Robin Rowland, CBC News Online | May 6, 2004
Robin Rowland is a producer with CBC News Online. This backgrounder is based on his research for a master's degree in the law and history of war crimes, and his thesis, "Command Ability and Command Responsibility."
Who is responsible for Abu Ghraib?
Wired Iraqi prisoner at the Abu Ghraib prison, Iraq. (AP Photo/Courtesy of The New Yorker)
Photographs of U.S. soldiers abusing prisoners in Baghdad's Abu Ghraib prison have caused outrage around the world.
With the Islamic world enraged by the pictures and accounts of abuse by American troops, investigators are trying to uncover what really happened in the prison. At the same time, the United States is about to try alleged members of al-Qaeda, as well as Saddam Hussein and his key ministers. America is walking a fine line to avoid accusations of double standards as the two proceedings carry on in parallel.
How responsibility for what went on in the prison can be determined is a thorny question with at least two answers.
One is legal: the actions of individuals in the U.S. armed forces come under that country's Uniform Code of Military Justice.
Members of the U.S. military and any civilians who may be involved are also responsible under what is called International Humanitarian Law, including the Hague, Geneva and Anti-Torture conventions.
The "private contractors" reportedly involved while not subject to U.S. military rules could, under recent decisions from the tribunals handling war crimes in Rwanda and the former Yugoslavia, be brought to trial for crimes against humanity, including torture… if a venue could be found for such a trial.
The second answer is political. Since the end of the Second World War, and especially since Vietnam, the United States has been accused of having a double standard, of being harsher on its enemies than on itself.
U.S. Secretary of Defence Donald Rumsfeld, centre, tours the execution gallows at Abu Ghraib prison outside Baghdad, Iraq, in this Sept. 6, 2003, file photo. At right is Brig.-Gen. Janis Karpinski. (AP Photo)
This is especially true in Japan, where even many moderates believe that American trials of war criminals after the Second World War were "victor's justice." Over the past 50 years, the Japanese media have usually portrayed those trials as unfair in a string of documentaries and bestselling nonfiction books, as well as in television dramas. The controversial movie Pride which, despite Japan's horrendous record during the war, portrayed the Tokyo war crimes tribunal as stacked against Japanese defendants, recently played on History Television in Canada.
Another political headache could be American domestic politics. Government pressure to support the troops was a key factor in the court case some critics have called a whitewash of the My Lai massacre in Vietnam.
Who could be held accountable?
Soldiers guard the prison of Abu Ghraib, outside Baghdad, Iraq, Wednesday, May 5, 2004. (AP Photo)
It's fairly clear from international law as it's evolved since the Second World War that the "command responsibility" for what happened at the Abu Ghraib prison goes far beyond the six enlisted personnel who are already facing courts martial.
- Lt.-Gen. Ricardo Sanchez, the "executive commander" in the region, is the military head of the occupying force and responsible for making sure that his troops comply with international laws and conventions.
- It is certain that some mid-level commanders failed in their duty to control and prevent the crimes at Abu Ghraib. These reportedly include shadowy military intelligence officers who may have been outside the normal chain of command. However, both in Yugoslav and Japanese court cases, investigators traced the trail through command channels to learn who gave the actual orders. Those people faced trial, conviction and sentence.
Iraqis wave their flag and chant anti-U.S. slogans outside Abu Ghraib prison, on the outskirts of Baghdad, Iraq, May 5, 2004. (AP Photo)
- If media reports are true, official accounts of the investigation into events at the prison were slow going up the U.S. chain of command. Those who may have delayed the reports could be held responsible under Second World War Japanese precedents. There, officers were found negligent for not reporting violations to their superiors. Superiors who didn't press for the paperwork could also be held responsible.
- Those military and civilian leaders in the Pentagon who sent poorly trained reservists to become prison guards could be found to have failed in their responsibility to control troops and prevent crimes.
Another key factor is the role of the International Red Cross. Nada
Doumani, a spokesperson for the Red Cross told the Associated Press
"We were aware of what was going on, and based on our findings we
have repeatedly requested the U.S. authorities to take corrective
action." She also said the U. S. "took very seriously all our
recommendations." In the Second World War, the allied tribunals ruled
that an occupying power such as a Japan was responsible for improving
conditions in prison camps as soon as they received notification of
abuses. When that didn't happen, in many cases it was considered by
the tribunals to be a war crime.
U.S. President George W. Bush has repeated the assertion that crimes committed by Saddam Hussein and his regime were much worse than anything Americans have been accused of, just as the crimes committed by Japan and Germany went far beyond any alleged misdeeds by the Allies in Europe and Asia.
George W. Bush speaking on al-Hurra
"We're an open society. We're a society that is willing to investigate, fully investigate in this case, what took place in that prison.
That stands in stark contrast to life under Saddam Hussein. His
trained torturers were never brought to justice under his regime.
There were no investigations about mistreatment of people. There
will be investigations. People will be brought to justice."
George W. Bush speaking on al-Arabiya
"It's very important for people, your listeners, to understand, in our country that when an issue is brought to our attention on this magnitude, we act and we act in a way where leaders are willing to discuss it with the media. And we act in a way where, you know, our Congress asks pointed questions to the leadership. In other words, people want to know the truth. That stands in contrast to dictatorships. A dictator wouldn't be answering questions about this. A dictator wouldn't be saying that the system will be investigated and the world will see the results of the investigation. A dictator wouldn't admit reforms needed to be done."
NEXT: Command, superior and ministerial responsibility