Archive for January, 2009
(A shorter version of this article appears in the January 2009 issue of the Stanford progressive, http://progressive.stanford.edu/cgi-bin/article.php?article_id=271.)
Is Condoleezza Rice a war criminal? From the available evidence, with more continually emerging, the case is strong. However, she has not yet been held accountable; so, for the time being, it is better to say that she is, to borrow a legal archaism, a prima facie (“at first glance”) war criminal. This qualification, however, means little to the victims of policies she has aided and abetted. But the question then arises how to remove this qualification, and hold Rice accountable. This article will consider not the case against Rice, but the various possibilities for accountability.
This question does not arise out of spite, or a desire for vengeance. Rather, when a grievous wrong is committed within a society, that society must find a way to deal with it, by holding the perpetrators of that wrong accountable, and seeking to build a better society in which such wrongs are rendered impossible. If we do not hold accountable the perpetrators of terrible crimes, we offer no deterrence to future crimes. If we tolerate the crimes of the present, we enable the crimes of the future. And those – like us – who work, live or study at the same institution as a perpetrator have a special responsibility to ensure accountability; otherwise, we become associated with the crimes,ourselves.
In this extremely brief article, we cannot go into any legal technicalities, or even present a thorough overview; but we can mention some issues.
We consider two principal crimes against humanity for which a strong prima facie case can be made against Rice. First, for aiding and abetting aggressive war – the supreme crime against international law, the same crime for which the Nazis were hanged at Nuremberg. In the words of the Nuremberg tribunal, “To initiate a war of aggression… is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Second, for torture, a crime against humanity prohibited under international and US laws.
In any criminal prosecution, the prosecutor must be willing to initiate proceedings – and when the defendant has held high political office, there is a problem of political will. Here, however, we shall focus on legal questions.
Proceedings against Rice might be initiated in several fora: US domestic courts; the International Criminal Court (ICC); foreign courts (e.g. in Germany); local bodies such as faculty disciplinary tribunals; or whatever the Stanford community might deem necessary.
The ICC and Invading the Netherlands
The ICC, based in the Hague, is empowered to prosecute individuals when domestic courts will not. However, before a trial can begin, jurisdiction must be established – and that will be difficult while neither the US nor Iraq is not a party to the treaty. Moreover, a US law, commonly known as the “Hague invasion act”, authorizes “all means necessary and appropriate to bring about the release” of US officials facing trial at the ICC. This is not a joke: this bill passed Congress in 2002, with the support of an overwhelming majority of Republicans and almost a majority of Democrats.
Aggressive war not a crime?!
The general illegality of force in international relations is not in doubt, under many treaties, court decisions, and much else; including treaties to which the US is a party, and which under the US Constitution become the “supreme law of the land”. It has attained the status of customary international law – binding on the entire world – and a rule of jus cogens (“compelling law”), a peremptory norm from which no derogation is permitted. There are exceptions for self-defence or UN Security Council authorization, but the general idea is clear: peace is not only the way, peace is the law.
However, while the use of force in international relations is illegal, the precise definition of the specific crime of “aggression” is not clear. For instance, while a war over a disputed territory would constitute unlawful use of force, it is not clear whether it would constitute aggression. For this reason, the ICC’s founding treaty says that it will carry out prosecutions for aggression as soon as an agreed definition is found – and although work is being done, this has not been achieved yet. Whatever the definitional issues, they are irrelevant to the invasion of Iraq – which is one of the clearest examples of aggressive war since Nazi Germany invaded Poland.
A separate difficulty arises in domestic courts. The US War Crimes Act only criminalizes “grave breach[es] of the Geneva Conventions”, which regulate the conduct of war – not the initial act of starting a war.
We thus have the incredible situation that the supreme crime against international law is not yet a crime at the ICC, and not a crime in the US. Therefore, prosecutions of Rice would most likely focus on her involvement in torture.
Foreign courts and universal jurisdiction
In general, a court in a country unrelated to a crime cannot hold a trial for that crime – it has no jurisdiction. However, there is an argument that some crimes are so outrageous that any court, anywhere, is empowered to hold proceedings on them – this is the concept of universal jurisdiction. A form of universal jurisdiction over torturers is already recognized in the US: as the 2nd circuit held in 1980 (Filartiga v Pena-Irala), “the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind.”
Several countries have laws on universal jurisdiction, including Germany. In 2004 (and again in 2006) the New York-based Center for Constitutional Rights initiated criminal proceedings against Donald Rumsfeld for torture – however the German Federal prosecutor declined to open an investigation; apparently a lack of political will.
Thus, one strategy for concerned Stanford students would be to encourage Rice to attend as many conferences in Germany as possible – but this is rather an indirect approach!
