Human Rights Hypocrisy

Last week, the President of the United Nations General Assembly announced a new proposal to revamp the UN Human Rights Commission and rename it the UN Human Rights Council. The product of months of negotiations between the 53 member nations of the Commission, the proposal will be voted on by the General Assembly next month. The United States, however, immediately denounced the compromise. John Bolton, US ambassador to the United Nations, said it has too many "deficiencies" and should be renegotiated.

Bolton stated last month, "Membership on the Commission by some of the world's most notorious human rights abusers mocks the legitimacy of the Commission and the United Nations itself." But Bolton was not referring to the United States, which invaded Iraq in violation of the UN Charter, killed thousands of innocent Iraqis, and tortured and abused prisoners in Iraq, Afghanistan and Guantánamo Bay.

The United States and Western European countries have criticized the Human Rights Commission because it has elected countries such as Sudan, Zimbabwe, Libya and Cuba, whom the Western nations have accused of human rights violations.

In a press release issued last week, the Permanent Mission of Cuba to the United Nations said, "If any government does not deserve to be part of the Council, it is the one who represents a State that benefited from the slavery and the transatlantic slave trade, that kept a 'constructive commitment' to extend the existence of the apartheid regime, that protects and bestows impunity to the human rights violations perpetrated by the Israeli occupation of Palestine and other Arab territories, that supported the bloody military dictatorships of Latin America, that today tortures and murders in the name of liberty which the majority of its own citizens do not benefit from, that fails to meet its commitments and obligations of official development assistance to the Third World, and that threatens and attacks the Southern countries."

The United States objects to the new proposal's commitment to the protection of economic, social and cultural rights. The refusal to enshrine rights such as employment, education, food, housing, and health care in US law is the reason the United States has not ratified the International Covenant on Economic, Social and Cultural Rights. Since the Reagan administration, there has been a policy to define human rights in terms of civil and political rights, but to dismiss economic, social and cultural rights as akin to social welfare, or socialism.

Indeed, the United States' inhumane policy toward Cuba exemplifies this dichotomy. The US government criticizes civil and political rights in Cuba while disregarding Cubans' superior access to universal housing, health care, education and public accommodations and its guarantee of paid maternity leave and equal pay rates.

The US also opposes the new proposal's affirmation that the right to development is on par with the rights to peace and security, and human rights, as the three pillars of the United Nations system. Last year, the United States and Australia were the only nations to vote against a General Assembly resolution on the Right to Development, which was passed by a vote of 48 to 2, with 2 abstentions. It reaffirmed the principle that the right to development is an "inalienable human right."

A member of the Commission since it was formed in 1947, the US was furious when it was voted off the Commission in 2001. Many countries were angry with the United States for its policies in the Middle East, and its opposition to the International Criminal Court, the treaty to ban land mines, the Kyoto Protocol, and making AIDS drugs available to everyone.

It was only after behind the scenes negotiations among Western nations that the US was able to manipulate its way back onto the Commission one year later.

The new proposal provides that members of the Council will serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms. This is objectionable to the United States, which wants to guarantee a spot on the Council for the five permanent members of the Security Council - France, Britain, Russia, China and the US.

The United States also wants open voting on Council membership instead of the secret ballot elections that the proposal calls for. The US would like to make it easier to blackmail smaller nations for their votes.

In his statement last week, Bolton also said, "We consider the United States a champion of human rights. It is a fundamental and bedrock tenet upon which our country was founded. Thus, when the United States falls short of the high standards we set for ourselves, we move swiftly and decisively to vigorously prosecute offenders who are US citizens in our courts." Yet only a few low-ranking soldiers and a chief warrant officer have been prosecuted for the widespread and systematic torture and abuse of prisoners in US custody.

Ironically, two weeks ago, the UN Human Rights Commission issued a report decrying the torture and cruel, inhuman and degrading treatment of prisoners by United States forces at Guantánamo. It called on the US government to ensure that "all persons found to have perpetrated, ordered, tolerated or condoned such practices, up to the highest level of military and political command, are brought to justice." The United States, which has refused to allow UN or other human rights experts to speak directly with the Guantánamo prisoners, rejected the Commission's report.

The US has a history of scuttling Commission investigations when they focus on the United States as a human rights violator.

Last spring, the United States refused a request by Jean Ziegler, the UN Human Rights Commission's Special Rapporteur on the Right to Food, to meet with State Department officials to discuss the impact the US embargo on Cuba was having on the Cuban people's right to food. Last fall, Ziegler reported that both Coalition Forces and the insurgents in Iraq "have adopted the cutting of food and water supplies to cities under attack." Ziegler noted that "the starvation of civilians as a method of warfare is prohibited in both international and non-international armed conflict," citing the Protocols to the Geneva Conventions.

The United States likewise pressured the Commission to withdraw Professor Cherif Bassiouni, the Commission's Independent Expert on Human Rights in Afghanistan, from his mission after he issued a report critical of the US. Professor Bassiouni accused United States troops of breaking into homes, arbitrarily arresting residents and torturing detainees. He also alleged that US-led forces had committed "sexual abuse, beatings, torture and use of force resulting in death." He wrote, "When these forces directly engage in practices that violate ... international human rights and international humanitarian law, they undermine the national project of establishing a legal basis for the use of force."

"The United States and the coalition forces consider themselves above and beyond the reach of the law," Professor Bassiouni told Amy Goodman of Democracy Now! "They feel that human rights don't apply to them, the international conventions don't apply to them, nobody can ask them what they're doing, and nobody can hold them accountable."

Yale Law School Dean Harold Koh concurs. He wrote, "In the cathedral of human rights, the US is more like a flying buttress than a pillar - choosing to stand outside the international structure supporting the international human rights system but without being willing to subject its own conduct to the scrutiny of the system."

The composition of the new Council will not likely differ significantly from the old Commission. "That reality," according to Phyllis Bennis, a senior fellow at the Institute for Policy Studies, "reflects the failure of the John Bolton-led US effort to impose an entirely new human rights infrastructure on the United Nations, one that would privilege those countries given a seal of approval by Washington to serve on the Council, with others, especially those in bad graces in Washington, prohibited from serving."

In the next few weeks, we can expect some strong arm-twisting by the United States to scuttle the new proposal.

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Bush and the Bomb

The 1945 nuclear bombings of Hiroshima and Nagasaki resulted in the deaths of more than 200,000 people, mostly civilians. Many tens of thousands more have been afflicted with radiation-induced cancers, immunologic disorders, birth defects, and lasting psychological trauma.

For years, the United States government engaged in a massive cover-up of the devastation wreaked by its use of the atom bomb in Japan. (See Hiroshima Cover-Up Exposed.) The claim has persisted that the use of the bomb ended the war and saved lives. Yet, historians have now put the lie to the assertion that the Japanese would not have surrendered but for the nuclear attacks on Hiroshima and Nagasaki. (See Hiroshima after Sixty Years: The Debate Continues.)

The United States dropped the A-bomb to test it on live targets, and to demonstrate the overwhelming superiority of America. The Cold War had begun.

General Dwight D. Eisenhower said, "It wasn't necessary to hit them with that awful thing." General Curtis LeMay declared that the atomic bomb had nothing to do with Japan's surrender. And Admiral William D. Leahy stated angrily that the "use of this barbarous weapon at Hiroshima and Nagasaki was of no material assistance in our war against Japan. The Japanese were already defeated and ready to surrender ... in being the first to use it, we ... adopted an ethical standard common to the barbarians of the Dark Ages."

The Charter of the Nuremberg Tribunal defines ill-treatment of a civilian population as a war crime, and inhumane acts committed against a civilian population as crimes against humanity.

The US atomic bombings of Hiroshima and Nagasaki were war crimes and crimes against humanity. Former Defense Secretary Robert McNamara admitted in the film Fog of War that if we had lost the war, he and LeMay would have been war criminals. Since only the vanquished Nazis and Japanese were tried and punished, the US officials who ordered these crimes were never brought to justice.

After World War II, the new enemy of the United States became the Soviet Union, and there ensued a nuclear arms race unprecedented in human history.

Concern about the possibility of another, more devastating Hiroshima led to the 1970 Nuclear Non-Proliferation Treaty. When the United States ratified this treaty, it became part of the supreme law of the land under the Supremacy Clause of the Constitution. The treaty commits the countries that possess nuclear weapons (Britain, China, France, Russia and the US) to negotiate their elimination.

To gain the agreement of the non-nuclear-weapon parties to the treaty’s extension in 1995, the US made promises in connection with a UN Security Council resolution calling for what are known as negative security assurances, in which the US promised not to use nuclear weapons against non-nuclear-weapon parties unless they attack the US while in alliance with another nuclear-weapon country.

The Anti-Ballistic Missile (ABM) Treaty was concluded between the United States and the Soviet Union in 1972. This treaty was supposed to maintain the credibility of retaliatory deterrence based on the threat of a successful second strike, known as the policy of Mutually Assured Destruction (MAD). It also put limits on future technological development in order to preserve the "strategic balance" between the US and the USSR.

In 1995, a commitment was made to complete negotiations on the Comprehensive Test Ban Treaty by 1996. It bans all nuclear explosions, for any purpose, warlike or peaceful.

