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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. Thersites
    April 28th, 2008 at 23:58 | #1

    First and final troll warning. Please read the comments policy

  2. April 29th, 2008 at 00:09 | #2

    I actually saw a debate about this last year at the Melbourne Uni Law School (I am not studying law, but friends of mine are), between Julian Burnside and Peter Morrissey.

    Remembering specific points either side made is tough – both were entertaining, and Morrissey dived into the complex legalities of it all, whereas Burnside was appealed more to the emotive ideal of it.

    I think the final impression was while it would be great from a social justice/human rights perspective, legally it wasn’t really going to be possible.

    Sorry I’m light on details.

  3. April 29th, 2008 at 00:51 | #3

    PrQ,
    You could have asked this question without raising a person capable of saying this:

    But today the Jews rule the world by proxy. They get others to fight and die for them. They invented socialism, communism, human rights and democracy so that persecuting them would appear to be wrong so they may enjoy equal rights with others. With these they have now gained control of the most powerful countries. And they, this tiny community, have become a world power.

    That is (IMHO) far beyond merely being a “provocateur”. It is just outright plain rascism of (nearly) the worst sort. Raise the point by all means, but indicating support for his position I find taking things a bit far.

  4. brian
    April 29th, 2008 at 02:34 | #4

    I THINK MAHATIR ALSO INCLUDED JOHN HOWARD AMONGST THE CRIMINALS FOR WAR CRINES TRIAL…A TRIAL OF HOWARD WOULD FILL THE MCG..ROLL ON THE DAY!!

  5. jquiggin
    April 29th, 2008 at 06:19 | #5

    AR, I’ve clarified the post to make it clear I don’t agree with Mahathir. I was just using him as a news hook.

  6. April 29th, 2008 at 07:53 | #6

    Bravo for confronting this untouchable subject, Prof Q.

    I just wrote a detailed Op-Ed on this issue, which I posted on my blog here yesterday.

    The sad fact is that neither Howard nor Rudd has every really explained why the invasion of Iraq was NOT a War Crime. We do not seem to have an official government position on this, and nobody is asking for it.

    Like most war supporters, Howard initially pointed to United Nations Resolution 1441 as proof of the war’s legality. So why did he help Bush and Blair desperately seek a further UN resolution? Because their top legal experts advised that the invasion would be illegal without it. The final nail in this argument surely comes from the UN itself: former UN Secretary General Kofi Annan personally declared the invasion illegal in September 2004. Howard (and Rudd?) might still try to argue this case in a court of law, but I doubt it would hold water.

    In Washington, the ultimate legal defence for war supporters is Dick Cheney’s concept of an over-riding “executive privilege”. But this concept barely exists in Australian law. And even Cheney is reluctant to test it before the US Supreme Court.

    In London, following a Commons revolt earlier this year, Gordon Brown has been forced to commit to a full Iraq War enquiry. But he has delayed this until the British military’s “work is done” in Iraq, arguing that frontline troops remain at risk and such an enquiry would somehow increase their danger. Given that British troops are now basically confined to their base outside Basra, such an enquiry may not be too far away: the Australian media and politicians would not doubt take a lead from this. Still, we’ll believe it when it happens, and the terms of enquiry will be very interesting indeed.

    So what about Australia? Here, the government has just ignored the issue. Canberra does not have a valid legal excuse, and has not even tried to argue one since Howard stopped arguing the UN Resolution 1441 line.

    Our “combat” troops will soon be coming home from Iraq. It’s time we demanded answers. And there is only one way we are going to get them.

    We need to demand a Royal Commission into Iraq.

    More on these legal issues here and more on the reasons we went to war here.

  7. April 29th, 2008 at 08:13 | #7

    BTW: Mahathir’s speech to the Imperial College in London was muffled by British police who restricted entry to those carrying college ID cards only. It might have received more attention from the press if any of them had been able to hear it.

  8. rog
    April 29th, 2008 at 08:36 | #8

    Ghandi, what Kofi Annan said was a personal comment and does not reflect the opinion of the UN.

  9. Steve Bloom
    April 29th, 2008 at 08:44 | #9

    Your #2 has a two-word answer, John: Pinochet disease!

  10. April 29th, 2008 at 08:45 | #10

    rog, you will never get an official “opinion of the UN” when the USA is holding a veto.

  11. rog
    April 29th, 2008 at 08:49 | #11

    Until a complaint is made by a UN signatory to the UNSC its a non issue.

  12. rog
    April 29th, 2008 at 08:56 | #12

    Also Gandhi, the invasion is not a “war crime” it is the conduct during the occupation.

    http://www.icc-cpi.int/library/press/mediaalert/160703press_conf_presentation.pdf

  13. rog
  14. April 29th, 2008 at 09:03 | #14

    rog, if you want to believe that UN Resolution 1441 made a “pre-emptive”(*) invasion legal, I doubt the actual text of that resolution will talk you out of it.

    Even the US ambassador the UN at the time, a man called John Negroponte, said:

    “[T]his resolution contains no “hidden triggers” and no “automaticity” with respect to the use of force. If there is a further Iraqi breach, reported to the Council by UNMOVIC, the IAEA or a Member State, the matter will return to the Council for discussions as required in paragraph 12.”

    (* not actually pre-emptive at all, given there was no threat).

  15. jquiggin
    April 29th, 2008 at 09:04 | #15

    #9 Could you clarify?

    Although Pinochet was eventually released from British custody on health grounds, his case closed off most of the easy escape avenues for future alleged criminals.

  16. April 29th, 2008 at 09:22 | #16

    It should also be noted that Australia (like Britain, but not the USA) is a signatory to the International Criminal Court, which was only established in 2002. Again from Wikipedia:

    The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes…

    [I]t should not be confused with the International Court of Justice, also known as the World Court [or "The Hague"], which is the United Nations organ that settles disputes between nations.

    Furthermore:

    On 10 February 2006, the [ICC] Prosecutor published a letter responding to complaints he had received concerning the 2003 invasion of Iraq. He noted that “the International Criminal Court has a mandate to examine the conduct during the conflict, but not whether the decision to engage in armed conflict was legal”, and that the Court’s jurisdiction is limited to the actions of nationals of states parties. He concluded that there was a reasonable basis to believe that a limited number of war crimes had been committed in Iraq, but that the crimes allegedly committed by nationals of states parties did not appear to meet the required gravity threshold for an ICC investigation.”

    A million dead does not meet the “required gravity threshold”??! More here.

    In any event, this ICC position only reinforces my argument that a Royal Commission is the best way forward: we need to take charge of investigating, and if necessary prosecuting, our own nation’s War Crimes.

  17. David Allen
    April 29th, 2008 at 09:32 | #17

    Thanks for raising this issue.
    War criminals should not be allowed to slink away into retirement. John Howard and his co-conspirators must be prosecuted for their crimes.

  18. April 29th, 2008 at 09:50 | #18

    Can I please take the opportunity to encourage other “progressive” Australian bloggers to take up this issue?

  19. gordon
    April 29th, 2008 at 10:31 | #19

    I for one am rather fond of Mahathir Mohammed. His pronouncements are no worse than those of many “Western” leaders, and are in fact often accurate. I fear that there is a hefty dose of racism in the sort of criticisms which are often levelled at him. Why should Malaysia or Malaysians be less corrupt, cronyistic or unjust than the rest of us? Why come down on Mahathir when leaders of the US, UK and Australia tell lies, benefit their cronies, engage in aggressive wars, violate human rights (including illegal imprisonment and torture) and condone a continuing massive shift of wealth from the poor to the rich in their own countries? Is it because financiers have never forgiven him for imposing capital controls on the Malaysian currency during the 1997 Asian meltdown?

    People who cannot bear to contemplate Dr Mahathir are people who, like Dorian Gray, can no longer bear to look at themselves in a mirror.

    And as for “using him as a news hook”, where is the necessity? Surely Prof. Quiggin, an eminent economist and one of John Howard’s Federation Fellows, doesn’t need to do that!

  20. Andrew
    April 29th, 2008 at 11:08 | #20

    Gandhi “you will never get an official “opinion of the UNâ€? when the USA is holding a veto”

    LOL!!!

    You will never get an official anything from the UN whilst parties with such widely varying agendas hold vetoes. If the UN had got its act together in the 1990s to keep Hussein accountable then we wouldn’t have got in this mess in the first place!

    As for Mahathir Mohamad – what a miserable excuse for a world leader. SE Asia’s Mugabe – silencing dissent and opposition.

    It dismays me that so many left-wingers would use comments from someone like Mohamed to score cheap political points.

  21. April 29th, 2008 at 11:50 | #21

    If the UN had got its act together in the 1990s to keep Hussein accountable then we wouldn’t have got in this mess in the first place!

