Francis Boyle: Judgement at Malaysian hearing may help push case at ICC; Obama in violation for not
pursuing indictment - May 22, 2012
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Francis Boyle is a Professor of Law at the University of llinois School of Law, where he currently teaches courses on Public International Law and International Human Rights. He was a part of the prosecutionteam that tried former US President George W. Bush, Dick Cheney, Donald Rumsfeld and their legal advisors in absentia in Malaysia.
PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I'm Paul Jay in Washington.There have been many attempts over the last few years to prosecute former president Bush, vice president Cheney, and other senior members of his administration for war crimes of various sorts. None of those until recently were successful. Well, one of those prosecutions has now ended up in a convictionâin absentia, of course. And that took place in Malaysia.Now joining us is one of the members of the prosecutorial team [snip] Francis Boyle. He's a professor of law at the University of Illinois school of law, where he currently teaches courses on public international law and international human rights. He was a part of the prosecution team, as I mentioned, that tried President Bushâformer president Bush, former vice president Dick Cheney, Donald Rumsfeld, their legal advisers, in Malaysia, and were successful, as I said. Thanks for joining us.FRANCIS BOYLE, PROF. INTERNATIONAL LAW, UNIV. OF ILLINOIS COLLEGE OF LAW: Well, Paul, thank you very much for having me on, and my best to your audience.JAY: Thank you. So what were the charges? And tell us a bit about the process.BOYLE: Well, the charges were twofold: first, torture, and then, second, since torture in wartime constitutes war crimes, the second charge were war crimes. There was four days of hearings by the prosecution and the defense. And then, on the end of the fifth day, the tribunal issued a unanimous judgment to the effect that Bush, Cheney, Rumsfeld, and five of their top lawyers advising them on this, including Yoo, Bybee, Haynes, and Gonzalez, Addington, were personally responsible for and guilty of torture and war crimes as defined by the Convention against Torture, to which the United States government is a party, and the four Geneva conventions of 1949, to which the United States government is a party as well.JAY: Right. Now, under whose auspices was this process held? What kind of official status did it have?BOYLE: The Kuala Lumpur War Crimes Tribunal Foundation is a private organization set up and chartered under Malaysian law. So it is a creature of Malaysian law.JAY: But most nonprofits and such can be registered with the government. But let meâwhat I'm saying is it didn't have direct government endorsement of any sort, did it?BOYLE: No, it was like a U.S. corporation being set up under U.S. corporation law. But it was not run by the government. Indeed, my guess is the current government in Malaysia probably found it to be somewhat embarrassing, since the current government in Malaysia is trying to get into good cahoots with the United States government. But I can't speak for them.JAY: And was there a defense offered? And who offered it?BOYLE: Yes, a defense team was appointed for them. It consisted of four or five Malaysian lawyers. And they did the best they could with a very difficult case, because effectively Bush, Cheney, and Rumsfeld repeatedly incriminated themselves publicly, both in their public statements and in their memoirs and otherwise, in acts of torture. So it is hard to defend people who have already incriminated themselves, but, you know, the defense did try.JAY: So what will be the effect of this? I understand you have a separate process going at the International Criminal Court. So how do these two relate to each other? And then, also, how do you have something going at the International Criminal Court when the United States is not a signatory to it?BOYLE: Well, that's correct. Over the years now, I've tried to get Bush indicted three times in Canada, working with Canadian lawyers, and then in Switzerland, where we scared Bush out of giving a speech in Switzerland because he feared prosecution. It got back to Bush that we were going to try to get him indicted in Switzerland for torture.So this is the first conviction anywhere of Bush and the rest of them for torture and war crimes. Efforts have been made in Spain and in Germany. So far as WikiLeaks points out, the United States government has applied enormous pressure to both the Spanish governments and the German governments not to prosecute. So, so far that hasn't been done. But this is the first conviction. I think it's a good sign. We will be attempting to get this conviction enforced in all other states that are parties to the Convention against Torture and all other states that are parties to the Geneva Conventions of 1949, which in fact is almost every state in the world.JAY: But the fact that this is a nongovernmental tribunal, it's going to make it rather difficult to get governments to recognize it, isn't it?BOYLE: Well, it'll be prima facie evidence of their guilt, pretty much like any other conviction around the world. If you have individuals convicted in one state, there's not necessarily any obligation by another state to prosecute those individuals. There could be an obligation to extradite if there is an extradition treaty in effect. So this is a question of enforcement of foreign judgments. It depends on treaties and statutes of the country involved. It alsoâinternational comity, principles of international legal comity.JAY: So how were you able to get something going at the ICC, and where is it at?BOYLE: Right. Well, numerous complaints have been filed against Bush and the rest of them at the International Criminal Court, but