United States war crimes
||This article is incomplete. (February 2011)|
U.S. armed forces have committed war crimes in various wars in which they have been engaged throughout history. Most — but not all — contemporary war crimes are defined by the International Criminal Court (ICC), the Geneva Conventions, and the associated laws of war under international law. War crimes can be prosecuted through the War Crimes Act of 1996 in the United States, but the U.S. government does not accept the jurisdiction of the ICC over its military forces. United States violations of the laws of war falling under the rubric of jus in bello are discussed in the present article, while U.S. violations of jus ad bellum, such as crimes against peace or wars of aggression under the Nuremberg Principles, are not addressed here.
The Committee on the Philippines was a standing committee of the United States Senate from 1899 to 1921. The committee was established to oversee administration of the Philippines, which Spain had ceded to the United States as part of the settlement of the Spanish-American War. The committee was established by Senate resolution on 15 December 1899, even though the treaty of 10 December 1899 had not yet been ratified. In 1921, the Committee was terminated and jurisdiction over legislative matters concerning the Philippines was transferred to the newly created Committee on Territories and Insular Possessions. War crimes committed by the United States Army include the March across Samar and the wanton destruction of a democratically elected government. 
World War II
On January 26, 1943, the crew of the submarine USS Wahoo fired on survivors of the Japanese transport Buyo Maru. The survivors were later determined to have included Allied POWs of the Indian 2nd Battalion, 16th Punjab Regiment, plus escorting forces from the 26th Field Ordnance Depot. Of 1,126 men aboard Buyo Maru, 195 Indians and 87 Japanese died in all, including those killed in the initial sinking.
The "Canicattì massacre" involved the killing of Italian civilians by Lieutenant Colonel George Herbert McCaffrey. A confidential inquiry was made, but McCaffrey was never charged with an offense relating to the massacre. He died in 1954. This fact remained virtually unknown in the U.S. until 2005, when Joseph S. Salemi of New York University, whose father witnessed it, reported it.
According to an article in Der Spiegel by Klaus Wiegrefe, many personal memoirs of Allied soldiers have been willfully ignored by historians until now because they were at odds with the "Greatest Generation" mythology surrounding World War II. However, this has recently started to change, with books such as "The Day of Battle", by Rick Atkinson, where he describes Allied war crimes in Italy, and "D-Day: The Battle for Normandy," by Antony Beevor. Beevor's latest work is currently discussed by scholars, and should some of them be proven right, it suggests that Allied war crimes in Normandy were much more extensive "than was previously realized".
Historian Peter Lieb has found that many U.S. and Canadian units were ordered to not take enemy prisoners during the D-Day landings in Normandy. If this view is correct, it may explain the fate of 64 German prisoners (out of the 130 captured) who did not make it to the POW collecting point on Omaha Beach on the day of landings.
In the aftermath of the 1944 Malmedy massacre, in which 80 unarmed U.S. military personnel were murdered by their German captors, a written order from Headquarters of the 328th U.S. Army Infantry Regiment, dated 21 December 1944, stated: "No SS troops or paratroopers will be taken prisoner but [rather they] will be shot on sight." Major-General Raymond Hufft (U.S. Army) gave instructions to his troops not to take prisoners when they crossed the Rhine in 1945. "After the war, when he reflected on the war crimes he authorized, he admitted, 'if the Germans had won, I would have been on trial at Nuremberg instead of them.'" Stephen Ambrose related: "I've interviewed well over 1000 combat veterans. Only one of them said he shot a prisoner... Perhaps as many as one-third of the veterans...however, related incidents in which they saw other GIs shooting unarmed German prisoners who had their hands up."
"Operation Teardrop" involved eight surviving captured crewmen from the sunken German submarine U-546 being tortured by U.S. military personnel. Historian Philip K. Lundeberg has written that the beating and torture of U-546's survivors was a singular atrocity motivated by the interrogators' need to quickly get information on what the U.S. believed were potential missile attacks on the continental U.S. by German submarines.
