HRfC: Text of Indictment of GW Bush

Human Rights for Change calls on the Attorney General of Ireland
to indict George W. Bush for War Crimes

Should you wish to endorse this call for GW Bush to be indicted on arrival in Ireland please contact info@humanrightsforchange.org

Human Rights for Change calls on the Attorney General of Ireland
to indict George W. Bush for War Crimes

Press Release

21st June 2004

Human Rights for Change calls on the Attorney General of Ireland, Mr. Rory Brady, S.C., to indict George W. Bush for war crimes and serious human rights abuses, upon his arrival in Ireland next weekend. In a six-page indictment, the Galway-based human rights group have outlined the case for charging the current President of the United States with serious crimes arising from the ongoing war in Iraq.

The indictment demands that the Attorney General bring the accused to trial, in accordance with Ireland’s domestic and international legal obligations. As commander in chief of the United States Armed Forces, George W. Bush bears responsibility for United States troops inflicting torture and inhuman and degrading treatment on detainees in Iraq, in violation of the UN Convention Against Torture.

Ill-treatment of Iraqi detainees violates the United States Government’s treaty obligations under international humanitarian law and international human rights law, amounting to grave breaches of the Geneva Conventions of 1949.

Human Rights for Change reminds the Attorney General of the Government’s legal obligations under the Geneva Conventions Act of 1962, to indict, try and punish any person responsible for a grave breach of the Geneva Conventions (Section 3).

A failure of the Attorney General to indict George W. Bush during his visit to Ireland on the 25th/26th June would demonstrate an unwillingness on behalf of the Irish State to uphold the fundamental provisions of international human rights and humanitarian law. Human Rights for Change urges the Attorney General to abide by Ireland’s domestic and international legal obligations and indict George W. Bush.


Contact:

Telephone: 00.353.86.3596320 / 00.353.87.6987141
info@humanrightsforchange.org
www.humanrightsforchange.org



Human Rights for Change
Organisation for the Protection and Promotion of Human Rights

Human Rights for Change is a group of human rights activists and international legal scholars who seek to promote the protection of human rights through reporting and documenting human rights issues, increasing awareness through the dissemination of information, advocacy and lobbying, creative action, education, monitoring the media and by providing legal assistance, in particular to NGOs in the developing world. This group believes that global inequalities and imbalances can be redressed through the protection and promotion of universal human rights.

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INDICTMENT
GEORGE W. BUSH

HUMAN RIGHTS FOR CHANGE DEMANDS THAT THE BELOW-MENTIONED ACCUSED BE BROUGHT TO TRIAL BY THE ATTORNEY GENERAL OF IRELAND, IN ACCORDANCE WITH THE
IRISH GOVERNMENT’S DOMESTIC AND INTERNATIONAL LEGAL OBLIGATIONS

ACCUSED: GEORGE W. BUSH
President of the United States of America
Commander in Chief of the United States Armed Forces
(Inaugurated on 20th January 2001).

DATE: 18TH JUNE 2004

RELEVANT FACTS AND APPLICABLE LAW:

EVIDENCE OF US TROOPS INFLICTING TORTURE, INHUMAN AND DEGRADING TREATMENT ON DETAINEES IN OCCUPIED IRAQ HAS BEEN PROVIDED BY THE INTERNATIONAL COMMITTEE OF THE RED CROSS, AMNESTY INTERNATIONAL, HUMAN RIGHTS WATCH, IN ADDITION TO THE REPORTS OF JOURNALISTS AND MEDIA CORRESPONDANTS. SUCH PRACTICES ARE ALSO DOCUMENTED IN INTERNAL REPORTS OF THE US MILITARY. THE US SECRETARY FOR DEFENCE, DONALD RUMSFELD, HAS FURTHERMORE ACKNOWLEDGED THE ABUSE OF PRISONERS BY US TROOPS IN IRAQ.

THE ILLTREATMENT OF THOSE DETAINED IN IRAQ BY US ARMED FORCES VIOLATES THE US GOVERNMENT’S TREATY OBLIGATIONS UNDER INTERNATIONAL HUMANITARIAN LAW, AS WELL AS INTERNATIONAL HUMAN RIGHTS LAW.

UNDER THE DOCTRINE OF COMMAND RESPONSIBILITY PROVIDED FOR BY INTERNATIONAL HUMANITARIAN LAW, PRESIDENT GEORGE W. BUSH AS COMMANDER-IN-CHIEF OF US ARMED FORCES MAY BE HELD CRIMINALLY RESPONSIBLE FOR THE ACTS OR OMISSIONS OF HIS SUBORDINATES.