    Well actually the UN sanctions – like them or not, and I didn’t – had Saddam economically contained, and UN weapons inspectors had his WMD program contained. But Bush & Co had already made up their minds to invade: the intelligence was fixed around the policy, remember?

    Neither Prof Q nor I is using Mahatir’s comments to “score political points”: his media-reported remarks present a rare opportunity to spark debate on this important issue, that is all. Mahatir’s anti-Jewish racism and many other serious failings do not invalidate his other valid points on state-sponsored Zionism.

    On the other hand, if you are looking for an excuse to hijack this thread…

  22. Andrew
    April 29th, 2008 at 12:13 | #22

    This thread hijacked itself as soon as Mahatir’s name was invoked.

    I think you’re right – Bush made up his mind to invade Iraq and cherry picked the intelligence that supported his view. I think Bush is an ignorant buffoon and the sooner he goes the better.

    But to make comments like “UN weapons inspectors had his WMD program contained” is just plain wrong. The UN was kicked out in 1998 and at that stage Iraq still had WMD. No-one knew for sure whether they had WMD in 2003 or not. I suspect most people thought the US would find some stockpiles of chemical weapons at a minimum. But anyway – that’s besides the point. Calling for Bush, Blair and Howard to be tried as war criminals smacks of juvenile campus politics. And yes – you are using Mahatir to ‘score politcal points’ and that’s quite sad.

  23. Damien
    April 29th, 2008 at 12:45 | #23

    The war crimes in Iraq exist at several levels:

    (1) the invasion itself and the occupation.
    (2) the failure to provide forces sufficient to ensure civil order (1 million dead Iraqis).
    (3) the abuse of prisoners (Abu Ghraib and elsewhere).
    (4) failure to exercise control over mercenary forces (Blackwater).
    (5) the appropriation of national resources (oil laws).
    (6) the overturning of established civil laws in Iraq (and their replacement by Paul Bremers 100 edicts).

    These are all specific features of the Geneva Conventions. There is considerable documentary and witness evidence publicly available in relation to each of the above items.

    Professor Donald Rothwell, Professor of International Law at the Sydney University, gave a detailed analysis in the Sydney Morning Herald (June 3, 2004) on the legal obligations of Australia and the USA as occupying powers in Iraq under the Geneva Convention. Quite aside from any question of the act of invasion of Iraq, his view was that Australia had a clear legal obligation to ensure the safety of civilians and prisoners as part an occupying force. According to Prof.Rothwell, any failure to carry out those duties constituted prosecutable war crimes.

    Put simply, if you invade a country you are legally required to ensure sufficient troops for the safety of the citizens. Advice from senior US military leaders to President Bush prior to the invasion was that he would need at least 400,000 troops to stabilize Iraq. Gen. Anthony Zinni and other US generals had previously war-gamed the occupation of Iraq (“Desert Crossing”) and confirmed those figures. That advice was ignored. 160,000 troops were sent in. 1,000,000 Iraqis have died as a result. John Howard would have been aware of those reports from the media and his military and legal advisers.

    (There is an interesting account from Brigadier General Mark Scheid, chief of the US Logistics War Plans Division after 9/11, and one of the people with primary responsibility for war planning. He was ordered by Def.Sec.Rumsfeld NOT to carry out Phase 4 (occupation) planning for Iraq, the kind of planning essential for maintaining civil order, planning that formed part of established military practice. Rumsfeld reportedly said he would fire anyone carrying out such a process.)

    Further, the legal responsibilities of the US and Australian governments were not reduced by the installation of the so-called Interim Government of Iraq in 2004. Under the laws of war the US government and its allies remained fully accountable – especially under the circumstances where the Iraqis did not have the resources needed to enforce security. Even the U.S. Army Field Manual 27-10 (1956) affirms this principle: “The restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed directly by the occupant.”

    I won’t go into detail, but considerable documentary and witness evidence has emerged that torture practices in Iraq by coalition forces were sanctioned by the highest levels of the US government.

    I have no doubt that John Howard and the Australian media hold high-minded reasons why the Australian public should not revisit the decision to invade Iraq. There is already sufficient grounds to believe that the invasion of Iraq was illegal and a war crime under the detailed and specific provisions of the Geneva Convention to which Australia is a signatory. Further, the PM’s decision to join the invading force of 160,000 US personnel in the face of advice that 400,000 troops were required is, similarly, a war crime under the Geneva Conventions. This war business is not a cute game that comfortable Western leaders like John Howard can uncritically play with no regard for the preventable deaths that follow.

    If we have any morality at all then we must have a full Royal Commission into Australia’s decision to invade Iraq as part of the Coalition. This should include all matters relating to what our PM was told and what he conveyed to the Parliament. Amongst other details, I am particularly concerned that in Dec 2002 John Howard was told by Aussie weapons inspector Rod Barton (also here) that there were NO WMDs in Iraq, and appears to have obtained told that the lead UK weapons inspector had reached the same conclusion. These views were not conveyed to Parliament and John Howard almost certainly mislead them on his true knowledge of the threat from WMDs. By all appearances PM Howard took us into Iraq on ideological grounds with a decision that had likely been made as far back as 2001. Aside from the war crimes committed by Howard against Iraq, I find it offensive that any Australian PM can treat our defence forces as some sort of discretionary plaything.

    Howard is a war criminal. The Iraqi people are entitled to justice. The Australian people are entitled to know how we went to war. A Royal Commission is required.

  24. April 29th, 2008 at 12:55 | #24

    Gordon,
    Do you believe the quote of his, given above was accurate then? Was it entirely appropriate? “Leaders” in the bucket of Mahathir, Suharto or Marcos have been a stain on Asia for far too long. The people there deserve better.
    .
    As for the main point of the thread? If Bush, Blair and Howard could be considered “war criminals” there are others who are much more deserving and about whom you hear few complaints. Muammar al-Gaddafi, Omar Hassan al-Bashir, possibly Meles Zenawi and any number in sub-Saharan Africa before you even start on South America or Asia – with the central Asian dictatorships being good examples.
    I believe there have been wrong (and possibly criminal) activities carried out under the orders of the current President of the US (Guantanamo detention amongst them) but if you want to make a political point, make it. Branding someone a war criminal when there is considerable doubt as to whether the conduct is criminal to me is seeking to minimise the conduct of those where there is little doubt.

  25. April 29th, 2008 at 13:18 | #25

    No-one knew for sure whether they had WMD in 2003 or not… But anyway – that’s besides the point.

    Well, actually that is pretty much the whole point.

    The Bush Coalition – including Howard – said they were 100% sure Saddam had WMDs. The burden of proof was on them, given that they were deliberately breaking international laws with their new “post-9/11 world” concept of “pre-emptive” war.

    And yet they deliberately suppressed any dissenting intelligence or opinions (including Andrew Wilkie here) while eagerly embracing fabricated evidence (such as “Curve-ball’s”) which they were repeatedly warned to ignore.

    My point is not that there should be War Crimes tribunals in the Hague or anywhere else tomorrow, but that there should be a full and complete investigation into Australia’s role in the Iraq War.

    At the very least, we should demand some official explanation of the legal basis for this invasion, given that our soldiers have contributed to the death of a million Iraqis and the virtual destruction of their country.

    There is little point talking about prosecting Gaddaffi and Al Bashir, or even Mugabe, if we are not willing to uphold international law within our own borders. Either we support the concept of International Law, and all the responsibilities it implies, or we do not. Where do we stand, Australia?

  26. April 29th, 2008 at 13:19 | #26

    prosecting = prosecuting (sorry)

  27. Damien
    April 29th, 2008 at 13:43 | #27

    Andrew, you say: “The UN was kicked out in 1998 and at that stage Iraq still had WMD. No-one knew for sure whether they had WMD in 2003 or not.”

    Not true. While Saddam did obstruct the weapons inspectors he later provided them with unfettered access. It was George Bush who forced their departure in order that he could invade. Had they been allowed to stay they would have completed their inspection within months and there would have then been no case for invasion (at least not over WMDs).

    And it is not true that there was an honest belief by the US administration that Saddam may have had WMDs. Read the Rod Barton interview mentioned above where, in Dec 2002, he told our PM that there were NO WMDs of any significance. You will find there was a systematic US drive to skew the findings of the weapons inspectors who were telling them repeatedly that there was nothing.

    Here’s a statement from Carne Ross, Britain’s key negotiator at the UN:

    I was First Secretary in the UK Mission to the United Nations in New York from December 1997 until June 2002. I was responsible for Iraq policy in the mission, including policy on sanctions, weapons inspections and liaison with UNSCOM and later UNMOVIC… I read the available UK and US intelligence on Iraq every working day for the four and a half years of my posting…

    During my posting, at no time did HMG assess that Iraq’s WMD (or any other capability) posed a threat to the UK or its interests. On the contrary, it was the commonly-held view among the officials dealing with Iraq that any threat had been effectively contained. I remember on several occasions the UK team stating this view in terms during our discussions with the US (who agreed). (At the same time, we would frequently argue, when the US raised the subject, that “regime change� was inadvisable, primarily on the grounds that Iraq would collapse into chaos.)

