This week, George W. Bush’s former chief counterterrorism officer accused the once-was president and his administration of committing war crimes. Could it lead to some type of legal action? We’ll see.
Richard Clarke–who served a brief stint as Bush’s national coordinator for security and counterterrorism—perked up Amy Goodman’s ears in a Tuesday television interview on Democracy Now! The show’s host, Goodman asked Clarke if he thought Bush, former VP Dick Cheney, and former Defense Secretary Donald Rumsfeld should be tried for war crimes via attacking Iraq.
Clarke tried to soften his response, but basically said yes:
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.
Democracy Now! hasn’t aired the interview yet, only taped it, and released that juicy bit to urge our watching. But that’s indeed a ferocious bite when you recall that Iraq resulted in the death of over 4,400 U.S. forces and nearly 32,000 wounded. Add to that over 16,600 Iraqi military and police, 26,000 Iraqi “insurgents” and over 66,000 civilian deaths. Plus a cost of $806 billion.
Also, it’s valuable when people with authority, or former authority, raise such accusations. Clarke isn’t the first. In May 2012, Peculiar Progressive wrote about Benjamin B. Ferencz’s take on the U.S. invasion of Iraq. Lawyer Ferencz was an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials at Nuremberg, Germany. Later, Ferenzc became a vocal advocate of the establishment of an international rule of law and of an International Criminal Court.
The U.S. prosecutors at Nuremberg charged that the Nazis’ chief crime was “aggressive war” which led to all other offenses they committed. Sixty years later, in the summer of 2006, Ferenzc claimed that George W. Bush should be charged with the same crime for ordering the illegal invasion of Iraq:
The United Nations charter has a provision which was agreed to by the United States, formulated by the United States, in fact, after World War II. It says that from now on, no nation can use armed force without the permission of the U.N. Security Council. They can use force in connection with self-defense, but a country can’t use force in anticipation of self-defense. Regarding Iraq, the last Security Council resolution essentially said, ‘Look, send the weapons inspectors out to Iraq, have them come back and tell us what they’ve found — then we’ll figure out what we’re going to do.’ The U.S. was impatient, and decided to invade Iraq — which was all pre-arranged of course. So, the United States went to war, in violation of the charter.
Peculiar Progressive specifically asked Ferencz by email his legal view on killer drone strikes which Bush conducted and President Barack Obama has continued. Ferencz condemned them, saying:
The illegal use of armed force knowing that it will inevitably kill large numbers of civilians is a crime against humanity, and those responsible should be held accountable by national and international courts. The use of any weapon that will unavoidably kill a disproportionate number of non-combatants is an inhumane act that should be condemned and punishable as a crime against humanity under customary international law.
In June 2008, Congressman Dennis Kucinich introduced legislation to impeach Bush over the Iraq invasion, but Democratic House Speaker Nancy Pelosi eventually quelled the effort. As CNN reported at the time, “House Speaker Nancy Pelosi has repeatedly said she would not support a resolution calling for Bush’s impeachment, saying such a move was unlikely to succeed and would be divisive.”
CNN also described Kucinich’s specific legislation:
Most of the congressman’s resolution deals with the Iraq war, contending that the president manufactured a false case for the war, violated U.S. and international law to invade Iraq, failed to provide troops with proper equipment and falsified casualty reports for political purposes.
Kucinich also charges that Bush has illegally detained without charge both U.S. citizens and ‘foreign captives’ and violated numerous U.S. laws through the use of ‘signing statements’ declaring his intention to do so.
A Trial and Conviction Far, Far Away
Bush, Cheney and Rumsfeld actually were convicted in absentia of Iraq war crimes in 2012 in Kuala Lumpur–the federal capital and largest city in Malaysia, which is in Southeast Asia. The trial and its five-panel group of senior judges were initiated by Malaysia’s retired Prime Minister Mahathir Mohamad. He had heavily opposed the 2003 American-led invasion.
Also found guilty were the administration’s legal advisers, including former Attorney General Alberto Gonzales, David Addington, William Haynes, Jay Bybee and John Yoo. According to Foreign Policy Journal:
The trial held in Kuala Lumpur heard harrowing witness accounts from victims of torture who suffered at the hands of US soldiers and contractors in Iraq and Afghanistan…At the end of the week-long hearing, the five-panel tribunal unanimously delivered guilty verdicts against Bush, Cheney, Rumsfeld and their key legal advisors who were all convicted as war criminals for torture and cruel, inhumane and degrading treatment.
Full transcripts of the charges, witness statements and other relevant material will now be sent to the Chief Prosecutor of the International Criminal Court, as well as the United Nations and the Security Council.
The International Criminal Court (ICC) is a relatively new body, founded in 2002, created by the Rome Statute, a treaty adopted in 1998 which established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression.
Currently, 122 states are parties to the ICC, but the United States and Israel have refused to ratify, recognize or adhere to statutes of the court. Because the U.S. is not a state party to the court, no U.S. official can be tried, unless the alleged crime(s) took place in the territory of a state that has accepted the court’s jurisdiction. Iraq is not a state member.
However, in 2006, the ICC’s prosecutor reported that he had received 240 communications alleging various war crimes in connection with the invasion of Iraq. Some of those appear to involve the UK, a state party to the ICC, and the country that worked most closely with the U.S. in Iraq. It’s possible the prosecutor may find the U.S. complicit in UK alleged war crimes, which would be considered a war crime in itself.
Still–although a former prosecutor of Nazi crimes, a U.S. Congressman, and a court of five judges in Malaysia have found specific charges against Bush and company for war crimes–the ICC prosecutor hasn’t. The only charges brought before the court so far have been alleged crimes in Africa.
But perhaps Clarke, having been involved in the Bush administration, through his interview will be a catalyst for a deeper look into Bush’s actions. That would be good for humanity, who needs to have major policymakers brought to justice for crimes against it, no matter what their nationalities.