According to Article VII of the Rome Statute, torture is considered a crime against humanity when it occurs as part of a widespread or systematic attack directed against any civilian population. In section 2 part (e) torture is defined as “the intentional infliction of severe pain or suffering whether physical or mental, upon a person in custody or under the control of the accused; except that torture shall not include pain or suffering arising from, inherent in or incidental to, lawful sanctions”.

Obama has released memos which indicate that the Bush administration authorized the use of waterboarding on Guantanamo prisoners. It was used against at least three of them. Al Jazeera reported yesterday that Obama will protect all those who thought they were waterboarding legally from prosecution.

Waterboarding is an “enhanced” interrogation technique (wonderful these euphemisms aren’t they?) in which a person is strapped to a board, his feet are raised above his head and a cloth is placed over his face. Then water is poured over the cloth (remember the person’s face is inverted so water streams into his nose and mouth). The experience of the person is that he is drowning. Worse, his experience is that he is being drowned by others and due to the restraints on his body he is powerless to struggle against his imminent death.

Can we say definitively that waterboarding would cause “severe pain and suffering either physical or mental” in the victim? Yes, I would say that is not debateable. Is waterboarding a legal sanction? No. So far it qualifies as a crime against humanity. However, importantly (and this is where the controversy lies) was the waterboarding of the three prisoners in Guantanamo part of a widespread and systematic attack against a civilian population?

The Washington post reports that congressional overseers including Pelosi, Rockefeller, Graham, Harman, Roberts and Goss were briefed on interrogation techniques and raised on objections at the time. Harman it turns out did write a letter to complain but it was classified and due to secrecy oaths she was not “free” to say anything about what she had learned. Later, when Congress was more generally informed about what was going on among those to complain were McCain, Wyden and Feinstein.

Should Obama promise immunity from prosecution? Yes, from prosecution for crimes against humanity. The fact that the guilty individuals are protected by the Justice Department which signed off on the technique means that they should be protected from prosecution for illegal acts.

But what about those who signed off? Particularly, the congressional committee of oversight?

Warrick and Eggen suggest that “to be fair” we should understand that these briefings took place in the immediate aftermath of 9/11; anxiety and aggressive impulses ran high and it was a different environment then. Certainly it was in the mob rule of public opinion (which was being deliberately fanned by the administration precisely so there would be this kind of moral laxity). However, I do think that our government officials should be held to a higher standard of moral action no matter what the current fashions or constraints. They are entrusted with holding us to our values whatever the exigencies of current crises. And no secrecy oath should be allowed to silence them when the administration is committing unlawful acts otherwise our “checks and balances” are mythical.

No author (2009)No charges over waterboarding

http://english.aljazeera.net/news/americas/2009/04/200941619836194757.html Retrieved 17th April, 2009.

Warrick, J., Eggen, D. (2007) Hill Briefed on Waterboarding in 2002.

http://www.washingtonpost.com/wp-dyn/content/article/2007/12/08/AR2007120801664_pf.html Retrieved 17th April, 2009.

Recommended Reading

May, L. (2005) Crimes Against Humanity: A Normative Account. Cambridge, UK: Cambridge University Press.

I sent this blog to the Oregonian as an OpEd submission. It was published on 18th April, 2009, slightly elaborated and under a new title: Staying True to our Checks and Balances as an OpEd on p. B5.

In my crimes against humanity class, amnesty is often debated hotly. Should people who have committed crimes against humanity be granted amnesty? Merriam Webb Dictionary defines amnesty as the granting of pardons to large groups of individuals; pardon is defined as the remission of penalties by official warrant. Truth commissions have granted amnesties in exchange for truthful testimony about harms that have been done. My students often see these amnesties as grants of impunity rather than simply immunity from prosecution.

This weekend I read that in Zimbabwe, members of Mugabe’s party ZANU-PF, fearful that his protection will not last much longer, particularly now there are powersharing agreements, are using abduction and violence to barter for amnesty.

Researching crimes against humanity I discovered a massacre of Shona farmers that I did not know about: Matabeleland in 1983. Mugabe sent his 5th Brigade to Matabeleland and killed large numbers of people. Mugabe is Shona himself as were large numbers of these soldiers so I am puzzled as to the reasons for this massacre which the website CAHZ calls “genocide”.

This distressing Youtube film of testimony by survivors gives some details:  http://www.youtube.com/watch?v=nCdVLOmQFxI

CAHZ is a site maintained by Zimbabwean human rights attorneys who acknowledge that human rights abuses have abounded throughout the history of Rhodesia and Zimbabwe.

The genocide is called Gukurahundi which CAHZ  suggests is a Shona word for “the early rain which washes away the chaff before spring”. http://www.cahz.org/genocide.html

The NYT article (http://www.nytimes.com/2009/04/10/world/africa/10zimbabwe.html) where I started to learn about the crimes against humanity in Zimbabwe suggests that while some in the opposition party are repelled by the idea of amnesties others want to simply move forward. The names are English and African respectively. I wonder again about cultural perspectives on restorative justice - is either necessarily not restorative in its intention?

