Barack Obama’s decisive victory signals the American people’s belated rejection of the destructive unilateralism of George W Bush’s foreign policy. How President Obama deals with the unfinished legacy of that unilateralism will determine whether Obama is genuine about breaking with the past and forging a new ethical foreign policy — or whether he takes the easier option of moving forward without dealing with America’s violent and unlawful recent past.
In the immediate aftermath of the 9/11 attacks, there was near-universal sympathy for America as a victim of atrocious and indiscriminate violence against civilians. That sympathy carried over into international support for America’s invasion of Afghanistan to topple the Taliban and contain al-Qaeda.
The catastrophe of Bush’s reign was that the manner in which he fought a just war of self-defence in Afghanistan, and his unprincipled extension of it in attacking Iraq, succeeded in turning global sympathy into universal antipathy. Torture, abduction, rendition, Guantanamo Bay and its unfair military commissions, and aggression against Iraq all wasted the moral and political capital which American had accumulated as a victim of 9/11.
Bush could have written history differently by mobilising international sympathy into a cooperative but principled campaign to defeat terrorism and to address the causes which underlie it. President Obama has embarked on such a course, respectful of human rights and sensitive to the benefits of multilateral responses. But Obama must also deal with Bush’s legacy, particularly in ensuring responsibility for American war crimes arguably perpetrated at the highest levels of government.
There have been a substantial number of prosecutions and disciplinary proceedings brought against low-level US military personnel involved in the torture scandals at Abu Ghraib and elsewhere, many of which have resulted in low penalties — despite the severity of the abuses inflicted. The Bush administration characterised those incidents as the work of a few bad apples which did not reflect American policy.
The real test for the American criminal justice system is whether it can determine ultimate responsibility for American breaches of international criminal law, including those where there is evidence of the command responsibility of senior American political leaders.
A series of events at the end of 2008 sparked a new wave of speculation over whether Bush and other high-ranking US officials could be held responsible for war crimes in American, foreign or international courts. Two lawsuits were revived against former secretary of defence Donald Rumsfeld and attorney general John Ashcroft on particular cases alleging the mistreatment of detainees in US custody, followed by blunt conclusions in a bipartisan Senate report that Rumsfeld and other key officials were directly responsible for acts of abuse.
There have been renewed calls, including by leading international lawyers, to hold Bush, former vice-president Dick Cheney and Rumsfeld, along with legal counsel such as Douglas Feith, John Yoo and Jay Bybee, responsible for war crimes.
The main allegation against Bush and other senior officials is complicity in war crimes, specifically torture. The key issue is whether being in a position of command responsibility for coercive interrogation techniques, which officials in the Bush administration had authorised, amounts to conspiring to commit torture — which qualifies as a war crime under US and international law.
In addition, government lawyers who deliberately interpreted the law on torture in an instrumental fashion to justify torture may also attract criminal responsibility. The decision to invade Iraq also raises the lingering legal question whether it might be prosecuted as the customary international law crime of aggression.
Under international law, torture is a war crime under the 1949 Geneva Conventions and is also a general international crime under the 1984 Convention against Torture. There are three possible avenues through which to pursue the prosecution of senior US officials: in US courts, in foreign domestic courts, or in the International Criminal Court.
US law prohibits torture and conspiracy to torture, including where the victim or perpetrator is a US national or a member of the US armed forces. However, the Military Commissions Act 2006, drafted in the wake of the US Supreme Court’s decision in Hamdan v Rumsfeld seeks to exempt responsibility for coercive interrogation techniques from war crimes prosecutions.
The Bush administration denied that its authorised interrogation techniques — such as water-boarding — constituted torture or war crimes, partly because it argued that the Geneva Conventions did not apply to al Qaeda or the Taliban, and partly because it claimed that the interrogation techniques did not amount to torture. The "torture memos" drafted by administration lawyers infamously suggested that only inflicting organ failure or death would constitute "severe pain or suffering" within the meaning of the international legal definition of torture.
Although most of the memos were not legally operative or were rescinded, many of the techniques which were authorised potentially amounted to torture depending upon how they were administered. Such views were clearly out of step with the overwhelming body of international and comparative jurisprudence and legal opinion, including from senior bodies such as the United Nations Committee Against Torture and the European Court of Human Rights.
Credible evidence is building that senior government and legal officials knew that they were authorising torture when overseeing the treatment of detainees. In 2008, the US Senate Armed Services Committee conducted an Inquiry into the Treatment of Detainees in US Custody, most notably in Guantanamo Bay, Iraq and Afghanistan. The Committee concluded that Rumsfeld, General Counsel William Haynes and other military and civilian senior officials bore responsibility for the abuse of detainees in US custody, due to their authorisation of aggressive interrogation techniques. The report asserted that Rumsfeld’s actions were a "direct cause" of detainee abuse at Guantanamo Bay, including in the high profile case of Mohammed al-Qahtani.
It is, however, difficult to know whether US prosecutors and courts will have the stomach for prosecuting senior US political leaders in the conduct of American foreign and national security policy. Such parties have often received light treatment from domestic courts keen to defer to the executive in matters of foreign relations and security. US presidents also enjoy a legal power to pardon anyone for any reason — although as a former constitutional law professor, President Obama would likely be reluctant to pardon any former government official convicted of torture.
If prosecutions are not pursued in American courts, prosecutions in foreign domestic courts are always a possibility. Because torture is a war crime of universal jurisdiction, all countries may legislate to criminalise and prosecute torture, wherever it occurs and by whomever committed. If, for instance, Bush, Rumsfeld or Cheney travelled to Australia on holiday, Australian war crimes laws would permit their arrest and prosecution. Prosecutors in Germany and France have, however, declined to pursue cases filed against Rumsfeld.
Following from the Pinochet case in Britain, former US officials would arguably not enjoy State immunity for war crimes now that they are no longer in office, although a French court in 2007 dismissed the claim against Rumsfeld in part because of a belief that he still enjoyed immunity even out of office, where his acts were committed in an official capacity. The better view is either that the war crime of torture can never be viewed as an official act of government, or that States have agreed to waive the immunity by signing the Geneva Conventions and Convention against Torture. At the very least, the existence of universal jurisdiction over torture will make former Bush administration officials and lawyers think twice before leaving America.
Finally, prosecution before the permanent International Criminal Court (ICC) in The Hague is possible, though remote. Neither the United States nor Iraq is a party to the ICC, and ordinarily the ICC only has jurisdiction over crimes which occurred in the territory of a State party or in relation to their nationals. However, in exceptional cases the United Nations Security Council can refer any matter to the ICC, but this is highly unlikely given that the US enjoys a power of veto over such decisions.
Furthermore, the former US administration made it clear that it would invade the Netherlands to retrieve Americans put on trial there, although Obama is unlikely to follow suit. The ICC prosecutor has also previously indicated that many of the complaints concerning US conduct in Iraq are not of sufficient gravity to warrant the ICC’s attention.
Most recently, the UN Special Rapporteur on Torture called for prosecuting Bush and Rumsfeld for torture, claiming that there is enough evidence to establish a violation of international law. A prosecution in the US itself would seem highly unlikely. It is almost certain that the International Criminal Court will not hear such cases.
Other countries enjoy a legal authority to prosecute, but may be reluctant to sour relations with a superpower by hauling its former senior political leaders before their courts. In many ways, prospects for justice lie with President Obama, who has the power to order a special investigation to determine whether his predecessors are war criminals.
Donate To New Matilda
New Matilda is a small, independent media outlet. We survive through reader contributions, and never losing a lawsuit. If you got something from this article, giving something back helps us to continue speaking truth to power. Every little bit counts.