In 1996, in response to a request by the United Nations General Assembly, the International Court of Justice (the World Court) issued an advisory opinion on the legality of the threat or use of nuclear weapons.

The World Court said that under humanitarian law, countries must "never use weapons that are incapable of distinguishing between civilian and military targets." It held that the threat or use of nuclear weapons was "generally" contrary to international law. Although the divided Court was unable to reach a definitive conclusion regarding threat or use in extreme circumstances of self-defense where the survival of a nation was at stake, the overall thrust of the decision was toward categorical illegality. It strongly implied that the doctrine of deterrence is illegal. The Court said that the radioactive effects of nuclear explosions cannot be contained in space and time. Thus, the use of nuclear weapons can never conform to the requirements of the law.

The World Court also held, unanimously, that Article VI of the Nuclear Non-Proliferation Treaty obligates all countries to "bring to a conclusion negotiations leading to nuclear disarmament in all its aspects."

So what has the United States done to fulfill its obligations under this treaty?

In 1999, the US Senate rejected the Comprehensive Test Ban Treaty.

The United States has tried to negotiate a more flexible nuclear doctrine that would include missile defenses far beyond the very limited defenses allowed by the ABM Treaty. But Bush didn't like the treaty at all.

Thus, in December 2001, the United States notified Russia of its intent to withdraw from the ABM Treaty in 6 months, based on a treaty provision that permitted withdrawal if there existed extraordinary events jeopardizing the withdrawing country's supreme interests.

The US withdrawal from the ABM Treaty is the first formal unilateral withdrawal of a major power from a nuclear arms control treaty once it has taken effect. It also spurred Russia to announce its withdrawal from its commitments under the START II arms reduction treaty.

And the US withdrawal jeopardizes the most important treaty that aims to prevent the spread of nuclear weapons and nuclear materials, the Nuclear Non-Proliferation Treaty.

In 2002, the Department of Defense presented the Nuclear Posture Review to Congress, which actually expands the range of circumstances in which the US could use nuclear weapons. This document explicitly allows the option of using nuclear weapons against non-nuclear nations. It permits pre-emptive attacks against biological and chemical weapons capabilities, and in response to "surprising military developments." It provides for the development of nuclear warheads, including earth penetrators.

Alarmingly, classified portions of the document obtained by the Los Angeles Times and the New York Times call for contingency planning for the use of nuclear weapons against Russia, China, North Korea, Iraq, Iran, Syria and Libya.

The Nuclear Posture Review sets forth policies that explicitly violate the legal obligations the US undertook when it ratified the Nuclear Non-Proliferation Treaty, and subsequently in 1995 - the prohibition on the use of nuclear weapons against non-nuclear countries, and the obligation to negotiate the cessation of the arms race at an early date.

When the Nuclear Posture Review was presented in 2002, the New York Times said: "Where the Pentagon review goes very wrong is in lowering the threshold for using nuclear weapons and in undermining the effectiveness of the Nuclear Non-Proliferation Treaty ... Nuclear weapons are not just another part of the military arsenal. They are different, and lowering the threshold for their use is reckless folly."

Yet today the United States stands ready to rapidly launch 2,000 strategic warheads with land- and submarine-based missiles. Each warhead would inflict vast heat, blast and radiation 7 to 30 times that of the Hiroshima bomb.

Although less spectacular and obvious than a mushroom cloud, the United States has used nuclear weapons - depleted uranium warheads - in Yugoslavia, Afghanistan and Iraq. Reporters from the Christian Science Monitor have measured radiation levels in downtown Baghdad that are 1,000 to 1,900 times higher than normal background radiation levels.

The US Nuclear Defense Agency condemned depleted uranium weapons as a "serious health threat." Whipped up by sandstorms and carried by trade winds, they can cause cancer, leukemia, brain damage, kidney failure and extreme birth defects for 4,500,000,000 years (See Horror of USA's Depleted Uranium in Iraq Threatens World.)

The United States is committing ongoing crimes against humanity by its use of depleted uranium.

The effects of the strategic warheads and depleted uranium "cannot be contained in space or time ... would affect health, agriculture, natural resources and demography over a very wide area ... and would be a serious danger to future generations." Thus, under the definition set by the World Court, these weapons are incapable of distinguishing between civilian and military targets, and are therefore prohibited.

By using nuclear weapons against Japan, the United States became a dangerous role model. The Bush administration persists in the use of depleted uranium, and it has announced its intention to enlarge the use of the extraordinary strategic warheads.

Bush targets countries like North Korea and Iran that may seek to develop their nuclear capabilities. Yet all the while, Bush and his administration continue to commit war crimes and crimes against humanity in Iraq and threaten to commit even greater crimes in the future with their horrific new weapons.

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Bush at the U.N.: Sugarcoating Failure

In his speech to the U.N. General Assembly Tuesday 21st September, Bush spoke of spreading ''freedom'' and ''human dignity'' in Iraq and Afghanistan. He decried dictators who "believe that suicide and torture and murder are fully justified to serve any goal they declare." He accused the terrorists of seeking to destroy the Universal Declaration of Human Rights. But he failed to say that the UDHR declares: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." And he forgot to mention the torture and murder of prisoners in U.S. custody in Iraq, Afghanistan and Guantánamo Bay, Cuba.

Bush claimed "the people of Iraq have regained sovereignty." But he omitted any reference to the 150,000 U.S. troops on the ground there, who enjoy immunity from prosecution in Iraqi courts for any crimes they might commit.

Bush maintained that the interim Iraqi government "has earned the support of every nation that believes in self-determination and desires peace." But he didn't say that the countries in the "coalition-of-the-willing" are becoming increasingly unwilling to support his failed Iraq policy, and no new countries are jumping on the occupation bandwagon.

Bush painted a rosy picture of an Iraq moving inexorably toward democratic elections in January. He didn't acknowledge, however, the admonition of former President Jimmy Carter that free elections cannot occur when people are unable to safely walk down the street, or U.N. Secretary General Kofi Annan's warning that there can be no "credible elections if the security conditions continue as they are now."

Bush didn't state that well over 1,000 Americans and as many as 30,000 Iraqis have died and continue to die in a war that his administration single-handedly fashioned from whole cloth.

Bush's speech did not refer to the utter absence of any weapons-of-mass-destruction, his rasion d'être for invading a sovereign country.

Bush overlooked the highly classified National Intelligence Estimate prepared by the government's senior analysts that paints a pessimistic assessment of the prospects for a secure and stable Iraq. He said the CIA was "just guessing" when it predicted Iraq was in danger of civil war.

And Bush didn't tell the General Assembly that Afghanistan is in chaos, with continuing violence, and the resurgence of the Taliban. He ignored the claims of several Afghan presidential candidates who seek to challenge U.S.-installed President Hamid Karzai in the upcoming "democratic" election there. They say that U.S. Ambassador Zalmay Khalilzad, affectionately known as "the Viceroy" for the power he wields over the Afghan government, is pressuring them not to run against Karzai. Both Karzai and Khalilzad are former consultants to Unocal, the company with deep oil interests in the region.

The New York Times characterized Bush's remarks to the General Assembly as "an inexplicably defiant campaign speech" that "glossed over the current dire situation in Iraq for an audience acutely aware of the true state of affairs, and scolded them for refusing to endorse the American invasion in the first place."

The delegates from 191 nations at the U.N. were nonplussed by Bush's assessment of the tragedy he's created.

In his comments preceding Bush's speech, Kofi Annan observed pointedly: "Those who seek to bestow legitimacy must themselves embody it, and those who invoke international law must themselves submit to it." For example, Annan cited "Iraqi prisoners disgracefully abused."

Annan finally took the gloves off last week when he declared the U.S. invasion of Iraq was illegal because it violated the U.N. Charter. Last September, Annan had criticized Bush's new policy of preemptive self-defense, saying it would lead to a breakdown in international order.

Likewise, former U.N. Secretary General Boutros Boutros-Ghali last week blamed the Bush administration for the rising wave of terrorism, saying its unilateral approach has fuelled civil wars around the world. Boutros-Ghali advocated Bush remove his forces from Iraq and permit Arab countries to mediate a peaceful settlement in Iraq.

Bush's appearance before the General Assembly Tuesday was followed by the kick-off of interim Prime Minister Iyad Allawi's maiden voyage to the U.S. with a soirée at the Waldorf-Astoria. Allawi, Bush's selection to lead the new "sovereign" Iraq, had close ties to the CIA. The day after a car bomb near a police station in central Baghdad killed 47 people, and gunmen killed 12 in an attack on a police minibus, Allawi provided assurances that elections would proceed in January as planned: "If, for any reason, [only] 300,000 people cannot vote because terrorists decide so," Allawi said lightly, "then frankly 300,000 people is not going to alter 25 million people voting," he told The Times of London and the Guardian.

In a page from Bush's playbook, Allawi said: "The war now in Iraq is really not only an Iraqi war, it's a war for the civilized world." He cautioned that the terrorists "will hit hard at the civilized world and in Washington and New York and London and Paris." One wonders which countries Allawi would include as part of his "civilized world."

