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2 Chap. J. Crim. Just. 247 (2011)
Charging Waterboarding as a War Crime: U.S. War Crime Trials in the Far East after World War II

handle is hein.journals/chapjcj2 and id is 259 raw text is: Charging Waterboarding As a War Crime:
U.S. War Crime Trials in the Far East
after World War II
By Wolfgang Form*
INTRODUCTION
The discussion concerning water torture has gained momen-
tum in recent years, particularly in the United States in connec-
tion with the activities of the CIA during the recent war on ter-
ror.1 However, water torture has frequently emerged in United
States history beginning with the Philippine insurgency to
World War II to the Vietnam War.2 In 1968, a report in the
Washington Post aroused furor when it published a picture de-
picting a U.S. soldier pouring water over a North Vietnamese
* Dr. Wolfgang Form, Professor of Political Science and Peace and Conflict Studies,
University of Marburg, Biegenstr, Germany; Member, Austrian Research Centre for Post-
War Trials Advisory Board; Co-founder, Research and Documentation Centre for War
Crimes Trials-ICWC (project co-ordinator). This publication is based on my Nov. 11, 2009
lecture held at Chapman University School of Law. I thank ICWC's students Philipp
Graebke, Sascha Hoermann, Aoife Holmes, and Corinna Josefiak for excellent research
assistance. I'm very grateful to Michael Bayzler from Chapman University School of Law
for very helpful discussions on my topic.
1 For an overview on waterboarding in the media see Neal Desai et al., Torture at
Times: Waterboarding and the Media, The Joan Shorenstein Center on the Press, Politics,
and Public Policy, Harvard University (2010), available at http://www.hks.harvard.edul
presspol/publications/papers/torture at times hksstudents.pdf.
From its first mention of waterboarding in 1901 until 1925, the N.Y. Times
rarely described waterboarding as torture, calling it torture or implying the
practice was torture in only 11.9% of articles (10 of 84). Most often, water-
boarding was not given any treatment (61.9% of articles had no treatment, or
52 of 84). This pattern of treatment changed with the next mention of water-
boarding, in 1931, and remained generally consistent until another dramatic
shift, in 2004. [...] From 1931 to 1999, NY Times journalists called waterboard-
ing torture or implied that it was torture in 81.5% (44 of 54) of the articles. By
contrast, from 2002-2008, waterboarding was called torture or implied to be
torture in just 2 of 143 articles (1.4%). Notably, of these two articles, one was
about waterboarding in Chile and made no mention of the U.S. The decrease in
the use of the word torture corresponds to an increase in the use of no treat-
ment and softer treatment. The use of softer treatment increased from 0% (0 of
54) between 1931 and 2002 to 45.5% (65 of 143) between 2002 and 2008. No
treatment use increased from 9.3% of articles (5 of 54) from 1931 to 1999 to
28.7% (41 of 143) in 2002-2008.
Id. at 7-8.
2 Id. at 3.

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