But then he went on to say, as Glenn Greenwald tweeted yesterday, that “I think the interrogations were in violation of the Geneva Conventions and the Convention Against Torture that we ratified under President Reagan.”

Now, once you acknowledge that the CIA, at the direction of senior cabinet officials, violated international humanitarian law that requires the United States to prosecute the perpetrators, the only way to justify not investigating is to say that the executive branch of government is above the law — or, put more pragmatically, that it’s politically too messy to investigate senior leaders in the U.S. government.

Republicans didn’t hesitate to investigate when it involved Democratic President Bill Clinton, however, or to bring charges against him for lying about a personal matter. And Congress didn’t turn its backs on the Iran-Contra scandal during the Reagan administration, which led to 14 senior officials charged with crimes, and 11 convictions. And of course the Watergate affair led to the indictment and conviction of senior Nixon administration officials, and impeachment charges against the president. Congressional investigations of sitting and past administrations are far from unprecedented.

So how does McCain explain why we ought to forget the whole torture problem — which led to the deaths of a still-unknown number of detainees in custody, some of whom the CIA still can’t account for — even as he acknowledges that it violated international treaties that legally obligate us to prosecute?

“I think these interrogations helped al-Qaeda recruit,” McCain said yesterday, adding: “the damage that it did to America’s reputation in the world we’re still on the way to repairing.”

Even setting aside the legal requirements, as a practical matter, a public acknowledgment and investigation would seem to be the only way to repair that damages.

As McCain put it: “This is an ideological struggle as well as a physical one.”

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The Obama administration is now saying the same thing.

Today, it assured reporters in a background briefing with administration officials that although the U.S. government will continue to send terror suspects to foreign countries for interrogation — what has notoriously become known as “rendition” — it will seek assurances from those countries that their interrogators won’t torture the suspects.

Of course, the Bush administration said it sought and received those same assurances. After all, it’s long been illegal, both under U.S. and international law, to send detainees to countries where they’re likely to be tortured. So what’s different now?

“The State Department will play a larger role to ensure that those assurances are credible,” said one senior administration official during the background briefing. (Why the briefing was on background and not for attribution to particular administration officials isn’t clear.)

So, asked Eli Lake of The Washington Times, will the United States simply stop sending suspects to countries that are known to torture suspects, such as Egypt or Syria?

No, the administration is not willing to go that far, a senior administration official said.  However, “we will ensure that we have the appropriate assurances in place that gives us strong confidence that the individuals in question will not be tortured.”

The Obama administration is now saying that, unlike the Bush administration before it, it will seek to verify that suspects aren’t being tortured. According to a paper released by the Justice Department today, the task force recommended that “agencies obtaining assurances from foreign countries insist on a monitoring mechanism, or otherwise establish a monitoring mechanism, to ensure consistent, private access to the individual who has been transferred, with minimal advance notice to the detaining government.”

That sounds like an improvement, though having to provide any advance notice to the detaining government is problematic. The policy still, to some extent, allows the U.S. government to trust foreign officials who promise they won’t torture a terror suspect, even if they are officials of a country that is known by the United States to torture terror suspects.

The State Department may play a larger role than it did before, but the new interagency process is ultimately under the control of the president’s National Security Council. That’s better then keeping it a purely CIA function, as it was before. But it still raises the question of why the United States plans to send terror suspects to foreign countries known to torture them, and just how vigorous — and how long-lasting — U.S. monitoring will really be.

If, as the latest reports indicate, Attorney General Eric Holder is serious about prosecuting the worst torture and abuse of “war on terror” prisoners that occurred during the Bush administration, then there’s some key evidence he’s going to want to take a look at:  photographs. Although Bush Justice Department prosecutors claimed they didn’t have the facts to support prosecuting anyone for the mysterious deaths and disappearances of detainees hauled out of Bagram and Abu Ghraib in body bags, the photographs – which two courts have now ordered the Obama administration to turn over – would seem likely to provide some of the missing evidence.

The photos I’m talking about are the same ones that, back in April, President Obama promised to release to the public by May. Then, after consulting with Defense Department and CIA leaders, he changed his mind. After the American Civil Liberties Union filed a Freedom of Information Act lawsuit to obtain them, the photographs were ordered released by  a federal district court in New York in 2005 and then the court of appeals in 2008; both courts agreed that the photos are critical to the public debate over torture and the U.S. government’s counterterrorism tactics, and don’t fall under any exemption to the freedom of information law. Still, the Obama administration isn’t budging.