As November 2 looms large, and Americans become increasingly wary of the quagmire that is Iraq, the Bush administration admits unabashedly that Allawi's "visit is about getting the United States away from the front line and placing Allawi as the face of the Iraqi people and the head of the effort," according to State Department spokesman Greg Sullivan.

The "transfer of sovereignty" from the U.S. to Iraq at the end of June, and the insistence that free elections can take place in January even in the face of a chaotic and bloody mess in Iraq, were carefully stage-managed by Karl Rove to favor Bush's election. By all accounts, after the U.S. election, Bush will order the carpet bombing of Fallujah, where resistance to the occupation is particularly strong. We can expect to see human carnage unparalleled in the war thus far if Bush wins another term.

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Bush the Would-Be Torturer

It's all falling into place. The Wall Street Journal has revealed that Bush's lawyers told him he can order that torture be committed with impunity. It is now official that George W. Bush is above the law.

As horror after horror emerged from Abu Ghraib prison, Americans exclaimed that this is not behavior befitting our great country. Many wondered how such atrocities could be perpetrated by United States citizens. We hoped that this was simply the behavior of a few bad apples run amok. But the dots have now been connected for us. Torture is sanctioned policy that comes from the top.

In a classified report prepared for Donald Rumsfeld in early 2003, a working group of lawyers appointed by the Defense Department's general counsel, William J. Haynes II, advised that Bush is not bound to follow United States laws that prohibit torture. Government agents who torture under orders from Bush won't be successfully prosecuted, according to the report, which is scheduled to be declassified in 2013.

Never mind that the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which makes it part of the supreme law of the land under our Constitution. Never mind that this treaty specifies that torture is never permitted, even in times of war. Never mind that Congress implemented this treaty by enacting a Torture Statute providing for 20 years, life in prison or, even the death penalty when the victim dies, for U.S. soldiers or civilians who engage in torture. And never mind that torture constitutes a war crime, for which our officials can be punished.

The Bush administration lawyers have created their own jurisprudence, which effectively holds the president is not bound to follow the law.

Extrapolating from the "necessity" defense in criminal law, Bush's lawyers counsel, in effect, that the end justifies the means. It's the proverbial ticking time bomb scenario. Torture the bastard to avert a terrorist attack. But not only is this illegal; it doesn't work. Senator John McCain says the tortured will rarely provide reliable information. This position has been affirmed by many of the prisoners released from Abu Ghraib who said they made up information to get the torture to stop.

Bush's legal experts also rehabilitated the "superior orders" defense. It didn't work for the Nazis at Nuremberg or Lt. William Calley who was prosecuted for the My Lai Massacre in Vietnam. That defense can only be asserted when the defendant was following a lawful order. An order to commit torture would be unlawful, as it would violate the Convention Against Torture and the Torture Statute.

But Haynes' team assures Bush his orders would be legal because he's the president and he's the highest law in the land (notwithstanding the Constitution, Congress and the Supreme Court). Indeed, one of the lawyers who prepared the report said the intention of the political appointees heading the working group was to realize "presidential power at its absolute apex."

The report was written in response to concerns by senior officers at the U.S. prison at Guantanamo Bay, Cuba. They advocated "a rethinking of the whole approach to defending your country when you have an enemy that does not follow the rules." Of course, we needn't follow the rules because we're the good guys.

Remember that in the course of trying to convince the American people that war with Iraq was necessary, Bush marshaled accusations that Saddam Hussein had tortured his people. But we have God - and Bush - on our side, so we're allowed to torture.

In late 2002, after the Washington Post revealed allegations of behavior of U.S. commanders that might amount to torture in Afghanistan, Human Rights Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate steps must be taken "to clarify that the use of torture is not U.S. policy." Roth reminded Bush that, "U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world." The prohibition against torture is so basic, it is considered jus cogens, and is thus binding on all countries, even if they haven't ratified the Torture Convention.

The Bush administration has been emboldened to itself engage in serious human rights violations since the horrific attacks of September 11. Cofer Black, head of the CIA Counterterrorist Center in September, 2002, testified at a joint hearing of the House and Senate intelligence committee: "This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves came off." If Bush has his way - and the most electoral votes in November - those gloves will stay off.

There are some striking contradictions between Bush administration policy in the "war on terror" and the working group's rationalizations for Bush to authorize torture. The lawyers who prepared the report admitted that the Torture Statute applies to Afghanistan.

But they declared it does not cover our actions in Guantanamo because it is within the "territorial jurisdiction of the United States, and accordingly is within the United States." Yet, the Bush administration has denied these prisoners access to U.S. courts to challenge their detention precisely by claiming that the U.S. is not sovereign over Guantanamo Bay. Either the United States has jurisdiction over Guantanamo or it doesn't. You can't have it both ways.

The Ninth Circuit Court of Appeals decided that U.S. courts do have jurisdiction to hear the Guantanamo prisoners' complaints. That court was extremely alarmed at the government's assertion during oral argument that these prisoners would have no judicial recourse even if they were claiming the government subjected them to acts of torture. The Ninth Circuit said: "To our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition." The court said this was "a position so extreme that it raises the gravest concerns under both American and international law."

By the end of June, the Supreme Court will decide whether U.S. courts have jurisdiction over the Guantanamo prisoners.

In December 2002, the United Nations General Assembly adopted a new anti-torture treaty after 10 years of negotiation. The Optional Protocol to the U.N. Convention against Torture will allow independent international and national experts to conduct regular visits to places of detentions within the States Parties, to assess the treatment of detainees and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against and 42 abstentions. The United States was joined by Nigeria, the Marshall Islands and Palau in opposing this treaty.

The legal advice which would permit Bush to order torture without sanction is consistent with his policy to ignore or denounce treaties and federal laws that don't comport with his program. Bush's unprecedented act of "unsigning" the International Criminal Court statute, and coercing Security Council resolutions and bilateral immunity agreements, are meant to ensure that neither he nor his top advisors ever become defendants in war crimes prosecutions. But under the well-established laws of the United States, Bush would be a war criminal if he authorizes torture as recommended in the classified report.

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Bush & Co. Fear Prosecution in the International Criminal Court

Overcoming Impunity with the International Criminal Court

Non-governmental organizations and individuals from sixty-six different countries have filed 499 "communications" – or complaints – with the International Criminal Court (ICC), between July 2002 and July 2003. Many of them urge the ICC to investigate the United States conduct in the war on Iraq. The primary charge is that the U.S. committed an act of aggression against Iraq. The ICC has jurisdiction to punish the crime of aggression. However, this crime remains undefined in the ICC’s statute due to disputes among the states parties about how to define it.

The United States is not a party to the ICC treaty. The Bush administration has vigorously opposed it, for fear that U.S. military officials and personnel could be subject to "politically-motivated" prosecutions for war crimes.

In an unprecedented move last year, George W. Bush removed Bill Clinton’s signature from the treaty. A few months later, Bush signed into law the American Serviceman’s Protection Act, which restricts U.S. cooperation with the ICC and prohibits military assistance to states parties to the treaty unless they sign bilateral immunity agreements with the U.S. States which sign these "Article 98" agreements – referring to the section of the ICC statute that addresses treaties between countries – pledge not to hand over U.S. nationals to the ICC. The United States has reportedly extracted these agreements from 60 countries – primarily small nations, or fragile democracies with weak economies. And the U.S. has withdrawn military aid from 35 nations that refused to be coerced into signing Article 98 agreements.

The U.S. has also demanded express immunity from ICC prosecution for American nationals. This demand delayed the passage of several peacekeeping resolutions in the Security Council. But in 2002, the Security Council capitulated when it unanimously passed Resolution 1422, which called for one year of immunity for peacekeepers from countries not party to the ICC statute, and provided that immunity could be renewed in subsequent years. The resolution was renewed in June. But this time, the U.S. was unable to achieve unanimity. France, Germany and Syria abstained from the vote.

Ninety-one countries have signed on as parties to the ICC treaty. So why has the Bush administration resisted it so vehemently? Bush’s handlers were likely prescient about how the world would react to the United States’ illegal invasion of Iraq, which was not executed with Security Council approval or in lawful self-defense. They evidently knew they and their boss might be vulnerable to prosecutions for the unlawful killing of thousands of Iraqi civilians, the destruction of the civilian infrastructure, and the use of weapons of mass destruction – cluster bombs and depleted uranium – by "coalition forces."

A Preemptive War is a War of Aggression

The United States has sought to ensure the ICC’s legal processes do not jeopardize its role as global superpower by subjecting U.S. leaders to prosecution. It has consistently resisted definitions and jurisdictional provisions that may challenge U.S. impunity for wars of aggression.

Many ICC parties favor a definition of aggression set out in 1974 in General Assembly Resolution 3314, passed in the wake of Vietnam: "Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition."

Bush’s new doctrine of "preemptive war" is a license to prosecute wars of aggression. It runs directly counter to the United Nations Charter’s prohibition on the use of armed force except in self-defense or when authorized by the Security Council. A preemptive war is a war of aggression. "Operation Iraqi Freedom" falls squarely into this category.

More than 50 years ago, Associate United States Supreme Court Justice Robert Jackson, one of the prosecutors at the Nuremberg Tribunal, wrote: "No political or economic situation can justify" the crime of aggression. He added: "If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us." An impartial international criminal tribunal is necessary to prevent "victor’s justice," where only the vanquished are subject to prosecution.

