A Tale of Two War Criminals: Bush and Clinton do Toronto

By: Law is Cool · June 3, 2009 · Filed Under Immigration Law, International Law · Add Comment

Reproduced with permission of the author.

[1]

When you accuse anyone of war crimes, you’d better be sure you have the evidence to back it up; such an accusation is the equivalent of yelling “fire” in a crowded shopping mall.

It’s a serious charge, something that sits heavily on our psyche as fragile human beings who generally tend to disbelieve that any one could be capable of committing crimes against humanity, especially if they have elected him president.

Perhaps that’s why such a presidential event as a “conversation” between George W. Bush and Bill Clinton happened in Toronto, Canada on May 29, 2009 — the event was billed as a “conversation,” [2] maybe because the terms “meeting of the minds” or “great intellectual debate” would embarrass one of the two parties involved?).

The two men got a standing ovation from a packed audience that paid from $200 to over $2,000 a ticket at the Metro Toronto Convention Centre.

Yes, that’s right, a standing ovation from the crowd inside the Convention Centre. And both Presidents got paid for their time. While no one is telling how much each ex-President made off the 90 minute conversation, Bush reportedly received (US) $160,000 for his last appearance in Canada, in Calgary Alberta in March 2009. Clinton can charge up to (US) $350,000 per speaking engagement. Good work if you can get it.

But ask the 500 or so protesters across the street from the Convention Centre, organized by the Toronto Coalition to Stop the War [3], and the only standing up the presidents got were erect middle fingers. It was this side third and uninvited side of the conversation that chanted slogans such as “Bush and Clinton, war criminals: shame on you!”

Here are a few of the numerous examples of war crimes committed by each of the two men.

Bush as a war criminal

Bush is accused of numerous war crimes, resulting from him ignoring his own constitution’s “supremacy clause,” Article II, section 4, and the War Crimes Act of 1996 (18USC §2441).

Regarding the United States’ War Crimes Acts, author Mike Ferner from Veterans for Peace [4], writes:

“To give just a snapshot of how serious these laws are, consider this portion of 18 USC 2441 which defines a war crime as ‘… a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party …’ The guilty can be ‘… fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.’”

Not to mention important international treaties and conventions such as the Geneva Conventions, the Nuremberg rulings, the Laws and Customs of War on Land and UN General Assembly Resolution 3314. Breaches of these international treaties and conventions amounting to war crimes are too numerous to mention here (though they are listed at the website War Criminals Out [5], which has lists of charges and broken resolutions.)

The invasion of Iraq is cited as a prime example of Bush’s war crimes, where activists insist Bush should be charged under the UN Resolution 3314, Article 5 (codified from the principles of Nuremberg concerning “Wars of Aggression,” [6] which cites as an historical example Hitler’s invasion of Poland) for committing a “crime against peace.” The invasion of Iraq is thus considered a war crime and a crime against humanity, which is spelled out in detail in the Geneva Conventions [7].

In Iraq alone, Ferner points out that Bush is responsible for, among other things, “illegally invading a sovereign state, using banned weapons such as white phosphorous and napalm, bombing hospitals and civilian infrastructure, withholding aid and medical supplies, terrorizing and knowingly killing civilians, torturing prisoners, killing a million people and displacing 4 million more in Iraq alone.”

Now, we’re talking big crimes here, a big fire someone should point out to the general public.

Clinton as a war criminal

While Clinton’s presidency might enjoy a different reputation (think blue dress), there’s a case to be made regarding his culpability in committing war crimes. He was not the focus of the demo, but I don’t think he should get a free pass. Again, using the same international conventions and treaties listed above, there’s a list of actions to consider in regards to charging him with war crimes and crimes against humanity.

Clinton imposed, through the UN Security Council, sanctions on Iraq between 1990 and 2003, which had a devastating effect on the Iraqi population. The UN, in 1999, reported [8] more that hundreds of thousands of Iraqis died as a result of the sanctions, disproportionately among children.

On June 26, 1993, the Clinton administration bombed Baghdad [9] in retaliation for an alleged but unproven Iraq plot to assassinate former President George Bush, Sr.

Clinton’s administration and NATO conducted the bombing campaign of Bosnia from March 22 to June 11, 1999 without UN Security Council approval, against the rules of the Geneva Conventions [10].

