As reported by Jason Linkins in the Huffington Post last week, the release of the full text of the so-called "Torture Memo" written by UC Berkeley Law professor -- and at the time, Assistant Attorney General John Yoo, has fired up even conservative commentators such as Andrew Sullivan. On the Chris Matthews show Sunday he declared that it was a sure bet that at some point point Donald Rumsfeld, David Addington and John Yoo would be indicted for war crimes.
For anyone who's traveled unembedded through Iraq since the U.S. invasion and occupation began five years ago, Sullivan's warning brings a sad smile of recognition, and a hope that his words will prove prophetic.
Even if all three men were indicted it would only be the tip of the iceberg in addressing the issue of war crimes in Iraq. In fact, the continued controversy over the torture memo and its justification of waterboarding and other illegal interrogation techniques that have been performed on at most a dozen or so detainees obscures the far more systematic war crimes that have constituted the every day reality of the occupation.
Indeed, from the first day of the invasion, war crimes have been the currency of U.S. military activities across Iraq. When I was in the country one year into the invasion I counted dozens of violations just in my travels and discussions with Iraqi doctors, activists and government personnel, which together made the occupation one giant war crime.
All were a direct a violation of the obligation of the United States and other members of the coalition under UN Security Council Resolution 1483 of May 22, 2003 to "promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future."
More broadly, the resolution also called upon the coalition to "comply fully with their obligations under international law." That is, U.S. troops were obligated to assure humane treatment for the civilian population (Article 27 of the 4th Geneva Convention) and more broadly permit life in Iraq to continue without being affected by its presence; and to ensure the public order, safety and welfare of the population, from providing for basic food and clothing needs to health care as well that are, according to Articles 68 and 69 of Protocol 1 of the Geneva Conventions (which is accepted as customary international law by the U.S. even though it hasn't signed the Protocol) "essential to the survival of the civilian population."
As an April 2004 report by Amnesty International on the human rights situation in Iraq made clear, "Under international humanitarian law, as occupying powers it was their duty to maintain and restore public order, and provide food, medical care and relief assistance. They failed in this duty, with the result that millions of Iraqis faced grave threats to their health and safety." With each death due to the decrepit health care system that could have been fixed with modest inputs of money, supplies and effort, the purposeful shooting of ambulances or the prevention or delay in the receiving of medical care as happened during the fighting in Fallujah and numerous other occasions, the U.S. crosses the line between "merely" violating international humanitarian law (specifically articles 17 through 19 of the 4th Geneva Conventions) and the commission of actual war crimes, defined as grave breaches of the 4th Geneva Convention as described in article 147 as including the "willful killing, torture or inhuman treatment, including... willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person... or willfully depriving a protected person of the rights of fair and regular trial ...taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."
In sum, whether it's been the killing of tens of thousands of civilians (if not more)) by U.S. forces to the torture of a relatively few in prisons such as Abu Ghraib, the issue has never been on of soldiers exceeding their authority. It's an issue of the commander-in-chief of the United States armed forces, along with his top commanders and officials, being responsible for a military system that, once unleashed, cannot but commit systematic violations of humanitarian law.
Indeed, only weeks after the occupation began a group of Belgian doctors who'd spent the previous year in Baghdad explained that whatever crimes might be committed by Iraqis, as the internationally recognized belligerent occupiers "the current humanitarian catastrophe is entirely and solely the responsibility of the U.S. and British authorities." Even that early into the occupation they documented violations of at least a dozen articles of the 4th Geneva Convention by Coalition forces (including articles 10, 12, 15, 21, 35, 36, 41, 45, 47, 48, 51 & 55).
What's most surprising is that given the clear evidence of such systematic war crimes and the direct line of responsibility directly up to the president for these crimes, is that the peace movement has been almost completely silent on the issue of bringing the perpetrators of these crimes to justice in a court of law. Indeed, aside from Code Pink, which has always been at the vanguard of protesting the Iraq war (in good measure because unlike most other mainstream peace groups, its leaders have actually visited Iraq since the occupation), no member of the anti-war coalition dedicated even a modicum of time or energy to pushing an agenda of indictment -- rather than the politically unimaginable impeachment -- of the president and his senior aides for the crimes committed in Iraq, or Afghanistan as well.
This has been a strategic disaster. Unless Americans are forced to confront just how systematic have been the abuses committed by our troops (for more evidence of this, see the powerful documentary The Ground Truth by Patricia Foulkrod they will continue to imagination that the main problem in Iraq is one of incompetence or bad management, when the reality is that the main problem has been that Iraq has gone more or less exactly as the Bush Administration has hoped it would: the United States, after illegally invading a UN-member state -- an act which itself was a Crime Against Humanity" as it violated the paramount law of the United Nations against "breaches of the peace and acts of aggression" -- has in good imperialist fashion, managed to turn the occupied population against each other and generate enough chaos and violence to insure that Iraq's leadership cannot ask it to leave.
Need proof of how well this strategy has worked? Recall President Bush's blithe 2005 statement that the U.S. was ready to leave "If the Iraqi government asks us to." Of course, the point is they can't ask us to leave. And we're not leaving any time soon, no matter who is the next American president, as the recent leak of the "secret plan" to ensure a long-term U.S. presence in Iraq reported in the Guardian makes clear. Of course, this plan was never a secret; the miles-long construction convoys making their way across Iraq even in the first year building the new bases told anyone who wanted to listen what the long-term U.S. plan was for Iraq.
Viewed from this perspective, the hullaballoo over the official release of the infamous "torture memo," whose main points have long been known publicly, will do nothing to change the fundamental political dynamics surrounding the unending US occupation of Iraq. They might even help perpetuate by shifting focus away from the even more damning evidence of systematic and large scale war crimes and crimes against humanity at the core of the US occupation, for which all Americans, having reelecting President Bush after ample evidence of these crimes was available for them to consider, are complicit.
It is certainly responsible for the fact that despite the ongoing disaster, recent polls indicate that a majority of Americans consider John McCain, one of the biggest boosters -- and most ill-informed commentators on -- the occupation, better equipped to handle Iraq and the larger war on terror than either of his Democratic challengers. That might seem astonishing; but if the issue is framed as one of better management or prosecution of the occupation rather than the immorality and illegality of the war and occupation itself, there is a logic to Americans assuming that a war hero can do a better job than opponents who have never been in battle.
All hope is not lost, however. If Barack Obama can make a speech about Iraq that has the same level of honesty and power as did his recent speech about race, there is a chance that he can change the perception of Democrats as being unable to manage the country through a quagmire most Americans seem instinctively to assume is not going to end any time soon. Perhaps he might even get the hundreds of thousands of people regularly into the streets to bring the troops home, in the absence of which the occupation might well continue, as McCain seems to hope, for "100 years."
In the meantime, would it be too much to ask for UC Berkeley to fire John Yoo for encouraging the commission of war crimes and gross ethical and intellectual incompetence?