American soldiers during the Pacific War sometimes deliberately killed Japanese soldiers who had surrendered, according to Richard Aldrich (Professor of History at Nottingham University). Aldrich published a study of diaries kept by United States and Australian soldiers, wherein it was stated that they sometimes massacred prisoners of war. According to John Dower, in "many instances ... Japanese who did become prisoners were killed on the spot or en route to prison compounds." According to Professor Aldrich, it was common practice for U.S. troops not to take prisoners. His analysis is supported by British historian Niall Ferguson, who also says that, in 1943, "a secret [U.S.] intelligence report noted that only the promise of ice cream and three days leave would ... induce American troops not to kill surrendering Japanese."
Ferguson states such practices played a role in the ratio of Japanese prisoners to dead being 1:100 in late 1944. That same year, efforts were taken by Allied high commanders to suppress "take no prisoners" attitudes among their own personnel (as these were affecting intelligence gathering), and to encourage Japanese soldiers to surrender. Ferguson adds that measures by Allied commanders to improve the ratio of Japanese prisoners to Japanese dead resulted in it reaching 1:7, by mid-1945. Nevertheless, "taking no prisoners" was still "standard practice" among U.S. troops at the Battle of Okinawa, in April–June 1945.
Ulrich Straus, a U.S. Japanologist, suggests that troops on the front line intensely hated Japanese military personnel and were "not easily persuaded" to take or protect prisoners, as they believed (not entirely incorrectly) that Allied personnel who surrendered got "no mercy" from the Japanese. Allied soldiers believed that Japanese soldiers were inclined to feign surrender in order to make surprise attacks. Therefore, according to Straus, "Senior officers opposed the taking of prisoners on the grounds that it needlessly exposed American troops to risks ..." When prisoners nevertheless were taken at Guadalcanal, Army interrogator Captain Burden noted that many times POWs were shot during transport because "it was too much bother to take [them] in".
Ferguson suggests that "it was not only the fear of disciplinary action or of dishonor that deterred German and Japanese soldiers from surrendering. More important for most soldiers was the perception that prisoners would be killed by the enemy anyway, and so one might as well fight on."
U.S. historian James J. Weingartner attributes the very low number of Japanese in U.S. prisoner of war compounds to two important factors, namely (1) a Japanese reluctance to surrender, and (2) a widespread American "conviction that the Japanese were 'animals' or 'subhuman' and unworthy of the normal treatment accorded to prisoners of war. The latter reason is supported by Ferguson, who says that "Allied troops often saw the Japanese in the same way that Germans regarded Russians — as Untermenschen" (i.e. "subhuman").
Based on several years of research, Okinawan historian Oshiro Masayasu (former director of the Okinawa Prefectural Historical Archives) writes:
- Soon after the U.S. Marines landed, all the women of a village on Motobu Peninsula fell into the hands of American soldiers. At the time, there were only women, children, and old people in the village, as all the young men had been mobilized for the war. Soon after landing, the Marines "mopped up" the entire village, but found no signs of Japanese forces. Taking advantage of the situation, they started "hunting for women" in broad daylight, and women who were hiding in the village or nearby air raid shelters were dragged out one after another.
However, some other authors have noted that Japanese civilians "were often surprised at the comparatively humane treatment they received from the American enemy." According to Islands of Discontent: Okinawan Responses to Japanese and American Power by Mark Selden, the Americans "did not pursue a policy of torture, rape, and murder of civilians as Japanese military officials had warned."
Secret wartime files made public only in 2006 reveal that American GIs committed 400 sexual offences in Europe, including 126 rapes in England, between 1942 and 1945. A study by Robert J. Lilly estimates that a total of 14,000 civilian women in England, France and Germany were raped by American GIs during World War II. It is estimated that there were around 3,500 rapes by American servicemen in France between June 1944 and the end of the war and one historian has claimed that sexual violence against women in liberated France was common.
