AN OPERATION, NOT AN ABERRATION
"Oh yeah, isn't that where Lieutenant Calley went crazy and killed all those people?"
"Oh yeah, isn't that where Lieutenant Calley went crazy and killed all those people?"
United States war crimes
United States war crimes are the violations of the laws and customs of war of which the United States Armed Forces are accused of committing since the signing of the Hague Conventions of 1899 and 1907. These have included the summary execution of captured enemy combatants, the mistreatment of prisoners during interrogation (torture), and the use of violence against civilian non-combatants.
War crimes can be prosecuted in the United States through the War Crimes Act of 1996. However, the U.S. Government, which strongly opposes the International Criminal Court (ICC) treaty, believing it is seriously flawed,[1] does not accept ICC jurisdiction over its nationals.[2][3]
Contents
[hide]Mexican–American War[edit]
When Zachary Taylor began leading American soldiers into Mexico the U.S troops under the watchful eye of Taylor at first adhered to the rules of war for the most part and almost exclusively engaged only with enemy soldiers. This gained them some popularity with Mexican civilians who held the occupying Americans in a degree of high regard compared to the Mexican Army who left their wounded to be captured by the enemy as they retreated from the area. Though in June 1846, this changed when American reinforcements entered into the area and began raiding local farms.
Many soldiers on garrison duty began committing crimes against civilians such as robbery, rape and murder in order to cure their boredom. This crime wave resulted in American soldiers murdering at least 20 civilians during the first month of occupation. Taylor showed little concern with the crimes his soldiers had been committing and made no attempt to discipline the soldiers responsible for them. This led to public opinion turning against the American troops and resulted in many Mexicans taking up arms and forming guerrilla bands which attacked patrols of U.S soldiers. The attacks continued to get more prevalent especially after the Battle of Monterrey.[4]
During this time anti-catholic sentiment and racism fueled more attacks on civilians. It was estimated that during this time US troops killed at least 100 civilians, with the majority of them being killed by Col. John C. Hays' 1st Texas Mounted Volunteers. In response to the violence, Mexicans killed an American soldier outside of Monterrey. American troops under the command of Capt. Mabry B. "Mustang" Gray responded to the event by abducting and executing twenty-four unarmed Mexican civilians.
In the coming months the boredom of occupation duties led to additional violence against civilians. In November 1846, a detachment from the 1st Kentucky regiment murdered a young Mexican boy, apparently for sport, afterwards Taylor again refused to bring charges against any of the soldiers involved.
The most infamous group of soldiers during this time were the ones serving under Joseph Lane. After Captain Samuel Hamilton Walker was killed in a skirmish there, Lane ordered his men to avenge the dead Texas Ranger by sacking the town of Huamantla. The soldiers quickly became drunk after raiding a liquor store and began targeting the towns people. Reports described the soldiers raping scores of women many of which were young girls and murdering dozens of Mexican civilian while they burned down homes.[5] However, these reports of an American rampage were overshadowed by news of Mexican General Antonio López de Santa Anna's resignation after the Huamantla attack, leading to no repercussions against Lane or any of the soldiers involved in the massacre.[6]
Philippine–American War[edit]
Following the end of the Spanish–American War in 1898, Spain ceded the Philippines to the United States as part of the peace settlement. This triggered a more than decade-long conflict between the United States Armed Forces and the First Philippine Republic under President Emilio Aguinaldo.
War crimes committed by the United States Army include the March across Samar, which led to the court martial and forcible retirement of Brigadier General Jacob H. Smith.[1]
Smith instructed Major Littleton Waller, commanding officer of a battalion of 315 U.S. Marines assigned to bolster his forces in Samar, regarding the conduct of pacification:
A sustained and widespread massacre of Filipino civilians followed. Food and trade to Samar were cut off, intended to starve the revolutionaries into submission. Smith's strategy on Samar involved widespread destruction to force the inhabitants to stop supporting the guerrillas and turn to the Americans from fear and starvation. He used his troops in sweeps of the interior in search for guerrilla bands and in attempts to capture Philippine General Vicente Lukbán, but he did nothing to prevent contact between the guerrillas and the townspeople. American columns marched across the island, destroying homes and shooting people and draft animals.