they got nowhere, because the United States government is not a party to the Rome Statute for the International Criminal Court. And I was the first one to figure out a way around this conundrum by filing a complaint against Bush, Cheney, Rumsfeld, Ashcroft, Gonzalez, Bybee, Yoo, Tenet, and Rice for their policy of so-called extraordinary rendition, which, as I pointed out to the ICC, is really a euphemism for the enforced disappearance of human beings and torture, both of which are Rome Statutory crimes. And as I pointed out to the ICC, these defendants have committed Rome Statutory crimes in Rome party states. Indeed most of Europe, where these extraordinary renditions in part took place, are parties to the Rome statute, as well as Afghanistan. And therefore I argued to the ICC that the court did have jurisdiction to prosecute them and should exercise that jurisdiction.JAY: Well, how has the ICC responded to your arguments?BOYLE: They responded to me saying they gave me a docket number, they were inquiring into the matter, and they would get back to me in writing. [crosstalk]JAY: How long ago was that?BOYLE: Pardon me?JAY: How long ago was that?BOYLE: That was two years. It's going to take time, obviously, because there's massive documentation of the extraordinary rendition policy and also the torture. So I believe they are engaging in a good-faith investigation of this complaint and I will get an answer.JAY: Why do you believe that?BOYLE: Well, because everyone before me has been rejected, and I have not been rejected in writing. They've all gotten letters from the ICC prosecutor's office saying, we don't have jurisdiction to prosecute. That did not happen to me, and they did promise a response in writing. In any event, we'll be filing the Kuala Lumpur judgment with the ICC, and I believe that will further support the complaint I already have against Bush and the rest of them.JAY: Right. Now, what is the obligation, if any, on the Obama administration in regards to all of this? I mean, when President Obama was elected, he said it's time to look forward, not back, which, you know, a lot of people have suggested that would mean no crimes of any kind would ever be punished, 'cause it's always happened already. But is there any legal obligation on the Obama administration to investigate/prosecute? And if so, the fact that they haven't, what does that mean?BOYLE: Yes, the Obama administration has all along had an obligation to prosecute Bush and the rest of them under the Convention against Torture, including U.S. implementing legislation for that convention, making torture a crime, a felony, and in some circumstances punishable by death if death has occurred, which it has, although I don't support the death penalty. But it does give you an idea of the severity of the crimes. And also the Obama administration has an obligation to prosecute these individuals under the four Geneva conventions of 1949, including the U.S. implementing legislation, the U.S. War Crimes Act. So there is an obligation by Obama to prosecute. Perhaps in a second term they might. We'll just have to see what happens.You are correct to indicate that so far they said they were looking to the forward and not to the past. I pointed out then to the ICC prosecutor that this is definitive proof that the Obama administration is not going to prosecute at this time and therefore satisfies the element known as subsidiarity, which requires the ICC to defer to the national state for prosecution before the ICC steps in. And if you already have Obama and Holder saying they're not going to prosecute, that satisfies that requirement and puts it firmly in the hands of the ICC.JAY: And is the Obama administration then itself in violation of the law by not pursuing this?BOYLE: That's correct. It's clearly in violation of the Convention against Torture and the four Geneva conventions of 1949, and, I regret to report, technically this would make them accessories after the fact to these offenses.JAY: Right. Now, you focused on torture at the Malaysia tribunals, but why not the issue of the Iraq War itself? Kofi Annanâit was little late coming, but eventually said the war was illegal. What is a bigger war crime than invading a country and killing several hundreds of thousands of people?BOYLE: Yes. Actually, we did that last November. The charge on torture and war crimes was charge two. Charge one last NovemberâI was out there for that prosecution as well. We prosecutedâwell, indicted and then prosecuted Bush and Blair for committing a crime against peace by invading Iraq. And there were, again, close to four days of hearings, there were a defense counsel, and a judgment did come back that Bush and Blair were guilty of crimes against peace for their invasion against Iraq. And we are making efforts to get that judgment enforced, too.Obviously, these things take time. Pinochet stepped down as president of Chile, and it took eight years before he was finally hauled to court there in Britain. So, you know, if you're pursuing major war criminals such as Bush, Blair, Rumsfeld, Cheney, and the rest of them, you're not going to have justice tomorrow. You know, you can take a look at the Balkans with Milosevic. I first went after him in the World Court in 1993, and finally got him indicted by the International Criminal Tribunal for the former Yugoslavia for what he did in Bosnia in 2000. So that took seven years, and he was finally on trial for these crimes. Unfortunately, he died before we were able to get a final verdict. So, you know, you have to view these things as a long-term effort.JAY: Thanks very much for joining us.BOYLE: Well, again, thanks for having me on. And my best to Real News. Keep the good work up.JAY: Thank you. And thank you for joining us on The Real News Network.
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