Uniting Again For Peace: It's time to establish a war crimes tribunal in the United States

By Anisa Abd el Fattah


“Where the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly shall seize itself of the matter.” UN Resolution 377 (v).


Since the inception of the US led international war on terrorism in 2002, many questions have been raised in respect to the legality of the war, its motive, and also the tactics employed in the war. Perhaps one of the most controversial of these tactics has been the use of torture.

Arguably, one of the best definitions of torture for those interested in a legal, and not a political definition, is provided in the book, Torture, the United States and the Laws of War, written by Lionel Beehner.

In chapters 7 and 8 of the book, Beehner asks, “How is torture defined in international law?” and “Do US interrogation techniques qualify as torture?” He answers both questions saying:

Torture, as defined by Article 1 of the 1984 Convention Against Torture, is the “cruel, inhumane, or degrading” infliction of severe pain or suffering, physical or mental, on a prisoner to obtain information or a confession, or to mete out a punishment for a suspected crime. The United States ratified the treaty in 1994 but took a reservation to the convention’s addendum on the definition of torture, deferring to the U.S. Bill of Rights’ Eighth Amendment, which outlaws cruel and unusual punishment. However, the 1980 court case Filartiga v. Pena-Irala, in which a Paraguayan citizen won a suit in the U.S. Court of Appeals’ Second Circuit against a former Paraguayan police officer, established that torture falls under the realm of customary international law—thus, all countries, whether party to the Torture Convention or not, must abide. Further, the suit found that torturers become, “like the pirate and slave trader before him—hostis humani generis, an enemy of mankind.” Other agreements that outline similar definitions of torture include the Geneva Conventions and the 1966 International Covenant on Civil and Political Rights.
A leaked 2004 report by CIA inspector general John Helgerson found that several of the interrogation techniques approved by the agency may violate some of the provisions of the Convention on Torture. Human-rights groups charge the United States has tried to narrow the definition of torture to include only those interrogation techniques that result in severe harm to a bodily organ. Thus, they argue that the use of “waterboarding”—when a detainee is strapped down, forced underwater, and made to believe he is drowning—or the use of sleep deprivation would not legally fall under the definition of torture. What the Bush administration essentially did was “rip up the rulebook as far as military interrogators were concerned, telling them that the decades-old rules of the Army interrogation manual didn’t apply,” said Kenneth Roth, executive director of Human Rights Watch, in an April 14 Council event on the laws of war.

In USC: 18, Part I. Chapter 113C:2340 torture is defined somewhat differently. US law makes an exception for pain and suffering “incidental to lawful sanctions.” Other than this exception, the US law clearly incorporates the principles and meaning of torture explaining and defining exactly what torture is. !8 USC: 2340 says the following:

As used in this chapter—
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.


In 2005, the US Department of Justice (DOJ) provided its own definition of torture in a series of statements posted to its website. According to Boston Globe columnists, Jeffery Smith and Dan Eggen in the article, “US revises definition of torture” (Boston Globe, Jan. 1, 2005) “ the statements reject a previous statement that only ''organ failure, impairment of bodily function, or even death" constitute torture punishable by law.” They wrote that the DOJ definition, “also drops an attempt in the earlier version to rule that harmful acts not specifically intended to cause severe pain and suffering might be legal, and to define ''specific intent."

Without question, both domestic US law and international law prohibit the use of torture. Investigations conducted by the US military, and also statements made by various Bush administration officials, and testimony given in military courts by lower level military personnel who were charged and convicted of crimes associated with torture, make it clear that water boarding and other forms of torture have been employed by the United States, with the knowledge and approval of officials in our government. The challenge facing the international community in response to this situation is not how to determine whether or not torture took place, but how to bring those to justice who were in any way involved in these repeated violations.



Brief history of Ad Hoc Tribunals and Special Courts and the rules, laws and resolutions establishing such courts and tribunals.

In an essay entitled Courts and Tribunals, Professor Charles Garraway, a member of the faculty at the International Institute of International Law in San Remo Italy, and a contributor to The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ed. Ray Lee), observed that “ad hoc tribunals have compulsory jurisdiction with primacy over domestic state courts that are the result of national legislation that gives domestic courts jurisdiction over the Rome Statute.” He said that “the ICC only has jurisdiction when state courts with jurisdiction are either unwilling or unable to act,” and “the onus is therefore placed upon national courts to take responsibility.”

