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Impunity from My Lai to Abu Ghraib

ON THE morning of March 16, 1968, as many as 500 unarmed civilians were massacred by American forces in My Lai in Vietnam. It was the single worst act of atrocity committed by the U.S. military on foreign soil after World War II. The response by the political leaders was eerily similar to what we are seeing today in the aftermath of Abu Ghraib. President Nixon termed the killings at My Lai an aberration, an isolated incident. Though 25 men were charged, including a General, only a few were tried and only one, Lt. William Calley, was found guilty. Calley was sentenced to life. President Nixon announced that he would review the whole decision. Calley was released almost immediately on a judicial order and pending an appeal to the Supreme Court, he was paroled by the Army and released on bail. In the end, his sentence was reduced and was released in 1976. A recent effort by the survivors of My Lai to bring a civil case against Calley and his associates failed before U.S. courts which decided that these claims were too old. Thus, what was perhaps the worst, most publicised massacre by U.S. forces that was clearly a gross violation of the U.S. and international law, has resulted in no accountability for the wrongs committed by U.S. soldiers.

Lack of mechanism

Though more than 30 years have passed, the prospects of accountability for the abuses at Abu Ghraib are no better and perhaps worse. The biggest impediment to accountability in the U.S. is the lack of any real mechanism to express public outrage and demand accountability. This is no different from My Lai, when polls showed that an overwhelming 78 per cent of the U.S. public disagreed with the decision of the military court to convict William Calley, but they did so partly because they thought that Calley was being made a scapegoat. There was simply no mechanism for translating the widespread public anger and revulsion into a series of concrete steps towards accountability of senior officers and civilian leaders, not just the low-level soldiers.

The seven soldiers who have been chargesheeted for abuses at Abu Ghraib are likely to elicit a similar public response in case they are convicted. Accountability of senior leaders such as Rumsfeld or Bush is simply not on the political agenda. Evidence of this comes from the two reports on Abu Ghraib recently, one conducted by the Army itself and the other by a civilian panel appointed by Secretary Donald Rumsfeld. Neither points the finger at the top civilian or military leadership and instead chooses to treat Abu Ghraib as a case of a few bad apples. This is exactly how My Lai was handled.

What's worse, with the passage of time, public outrage may be dissipating about the Abu Ghraib abuses. A major reason for this is the sense, never expressed in public, that the abuses at Abu Ghraib do not really amount to torture though they may constitute violations of civil rights. Unlike My Lai, there was no massacre. And making prisoners at Abu Ghraib subject to hooding, loud music, or sexual humiliation do not seem to ring the alarm bells that much more horrific forms of torture will, in the minds of many.

This belief is patently wrong since there is plenty of documented evidence that the abuses at Abu Ghraib and elsewhere were worse than reported and form a pattern when considered together with the detentions at Guantanomo and Afghanistan. Besides, the abuses at Abu Ghraib do constitute torture under international law.

But it is not implausible for many to believe that civilised, democratic nations ought to have a measure of discretion to apply some force and wring truths out of arrestees, especially in classic ticking bomb scenarios. This belief rests on a comparison with the practices of other allegedly democratic nations such as Israel, which had approved moderate physical pressure on detainees as defined by its Landau Commission, until it was outlawed by the Israeli Supreme Court in 1999. Other democracies such as Britain, France and India are no different in approving, whether de facto or de jure, varying levels of torture.

Despite the recent growth of international criminal law and a raft of institutional experiments for accountability around the world, almost none has involved the prosecution of any leader or soldier from the West. This must end. The West must subject at least its most egregious abuses such as the U.S. detention and interrogation practices after 9/11 to penalties. Here, there is the sense that the wheels of domestic justice will inevitably, though slowly, move towards accountability. In particular, the U.S. military is believed to have an effective internal mechanism of accountability.

However, judging by the record of the last half a century at least, the U.S. military is good at maintaining discipline and punishing soldiers when they commit ordinary crimes as when it charged two U.S. soldiers in South Korea for a fatal traffic accident recently. But it has a weak track record of sanctioning its soldiers, especially senior officers, for acts abroad that may constitute violations of the laws of war or crimes against humanity. As Human Rights Watch and other groups have argued, what is needed, as a minimum, is an independent domestic mechanism such as a Special Prosecutor to inquire into the Abu Ghraib abuses to establish credibility in the American justice system.

Ideally, there is also a need for an international commission of enquiry, which can render an objective verdict that the rest of the world can accept as just. Otherwise, what the world may be left with is, effectively, institutionalised impunity for U.S. leadership while allowing some ground soldiers to be made scapegoats.

BALAKRISHNAN RAJAGOPAL

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