Will George W Bush ever face justice in America?

By Khaled Diab

Is there any chance that George W Bush will ever face indictment for his alleged war crimes and crimes against humanity?

January 2009

In the court of popular global opinion, George Bush and the other architects of the invasion and occupation of Iraq – including the vice-president, Dick Cheney, and the former defence secretary, Donald Rumsfeld – are widely viewed as war criminals. That is one reason why last month's famous shoe-throwing incident was greeted as a heroic act of defiance by millions. But will this symbolic booting-out be the only consequence Bush will face for his dire actions, or is there hope that justice can be served for the many victims of his war-mongering?

All indications point to the probability that when Bush hands over the reins to Barack Obama on 20 January, he will not only get off scot-free, but he will also thrive. Like his father before him, and despite his own dismal business track record and allegations of murky dealings, he may well pursue a lucrative career in the influence-pedalling industry as a “consultant” for investment and oil companies.

But wouldn't it be great if, rather than spending his post-presidential silver years cashing in on his stint in the White House, he would be made to pay for the crimes against humanity he instigated?

Before we consider the possible avenues to justice, let's briefly recount the various charges against him. Most fundamentally, the Bush administration's decision to invade two sovereign nations unprovoked should be enough to indict him under international law, although the situation is a little more blurred in the case of Afghanistan under the Taliban. And protestations of ‘pre-emptive' defence hold no legal water.

Benjamin Ferencz, a Nuremburg chief prosecutor, expressed his opinion that Bush's 2003 war of aggression against Iraq constituted “the supreme international crime“. This is what has been known since the Nuremberg trials as a crime against peace.

Then there's the charge of crimes against humanity, another pillar of international law. In this instance, legal experts argue that the war's opening ‘shock and awe‘ campaign alone – with its thousands of civilian casualties, wholesale destruction of civilian installation, and severe traumatising and terrorising of an entire population – counted as a serious crime against humanity.

Principle VI of the Nuremberg conventions outlaws the “wanton destruction of cities, towns, or villages”, while Article 48 of the Geneva conventions demands that parties to a war “shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives”, which clearly did not happen during shock and awe. Torture – including waterboarding, sensory deprivation and complete isolation – which has been controversially endorsed by the Bush administration at Guantanamo Bay, also counts as a serious war crime.

Now that we have established a powerful case against Bush and the other architects of the Iraq war, what are the possible avenues for prosecution?

With no prosecution on the horizon in the United States, jurisdiction should automatically shift to the International Criminal Court. However, the US is one of only seven countries that has refused to sign up to the ICC, despite its support of the court's indictment of the Sudanese president, Omar al-Bashir.

With this international avenue blocked off, another possible avenue would be to take advantage of the Geneva conventions's ‘universal jurisdiction‘ to bring a case against Bush in another country.

Belgium, before it watered down and then effectively abolished its own courageous and controversial war crimes law, could have been a good place to take legal action. In fact, there had been attempts in Belgium to prosecute George Bush, as well as other leaders, including Israel's Ariel Sharon, Palestine's Yasser Arafat and Cuba's Fidel Castro.

Spain and Canada also have universal jurisdiction laws on their books, but I doubt that courts there will hear a case against the Bush administration after the diplomatic fury Washington unleashed against Belgium.

Although no American president has ever been convicted of war crimes, the US legal system may actually provide the most promising avenue for pursuing legal action. US law prohibits American nationals from committing any “grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party”.

Now what we need is a few brave lawyers to throw down the legal gauntlet. If justice is done, it will send a powerful message that it is not just the defeated and weak who face punishment for their crimes. It will also dissuade future US leaders from believing they can launch wars of aggression with impunity and go a step towards repairing confidence in American justice.

This column appeared in The Guardian Unlimited's Comment is Free section on 14 January 2009. Read the related discussion.