Saturday, June 30, 2007

What if... and then what?

First, a few assumptions:

1. Legal grounds exist to initiate impeachment proceedings against Bush/Cheney on the theory that the invasion and occupation of Iraq were criminal acts under the Nuremberg Principles of 1945 and international law, and possibly under U.S. law;

2. Despite overwhelming evidence of such crimes against peace, including waging a war of aggression, the Democratic leadership will not initiate impeachment proceedings against Bush/Cheney, as Nancy Pelosi has already declared;

3. Bush/Cheney will finish out their full 8-year terms without facing criminal prosecutions in the U.S. or elsewhere;

4. The next president will not pardon Bush/Cheney, having noticed the effects of Nixon's pardon on Jerry Ford's prospects in 1976; and,

5. No criminal prosecutions against Bush/Cheney will ever be initiated by the federal government or any U.S. state.

There's ample reason to believe that all these assumptions will prove correct. So will Bush simply fly off to a comfortable retirement in Crawford and clear brush for the rest of his life, unmolested by the legal system (not to mention his conscience, if he ever had one)? Will Cheney go back to Halliburton for a victory lap? (Certainly the Iraq war has been a "victory" for Halliburton's bottom line.)

The short answer: probably. Congress will likely investigate the roots of the war and its disastrous outcome, if the Democrats retain control, and a long series of damaging revelations will undoubtedly follow.

But if legal action comes from any quarter, it will have to originate in another country or some international body. The prospects of that happening aren't very promising, either.

A national court might initiate a prosecution under its own law, as Spain memorably did with Pinochet of Chile in 1998. Pinochet was charged with perpetrating murder, torture, illegal detention and "disappearances" on Spanish citizens in Chile during and after the 1973 coup. Pinochet was arrested and held on a Spanish warrant in the U.K., but he was eventually released for reasons of poor health.

In theory, a court in just about any country could take similar action against Bush/Cheney—especially if world opinion finds it repugnant that the U.S. legal system can ignore their war crimes. If an EU country like Spain were to initiate a prosecution, any other EU country may be bound to enforce the warrant and extradite the defendant for trial. But it's hard to imagine the U.K., for example, extraditing its former allies under any circumstances. (Besides, Tony Blair is equally susceptible to such a legal attack.) Besides, George Bush only left the U.S. twice before taking office (and I say that advisedly) in 2001—so staying home won't be much of an inconvenience for him.

In 1993, Belgium enacted a unique War Crimes Law that authorized its courts to prosecute individuals for war crimes committed anywhere on the planet. Its courts were given "universal jurisdiction" regardless of the location of the crimes or the nationality of the perpetrators and victims. Cases were filed against various members of the Bush/Cheney cabal, leading Donald Rumsfeld to threaten to withdraw NATO's headquarters from Brussels. The U.S. ignored these claims and denounced them as propaganda stunts. Belgium has drastically curtailed the law during the last few years.

For these and other political reasons, a successful prosecution in any national court seems very unlikely—except maybe in absentia, as a court in Milan is now prosecuting 26 alleged CIA agents for kidnapping an Egyptian cleric on Italian soil. The U.S. is unlikely to acknowledge the right of any other country to bring a former president and vice-president to justice in its own courts, or even members of their administration.

How about international forums? The most obvious possibility is the International Court of Justice (the ICJ or World Court) in The Hague, the UN's judicial branch. But the U.S. withdrew from the "compulsory jurisdiction" of the ICJ during the Reagan administration in 1986. The reason? The government of Nicaragua had sued the U.S. for its support of the illegal contra guerilla war against its elected government (1). In effect, Nicaragua won a default judgment against the U.S., which had rejected the court's jurisdiction and refused to try the case on its merits.

In theory, an aggrieved state, like Iraq, could initiate a case against the Bush/Cheney administration—but not against its individual members—through the ICJ on the model of the Nicaragua v. U.S. litigation. But the U.S., even under a Democratic administration, is unlikely to consent to the ICJ's jurisdiction in a case which it could almost certainly lose.

The ICJ is ineffectual, in other words, unless two countries voluntarily submit to its jurisdiction in advance and try the case to a final judgment. The U.S. would never agree to try Iraq v. U.S. in the ICJ or in any other international forum.

That leaves the International Criminal Court (ICC). So far 145 countries have either joined the court or signed the Rome Statute that created it. The notable exceptions are the three most populous countries in the world: India, China and, predictably, the U.S. Unlike the ICJ, the ICC has jurisdiction over individuals who commit genocide, crimes against humanity, war crimes and the crime of "aggression" (which has not yet been defined [2]). But the ICC would be powerless to prosecute Bush/Cheney without the advance consent of the U.S. government, and that perceived challenge to U.S. sovereignty wouldn't be accepted by any conceivable administration in Washington.

The final option would be an ad hoc court, authorized by the UN, similar to the one created in The Hague in 1993 that eventually prosecuted former Serbian president Milosevic for war crimes. That temporary court, awkwardly known as the "International Criminal Tribunal for the former Yugoslavia" (ICTY), was established by the Security Council rather than the General Assembly. The U.S. could simply veto any UN resolution that would create a similar court to investigate and prosecute Bush/Cheney and their co-conspirators.

Even if any of the options mentioned above were viable, the U.S. would almost certainly ignore a warrant and refuse to extradite Bush/Cheney et al. for trial in any other country or international forum. If the five assumptions at the top of this entry are correct, no international body will be able to make Bush/Cheney accountable for their criminal behavior after they leave office.

Which closes the circle and brings us back to domestic legal remedies. But Speaker Pelosi declared the constitutional remedy of impeachment "off the table" for Congress over a year ago. Once Bush/Cheney finally walk away from the disasters they've created on January 20, 2009, it's conceivable that an aggressive U.S. attorney could launch a criminal prosecution against them and other former members of their cabal. But the new administration will likely opt to begin a "healing" process, perhaps with some equivalent to the South African "truth and reconciliation" commission.

All of which would leave this country's reputation as a "nation of laws" in about the same shambles as the capital of Iraq.


Thanks to Wikipedia's articles on the Belgian War Crimes Law, the ICJ, and the ICC for dates and other background information.

(1) The ICJ found the Reagan administration "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956."

(2) The International Military Tribunal at Nuremberg defined "aggression" as "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

PHOTO: The International Criminal Court in The Hague (Wikipedia Commons)

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