Malayan Law Journal Articles/2006/Volume 4/War Crimes with Impunity: The Case of the Abu Ghraib Prisoners

[2006] 4 MLJ clxxiv

Malayan Law Journal Articles
2006
War Crimes with Impunity: The Case of the Abu Ghraib Prisoners
Dr Mohammad Naqib Ishan Jan
1
MCL, PhD (IIUM), Assistant Professor, Ahmad Ibrahim Kulliyyah (Faculty) of Laws, International Islamic
University, Malaysia
Introduction
The graphic and real images of Iraqi prisoners being tortured, murdered and sexually humiliated by United States ('US')
troops at the Abu Ghraib prison near Baghdad
2
, which were vividly shown on television screens from late April 2004
and were also reported by the International Committee of the Red Cross ('ICRC'
3
) and by Major General Antonio M.
Taguba
4
, shocked the conscious mind of civilised mankind and exposed to the world not only the utter legal and moral
bankruptcy of America's war on Iraq, but also exposed how sadistic, brutal and inhumane the conduct of war by
American forces is.
4 MLJ clxxiv at clxxv
The images of dehumanisation and brutalisation of prisoners
5
clearly demonstrate the torturous methods employed to
interrogate the detainees and in turn they provide more evidence of the catalog of 'war crimes'
6
being committed by the
US led forces in the course of their armed conflict with Iraq.
The armed conflict between the US and Iraq, which began on 20 March 2003 and, as the result of which the former
brought the latter under its, either full or partial occupation, is an international armed conflict, that is, a conflict between
two opposing states. The law applicable to this type of conflict, which will be discussed in this article, is the laws of war
or the international humanitarian laws ('IHL') as enshrined inter alia in the Geneva Conventions of 1949
7
, the most
relevant of which is the Convention relative to the Protection of Civilian Persons in Time of War ('GC IV')
8
. The GC IV
is relevant because the detainees in the Abu Ghraib prisons were mostly civilians, not captured combatants or prisoners
of war. The status of the latter category is governed by the GC III which is not within the scope of the present study,
although some of its provisions that have common application to both civilian detainees and prisoners of war may be
occasionally referred to.
4 MLJ clxxiv at clxxvi
The US is a party to these Conventions and, as such, it is required to implement its obligations thereunder in good
faith
9
. The US obligations vis--vis the protection of the Abu Ghraib detainees are also reflected in customary
international law
10
, which the US is bound to obey as customary international law binds all states
11
, except those states
which have persistently objected to the formation of the custom
12
, The US does not fall within that exception.
4 MLJ clxxiv at clxxvii
The question here is: Did the US carry out its international obligations vis--vis the Abu Ghraib detainees in good faith?
Did it provide the detainees with humane treatment or respect their honour, religious convictions and customs?
13
Is it
not true that the detainees at the Abu Ghraib prison were ill-treated, tortured, and some even murdered? As these facts
Page 1
are true, then it can be concluded that US has violated its obligations, not only under the relevant provisions of the
GC IV but also under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
14
, and under other relevant conventional human rights laws
15
. In fact, the cruel and torturous
acts of the US forces against the Iraqi prisoners at Abu Ghraib Prison amount to 'grave breaches' of the relevant Geneva
Conventions of 1949
16
. Surely, as will be demonstrated in this article, grave breaches of the Conventions amount to
'war crimes'. The question is: Why haven't all the alleged war criminals been tried?
This article basically addresses the above issues. It attempts to determine the legal status of the detainees in Abu Ghraib
prison, the type of crime they were subjected to, and the responsibility of the perpetrators of the crime. Who were the
detainees in Abu Ghraib prison? Are they 'prisoners of war' or 'civilian detainees'? Does the torturous treatment they
were subjected to come within the definition of 'war crimes'? If it was a war crime to torture the prisoners, then it is
essential to determine the following questions: Who can be charged for such crimes? Is it the ordinary soldiers or those
who are in
4 MLJ clxxiv at clxxviii
command and control, or both? Where can they be tried? Can they be tried before the International Criminal Court
('ICC')
17
? If this is not possible, which I strongly believe it may not be, as the US has refused to ratify the Rome Statute
that established the Court
18
, then where can they be tried and, if found guilty, punished?
Although the US began to bring some of the culprits before its military courts, this may be considered as a mere sham
carried out to pacify the situation and to gain political mileage by attempting to show the public that it respects the due
process of law. What sort of respect to the due process of law is it when only some low ranking military officials are
charged and lightly punished while the responsibility of high ranking military and civilian officials is ignored. Further,
it might be considered doubtful that the court marshal of the accused in US military courts would be impartial or would
do justice to the victims of the crimes. The question can be asked: 'Where is the rule of law, which the US always
claims to uphold
19
? What would be the consequential effect of denial of justice and disrespectfulness to the rule of law?
Does it not encourage the perpetrators of war crimes to continue carrying on their heinous crimes? Does it not defeat the
main objective of international criminal law, which is to deter the future commission of crimes? Surely, as explained in
this article, the answer to these questions are in the affirmative and if a deserving penalty is not imposed upon the Abu
Ghraib war criminals, as it was imposed against World War II criminals, this may then give the wrong signal to
like-minded criminals to carry on with their crimes. The result would be devastating as we might witness situations
where more people are subjected to torture, murder and rape
20
in the hands of criminals
4 MLJ clxxiv at clxxix
among military and civilian authorities. Thus, as this article will discuss, the US has a primary responsibility to subject
all persons, whether military or civilian personnel, who were behind the crimes at the Abu Ghraib Prison, to a fair trial
and if they are found guilty they must be punished with a punishment that fits the crime. While discussing this issue,
together with other related issues that have been highlighted above, this article will refer to the relevant international
treaties, customs, decisions of the international courts and juristic views expressed by international law scholars.
The Law Applicable to the Detainees at the Abu Graib Prison
The first issue to be discussed is which bodies of international law can be applied in the case of the Abu Ghraib
prisoners. The most relevant international law that can be applied in this case include the IHL, which the Geneva
Conventions of 1949 are a part of
21
, international human rights law, the principles of state responsibility and
international criminal law. The principles of state responsibility and international criminal law may illuminate the
possible legal exposure of the US, as well as the potential personal criminal responsibility of those responsible for
violations of the laws of war and international human rights law. Certainly, the US forces along with other coalition
forces in Iraq are subject to IHL
22
. The United Nations Security Council in its Resolution 1483 called upon all States to
observe their obligations under the Geneva Conventions of 1949 and the Hague Regulations of 1907
23
, and the Taguba
Report notes that all Enemy Prisoners of War ('EPWs') and Civilian Internees should receive the 'full protection of the
Geneva Conventions ...'
24
.
Page 2
The Geneva Conventions of 1949 provide different regimes of protection depending upon the status of a particular
individual under the Conventions. Special rights in judicial proceedings are expressly provided for those having the
status of prisoners of war ('POW') under the GC III and for civilian detainees under the GC IV. Although the legal status
of prisoners of war is different from civilian detainees, these distinctions are not particularly important in this case
because the abuses committed at the Abu Ghraib prison, as documented in the ICRC and Taguba reports
25
, are illegal
regardless of the status of the particular individuals involved. Prisoners of War must be humanely treated, and protected
'at all times' 'particularly
4 MLJ clxxiv at clxxx
against acts of violence or intimidation and against insults and public curiosity'
26
. Their families must be notified of
their capture, and, in particular, outrages upon personal dignity, and humiliating and degrading treatment are
prohibited27. If the detainees in the Abu Ghraib were civilians then, as provided by the GC IV, they must be treated at
all times 'with humanity'
28
, and 'in all circumstances, to respect for their persons, their honour, their family rights, their
religious convictions and practices, and their manners and custom. They shall at all times be humanely treated, and shall
be protected especially against all acts of violence or threats thereof and against insults and public curiosity'
29
. In
particular, '[n]o physical or moral coercion shall be exercised against protected persons, in particular to obtain
information from them or from third parties'
30
, and murder, torture, corporal punishment and 'any other measure of
brutality whether applied by civilian or military agents' is prohibited
31
. Although the GC IV does not prohibit the arrest
and detention of Iraqis per se, it imposes strict procedural and substantive requirements on the manner of arrest,
treatment of detainees, interrogation and the ultimate disposition of particular cases. Although prisoners may be
interrogated in combat zones, the use of physical or mental torture or any coercion to compel them to provide
information is prohibited by both the relevant Geneva Conventions of 1949 and also by the customary as well as
treaty-based international human rights law.
4 MLJ clxxiv at clxxxi
Although international human rights law contains elaborate principles regarding the treatment of prisoners
32
, not all of
these principles will be discussed as they fall outside the scope of this article. What this article will emphasise is that
international human rights law prohibits torture. For instance, Article 7 of the ICCPR
33
, a treaty to which both Iraq and
the US are parties, provides that 'no one shall be subjected to torture or to cruel, inhuman or degrading treatment' and in
its Article 10 it further states that all persons who are deprived of their liberty in accordance to law 'shall be treated with
humanity and with respect for the inherent dignity of the human person'
34
. Torture is also prohibited by the Torture
Convention
35
, a treaty to which both Iraq and the US are parties, as well as by the Universal Declaration of Human
Rights
36
--a UN General Assembly resolution widely recognised as a statement of customary international law. The right
not to be tortured, as provided by the ICCPR and the Torture Convention, is absolute and non-derogable
37
because the
law recognises no exceptions to it
38
. As the US is a party to these treaties, it is duty bound to fulfill its obligations by
not only preventing, but also prosecuting and punishing all the individuals who have committed acts that can be
construed as torture.
4 MLJ clxxiv at clxxxii
Torture VersusJus Cogens
The obligation of the US to prosecute and punish the perpetrators of torture is based also on the customary principle of
jus cogens. It is widely recognised that the prohibition against torture is part of the jus cogens norm -- a norm from
which no derogation is allowed
39
. The definition of jus cogens or peremptory norm of international law is given in
Article 53 of the 1969 VCLT which provides
40
:
A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character.
