Senior Bush Officials Must Be Prosecuted For Torture Says U.N. Human Rights Expert

On Wednesday, Ben Emmerson, the United Nations special rapporteur on human rights and counter-terrorism, clarified the international law related to the war crimes revealed in the Senate Torture Report. According to Raw Story, Emerson issued the following statement in Geneva:

“As a matter of international law, the U.S. is legally obliged to bring those responsible to justice. The U.S. Attorney General is under a legal duty to bring criminal charges against those responsible.”

While Emmerson welcomed the belated release of the report and appreciated the Obama administration “for resisting domestic pressure to suppress these important findings,” he disagrees with the United States unwillingness to prosecute:

“It is now time to take action. The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.”

In fact, Emerson believes that because criminal behavior took place at the highest levels of the Bush administration, it is even more important that criminal charges are pursued:

“The fact that the policies revealed in this report were authorized at a high level within the U.S. government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.”

The Obama administration, on the other hand, has a “look forward, not backward” perspective on the war crimes committed by the previous administration. Even though detainees were waterboarded, threatened with sexual assault, stripped naked, made to wear diapers, force-fed by way of a rectal tube, and received death threats both personally and against their families, the Department of Justice has made it clear that no one will be prosecuted.

Emerson asserts that, according to international law, the Obama administration must prosecute. International law prohibits the Obama administration from granting immunity to public officials who have engaged in acts of torture. Torture is an international crime, and if the United States will not prosecute, he added, the perpetrators may be prosecuted by any other country to which they travel.

The international community has limited jurisdiction when it comes to bringing charges against people when their home country is unwilling to bring them to trial for their actions, but options do exist.

The International Criminal Court (ICC) is the first permanent, treaty-based international criminal court. It was established in 1998, and its seat is in the Netherlands at The Hague. The purpose of the court is to adjudicate cases against those who carry out serious crimes of concern to the international community. The court is independent and not associated with the United Nations.

While the United States is not a member of the ICC, some of the war crimes noted in the Senate Intelligence Committee report were committed in countries that are ICC members. International Business Times spoke with national security experts who confirm that U.S. officials can be tried by the ICC for war crimes that took place in those countries.

University of Illinois College of Law Professor, Francis Boyle, filed a complaint against Bush, Cheney, Rumsfeld, Rice and others with the ICC in 2010. Boyle reports that the case was accepted by the court and that its status is pending. He hopes that the recently released Senate Intelligence Committee report will convince an ICC prosecutor to open an official investigation. Boyle explained the importance of the Senate Intelligence Committee report to IBT:

“This is important because now we have an official branch of the U.S. government adopting and making these findings fact,” Boyle said. “In addition to ICC prosecution, this now will help us pursue these individuals around the world [through the UN Convention Against Torture]. All states signed to that convention, of which the U.S. is one of them, is required to have domestic legislature in place to prosecute torture. It does seem that if any of these individuals go outside of the U.S., we can go after them.”

However, Karen Greenberg, the director of the Center On National Security at Fordham University’s School of Law, is skeptical about meaningful action developing through the ICC:

“I think it’s possible they’ll try to file papers, but the actual likelihood of an ICC case coming to fruition is further evidence that international law only goes so far,” said Greenberg. “But I think that it will send a chill through to a number of these top level officials about traveling.”

Greenberg believes the Senate Intelligence Committee report will be more influential as a point of discussion within the United States:

“It puts the burden on the U.S. to face this and have a discussion,” Greenberg said. “One, [the current government] has to raise the possibility of prosecution. They might decide to not go down that road, but I think they need to raise that possibility and look into it. And two, they’re going to have to rethink oversight over intelligence community and rethink how that can be done with such a secret and guarded entity.”

Senior Bush administration officials recalibrated the moral compass of America during their eight year reign. As Dick Cheney put it in an interview with NBC just days after the 9/11 attacks, “We also have to work, though, sort of the dark side, if you will.” They turned America into a country that embraces torture and entertains an ‘ends justify the means’ stance on foreign policy.

The consequences have been disastrous. The torture described within the pages of the Senate Intelligence Committee report was not only brutal and inhumane, but completely ineffective. America can no longer hold the moral high ground when approaching other nations about their human rights abuses. We have made it easier for our enemies to recruit followers to fight against us.

We are no longer the nation that we once were. To regain moral authority, we have one option: prosecute those involved in the US torture program for their crimes. If the Obama administration does not prosecute and the international community is unable to attain justice, we have set a dangerous precedent. There is no accountability. While President Obama has rejected the practice of torture, who’s to say a that future president will not once again embrace it?