I am very reluctantly coming to believe that there's about a 50% chance that a senior administration official will face a war crime trial either for ordering or condoning torture, or for the excessive bombing and civilian casualties in Iraq. I think it's most likely to happen after the official leaves office. It might be in absentia. It could be in Belgium, or in Germany, or (least likely) an international ad hoc tribunal. Already, SecDef Rumsfeld has had to cancel a trip to Germany to avoid the risk of prosecution.
Belgium recently changed its law to make it very difficult to launch war crimes prosecutions against foreign officials, and the supreme court there recently dismissed an attempted lawsuit against Bush. But meanwhile, a significant segment of Belgian public opinion appears to subscribe to the sentiment symbolized by this Wanted poster issued by a Belgian activist group:
Recall that the International Criminal Court agreement (.pdf) (to which the US is not a party) would prohibit these sorts of trials against our officials so long as we set our own house in order. But we are not doing that.
I wonder how long it will take the new Iraqi government to join the ICC? Joining would give the ICC jurisdiction over all actions on Iraqi soil dating after the accession. Regardless of whether they were committed by Iraqis. Then again, joining the ICC without agreeing to exclude jurisdiction against US forces would run Iraq into retaliation from the US: the US has halted military assistance to several nations that have refused to sign 'Article 98 agreements' by which they promise not to surrender US nationals to the ICC.
Update: If I had to bet right now, I'd bet it's the wanton harm to civilians (which I suspect is vastly underreported in the US) that would be most likely to trigger a trial, not the prisoner abuse. But should these allegations of systematic rape in captivity, coupled with claims that the Pentagon is stonewalling by trying to avoid inquiries prove to be true, that might alter the odds.
PS. As noted in the comments, my intent in this particular post was to be positive, not normative. Under what circumstances if any a foreign war crimes trial of a former US President or Cabinet official could ever be be a good thing is very hard for me to think coherently about, as I so passionately want the US to act in a way that makes the whole question absurd.
That one responsible for educating young American minds in the workings of our laws endorses subjecting US citizens to legal regimes under no obligation to respect our Constitution and Bill of Rights speaks volumes to the state of legal education in this country. We have three branches of government, no fourth over which the people have no control. It really is that simple. Linking to a .pdf on the Internet does not make the illegitimate legitimate.
You’ve tipped your hand. The truth must be that you can swallow antidemocratic behavior, just not that of the American right. But if it comes from the continent home to factories of liberal ‘isms then it must be enlightened and good? Freedom’s core is a faith in the people, not the elites. Europe is moving backwards in this regards, not forwards.
The answer to constraining our military excesses, if such indeed exist, lies here at home. Abandoning a domestic solution is a surrender, a sign of weakness from the left, and a most bizarre thing for an american law professor.
“Endorses”? Where? That was an attempt at positive not normative analysis: it was a prediction, not a piece of advocacy.
Universal criminal jurisdiction for crimes committed by individuals against jus cogens norms of the law of nations is not some recent invention “from the continent home to factories of liberal ‘isms”; it is a settled legal principle, one which has its origins in the longstanding notion of the pirate as “hostis humani generis.” (See, for example, 3 Co. Inst. *113, 4 Bl. Comm. *71, and U.S. Const., Art. I, sec. 8, cl. 10, which gives to Congress the power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” It can hardly be supposed that the Framers intended to give to the United States the power to punish offenses erga omnes committed extraterritorially unless they assumed that this was a power which any nation might rightfully exercise.)
One can disagree with the implementation of this concept in the Belgian and German laws, and one can argue about the applicability of the factual situation to US officials, but the general principle is surely black-letter law, and admitting it and arguing from it hardly amounts to positing a covert “fourth branch of government.”
If, as is clear, Bush and the rest of the war criminals in his administration will never face justice in the United States, then only the “Pinochet” option remains open. The Belgians tried to nail Tommy Franks but then they caved when we threatened to take the NATO headquarters away from them. I don’t think the Germans will be as easy to deal with, especially since the German judicial system is even more independent of executive influence than is the U.S. system. It will be the ultimate test of whether or not the U.S. is truly a nation of laws when a German court issues an extradition warrant for Bush, Rumsfeld and Gonzales to bring them to trial for “waging aggressive war” (the main crime for which the Nazis were hanged at Nuremberg”) and for conspiracy to violate the Geneva Conventions by setting up their torture regime around the world. The German courts certainly won’t lack evidence of their criminality.
This should have been done with Nixon, Kissinger, and McNamara, but better late than never.
I know it’s a fantasy to think that Bush and his cabal might pay the Pinochet price (but then who would ever have thought he’d be nabbed?), but I’d like to think that at the very least these criminals will be afraid to travel to any country outside the U.S. that has an extradition treaty with Germany.