Again, big fire here! Not only should Bush and Clinton’s actions translate into war crimes charges, but their disregard for not only American law but also international treaties and conventions undermines the rule of international law and undermines the consensus of the international community.

And we’re not even talking torture charges against Bush regarding his country’s treatment of foreign nationals at military and CIA run prisons, military or rendition sites around the world, an obvious breach [11] of the Geneva Conventions. Reports from Abu Ghraib and Guantanamo Bay alone might be enough to prosecute Bush and win convictions.

These reasons alone were enough to compel the group Lawyers Against The War [12] to issue this statement [13] to the RCMP on March 12, 2009, asking that Bush be denied entry into Canada under Canada’s Immigration and Refugee Protection Act (section 35(1)(a)), because Bush is a war criminal (Crimes against Humanity and War Crimes Act (CAHWC)).

War crimes in World Court

The latest rumour regarding actually holding Bush and his administration accountable for war crimes comes from Spain, where Harper’s reports [14] that the Spanish press El País and Público state,

“the Spanish national security court has opened a criminal probe focusing on Bush Administration lawyers who pioneered the descent into torture at the prison in Guantánamo.”

This could be the first step of bringing the Commander and Chief himself before an international court if the lawyers claim they were just following orders.

Is prosecuting the leaders enough?

While I am certainly not against using international criminal courts to prosecute political leaders with war crimes, I believe their function and scope to be too limiting to bring about real justice to victims of crimes against humanity. The problem with any war crimes court stems from the fact that, as prosecution goes, the international community at best gets to nail one of two ringleaders with convictions but leaves the functioning war machine or war bureaucracy untouched, the unknown number of faceless bureaucrats and military personnel untouched.

While we get a vicarious sense of justice because we got the top brass, those big arrests give the media permission to declare justice complete and us permission to move on to the next conflict of the day. And by “us,” I mostly mean the Western world, as if prosecuting international, political criminals has become a judicial white man’s burden.

This assumed distance can also amount to a coolly calculated mood of international NIMBY and moral superiority, where one nation can quickly vilify another by pointing out the atrocities committed in that country while claiming such crimes could never occur in their own.

It also assumes a stance of culpability after the fact. Regarding Iraq, the American public needs to look inwards to whether domestically they did enough to prevent the events of Iraq from occurring in the first place.

But can we as Canadians sit so smugly with the notion that we did not invade Iraq, or that it was the progressive Left that kept Canada out of Iraq and therefore we have clean hands and the permission to look the other way. Can we point to Bush and Clinton, two American presidents, and declare their country the new international fixture of Evil while in contrast considering ourselves the good guys?

Instead of sitting on our presumed laurels and pointing to our deified notion of peacekeeping, perhaps we should be more aware of our own actions, non-actions and culpability in global and domestic affairs. Everything from Rwanda, Darfur, Sri Lanka to the treatment of our aboriginal citizens.

If Americans need to look inward to understand their own heart of darkness, then we must demand that we as Canadians do the same.

Post tags: Bush, clinton, Darfur, geneva conventions, genocide, Immigration and Refugee Protection Act, Lawyers Against the War, Mike Ferner, NATO, RCMP, Rwanda, Sri Lanka, Toronto Coalition to Stop the War, UN Security Council, Veterans for Peace, war crimes

Could George W. Bush Be Charged With War Crimes?

By: Contributor · May 29, 2009 · Filed Under Criminal Law, International Law · 3 Comments

George W. Bush and Bill Clinton are coming to Canada on March 29 to speak to an estimated crowd of up to 5,000 people.

David Knowles of the Politics Daily describes the showdown,

The event will consist of the two men seated in chairs between a moderator who has not yet been chosen.

No matter how civil the discourse, the thought of Mr. Bush and Mr. Clinton on stage is bemusing, given the animosity of the past 16 years, and the efforts under way to overcome it…

One thing to keep an eye on is whether the two men will allow questions on torture. Given the legal consequences for former Bush administration figures, this could be one potato too hot for handling. Otherwise, I suspect we’ll hear a cordial conversation with plenty of respectful disagreement..

