Prosecuting high-level Western war criminals


in Bombs and rockets, Canada, Law, Politics, Security

Writing in the Ottawa Citizen, Dan Gardner argues convincingly that the admission of former President Bush that he ordered people tortured makes him a war criminal who can be prosecuted as such:

Do laws apply to the United States and its president as they do to other nations and men? On the weekend, Swiss officials were very nearly forced to answer that explosive question. Depending on George W. Bush’s travel schedule, Canadian officials could be put on the spot next.

In his memoirs, published late last year, and in subsequent interviews, Bush explicitly said he ordered officials to subject terrorism suspects to waterboarding and other torture techniques. The fact that he had done so wasn’t much of a surprise. There was already heaps of evidence implicating the Bush administration, up to and including the president. What was shocking was that Bush admitted it. He even seemed to boast about it. “Damn right,” he said when Matt Lauer asked whether he had ordered waterboarding.

Gardner goes on to recognize that Bush is unlikely to actually be charged by any state, given how much doing so would probably harm that state’s bilateral relationship with the United States.

Under the terms of the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT), an official doesn’t need to engage in torture directly to be in contravention. The torture needs to happen at “the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.

By that standard, there are probably a lot of war criminals around. It’s not clear whether President Obama has stopped all American-initiated interrogation techniques that constitute torture. Similarly, given what is known about the Afghan security services, it is quite possible that officials from states including Canada have violated international law by handing over prisoners to people who were likely to torture them (potentially violating Part II of the Third Geneva Convention).

In a related story, British journalist George Monbiot has helped to establish a bounty for those who attempt to arrest former British Prime Minister Tony Blair for committing war crimes.

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{ 10 comments… read them below or add one }

. February 12, 2011 at 2:57 am

The Canadian Afghan detainee issue concerns questions about actions of the executive branch of the Government of Canada during the War in Afghanistan in regards to Canada transferring Afghan detainees to the Afghan National Army (ANA) or the Afghan National Directorate of Security (NDS). This issue has at least two distinct subcategories:

The first issue concerns whether or not the executive branch of the Government of Canada knew about alleged abusive treatment of Afghan detainees by those Afghan forces. Particularly at issue are questions of when the government of Canada had this alleged knowledge. The question of “when” is important because it pertains to their responsibility to act on knowledge of mistreatment of detainees. That responsibility is outlined in the Third Geneva Convention, which Canada is a party to. Article 12 states that “the Detaining Power [(in this case Canada)] is responsible for the treatment given [to prisoners of war]”.

The second issue arose in March 2010, when allegations surfaced that the government did more than turn a blind eye to abuse of Afghan detainees, but that Canada went even further in intentionally handing over prisoners to torturers.[1] The allegations were sparked by University of Ottawa law professor Amir Attaran, who claimed that full versions of government documents proved these claims. If the allegations are true, Canada could be considered guilty of a war crime, according to critics.[1]

Subsequently, the Canadian House of Commons has been the scene of a showdown, as opposition Members of Parliament (MPs) have tried to force the government into releasing said documents in full, unredacted form. The controversy over the documents was fueled further when Parliament was prorogued at the end of 2009. The government maintained that they had a duty to protect Canadian troops and citizens as the documents contained sensitive information, while opposition MPs have argued they have the parliamentary privilege to see them. At the request of the Speaker of the Canadian House of Commons, the opposition parties and the government worked together to organize a system to determine what documents were sensitive or not, so that they could be released to MPs. The Canadian public, which generally holds the view that there was knowledge of detainee abuse by military or government officials, now awaits for a clearer picture of the issue as these documents are released.

R.K. February 13, 2011 at 6:49 pm

Of course, Western nations whose leaders may be legally vulnerable will fight with considerable determination to prevent any prosecution. Does that mean the way in which international law is applied around the world is fundamentally hypocritical?

