A Free Pass on War Crimes?

by David Irvine

We often read about soldiers in Iraq getting killed or wounded. It is uncommon to read about captured American soldiers, but guarded reports in mid-June of two soldiers captured, "mutilated" and killed have recently been confirmed in more chilling detail: They were tortured, castrated and beheaded.

The barbarity of such atrocities is incomprehensible. The depravity of the perpetrators may have dictated that outcome regardless, but the tragedy invites hard questions. Have our policies toward Muslim prisoner treatment so devalued American lives that the capture of U.S. soldiers is now viewed as payback time?

Imagine, after Abu Ghraib, Guantanamo and the Army's several hundred reports of prisoner abuse and torture, what might be different if Pfc. Jessica Lynch's convoy had come under attack today, three years later.

Would she have received medical care and physical protection? Could the Army, today, credibly demand the protections of the Geneva Conventions in her behalf?

For soldiers in Iraq and their families, the "what-ifs" are all too grim and real, which makes the latest proposal of this nation's attorney general incredibly bizarre. Alberto Gonzales is now urging Congress to water down the War Crimes Act of 1996 and carve out its Geneva Convention prohibitions against inhumane and degrading treatment of prisoners.

As proposed by Mr. Gonzales, everything that has been done at Guantanamo and Abu Ghraib (except murder and rape) would not be a war crime. However, since the exact language is still evolving, the true objective is unclear. Is this a back-door attempt to nullify the McCain anti-torture amendment which received overwhelming congressional support last year? Is it an effort to shield top military commanders and Cabinet officials from prosecution for war crimes?

If the real objective is to carve out immunity from prosecution for administration officials (going back to 2001) for war crimes that they may have ordered, the effort could fail because of the jus cogens doctrine under international law.

No matter what Congress might do, jus cogens (higher law) does not recognize any country's effort to adjust its laws in order to sanction outrages that the rest of the world deems to be crimes against humanity.

Principles of universal jurisdiction still allow any nation that obtains personal jurisdiction over an alleged war criminal to prosecute that defendant for war crimes.

Mr. Gonzales says he's concerned about "rogue prosecutors" in the United States who might target someone like, say, Maj. Gen. Geoffrey Miller (who was responsible for "Gitmo-izing" Iraq). However, Gen. Miller's greater exposure to potential jeopardy might be from travel abroad after he retires.

What makes this misguided project so dangerous is that whatever its purpose, the legislation takes center stage at a moment when America's Middle East foreign policy is teetering on the edge of disaster.

At this delicate moment, the attorney general, who seems to be speaking for the White House, is announcing to the world that the United States intends not to be bound by Common Article 3 (so-called because it appears in all four Conventions) to which we previously bound ourselves and which most other nations accept as international law.

As if soldiers risking their lives are not already in enough jeopardy, this remarkable announcement, that the United States should abandon a central Geneva Conventions protection for prisoners, is unfathomable.

If sexual degradation and humiliation is acceptable for Muslim prisoners, the inescapable consequence will be that such inhumanity is not a war crime if the prisoners are American. If this really is White House policy, it is singularly cavalier toward soldiers and their families.

It either assumes that our enemies in Iraq or elsewhere will follow Geneva more rigorously than we do, or that they are so ruthless that American prisoners should expect to be tortured, castrated and beheaded, no matter what.

The latter assumption is inconsistent with the CIA's experience in the Soviet-Afghan war. In the early stages of that conflict, lives on all sides were brutally cheap, and the Mujahadeen were not Geneva signators.

Nevertheless, the CIA managed to persuade the Afghans that Soviet pilots' lives were worth trading. A tough bargaining business gradually brought more humane treatment on both sides, and American dollars paid for the repatriation of many Soviet prisoners and bought valuable U.S. access to captured technology.

Columnist Tom Friedman recently said, "This administration has absolute moral clarity - and zero moral authority in the eyes of the rest of the world." He attributed that gloomy status to Guantanamo and Abu Ghraib and the fact that no one in our senior military or civilian leadership has been held to account for those stains on American honor.

Britain's former spymaster, Sir Richard Dearlove (head of MI-6 and "M" to 007 fans), has warned, "America's cause is doomed unless it regains the moral high ground." He was referring to the Cold War reality that intelligence recruits from Eastern Bloc nations were drawn to the West because there was both undisputed moral clarity and moral authority in the struggle against Soviet totalitarianism.

The Supreme Court's Hamdan decision should have ended Mr. Gonzales' efforts to be cleverly creative about fundamental issues of morality and the law of war. America will never reclaim lost moral high ground if this administration continues to insist that Geneva Convention prohibitions against inhumane and degrading treatment should not apply to Muslim prisoners in our custody.

Jack Clooney, a retired FBI counter-terror expert noted, "Not everyone understands the fine points of democracy, but everyone, everywhere, understands hypocrisy."

It may be difficult to see what will pass for victory in Iraq, but it is easy to measure what trashing the Geneva Conventions has already earned us.

David Irvine is a Salt Lake City attorney. He was commissioned in the U.S. Army Reserve as a strategic intelligence officer in 1967 and retired as a brigadier general. He taught prisoner of war interrogation and military law for 18 years for the Sixth United States Army Intelligence School.