Top Bush Aide Says Dubya Can Go On Trial for War Crimes

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George W. Bush’s National Security Security Advisor Richard Clarke remarked in an interview yesterday that his old boss is liable for war crimes. Bush could go on trial for invading Iraq, he told Amy Goodman in Democracy Now’s War and Peace Report yesterday. He went so far as suggesting that the trial take place at the International Criminal Court in the Hague. What’s too bad is that both he and Amy Goodman displayed ignorance of the law. In so doing, they passed up a chance to educate the public and energize the global justice movement.

Side note: the vast bulk of the interview was about the drone program and how Clarke feels it has gotten way bigger than he ever wanted and decency ought to allow. I recommend the whole interview for your review. It’s worth a look-see. But I can’t escape the fact that Clarke got something very wrong about how to throw Bush and Company into some court’s dock somewhere.

True confession: for quite a while, I displayed an “Impeach Bush & Cheney” on my property. I’ve been hoping for years that our Justice Department would throw the book at that whole bunch. Their crimes went well beyond the mere notorious and are a true national shame. There’s really only one option for those who share in the conscience of our nation: sic a dutiful prosecutor on Bush, Cheney, Rumsfeld, and anyone else responsible under the law for these crimes.

I’m guessing Amy Goodman might agree. In her interview, she asked Richard Clarke outright whether he felt the Bush Administration had committed war crimes.

Amy Goodman: “Do you think President Bush should be brought up on war crimes [charges], and Vice President Cheney and [Defense Secretary] Donald Rumsfeld, for the attack on Iraq?”

Richard Clarke: “I think things that they authorized probably fall within the area of war crimes. Whether that would be productive or not, I think, is a discussion we could all have. But we have established procedures now with the International Criminal Court in The Hague, where people who take actions as serving presidents or prime ministers of countries have been indicted and have been tried. So the precedent is there to do that sort of thing. And I think we need to ask ourselves whether or not it would be useful to do that in the case of members of the Bush administration. It’s clear that things that the Bush administration did — in my mind, at least, it’s clear that some of the things they did were war crimes.”

So his answer, more or less: ”yeah but.” The “but” part was that he wasn’t sure that politically it was a good idea. Oh dear. Heaven forbid that maintaining the rule of law prove impolitic.

Things aren’t so good for Clarke on the “yeah” side of “yeah, but,” either. He made a fool of himself when he suggested turning the case over to the International Criminal Court (ICC) in the Hague. “But we have established procedures now with the International Criminal Court in The Hague,” he claimed. Not quite. To be sure, the ICC has been operating for 10 years and actually has a few convictions under its belt. The the ICC’s charter, a treaty known as the Rome Statute for the International Criminal Court, punishes war crimes, including torture and deportation. The ”enhanced interrogation” and “rendition” programs are really torture and deportation-for-worse-torture-elsewhere programs. In international armed conflicts, these are grave breaches of the Geneva Conventions of 1949, and in most of today’s conflicts, the ICC can try people for those crimes. As can any country in the world, by the way, even if they haven’t ratified the Rome Statute. And the ICC can have trials for war crimes that occur in non-international armed conflict.

However, the Rome Statute is too full of holes for the Court to have jurisdiction over the Iraq and Afghanistan wars. One of these countries — the U.S., Iraq, or Afghanistan — would have had to have ratified that treaty years ago, which Iraq and the U.S. have not. Afghanistan has, but the Statute makes an implicit exception: if the armed forces of Country A are in Country B, those countries can agree not to turn Country A’s soldiers over to the ICC. U.S. and Afghanistan have just that kind of agreement,

Alternatively, either the U.S., Iraq, or Afghanistan would have had to have asked the Court to step in. None of them has done that either. Or the UN Security Council would have had to have asked the ICC Chief Prosecutor to start an investigation. No luck there, either, and you can bet the U.S. would use its veto to shut that whole thing down.

And there’s more: what exactly would Bush and the rest of that gang be tried for? Clarke wasn’t terribly clear, but considering the context, he might have meant the crime of aggression. Goodman guided him toward acknowledging that he opposed the war in Iraq and resigned before it began. That sounds like a principled stand against the crime of aggression. If I were in his place, that’s what I would have done.

To be fair, aggression is a no-no. The problem is that there simply cannot be any trials at the ICC for the crime of aggression yet. The Rome Statute left that crime undefined. At first, it only had a plan to define the Statute later (see Rome Statute, Art. 5, footnote 1 (on page 4)). Eventually, ICC’s member states agreed on amendments that define of aggression and let the Court go after aggressors. The earliest possible date for trials about crimes of aggression can only apply to acts that happen after January 1, 2017. For someone to be up on aggression charges, even by that date, his country or the country he attacked have to have ratified those amendments.

Well, neither the U.S. nor Iraq has ratified the Rome Statute, let alone any amendment to it. So Richard Clarke would be just plain wrong to say the International Criminal Court could put Bush and Company on trial for aggression. Or — see above –anything else, for that matter.

I must point out at this juncture that Democracy Now made a very common mistake: calling aggression a war crime. It is not. International law makes a distinction between laws on when to go to war — jus ad bellum — and laws on how to fight a war — jus in bello. War crimes deal only with the means and methods of warfare and protection of war victims, that is, jus in bello. Actually plotting and starting and waging a war, that is, crimes against peace, including aggression, is a whole ‘nother ball of wax.

Where does this leave us? Considering the rich history of war crimes trials outside the ICC, is there no recourse? After all, the big trials in Nuremberg and Tokyo were held on the basis of charters drawn up for that purpose. And in recent memory, there have been special courts for war crimes in the Balkans and Africa and a former Portuguese colony in the Pacific and even Lebanon. Might the same thing happen today? Of course. But recall that the post World War II trials occurred at the hands of the great powers, themselves victors in that war. The victorious powers in the Iraq and Afghanistan wars — the “coalition of the willing” and NATO — don’t seem likely to put on war crimes trials for anyone other than low-level personnel.

My own preference is that we Americans put our own on trial. Parents punish their children as necessary, right? And that proves they’re good parents, right? Can’t we prove that our justice system is a good one? Can’t the American justice system do, you know, justice? I mean really, we have all the authority to do so that we need. Nearly fifty years after U.S. ratification of the four Geneva Conventions of 1949, Congress used its power “to define offences against the Law of Nations”: laws passed in the Clinton Administration and later made war crimes federal offenses, even if committed abroad. That was a fine step toward keeping our promise to not only the rest of the world but also to ourselves.

Unfortunately, that train has left the station, at least Stateside. There are laws against taking too long to bring someone to trial. For most federal crimes falling short of killing, the limit is five years. This, for me, is one of the bitterest pills to swallow. We used to be a country that didn’t torture. We used to pride ourselves on being a nation of laws. That’s harder to say now. All Americans of conscience are left with is the chance to resolve not to repeat Bush and Company’s national shame. Any takers?

Image: Reuters