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War crimes trials?

April 28th, 2008

It’s not that surprising to read that former Malaysian PM Mahathir Mohamad has called for an international tribunal to try Western leaders with war crimes over the war in Iraq, nominating Bush, Blair and Howard in particular. Mahathir is well-known as a provocateur, with a fondness for extreme statements, which have included anti-Semitic attacks on George Soros and others. So it’s unlikely that anyone will pay much attention to him.

Still, his views on Iraq as a war crime are widely shared. It scarcely seems beyond the bounds of possibility that someone like Baltasar Garzon might find a legal way to file criminal charges (Wikipedia says he’s already threatened a civil suit.

Such charges would have enough factual and legal support to make the outcome unpredictable if they ever came before a tribunal. Apart from the general question of the legality of the war itself, the US in particular has openly denied the applicability of the Geneva Conventions and has engaged in many actions (torture of prisoners, bombing of occupied civilian areas, reprisal attacks of various kinds) that at least arguably violate the Conventions.

On the other hand, the prospect of Bush, or any US official, for that matter, actually standing trial, let alone being convicted or punished, seems unthinkable. The only consistent inference that I can draw from this is that, if charges are ever laid in any jurisdiction, the governments concerned will find a way to abort the process without allowing the substantive issues to come before a court. Since most of the doctrines that might be used to achieve such an outcome (sovereign immunity, non-interference in internal affairs and so on) have already been repudiated, it seems as if such an outcome could only be justified in terms of a bald claim of “reasons of state”.

Are there any legal experts who can help me out here? I have two main questions:

1. Where if at all, might charges be brought against Bush and others?
2. How would the hearing of these charges be prevented?

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  1. May 2nd, 2008 at 14:18 | #1

    Damien,
    Respectfully, I disagree with you. There are plenty of people on both sides of this. I have other things to do that interest me more. If we wanted to spend our time chasing alleged war criminals there are others (IMHO) more worthy of chasing than leaders of democratic nations who went to war with the majority support (correct or not) of their people. If you want to disgree with me (respectfully of course) – fine. But I will use my time how I see fit. Our host here asked a question and I joined in the process of answering it. If you think that coming off the fence and taking a stand is important, great. Full marks from me. I just do not feel I can, or need to, follow at this point.
    On the “Downing Street Memo” it is one person’s opinion of what was said or known. That may be entirely accurate. Alone, though, it is not enough to convict – but it could well be enough to start an investigation. Questioning the author would be the first step.

  2. smiths
    May 2nd, 2008 at 14:20 | #2

    what happened to my posts john,

    its incredibly frustrating to gather evidence with footnotes, to post it repeatedly and still never see it

    oh well…

  3. Andrew
    May 2nd, 2008 at 14:57 | #3

    The use of term ‘war crimes’ is usually used in the context of atrocities committed in a war – e.g. the holocaust, ethnic cleansing in Kosovo etc.

    Since when was going to war itself a war-crime?

  4. smiths
    May 2nd, 2008 at 15:00 | #4

    The International Military Tribunal at Nuremberg ruled that “to initiate a war of aggression … is not only an international crime; it is the supreme international crime�.
    The tribunal’s charter placed “planning, preparation, initiation or waging of a war of aggression� at the top of the list of war crimes.

    i have the sources for this but every time i post it all it never appears weirdly

  5. Damien
    May 2nd, 2008 at 15:01 | #5

    Andrew, we are talking about a systematic program of lies in order to invade a country resulting in the needless death of a million people, and whether or not our PM has a right to mislead Parliament and the public in order to take us to war. We are not talking about stolen stationery from the filing cabinet. But you believe whatever fits well with you.

  6. May 2nd, 2008 at 15:04 | #6

    andrew,
    The war itself can be a crime if there was no legal justification for it. In that context it could be regarded as a war-crime.
    As the term “war-crime” is not defined anywhere in law there is no reason it cannot be called this.

  7. May 2nd, 2008 at 15:43 | #7

    Damien,

    If that is what you believe it was then I fully understand that you get worked up about it and feel everyone should get involved. I disagree.

  8. May 2nd, 2008 at 15:48 | #8

    I should say that a bit better. I believe there is legitimate reason for doubt in your position.

