I am not an attorney, but the International Criminal Court exists to have jurisdiction over some of the things that were mentioned. But there are hurdles:
Aggression: You say you want to prosecute Bush for an illegal, unjustified war. This would probably be the crime of aggression. However, while the ICC claims jurisdiction over prosecutions for aggression, there is no definition to the crime. I fail to see how someone can be prosecuted for a crime which has no elements to prove. Until this is defined, I don’t think anyone at all is going to be prosecuted at the ICC for aggression.
Torture. The ICC is supposed to prosecute two forms of torture: crimes against humanity, and war crimes. For a crime against humanity, the torture would have to be committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” I’m not sure that bill fits the situation, but that’s debatable.
For a war crime, the torture would be considered as part of a “grave breech” of the Geneva Conventions against “persons or property protected under the provisions of the relevant Geneva Convention,” and those acts must be committed “as part of a plan or policy or as part of a large-scale commission of such crimes.” This is probably more in the ballpark, but let’s get serious: from what we know right now, it’d be difficult to prove beyond a reasonable doubt that there was a plan to commit large-scale acts of torture on persons subject to the Geneva Conventions. That’s a lot that a prosecutor would have to prove – if OJ can get off, let’s get real, Bush and others could find some damn good lawyers, too.
Jurisdiction: This is probably the toughest hurdle. Individuals are not supposed to be referred to the ICC for prosecution if the case has been legitimately investigated within the home country’s jurisdiction. Therefore, President Evil Captor, if Attorney General Bricker does a thorough investigation and finds that there is insufficient reason to prosecute Bush in the US, by my reading, Bush could not be prosecuted in the ICC. OTOH, if AG Bricker were to conduct a fraudulent investigation with a predetermined conclusion, all bets would be off on this point.
So President EC, do you have any comment on the impeachment proceedings against you for violations of national security by revealing classified documents?
I don’t know either. I was under the distinct impression that there were illegal wars and legal wars, and one of the key elements was whether the country that attacks is “provoked” or “unprovoked.” Now, in cases like Afghanistan and Gulf War I the provocation is clear: the Taliban ruling Afghanistan was supporting Al-Qaeda, which launched an attack on US soil. Definite provocation. In the case of Gulf War I, Saddam invaded a neighboring country. Definite provocation. But what was the provocation in Gulf War II, exactly? The notion that Saddam was intent on obtaining WMDs was strongly countered by the UN inspectors. There was no real evidence that he had any imminent plans to attack ANYONE. I would call it an unprovoked war, therefore an illegal war. Would that fall under World Court jurisdiction? I don’t know.
I agree, there was no civilian population systematically attacked via torture.
Colonel Wilkerson has alleged that he has seen documents signed by the VP and various officers which not only permitted but encouraged officers to engage in torture, practices well outside the Geneva Convention, in an interview on NPR this a.m. Which was what got me thinking about this topic. Apparently, a paper trail does exist or at one time existed. Assuming that the evidence does not get shredded (and it’s very easy to make copies of emails) then we might just have a case.
I do not think Bricker would conduct a fraudelent investigation, that’s for attorneys of lesser stature like Alberto Gonzalez. But for the reasons I cited, I think a case could be made.
What if the Administration in charge were very welcoming to World Court jurisdiction and made every effort to accommodate them? Would that make a difference?
Mr. President, with all due respect, what the fuck are you talking about?
And, btw, there is no law that says the president can’t lie to Congress. A good thing, too, otherwise no president would ever address Congress. Would you support a law that Congressmen can’t lie in the Chamber of either House? That would be fun to watch!
As to “legal and illegal wars”, only Congress has he authority to declare war. If you want to prosecute Congressmen for an illegal war, you might have some basis.
I dont think an admistration’s preference to the WC makes any difference. A federal judge could easily bar the extradition of a citizen if it felt it was illegal. The US does not recognize ICC’s jurisdiction so a ruling would be a given in that regard.
The ICC has what is basically extraterritoriality provisions so that individuals from non-signatory nations could be subject to prosecution. This means that the ICC is supposed to have jurisdiction even over non-signatories. There is a wrinkle that states can sign agreements among each other not to refer persons of other like-minded nations to the ICC for prosecution. The US has created quite a number of these Article 98 agreements, including with Iraq and Afghanistan, to the best of my recollection. I am not sure that such an agreement prohibits the US from turning over one of its own citizens to the ICC; it would prohibit Iraq from bringing a case against a US person.
I don’t think the ICJ does what you think it does. If there is an instance of an individual being prosecuted by the ICJ [aka the World Court], I can’t find it. Can you?
As I said before, the issue of the world court or ICC is moot. There’s no need to invoke them since the alleged perps can be tried under US law, just like Scooter Libby.
In this hypothetical, the current Justice Department is under orders by the President to investigate the previous administration. A real-world example would be South Africa…the current South African government has prosecuted lots of officials from the former regime who didn’t take the Truth and Reconciliation commitee amnesty offer.
If we hold that every war is either “provoked” or “unprovoked”, then the obvious conclusion is that at least one side in every war is guilty of the war crime of aggression. Slobodan Milosevic is the only person to be charged under this theory since the Nuremburg trials. How many wars have their been since then?
Track one is a priori. The SC could do that to anyone without the ICC.
Track two could not address crimes committed within the US. Iraq or Afghanistan could put charges before the ICC, but that doesn’t give the President any additional powers. The US still wouldn’t recognize the jurisdiction…
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I don’t think the ICJ does what you think it does. If there is an instance of an individual being prosecuted by the ICJ [aka the World Court], I can’t find it. Can you?
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Notice how I emphasized “could”. I don’t think the World Court would take the case either. My point was that the UN’s World Court is the only established court that the US is constitutionally a binding party to.
No, I invoked it because I wanted to cast a wide net, and I suspected there might be US laws relating to immunity of Administration officials for conduct in office that might get them off the hook.
No, the World Court could NOT prosecute individual people. Article 34 of the Statute of the International Court of Justice states: “Only states may be parties in cases before the Court.” QED.