International Law and 'Victor's Justice'

The Torture Council will Listen to His Master's Voice

Almost from the moment of the signing of the Geneva Conventions in 1863 there has been a problem with enforcement, and people have accused various international tribunals of victor's justice. This is remedied within nations by an independent judiciary. People who have been following the recent Emergency and elections in Pakistan are aware of how centrally important this can be to a nation, people who were aware of the transitions leading to the end of the Soviet Union were aware of the efforts made there, which were thwarted in large part by its sudden collapse. In the case of international law, an independent judiciary is embodied by the establishment of a permanent, independent, international criminal court.

Henri Dunant and Gustav Moyner, the convenors of the original Geneva conventions and the founders of the Red Cross, were not unaware of this problem. Christopher Keith Hall documents that although Moyner was originally opposed to such a court, by 1872, with the outbreak of the Franco-Prussian War, he understood its need, and wrote a document outlining how he thought it should be constructed. In essence, it prevents both an inability to enforce international law, and accusations of victor's justice.

These problems often lead American lawyers to downgrade the importance of international law. You can find discussions to that effect lacing the current online talk about the recent Torture Memo and Torture Council (how else can you describe Condi Rice's NSC principals meetings?) disclosures, for instance, here but should they? The court exists, it was created by the Rome Statute, and has more than a little international adherence. It is also true that the United States has a schizophrenic attitude towards its authority, and this is quite possibly an entry point for it to have an effect on American lawmakers.

In a well known move, the Bush administration withdrew from the ICC on May 6, 2002. To put this in perspective, the papers are currently talking about the torture memo, requested by William J. Haynes, and written by John Yoo in March 2003. The principals meetings, as exposed by ABC News last night, were convened after Abu Zubaydah proved uncooperative, he was captured in March, 2002. There is a Bybee memo signed August 1, 2002 that delineates techniques that may be "cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A's proscription against torture." Section 2340 is the implementation of the Convention Against Torture, known as the Torture Act. And there is a Yoo/Delahunty memo and a Bybee memo, both from January 2002, arguing against providing prisoners in Afghanistan the protections of the Geneva Conventions, including the common Article 3 protections (see here, p. 10). Given the timeline in the ABC piece, it is likely the Torture Council met after August 1, but who knows? Obviously ending support for Geneva began on or before January 9, less than 4 months after September 11, 2001. Support for Geneva is even worse since the passage of the Military Commissions Act of 2006, which forbids courts in the U.S. from using it as a legal authority.

That makes it pretty definitive, no? But wait! Charles Taylor of Liberia was remanded to the ICC by the request of the United Nations Security Council on March 30, 2006. The United States is trying those few Guantanamo prisoners that it is bothering to bring to trial charging them with war crimes, that is, violations of international law. The United States similarly disparages the United Nations, most famously when John Bolton implied he wouldn't be adverse to destroying the place, but used U.N. Security Council resolutions as its justification for invading Iraq. It would be a mistake to believe that the members of the Torture Council, or their boss, don't care about opinions from the ICC. Even if they don't, other nations do. 195 countries are required to apprehend those accused of war crimes. It only takes one per criminal.

And following the logic I wrote about earlier, the MCA itself is, in many respects, a violation of international law, since it attempts to change our ratification status, and since it attempts to confer immunity on torturers, and it attempts to restrict the applicability of common Article 3. Beyond that, everyone is quoting Phillippe Sands at the same time they talk of the inapplicability of international law, because they all know about the 'tap on the shoulder', as he put it. He (actually a prosecutor he interviewed) mentioned a trip wire being touched by the passage of the MCA. The trip wire in question is in the Rome Statute. It's the condition that allows the International Criminal Court to intervene: evidence that the home country will not prosecute.

International humanitarian law obviously matters a great deal to those that violate it. It would therefore likewise be a mistake to believe that the United States Congress would ignore an opinion from the ICC, especially if they found themselves implicated. History would not judge them kindly, either.

Update:

The Associated Press has now corroborated the ABC News story on the NSC Principals meetings. It is interesting that, in interviewing the "former senior intelligence official" the timeline shifts backwards a bit. I had surmised that the meetings came after the Bybee memo of August 1. Zubaydah was captured in March. The official is quoted by AP as follows: "If you looked at the timing of the meetings and the memos you'd see a correlation," the former intelligence official said. Those who attended the dozens of meetings agreed that "there'd need to be a legal opinion on the legality of these tactics" before using them on al-Qaida detainees, the former official said. That certainly looks like evidence of meetings about techniques in advance of a legal basis for the CIA, which was provided in the August 1 memo. We're moving back towards March 29, 2002. Perhaps we'll move further.

