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George W. Bush’s ‘Proxy’ War Crimes in Iraq: Violations of the Nuremberg and U.N. Charters and U.S. Constitution* Introduction: Focusing on U.S. soldiers in Iraq who have been convicted of crimes, as we do here, is not intended as a move to heap further condemnation upon them. Rather, it is a means of demonstrating the "responsibility connection," which U.S. President George W. Bush has tried his best to avoid, between crimes committed in the Iraq war by America's troops and the U.S. president who sent them into harm's way. The responsibility connection mentioned above can be established through international legal principles contained in the Nuremberg Charter of 1945 entitled “Nuremberg Trial Proceedings Vol. 1: Charter of the International Military Tribunal”and its later incorporation by the United Nations through General Assembly (GA) Resolutions 95 (I) p; 177 (II) also enacted on November 21, 1947; and 488 (V), passed on December 12, 1950 The U.N.’s 1950 International Law Commission (ILC) report entitled “Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal” resulted in an even more formal codification and incorporation of Nuremberg Charter principles under the 1945 United Nations Charter. The Nuremberg Charter was originally intended by the U.S., Britain, France and the Soviet Union as a document that would structure and legitimize war crimes trials against leaders of the European Axis powers following World War II, but incorporation of its principles by the U.N. as authorized by the General Assembly demonstrated that it quickly came to provide some of international war crimes law’s main pillars. United Nations General Assembly Resolution 95 (I), among other things, “Affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal . . . .” General Assembly Resolution 95 (I) established the International Law Commission (ILC) as an official U.N. organ with powers delegated to it by the General Assembly through resolutions as well as through the “Statute of the International Law Commission.” GA Resolution 177 (II) “(entrusted) the formulation of the principles of international law recognized in the charter of the Nuremberg Tribunal . . . to the International Law Commission . . .” and “(directed) the Commission to prepare a draft code of offences against the peace and security of mankind . . . .” Finally, GA Resolution 488 (V) recollected the General Assembly’s unanimous affirmation of “ . . . the principles of international law recognized by the charter . . . of the Nuremberg Tribunal” in GA Resolution 95 (I). Accordingly, today the legal authority of the Nuremberg Charter has several bases in international law. First, it is considered to be customary international law that is binding on all of the world’s nation-state governments; and second, it has standing that makes it binding on the U.N.'s member governments. In other words, violations of Nuremberg Charter principles not only amount to infractions of international law but also of the U.N. Charter. Let's take a look first at Nuremberg principles that cover actions taken by President Bush during the invasion and occupation of Iraq from March, 2003 to the present time. Following that we'll consider relevant aspects of the U.N. Charter; portions of the U.S. Constitution that apply to Bush’s actions; and convictions of individual U.S. soldiers for war crimes and human rights violations in Iraq in light of how those convictions comprise a body of evidence that can be used to bring charges of violating the Nuremberg and U.N. charters and U.S. Constitution against Bush as the top U.S. governmental official responsible for the invasion and occupation of Iraq. Principles of the 1945 Nuremberg Charter which are relevant to Bush's actions in Iraq: The second paragraph of Article 6, Section II (entitled “Jurisdiction and General Principles”) of the Charter states: “The following acts . . . are crimes . . . for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime . . ., whether or not in violation of the domestic law of the country where perpetrated. As we shall see, U.S. military operations in Iraq resulted in the commission of crimes as listed under each of the above categories. Important as well is the wording of the final paragraph of Article 6, which is, ”Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” This sentence makes George W. Bush responsible for “all acts,” criminal or otherwise, committed by the troops he sent into Iraq. Section II, Article 7 of the Nuremberg Charter, “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment,” assures that Bush cannot claim immunity from punishment as a result of his official position as U.S. president. Principles of international law in the 1945 Nuremberg Charter as developed in 1950 by the U.N.'s International Law Commission which are relevant to Bush's actions in Iraq: Principle I-Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. Principle II-The fact that internal law (meaning U.S. law in this case) does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. Principle III-The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. . . . Principle VI-The crimes hereinafter set out are punishable as crimes under international law: a. Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). b. War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. c. Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. Principle VII-Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. Portions of the U.N. Charter which are relevant to Bush administration Nuremberg Charter violations in Iraq: The United Nations Charter was ratified by the United States Senate on July 28, 1945. This means that since then the charter has functioned as a document whose provisions the U.S. government is bound to uphold and obey. To underscore this fact, Chapter I., Article 2, Section 2. of the U.N. Charter states, “All members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.” (Access the U.N. Charter.) Further, Article IV of the U.N. Charter empowers the General Assembly to perform functions of the kind it did in giving Nuremberg Charter principles the status of international law and creating and delegating policy and rule making responsibilities to the International Law Commission. Chapter IV., Article 13, Section 1. (a) states, “1. The General Assembly shall initiate studies and make recommendations for the purpose of: (a) promoting international cooperation in the political field and encouraging the progressive development of international law and its codification;” Chapter IV., Article 15, Section 2. states, “2. The General Assembly shall receive and consider reports from the other organs of the United Nations (such as the ILC).” Finally, Chapter IV., Article 21 states, “The General Assembly shall adopt its own rules of procedure . . . .” and Chapter IV., Article 22 indicates, “The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.” Through such substantive and procedural powers, the GA and ILC were clearly fulfilling their proper legal roles as they transformed Nuremberg Charter principles into international law through resolutions and procedural reports that are binding upon the U.N.’s member states. Therefore, any violations of Nuremberg principles are most importantly also violations of Chapter I., Article 2, Section 2. of the U.N. Charter. Aspects of the United States Constitution which relate to Bush’s violations of the U.N. and Nuremberg Charters in Iraq: The U.S. Constitution requires that all U.S. government executive officers are required to support the Constitution (Article VI, Paragraph 3) and the Constitution and all treaties made under the authority of the United States (such as the Nuremberg and U.N. charters) “. . . shall be the supreme Law of the Land; . . .” (clause found in Article VI, Paragraph 2). Consequently, any violations of duly ratified treaties, such as the U.N. Charter for example, by a U.S. president, place that president in breach of the U.S. Constitution, especially Article VI, Paragraphs 2 and 3. (Read the Constitution's text) Linking U.S. soldier convictions for crimes in Iraq to President Bush: The U.S. Army stated recently that 125 soldiers and officers have either been "tried at courts-martial" or given "administrative punishments for detainee abuses in Iraq and Afghanistan." (See Josh White's April 23, 2005 Washington Post article on this.) Marines have also been convicted in courts-martial for prisoner abuse in Iraq; Other proceedings, such as the cases against up to 9 Navy SEALS (go to- USA Today, Baltimore Sun, ABC News for examples) have been mostly conducted in secret. Too, a number of courts-martial have yet to be prosecuted and concluded. This constitutes a substantial number of cases. Why are they important? Because, international legal principles of the Nuremberg Charter recognized as customary international law and incorporated by the U.N. indicate that heads of state, such as Bush, are liable for any of their own actions which constitute crimes under international law and are complicit in any crimes their orders lead others to commit, including "crimes against peace," "war crimes" and "crimes against humanity," all of which have been committed by U.S. troops in Iraq on Mr. Bush's orders as we will see below. The U.S. military understandably has refused to investigate and try alleged crimes committed by many of its soldiers in Iraq, has dismissed many cases before they ever had a fair hearing in a military court and/or has shown leniency toward those convicted by lessening their sentences. Only a small number out of hundreds of possible cases, mostly those involving misdeeds at Iraq's Abu Ghraib prison, have been fully prosecuted by reluctant military courts, but some of those have resulted in guilty verdicts with punishments ranging from fines up to 10 years in prison. Military courts are obviously not the most impartial places in which to hold the Pentagon and executive branch officials in charge of it responsible for their actions. The cases that have been prosecuted so far focus on a small number of "scapegoats" offered up by the Bush administration as palliatives to the outraged and as efforts to prevent charges from climbing up the ladder of responsibility all the way to the White House where the Nuremberg Charter says they should go. The message is, "We