While the case was on appeal, lawyers from the same Washington law firm that Holder was then working at, Covington & Burling, wrote a powerful brief on behalf of 22 legal experts on the laws of war arguing for the photos’ release. These sorts of images are in part responsible for the regime of international humanitarian law that we have today, they argued.

The cornerstone of modern international humanitarian law — the Geneva Conventions of 1949 — was adopted after the release of vivid images of Nazi concentration camp survivors. And it was the United States and General Dwight D. Eisenhower himself who insisted on distributing huge volumes of these photos to the media. The images of corpses, prisoner remains and emaciated survivors helped persuade nations around the world to develop and adopt new universal humanitarian norms.

It’s because images can be so powerful and can motivate action that the Obama administration now wants to suppress them.

On Friday, the Justice Department filed a petition with the Supreme Court arguing that releasing the photos of detainee abuse would so inflame public opinion against the United States abroad that it would endanger the lives of U.S. soldiers stationed in Iraq and Afghanistan.

(Initially, the government refused to turn them over on the grounds that they would violate the privacy rights of the detainees. After the ACLU and the court agreed to have the photos redacted to conceal identifying information and protect personal privacy, the government came up with this second reason to object.)

On its face, the argument sounds pretty reasonable. I have to admit that when the administration first announced its change of heart, though Glenn Greenwald, Andrew Sullivan and many others were immediately outraged, I was somewhat sympathetic. After all, the Freedom of Information Act does include an exception to releasing information if it would reasonably be expected to “endanger the life or physical safety of any individual.” The photos of abuse at Abu Ghraib were certainly alarming. And who would want to endanger the lives of U.S. troops?

Meanwhile, the Justice Department had collected sworn statements from top military generals — including General Richard Myers, then the Chairman of the Joint Chiefs of Staff and the Nation’s highest ranking military officer — saying that releasing the photos would do just that. Who are we to question the top brass?

Amrit Singh, an ACLU lawyer handling the case, answered that for me yesterday. “The argument the government has put forward is unacceptable because it would afford the greatest protection from disclosure to records that depict the worst kind of government misconduct. That is fundamentally inconsistent with FOIA. And it’s fundamentally inconsistent with democracy.”

It’s a good point. Though I want to protect our troops as much as anybody, it turns out the law wasn’t drafted to protect Americans from retaliation that might result because their country did something illegal, or even just really embarrassing. If it were, then evidence of any illegal or upsetting U.S. government conduct would be exempt from disclosure. And that would defeat the entire purpose of the Freedom of Information law.

According to the Supreme Court, the purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” So you can see how that would be seriously compromised by the government’s interpretation of the law here.

It turns out that when you look at the language of FOIA, the government’s interpretation doesn’t make much sense either.

Exemption 7(f) allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to endanger the life or physical safety of any individual.”

But does “any individual” mean any conceivable individual out there, or some specific individual that the government can identify?

The appeals court ruled that because Congress said the release must endanger “any individual” rather than just “endanger life or physical safety” generally to be considered exempt, Congress must have meant some identifiable individual – a particular witness to a crime or subject of a law enforcement investigation, for example. If Congress had meant to include any member of a group of people who could possibly become the target of someone’s anger, it would have used the more general phrase, the court reasoned. So the court ruled the exemption doesn’t apply, and the Obama administration has to turn over the photographs.

Now, the administration faces a dilemma. When it released the Office of Legal Counsel memos written by the now-infamous John Yoo authorizing the administration to torture prisoners abroad, it wasn’t prepared for the media firestorm that erupted — and the growing public pressure to prosecute. Reluctant to face that again, Obama and senior officials in his administration are trying hard now not to stoke the fires. (Even if they can go along with a limited prosecution along the lines of what Holder has described, they certainly don’t want to face calls for prosecuting senior Bush officials.)

But it looks like they can’t legally stop this release.

