Why have no US government officials been charged under the Geneva convention?

Question

US and NATO have been big advocates for human rights and international law around the globe. I'm only focusing on Iraq and current military missions in the Middle East and violations of the Geneva Convention specifically waterboarding to gain 'intel.'

Geneva conventions on Humanitarian law:

The Geneva Conventions of 1949 and their Additional Protocols of 8 June 1977 contain a number of provisions that absolutely prohibit torture and other cruel or inhuman treatment and outrages upon individual dignity.

International human rights law, both universal and regional

torture is prohibited by Article 3 common to the four Geneva Conventions, Article 12 of the First and Second Conventions, Articles 17 and 87 of the Third Convention, Article 32 of the Fourth Convention, Article 75 (2 a & e) of Additional Protocol I and Article 4 (2 a & h) of Additional Protocol II. In international armed conflict, torture constitutes a grave breach under Articles 50, 51, 130 and 147 respectively of these Conventions. Under Article 85 of Additional Protocol I, these breaches constitute war crimes. In non-international armed conflict, they are considered serious violations.

https://www.icrc.org/eng/resources/documents/faq/torture-law-2011-06-24.htm

Dick Cheney under the Bush administration has openly talked about torture used by the CIA and even claimed he approved it.

Cheney's comments also mark the first time that he has acknowledged playing a central role in clearing the CIA's use of an array of controversial interrogation tactics, including a simulated drowning method known as waterboarding.

"I was aware of the program, certainly, and involved in helping get the process cleared," Cheney said in an interview with ABC News.

Asked whether he still believes it was appropriate to use the waterboarding method on terrorism suspects, Cheney said: "I do."

http://articles.latimes.com/2008/dec/16/nation/na-cheney16

Even recently, Obama did admit also that we "tortured some folks" during a press conference.

We tortured some folks”

Obama said during a White House news conference Friday.

“When we engaged in some of these enhanced interrogation techniques, techniques that I believe and I think any fair-minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.”

http://www.politico.com/story/2014/08/john-brennan-torture-cia-109654

So why were no charges brought up by international or even federal courts for the government officials that were involved? The evidence was clear and there has even been admissions to it. Does the US not follow international laws and rules of engagement?

Answer 1

"International courts" ... "international laws"

Laws and most courts are national, not international. The Geneva conventions in particular are not law.

Now there is an International Criminal Court, in The Hague (Netherlands), but the US would rather invade The Hague than submit to ICC rulings. That's not exaggerating, the US has a (domestic) law on the books for precisely that purpose. ("The Hague Invasion Act"). The reason for the law is obvious, from your very question. There's not much doubt that many high-ranking US politicians and military would be found guilty of war crimes.

Answer 2

The Geneva Conventions aren't really a law but more of an agreement. And while the human rights, which are laws, are based on them, doesn't make them as binding as the actual human rights. The other problem is, who is enforcing these Conventions. The US have a strong military and even more important, their economy includes the heart of the global finance industry and they are good customers to most more influential countries. Which means whoever would say no to the US, will have to deal with economical difficulties and if they are not within the closer circle of fiends, they have to fear military aggression.

Now the UN and NATO aren't really affected by this but they come with their own problems. NATO is carried mostly by the military power of the US, so standing against the US, would cost them huge parts of their power and rendering them weak. If allies of the US, like European States will join the US in leaving, NATO would be history. The UN on the other hand has the problem of relevance. When the US wanted the Iraq war, the UN was first against it but when it became clear that the US aren't likely to stop, the UN had to change their "no" into a "maybe" because if the mayor executive "branch" would have distanced itself from the UN. The UN would have lost its relevance.

That is mostly why the US can ignore these "rules" without having to fear too much consequences.

Answer 3

The Geneva conventions state explicitly that they apply when the opposing side accepts and applies them. Obviously, Al Qaeda doesn't apply them, so the US is under no obligation. Some countries, including the US, have at times chosen to apply them even when the other side doesn't. But by their own terms, the conventions don't require that.

