Why We Must Prosecute by Senior Prosecutor/ International Criminal Tribunal

Why We Must Prosecute: Torture Is a Breach Of International Law

By Mark J. McKeon
Tuesday, April 28, 2009

On Sept. 11, 2001, when the twin towers were hit, I was sitting in a meeting in The Hague discussing what should be included in an indictment against Slobodan Milosevic for war crimes in Bosnia. I was an American attorney serving as a prosecutor at the International Criminal Tribunal for the former Yugoslavia, and there was no doubt that Milosevic should be indicted for his responsibility for crimes of the torture and cruel treatment of prisoners. As the head of state at the time those crimes were committed, Milosevic bore ultimate responsibility for what happened under his watch.

While at The Hague, I felt myself standing in a long line of American prosecutors working for a world where international standards restricted what one nation could do to another during war, stretching back to at least Justice Robert Jackson at the Nuremberg trials. Those standards protected our own soldiers and citizens. They were also moral and right. So I didn't understand why, a few months after the attacks in 2001, the Bush administration withdrew its consent to joining the International Criminal Court. Wasn't accountability for war crimes one of the things America stood for? Although staying with the court did mean that the United States would be subject to being charged in that court, how likely was that to happen? Surely we would never do these things. And, in any event, the court could only assume jurisdiction over a person whose own government refused to prosecute him; surely, that would never happen in the United States.

And yet, seven years later, here we are debating whether we should hold senior Bush administration officials accountable for things they have done in the "war on terror."

In 2001 and the following few years, we at the international tribunal built a strong court case against Milosevic. We put on evidence that he had effective control over soldiers and paramilitaries who tortured prisoners, and worse. We brought into court reports of atrocities that had been delivered to Milosevic by international organizations to show his knowledge of what was happening under his command. And we watched as other heads of state were indicted for similar crimes, including Charles Taylor in Liberia, Omar Hassan al-Bashir in Sudan and, of course, Saddam Hussein in Iraq.

At the same time, I watched with horror the changes that were happening back home. The events are now well known: Abu Ghraib; Guantanamo; secret "renditions" of prisoners to countries where interrogators were not afraid to get rough; secret CIA prisons where there appeared to be no rules. I tried to answer, as best I could, the questions from my international colleagues at The Hague about what was happening in and to my country. But as each revelation topped the last, I soon found myself without words.

I hope that the United States has turned the page on those times and is returning to the values that sustained our country for so many years. But we cannot expect to regain our position of leadership in the world community unless we hold ourselves to the same standards that we expect of others. That means punishing the most senior government officials responsible for these crimes. We have demanded this from other countries that have returned from walking on the dark side; we should expect no less from ourselves.

To say that we should hold ourselves to the same standards of justice that we applied to Slobodan Milosevic and Saddam Hussein is not to say that the level of our leader's crimes approached theirs. Thankfully, there is no evidence of that. And yet, torture and cruel treatment are as much violations of international humanitarian law as are murder and genocide. They demand a judicial response. We cannot expect the rest of humanity to live in a world that we ourselves are not willing to inhabit.

The writer was a prosecutor at the International Criminal Tribunal for the former Yugoslavia from 2001 to 2004 and a senior prosecutor from 2004 to 2006.

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