Bush in Toronto: US War Criminals are not Above Transnational law

PEJ News - Joan Russow - Compliance Research Project - Numerous authorities in transnational law, and in international law have concurred that Bush’s act of aggression against Iraq, his complicity in the violation of the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), his condoning of the use of prohibited weapons under the Geneva Additional Protocol, and under the Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW) or his contribution to the killing of civilians in contravention of Geneva Conventions would justify the triggering of a conviction of former President George W. Bush, And thus the invoking of Transnational justice and the arrest of Bush in Toronto.

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PRECEDENT FOR ARRESTING BUSH IN CANADA HAS BEEN SET

In Montreal, on May 22, 2009, a significant precedent was set: Canada has set a precedent under Canadian law to convict war criminals. While Canada has convicted Desire Munyaneza for war crimes, and crimes against humanity, will Canada be consistent and apply this precedent to “Friendly state” war criminals who violate the Nuremberg principles.

Irwin Cotler who was Minister of Justice in 2000 when the Crimes against Humanity and War Crimes Act (CAHWCA), Criminal Code of Canada was enacted. Today on CBC in reference to the case against Munyaneza, Cotler stated the importCAHWCA act, Cotler exclaimed that Canada is fulfilling its international obligations, and he cited the key message from the Nuremberg trial “Never Again” “Never Again|. Cotler added that Canada, in applying the CAHWCA act, is giving legal voice to the statement of “never again”. He appears, however, to be silent about the temporary haven given to former president George W. Bush who will be appearing in Toronto on May 29, 2009. If Canada wants to be perceived to be a purveyor of transnational justice, Canada would have to be willing to also prosecute “Friendly state” war criminals, and give full legal voice to the Nuremberg principles.

THE FOLLOWING IS AN EXCERPT FROM A REVIEW OF THE LITERATURE RELATED TO CRIMES AGAINST THE PEACE, AND WAR CRIMES, AND THE APPLICABILITY TO A TRANSJUDICIAL JUDGEMENT OF EX- PRESIDENT GEORGE W BUSH

1. APPLICABILITY OF NUREMBERG PRINCIPLES

The actions of the Bush and his Regime definitely could be construed as violating the following principles in the Nuremberg Charter:

Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 1950.

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle V

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle VI

The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War crimes:

Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

(c) Crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.

Principle VII

Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

2. SUPPORT FOR TRANSNATIONAL JUSTICE

TRANSNATIONAL JUSTICE: WHEN STATES FAIL TO PROSECUTE LEADERS, AND WHEN STATES FAIL TO RATIFY THE INTERNATIONAL CRIMINAL COURT.

NOTE: As reported in the Vancouver Sun, there are a number of reasons that Bush will not be tried in the US; thus the responsibility falls on the international community]

On Jan 17, 2009, Dan Gardner from the Vancouver Sun, wrote a piece entitled

Will anyone in the White House be held accountable? (The Vancouver Sun. Vancouver, B.C.: Jan 17, 2009. pg. C.5) .

Leading legal authorities in the United States have called for the prosecution of members of the Bush Regime.

As of May 22, however, it would appear that the answer to the question would be that the United States is not prepared to hold Bush accountable for crimes Against the Peace and War crimes. When the International Criminal Court (ICC) was established, Philippe Kirsch, the President of the Court, stated that there would be international investigations when the two following conditions were met: 1. the state had refused to try the war criminals and 2. that the state did not have a recognized judicial system.

While the United States fulfills the first condition, it does not fulfill, the second. This fact is mute given the US has failed to ratify the ICC.

The responsibility for trying the Bush and his regime thus falls on the International Community through the process of transnational justice.

The most illustrious case of the use of transnational justice was the case against Pinochet.

This case was brought by Baltasar Garzón, who has now called for US President George W. Bush and his allies to be tried for war crimes over Iraq.

In 2007, he wrote the following in El Pais, on March 20, on the anniversary of the invasion of Iraq

“Today, March 20, marks four years since the formal start of the war on Iraq. Instigated by the United States and Great Britain, and supported by Spain among other countries, one of the most sordid and unjustifiable episodes in recent human history began.

“Breaking every international law, and under the pretext of the war against terror, there has taken place since 2003 a devastating attack on the rule of law and against the very essence of the international community. In its path, institutions such as the United Nations were left in tatters, from which it has not yet recovered.” “Instead of commemorating the war,” Garzón continues, “we should be horrified, screaming and demonstrating against the present massacre created as a consequence of that war.”

He also stated that “We should look more deeply into the possible criminal responsibility of the people who are, orwere, responsible for this war and see whether there is sufficient evidence to make them answer for it.”

3.CRIMES AGAINST THE PEACE

Aggression

A crime against peace, in international law, refers to "planning, preparation, initiation, or waging of,wars of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing" This definition of crimes against peace was first incorporated into the Nuremberg Principles and later included in the United Nations Charter. This definition would play a part in defining aggression as a crime against peace

A crime against peace is in violation of one of the key purposes under Article 1 the Charter of the United Nations.

