The United States of America has been accused of committing war crimes at various points throughout its 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.[1] War crimes in the United States can be prosecuted through the War Crimes Act of 1996 but the US government does not accept the Jurisdiction of the ICC over its military forces.[2] United States violations of the laws of war falling under the rubric of jus in bello are discussed in the present article; U.S. violations of jus ad bellum, such as crimes against peace or wars of aggression under the Nuremberg Principles[3] are discussed elsewhere.
Contents |
The Committee on the Philippines was a standing committee of the United States Senate from 1899 to 1921.[1] The committee was established by Senate resolution on December 15, 1899, 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 December 15, 1899, even though the treaty of December 10, 1899, had not yet been ratified.[2]
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.[3]
During the Second World War, the Allied aerial forces performed air raids on civilian populations in Europe and over Japan. These actions were retrospectively called crimes by some historians,[4] and were also viewed as such by the leaders of the Axis Powers during the war, despite their own air raids on civilians. At a conference of top Nazi leaders in Klessheim on 6 June 1944, the German Minister of Foreign Affairs Joachim von Ribbentrop tried to introduce a resolution to define air raids on civilians as acts of terror, but his motion was rejected.[5]
In 1963, the atomic bombings of Hiroshima and Nagasaki were the subject of a judicial review in Ryuichi Shimoda et al. v. The State.[6] The District Court of Tokyo declined to rule on the legality of nuclear weapons in general, but found that "the attacks upon Hiroshima and Nagasaki caused such severe and indiscriminate suffering that they did violate the most basic legal principles governing the conduct of war."[7] Francisco Gómez points out in an article published in the International Review of the Red Cross that, with respect to the "anti-city" or "blitz" strategy, that "in examining these events in the light of international humanitarian law, it should be borne in mind that during the Second World War there was no agreement, treaty, convention or any other instrument governing the protection of the civilian population or civilian property."[8] The possibility that attacks like the Hiroshima and Nagasaki bombings could be considered war crimes is one of the reasons given by John R. Bolton for the United States not agreeing to be bound by the Rome Statute of the International Criminal Court[9] while he was Undersecretary of State for Arms Control and International Security, although they would not be prosecutable due to their having occurred prior to the ratification of the treaty.
In the aftermath of the Malmedy massacre a written order from the HQ of the 328th US Army Infantry Regiment, dated December 21, 1944, stated: No SS troops or paratroopers will be taken prisoner but will be shot on sight.[15] 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.'"[16] 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."[17]
Near the French village of Audouville-la-Hubert 30 German Wehrmacht prisoners were massacred by U.S. paratroopers.[18]
Historian Peter Lieb has found that many US and Canadian units were ordered to not take prisoners during the D-Day landings in Normandy. If this view is correct it may explain the fate of 64 German prisoners (out of 130 captured) who did not make it to the POW collecting point on Omaha Beach on D-Day.[19]
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, but 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 Anthony Beevor.[19] Beevor's latest work is currently discussed by scholars, and should some of them be proven right that means that Allied war crimes in Normandy were much more extensive "than was previously realized".[18]
American soldiers in the Pacific often deliberately killed Japanese soldiers who had surrendered. According to Richard Aldrich, who has published a study of the diaries kept by United States and Australian soldiers, they sometimes massacred prisoners of war.[20] Dower states that in "many instances ... Japanese who did become prisoners were killed on the spot or en route to prison compounds."[21] According to Aldrich it was common practice for U.S. troops not to take prisoners.[22] This analysis is supported by British historian Niall Ferguson,[23] 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."[24]
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,[24] 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.[25]
Ulrich Straus, a U.S. Japanologist, suggests that frontline troops intensely hated Japanese military personnel and were "not easily persuaded" to take or protect prisoners, as they believed that Allied personnel who surrendered, got "no mercy" from the Japanese.[26] Allied soldiers believed that Japanese soldiers were inclined to feign surrender, in order to make surprise attacks.[26] Therefore, according to Straus, "Senior officers opposed the taking of prisoners on the grounds that it needlessly exposed American troops to risks..."[26] When prisoners nevertheless were taken at Gualdacanal, interrogator Army Captain Burden noted that many times these were shot during transport because "it was too much bother to take him in".[27]
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."[28]
U. S. historian James J. Weingartner attributes the very low number of Japanese in U.S. POW compounds to two important factors, a Japanese reluctance to surrender and a widespread American "conviction that the Japanese were "animals" or "subhuman'" and unworthy of the normal treatment accorded to POWs.[29] 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."[30]
It has been claimed that some U.S. soldiers raped Okinawan women during the Battle of Okinawa in 1945.[31]
Okinawan historian Oshiro Masayasu (former director of the Okinawa Prefectural Historical Archives) writes based on several years of research:
However, Japanese civilians "were often surprised at the comparatively humane treatment they received from the American enemy."[33][34] 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."[35]
There were also 1,336 reported rapes during the first 10 days of the occupation of Kanagawa prefecture after the Japanese surrender.[31]
The No Gun Ri Massacre was an incident refer to the mass killing of large undetermined numbers of South Korean refugees conducted by U.S. Army forces of the 7th Cavalry Regiment between July 26 and July 29, 1950 near the village of No Gun Ri. This incident gained widespread attention when the Associated Press published a series of articles in 1999 that subsequently won the 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.[36][37] The documents are housed by the United States National Archives and Records Administration. They detail 320 alleged incidents that were substantiated by United States Army investigators — not including the 1968 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 March 16, 1968. Some of the victims were sexually abused, 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.[38][39] Of the 26 US soldiers initially charged with criminal offences or war-crimes for the actions at My Lai, only William Calley was convicted. He served four and one-half months of his two-year sentence.
