The partial release of the Senate Intelligence Committee's report on the CIA's torture program is a small step toward accountability for horrific crimes committed on the orders of senior U.S. officials, up to and including President Bush. The Committee's conclusion that illegally detaining and torturing at least 119 people yielded no valuable intelligence will help to debunk political arguments for committing similar crimes in the future, as long as they are not simply shrouded in even greater secrecy.
However, 13 years after these crimes began, the contradiction between the revelations in the report and the impunity enjoyed by the perpetrators is a sad indictment of the state of U.S. government and society. It conforms to current usage by U.S. officials in which the rule of law, and international law in particular, is only referred to obliquely as a set of "norms" or "standards" that our exceptional country "supports" or "promotes", or even as a "tool" to be used selectively, not as a binding framework of laws that officials must either obey or be held criminally accountable for violating.
To most Americans 60 or 100 years ago, this would have seemed a strange and unfamiliar position. From the Hague Peace Conferences (1899 & 1907) to the UN Charter (1945) and the Nuremberg Trials (1945-9), the United States framed its rise to global power with a leading role in international efforts to replace the horror of war with codified rules of law and the jurisdiction of international courts as the final arbiters of international affairs.
When the U.S. reached the pinnacle of its economic power at the end of World War II, with a 40 percent share of global production, American leaders did not use their position to sweep away rules that might constrain their newfound power. Instead, they laid the foundations of a system of universal justice based on the UN Charter, the Geneva Conventions, the International Court of Justice (ICJ) and the rule of international law. President Roosevelt returned from the Yalta Conference in 1945 to tell a joint session of Congress that his plans for the United Nations,
"...ought to spell the end of the system of unilateral action, the exclusive alliances, the spheres of influence, the balances of power, and all the expedients that have been tried for centuries - and have always failed. We propose to substitute for all these a universal organization in which all peace-loving nations will finally have a chance to join. I am confident that the Congress and the American people will accept the results of this conference as the beginnings of a permanent structure of peace."
Under the UN system, individual countries still have the primary responsibility for prosecuting war crimes by their own officials. But when they fail to do so, the UN Security Council, the International Court of Justice (ICJ), the International Criminal Court (ICC) and UN committees charged with enforcing treaties like the UN Convention Against Torture are empowered to provide universal accountability.
The gradual U.S. renunciation of its historic commitment to peace and international law since 1945 has reached its full flowering under the Bush and Obama administrations. The torture of 119 people by the CIA is the tip of an iceberg of systematic war crimes that have become a defining characteristic of America's role in the world. America's war crimes and the system of blanket impunity that shields its officials from accountability are already well documented:
-The "Command's Responsibility" report by Human Rights First in 2006 investigated 98 deaths in U.S. custody in Iraq and Afghanistan. At least a dozen, probably many more of the victims were tortured to death, a capital crime under the U.S. War Crimes Act. But the most severe punishment handed down was a five month prison sentence. Human Rights First documented a pattern in which the senior officials who were ultimately responsible for these crimes used their positions of power to place themselves beyond the rule of law by obstructing, delaying and undermining investigations. The result was that no official above the rank of an Army Major has been charged in a case of death by torture.
-General Antonio Taguba elaborated on his report on torture at Abu Ghraib in interviews with Seymour Hersh. He described a meeting with Secretary Rumsfeld in which they discussed "a naked detainee lying on the wet floor, handcuffed, with an interrogator shoving things up his rectum." Taguba also described "a video of a male American soldier in uniform sodomizing a female detainee" and other evidence of torture that has not been made public.
-Reports by the International Committee of the Red Cross and human rights NGOs have documented an unrestrained regime of torture by the U.S. military and the CIA, including death threats; mock executions; near-drowning; excruciating and deadly forms of hanging; sleep deprivation; starvation and thirst; withholding medical treatment; electric shocks; rape and sodomy; beatings; burning; cutting with knives; injurious use of flexicuffs; suffocation; sensory assault and deprivation; extreme heat and cold; sexual humiliation; and detention and torture of family members.
-Impunity for U.S. war crimes also extends to the killing of civilians and the use of excessive and indiscriminate force. Amnesty International's August 2014 report, Left in the Dark, focuses on the period since 2009 and documents how U.S. forces have killed civilians in Afghanistan with total impunity in thousands of air strikes and special forces night raids ordered by President Obama.
-Investigations by the UN and the Afghan government confirmed the details of a night raid on Ghazi Khan village in Kunar province on December 26th 2009, in which U.S. special forces handcuffed and then summarily executed at least seven children, including four who were only 11 or 12 years old. A U.S. military investigation exonerated the soldiers involved, but, as Amnesty International noted, U.S. military investigations of such incidents are not made public, so the workings of the U.S. system of impunity in such cases remains shrouded in secrecy.
