Tuesday, October 25, 2011

VAU Afgh 101: Geneva Convention Obligations

This is part of a series of eight "virtual teachins" on U.S. war crimes in Afghanistan.

The crime of Failure of Commanding Officers to Ensure That Subordinates Understand Geneva Convention Obligations Regarding the Conduct of Warfare is described on the website for Mike Haas' book, George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes.


The U.S. Army * Marine Corps
Counterinsurgency Field Manual


Here, we will look at the specific legal basis for charging perpetrators as war criminals for Failure of Commanding Officers to Ensure That Subordinates Understand Geneva Convention Obligations Regarding the Conduct of Warfare, and list sources reporting relevant U.S. actions in Afghanistan.

Viewers of this page are strongly encouraged to contribute comments and additional sources in the comments section!

If the American public knew the nature of the crimes that its government was committing in Afghanistan, could it possibly sit still and not force an end to the war, and the removal of U.S. military, intelligence, and contractors from Afghanistan?

LEGAL BASIS
The crime of Failure of Commanding Officers to Ensure That Subordinates Understand Geneva Convention Obligations Regarding the Conduct of Warfare is described on the website for Mike Haas' book, George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes.

I recently re-read Mike Haas' book. What struck me was that the Bush Administration adopted a policy of saying, in essence, "we don't think the existing rules of war should apply anymore, and we expect that view to be ratified in American law, and we're going to just go ahead based on that expectation." In other words, they openly proceeded in a course that led to crimes of many kinds, without apology, because they thought they would be affirmed in their behavior.

One consequence has been that, unfortunately, although the United States has not changed its legal adherence to the Geneva Conventions and other laws governing war, something just as bad has happened. We have failed to prosecute the crimes that have been committed. In effect, we have affirmed by acquiescence that we accept the Bush position that the old laws no longer apply.

I hasten to add that this has all continued -- and accelerated -- under the Obama administration!

A second consequence has been that leaders and commanders failed to inform those under their command of their obligations under the Geneva Conventions. How could it be otherwise? Having asserted to the American people that the Geneva Conventions don't apply, what sense would it make to make an effort to inform the troops of their Geneva Conventions obligations?

Both of these consequences place us -- you and me -- in grave moral peril, and the two consequences are deeply entwined.

REPORTS FROM AFGHANISTAN
Secretary of Defense Donald Rumsfeld issued a memo to combatant commanders that told them that Geneva Convention obligations with respect to prisoners did not exist in Afghanistan:

Secretary of Defense Donald Rumsfeld determines that Al Qaida and Taliban detainees "are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949." However, detained individuals are to be treated "humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949." (Source: Jan 19, 2002 - Secretary of Defense Memo for Combatant Commanders, "Status of Taliban and Al Qaida".)

(The whole chain of related memos is available on The National Security Archive's webpage "The Interrogation Documents: Debating U.S. Policy and Methods.")

Readers are invited to see for themselves how this has trickled down into a very confused statement of Geneva Convention obligations in the U.S. military's Counterinsurgency Field Manual (2010). To be more specific, the part of the statement we can see is confused; significant portions of the statement (p. D-4 and D-5, the section on Detention and Interrogation) are not even available in the public preview on Google Books.

A specific example of "failure to inform" is provided in an account of U.S. DOD detention centers in Afghanistan by Scott Horton: "Facility rules and relevant Geneva Conventions rules/rights [are] not posted."

(Please supply additional specific examples in the comments section below!)

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Return to the main VAU Afghanistan 101 page.

Photo Credit: Bibliovault

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Related posts

Virtual Antiwar University (VAU) 101 focuses on eight categories of U.S. war crimes, selected from Mike Haas' book, George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes.

(See VAU Afghanistan 101: US War Crimes )













Eric Holder addressed a group of Northwestern Law students and others. Afterward one audience member summed up the speech as he left: "He pretty much said he can kill anyone he wants." The details of that speech will turn you more topsy-turvy than anything Alice experienced when she ventured through the looking glass.

(See Eric Through the Looking Glass)