by Kalana Senaratne
Investigating the conduct of both State and non-State actors during times of armed conflict is an important function. Such investigations serve a number of important purposes; such as the protection of the rights of innocent civilians, ensuring accountability for any crimes committed, and avoiding the prevalence of a culture of impunity. But initiating such investigations cannot be done in a selective way since armed conflicts are armed conflicts irrespective of whether they involve small and weak States or big and powerful States.
Also, international law cannot be applied and enforced selectively, for international law, by nature, is a universal discipline. And what should be prevented is not only the prevalence of a culture of impunity within a State, but also the prevalence and spread of impunity in the world arising due to the actions of the major powers.
This is why investigating the irresponsible conduct of the US, its alleged commission of atrocities, especially in Iraq (and other places, such as Afghanistan), is absolutely necessary. In this regard, much has been revealed in recent times, which makes an investigation of the US an absolute imperative, for the greater promotion of the international rule of law, globally.
For a number of years now, ever since the illegal invasion of Iraq took place, the world has come to know of the nature of atrocities that have been committed by the US forces (and its allies). To hear about the numerous acts of indiscriminate bombings and killings of civilians and various other acts of torture has not been surprising. People around the world are aware of much of what has happened; a point which was driven home in a most subtle and effective way by Sri Lanka’s Foreign Minister recently at the Asia Society.
That is why the recent disclosure (through a staggering 391, 832 reports) by Wikileaks of a series of acts pointing to serious violations of humanitarian law by the US causes little surprise. While these reports point out, inter alia, the number of innocent civilians killed, there is also reference made to what is known as ‘Frago 242’; a frago being a "fragmentary order" which is aimed at ordering coalition troops not to investigate any breach of the laws of armed conflict, such as the abuse of detainees, unless it directly involves coalition members.
Where the alleged abuse is committed by Iraqi on Iraqi, "only an initial report will be made" and "no further investigation will be required unless directed by HQ", Wikileaks pointed out. The US seems not only to have violated international law, but is also seen to be acting in the most irresponsible manner, showing little or no respect for humanitarian laws or humanitarian concerns in general. Given the fact that these instances relate to the suffering of civilians in particular, the US also shows that they have little concern as regards the protection of civilians, especially if they are not US nationals.
An investigation, therefore, is absolutely necessary. It remains to be seen whether the current US leadership would give serious thought to investigating these accusations. Investigating this alleged shameful conduct would be what a responsible super-power would do, especially at a time when it proclaims that it is different from the previous US regime of former President Bush. If not, one could only believe in the accusations leveled by the likes of Tariq Ali for instance, who has argued that President Obama "has acted as just another steward of the US Empire, pursuing the same aims as his predecessors, with the same means but with a more emollient rhetoric."
It would not be entirely wrong to believe this argument, given certain other developments, one being the recent decision taken by the Obama-administration to exempt Yemen, Chad, the Democratic Republic of Congo and Sudan that use child soldiers, from U.S. penalties under the 2008 Child Soldiers Prevention Act, "in the national interest of the United States". While the 2008 Act which was signed into law by President Bush prohibits foreign military financing, training and assistance to governments which use child soldiers, the US’s decision comes in the context of UN having identified many of the above States as those which recruit child soldiers (as pointed out by HRW, in June this year).
So, will there be an investigation? Interestingly and importantly, the UN Special Rapporteur on Torture, Manfred Nowak, has demanded an investigation into all the accusations of cases of reported torture, reminding President Obama of the obligations under the Torture Convention. Calling for a full investigation into torture practices by US officials, Mr. Nowak has gone on to point out that "It shows the Bush administration and the Obama administration know and do know when they are handing over detainees under US custody to Iraqi security forces that there is a serious risk of them being subjected to torture," further noting that it violated international law (Deccan Herald report titled, UN official calls for ‘full investigation’ into US torture).
This last point goes to show that the US is little interested in the enforcement of humanitarian laws. If US interests are not affected, humanitarian law is good law. But when and where their interests are threatened or affected, humanitarian law seems to be a major problem, and is considered to be ‘bad international law’.
Particular note should be made of these developments, as well as of the calls for investigations made by top UN officials. If these calls for full investigations go unheeded or do not materialize, in a context where very serious and damaging evidence has surfaced, the UN Secretary General would need to take action to ensure that some form of credible investigation takes place.
It is here then that the novel and somewhat innovative practice of appointing a Panel of Experts to advice the UNSG (as was done recently with regard to the case of Sri Lanka) needs to be repeated. The continuing failure of the UN to ensure that the US administration respects international humanitarian laws should, by now, seriously worry Mr. Ban Ki Moon, for it is clear that the US is a persistent violator of international humanitarian and human rights law. It not only went unscathed when it initiated the illegal invasion of Iraq (along with the UK), but continues to enjoy some mysterious form of immunity when it comes to the enforcement of international law.''
Given the unfortunate realities of geopolitics, the inability of the UN to initiate a successful and credible investigation concerning the accusations leveled against the US could be understood. But what cannot be accepted by any means is the unwillingness, on the part of the UN or the UNSG, to at least consider how some form of investigation and inquiry should be conducted. Given the busy schedule of the UNSG and the vast volume of material highlighting alleged atrocities committed by the US, the UNSG might find the appointment of another Panel of Experts very useful.
It is time for the UNSG, and the UN in general, to wake up and realize that an irresponsible US, which continues to act irresponsibly, would help create a far more irresponsible world, wherein very little or no importance would be given to the promotion of the international rule of law. Today, people and States around the world are witnessing the way in which international law is being enforced in the most selective manner possible. Very soon, as a consequence of the growing realization that the US is beyond the reach of international law, a situation will arise whereby no other State would be willing to tolerate even that.
(Kalana Senaratne is a postgraduate research student based at the Law Faculty, University of Hong Kong)