Posts Tagged ‘Nuremberg principle’

Update: Torture, The STL in Lebanon, and Obama’s “Way Forward” in Afghanistan

Friday, July 1st, 2011

Today we introduce a new feature in The Trenchant Observer, an occasional column commenting on some of the more important events of the previous weeks in international affairs, as seen by the Observer.

This week’s stories include U.S. policy toward torture prosecutions, the Special Tribunal for Lebanon, and President Obama’s speech on “the way forward” in Afghanistan.

The United States’ Adoption of the “Due Obedience” Defense in Cases of Torture

This week the Justice Department announced that it would pursue investigations into two cases involving the deaths of detainees who were preseumably subjected to “harsh interrogation techniques” that went beyond the types of torture (as defined in the U.N. Convention Against Torture) that were permitted under the George W. Bush Administration’s “legal guidance”on “harsh interrogation technicques”.

See Eric Lichtblau and Eric Schmitt, “iU.S. Widens Inquiries Into 2 Jail Deaths,” New York Times, July 1, 2011

With that, the Justice department has ended its investigation into the broad class of cases that appear to qualify as cases involving the commission of torture under the terms of the Torture Convention, to which–it must always be stressed–the United States is a party.

By taking the position that it will not prosecute individuals for acts of torture if they were permitted under the legal guidance provided by their superiors in the Bush Administration, the United States has in effect accepted the “due obedience” argument rejected by the Nuremburg Tribunal in its trials of Nazi war criminals following World War II. This rejection of the “due obedience” defense is universally accepted in international law. It is expressly confirmed in the Torture Convention in Article 2 paragraph 3, which provides:

Article 2 (3). An order from a superior officer or a public authority may not be invoked as a justification of torture.

Other countries parties to the Torture Convention may now proceed to prosecute individuals suspected of committing torture found within their territory, without much concern that the U.S. will rquest their extradition for trial in the U.S., given the Justice Department’s position.

This signals a clear and final decision by the Obama administration not to pursue other cases of torture committed during the Bush administration.

It is significant for two reasons. First, it represents a final decision not to prosecute cases of torture by the state with primary jurisdiction, in violation of U.S. international legal obligations under the Torture Convention.

Second, it further opens the way for other states that are parties to the Torture Convention to prosecute U.S. officials for acts of torture they may have committed.

The Special Tribunal for Lebanon

The Special Tribunal for Lebanon has now issued arrest warrants and delivered the same to the Government of Lebanon for it to carry out the arrests.

In an earlier article, published on March 3, 2011, The Observer wrote:

In Lebanon, Hezbollah withdrew in January from the unity government of Sa’ad Hariri, among thinly-veiled threats of civil war, if the government of Lebanon does not break ties with the U.N. International Tribunal for Lebanon, established by the Security Council to investigate and try those responsible for the assassination of Hariri’s father, Rafiq Hariri, in 2005. Hezbollah is militating against the United Nations Security Council, international law, and the tribunal established by the Security Council because, according to reports, it fears the Tribunal will issue indictments against Hezbollah members in the coming days or weeks.

The Tribunal itself has a statute which establishes due process of law for the hearing of the charges which may be brought by the Prosecutor of the Court. Hezbollah is arguing, if effect, that the Court is biased before any judicial proceedings against its members are initiated, and without regard to the fact that they will have a chance for a fair hearing, the questioning of evidence and of witnesses, in any proceedings that might be brought. With black shirts menacing and threatening to take physical control of West Beirut and large parts of the country, Hezbollah has positioned itself as an anti-democratic force opposed to the struggle for the rule of law within Lebanon, and one opposed to the United Nations, the Security Council and international law.

Outside parties have rushed to mediate. A Saudi-Syrian initiative has now been replaced by a Qatari-Turkish mediation effort. Democracy is in the balance.

What is at stake is the authority of the U.N. Security Council, the United Nations Charter, and international law. If Hezbollah can halt the cooperation of the government of Lebanon with the STL by threats of civil war and dividing the country in two, its success would not bode well for the future of the International Criminal Court or other international tribunals that might be established in the future to deal with issues such as the Hariri assassination or issues of transitional justice.

We will now see whether Hezbollah has changed it position, and is willing to turn away from its opposition to international law, the United Nations, and the authority of the Special Tribunan for Lebanon established by the Security Council.

Democracy and the rule of law in Lebanon hang in the balance.