    Any assessment of threat has to include both capabilities and intent. Iraq’s capabilities in WMD were moot: many of the UN’s weapons inspectors (who, contrary to popular depiction, were impressive and professional) would tell me that they believed Iraq had no significant materiel. With the exception of some unaccounted-for Scud missiles, there was no intelligence evidence of significant holdings of CW, BW or nuclear material.

    The case for war was manufactured. It was all lies spun out of the Office of Special Plans (OSP) for Iraq in the US Defense Department. They lied about everything to make the case for an illegal war.

  28. smiths
    April 29th, 2008 at 14:55 | #28

    its so painful and sad to see these kind of discussions go round and round,
    the apologists always make untrue claims that someone diligent like damien then takes the time and effort to prove wrong,
    but whats the point?
    the provocateaurs move on to another false talking point and peddle different lies withe same themes,

    mahatir may be wrong on some things but has spoken more truths about the modern system than all the western leaders put together

  29. smiths
    April 29th, 2008 at 14:58 | #29

    and to anfrew #18,
    what do you think of israels nukes?

  30. gordon
    April 29th, 2008 at 15:02 | #30

    Andrew Reynolds says: ‘”Leaders” in the bucket of Mahathir, Suharto or Marcos have been a stain on Asia for far too long’.

    Of these three, Suharto must be the worst; the murders of up to half a million of his own people in the process of his “wading through blood to a throne” is a hard act to follow. Marcos’ 3,000-odd killed, 35,000-odd tortured and 70,000-odd imprisoned looks good by comparison. Mahathir’s human rights record is much the best of the three, having so far as I know only imprisoned some political opponents without trial, and not tortured very many of them.

    Compare these records, even Suharto’s, with the Lancet estimate of 650,000 excess Iraqi deaths 2003-2006. And what was the score in Vietnam? About 2 million, wasn’t it? And Australia is in there cheering it on.

    Pontificating about “a stain on Asia” and so on is getting harder and harder to justify, particularly given our complicity in the actions of our “great and powerful ally”. If Australia got out of Iraq and Afghanistan and condemned the illegality and brutality of the invasions of those countries, and then formally apologised to the Aboriginals who have been murdered and brutalised for 200 years, and then took steps to rectify the situation, then maybe…

  31. smiths
    April 29th, 2008 at 15:11 | #31

    In fact I’ll go a lot further than I have,

    Anyone that thinks that there were legitimate reasons for a war in iraq needs to take a cold shower and read some real history,

    Starting with general smedley butlers war is a racket
    “the flag follows the dollar and the soldiers follow the flag”

    The winners of the first world war were the bankers who backed both sides,
    Very soon after creating the private federal reserve bank,
    and the winners of the second world war were the same bankers,
    And some of the descendents of those bankers are winning the second gulf war right now,
    And while screwing the hypnotised masses with a socialised military government enabled by permanent propaganda,
    Theyre on the verge of finishing of those some masses and especially the so-called middle classes with a massive deflationary bang,
    The architects of these plans and theyre government and un enablers are absolutely war criminals,
    And in my opinion so are we, for the wilful ignorance we so readily show

    and mahatir knows all this better than most of our ‘leaders’ and poulations

  32. smiths
    April 29th, 2008 at 15:27 | #32

    yeah suharto was a real bad boy?

    Ex-agents say CIA compiled death lists for Indonesians

    For the first time, U.S. officials acknowledge that in 1965 they systematically compiled comprehensive lists of Communist operatives, from top echelons down to village cadres. As many as 5,000 names were furnished to the Indonesian army, and the Americans later checked off the names of those who had been killed or captured, according to the U.S. officials.

    http://www.namebase.org/kadane.html

    http://www.time.com/time/magazine/article/0,9171,834780,00.html?promoid=googlep

    Ford Country: Building an Elite for Indonesia

    But standing at their side and overseeing the great give-away was an extraordinary team of Indonesian economists, all of them educated in the United States as part of a twenty year strategy by the world’s most powerful private aid agency, the billion-dollar Ford Foundation

    http://www.cia-on-campus.org/internat/indo.html

    And heres the imfs indonesian enslavement plan for the record

    http://www.imf.org/external/np/loi/103197.htm#memo

  33. Lord Sir Alexander “Dolly” Downer
    April 29th, 2008 at 15:52 | #33

    Mahathir is a clown who regrets standing down from the PMship and misses the limelight. I heard him interviewed on the BBC the other day and he was even worse than usual.

    That quote by AR in (3) was actually a call to Muslims to do what (according the the Datuk) the Jews did: work hard, make lots of money and control the world that way. Seize the day, don’t be victims etc.

    Foreigner-bashing works well in any country. Just ask the Rodent who used to be our PM, who loved proclaiming that he wouldn’t be pushed around by those swarthy types in the UN. In a strange way, those two are/were similar.

  34. Damien
    April 29th, 2008 at 16:08 | #34

    There is a deep cultural problem at work here. Australians cannot face up to the lies that took them into Iraq and so will never be able to face their complicity in war crimes (at least in the short term). It’s something of a lost cause trying to redress the lies about WMDs while the same Bush administration is spouting new lies every day (Syrian nukes, Iran supporting insurgents in Iraq etc). The best that we can hope for is to insist on a Royal Commission on why and how we went into Iraq, the Intelligence briefings that lead us there and Howard’s lies to Parliament. We may not be able to fix up the world but we should be able to demand that our Parliament is not kept in the dark and fed total lies. It’s the best we can hope for.

  35. April 29th, 2008 at 16:24 | #35

    So, smiths, you believe it is all a banking conspiracy. Are you going to go as far as Mahathir and add “Jewish” on to the front of that – or will you simply agree with him without adding it in?
    In reality, though, banks generally find wars unprofitable. They slow the economy enormously and normally end up with the government finding further bad excuses for further silly intervention. The people who benefit from wars are (guess who) the ones who declare them – the politicians.

  36. rog
    April 29th, 2008 at 17:44 | #36

    The facts of the matter are that the world, as represented by the UN, has not been able to sustain any valid objection to the Iraq invasion.

    More damning is that the UN (and its agents) found that any submitted objection to the Iraq war was unsustainable.

    So the rest is just blowin in the wind

  37. Damien
    April 29th, 2008 at 18:22 | #37

    The facts of the matter are that the world, as represented by the UN, has not been able to sustain any valid objection to the Iraq invasion.

    What an insufferable load of bollocks!

    Let me paraphrase you…

    The facts of the matter are that the world, as represented by the UN, has not been able to sustain any valid objection to China invading Australia…..The Chinese Foreign Minister was dismissive of any concerns: “The million Australian insurgents who have died were known to be affiliated to jihadist Kiwis, but we are winning the war for freedom.”

    You’re a bit short on logic, law and decency aren’t you, Rog.

  38. jack strocchi
    April 29th, 2008 at 19:49 | #38

    Pr Q says:

    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.

    Still, his views on Iraq as a war crime are widely shared. Such charges would have enough factual and legal support to make the outcome unpredictable if they ever came before a tribunal.

    Iraq-attack was worse than a war crime, it was a mistake.

    There are reasonable grounds for arraigning Bush and US war-planners on war-crimes, for waging aggressive war without good cause. And for waging war without due consideration for civilian casualties and the rights of prisoners.

    In self-defence they can argue, with some justice, that they were bringing a war-criminal (Hussein) to justice. And changing a regime (Baathist) with a proven reputation for waging aggressive war. Also, they established a democratic govt in Iraq, the first I believe.

    The notion that Howard should be liable to war-crimes charges is common-or-garden variety Howard-hatred. Unfortunately, given Pr Q’s relentlessly partisan attitude towards the PM its about what youd expect these days. [This last to be read "more in sorrow than anger" tone.]

    TO repeat for the umpteenth time. ADF troops in Iraq are there for symbolic political reasons, to reinforce the US-AUS alliance and pay back for Timor. THey have no real military mission, having been mostly been engaged in own-force defence or civil reconstruction. Not exactly modern day Eichmanns.

    And in any case, where does the hunt for the real war-criminals stop? Rudd has largely me-tooed Howard on Iraq. Large numbers of ADF troops still remain in-country under Rudd’s authorisation, continuing the original war crime. He is an accessory after the fact, just as guilty as Howard.

    As are all the (33) other Coalition of the Willing political leaders. And, for that matter, the people who democraticly supported them in this criminal act of folly. I guess I am a war-criminal. Please stop me before I invade again.