Metatorture

Meta - beyond, transcending.

When the Geneva conventions and the subsequent 1977 Protocols were written there was torture. When the U.N. Convention Against Torture (CATCIDT) was enacted, there was torture and the "act by any person which constitutes complicity or participation in torture."

When the Rome Statute, which underlies the International Criminal Court (ICC) was enacted, they codified a distinction which had long been in practice in international humanitarian law and international human rights law: between war crimes and crimes against humanity. For torture, the commission of torture as an individual is a war crime, the widespread use of torture by government officials, or the systematic use of torture by those officials (including the acts that constitute complicity or participation), are crimes against humanity.

Perhaps we need a new statute, or amendments to all the old ones, to deal with a set of new practices, which I will call metatorture, since they are beyond, and transcend 'traditional torture'. This is my own private vocabulary, note that some have called some of what I will describe, mass torture, and some have called some types of it administrative torture. But I like metatorture, as a word, because it implies more torture, and because what is done can cause someone who is already aware of the horrendous nature of torture to catch their breath, and to recoil in horror.

Creating Mass Torture

The mass torture form of metatorture is created by accessing the results of the Milgram Experiment and the Stanford Prison Experiment. There are credible allegations that this is what really happened at Abu Ghraib, and that it is widespread in American military prisons right now, which are holding around 27,000 detainees: 250+ in Guantanamo, 13,000 in Afghanistan, principally at Bagram, and 14,000 distibuted among prisons in Iraq, principally at Abu Ghraib.

The principle of mass torture is that it is done primarily not for interrogation purposes but as a form of mass intimidation. The metatorture form is created as follows: recreate the conditions of the Stanford Prison Experiment, giving orders only to those who will pose as the 'wardens' and 'superintendents'. If the conditions are primed correctly, and the encouragements are given properly, the only other requisite is that the conditions be allowed to run their course. Descent into abuse and torture are virtually inevitable.

The conditions that need to be recreated are surprisingly simple: The prisoner population must be dehumanized by reducing them with numbers instead of names, or clothing or the lack of it that makes them always visible as less than the guard population. This can easily be done in an occupation as language barriers also interrupt the communication of any empathy between the guards and the prisoners.

The guard population is likewise dehumanized by the use of uniforms or the adherence to ideology. They are performing as they are because of duty, they are not able to interact with the prisoners as human to human.

The warden role is to encourage the guard population to treat the prisoner population sternly, or in the case of Abu Ghraib, they were told to 'soften the prisoners up for interrogation'. When the guard population innovates harsh or inhumane treatments, the warden role gives positive feedback for this treatment.

The superintendent reviews the progress the warden is making and signs off on it with encouragement. If the warden is getting the desired result, then the warden is encouraged to continue. The desired result could be intelligence, it could be orderliness and discipline, it could be a compliant prison population, or it could be subservience of the population at large, in the case of mass torture.

Obviously, depending on the size of the system you set up, you may need many wardens and many superintendents. But notice that the superintendents are ordered only to encourage or demand that the warden get the desired results, and the wardens are ordered only to encourage the behavior that is "working". No orders to treat anyone inhumanely are given, no orders to torture are given, although in the case of the current administration, they did need to amend, in such a way as to vitiate, the codes of conduct that would prohibit the system from working. The lack of explicit orders are useful as deniability for the superiors, and are an intentional part of the system.

Abuse and torture are the end results almost surely (as they say in statistics). So why is this metatorture? Why is this more than a systematic torture regime?

Because it causes harm to two captive populations, not one. The prison guards are not volunteers, and they are not informed of the psychology of the system. They are, as surely as the system works, forced to degrade, and essentially forced into the role of torturers. They are essentially being forced to commit war crimes. In Geneva, and in CATCIDT, those that participate at this level are willing participants, as are those in the metatorture scenario. But in the latter, a psychological technique, a perfection of a known psychological effect, the isolation, purification, and distillation of a unique sociological drug, if you will, has been the prologue to their behavior, and that drug was administered to them and they reacted as those who receive it always react. Without their knowledge or consent.

The Nazis implementing the final solution did this to ordinary citizens, too. But they did not scientifically formulate and perfect a system to corrupt, they just corrupted. Somehow, the Nazis committed a 'second degree' form of this corruption, the psychological data necessary to premeditate the most efficient conditions for it did not exist yet. If it had, perhaps they would have. What they did was monstrous enough without the technology, one shudders to think of what would have happened had they had it.