  9. smiths
    May 2nd, 2008 at 15:59 | #9

    andrew #103,

    a systematic program of lies in order to invade a country resulting in the needless death of a million people, and whether or not our PM has a right to mislead Parliament and the public in order to take us to war

    which bit of damiens statement do you disagree with specifically

    and with that in mind i repeat my qrequest from earlier today,

    for those who believe it was not an illegal act of aggression in contravention of international law,
    could you please explain to me what justified the attack on iraq and what essentailly made it the right thing to do

  10. May 2nd, 2008 at 16:05 | #10

    smiths,
    Whether it was “the right thing to do” is (IMHO) irrelevant to whether it is lawful or not – and ice versa. Which one do you want an answer to?

  11. smiths
    May 2nd, 2008 at 16:20 | #11

    it always ends in semantic games,

    The International Military Tribunal at Nuremberg placed “planning, preparation, initiation or waging of a war of aggression� at the top of the list of war crimes.

    can someone with some guts please explain why, if at all, the attack on iraq does not fit the above criteria

    if it does then why cannot the leaders responsible hypothetically be tried for it

    for anyone that supported the war in the first place i can understand why petty little conceptual games would be so important now, sad though nonetheless

  12. Andrew
    May 2nd, 2008 at 16:24 | #12

    At the time, I thought it was the right thing to do. Now I’m not so sure, but it’s possible that future generations may look back on the Iraq war as a watershed event that finally introduced modern western liberal democracy to the Middle East – hopefully it spreads to Iran, Syria, Saudi Arabia etc, that would make the world an enormously better and safer place for our kids. I guess it all depends how well the US manages the next decade of support for the fledgling Iraqi democracy and whether they can recover from the cock-up they made of the immediate aftermath of the successful initial liberation.

  13. Andrew
    May 2nd, 2008 at 16:35 | #13

    btw Damien – I suspect your figure of 1 million Iraqi deaths is exaggerated. Where does that come from? The population of Iraq is only about 20million!

    Mind you, even just 1 death is a sad event – but I don’t think gross exaggeration helps any rational debate.

    It would also be interesting to know –

    1) How many deaths would have been expected anyway if we’d left Saddam in charge?

    2) How many of these deaths were actually caused by CoW troops and how many were killed by extremists such as Al Qaida or Shiite militia from Iran?

    I can anticipate your response – it doesn’t matter, the US occupation is causing the reaction from the extremists, so indirectly the US is responsible.

    But I reject that – that’s no better than arguing that if the police try to arrest an armed criminal and an innocent bystander gets shot – then the police should be charged with murder.

  14. May 2nd, 2008 at 16:38 | #14

    No, it is not “semantic games”, smiths. There are very important parts of international law at stake here. If you want to say they are semantic, go ahead, but permit me to disagree.
    On the “war of aggression” point. This was elaborated in the Vienna Conventions. To paraphrase, you are not involved in a war of aggression if you believe yourself or another country, on reasonable grounds, to be in imminent danger of attack – i.e. the principle of self-defence is a defence in international law to a charge of “waging an aggressive war”.
    Now, you may think that the infamous “Downing Street Memo” removes this defence (particularly in the case of Blair, who according to the memo was aware of this) – fine, if you do, make that case. If you believe the intel was being “sexed up”, great, make that case. If you believe Bush was omniscient and therefore knew everything that there was to know about everything and therefore must have knon that there was no such danger, fine, make that case.
    But those cases need to be made. It is not a closed question.

  15. Ian Gould
    May 2nd, 2008 at 17:14 | #15

    “…future generations may look back on the Iraq war as a watershed event that finally introduced modern western liberal democracy to the Middle East – hopefully it spreads to Iran, Syria, Saudi Arabia etc,”

    Yes. If they ignore the fact there is no “western liberal democracy” in Iraq; choose to ignore the democratic elections in Iraq between the 1930′s and 1950′s as well as in 1950′s Iran and also choose to define the middle east so as to exclude Turkey and Lebanon.

