What's New ?

A New Decision on Ethiopia and Eritrea Dec. 2005

 

17 November, 2005: New York Times p. A-16: Pentagon Justifying Incendiary Arms Use:

The Pentagon acknowledged Wednesday that it used incendiary white phosphorus munitions in an offensive against insurgents in Falluja, Iraq, last year and defended their use as legal amid concerns by arms control advocates.

[An army Spokesman] acknowledges that the United states military had used the weapons, but only against insurgents, he said. He denied that the flammable weapons had been used against civilians.  An Italian state television report this month said such munitions had been used against men, women and children in Falluja who had been burned to the bone.

"We categorically deny that claim," he said. White phosphorus weapons are not outlawed or banned by any convention, he said.

A protocol to an accord on conventional arms, which took effect in 1983, forbids using incendiary weapons against civilians. It also forbids their use against military targets in concentrations of civilians, except when the targets are clearly separated from civilians and "all feasible precautions" are taken to avoid civilian casualties.

The United States is a party to the overall accord, but has not ratified the incendiary arms protocol.

NOTE: See Chapter 3.2.1.

 

An Essay For The Winter of 2005/2006

Is Waterboarding Torture: Ask Our World War Two Vets

 

In a recent investigative report, Brian Ross and Richard Esposito of ABC News described the CIA’s use of an interrogation technique called "waterboarding."

The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda's toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess.

In an editorial dated November 12, 2005 the Wall Street Journal denied that waterboarding was "...anything close to torture."

No one has yet come up with any evidence that anyone in the U.S. military or government has officially sanctioned anything close to "torture." The "stress positions" that have been allowed (such as wearing a hood, exposure to heat and cold, and the rarely authorized "waterboarding," which induces a feeling of suffocation) are all psychological techniques designed to break a detainee.

So, who’s right? Is waterboarding torture, or is it merely a stressful psychological technique?

Interestingly, the United States has long since answered that question. Following the end of the Second World War we prosecuted a number of Japanese military and civilian officials for war crimes. including the torture of captured Allied personnel. At one of those trials, United States v. Sawada, here’s how Captain Chase Nielsen, a crew member in the 1942 Doolittle Raid on Japan, described his treatment, when he was captured, (and later tried for alleged war crimes by a Japanese military commission):

Q: What other physical treatment was administered to you at that time?

A: Well, I was given what they call the water cure.

Q: Explain to the Commission what that was.

A: Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water was poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let me up until I'd get my breath, then they'd start over again.

Q: When you regained consciousness would they keep asking you questions?

A: Yes sir they did.

Q: How long did this treatment continue?

A: About twenty minutes.

Q: What was your sensation when they were pouring water on the towel, what did you physically feel?

A: Well, I felt more or less like I was drowning, just gasping between life and death.

The prosecutor in that case was vehement in arguing that the captured Doolittle fliers had been wrongfully convicted by the Japanese tribunal, in part because they were convicted based on evidence obtained through torture. "The untrustworthiness of any admissions or confessions made under torture," he said, "would clearly vitiate a conviction based thereon."

At the end of the Tokyo War Crimes Trial, the International Military Tribunal for the Far East of which the United States was a leading member (the Tribunal was established by Douglas MacArthur) convicted former Japanese Prime Minister Tojo and numerous other generals and admirals of a panoply of war crimes. Among them was torture:

The practice of torturing prisoners of war and civilian internees prevailed at practically all places occupied by Japanese troops, both in the occupied territories and in Japan. The Japanese indulged in this practice during the entire period of the Pacific War. Methods of torture were employed in all areas so uniformly as to indicate policy both in training and execution. Among these tortures were the water treatment...

The so-called "water treatment" was commonly applied. The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness. Pressure was then applied, sometimes by jumping upon his abdomen to force the water out. The usual practice was to revive the victim and successively repeat the process.

 

So, is waterboarding torture? Do we have to wait to find out until an enemy again does it to captives from our armed forces? What was the Wall Street Journal thinking?

© 2005 Evan Wallach

For those who are interested in Sawada, the full transcripts and entire trial record may be found in the National Archives. The case is United States v Sawada et al, tried at Shanghai before a United States Military Commission (27 Feb-15 Apr., 1946). I have a copy of the entire trial record if anyone ever needs it.