Obama’s “Way Forward” in Afghanistan

Recently Ambassador Carl Eikenberry completed his term as U.S. Ambassador to Afghanistan. He is being replaced by an extraordinarily skilled deplomat with deep experience in the Middle East and Southwest Asia, Ryan Crocker, the former U.S. Ambassador to Iraq.

Eikenberry’s departure should not go unnoticed, however. A former head of the coalition forces in Afghanistan before becoming Ambassador in 2009, Eikenberry headed an able diplomatic team. In 2009, toward the conclusion of President Barack Obama’s much-touted review of Afghanistan policy, cables written by Eikenberry in November, 2009 were leaked to the press.

In those cables, Ekenberry, who had a deep knowledge of Afghanistan before assuming his post as Ambassador, set forth his thinking about President Hamid Karzai’s government, the narrow limitations of the Afghanistan policy review, and his own cautionary words about the risks of proceeding with the “surge” of over 30,000 U.S. troops without a broader review.

Today, his words seem prophetic, and read more like the history of the last two years than the risk assessment they were originally intended to be.

See The Observer’s previous columns on this subject:

Eikenberry Memos Place Spotlight on U.S. Dilemmas in Afghanistan
January 27th, 2010

Commentary on Eikenberry Cables, Intelligence on Afghanistan
January 28th, 2010

On June 22, 2011, President Obama delivered an important speech to the nation setting forth his thoughts and policies on “the way forward in Afghanistan.”

Adminral Mullen, the Chairman of the Joint Chiefs of Staff, stated publicly that Obama’s new strategy of withdrawal represented more risk than he had originally been propared to accept. The military, including Petraeus, did not agree with what in all likelihood will represent an abandonment of the modified and limited counter-insurgency or COIN strategy Petraeus had led. Toby Harnden of The Telegraph reported, for example,

Senator Lindsey Graham, a Republican, said: “Petraeus loses, Biden wins. And I respect the vice president, but I think that we have undercut a strategy that was working. I think the 10,000 troops leaving year is going to make this more difficult.”

The Pentagon fought a rearguard action to prevent the surge force ordered into Afghanistan by Mr Obama in December 2009 from being pulled out by early spring next year but the withdrawal plan announced by Mr Obama, which had initially been tabled as a “compromise” by Robert Gates, the defence secretary, was not supported by Gen Petraeus.

There were reports of heated discussions during the month before Mr Obama’s prime-time speech on Wednesday night.

White House officials, aware of the soaring costs of the war and its questionable progress could be a political liability in the 2012 election, are said to have clashed with Gen Petraeus, who argued that with more time he could repeat his success in Iraq.

Harnden reported further that Obama had rejected Petraeus’ proposal to move thousands of troops from the south to the east “in order to build a counter-insurgency campaign there.” Obama also overrode Petraeus’ request to keep some of the 33,000 troops to be withdrawn by this spring until 2013.

Two military officers with close ties to Petraeus told “National Journal” that Gen Petraeus disagreed with Mr Gates’s compromise proposal and had not endorsed Mr Obama’s drawdown plan.

–Toby Harnden, “Admiral Mike Mullen says withdrawal plan is a risk,” The Telegraph, June 23, 2010

To those who have followed developments in Afghanistan over the last five to eight years, including readers of The Trenchant Observer, there was nothing new in his speech.

Rather, the Observer’s appraisal of Obama’s approach to international affairs, offered in an analysis of his failed leadership in Libya, seems to describe his Afghan policy as well:

When one looks hard at the decisions he has made, it is difficult to avoid the conclusion that the president’s primary objective is “to manage” international conflicts and affairs, as domestic affairs, in a manner that will enable him to be reelected in 2012.

Reelection is probably a goal of almost all politicians. Certainly there are exceptions. Winston Churchill comes to mind. But with Presdent Obama, it appears to be the primary and overriding goal.

It is perhaps the prism through which the president’s actions can best be understood. In this sense, Obama’s current policy towards Libya seems to be succeeding.

For commentary on the president’s speech, see

Jennifer Rubin, “Liberals give thumbs down on Obama’s speech,” Washington Post, June 23, 2011

A “conditions based” withdrawal of 10,000 troops is meaningless. The “conditions based” withdrawal of additional troops from the surge will meet its test if and when one or more provinces fall to the Taliban.

A collapse of the Afghan government is not to be ruled out. It could come at a most unexpected moment. If it were to come before the presidential elections in 2012, it could have a decisive impact on their outcome.

The folly of following a strategy in foreign policy that is decisively determined by domestic political considerations is likely to have hard lessons to teach its authors.

The Trenchant Observer

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