are held accountable for impeachable offenses.