    Of course most of the war-crimes in Iraq have been committed by Iraqis against each other, as they do. No surprises there, because its Iraq! I say arrest Iraq’s entire Alpha-male and wannabe Alpha-male class in the dock. Its about time that lot answered for its crimes.

  39. Persse
    April 29th, 2008 at 20:21 | #39

    Forget John Howard. His commitment to the Iraqi tragedy was not a result of anything other than of the most shallow and simplistic reaction.

    If he is at fault we all are. Do we as a nation have the capacity to examine how we came to find ourselves in the position of petty accomplice to a great humanitarian catastrophe and crimes against humanity?

    Despite the repellent memory of the clownish posturing by Howard as a ‘statesman’, following the making of the decision to support the Bush Presidency, in its misconceived and incompetently prosecuted misadventure, I personally think that is a broader failure of our culture and institutions.

    One thing that Mahathir and Howard have in common is an overriding ego and sense of self importance. With Mahathir at least being highly intelligent, and his own man for good or ill. Howard not being either.

    A legalistic infrastructure is dependent on the control of superior force. Which is why the police carry guns around and you don’t. Whatever the details of international law, without the monopoly of force to carry it out it is empty, which is why Presidents Noriega and Milosevic end up in prison and President Bush and sidekicks walk around free.

  40. April 29th, 2008 at 21:17 | #40

    Persse, I fully agree that the Iraq War represents “a broader failure of our culture and institutions”. But actually that is all the more reason NOT to “forget about Howard”.

    While it maybe hard for many Australians to admit they were duped, the experience of a full-blown Royal Commission into these lies, errors, and crimes will be both humbling and educational.

    With such a show of true democracy, we can at least demonstrate that the ideals which we claimed to pursue in Iraq and Afghanistan were not just completely empty rhetoric. We can show the victims of our aggression, and others who now see us as criminal US lackeys, that we are in fact a just and caring society.

    The alternative is that we remain a one-eyed, insular, xenophobic, and increasingly militant global backwater.

  41. Damien
    April 29th, 2008 at 21:50 | #41

    I’ve deleted a sentence to the effect that a previous comment was “drivel”. Show, don’t tell – JQ

    Whatever the details of international law, without the monopoly of force to carry it out it is empty.

    Every time you board a plane you are invoking international law. Every credit card transaction or phone call you make from overseas is built on international law. Global transport, maritime law, communications, satellites, fishing laws, national boundaries, diplomacy, refugees, the entire global economy of financial transactions and, yes, laws governing armed conflict are all international law, a massive legal framework that is used by every one of us every day. International law is not a series of motherhood statements to be cast aside by despots whenever they want to conduct some discretionary murder on foreign soil. International law is REAL as Japanese and German butchers found out only too well when they were shot or hanged at the end of WW2. A number of Japanese soldiers were sentenced to 15 year jail terms for water boarding prisoners, a torture technique Pres. Bush has approved for US terrorist detainees. Do you understand why these are offenses under international law? — because if you disregard the Hague and Geneva Conventions you reduce the world to naked barbarism. Most people, and countries, understand that.

    Moreover, International law is not as toothless as you think. Most developed countries have passed laws in relation to the Geneva Conventions that oblige them to bring war crimes charges against foreign leaders if their own countries refuse to prosecute. Why do you think Rumsfeld has to keep his visits to Europe secret? And Henry Kissinger? Do you remember Spain and Pinochet? These people can’t go anywhere. The laws are not “toothless”. The US is a signatory to the Geneva Conventions and under the US Constitution (Article VI) automatically become part of US domestic law. The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. Moreover, under US Codes, Title 18, § 2441 George Bush can be charged within the US for war crimes violations of US law:

    “(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall 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.”

    In the US Supreme Court case Hamdan v. Rumsfeld, the justices specifically declared that Bush had breeched war crimes provisions of the Geneva Convention in relation to the treatment of POWs. Bush then passed the Military Commissions Act 2006 — ostensibly to provide him with retrospective immunity (a law having no legal force since the Constitution forbids retrospective legislation of this kind). Bush may temporarily defer accountability for his war crimes but probably not forever.

    In regard to John Howard I could write at length to debunk your nonsense but here’s a summary:

    (1) We pay our PMs to keep us out of gratuitous wars, not drag us into them.
    (2) Neither the Parliament nor the Australian people bear any responsibility or fault for participating in the Iraq invasion when the PM was the only one with access to all the Intelligence and he chose to conceal from us that there was strong evidence for NO WMDs. At that point the PM was criminally abusing his political office and his legal entitlements. He LIED to Parliament. Don’t believe me? Then read the Rod Barton interview, the weapons inspector who told him in spades in Dec 2002 that there were NO WMDs in Iraq.
    (3) The evidence is that Howard’s choice to go to war was not casual and mistaken but knowing and deceptive.
    (4) Mohammed Mahathir has NOTHING to do with how we run our country, nor whether our PM tells lies to our Parliament, nor whether our nation went wrongly into an illegal foreign conflict.

    If you feel that when you elect a PM then he can do as he pleases then you’re wrong and you have a lousy sense of what constitutes good government in a democracy. John Howard committed war crimes. That’s the evidence. If you can’t face that, that’s ok. But don’t tell us that our Parliament and people are not fully entitled to know why and how we want to war. Such assertions are legal and moral bunkum.

  42. Damien
    April 29th, 2008 at 22:04 | #42

    Persse, you are wrong on a number of important issues.

    Whatever the details of international law, without the monopoly of force to carry it out it is empty.

    Every time you board a plane you are invoking international law. Every credit card transaction or phone call you make from overseas is built on international law. Global transport, maritime law, communications, satellites, fishing laws, national boundaries, diplomacy, refugees, the entire global economy of financial transactions and, yes, laws governing armed conflict are all international law, a massive legal framework that is used by every one of us every day. International law is not a series of motherhood statements to be cast aside by despots whenever they want to conduct some discretionary murder on foreign soil. International law is REAL as Japanese and German butchers found out only too well when they were shot or hanged at the end of WW2. A number of Japanese soldiers were sentenced to 15 year jail terms for water boarding prisoners, a torture technique Pres. Bush has approved for US terrorist detainees. Do you understand why these are offenses under international law? — because if you disregard the Hague and Geneva Conventions you reduce the world to naked barbarism. Most people, and countries, agree with that.

    Moreover, International law is not as toothless as you think. Most developed countries have passed laws in relation to the Geneva Conventions that oblige them to bring war crimes charges against foreign leaders if their own countries refuse to prosecute. Why do you think Rumsfeld has to keep his visits to Europe secret? And Henry Kissinger? Do you remember Spain and Pinochet? These people can’t go anywhere. The laws are not “toothless”. The US is a signatory to the Geneva Conventions and under the US Constitution (Article VI) automatically become part of US domestic law. The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. Moreover, under US Codes, Title 18, § 2441 George Bush can be charged within the US for war crimes violations of US law:

    “(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall 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.”

    In the US Supreme Court case Hamdan v. Rumsfeld, the justices specifically declared that Bush had breeched war crimes provisions of the Geneva Convention in relation to the treatment of POWs. Bush then passed the Military Commissions Act 2006 — ostensibly to provide him with retrospective immunity (a law having no legal force since the Constitution forbids retrospective legislation of this kind). Bush may temporarily defer accountability for his war crimes but probably not forever.

    In regard to John Howard I could write at length to disagree with you but here’s a summary:

    (1) We pay our PMs to keep us out of gratuitous wars, not drag us into them.
    (2) Neither the Parliament nor the Australian people bear any responsibility or fault for participating in the Iraq invasion when the PM was the only one with access to all the Intelligence and he chose to conceal from us that there was strong evidence for NO WMDs. At that point the PM was criminally abusing his political office and his legal entitlements. He LIED to Parliament. Don’t believe me? Then read the Rod Barton interview, the weapons inspector who told him in spades in Dec 2002 that there were NO WMDs in Iraq.
    (3) The evidence is that Howard’s choice to go to war was not casual and mistaken but knowing and deceptive.
    (4) Mohammed Mahathir has NOTHING to do with how we run our country, nor whether our PM tells lies to our Parliament, nor whether our nation went wrongly into an illegal foreign conflict.

    If you feel that when you elect a PM then he can do as he pleases then you’re wrong. John Howard committed war crimes. That’s the evidence. If you can’t face that, that’s ok. But our Parliament and people are fully entitled to know why and how we went to war.