The exact number of Filipino civilians killed by US troops will never be known. Littleton Waller, in a report, stated that over an eleven-day period his men burned 255 dwellings, shot 13 carabaos and killed 39 people.[10] An exhaustive research made by a British writer in the 1990s put the figure at about 2,500 dead; Filipino historians believe it to be around 50,000.[11] As a consequence of his order in Samar, Smith became known as "Howling Wilderness Smith."[12]
Regarding the massacres in Bud Dajo, Major Hugh Scott, the District Governor of Sulu Province, where the incidents occurred, recounted that those who fled to the crater "declared they had no intention of fighting, - ran up there only in fright, [and] had some crops planted and desired to cultivate them."[13]
The description of the engagement as a "battle" is disputed because of both the overwhelming firepower of the attackers and the lopsided casualties. The author Vic Hurley wrote, "By no stretch of the imagination could Bud Dajo be termed a 'battle'".[14] Mark Twain condemned the incident strongly in articles[15][16] and commented, "In what way was it a battle? It has no resemblance to a battle ... We cleaned up our four days' work and made it complete by butchering these helpless people."[17] A higher percentage of Moros were killed than in other incidents now considered massacres. For example, the highest estimate of Native Americans killed at the Wounded Knee Massacre is 300 out of 350 (a death rate of 85 percent), whereas in Bud Dajo there were only six Moro survivors out of a group estimated at 1,000 (a death rate of over 99 percent). As at Wounded Knee, the Moro group included women and children. Moro men in the crater who had arms possessed melee weapons. While fighting was limited to ground action on Jolo, use of naval gunfire contributed significantly to the overwhelming firepower brought to bear against the Moros.
During the engagement, 750 men and officers, under the command of Colonel J.W. Duncan, assaulted the volcanic crater of Bud Dajo (Tausūg: Būd Dahu), which was populated by 800 to 1,000 Tausug villagers.
On March 2, 1906, Wood ordered Colonel J.W. Duncan of the 6th Infantry Regiment (stationed at Zamboanga, the provincial capital) to lead an expedition against Bud Dajo. The assault force consisted of "272 men of the 6th Infantry, 211 [dismounted] men of the 4th Cavalry, 68 men of the 28th Artillery Battery, 51 Philippine Constabulary, 110 men of the 19th Infantry and 6 sailors from the gunboat Pampanga."[18] The battle began on March 5, as mountain guns fired 40 rounds of shrapnel into the crater.[18] During the night, the Americans hauled mountain guns to the crater's edge with block and tackle. At daybreak, the American guns (both the mountain guns and the guns of the Pampanga) opened up on the Moros' fortifications in the crater. American forces then placed a "Machine Gun... in position where it could sweep the crest of the mountain between us and the cotta," killing all Moros in the crater.[19] One account claims that the Moros, armed with krises and spears, refused to surrender and held their positions. Some of the defenders rushed the Americans and were cut down. The Americans charged the surviving Moros with fixed bayonets, and the Moros fought back with their kalis, barung, improvised grenades made with black powder and seashells.[18] Despite the inconsistencies among various accounts of the battle (one in which all occupants of Bud Dajo were gunned down, another in which defenders resisted in fierce hand-to-hand combat), all accounts agree that few, if any, Moros survived.
In response to criticism, Wood's explanation of the high number of women and children killed stated that the women of Bud Dajo dressed as men and joined in the combat, and that the men used children as living shields.[20][21] Hagedorn supports this explanation, by giving an account of Lt. Gordon Johnston, who was severely wounded by a woman warrior.[22] A second explanation was given by the Governor-General of the Philippines, Henry Clay Ide, who reported that the women and children were collateral damage, having been killed during the artillery barrages.[20] These conflicting explanations of the high number of women and child casualties brought accusations of a cover-up, adding to the criticism.[20] Furthermore, Wood's and Ide's explanation are at odds with Col. J.W. Duncan's March 12, 1906 post-action report describing the placement of a machine-gun at the edge of the crater to fire upon the occupants.[19] Following Duncan's reports, the high number of non-combatants killed can be explained as the result of indiscriminate machine-gun fire.