Universal Jurisdiction for International Crimes

Under the treaty, the ICC can take jurisdiction over a national of even a non-party state if he or she commits a crime in a state party’s territory. The U.S. vehemently objects to this. But it’s nothing new. Under well-established principles of international law, the core crimes prosecuted in the ICC – genocide, war crimes, crimes against humanity, and the crime of aggression – are crimes of universal jurisdiction.

That means that an alleged perpetrator can – and always could – be arrested anywhere. Indeed, the United States itself has asserted jurisdiction over foreign nationals in anti-terrorism, anti-narcotic trafficking, torture and war crimes cases. Even Resolution 1422 notes that states not party to the ICC statute "will continue to fulfill their responsibilities in their national jurisdiction in relation to international crimes."

However, the U.S. has not fulfilled its responsibilities to seek justice for international crimes. It has refused to extradite four terrorists – right-wing Cuban exiles trained by the CIA – who were convicted more than 20 years ago in Venezuela for blowing up a Cuban airliner in 1976. The U.S. similarly refuses to extradite John Hull, an American CIA operative indicted in Costa Rica for the 1984 bombing of a press conference which killed five journalists in a Nicaraguan border town. It has also refused to extradite former military officer Emmanuel Constant for trial in Haiti. Constant, who worked closely with the CIA, is believed to be responsible for the murder of more than 5000 people under the Haitian dictatorship in the early 1990s.

The ICC statute adds a special safeguard to the venerable principle of universal jurisdiction. It promises the ICC will only prosecute when the alleged perpetrator’s native country cannot, or will not, prosecute one of its nationals. The U.S. should not then fear ICC prosecution, especially in light of the Article 98 agreements it coerced – and continues to coerce – from a multitude of countries. Unfortunately, however, these agreements contain no guarantee that an American national accused of an international crime would be tried if handed over to the U.S.

In June, Belgium indicted Bush, Tony Blair, Paul Wolfowitz, John Ashcroft, and Condoleezza Rice for war crimes during the U.S.-led military campaign in Afghanistan, which predated the effective date of the ICC. The indictment was issued under Belgium’s universal jurisdiction law, which gave Belgian courts the right to judge anyone accused of war crimes, crimes against humanity or genocide, regardless of where the crimes were committed. Four Rwandans have been convicted in 2001 under Belgium’s law for their participation in the 1994 genocide which left more than one million dead.

The government of Belgium, fearing a backlash, decided to refer the cases against Blair, Bush and the others to London and Washington, making trials unlikely. Even so, Donald Rumsfeld threatened to move NATO out of Brussels unless Belgium changed its universal jurisdiction law. Belgium capitulated, and its Court of Cassation has asked for the dismissal of the war crimes indictments.

Belgium isn’t alone in indicting Bush and Blair for war crimes. In July, Greece’s Athens Bar Association filed a complaint in the ICC against the two for crimes against humanity and war crimes, this time in connection with their war on Iraq. "Operation Iraqi Freedom" began after July 2002, the effective date of the ICC.

The Sept. 11, 2001 terrorist attacks occurred before the ICC went into effect. Two years later, a Spanish judge charged Osama bin Laden and nine alleged Al Qaeda members with terrorism and murder under the principle of universal jurisdiction.

U.S. Undermines War Against Terrorism

Luis Moreno-Ocampo, the Argentine Chief Prosecutor of the ICC, has decided to begin the work of the Court by investigating possible genocide, war crimes, and crimes against humanity for the recruitment and use of children as soldiers and sex slaves in the Democratic Republic of Congo. Moreno-Ocampo’s selection of the Congo for his maiden investigation was made partly with an eye to the credibility of the ICC because, he says, "the Congo was a clear case."

But, John Shattuck, the former U.S. Assistant Secretary of State for Democracy, Human Rights and Labor, wrote in the Washington Post in September that the United States has "so far played a passive and sometimes negative role in the region." Just two days after the Security Council adopted a resolution on July 28 which imposed an embargo on "the direct or indirect supply" of arms or assistance to "armed groups and militias operating in the territory," the U.S. lifted its own embargo on weapons sales to Rwanda, which has armed its clients in eastern Congo.

Moreno-Ocampo, who has described the genocide in Congo as the "most important case since the Second World War," plans to investigate businesses in 29 countries, including the United States, suspected of financing ethnic violence in Congo.

Ironically the Chief Prosecutor, an attorney with extensive experience investigating atrocities and prosecuting officials in Argentina, says that the United States’ refusal to work with the ICC will undermine the International Criminal Court’s role in the U.S. efforts to fight terrorism.

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Assassination and Display in Iraq: The Killings of Uday and Qusai Hussein in International Law

Last week the US military assassinated Uday and Qusai Hussein in a villa in Mosul, Iraq. Hundreds of troops armed with automatic weapons, rockets, rocket-propelled grenades, and tow missiles, and dozens of vehicles and aircraft, attacked four people armed with AK-47 automatic rifles. Mustapha, the 14-year old son of Qusai, was also killed in the operation, along with another individual who was apparently a bodyguard.

The subsequent firestorm of media coverage momentarily diverted public attention from the Bush administation's failing Iraq war - its vain attempts to find any weapons of mass destruction or link between Saddam Hussein and Al Qaeda, the White House's admission that the President used false information in his State of the Union address, and the continuing deaths of American soldiers in an occupation with no end in sight.

The assassinations prompted chest-thumping and back-slapping all around. Even Senator Ted Kennedy joined British Prime Minister Tony Blair, The New York Times and the Washington Post, in congratulating Bush on the good news. Then, after reportedly reflecting on the pros and cons, Secretary of Defense Donald Rumsfeld gave the go-ahead to display the grisly photographs of the Hussein brothers' reconstructed bullet-riddled faces. The Pentagon didn’t want to appear to be “gloating,” but Rumsfeld thought the photos would convince skeptical Iraqis that Uday and Qusai were indeed dead, which would reduce the attacks on U.S. troops and encourage informants to come forward without fear of retaliation by the old regime.

Both the targeted assassinations and the photographic display violated well-established principles of international law. Targeted, or political, assassinations are extrajudicial executions. They are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. Extrajudicial executions are unlawful, even in armed conflict. In a 1998 report, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions noted that “extrajudicial executions can never be justified under any circumstances, not even in time of war.”

The International Covenant on Civil and Political Rights, a treaty ratified by the United States, prohibits the arbitrary denial of the right to life, a right so fundamental, there can be no derogation from it even in “time of public emergency which threatens the life of the nation." The U.N. General Assembly and Human Rights Commission, as well as Amnesty International, have all condemned extrajudicial executions.

After the Senate Select Committee on Intelligence disclosed in 1975 that the CIA had been involved in several murders or attempted murders of foreign leaders, President Gerald Ford issued an executive order banning assassinations. Although every succeeding president has renewed that order, the Clinton administration targeted Osama bin Laden in Afghanistan, but narrowly missed him.

In July 2001, the U.S. Ambassador to Israel denounced Israel’s policy of targeted killings, or “preemptive operations.” He said “the United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.”

Yet after September 11, former White House press secretary Ari Fleischer invited the killing of Saddam Hussein: “The cost of one bullet, if the Iraqi people take it on themselves, is substantially less” than the cost of war. Shortly thereafter, George W. Bush issued a secret directive, which authorized the CIA to target suspected terrorists for assassination when it would be impractical to capture them and when large-scale civilian casualties could be avoided. In November 2002, Bush reportedly authorized the CIA to assassinate a suspected Al Qaeda leader in Yemen. He and five traveling companions were killed in the hit, which Deputy Defense Secretary Paul Wolfowitz described as a “very successful tactical operation.”

Nearly sixty years ago, the U.S. government opposed the extrajudicial executions of Nazi officials who had committed genocide against millions of people. U.S. Supreme Court Justice Robert H. Jackson, who served as chief prosecutor at the Nuremberg War Crimes Tribunal, told President Harry Truman: “We could execute or otherwise punish [the Nazi leaders] without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would … not set easily on the American conscience or be remembered by children with pride.”

Americans should not feel pride in the public display of the gruesome photos of the assassinated Hussein brothers. The First Geneva Convention requires combatants to ensure that the dead are not despoiled. Reconstruction of their faces violates this treaty, which also provides that the dead be honorably interred; Islamic law requires immediate burial. When Iraqis displayed images of captured U.S. troops, Bush demanded that the POWs be treated humanely, and he warned that anyone who mistreated them would be tried for war crimes. But Bush didn’t complain when American media outlets featured Iraqi prisoners down on their knees, blindfolded and handcuffed. What’s good for the goose is good for the gander.

Uday and Qusai Hussein should have been arrested and tried in Iraqi courts or an international tribunal for their alleged crimes. George W. Bush cannot serve as judge, jury and executioner. This assassination creates a dangerous precedent, which could be used to justify the targeted killings of U.S. leaders. The display of the photographs may backfire and turn the brothers into martyrs who stood against the foreign invaders. It could also result in even more violence against U.S. troops.

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Terrorism or National Liberation Struggle?

