London Mayor Tells Bush To Stay Out of Londontown — Will International Shunning Become Prosecution?

Boris Johnson, the conservative Mayor of London, has declared George Bush a persona non grata — asking him to stay out of London with his new torture-touting memoir. The question is whether such international shunning will become actual effort to prosecute Bush, who just confessed to war crimes. I discussed the controversy on Countdown.

Johnson begins his column without mincing words:

It is not yet clear whether George W Bush is planning to cross the Atlantic to flog us his memoirs, but if I were his PR people I would urge caution. As book tours go, this one would be an absolute corker. It is not just that every European capital would be brought to a standstill, as book-signings turned into anti-war riots. The real trouble — from the Bush point of view — is that he might never see Texas again.

It seems that, while our own Democratic and Republican leaders do not want to discuss torture (let alone investigate it), the Mayor of London is not keen on a former leader flogging his memoir and proudly proclaiming how he ordered the torture of suspects.

The controversy may only be the first international reaction to the book. While our media has discussed the book rather matter-of-factly as acknowledging his order to waterboard suspects, other nations take international treaties seriously and view this as an admission of a war crime.
Previously, Cheney and others were the subject of international calls for arrest after they admitted to roles in the torture program. The United States has a clear obligation to prosecute those responsible for our torture program. However, President Obama has promised to block any investigation of torturers and has stopped any investigation of those who ordered the war crime. In the absence of nations enforcing their international obligations, other nations will often set forward to enforce the rule of law.

Such claims are sometimes based on universal jurisdiction (or the universality principle) which asserts the right under public international law for any state to enforce laws against crimes outside its boundaries, regardless of nationality or country of residence of the accused. This enforcement is generally limited to such things as war crimes — viewed as a crime against all under such agreements as the Geneva Conventions and the Convention Against Torture. Obviously, such moves are controversial and subject to intense challenge. For example, one question is whether Protocol II Additional to the Geneva Conventions restricts universal prosecution of crimes to “international conflicts” to the exclusion of torture at CIA facilities or Gitmo. Ironically, Bush always emphasizes the “war on terror” as an international effort.

In addition, since we tortured foreign citizens, those countries would have grounds to issue a warrant as was the case in the arrest of former dictator of Chile Augusto Pinochet. Pinochet was arrested in London in 1998 on an order from Spanish Judge Baltazar Garzon who cited Spanish victims in Chile. Regardless of the grounds, any warrant for Bush would put Obama in an even more ignoble position on torture (if that is possible). He would have to fight an effort to enforce human rights law while blocking such enforcement at home.  We would be in the same position as Serbia in both protecting accused war criminals and resisting efforts of other countries in seeking to prosecute them.

In the meantime, Bush’s book tour schedulers may want to avoid those countries which care about human rights and focus on such natural allies as China, Iran, Syria, and Saudi Arabia.  He might want to avoid Italy, Spain, and much of Western Europe.

Cheney and Bush have now virtually dared anyone to come after them. They know that Obama has chosen politics over principle. The question is whether the shunning in London will become an actual effort in another country to issue an arrest warrant.

Currently, the debate over torture in the United States is focusing not on the use of torture but whether actual evidence derived from torture should be admissible in federal court. That was the position of Gov. Pataki in our recent debate on Hardball:

Debates of that kind send a message to other countries that we are well past any debate over the use of torture and are now arguing over the use of the fruits of torture. When combined with the Bush book and Cheney interviews, some leaders may view any enforcement of international law as up to other countries. In the absence of such enforcement, they could feel that their countries will be compromised like the United States in turning a blind eye to a war crime or a war criminal.

This brings us back to Boris Johnson. It is rather difficult to say that your country rejects torture when it is feting a former leader who has publicly admitted to ordering torture (and remains proud of it).

Jonathan Turley

100 thoughts on “London Mayor Tells Bush To Stay Out of Londontown — Will International Shunning Become Prosecution?”

  1. Mespo wrote,

    “Do Republicans believe in nothing except expediency to promote demagoguery?”


    Not all Republicans are demagogues nor do all Democrats resort to demagoguery. I respectfully request that you do not illogically generalize all Republicans in the same vein to which rcambell resorts; I expect that of him—but not of you. Yes, Pataki appears to be a demagogue in good standing; however, his preposterous statements do not characterize all Republicans.

