Van Bergen & Gittings | Military Necessity or War Crimes?
Bush War: Military Necessity or War Crimes?
By Jennifer Van Bergen & Charles B. Gittings 1
t r u t h o u t | Monday, 14 July 2003
[Editor s Note] This is Part One of a three-part series that raises the question whether the Bush War namely, the domestic agenda in the so-called war on terrorism, the Military Tribunal Order of November 13, 2001, the illegitimate detention of suspects at Guantanamo Bay and elsewhere without due process -- are justified, as the Bush Administration claims, by the doctrine of military necessity, or whether they, in fact, constitute violations of the Geneva Conventions, which would thus be war crimes under United States law, subject to capital punishment. Part One introduces the question. Part Two discusses the Geneva and Hague Conventions, which the authors claim Bush is violating. Part Three discusses the doctrine of military necessity and concludes military necessity does not justify the Bush War.
A reporter visits Guantanamo Bay and asks a guard about the sign at the front gate of the prison camp. The sign says: "Honor bound -- to defend freedom."
The reporter asks "Isn't that a little strange, a slogan about freedom on the gate of a prison camp?"
The guard replies "Doesn't seem strange to me-- does it seem strange to you?" 2
This exchange appeared in a New York Times Magazine story. One can't help but wonder if either of these persons are aware that over the front gate at the Auschwitz concentration camp the Nazis had a sign that said "Work makes one free."
An Air Force Colonel who has been given the job of chief defense counsel for military commissions at Guantanamo talks to Reuters and says that some of the rules formulated for the these commissions would be different if he was making the rules. As reported by Reuters:
If I were the person who had designed this system, I would have designed it differently," [USAF Col. Will] Gunn said.
Gunn singled out language permitting the Defense Department to monitor any conversations or communications between defense lawyers and defendants, which some critics have called a breach of customary attorney-client privilege.
"For instance, I would make it clear that no conversation between the defense counsel and a client can be monitored unless the government had a particularized reason for doing so ... a reason that can be clearly articulated," Gunn said.
Gunn said the appeals process would be different if he had designed it. The rules do not allow for an independent judicial review of convictions or sentences. Appeals go to a military panel appointed by the Pentagon, and final review of convictions or sentences is made by Bush himself.
Gunn said the traditional U.S. military justice system allows for some appeals to be heard by a civilian court.
"The most serious cases with the most severe sanctions can be reviewed by civilians," Gunn said. 3
As it stands, the President has claimed the authority to invade any country he pleases, determine who is an enemy combatant, whether or not they can be detained indefinitely, whether they are to be tried before a commission (or not at all), what the rules for such commissions should be, and whether or not the results of such a trial are fair and just -- solely at his own discretion.
One wonders if any of these people have ever read the Federalist, where Madison says:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. 4
And whenever anyone dares to question the Bush Administration's actions -- many of which these authors believe are violations of the Geneva Conventions and other treaties, and some of which are war crimes subject to capital punishment under U.S. law - the Administration always insists that it is following Geneva except to the extent that "military necessity" requires otherwise.
The President has claimed that the invasion of Iraq was a military necessity and we now know it was founded on forged documents. 5 The President has claimed that the detention of persons at Guantanamo is appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949. He has declared that the establishment of Military Tribunals in this country, even while the civil courts are open and fully functioning, is necessary to meet the emergency. 6
The authors thus ask the question: is Bush complying with international law, and specifically with the Geneva Conventions? Or is he violating them? If government officials, including Bush and Rumsfeld, are violating Geneva, are they thereby committing war crimes? Or does military necessity dictate -- and justify -- their course? What do the Geneva Conventions require of the Administration? What is military necessity and what determines it?
Next the authors will discuss the Geneva and Hague Conventions which set forth the parameters within which any High Contracting Party (which includes the United States) is obligated to operate.
1 Jennifer Van Bergen is a frequent contributor to Truthout. She holds a J.D. from Cardozo School of Law and will be teaching a course on The Anti-Terrorism Laws, the Constitution and Civil Rights at the New School Online University, NY, this Fall.
Charles B. Gittings is a computer programmer and the founder of the Project to Enforce the Geneva Conventions (PEGC)
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