Former Vice-President Dick Cheney has continued to defend controversial interrogation techniques that many concede as torture.

But the issue of torture is not just theoretical posturing. Canada is a signatory to the International Criminal Court, which is charged with convicting three crimes: genocide, crimes against humanity, and war crimes.

When the release of further photos of Abu Ghraib abuses, including torture and rape, were reported blocked yesterday, Iraqis did call for investigations and charges of crimes against humanity.

Crimes against humanity require widespread or systematic abuses.

The ICC Prosecutor determined there was a reasonable basis that grave breaches had been committed by British troops during the 2003 Iraq invasion for willful killing (8 (2)(a)(i)), and torture or inhumane treatment (8)(2)(a)(ii). But he did not proceed with it because at that time there evidence only demonstrated only 4-12 individuals were subjected to willful killing, and,

[only a] limited number of victims of inhuman treatment totalling in all less than twenty persons.

War crimes, on the other hand, can be covered by even an isolated act by an individual soldier, even without direction or guidance from superiors, which is why Article 8 of the Rome Statute begins with what Hermann von Hebel and Daryl Robinson call a non-threshold threshold in The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, and Results,

1. The Court shall have jurisdiction in respect of war crimes in particular [but not limited to] when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

The United States is not a signatory, and it was Bush himself who instead of ratifying the ICC actually had America’s signature removed. His rationale was “politicized prosecutions and investigations” could result in Americans being brought before the ICC.

Bush’s fears may not have been completely vain, because the ICC does define war crimes to include acts such as torture and inhumane treatment. Other Geneva Conventions that could allegedly be breached include deprivation of a fair trial, willful killing, and wanton destruction of property.

As a signatory to the ICC, Canada could theoretically be asked to bring Bush before it. But that would never happen, given a 2002 Act passed under Bush that allowed the U.S. military to storm the Hague by force and recover any Americans being tried there.

Robert Marquand of the CSM describes the implications of the Act,

Formally titled the American Service Members Protection Act, the measure is widely and derisively known here as the Invasion of The Hague Act.

Odd as it may seem, the law allows the US to constitutionally send jack-booted commandos to fly over fields of innocent tulips, swoop into the land of wooden shoes, tread past threatening windmills and sleepy milk cows into the Dutch capital – into a city synonymous with international law – and pry loose any US troops.

Today, the Dutch mostly treat the issue as a joke, a cowboy American moment. But it is widely felt that if President Barack Obama’s foreign policy team wants to achieve a symbolic break with the previous White House, it could rescind the invasion law.

As a Dutch Ministry of Justice official put it, “I wouldn’t overstate how seriously we take this any more, but it does seem a bizarre symbol.”

The implications for Canada are a little more vague,

One controversial offshoot of the invasion law is called “bilateral immunity” – a policy requiring all states except Israel, Egypt, Taiwan, and those in NATO to sign a waiver stating that they will contravene the ICC if any Americans are arrested. Countries that don’t sign the waiver forfeit US military assistance. The policy pressured small states to comply – whether or not they felt it proper.

Indira A.R. Lakshmanan explains the reason behind this move,

There is a tension in U.S. foreign policy that’s pretty longstanding: The U.S. is far more comfortable as the maker of international rules than as subject to them.

That didn’t stop the Toronto Coalition Against the War from investigating whether Bush could be charged by the ICC. In addition to a planned protest outside the event, the group held an info session last week with Prof. Michael Mandel of Osgoode Hall. Mandel described some of the other challenges of accomplishing such a conviction and the low likelihood of how something like this could happen.

Prof. Mandel mentions the “Crime Against Peace,” or a war of aggression, one which is not fully included under the ICC yet due to lack of consensus by the signatories, but called the “supreme international crime” according to the Nuremberg Tribunal.

However, Attorney General Goldsmith warned Prime Minister Blair in 2003 that the invasion of Iraq could lead to possible prosecution for the crime of aggression because it was recognized by customary international law and therefore imported into the domestic law, a notion later affirmed by the House of Lords in R v. Jones [2006] UKHL 16.