-When U.S. troops were court-martialed in 2006 for the summary execution of three men on an island in Lake Tharthar in Iraq, the court found that they were operating under orders from the colonel of their brigade to "kill all military age males" on the island. They initially captured the unarmed men and only killed them after a sergeant asked over the radio why they had not killed them as ordered. The colonel refused to testify and was not charged with a crime.
-In a court-martial of a U.S. Marine in 2007 for killing a wounded Iraqi civilian, other Marines testified that, "Marines consider all Iraqi men part of the insurgency," and that the accused was acting on standing orders to "dead-check" or kill wounded Iraqis. "If somebody is worth shooting once," a Marine Corporal told the court, "they're worth shooting twice."
-The Bureau of Investigative Journalism has revealed that only 84 or 4% of drone victims in Pakistan have been positively identified as Al-Qaeda members.
The rarely-mentioned "supreme" war crime that underlies all America's other war crimes is the crime of aggression, the illegal use of force against other countries. The judges at Nuremberg explained that they treated aggression as the "supreme" crime because "it contains within itself the accumulated evil of the whole."
The legal basis for convictions of German defendants at Nuremberg for the crime of aggression was the 1928 Treaty for the Renunciation of War or Kellogg-Briand Pact, named for U.S. Secretary of State Frank Kellogg, in which countries renounced "war as an instrument of national policy." This treaty is still in force, reinforced since 1945 by the United Nations Charter, which commits all countries to resolve their differences peacefully and prohibits the use of force except in self-defense or when authorized by the UN Security Council to "restore international peace and security."
But in its policy documents, the U.S. now openly threatens and justifies the use of force to "protect its vital interests" across the globe. The plea of vital interest is politically seductive because it frames aggression as a form of defense. But the vital interests of nations often conflict with each other, so this simply resurrects the age-old problem of international relations that the UN and international courts were designed to resolve. As the British government's senior legal adviser explained during the Suez Crisis in 1956, "The plea of vital interest, which has been one of the main justifications for wars in the past, is indeed the very one which the UN Charter was intended to exclude."
Between 1945 and 1986, the U.S. conducted wars in secret or framed its uses of force in Korea, Vietnam and elsewhere as efforts to assist legitimate allied governments in wars of self-defense. This was a deceptive strategy, and the governments of South Korea and South Vietnam were American creations installed to suppress the democratic aspirations of their people. But the U.S. avoided conviction for aggression until the Sandinista Revolution in Nicaragua brought a popular government to power and the U.S. set out to destroy it, mining its harbors and unleashing a mercenary army to terrorize its people.
Nicaragua brought its case against the U.S. to the International Court of Justice (ICJ), where the U.S. was convicted of aggression and ordered to pay reparations. The U.S. responded by rejecting the verdict and announcing its withdrawal from the compulsory jurisdiction of the court. When Nicaragua asked the UN Security Council to enforce the court-ordered payment of reparations, the U.S. exercised its privilege as a Permanent Member of the Security Council and vetoed the resolution.
The U.S. response to Nicaragua v. United States set the stage for much of what has followed. The U.S. has effectively placed itself beyond the rule of international law. U.S. government lawyers now enjoy a privilege that is unique in their profession, the ability to issue politically creative opinions that they will never be required to defend in an impartial court of law.
Benjamin Ferencz is the only surviving prosecutor from the Nuremberg Trials and the founding father of the International Criminal Court. He discussed the illegitimacy of the U.S. position at an event in Florida in 2011,
"...if you want to have a peaceful society..., in the United States or in the world, you need three components. You need laws to define what's permissible and what's not permissible; you need courts, in order to determine whether the laws have been violated and to serve as a forum for settlements; and you need a system of effective enforcement...if you want to deter a crime, you must persuade potential criminals that if they commit a crime they will be hauled into court and be held accountable. It is the policy of the United States to do just the opposite as far as the crime of aggression is concerned. Our government has gone to great pains to be sure that no American will be tried by any international court for the supreme crime of illegal war-making."
The U.S. has flagrantly and criminally substituted the use of military force for the rule of international law and the jurisdiction of international courts, using political arguments to justify behavior that is legally unjustifiable. This illegal policy has broad support from U.S. political and business leaders and key allies, even as it unleashes wars that inflict millions of casualties and plunge country after country into intractable chaos.
The U.S. propaganda system has done an effective job of marginalizing the foundations of international law and order that Frank Kellogg, Franklin Roosevelt, Ben Ferencz and wise Americans of previous generations worked so hard to build. As the violence and chaos caused by U.S. aggression spreads from country to country across the world, wrecking the lives of hundreds of millions of people, most Americans are not even aware that this is the result of crimes committed by Americans, nor that an evolving but effective legal framework already exists to deal with them.
We must break through the wall of secrecy and propaganda that shields our country's crimes from the conscience and the better judgment of ordinary Americans, to end U.S. aggression, accept the jurisdiction of international courts, hold American war criminals accountable and make a new commitment to a peaceful world, with universal justice that protects people everywhere from torture, violence and the horrors of war.