As a criminal defendant, Rice would no doubt argue that she is immune from prosecution. There is a doctrine of “State immunity” which holds that officials are immune from prosecution for acts of State. Historically this probably derives from the medieval legal maxim, “the king can do no wrong” – if your crimes are sufficiently vast, you escape the law.
Rice might also have relied on s.7 of the Military Commissions Act, which immunized US officials from any action relating to treatment of alien “enemy combatants” – however this law was struck down by the Supreme Court in 2007 as unconstitutional.
Legal developments are promising. The most famous recent case on point, in 1999, involved Augusto Pinochet, the US-approved dictator of Chile, who came to power following a US-supported coup in 1973. While Pinochet visited London, a Spanish magistrate issued an arrest warrant and sought his extradition. The House of Lords (the UK’s highest court) held that, for the specific crime of torture, no immunity is available to former heads of state.
Whatever Pinochet’s arguments as a former Head of State, Rice’s arguments for immunity as a former state official, accused also of torture, can be no stronger.
Get out of jail free cards
After clearing these preliminary hurdles, at trial the main defense offered by Rice would presumably be the infamous “torture memos”. That, of course, is why they were written: so that they could be used for exonerating perpetrators.
There is another way to look at these memos. Producing fallacious legal documents, so as to reinterpret the law to justify conduct that was previously clearly torture, and doing so knowing that such conduct was likely to be carried out, can be called by another name: aiding and abetting torture. From this perspective, the memos will get nobody out of jail, but might get some lawyers into jail.
This is by no means an unprecedented legal argument. In the “Justice Case” at Nuremberg, the defendants administered laws in blatant violation of the Geneva Conventions. Several were convicted. As the judges concluded, the “prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.”
The court of last resort?
From the above, we see that if all legal options are exhausted, it is not a matter of lack of culpability. Rather it might be a failure of prosecutorial will; a triumph of arcane immunity doctrine; legalistic trickery; jurisdictional technicalities; US subversion of the International Criminal Court; or the embryonic nature of international law. This raises serious questions for the Stanford community – Stanford itself might then become a forum of last resort.
One option is to hold faculty disciplinary hearings. But the Stanford Faculty Handbook is a rather curious document. Taken literally, it would allow Hitler to remain on faculty, provided he did not plagiarize, engage in sexual harassment, or commit similar offenses “in association with… academic duties and responsibilities”. That is a good reason not to interpret it literally: and one hopes that faculty would be willing to read it so as to include respect for basic standards of human rights and international law. In the 1970’s, H. Bruce Franklin, a tenured Stanford professor, was dismissed for encouraging students to engage in civil disobedience. Such activity pales in comparison to that of Rice.
Another option is for the Stanford community to conduct its own public trial, although without the full coercive powers of the State. Prosecutors could be hired, evidence filed, witnesses examined, defenses heard, as in any recognized trial. Given the allegations not just against Rice, but other Hoover appointees, one could even make the case for a standing “Hoover prosecution bureau” as a “court of last resort” for crimes against international law that cannot be prosecuted elsewhere.
What the Stanford community chooses to do is up to the community itself.
I recently read an article entitled “Israel’s Policy is Perfectly ‘Proportionate'” by Alan Dershowitz. http://online.wsj.com/article/SB123085925621747981.html?mod=googlenews_wsj
I don’t find this article very convincing. I had a quick look to see if anyone had written any full response to the article, but couldn’t find any, so here are a few comments.
I will put aside the concerns I have about Dershowitz’s reputation (but happy to provide the sources of my concern to anyone who’s interested); and of course intellectual argument is independent of the author’s reputation. But there is an appeal to authority in the article, called “the former head of the Israeli air force”, and it is relied upon for one of the few facts he alleges — an anecdote that Hamas use human shields; certainly a demonizing story. When Dershowitz cites such an authority for this event, that is hearsay rather than direct citation, private communication rather than publicly available information, and coming at first instance from a former official the State engaged in massive bombardment, with an interest in demonizing the enemy and glorifying his own military, as part of a military campaign which includes what was publicly announced to be a massive public relations campaign. The story might be true — in which case, cited without regard to Palestinian humanity, it is still racist — but all evidence must be evaluated.
Whatever the case, one should separate the arguments that Hamas is committing war crimes and that Israel’s actions are appropriate, even “commendable”. I have no argument with the former; the latter, however, is more controversial.
Why appropriate, even “commendable”? It seems difficult to argue in light of the facts of what the Israeli military is doing. And as it turns out, the only way Dershowitz can argue it is by failing to mention anything that the Israeli military has actually done. All he can mention about what the Israeli military is doing (as opposed to Hamas) is one (poorly sourced) anecdote of Israeli military restraint, which also serves the purpose of demonizing Hamas, and some generalities about a policy of restraint. And in any case, these are references to things the Israeli military has allegedly not done, rather than actual things it has done.