Page 3
The principles that are recognised as jus cogens norms include the prohibitions against aggression, genocide, slavery,
racial discrimination, crimes against humanity and torture
41
. Most of these prohibitions, except the prohibition against
torture, fall outside the scope of the present study.
4 MLJ clxxiv at clxxxiii
If the prohibition against torture comes within the ambit of jus cogens norms, which it does
42
, then war crimes is also
included because, as will be explained later, torture is a war crime
43
. In the Furundzija case
44
, which involved the crime
of torture, the International Criminal Tribunal for Former Yugoslavia ('ICTY') found that one of the consequences of the
jus cogens character bestowed by the international community upon the prohibition of torture is that 'every State is
entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory
under its jurisdiction'
45
. This is a mandatory obligation
46
as the norms prohibiting the commission of war crimes and
the resulting obligation to prosecute or extradite persons accused of these crimes have a peremptory character
47
. If this
is a correct view, which I believe it is, then the US could never under any circumstances derogate from its duty to
prosecute the alleged war criminals
48
. This view is supported by the fact that 'the implications of jus cogens are those
4 MLJ clxxiv at clxxxiv
of a duty and not of optional rights; otherwise, jus cogens would not constitute a peremptory norm of international
law'49. Support for the view that a peremptory character may attach to prosecute war criminals may also be found to
some extent in the ICRC Commentary on the Geneva Conventions, which notes that 'repression of grave breaches was
to be universal ... [with those reasonably accused] sought for in all countries', adding that 'the obligation to prosecute
and punish (war criminals) [is] absolute'
50
.
Torture is a War Crime
The issue of the prosecution and punishment of the war criminals will be dealt with after it is determined whether the
ill-treatment or torture applied by the US forces against the prisoners at Abu Ghriab Prison comes within the ambit of
the term 'war crimes'. Article 6 of the 1945 Charter of the International Military Tribunal of Nuremberg
51
defines the
term 'war crimes' as:
Violations of the laws or customs of war. Such violations shall include, but are not limited to, murder, ill-treatment, or deportation
to slave labour or for any other purpose of civilians population of or in occupied territory; murder or ill-treatment of prisoners of
war or persons in the sea; killing of hostages; plunder of public or private property; wanton destruction of cities, towns and villages
or devastation not militarily necessary
52
.
War crimes, which traditionally have been regarded as grave offences against the laws of warfare
53
, encompass
numerous offences. A comprehensive discussion of all of these offences would be beyond the scope of this article. What
will be discussed here is limited to a certain number of offences laid down in the above definition of 'war crimes',
namely the murder or ill-treatment of civilian detainees or prisoners of war. 'Ill-treatment' includes 'torture'. The Torture
Convention
54
, a treaty ratified by the US and thus part of US binding domestic law, defines torture to include:
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or
4 MLJ clxxiv at clxxxv
coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity ...
55
'Torture' is a war crime within the meaning of Article 147 of the GC IV
56
, which defines 'war crime' as:
Page 4
Willful killing, torture or inhuman treatment, including ... willfully causing great suffering or serious injury to body or health,
unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces
of a hostile power, or willfully depriving a protected person of the rights of fair and regular trial, ...taking of hostages and extensive
destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
In the above definition, the offences of 'willful killing, torture or inhuman treatment', inter alia, are considered as 'grave
breaches' of the norms of IHL that entails individual criminal responsibility
57
. In its February 2004 report, the ICRC
found that 'methods of physical and psychological torture were used by the military intelligence in a systematic way to
gain confessions and extract information' (emphasis added) from the prisoners
58
. The military investigation in Iraq
headed by Major General Antonio Taguba also found 'systemic and illegal abuse of detainees' in the Abu Ghraib facility
between August 2003 and February 2004, and concluded that soldiers had 'committed egregious acts and grave breaches
of international law at Abu Ghraib ...'. The incidents recorded in the Taguba report include:
Punching, slapping, and kicking detainees; jumping on their naked feet; Videotaping and photographing naked male and female
detainees; Forcibly arranging detainees in various sexually explicit positions for photographing; Forcing detainees to remove their
clothing and keeping them naked for several days at a time; Forcing naked male detainees to wear women's underwear; Forcing
groups of male detainees to masturbate themselves while being photographed and videotaped; Arranging naked male detainees in a
pile and then jumping on them; Positioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his
fingers, toes, and penis to simulate electric torture; Writing 'I am a Rapest' (sic) on the leg of a detainee alleged to have forcibly
raped a 15-year old fellow detainee, and then photographing him naked; Placing a dog chain or strap around a naked detainee's
neck and having a female Soldier pose for a picture; A male MP guard having sex with a female detainee; Using military working
dogs (without muzzles) to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee
59
.
4 MLJ clxxiv at clxxxvi
Major General Taguba also found 'credible' evidence that the following abuses took place:
Breaking chemical lights and pouring the phosphoric liquid on detainees; Threatening detainees with a charged 9mm pistol;
Pouring cold water on naked detainees; Beating detainees with a broom handle and a chair; Threatening male detainees with rape;
Allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell;
Sodomizing a detainee with a chemical light and perhaps a broom stick
60
The Taguba report emphasised that the findings were 'amply' supported by confessions from suspected perpetrators,
statements from detainees and witnesses, as well as 'extremely graphic photographic evidence'
61
. These 'numerous
incidents of sadistic, blatant, and wanton criminal abuse' found by the Taguba investigation constitute acts of torture or
cruel, inhuman or degrading treatment, in violation of international law
62
. Article 147 of the GC IV lists 'torture or
inhuman treatment', among its 'grave breaches', without distinguishing between the two in terms of gravity
63
. These are
thus war crimes and are the most serious offences that every High Contracting Party to the Conventions, including the
US, must prevent and suppress, including by prosecuting and punishing the perpetrators.
The GC IV
64
prohibits torture along with other forms of ill-treatment of detainees. For instance, Article 3 of the GC IV
provides that 'persons taking no active part in hostilities ... shall in all circumstances be treated humanely'. The Article
further prohibits acts of 'mutilation, cruel treatment and torture' and 'outrages upon personal dignity, in particular,
humiliating and degrading treatment' of detained persons. Persons detained without trial, as prescribed by Article 5 of
the same Convention, have the right to be 'treated with humanity' and with 'respect for their persons, [and for] their
honor'. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or
Page 5
threats thereof and against insults and public curiosity
65
. 'No physical or moral coercion shall be exercised against
protected persons, in particular to obtain information from them'
66
. Persons in control of prisons are prohibited
4 MLJ clxxiv at clxxxvii
from taking any measure of such a character as to cause the physical suffering of protected persons in their hands. This
prohibition applies not only to murder, torture, corporal punishment, mutilation, but also to any other measures of
brutality whether applied by civilian or military agents
67
and 'all measures of intimidation' against prisoners are
outlawed
68
, for such measures are 'grave breaches' of the Geneva Conventions of 1949
69
.
The 'grave breaches' of the Geneva Conventions include, inter alia, 'torture or inhuman treatment ..., willfully causing
great suffering and serious injury to body or health'
70
. Apart from the Geneva Conventions of 1949, there is also a wide
range of international human rights instruments that expressly prohibit torture
71
by emphasising the general norm that
'no one shall be subjected to torture or to cruel, inhuman or degrading treatment and punishment'
72
. The fact, however,
is that the US, which claims to be the champion of human rights protection, has violated all the existing fundamental
norms of international law by subjecting the prisoners at Abu Ghraib prison to willful murder, cruel, inhuman and
degrading treatment. Surely, the acts of beating prisoners to death, raping them
73
, sodomising them with foreign
objects, using unmuzzled dogs to bite and severely injure them
74
, which have been documented at Abu Ghraib and
which were carried out by prison officials, are undoubtedly acts of torture and thereby constitute war crimes, as these
acts are grave breaches of the 1949 Geneva Conventions
75
, treaties ratified by the US. As the acting High
Commissioner for Human Rights, Bertrand Ramcharan, stated in his fact-finding report, dated 4 June
4 MLJ clxxiv at clxxxviii
2004, any fair tribunal would designate as war crimes human rights violations by US occupation forces against Iraqi
detainees, particularly in Abu Ghraib prison. He said the 'willful killing, torture [#8743] inhuman treatment' of Iraqi
detainees in Abu Ghraib was not only a grave violation of international law but 'might be designated as war crimes by a
competent tribunal'
76
.
Who is Responsible?
Individual Criminal Responsibility
War criminals who have committed grave breaches of IHL by subjecting prisoners of war or civilian detainees to willful
killing, torture or inhumane treatment, or who have violated the principle of jus cogens relating to the prohibition of
torture, are individually responsible. War crimes are committed by man, not by an abstract entity like a state. As such,
the individuals involved, either as superiors or subordinates, in the commission of crimes at Abu Ghraib prison are
criminally responsible under international law, for 'there is no law, no sympathy, no code of morals' which can excuse
war criminals
77
.
4 MLJ clxxiv at clxxxix
The individuals concerned may include some of the top administrative officials in the US
78
, top military officers
79
,
mid-level officers
80
and may even be private individuals who worked as contractors in the Abu Ghraib Prison -- all of
them must answer for their individual criminal responsibility.
4 MLJ clxxiv at cxc
Although some of the individual soldiers who held subordinate positions and actually carried out the war crimes at the
Abu Ghraib prison were court marshaled in the US, and while some were found guilty and lightly punished
81
, this is
insufficient as the criminal responsibility of their superior officers has been ignored and, consequently, justice has not
been adequately served. It is not enough for the US to investigate, prosecute or court martial only the subordinate
individual officers who actually carried out torture or inhuman treatment that outraged the personal dignity of the
detainees at Abu Ghraib prison, the responsibility is far greater than the action taken so far.
4 MLJ clxxiv at cxci
The doctrine of criminal individual responsibility demands that not only the subordinates, but also the superiors as
Page 6
members of the 'chain of command', bear individual criminal responsibility under international law
82
. Although the
individual superiors did not directly participate in the actual commission of the acts, they were in command and control
and may be held responsible under the doctrine of 'command responsibility' -- a doctrine under which superiors may
incur criminal liability for war crimes committed by their subordinates if they fail to exercise sufficient control over
those subordinates
83
.
