Or How I Learned to Stop Worrying

On March 12, 2006 a gruesome crime took place in a farmhouse in Mahmoudiya, Iraq. A 14-year-old girl was raped and murdered. Her parents and her 5-year-old sister were shot in the head in another room. Their bodies were then burned to hide the evidence. A discharged United States soldier has been charged with one count of rape and four counts of murder stemming from the this crime. Four other soldiers who were allegedly involved in the killings and rape have also been charged.

The first person to arrive at the scene of the crime described the horrors he saw:

"Never in my mind could I have imagined such a gruesome sight," Abu Firas Janabi said of the day in March when his cousin, Fakhriya Taha Muhsen; her husband, Kasim Hamza Rasheed; and their two daughters were slain and their farmhouse set ablaze.

"Kasim’s corpse was in the corner of the room, and his head was smashed into pieces," he said. The 5-year-old daughter, Hadel, was beside her father, and Janabi said he could see that Fakhriya’s arms had been broken.

In another room, he found 15-year-old Abeer, naked and burned, with her head smashed in "by a concrete block or a piece of iron."

"There were burns from the bottom of her stomach to the end of her body, except for her feet," he said.

"I did not believe what I was seeing. I tried to fool myself into believing I was in a dream. But the problem was that we were not dreaming. We put a piece of cloth over her body. Then I left the house together with my wife."

As regular readers may have noticed, I have not been posting with the regularity I normally do. That is because after I wrote the above paragraphs I hit writer’s block. I had to step away from this post for a number of days before I could return to it. I also realized that if I don’t finish this post I wouldn’t be able to focus enough to write other posts. I have chronicled many atrocities and deaths in Iraq since I started blogging, but what happened in Mahmoudiya struck harder than all others. Sometimes it takes a concentrated act of insanity to give clarity to the surrounding madness. The rape and murder of a 14-year-old child and the cold-blooded murder of her 5-year-old sister is that act of insanity. American soldiers are accused of this insanity. It is time for an accounting.

Over 2500 American soldiers have died, perhaps a hundred thousand Iraqis have died, a country is in tatters, neighbors are slaughtering neighbors. This is George W Bush’s Iraq. This is America’s Iraq. Who is responsible for the chaos in Iraq? The Bush Administration is fond of saying that the Iraqis must learn to defend their own country; that they must show the will to fight for their country - and when they stand up, we will stand down. Although this kind of rhetoric makes for good campaign slogans it also shirks responsibility. The responsibility for the chaos in Iraq lies with the United States and more specifically it lies with George W Bush, our Commander-in-Chief.

President Bush insists that he has a "responsibility" to "stay the course". But he has shirked his most basic responsibility - that is, the protection of the civilian population of Iraq. The Law of Occupation as codified in the 1907 Hague Regulations and the Fourth Geneva Conventions make it the responsibility of the occupying power to ensure public order and safety. The United States is the occupying power in Iraq. It is therefore subject to Article 43 of the Hague Regulations:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

The Law of Occupation has been adopted by the United States Military. Article 43 is explicitly stated in the U.S. Army Field Manual 27-10, The Law of Land Warfare. The Manual’s chapter on Occupation states:

363. Duty to Restore and Maintain Public Order

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.(HR, art. 43.)

The United States has failed in its primary responsibility as the occupier in Iraq.

Instead of public order and safety, we have car bombs and death squads. We have Iraqis committing atrocities on Iraqis. We have Iraqis committing atrocities on Americans. We have Americans committing atrocities on Iraqis. George W Bush has lost all control in Iraq. The people of Iraq, who Mr. Bush claims to have liberated, are dying by the dozens every day.

Three years after he declared "Missions Accomplished", the Pax Americana in Iraq has brought murder and mayhem instead of public order and safety. It is not the responsibility of the Iraqis to restore order after an invasion by a hostile force; it is the responsibility of the United States. Every time President Bush says "stay the course" he is shirking his responsibility as the Commander-in-Chief of the occupying forces to protect the Iraqis. Having failed to restore order for the past three years, President Bush has encouraged and condoned continued violence in Iraq by saying "stay the course".

On Mr. Bush’s watch, people are being beheaded, shot through the head, and blown up. Children are being raped and murdered in cold blood. That is the accounting in Iraq. The account is large and getting larger still. We have turned many corners in Iraq. The latest corner sees American soldiers accused of being rapists and murderers of children. How many more corners must we turn before this atrocity of an occupation is brought to an end?

The big story today from the Los Angeles Times is that the United States has decided to omit parts of Article 3 of the Geneva Conventions from the latest Army Field Manual on interrogation. The Pentagon has apparently decided to omit the "humiliating and degrading treatment" clause of the Article. This has caused outrage in the Human Rights community. The military’s judge advocates general and the State Department have also fiercely opposed this omission. According to the LA Times, the State Department had argued that this change would be a blow to American standing internationally:

Defense officials said the State Department and other agencies had argued that adopting Article 3 would put the U.S. government on more solid "moral footing," and make U.S. policies easier to defend abroad.

Some State Department officials have told the Pentagon that incorporating Geneva into the new directive would show American allies that the American military is following "common standards" rather than making up its own rules. Department officials declined to comment for this article about the directive or their discussions with the Pentagon.

The focus of the concern about the omission has been on abandoning the part of Article 3 that prohibits "humiliating and degrading treatment". However, the focus should really be on torture instead.

The Geneva exemption is part of a broader effort by the Bush Administration to systematically justify the use of torture by lawyering around the international Conventions that it is signatory to. As I discussed in an earlier post, the United States has already narrowed its definition of "torture" from the definition found in the United Nations Convention Against Torture. The United States has also asserted that when it ratified the Convention Against Torture, it only ratified the "torture" portion of the Convention and not the "cruel, inhuman and degrading punishment" part of the Convention. By narrowing the definition of "torture" and not accepting the remaining portions of the Convention, the United States can now effectively claim that interrogation techniques that do not cause serious injury such as "organ failure" or "even death" do not rise to the level of "torture". Furthermore, since the United States only accepts the "torture" part of the Convention, anything short of the US definition of "torture" does not violate America’s obligations under the Convention Against Torture.

The narrowed United States definition of "torture" has been in place since 2002 when the "Torture Memo" was written by the Justice Department. However, the United States military was still bound by the Army Field Manual, which adhered to Article 3 of the Geneva Conventions. Up until now, only non-military personnel (CIA) were able to take advantage of the narrower definition of "torture" during interrogations. Article 3 still prevented the military from engaging in interrogations that were short of the US definition of "torture" but were caught by Article 3’s prohibition on "humiliating and degrading treatment". Dropping these parts of Article 3 now allows the United States military to engage in behavior that falls under the Convention Against Torture’s definition of "torture" but not under the US definition of "torture". Article 3 of the Geneva Conventions was the last check against a uniform policy of torture that can now be implemented across all branches of the United States government, including the military.

A final obvious but important aspect of the overall torture policy is that acts performed under the narrow definition of "torture" would constitute a crime if committed within the United States where US Courts have jurisdiction. That is the reason why Guantanamo Bay exists.

It is important to call attention to this cleverly disguised attempt by the United States Government to enlist the military in its policy of torture. The Administration would much prefer to debate what constitutes "humiliating" or "degrading" behavior. That is a murky area that the Administration hopes will cloud the real issue. The real issue is on the other side of the interrogation spectrum. The real issue is what constitutes torture. This Administration is playing word games while it pursues a policy of torture. Our moral authority in the world is not the only thing that is being compromised - we as a people are complicit in torture if we allow it to continue.