  16. Damien
    May 2nd, 2008 at 17:17 | #16

    In Jan 2008 the Iraq government and the World Health Organization issued the results of their survey for the three years following the invasion (mid 2003 to mid 2006). Their figure was 151,000 dead. Even if we accept that number (it’s understated, for political reasons), projecting it forward to 2008 sees at least Iraqi 200,000 dead till now. Of course, the study missed the period of what is believed to be the worst sectarian killings, during the latter half of 2006 and the first eight months of 2007.

    There have been two independent death statistics studies prior to the WHO report. Both of them were followed up and confirmed some time after the original studies. Both studies obtained war caused death figures of a million (projecting from figures from the time of survey).

    The first was carried out by staff from John Hopkins University in Ost 2004 and Oct 2006 and published in the Lancet medical journal. Their 2006 finding was 654,965 war related civilian deaths (a 95% confidence interval of 392,979 to 942,636 deaths). The methodology which was “widely criticized” (by anyone connected to the Bush administration) despite the fact that the same methodology had been used successfully in previous war zones in Kosovo, Uganda and the Congo and found to be reliable. The world’s best medical statisticians have all endorsed the Lancet methodology. Sir Richard Peto, Professor of Medical Statistics at Oxford University described the study as ‘statistically reliable’.

    PM Tony Blair was quick to dismiss the Lancet findings until the UK Defense Dept’s chief scientific adviser said the research was “robust”, close to “best practice”, and “balanced”. He recommended “caution in publicly criticising the study”. Blair was reportedly horrified.

    The other Iraqi deaths survey was carried out by Opinion Research Business (ORB)(also here) a non-partisan British polling agency that has conducted studies for the BBC and the UK Conservative Party. They used polling methods that have been consistently shown to be statistically reliable.

    Their result (from a September 2007 survey and a follow-up in January 2008): over 1 million Iraqi civilian deaths as a consequence of the 2003 US invasion.

    So we have two independent death surveys conducted by (1) a team of respected scientists using established survey methods, and (2) a conservative UK polling agency using established methods, both of whom did follow up work to confirm the validity of their earlier findings. Their estimates, as at mid 2008: there are over 1,000,000 Iraqi war related civilian deaths since the invasion.

    Further discussion here.

  17. Damien
    May 2nd, 2008 at 17:24 | #17

    Andrew (#110), instead of writing can you try some reading. There was never any good faith by the Bush administration of an “imminent attack” from Saddam. It was bunkum. I don’t know how you can write this nonsense. Go back and read the linked article by Elizabeth de la Vega (#92). It outlines when and where the Bush administration made claims about threats from Saddam and what they actually knew at the time. It’s all there. It’s all documented. I can give you other links and articles if you like.

  18. May 2nd, 2008 at 17:39 | #18

    Damien,
    One person’s opinion of the evidence, their presentation of it, may be compelling. Another person may have another opinion and a third will have another. If you believe she is right, great, fine, no problem – go ahead and argue that.
    From that link there is an indictment which makes certain allegations. It is up to the US criminal system to actually progress that through.

  19. May 2nd, 2008 at 17:53 | #19

    I should add, as you would know, that this is an hypothetical indictment, and one that has not even gone to a Grand Jury. It is far from proving anything.

  20. Damien
    May 2nd, 2008 at 18:12 | #20

    Look, I’m sorry. What you have written is beyond the bounds of any sensible political debate. The assumptions you hold are so considerate of the sensibilities of the Bush administration and so restrictive of the public’s right to form political views in any setting that public discourse simply loses all meaning. Quite simply, if every political situation is indeterminate because we do not have official court findings then we should shut up our newspapers and not even bother voting. I’m sorry, but your criteria for assessing these matters are simply so user friendly anyone can believe anything they like and facts cease to have any relevance. Milosevic would still be sitting in Yugoslavia if we followed your views and Goering would have lived on till the 60′s. It’s pointless arguing when one side says that only court validated evidence is acceptable and absent that that they can believe whatever they want. It’s meaningless.