The Doctrine of Command Responsibility
The doctrine of command responsibility has been defined as the 'responsibility of military commanders for war crimes
committed by subordinate members of their armed forces or other persons subject to their control'
84
. Command
responsibility is a legal device, the purpose of which is to bring high-ranking civilian and military leaders charged with
war crimes and crimes against humanity before the court of justice
85
. It consists of two limbs
86
:
(1) it concerns the responsibility of a commander who has given an order to an inferior to commit an act
which is in breach of the law of armed conflict or whose conduct implies that he is not adverse to such
breach being committed, and
(2) it covers the plea of the inferior that he is not responsible for the breach because he was acting in
accordance with orders or what he presumed to be the wishes of his commander, a plea that is more
commonly described as that of 'compliance with Superior orders'-- the inferior putting forward such a
plea contends that the Superior alone is responsible.
4 MLJ clxxiv at cxcii
The rational behind imposing responsibility on military and civilian superiors under international law includes the fact
that:
(1) Superiors hold positions of 'great public trust and responsibility' and they have the authority and power to
prevent crimes being committed by subordinates
87
. This is a basic tenet of military life that subordinates
do follow the orders of their superiors, and when superiors command them not to do certain acts, they
will refrain from doing so for they are under a duty to refrain
88
.
(2) Superiors have voluntarily accepted their position, thus, they are presumed to have knowingly
acquiesced to the duties under international law that are a corollary of such position
89
.
(3) Failure to control or punish subordinates is a form of complicity through omission that makes superiors
criminally responsible under the doctrine of command responsibility
90
.
The doctrine of command responsibility is a well-established doctrine under both customary and conventional
international law
91
. It was first recognised under both the Hague Convention (IV) Respecting the Laws and Customs of
War on Land
92
('Convention (IV)') and the Hague Convention (X) Adaptation to Maritime War of the Principles of the
Geneva Convention of 1907
93
.
4 MLJ clxxiv at cxciii
Both conventions impose affirmative duties on superior officers in relation to the conduct of their subordinates,
including a duty to ensure 'public order and safety' in areas occupied by military forces
94
. Article 3 of Convention (IV)
provides that a belligerent State violating these regulations will be responsible for all acts committed by its armed forces
and will be liable to pay compensation.
The Rome Statute
95
also recognises the doctrine of command responsibility. For instance, Article 28 (1) of the Statute
provides that military commanders who either knew or should have known of the offences committed, and who failed to
take all 'necessary and reasonable measures within [their] power to prevent or repress their commission or to submit the
Page 7
matter to the competent authorities for investigation and prosecution', shall be criminally responsible for crimes
committed under their effective command and control, or effective authority and control, as a result of their failure to
exercise proper control over his or her forces. Similarly, article 28(2) provides that other superiors (that is, civilian
officials), may be responsible for crimes committed by their subordinates if all the elements of the doctrine of command
responsibility, as discussed below, are fulfilled. What this means is that the superior would be criminally responsible if
he or she either knew, or consciously disregarded, information which clearly indicated that subordinates were
committing, or about to commit, such crimes within his or her effective responsibility and control and the superior
failed to take all necessary and reasonable measures within his or her power to prevent or repress the crimes or to
submit the matter for investigation and prosecution. Thus, mere willful blindness may not effectively shield a
commander or superior from criminal responsibility
96
.
Elements of Command Responsibility
The doctrine of command responsibility consists of three major elements that have to be established before superiors
can be held responsible for crimes committed by subordinates. These elements are
97
:
4 MLJ clxxiv at cxciv
(1)a superior-subordinate relationship;
(2)knowledge by the superior of crimes committed by the subordinate; and
(3)failure by the superior to halt, prevent or punish the subordinate.
A superior-subordinate relationship can be established if it is proven that the superior had 'authority', that is, the
legitimate right to demand that another person do or refrain from doing something
98
. It can also be established by direct
or indirect 'control', that is, the ability to exercise restraint, power or direction over another person
99
. As regard the mens
rea or knowledge of the superior as to crimes committed by the subordinate, it must be noted that 'knowledge' can either
be actual or constructive and constructive knowledge of the crime is sufficient to establish the responsibility of a
commander or superior official. This means the commander can be held responsible if he was aware of the commission
of the crime by his subordinate but failed to prevent it
100
. Where a commander having constructive knowledge of the
commission of the crime, failed to prevent it, he is considered, as suggested by the International Criminal Tribunal for
Yugoslavia ('ICTY') prosecutor, as an accomplice to the crime
101
. Complicity refers to the involvement of a person (the
accomplice) in an offence committed by another (the principal), such that the accomplice is criminally liable for the
offence committed by the principal
102
. The liability of the commander or superior arises from a failure to act because
superiors have an absolute duty to prevent, punish and control the commission of crimes by their subordinates.
In the case of the ill-treatment or torture of the detainees at Abu Ghraib prison, the individual criminal liability of
superior military and civilian officials of the US Government, including the President as the commander in chief of the
army, for those crimes, can be determined by addressing the following questions
103
:
4 MLJ clxxiv at cxcv
(1) What did the top military and civilian officials specifically order or authorise regarding the interrogations
of Iraqi prisoners? and
(2) Assuming they did not order or authorise murder, torture or inhuman treatment, what did they do once
they knew of murder, torture or inhuman treatment?
As explained above, under international law, once superiors are aware of violations they have a duty to act to stop them.
It is not clear what orders the President and other high ranking officials gave with respect to the interrogation of Iraqi
prisoners, or what the President and others actually knew about the abuse of prisoners, or when they knew it and what
they did to stop it. What is clear, however, is that Colin Powell, the former US Foreign Secretary, claimed he advised
Page 8
the President about the complaints of the International Red Cross that prisoners at Abu Ghraib prison were ill-treated
104
but it appears that there was no response to that. The President himself has denied involvement by stating that he was
not initially aware of the commission of war crimes which he says came to his knowledge when photographs of the
tortured prisoners at Abu Ghraib Prison were broadcast on the CBS News program '60 Minutes II' on 28 April 2004 and
that if the torture was committed, it was committed in violation of his instructions that his subordinate officials should
act in accordance with the Geneva Conventions of 1949.
The President of the United States may deny having knowledge of torture at Abu Ghraib prison, but he cannot deny that
he was the one who initiated the illegal and immoral war against Iraq. Had Iraq not been invaded, war crimes would not
have been committed at Abu Ghraib prison. The invasion of Iraq, which the President cannot refute his involvement in
what has been characterised by some as a 'war of aggression; conceived in malice and executed in deceit'
105
. It has also
been said to be a war that constitutes a crime against peace, a serious crime in international law. As Professor Michael
Mandel has stated:
106
4 MLJ clxxiv at cxcvi
The invasion of Iraq was a 'crime against peace,' the number 1 count in the Nuremberg Charter's indictment of the Nazi war
criminals: 'planning, preparation, initiation [#8743] waging of a war of aggression, or a war in violation of international
treaties'--international treaties just like the Charter of the United Nations. It's what the Nuremberg Tribunal called 'the supreme
international crime.' The President was made aware of this by a great number of international lawyers around the world before the
invasion, and even if he claimed ignorance, I'm sure he's heard that ignorance of the law is no excuse. Bush and his administration
and the US commanders involved are all guilty of this supreme crime. Since the war was unlawful, the many thousands of deaths
predictably resulting from it are also crimes, murder in fact, for which Bush and his officials and commanders are guilty in flagrant.
The crime against peace is not within the scope of the present discussion as the war crimes committed at Abu Ghraib
prison and whether the superior military and civilian officials, including the US President, bear individual criminal
liability for the crimes is being concentrated on here. President Bush has denied that he had any knowledge of the
commission of crimes at Abu Ghraib prison and has said that if crimes did take place, they took place in contravention
of his instruction to his subordinates to act in accordance with the Geneva Conventions of 1949. At this stage it would
be premature for us to conclude whether the President is right or wrong, and the truthfulness of the President's
contentions should be determined by an impartial criminal tribunal.
Not only the involvement of the President in the commission of war crimes must be ascertained by an impartial criminal
tribunal, the involvement of other high ranking officials
107
such as the US Secretary of Defense, Donald Rumsfeld
108
,
must be determined. As the President of the Center for Constitutional Rights ('CCR'), Michael Ratner has stated:
From Donald Rumsfeld on down, the political and military leaders in charge of Iraq policy must be investigated and held
accountable. It is shameful that the United States of America, a nation that purports to set moral and legal standards for the world,
refuses to seriously investigate the role of those at the
4 MLJ clxxiv at cxcvii
top of the chain of command in these horrible crimes. Indeed the existence of 'torture memos' drafted by administration officials
and the authorization of techniques that violated humanitarian law by Secretary Rumsfeld, Lt. General Sanchez and others make
clear that responsibility for Abu Ghraib and other violations of law reaches all the way to the top
109
.
The US Secretary of Defense, Donald Rumsfeld, is accused of instructing his subordinate interrogators in late 2001 to
'take the gloves off' while questioning prisoners, including 'American Taliban' prisoner John Walker Lindh. He is also
accused of authorising certain detainees to be kept off the official prisoner lists. He, however, denied in his
congressional hearings having knowledge of the torture in Iraq until it was broadcast by the media. Like Donald
Page 9
Rumsfeld, other superior administrative officials, such as the Defense Undersecretary for Policy Douglas Feith
110
and
the Defense Undersecretary for Intelligence Stephen Cambone
111
, have denied involvement in the commission of
crimes at Abu Ghraib prison and individual responsibility, the truthfulness of which needs to be determined by an
impartial criminal tribunal.
