Justice is (badly) Served

Salim Ahmed Hamdan has been returned to his native Yemen, ostensibly to serve the final months of the sentence he received from the military commission that convicted him of providing material support to Al Queda, but cleared him of the more serious charges of conspiracy. The majority of his 5 and a half year sentence was served at Guantanamo prior to his trial and conviction. What can one make of this? A few thoughts come to mind.

First, that US justice, even in its most adulterated form, can succeed. A man can be found guilty, or not; serve his allotted sentence, and go free. Second, that this can only happen when the accused are put to trial; sadly, Hamdan is one of only 11 detainees to get even this sort of trial; over 500 more have never received this opportunity. Lastly, it makes one pause to wonder; if a man is found innocent, years after his incarceration, how will the U.S., this supposed bastion of freedom and democracy, restore that most precious commodity that it has wrongly stolen from them - time.

Corpse-Counting

Radio Free Europe has a valuable case study on the politics behind counting war casualties. The article details the work of Mirsad Tokaca, a contro-versial Bosnian figure whose careful studies put the casualty figures of the war over Bosnia-Herzegovina at about 97,000, less than half of the official government tally of 200,000. Moreover, while most commentators act as if the 200,000 represents noncombatant dead among Bosniaks, the ethnic group against whom it is widely accepted that genocide took place, the database concludes that of the war's direct victims, almost 40,000 were civilians and 57,500 were military victims. Of the civilian victims, some 33,000 were Bosniaks, 4,100 were Serbs, and 2,200 were Croats.

Tokaca's work has taken place under the auspices of a non-governmental organization, the Research and Documentation Center, whose key report "Human Losses in Bosnia-Herzegovina 1991-1995" is also known as the "Bosnian Book of the Dead." The 200,000 estimate (beware of round numbers) was promulgated by government officials during the war and reiterated by the global media and Western scholars. By contrast:

"Tokaca's database is the only one in existence that offers the war dead sorted by name, place, and circumstances of death. Civilians, soldiers, women and children, of Serbs, Croats, and Bosnian Muslims alike. The list contains 14 separate streams of information, free of ethnic prejudice, and based on facts, not estimates.

Patrick Ball, director of the Human Rights Program at the U.S.-based Benetech Initiative, has said the "richness and depth of this database is astonishing." Ball, who has worked with nine truth commissions around the world, said the RDC database "could have a significant impact on how the history of the Bosnian war is understood."

But many in Bosnia are not happy with his findings:

"Smail Cekic is one of Tokaca's critics. The head of the Sarajevo-based Institute for the Investigation of Crimes Against Humanity and International Law, Cekic questions Tokaca's research methods and accuses him of "fogging the essence and size of the genocide" of Bosniaks. He also says Tokaca "covers up" the depth of what he calls the "demographic disaster" committed against the regional populations, believing that Tokaca should include in his statistics those members of society who would have been born to those who were killed.

I'm with Tokaca. I suspect that much of the backlash against his analysis is due to the notion that a finding of "only" 30,000+ civilian dead would undermine claims that Bosnian Muslims suffered a genocide, but the concept of genocide is based on intent, not scale. Moreover, seems to me that 30,000 dead is plenty to justify outrage. While the argument that his database is weighted toward deaths is valid, the same organization is indeed investigating "indirect victims" separately, another pathbreaking exercise. Either way, it's important to base such claims on accurate data, and incredibly difficult - politically and logistically to find that data in conflict and post-conflict zones. The courage it has taken for him to stand up for unbiased reporting in that society is an inspiration.

What Every Professional Journalist Needs to Know About War Crimes

As I perused the web this morning I was delighted to come across a resource on the laws of war at the Society of Professional Journalists' website. In describing some of the historical antecedents of the existing laws of war, they make an important and correct observation:

"There is no one 'Geneva Convention.' Like any other body of law, the laws of war have been assembled piecemeal, and are, in fact, still under construction."

Important point, since so many commentators refer to "the Geneva Convention," but there are actually four; and since the laws of war are not limited to the Geneva rules but include the Hague Conventions and various other treaties and rules from customary law.

An important source of international humanitarian law, however, seems to have been overlooked by the SPJ: the Rome Statue of the International Criminal Court. The website reads:

"It is impossible to produce a complete and up-to-date list of war crimes. Even today, weapon systems such as land mines are being debated at the highest levels of international policy."

That's not true, and nor does one sentence follow from the other. In fact, a complete and (at that time up-to-date) list of war crimes appears in Article 8 of the Rome Statute, the multilateral treaty establishing the International Criminal Court. While there are other lists, the Rome Statute is authoritative in the sense of being the product of a multilateral discussion involving most UN member states.