The incident prompted widespread outrage around the world. The massacre also reduced U.S. support at home for the Vietnam War. Three U.S. 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, received hate mail, death threats and mutilated animals on their doorsteps.[40] Thirty years after the event their efforts were honored.[41]
A panel of legal and political activists calling themselves the International Tribunal of Conscience in Support of the Vietnamese Victims of Agent Orange formed in France have claimed that the use of Agent Orange during Operation Ranch Hand during the Vietnam War was a violation of laws regarding the use of chemical weapons in the 1907 Hague Convention, the 1927 Geneva Convention, and the 1949 Geneva Convention.[42][43][44] In 2005 a suit filed against the United States and several companies who produced Agent Orange was rejected by a United States District Court in Brooklyn. The court found that "No treaty or agreement, express or implied, of the United States, operated to make use of herbicides in Vietnam a violation of the laws of war or any other form of international law until at the earliest April of 1975."[45] In 2007 the 2nd U.S. Circuit Court of Appeals sided with the Court in Brooklyn saying that "Agent Orange and similar U.S. herbicides cannot be considered poisons banned under international rules of war" and that the lack of large-scale research made it impossible to show what caused illnesses.[46]
Amnesty International has condemned the 1999 NATO bombing of Yugoslavia, which they confirm killed 400 civilians (some sources place this figure at over 1,000) in what it claims were violations of international law and war crimes, due to deliberate targeting of civilian infrastructure and indiscriminate attacks, with lack of precautionary measures taken to prevent civilian casualties[47]
Human Rights Watch documented approximately 500 civilian deaths as a result of the NATO bombing campaign. They reported "no evidence of war crimes" but cited violations of international humanitarian law.[48]
The International Criminal Tribunal for the former Yugoslavia reviewed these events, including HRW's report, as well as that alleged by the Federal Republic of Yugoslavia. It concluded "either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence."[49]
As a reaction to the September 11, 2001 attacks the U.S. Government adopted several controversial measures (e.g., invading Iraq, applying "unlawful combatant" status to prisoners, conducting "extraordinary renditions", and "enhanced interrogation methods"[50]).
Human Rights Watch had claimed in 2005 that the principle of "command responsibility" could make high-ranking officials within the Bush administration guilty of war crimes allegedly committed during the War on Terror, either with their knowledge or by persons under their control.[51]
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."[52] Based on the president's memorandum, U.S. personnel carried out cruel and inhumane treatment on the prisoners,[53] 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.[54]
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.[55]
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 US officials are involved in acts that could be seen to be war crimes.[56] The US 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 US and international law.[57]
On April 14, 2006, Human Rights Watch said that Secretary Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammad al-Qahtani.[58] 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.[59]
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[60] and by abolishing habeas corpus, effectively making it impossible for detainees to challenge crimes committed against them.[61]
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.[62] Though under the Rome Statute, the ICC has no jurisdiction over Bush, since the USA 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 USA has a veto) requested an investigation. However Blair does fall under ICC jurisdiction as Britain is a State Party.[63]
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.[64]
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 US is obligated to hold those responsible for prisoner abuse to account under criminal law.[65] 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.[66] 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.[66]
Michael Ignatieff, then leader of the Liberal Party of Canada and former director of the Carr Center for Human Rights Policy said that the threat of terrorism requires serious and possibly permanent abridgement of civil liberties. He stated that governments are justified in combating terrorism with "lesser evils", ranging from suspension of civil liberties, through secret uses of executive power, to torture of suspects, as well as targeted killing, right up to pre-emptive war to destroy terrorist bases and also to prevent the development or deployment of weapons which may be used by terrorists or states that support terrorist aims.[67]