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Abu Ghraib and the War on Terror—a case against Donald Rumsfeld?

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Abstract

The pictures of the inhuman and abusive treatment of Iraqi prisoners at the Abu Ghraib prison shocked the world. The authors of this contribution will take a criminological approach to the crimes committed and will show—by using an analytical framework used by organizational criminologists—that the abuse and torture at Abu Ghraib was an inevitable outcome of the War on Terror as launched by the U.S. administration in a reaction to the terrorist attack launched against it. The abuse at Abu Ghraib which violated U.S. as well as international human rights law was not caused by a few rotten apples as policymakers tried to make us believe, but was a clear example of a state crime. A state crime for which U.S. leaders within the Bush administration such as the Secretary of Defense Donald Rumsfeld, might be held criminally responsible if they would be prosecuted by the ICC.

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Notes

  1. PHR conducted medical evaluations of eleven detainees—four of which had been detained in Aghanistan and Guantanamo Bay, seven had been detained at Abu Ghraib—by using the Istanbul Protocol which gives guidelines for assessing physical and psychological evidence of torture. See the Istanbul protocol: http://www.unhchr.ch/pdf/8istprot.pdf.

  2. See the full report PHR (2008) Broken laws, broken lives—medical evidence of torture by US personnel and its impact, available on: http://brokenlives.info/?page_id=69.

  3. See the speech given by Bush on May 25th 2004, available on http://www.commondreams.org/headlines04/0525-01.htm.

  4. See the media reports, several reports by Human Rights Watch such as the report by R. Brody (2004). The road to Abu Ghraib and the report by J. Sifton (2006) “No blood, no foul”- soldiers’ accounts of detainee abuse in Iraq and the reports by Physicians for Human Rights (PHR), such as PHR (2005). Break them down—Systematic use of psychological torture by U.S. forces and PHR (2007). Leave no marks—enhanced interrogation techniques and the risk of criminality but also the Taguba Report (2004). Article15–6 Investigation of the 800th Military Police Brigade, page 16.

  5. From the documentary ‘Taxi to the dark side’ directed by Alex Gibney (2007).

  6. See for the full statement: http://www.whitehouse.gov/news/releases/2001/09/20010911–16.html.

  7. See Memo # 11 signed by Bush, [4], 134–135.

  8. See memo # 25 in Greenberg and Dratel [4], xv.

  9. See Memo # 7 in Greenberg and Dratel [4], xv.

  10. See the infamous memo by Assistant Attorney General Jay S. Bybee in Greenberg and Dratel [4], xiii.

  11. See Memo # 21 in Greenberg and Dratel [4].

  12. A government official is quoted to have said: ‘We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.’ HRW 2005, 17.

  13. See Memo 21 in Greenberg and Dratel [4] and see for Secertary’s Rumsfeld approval: http://www.npr.org/documents/2004/dod_prisoners/20040622doc5.pdf including the by know infamous words reflecting his disdain: ‘However, I stand for 8–10 hours a day. Why is standing limited to 4 hours?’.

  14. In his book Torture Team Sands 2008, 2 qualified this memo as a piece of paper which changed the ‘course of history.’

  15. Memo of August 1st 2002 reprinted in Greenberg and Dratel [4], 172–217.

  16. See the published interrogation log which is available at: http://www.time.com/time/nation/article/0,8599,1169322,00.html.

  17. See the broad academic consensus as well as the decision by the by the ICTY 16 November 1998, Prosecutor v. Delacic and Others, nr. IT-96–21-T, par. 454.

  18. See also the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, United Nations, General Assembly A/59/324, par.13–24.

  19. See Article 75 ff. of the Fourth Geneva Convention.

  20. The survey which was conducted by an army mental health advisory team sampled 1700 soldiers and marines between August and October 2006. See BBC News of May 4th 2007 available: http://news.bbc.co.uk/2/hi/middle_east/6627055.stm.

  21. NATO statement (September 12, 2001). Full text available at NATO website: http://www.nato.int/docu/pr/2001/p01–124e.htm.

  22. It soon turned out that there were no chemical weapons in Iraq and the Bush administration has been heavily criticised for this false pretext to invade Iraq. A Committee on Governmental reform of the United States House of Representatives concluded in a special investigation on March 16, 2004 that the five main officials made 237 misleading statements in 125 public appearances relating to the alleged threat Iraq posed.

  23. The so-called Ice man who featured in one of the pictures was allegedly tortured to death.

  24. Interview former Abu Ghraib commander Janice Karpinski. Documentary ‘Ghosts of Abu Ghraib’.

  25. Sworn statement by Army Captain Donald. J. Reese. Available at: http://www.publicintegrity.org/docs/AbuGhraib/Abu10.pdf.

  26. See the testimony and the case of Javal Davis who snapped and as a consequences thereof jumped on the fingers and toes of a few prisoners.

  27. From CNN transcripts, available at: http://transcripts.cnn.com/TRANSCRIPTS/0405/16/sm.01.html.

  28. All of these investigations took place in 2004. See for the full reports: Greenberg and Dratel [4].

  29. See for example the dismissal of a Torture case on March 27th 2006 by Judge Thomas Hogan.

  30. See Memo # 19 in Greenberg and Dratel [4], 227.

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Authors and Affiliations

  1. Department of Criminal Law and Criminology, VU University Amsterdam, De Boelelaan 1105, 1081 HV, Amsterdam, Netherlands

    Alette Smeulers & Sander van Niekerk

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  1. Alette Smeulers
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  2. Sander van Niekerk
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Correspondence to Alette Smeulers.

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Smeulers, A., van Niekerk, S. Abu Ghraib and the War on Terror—a case against Donald Rumsfeld?. Crime Law Soc Change 51, 327–349 (2009). https://doi.org/10.1007/s10611-008-9160-2

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