Prosecuting High-level Americans for War Crimes

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says "the whole world is watching" efforts in the United States - highlighted at a recent conference at Andover - to bring U.S. high-level civilians and/or generals to justice for crimes committed in the Iraq and Afghanistan wars....



On September 13-14, 2008, over two hundred people from the United States and abroad gathered in Andover. Massachusetts for the Justice Robert Jackson Conference on the Planning for Prosecution of High Level American War Criminals sponsored by the Massachusetts School of Law. Video of the two day conference and the program are available here. As a participant, I'm providing this note to JURIST as an aide-memoire for those concerned about war crimes perpetrated by US officials that have gone unpunished over the past eight years.

Impeachment of Bush-Cheney

Notwithstanding Speaker of the House Nancy Pelosi's statement that impeachment of the most senior member of the Administration is off the table, the impeachment of President George W. Bush and Vice-President Dick Cheney was very much on the table at the conference. In particular, it was noted that the time remaining for the Bush-Cheney administration is about the same time as it took for the impeachment of President Clinton. Moreover, the idea of a post-January 2009 impeachment of Bush and/or Cheney was raised so that they would be barred from any Federal office (such as work on federal commissions etc that prior-Presidents and Vice-Presidents have done) if the impeachment were successful. Beyond Bush and Cheney, a suggestion was made to impeach Judge Jay Bybee of the Ninth Circuit because of his enabling of torture in the now infamous Bybee-Yoo "torture memo."

Local, state and federal criminal prosecution


Local efforts such as the Brattleboro, Vermont, ordinance that calls for the arrest on sight of Bush and/or Cheney if they enter the city limits were discussed. One particular scenario examined by participants was to charge Bush and Cheney with murder of U.S. soldiers who have died in the Iraq and Afghanistan war under state law. Vincent Bugliolsi and others examined the possibilities for such criminal prosecution in state court. A candidate for Attorney General in Vermont, Charlotte Dennett, advised that if she were elected she would consider opening state murder prosecutions against Bush and Cheney. One strategy that was discussed was the possibility of having hundreds of local DA's of the 2700 in the United States start those prosecutions in municipal courts. These state criminal prosecutions would put pressure or make it easier for a federal district attorney to find the fortitude to open federal criminal complaints against United States high-level civilians and/or generals for murder and torture and/or cruel inhuman or degrading treatment. Evaluation of a broad range of potential crimes including such crimes as obstruction of justice, criminal use of classified documents, etc and the other crimes that typically catch high-level civilians was encouraged in an effort to find ways to vindicate international law rules through the domestic courts. The use of common law courts in places, such as Florida, was examined as a means to turn revisionist international law theory to the advantage of those seeking prosecution by asserting customary international humanitarian and human rights law violations as common law applicable in state courts prosecutions. The Federal Assimilated Crimes Acts could also make federal charges on customary international law grounds a possible avenue for criminal prosecution.

Foreign and international prosecution

The participants analyzed the status of and possibilities for foreign prosecution of U.S. high-level civilians and/or generals in foreign domestic courts under universal jurisdiction. The recent failed efforts in Germany and France with regard to Rumsfeld were noted. It was pointed out, however, that we should take advantage of the fact that more and more countries are enacting universal jurisdiction legislation. Efforts in England against similar persons in the English political establishment were noted. One of the more interesting tactics described started with over 200 citizens going to their local police stations in England and reporting a crime had been committed - referring to the Iraq War or torture. The police have a duty to investigate and this is a manner in which the ordinary citizen in England could get the wheels of justice rolling.

As to international prosecution, the participants discussed the possibility of referrals to the International Criminal Court of United States high-level civilians and/or generals based on crimes committed in countries which adhere to the ICC. It was noted that prosecutors in a number of foreign countries have based their politically motivated dismissals of complaints against high US officials on the mistaken notion that the accused would be prosecuted in the US (the principle of complementarity) as well as on incorrect theories of immunity. The view discussed at the conference was that domestic U.S. efforts and foreign and/or international efforts for criminal prosecution should go forward at the same time so as each can help the other advance as fast as practicable.

State licensing complaints

Complaints to state licensing authorities for psychologists and lawyers were examined as a means to sanction those who are considered to have broken the law and betrayed their professional oaths.

Political will for prosecution

Many people were shocked by the tactics used by police against demonstrators at the Denver and St. Paul political conventions. It appears that room for dissent in the United States has been significantly narrowed. Notwithstanding this state of affairs, ideas for action to build the political will for criminal prosecution of American war criminals abounded. A march of lawyers on the Justice Department - taking inspiration from the lawyers in Pakistan - was suggested to assert the need to take back the Justice Department and have it now enforce the law instead of flout it. Creative methods of demonstrations by diverse groups to encourage criminal prosecution were discussed. T-shirt campaigns, support of local and national candidates, a plethora of ideas blossomed in the discussions.

To help in thinking about 17 specific directions in which efforts could go, it was proposed that a Central Committee be created to try to coordinate the diverse activities related to developing more political will and developing the criminal prosecutions. Participants at the conference are reaching out to persons and organizations who have been fighting to support the rule of law the past eight years in civil cases or in political action, in order to help all aspects of the effort to criminally prosecute these high-level civilians and generals. The Central Committee has already held its first telephone conference and links are being developed with all organizations and persons of goodwill who will support this effort.

While many thought that prosecutions would now have to wait until the next administration, none thought that a future Republican of Democratic Administration could be counted on to pursue criminal prosecution. The need for citizens to take up the call and pressure the powers at the local, state and national level to take up criminal prosecution and/or impeachment was acutely felt.

It became abundantly clear to all present that "the whole world is watching" efforts in the United States to bring U.S. high-level civilians and/or generals to justice through criminal prosecution. These ordinary citizens appeared willing to take up the challenge - even if it takes years - of building the political will and getting the successful prosecutions completed. We must remember that there is no statute of limitations for murder and for many international crimes. Rather than despair, the participants recognized that they need to be determined, disciplined, and prepared to deal with agents provocateurs used by brilliant adversaries in this effort.

Benjamin Davis is a professor at the University of Toledo College of Law
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