punished the guilty parties, the soldiers in the field who committed crimes, brought them to justice, and that's the end of it." Still, the efforts of Bush and others in his administration to escape guilt through courts-martial convictions of lower level soldiers won’t work because of the Nuremberg Charter’s sixth and seventh articles and the ICC report’s first, second, third, sixth and seventh principles. If anything, such convictions also establish Bush’s guilt, and to date, we owe U.S. military courts a debt of gratitude for reaching as many guilty verdicts as they already have. A sampling of convictions yields the following: The U.S. troop convictions for crimes in Iraq that are outlined here have been reached in U.S. military courts. Given the limitations of military courts and the possibility of bias in favor of their own troops, the number and seriousness of convictions is more than enough to implicate U.S. President George W. Bush in crimes against peace, war crimes and crimes against humanity in Iraq. So, let’s take a look at some of the criminal convictions already levied against U.S. soldiers in Iraq.
(b) WAR CRIMES: Namely, violations of the laws or customs of war including ill-treatment of prisoners of war. Charges based on the Graner case that can be brought against Bush for violating Nuremberg principles as incorporated by the U.N.'s General Assembly and according to requirements of the ILC report's Principles I, II, III and VII include: criminal violations of Principle VI (a) Crimes against peace: Waging of a war in violation of international treaties, agreements or assurances (covering treatment of prisoners of war and civilians during a war); and criminal violations of Principle VI (b) War crimes: Violations of the laws or customs of war including ill-treatment of prisoners of war. George W. Bush’s U.N. Charter infractions based on his violations of the Nuremberg Charter in this case include failure to live up to the provisions of Chapter I, Article 2, Section 2. Bush’s breaches of the U.S. Constitution resulting from this case include Article VI, Paragraphs 2 and 3. NOTE: Charges based on the rest of the cases outlined below that can be brought against George W. Bush for violating both the Nuremberg and U.N. charters and the U.S. Constitution are the same as those stemming from the Graner case (listed as number 1 above). 2. Army Staff Sergeant Ivan “Chip” Frederick pleaded guilty in military court on Wednesday, October 20, 2004 to charges of assault, committing an indecent act, conspiracy, dereliction of duty and maltreatment of detainees at Iraq’s Abu Ghraib prison during October-December, 2003. Mr. Frederick was sentenced to 8 years in military prison, received a reduction in rank to private, was ordered to forfeit pay and given a dishonorable discharge. Frederick maintained that he was following the orders of his superiors, military intelligence officials and civilian interrogators. (See- Article and News24 ) 3. Army Staff Sergeant Johnny Horne Jr. pleaded guilty in military court on Friday, December 10, 2004 to one count of murder and one count of conspiracy to commit murder for killing an unarmed, wounded teenager on August 18, 2004 in Sadr City, Iraq. Mr. Horne was sentenced to 3 years in military prison, received a reduction in rank to private, was ordered to forfeit pay and was given a dishonorable discharge. (See-Become the Media and News ) 4. Army Staff Sergeant Cardenas Alban was convicted of one count of murder and one count of conspiracy to commit murder by a military court on Friday, January 14, 2005. He was sentenced to one year in military jail and received a reduction in rank to private and a Bad Conduct discharge. The charges brought against Mr. Alban resulted from the same incident to which Army Staff Sergeant Johnny Horne Jr. pleaded guilty (see #3 above). (Go to-Soldier Jailed) 5. Army Specialist Jeremy C. Sivits pleaded guilty in military court on Wednesday, May 19, 2004 to two counts of mistreating detainees, dereliction of duty for failing to protect detainees against abuse and cruelty and forcing a prisoner into a situation in which he could be assaulted by other U.S. soldiers (conspiracy to maltreat detainees) based on his participation during 2003 in efforts at Iraq’s Abu Ghraib prison to produce “fruitful” prisoner interrogations. Mr. Sivits was sentenced to one year of confinement in a military jail, a reduction in rank to Private E-1 and a Bad Conduct Discharge. (See- Daily Star and Article ) 6. Army Specialist Armin J. Cruz pleaded guilty on Saturday, September 11, 2004 in military court to committing abuse against prisoners (maltreating and conspiring to maltreat Iraqi detainees) at Iraq’s Abu Ghraib prison during October, 2003. Mr. Cruz was sentenced to 8 months in jail, received a reduction in rank to private and was given a Bad Conduct discharge. (See- BBC and MSNBC ) 7. Marine Corps Pfc. Jeremiah J. Trefney pleaded guilty in military court on May 14, 2004 to cruelty and maltreatment of an Iraqi prisoner of war, dereliction of duty, making a false official statement, violating a lawful order and conspiracy to commit assault. He was sentenced to 8 months in prison, reduction