Tag: war crimes

Ratko Mladic Arrested

The arrest of Ratko Mladic is a welcome development that should remove the last major obstacle to closer relations between Serbia and the United States and the EU nations.  For too long, the Western powers have placed an excessive emphasis on his apprehension as a condition (explicit or implicit) for Serbia’s full inclusion in the Western community.

If the objections now continue, Serbs will understandably conclude that the Mladic issue was little more than a convenient excuse that Western governments used to justify a less-than-friendly policy toward Belgrade.  An expected improvement in relations now that Mladic has been apprehended is especially pertinent with respect to Serbia’s path toward membership in the European Union.

The arrest will have little substantive impact on prospects for reconciliation in Bosnia-Herzegovina or anywhere else in the former Yugoslavia, however.  The trend in Bosnia over the past year or so is toward renewed tensions rather than reconciliation, and that trend is being driven by factors that have little to do with the Mladic issue.

Obama and Military Tribunals

Yesterday, Obama’s attorney general, Eric Holder, held a press conference and announced that Khalid Shaik Mohammed (KSM) would be prosecuted for war crimes before a military tribunal.   It’s probably fair to say, as some newspapers have noted, that the idea of bringing KSM to New York City to be tried in civilian court for the 9/11 atrocity was Holder’s “signature” decision since becoming attorney general–and that that idea is now dead.    However, Obama and Holder conceded a place for tribunals more than a year ago and they could never really offer a good explanation as to why some persons would go to civilian court and why others would go before tribunals.  Like Bush, Cheney, and Rumsfeld, Obama and his people would just sorta decide case-by-case.

Conservatives are chortling over Obama’s apparent embrace of Bush policies, such as keeping Guantanamo open and reviving trials before tribunals.  Like the escalation of the war in Afghanistan, however, Obama has not stumbled on to the correct path.  He has instead shown exceptionally poor judgment yet again.  Two questions are now looming on the horizon.  First, prosecutors are anxious to have a lengthy 9/11 trial, but what if KSM calls the tribunal a farce and decides to skip the trial,  plead guilty, and then demands to be executed so he can become a martyr?  The tribunal might grant the wish, but the legitimacy of the military system may be called into question again–especially in the Muslim world.  Second, the Pentagon has made it pretty clear that anyone acquitted by a tribunal will remain a prisoner at Guantanamo (pdf).  There may be a legal rationale for that, but, again, how is that going to be perceived by the world?   As a start, one might consider how we would react if an American were acquitted by a court abroad, but was nonetheless returned to his prison cell to be detained indefinitely. 

There is no need to go there.  Obama should close Gitmo and transfer the prisoners to Bagram and hold them there, but with full transparency.  The Bush policies of secret prisons, secret interrogation methods, and secret trials before special military courts were wrongheaded and remain so.

For additional background, go here.

The Politics of WikiLeaks

In publishing a massive trove of government documents on the war in Afghanistan, WikiLeaks has done a useful thing. And because it often publishes information that is embarrassing to government, rather than dangerous to it, WikiLeaks is a good thing for democracy.

I say that to prevent the criticism below from getting me labeled as part of an effort to silence WikiLeaks or distract from the news it generates.

For starters – and this is more about the media than WikiLeaks – there’s the fact that thus far there is little new here. As we saw last week with the Washington Post’s Top Secret America blockbuster, the media fetishizes secret information, even when it merely elaborates on stories we’ve already heard.

My problem with WikiLeaks is its practice of stamping its politics on its leaked documents. For example, in April, when it released that gruesome video of U.S. Apache helicopter pilots in Iraq enthusiastically killing civilians that they mistook for insurgents, WikiLeaks titled the video “Collateral Murder,” despite the obvious efforts of the pilots to comply with the rules of engagement.

Now rather than simply put its documents on the web and let people draw their own conclusions, WikiLeaks founder Julian Assange holds a self-congratulatory press conference where he declares “it is our experience that courage is contagious” and compares the document release not just to the leak of Pentagon Papers but to the opening of the Stasi archive in East Germany. Certainly U.S. forces in Afghanistan have committed war crimes (it would be hard to run a war of this scale and avoid them completely) and spun the war’s progress. If these documents reveal more of those doings, that’s a good thing. But even the harshest critic of the war’s conduct ought to be able distinguish it from the activities of a Stalinist secret police force. I bet that the Stasi, faced with a similar leak problem, would have found a way to plug it by now.

