Send Bush to jail (and throw away the key)

I wrote in an earlier post, that one of my wishes for the Obama Presidency was signature and ratification of the Rome Statute which constitutes the International Criminal Court in The Hague. I still believe this should be done to restore the trust of the world in American politics by accepting accountability to international standards.  Initially my idea was to find a way to hold President Bush accountable and try him for his crimes in a court of law. However, after some research, I doubt that end would be achieved by joining in the ICC. The Rome Statute states explicitly that it’s rules apply to the signatory states only after the ratification unless it’s jurisdiction was approved retroactively by the signing state.  At least that is how I understood the text.  There may be lawyers among you who know better than me and I would very much appreciate to learn more from you.

I do think it is possible that an Obama Administration signs the statute (or re-signs it, it has already been signed by the Clinton Administration, but the Bush Administration “un-signed” it) and the Democratic Congress ratifies it. I don’t believe it would be made retroactive though, because that would amount to handing Bush, Cheney, Rumsfeld and some more to The Hague. Barack Obama, among other things, has stressed bi-partisanship and just imagine the Republican’s and their voters’ reaction.

So where does that leave you? You will have to go it alone. And the Bush Administration must be held accountable for their actions. There is a number of crimes that have been assembled by the National Lawyers Guild in an attempt to impeach Bush. In November Joel S. Hirschhorn wrote an article in MWCnews saying:

I want President Obama soon after taking office to go on television and announce the formation of a special group of outstanding jurists and attorneys to make a recommendation whether or not the US Justice Department should bring criminal charges against George W. Bush.  Based on earlier analyses, including work by the American Bar Association, I have no doubt they will recommend indictment.

I could not agree more. The documentary “Taxi to the Dark Side” ran on a German tv-channel yesterday and it brought back the atrocities of the “War on Terror”. And yes, I would like to see Bush, Cheney, Rumsfeld, Gonzales, Yoo and some more held accountable for these crimes and more in a court of law.


6 thoughts on “Send Bush to jail (and throw away the key)

  1. As far as the retroactive application of the ICC, you would have a difficult time including this in the ratification, much less application. Article I, section 9 and 10 of the US Constitution prohibits ex post facto laws. The Supremacy Clause establishes the Constitution, and by lesser subordination to the Constitution, Federal Statutes and U.S. treaties as “the supreme law of the land.” In other words, treaties must comply with the Constitution. For example, an international treaty banning private ownership of firearms or banning free speech would be automatically render such treaty unconstitutional and unenforceable as a matter of law against American citizens by the federal government, the foreign government with whom the treaty is signed or any foreign or international party. In the case of the ICC, the federal government cannot cede the protection against ex post facto prosecution of American citizens based on a 2/3 vote because the removal of that protection would be tantamount to a Constitutional Amendment which would also require ratification by 2/3 of the states.

    The political reality is that there isn’t even the 2/3 majority in the Senate that would vote to ratify such a treaty much less the Kyoto protocols. For the blue ribbon commission Mr. Hirschhorn advocates, it would have to be bi-partisan and have bi-partisan support in the Congress to do. I just don’t see that happening at this stage. Obama has no choice but to focus on the economy and national defense issues to begin with and perhaps health care and social security reform. He needs all the political capital he can get and like it or not, he still needs Republicans to proceed. Not to mention that Obama’s reelection campaign begins January 21st.

    If Obama were to announce a blue ribbon committee to justify criminal charges against Bush, Cheney, Rumsfeld, Yoo, et al., what chance would he have of Republicans not filibustering every single one of his cabinet and diplomatic nominations? Further, he would have to expose Robert Gates, whom he’s already tapped to stay on as Defense Secretary to criminal charges by the very commission he empanelled! He would spend his entire political capital on prosecuting the previous administration and most definitely immediately polarize Congress and sewing the seeds of an immense Republican Congressional effort in 2010. This would actually be the neoCON dream come true scenario.

  2. International War Crimes constitute jus cogens of international law. Universal Jurisdiction may be invoked, without running afoul of “ex post facto” restrictions. There is no statue of limitations on International War Crimes.

