At the end of what was only a week-long hearing, during which the judges heard witness accounts about suffering in the hands of US soldiers and contractors, including those detained at the notorious Abu Ghraib prison, the five-panel tribunal unanimously delivered guilty verdicts against Bush, Cheney, Rumsfeld and their key legal advisors who were all convicted of committing the war crime of torture and cruel, inhumane and degrading treatment.
Francis Boyle, professor of international law at the University of Illinois College of Law in America, who was part of the prosecution team, noted: “We tried three times to get Bush in Canada but were thwarted by the Canadian Government, then we scared Bush out of going to Switzerland. The Spanish attempt failed because of the government there and the same happened in Germany.” The complaints that were meant to be filed against Former President Bush under Swiss law, on initiative of the Center for Constitutional Rights and TRIAL, were suspended due to the cancellation of Bush’s trip to Switzerland. Swiss law requires the presence of the individual on its soil in other to enable the submission of a complaint under its recently amended international crimes law.
The KLWCC, also known as the Kuala Lumpur War Crimes Tribunal, is a Malaysian institution established in 2007 to provide an alternative option to the International Criminal Court (ICC), having been deemed as inaccessible due to its prosecutorial politics and political pressure from its state parties. The Malaysian institution is a tribunal of conscience as its decisions are merely declaratory, as such it is not a fully-constituted domestic judicial body as per international standards. Despite this, the Tribunal put considerable emphasis on compliance with international standards, as head of the Prosecutor, Professor Gurdial Singh Nijar, noted: “The tribunal was very careful to adhere scrupulously to the regulations drawn up by the Nuremberg courts and the International Criminal Courts”. The purpose behind this careful adherence to international standards it seems was to allow for full transcripts of the charges, witness statements and other relevant material to be sent to the Chief Prosecutor of the International Criminal Court, as well as the United Nations and the Security Council. President of the Tribunal Lamin told a packed courtroom:
“As a tribunal of conscience, the Tribunal is fully aware that its verdict is merely declaratory in nature. The tribunal has no power of enforcement, no power to impose any custodial sentence on any one or more of the 8 convicted persons. What we can do, under Article 31 of Chapter VI of Part 2 of the Charter is to recommend to the Kuala Lumpur War Crimes Commission to submit this finding of conviction by the Tribunal, together with a record of these proceedings, to the Chief Prosecutor of the International Criminal Court, as well as the United Nations and the Security Council.”
The president of the tribunal Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin, found that the prosecution had established beyond a “reasonable doubt that the accused persons, former President George Bush and his co-conspirators engaged in a web of instructions, memos, directives, legal advice and action that established a common plan and purpose, joint enterprise and/or conspiracy to commit the crimes of Torture and War Crimes, including and not limited to a common plan and purpose to commit the following crimes in relation to the “War on Terror” and the wars launched by the U.S. and others in Afghanistan and Iraq.”
A report in a New Zealand newspaper also notes:
It found that the prosecution had proven beyond reasonable doubt that the accused lawyers, gave ”advice” that “the Geneva Conventions did not apply (to suspected al Qaeda and Taleban detainees); that there was no torture occurring within the meaning of the Torture Convention, and that enhanced interrogations techniques, (constituting cruel, inhumane, and degrading treatment,) were permissible.”
The prosecution also established beyond reasonable doubt that the accused lawyers “knew full well their advice was being sought to be acted upon, and in fact was acted upon, and such advice paved the way for violations of international law, the Geneva Conventions and the Torture Convention.”
This turn of events asks an important question about the principle and practice of universal jurisdiction and the function of the mechanisms of international criminal justice, which should be activated when domestic jurisdictions are unwilling or unable to prosecute international crimes in accordance with international standards, as per the principle of complementarity behind the establishment of the ICC. Despite the fact that the KLWCC is not part of the the Malaysian judiciary, the transfer of international crimes cases from domestic judicial bodies to the ICC is a question that merits further examination. Neither theory, nor practice provide any guidance on how the international criminal law principle of complementarity interplays with the obligations of the High Contracting Parties to the Geneva Conventions to prosecute or extradite perpetrators of grave breaches of the Conventions, akin to war crimes. This paradigm is what is commonly referred to as the principle of universal jurisdiction. Indeed, this might be an important step for exploring further avenues for triggering the involvement and jurisdiction of the ICC in cases that continue to be out of bound for its jurisdiction due to insurmountable political pressures.