  43. smiths
    April 29th, 2008 at 23:24 | #43

    andrew reynolds, pull your head in,

    i didnt mention jewish people and i find it offensive that you presume to read something into my comments that isnt there,
    you focus on distractions and miss the main points, and your comments about bankers finding wars unprofitable are ridiculous,

    for some good reading on this i suggest john t flynns account of twelve rich bastards from the renaissance up to the first world war

    politicians my bbum, who funded hitlers rise, who provided the money to ig farben to build those mega industrial plants,

    politicians are more often than not bit players on the edge of a much bigger stakes game

    american bankers even funded lenin for gods sake

    http://www.mises.org/books/menofwealth.pdf

  44. April 30th, 2008 at 00:45 | #44

    smiths,
    “bankers” has, from time immemorial been shorthand for “jewish bankers” when discussing conspiracies – and as Mahathir is obviously doing here. It is the presumption that bankers (or or any business people, for that matter) would willingly send anyone to their deaths in war is the silly part. Wars are bad for business all round. If you want some perspective on this look at the stock and bond markets during wars. They do not, as a rule, go up – the recent Iraq war being a notable exception, but that was hardly due to what is a relatively small war – the human cost aside.
    I have read a lot of the books that try to find conspiracies, smiths, and they all fail to make any sort of case and each one is mistaken in their own way. Normally, though, it comes down to a blind failure to leave their own prejudices behind. Politicians, smiths, in the dictatorships that normally start wars, can hardly be regarded as “bit players”.
    Leaving aside the breach of Godwin’s Law – I would think the people who supported the National Socialist Party were not those who thought that they would be taken to war, but those terrified of the Communists and thought that National Socialism was better than the International type. They still had everything stolen, as did most others, but got heavily bombed afterwards.

  45. April 30th, 2008 at 06:57 | #45

    Getting back to Prof Q’s original question, it’s interesting that no professional legal types have provided any opinion (yet). I would suggest there are two reasons for this:

    1. Even talking about war crimes, particularly in a Zionist-crusade-war-for-oil context, is bad for your reputation, and

    2. International law is so malleable, particularly in the hands of the Big powers on the UNSC, that anything is possible.

    OTOH my reading from my own links above is that neither the Hague nor the ICC is realistically going to try Bush, Blair or Howard for War Crimes. It is possible that they could be arrested and tried at some future date if they set foot in the wrong country, but again not likely.

    The only way this would change is if there were major changes on the international political landscape over the next 10 years, something not altogether unlikely given the existing catalysts.

    So for now, I reiterate: it is up to us, fellow Australian citizens, to show our commitment to justice. At the least, we should ensure that our country’s reputation is not forever sullied by the apathetic complicity of our generation.

    Again, I call on fellow bloggers to help bring this important issue into mainstream debate. The media and politicians will not do it on their own.

  46. Socrates
    April 30th, 2008 at 08:30 | #46

    I am not a lawyer but even under US law I would think there are some cases worth pursuing. Not least would be that of General Sanchez and those in charge of the Abu Ghraib prison. They argued that low ranking soldiers there were acting without authority in torturing prisoners. Yet that is not an excuse under US military law. In a famous post WWII case that gave rise to teh “Yamashita principle”, Japanese General Yamashita was executed for the attrocities committed in Manilla by Japanese troops in 1945, even though he argued that he was unable to control them. The US Supreme Court ruled to the effect that it was his job to control them. It would be interesting to apply that principle to the current US civilian and military administration, in the hands of a non-republican prosecutor.

  47. rog
    April 30th, 2008 at 08:35 | #47

    To mount a successful legal action you must prove that the act committed was a breach of law (ie crime) and that the act was malicious in intent (ie not in self defence.)

    Whilst there has been much opinion voiced evidence is what is required.

    Regarding Iraq the ICC received “numerous submissions which took the view that a crime of aggression took place in the context of the war in Iraq.”

    The ICC stated that “The Court cannot proceed with respect to aggression until the crime is defined and the conditions for the exercise of jurisdiction set out.”

    Furthermore they noted that all submissions lacked detailed information.

  48. Andrew
    April 30th, 2008 at 09:28 | #48

    Gandhi,

    Your comment here says it all “my reading from my own links above is that neither the Hague nor the ICC is realistically going to try Bush, Blair or Howard for War Crimes”

    Is it time to move onto a new ’cause’ that you have a hope of ‘winning’?

    I think I made this comment on a different thread – but doing things like calling for Howard to be tried as a war criminal just detracts from anything else worthwhile you may be saying and causes mainstreamers (which I class myself as) to dismiss you as someone who carries on like a 23yr old student activist.

  49. April 30th, 2008 at 10:34 | #49

    Thanks for the, um… friendly advice, Andrew. Like I said earlier, “Even talking about war crimes, particularly in a Zionist-crusade-war-for-oil context, is bad for your reputation”.

    Luckily, I don’t have a reputation worth bothering about so I can say whatever I damn well please, thank you very much.

    And I will continue to do so, as loudly as I can, until someone locks me away in a padded room.

    Can we get back on topic now?

  50. smiths
    April 30th, 2008 at 12:13 | #50

    “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality – judiciously, as you will – we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.” Bush Advisor to Ron Suskind.
    and so it goes…
    we have a sematic discussion about an impossible evnt like prosecution of western leaders,
    meanwhile, new fabrications and lies lead to the next door to get kicked down,
    who believes, for the record, that syria had a nuclear reactor that israel bombed,
    who believes that syria killed rafik hariri,
    who believes syria is in league with iran?

    and if america attacks them and it is revealed to be lies all over again, what then? a mistake again,

    wake up

  51. Father Mercy
    April 30th, 2008 at 12:47 | #51

    The idea of pursuing members of the coalition of the willing for war crimes would only make a mockery of any international tribunal. A few posters here have mentioned that other nasties have a case to answer and if the world was committed to prosecuting evil doers the anteroom of the international tribunal would be ‘standing room’ only. The self-appointed human rights tourists only become alacritous when the West and its major players are mentioned. Consider the plight of the Uyghurs who have seen their region turned into a charnel house thanks to the overlordship of the Chinese. I’m sure there is a file on it somewhere in the UN but it only gets dusted off occasionally. Are there any accounts of actors and human rights tourists in lockstep with Sheik Hilali marching down George Street, Sydney demanding freedom and the gift of human rights to all Cuban dissidents? That could mean the unpalatable – to some – prosecution of Fidel.

    The UN’s name is often mentioned as the appropriate forum to debate the issue of war crimes but consider the manoeuvring done to fit terrorists under the aegis of the Geneva Conventions covering POWs. Soldiers are required to wear uniforms and have a chain of command. The only commander that some of the terrorists have was born and died in the 7th century. We could be forgiven for thinking the Indian Cricket Control Board is making the decisions.

    Let’s all pray that members of the legal club don’t bring their hubristic opinions to the debate. This month the chocolate wheel of justice delivered another abstruse decision involving the stabbing death of a family man. The judge ruled that the victim could have fallen on the knife. Why didn’t the judge complete the comedy and find that the victim stabbed himself to death? Under those rules GW Bush would have to have been photographed wearing a soldier’s uniform and firing randomly while strolling down Main Street, Baghdad. Twelve reliable eye witnesses would be handy; otherwise forget about it. Can we leave the legal club to enjoy its playpen?

    What we need is a forum that has the respect and confidence of all people and is backed up by a system that will pursue and prosecute ALL people or governments guilty of war crimes and the denial of basic human rights.

  52. jack strocchi
    April 30th, 2008 at 13:59 | #52

    Andrew Says: April 30th, 2008 at 9:28 am

    doing things like calling for Howard to be tried as a war criminal just detracts from anything else worthwhile you may be saying and causes mainstreamers (which I class myself as) to dismiss you as someone who carries on like a 23yr old student activist.

    Exactly. THe AUS Left has reverted to its post-seventies silliness ever since it smelt Howard’s blood in the water. No doubt worked into a frenzy under the influence of Bush’s toxic policies.

    COndemning Howard/ADF as war criminals is all about rewriting history to give ones political enemies black hats. It gives the Left another opportunity to pat themselves on the back for being such fine fellows.

    It does no practical good at all. But it does turn the international military judicial process into a farce.

    The ADF is not in the business of military conquest (“war for oil”), bombing civilian areas or torturing prisoners.

    ANd Howard was a crucial leader in the military actions that liberated Timor, FFS. Ask Horta if that is the act of a “war-criminal”.

    These inconvenient facts do not fit the Left’s Howard-hating script so it must be flushed down a memory hole.

    The ADF went to Iraq as a token force to provide international legitimacy to the US-led “coalition”. Virtually no military operational combat role. A political fig-leaf that we owed the US on account of their help to us in Timor.

    Its called “the favour bank”.

    This kind of deal does not register on the AUS Left’s radar screen. It is primarily interested in moral grandstanding (Sorry Day, Earth Hour, 2020 Gabfest) to improve its own status. Improving the status of others less fortunate is a secondary, purely instrumental, concern.

  53. jack strocchi
    April 30th, 2008 at 14:23 | #53

    Pr Q’s questions merit an answer, political not legal though. Most international jurists are just grand-standers who cant/wont get a real job in the private sector or get tough on crime at home.

