Obama has duty to go after war criminals

[NNN0LHI]

http://www.suntimes.com/news/otherviews/1310735,CST-EDT-open03.article

December 3, 2008

BY ANTHONY D'AMATO AND JORDAN J. PAUST

Some on President-elect Barack Obama's team wonder whether he will have the duty to prosecute or extradite persons who are reasonably accused of having committed and abetted war crimes or crimes against humanity during the Bush administration's admitted "program" of "coercive interrogation" and secret detention that was part of a "common, unifying" plan to deny protections under the Geneva Conventions.

The short answer is "yes."

Under the U.S. Constitution, the president is expressly and unavoidably bound to faithfully execute the laws, and the Supreme Court has recognized in many cases since the founding of our government that such laws include U.S. treaty law and customary international law. In fact, every relevant federal judicial opinion over the last 200 years has affirmed that all persons within the executive branch are bound by the laws of war, a point famously recognized by President Lincoln's attorney general in 1865. Moreover, Obama has assured the American people that he will work to restore the rule of law and integrity in our government, which have been among clear casualties during the Bush administration's "war" on terror.

The 1949 Geneva Civilian Convention, which is considered treaty law of the United States, expressly and unavoidably requires that all parties search for perpetrators of grave breaches of the treaty and bring them "before its own courts" for "effective penal sanctions" or "if it prefers . . . hand such persons over for trial to another High Contracting Party."

The obligation is absolute. The United States must either initiate prosecution or extradite to another state. "Grave breaches" of the Convention include "torture or inhuman treatment" and unlawful transfer of a non-prisoner of war from occupied territory. Similarly, the Convention Against Torture expressly and unavoidably requires that a party to the treaty extradite or "submit the case to its competent authorities for the purpose of prosecution." In 2006, the United Nations Security Council rightly stressed "the responsibility of States to comply with their relevant obligations to end impunity and to prosecute those responsible for war crimes," which include the use of torture and cruel, inhumane and degrading treatment. In 2007, the U.N. General Assembly stressed that use of torture or cruel, inhumane or degrading treatment "must be promptly and impartially examined . . . those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished."

[EFerrari]

1. Obama is almost exactly the same age as my little brother.

When I think about what he is up against, it's chastening and I wish I still prayed to something.

[deaniac21]

2. He won't touch it.

[gratuitous]

3. Either we do it, or someone else will

And while it's to be hoped that it would be a regularly constituted tribunal under the auspices of the UN, one that recognizes and follows rules of evidence and criminal procedure, there is another alternative to prosecution of accused or suspected war criminals. However, ad hoc coalitions of outside-the-law groups tend to use methods that aren't terribly discriminating when it comes to separating out the really guilty from the less guilty or even the innocent.

If Obama doesn't mind a host of innocents dying for the sins of the Bush administration, then no action may be a very wise course. However, in the interests of justice and the peace of an orderly society, it's obligatory that the incoming administration treat allegations of war crimes and crimes against humanity far more seriously than its predecessor.

[Winterblues]

4. Didn't Congress, including Obama sign off on Bush*'s "War" policies?

That would make them every bit as culpable IMO.