HENCE, IN ACCORDANCE WITH SECTION 3(1) OF IRELAND’S GENEVA CONVENTIONS ACT 1962, COMMON ARTICLE 1 OF THE GENEVA CONVENTIONS OF 1949 AND ARTICLE 36 OF THE VIENNA CONVENTION ON LAWS OF TREATIES OF 1969, HE IS HEREBY CHARGED WITH THE FOLLOWING CRIMES:

COUNTS 1-3: Grave Breaches of the Geneva Conventions of 1949, Punishable Under Section 3 Of The Geneva Conventions Act 1962

 In holding a position of superior authority over US armed forces in Iraq, George W. Bush is criminally responsible for the acts of his subordinates. These acts include:

Count 1: Torture or inhuman treatment of prisoners, conducted in a widespread and systematic manner.

Count 2: Wilfully causing great suffering or serious injury to body or health.

Count 3: Wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in the third Geneva Convention of 1949.

 In failing to prevent or punish the perpetration of these crimes committed by troops under his command, George W. Bush is guilty of Grave Breaches of the Geneva Conventions of 1949.

• Serious violations of international humanitarian law have taken place in Iraq since the commencement of hostilities by the armed forces of the United States of America, United Kingdom & others (Coalition Forces) against Iraq, from 20th March 2003. The situation in Iraq involves a military occupation to which international humanitarian law, as well as The Hague Regulations of 1907 are applicable. Both the Third and the Fourth Geneva Convention are applicable to the conflict. The United States of America ratified the Geneva Conventions of 1949 on 2 August 1955.

• An International Committee of the Red Cross (ICRC) report drew the attention of the Coalition Forces to serious violations of international humanitarian law that had been observed and documented while visiting detained Iraqis between March and November 2003. The main violations of international humanitarian law as described by the ICRC in the report included the following:

- Brutality against protected persons upon capture and initial custody, sometimes causing death or serious injury;
- Absence of notification of arrest of persons deprived of their liberty to their families causing distress among persons deprived of their liberty and their families;
- Physical or psychological coercion during interrogation to secure information;
- Prolonged solitary confinement in cells devoid of daylight;
- Excessive and disproportionate use of force against persons deprived of their liberty resulting in death or injury during their period of internment;
- Seizure and confiscation of private belongings of persons deprived of their liberty;
- Exposure of persons deprived of their liberty to dangerous tasks;
- Holding persons deprived of their liberty in dangerous places where they are not protected from shelling.


COUNT 4: Violations of the UN Convention Against Torture

Count 4: In addition to the aforementioned violations of international humanitarian law, complicity in the practice of torture is also charged under Articles 4 and 5(2) of the UN Convention Against Torture.


• Ireland ratified the Convention Against Torture (CAT) on 11th April 2002. The United States of America ratified CAT on 21st October 1994. Article 1(1) of CAT provides that for the purposes of this Convention, ‘torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’

• According to Article 2(2) of the CAT, ‘no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.’ Article 2(3) of the CAT states that ‘an order from a superior officer or a public authority may not be invoked as a justification of torture.’ According to Article 6(1) of CAT, ‘upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.’ Article 6(2) of CAT states that any such State which takes a person into custody or takes any other legal measures to ensure his presence shall immediately make a preliminary inquiry into the facts.

ANNEX I
International Law and Immunity for Heads of State

• The prohibition of torture, inhuman and degrading treatment in international law is a recognised norm of jus cogens (a mandatory norm of general international law from which no two or more nations may exempt themselves or release one another).

• Although the International Court of Justice has interpreted the existence of diplomatic immunity for sitting Heads of State in the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), 14 February 2002 case, it should be noted that the decisions of this Court are only binding on the states concerned in each case and its statute does not provide for precedent. While the decision may be viewed as an interpretation of the law, it does not provide persuasive reasoning for immunity on the grounds of official capacity.

• Article 27 of the Rome Statute of the International Criminal Court confirms the irrelevance of official capacity:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

• Neither the Geneva Conventions nor the Convention Against Torture recognize that a current head of state may be immune from being held accountable for their violations of either the Grave Breaches system or for other acts of torture.