    Pr Q says:

    1. Where if at all, might charges be brought against Bush and others?

    All coalition leaders are prima facie chargeable for waging unauthorised, unlawful, aggressive war against Iraq. Guilty as sin.

    Pr Q says:

    2. How would the hearing of these charges be prevented?

    By the accused threatening to “flood the zone” and counter-indicting their political legatees and associates. ANd by the US threatening to pick up its ball and go home.

    The US-led war in Iraq has implicated about half the political leadership class of the OECD. I dont see much chance in an international jurist putting half the world’s political Alpha-males in the dock as war-criminals.

    If the RoW picked on Bush alone the GOP would mobilise to withdraw from the international system. I dont think that global security managers would relish that prospect.

    The failure of the war has greatly enhanced the reputation of the UN, whilst damaging the war-party in the US (Which explains why an otherwise undistinguished cadidate such as Obama has made such headway amongst the peace-party congregation.)

    Bringing war-crimes indictments against Howard and Blair trivialises the notion of war-crime. Most proponents of the war honestly felt that they were doing some good. ANyone equipped with a moral sense can see this is quite distinct from common or garden war criminals like Milosevic or super war criminals like Hitler.

    The fact is that everyone recognises Iraq-attack as a bloody mess and an awful shame. I dont see much to be gained by turning it into a war-crime.

  54. April 30th, 2008 at 15:22 | #54

    Jack,
    I would take issue with this:

    All coalition leaders are prima facie chargeable for waging unauthorised, unlawful, aggressive war against Iraq. Guilty as sin.

    While I would agree that there is a prima facie case (as in the first sentence) as there was no explicit UNSC authorisation, there is no more than that at the moment. It depends (in my understanding) on the operation of the Vienna Conventions and on what, exactly, particular people knew or believed at the time. This is a matter of fact that would need to be tried before a jury – so the second part – “Guilty as sin” – is yet to be proven and, in all likelihood, will never be tried and therefore never tested and therefore never proven.

  55. smiths
    April 30th, 2008 at 15:29 | #55

    COndemning Howard/ADF as war criminals is all about rewriting history to give ones political enemies black hats.

    howard lied his country into a coalition, that attacked another country without provocation that resulted in the deaths of over a million civilians

    if this is not a war crime,

    then there has never anywhere been a war criminal

    if rudd who i voted for had done it i would say exactly the same,
    the pettiness of some of the ‘mainstream’ minds here is saddening and astounding

    if your point of view hasnt been handed to you from ‘officially sanctioned sources’ then it is mocked as akin to a 23 year old student activist, truly pathetic

    sounds like a 23 storey a***hole to me

  56. Lord Sir Alexander “Dolly” Downer
    April 30th, 2008 at 15:52 | #56

    Lord Strocchi’s gratuous put-down of Barack Obama (53) was unwarranted. His implication is that normally the people who emerge from these primaries, or gain contention, are of a high quality.

    This is patently not the case.

  57. Alison Alloway
    April 30th, 2008 at 21:48 | #57

    Well may we debate whether the invasion and occupation of Iraq is a war crime, however worse is still to come. The Bush administration seem hellbent on nuking Iran or Syria.

  58. May 1st, 2008 at 10:37 | #58

    For anyone interested, this post by Prof Q was also cross-posted at Crooked Timber (where the discussion was at least initially slightly less acrimonious, but eventually degeneratated in the usual fashion: at least there were some excellent links along the way).

    A question for Prof Q, if I might – have your original questions been “answered” to your satisfaction?

  59. May 1st, 2008 at 10:39 | #59

    And if so, any conclusions worth noting?

    The reason I ask is that any people seem to agree that the invasion was illegal, but quickly conclude that nothing can ever be done about that. This seems IMHO a rather unhealthy state of affairs.

  60. May 1st, 2008 at 10:40 | #60

    grrr “any” people = “many”

  61. gordon
    May 1st, 2008 at 11:20 | #61

    Jack Strocchi: “ANd Howard was a crucial leader in the military actions that liberated Timor…”

    As far as I remember, it was only public opinion which forced Howard to send troops to E.Timor. Left to himself he would probably have done nothing.

  62. Damien
    May 1st, 2008 at 11:24 | #62

    Sincere apologies for the double post at #41 and #42. #41 had not appeared and I figured it had been banned for containing some regrettable personal asides. I reposted (#42) as a civil version and both have appeared. Apologies to all.

  63. jquiggin
    May 1st, 2008 at 16:17 | #63

    Thanks for this, Damien. I won’t worry about deleting the duplicate at this point.

    I’ve been guilty of some sharp asides myself, but as I have come to realise it’s better to show that an argument is wrong than to say so loudly.

    Gandhi, I have to say I hoped for a bit more information on the actual questions than I got, though as always I’ve learned a bit from the discussion. I agree with your conclusion at #59, which I suppose was my starting point.

  64. jack strocchi
    May 1st, 2008 at 17:50 | #64

    gordon Says: May 1st, 2008 at 11:20 am

    As far as I remember, it was only public opinion which forced Howard to send troops to E.Timor. Left to himself he would probably have done nothing.

    Democratic politician pays attention to democratic populus. I am shocked, shocked! THats how the system is supposed to work.

    Howard got the job done. Thats what counts.

    He quarantined defence expenditure immediately he took power in 1996, after a decade of neglect and Jakarta-lobbying led by the likes of Woolcott and Evans.

    I dont imagine that push will be stepping forward to be accountable for their complicity in the TNI’s “war-crimes”.

  65. rog
    May 1st, 2008 at 19:17 | #65

    From memory it was Laurie “Dangerman” Brereton who pushed for Timorese separation, against most if not all the ALP incl Whitlam and Evans

    Howard saw the opportunity and took it, with the support of the UN and the US

  66. May 1st, 2008 at 19:36 | #66

    gandhi,
    As I said earlier, whether the invasion was illegal or not is not a question that can be answered definitively unless and until the questions of fact are tried in a court of law. The law on the matter is fairly clear (IMHO). How the law is applied in this case is a matter for a court of competent jurisdiction – but I would agree that it is unlikely ever to see the inside of one.
    Personally, I would agree that this is a pity as I would say that it is an interesting legal argument and would set an important precedent.
    However, one principle at the base of our legal system must remain – innocent until proven guilty. For political reasons you may believe that Bush, Blair and the rest of the CoW are the worst of the worst, but as soon as you say that they are guilty you are throwing out the very legal system you want to see them tried under.
    You cannot have it both ways.

  67. gerard
    May 1st, 2008 at 20:01 | #67

    Andrew that’s nonsense. if I rob a bank, do we have to wait until it goes to trial to see if it is illegal or not? I may not be convicted yet, but everyone knows I committed an illegal act. We don’t need a court to tell us that. The Iraq War was black-and-white, straightforward, unequivocally illegal – no possible trial based on the known facts could prove otherwise. Of course superpowers do not submit their own actions to any international law, anarchy is law in international politics.

  68. rog
    May 1st, 2008 at 22:22 | #68

    Gerard, you are advocating replacing due process with a summary justice.

  69. Ian Gould
    May 1st, 2008 at 22:39 | #69

    “Why should Malaysia or Malaysians be less corrupt, cronyistic or unjust than the rest of us?”

    Paul Keating (overtly and ultimately successfully) and Peter Costello (more discreetly and ultimately unsuccessfully) campaigned for the Prime Ministership of Australia.

    Neither of them was jailed on trumped up charges after being beaten by police so badly that they were crippled for life.

    Anwar Ibrahim was less fortunate.

  70. Ian Gould
    May 1st, 2008 at 22:41 | #70

    “If the UN had got its act together in the 1990s to keep Hussein accountable then we wouldn’t have got in this mess in the first place”

    Yes if only the UN had stopped Saddam from developing WMDs and rebuilding his conventional forces.

  71. Ian Gould
    May 1st, 2008 at 22:45 | #71

    “The UN was kicked out in 1998 and at that stage Iraq still had WMD.”

    No, 1998 the Iraqis were unable to provide definitive proof they DIDN’T have WMDs.

    Which might have had something to do with Iraqi Kurdistan not being under their control; the bombing of numerous army facilities and government buildings during the Gulf War and the widespread looting and arson of government offices during the Shia uprising.

    Basically, the US spent the late 1990′s inventing claims Iraq still had WMDs in order to justify the continuation of sanctions.

  72. Damien
    May 1st, 2008 at 23:14 | #72

    No Rog, Gerard is not suggesting summary justice. He is merely noting that there is sufficient evidence available to warrant the laying of charges under existing laws. Police do this all the time on the assumption that the evidence points to a breech of law. It remains for a court to receive that evidence and test it. When Andrew says ..