Prior to the establishment of the International Criminal Court and the adoption of its Rome Statute, the UN Security Council (UNSC) was the primary international body charged with the responsibility to adjudicate alleged war crimes under international law.

The UN Security Council was the first to establish ad hoc tribunals to try those responsible for war crimes, and crimes against humanity, and did so based strongly on the precedent set in Nuremberg.
In 1993, prior to the establishment of the ICC, the UNSC set up tribunals in Yugoslavia and Rwanda. It asserted authority to set up the tribunals under UN Charter, Article 41, which says,

"The Security Council may decide what measures not involving the use of armed force, are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."

The UNSC has also established ad hoc tribunals through treaties with national governments. These tribunals are referred to as
Special Courts. An example of a Special Court established by treaty is the Court set up in 2002 to address crimes committed during the civil war in Sierra Leone. This court was distinguished by a unique arrangement of both international and domestic judges with jurisdiction over both international and domestic crimes.

This Special Court was also distinguished by its mandate, which granted the hybrid court legitimacy based upon a precedent created by the UN in Rwanda, which allowed the UN to assert jurisdiction jointly with a national government over crimes committed in non international armed conflicts. Similar hybrid courts have subsequently been set up in East Timor, Iraq and Kosovo.

When the UNSC is unable, or unwilling to act in pursuit of justice and peace for any reason, the UN General Assembly (GA) is given authority to act to set up tribunals under a resolution known as “Uniting for Peace,” UN Resolution 377 (v). This resolution gives the UN General Assembly the right to act where there is no unanimity of the Security Council. In section “A” the resolutions states, “Where the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly shall seize itself of the matter.”

Article 11 (2) of the UN Charter allows the General Assembly to act on questions related to the maintenance of international peace and security, while Article 18 of the Charter allows the General Assembly to make recommendations with respect to maintenance of international peace and security by a 2/3rd majority vote.

Article 22 of the UN Chapter allows the General Assembly to set up subsidiary, or Special Courts, saying: “The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.”
In Ethiopia a newly elected government sought ways to bring charges for war crimes against a former regime for crimes it had allegedly committed against Ethiopians in Ethiopia. The government set up a Special Prosecutors Office to try the members of the former regime. In this instance, charges were based only on national laws.
State court assertion of jurisdiction to adjudicate alleged war crimes through the establishment of Ad Hoc Tribunals.

There appears to be sufficient applicable international and domestic law and precedent to support the establishment of ad hoc tribunals by state courts seeking to assert jurisdiction over alleged war crimes under the principles of universal jurisdiction.

In respect to domestic laws, the US Constitution in Article 6, “Debts, Supremacy, Oaths” states that “all treaties made, or which shall be made under authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary not withstanding.”

The 4th Geneva Conventions on the Protection of Civilians in Times of War Articles 146 and 147, commits all parties, “to enact any necessary legislation to provide effective penal sanctions for persons committing grave breeches,” and says,

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

The United States is party to the Geneva Conventions.
18 USC 2331: US Code-Section 2331 (1) (a), which is a federal anti-terrorism statute says the term "international terrorism" means activities that (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; the United States.

For our purposes, 18 USC 2331 implies that it is both an international law, reaching across domestic borders under the principal of universal jurisdiction, and a domestic law, the violation of which can be prosecuted in both state and federal courts, if such acts “would be a criminal violation if committed in the United States.”

The history of ad hoc war crimes tribunals and special courts and attempts to set up such courts and tribunals, as well as the various international, and domestic rules, laws and resolutions that have guided and given legitimacy and authority to such courts and tribunals, provide enough information and guidance that the establishment of such courts or tribunals in the United States is not only plausible, but might also be recommended in some instances to states interested in exerting jurisdiction over alleged war crimes under principles of universal jurisdiction.
State courts might be able to establish ad hoc tribunals hoping to assert jurisdiction to adjudicate alleged war crimes under universal jurisdiction principles established in international law. These special courts or tribunals can possibly be set up as independent courts or tribunals, or in cooperation with the United Nations Security Council, or the International Criminal Court.

In fact, it could be argued that when the ICC, the UNSC, or the UN General Assembly is unwilling or not able to act, or to assert jurisdiction in places like the United States, which has not ratified the ICC’s Rome Statute, state courts may have an obligation under the principles of universal jurisdiction to assert jurisdiction through the establishment of ad hoc tribunals and/or special courts. Ordinary courts can act on some issues such as torture, where there are US laws prohibiting torture, but in respect to other war crimes, there is legislation presently in place that gives US courts jurisdiction over war crimes, crimes against humanity, and other very serious violations of international law.

