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From my admittedly patchy reading. It would be easier to prosecute virtually anwhere other than the USA.

Well lets start with Geneva

US CODE: Title 18,2441. War crimes

(a) Offense.-- Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. (b) Circumstances.-- The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act). (c) Definition.-- As used in this section the term "war crime" means any conduct-- (1) defined as a 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; (2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907; (3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or (4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Now Cheney falls under the act being a national of the United States (unless he manages to become Paraguayan by the time Bush is out of office) But honestly Bush is more likely to fall under the scope of this act unless there is a real solid paper trail, as theoretically Cheney is outside the chain of command. But several acts are definite war crimes under the terms of the Geneva convention.(although once again, a lawyer may argue that as there is no longer a war this may not apply.

Under the Fourth convention relating to the treatment of Civilians I think that a few people in the administration would be in trouble under article 3(1)a

International Humanitarian Law - Fourth 1949 Geneva Convention

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

And as we know that several prisoners in Abu Ghraib (and I think Guantanamo) have died then under US law then the death penalty comes into play.

Could Iraq extradite?

UN Convention Against Torture

  1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

Iraq has an extradition treaty with the US, ratified in 1936, so according to the convention,  Thats a big yes. and I'm sure theres film of Bush and Cheney talking about the legality and fairness of the Iraqui legal system, at the time of the execution of Sadam Hussein, so the avoidance of extradition would be a touch convoluted.

There are Three things that give a state authority over torture cases.

UN Convention Against Torture

  1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
  2. When the alleged offender is a national of that State;
  3. When the victim was a national of that State if that State considers it appropriate.

So any state whos nationals have been tortured has a legal possibility of extraditing any of the gang. So the legal nationality status of Guantanamo isn't really relevent if an external country wishes to extradite.(I've regularly asked, and never got a satisfactory answer as to wether presidential pardons cover extradition. I cant find anything that says they do, but I may just not have read enough)

As to the ICC, i'd have to pass on that. I do know that the ICC only steps in if the nation involved finds it impossible to proceed with a court case, or refuses to prosecute. (in that case its generally hard to lay your hands on the defendant) so the ICC becoming involved would only happen if Obama refuses to prosecute.

The second part probably needs more than the amateur legal mind than I posess. But I will have a look if you want.

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Mon Jan 12th, 2009 at 10:53:27 AM EST
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