Sill, they can delay it. Supreme Court review could delay the case months or even years, depending on what the court decides to do. In the meantime, other reports will be released about the Bush era anti-terror tactics. Those include the Senate Intelligence committee’s investigation led by Sen. Dianne Feinstein (D-Calif.), the report from the ethics division of the Justice Department, the Office of Professional Responsibility, on the work of the Justice Department lawyers who crafted the memos, and, of course, the 2004 CIA inspector general report I wrote about earlier that’s supposed to be released by Aug. 24.

Which raises the question whether the government will invoke Exemption 7(f) of FOIA to try to withhold that report. After all, couldn’t the government make the exact same argument about the CIA report that it’s making about the photos? You see the slippery slope we’re on.

The CIA report apparently describes cases of murder and abuse so horrific that Holder was moved to consider initiating prosecutions. And that’s despite the fact that the Justice Department under President George W. Bush investigated those cases, but decided not to prosecute them. That report must be pretty upsetting.

So don’t be surprised if we start hearing that we shouldn’t be allowed to see that one either, because someone somewhere might get hurt.

The administration could, of course, try to distinguish the report from the photographs, arguing that, essentially, a picture is worth a thousand words. The photos may be just too powerful.

When faced with the atrocities of the Nazi concentration camps at the close of World War II, Eisenhower found that words failed him:

I have never felt able to describe my emotional reactions when I first came face to face with indisputable evidence of Nazi brutality and ruthless disregard of every shred of decency. Up to that time I had known about it only generally or through secondary sources. I am certain, however that I have never at any other time experienced an equal sense of shock . . . as soon as I returned to Patton’s headquarters that evening I sent communications to both Washington and London, urging the two governments to send instantly to Germany a random group of newspaper editors and representative groups from the national legislatures. I felt that the evidence should be immediately placed before the American and British publics in a fashion that would leave no room for cynical doubt.

-Dwight D. Eisenhower, Crusade in Europe (1977), at 408-09.

One can only conclude that the Obama administration is taking refuge in that doubt, or is not prepared to face the consequences in this country once the veil of doubt is lifted.

Although he faced tough questions on his views of the applicability of international law from Republicans such as Sen. Richard Lugar of Indiana, even Lugar acknowledged the absurdity of right-wing attacks that Koh supports the imposition of Sharia law in the United States, or as Ed Whelan at National Review suggested, that Koh’s interpretation of an international law would require the abolition of Mother’s Day.

Asked about his controversial inclusion of the United States along with North Korea and Iraq as part of an “axis of disobedience” that has flouted international law, Koh explained that his intent was not to lump the United States in the same category with those countries, but to suggest that the United States needs to adhere more scrupulously to international law so as to avoid a reputation of lawlessness.

Koh noted that while his own views of the death penalty, the 2nd Amendment, and the Eighth Amendment might differ at times from those espoused by the Supreme Court, he would not hesitate to advise the State Department that it must follow the law of the land.

To his credit, Koh didn’t back down from his previous claim that the United States’ initiation of the war in Iraq in 2003 violated international law, though that clearly disappointed some Republicans. Koh said that while he wasn’t advocating any legal liability for the United States, as a result, it had already paid the price by losing the support of other countries who otherwise would have been stronger allies against terrorism.

Although Koh has been harshly criticized in the right-wing blogosphere, he’s won the praise of several eminent conservative Republican lawyers, including former Solicitor General Ted Olson and Whitewater prosecutor Kenneth Starr.

We’ll see if Republicans on the committee try to prevent Koh’s nomination from moving on to a vote on the Senate floor..

Koh, as Spencer has written, is a former Clinton administration State Department official who actually cares about human rights: at Alberto Gonzales’ confirmation hearing to become attorney general in 2005, he testified that the infamous August 2002 Office of Legal Counsel memo authorizing torture was “perhaps the most clearly erroneous legal opinion that I have ever read” and a “stain on our national reputation.” Of course, Jack Goldsmith, the former Bush administration OLC official, has also attacked those opinions as “deeply flawed” and “sloppily reasoned,” so Koh is hardly alone.

But Koh — who is the author or co-author of eight books and more than 150 articles on international human rights, business, national security and international law, among other things — has on occasion also boldly expressed his strong respect for international human rights law, which doesn’t go over very well with many conservatives.