Defence of Superior Orders
A relevant question is whether the individual soldiers who actively participated in the commission of war crimes at Abu
Ghraib prison in Baghdad can rely on the defence of superior orders? It is a well-established principle of international
criminal justice that superior orders is not a defence to a criminal act
112
. If, in a time of war, military officers or soldiers
commit crimes, in conformity with the orders of their superiors but in violation of conventional or customary rules of
war, they cannot escape criminal liability
113
. Although implicit obedience to the orders of superior officers is
indispensable to every military system, this implies obedience only to lawful orders. If the act pursuant to a superior's
order is murder or torture, the production of the order will not make it any less so. It may mitigate, but it cannot justify
the crime. It is a known principle of international law that members of the armed forces are bound to obey only the
4 MLJ clxxiv at cxcviii
lawful orders of commanding officers and they cannot escape criminal liability by obeying a command which violates
or outrages international law
114
.
Thus, military officers in times of war must refrain from following the unlawful orders of their superiors even though it
may entail punishment by their government. If their superiors give them orders, for example, to murder or torture
prisoners of war or civilian detainees in violation of international law, they must not follow the orders as they cannot
rely on the defence of superior orders to escape criminal liability under international law. As the Nuremberg principles
provide: 'The fact that a person acted pursuant to an order of his Government or of a superior does not relieve him from
responsibility under international law, provided a moral choice was in fact possible to him'
115
. This position has been
reaffirmed by Article 33 of the Statute of ICC
116
, which provides:
1.The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a
Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
2.For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.
Thus, each soldier is bound to obey international humanitarian law even if it means disobeying the unlawful orders of
superiors. Soldiers who obey unlawful orders are responsible for the violation along with whoever ordered it. Although
Professor L. Oppenheim in his writings has stated that 'military discipline is founded on complete obedience to superior
orders'
117
, this statement appears to completely overlook the fact that any illegal order is in no sense of the word a valid
order which one is obliged to obey. International law has never approved of the defensive plea of superior orders as a
4 MLJ clxxiv at cxcix
mandatory bar to the prosecution of war criminals. It is submitted therefore, that this defensive plea is not available to
the American commanders in charge of Abu Ghraib prison, although if the circumstances warrant, it might be
considered in mitigation of punishment
118
.
Enforcement against perpetrators of war crimes
The perpetrators of war crimes in the case of Abu Ghraib prison, irrespective of whether they are superiors or
subordinates, must be vigorously prosecuted and, if found guilty, must be severely punished. Otherwise it would mean
Page 10
denial of justice to the victims and also the failure to enforce relevant international law. The following questions arise
and need to be addressed when discussing the enforcement of international criminal law in the case of the Abu Ghraib
detainees: Whose responsibility is it to enforce the law in this regard? Where can the perpetrators of such crimes be
tried and punished--in the courts of their country of nationality or in the courts of any other country on the basis of
'universal jurisdiction'? Does the doctrine of sovereign immunity prevent the prosecution of high ranking officials
accused of war crimes?
4 MLJ clxxiv at cc
In the case of the Abu Ghraib detainees, the responsibility lies with the US to prosecute (or if need be to extradite) any
person, whether military or civilian, found within its territory or territory under its jurisdiction, who is reasonably
accused of war crimes, including torture. The US is required not only by its own laws
119
, but also by the GC IV, to
provide effective penal sanctions for grave breaches (such as torture or inhuman treatment) and to 'take measures
necessary for the suppression of all [other] acts contrary to the provisions of [GC IV]'
120
. Furthermore, the Torture
Convention requires State Parties to prevent, promptly and impartially investigate (and, if called for, prosecute) acts of
torture 'committed in any territory under its jurisdiction'
121
. As a party to these treaties, the US is required by Article II,
Section 3 of its own Constitution to faithfully execute the law, which includes treaties of the US and customary
international law that is part of the laws of the US. Did the US execute the law pursuant to these treaties? As the war
crimes in question were committed against the prisoners at Abu Ghraib prison which is within territory over which the
US has jurisdiction, were all of the alleged perpetrators of the war crimes in question charged and prosecuted?
The US did court marshal some, although not all, of the military officers who were accused of committing the crimes in
question in its own military courts and some, but not all, were found guilty and punished.
4 MLJ clxxiv at cci
However, the punishment they received does not correspond with the severity of the crimes they committed at Abu
Ghraib prison
122
. Most of those convicted received what can be considered light punishment -- they were merely
'demoted'
123
or 'dishonorably discharged' from their military position or were sentenced to 'six' to 'eight months' or 'one
to three years imprisonment'
124
. Some of the alleged war criminals were 'discharged' of any wrong doing and others
were never charged, thus getting away with impunity. Having observed this bitter reality, one can conclude that the US
failed to implement its obligations under the treaty to which it is a party as it failed to properly prosecute and punish all
the war criminals within its jurisdiction. Further, this failure, which implies the denial of justice to the victims and
which undermines the rule of law that the US always claims to uphold
125
, is an internationally wrongful act which
entails the responsibility of the US under the customary law of State Responsibility. It is, however, beyond the scope of
this article to discuss the law of State Responsibility in order to determine the civil liability of the US towards the
victims of its wrongful acts as this article is aimed at establishing that what occured Abu Ghraib prison were war crimes
and that the perpetrators of such crimes must be punished.
Where the US is unwilling or unable to properly persecute all of the alleged war criminals, military or civilian, can they
be tried before the ICC? The answer to this question primarily depends on whether the US is a party to the Statute of the
ICC. The Statute of the ICC -- known also as the Rome Statute, which was adopted on 17 July 1998 and came into force
on 2 July 2002
126
-- has been signed by 139 countries and, out of these, 81 have ratified it. The US signed the Statute on
31 December 2000, but on 27 April 2002, approximately two weeks after the Statute entered into force, former US
under-Secretary of State for Arms Control and International Security John Bolton sent a letter to the United Nations
Secretary General Kofi Annan stating that the US did not ever intend to ratify the treaty and therefore would
4 MLJ clxxiv at ccii
have no legal obligation from its signature
127
. This means that the US refuses to recognise the jurisdiction of the ICC to
try its nationals who are accused of, inter alia, war crimes. To further undermine the ICC, the US persuaded states to
enter into 'impunity agreements' that seek to prevent US nationals accused of war crimes, crimes against humanity or
genocide from being surrendered to the ICC. Approximately 50 countries have signed an impunity agreement with the
US, most of them being poor, developing countries, which raises the probability of coercion in procuring the said
agreements
128
. Coercion is a vitiating factor that nullifies free consent and when an agreement is entered into without
Page 11
the free consent of the parties, the agreement is void
129
.
Although the issue of the legality of these so-called impunity agreements falls outside the scope of the present article, it
is relevant to mention that such agreements are inconsistent with art 98 (2) of the Rome Statute
130
, provided that article
is interpreted in good faith and in accordance with the ordinary meaning of its language
131
. The language and drafting
history of that Article demonstrate that it was not designed as a licence for impunity from the Court by letting states
enter into subsequent bilateral agreements undermining the entire
4 MLJ clxxiv at cciii
statutory scheme
132
. The impunity agreements also violate art 86 of the Rome Statute which requires the member states
to 'cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court'.
Most of the countries that have signed the impunity agreements with the US are also parties to the said Statute and by
signing such agreements they can be said to have violated art 86. This interpretation is in line with the object and
purpose of the Rome Statute which is to end impunity for the worst possible crimes in the world
133
. The main purpose
and object of the Rome Statute is to ensure that those responsible for these worst possible crimes, including war crimes
are brought to justice in all cases, primarily by states, but, under the underlying principle of complementarity
134
, if they
prove unable or unwilling to do so, by the ICC as a last resort. Therefore, any agreement not expressly provided for in
the Rome Statute that precludes the ICC from exercising its complementary function of acting when states are unable or
unwilling to do so, defeats the object and purpose of the Statute.
4 MLJ clxxiv at cciv
A fundamental principle underlying the object and purpose of the Rome Statute, as incorporated in its art 27, is that no
one is above the law and immune in relation to war crimes, crimes against humanity or genocide. Article 27 (1)
provides that the Rome Statute 'shall apply equally to all persons without any distinction based on official capacity' and
art 27(2) states that 'immunities or special procedural rules which may attach to the official capacity of a person,
whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a
person'135. That jurisdiction, apart from in the case of a referral of a situation pursuant to Chapter VII of the United
Nations Charter, extends under art 12 of the Rome Statute to crimes committed by any person over the age of 18,
regardless of nationality, in the territory of a state party or state making a special declaration and to crimes committed
by national of one of these states
136
.
The sad fact, however, is that the US, where most of the perpetrators of the war crimes at Abu Ghraib prison now
reside, is not a party to the Rome Statute and, as a non-party, the US may vigorously argue that it is not bound to
surrender the alleged war criminals to the ICC. Nevertheless, these alleged war criminals can be surrendered to the ICC
provided the US, by a declaration lodged with the Registrar, accepts the exercise of jurisdiction by the ICC with respect
to the crime in question
137
. But the US has not done this and there is no indication to show that it will do so in the
future. It is not likely to accept the ICC's jurisdiction particularly as its high ranking military and civilian officials,
including its President, are alleged to be involved in the commission of war crimes. This means that the alleged US war
criminals cannot be tried by the ICC. They also cannot be tried by the ICTY and the ICTR who have no jurisdiction to
do so.
4 MLJ clxxiv at ccv
Thus, the question arises as to how to enforce the law against the alleged US war criminals? One view is that war
crimes raise universal jurisdiction and customary international law entitles all states to exercise jurisdiction over such
crimes
138
meaning that any country can arrest, try and punish alleged war criminals in their domestic courts. But, is this
possible against the nationals of a powerful country like the US? Although several countries have enacted legislation
allowing them to try war crimes perpetrators under the universality principle
139
, and although in recent years many
domestic courts have prosecuted non-nationals accused of war crimes and other serious international crimes committed
in third States
140
, still history has shown that it may not be possible to exercise such a jurisdiction against US nationals.
4 MLJ clxxiv at ccvi
As, Michael Mandel
141
has pointed out, when Belgium tried to do this with Ariel Sharon, and then Tommy Franks,
Page 12
Donald Rumsfeld and President Bush himself, the US forced Belgium to repeal its 'universal jurisdiction' law, which
was in fact was repealed and replaced by a watered-down version
142
.
