When is Torture Not Torture?

JUSTICE at NUREMBERG: The black and white old photograph is of the east wing of the Palace of Justice where the trial was held. The courtroom in Room 600 is in the center of the east wing on the top floor. In the photo, the room can be identified by the curtains covering two of the windows.

Justice Jackson, who was one of the judges who had presided over the Nuremberg trial, said: "To pass these defendants a poisoned chalice is to put it to our lips as well"

When is Torture not Torture?
September 3rd, 2008

Andrew Sullivan of The Daily Dish blog-- theatlantic dot com--comments on Bush’s speech to the RNC about McCain (below is this part of that speech):

Now have you ever heard someone recount what was done to John McCain in the Hanoi Hilton and not use the word “torture”? I haven’t. “Beatings and isolation” is a bizarre phrase to use to describe the torture that was done to John McCain. I’m sure McCain thinks so.

Am I being persnickety? As with the Trig story, there’s a very easy way to find out - if the press will simply do its job. A White House reporter needs to ask the president, quite simply, if he believes that John McCain was tortured in Vietnam. Just ask. Use that specific word. See if he can answer.

The reason he put it this way, I infer, is that if he describes what was done to McCain as torture, he has incriminated himself for war crimes.

Sullivan is right on the money: (the) skirting around the issue of the Bush administration complicity in war crimes is, as with the enemy combatant/POW distinction, protected by neologism.

Article 75 of Protocol 1 of the Geneva Convention (1977) is explicit that

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of persons, in particular:
(i) murder;
(ii) torture of all kinds, whether physical or mental;
(iii) corporal punishment; and
(iv) mutilation;

What is significant about the 1977 Protocol is that it is not limited to POW but to everyone, everywhere (which may go some way to explain why the US have not ratified it). Should Bush answer yes to the question as to whether McCain was tortured then, by the doctrine of Command Responsibility Bush is in a difficult position.

Speaking after the Nuremberg trials, which directly applied the command responsibility, Justice Jackson laid a challenge to the US command structure (which includes not only Bush et al) but every soldier in the line of command that...

We must never forget that the record by which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well (cited in Rockwood, Walking Away from Nuremberg, 179).

A poisoned chalice indeed.

NOTE:

Here is that part of the Bush speech:

Sullivan said: the biggest bombshell in this campaign so far, in my opinion, is the following section of Bush's speech:

John McCain's life is a story of service above self. Forty years ago, in an enemy prison camp, Lieutenant Commander McCain was offered release ahead of others who had been held longer.

His wounds were so severe that anyone would have understood if he had accepted.

John refused. For that selfless decision, he suffered nearly five more years of beatings and isolation. When he was released, his arms had been broken, but not his honor.

Fellow citizens, if the Hanoi Hilton could not break John McCain's resolve to do what is best for his country, you can be sure the angry left never will. (End of this section of Bush speech.)

Sullivan continues: Now have you ever heard someone recount what was done to John McCain in the Hanoi Hilton and not use the word "torture"? I haven't. "Beatings and isolation" is a bizarre phrase to use to describe the torture that was done to John McCain. I'm sure McCain thinks so.

Am I being persnickety? As with the Trig story, there's a very easy way to find out - if the press will simply do its job. A White House reporter needs to ask the president, quite simply, if he believes that John McCain was tortured in Vietnam. Just ask. Use that specific word. See if he can answer.

The reason he put it this way, I infer, is that if he describes what was done to McCain as torture, he has incriminated himself for war crimes.

I repeat: The reason he put it this way is that if he describes what was done to McCain as torture, he has incriminated himself for war crimes.

Now prove me wrong. Please prove me wrong.
###


Before 1945, the city of Nürnberg was most famous for producing a type of gingerbread called Nürnberger Lebkuchen; now the city is known the world over as the location of the International Military Tribunal where the Nazi war criminals were put on trial in the aftermath of World War II. To Americans, the name Nuremberg is synonymous with Justice, just as the name Munich is synonymous with Appeasement. The Palace of Justice (Justizgebäude) at Fürtherstrasse 22, where the trial took place, is still being used as a courthouse; the building is shown in the photographs on this page.