“1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; “

The crime against peace under international common law was recognised by the Nuremberg Tribunal following World War II, noting that the Pact was evidence of a sufficient crystallization of world opinion to authorise a judicial finding in favour of the existence of a ‘crime against peace’The legal position as stated by the Nuremberg Tribunal is that those who perpetrate crimes of aggression commit not only a crime under international law but commit the supreme international crime.

The United States, during the Bush Regime, was willing to act beyond the constraints of international law and even beyond limits it has observed in the past The distinction between ‘preventive war’ and preemption in the Bush doctrine was described as going beyond the traditional definition of preemption—striking an enemy as it prepares an attack—but is extendede to—striking an enemy even in the absence of specific evidence of a coming attack.

…. The danger of setting a precedent for the use of force by other states is self evident. As one scholar recently observed in a different context, “[i]f the principle of reciprocity ensures that any state claiming a right under general customary international law accords that same right to every other state, states will only claim rights which they are prepared to see generalized. This is because a generalized right subjects the state to corresponding obligations vis-à-vis all other states.” [19]

State Responsibility and The Use of Military Force Against Iraq
A number of international lawyers have written opinions stating that it would be a violation of international law if the United States, United Kingdom nd other States were to use military force against Iraq without specific, new Security Council authorization. These arguments will not be repeated here and reference should be made to those opinions. Notable are the opinions by Rabinder Singh and Charlotte Kilroy of Matrix Chambers. [25]

The Act of Aggressive attack is in violation of one of the key objectives in the Charter of the United Nations.

4. WAR CRIMES :

4a VIOLATION OF THE CONVENTION AGAINST TORTURE AND VIOLATION OF GENEVA PROTOCOL ON PROHIBITED WEAPONS

On February 02, 2009, Julion Godoy of IPS reported in an article Time to prosecute Bush say experts: the evidence is there and the law requires it.

The article cites

" Wolfgang Kaleck, general secretary of the European Centre for Human and Constitutional Rights told

IPS.

U.S. justice will have to "deal with the turpitudes committed by the Bush government," says Kaleck, who has already tried unsuccessfully to sue the

former U.S. authorities in European courts. "And, furthermore, the U.S. government will have to pay compensation to the innocent people who were victims of these crimes."

the IPS article also refered to an interview with the German public television network ZDF, Austrian human rights lawyer Manfred Nowak, UN special rapporteur on torture, said that

numerous cases of torture ordered by U.S. officials and perpetrated by U.S. authorities are well documented.

"We possess all the evidence which proves that the torture methods used in interrogation by the U.S. government were explicitly ordered by former U.S.

defence minister Donald Rumsfeld," Nowak told ZDF. "Obviously, these orders were given with the highest U.S. authorities' knowledge."
Godoy also points out that :

"According to the U.S. constitution, the U.S. president is responsible for all actions carried out by the executive," Herz told IPS. "Therefore, George W.

Bush is responsible for the torture methods used by U.S. authorities, such as waterboarding."

RELEVANT SECTIONS FROM THE CONVENTION AGAINST TORTURE
AND AUTHORITIES.

Convention Against Torture

PART I

Article 1

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
ARTICLE 2 2


No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

Article 3 General comment on its implementation

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Selection of Authorities

The following authorities have recognized that Bush is guilty of war crimes such as torture, and in most cases have called for prosecution of Bush et al for war crimes.

# Scott Horton January 21, 8:21 AM, 2009 · No Comment · Previous · Next

UN Rapporteur: Initiate criminal proceedings against Bush and

Rumsfeld now

Professor

Nowak, the United Nations Rapporteur responsible for torture, stated that with George W. Bush’s head of state immunity now terminated, the new government of Barack Obama was obligated by international law to commence a criminal investigation into Bush’s torture practices.

In an interview on Tuesday evening with the German television program “Frontal 21,” on channel ZDF Professor Manfred Nowak, the United Nations Rapporteur responsible for torture, stated that with George W. Bush’s head of state immunity now terminated, the new government of Barack Obama was obligated by international law to commence a criminal investigation into Bush’s torture practices.

“The evidence is sitting on the table,” he stated. “There is no avoiding the fact that this was torture.” He pointed to the U.S. undertakings under the Convention Against Torture in which the country committed that it would criminally prosecute anyone who tortured, or extradite the person to a state that would prosecute him. “The government of the United States is required to take all necessary steps to bring George W. Bush and Donald Rumsfeld before a court,” Nowak said.

…. Law professor Dietmar Herz clarifies that under U.S. and international law, George W. Bush bears personal responsibility for the introduction of torture. From the point of his departure from office, head of state immunity terminates, and under clear principles of international law, the United States is obligated to commence a criminal investigation and then a prosecution.