There is no doubt that both international conventions and customary international law impose a mandatory system of
universal jurisdiction over war crimes
143
and this has bean reiterated by a series of UN General Assembly
Resolutions144. Despite the soundness of this principle, its application is obstructed by the international principle of
immunity for foreign heads of State and other high ranking officials which may bar the prosecution of these officials.
The International Court of Justice ('ICJ') in the Arrest Warrant case upheld the absolute immunity of incumbent
ministers of foreign affairs under customary law
145
.
4 MLJ clxxiv at ccvii
However, in some domestic cases dealing with the immunity of foreign states, the jus cogens nature of war crimes has
been used to argue the denial of sovereign immunity, mainly on the ground that conduct which is a criminal offence
under international law cannot simultaneously be protected by international law
146
. If one ignores the decision of the
ICJ -- as, after all, the decision of the ICJ binds only the parties to the dispute
147
not other states -- and accepts the latter
argument, then high ranking US officials, including its President, cannot hide behind the immunity principle. The
moment these officials are stripped of their current protection, they could be arrested, tried and punished by any country
for the war crimes they have allegedly committed at Abu Ghraib prison, provided there is such a country willing to take
such bold action. There are, in fact, strong arguments for denying the immunity of former high ranking State officials on
the basis of the jus cogens nature of the prohibition of war crimes, which supersedes any other principle of international
law, including the immunity of foreign heads of State
148
. Moreover, to uphold the immunity of a person accused of
ordering or failing to prevent the commission of war crimes, including murder and torture, would arguably amount to
recognising a situation that is a serious breach of a peremptory norm as lawful, a result clearly prohibited under
customary international law. Bearing in mind that immunity for foreign officials is a privilege deriving from the
sovereign independence of States, it is illogical that international law would give protection to State officials for acts
deemed so serious that they are prohibited in all circumstances by that same international legal system.
4 MLJ clxxiv at ccviii
Conclusion
All war criminals, and this clearly applies to those who were behind the war crimes at Abu Ghraib prison, be they high
ranking officials having superior authority or subordinates, must be charged, tried and punished. Further, the
punishment must be commensurate in degree with the heinousness of the crimes committed. A state, like the US, which
fails to prosecute and punish all of its alleged war criminals, commits grave breaches of international law for which it is
responsible. Such a failure also undermines the rule of law, defeats the objects of international criminal law and denies
justice to the victims. The rule of law and the principle of justice oblige the US to do everything possible to carry out its
international obligations faithfully by putting an end to a culture of impunity for war crimes and also by investigating
and bringing all of the alleged war criminals, not merely a few military personnel, before its courts. If the US fails to do
this, the international community must not be a silent spectator, as it has a duty to exert all efforts to pressure the US to
be observant of its obligations under the relevant international law. If such pressure does not work, the international
community should act on the basis of the principle of universal jurisdiction that entitles another state to prosecute the
alleged war criminals before its own court of law.
4 MLJ clxxiv at ccix
1 The author is greatly indebted to the Research Centre, IIUM for funding the present research. Responsibility for views, opinions and
interpretations rest with the author alone.
2 'One of the pictures shows an Iraqi prisoner standing on a box with a hood over his head. Electric wires are attached to his hands. He was
told that if he fell off the box he would be electrocuted. Another photograph is of naked male detainees stacked in a pyramid shape, one of
the men has a slur written on his skin in English. In some pictures, prisoners are positioned to simulate sex with each other while US troops
Page 13
point and laugh.
3 Report of the ICRC on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions
in Iraq During Arrest, Internment and Interrogation (February 2004) ('CRC Report').
4 Lt. General Ricardo Sanchez, the senior US Commander in Iraq, requested US Central Command ('CENTCOM') to conduct an
investigation. Major General Antonio M. Taguba was appointed to conduct an investigation into the 800th MP Brigade's detention and
internment operations at the Abu Ghraib prison in Baghdad. General Taguba's report was issued on 26 February 2004, but was not made
publicly available until graphic photos depicting US soldiers abusing Iraqi prisoners were shown on 60 Minutes II (28 April 2004). The
report is available on many websites, including http://www.npr.org, but technically remains classified.
5 These images show Americans smiling, laughing or giving the thumbs-up sign alongside naked Iraqi prisoners.
6 War crimes are violations by a country, its civilians, or its military personnel of the international laws of war. The laws of war are laws that
must be obeyed by the US, its officials and its military, and by the UN. The laws are contained in treaties that the US has signed, for
example the Geneva Conventions of 1949. For the citation of these Conventions see note 8 below.
7 The Geneva Conventions of 1949 include: the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, 75 UNTS 31 ('GC I'); Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and
Shipwrecked Members of the Armed Forces at Sea, 75 UNTS 85 ('GC II'); Geneva Convention Relative to the Treatment of Prisoners of
War, 75 UNTS 135 ('GC III'); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 ('GC
IV'). All four Geneva Conventions opened for signature on 12 August 1949 and entered into force on 21 October 1950.
8 See Common art 2 to the Geneva Conventions of 1949 which provides: '... the present Convention shall apply to all cases of declared war
or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not
recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting
Party, even if the said occupation meets with no armed resistance ...'.
9 According to art 26 of the Vienna Convention on the Law of Treaties, UNTS 331, entered into force on 27 January 1980 ('VCLT'): 'Every
treaty in force is binding upon the parties to it and must be performed by them in good faith'. This article reflects the principle of 'pacta sunt
servanda', that is, a state that becomes a party to a treaty is bound to carry out the duties established by that treaty. See Mourice Mendelon
'Are Treaties Merely a Source of Obligation' in Perestroika And International Law, W.E.Butler ed. (1990) at p 81; Louis Henkin
'International Law: Politics, Values and Functions', 9 Recucit Des Cours (1989) at p 51; J.L. Brierly The Law of Nations (6th Ed, 1963,
Humphrey Warlock: London) at pp 45-49; Josef L. Kunz 'The Meaning and Range of the Norm Pacta Sunt Servenda' 39 Am. J. Int'l L.
(1959) at p 775; Common Art. 1 to the Geneva Conventions of 1949 (supra n 7), which requires states parties to undertake 'to ensure respect
for the present Convention in all circumstances'.
10 In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of 8 July 1996, Rep. 10, 1996, para
79), the Court recognized that the 'fundamental rules [of humanitarian law] are to be observed by all States whether or not they have ratified
the conventions that contain them, because they constitute intransgressible principles of customary law.' See also A. Cassese 'On the current
trends towards criminal prosecution and punishment of breaches of international humanitarian law' European Journal of International Law,
Vol 9, No, 1; H-P. Gasser 'International humanitarian law', in H. Haug (ed), Humanity for All (1993, Henry Dunant Institute, Paul Haupt
Publishers: Berne) at p 556; C Bassiouni 'International crimes jus cogens and obligatio erga omnes' in C. Joyner and C. Bassiouni (eds)
Reining in Impunity for International Crimes and Serious Violations of Fundamental Rights (1998, Association Internationale de Droit
Pnal: Ramonville-St.-Agne) at p 267.
11 Customary international law, which derives from the 'widespread, representative and virtually uniform' practice of states accepted as law,
is one of the sources of international law and, as such, is binding. This is set forth, for example, in art 38 of the Statute of the International
Court of Justice ('ICJr'), 26 June 1945, Can. TS 1945 No 7 (entered into force on 24 October 1945). See also Oppenheim's International
Law, Sir Robert Jennings & Sir Arthur Watts eds. (9th Ed, 1992) at pp 25-30; The Restatement (Third) Vol 1, Para. 102, 25; see also
Akerhurst's Modern Introduction to International Law, Peter Malanczuk 7th Rev. Ed. (2000, Routledge: London, 2000) at pp 76-277.
12 A persistent objecting state is not bound by the eventual customary law if the state fulfills two conditions: (1) the objection must have
been maintained from the early stages of the rule onwards, up to its formation, and beyond; (2) the objections must be maintained
consistently. Villiger Customary International Law and Treaties (1985, Martin Nijhoff Publishers: Dordrecht) at 14; See also
Anglo-Norwegian Fisheries Case [1957] ICJ Rep 9.
13 Hans Peter Gasser, former Senior Legal Adviser to the ICRC, while outlining the basic rules of international humanitarian law ('IHL'),
stated that: 'Persons who are not, or are no longer, taking part in hostilities shall be respected, protected and treated humanely. They shall be
given appropriate care, without any discrimination. Captured combatants and other persons whose freedom has been restricted shall be
treated humanely. They shall be protected against all acts of violence, in particular against torture. If put on trial they shall enjoy the
fundamental guarantees of a regular judicial procedure...'
Page 14
14 UN GA. Res. 39/46, 1984 ('Torture Convention').
15 For instance, art 7 of the International Covenant on Civil and Political Rights, UNGA Res. 2200 (XXI), 19 December 1966, entered into
force 23 March 1976 ('ICCPR'), states that 'no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'.
16 Article 147 of the GC IV and art 130 of the GC III list the following acts as grave breaches if committed against persons protected by the
Convention: willful killing, torture or inhuman treatment and willfully causing great suffering or serious injury to body or health. Article 146
of the GC IV and art 129 of the GC III require each state party 'to search for persons alleged to have committed, or to have ordered to be
committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts'. Grave breaches, as
confirmed by art 85(5) of Protocol I Additional to the Geneva Conventions, 'shall be regarded as war crimes'.
17 In 1998 delegates from the nations of the world met in Rome and agreed upon a statute for an International Criminal Court. It was agreed
in Rome that when 60 nations had ratified the treaty establishing the Court, it would come into existence. In April 2002 the treaty surpassed
the required 60 ratifications, and it was accordingly entered into force on 1 July 2002. See the Statute of the ICC, UN. Doc. 2187 UNTS, 90,
entered into force 1 July 2002 ('Rome Statute').
18 US was one of only 7 nations (joining China, Iraq, Libya, Yemen, Qatar and Israel) to vote against the Rome Statute in 1998.
