INDEPTH: IRAQ
The privatization of war crimes
Robin Rowland, CBC News Online | May 6, 2004
American investigators will face the problem of what to do with the so-called civilian contractors at the prison.
As civilians, they are not subject to U.S. military law. Technically
they could be subject to Iraqi law since the alleged crimes were
committed within Iraq. There is also a possibility that the civilians
could be liable for prosecution under the Military Extraterritorial
Jurisdiction Act passed during the Clinton administration. That law is
aimed at giving U.S. federal courts the power to try any crime committed
by civilians working with the military. However, that law has never been
tested in the courts and the Coalition Provisional Authority has said
the contractors are not under their control. It is unclear whether U.
S. prosecutors could find a way to use international law and treaties as
means of charging the contractors with violations of American laws.
If the allegations are true, the contractors might also be liable for international charges of war crimes and crimes against humanity.
Bosnian Muslim suspects Hazim Delic, left, and Esad Landzo wait for the
begining of the Yugoslav War Crimes Tribunal session in The Hague, Oct. 1, 1996. Both suspects were indicted for the killing and torture of Serb inmates at the Celebici camp in the Konjic region of Central Bosnia in 1992. Man at centre is a UN security guard. (AP Photo)
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What can and should happen to civilians accused of "superior responsibility" for war crimes under the international humanitarian law is still being developed by the tribunals for Yugoslavia and Rwanda. That's because civilians can "influence" events even if they don't have a place in the military chain of command. Their actual role in giving orders has to be considered on a case-by-case basis.
The contractors may never face a war crimes trial – at least in an international court. The United States has refused to join the International Criminal Court which would be the best venue for such a trial.
There are two cases from the former Yugoslavia that probably will have direct relevance to what happens at Abu Ghraib, one involving sexual assault and a second, which defined both the responsibility of civilians and how prison camps must be run.
In one case, called Furundzija, the accused were Bosnian-Croat paramilitaries charged with multiple cases of rape and torture of civilians. It was this case, along with one other in Yugoslavia, that established rape as a war crime. In Furundzija, rape and sexual assault were deliberately used for obtaining confessions. The trial found that came under the legal definition of torture.
The accused in the case was the interrogator and he was found guilty on the grounds that the questioning was "an integral part" of the sexual assault. The man in charge of the paramilitary unit known as "The Jokers" was also found responsible because his followers called him "boss" and the overall evidence showed he was in charge.
The second case is called Celebici, named for a notorious prison camp in Bosnia, where Bosnian Muslims and Bosnian Croats imprisoned and abused Bosnian Serb prisoners, mostly civilians. The judgment by the Yugoslav tribunal found that "superior responsibility" included "not only military commanders but also civilians holding positions of authority."
As well, the judgment created a precedent, by defining what it called "inhuman conditions" in the prison camp, upholding a clause in the 1949 Geneva Convention, which prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."
The judgment went on to say
These legal standards are absolute and not relative. Thus, when considering the factual allegation of inhumane conditions with respect to these legal offences, no reference should be made to the conditions prevailing in the area of detention in order to determine what the standard of treatment should have been. The legal standard in each of the mistreatment offences discussed above delineates a minimum standard of treatment, which also applies to conditions of detention. During an armed conflict, persons should not be detained in conditions where this minimum standard cannot be met and maintained.
That decision, if ever applied to conditions in American prisons in Baghdad, Afghanistan and Guantanamo, could mean the United States may not be able to use the "war against terror" as an excuse if the allegations about inhumane treatment are proven.
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