There is another significant barrier to the prosecution of Americans or other allies in Iraq for crimes of aggression that Mandel did not cover. Article 5 of the Rome Statute lists the ratione materiae, or subject matter jurisdiction of the court,

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
[emphasis added]

Article 39 of the Charter of the United Nations states,

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

If acts of aggression can only be defined by the Security Council, then Lionel Yee points out that no permanent member of the Security Council could ever be prosecuted for the crime of aggression.

However, the International Court of Justice may have indicated otherwise. In Nicaragua v. United States (1986), the dissenting opinion of Judge Schwebel stated that a Security Council determination of aggression is based on political considerations, and not a legal judgment,

60. Moreover, while the Security Council is invested by the Charter with the authority to determine the existence of an act of aggression, it does not act as a court in making such a determination. It may arrive at a determination of aggression – or, as more often is the case, fail to arrive at a determination of aggression – for political rather than legal reasons.
However compelling the facts which could give rise to a determination of aggression, the Security Council acts within its rights when it decides that to make such a determination will set back the cause of peace rather than advance it. In short, the Security Council is a political organ which acts for political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.
[emphasis added]

The Separate Opinion of Judge Simma in Democratic Republic of the Congo v. Uganda (2005) went further, indicating that Security Council approval was not even necessary for the determination of aggression,

3. It is true that the United Nations Security Council… has never gone as far as expressly qualifying the Ugandan invasion as an act of aggression…
The Council will have had its own ⎯ political ⎯ reasons for refraining from such a determination.
But the Court, as the principal judicial organ of the United Nations, does not have to follow that course. Its very raison d’être is to arrive at decisions based on law and nothing but the law, keeping the political context of the cases before it in mind, of course, but not desisting from stating what is manifest out of regard for such non-legal considerations. This is the division of labour between the Court and the political organs of the United Nations envisaged by the Charter!
[emphasis added]

The ICC is not a body of the UN, but theoretically may work with the ICJ to determine a case of aggression independently of the Security Council. Article 39 determinations may also theoretically be challenged as ultra vires.

The Yugoslav Tribunal Appeals Chamber stated in the Tadic case,

It is clear from this text that the Security Council plays a pivotal role and exercises a very wide discretion under this Article. But this does not mean that its powers are unlimited. The Security Council is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus subjected to certain constitutional limitations, however broad its powers under the constitution may be. Those powers cannot, in any case, go beyond the limits of the jurisdiction of the Organization at large, not to mention other specific limitations or those which may derive from the internal division of power within the Organization. In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).

In particular, Article 24, after declaring, in paragraph 1, that the Members of the United Nations “confer on the Security Council primary responsibility for the maintenance of international peace and security“, imposes on it, in paragraph 3, the obligation to report annually (or more frequently) to the General Assembly, and provides, more importantly, in paragraph 2, that:

“In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.” (Id., Art. 24(2).)

The Charter thus speaks the language of specific powers, not of absolute fiat.
[emphasis added]

Despite the willingness of many people around the world to have some strong international statement made that these types of military acts in Iraq are inappropriate, these political organs will prevent any determination of war crimes or crimes of aggression.

It’s unlikely that the ICC or other international mechanism will be used in this manner any time in the near future – a conclusion Mandel would likely agree with.

Videos of Prof. Mandel’s talk included below for interest sake below:

Post tags: American Service Members Protection Act, Bill Clinton, Charter of the United Nations, Daryl Robinson, David Knowles, Democratic Republic of the Congo v. Uganda, geneva conventions, George W. Bush, Hermann von Hebel, ICC, indict bush, Indira A.R. Lakshmanan, International Court of Justice, International Criminal Court, Judge Schwebel, Judge Simma, jurisdiction, Nicaragua v. United States, R v. Jones, ratione materiae, Robert Marquand, Rome Statute, Tadic, Toronto Coalition Against the War, torture, Yugoslav Tribunal Appeals Chamber

Review: Taxi to the Dark Side

By: Lawrence Gridin · July 29, 2008 · Filed Under Civil Rights, Criminal Law, International Law, Reviews · 1 Comment

This past week, I had the opportunity to check out the Oscar-winning detainee torture documentary Taxi to the Dark Side.

The film was written and directed by Alex Gibney, of Enron: The Smartest Guys in the Room and Who Killed the Electric Car? fame.