Grandiosity is also evident in Assange’s recent response to transparency advocate Steve Aftergood’s critique of WikiLeaks seeming lack of privacy standards. In one paragraph, Assange irrelevantly brags that he spoke before European parliamentarians, asserts that “WikiLeaks not only follows the rule of law, WikiLeaks is involved in creating the law,” announces its opposition to “plutocrats and cashed-up special interests” (not secrecy?), and then claims to have inspired Senate legislation to make Congressional Research Service reports public, even though bills to that effect predate his organization’s existence by nearly a decade.

In the future maybe we can get Wikileaks’ product without its commentary.

A Terrorist We Should Have Prosecuted

Andy McCarthy makes a good point over at The Corner about Laith al-Khazali, a member of a Shiite militant group responsible for the deaths of American troops in Iraq. Al-Khazali has been released, allegedly as part of negotiations with terrorists holding British hostages. Senators Sessions and Kyl have questioned this action in a letter to President Obama.

McCarthy lays out the facts on al-Khazali here. Al-Khazali participated in a sophisticated attack on American troops in Karbala. The militants wore American uniforms and took American soldiers hostage. After leaving the site of the attack, the militants executed their prisoners.

Though I have disagreed with McCarthy on other issues, he makes a valid point here.

Al-Khazali is guilty of honest-to-goodness war crimes.

Wearing an enemy’s uniform for infiltration is permissible. Wearing an enemy’s uniform while shooting at them is perfidy, a prosecutable war crime.

Otto Skorzeny, head Nazi commando, was acquitted of perfidy after World War II. Skorzeny’s men had infiltrated American lines during the Battle of the Bulge while wearing American uniforms. They avoided firing at American troops while in our uniforms, though in two instances fired at American troops in self-defense. British commando Forest Frederick Edward Yeo-Thomas testified for the defense, saying that he had infiltrated German lines in a German uniform. W. Hays Parks provides an excellent discussion of special operations soldiers’ use of non-standard uniform and the legal boundaries of this issue here. Al-Khazali crossed the line by wearing an American uniform while firing at our soldiers.

Killing enemy soldiers after they are in your custody is also a prosecutable war crime. We prosecuted German soldiers for doing this in the Malmedy Massacre, and have prosecuted our own soldiers for killing prisoners. We have even prosecuted contractors for killing prisoners on the battlefield and during interrogation.

Al-Khazali deserves to be brought to justice. It is a shame we did not provide it.

“There Is No Gain to Keep Them”

Thus explained Khmer Rouge apparatchiks on why children of perceived regime enemies were killed.

In the midst of America’s political and economic mess, it is worth remembering how blessed we are and how deep humanity can fall.  Cambodia is in the process of trying the former commandant of Tuol Sleng, a prison that specialized in torture and murder, and from which only a handful of prisoners emerged alive.

Reports the Associated Press:

The Khmer Rouge regime of the 1970s killed babies and toddlers — sometimes by holding their legs and smashing their heads against trees — so they would not seek revenge later in life, the group’s former chief jailer said Monday.

Kaing Guek Eav, alias Duch, commanded the Khmer Rouge’s notorious S-21 prison, where as many as 16,000 men, women and children are believed to have been tortured before being sent to their deaths.

Duch, 66, is being tried by a U.N.-assisted genocide tribunal for crimes against humanity, war crimes, murder and torture. An estimated 1.7 million Cambodians died under the 1975-79 communist Khmer Rouge regime from forced labor, starvation, medical neglect and executions.

Duch recounted a Khmer Rouge policy on detained children: “There is no gain to keep them, and they might take revenge on you,” which he said was told to him by the regime’s former defense minister, Son Sen.

Today Tuol Sleng is a museum.  I visited it several years ago, along with the “killing fields,” in which thousands of the Khmer Rouge’s victims were buried.  Seeing the former prison is an experience simultaneously moving, sobering, chilling, and depressing.  It offers a tragic reminder of the horrors that result when sinful human beings take control of powerful state institutions and seek to remake society.  No wonder liberty is so precious.

Obama’s Military Commissions

President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses.  Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”

Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:

What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins.  It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.  Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.

Greenwald is right.  The primary issue is not due process.  The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?

For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.