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July 02, 2006

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p.lukasiak

Don't expect that to happen anytime soon, of course. For prosecutions to occur, some federal prosecutor would have to issue an indictment. And in the Justice Department of Atty. Gen. Alberto Gonzales — who famously called the Geneva Convention "quaint" — a genuine investigation into administration violations of the War Crimes Act just ain't gonna happen.

Am I wrong in my understanding that when a nation fails to/refuses to prosecute its own war criminals, that international courts are authorized to do so? I know the US does not recognize the authority of the Hague, but that would not prevent a special tribunal (a la Nuremberg) from being convened.

I'd also like to see some comment on the Yamashita precedent -- it appears to me that much of the military chain of command -- all the way up to the CoC, would be indictable under that precedent for the abuses at Abu Ghraib and Guantanamo that went beyond "authorized" methods.

KCinDC
that Common Article 3 of the Geneva Conventions is an "in the alternative" article, applicable to all conflicts that are not otherwise covered by the Geneva Conventions.
All conflicts? Doesn't the conflict still have to be "occurring in the territory of one of the High Contracting Parties"? Would Article 3 have applied if Afghanistan were not a signatory?
Rosa Brooks

KCinDC: yes, you are correct-- but since virtually every state in the world has ratified the Geneva Conventions (for the list, see http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/party_gc/$File/Conventions%20de%20Geneve%20et%20Protocoles%20additionnels%20ENG.pdf) ), Common Article 3 is effectively applicable in all conflicts not otherwise covered by the GCs. Many scholars also argue that Common Article 3 has attained the status of customary international law, which would make it binding even upon states that are not parties to the GCs. The Bush Administration rejects that argument, but Hamdan makes it a moot point.

To P. Lukasiak: you're not entirely wrong, but it's a very complicated issue. Recent US actions (in my view) certainly violate international law, and also violate the domestic law of some foreign states. Technically, there's no inherent reason that a foreign court in such a state or a hypothetical international court could not seek to prosecute US nationals. But for a wide variety of jurisdictional reasons, political reasons, and so on, it's extremely unlikely that any international tribunal would seek to prosecute US officials for war crimes. Sorry, this is a short and conclusory answer to a question that needs a long answer, but no time right now-- perhaps this can be taken up in a future post, or maybe one of my colleagues would like to post something mroe detailed on this issue.

Don S

Unfortunately you seem to completely miss the most obvious thing about this calamitous ruling; that it has converted a treaty signed 150 years ago as a multilateral treaty into a unilateral treaty - at least as it concerns the US (though not other signatories such as Russia).

Al Queada is not and cannot be a signatory to the Geneva convention as it now stands - and has repeatedly shown it's complete unwillingness to abide by the simplest provision of Geneva.

In the name of restraining George Bush you have now (again) established the the principal that multilateral treaties can and will be extended in their effects in unpredictable and radical ways never contemplated by their signatories - to the specific detriment of the US and (for now) no other nation.

At the same time the people who advocate this monstrous action wonder why the US refuses to sign other treaties such as the conventions against land mines and the ICC treaty? Look beyond the ends of your noses, ladies and gentlemen - your actions are the direct cause of that. 'Tis obvious, except to self-styled 'experts' in international law....

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