19 Anne-Marie Slaughter, dean of the Woodrow Wilson School at Princeton and former president of the American Society of International
Law, declared: 'These policies make a mockery of our claim to stand for the rule of law. [Americans] should be marching on Washington to
reject inhumane techniques carried out in our name.' Quoted in Robert Kuttner 'Will Bush Wriggle Out of This One?' Boston Globe 10
September 2005.
20 See Luke Harding 'The Other Prisoners in Iraq-the Women' The Guardian UK, 20 May 2004. Women detainees were stripped and were
forced to walk naked in front of men. See Chris Shumway 'Systematic Pattern of Rape by US Forces'
ZNET, 6 June 2004, http://www.zmag.org/content/ showarticle.cfm?SectionID=12&ItemID=5653
21 See Common art 2 to the Geneva Conventions of 1949. For the text of this Article see supra n 8.
22 See eg David J Scheffer 'Beyond Occupation Law' 97 Am. J. Int'l L. 842, 842 (2003).
23 See UN SC Res. 1483, para 5 (22 May 2003).
24 Taguba Report, Part One, Findings of Fact, #5. As to this Report see supra n 3.
25 For both reports see supra notes 2 and 3 respectively.
26 See GC III Art. 13. The US Government relied on this provision to protest the display of US POWs on Iraqi Television in March 2003.
See Iraq parades US prisoners of war on TV, UK Telegraph, 23 March 2003, (statements by President Bush and Secretary Rumsfeld that
showing prisoners of war on television violated the international rules of war in the Geneva Conventions and that inhumane treatment could
result in prosecution of Iraqis as 'war criminals'). See also, Donald Rumsfeld on Face the Nation, 23 March2003.
27 See GC III art 3.
28 See GC IV art 5.
29 Ibid art 27.
30 Ibid art 31.
31 Ibid art 32.
32 See the Standard Minimum Rules for the Treatment of Prisoners, Adopted by the First UN Congress on the Prevention of Crime and the
Treatment of Offenders (Geneva, 1955), and approved by ECOSOC Resolutions 663 C (XXIV)(July 31, 1957) and 2076 (LXII)(May 13,
1977).
33 ICCPR Art. 7.
34 Ibid Art. 10(1).
35 See the Torture Convention (supra n 14).
Page 15
36 UNGA Res. 217A (III), 10 December 1948 ('UDHR').
37 See ICCPR art 4(2); Torture Convention art 2(2).
38 The right not to be enslaved and the right not to be prosecuted for something that was not a crime at the time it was done are other
absolutely non-derogable rights. See Joan Fitzpatrick 'Protection Against Abuse of the Concept of 'Emergency' in Lawrence Henkin and
John Lawrence Hargrove, eds. Human Rights: An Agenda for the Next Century (1994, American Society of International Law: Washington,
DC).
39 See VCLT (supra n 9) art 53. In the Barcelona Traction case (Second Phase), the ICJ drew the distinction between obligations of a State
arising vis-a-vis another State and obligations 'towards the international community as a whole', saying: '[s]uch obligations derive, for
example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and racial discrimination'. ICJ Rep. 1970, 3 at p 32. See
also East Timor Case (Portugal v Australia), ICJ Rep. 1995, 90 at p 102.
40 VCLT (supra n 9) art 53.
41 The International Law Commission gave the following examples of treaties which would violate Art. 53 of the VCLT (supra n 9): '(a) a
treaty contemplating an unlawful use of force contrary to the principles of the [UN] Charter; (b) a treaty contemplating the performance of
any other act criminal under international law; and (c) a treaty contemplating or conniving at the commission of such acts, such as trade in
slaves, piracy or genocide, in the suppression of which every State is called upon to co-operate (...) treaties violating human rights, the
equality of States or the principle of self-determination were mentioned as other possible examples': Yearbook of the ILC 1966, Vol. II, at p
248.
42 The ICTY has stated that: 'it serves to internationally de-legitimize any legislative, administrative or judicial act authorising torture. It
would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary
rules providing for torture would be null and void ab initio, and then be unmindful of a State, say, taking national measures authorizing or
condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the
general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded
international recognition.' See Prosecutor v Anto Furundzija, Judgement, IT-95-17/1-T, 10 December 1998, para 155.
43 In the Military and Paramilitary Activities in and Agaainst Nicaragu (Nicaragua v USA), Merits, Judgment of 27 June 1986, ICJ Rep.
1986, p 104, the ICJ found that Article 3 common to the Geneva Conventions represented a customary rule of international law, adding that
the rules reflect 'elementary considerations of humanity'. See also, the Legality of the Threat or Use of Nuclear Weapons (supra n 10); A
Cassese (supra n 10); HP. Gasser (supra n 10) at 556'; C Bassiouni (supra n 10) at p 267.
44 Prosecutor v. Anto Furundzija, Judgement case (supra n 42) para 95.
45 Ibid paras 153-157.
46 Ibid para 156,
47 Bassiouni, 'International Crimes' (supra n. 10) at 265: 'Legal obligations which arise from the higher status of such crimes include the
duty to prosecute or extradite (...)'; see also Cassese (supra n 10).
48 The customary 'particular consequences' of serious breaches of peremptory norms are articulated in the ILC Articles on State
Responsibility, art 41, paras 1 and 2. Article 41 is without prejudice to the other consequences that a breach may entail under international
law (Art. 41(3)). See the Nicaragua case (supra n 44) p 100, para. 188; Legal Consequences for States in the Continuing Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Rep. 1971, p 16 at p 56, para 126.
49 Bassiouni 'International Crimes' (supra n. 10) at p 266.
50 Commentary to Geneva Convention VI (supra n. 42) at pp 587-602.
51 The 1945 Charter of the International Military Tribunal at Nuremberg Annexed to the London Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis.
52 See A Roberts IR, Gueltt Documents on the Laws of War (3rd Ed, 2000, Oxford University Press: Oxford) at p 177.
53 Y. Dinstein 'The Distinction between War Crimes and Crimes against Peace', in Y Dinstein (et all) War Crimes in International Law
(1996, The Hague: Martinus Nijhaff Publ.) 1-18.
Page 16
54 Torture Convention (supra n 14).
55 Ibid art. 1.
56 See supra n 5.
57 Y Dinstein (supra n 8) at p 3.
58 See ICRC's Report (supra n 2).
59 See Taguba Report (supra n 3).
60 Ibid.
61 Ibid.
62 See the Amnesty International ('AI') open letter to President George W Bush on the question of torture and cruel, inhuman or degrading
treatment (see http://web.amnesty.org/library/Index/ENGAMR510782004). See also Love Kellberg 'Torture: International Rules and
Procedures,' in Bertil Duner, ed. An End to Torture: Strategies for Its Eradication (1998, Zed Books: London).
63 GC IV (supra n. 7) arts 146-147. See also GC III (supra n. 7) arts 129-130.
64 See supra n 5.
65 See GC IV (supra n 7) Art 27.
66 Ibid art 31.
67 Ibid art 32
68 Ibid art 33
69 Articles 50/51/130 and 147 common to the four Geneva Conventions of 1949 (supra n 8) define the conduct constituting grave breaches
of the Conventions.
70 Ibid art 147.
71 For discussion see AI Torture as Policy Human Rights in the World Community 79 (Richard Pierre Claude & Burns H Weston, 2nd Edn,
1992). See also Egon Schwelb, 'The Influence of the Universal Declaration of Human Rights on International and National Law' 1959 Am
Soc'y Int'L L. Proc. 217 (1959).
72 See UDHR (supra n 36) art 5; ICCPR (supra n 15) art 7; American Convention on Human Rights, adopted 22 November 1969, 1144
UNTS 123, art 5 (2); European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS
22, art 3.
73 Women are reported to have begged their families to smuggle poison into the prison in order to kill themselves because of the humiliation
they had suffered.
74 Numerous photos emerged from Abu Graib prison 'including a picture of a detainee with electric wires attached to his genitals, a dog
attacking an Iraqi prisoner and a dead Iraqi prisoner who had been badly beaten at the prison. One civilian interrogator had smashed several
tables in order to fear up prisoners'.
75 GC IV (supra n 7) arts 146-147. See also GC III (supra n7) arts 129-130.
76 Central Daylight Time (5 June 2004). Seehttp://www.turks.us/article.php?story=20040605061906611.
77 See The Trial of Captain Henry Wirz for Conspiracy and Murder, Washington DC, 1865 in American State Trials, vol. VIII 832 (John D
Lawson ed. 1917).
78 These officials may include even President Bush, Secretary of Defense Donald Rumsfeld, Defense Undersecretary for Policy Douglas
Feith, and the Defense Undersecretary for Intelligence Stephen Cambone. Recently, an attempt has been made to bring Bush administration
officials to account for war crimes. For instance, Cindy Sheehan of Gold Star Mother for Peace insists: 'We cannot have these people
Page 17
pardoned. They need to be tried on war crimes and go to jail.' See also comments by Mike Ferner 'What One Mom Has to Say to George
Bush' (9 August 2005), available at <http://vitw.org/archives/974>.Paul Craig Roberts, Hoover Institution senior fellow and assistant
secretary of the treasury under Ronald Reagan, charges Bush with 'lies and an illegal war of aggression, with outing CIA agents, with war
crimes against Iraqi civilians, with the horrors of the Abu Ghraib and Guantanamo torture centers' and calls for the president's impeachment.
See Paul Craig Roberts 'Impeach Bush Now' (3 September 2005).
79 Top military personnel who have been accused as being involved in the commission of war crimes at Abu Ghraib prison include: Lt. Gen.
Ricardo Sanchez (commander of US military forces in Iraq), Reserve Brig. Gen. Janis Karpinski (in charge of all 16 US prisons in Iraq as
commander of the 800th Military Police Brigade), Brig. Gen. Barbara Fast (top Army intelligence officer in Iraq) and Air Force Gen.
Richard Myers (chairman of the Joint Chiefs of Staff) .
