War crimes trials?

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?

132 thoughts on “War crimes trials?

  1. 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.

  2. 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

  3. 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.

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