The precedent of a ‘‘lawless enclave’’

In early November 2001, a small group of White House officials worked in great secrecy to devise a new system of justice for the Global War on Terror   ~   The New York Times

In the wake of the Abu Ghraib scandal, White House lawyer, Alberto Gonzales, wrote an opinion piece in the New York Times defending the “consistent and humane policy” of the United States toward detainees in Iraq and Guantanamo Bay. He described the Global War on Terror™ as a “lengthy campaign” with “dramatic strikes” and “covert operations” against enemies that “hide among civilians” and are therefore not protected by the Third Geneva Convention.

Gonzales conceded, however, that “Iraq presents a very different situation”, in which the “United States is bound to observe the rules of war”. The Bush administration, he said, “understands and seeks to comply with its legal obligations”. These assurances were somewhat vitiated a few days later when Newsweek published a memo written by White House lawyer Gonzales two years earlier, which warned that US officials could be prosecuted for “war crimes” due to the methods used by the Bush administration in its war on terror.

Under the 1996 US War Crimes Act, officials convicted for war crimes, including “grave breaches” of the Geneva Conventions, face severe punishment, up to and including the death penalty. Gonzales warned Bush that the Third Geneva Convention prohibited the “inhumane treatment of prisoners” and “outrages upon personal dignity”. He advised the president to declare the Global War on Terror™ and the detention of “suspected terrorists” to be exempt from the provisions of the Geneva Conventions.

“Your determination would create a reasonable basis in law that the [War Crimes Act] does not apply, which would provide a solid defense to any future prosecution” Gonzales wrote in January, 2002. Despite fierce opposition from Secretary of State, Colin Powell, Bush accepted his lawyer’s advice. He unsigned the Rome Treaty, disavowed the International Criminal Court and created a legal void in which systemic criminality flourished.

This legal void spread to Iraq when Bush declared it to be part of his Global War on Terror™. The constitutional validity of this “lawless enclave” was reviewed by the nine judges of the US Supreme Court, and their decision, which was handed down in June, affirmed that “suspected terrorists” do in fact have legal rights under the US Constitution. This ruling represents a clear repudiation of the Bush administration’s claim to be above the rule of law and opens the way for an avalanche of legal proceedings with far reaching consequences.

Contempt for international law has become a hallmark of the Bush-Howard-Blair alliance. The Howard government has been at the forefront of the attack on multilateral institutions, muzzling the Human Rights Commission and withdrawing from the jurisdiction of the World Court. Foreign Minister Downer, a staunch critic of the United Nations Treaty system, suggested the Security Council would look “weak, meaningless and ineffectual” if it failed to authorize the invasion of Iraq. Defence Minister Robert Hill was equally scathing, yet he now claims we invaded Iraq to “support the Security Council”.

The Howard government willingly colluded with the Bush regime, dissembled about the reasons for invading Iraq, ridiculed the United Nations, defied international law, participated in aggression against a civilian population and helped to conceal the abuse of prisoners at Abu Ghraib. Consequently, it has been complicit in war crimes, human rights violations and grave breaches of the Geneva Conventions. To date, the Howard government has been content to employ standard operating procedures when dealing with bad news from Iraq; simply lie, deny, ignore, spin and cover up. But this approach entails gross negligence, a lack of responsibility and contempt for the rule of law.

With the prospect of future war crimes prosecutions growing more likely by the day, as atrocities continue to pile up and the political fortunes of pro-war politicians hang in the balance, our Prime Minister’s lack of political acumen becomes ever more apparent. In the wake of the October 9 election, we have witnessed a clamouring and unedifying display of vain triumphalism by the re-elected Howard government. But the real test of their hubris will come when Howard and his henchmen are called to account for their complicity in the killing of a hundred thousand Iraqi civilians.