We have a viable legal system and the applicable laws are in place to prosecute Bush et al if we wanted to. In fact, we have prosecuted Americans who torture in the past and continue to do so – at least when the perpetrators are local officials.
According to the Chicago Tribune, Cook county officials agreed to settle the county’s portion of a law suit bought by a former inmate, Michael Tillman. Tillman alleges that detectives tortured him to acquire a confession in a 1986 rape and murder case. The suit names the city, former Mayor Richard Bradley; former Chicago Police Lt. Jon Burge; and others, including former Assistant State’s Attorney, Timothy Frenzer.
We still don’t know the outcome of this case, but at least this victim of torture will get his day in court. That is more than what has occurred with victims of the Bush Administration’s torture policy – at least within our legal system.
As Rmuse reported, the Kuala Lampur War Crimes commission convicted George W. Bush et al of torture, as a war crime. This is significant in the sense that it is the closest to a recognized legal proceeding that has occurred to date. It matters because aside from the conclusion that Bush et al are war criminals, the commission’s conclusions do not end there. According to Foreign Policy Journal:
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 Kuala Lumpur War Crimes Commission is also asking that the names of Bush, Cheney, Rumsfeld, Gonzales, Yoo, Bybee, Addington and Haynes be entered and included in the Commission’s Register of War Criminals for public record.
The outcome of these measures remains to be seen. Since the United States is not a signing party to Rome Treaty establishing an International Criminal Court (ICC), one might conclude the ICC does not have jurisdiction. However, are two possible means by which a case can be brought to the ICC.
Bush et al could be prosecuted by the ICC with a referral by the United Nations Security Council. The U.S. is one of the permanent five members of the Security Council, which means it has the power to veto discussion and any proposed resolutions to refer the case to the ICC. The Fredrick K. Cox International Law Center explains how a referral to the ICC works.
The Security Council refers “a situation” to the ICC, leaving it up to the Prosecutor to decide in full autonomy whether to bring charges emanating from that situation, who to prosecute, and for what crime(s). No further conditions have been laid down for the exercise of jurisdiction by the ICC in cases of Security Council referrals. However, the Security Council cannot confer powers on the ICC that the ICC does not have by virtue of its Statute. The ICC can, for example, only prosecute persons over the age of 18 years, it only has jurisdiction in respect of crimes committed after July 1, 2002, it cannot exercise jurisdiction while a State with a special interest in the matter is willing and able to investigate the alleged crime and, if appropriate, bring the perpetrator to justice. The Security Council cannot instruct the ICC to deviate from any of these restrictions. Referral of a situation to the ICC by the Security Council occurs in virtue of the Council’s Chapter VII powers. The Security Council can therefore only refer a situation to the ICC if it has decided that the situation constitutes a threat to the peace, a breach of the peace, or an act of aggression. That decision, as well as the referral itself, can be vetoed by any of the Permanent Members of the Security Council (China, France, Russia, the United Kingdom and the United States of America).
Even without a UNSC referral, the ICC can still consider the case if the crime occurred on the territory of a state party to the ICC Statute, according to Article 12 2(a).
Justice in a recognized court is always the preferred outcome when a crime has taken place. However, as Rmuse wrote:
The stigma attached to individuals who have been convicted of a crime is a damning and lifelong curse that affects social interactions, families, and in many cases, the opportunity for finding gainful employment. For ex-president George W. Bush, finding gainful employment is not an issue, but as a convicted war criminal, he will forevermore share that designation with the likes of Adolf Hitler, Josef Mengele, and Osama bin Laden.
In other words, the stigma is its own kind of judgement, one made to reflect the international community’s conscience.
We have talked the talk when it comes to condemning war crimes and crimes against humanity. We also condemned torture as a human rights violation. As a matter of law, we condemned torture whether it occurred in war time or in peace. We prosecuted those responsible for such crimes following World War II and more recently by ad hoc Tribunals for war crimes in the former Yugoslavia and Rwanda.
And we can prosecute those who torture within the United States – at least when they are low enough on the political food chain.
Some will point to the fact that there are times in which we have condoned, or at least closed our eyes when torture happens.
The Nixon administration supported Augusto Pinochet’s coup. We were less than willing to condemn torture, disappearances and murders. When Pinochet was arrested in Britain, we made some overtures suggesting it would be better for all involved if the British just sent him home, rather than allow the Spanish courts to hold him accountable.
Then there is Bush et al.
Image from European Union times