Taxi’s title refers to a young Afghan cab driver named Dilawar, whose plight was made public several years ago in a series of articles written by Tim Golden for the New York Times.

Shortly after picking up a fare in the eastern province of Khost, Dilawar was stopped by Afghan militiamen at a checkpoint. He and the three men he was chauffeuring were accused of being responsible for rocket attacks on an American army base in the region.

With nothing more than the word of the militiamen as evidence against them, the four were handed over to the American forces at Bagram detention center.

The men were questioned by poorly-trained interrogators that were given deliberately vague guidelines as to the kinds of techniques that they were allowed to employ.

Dilawar was handcuffed and chained to the ceiling of his small cell in a standing position, so that he could not fall asleep. The sleep deprivation was aimed at making him more pliable during interrogation.

The guards at Bagram believed they were explicitly authorized to use force to control detainees. It was thought that they were not allowed to strike the prisoners above the waist, but they were allowed to deliver strikes to pressure points in the legs in order to facilitate compliance. Guards were not impressed with Dilawar’s cries and pleas for help. They would take turns kneeing him in the thigh until they grew tired.

“He screamed out, ‘Allah! Allah! Allah!’ and my first reaction was that he was crying out to his god,” Specialist Jones said to investigators. “Everybody heard him cry out and thought it was funny.”

Other Third Platoon M.P.’s later came by the detention center and stopped at the isolation cells to see for themselves, Specialist Jones said.

It became a kind of running joke, and people kept showing up to give this detainee a common peroneal strike just to hear him scream out ‘Allah,’ ” he said. “It went on over a 24-hour period, and I would think that it was over 100 strikes.”

(Source: New York Times)

After five days of torture, Dilawar died. He was killed by heart failure due to “blunt force injuries to the lower extremities.” The army pathologist who examined him ruled his death a homicide.

the tissue in the young man’s legs “had basically been pulpified.”

“I’ve seen similar injuries in an individual run over by a bus,” added Lt. Col. Elizabeth Rouse, the coroner, and a major at that time.

(Source: New York Times)

When public scrutiny finally fell on the case several years after Dilawar’s death, the military was forced to lay charges. The toughest sentence imposed for the torture and murder of Dilawar was 5 months. Two of the soldiers responsible received sentences of two and three months, respectively. None of the other guards who were convicted in the Dilawar case received any jail time at all. Furthermore, to my knowledge, none of the officers giving the orders, let alone the administration officials who drafted the policies permitting detainee abuse, were ever prosecuted.

Since detainees were denied the fundamental right of habeas corpus, they had no way to challenge their detention. It was later discovered that the Afghan militia leader who turned the four men over to U.S. authorities had himself been launching rockets at the American base. He had been arresting and turning in innocent Afghan civilians to curry favour with the Americans.

Even more frightening, it was later discovered that Dilawar’s captors believed he was innocent from the start:

“Most of the interrogators had believed Mr. Dilawar was an innocent man who simply drove his taxi past the American base at the wrong time.”

(Source: New York Times)

The three occupants of Dilawar’s car were eventually released; it was of course too late for Dilawar.

He was one of the first prisoners to die in U.S. custody since the beginning of the War on Terror. He would not be the last.

While the taxi driver’s tragic tale sets the stage for the film, it is not the central focus. Dilawar becomes the anchor of a story that takes us all around the world from Bagram detention center in Afghanistan, to Abu Ghraib prison in Iraq, to Guantanamo Bay in Cuba, and finally all the way up the chain to the Oval Office in Washington.

Taxi to the Dark Side persuasively argues that the atrocities at Abu Ghraib and elsewhere were not the product of a “few bad apples.” Rather, the policies and attitudes that led to detainee abuse were implicitly and sometimes explicitly authorized at the highest levels of the Bush administration.

While the story has certainly been told before, Gibney has a talent for piecing it together succinctly and logically. That, coupled with the fact that the director managed to actually score interviews with Dilawar’s interrogators and abusers, makes this documentary an absolute standout.

I would highly recommend this film to anyone interested in the subjects of criminal law, the “war on terror,” war crimes and atrocities, and international law. While I think that any lay person with even cursory interest in the above subjects would find it disturbing, thought-provoking, and fascinating, the law student will appreciate it on a deeper level.