Does that excuse the guards of the crimes they commit? In the current legal system, no, and it is arguable that it should not. The argument comes as well from the SPE, and most explicitly, from Nuremberg. It is still a crime to fail to disobey an order to commit a war crime. Even the SPE admits the possibility of heroes: people for whom the situation does not cause a descent into hell, but rather rallies the human spirit against what is happening to stop it. People who have been in the guards' situation typically are divorced from their actions. They tend not to feel remorse. And it would be difficult to know what damage has been done to their psyches and what future effects it would have on society: psychologists do not treat torturers, only torture victims.

Creating the Torture which is not Torture

The second form of metatorture is created by applying psychological perfecting techniques to traditional forms of torture in order to claim that they fail to qualify. The new techniques that emerge, distilled and perfected, have devastating impact.

One of the debates on the line between torture and 'interrogation' concentrates on pain, the others on what is a threat of death, and on lasting damage. If you wanted to subvert the bans on torture, you would come up with techniques where the pain and the damage and whether or not death was a possibility could be debated. Sound familiar?

So you modify water torture such that you have greater control. You use saran wrap and techniques to make sure the feeling of drowning is more immediate, and the reaction inevitable, and the control over the outcome is complete: the subject will not drown. Now you obtain results in less than a minute, so you can argue there is no lasting pain. No one drowns so you can argue that there has been no threat of death. As for the lasting psychological damage, the American public has been far too well primed by constantly complaining about emotional trauma lawsuits and the like, they will believe a derision of lasting psychological damage, and this last requirement can be dealt with as politics.

With the most insidious torture method yet devised, the advanced sensory deprivation techniques, this mantra has been chanted and perfected well beyond the more sensational waterboarding. The subject is cut off from their sense of sight by goggles, sound by earphones, and sometimes touch as well by being suspended in warm water. Usually within a matter of hours, such a person begins to hallucinate, and a pyschotic collapse is imminent in less than a few days. The subject becomes dependent by a process similar to infant bonding on the person who represents the end to, or opposite from, this insensate state.

Such techniques have been practiced on detainees for periods exceeding a month. No one dies, and in this case, the person's personality and psyche are destroyed but there is not a lot of literature that can definitively assess how much pain ever occured as it was going on. Such techniques are explicitly banned by the CATCIDT, and were by the Torture Act, but current definitions derive from the U.S. comments on CATCIDT, which were put in largely to distinguish between acceptable prison punishment and torture, but are being used to create the perception that the U.S. has never accepted as torture anything that doesn't cause extreme, prolonged pain.

So metatorture then. In the first form, a system that creates systematic torture. In the second, a form of torture that destroys the mind without crossing an artificial line. Both are the products of technology newer than the laws against torture. They should be punished more harshly than their predecessors.

Justifying the Enablers

Three Assertions of Innocence

Since the ACLU obtained the 81 page memo by John Yoo, then of the Office of Legal Counsel at the Justice Department, written for the Pentagon, there have been a number of reactions. One of them has been to find reasons to assert that Mr. Yoo is not guilty of particpating in a system of torture.

There are three main parts to this reasoning, all of them highly suspect. The first is that it was only his opinion, and therefore is protected as free speech. Depending on your point of view, that free speech is unimpeachable because it is his first amendment right, or, if you are the University of California at Berkeley, because the tenure system protects professors from actions taken based on the opinions they have expressed, another form of free speech protection.

The second is that he was just an office worker, no matter how highly positioned, in the Justice Department, and therefore was only doing his job, and wrote the memo because his superiors requested it. It is true that it was requested by the Department of Defense, by their General Counsel William J. Haynes, to be specific. In this version, he was asked for a document he produced it, if there is any accountability, it should be of those requesting the memo, or of his boss, or ultimately the President.

The third reason asserts that John Yoo wrote legal opinions. He did not actually torture anyone, nor did he specifically order anyone to torture. In fact, so this explanation goes, no one did. It has already been proven in court that the persons perpetrating abuse at Abu Ghraib did not do the specific acts they were charged with on orders that specified those acts, they improvised. At very least, it should not implicate someone who wrote a memo.


Wannsee and Another Document

In fact, all three assertions could also be made of nearly all participants of a well known meeting to produce an enabling document. The first assertion, of free speech, can be made of almost any document that expresses a point of view. It can always be claimed that authors of documents have free speech rights. The problem is that some documents do not merely express opinions. Whether or not they consist of opinions, their purpose is to lay down a plan, or to create a justification, or to enable future action.

The second assertion, that the document was produced by workers, people who write documents in offices that are produced for superiors, or asked for by superiors. The other famous document was produced for a head of state, by people well described as bureaucrats. They were not at the top of the power pyramid, they produced their document for superiors, who ultimately gave the orders to implement what the document advocated.