  2. Now I do admit to having a bit of difficulty in adjusting to mespo’s latest character fantasy as I now have this mental picture of him dressed in a velvet smoking jacket, a champagne bucket full of Perrier by his side, maniacally laughing as he places a large silken handkerchief over the nose and mouth of an befuddled beer truck driver who is being forcibly restrained on the horsehair chaise in mespo’s study …. 8)

  3. Berliner,


    Primary jurisdiction rests in the same place it always has: the Office of the Attorney General of the United States and the proper venue is the Federal courts.

  4. Jim,

    you are of course right, but as far as I can tell CHIPSHIRLEY.COM’s argument is that the US isn’t/shouldn’t investigating because the ICC are “the people to talk to” and is “the appropriate body” — which I interpret as “having primary jurisdiction.”

    And this is clearly wrong: the ICC is very explicitly the “court of last resort.”

  5. I suspect CHIPS is simply seeking hits.

    However, the upside to his nonsense is: “Care to bray some more, lil’ donkey? While you’re clearly unable to understand basics, I don’t mind educating others while assisting you to look like a fool.” (Buddha)

    Thus I am learning a great deal.

    The idiotic ramblings of a few do spur on those who actually know what they are writing about which is of benefit to all.

  6. Let me also throw in a few words about the meaning(s) of the word “combatant” under the Law Of Armed Conflict (LOAC). This word has become rather confusing, even for LOAC scholars.

    The reason for this confusion (IMHO) is that there is a technical “combatant” status under LOAC, but the term is also frequently used to describe conduct, whereby somebody who is engaged in combat is referred to as a “combatant” whether or not they technically qualify for the status or not. BBB’s description is generally correct. Combatant status is generally afforded to members of the armed forces (excluding medics and chaplains) and members of a levée en masse.

    This becomes even more muddled when you speak of “unlawful combatants” because you could be describing: 1) someone who has the the status of combatant who is behaving unlawfully, or; 2) someone who participates in combat without having the status, or; 3) someone who participates without the status and further behaves unlawfully. In my opinion, only #1 is correct. Calling someone an “unlawful combatant” implies that he is a “combatant.” For this reason, the MCA was changed in 2009 from “unlawful combatant” to “unprivileged belligerent,” describing someone who does not have the privilege to engage in battle at all.

    So a member of the armed forces who violates LOAC in some way becomes an “unlawful combatant” and loses his right to POW status if captured. I believe, if I recall correctly, that this was the case in ex parte Quirin.

    Members of al-Qaeda, on the other hand, are not combatants at all, enemy, unlawful or otherwise.

    Having given BBB some props, I would also add that Jill is correct to raise the question of CIA agents. It is not clear that they are combatants either (and even if they are they do not wear uniforms, etc.). This issue has been raised several times by Harold Koh and other legal scholars, particularly in relation to the Khadr trial before the military commission. If it is a “war crime” for a non-combatant to participate in combat, then it seems that this would also make the CIA war criminals.

    I would also warn people not to rely too much on Civil War precedents, or even World War II precedents, when discussing LOAC. The current iteration of the Geneva Conventions were negotiated and ratified after those conflicts. The law does change sometimes, and LOAC is no different. For example, I frequently hear people argue that spies and saboteurs can be summarily executed (usually in furtherance of an argument that this is how “terrorists” should be treated). This might have been the law once, but it is certainly not the law now.

  7. Berliner,

    I am not sure complementarity would prevent the ICC from investigating because the USA does not, in fact, seem willing to investigate the alleged crimes. For this reason I did not mention complementarity.


    read your own link:

    “The jurisdiction of the ICC will be complementary to national courts, which means that the Court will only act when countries themselves are unable or unwilling to investigate or prosecute.”

    Unless you argue that the USA are a failed state (“unable”) or beyond the rule of law (“unwilling”) the place to trial the former administration is the US, not the Hague.

  9. Chip clearly does not know much about international criminal law.

    First, Radovan Karadžić is not being tried at the International Criminal Court (ICC), but rather at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Indeed, the ICC would not have jurisdiction over Karadžić, due to Article 11 of the Rome Statue of the ICC, which restricts jurisdiction to crimes committed after the statute entered into effect. Also, the trial of Karadžić is still ongoing, so he should say “is” instead of “was.”

