Widespread or Systematic Attack Directed Against Any Civilian Population

The phrase above may turn out to be the key to whether the United States faces charges in the International Criminal Court for its role in torture of prisoners detained in the “War on Terror”. The International Criminal Court was created by the Rome Statute on July 17, 1998, when 120 countries signed on.

The preamble to the Statute aims, in part, “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes” when speaking about crimes that are “unimaginable atrocities that deeply shock the conscience of humanity”. The signatories to the Statute understood this key fact in a way that the Obama Administration does not: punishing those responsible for these crimes is a key step to preventing new instances of the crimes in the future. Simply stating that we must now “look forward” does nothing to prevent torture in the future.

Article 7 of the Statute addresses crimes against humanity:

For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack

and then goes on to list those crimes. Torture is included on the list. Torture is then defined:

Torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions

Listening to the mainstream media, one would not think that the torture that has been carried out by the United States has been either “directed against” a “civilian population” or “widespread or systematic”. The media would have us believe that the only torture has been waterboarding, that it has only been used on three prisoners and that all of those detained by the US, especially at Guantanamo, are the “worst of the worst” of al Qaeda. The reality is that thousands of civilians in Iraq and Afghanistan have been detained, many of them have been tortured brutally to the point that over a hundred have died with many of these deaths classed as homicides, and these actions have been part of United States policy to achieve strategic objectives in the wars there.

For example, one of the most famous Lynndie England photos from Abu Ghraib is the one where she has a naked prisoner at the end of a leash:

We were told by the government, and the mainstream media has been adamant about repeating the story, that the abuses at Abu Ghraib were the actions of a handful of bad actors. However, buried deep in the documents released in the document dump regarding the media manipulation by retired military officers serving as analysts for the media, we have this from page 6 of this document (pdf):

In GTMO, that ego down translated down to telling the detainee that his mother and sister were whores, he was forced to wear women’s lingerie, multiple allegations of his homosexuality, he was forced to dance with a male interrogator, he was strip searched for control measures, and he was forced to perform dog tricks on a leash.

The very actions of Lynndie England decried as an isolated incident were in fact part of an overall policy aimed at intentional sexual humiliation as a part of an interrogation program.

With regard to detention and torture of innocent civilians, the Academy Award winning documentary Taxi to the Dark Side provides the most prominent example, with innocent taxi driver Dilawar being detained and tortured to death in Afghanistan in 2002. Also, note that even though Guantanamo is depicted in the mainstream media as the detention site for the worst terrorists, an analysis at Seton Hall (pdf) determined that 55% of the detainees at Guantanamo had committed no hostile acts against the United States.

There can be no mistaking that the widespread detention of civilians is a policy the United States has adopted. In the Washington Post article linked above about thousands of Iraqis being detained, we have this:

"The intent is to detain individuals determined to be true threats to coalition forces, Iraqi Security Forces and stability in Iraq," Valenti said. "Unlike situations in the past, these detainees are not conventional prisoners of war."

Instead, he said, they are "diverse civilian internees from widely divergent political, religious and ethnic backgrounds who are detained on the basis of intelligence available at the time of capture and gathered during subsequent questioning." Valenti said 250 of those in custody are third-country nationals, including some high-value detainees.

Look carefully at that second paragraph: citizens are detained “on the basis of intelligence available at the time” they are captured and “gathered during subsequent questioning”. How can a civilian be detained on the basis of intelligence gathered during subsequent questioning? That certainly explains in part how so many detainees are innocent if the policy is to detain them first and then obtain information to justify the detention later.

Sadly, there is now a decision to export this policy of widespread civilian detention from Iraq to Afghanistan. In its editorial endorsing the appointment of war criminal Stanley McChrystal to head the US military effort in Afghanistan, the New York Times said this:

Reducing that toll will require tighter and more strictly enforced rules of engagement. That applies not just to airstrikes but to the search and detention operations that General McChrystal wants to expand this year with the help of 21,000 additional troops that President Obama ordered sent to Afghanistan. Ground operations are less likely to go astray than airstrikes. But as happened far too many times in Iraq, they can sweep up innocent civilians and turn local people against the American presence.

Even in endorsing McChrystal and his policy of detention, the Times was forced to admit that detention of innocents can “turn local people against the American presence”. The fact that it’s expressly forbidden by the Rome Statute seems to be of no concern to the Times, McChrystal or the US government.

June 26 is designated by the United Nations as the International Day in Support of Victims of Torture. More information and links are available at Humanity Against Crimes.

A previous effort by Humanity Against Crimes to engage the International Criminal Court in prosecuting the US torture crimes resulted in the ICC declining to proceed on the basis of lack of jurisdiction:

A fundamental feature of the Rome Statute (Articles 12 and 13) is that the Court may only exercise jurisdiction over international crimes if (i) its jurisdiction has been accepted by the State on the territory of which the crime was committed, (ii) its jurisdiction has been accepted by the State of which the person accused is a national, or (iii) the situation is referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter.

An early action of the Bush Administration was to withdraw the participation of the US from the ICC, even though President Clinton had endorsed the Rome Statute. Jurisdiction could be achieved for the US to be prosecuted if Iraq or Afghanistan joins the ICC, the US rejoins or if the UN Security Council refers the issue to the ICC. No action is likely on ICC prosecution unless there is a very large public outcry. As noted by Glenn Greenwald, President Obama showed rank hypocrisy in citing the power of the “Neda video” to support the dissidents in Iran while quashing Helen Thomas’ attempt to link that video to Obama’s suppression of additional torture photos:

The premise of Thomas’ question was compelling and (contrary to Obama’s dismissal) directly relevant to Obama’s answers: how is it possible for Obama to pay dramatic tribute to the "heartbreaking" impact of that Neda video in bringing to light the injustices of the Iranian Government’s conduct while simultaneously suppressing images that do the same with regard to our own Government’s conduct?

Perhaps the real reason for Obama suppressing the remaining torture photos is because he knows they would have power similar to that of the “Neda video” and would renew cries for prosecution of torture by the United States. It is up to each of us to do what we can to promote accountability for torture carried out in our names. Please consider what you can do on June 26.