There are many millions of Americans who would dearly love to see members of the Bush administration, including George Bush and Dick Cheney themselves, prosecuted for serious crimes committed during their tenure in office. A recent Gallup poll showed that 38% of Americans would like to see criminal investigations of the Bush administration for torture of terrorism suspects, and another 24% would like to see investigations undertaken by an independent panel (Doing both simultaneously was not an option in the poll). Only 34% said that neither criminal prosecutions nor an independent investigation should be undertaken. These figures indicate a level of animosity of the American people towards their previous presidential administration that, I believe, is far greater than has ever existed in our country – with the possible exception of the Nixon administration.

One can look at these figures in two ways. On the one hand, I find it amazing that nearly two thirds of the American people would like to see investigations into serious crimes of a presidential administration, and that more than a third actually want to see criminal prosecutions. But on the other hand, why do only 38% want to see criminal investigations when there is overwhelming evidence already available that the Bush administration did commit horrific international crimes?

I think that what these figures indicate is the interplay of two opposing forces. On the one hand, there is the great trauma that many Americans would feel at the specter of seeing a former American president undergo a criminal investigation. So great would be the trauma to these Americans that they have entered into a psychological denial that prevents them from acknowledging the crimes of our former president and vice president, no matter how great the evidence. On the other hand, there is the great American tradition that in order to have a nation of laws, nobody – especially our highest government officials – can be above the law. People who believe in that tradition are much less likely to utilize psychological denial to protect themselves from unpleasant realities.

Yet, despite the overwhelming evidence, and despite the fact that a large majority of the American people want to see this pursued, there is as yet little or no indication from the Obama administration that they intend to pursue it. This is true despite the fact that public airing of the evidence would be certain to greatly increase public support for criminal prosecutions.

How can that be? How can a presidential administration committed to the rule of law allow such grave crimes to go unprosecuted? Well, maybe they will pursue it after all. President Obama’s pick for the Office of Legal Counsel suggests that maybe he will indeed be open to criminal prosecutions. But his words suggest otherwise.

If the Obama administration fails to follow-up on this, the next best hope of seeing the rule of law restored in our country (and the world) would be the International Criminal Court (ICC). Let’s take a look at that possibility.


THE INTERNATIONAL CRIMINAL COURT

In July 1998, 120 member nations of the United Nations adopted a treaty to establish the first permanent international criminal court in world history. On July 1, 2002, the ICC went into effect, after treaties were ratified in 60 nations. Today there are 108 member nations. The jurisdiction of the ICC applies only to crimes committed after July 1, 2002.


Purpose

In the preamble to the ICC it is noted that in the 20th Century millions of men, women and children were victims of “unimaginable atrocities that deeply shock the conscience of humanity” and that such crimes “threaten the peace, security and well-being of the world”. It then goes on to speak of the need to take measures, through international cooperation, to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” These sentiments are summed up by then Secretary General to the United Nations, Kofi Annan:


The ICC defined three types of crimes that would comprise those that it would seek to prosecute:



Crucial legal principles

Various legal principles were established in an attempt to ensure that high level government officials who commit these crimes do not escape punishment. These principles are described by Antoine Bernard in an article titled “Challenges of the New System of International Criminal Justice”, from the book “International Justice and Impunity”. Chief among these legal principles are the prohibition of granting immunity for acting in “official capacity”, and the principle of “universal jurisdiction”.

Prohibition of granting immunity for acting in “official capacity”
Just as with the Nuremburg Trials, acting in the official capacity of one’s government cannot alone be used as a legitimate defense. Bernard explains:


Universal jurisdiction
The principle of universal jurisdiction means that a member nation State may act on behalf of the ICC, either by arresting and turning suspected perpetrators over to the ICC or by prosecuting the perpetrators itself:


However, in order for the ICC to have jurisdiction, the acts generally have to have been committed either on the territory of a State or by nationals of a State that is a member of the ICC. So, in that sense, this principle as it now stands, is not truly and completely universal.