In an article published in the Berkeley Journal of International Law in 2004, for example, which FOX News cites, Koh asked: “What role can transnational legal process play in affecting the behavior of several nations whose disobedience with international law has attracted global attention after September 11th — most prominently, North Korea, Iraq and our own country, the United States of America? For shorthand purposes, I will call these countries ‘the axis of disobedience.’”

Putting the United States in the same axis as North Korea and Iraq has, not surprisingly, outraged critics who, like the Bush administration, don’t believe the U.S. ought to be reined in by international legal standards.

Steven Gross, a fellow at the conservative Heritage Foundation, told FOX News that he worries that Koh “cares as much about — if not more about — international law and integrating that into the American judicial system than he does about protecting American prerogatives and American sovereignty.”

And John Fonte, senior fellow and director of the Center for American Common Culture at the Hudson Institute, said Koh’s views amount to “international imperialism. Under Koh’s plan, the Constitution would become secondary and international law would take precedence regardless of what Americans said about the matter.”

The White House vehemently defended Koh’s nomination on Tuesday, telling FOX News that he is “one of the most respected members of the legal community.”

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A copy of the 98-page Spanish complaint that was referred to him, translated by Google (via The Raw Story,) is available here.

This is the second report of a U.S. ally’s judicial system bravely going where the U.S. Justice Department has refused to go.

As I reported last week, a U.K. attorney general, confronted with reports that British intelligence agents colluded with U.S. authorities in the torture of Ethiopian-born former Gitmo detainee Binyam Mohamed, announced she would refer the matter to British police to investigate. Allegations regarding British intelligence collusion in the torture of another British resident held at Gitmo are expected to reach the British High Court this week.

In the United States, meanwhile, prosecutors and former Bush officials have consistently maintained that the same memos that Spain is now investigating as possible violations of international law actually shield former U.S. officials from prosecution here.

President Obama and Attorney General Eric Holder have yet to come out clearly one way or another on the matter. And while some Democratic lawmakers have supported a “truth commission,” such as one sponsored by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt), Republicans such as Sen. Arlen Specter (R-Pa.), while slamming that idea in Congress, inadvertently made the strongest case yet for prosecuting former Bush administration lawyers and policymakers. Although the Judiciary Committee has not convened its own investigation of the Justice Department’s possible lawbreaking during the last administration, a review prepared by Department of Justice’s Office of Professional Responsibility that will reportedly criticize former Office of Legal Counsel lawyers John Yoo and Jay Bybee is expected to be released soon.

Even as Obama and Holder say they want to look forward rather than backward when it comes to the treatment of detainees and anti-terror policy, the growing number of foreign prosecutions and domestic reports producing evidence of criminal conduct may eventually force their hand.

They also wanted Mohamed, an Ethiopian citizen, to plead guilty — even though he was never charged with a crime.

Given the rising number of lawsuits being filed against the United States charging unlawful detention, torture and abuse in violation of U.S. and international law, the U.S. government’s attempt to get Mohamed to sign a release isn’t all that surprising. And the U.S. government’s pressure to keep the details of Mohamed’s ordeal secret is consistent with its previous pressure on the U.K. court not to release even a summary of his claims of torture.

But it raises the question: how many more former detainees have promised not to talk, or sue, or seek justice of any kind, in order to secure their release?

As I wrote when the administration first announced it would stop using the term “enemy combatant” in a late Friday afternoon filing in federal court, the Obama Justice Department, while discarding the old terminology and giving a nod to the legitimacy of international law and the role of Congress, basically held on to much the same right of indefinite detention that the Bush administration had pronounced.  Sure, now the president would have to believe that the detainees had a “substantial” connection to al-Qaeda or the Taliban, but the government’s brief provided no definition of “substantial,” and surely Bush officials would have claimed that all those prisoners — “the worst of the worst” as they were fond of calling them (and former Vice President Dick Cheney still does) — were “substantially” assisting al-Qaeda or the Taliban in one way or another.

As Feldman points out, the key will be how the Obama Justice Department starts applying this “new” non-enemy combatant category of detainee when it comes to deciding what to do with these prisoners.

If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.

Absolutely.  But Feldman refers only to the 241 prisoners still held at Guantanamo Bay.  There’s also another 600 prisoners who were deemed “enemy combatants” by the Bush administration that are being held at the American detention facility at Bagram air base in Afghanistan. Recall that the Obama administration recently insisted, like the Bush administration, that those detainees do not even have the right to habeas corpus — that is, to challenge their detention in a U.S. court. And the new administration is still hiding critical information about who is being held at the base — which is directly relevant to determining their legal rights.