Mango February 14, 2011 at 9:02 am

This is precisely the question (will Western leaders ever be charged with war crimes?) that I also wondered about, in relation to the West’s attempts to bring Sri Lanka’s leaders to book for war crimes. Some interesting numbers on civilian casualties caused by Western powers :)

As Dan Gardner says, International Law doesn’t apply to powerful countries.

. August 4, 2011 at 7:31 pm

UK had official torture use policy

UK’s official use of torture policy. For MI5 & MI6, special renditions: when to proceed knowing torture would be used during the interrogation.

. September 25, 2011 at 1:05 pm

The armed forces are not alone in facing accusations of wrongdoing. Abdel Hakim Belhadj (pictured), who now commands the rebel forces in Libya, alleges that MI6, Britain’s foreign-intelligence service, was unlawfully complicit in his transfer in 2004 from Thailand to a Libyan prison, where he says he was tortured. At the time, he belonged to the Libyan Islamic Fighting Group (LIFG). The group sought to overthrow Colonel Qaddafi, with whom the West had begun to treat after years of mutual hostility. Mr Belhadj is thinking of suing the British government.

. July 20, 2012 at 7:35 pm

The conviction of Charles Taylor, the former president of Liberia, is said to have sent an unequivocal message to current leaders: that great office confers no immunity. In fact it sent two messages: if you run a small, weak nation, you may be subject to the full force of international law. If you run a powerful nation, you have nothing to fear.

While anyone with an interest in human rights should welcome the verdict, it reminds us that no one has faced legal consequences for launching the illegal war against Iraq. This fits the Nuremberg Tribunal’s definition of a “crime of aggression”, which it called “the supreme international crime”(1). The charges on which, in an impartial system, George Bush, Tony Blair and their associates should have been investigated are far graver than those for which Taylor was found guilty.

. August 29, 2012 at 10:19 am

On Tuesday the Arrest Blair campaign will pay Tom Grundy £2,400 for his attempt to arrest Tony Blair during a public event in Hong Kong.

The campaign was established to uphold the principle that no one is above the law. The 2003 invasion of Iraq, commissioned by George W. Bush and Tony Blair, meets the definition of a crime against peace, established by the Nuremberg Principles and described by the Nuremberg Tribunal as “the supreme international crime.”

The 2003 Iraq war caused the deaths of between 100,000 and one million people, depending on whose estimate you believe. A series of leaked documents shows that the Bush and Blair governments knew they did not possess legal justification(2,3). Without it, the war with Iraq was an act of mass murder, committed by those who launched it.

Though the former leaders of other states have been prosecuted under international law, none of those responsible for the Iraq war have yet been charged. The aim of Arrest Blair is to ensure that this illegal war is not forgotten, and to maintain international pressure for charges to be brought.

. September 4, 2012 at 12:06 pm

The prospect of a trial for Tony Blair now starts to look more plausible

When Desmond Tutu wrote that Tony Blair should be treading the path to the Hague, he de-normalised what Blair has done. Tutu broke the protocol of power – the implicit accord between those who flit from one grand meeting to another – and named his crime. I expect that Blair will never recover from it.

The offence is known by two names in international law: the crime of aggression and a crime against peace. It is defined by the Nuremberg Principles as the “planning, preparation, initiation or waging of a war of aggression”. This means a war fought for a purpose other than self-defence: in other words outwith articles 33 and 51 of the UN Charter.

. December 21, 2013 at 9:30 pm

The extremists spread the rumour that polio drops are a Western conspiracy to sterilise Muslims. As it is, the credibility of health workers has been badly shaken by the revelation in 2011 that the CIA had recruited a Pakistani doctor, Shakil Afridi. He set up a fake vaccination programme, for hepatitis B, as part of the hunt that finally killed Osama bin Laden. Militants also use polio to press the government. They say they will refuse to allow immunisations in North or South Waziristan, part of the wild tribal areas, unless attacks by unmanned American drone aircraft are stopped.

. January 21, 2014 at 11:39 pm

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