Trials are still being conducted in room #600, the very room where the Nazi leaders sat as they listened to testimony about their Crimes against Peace and Crimes against Humanity over half a century ago. The Justizgebäude, where the defeated Nazis faced the judgment of the Allies, is on the opposite side of the city, and a world away, from the Zeppelin Field where Hitler addressed the cheering crowds and the German Army once paraded in all its glory.

(blogger's note: excuse bolding which is to become italics)

...It was at the Nuremberg trial that the whole world learned for the first time about the Nazi atrocities, including all the gory details of the medical experiments on prisoners...

The horror films of the Allied liberation of the Nazi concentration camps at Bergen-Belsen, Buchenwald and Dachau were shown at the trial, to the defendants and to the public. An American-made documentary film, which showed all the graphic details of the gas pipes and control wheels which regulated the flow of poison gas through the shower heads of the Dachau gas chamber, was shown in the courtroom. The German military and economic leaders were visibly stunned by this proof... and claimed that they were seeing and hearing about this unprecedented atrocity for the first time. The American public was horrified that such a thing could take place in the civilized world.

For the most part, the International Military Tribunal charged the defendants, not with individual responsibility for specific crimes, but with a "Common Plan" to commit crimes. Under the Common Plan charge, the accused military and civilian leaders, INCLUDING ONE JOURNALIST, were indicted for CRIMES AGAINST PEACE, including the LAUNCHING OF AN AGRESSIVE WAR; War Crimes in violation of the provisions of the HAGUE CONVENTION of 1907 and GENEVA CONVENTION of 1929; and CRIMES AGAINST HUMANITY, covering any and all atrocities committed against civilians by the Nazi regime during its entire reign. Under the Common Plan concept, ORGANIZATIONS as well as individuals were charged, so that MEMBERSHIP IN AN ORGANIZATION, such as the Nazi party, the SS or the Gestapo, was enough to make one a war criminal.

The Nazis were specifically charged with violating the Hague convention of 1907 by INVADING and ATTACKING countries WITHOUT A FORMAL DECLARATION OF WAR and with the violation of the Kellogg-Briand Pact of 1928 which called for RENUCIATION OF WAR as an INSTRUMENT OF NATIONAL POLICY. Under each of the three counts in the indictment, a detailed list of all the Nazi crimes was entered by each of the four Allied countries: Great Britain, THE UNITED STATES OF AMERICA, France and the Soviet Union.

...According to the book "Justice at Nuremberg" by Robert E. Conot, the idea for the Common Plan charges against the Germans came from Lieutenant Colonel Murray C. Bernays, a Lithuanian Jew who had emigrated to American in 1900 at the age of six. Before the trial, according to Conot's book, Churchill and Roosevelt's advisor Henry Morgenthau, Jr. had advocated that "the principal Nazi leaders should be charged with their crimes, then summarily shot." Bernays argued for a trial as "the educational and therapeutic opportunity of our generation." Regarding the Nazi crimes, Bernays wrote "The crimes and atrocities were not single or unconnected, but THE INEVITABLE OUTCOME OF THE BASIC CRIMINAL CONSPIRACY of the Nazi party."

The Nuremberg trial had far-reaching consequences - for America and the world. In 1948 President Harry Truman desegregated the American armed forces, and in 1954 after the Supreme Court ruled that school segregation was unconstitutional, Justice Robert Jackson who participated in the decision said that the Nuremberg experience and the "AWFUL CONSEQUENCES OF RACIAL PREJUDICE...revealed by ... the Nazi regime" had influenced his decision. Justice Jackson was one of the judges who had presided over the Nuremberg trial.

According to Conot's book, before the trial there was NO INTERNATIONAL CRIMINAL CODE; the barbaric practices of the Nazis became war crimes under international law only after the trial when the United Nations passed the GENOCIDE CONVENTION and a DECLARATION OF HUMAN RIGHTS.

...All the crimes that were revealed at the Nuremberg trial have now been incorporated into international law and THE DEFENSE USED AT THE NUREMBERG TRIAL by the German generals and admirals THAT THEY WERE JUST OBEYING ORDERS IS NOT LONGER VIABLE.