The Obama administration has surely already proved itself more adept at using legal language to justify its detention policies. As Feldman points out, these were policies created by the last administration and the Obama team is now stuck trying  to deal with the mess they were bequeathed, without letting dangerous people go free. The new administration is also under serious pressure from a host of Republicans who, apparently eager to undermine Obama’s efforts, are loudly proclaiming that closing the Guantanamo prison is a “dangerous” idea.

Still, Obama promised a return to respect for the rule of law, not just in word but in deed. As long as potentially innocent men remain imprisoned without charge or trial — and in the case of Bagram, without the right to challenge their detention or even speak to a lawyer — then the new administration will not have followed through on its promises.

Dec. 30, 2008 -- A Palestinian stands on the wreckage of a mosque damaged by Israeli airstrike, at the Jabalia refugee camp in Gaza Strip. (Zuma)

Although human rights advocates breathed a sigh of relief when Israel and Hamas declared a cease fire last weekend, that tentative arrangement — already violated on Tuesday by Hamas rockets and Israel’s retaliatory air strikes — isn’t likely to silence the the broad claims of war crimes on both sides.

Illustration by: Matt Mahurin

Incidents like the Israeli shelling of a UN relief agency in central Gaza last week prompted claims that its response to Hamas’s rocket attacks were indiscriminate, disproportionate and violated international law. Meanwhile, Israel, the United States and others have blamed Hamas for provoking the battle and breaking the law itself by targeting civilian neighborhoods with its rockets for years. On January 12, the UN’s Human Rights Council issued a non-binding resolution charging Israel with “grave violations” of human rights and called for an international mission of inquiry. (Thirteen countries abstained.) The next day, the former Canadian justice minister and McGill University law professor Irwin Cotler, a past president of the Canadian Jewish Congress, wrote in The Jerusalem Post that there is “almost no comparable example” anywhere in the world today of a group that so systematically violates international agreements regulating armed conflict as Hamas. Other, more neutral observers, such as Human Rights Watch, have criticized both sides – Hamas for firing rockets into civilian territories in Israel, and Israel for responding by using heavy artillery in residential neighborhoods and not providing sufficient access to humanitarian groups trying to alleviate civilian suffering.

The three-week war reportedly left more than 1,300 Palestinians, including about 700 civilians, dead; attacks by Hamas killed about 10 Israeli soldiers and three civilians.

There’s no question that international law is supposed to govern the Israel-Hamas conflict; but the persistent recriminations raise an important question: Does it matter? So what if Israel and Hamas are violating international humanitarian law, or even intentionally committing war crimes? Who’s going to stop them? It’s an age-old problem of international law; while the laws have been carefully negotiated and in some cases, interpreted over centuries, they’re notoriously difficult to enforce. And because they rely heavily on international pressure, advocates say the United States’ own refusal to apply international humanitarian laws such as the Geneva Conventions to its own conflicts with al Qaeda and the Taliban has undermined the influence of these laws on conflicts around the world.

“In general when you’re talking about international law enforcement, measures are weak and uneven,” said Jessica Montel, Executive Director of B’Tselem, a human rights group in Israel that monitors the occupied territories. “You don’t have an international court and police force and prosecutor’s office to investigate and arrest and try people the way a domestic court would function.”

As a result, perpetrators can often dismiss accusations of legal violations as biased and vindictive. The UN Human Rights Council, for example, is dominated by Muslim nations and their allies, and has managed to shield such countries as Iran and Zimbabwe from official investigations and condemnation, while issuing more than 15 different resolutions criticizing Israel in less than two years. Even toward Sudan, widely believed to have supported genocide, it has expressed only “deep concern.” So when the Council issued its condemnation last week, Israel was able to easily dismiss it as one-sided and reflecting the “fairytale world” of the 47-member Council.

Aside from the difficulty of applying the law objectively, experts generally agree on the relevant principles. First, the use of force is only lawful against militants who pose a direct threat, and not against civilians. That leads to the principle of distinction: an army can only attack a legitimate military target. And if a target is both military and civilian – a building where civilians gather, but where weapons are also stored, for example – soldiers must take reasonable care to avoid harm to civilians. Finally, they must weigh whether the military advantage gained is important enough to justify the harm. Many legal experts believe that at least some of these laws may have been violated by the United States in its own war, beginning with its decision to invade Iraq.