Well, perhaps the “commendability” of military actions can be judged in the abstract, without reference to facts and reality of what those actions are and what they have caused; perhaps all judgments of humanitarian law can be made in the realm of platonic ideals; perhaps war is just a branch of pure mathematics. At least, that’s the way Dershowitz proceeds.
That’s okay; I am a pure mathematician; we can evaluate his claims on their merits and submit his paper to peer review.
First, he cites the aforementioned (poorly sourced) anecdote demonizing Hamas and claiming Israeli restraint. Demonizing your enemy, suggesting they don’t love their children, does not justify bombing anything, however correct it is, or however racist it is. One anecdotal (poorly sourced) exercise of restraint among the ongoing slaughter is barely evidence of a general government policy — but nevertheless I do believe some such policy exists, independently of Dershowitz’s flimsy evidence. The restraint of the Israeli military is such that, uncontroversially, it has bombed police stations, a university, a television station, killled hundreds, deaths on either side are in a ratio of roughly 100:1, and UN officials estimate that at least 25% of the dead are civilians. Perhaps if a different policy were followed, and civilian casualties rose to 50%, he would care? Is there a fundamental mathematical constant of proportion of acceptable civilian casualties?
Despite Dershowitz’s platonic, scholastic approach, he appears to assert that the relevant number is zero: “The claim that Israel has violated the principle of proportionality — by killing more Hamas terrorists than the number of Israeli civilians killed by Hamas rockets — is absurd.” There seems to be an assumption that any Palestinian person killed is a “Hamas terrorist”. All statistics require evidence, of course; since Dershowitz presents none of Palestinian civilian casualties, we can assume the answer is zero. In the pure-mathematical approach to war then, civilian casualties inflicted by the author’s favoured state are zero by assumption. Perhaps in future development of the field, we can simply define all casualties not to exist at all. All is for the best, after all, in this best of all possible worlds.
(That’s all quite apart from the other definitional issue with “terrorist”, for which designation we often have little more to go on than the declaration of the attacking forces as to who they just killed; but that is a concern from the realm of the profane.)
Dershowitz’s second argument from the Platonic realm is more serious, and invokes international humanitarian law. He considers the “principle of proportionality”, which is contained in the Fourth Geneva convention, and in Protocol I to those conventions (also customary international law). We can state what these rules are.
Under the Fourth Convention, civilians must be treated humanely. Article 33 of that convention prohibits all collective punishments, and the punishing of civilians for offences they have not committed. Under articles 51 and 52 of Protocol I, there are specific rules regarding attacks on civilians and civilian buildings::
* Civilians shall not be the object of attack.
* Attacks designed to spread terror are prohibited.
* Indiscriminate attacks are prohibited. Indiscriminate attacks include not only those which have no specific military objective, but also those attacks which are performed in such a way that the attacks cannot be limited in their effect to civilians as required by international law.
* In particular, art.51(5)(b) specifically says that attacks are indiscriminate, and hence constitute war crimes, if they “may be expected to cause incidental loss of civilian life… which would be excessive in relation to the concrete and direct military advantage anticipated.”
* Moreover, under article 52, civilian objects (e.g. police stations, universities, television stations) are not to be attacked, and “In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.” (art.52(3))
* Attacks must be limited to military objectives.
So, in the case of bombing police stations, a university, a television station, and whatever other targets in a densely packed urban areas, which of course may be expected to cause incidental loss of civilian life — the immediate legal questions are: is it “designed to spread terror” — in which case it is terrorism and a war crime? Is it aimed at civilians — in which case it is a war crime? Is it “a civilian object”, with benefit of the doubt against military use — in which case bombing it is a war crime? And in any case, might it be expected to cause civilian death or injury which is “excessive” in relation to the “concrete and direct military advantage anticipated”? There is also a broader question: Does it constitute a collective punishment?
Those are subjective questions and for now I will leave them to individual judgment in each case, in regard of the numbers of casualties on either side. Those are just some of the relevant legal questions; and legality and morality are of course not the same thing. But a simpler and more conservative question is how any bombing that goes beyond hitting rocket positions confer any “military advantage anticipated” other than zero; and a simpler point again is that any positive number is in “excess” of zero. One conclusion, which seems not particularly controversial in light of the facts, is that both sides have committed serious violations of international humanitarian law — with the scale of their atrocities however being orders of magnitude apart, and the more lethal side being armed to the teeth by the government that governs us.
But in the pure-mathematical version of war, these mundane applications of the general theory are not considered. Instead, Dershowitz’s approach sticks to hallowed theoretical ground:
“First, there is no legal equivalence between the deliberate killing of innocent civilians and the deliberate killings of Hamas combatants. Under the laws of war, any number of combatants can be killed to prevent the killing of even one innocent civilian.”