Complementarity
Complementarity is not a principle whose purpose is to ensure that perpetrators don’t fall through the cracks. Rather, it is primarily a practical principle, meant to reduce the burden of work in the ICC. It states that the primary responsibility for prosecuting international criminals for ICC crimes rests with the home nation of the suspected perpetrators. However, recognizing that nations are often reluctant to prosecute their own citizens for international crimes, it states:



Foundation of ICC legal principles in morality

There are many nationalists, especially in the United States, who are abhorred by the idea that a U.S. citizen could be tried in an international court. They believe that other nations of the world have no right to have any kind of legal authority over U.S. citizens. Part of the reason for this attitude may be based in xenophobia or racism. But I believe that it is equally rooted in arrogance – defined as “an attitude of superiority manifested in an overbearing manner or in presumptuous claims or assumptions”. In this case the presumptuous claims or assumptions are that Americans have an inalienable right to do anything they want to other peoples of the world without being labeled or prosecuted as criminals.

My feeling on the matter is this: I would make a parallel to the authority of federal, state or local police and courts over American citizens. What would we think if an American citizen claimed that American law should have no authority over him, no matter what heinous acts he commits, because that interferes with his freedom to do as he wants? The great majority of us would think that such a claim is preposterous. The basic principle on which almost all of us agree is that a system of laws must be established within our country in order to protect us against malicious individuals who would do us harm.

The same principle applies to international affairs because malicious and horrible acts, sometimes on a massive scale, are not confined within international borders. The international community must have a means to protect itself against malicious individuals, organizations, and nations for the same reason that legal systems are required within countries.


THE UNITED STATES AGAINST THE ICC

It is no secret that the United States, especially under the Bush/Cheney administration, has posed one of the biggest barriers to the successful function of the ICC. Bernard succinctly summarizes the situation, as mildly as possible, and without even mentioning the word “United States”, “in the context of the post September 11 events, a period in which respect of international norms concerning human rights has decreased”:



The Bush administration against the International Criminal Court

Of the many institutions and traditions that George W. Bush attempted to destroy during his eight years in office, the ICC tops the list. So vehement was his hostility to the ICC that it was almost as if he thought he might one day come under its jurisdiction himself. Though the Bush administration provided many excuses for its hostility to the ICC, the underlying issue appears to be that it cannot tolerate the possibility that an American could ever be tried before the Court. For example, Bush claimed that the Court’s jurisdiction cannot extend to Americans because that will undermine “the independence and flexibility that America needs to defend our national interests around the world”.

Philippe Sands, in his book “Lawless World – The Whistle-Blowing Account of How Bush and Blair Are Taking the Law into Their Own Hands”, poses the following pertinent rhetorical question in response to that excuse:


Consequently, though President Clinton signed the ICC Statute, George Bush announced in 2002 that it was unsigning the statute. And he went well beyond non-participation, to active sabotage. For example, the American Service members’ Protection Act authorizes the American President to “use all means necessary and appropriate” to release any American national who is “being detained or imprisoned by, on behalf of, or at the request of the ICC”; it prohibits all American cooperation with the ICC; it prohibits participation of American troops in UN peacekeeping operations unless they are granted complete immunity from the ICC; and it prohibits the U.S. from providing military assistance to any country that is a party to the ICC (with some exceptions).

Nuri Albala, in an article titled “Universal Jurisdiction Unacceptable to the Most Powerful”, provides an example of how the Bush administration efforts to hold itself above the laws proclaimed by the ICC worked out in practice:



Bush administration crimes in need of attention by the ICC if not prosecuted by the United States

Crimes by the Bush administration that should be pursued by the ICC if the Obama administration fails to pursue them include genocide, crimes against humanity, and war crimes. I’ll discuss genocide and crimes against humanity together, since there is so much overlap between them.