Answer 4

International law (IL) is made up of, among other things, ratified treaties. The four Geneva Conventions are ratified treaties and therefore most certainly part of international law. Specifically, a branch of it called International humanitarian law.

In IL, treaties are binding and therefore the signatories to the Geneva Convention which includes the United States are bound by them.

Then there is the question whether IL actually is law or not. The answer is yes, it is real law. Powerful states sometimes violates IL and gets away with it. Much in the same way as powerful individuals can skirt the law or how Mexican drug cartels can operate in extrajudicial vacuums. IL can't always be enforced but that does not mean that it does not exist. Anthony D'Amato, one of the most esteemed scholars in IL, explores this question in much more detail.

His quote of Louis Henkin is telling: "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." Most of it is mundane stuff, like border and free trade agreements which even the US almost always abides by

Back to the main question. The US hasn't ratified the Rome Statue of the ICC and therefore does not recognize the court's jurisdiction over its citizens.

However, IL is, in principle, not optional. In the essay The ICC's Jurisdiction Over the Nationals of NonParty States: A Critique of the U.S. Position by Michael P. Scharf discusses this question. Citing his conclusion:

The analysis of the historic precedent and principles of international law contained in this article has shown the ICC's jurisdiction over the nationals of nonparty states to be well-grounded in international law. The exercise of such jurisdiction can be based both on the universality principle and the territoriality principle.

The core crimes within the ICC's jurisdiction-genocide, crimes against humanity, and war crimes-are crimes of universal jurisdiction. The negotiating record of the Rome Treaty indicates that the consent regime was layered upon the ICC's universal jurisdiction over these crimes, such that with the consent of the state in whose territory the offense was committed, the court has the authority to issue indictments over the nationals of non-pmiy states. The Nuremberg tribunal and the ad hoc tribunal for the former Yugoslavia provide precedent for the collective delegation of universal jurisdiction to an international criminal court without the consent of the state of the nationality of the accused.

(I don't want to cite it in full due to copyright concerns.)

In short, the ICC is within its right to press charges against US citizens. In fact, the court is currently investigating alleged war crimes in Afghanistan which could implicate US servicemen. Obviously, given the current American administration's hostility towards the court, it is very unlikely for an American to stand trial -- but you never know. My guess is that the court realizes that too and therefore decides to focus on war criminals they can catch, rather than those they can't.

Answer 5

If we're strictly speaking on the US side about the CIA program (and not other torture like Abu Ghraib etc.--conducted by the military) the answer is that

Obama decided not to prosecute anyone who followed orders, or officials who approved the policy [...]

[Obama] worried that investigations could be viewed as a "partisan witch hunt." Once he took office, [...] Obama quickly decided not to even open cases against either officials who followed Bush administration "rules" on torture or the officials who wrote those rules in the first place. [...] And his new CIA director Leon Panetta quickly vociferously argued for no new investigations of the agency. [...]

Attorney General Eric Holder released his own statement in April 2009, saying, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department."

However, the possibility of prosecuting government officials who had gone further was deliberately left open.

But then Holder decided not to prosecute any cases where officials went beyond the approved techniques.

It looked at first like some of the officials in these cases might be punished. In August 2009, Holder announced that he was specially appointing a prosecutor, John Durham, to investigate the agency's interrogations.

But after a two-year review examining conduct of the CIA regarding 101 detainees, Holder and Durham decided to focus on just two cases in which suspects held by the CIA had died: Gul Rahman and Manadel al-Jamadi. Further examination of any "remaining matters" was "not warranted," Holder said.

A year later, even those two cases were dropped because "the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt," according to Holder.

And since prosecutions of this kind need to started by the DOJ rather than by federal courts as you assumed in your Q... nothing [else] happened.

There was one CIA contractor (Passaro) who was prosecuted under Bush for "for his involvement in a detainee's death".

Also

The statute of limitations on certain federal torture offenses is eight years

which precluded charges much later on.

