Is Karl Rove a War Criminal? Don’t Look to FP for the Answer!

by Kevin Jon Heller

I love Foreign Policy’s blog, Passport.  Along with Democracy Arsenal, it’s one of the two best blogs for analysis of (duh) US foreign policy.  Which is why I was shocked to read a recent post by Andrew Swift entitled “Is Karl Rove a War Criminal?”, because Swift’s analysis would make a first-year law student blush in embarrassment.  Here is how he critiques recent allegations by Code Pink and other groups that the answer to the titular questions is “yes”:

But onto the real question: Is Karl Rove a war criminal? The Fourth Geneva Convention of 1949 reads:

Art. 146. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article…

Art.147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

Given that Rove, a political and communications strategist, was in no position to authorize any use of military force, and had no authority to order detention or interrogation policies, it’d seem that he does not in anyway qualify as a war criminal. Looks like these protesters need to get a new line.

There are, to put it mildly, a few problems with this analysis.  First, the Fourth Geneva Convention isn’t a criminal statute; it is a treaty that obligates states to enact domestic legislation criminalizing the grave breaches in Article 147.  Why Swift quotes it instead of either the Rome Statute or federal criminal laws such as the torture statute (18 USC 2340) is beyond me.  Second, has Swift never heard of those pesky little things called “theories of liability” or “modes of participation in a crime”?  Criminal liability is not limited to those who “order” crimes.  One can also instigate crimes, aid-and-abet crimes, conspire to commit crimes, participate in a joint criminal enterprise that involves the commission of crimes, and so forth.

Has Karl Rove committed an international crime or violated federal criminal law by participating in the US’s detention and interrogation policies?  I have no idea.  But I do know that we can’t rule out the possibility that Rove is a war criminal by citing the Geneva Conventions and asking whether he ordered the commission of one of its grave breaches.

Looks like Swift needs a new line, not the protesters.

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