War Criminal Rumsfeld Should Be Prosecuted Now

Source: History News Network
November 8. 2006

Prosecute Rumsfeld Now

Mark A. Levine

Donald Rumsfeld is one of the half a dozen principal architects of the Iraq disaster. He should have been fired years ago, except that the disaster that unfolded before the eyes of the world was exactly what the Bush administration was hoping for--enough chaos to make sure no one in power in Iraq would ask us to leave.

Now that the American people have woken up to the ruse known as "Operation Iraqi Freedom" perpetrated by the Bush Administration for the last three and a half years it is imperative that progressive immediately push for a full investigation into the real reasons for the invasion of Iraq and the miserably and criminally managed occupation. And there is no greater symbol of everything that has gone wrong in Iraq than Donald Rumsfeld.

While in office, many of my friends and colleagues in the legal community believed that he was untouchable, although a legal brief sponsored by Code Pink that I helped research (see it at www.indictpresidentbush.org) argues compellingly that all the main planners of the war, including President Bush and Vice President Cheney, could at least be indicted, if not prosecuted, while in office. Now, thankfully this question is moot. Rumsfeld is or will very soon be a private citizen. As such, there is no problem for a US court--and as important, a foreign court such as Germany's which still claims universal jurisdiction to prosecute for war crimes--to indict him as the mass murdering torturer that he is.

Rumsfeld is clearly guilty of innumerable war crimes. I first reported on them after my trip to Iraq in 2004, where I saw first hand evidence of them. The violations he's responsible for include the failure to assure humane treatment for the civilian population (under Article 27 of the 4th Geneva Convention) and permit life in Iraq to continue as unaffected by its presence as possible; to ensure the public order, safety and welfare of the Iraqi people, including using all the means at its disposal to meet the basic food (Article 50), health (Articles 20, 50, 55, 56 and 59, among others), and education needs (Article 50) of the population; providing medical car (Articles 68 and 69 of Protocol 1 of the Geneva Conventions).

Crucially, even if people aren't purposefully killed by US forces, if the violations listed above lead to their death, the violations become war crimes. Moreover, the purposeful targeting of ambulances, or the prevention of or delay in the receiving of medical care, as happened during the fighting in Falluja and on numerous other occasions (violations of Articles 55 and 147 of the 4th Geneva Convention), the U.S. crosses the line between "merely" violating international humanitarian law (specifically articles 17 through 19 of the 4th Geneva Convention) and the commission of actual war crimes. These are defined as grave breaches of the 4th Geneva Convention as described in article 147, including "willful killing, torture or inhuman treatment, including... willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person... or willfully depriving a protected person of the rights of fair and regular trial ...taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."

And we know that US forces have engaged in these violations since the very first day of the war. A group of Belgian doctors who spent the last year in Baghdad explained that, whatever crimes might be committed by Iraqis, as the internationally recognized belligerent occupiers "the current humanitarian catastrophe is entirely and solely the responsibility of the US and British authorities." Even that early into the occupation they documented violations of at least a dozen articles of the 4th Geneva Convention by coalition forces (including articles 10, 12, 15, 21, 35, 36, 41, 45, 47, 48, 51, and 55).

On top of all this, of course, there is also the issue of US torture, which is a violation of international and US Federal law, and military regulations as defined in the US Army Field Manual 27-10.

But there's an even larger issue here. It could be argued that Rumsfeld is guilty of something far more serious than war crimes: crimes against humanity and even genocide.

Under international law, "crimes against humanity" includes many acts any of the following acts that the US military has committed systematically in Iraq against the civilian population: murder; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; the enforced disappearance of persons; and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.


The crime of "genocide" is found in Articles II and III of the 1948 Convention on the Prevention and Punishment of Genocide. It includes a "mental element," meaning "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such", and a physical element, which includes five acts, including killing or causing serious bodily or mental harm to members of the group, and deliberately inflicting conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. One can be prosecuted for genocide not just for committing but also for merely conspiring, attempting or being complicit in an attempt or conspiracy to commit genocide. As important, the phrase "in whole or in part" is important because destruction of only part of a group (such as its educated members, or members living in one region), is also considered genocide.

Now, lets' look at what Rumsfeld and Co. have accomplished in Iraq: upwards of 600,000 dead, much of the educated class has been forced into exile with no prospect of returning while many have been killed. Most important, the invasion and occupation of Iraq have led directly to a situation now in which many people are calling for a partition of the country. The partition of Iraq would mean the destruction of the Iraqi people as a nation, even if they survived as individuals in new countries. And the United States is the party directly responsible for this action by launching an illegal war and sewing chaos across the country, making some form of de facto if not de jure partition increasingly possible.

At the very least Rumsfeld and Co., and that includes President Bush, are guilty of politicide, defined by Israeli sociologist Baruch Kimmerling in the context of Israel's war against Palestinians, as a gradual but systematic attempt to cause their annihilation as an independent political and social entity.

For the sake of the integrity of the United States, and for all the harm we've done to Iraq, Donald Rumsfeld must be indicted and prosecuted as a war criminal as soon as possible.