Despite President McKinley's proclamation of "benevolent assimilation" of the Philippines as a U.S. Territory, American treatment of Philippine soldiers and civilians was far from benevolent.
General Elwell Stephen Otis controlled the flow of information by journalists, often through violent methods, in order to maintain American support for the war. Following the Battle of Manila, Aguinaldo switched his tactics from conventional warfare to guerrilla warfare, causing American generals to establish harsher methods of warfare as well.
Orders given by Otis and General Arthur MacArthur Jr. oversaw the complete destruction of many villages, and the capture and execution of their civilians, in order to incite conflict by Philippine soldiers. Despite Otis' restriction on journalism, many reports by both American and Filipino journalists indicate that American treatment of Filipino prisoners was very harsh, as many were starved and tortured, and many others were executed. [23]
A report written by General J.M. Bell in 1901 states: "I am now assembling in the neighborhood of 2,500 men who will be used in columns of about fifty men each. I take so large a command for the purpose of thoroughly searching each ravine, valley and mountain peak for insurgents and for food, expecting to destroy everything I find outside of towns. All able bodied men will be killed or captured. ... These people need a thrashing to teach them some good common sense; and they should have it for the good of all concerned."[24]
World War II[edit]
Pacific theater[edit]
On January 26, 1943, the submarine USS Wahoo fired on survivors in lifeboats from the Japanese transport Buyo Maru. Vice Admiral Charles A. Lockwood asserted that the survivors were Japanese soldiers who had turned machine-gun and rifle fire on the Wahoo after she surfaced, and that such resistance was common in submarine warfare.[25] According to the submarine's executive officer, the fire was intended to force the Japanese soldiers to abandon their boats and none of them were deliberately targeted.[26] Historian Clay Blair stated that the submarine's crew fired first and the shipwrecked survivors returned fire with handguns.[27] The survivors were later determined to have included Allied POWs of the Indian 2nd Battalion, 16th Punjab Regiment, who were guarded by Japanese Army Forces from the 26th Field Ordnance Depot.[28]Of 1,126 men originally aboard Buyo Maru, 195 Indians and 87 Japanese died, some killed during the torpedoing of the ship and some killed by the shootings afterwards.[29]
During and after the Battle of the Bismarck Sea (March 3–5, 1943), U.S. PT boats and Allied aircraft attacked Japanese rescue vessels as well as approximately 1,000 survivors from eight sunken Japanese troop transport ships.[30] The stated justification was that the Japanese personnel were close to their military destination and would be promptly returned to service in the battle.[30] Many of the Allied aircrew accepted the attacks as necessary, while others were sickened.[31]
American servicemen in the Pacific War sometimes deliberately killed Japanese soldiers who had surrendered, according to Richard Aldrich, a professor of history at the University of Nottingham. Aldrich published a study of diaries kept by United States and Australian soldiers, wherein it was stated that they sometimes massacred prisoners of war.[32] According to John Dower, in "many instances ... Japanese who did become prisoners were killed on the spot or en route to prison compounds."[33] According to Professor Aldrich, it was common practice for U.S. troops not to take prisoners.[34] His analysis is supported by British historian Niall Ferguson,[35] who also says that, in 1943, "a secret [U.S.] intelligence report noted that only the promise of ice cream and three days leave would ... induce American troops not to kill surrendering Japanese."[36]
Ferguson states that such practices played a role in the ratio of Japanese prisoners to dead being 1:100 in late 1944. That same year, efforts were taken by Allied high commanders to suppress "take no prisoners" attitudes[36] among their personnel (because it hampered intelligence gathering), and to encourage Japanese soldiers to surrender. Ferguson adds that measures by Allied commanders to improve the ratio of Japanese prisoners to Japanese dead resulted in it reaching 1:7, by mid-1945. Nevertheless, "taking no prisoners" was still "standard practice" among U.S. troops at the Battle of Okinawa, in April–June 1945.[37] Ferguson also suggests that "it was not only the fear of disciplinary action or of dishonor that deterred German and Japanese soldiers from surrendering. More important for most soldiers was the perception that prisoners would be killed by the enemy anyway, and so one might as well fight on."[38]
Ulrich Straus, a U.S. Japanologist, suggests that Allied troops on the front line intensely hated Japanese military personnel and were "not easily persuaded" to take or protect prisoners, because they believed, not entirely incorrectly, that Allied personnel who surrendered got "no mercy" from the Japanese.[39] Allied troops were told that Japanese soldiers were inclined to feign surrender in order to make surprise attacks,[39] a practice which was outlawed by the Hague Convention of 1907.[40] Therefore, according to Straus, "Senior officers opposed the taking of prisoners on the grounds that it needlessly exposed American troops to risks ..."[39] When prisoners were taken at Guadalcanal, Army interrogator Captain Burden noted that many times POWs were shot during transport because "it was too much bother to take [them] in".[41]