And so amnesties become currency to be appropriated by the same means for which they are demanded. How tragically, cynically ironic. Surely they must be refused to those who deal this way. Surely! Otherwise impunity remains unchallenged.

Tonight I listened to an interview with some men who are in the detail which unloads “transfer cases” from planes at Dover airbase and loads them into mortuary trucks. NPR typically not covering the story of renewed access to the returning fallen for the press in a conventional or predictable way. Instead. They ask the men who have to carry the caskets of people they consider their fallen comrades to talk about how that feels.

And so we discover that soldiers have feelings.

http://www.npr.org/templates/story/story.php?storyId=102791680

Combining this with listening to Gates and his proposed budget for Pentagon spending. Important juxtaposition of stories. http://www.npr.org/templates/story/story.php?storyId=102804336
Is this going to end war? No I doubt it. But listening to the voices of the ones who send and the ones who receive in the same few minutes was interesting. Listening to all these men talking about honour and integrity.

And yet the enormity of it all is felt and expressed as one man waits to bear the body of another with his legs shaking, feeling empty, feeling “like one big heart, beating”.

I am really sorry about the visual indigestibility of my posts. I can’t figure out how to format pieces so there’s white space. I edit and edit but when I go back it’s all just one mass on the blog.

I am composing in my word processor because my browser keeps crashing. Then I am cutting and pasting. Maybe that’s it. On my other blog if I save in rtf and then paste the formatting is preserved…
I wonder if the formatting of this message will be as I have written it.Hmmm. Let’s see.

yup

OK Live and learn.

Yesterday I was blogging about Grayling’s book, half unfinished on the floor by my office door. I didn’t put it away because when I do that, I forget what I am doing. I mentioned then that there was another book I had begun at the same time. This is Gary Bass’ Stay the Hand of Vengeance. This one was gathering dust on my treadmill where I had hoped to read more. Neither book nor treadmill have been touched in some weeks.

I picked this book up because I ask a final question in my Crimes against Humanity class about Nuremberg. In a quotation I share, Overy (2003) suggests that the choice of defendants was political rather than based on criminal culpability. I ask if it matters.

Bass illuminates what is the theme in most of the answers I receive from students (which is that it does matter) by suggesting that among western nations there is an ideology of legalism which tells us that justice is served by the rule of law imposed through tribunals hearing cases of offenders who commit what have been called “supranational crimes”: crimes which are of an order that they exceed the capacity of individual countries to deal with them.

While Bass suggests that these principles are most often associated with idealist liberal democracies, he also notes that sometimes even these nations fall short of their declared beliefs in law and order:

“First, even liberal states almost never put their own soldiers at risk in order to bring war criminals to book. Second, even liberal states are more likely to seek justice for war crimes committed against their own citizens, not against innocent foreigners….The war crimes policy of liberal states is a push-and-pull of idealism and selfishness” (p. eight)

Realists, argues Bass (2000), propose that tribunals are instances of victor’s justice and no more. However, Bass refutes realism and while acknowledging that “there is no such thing as appropriate punishment for the massacres at Srebrenica or Djakovica but Bass suggests that the phrase “victor’s justice” is not helpful because of how important it is which victor it is, and what justice is upheld. In fact this may be the importance of these tribunals in terms of the performance of justice-seeking they proffer to the watching world, to the victims and to those who are defendants. Bass observes that liberal states behave entirely differently when they “take up the cause of international justice, treating their humbled foes in a way utterly divorced from the methods practiced by illiberal states” (p.18) One of the chief reasons for this is that leadership in liberal states is constrained by domestic norms which are often not designed to reckon with crimes of this enormity.

And so I see how my question in the Final spawned a whole class which would examine the conflict between Human Rights and Crime Control. For this is the cleft stick that liberal democracies fall into (and interestingly these comprise most of the key players in international affairs): if we cannot have both process and outcome then which do we prioritise? Bass argues that we sacrifice “just” outcomes for process; risking failure, acquittal and lesser sentences by holding trials – but from his introduction it is not clear whether he concludes…conclusively…that this is morally wrong.

I have only just made a start on the second chapter, a discussion of justice seeking with Napoleon. So I think I may start the book again. But not immediately. First, I want to reread Power’s chapter on Srebrenica (Power, 2002).

Reference

Bass, G.J. (2000) Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press.

Overy, R (2003).  The Nuremberg Trials: International Law in the Making. In P.Sands (Ed.) From Nuremberg to the Hague: The Future of International Criminal Justice. Cambridge, UK: Cambridge University Press. 

Power, S. (2002) A Problem from Hell: America and the Age of Genocide. New York, NY: HarperCollins.