The first statement is true, certainly. The second, taken literally, is certainly wrong: any military attack must be made for a military purpose; you cannot just massacre enemy combatants because you are in an armed conflict, and because one of your civilians might die in that conflict; international law does not condone such atrocities; there is no such theorem even in pure-war-theory. But assuming by “combatants” he means “combatants firing rockets at Israeli civilian populations and thereby committing war crimes”, he’s correct, at least as a matter of law. And with the assumption that all deaths are of this type, in another shining example of the triumph of abstract theory, he has defined away much of the military action of his favoured state so as not to exist.
He then goes on to say:
“Second, proportionality is not measured by the number of civilians actually killed, but rather by the risk posed. This is illustrated by what happened on Tuesday, when a Hamas rocket hit a kindergarten in Beer Sheva, though no students were there at the time.”
The first sentence is again false even in the abstract. We just saw that the appropriate question — apart from broader questions such as collective punishment — is whether the “incidental loss of civilian life… which would be excessive in relation to the concrete and direct military advantage anticipated”. Even having chosen to consider only sacred theory and not profane fact, that’s not a correct statement of theory. Even in the chosen terrain of Platonic ideals, his description of the relevant theory is woefully inadequate, referring to the risk of civilian causalties, but whiting out the requirements of “military advantage” and whether they are “excessive”.
His omission also makes the description logically incoherent. One thing cannot be proportional; there must be two things, which are in a certain proportion. Proportionality cannot be “measured” unless one measures two things relative to each other. But perhaps Dershowitz is not actually an arithmetician, and cannot be expected to understand what proportions, or ratios, or fractions are.
Nevertheless, Dershowitz *is* a law professor, and so has no excuse, despite his arithmetical difficulties. Is he ignorant of the relevant law, or is he deliberately misrepresenting it? Or does he assume, by his silence, that all actions of the Israeli military confer military advantage, and are not excessive, by definition? If so, another theoretical breakthrough!
(He has also refused to mention all the other rules of international humanitarian law, such as prohibition on attacking “civilian objects”, and the requirement of “military objectives”. Perhaps these laws are defined so they cannot be broken.)
His example in the second sentence is a good one: it is one of his few deviations from the platonic realm, though as we see, not about any action of the Israeli military, rather about an uncontroversial war crime of Hamas. And similar considerations apply when a far more accurate and destructive probably-US-supplied Israeli missile hits a university, or a TV station, or a police station. But those events, as we have seen, are defined so as not to exist.
So, Dershowitz does not mention anything about the bombing which actually *has* been carried out by Israel, or what its consequences have been. Perhaps that is because, upon even the slightest examination of that evidence, “commendable” actions might be revealed as war crimes, and Dershowitz becomes worse than an apologist for war crimes, he becomes an enthusiastic cheerleader.
My suggestion is that colleague Dershowitz’s paper be rejected for publication. As a condemnation of Hamas’ war crimes, I think it is good. As spreading racism against Palestinians, it is not. And as a justification of Israel’s actions, it is ridiculous. To consider those actions as a branch of pure theory, removed from all reality, is ridiculous — and even by its own logic it is mostly wrong and misrepresents the relevant law. Coming from a law professor, it is even worse. Moreover, when this article has already been published in a major newspaper, and when it supports the one side in this conflict that receives massive amounts of US funding, as well as ideological and diplomatic support, which is perpetrating military activities of the type discussed above, there is responsibility on us not to let it pass.
* * *
I apologise for the flippancy of these comments, because this is a serious matter. We deserve to hear more serious commentary in our major newspapers than the fantasies and fantastic omissions of this article. War and armed conflict is a terrible, terrible thing; it causes mangled bodies, weeping families, broken bones, and dead children. It breeds hate, it dehumanizes, it crushes the spirit, it kills hope. It cannot be considered in the abstract; it must be considered in relation to its effects on human beings. War is the total failure of the human spirit.
To write an article about a major armed conflict without acknowledging the uncontroversial existence of massive civilian casualties is quite an achievement. To get such an article published in a major newspaper is another. That says something.
The analysis here is very superficial and solely in response to Dershowitz; it should not be considered anything like a proper analysis of all the relevant international law (I barely even mentioned collective punishment). For a brief analysis of the relevant law in this immediate conflict, which is less favourable to Israel, see for instance Phyllis Bennis’ recent article at http://www.tni.org/detail_page.phtml?act_id=19052. The international law of the occupation more generally is a much longer story, and less favourable to Israel again; see for instance the judgment of the International Court of Justice on the wall, available at http://www.icj-cij.org/docket/files/131/1671.pdf; paragraphs 70-78 and 86-89.