“On paper it’s very easy,” says Montel. “When it comes to applying them in a real live situation it can be complicated and you need information.”

In the Gaza situation, some instances are easier than others. “When Israel said, ‘we bombed the ministry of education because it’s a Hamas institution’, that’s a violation of the principle of distinction. Just because it’s a Hamas institution doesn’t make it a legitimate target.”

But if Israel says the institution is being used to store weapons or shield militants, it’s more difficult. “That raises first a factual question—are they telling the truth?” says Montel. “And if there were weapons, then it’s a proportionality case—was the use of force justified, and was it necessary?”

Mary Ellen O’Connell, a professor of international law at the University of Notre Dame, elaborates: “If a civilian shoots at you, you can shoot back. The real problem comes in where there are both fighters and civilians in the same place. The question then is, are the people shooting from the school so important that you need to counter-attack on the basis of military necessity? Then you have to look at how many civilians will die if you target it. If so many civilians will die that the need to eliminate it is outweighed by the harm you do to civilians, then you can’t go after that target.”

Although emphasizing that she doesn’t have all the facts, O’Connell laments that from what she can tell, in terms of following international law, “they’re all doing badly. Hamas has no right to launch rockets into Israel, and there’s a serious question about the magnitude of Israel’s response.”

James Ross, senior legal advisor for Human Rights Watch, agreed. “We have not had access to Gaza, so it’s hard to make conclusions about specific instances at this point. But on its face, an attack that killed 40 civilians at a UN school may be disproportionate. Israelis said Hamas had a mortar unit there. We would look at, was Hamas trying to shield its forces by being close to the UN, or deploying troops in a way that puts civilians at risk?“

But Ross cautioned that “violations of one side don’t justify another. So even if Hamas was using civilians to shield its forces, that doesn’t give Israel the right to fire indiscriminately at those forces.”

The problem is, who can credibly investigate and determine what laws were broken, and then bring the perpetrators to justice?

“That is a concern,” said Ross. “What’s difficult under international law is that the responsibility rests with the government with authority over the individuals who committed the crimes. That’s historically not been terribly successful.” Indeed, both Israel and Hamas have poor record of investigating their own potential war crimes. That the United States has refused to investigate war crimes committed by the United States doesn’t help, he added. Human Rights Watch is one of many groups that have called on the United States to appoint a commission to investigate US violations of international humanitarian law.

Whether a country will be willing to investigate its own actions is “really a diplomatic chess game, in terms of the pressure it feels,” said Montel, referring to Israel. “And that pressure, if at all, will largely come from the international community.”

If a government still refuses to investigate on its own, there are several ways an international body could get involved. The UN Security Council could set up a special international court, such as it did with Rwanda or Yugoslavia. But given the high cost, slow pace and notorious inefficiencies of those courts, there’s little appetite to create more of them. The Security Council could also ask the International Criminal Court, or ICC, to investigate, even though neither Israel nor Hamas are parties to the treaty that created it. But the United States, which isn’t a party to the treaty either, would surely veto any such resolution, said Ross.

Human Rights Watch has called on the UN Security Council instead to authorize a commission of inquiry staffed by neutral and respected investigators to investigate how the actions of both sides comport with the laws of war. That, too, would require US support.

If that doesn’t work, there’s also the concept of universal jurisdiction, which allows national courts to try cases of grave crimes against humanity even if they were committed on foreign soil by leaders of other countries. Since the 1990s, more than a dozen such cases have been brought around the world, including the charges against Chilean dictator Auguso Pinochet brought by a magistrate in Spain, against former Israeli Prime Minister Ariel Sharon in Belgium, and against former Defense Secretary Donald Rumsfeld in Germany. Very few, however, have actually resulted in convictions, and countries such as Belgium, which had one of the broadest statutes asserting its universal jurisdiction in the world, in 2003 significantly restricted its reach under international political pressure.