Former UN High Commissioner for Human Rights, Mary Robinson spoke to this issue in her Foreword to the Princeton Principles on Universal Jurisdiction. She wrote:

Through its cornerstone principle of complementarity, the ICC Statute highlights the fact that international prosecutions alone will never be sufficient to achieve justice and emphasizes the crucial role of national legal systems in bringing an end to impunity. The sad reality is that territorial states often fail to investigate and prosecute serious human rights abuses. The application of universal jurisdiction is therefore a crucial means of justice.

This statement, and others related to the challenge to achieve justice in case of war crimes gives rise to our question, which asks to what extent state courts might exert such universal jurisdiction.

In my opinion, the establishment of ad hoc state tribunals presents an opportunity for state courts to assert subject matter jurisdiction to adjudicate war crimes under principles of universal jurisdiction.

Fundamentals of Universal Jurisdiction

The Princeton Principles of Universal Jurisdiction

Steven W. Becker, J.D., Sullivan Fellow, International Human Rights Law Institute at De Paul University wrote in a commentary on the Princeton Principles of Universal Jurisdiction the Following:

The Princeton Principles on Universal Jurisdiction (Principles) are a progressive restatement of international law on the subject of universal jurisdiction. Leading scholars and jurists gathered twice at Princeton University to help clarify this important area of law.

The Principles contain elements of both lex lata (the law as it is) and de lege ferenda (the law as it ought to be), but they should not be understood to limit the future evolution of universal jurisdiction.

The Principles are intended to help guide national legislative bodies seeking to enact implementing legislation; judges who may be required to construe universal jurisdiction in applying domestic law or in making extradition decisions; governments that must decide whether to prosecute or extradite, or otherwise to assist in promoting international criminal accountability; and all those in civil society concerned with bringing to justice perpetrators of serious international crimes.

The Principles of Universal Jurisdiction, 1 and 2

1. For purposes of these Principles, universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.

2. Universal jurisdiction may be exercised by a competent and ordinary judicial body of any state in order to try a person duly accused of committing serious crimes under international law as specified in Principle 2(1), provided the person is present before such judicial body.

3. A state may rely on universal jurisdiction as a basis for seeking the extradition of a person accused or convicted of committing a serious crime under international law as specified in Principle 2(1), provided that it has established a prima facie case of the person’s guilt and that the person sought to be extradited will be tried or the punishment carried out in accordance with international norms and standards on the protection of human rights in the context of criminal proceedings.

4. In exercising universal jurisdiction or in relying upon universal jurisdiction as a basis for seeking extradition, a state and its judicial organs shall observe international due process norms including but not limited to those involving the rights of the accused and victims, the fairness of the proceedings, and the independence and impartiality of the judiciary (hereinafter referred to as “international due process norms”).

5. A state shall exercise universal jurisdiction in good faith and in accordance with its rights and obligations under international law.

Principle 2 — Serious Crimes under International Law

1. For purposes of these Principles, serious crimes under international law include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture.

2. The application of universal jurisdiction to the crimes listed.


Funding for U.N. War Crimes Tribunals

The U.N. Security Council has created two war crimes tribunals to investigate
and prosecute those accused of serious crimes against humanity under specified
circumstances. The International Criminal Tribunal for the Former Republic of
Yugoslavia (ICTY) was set up in 1993 to investigate and prosecute those accused of
genocide, crimes against humanity, or violations of international humanitarian law
on the territory of the former Yugoslavia since 1991. The International Criminal
Tribunal for Rwanda (ICTR) was created in November 1994 to investigate and
prosecute persons accused of genocide and other serious violations of international
humanitarian law in the territory of Rwanda between January 1 and December 31,
1994, and also Rwandan citizens suspected of such acts or violations in the territory
of neighboring states. Each tribunal is under the Council requirement and timetable
to complete its work by December 31, 2010.

The General Assembly decided that each tribunal would be financed through a
special assessed account and that U.N. member states would be assessed to contribute
to those accounts in a unique way. Half of the annual budget of each would be paid
on the basis of the scale of assessments used for contributions to the U.N. regular
budget, and half of each account would be funded on the basis of the scale of assessments used for contributions to U.N. peacekeeping operation accounts.