U.S. historian James J. Weingartner attributes the very low number of Japanese in U.S. prisoner of war compounds to two important factors, namely (1) a Japanese reluctance to surrender, and (2) a widespread American "conviction that the Japanese were 'animals' or 'subhuman' and unworthy of the normal treatment accorded to prisoners of war.[42] The latter reason is supported by Ferguson, who says that "Allied troops often saw the Japanese in the same way that Germans regarded Russians — as Untermenschen (i.e., "subhuman").[43]
Rape[edit]
It has been claimed that some U.S. military personnel raped Okinawan women during the Battle of Okinawa in 1945.[44]
Based on several years of research, Okinawan historian Oshiro Masayasu (former director of the Okinawa Prefectural Historical Archives) writes:
According to interviews carried out by the New York Times and published by them in 2000, several elderly people from an Okinawan village confessed that after the United States had won the Battle of Okinawa, three armed marines kept coming to the village every week to force the villagers to gather all the local women, who were then carried off into the hills and raped. The article goes deeper into the matter and claims that the villagers' tale — true or not — is part of a "dark, long-kept secret" the unraveling of which "refocused attention on what historians say is one of the most widely ignored crimes of the war": 'the widespread rape of Okinawan women by American servicemen."[46] Although Japanese reports of rape were largely ignored at the time, academic estimates have been that as many as 10,000 Okinawan women may have been raped. It has been claimed that the rape was so prevalent that most Okinawans over age 65 around the year 2000 either knew or had heard of a woman who was raped in the aftermath of the war.[47]
Professor of East Asian Studies and expert on Okinawa, Steve Rabson, said: "I have read many accounts of such rapes in Okinawan newspapers and books, but few people know about them or are willing to talk about them."[47] He notes that plenty of old local books, diaries, articles and other documents refer to rapes by American soldiers of various races and backgrounds. An explanation given for why the US military has no record of any rapes is that few Okinawan women reported abuse, mostly out of fear and embarrassment. According to an Okinawan police spokesman: "Victimized women feel too ashamed to make it public."[47] Those who did report them are believed by historians to have been ignored by the U.S. military police. Many people wondered why it never came to light after the inevitable American-Japanese babies the many women must have given birth to. In interviews, historians and Okinawan elders said that some of those Okinawan women who were raped and did not commit suicide did give birth to biracial children, but that many of them were immediately killed or left behind out of shame, disgust or fearful trauma. More often, however, rape victims underwent crude abortions with the help of village midwives. A large scale effort to determine the possible extent of these crimes has never been conducted. Over five decades after the war had ended, in the late-1990s, the women who were believed to have been raped still overwhelmingly refused to give public statements, instead speaking through relatives and a number of historians and scholars.[47]
There is substantial evidence that the U.S. had at least some knowledge of what was going on. Samuel Saxton, a retired captain, explained that the American veterans and witnesses may have intentionally kept the rape a secret, largely out of shame: "It would be unfair for the public to get the impression that we were all a bunch of rapists after we worked so hard to serve our country."[47] Military officials formally denied the mass rapes, and all surviving related veterans refused the New York Times request for an interview. Masaie Ishihara, a sociology professor, supports this: "There is a lot of historical amnesia out there, many people don't want to acknowledge what really happened."[47] Author George Feifer noted in his book Tennozan: The Battle of Okinawa and the Atomic Bomb, that by 1946 there had been fewer than 10 reported cases of rape in Okinawa. He explained it was "partly because of shame and disgrace, partly because Americans were victors and occupiers. In all there were probably thousands of incidents, but the victims' silence kept rape another dirty secret of the campaign."[48]
Some other authors have noted that Japanese civilians "were often surprised at the comparatively humane treatment they received from the American enemy."[49][50] According to Islands of Discontent: Okinawan Responses to Japanese and American Power by Mark Selden, the Americans "did not pursue a policy of torture, rape, and murder of civilians as Japanese military officials had warned."[51]
There were also 1,336 reported rapes during the first 10 days of the occupation of Kanagawa prefecture after the Japanese surrender.[44]
European theater[edit]
In the Laconia massacre, U.S. aircraft attacked Germans rescuing survivors from the sinking British troopship in the Atlantic Ocean. Pilots of a United States Army Air Forces (USAAF) B-24 Liberator bomber, despite knowing the U-boat's location, intentions, and the presence of British seamen, killed dozens of Laconia's survivors with bombs and strafing attacks, forcing U-156 to cast its remaining survivors into the sea and crash dive to avoid being destroyed.