No Gun Ri Massacre
The No Gun Ri Massacre refers to an incident of mass killing of undetermined numbers of South Korean refugees conducted by U.S. Army forces of the 7th Cavalry Regiment (and in a U.S. air attack) between 26 July and 29 July 1950 at a railroad bridge near the village of No Gun Ri, 100 miles (160 km) southeast of Seoul. In 2005, the South Korean government certified the names of 163 dead or missing (mostly women, children and old men) and 55 wounded. It said many other victims' names were not reported. Over the years survivors' estimates of the dead have ranged from 300 to 500. This episode early in the Korean War gained widespread attention when the Associated Press (AP) published a series of articles in 1999 that subsequently won a Pulitzer Prize for Investigative Reporting.
The Vietnam War Crimes Working Group Files is a collection of (formerly secret) documents compiled by Pentagon investigators in the early 1970s, confirming that atrocities by U.S. forces during the Vietnam War were more extensive than had been officially acknowledged. The documents are housed by the United States National Archives and Records Administration, and detail 320 alleged incidents that were substantiated by United States Army investigators (not including the 1968 My Lai Massacre). (See also Winter Soldier Investigation).
My Lai Massacre
The My Lai Massacre was the mass murder of 347 to 504 unarmed citizens in South Vietnam, almost entirely civilians, most of them women and children, conducted by U.S. Army forces on 16 March 1968. Some of the victims were raped, beaten, tortured, or maimed, and some of the bodies were found mutilated. The massacre took place in the hamlets of Mỹ Lai and My Khe of Sơn Mỹ village during the Vietnam War. Of the 26 U.S. soldiers initially charged with criminal offenses or war crimes for actions at My Lai, only William Calley was convicted. Calley only served 3 years & a half under house arrest instead. The incident prompted widespread outrage around the world, and reduced U.S. domestic support for the Vietnam War. Three American Servicemen (Hugh Thompson, Jr., Glenn Andreotta, and Lawrence Colburn), who made an effort to halt the massacre and protect the wounded, were sharply criticized by U.S. Congressmen, and received hate mail, death threats, and mutilated animals on their doorsteps. Thirty years after the event their efforts were honored.
"War on Terror"
As a reaction to the September 11, 2001 attacks, the U.S. Government adopted several measures illegal under the Geneva Conventions (e.g., applying "unlawful combatant" status to prisoners, conducting extraordinary renditions, and enhanced interrogation methods).
Human Rights Watch claimed in 2005 that the principle of "command responsibility" could make high-ranking officials within the Bush administration guilty of the numerous war crimes committed during the War on Terror, either with their knowledge or by persons under their control.
A presidential memorandum of September 7, 2002 authorized U.S. interrogators of prisoners captured in Afghanistan to deny the prisoners basic protections required by the Geneva Conventions, and thus according to Jordan J. Paust, professor of law and formerly a member of the faculty of the Judge Advocate General's School, "necessarily authorized and ordered violations of the Geneva Conventions, which are war crimes." Based on the president's memorandum, U.S. personnel carried out cruel and inhumane treatment on the prisoners, which necessarily means that the president's memorandum was a plan to violate the Geneva Convention, and such a plan constitutes a war crime under the Geneva Conventions, according to Professor Paust.
Alberto Gonzales and others argued that detainees should be considered "unlawful combatants" and as such not be protected by the Geneva Conventions in multiple memoranda regarding these perceived legal gray areas.
Gonzales' statement that denying coverage under the Geneva Conventions "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" suggests, to some authors, an awareness by those involved in crafting policies in this area that U.S. officials are involved in acts that could be seen to be war crimes. The U.S. Supreme Court challenged the premise on which this argument is based in Hamdan v. Rumsfeld, in which it ruled that Common Article Three of the Geneva Conventions applies to detainees in Guantanamo Bay and that the military tribunals used to try these suspects were in violation of U.S. and international law.