80 Middle-level officers who have been accused of being involved in torturing prisoners at Abu Ghraib Prison include: (1) Lt. Col. Jerry
Phillabaum (the commander of the 320th Military Police Battalion at Abu Ghraib) who has been relieved of his command because of his
failure to train his soldiers not to torture prisoners, (2) Col. Thomas Pappas (the commander of the 205th Military Intelligence Brigade, who
had overall control of Abu Ghraib prison as the senior intelligence officer, and who failed to ensure his soldiers followed the Geneva
Conventions governing permissible interrogation techniques. (3) Lt. Col. Steven Jordan (the ex-director of the Joint Interrogation and
Debriefing Center inside Abu Ghraib who failed to train or supervise prison interrogators).
81 The subordinate individual soldiers who actually carried out the war crimes at Abu Ghraib prison and who were court marshaled in the
US include: (1) Army Reserve Spc. Jeremy Sivits, 25, was sentenced on 19 May 2004 to a one-year sentence, in addition to being discharged
for bad conduct and demoted, upon his guilty plea; (2) Staff Sgt. Ivan Frederick, 38, was sentenced to eight years in October 2005 after
pleading guilty to conspiracy, dereliction of duty, maltreatment of detainees, assault and committing an indecent act. Frederick admitted he
helped place wires on a detainee's hands and told him he would be electrocuted if he fell off a box. He was a staff sergeant, making him the
highest-ranking soldier to serve prison time in the case; (3) Army Reserve Spc. Charles Graner, 36, who was found guilty on 14 January
2005 of all charges, including conspiracy to maltreat detainees, failing to protect detainees from abuse, cruelty, and maltreatment, as well as
charges of assault, indecency, adultery, and obstruction of justice. On 15 January 2005, he was sentenced to 10 years in federal prison (at
Fort Leavenworth, Kan.); (4) Army Reserve Sgt. Javal Davis, 27, received a six-month sentence after pleading guilty to assault, dereliction
of duty and lying to Army investigators. Davis admitted stepping on the hands and feet of handcuffed detainees and falling with his full
weight on top of them; (5) Army Reserve Spc. Sabrina Harman, 27, was sentenced on 17 May 2005 to six months in prison and a bad
conduct discharge after being convicted on six of the seven counts charged. She had faced a maximum sentence of five years; (6) Army
Reserve Pfc. Lynndie England, 22, was convicted on 26 September 2005, of one count of conspiracy, four counts of maltreating detainees
and one count of committing an indecent act. She was acquitted on a second conspiracy count. England had faced a maximum sentence of 10
years, but was sentenced on 27 September 2005 to just three years. She received a dishonorable discharge; (7) Specialist Armin Cruz of the
325th Military Intelligence Battalion was sentenced on 11 September 2004 to eight months confinement, reduction in rank to private and a
bad conduct discharge in exchange for his testimony against other soldiers; and (8) Roman Krol, 23, of Randolph, Mass., admitted pouring
water on naked detainees and forcing them to crawl around the floor at Abu Ghraib, and throwing a foam football at them while they were
handcuffed. After pleading guilty, Krol was sentenced in February 2005 to 10 months in prison. See The Associated Press, 2:49 p.m. ET
May 4, 2005, available at http://msnbc.msn.com/id/7709487/
82 See Andrew D Michell 'Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes' at
http://www.law.usyd.edu.au/~slr/v22/n3/mitchell.pdf.
83 Steven Ratner & Jason Abrams Accountability for Human Rights Atrocities in International Law (1997) at pp 119-120.
84 X I Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 at p 1259 (1948).
85 See generally Christopher N. Crowe 'Command Responsibility in the Former Yogoslavia: The Chances for Successful Prosecution' 29 U.
Rich. L. Rev. 191, 1994; see also M Feria Tinta 'Commander on Trial: The Blaskis Case and the Doctrine of Command Responsibility under
International law' 47 Neth. Int'l L. Rev. 293, 2000.
86 Leslie Greene 'Command Responsibility in International Humanitarian Law' (1995) 5 Transnational Law & Contemporary Problems 319
at p 320.
87 Timothy Wu & Yong-Sung King 'Criminal Liability for the Actions of Subordinates--The Doctrine of Command Responsibility and its
Analogues in United States Law' (1997) 38 Harvard Int'l LJ at p 290.
88 Ibid.
89 Curt Hessler 'Command Responsibility for War Crimes' (1973) 82 Yale LJ 1274 at pp 1292-1293.
90 M Cherif Bassiouni & Peter Manikas The Law of the International Criminal Tribunal for the Former Yugoslavia (1996) at pp 345 and
348-350.
Page 18
91 See Mark Osiel 'Obeying Orders: Atrocity, Military Discipline, and the Law of War' (1998) 86 Cal LR 939 at pp 1040-1041; Greg Vetter
'Command Responsibility of Non-Military Superiors in the International Criminal Court' (2000) 25 Yale Journal of International Law 89 at p
93.
92 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907. See
<http://www.tufts.edu/departments/fletcher/multi/texts/BH036.txt>.
93 Hague Convention (X) Adaptation to Maritime War of the Principles of the Geneva Convention, 18 October 1907. See
<http://www.tufts.edu/departments/fletcher/multi/texts/BH042.txt>.
94 Art. 43 of the Hague Convention (IV) requires commanders occupying enemy territory to: 'take all the measures in his power to restore,
and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.'
95 Rome Statute (supra n 17). Also available at <http://www.un.org/law/icc/statute/romefra.htm>.
96 See eg Prosecutor v Delalic et al., IT-96-21-T, Judgment, para 387 (16 November 1998). Also available at
http://www.un.org/icty/celebici/trialc2/jugement/main.htm>.
97 Ibid para p 346.
98 See the Rome Statute (supra n. 17) art 28; See also Ted Honderich (ed) The Oxford Companion to Philosophy (1995) at p 68.
99 Macquarie Dictionary (2nd Edn, 1991) at p 390.
100 See eg art 7(3) of the Statute of the International Criminal Tribunal for Yugoslavia ('ICTY'), available at
<http://www.un.org/icty/basic/statut/statute.htm>; and see also art 6(3) of the International Criminal Tribunal for Rwanda ('ICTR') Statute,
available at <http://www.ictr.org>; Art. 86(2) of Geneva Protocol 1, available at
<http://www.tufts.edu/departments/fletcher/multi/texts/BH707.txt>; art. 28 of the Rome Statute (supra n 17).
101 ICTY (ibid).
102 Peter Nygh & Peter Butt (gen eds) Australian Legal Dictionary (1997) at p 234; David Walker The Oxford Companion to Law (1980) at
262-263.
103 See http: www.zmag.org content showarticle.cfm?SectionID=80&ItemID=698.
104 Ibid.
105 Michael Mandel, Professor, Osgoode Hall Law School, York University, Toronto, co-Chair of the Canadian-based Lawyers Against the
War (www.lawyersagainstthewar.org) and author of 'How America Gets Away. Torture and International Human Rights, A round table
discussion with Francis Boyle, Michael Mandel, Liz Holtzman, H. Victor Conde, and Mark Levine' 9 January 2005. See also AG Noorani at
http://flonnet.com/fl2111/stories/20040604001107500.htm: '... states' attack on Iraq in 2003, along with Britain and a few other accomplices,
was a war of aggression; conceived in malice and executed in deceit. The two stated grounds for the war -- that Iraq had weapons of mass
destruction (WMDs) and was linked to Al Qaeda -- have been exposed to be untrue to the knowledge of those who made it -- President
George Bush, his National Security Adviser Condoleezza Rice; Vice-President Dick Cheney, Defence Secretary Donald Rumsfeld and his
Deputy Paul Wolfowitz, Secretary of State Colin Powell and British Prime Minister Tony Blair'.
106 Michael Mandel ibid.
107 In an effort to hold high-ranking US officials accountable for brutal acts of torture, on 30 November 2004, the Center for Constitutional
Rights ('CCR') and four Iraqi citizens filed a criminal complaint with the German Federal Prosecutor's Office at the Karlsruhe Court in
Germany. This complaint was longed on the basis of the doctrine of 'universal jurisdiction' under which the suspected war criminals may be
prosecuted irrespective of where they are located. In this action, the US officials charged include Secretary of Defense Donald Rumsfeld,
Former CIA Director George Tenet, Undersecretary of Defense for Intelligence Dr. Stephen Cambone, Lieutenant General Ricardo Sanchez,
Major General Walter Wojdakowski, Major General Geoffrey Miller, Brigadier General Janis L Karpinski, Lieutenant Colonel Jerry L
Phillabaum, Colonel Thomas Pappas, and Lieutenant Colonel Stephen L Jordan.
108 See Tony Paterson ' Rumsfeld sued for war crimes over Abu Ghraib', The Independent (online Edition), 1 December 2004.
109 See http: www.ccr ny.org v2 reports report.asp?ObjID=TCRlT9TuSb&Content=471.
110 Douglas Feith is in charge of setting policy on prisoners and detainees in Iraq and has argued as far back as 1985 that terrorists or
Page 19
guerrillas should not be granted prisoner-of-war status under the 1949 Geneva Conventions, and in so doing he denied prisoners the
protection the Conventions afford.
111 He is accused of having instructed his subordinates to 'set the conditions' for interrogations to elicit the maximum information from
detainees.
112 See the United Nations War Crimes Commission. Law Reports of Trials Of War Criminals, Volume V11I, 1949, case No 47, Trial of
Wilhelm List and Others, United States Military Tribunal, Nuremberg, Part I . P. 45 et sub.
113 Ibid.
114 Ibid.
115 Greg Vetter 'Command Responsibility of Non-Military Superiors in the International Criminal Court' (2000) 25 Yale Journal of
International Law 89 at p 101. See also USA v Ohledorf (the Einsatzgruppen Case) (Nuremberg, 1948) 4 NMT 471 at p 470: 'The obedience
of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a
piece of machinery'.
116 See the Rome Statute (supra n 17).
117 Lassa Oppenheim International Law (1906) at pp 264-265.
118 See eg art II, 4(b) of the Control Council Law No. 10. See H Victor Cond A Handbook of International Human Rights Terminology
(1999) at p 146.