    As I said earlier, whether the invasion was illegal or not is not a question that can be answered definitively unless and until the questions of fact are tried in a court of law

    …he confounds these two processes. Police can arrest someone on probable cause and the public can notify the police of the apparent commission of an offense. They do so in the belief that the culprit is likely guilty. The Australian public can read the Hague and Geneva Conventions, note the wording of the UN resolutions, observe the invasion itself (and the prima facie evidence of war crimes offenses within Iraq) and put their concerns before the authorities. Entirely legal and appropriate.

    One of the disturbing aspects of those who would defend the Iraq invasion is that they set the standard of proof too high before accepting that war crimes have occurred. If one waits until the leaders give signed confessions we will wait forever. Nor is it reasonable to simply declare leadership decisions as “just politics” (and hence a valid exercise of ministerial discretion). If this principle is extended too far Ministers can never be considered as commiting offences. We would not accept that John Howard could drive at high speed past a school and run down a child. We would put him before the courts and sack him from office for clear breeches of established Australian law. How more compelling is it that he should not be permitted to involve Australia in an illegal war that lead to the death of a million Iraqis. That set of circumstances demands the highest level of scrutiny. Unless, of course, we think a million dead brown foreigners rate less than the death of one Aussie school kid?

    We have the laws and we have the prima facie evidence. Now we need an official inquiry to determine more closely if criminal charges are warranted. The dead brown people deserve it.

  73. rog
    May 2nd, 2008 at 07:35 | #73

    Damien, you are misrepresenting what Gerard said;

    “We don’t need a court to tell us that”

  74. Damien
    May 2nd, 2008 at 09:24 | #74

    Not true. Gerard is making the fair point that when people see evidence substantially pointing to the commission of a war crime they are entitled to express that view and act upon it in a political context. Gerard discounts the necessity of court proceedings before forming and holding public views about a political leader. In this he is entirely correct. Gerard does not explicitly say it, but he does not discount that as far as individual accountability before the law is concerned people are entitled to have criminal charges properly assessed. This is implied in his statement:

    Of course superpowers do not submit their own actions to any international law.

    You have ignored the distinction I made earlier. If it walks and sqwarks like a duck (or a war crime) the public is entitled to believe it is. They have no legal or moral basis to wait upon court verdicts in individual trials. You would not be able to sustain your political blindness if Howard had run down an Aussie kid in the street. You can only do so because strangers are dying far away. That’s not good enough.

  75. May 2nd, 2008 at 10:25 | #75

    I would think that if this thread has proved anything, it has shown that the burden of proof is on those who would argue that the invasion of Iraq was NOT illegal under international law.

    The question of what can or will be done about that is another issue, and seems entirely dependent upon public outrage (or the distinct lack of it) at this stage.

    I imagine that when our “combat troops” come home there might be some further media discussion on this topic, which might present an opportunity to press the argument for a Royal Commission. I would urge concerned citizens to write to their local papers etc at that time.

  76. gordon
    May 2nd, 2008 at 10:38 | #76

    Ian Gould (#69):“Neither of them [Keating and Costello} was jailed on trumped up charges after being beaten by police so badly that they were crippled for life”.

    No, but Pauline Hanson was gaoled, in 1998, after a campaign organised by Tony Abbott around the technicalities of One Nation’s registration as a political party put her inside for several weeks after being sentenced to three years. She got out after the Qld. Appeals Court threw out the conviction.

    No, she wasn’t beaten as far as I remember and yes, enough of the legal system still functioned to get her out. But that was a “trumped up charge” and a political conspiracy. And don’t forget Haneef.

    We aren’t so perfect that we can patronise the Malaysians. One of the causes of a lot of the anti-Mahathir rage is that he frequently and publicly reminds us of this unfortunate state of affairs.

  77. May 2nd, 2008 at 10:55 | #77

    Nonsence, gandhi. The burden always is where it should be, on those making the accusation that certain conduct was illegal. Anything else is to adopt the position that someone can be guilty until proven innocent – which is effectively what you are saying.
    If you want to abandon the presumption of innocence then you are free to campaign for that, but you can expect me to oppose you on that.

  78. smiths
    May 2nd, 2008 at 11:15 | #78

    i submit exhibit 1 – downing street memo

    C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy.

    policy first, facts fixed second, invasion third

    WAR CRIME

  79. smiths
    May 2nd, 2008 at 11:19 | #79

    actually, i am as usual, going about this all wrong,

    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

  80. May 2nd, 2008 at 11:27 | #80

    Andrew Reynolds,

    Nonsence [sic], gandhi. The burden always is where it should be, on those making the accusation that certain conduct was illegal.

    I submit that sufficient evidence has been put forward on this thread and at Crooked Timber, particularly in these links, to conclusively prove the invasion was illegal.

    I still have not heard one single credible argument that the war was NOT illegal. Hence my comment.

    If you want to put the case that the invasion was legal, please do go ahead. Seriously! I am intrigued how anyone can still believe this, and on what logical, legal basis.

  81. jquiggin
    May 2nd, 2008 at 11:33 | #81

    AR, I wonder if you apply this consistently. For example, Saddam Hussein was never convicted of war crimes (he was executed for reprisals against domestic opponents). Do you assert that he was therefore innocent of such crimes, or that he is entitled to a presumption of innocence in general discussion of the topic?

    I’m sure you can think of even worse war criminals who were never tried or convicted.

  82. May 2nd, 2008 at 11:35 | #82

    smiths,
    I would suggest a quick read on legal procedure. You can’t convict on the basis of a memo, untested by examination. You also cannot reverse the burden of proof (not without throwing out our legal system).
    You have, however, identified one of the key issues – whether there was legitimate cause to believe that there was an imminent threat. The Vienna Conventions in international law are clear on this.
    Note, however, this is not whether that threat actually existed, but whether there were grounds to believe it existed.
    Possible counter-arguments may be Saddam’s conduct in frustrating (or not) the weapons inspectors, any evidence that he was assisting terrorist organisations, any genocidal activities he may have been carrying out or anything else capable of being introduced into a court as evidence.
    Please note that I am not, in this comment, saying any of this is fact. Any of it could be wrong, just as the “Downing Street Memo” could be simply in error, or the impresions of a meeting as recorded by one participant. Again, it would all need to be tested and weighed before a court.
    That is what we have a legal system for – or do you want to simply have a lynch mob?

  83. Damien
    May 2nd, 2008 at 11:39 | #83

    Neither Res.687, 660 nor 1441 provided the legal basis for the Iraq invasion.(see here)

    Since there was no immediate threat of military attack by Saddam Hussein against the US, Australia or anybody else, what then is the legal justification for the invasion?

    C’mon you guys, it was your war.

  84. May 2nd, 2008 at 11:52 | #84

    Absolutely, PrQ. Everyone is entitled to a general presumption of innocence before the law. None of Mao, Stalin, Hitler or Pol Pot were ever convicted of any crimes. Ceaucescu was summarily executed. Saddam was convicted, but in a court that probably did not meet the standards we would expect necessary to reach a fair verdict. I said this at the time and I maintain that this is the case.
    Once someone is dead, however, it then becomes a matter for historians to sort out – not the legal system. In the case of all the men mentioned above, the judgment of history is that they were guilty of many crimes (and, to the extent that you can compare them, in the given order). If somehow they could be revived and put before a court, this could never be sufficient though. A presumption of innocence must apply and the burden of proof would be on the prosecution.
    .
    Thus, if you say “I believe that Bush, Blair, Howard and the other leaders of the CoW will be judged by history to have been war criminals” then you may be right – and an argument can be put together for that. If you say that they are “definately war criminals” then you have no basis for that statement and you are wrong, until such a time as they are put before a court.
    A clear distinction needs to be drawn between a legal and an historical judgement.
    As an historical judgement, I believe Mao to have been the worst mass-murderer in history. However I believe that, if he were still alive, he should go before a court and be entitled to a presumption of innocence.

  85. May 2nd, 2008 at 11:52 | #85

    AR #82

    Again, it would all need to be tested and weighed before a court.
    That is what we have a legal system for – or do you want to simply have a lynch mob?

    EXCELLENT! So now do you agree that we need a Royal Commission to sort this out???

  86. May 2nd, 2008 at 11:57 | #86

    damien,
    Your first sentence your opinion and, incidentally, the opinion of many repected legal minds. The second statement is your opinion, supported by information to have come out since the invasion. Neither of them have gone before a court to be tested. That is all I am saying.
    There are arguments to say that both opinions are wrong – but those are long arguments and I have no time to do them justice in a blog comment. Note, however, I am not saying those are correct either.

  87. May 2nd, 2008 at 11:58 | #87

    A Royal Commission is not a court, gandhi. It is an investigatory process sanctioned by a Royal Warrant and cannot convict anyone of anything.

  88. May 2nd, 2008 at 12:05 | #88

    Well, fine. I am more than happy to see this case heard in any court outside Washington.