On April 14, 2006, Human Rights Watch said that Secretary Donald Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammad al-Qahtani. On November 14, 2006, invoking universal jurisdiction, legal proceedings were started in Germany – for their alleged involvement of prisoner abuse – against Donald Rumsfeld, Alberto Gonzales, John Yoo, George Tenet and others.
The Military Commissions Act of 2006 is seen by some as an amnesty law for crimes committed in the War on Terror by retroactively rewriting the War Crimes Act and by abolishing habeas corpus, effectively making it impossible for detainees to challenge crimes committed against them.
Luis Moreno-Ocampo has told The Sunday Telegraph he is willing to start an inquiry by the International Criminal Court (ICC), and possibly a trial, for war crimes committed in Iraq involving British Prime Minister Tony Blair and American President George W. Bush. Though under the Rome Statute, the ICC has no jurisdiction over Bush, since the U.S. is not a State Party to the relevant treaty—unless Bush were accused of crimes inside a State Party, or the UN Security Council (where the U.S. has a veto) requested an investigation. However, Blair does fall under ICC jurisdiction as Britain is a State Party.
Nat Hentoff wrote on August 28, 2007, that a leaked report by the International Committee of the Red Cross and the July 2007 report by Human Rights First and Physicians for Social Responsibility, titled "Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality", might be used as evidence of American war crimes if there was a Nuremberg-like trial regarding the War on Terror.[unreliable source?]
Shortly before the end of President Bush's second term, newsmedia in countries other than the U.S. began publishing the views of those who believe that under the United Nations Convention Against Torture, the U.S. is obligated to hold those responsible for prisoner abuse to account under criminal law. One proponent of this view was the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Professor Manfred Nowak) who, on January 20, 2009, remarked on German television that former president George W. Bush had lost his head of state immunity and under international law the U.S. would now be mandated to start criminal proceedings against all those involved in these violations of the UN Convention Against Torture. Law professor Dietmar Herz explained Nowak's comments by saying that under U.S. and international law former President Bush is criminally responsible for adopting torture as interrogation tool.
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- Ulrich Straus, The Anguish Of Surrender: Japanese POWs of World War II (excerpts) (Seattle: University of Washington Press, 2003 ISBN 978-0-295-98336-3, p.117
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- Prisoner abuse
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- Abu Ghraib is a Command Responsibility By Ray McGovern Former CIA analyst, CounterPunch, October 1 / 2, 2005
- Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees Human Rights Watch, April 2005 Vol. 17, No. 1
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- Parsing pain By Walter Shapiro, Salon
- War Crimes warnings
- Torture and Accountability by Elizabeth Holtzman article in The Nation posted June 28, 2005 (July 18, 2005 issue) about The Geneva Convention
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- The Gitmo Fallout: The fight over the Hamdan ruling heats up—as fears about its reach escalate. By Michael Isikoff and Stuart Taylor Jr., Newsweek, July 17, 2006
- U.S.: Rumsfeld Potentially Liable for Torture Defense Secretary Allegedly Involved in Abusive Interrogation Human Rights Watch, April 14, 2006
- Universal jurisdiction
- Pushing Back on Detainee Act by Michael Ratner is president of the Center for Constitutional Rights, The Nation, October 4, 2006
- Military Commissions Act of 2006
- Why The Military Commissions Act is No Moderate Compromise By MICHAEL C. DORF, FindLaw, Oct. 11, 2006
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- Other countries may start prosewcution
- Overseas, Expectations Build for Torture Prosecutions By Scott Horton, No Comment, January 19, 2009
- Die leere Anklagebank – Heikles juristisches Erbe: Der künftige US-Präsident Barack Obama muss über eine Strafverfolgung seiner Vorgänger entscheiden. Mögliche Angeklagte sind George W. Bush und Donald Rumsfeld.
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment calls for prosecution
- UN torture investigator calls on Obama to charge Bush for Guantanamo abuses Ximena Marinero, JURIST, January 21, 2009
- UN Rapporteur: Initiate criminal proceedings against Bush and Rumsfeld now By Scott Horton, No Comment, January 21, 2009
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