Conclusion

To date, not a single U.S. official has faced even a mere investigation for these breeches of international (and also domestic U.S.) law. Only very low level military personnel have been charged, and only for some of the acts of torture documented by the limited evidence that leaked. Further evidence of abuse and torture exists, but has been suppressed by the U.S. Department of Defense in an action authorized by the Congress and upheld by the Supreme Court.
In the wake of inaction by the federal government, a civil society movement across the United States is working to establish special courts or tribunals in the U.S. to bring to justice those officials involved in authorizing or conducting these illegal and heinous abuses.
Unfortunately, the US has not ratified the Rome Statute of the International Criminal Court. As a result, only domestic courts can viably assert jurisdiction to enforce international human rights standards. However, because our federal authorities have abdicated their commitments to investigate all credible allegations of torture, only our state courts remain.
For these reasons, and because it is important that we all work to end impunity, we propose the establishment of an ad hoc tribunal in the U.S. wielding authority under principles of universal jurisdiction to adjudicate international war crimes committed by U.S. defendants. To lend these ad hoc tribunals the greater legitimacy of special courts pursuing an international mandate, we seek the help of the UN General Assembly.




Appendix I.



Applicable Statutes


1). UN Charter, Chapter 4, “General Assembly”

Article 11 (2)

The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion.

www.un.org/en/documents/charter/index.shtml

2). UN Charter, Chapter 4,”Voting”
Article 18 (1) and (2)
(1) Each member of the General Assembly shall have one vote. Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1 (c) of Article 86, the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions.
www.un.org/en/documents/charter/index.shtml

(2) Decisions on other questions, including the determination of additional categories of questions to be decided by a two-thirds majority, shall be made by a majority of the members present and voting.
www.un.org/en/documents/charter/index.shtml

Article 22
The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.
www.un.org/en/documents/charter/index.shtml
3). “Uniting for Peace,” Resolution of the UN General Assembly (Res.377 (v).
"Reaffirming the importance of the exercise by the Security Council of its primary responsibility for the maintenance of international peace and security, and the duty of the permanent members to seek unanimity and to exercise restraint in the use of the veto," ...
"Recognizing in particular that such failure does not deprive the General Assembly of its rights or relieve it of its responsibilities under the Charter in regard to the maintenance of international peace and security," ...
"Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security."
http://untreaty.un.org/cod/avl/ha/ufp/ufp.html
4). Rome Statute of the International Criminal Court, Part 3, General Principles of Criminal Law
Article 22, nullum crimen sine lege

A person shall not be criminally responsible under this statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the court.

http://www.preventgenocide.org/law/icc/statute/part-a.htm

Article 23, nulla poena sine lege

A person convicted by the court may be punished only in accordance with this statute.

http://www.preventgenocide.org/law/icc/statute/part-a.htm

Article 24, non-retroactivity ratione personae

No person shall be criminally responsible under this statute prior to the entry into force of this statute.

http://www.preventgenocide.org/law/icc/statute/part-a.htm


5). US Constitution, Article 6, Debts, Supremacy, Oaths

All treaties made, or which shall be made, under authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of the state contrary, notwithstanding.

www.usconstitution.net/const.htmi#article6

6). 4th Geneva Conventions on the Protection of Civilians in Time of War

Article146.

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.

Article147.

Grave breeches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

http://www.tamilnation.org/humanrights/genevaconventions/geneva4d.htm#19


7). 18 USC 2331: US Code-Section 2331 (1) (a)

(1) the term "international terrorism" means activities that (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; the United States.

http://codes.lp.findlaw.com/uscode/18/I/113B/2331

(NAMAW) National Association of Muslim American Women Founder and Chairwoman sues US government to remove Hamas from lists of terrorist organizations.

Press Release
For Immediate Release
August 11, 2010

On Monday, August 9, 2010, Founder and Chairwoman of (NAMAW), the National Association of Muslim American Women, Anisa Abd el Fattah, filed a lawsuit in a US District Court, suing the Office of the President, the US State Department and the US Treasury. The lawsuit alleges that these agencies violated Article 6 of the US Constitution, the 1st amendment to the US Constitution and the Geneva Conventions, when they designated Hamas, the Islamic Resistance Movement in Palestine, terrorists.

In the lawsuit, Abd el Fattah requests that the terrorist designation be removed from Hamas, and that Hamas’s name be removed from any and all government lists of foreign terrorist organizations, along with its members. She also requests that all public records be made to reflect the court’s order and the change in legal status.

The government has 60 days to respond to the allegations, at which time the court will decide whether the lawsuit should go forward, or be dismissed. Abd el Fattah has requested a jury trial for the Defendants.

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