The United States has prosecuted perpetrators of war crimes committed abroad, such as the recent conviction of Roy Belfast, a/k/a Chuckie Taylor, the son of Liberian dictator Charles Taylor, arrested in 2006 when he tried to enter the United States using a false passport. In October, he was convicted of, among other things, torturing Liberians between 1999 and 2003. He was sentenced to 97 years in prison.

But that example highlights the fact that which cases are prosecuted is as much a political as a factual question.

“Weaker powers are more likely to be held responsible for violations of the laws of war,” said Montel. “Russia or the US is not going to get to the ICC; meanwhile, it’s only African leaders that are investigated at the ICC. It’s not only the gravity of the crimes committed, it’s also your standing in the world.”

There’s less external pressure on powerful countries to investigate themselves as well. So, for example, although senior Pentagon official Susan Crawford recently acknowledged that the US military commissions at Guantanamo Bay would have to drop the case of Mohammad al-Qatani because he was tortured by US authorities, and although waterboarding has widely been viewed for many years as torture, the Bush administration repeatedly refused to investigate, let alone prosecute, whether US officials violated international humanitarian law. Meanwhile even Vice President Dick Cheney has acknowledged he authorized waterboarding. It’s not clear if Obama will change the government’s position on conducting a criminal investigation.

So does the political nature of its enforcement make international humanitarian law meaningless? Legal experts say no — although international pressure is critical.

“Most of the law is followed because it’s practical and useful,” said O’Connell. “Israelis don’t want to be violating this law. The history of warfare shows that when you ignore the rule of proportionality, for example, it creates so much anger that the war will never end. This law is taken very seriously on the battlefield.”

Although “the court aspect of international law is much weaker than in a criminal justice system,” agreed Ross, “there are other ways the law is enforced,” such as by the concept of reciprocity. Traditionally, “one reason you don’t torture is because you don’t want your citizens treated that way.”

That’s why many US military lawyers adamantly opposed the Bush administration’s approval of torture, humiliation and other harsh interrogation techniques that violated the Geneva Conventions, for use on suspected Taliban and al Qaeda fighters.

Human rights advocates abroad say the United States’ flouting of international law regarding its treatment of suspected terrorists has undermined enforcement of humanitarian laws around the world.

“Over the last five to 10 years you’ve had a real setback in terms of enforcement of the human rights laws,” said Montel, whose organization is based in Jerusalem. “You had a real loss of ground on something like torture. Nobody would have said that’s justified before the Bush administration. Also on arbitrary detention, the US at least used to talk the talk, even if you could criticize its foreign policy. But to have the US all of a sudden saying the prohibition on torture is not absolute, not to mention the conduct of its fighting in Iraq and Afghanistan, is a real setback.”

In Israel, she continued, “you see the rhetorical change. Even now, when we criticize Israeli behavior in Gaza, the automatic response is, ‘look at what the United States did in Fallujah.’ ” In the past, says Montel, the US embassy would speak out against torture or prolonged administrative detentions. But no longer. “In the last few years I haven’t even asked them,” she said.

The new Obama administration could improve the situation “on the level of moral leadership that the US provides,” said Montel. “My hope,” she said, is that the US once again provides “leadership by example.”

Sands, a professor of international law at University College London and author of “Torture Team: Rumsfeld’s Memo and the Betrayal of American Values,” has strongly criticized the Bush administration’s use of torture and extraordinary rendition and general flouting of the rule of law. While insisting that he’s not calling on the new Obama administration to initiate any immediate criminal investigations or indictments of Bush administration officials, Sands said, “the first thing that needs to happen is establishing the facts. But if the facts are as they appear, then something is going to have to happen to allow the country to move on.”

Sands also insists the Obama administration and the new Congress should revoke the The Military Commissions Act of 2006, which “purports to provide immunity for any person associated with criminal wrongdoing in relation to the treatment of detainees. All of these [laws] send out a signal that this administration is willing to tolerate wrongdoing and criminality. That needs to be reversed.”

He would also like to see the new president “go into a little more detail and make explicit the U.S.’s reengagement with the rule of law domestically and internationally. The specifics of that mean no more torture, no more rendition, no more unilateral acts that blatantly violate rules and developing timetables for shutting down Guantanamo and ending the ‘assault’ on the International Criminal Court. [The U.S.] doesn’t need to ratify the ICC but they need to stop demonizing it.”

Read the full interview here.