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War Crimes: Is Obama Looking for a Bailout?

Human rights activists protest in front of the White House. AP/Jacquelyn Martin

By Jeff Bachman

On Aug. 1, President Barack Obama stated in an oddly casual manner that “we tortured some folks.” As Obama is well aware, torture is a violation of international law. It is prohibited by the Geneva Conventions of 1949 and their Additional Protocols of 8 June 1977, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), and the International Covenant on Civil and Political Rights (ICCPR), all of which have been signed and ratified by the United States. Further, although the ICCPR allows for some derogation from some of its requirements under extraordinary circumstances, torture is an act that is never permitted.

The Torture Convention not only prohibits torture, it also requires that those who plan, authorize and perpetrate the crime be fairly and competently prosecuted. Failure to turn suspects over to be prosecuted before an appropriate body, such as the International Criminal Court, is itself a violation of the Torture Convention. As we know, Obama chose to “look forward, not backwards” rather than meet the United States’ legal obligations.

Despite Obama’s decision to block any form of accountability for Bush administration officials for their role in torturing individuals, his administration has been a staunch supporter of international justice for other countries. When she was secretary of state, Hillary Clinton stated that the U.S. would end its “hostility toward the ICC, and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice.” Stephen Rapp, Obama’s appointee as U.S. Ambassador-at-Large for War Crimes, similarly said, “[W]hen the most grave and serious crimes are committed and there is no will or capacity to prosecute at the national level, most of the countries in the world have decided, and the United States accepts, that this justice will be delivered in the International Criminal Court.” Further, the Obama administration voted at the U.N. Security Council to refer Libya and Syria to the ICC.

Why would Obama immunize the Bush administration against prosecution for committing international crimes while openly supporting the prosecution of others? Clearly, Obama believes Bush administration officials committed the war crime of torture.

Apparently, context matters. According to Obama, when Bush administration officials were planning and authorizing the torture of individuals in custody of the United States, they “did not know whether more attacks were imminent, and there was enormous pressure on our … national security teams to try to deal with this.” President Obama also warns us “not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots.”

Going by the president’s logic, when perpetrated under enormous pressure, egregious criminal behavior is morally justified and those responsible for it ought to be held above the law. Some of those who committed the crimes might even be “patriots.” Yet, his administration has not applied this logic to other countries. Moammar Gadhafi and Bashar Assad offered numerous explanations and justifications for their actions. For example, Assad recently declared to his troops, “Our war with terrorism is a war of destiny and existence where there is no space for any mildness. … We are today determined, more than any time before, to resist projects of division and colonial sedition which target Syria and the whole region.” However, that did not stop the United States from seeking their prosecution. Therefore, it’s not the explanation that matters, but rather who gives it.

According to Obama, the character of the United States “has to be measured in part not by what we do when things are easy, but what we do when things are hard.” Prosecuting Bush administration officials for torture would have been politically difficult. There’s no doubt about that, but that’s why we have laws. Laws are not meant to be enforced when it is convenient to do so; laws are meant to be objective and applied to all, equally. Unfortunately, despite the pious calls for justice elsewhere, protecting American officials against prosecution for war crimes is a time-honored tradition in the United States. Whether the crimes were committed during WWII, the Korean War, in Vietnam, Iraq or the wider “war on terror,” not a single high-level official has been held accountable for his or her crimes.

Obama’s contribution to U.S. hypocrisy does not end with the sheltering of Bush administration officials. The Obama administration is suspected of committing a number of crimes of its own, including violations of the Torture Convention. Despite multiple warnings of systematic torture in Afghan detention facilities, the administration continued to enter detainees into these facilities with full knowledge they could become victims of torture. Although some might argue this is a relatively lesser crime than directly authorizing these detainees’ torture, the end result is quite the same. Obama also allows for the continuing torture of Guantanamo Bay prisoners who are on a hunger strike. Jon Eisenberg, a human rights attorney who defends one of the prisoners, believes that when combining the varied practices associated with the force-feeding of detainees, “it all adds up to torture.”

The Obama administration has also violated international humanitarian law (IHL) through its targeted drone strike program. In the process, it has killed as many as 957 innocent Pakistanis, including upward of 200 children. In Yemen, the number of innocent people killed could be as high as 84. In its operations in Pakistan and Yemen, the administration has employed methods of attack that violate IHL’s principles of distinction and proportionality. The principle of distinction requires that attacks distinguish between civilians and combatants, and, when there is doubt, an individual must be presumed to be a civilian. The principle of proportionality requires that even unintentional loss of innocent life not be excessive in relation to the anticipated military advantage gained from launching the attack.

“Signature” strikes and attacks on first responders and funeral attendees have all failed to distinguish between civilians and combatants. These assaults have been launched without certainty that those being targeted are combatants. In some cases, strikes have been launched with full knowledge that civilians were present. These attacks have also violated the spirit of the principle of proportionality. In order to determine whether an assault is likely to result in excessive loss of innocent life, those planning the attack must first know approximately how many combatants and civilians are located within the vicinity of the planned strike.

Perhaps the next president of the United States will tell the American people that, although hundreds, if not thousands, of innocent people were killed by drones, Obama administration officials were under enormous pressure and are real patriots. Obama has paid it backward. He has given the Bush administration the gift of immunity. And, unlike paying it forward, Obama’s good deed was not the type of selfless act usually associated with that philosophy. With his administration’s own violations of the Torture Convention and international humanitarian law, Obama undoubtedly fully expects his favor to be repaid by the next inhabitant of the Oval Office.

Jeff Bachman is a professorial lecturer in human rights and the co-director of the Ethics, Peace and Global Affairs program at the School of International Service at American University. Follow him on Twitter: @jeff_bachman

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