Bush and Cheney took U.S. militarism to a totally new level by claiming the right to invade and occupy any country that might pose a future threat to us. Even if we “win” the Iraq War, that will never erase the fact that we’ve killed approximately a million Iraqis, made refugees out of over four million, and ruined their infrastructure. So if we “win” the war, what will we have “won”, other than the right for U.S. corporations to operate in Iraq, access to Iraqi oil, and the right to say that we “won”? David Model, in “State of Darkness – US Complicity in Genocide Since 1945”, explains why our war against and occupation of Iraq constitutes genocide:


War crimes committed by the Bush administration stem from his total disregard of the Geneva Conventions. This led to widespread indefinite detention of prisoners captured on and (mostly) off the battlefield, whose human rights were systematically abused, by the frequent use of torture and by providing them no recourse to challenge their detention.

The Bush administration tried to pretend that the acts of torture were all the result of a few ‘bad apples”, or with regard to acts that were officially condoned by the Bush administration, based on legitimate legal advice from its legal experts. However, aside from the fact that Bush and Cheney cherry picked lawyers to provide them with the advice that they wanted to hear, there was a major limitation put on the legal advice that Bush administration lawyers could provide. Philippe Sands, in his book “Torture Team – Rumsfeld’s memo and the betrayal of American values”, explains that on February 7, 2002, George Bush himself proclaimed that the Geneva Conventions would not apply to most of his detainees. All further policies in George Bush’s “War on Terror” were developed under that crucial constraint. Therefore, the use of torture and all the other many violations of the Geneva Conventions that took place during the Bush presidency are directly the responsibility of George W. Bush.


How will the Obama administration deal with this?

Now it is up to President Obama and his administration to decide how to handle this. It has both short and long term issues to deal with.

In the relatively short term it needs to decide how to deal with Bush administration crimes. With respect to that issue, Obama has said some things that show evidence of a reluctance to pursue these crimes. He has used phrases such as “If serious crimes are demonstrated….”, as if overwhelming evidence isn’t currently already available on that score. And, he has emphasized his wish to “move forward to the future” rather than “look backwards to the past”. Both of these excuses are patently absurd. The evidence of these crimes has been spelled out by numerous sources, and many books have been written about them. As far as characterizing prosecution of crimes as “looking backwards to the past”, that attitude would lead to a society where there are no punishments for any crimes and therefore no laws. Many have said this before, but it bears repeating: All crimes that require prosecution were committed in the past. Therefore, the fact that they are committed in the past provides no excuse whatsoever for not prosecuting them.

Undoubtedly, there are many political considerations weighing on President Obama with respect to this issue. He wants to be seen as “bipartisan”. And he probably fears that any efforts by his administration to prosecute Bush administration crimes will fuel a firestorm by Republicans and by the corporate news media.

The longer term issue facing the Obama administration is whether or not to reverse Bush’s obstruction of the International Criminal Court. To do that he would need to re-sign the ICC statute and seek repeal of the American Service Members’ Protection Act.

I have to admit that I have no idea where President Obama really stands on these issues. Does he really intend to ignore U.S. and international law by ruling out any potential prosecution of the Bush administration for their crimes? If so, is it just political considerations that are motivating him? Or, does he really believe that it is ok for a presidential administration to be above U.S. and international law, and for our country to be widely regarded as the bullies of the world?

It is largely President Obama’s decision. He can acknowledge that the rule of law in our country is sacrosanct and that our country is part of a community of nations that desperately need a system of international law in order to maintain peace in the world. Or he can, by ignoring the Bush administration crimes, set a precedent for enabling future presidential administrations to exhibit contempt for U.S. and international law in the firm knowledge that they can do so with impunity, and at the same time send a message to the world that the most powerful nation on earth is above international law.

If he chooses the latter option, I hope that some day soon the ICC will take the matter out of his hands by aggressively going after the Bush administration criminals.