# Scott Horton Bring the Torture Team to Justice February 13, 2009

Harpers Magazine http://www.harpers.org/archive/2009/02/hbc-90004398

By a margin of 2 to 1, Americans feel it’s time for an accounting of the Bush Administration’s illegal practices, including torture and warrantless surveillance. And 40% of Americans are prepared to proceed to prosecutions immediately, without even the need for a comprehensive investigation. Only a minority of Republicans accept the Bush team’s mantra that we should move on and leave the crimes of the last eight years unexamined. Read the details in these reports in USA Today. This call for accountability is a mainstream phenomenon.

# # Dan Froomkin Bush Okayed Torture MeetingsSpecial to washingtonpost.com


Monday, April 14, 2008; 1:36 PM
President Bush says he was aware that his top aides met in the White House basement to micromanage the application of waterboarding and other widely-condemned interrogation techniques. And he says it was no big deal.

"I'm aware our national security team met on this issue. And I approved," Bush told ABC News' Martha Raddatz on Friday. "I don't know what's new about that; I'm not so sure what's so startling about that."

It's true that it has been widely assumed and occasionally reported that the CIA's use of brutal interrogation techniques could be traced back to the White House on a general level. But it was most definitely new last week when ABC News reported that a group of Bush's top aides, including Vice President Cheney, took part in meetings where they explicitly discussed and approved -- literally blow by blow -- tactics such as waterboarding. And while Bush has previously defended these tactics -- vaguely, and insisting against all evidence that they did not amount to torture -- he had not, until now, acknowledged that he personally OK'd them beforehand.

If you consider what the government did to be torture, which is a crime according to U.S. and international law, Bush's statement shifts his role from being an accessory after the fact to being part of a conspiracy to commit.

# Physicians for Human Rights “Bush Administration Committed War Crimes Against Prisoners” http://www.naturalnews.com/024696.html

Bush Administration Committed War Crimes Against Prisoners, Reveals Physicians for Human Rights

November 04, 2008 by: David Gutierrez, staff writer

NaturalNews. "This story is not only written in words, it is scrawled for the rest of these individuals' lives on their bodies and minds. Our national honor is stained by the indignity and inhumane treatment these men received from their captors."

The torture suffered by the former prisoners was not the result of a few decisions by lower-ranking soldiers, Taguba said, but of a policy that came straight out of the White House and of doctors and psychologists who colluded with torturers.

"In order for these individuals to suffer the wanton cruelty to which they were subjected, a government policy was promulgated to the field whereby the Geneva Conventions and the Uniform Code of Military Justice were disregarded," he writes. "The UN Convention Against Torture was indiscriminately ignored. And the healing professions, including physicians and psychologists, became complicit in the willful infliction of harm against those the Hippocratic Oath demands they protect."

# ACLU “Bush Admits To Knowledge of Torture Authorization by Top Advisers” (4/12/2008)

Calls for Independent Counsel to Investigate Administration's Approval of Torture and

CONTACT: (202) 675-2312, media@dcaclu.org; (917) 251-8654 or media@aclu.orgWASHINGTON – In a stunning admission to ABC news Friday night, President Bush declared that he knew his top national security advisers discussed and approved specific details of the CIA's use of torture. Bush reportedly told ABC, "I'm aware our national security team met on this issue. And I approved." Bush also defended the use of waterboarding.

4b WAR CRIMES : USE OF WEAPONS PROHIBITED UNDER THE GENEVA ADDITIONAL PROTOCOL 1 AND UNDER THE CONVENTION ON PROHIBITIONS OR RESTRICTIONS OF USE OF CERTAIN CONVENTIONAL WEAPONS WHICH MAY BE DEEMED TO BE EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS

Bush sanctioned the use of weapons that should have been weapons that were deemed to be prohibited under the above mentioned Protocol and Conventions.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

IN 1977 ESTABLISH BASIC RULES RELATED TO ARMAMENTS

Establish Art 35. Basic rules

1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.

2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

AND

3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

Also in the additional Geneva protocol there are imposed limitations on the development of new weapons. Under Article 36 which reads.

Art 36. New weapons

In the study, development, acquisition or adoption of a new weaponS, means or method of warfare, a High Contracting Party GOVERNMENTS ARE is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

George W. Bush sanctioned the use of DU which undoubtedly would have “caused widespread, long-term and severe damage to the natural environment” .

“and thus would be prohibited under Art. 35.

Convention on Prohibitions or Restrictions of Use of Certain Conventional Weapons ....

In 1980, member states of the United Nations negotiated the Convention on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects

George Bush sanctioned the use of Cluster bombs which obviously would have been deemed “excessively injurious of to have indiscriminate Effects” In 2008, there is now in place a Convention against the use of Cluster bombs. Bush should have been able to anticipate that cluster bombs would be excessively injurious or to have indiscriminate Effects.