The word “terrorism” is bandied about by the Bush administration as it suits its political agenda. It is important to try to define and distinguish between different forms of terrorism, and to distinguish that from national liberation struggles.
M. Kalliopi K. Koufa, the U.N. special rapporteur for the U.N. Commission on Human Rights, has differentiated between five different types of terrorism: individual or group terrorism, international state terrorism, state regime or government terror, state sponsored or state supported terrorism, and national liberation struggles for self-determination. I will apply those definitions to the September 11th attacks, the U.S.-U.K. bombing of Afghanistan and Iraq, Israel’s occupation and massacre of the Palestinians, U.S. support for Israel’s military operation and Palestine’s response to the illegal occupation.

Individual Terrorism

The September 11 attacks are examples of sub-state terrorism. Individual acts of violence and intimidation, including assassinations, bombings, sabotage and robberies, have historically been perpetrated by individuals and groups to terrorize the state and the public in order to revolutionize the masses and create social and political change. Individual terrorism has been waged by religious as well as national and political groups. The planning of the September 11 attacks has been largely attributed to Osama Bin Laden and Al Qaeda. In 1996, Bin Laden declared a jihad to drive the U.S. military forces out of the Arabian Peninsula, overthrow the Saudi government and liberate Mecca and Medina. Four years later he issued a fatwa stating it is the duty of all Muslims to kill U.S. citizens and their allies. After September 11, he said, “America and its allies are massacring us in Palestine, Chechneya, Kashmir and Iraq. The Muslims have a right to attack America in reprisal....The September 11 attacks...targeted America’s icons of military and economic power.”

Bin Laden’s other flash points were the deaths of one million innocent Iraqis as the result of sanctions and U.S. complicity in Israel’s treatment of the Palestinians. He holds the American people responsible for electing a government that manufactures arms and gives them to Israel.

The Convention of the Organisation of the Islamic Conference on Combating International Terrorism defines terrorism as follows:
Any act of violence, or threat thereof notwithstanding its motives or intentions perpetrated to carry out an individual or collective criminal plan with the aim of terrorizing people or threatening to harm them or imperiling their lives, honour, freedoms, security or rights or exposing the environment or any facility or public or private property to hazards or occupying or seizing them, or endangering a national resource, or international facilities, or threatening the stability, territorial integrity, political unity or sovereignty of independent states.

The Convention defines a “terrorist” crime as “any crime executed, started or participated in to realize a terrorist objective in any of the contracting states or against its nationals, assets or interests or foreign facilities and nationals residing in its territory punishable by its internal law.” Under the Convention, the September 11 attacks constituted individual or group acts of terrorism because they were acts of violence to carry out an individual or collective plan to terrorize and imperil the lives of people in the World Trade Center and the Pentagon.

International State Terrorism
International state terrorism is the use of force as coercive diplomacy, the unlawful use of force in violation of the U.N. Charter. A number of states have endorsed the following definition of this form of state terrorism:
. . terror inflicted on a large scale and with the most modern means on whole populations for purposes of domination or interference in their internal affairs, armed attacks perpetrated under the pretext of reprisals for preventative action by states against the sovereignty and integrity of third states, and the infiltration of terrorist groups or agents into the territory of other states.

The bombing of Afghanistan by the U.S. and the U.K., undertaken in violation of the U.N. Charter, inflicted large scale terror on the whole population. The military strikes against Afghanistan were armed attacks perpetrated under the pretext of reprisals for the September 11 attacks and the prevention of further terrorist attacks on the U.S.9 They constituted international state terrorism and violated international law.

The sanctions against Iraq, the on-going bombing of Iraq in the “no-fly zones,” and the U.S-U.K.’s war on Iraq-none of which has been sanctioned by the Security Council-are other examples of international state terrorism. The U.S. and U.K. are not responding to an imminent threat of danger from Iraq. Regime change violates the sovereignty of Iraq as guaranteed by the U.N. Charter.

State Terrorism by a Regime or Government

Traditionally, “regime” or “government” terror is conducted by organs of the state against its own population or the population of an occupied territory for the purpose of preserving a regime or suppressing challenges to its authority. It is frequently characterized by kidnapping and assassination of political opponents of the government, by the police, secret service, army or security forces; imprisonment without trial; persecution and torture; massacres of racial or religious minorities or certain social classes; internment in concentration camps; and government by fear. Regime or governmental state terrorism is legitimized by the law the state has itself established.

Israel’s 36-year occupation of the Palestinian territories, its subjugation of the Palestinian people, in a system of apartheid, and its recent brutal massacre of hundreds of Palestinians, particularly in Jenin and Nablus, constitutes regime or governmental state terrorism. The Israeli government justifies its policies as lawful self-defense against Palestinian terrorists, e.g. “suicide bombers.”

State-Sponsored/Supported Terrorism

State-sponsored or state-supported terrorism includes overt or covert assistance or support by a state to terrorist agents in order to subvert or destabilize another state or its government.12 According to Koufa, “State sponsored terrorism occurs when a government plans, aids, directs and controls terrorist operations in another country. It is sometimes called ‘surrogate warfare.’”

Congress votes annual appropriations of military aid to Israel, which was $2.76 billion dollars this year.14 The U.S. financial and military aid to Israel, with the knowledge of Israel’s brutal occupation of Palestinian lands and massacres of Palestinian civilians, constitutes state-supported terrorism. Further, the U.S. exercise of its veto in the Security Council to prevent condemnation of Israel’s actions enables Israel to continue its occupation and terror against the Palestinians. The paramilitary forces tolerated by the U.S.-supported Uribe government in Colombia also characterize this form of terrorism.
Terrorism vs. National Liberation Struggles

In her report, the U.N. rapporteur Koufa distinguished between “terrorism” and “wars of national liberation in the context of the right of self-determination,”15 which are memorialized in the 1999 Convention of the Organization of the Islamic Conference on Combating International Terrorism. That convention says:
Peoples’ struggles, including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self-determination in accordance with the principles of international law shall not be considered a terrorist crime.

Likewise, the 1998 Arab Convention on the Suppression of Terrorism excepts struggles against foreign occupation and aggression for liberation and self-determination from the definition of terrorist crime.

Two Islamic resistance movements, Hizbollah in Lebanon, and Hamas in Palestine, were born in the 1980s in reaction to Israel’s invasion, occupation and oppression of the Palestinians. They combine political action and militant jihad with humanitarian, social and educational programs.18 Hizbollah is a political party with seats in Parliament, and it continues to function in mainstream Lebanese society.19 Through suicide bombings, roadside booby traps and other violence, Hizbollah forced Israel to withdraw from the southern strip of southern Lebanon in May 2000.20 In response to Israel’s 2002 invasion of the occupied territories, Hizbollah fired rockets from Southern Lebanon into Israel.

Before 1994, Hamas restricted its guerrilla actions to political and military targets in the occupied territories. But after Baruch Goldstein, a Jewish settler, shot and killed 29 Muslim worshippers in the Mosque of the Patriarch in Hebron, Hamas took revenge with a new weapon-the suicide bomber. Israel has responded by massacring Palestinian civilians.

In September 2000, the Palestinians began a campaign of resistance (intifada), sparked by Israel’s increasing aggression in the occupied territories. The armed resistance of Palestinians to the 36-year Israeli occupation is not terrorism. It is an armed struggle for self-determination against foreign occupation, aggression and colonialism. Suicide bombers who target civilians, however, are engaging in terrorism.

Conclusion

The international community has long sought to eliminate international terrorism. It recently adopted U.N. General Assembly resolution 55/158, which reaffirmed international cooperation and stated that actions by states to combat terrorism should be conducted in conformity with principles of the charter. The U.S. must immediately ratify: the International Criminal Court statute, the International Convention for the Suppression of Terrorist Bombings, the International Convention for the Suppression of Financing Terrorism, the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and Their Destruction, and the Comprehensive Nuclear Test Ban Treaty. The United States government must stop claiming unilateral jurisdiction over individuals, organizations and nations it defines as “terrorist” or “aiding terrorists.” Instead it must work through the international legal community.

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Why the U.N. General Assembly has Authority to Speak on the War on Iraq in the Event of Security Council Stalemate

As was widely reported, the current war on Iraq followed on the heels of contentious deliberations among the members of the U.N. Security Council. The U.S. - along with the U.K. and Spain - tried to convince the Security Council to pass a resolution that would have authorized the use of armed force. But when France threatened to veto any such resolution, and their ability to get a majority seemed dicey at best, the U.S. and U.K. decided to start the war even without Security Council approval.

Nevertheless, the Security Council has not acted further, since the war began. That's not surprising: The U.S. and U.K. would doubtless veto any resolution denouncing the war, or stipulating that the U.N. or its designee would be the entity to control post-war Iraq. (Interestingly, the deadlock goes both ways: France has said it will veto any proposed resolution that would give the United States and Britain--not the U.N. - the right to govern postwar Iraq.)

Does that mean the U.N.'s hands are tied - due to the U.S.'s and U.K.'s veto powers? Perhaps surprisingly, the answer is no.

The United Nations Charter confers on the Security Council primary responsibility to keep the peace. Yet when the Security Council is unable to act, there is a procedure for the General Assembly to fulfill this role in its stead. It is contained in the "Uniting for Peace Resolution," Resolution 377.

