The Hypothetical Jones Case and US Hypocrisy on War Crimes

The case of US Marine Anthony Jones is not an unknown one throughout history. Sergeant Jones is before a court for counts of torture against enemy combatants and inhumane treatment of prisoners. These incidents happened on the US base in Guantanamo Bay, home to an infamous detention centre where the United States sends prisoners from the War on Terror. Those detained in Guantanamo Bay have ranged from truly cold blooded terrorists to sometimes innocent civilians that were just in the wrong place at the wrong time. The base has also been a hot button debate point since the beginning of detention there, with much of the American public calling for its closure. President Barack Obama even promised to close it during his campaign and yet, it remains open and fully operational. American hardliners claim that this is for the security of the country and the world as a whole but, on the international stage, the climate towards “Gitmo” is often negative. Many human rights groups have spoken on its track record with the treatment of prisoners, these issues of mistreatment and miscarriages of justice have even made their way to the Supreme Court, mostly during the Bush administration. The history of Guantanamo Bay is what really emphasises the actions taken by Sgt. Jones. Given the track record of Guantanamo Bay soldiers, it is not outlandish to assert that Jones may be guilty. If the accusations are correct, Jones would be in violation of the Geneva Conventions and the US War Crimes Act. The Jones case is but another repulsive effect of the War on Terror.

 

The most obvious and potent laws Jones is in violation of are the Geneva Conventions. The Geneva Conventions are a treaty signed by the victors of the Second World War and their allies. It sets forth basic rules and “regulates the conduct of armed conflict”(ICRC). While not formed by the United Nations (it was signed under the direction of the International Committee of the Red Cross), it is enforced by the International Criminal Court (ICC) set up under the Rome Statute. Unfortunately, the United States is not a signatory of the Rome Statute, rendering US Soldiers essentially immune to prosecution by the ICC. This, however, does not mean the Geneva Conventions are unenforceable on Jones. In 2006 the Supreme Court ruled in the case of Hamdan v. Rumsfeld. The case was brought upon by one Salim Ahmed Hamdan, former chauffeur to Osama Bin Laden. Hamdan was being held in Guantanamo Bay and said that his rights as a military captive were being violated. Under the Geneva Conventions, the right of habeas corpus is valid for all in military custody. Also technically, Hamdan’s rights as a military prisoner were being violated by the fact he was not being tried under a military court (Convention III, Article 84). The question brought to the Supreme Court was whether or not the Geneva Conventions were applicable and enforceable in US courts as there had been no precedence. The Court ruled in favour of Hamdan, deeming his past trial illegal. What this also gave was the enforceability of the Geneva Conventions in US courts for the first time. It forced the US to comply and give its prisoners rights.

 

Now that we have established the place of the Geneva Conventions in US law, we can begin to get into Jones’ actual actions towards the prisoner. The prisoner alleges that he was tortured using the method of waterboarding. Waterboarding is a torture method “in which a person is strapped head downwards on a sloping board or bench with the mouth and nose covered, while large quantities of water are poured over the face.” (Oxford Dictionary). The torture was in order to gain information and secrets from the detainee. Common Article III of the Geneva Conventions bans the use of torture on anyone involved in an armed conflict. Article 12 of the Third Geneva Convention also states that “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever”. Besides the Geneva Conventions, Jones is also in violation of US law on the subject. The most obvious of these being the 8th Amendment to the constitution which prohibits “cruel and unusual punishment”. Jones would also be in violation of The Torture Act (18 U.S.C. § 2340), which prohibits torture of those in custody of US authorities. Acts of torture also go against the War Crimes Act of 1996, which mentioned that certain provisions of the Geneva Conventions were applicable in the conviction of US soldiers. However, it was not until the aforementioned Hamdan v. Rumsfeld that the Geneva Conventions would be fully solidified in US law. If Jones did torture this detainee, he has not only violated international law but also, the laws of the United States. Similar shameful displays are sadly not unseen amongst US military personnel, as the civilians of any country we have invaded could tell you.

 

If the previous explanations were not enough, we must look back to the applicability of the constitution. Those with very little knowledge of much of anything and espouse American exceptionalism are inclined to the notion that the constitution would not apply to prisoners in Guantanamo Bay. This notion is simply false. The aforementioned Torture Act applies to the United States. The act defines the United States as “the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States”. This included military bases and installations. This law is backed up by the case of Hamdi v. Rumsfeld. The case was over a US citizen found in Afghanistan and arrested by military forces. Hamdi, the US citizen being held, was sent to Guantanamo Bay and later transferred to a military prison in Virginia. His father then submitted a writ of habeas corpus in order to declare his son’s imprisonment illegal. The Supreme Court ruled that the right to habeas corpus applied to US citizens imprisoned while fighting for enemies of the US. The right of all prisoners to habeas corpus, regardless of origin, was reaffirmed in the previously mentioned Hamdan v. Rumsfeld. The right to habeas corpus being extended to those imprisoned in Guantanamo Bay means that the whole of the constitution is applicable to them, just as any other prisoner in the penal system. Some may say that technically Guantanamo Bay isn’t American, as the land is leased from the Cuban government. The lease also states that the base is still sovereign Cuban land under this lease. This notion is a misinterpretation of the lease of Guantanamo Bay and the law. While the lease does say it is Cuban land, that land is under US administration and all the laws of the US still apply and are administered. This is the same rule that applies to any US foreign military base, embassy, consulate, or installation. The constitution applies to these prisoners and they have the same rights as anyone under the law.

 

The United States is a signatory of many treaties and international agreements attempting to provide human rights and dignity to prisoners of war. The US is glad to enforce these upon other nations but has gone to great lengths to make sure their soldiers will not be convicted. This is the real shame of the Jones case and others like it. As previously mentioned, the US is not a signatory of the Rome Statute, which formed the ICC. The ICC enforces the Geneva Conventions and other agreements the US has signed. These include The Universal Declaration of Human Rights, American Convention on Human Rights, and the UN Convention Against Torture. The fact that the US can violate these agreements and get away with it without conviction and then condemns countries of the same crimes is the type of imperial hypocrisy that has dominated American foreign policy. US violations of sovereignty and human rights go unchallenged in the world due to the post-Cold War imperial hegemony held by America.

 

What the real and terrible conclusion to the Jones case is that, while he may very well be guilty, he would most likely never be convicted. While torture is declared illegal in much of US law, such as the Torture Act, President Bush would amend this law to exempt certain government personnel such as CIA agent and US soldiers in certain circumstances. These special circumstances have led to the dropped convictions of Guantanamo Bay soldiers in the past. There is also one simple fact, a US court will not be impartial to a soldier. The grand ideal of the brave American soldier has been too far implanted in the American civilian psyche to allow for many to judge impartially. What court wants to put one of our “brave protectors” behind bars? This is why the United States needs to allow independent international courts judge US war crimes abroad and the actions of the US against foreign nationals in their custody. This, of course, will never happen, it would contradict and undermine US policy. Besides, who is there to challenge the United States? The country of checks and balances has none for its own actions. That is a true hypocrisy.

 

Works Cited

Hamdan v. Rumsfeld. (n.d.). Oyez. Retrieved March 19, 2018

 

Hamdi v. Rumsfeld. (n.d.). Oyez. Retrieved March 19, 2018

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s