Whether additional things should be added to that list and what else might qualify under an item on the list, are different questions and, perhaps, await the first ICC Review Conference next year.

Pirates (Again)

Pirates have captured a supertanker with a cargo worth $100 mil. Kenneth Anderson has an interesting appraisal of the legal dynamics of the situation at Opinio Juris. A minor, but interesting observation, among many others:

There are obviously many serious international law questions here. But I would also flag in advance that we law of wars lawyers need to bear in mind - I include myself emphatically in this admonition - that we have focused almost entirely on the law of land warfare, and that the law of armed conflict on the seas is its own distinct body of law and doctrine. Big mistake to assume that, as a legal matter, it is the same.

Read all of it here.

Where is the Outrage?

Here is a perfectly dreadful story I missed last week in the heat of the US election: a 13-year Somali girl who was raped by three men was stoned to death for "adultery" in front of a crowd of 1000 onlookers.

At Huffington Post today, Amitai Etzioni is asking why there is not more focused outrage at these types of events:

Public voices that are often raised (frequently for very good reasons!) to criticize many of the policies of the Bush Administration (and Israeli policies in dealing with the Palestinians), are mum about atrocities committed by extremist Muslims. I wonder why we do not hear a peep from these voices when a 13 year old girl is stoned to death for the "sin" of having been raped, as just happened in Somalia. There are good people who are concerned about the pain inflicted on those executed in the United States during the last minutes of their lives by the chemicals they are injected with--a valid concern--but why are these same voices strangely mum when they learn about the particularly prolonged, painful, agonizing death of a child?

Nor did I hear from feminists about the special insult that emanates from blaming the victim of rape for having committed a sin. Or, from anybody about the Taliban who behead their countrymen on buses in Afghanistan --countrymen on their way to visit family or start a new job-- to show that they are in control and not the Karzai government, or to make some other such point.

I am told that public intellectuals refrain from criticizing these Somali and Taliban barbarians (I can practically see some of my colleagues raising their eyebrows as high as they go for my use of such a "harsh" word) because they believe that these killers cannot be reached. "Why waste one's breath?" I hear the otherwise silent public intellectuals whispering. In contrast, they say, condemning Americans (and Israelis) may yield some good results.

I think there is another reason for this. Horrible as these events are, many liberals in the West are more comfortable criticizing members of our own communities than casting stones at others. How effective can we be at spreading feminist or humanitarian ideals when we fall so short of such standards as a nation ourselves? Too, some may argue that "democratic" governments who claim to champion women's equality have a greater responsibility for living up to these ideals. This explains why organizations likeAmnesty International regularly disproportionately singles out the US in its country reporting, for example.

I'm not saying this is the correct view, only that this view may be part of the problem. To the extent that it's valid, I would turn Etzioni's question around and ask why moderate Muslims are not speaking out against this sorts of atrocities taking place in their name. Of course, some are.

Srebrenica Victims Angry At Acquittals

This week, Bosnia's top war crimes court convicted Mladen Blagojevic for inhumane treatment of prisoners, but acquitted three others accused of participating in the Srebrenica massacre for lack of evidence. The acquittals have drawn ire from victims' groups:

"“This is a disgrace. While we are looking at mass graves all day long, verdicts like this are made. I'm very unsatisfied with the Bosnian courts,” Sabra Kolenovic, a member of the Mothers of Srebrenica group, told IWPR."

However they may feel, this is a triumph for Bosnian rule of law. These verdicts came not from the international tribunal in the Hague, but from Bosnia's national courts. When Bosnia's government took over war crimes trials of not-so-big-fish accused of crimes during the war, there were questions as to whether a post-war government could provide genuine justice over men accused of participating in atrocity.

The courts' refusal to consider the defendants guilty until proven innocent, despite the emotional needs of and political pressure by those who lost loved ones, is both consistent with international standards of due process, and likely to contribute to the courts' legitimacy over time.

Not-So-Secret

So today we hear that "assassination fears surround Obama" but don't worry, because the Secret Service is on the job, and Obama even has a codename: "Renegade."

Hmm. The Secret Service goes to the trouble of giving him a codename, then makes it public. I buy that.

Turning Back the Clock

The Center for Constitutional Rights has initiated a campaign, “100 Days to Restore the Constitution.” Chief among its goals:

"Ending Torture, Rendition, and Illegal Detention; Protecting Dissent; Abolishing Preventive Detention; Limiting State Secrets Privilege; Restoring the War Powers Act; Stopping Warrantless Wiretapping; Rolling Back Executive Power.