The Uniting for Peace Resolution

Under the Uniting for Peace Resolution, within 24 hours of a stalemate in the Security Council, the General Assembly can meet to consider the matter. Either seven members of the Security Council or a majority of the members of the General Assembly can invoke the Uniting for Peace Resolution.

Once the Resolution is invoked, the General Assembly can recommend collective measures to "maintain or restore international peace and security." Thus, even in the face of insoluble disagreement in the Security Council, the General Assembly could act to urge the U.S. and its allies to stop the war - or, for example, to mandate that after the war, the U.N. should be the one to keep the peace and determine what the new Iraq should look like.

The Origins and History of the Uniting for Peace Resolution

It was, ironically, the United States itself that spearheaded the passage of the Uniting for Peace resolution, in 1950. Even more ironically, the resolution's passage was prompted by the same situation that prompted the war on Iraq: Security Council deadlock due to the exercise or threatened exercise of veto power.

After North Korea invaded South Korea, the United States was unable to obtain Security Council approval for a U.S.-led military operation to invade North Korea, because of the Soviet veto. Thus, Secretary of State Dean Acheson secured the passage of the Uniting for Peace resolution.

Then, that same year, the U.S. used the Uniting for Peace Resolution to pressure the Soviet Union to halt its invasion of Hungary, after the Soviet Union had vetoed an anti-intervention resolution in the Security Council.

Now, countries opposed to the war in Iraq could likewise use the Uniting for Peace Resolution to de-legitimize the use of armed force, and call on Bush to halt it immediately. Many nations have requested the Security Council hold an emergency meeting to urge the U.S. and its allies to stop the war. Failing that, they are advocating the General Assembly convene and take action.

Though they are certain to lose in the Security Council, due to the threat of U.S. and U.K. vetoes, nations in favor of peace may well prevail in garnering a majority in the General Assembly.

The U.S.'s Attempt to Preempt The Use of the Uniting for Peace Resolution

Meanwhile, fearful of a resolution condemning its war in Iraq, the Bush administration has mounted a preemptive campaign to prevent the General Assembly from convening. The campaign is somewhat hypocritical, as the U.S. itself has recognized, in the past, that the Uniting for Peace Resolution is a useful outlet when veto powers deadlock in the Security Council - which is just what happened here.

Nevertheless, General Assembly President Jan Kavan has commented, "The United States is putting pressure on many countries to resist [a General Assembly meeting on the issue]." Indeed, the U.S. government has sent communications to several nations, stating, "Given the current highly charged atmosphere, the United States would regard a General Assembly session on Iraq as unhelpful and as directed against the United States."

The U.S.'s campaign is unlikely to succeed in the end. Just as many Security Council members refused to put their imprimatur on a resolution that would have authorized the war before it began, myriad countries will likely defy the United States and call for a cessation of the war.

The Need to Stay With the United Nations Process, Even Now

The General Assembly, the democratic body of the U.N., deserves the opportunity to speak the truth: This is an illegal war. The General Assembly also deserves the opportunity to do what it can at this point - ensure that the U.N. administers a peaceful postwar Iraq in the interests of its citizens.

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A Double Standard on Torture: The U.S. Should Practice What We Preach

The Bush administration has a double standard on torture and human rights violations as it prosecutes the "war on terror." While trying to convince the American people in his State of the Union address that war with Iraq is necessary, President George W. Bush marshaled accusations that Saddam Hussein has tortured his people to coerce confessions. Yet in the same speech, Bush sanctioned extrajudicial killings by the United States. He said that more than 3,000 suspected terrorists had been arrested but many others had met a "different fate," so they would no longer cause us problems. Even more recently, Human Rights Watch and other human rights monitoring groups have expressed concern that the United States has actually been using torture to extract information from prisoners.

The evidence of American torture and associated inhumane conduct is especially disturbing. In December of last year, the documentary "Massacre in Afghanistan" was aired on German television, to the consternation of the U.S. State Department. It shows interviews with eyewitnesses to the torture and slaughter of 3,000 Taliban POWs, who surrendered to U.S. and allied Afghan forces. The film demonstrates the complicity of the American army command in the killing of these 3,000 men. Some of the prisoners died from suffocation while being transported in closed containers that lacked any ventilation. An Afghan soldier who traveled with the convoy reported he was ordered by an American commander to fire shots into the containers to provide air, knowing he would hit the men inside. One of the drivers recounted the fate of survivors of the transport - dumped in the desert, shot and left to be eaten by dogs, as 30 to 40 American soldiers looked on. These allegations suggest evidence of war crimes and crimes against humanity under the statute of the new International Criminal Court. It is precisely liability for actions such as these that Bush sought to escape when he endeavored to remove the United States' signature on this treaty last year.

A week after the documentary was shown in Germany, the Washington Post reported that "stress and duress" tactics were being used on captured al Qaeda operatives and Taliban commanders who are being interrogated at the CIA's secret detention center at the U.S.-occupied Bagram air base in Afghanistan. Those who remain uncooperative may be kept standing or kneeling for hours, wearing black hoods and spray-painted goggles. Some are kept in awkward, painful positions and deprived of sleep with a bombardment of lights for 24 hours. According to the Post: "While the U.S. government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary." At least two prisoners are known to have died at Bagram base, one of a pulmonary embolism, the other of a heart attack. The article quotes "Americans with direct knowledge and others who have witnessed the treatment," who reported that MPs and U.S. Army Special Forces troops beat captives and confined them in tiny rooms. Many are blindfolded, thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep. They also report prisoners being bound to stretchers with duct tape for transport. This was the treatment that U.S. citizen John Walker Lindh received, which proved the driving force behind the government's agreement to a plea bargain. Attorney General John Ashcroft sought to avoid testimony about Lindh's mistreatment while in captivity.

The Post also reported in March that the U.S. government was secretly sending terrorism suspects to countries such as Egypt and Jordan for interrogation, where they would be subjected to torture. This practice is known as "rendition." One U.S. diplomat is quoted as saying: "These sorts of movements have been occurring all the time. It allows us to get information from terrorists in a way we can't do on U.S. soil."

These actions of the U.S. government constitute direct violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights, which also proscribes torture. Both of these treaties, which the U.S. has ratified, forbid torture even in wartime. Alarmed at the Post report about torture undertaken or condoned by the U.S., Human Rights Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate steps must be taken "to clarify that the use of torture is not US policy." Roth reminded Bush that, "U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world." The prohibition against torture is so basic, it is considered jus cogens, and is thus binding on all countries, even if they haven't ratified the Torture Convention. The U.S. government's practice of torture is unjustifiable and a clear violation of international law.

The Bush administration has been emboldened to engage in serious human rights violations since the horrific attacks of September 11. Cofer Black, head of the CIA Counterterrorist Center in September, 2002, testified at a joint hearing of the House and Senate intelligence committee: "This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves came off." Indeed, in his speech, Bush said: "All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let's put it this way - they are no longer a problem to the United States and our friends and allies." Bush was likely referring to the November 2002 assassination of an alleged al Qaeda leader in Yemen by the CIA. Besides violating the Torture Convention and the jus cogens norm prohibiting torture, extrajudical killings, or summary executions, violate the Covenant on Civil and Political Rights.

Many of the detainees at Guantanamo Bay, Cuba and the U.S. mainland have also been victims of torture and other cruel, inhuman or degrading treatment by the U.S. government. In Guanatanamo, prisoners have been locked in 8-foot by 8-foot cells 24 hours a day, with one 15-minute exercise break each week. A class action filed by the Center for Constitutional Rights in April 2002, alleged that prisoners in the U.S. were beaten into unconsciousness, bloodied, pushed, kicked in the face, teeth loosened, head slammed against the wall, thumbs bent back and called terrorists. Likewise, many foreign nationals who came forward to register recently with the Immigration and Naturalization Service pursuant to Ashcroft's order, reported being forced to sleep standing up, or were hosed down before they went to sleep on cold concrete floors in frigid temperatures, according to the Los Angeles Times. These constitute violations of the Torture Convention. Amnesty International has reiterated the U.S. government's international obligations to refrain from violating the Torture Convention and the Covenant on Civil and Political Rights in Afghanistan, in Guantanamo and in the United States.

Victims of torture may have a cause of action in U.S. courts under the Alien Tort Claims Act and the Torture Victim Protection Act. There have been 27 cases brought in U.S. federal courts, in five circuits and nine districts, in which the Convention Against Torture was used successfully. Last year, a judge in Georgia awarded compensatory and punitive damages to plaintiffs, based in part on the Covenant on Civil and Political Rights, in a lawsuit brought by four Muslim refugees from Bosnia-Herzegovina against a former Bosnian Serb police officer under the Alien Tort Claims Act and Torture Victim Protection Act.

Thus far, primarily immigration lawyers and attorneys with foreign-born clients have used the Torture Convention in their litigation. There is, however, great potential to assert the treaty to support U.S. client claims as well, particularly under the Torture Victim Protection Act.

The United Nations has taken steps to make countries that engage in torture accountable to the international community. In December 2002, the U.N. General Assembly adopted a new anti-torture treaty after 10 years of negotiation. The Optional Protocol to the UN Convention against Torture will allow independent international and national experts to conduct regular visits to places of detentions within the States Parties, to assess the treatment of detainees and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against and 42 abstentions. The United States was joined by Nigeria, the Marshall Islands and Palau in opposing this treaty.

