Global Policy Forum

An American in The Hague?


By Jonathan D. Tepperman*

New York Times
June 10, 2004

The Bush administration has yet to accept much responsibility for the torture at Abu Ghraib prison. True, the president has apologized for the abuse on Arab television, and several top military officials in Iraq - including the general in charge of the prison and her boss - have been quietly suspended or will soon be transferred. But so far, legal responsibility has fallen exclusively on the seven court-martialed soldiers who were directly involved. Administration officials have argued that they themselves are not liable, since the incidents were the work of a few bad actors.

This may or may not be true. Even if no smoking gun is ever found to directly link American officials to the crimes, however, they could still find themselves in serious jeopardy under international law. Under the doctrine of command responsibility, officials can be held accountable for war crimes committed by their subordinates even if they did not order them - so long as they had control over the perpetrators, had reason to know about the crimes, and did not stop them or punish the criminals.

This doctrine is the product of an American initiative. Devised by Allied judges and prosecutors at the Nuremberg tribunals, it was a means to impute responsibility for wartime atrocities to Nazi leaders, who often communicated indirectly and avoided leaving a paper trail.

More recently, the principle has been fine-tuned by two other American creations: the international tribunals for Yugoslavia and Rwanda, which were established in the last decade by the United Nations Security Council at the United States' behest. These tribunals have held that political and military leaders can be found liable for war crimes committed by those under their "effective control" if they do nothing to prevent them.

If this is now the standard in international law - which the United States and the United Nations are applying to rogue leaders like the former Yugoslavian president, Slobodan Milosevic - what does it mean for Washington? The rulings of the Nuremberg and Hague tribunals don't directly bind the United States at home. But given that these institutions were created with the support and approval of the United States, their judgments will be difficult for American officials to disown.

American courts have already accepted the doctrine of command responsibility. In July 2002, for example, a federal court in Miami found two retired Salvadoran generals liable for torture - even though neither man had committed or ordered the crimes in question. The jury held that they were nonetheless guilty, since as El Salvador's minister of defense and head of its national guard at the time of the torture, they knew (or should have known) about it and could have stopped it.

For their part, Secretary of Defense Donald Rumsfeld and other Pentagon officials recently told Congress that they didn't know and couldn't have known about a few instances of sexual abuse in Iraq. But this claim is contradicted by the officer formerly in charge of Abu Ghraib, who has said that her superiors were warned about the abuses months before they were exposed. And the Red Cross documented widespread abuses in Iraq last year and raised them with the White House in January.

Moreover, the abuses seem to have been more than isolated actions. Instead, they now appear to be part of an explicit policy of coercive interrogations conducted around the globe and supported by Justice Department and White House lawyers, who argued in 2002 and 2003 that the Geneva Conventions and other domestic and international bans on torture did not apply in these cases.

Of course, despite all the incriminating evidence, there is little possibility that any foreign or domestic judge will ever haul top members of the current administration into court. The question of guilt or innocence will most likely remain a political one.

Nonetheless, legal principles can affect politics. If voters begin to believe that George W. Bush or Donald Rumsfeld is legally responsible for the torture, it could affect the president's chances in November. Yet if American officials are not held legally accountable, the damage abroad could be even more severe. Part of the terrible legacy of Abu Ghraib may be that the United States will find it difficult to prosecute foreign war criminals if it refuses to accept for itself the legal standards it accuses them of breaking.

About the Author: Jonathan D. Tepperman is senior editor at Foreign Affairs magazine.

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