The "Canicattì massacre" involved the killing of Italian civilians by Lieutenant Colonel George Herbert McCaffrey. A confidential inquiry was made, but McCaffrey was never charged with any offense relating to the massacre. He died in 1954. This fact remained virtually unknown in the U.S. until 2005, when Joseph S. Salemi of New York University, whose father witnessed it, reported it.[52]
In the "Biscari massacre", which consisted of two instances of mass murder, U.S. troops of the 45th Infantry Division killed roughly 75 prisoners of war, mostly Italian.[53][54]
According to an article in Der Spiegel by Klaus Wiegrefe, many personal memoirs of Allied soldiers have been wilfully ignored by historians until now because they were at odds with the "greatest generation" mythology surrounding World War II. However, this has recently started to change, with books such as The Day of Battle, by Rick Atkinson, in which he describes Allied war crimes in Italy, and D-Day: The Battle for Normandy, by Antony Beevor.[55] Beevor's latest work suggests that Allied war crimes in Normandy were much more extensive "than was previously realized".[56]
Historian Peter Lieb has found that many U.S. and Canadian units were ordered not to take enemy prisoners during the D-Day landings in Normandy. If this view is correct, it may explain the fate of 64 German prisoners (out of the 130 captured) who did not make it to the POW collecting point on Omaha Beach on the day of the landings.[55]
Near the French village of Audouville-la-Hubert, 30 Wehrmacht prisoners were massacred by U.S. paratroopers.[56]
In the aftermath of the 1944 Malmedy massacre, in which 80 American POWs were murdered by their German captors, a written order from the headquarters of the 328th U.S. Army Infantry Regiment, dated 21 December 1944, stated: "No SStroops or paratroopers will be taken prisoner but [rather they] will be shot on sight."[57] Major-General Raymond Hufft (U.S. Army) gave instructions to his troops not to take prisoners when they crossed the Rhine in 1945. "After the war, when he reflected on the war crimes he authorized, he admitted, 'if the Germans had won, I would have been on trial at Nuremberg instead of them.'"[58] Stephen Ambrose related: "I've interviewed well over 1000 combat veterans. Only one of them said he shot a prisoner... Perhaps as many as one-third of the veterans...however, related incidents in which they saw other GIs shooting unarmed German prisoners who had their hands up."[59]
"Operation Teardrop" involved eight surviving captured crewmen from the sunken German submarine U-546 being torturedby U.S. military personnel. Historian Philip K. Lundeberg has written that the beating and torture of U-546's survivors was a singular atrocity motivated by the interrogators' need to quickly get information on what the U.S. believed were potential missile attacks on the continental U.S. by German submarines.[60]
The "Dachau massacre" involved the killing of German prisoners of war and surrendering SS soldiers at the Dachau concentration camp.[61]
Among American WWII veterans who admitted to having committed war crimes was former Mafia hitman Frank Sheeran. In interviews with his biographer Charles Brandt, Sheeran recalled his war service with the Thunderbird Division as the time when he first developed a callousness to the taking of human life. By his own admission, Sheeran participated in numerous massacres and summary executions of German POWs, acts which violated the Hague Conventions of 1899 and 1907 and the 1929 Geneva Convention on POWs. In his interviews with Brandt, Sheeran divided such massacres into four different categories.