• This is reflected in the Irish implementing legislation outlined above and the only deference to a possible immunity is section 3(3) of the GENEVA CONVENTIONS ACT 1962 which confers discretion on the Irish Attorney General to permit or prevent the institution of proceedings under Section 3 relating to Grave breaches of the Geneva Conventions. Given the charges detailed in this indictment, permitting George W. Bush to visit Ireland with impunity would suggest unwillingness on behalf of the Irish State to uphold the fundamental provisions of international human rights and humanitarian law.

ANNEX II
Relevant Provisions of Irish legislation

Geneva Conventions of 1949

• Section 3(1) of the GENEVA CONVENTIONS ACT 1962 as amended by the GENEVA CONVENTIONS (AMENDMENT) ACT 1998, states that ‘Any person, whatever his or her nationality, who, whether in or outside the State, commits or aids, abets or procures the commission by any other person of a grave breach of any of the Scheduled Conventions or Protocol I shall be guilty of an offence.’

• Section 3(1a) states that ‘any person, whatever his or her nationality, who, whether in or outside the State, fails to act, when under a duty to do so, to prevent the commission by another person of a grave breach of any of the Scheduled Conventions or Protocol I shall be guilty of an offence and on conviction on indictment shall be liable to imprisonment for a term not exceeding 10 years.’

• Furthermore Section 3(2) of the ACT states that ‘in the case of an offence under this section committed outside the State, a person may be proceeded against, indicted, tried and punished there or in any place in the State as if the offence had been committed in that place, and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that place.’

• Section 3(3) of the ACT requires that ‘proceedings for an offence under this section shall not be instituted except by, or on behalf of, or with the consent of the Attorney General.’

United Nations Convention Against Torture

• Section 2(1) of the CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 states that ‘a public official, whatever his or her nationality, who carries out an act of torture on a person, whether within or outside the State, shall be guilty of the offence of torture.’

• Section 3 of the ACT states that ‘a person, whatever his or her nationality, whether within or outside the State, who-
(a) attempts to commit or conspires to commit the offence of torture, or
(b) does an act with the intent to obstruct or impede the arrest or prosecution of another person, including a person who is a public official, in relation to the offence of torture,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.’

ANNEX III:
Select List of Sources

United Nations High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights and Follow-up to the World Conference on Human Rights: The Present Situation of Human Rights in Iraq, E/CN.4/2005/4, 9 June 2004. Available at http://www.unhchr.ch/html/hchr/docs/iraq1.pdf

Human Rights Watch, Bush Policies Led to Abuse in Iraq, June 9, 2004. Available at http://hrw.org/english/docs/2004/06/09/iraq8785.htm.

International Committee of the Red Cross, Report of the International Committee of the Red Cross (ICRC) on the Treatment by Coalition Forces of Prisoners of War and Other Protected Persons by Geneva Conventions in Iraq during Arrest, Internment and Interrogation, February 2004. Available at http://download.repubblica.it/pdf/rapporto_crocerossa.pdf.

Human Rights Watch, Bush Administration Lawyers Greenlight Torture: Memo Suggests Intent to Commit War Crimes, June 7, 2004. Available at http://hrw.org/english/docs/2004/06/07/usdom8778.htm.

Human Rights Watch, Summary of International and U.S. Law Prohibiting Torture and Other Ill-treatment of Persons in Custody, May 24, 2004. Available at http://hrw.org/english/docs/2004/05/24/usint8614.htm.

Roth, Kenneth, ‘Time to Stop “Stress and Duress”’ Washington Post, Thursday, May 13, 2004; Page A29. Available at http://www.washingtonpost.com/wp-dyn/articles/A22623-2004May12.html

Human Rights Watch, Human Rights Groups write to President Bush about Iraqi Prisoners: Directors urge immediate action to end abuse of detainees in Iraq and elsewhere, 7 May 2004. Letter available at http://hrw.org/english/docs/2004/05/10/usint8566.htm

Human Rights Watch, Timeline of Detainee Abuse Allegations and Responses, May 7, 2004. Available at http://hrw.org/english/docs/2004/05/07/usint8556.htm.

Amnesty International, USA: Pattern of Brutality and Cruelty - War Crimes at Abu Ghraib, 7 May 2004. Available at http://web.amnesty.org/library/Index/ENGAMR510772004?open&of=ENG-IRQ.

Amnesty International, An open letter to President George W. Bush on the question of torture and cruel, inhuman or degrading treatment, 7 May 2004. Available at http://web.amnesty.org/library/Index/ENGAMR510782004?open&of=ENG-IRQ.