A synopsis may be found in most decent law school law libraries in the Law Reports of Trials of Major War Criminals Vol 5 at p.1  There are, of course, lot of other references to water torture by the Japanese, not least in the Judgment of the IMT Far East.

Evan Wallach

January 23, 2006

Here's some material I garnered while researching water torture. I have not researched the underlying material for these quotes but I must say I found some of this quite amazing. There is a good deal more but what follows has a certain resonance with Edward Gibbon’s “I have but one lamp by which my feet are guided, and that is the lamp of experience. I know no way of judging of the future but by the past,” and George Santayana’s “Those who cannot learn from history are doomed to repeat it.”

 

 

All Quotes From Stuart Miller, Benevolent Assimilation, Yale Univ. Press (1982)

 

“…when pursued too closely [Filipino guerillas] hide their rifles and scatter to their homes, and no longer wear uniforms or any distinctive insignia but use the dress of noncombatants of the country.”

General Frederick Funston, San Francisco Call, Sept. 20, 1900.

 

            …men who participate in hostilities without being part of a regular organized force, and without sharing continuously in its operations, but who do so with intermittent returns to their homes and vocation, divest themselves of the character of soldiers and if captured are not entitled to the privileges of prisoners of war.

General Arthur MacArthur S. Doc. 167, 56th Cong. 1st Session P. 3

 

“To kill rebellion by inches and trust to patience and slow time to bring back peace and contentment is not a humane or wise policy.  It cannot be the lack of money. Is it the lack of troops, supplies, transportation, ammunition, artillery? Is it the lack of a competent commander? The public simply does not know where the trouble lies. It does know that there is trouble somewhere. Where is it?  How long is this Philippine War going to last?

New York Times Editorial, Jan. 2, 1901.

 

The United States at the present moment is not, technically, engaged in any war.  But it is engaged in the warlike enterprise of putting down what is technically an insurrection—a large and baffling one. It seems strange to Americans that the Filipinos—or so many of them—are bitterly opposed to our sovereignty. They must know it is likely to be a great improvement over former conditions…Nevertheless they fight on.  The situation is a depressing one from every point of view.  Good men are perplexed.  Questions of right and wrong, of consistency with American ideals and principles, of stifling the ‘passion for independence,’ of national responsibility, of prudence—all are hard to decide.

Public Opinion 30 (1901) 326.

 

“A better index of war-weariness than poor protest turnouts might have been the low enlistment rate for a third wave of volunteers as the second one approached its eighteenth month of service. The rate was low enough to foster rumors of pending conscription. 

Miller, Benevolent Assimilation at 155.

 

General MacArthur told William Howard Taft (then Chair of the Second Philippine Commission) that President McKinley’s instructions to the Commission constituted “an unconstitutional interference with his prerogative as military commander in these islands.”

Id at 166.

 

Yale Prof. Of International Law Theodore Woolsey writing in Outlook on the use of enemy uniforms by U.S. troops as a ruse of war asked readers to “contrast the good likely to flow from the hastening of the end of the insurrection by means of it, with the offense of the use of enemy uniforms—a stratagem illegal in war only with a lawful belligerent—and you have the measure of the justice of the criticism.”

Id at 170.

 

“They have improvised and secreted in the vicinity of roads and trails rudely constructed infernal machines propelling poisoned arrows or darts.”

Order issued by General J. Franklin Bell listing violations of the laws of war by insurrectionists, Dec. 7, 1901. 

Taft, testifying before the U.S. Senate that “the so called water cure” was used “on some occasions to extract information.”

 

       For those interested in the question of use of military tribunals to try suspected terrorists please see the following two articles. Wallach, The Procedural And Evidentiary Rules Of The Post-World War II War crimes Trials: Did They Provide An Outline For International Criminal Procedure?, 37 Columbia Journal of Transnational Law 851 (1999). Wallach Afghanistan, Querin and Uchiyama: Does the Sauce Still Suit the Gander?.

 

Penultimate article. It deals with Abu Ghraib and tribunals.

Here's a rough draft of the latest (due for publication Columbia Journal Transnational Law Jan/Feb 07) on history of water torture.