    The only requirement is that the nation whose citizens are accused of having committed international war crimes demonstrates that it either will not prosecute, or that any prosecution it does put forth is a sham prosecution, designed to insulate the war criminals from justice.

    The Military Commissions Act of 2006, combined with Bush’s “unsigning” the ICC, demonstrate quite clearly that the US will not prosecute its citizens suspected of committing international war crimes. Obama’s hands are quite tied in that matter.

    But ratification of the ICC now won’t change anything. The international community may still prosecute those individuals suspected of committing international war crimes. Unlike Saddam, however, the international community does not allow the death penalty. So we are unlikely to be treated with the spectacle of Bush or Cheney being hung while thugs in hoods chant and celebrate.

  3. @ Briseadh na Faire –

    The Supreme Court in 1957 declared that the United States could not abrogate the rights guaranteed to citizens in the Bill of Rights through international agreements. see Reid v. Covert, 351 U.S. 487 (1956), reversed on rehearing, 354 U.S. 1 (1957) and Kinsella v. Krueger, 351 U.S. 470 (1956), reversed on rehearing, 354 U.S. 1 (1957).

    Justice Hugo L. Black’s opinion for the Court declared:

    “There is nothing in [the Constitution] which intimates that treaties and laws enacted pursuant to [it] do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.”

    I concede that the UN could empanel a special International War Crimes Tribunal for the US and as a signatory, would be bound to it, however, I believe based on the above cases, the UN would be bound to conduct the Tribunal pursuant to the US Constitution and Federal Rules of Criminal Procedure. Otherwise, you could have a situation in which Americans found guilty in an international tribunal would effectively have their convictions overturned by the SCOTUS.

  4. Universal jurisdiction is exerted whether or not a country is a signatory to any treaty or convention.

    If an international war crimes tribunal is convened to try war crimes in connection with the illegal invasion of Iraq and Bush&Co. are haled into such a tribunal, the only thing the U.S. could do is to apply economic sanctions against the sponsoring country(ies) and/or invade and take Bush&Co back to U.S. soil by force of arms.

    SCOTUS lacks jurisdiction over international tribunals.

    You write like you’re an international law attorney, but your responses are just off the mark.

  5. I’m not claiming to be an international law attorney, but I simply do not agree that the UN could get a Security Council Resolution which the US would not veto and convene a war crimes tribunal regarding the invasion of Iraq (which I concede was Constitutionally illegal). Assuming that it was though and international arrest warrants were issued, and assuming that Bush et al. were not to leave US soil, under what authority could they be extradited?

    Interpol would not have jurisdiction to enter US soil and serve an arrest warrant and take Bush et al into custody. While the FBI or some other agency could theoretically take them into custody, most certainly habeas petitions would be filed before the UN could say boo (imagine the irony in that). Ultimately the SCOTUS would have to determine whether the US recognizes universal jurisdiction and if it does, to what extent it recognizes the procedures of the tribunal provide requisite Constitutional protections. Unless of course the UN were to authorize an invasion of the US in order to capture Bush et al.

    You said:
    “SCOTUS lacks jurisdiction over international tribunals. You write like you’re an international law attorney, but your responses are just off the mark.”

    I never stated that SCOTUS has jurisdiction over international tribunals, I was saying SCOTUS has ruled that that international treaties cannot supersede the supremacy of the Constitution unless specifically agreed to such as Force Service Agreements. Universal jurisdiction over every US citizen simply by auspices of being a signatory to the UN Charter is not a concept that I believe the SCOTUS subscribes to.

    Further, the Tribunal would also have to arrest all members of Congress and the DOD leadership who authorized and funded the offending war crimes and were responsible for oversight of the military. In addition, Bill Clinton would also be subject to a war crimes tribunal for his actions in bombing Serbia.

    The best bet would be criminal prosecution under USC Chapter 50A; Section § 1091 Genocide or USC Title 18, Part I, Chapter 118§ 2441 War Crimes. Even then you’d have to also indict members of Congress who were complicit. The political reality is that it will never happen and assuming that Obama were to pursue these charges, his own Secretary of Defense would have to be charged.

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