119 'The United States is able to prosecute military personnel and others who have left the service or who were civilians at the time of an
alleged crime in federal district courts. Torture can be prosecuted under 18 U.S.C. 2340A which is a extraterritorial statute as it applies to
'whoever outside the United States commits or attempts to commit torture'. War crimes, including 'grave breaches' of the Geneva
Conventions, can be prosecuted either under 10 U.S.C. 818 (which incorporates the laws of war as offences against the laws of the US)
coupled with 18 U.S.C. 3231 (which provides federal district courts with original, and at least concurrent, jurisdiction over any offence
against the laws of the US) or under 18 U.S.C. 2441 (for 'grave breaches' and violations of Article 3 of the Geneva Conventions committed
by US nationals). Some civilians can also be prosecuted under a new Military Extraterritorial Jurisdiction Act (18 U.S.C. 3261). There is
no federal statute that incorporates crimes against humanity or forced disappearances as such, but Congress, if it is really concerned about
what happened at Abu Ghraib and elsewhere and seeks to reassure that it won't happen again and that the United States complies with
international law, could create new legislation that operates retrospectively to cover what are already crimes under customary international
law without violating any ex post facto prohibitions: see comments by Professor Jordan Paust, University of Houston Law Center Jurist
Guest Columnist at http://jurist.law.pitt.edu/forum/paust1.php.
120 See GC IV (supra n. 7) art 146.
121 Torture Convention (supra n 13) arts 2, 12.
122 Only two, out of the many war criminals, received a somewhat severe penalty: (1) Specialist Charles Graner was sentenced to 10 years
in federal prison; and (2) Staff Sgt. Ivan Frederic was sentenced to eight years in prison, forfeiture of pay, a dishonorable discharge and a
reduction in rank to private. See supra n 82.
123 For example, military officer Megan Ambul was convicted on 30 October 2004 of dereliction of duty and sentenced to a reduction in
rank to private and loss of a half-month's pay.
124 Those who received light punishment are listed at supra n 81.
125 Anne-Marie Slaughter, dean of the Woodrow Wilson School at Princeton and former president of the American Society of International
Law, has declared: 'These policies make a mockery of our claim to stand for the rule of law. [Americans] should be marching on Washington
to reject inhumane techniques carried out in our name.' Quoted in Robert Kuttner 'Will Bush Wriggle Out of This One?' Boston Globe, 10
September 2005.
126 See the Rome Statute (supra n 17).
127 Press Statement, International Criminal Court: Letter to UN Secretary General Kofi Annan, at
http://www.state.gov/r/pa/prs/ps/2002/9968.htm.
128 Recently, AI and the African Group for the Defence of Human Rights (RADDHO) questioned the legality of the so-called impunity
Page 20
agreement between Senegal and the US and said that they 'deeply regret that the government of Senegal signed ... the impunity accords,
agreeing not to extradite to the ICC American nationals accused of war crimes, crimes against humanity, genocide and massacres'. The
Dakar government has been under tremendous pressure from all sides as to signing an 'impunity agreement' with the US. While the
American government has threatened to suspend its military aid to Dakar if it does not sign the agreement, other countries and international
organisations have urged the government to withstand US pressure. See http://www.afrol.com/articles/10422.
129 See VCLT (supra n 9) art 52.
130 See the Rome Statute (supra n 17) art 98(2) which provides: 'The Court may not proceed with a request for surrender which would
require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a
sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State
for the giving of consent for the surrender'.
131 Under customary international law, as reflected in art 31 (1) VCLT (supra n 9) '[a] treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.' See also Anthony
Aust Modern Treaty Law and Practice (2000, Cambridge University Press: Cambridge) 187: 'The first principle--interpretation in good faith
-- flows directly from the principle of pacta sunt servanda enshrined in art26 [of the VCL].
132 Each of the various rules of interpretation, as explained by Arnold Duncan McNair The Law of Treaties: British Practice and Opinions
175 (1938, Clarendon Press: Oxford) 'is merely a prima facie guide and cannot be allowed to obstruct the essential quest in the application of
treaties, namely, to search for the real intention of the contracting parties in using the language employed by them'.
133 The preamble to the Rome Statute (supra n 18) declares at para 5 that the State Parties are '[d]etermined to put an end to impunity for the
perpetrators of [the most serious crimes of concern to the international community] (...) and thus to contribute to the prevention of such
crimes'.
134 For an explanation of the complementarity principle see inter alia Holmes J 'The Principle of Complementarity' in Lee RS (ed), The
International Criminal Court: The Making of the Rome Statute -- Issues, Negotiations, Results, Kluwer (1999) pp 41-78; Brown BS 'Primacy
or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals', 23 Yale J. Intl L. (1998) p. 383;
Arbour LA, Bergsmo M 'Conspicuous Absence of Jurisdictional Overreach', in Von Hebel HAM, Lammers JG, Schukking J (eds)
Reflections on the International Criminal Court, Essays in Honour of Adriaan Bos Asser Press (1999, The Hague) p 129; Schabas W An
Introduction to the International Criminal Court (2001, Cambridge University Press: Cambridge) pp 66-70.
135 Rome Statute (supra n 18) art 27: '1. This Statute shall apply equally to all persons without any distinction based on official capacity. In
particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a
ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether
under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.'
136 Ibid art 12 (1): 'A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes
referred to in art 5....'
137 Ibid art 12 (3): 'If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by
declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting
State shall cooperate with the Court without any delay or exception in accordance with Part 9.'
138 W. Cowles 'Universal jurisdiction over war crimes' California Law Review, Vol. 33, 1945, p 177. See generally A Segall Punishing
Violations of International Humanitarian Law at the National Level, ICRC, Geneva, 2001, especially pp 30-38. In the Tadic case, Judge
Cassese declared: 'This is all the more so [justified] in view of the nature of the offences alleged against the Appellant, offences which, if
proven, do not affect the interests of one State alone but shock the conscience of mankind. As early as 1950, in the case of General Wagener,
the Supreme Military Tribunal of Italy held: '... The solidarity among nations, aimed at alleviating in the best possible way the horrors of
war, gave rise to the need to dictate rules which do not recognize borders, punishing criminals wherever they may be ... Crimes against the
laws and customs of war cannot be considered political offences, as they do not harm a political interest of a particular State, nor a political
right of a particular citizen. They are, instead, crimes of lese-humanite (reati di lesa umanita) and, as previously demonstrated, the norms
prohibiting them have a universal character, not simply a territorial one': 13 March 1950, in Rivista Penale 753, 757 (Sup. Mil. Trib., Italy
1959; unofficial translations', The Prosecutor v. Dusko Tadic, International Tribunal for the Former Yugoslavia, IT-94-1-AR72, Decision on
the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber, 2 October 1995), p 57.
139 See for example, in Canada, the Crimes against Humanity and War Crimes Act (2000); in Germany, the International Crimes Act
(2002); in Switzerland, the Code Pnal Militaire 1968; and in Nicaragua, the Criminal Code 1974.
140 See for example Prosecution v Refik Saric, Third Chamber of the Eastern Division of the Danish High Court, 25 November 1994;
Page 21
Prosecution v Refik Saric, Supreme Court of Denmark, 15 August 1995, Ugeskrift for Retsvaesen, at 838; En la cause Fulgence Niyonteze,
Tribunal militaire de division 2, Lausanne, 30 April 1999; En la cause Fulgence Niyonteze, Tribunal militaire d'appel 1a, Geneva, 26 May
2000; Tribunal militaire de cassation, Yverdon-les-Bains, 27 April 2001.)
141 Michael Mandel (supra n 105).
142 Even when Spain tried to apply its law of universal jurisdiction against Pinochet, the United Kingdom ignored its extradition treaties and
sent him home to a safe retirement.
143 As to conventional international law see eg Arts 49, 50, 129 and 146, common to the four Geneva Conventions of 1949 (see supra n. 8).
The ICRC Commentary on the Geneva Conventions states that this obligation is 'absolute'. (See J Pictet (ed) The Geneva Conventions of 12
August 1949, Commentary: IV Geneva Convention, ICRC, Geneva, 1960, at 602). The Commentary also states that: 'The universality of
jurisdiction for grave breaches is some basis for the hope that they will not remain unpunished and the obligation to extradite ensures the
universality of punishment.' (see ibid p 587). Moreover, State Parties are unable to absolve themselves or any other State Party of any
liability incurred in respect of grave breaches. See Arts. 51,52, 131 and 148 common to the four Geneva Conventions of 1949.
144 War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom
there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment.': Principles
of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against
humanity, adopted by the UN GA in 1973, at para 1.
145 In the Arrest Warrant of April 11th 2000 (Democratic Republic of the Congo v. Belgium), Judgment, Merits, 41 ILM 536 (2002), the
Court held that the issue and circulation, by a Belgium magistrate, of an arrest warrant against an incumbent Minister of Foreign Affairs of
the Democratic Republic of Congo failed 'to respect the immunity from criminal jurisdiction and the inviolability [of ] the incumbent
Minister (...) under international law' (para 78).
146 For example, Lord Brown-Wilkenson in Pinochet No 3, HL 24 March 1999, reproduced in R Brody and M Ratner (eds), The Pinochet
Papers: The Case of Augusto Pinochet in Spain and Britain (2000, Kluwer Law International: The Hague) pp 253-4 said: 'A former head of
state cannot show that to commit an international crime is to perform a function which international law protects by giving immunity.' In the
Greek case of Prefecture of Voiotia v Federal Republic of Germany, dealing with violations of Articles. 43 and 46 of the Hague Regulations
which the Court found to be jus cogens crimes, the court of first instance found that when a State breaches a jus cogens crime, there is a tacit
waiver of sovereign immunity.
147 Art. 59 of the Statute of the ICJ, 26 June 1945, 59 Stat. 1055, T.S.No 993. provides: 'The decision of the Court has no binding force
except between the parties and in respect of that particular case.'
148 The fact that the ICJ listed a number of exceptions to the immunities principle in the Arrest Warrant case indicates that this customary
principle is not a peremptory norm of jus cogens and should therefore be derogated from when in conflict with a peremptory norm such as
jus cogens.
Page 22