    Of course, most court cases involve some initial case preparation, if not a full police investigation, which is why I believe a Royal Commission would be a good first step. But if you wanna skip that because it could be too embarrassing, fine…

    You still haven’t explained what Howard’s defence would be. Temporary insanity?

  89. smiths
    May 2nd, 2008 at 12:14 | #89

    actually andrew i suggest you do a thorough read on international law

    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�(1). the tribunal’s charter placed “planning, preparation, initiation or waging of a war of aggression�(2) at the top of the list of war crimes.

    1. Marjorie Cohn, professor at Thomas Jefferson School of Law, 9th November 2004. Aggressive War: Supreme International Crime. http://www.truthout.org/docs_04/110904A.shtml

    2. The Avalon Project at Yale Law School. Nuremberg Trial Proceedings. Vol. 1:
    Charter of the International Military Tribunal.
    http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm#art6

    of course one of the best witnesses in any proceedings would have been the english man that knew most about iraqi biological and chemical weapons, and who knew what and when inside the coalition,
    unfortunately he went for a walk in the woods and never came back,
    slashed his wrist and bled to death, but get this, there wasnt any blood, astounding

  90. May 2nd, 2008 at 12:17 | #90

    gandhi,
    Not embarrasing to me at all. While I supported the invasion at the time, this was on the basis of what I knew or understood at the time. If that was wrong then I personally have no grounds for embarrasment.
    The crucial element in all this is what they (B, B, H and the others) knew at the time. If a prima facie case can be put together that they knew there was no immanent threat then they should be subject to a full investigatory process and the prosecuting authorities should then weigh the result and, if thought strong enough, it should be put before a court.
    While I used to work in criminal prosecution, I am not a lawyer, much less an internationl criminal lawyer, so the exact process is not within my field of expertise. An Australian Royal Commission, though, would have no powers outside the Commonwealth, so it is unlikely to have the powers needed to get hold of the documents and witnesses that I would think needed to investigate this properly.

  91. May 2nd, 2008 at 12:28 | #91

    AR

    I meant that a Royal Commission might be too embarrassing to John Howard, not you. I am sure there are plenty of locked drawers at DFAT, ONA, ASIO and elsewhere with information that some people would rather never comes to light.

    Have you forgotten that millions of people around the world marched against the war (the greatest popular demonstration en masse in world history)? If you don’t think that the information posted already in this thread represents a compelling prima facie case, then there is probably no point arguing any further with you.

  92. May 2nd, 2008 at 12:33 | #92

    gandhi,
    And if you make statements like “…conclusively prove the invasion was illegal…” then you are throwing out our legal system and you believe there is no need even for a trial. Little grounds for argument there.

  93. smiths
    May 2nd, 2008 at 12:37 | #93

    Andrew, here is some law, now tell me which part is wrong or what further reading you recommend to set me straight

    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�(1). the tribunal’s charter placed “planning, preparation, initiation or waging of a war of aggression�(2) at the top of the list of war crimes.

    1. Marjorie Cohn, professor at Thomas Jefferson School of Law, 9th November 2004. Aggressive War: Supreme International Crime. http://www.truthout.org/docs_04/110904A.shtml

    2. The Avalon Project at Yale Law School. Nuremberg Trial Proceedings. Vol. 1:
    Charter of the International Military Tribunal.
    http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm#art6

    inititation of a war of aggression at the top of the list of war crimes,

    what part of this is not clear

  94. May 2nd, 2008 at 12:50 | #94

    You are clutching at straws, Andrew, and (I presume deliberately) playing petty linguistic games. You might want to consider your true motives for this.

    IMHO the invasion was illegal, and IMHO that has been conclusively proved. OTOH if you believe that this has not been conclusively proved, and that the invasion should therefore be considered legal, please explain the basis for this belief. Do you still cling to UN Resolution 1441, or some other rationale?

    If you are unable to put forward any argument for the legality of the war, then we can at least agree that a full investigation is warranted. IMHO the only way that will ever be achieved is a Royal Commission.

  95. Damien
    May 2nd, 2008 at 12:52 | #95

    According to your logic, Andrew (#82), police would not be able to obtain a search warrant for someone found at 2.00am on business premises with a pinch bar and a face mask. They would have to wait until he was found guilty at a trial. What sort of logic is that? What’s wrong with conducting a broad ranging judicial inquiry into how and why we went into Iraq? Or don’t you accept that Australians are entitled to have answers to those questions?

    You can’t convict on the basis of a memo, untested by examination. You also cannot reverse the burden of proof.

    Who’s reversing the proof on anything? If a leaked memo from a senior officer of the NSW auditor general’s department pointed to massive kickbacks and bribes within government circles people would be entitled to accept that as prima facie evidence of corruption warranting further investigation. Of course, convictions would require trials. But why should people suspend their initial judgment in the meantime?

    And what’s wrong with the Downing Street memo other than the fact that it debunks the lies for invading Iraq?

    If a prima facie case can be put together that they knew there was no immanent threat then they should be subject to a full investigatory process.

    That’s an “imminent” threat, Andrew, but I would not disagree with “immanent” either. Either way, you don’t get to invade unless people can “prove” that Saddam does not pose a threat. And the prima facie evidence of Bush deception is available — at the level sufficient to deserve the issuing of an indictment or arrest warrant.

    Elizabeth de la Vega is a former US federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney’s Office for the Northern District of California. Ms Vega has compiled a one count indictment document (“Conspiracy to Defraud the United States in violation of Title 18, United States Code, Section 371″) against the Bush administration outlining — at the level normally sufficient to bring criminal charges — false statements provided by them in regard to Iraq’s alleged WMDs. The evidence presented by Ms de la Vega is of a systematic program of fraud carried out against the American people and the world at large with respect to WMDs. The only thing standing in the way of criminal charges is political factors.

  96. May 2nd, 2008 at 13:28 | #96

    Since neither AR nor anybody who supports the war has bothered trying to posit a legal argument in Howard’s defense, I will have a go…

    IMHO the only possible legal argument that Howard, Downer, Hill et al could use in a criminal trial would be that they were duped by intelligence provided by the US and British governments. But even this is not so much a defense as a mitigating argument: “My clients plead guilty, but with diminished responsibility, your honour.”

    And of course, this would not explain why they deliberately suppressed information from people like Andrew Wilkie.

    What we really need to know is what was discussed at the top level during meetings with US and British political leaders, intelligence officers and military analysts. Our national press should be submitting FOI requests for all such correspondence, and asking the Rudd government to explain why any of it might still be considered too secret to reveal.

    I suspect our own versions of the Downing Street Memos are still waiting to be discovered. A Royal Commission would of course compel all such documents as evidence.

  97. May 2nd, 2008 at 13:48 | #97

    Damien,
    Please re-read and try to understand. I will make it even simpler for you.
    1. I have not said there is no crime here.
    2. I have not said there should not be an investigation.
    3. I have said everyone is (IMHO) entitled to a presumption of innocence.
    That is all. If you want to make a case that it was illegal, please feel free to do so – I will agree 100% with your right to make that case. Just do not expect me to agree with statements that try to reverse the burden of proof (like some of “gandhi’s” and “smiths’”)

  98. May 2nd, 2008 at 13:50 | #98

    Before I go, I would also like to note that soon after I wrote the post mentioned earlier about the need for a Royal Commission, my blog was dropped from the Oz Politics RSS feed. I still have not been able to get an explanation for this.

    Just sayin’…

  99. May 2nd, 2008 at 13:56 | #99

    gandhi,
    That would not be (at least in my understanding) a defence of dimished responsibility, it would be an absolute defence. Provided the prosecution could not prove that they knew it to be false (or at least they were reckless as to its truth) any Australian defendants would walk on that basis.
    I do not have the time to prepare (or the interest in preparing) a defence of their actions. In the unlikely event it ever gets to court I will be fascinated to see the evidence. Beyond that I see litle point in getting excited about it as I personally doubt it will occur.

  100. Damien
    May 2nd, 2008 at 14:07 | #100

    Andrew, there’s nothing personal intended by my comments.

    1. I have not said there is no crime here.
    2. I have not said there should not be an investigation.
    3. I have said everyone is (IMHO) entitled to a presumption of innocence.
    That is all.

    Not true. You have argued further that..

    If a prima facie case can be put together that they knew there was no immanent threat then they should be subject to a full investigatory process.

    I’ve simply pointed out to you that such evidence exists and that it is reasonable of the public to expect an investigation. If you have read the evidence put before you then you should be able to safely support that. This is not a game; the dead people are real, not notional; and oversight of government is meaningless unless inquiries can be held where appropriate. Respectfully, you need to get off the fence on this issue.

    ….and I agree with Gandhi’s last post. An inquiry is overdue.

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