Thursday, June 10, 2004
Foreign Affairs editor Jonathan D. Tepperman, on the op/ed page of the New York Times:
Even if no smoking gun is ever found to directly link American officials to the crimes, however, they could still find themselves in serious jeopardy under international law. Under the doctrine of command responsibility, officials can be held accountable for war crimes committed by their subordinates even if they did not order them — so long as they had control over the perpetrators, had reason to know about the crimes, and did not stop them or punish the criminals.
This doctrine is the product of an American initiative. Devised by Allied judges and prosecutors at the Nuremberg tribunals, it was a means to impute responsibility for wartime atrocities to Nazi leaders, who often communicated indirectly and avoided leaving a paper trail.
More recently, the principle has been fine-tuned by two other American creations: the international tribunals for Yugoslavia and Rwanda, which were established in the last decade by the United Nations Security Council at the United States' behest. These tribunals have held that political and military leaders can be found liable for war crimes committed by those under their "effective control" if they do nothing to prevent them . . . .
Of course, despite all the incriminating evidence, there is little possibility that any foreign or domestic judge will ever haul top members of the current administration into court. The question of guilt or innocence will most likely remain a political one.
Nonetheless, legal principles can affect politics. If voters begin to believe that George W. Bush or Donald Rumsfeld is legally responsible for the torture, it could affect the president's chances in November. Yet if American officials are not held legally accountable, the damage abroad could be even more severe. Part of the terrible legacy of Abu Ghraib may be that the United States will find it difficult to prosecute foreign war criminals if it refuses to accept for itself the legal standards it accuses them of breaking.