    Second, his 9:30 PM comment displays more ignorance when he refers to the “World Court.” The “World Court” is the common colloquial name for the International Court of Justice, not the ICC. But that is just a small quibble.

    Third, it not likely that the ICC would have any jurisdiction over Bush or any other American. Article 12 of the Rome Statute states that the ICC may only exercise jurisdiction if the person accused is a national of a state party to the ICC, or if the crimes took place in the territory of a state party. The USA is not a state party, so the first test fails.

    The 2nd test might succeed, depending on where the torture took place.. But that test is only part of the issue. Article 13 states that the situation must still be referred to the ICC by the state party or the security council. Since that has not happened, the only other option would be for the prosecutor to open an investigation proprio motu (Article 15).

    But there are a few things that would complicate that. First, “situations” are defiend by geographic areas. That is, the Prosecutor can investigate the “situation” in Kenya, or the Congo. In this case, there is no discrete geographic area. Second, the situation must reach a certain gravity (Article 17). That likely has not been reached in any one geographic area. Simply put, the prosecutor is unlikely to open an investigation into the situaiton in, for example, Poland simply because the USA tortured a handful of people there. The ICC is designed to go after crimes of greater magnitude and gravity in discrete geographic locations.

    Finally, Chip’s whole argument that the ICC should handle this is weak anyway. The USA has an obligation under the Geneva Conventions and the Convention Against Torture to prosecute torturers.

  10. BIL:

    What type of chips do you think “CHIPSHIRLEY” is made from? Potato or Buffalo?

  11. I’m laughing my ass off at you, clown. You go on though. It’s really funny.

    As to the Hague? You don’t know what you’re talking about there either. The appropriate international venue would the ICC (International Criminal Court) which was created in 2002 specifically to address war crimes. Their ability to investigate and prosecute – either on complaint or sua sponte – is limited by the fact that the U.S. is a signatory to the Rome Statute, but hasn’t ratified the treaty, ergo domestic law doesn’t recognize it. This means any jurisdictional claims would have to be made in a jurisdiction where the ICC can claim not only legal jurisdiction, but physical jurisdiction as well. In addition to not ratifying the treaty, the U.S. has made so many Bilateral Immunity Agreements as to neuter the ICC should it be ratified. Under the Article 98 BIAs, the U.S. has no obligation to turn over current or former government officials, military personnel, and U.S. employees (including non-national contractors) and nationals to the ICC. The U.S. has used aid as a cudgel against any country that will not sign off on the BIAs. Any action by the ICC, as a matter of law at this point, would have to be sua sponte to stand a chance of success.

    Care to bray some more, lil’ donkey? While you’re clearly unable to understand basics, I don’t mind educating others while assisting you to look like a fool.

  12. Jill,

    “That definition would cover our non-uniformed combatants who work for the CIA and OGA as well as private contractors.”

    Correct me if I am wrong, but it is my understanding that the CIA, OGA, and other operatives are there with the blessing of the Afghanistan Government. Neither al Queda nor the Taliban are recognized governments capable of detaining combatants.

    “So if you plan to argue such a disingenuous and inaccurate legal argument, you’re going to have to apply it to our own people who fit the definition you outlined.”

    First: Explain how my 10:11 AM comment has the attributes of an argument.

    Second: Identify anything you find to be disingenuous or inaccurate.

  13. Cow Chip,

    What you smell is the staggering amount of crap you’re full of. Lying? If pointing out that you have no idea what you’re talking about structurally vis a vis the American government makes me a liar, then so be it, but I’m pretty sure that they taught us the differing functions and capacities of all operators within the state and Federal systems while I was in law school – a lesson you apparently missed. You don’t even know the proper roles of our governmental officials so I guess I’d rather be a liar than an ignoramus.

    And if you think your repeatedly bleating about the Hague and accusing people here of being Neocons is a come back? It’s no wonder the British lost their empire. You can’t tell your ass from a hole in the wall.

    While we’re at it? You’re not ten any more. You’re a grown man. Get a better name than “Chip”, Skippy.

  14. Jill, FACTS…

    The International Criminal Court at the Hague is the appropriate body for the trial….JUST LIKE IT WAS FOR Radovan Karadžić!

    The entire US government and congress are complicit in the crimes of war we commited in Iraq they are not the appropriate body for such a trial…

    Once again, if any of you were serious you would be addressing your grievances to the International Criminal Court at the Hague, here’s the address.

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