While decrying human rights violations in other countries as it furthers Washington's agenda, the Bush administration refuses to be accountable for its own transgressions. As U.S. Senior District Judge Jack Weinstein (E.D.N.Y.) wrote last year: "The United States cannot expect to reap the benefits of internationally recognized human rights - in the form of greater worldwide stability and respect for people - without being willing to adhere to them itself." During his speech, Bush celebrated "the cause of human dignity." His words, however, ring hollow.

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Bombing of Afghanistan is Illegal and Must be Stopped

In a patently illegal use of armed force, United States and British bombs are falling on the people of Afghanistan. There are already reports of thousands of dead and wounded civilians from the same kind of American “smart bombs” used in Vietnam and Yugoslavia, with the promise of myriad casualties from unexploded cluster bombs. Yet while the media bombards us with details about the tragic but few deaths from Anthrax, we are shielded from photographs of the dead and injured in Afghanistan.

Jan Ziegler, Special Rapporteur on the Right to Food to the United Nations High Commissioner for Human Rights, warned on October 15, “The bombing has to stop right now. There is a humanitarian emergency.” Relief agencies left Afghanistan in the wake of the bombing. The arrival of winter is imminent, when up to 7.5 million Afghans internally displaced by the bombing will be beyond the reach of humanitarian aid. Routing chief suspect Osama bin Laden from his cave with bombs is like finding a needle in a haystack, while mass starvation is inevitable.

The media has created a tidal wave of support in the United States for attacking the country that harbors bin Laden. In a recent Gallup/CNN/USA Today poll, 45 percent of Americans said they were willing to “torture known terrorists if they knew details about future terrorist attacks in the United States,” notwithstanding the United States’ ratification and implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the fact that the prohibition against torture is considered to be jus cogens, a preemptory or inviolable norm of international law.

Yet in spite of nearly universal global condemnation of the September 11 attacks, the bombardment of Afghanistan does not sit well in the Arab world, which is faced with pictures of wounded Afghan children and Israeli tanks rolling into Palestinian villages. Akhbar el Yom, one of the biggest newspapers in Egypt, featured a photograph of an Afghan child orphaned by the bombs. It sported the caption, “Is this baby a Taliban fighter?” And the recent killings of rebel Northern Alliance supporters by misguided American bombs, has backfired and helped build support for the Taliban. European countries are also beginning to question the wisdom of the sustained bombing campaign, which is killing civilians and failing to accomplish its goal.

Although the horror of the mass tragedy inflicted on September 11 is indisputable, the bombings of Afghanistan by the United States and the United Kingdom are illegal. This bombardment violates both international law and United States law, set forth in the United Nations Charter, a treaty ratified by the U.S. and therefore part of the supreme law of the land under the U.S. Constitution.

The U.N. Charter provides that all member states must settle their international disputes by peaceful means, and no nation can use military force except in self-defense.

The Security Council, made up of representatives from 15 countries from each region of the world, is the only body that can authorize the use of force. Only the Security Council can decide what action can be taken to maintain or restore international peace and security.

The Security Council has a series of options under the U.N. Charter: (1) it can suggest that the United States sue Afghanistan in the International Court of Justice (World Court), for harboring Osama bin Laden and others, if the evidence supports their involvement in these attacks, and seek their immediate arrests; (2) it can order interruption of economic relations, rail, sea, air, postal, telegraphic, radio communications and the severance of diplomatic relations; (3) it can establish an international tribunal to try those suspected of perpetrating the September 11th attack; (4) it can establish a U.N. force to make arrests, prevent attacks or counter aggression; and (5) as a last resort, it can authorize the application of armed force with the Military Staff Committee.

The United States has gone to the Security Council twice since the September 11 attack. The Security Council passed two resolutions, neither of which authorize the use of force. Resolutions 1368 and 1373 condemn the September 11 attacks, and order the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urging the ratification and enforcement of the international conventions against terrorism (which the U.S. has not ratified).

Although the United States has reported its bombing to the Security Council as required by article 51 of the U.N. Charter, the Security Council has not authorized and could not authorize the use of unilateral military force by the United States and the United Kingdom, or NATO, which is not a U.N. body.

The bombing of Afghanistan is not legitimate self-defense under article 51 of the Charter because: 1) the attacks in New York and Washington D.C. were criminal attacks, not “armed attacks” by another state, and 2) there was not an imminent threat of an armed attack on the U.S. after September 11, or the U.S. would not have waited three weeks before initiating its bombing campaign. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” (Caroline Case, 29 BFSP 1137-8; 30 BFSP 19-6 (1837)). This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the U.N. General Assembly.

Even if the U.S. was authorized on September 11 to use military force under article 51, that license ended once the Security Council became “seized” of the matter, which indeed it did on September 12, by passing Resolution 1368, and reaffirming in Resolution 1373 on September 28 that it “remains seized” of the matter. By bombing Afghanistan, the United States and the United Kingdom are committing acts of aggression, which is prohibited by the U.N. Charter.

The universal desire is to feel safe and secure. The only path to safety and security is through international law, not vengeance and retaliation. George W. Bush and the U.S. Congress must take the following steps:

1. immediately stop the bombing of Afghanistan and Iraq, remove all ground forces, and refrain from illegally bombing or invading any other country;


2. contribute money and people power to the U.N. peacekeeping forces;


3. refuse to further eviscerate the U.S. Bill of Rights, in the name of national security. (The Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA Patriot Act), rushed through Congress in the wake of September 11, vastly expands the government’s ability to place wiretaps, invade e-mails, and hold immigrants in indefinite detention);


4. not repeat the actions of the U.S. government when it interned Japanese-Americans during World War II, and targeted suspected communists during the McCarthy era;


5. refuse to allow the racial profiling, and INS and FBI intimidation, of Arabs, Muslims and South Asians; and


6. submit this matter to appropriate international bodies, including the United Nations and the World Court.

Since no state has executed an armed attack against the United States, this is a criminal matter that can be prosecuted in a number of possible venues. First, the United States could bring criminal prosecutions in its domestic courts for crimes against humanity and for violations for international conventions under the principle of universal jurisdiction, as Israel did when it prosecuted Adolph Eichmann for his role in the Holocaust.

Second, the Security Council could establish a special criminal tribunal for the September 11 attacks, as it did in Yugoslavia and Rwanda. The Montreal Sabotage Convention, which criminalizes the destruction of civilian aircraft while in service, is directly on point and should be used here. It was invoked during the resolution of the dispute between the United States, the United Kingdom and Libya over the handling of the Libyan suspects in the Lockerbie bombing cases. Both the United States and Afghanistan are parties to that convention.

The International Criminal Court would not be an available forum, because 1) it has not yet come into force, as it needs the ratification of 60 states and 43 have ratified thus far; 2) its jurisdiction is limited to crimes occurring after it comes into force; and 3) the United States refuses to ratify the ICC statute, because it is afraid its leaders may become defendants in war crimes prosecutions.

Former Soviet President Mikhail S. Gorbachev wrote in a recent op-ed in The New York Times, “it is now the responsibility of the world community to transform the coalition against terrorism into a coalition for a peaceful world order.” He advocates leadership by the Security Council to take concrete steps such as accelerated nuclear and chemical disarmament, and urges United States ratification of the verification protocol of the convention banning biological weapons, as well as the treaty to prohibit all nuclear testing. Gorbachev also opposes the use of the battle against terrorism “to establish control over countries or regions,” which, he maintains, would not only discredit the coalition; it would prevent its potential for building a peaceful world.

On September 29, the day originally set for anti-globalization protests, thousands marched in the streets demanding peace. Students on campuses across the country are mobilizing to oppose the bombing. Our anti-terrorism coalition must be true to its name, and aim its energy not at the innocent people of Afghanistan, but at building global peace.

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The Crime of Aggression: What Is It and Why Doesn't the U.S. Want the International Criminal Court to Punish It?

From February 26 through March 8, the Preparatory Commission for the International Criminal Court met in an attempt to forge agreement on defining and punishing the crime of aggression. The Rome Statute for the ICC, written in 1998, will take effect after ratification by 60 states. It specifies the Court will hear charges of genocide, war crimes, crimes against humanity and the crime of aggression. But the drafters, unable to agree on a definition and scheme for punishing aggression, left that to an amendment process which allows statutory changes to become operative seven years after the Statute takes effect.

The United States has sought to ensure the ICC's legal processes do not jeopardize its role as global superpower by subjecting U.S. leaders to prosecution. It has consistently resisted definitions and jurisdictional provisions that may challenge U.S. impunity for wars of aggression.

Following the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war "essentially an evil thing . . . to initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." Associate United States Supreme Court Justice Robert Jackson, one of the prosecutors at the Nuremberg Tribunal, labeled the crime of aggression "the greatest menace of our times."

At Nuremberg, for the first time, individuals were held criminally accountable for waging a war of aggression. The Nuremberg Charter proclaims the principle that "individuals have international duties which transcend the national obligations of obedience imposed by individual states." The fact that a defendant acted under orders from a superior did not absolve him of responsibility, although it was considered in mitigation of punishment.