Among its specific policy proposals for the new administration to achieve these goals, outlined in this brochure.

Close Guantanamo and either try people in US federal courts or resettle them safely in a country where they do not risk persecution or torture.

Work to repeal the PATRIOT act and prevent the emergence of any additional similar legislation.

Pledge to veto any legislation creating preventive detention or national security courts as alternatives to the existing criminal justice system.

Work with Congress to pass legislation making it clear military contractors are accountable for their abuses.

Withdraw from Iraq and end the occupation.

Pledge to end all secret surveillance programs not reviewed by either the courts of Congressional committees.

Recognize and respect international law and join the International Criminal Court.

Two things of note:

1) Some of these proposals are written in the language of deed, some in the language of word. I'm not sure what it means for the CCR to propose that Obama "withdraw from Iraq" but only "pledge" to end surveillance programs.

2) Useful to distinguish the truly novel proposals here, like joining the ICC, from the same things Obama has already pledged to do on the campaign trail, such as reverse any of Bush's policies he deems unconstitutional.

Thoughts?

President Obama: Stop Civilian Casulaties in Afghanistan

So says President Hamid Karzai.

A fine idea. Of course, the US isn't in the business of killing civilians directly; it only "accidentally" hits wedding parties and other civilian gatherings on a regular basis. And while this is perfectly lawful, it is also perfectly horrid, not to mention counterproductive.

Sarah Holewnski, Executive Director of the Campaign for Innocent Victims in Conflict, argues that Obama should appoint a high-level Pentagon official to protect civilians in conflict zones where US forces are deployed:

"The Pentagon is a sprawling bureaucracy, but with all that manpower, there is no one place, no one person specifically paying attention to civilian casualties. Leadership from the top on this very contentious issue is absolutely necessary, lest U.S. forces continue to make more enemies than friends. The Pentagon position would assess the potential human cost of war before any shots are fired, make sure proven techniques to avoid civilians are in place and constantly improved, maintain proper investigative and statistical data on civilian harm in combat zones, and ensure prompt compensation to any civilians unintentionally harmed by U.S. combat operations."

Another fine idea. What say ye, Mr. President-Elect?

Clearly, We Have Entered the New Century.

First of all, Americans elected their first African-American president tonight.

Second, this election appears to be emblematic of a sea change in American political culture; and many argue this will be a turning point in America's relationship with the rest of the world.

Third, we can now have commentary delivered to us via hologram:



Hat tip to Drudge.

What do you know?

Rules for Psychotropic War?

Foreign Policy reports sardonically on the DOD's research into cognitive enhancers for warfare in this article, entitled "This is Your Brain on War."

Could pills one day replace bullets in an army’s arsenal? It might sound like science fiction, but thanks to new advances in pharmaceuticals and neuroscience, the next generation of conflict may indeed move from the battlefield to the brain. That’s according to a recent report commissioned by the U.S. Defense Intelligence Agency to map the future of cognitive warfare.

Yep, the old "It Might Sound Like Science Fiction but..." we seem to be hearing that about most new weapons in the US arsenal: nonlethals, autonomous weapons, and now psychotropic drugs or cybernetic technology designed to give militaries an edge.

Combat in years to come, according to the report, will be dramatically influenced by breakthroughs in neuroscience that can be adapted for defense purposes. These developments might involve improving a soldier’s ability to process information with chemicals that alter brain chemistry or computer hardware that interfaces directly with the brain... The U.S. military is also interested in applications that impair its enemies’ performance. These could range from neural-imaging technologies that tell interrogators when a prisoner is lying, to aerosols that destroy an adversary’s will to fight or drugs that alter their moods, even increasing their trust as they are attacked.

Should we be troubled? And if so how much? Citizens associated with MindJustice.org say yes. Yet international rules governing such weapons have yet to be written. One set of precautionary principles are already on the books however: Article 36 of Additional Protocol I to the Geneva Conventions reads:

"In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party."

In other words, governments should consider whether new weapons meet basic war law standards before developing them. The key questions to ask are whether the weapons can be controlled and used discriminately and whether they are humane or would instead cause unnecessary suffering or superfluous injury. The US has not ratified AP 1 and so is not technically required to review new weapons thus, but historically has done so nonetheless. Perhaps instead of trying to get these weapons banned in advance, activists should put the burden of proof on the government to make the case that they are consistent with the rules of war.

Friday Star Trek Blogging

It seems that Obama has captured the Trekkie vote. A Google search turned up no similar group for McCain.