  21. May 2nd, 2008 at 18:59 | #21

    No, damien. This thread was not on what you want to believe or on the public’s right to form political views, both are rights I hold very dear. I have focussed on the legal point as our host was asking in the first place. Many here, including you, have tried to make out that the case is proven, that they are definately guilty. This is clearly not the case. You are free to judge them in any way you choose – you are free to believe that Bush was born with hooves, a tail and 666 emblazoned upon him. You (should be) even free to say this. If you try to say that he should be burnt at the stake without a trial, though, then expect me to disagree with you – and even try to stop you.
    On your specific nonsence, though – IMHO Milosevic and Goering were properly arrested and tried. The real pity was that Milosevic was not convicted (dying during the trial does that). While I am an opponent of the death penalty to me at least the only real pity on Goering was that he was allowed (by negligence) to choose the manner of his punishment.

  22. gerard
    May 2nd, 2008 at 19:00 | #22

    The war was not defensive and it was not authorized by the UNSC. That makes it illegal. So it is not presumptive to call Bush etal war criminals – it is a mere statement of fact. I think AR is confusing the difference between a war criminal and a convicted war criminal.

  23. gerard
    May 2nd, 2008 at 19:11 | #23

    by the way, I can never get over how so many “educated” people actually bought the case for war – which could hardly have been a more transparant batch of obvious lies. Seriously, how dumb would you need to be to buy that garbage? It astonishes me when someone admits “I supported the war based on what I knew at the time”. It actually means “I supported the war based on the fact that I was a terminally gullible ignoramus”.

  24. gerard
    May 2nd, 2008 at 19:21 | #24

    Many here, including you, have tried to make out that the case is proven, that they are definately guilty. This is clearly not the case.

    Well, unless some imposter wearing a Bush-mask was in charge during the critical time – it clearly IS the case. Does anyone make the claim that Bush DIDN’T invade Iraq? Since he did it on Television and takes full credit for it, I don’t see how that’s possible.

    By the way, you don’t need a court’s permission to say that Mao was a mass murderer. It’s a fact. We have the evidence. And P.S., is bin Laden a terrorist?

  25. Damien
    May 2nd, 2008 at 20:00 | #25

    Andrew, I referred you to the article by Elizabeth de la Vega which pointed to public statements by the Bush administration for which there existed contradictory evidence that was publicly available in some form or another. Your response (#121) was to note that this was an opinion and (ho hum….) other opinions were available. Your argument has consistently been that if court findings are not available then people are free to believe anything they like. This standard is so low as to make discussion meaningless. There are other errors in your response which I am going to ignore since nuanced discussion does not appear to be your strong point. When faced with unpalatable facts you simply keep restating in various forms that “different people can hold different views.” So what? Who cares?

  26. May 2nd, 2008 at 21:32 | #26

    With no disrespect to any of the participants in this discussion who have made intelligent arguments in good faith…

    Once upon a time there were three idiots standing at a bus-stop outside a village. A man drove past and told them the bus would not be coming, as it had broken down.

    “Nonsense!” said the first idiot. “The bus is in excellent condition. I am not going anywhere!”

    “Well, if you are staying then so am I!” declared the second idiot.

    The third idiot spent the rest of his day trying to convince the first two idiots to stop waiting for the bus.

  27. Damien
    May 2nd, 2008 at 22:29 | #27

    That bus has broken? Damn, man! thnx G.

  28. rog
    May 3rd, 2008 at 00:06 | #28

    Your argument is a parable?

  29. smiths
    May 3rd, 2008 at 13:03 | #29

    it’s possible that future generations may look back on the Iraq war as a watershed event that finally introduced modern western liberal democracy to the Middle East – hopefully it spreads to Iran, Syria, Saudi Arabia etc, that would make the world an enormously better and safer place for our kids.

    i used to watch a show when i was kid called the magic roundabout, it was a lovely dreamy happy world,
    this comment above took me back to those dreamy places and the opium dens of my youth, hoorah

  30. May 3rd, 2008 at 14:29 | #30

    Damien (and others),
    If you want to talk about the moral or political picture around the justifications for the war I am happy to do so. As I said, I have restricted my parts of the discussion to the legal aspects as I understand them, and as our host started the thread on.

  31. May 3rd, 2008 at 15:47 | #31

    LOL Damien @ 127. Tks for your input.

  32. May 4th, 2008 at 23:01 | #32

    Gerard @122,
    Both of your contentions are arguable. If you want to have a political debate about this I am happy to.

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