The Tokyo War Crimes Tribunal was also established following World War II, to try Japanese military and political leaders accused of committing atrocities. United States leaders who were responsible for at least two of the most heinous war crimes in the history of the world – the atomic bombings of Hiroshima and Nagasaki – as well as unrestricted submarine warfare in the Pacific and the "Great Turkey Shoot," were never brought before these two tribunals.

Only the vanquished Germans and Japanese were held accountable for their war crimes and crimes of aggression. In the words of Justice Radhabinod Pal of India, dissenting at the Tokyo Tribunal, that was "victor's justice."

The United States and its "victorious" allies are once again escaping responsibility for war crimes, this time for those committed against the people of Yugoslavia. For although several war criminals have been brought before the International Criminal Tribunal for the Former Yugoslavia, it has refused to indict NATO leaders, in spite of criticism from Human Rights Watch and Amnesty International.

Walter Rockler, another Nuremberg prosecutor, has said the United States initiated a war of aggression against Yugoslavia. He wrote in the Chicago Tribune: "The notion that humanitarian violations can be redressed with random destruction and killing by advanced technological means is inherently suspect . . . This is mere pretext for our arrogant assertion of dominance and power in defiance of international law."

More than 50 years before, in his report to the State Department, Justice Jackson wrote: "No political or economic situation can justify" the crime of aggression. He also said: "If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us." An impartial international criminal tribunal is necessary to prevent "victor's justice."

The major points of contention at the recent ICC PrepCom Working Group on Aggression centered around the definition of the crime of aggression (a legal question) and the jurisdictional authority to decide when aggression has occurred (a political question).

Many of the countries at the PrepCom advocated a definition set out in 1974 in General Assembly Resolution 3314, which was passed in the wake of Vietnam. It provides: "Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition."

The Resolution contains a non-exclusive list of actions that would constitute aggression, including the invasion or attack by armed forces of a state of the territory of another state; bombardment or use of weapons by the armed forces of a state against the territory of another state; and the blockade of ports or coasts of a state by the armed forces of another state.

Some countries, like Libya, argue that aggression should be defined to include the confiscation of property and the establishment of settlements in occupied territories. The United States continues to freeze Libyan assets and Israel persists in building settlements on the West Bank. Aggression could also conceivably be defined to outlaw preemptive strikes and the kind of naval blockade President John F. Kennedy used during the Cuban Missle Crisis.

The most controversial issue dealt with at the PrepCom was specifying which body will make the determination that a state has committed an act of aggression, if indeed such a finding is a condition precedent to individual liability. The United Nations Charter grants the Security Council primary responsibility to maintain international peace and security. Article 39 says: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression."

The dispute centers around what happens if the Security Council doesn't make a determination that an act of aggression has occurred, either because one of the five permanent members (United States, Great Britain, France, China and the Russian Federation) vetoes such a finding, or because the Security Council simply fails to act.

Many countries, including the United States, feel that that ends the matter. Others believe an independent judicial finding of individual criminal liability could be made, even if the Security Council does not find as a threshold matter that a state has engaged in aggression. They fear that a Security Council veto would effectively block the ability of the ICC to act to punish aggression.

One possibility is that, in the absence of Security Council action, the General Assembly (the U.N.'s democratic organ) could ask the International Court of Justice (the World Court established in the U.N. Charter) for an advisory opinion on whether aggression has occurred. The ICJ doesn't have authority to hear criminal charges against individuals. But if the ICJ were to find a state had engaged in aggression, the ICC prosecutor could proceed against individuals in that state for the crime of aggression.

The United States is, of course, vehemently opposed to this procedure. It wants to maintain the prerogative to exercise its Security Council veto over a finding that the United States has committed aggression.

But there is precedent for General Assembly action in the absence of direction from the Security Council. It is the "Uniting for Peace" resolution. During the Korean War, the Security Council would not mandate a U.S.-led effort into North Korea, because of the Soviet veto. Secretary of State Dean Acheson secured the passage of the Uniting for Peace resolution in 1950, to legitimize the General Assembly's authority.

The Resolution reads: "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. These recommendations can include 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."

Article 1 of the Charter of the United Nations proclaims the goal of suppressing acts of aggression "in conformity with the principles of justice and international law." The International Criminal Court, which will serve a crucial purpose in the system of international justice, should be empowered to punish those who commit the supreme crime, the crime of aggression, regardless of their country of origin.

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Lethal Law: America Must Follow International Lead, Abolish Death Penalty

"The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality," U.S. Supreme Court Justice Arthur J. Goldberg wrote in a 1976 article in the Boston Globe. Echoed by all Western democracies except the United States, Goldberg's words aptly describe the tragedy promised if Mumia Abu-Jamal is executed.

For 17 years, Jamal, a journalist and political activist, has been on death row in Pennsylvania for the murder of a police officer. Judge Albert Sabo, who presided over Jamal's trial, has presided over more trials resulting in death judgments than any other U.S. judge.

Sabo rejected all of Jamal's new evidence introduced at his 1995-96 post-conviction review hearings in state court. This new evidence included witnesses who wanted to recant their testimony implicating Jamal, who testified about police coercion of false testimony, who knew about police suppression of exonerating evidence, and who saw another man shoot the officer.

Unfortunately for Jamal, federal review of his incomplete state record is now threatened. Under the Antiterrorism and Effective Death Penalty Act of 1996, federal judges must give a presumption of correctness to state court factual findings in criminal cases.

U.S. District Court Judge William H. Yohn will decide whether to limit Jamal's federal habeas review to Sabo's state court record or whether to re-open the federal court record. The record as it stands would virtually ensure execution. Six former Philadelphia prosecutors have sworn in court documents that no accused could receive a fair trial in Sabo's court.

International treaties and customary norms have consistently condemned capital punishment. One of Jamal's 29 claims in his federal habeas corpus petition is that his death sentence is unconstitutional under evolving standards of international law.

The International Covenant on Civil and Political Rights, a major international treaty, provides, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

In the Second Optional Protocol to this covenant, the U.N. General Assembly stated, "No one within the jurisdiction of a State Party to the present protocol shall be executed." It further mandates that, "Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction."

Capital punishment is not one of the penal options available to the International Criminal Court. It likewise is not available to the International Criminal Tribunal for the Former Yugoslavia, established to prosecute serious violations of international humanitarian law in the former territory of Yugoslavia.

Significantly, in Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, the European Convention stated, "The death penalty shall be abolished. No one shall be condemned to such penalty or executed."

According to last week's report of the Organization of Security and Cooperation in Europe, capital punishment is becoming obsolete among its 54 active members, although a handful, including the United States, continues to use the death penalty.

Amnesty International reported that four of the countries that executed people in 1998 – the United States, China, Iran and Saudi Arabia – accounted for 85 percent of all executions.

The U.N. Human Rights Committee found the United States to be noncompliant with its obligations under the International Covenant on Civil and Political Rights, a treaty ratified by the United States, because of its excessive number of offenses subject to the death penalty and the number of death sentences imposed.

The United States has no uniform law on the death penalty: Each state is free to choose whether or not to execute its residents. The Inter-American Commission on Human Rights found that this discrepancy violates the American Declaration of the Rights and Duties of Man, which the United States signed.

In 1997, the U.N. Special Rapporteur reported to the U.N. Commission on Human Rights that "race, ethnic origin, and economic status appear to be the key determinants of who will, and who will not, receive a death sentence" in the United States. The commission responded by calling for an immediate moratorium on capital punishment.

Also in 1997, the American Bar Association, concerned about incompetency of counsel in death penalty cases and racial bias toward either the victim or the defendant, called for a moratorium on the death penalty.

Since 1976, 75 people in the United States have been released from death row as a result of DNA and other exonerating evidence. Several others, however, have been mistakenly executed. And, two months ago, Illinois Gov. George Ryan, dismayed that his state had proven innocent nearly as many death row inmates as it had executed, announced a moratorium on executions.

A recent study in Texas, which leads all other states in the number of people executed, showed that the current capital punishment system is an outgrowth of the racist "legacy of slavery."

The Marquis de Lafayette, speaking to the French Chamber of Deputies in 1830, years after witnessing the excesses of the French Revolution, said, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me."

The United States must fall in line with the prevailing principles of international law and the community of civilized nations by abolishing the death penalty. As Justice William Brennan wrote in his dissent in Stanford v. Kentucky, 492 U.S. 361 (1989), "the choices of governments elsewhere in the world also merit our attention as indicators whether a punishment is acceptable in a civilized society."

Treaties ratified by the United States become the law of the land under the Constitution. In honoring these treaties, norms of international law must also be followed regarding international displeasure with the death penalty. Even Justices Ruth Bader Ginsburg, Stephen Breyer and Sandra Day O'Connor have considered international law in their rulings.

For instance, in a case last October that challenged the lengthy delays in execution as cruel and unusual punishment, Justice Breyer looked to Jamaica, Zimbabwe and international treaties in arguing, albeit unsuccessfully, that the Court should give "decent respect to the views of mankind."

Like virtually all other civilized countries, the United States must take the high road and abolish the death penalty. We must choose and affirm life, not death.

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