- 1. Revenge killings in the heat of battle. Sheeran told Brandt that, when a German soldier had just killed his close friends and then tried to surrender, he would often "send him to hell, too." He described often witnessing similar behavior by fellow GIs.[62]
- 2. Orders from unit commanders during a mission. When describing his first murder for organized crime, Sheeran recalled: "It was just like when an officer would tell you to take a couple of German prisoners back behind the line and for you to 'hurry back'. You did what you had to do."[63]
- 3. The Dachau massacre and other reprisal killings of concentration camp guards and trustee inmates.[64]
- 4. Calculated attempts to dehumanize and degrade German POWs. While Sheeran's unit was climbing the Harz Mountains, they came upon a Wehrmacht mule train carrying food and drink up the mountainside. The female cooks were first allowed to leave unmolested, then Sheeran and his fellow GI's "ate what we wanted and soiled the rest with our waste." Then the Wehrmacht mule drivers were given shovels and ordered to "dig their own shallow graves." Sheeran later joked that they did so without complaint, likely hoping that he and his buddies would change their minds. But the mule drivers were shot and buried in the holes they had dug. Sheeran explained that by then, "I had no hesitation in doing what I had to do."[65]
Rape[edit]
Secret wartime files made public only in 2006 reveal that American GIs committed 400 sexual offenses in Europe, including 126 rapes in England, between 1942 and 1945.[66] A study by Robert J. Lilly estimates that a total of 14,000 civilian women in England, France and Germany were raped by American GIs during World War II.[67][68] It is estimated that there were around 3,500 rapes by American servicemen in France between June 1944 and the end of the war and one historian has claimed that sexual violence against women in liberated France was common.[69]
Korean War[edit]
No Gun Ri Massacre[edit]
The No Gun Ri Massacre refers to an incident of mass killing of an undetermined number of South Korean refugees by U.S. soldiers of the 7th Cavalry Regiment (and in a U.S. air attack) between 26–29 July 1950 at a railroad bridge near the village of Nogeun-ri, 100 miles (160 km) southeast of Seoul. In 2005, the South Korean government certified the names of 163 dead or missing (mostly women, children, and old men) and 55 wounded. It said that many other victims' names were not reported.[70] Over the years survivors' estimates of the dead have ranged from 300 to 500. This episode early in the Korean War gained widespread attention when the Associated Press (AP) published a series of articles in 1999 that subsequently won a Pulitzer Prize for Investigative Reporting.[71]
Vietnam War[edit]
The Vietnam War Crimes Working Group Files is a collection of (formerly secret) documents compiled by Pentagoninvestigators in the early 1970s, confirming that atrocities by U.S. forces during the Vietnam War were more extensive than had been officially acknowledged.[72][73] The documents are housed by the United States National Archives and Records Administration, and detail 320 alleged incidents that were substantiated by United States Army investigators (not including the 1968 My Lai Massacre). (See also Winter Soldier Investigation).