And yeah, Trump said on the 2016 campaign trail he'd “bring back waterboarding,” so if you [somehow] expected his administration to prosecute Bush & co for that...)

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Aside here, since another answer mentioned the somewhat related Italy (Abu Omar) case: prosecutors in Italy can't be instantly dismissed by the government, unlike [federal ones] in the US. "Since the adoption of the Constitution in 1948, however, prosecutors have belonged to the judiciary and are guaranteed the same independence and tenure as judges both being classified as "magistrati"". That's why it was possible for that case to proceed even though the Italian government at the time disapproved.

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Finally, it's been mentioned in that first piece, but also much more extensively e.g. by Amnesty that countries that claim universal jurisdiction could easily charge some of those US leaders you mentioned (Bush, Cheney etc.) for e.g. violating UNCAT (and not just the Geneva conventions). Wikipedia does mention that

Bush cancelled his [2011] trip to Switzerland after news of the planned prosecution came to light.

Actually, it seems that case might have been more imagined than real: "the cancellation stemmed from concerns about protests, not fear of arrest", according to Politifact. But yeah, even opening a preliminary investigation was not possible under Swiss law until Bush stepped into that country.

It's rather more difficult to give a non-speculative answer why such prosecutions didn't happen [more broadly], but surely it has something to do with US power and influence abroad. Wikipedia also mentions e.g. that a similar attempt in Canada, started as private prosecution under § 269.1 of the [Canadian] Criminal Code, was dropped at the intervention of government's prosecution there (possible under the Canadian procedure code).

Likewise, the Spanish legislature appears to have deliberately changed some of their universal jurisdiction provisions in order to hinder the prosecution of the "Bush Six" in their country. In that case some US senators openly warned the Spaniards that

the prosecutions would neither be understood nor accepted in the U.S. and would have an enormous impact on the bilateral relationship.

Finally, I suspect that the mood in Europe changed even more against such legal actions [against Bush-era officials] after the rise of ISIS, particularly after it conducted attacks on European soil. Cooperation with the US against the new Islamic terror probably became much, much more important. (In particular because the US intervention in Syria was hardly uncontroversial from an international law perspective, and the alternative for Europe would have been to go hat-in-hand to Putin and Assad.)

But, as a kind of coda to this story on the European side, since a number of rendition and torture targets/victims were able to bring suits in European [national] courts for the cooperation of such goverments with the Bush era events, and since they generally lost a bunch of such cases in [European] national courts, the ECHR ended up hearing a number of rendition-related cases around 2012-2019. However, such cases are esentially the US equivalent of civil-rights violations lawsuits [rather than criminal cases], so these gave monetary awards to the victims. E.g. Italy lost an ECHR case related to Abu Omar, Poland lost two related cases involving Guantanamo detainees, Macedonia also lost one, as did Romania and Lithuania, and I don't claim this is a complete list.

Answer 6

They have. Italy has charged and convicted 23 CIA agents in an extraordinary rendition (kidnapping) case, in absentia.

https://www.democracynow.org/2012/9/21/as_italy_sentences_23_cia_agents

Italy’s high court has upheld the sentences of 23 CIA operatives convicted of kidnapping a Muslim cleric under the U.S. program of “extraordinary rendition.” The cleric, Abu Omar, was seized from the streets of Milan in 2003 and taken to U.S. bases in Italy and Germany before being sent to Egypt, where he was tortured during a four-year imprisonment. The Americans were all convicted in absentia after the United States refused to hand them over.

Answer 7

In addition to the above, people forget that the United States is a global superpower and has actually threatened to arrest ICC judges who try to hold trials against Americans as stated by John Bolton:

"If the court comes after us, Israel or other US allies, we will not sit quietly," Bolton said.

"We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system," he said.

"We will do the same for any company or state that assists an ICC investigation of Americans," he said.

"The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court," Bolton said.

"We will not cooperate with the ICC. We will provide no assistance to the ICC. We certainly will not join the ICC. We will let the ICC die on its own."