The Rules of War

Two significant stories have emerged over the past week relating to the western military presence in Afghanistan. The first is the publication of nearly 90, 000 American military files detailing incidents that occurred in Afghanistan, between 2002 and 2009, by Julian Assange’s Wikileaks. The second is the trial, for “war crimes,” of Guantanamo detainee Omar Khadr.

The release of the Afghanistan files was widely reported in the British Media, with particularly in depth coverage from The Guardian. The Khadr trial, on the other hand, has received little attention outside of North America. This is unfortunate, as the case provides a shocking insight into the behaviour of the US since 9/11.

Firstly, some background. Omar Khadr is a Canadian citizen, and the son of Ahmed Said Khadr, an Egyptian with close ties to Osama Bin Laden. The elder Khadr’s family describes him as a “charity worker”. This charity work may or may not have served as a front for financing Al Qaeda. In 2002, the Khadr family was living in Pakistan close to the Afghan border. At some point Omar, who was then only 15, was entrusted to a band of militants to act as translator.

On July 27 that year, American forces attempted to search the building that the group was staying in, resulting in a firefight. After the soldiers had retreated, air support was called in bombing the compound, leaving only Khadr, and one other, man alive. Medics arrived and US forces continued to through grenades at the compound. At this point Khadr emerged throwing a grenade killing US soldier, Christopher Speer. Khadr himself was severely wounded.

Since then he has been detained by the US, spending the past eight years at Guantanamo Bay, for much of that time, without access to the outside world or normal legal protections. He alleges (warning: disturbing images in link) that he was tortured. Last Sunday he was sentenced to a symbolic 40 years imprisonment by military tribunal having pled guilty to 5 charges including the murder of Speer and the attempted murder of other soldiers. In reality he will serve eight years, with one more year in Guantanamo and a further seven in Canada (this all presumes that his conviction is not struck out by the Canadian courts when he returns to the country).

Khadr’s conviction rests on the US’s designation of him as an “unlawful combatant”. This designation strips him of the protections of recognised combatants under the Geneva Convention and exemption from prosecution for murder for any killings during combat. This is a highly contrived designation, largely created for convenience by the Bush administrations and, as senior lawyer for Human Rights First, Daphne Eviatar, and Loyola Law School Professor, David Glazier point out, completely lacking in legal legitimacy.

Under international law if Khadr was a recognised combatant as described by Article 4 of the Geneva Convention, then he is protected from criminal prosecution under civilian homicide laws for any killings he carries out in combat. If he carried out those killings in breach of the laws of war, for example by posing as a civilian or by falsely surrendering, then he is subject to prosecution for war crimes. If he does not have this protection, then he is outside of military justice and is instead subject to the criminal law of whichever jurisdiction he was in at the time-in this case Afghanistan.

The Americans try to have it both ways by going one step further and saying that, not only does he not have privilege under Article 4, his fighting as a combatant despite not being recognised as one, represents a war crime under the Geneva convention – thus placing him under the jurisdiction of the military tribunal without the corresponding protections as a prisoner of war. It is this claim- that he is outside the protection of both ordinary criminal law and protocols on the treatment of prisoners of law- that has been used to justify effectively disappearing him for so many years, taking no account of his age and subjecting him to treatment that would not be countenanced under any advanced legal system.

It gets even worse, as the Military Commissions Acts that grant the tribunal its jurisdiction and create the status of unlawful combatants (and bear in mind, this status is the sole basis of Khadr’s prosecution, there are no grounds for charging him with his actions during the firefight other than because of his allegedly unprivileged status – the Americans knew they were facing potentially hostile forces, and indeed attacked first) date from 2006 and 2009, his prosecution is in breach of international laws preventing ex post facto (for crimes created after they were committed) prosecutions.

Add to that the trial was held in front of a military judge and jury, the conviction was based on a confession given under extremely coercive circumstances and the psychiatric reports were based on the work of a Danish scholar who believes that the Muslim gene pool has been irreparably damaged by inbreeding, the Koran encourages criminality, and Muslims should not be allowed migrate to Europe, this trial makes a mockery of the idea of due process.

This stands in stark contrast to the response to the incidents described in the Afghanistan war logs. The reports detail just some of the hundreds of civilian deaths caused by allied forces. These include one incident where six Afghanis were killed including a young girl. In addition, a boy and two teenage girls were injured. In another, a fourteen year old girl was killed at a checkpoint and a two year old seriously injured.

There is rarely any serious come back for the military personnel responsible, and there is a strong resistance to the idea of Soldiers being held accountable for actions taken whilst under the pressure of combat. To the extent that allied soldiers are prosecuted for their actions, they are tried in their own countries or by the courts of their own militaries with full legal protections. It is hard to imagine either politicians, the military or the public countenancing a situation where British or American soldiers faced the threat of prosecution in international jurisdictions, let alone that they could be captured and held by a foreign power for years without any recourse.

It is one of the characteristics of those groups with power that they wish to see others stripped of their ability to cause harm while shrinking from their accountability for their own misjudgments. As Slavoj Zizek writes in the Guardian, outsiders must have their autonomy restrained, to be “de-othered” in order to neutralise any potential threat they pose us. War may be engaged in but “our side” must be shielded from its horrors.

Sgt Speer’s widow and children were star witnesses in the Khadr trial. Now, he was undoubtedly a wonderful and much loved man, but the death on both sides is an unavoidable consequence of sending troops into action. Khadr is the useful scapegoat to divert culpability away from the architects of the conflict. David Glazier notes that the fundamental basis of Omar Khadr’s prosecution was that he was on the “wrong side,” when the Laws of War are predicated on the fundamental equality of combatants on each side, no matter how repugnant the leadership they fight under.

The Bush administration tried to enshrine its own Manichean perception of its own fundamental, unshakable, righteousness (or at least so it would have everyone believe) into universal law. Now the Obama Government cannot or will not remedy this for fear of reactionary domestic voices and any potential risk to US citizens from any detainee.

To quote Prof. Glazier:

The U.S. approach has the practical effect of converting this armed conflict into a human hunting season; the government asserts U.S. combatants had the right to shoot Khadr on sight (he was shot twice in the back based on his being a hostile rather than because he posed any particular threat at the time) yet criminally prosecute him for fighting back.

Much media coverage has focused on Khadr’s potential for rehabilitation versus his hostility towards the west. In both narratives his past actions are viewed as fundamentally pathological. Far more radical and threatening is the idea that events since demonstrate the possibility that he may not have been entirely irrational.

This entry was posted in Foreign Affairs, Hannah, Legal mumbo jumbo and tagged , , , . Bookmark the permalink.

One Response to The Rules of War

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