My Lai Massacre[edit]
The My Lai Massacre was the mass murder of 347 to 504 unarmed citizens in South Vietnam, almost entirely civilians, most of them women and children, conducted by U.S. soldiers from the Company C of the 1st Battalion, 20th Infantry Regiment, 11th Brigade of the 23rd (Americal) Infantry Division, on 16 March 1968. Some of the victims were raped, beaten, tortured, or maimed, and some of the bodies were found mutilated. The massacre took place in the hamlets of Mỹ Lai and My Khe of Sơn Mỹ village during the Vietnam War.[74][75] Of the 26 U.S. soldiers initially charged with criminal offenses or war crimes for actions at My Lai, only William Calley was convicted. Initially sentenced to life in prison, Calley had his sentence reduced to ten years, then was released after only three and a half years under house arrest. The incident prompted widespread outrage around the world, and reduced U.S. domestic support for the Vietnam War. Three American Servicemen (Hugh Thompson, Jr., Glenn Andreotta, and Lawrence Colburn), who made an effort to halt the massacre and protect the wounded, were sharply criticized by U.S. Congressmen, and received hate mail, death threats, and mutilated animals on their doorsteps.[76] Thirty years after the event their efforts were honored.[77]
War on Terror[edit]
In the aftermath of the September 11, 2001 attacks, the U.S. Government adopted several new measures in the classification and treatment of prisoners captured in the War on Terror, including applying the status of unlawful combatantto some prisoners, conducting extraordinary renditions, and using torture ("enhanced interrogation techniques"). Human Rights Watch and others described the measures as being illegal under the Geneva Conventions.[78]
Command responsibility[edit]
A presidential memorandum of February 7, 2002, authorized U.S. interrogators of prisoners captured during the War in Afghanistan to deny the prisoners basic protections required by the Geneva Conventions, and thus according to Jordan J. Paust, professor of law and formerly a member of the faculty of the Judge Advocate General's School, "necessarily authorized and ordered violations of the Geneva Conventions, which are war crimes."[79] Based on the president's memorandum, U.S. personnel carried out cruel and inhumane treatment on captured enemy fighters,[80] which necessarily means that the president's memorandum was a plan to violate the Geneva Convention, and such a plan constitutes a war crime under the Geneva Conventions, according to Professor Paust.[81]
U.S. Attorney General Alberto Gonzales and others have argued that detainees should be considered "unlawful combatants" and as such not be protected by the Geneva Conventions in multiple memoranda regarding these perceived legal gray areas.[82]
Gonzales' statement that denying coverage under the Geneva Conventions "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" suggests, to some authors, an awareness by those involved in crafting policies in this area that U.S. officials are involved in acts that could be seen to be war crimes.[83] The U.S. Supreme Courtchallenged the premise on which this argument is based in Hamdan v. Rumsfeld, in which it ruled that Common Article Threeof the Geneva Conventions applies to detainees in Guantanamo Bay and that the military tribunals used to try these suspects were in violation of U.S. and international law.[84]
Human Rights Watch claimed in 2005 that the principle of "command responsibility" could make high-ranking officials within the Bush administration guilty of the numerous war crimes committed during the War on Terror, either with their knowledge or by persons under their control.[85] On April 14, 2006, Human Rights Watch said that Secretary Donald Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammed al-Qahtani.[86] On November 14, 2006, invoking universal jurisdiction, legal proceedings were started in Germany – for their alleged involvement of prisoner abuse – against Donald Rumsfeld, Alberto Gonzales, John Yoo, George Tenet and others.[87]
The Military Commissions Act of 2006 is seen by some as an amnesty law for crimes committed in the War on Terror by retroactively rewriting the War Crimes Act[88] and by abolishing habeas corpus, effectively making it impossible for detainees to challenge crimes committed against them.[89]
Luis Moreno-Ocampo told The Sunday Telegraph in 2007 that he was willing to start an inquiry by the International Criminal Court (ICC), and possibly a trial, for war crimes committed in Iraq involving British Prime Minister Tony Blair and American President George W. Bush.[90] Though under the Rome Statute, the ICC has no jurisdiction over Bush, since the U.S. is not a State Party to the relevant treaty—unless Bush were accused of crimes inside a State Party, or the UN Security Council(where the U.S. has a veto) requested an investigation. However, Blair does fall under ICC jurisdiction as Britain is a State Party.[91]
Shortly before the end of President Bush's second term in 2009, newsmedia in countries other than the U.S. began publishing the views of those who believe that under the United Nations Convention Against Torture, the U.S. is obligated to hold those responsible for prisoner abuse to account under criminal law.[92] One proponent of this view was the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Professor Manfred Nowak) who, on January 20, 2009, remarked on German television that former president George W. Bush had lost his head of state immunity and under international law the U.S. would now be mandated to start criminal proceedings against all those involved in these violations of the UN Convention Against Torture.[93] Law professor Dietmar Herz explained Nowak's comments by opining that under U.S. and international law former President Bush is criminally responsible for adopting torture as an interrogation tool.[93]
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