The third assertion, that the creators of the document didn't actually carry out the deeds that are abhorrent, and for which the document is the genesis and the enabler. Nor were those who created that document undoubtedly those who gave direct orders to those who carried out atrocities. They were creating a framework, they did not actually bloody their own hands. Those who did have actual blood on their hands may very well have made up many of the actions they took, and undoubtedly did.

It follows then that those authors were no more guilty than Mr. Yoo. But it is decidedly not the case that those who created a document at Wannsee in 1942 were absolved of the results of their document, nor should they have been. The arguments in favor of letting John Yoo off work very well for that document too, and this shows their fallacious nature.

For the document produced at Wannsee was overseen by chief bureaucrat Adolf Eichmann, and it was titled The Final Solution to the Jewish Problem. History is clear on whether or not those who produce documents that enable atrocities are innocent, expressing free speech, only bureaucrats, who didn't actually do anything. History says they are not. History says they are active participants, that those who wield the mighty pens are as guilty as those who wield the swords.

Is Immunity Immune?

Speaking of enabling, or maybe Catch-22: Can a grant of immunity grant immunity to itself? Has the Congress written Epimenides the Cretan into the Military Commissions Act of 2006?

Here is the logic: In 1949, President Truman signed, and the Congress ratified, the Geneva Conventions. Subsequently, the 1977 protocols were signed and ratified, and in 1994, the Convention Against Torture and Cruel, Inhuman, and Degrading Treatment, the latter subject to only two stipulations: One that limited the rights of the torture victim to sue, and one that stipulated that the United States already banned cruel, inhuman, and degrading treatment under the 5th, 8th, and 14th amendments.

The United States does not consider international law like the Geneva Conventions and the CATCIDT to be self implementing, it passes laws to implement the treaties after ratifying them. It therefore passed the War Crimes Act, implementing Geneva, and the Torture Act implementing CATCIDT.

But both the Geneva Conventions, and the CATCIDT, require investigation of, pursuit, apprehension, prosecution and punishment for the crimes they detail. And both have clauses that purposely limit the ability of parties to withdraw from the treaties to avoid the penalties of grave breaches, war crimes, or crimes against humanity. In a very real sense, it is illegal to disregard these laws, it is illegal to fail to prosecute and punish, and it is illegal to withdraw from the treaties without public notice, and in the case of CATCIDT, that notice may not be given when there is a charge pending.

When the Congress passed, and the President signed, the Military Commissions Act of 2006, they made substantial changes to the War Crimes Act, and they completely redefined the definitions of torture, cruel, inhuman, and degrading treatment as it applies to "illegal enemy combatants". As many have pointed out, because they also made habeas corpus, and the right to a speedy trial, unavailable to people who were being held as illegal enemy combatants, they essentially made these changes for everyone. That's a piece of logic on the side: If you have no right to a speedy trial, and no right to demand an appearance in court to dispute your detainment, when do you get the opportunity to argue that you are not an alien?

But it could be argued that changing our compliance with Geneva, and changing our compliance with CATCIDT, coupled with a grant of immunity for war crimes back to November 26, 1997, does exactly what the treaties prohibit: revokes our original ratification of these treaties in the face of pending action. If a country is allowed to reinterpret its ratification of a treaty without the necessary notification, then the notification clauses are meaningless. And if a country that knows it is in violation of the treaties is allowed to immunize those who have violated them, then the clauses requiring prosecution and punishment likewise have no meaning. This cannot be what these international laws intended, nor what the United States meant when it signed and ratified them.

So the act of granting retroactive immunity, by this logic, is enabling to war crimes, or protecting their perpetrators from prosecution, and is therefore a violation of international law. That would put the United States Congress in violation of Article 129 of the Geneva Conventions:

Art 129. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favorable than those provided by Article 105 and those following of the present Convention.

The War Crimes Act is supposed to implement the Geneva Conventions and 1977 Protocols. If it is amended to grant immunity to the Geneva Conventions and 1977 Protocols, the act of amending it violates the Geneva Conventions and 1977 Protocols. Likewise, amending the Torture Act to protect violators of the Convention Against Torture violates the Convention Against Torture. So it would seem that Congress created an act, in the MCA of 2006, that immunizes itself, a perfect Catch-22.

Congress should familiarize itself with Epimenides the Cretan, who said, "All Cretans are Liars." Or perhaps it should open the floor to discussion of the fact that in a certain town there is a barber who shaves every man who does not shave himself. Because if We The People ever find out what it tried to enable, Congress is going to need all the immunity it can get.