in rank to private, forfeiture of all pay and a Bad Conduct discharge for participating in the abuse of a prisoner during early April, 2004 at a temporary holding camp located in Mamudiyah, Iraq. (See-Marine Corps Times) 8. On Monday, May 16, 2005, Army Specialist Sabrina Harman was convicted by a military court on one count of dereliction of duty, one count of conspiracy and four counts of mistreating detainees at Iraq’s Abu Ghraib prison during October-December, 2003. Ms. Harman was sentenced to six months in jail and will receive a reduction in rank to private and a Bad Conduct discharge after finishing her sentence. (See- ABC News; BBC and USA Today; NY Times) 9. Army Sergeant Javal Davis pleaded guilty on Tuesday, February 1, 2005 before a military court to charges of dereliction of duty, battery and making a false official statement to Army investigators for his role during November, 2003 in the Abu Ghraib prison scandal. On Thursday, February 3, 2004 Mr. Davis was sentenced to 6 months in jail and a Bad Conduct discharge. (See-ABC and News Observer; BBC News) 10. On Wednesday, November 10, 2004, Marine Corps Major Clarke Paulus was found guilty by a military court of maltreatment of detainees and dereliction of duty due to the June, 2003 death of an Iraqi prisoner at Camp Whitehorse, a prison camp run by Marines. Mr. Paulus was sentenced to be dismissed from the Marine Corps. (See-Article; Fox News) 11. A military court found Army Captain Rogelio “Roger” Maynulet guilty on Thursday, March 31, 2005 of assault with intent to commit voluntary manslaughter in the May 21, 2004 shooting death of a wounded unarmed Iraqi. The court sentenced Mr. Maynulet to dismissal from the Army. (See CBS News; Washington Post) 12. Marine Pfc. Andrew J. Sting pleaded guilty in military court on May 14, 2004 to giving electric shocks to an Iraqi prisoner he was guarding. Mr. Sting's defense was that he was following his sergeant's orders. Offenses involved in his guilty plea were assault, cruelty, maltreatment, dereliction of duty and conspiracy to assault a detainee. His sentence included 8-12 months in prison, a reduction in rank to private, forfeiture of pay and a bad-conduct discharge for participating in the prisoner during early April, 2004 at a temporary holding camp located in Mamudiyah, Iraq. Mr. Sting was granted clemency during September, 2004 and was returned to his base in North Carolina. (See- Independent Media; Independent Media; Marine Corps Times) 13. Marine Corps Sergeant Gary Pittman was convicted by a military court on Thursday, September 2, 2004 of dereliction of duty and abuse of prisoners during the summer of 2003 at Marine-run prison camp, Camp Whitehorse in southern Iraq. On Friday, September 3, 2004, Mr. Pittman was sentenced to 60 days hard labor and a reduction in rank to private while being allowed to remain in the Marine Corps. (See- Grunt and Nevada Appeal; NY Times) 14. Army Specialist Megan Ambuhl pleaded guilty in military court on Saturday, October 30, 2004 to one charge of dereliction of duty, meaning she accepted responsibility for not preventing or reporting detainee abuses which she witnessed at Iraq’s Abu Ghraib prison. Ms. Ambuhl was allowed to stay in the Army and received no jail time but was sentenced to a reduction in rank to private and forfeiture of half a month’s pay. (See-Washington Post and Human Rights First ) 15. Army Lt. Col. Allen B. West received a nonjudicial punishment from his commanding officer for firing a pistol close to the head of an Iraqi prisoner and threatening to kill him on August 21, 2003 in the town of Saba al Boor, near Tikrit in order to scare the prisoner into talking. On December 11, 2003, Mr. West’s commander fined him one-half month’s pay for two months or about $5,000.00. (See- World Net Daily and Washington Times ) 16. Army Colonel Thomas M. Pappas, top military intelligence officer at Abu Ghraib prison during the fall, 2003 abuse of prisoners, received a nonjudicial punishment on May 11, 2005 involving a letter of reprimand (effectively blocking any further promotions) and a one-half month’s pay fine for two months. Col. Pappas maintained that the abusive practices at Abu Ghraib originated in orders from his superiors. (See- Washington Post; NY Times; Estripes Article) 17. Brig. Gen. Janice L. Karpinski, in charge of Abu Ghraib prison during the fall of 2003, was cleared by the Army of abuse charges on Thursday, May 5, 2005 but was punished for poor performance of duty, leadership lapses and failure to properly prepare and train her brigade in Iraq. Ms. Karpinski was demoted to Colonel, issued a letter of reprimand (effectively blocking further promotions) and relieved of her command. (See- Washington Post; Find Law News) 18. Eight Navy SEALs (whose identities the Navy will not reveal due to the secret and covert nature of their work) received administrative punishments for abusing Iraqi prisoners some time between May and November, 2003 and being implicated in the death of at least one prisoner at Abu Ghraib prison during November, 2003. (See-ABC News; Guardian; China Daily; NY Times;NY Times2; USA Today)
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