Features | Society | Southeast Asia

Bush and Cheney on Trial

The Kuala Lumpur War Crimes Tribunal accuses George W. Bush and Dick Cheney of war crimes. They are serious accusations, but this isn’t a serious court.

For decades, critics have politely pointed to Malaysia as a country of parallel universes. Laws separate race and religion, and people who live and work side by side are forced to coexist within different worlds as defined by successive UMNO coalitions and at times enforced by the courts, civilian and Islamic.

Prime Minister Najib Razak has attempted to change this. He has announced a series of political and economic reforms that he and the reformers in his United Malays National Organization (UMNO) hope will make Malaysia a fairer and more competitive place.

The initiatives, however, haven’t stopped protestors like the Bersih movement from campaigning for free and fair elections. They also fear Malaysia won’t change, and will instead slip back to its autocratic ways, which found real traction under Najib’s predecessors, in particular former premier Mahathir Mohamad. His style of autocracy has never been far from the surface of Malaysian political life and was again on display in Kuala Lumpur in recent weeks when political mischief went on show in the guise of putting Western leaders in the dock through a court with no jurisdiction or legitimacy other than it being backed by Mahathir, who attended the hearings.

As an eye witness to war in Afghanistan and Iraq and the wanton destruction caused elsewhere by the War on Terror, I can testify to the sheer ferocity of the conflicts. There’s little doubt that a legal case against Western leaders for their behavior throughout the first decade of this century could be made. But the Kuala Lumpur War Crimes Tribunal (KLWCT) is certainly not the answer.

In its final round of hearings, the KLWCT has found former U.S. President George W. Bush along with another seven associates guilty of crimes of torture.

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It said the eight accused – Bush; former Vice President Dick Cheney; former Defense Secretary Donald Rumsfeld; former counsel to Bush, Alberto Gonzales; former general counsel to the vice president, David Addington; former general counsel to the defense secretary, William Haynes II; former Assistant Attorney General Jay Bybee and former Deputy Assistant General John Yoo – had engaged in a web of instruction and directives leading to a common plan, purpose and conspiracy to commit crimes of torture and war crimes in relation to the War on Terror as conducted in Iraq and Afghanistan.

Among the evidence provided, Abbas Abid testified his fingernails had been pulled out with a pair of pliers. Moazzam Begg told how he was kept in a hood, beat and locked away in solitary confinement.

The tribunal says Bush, Cheney and Rumsfeld were aware that the U.S. had violated the 1984 Torture Convention and the Geneva Conventions but they had failed to intervene. This came after legal opinions asserted in their defense that the Geneva Conventions didn’t apply to suspected al-Qaeda and Taliban detainees and that as such there was no torture occurring within the meaning of the Torture Convention. As a result, interrogation techniques which included cruel, inhumane and degrading treatment, were actually allowed.

Unanimously, under KLWCT President Lamin Mohammad Yunus, a bench of five judges ruled the prosecution had proved beyond reasonable doubt charges of crimes of torture in accordance with Article 6 of the Nuremberg Charter. The court says it was following the Nuremberg model.

People inside the court also like to compare the KLWCT with the Russell Tribunal, established by the British philosopher Bertrand Russell and his French counterpart Jean-Paul Sartre to evaluate American foreign policy in North and South Vietnam after the defeat of French forces at Dien Bien Phu in 1954.

The KLWCT wouldn’t be described as a kangaroo court if it had any form of legitimacy. It does not.

But when following the proceedings in the mainstream press or through the national wires one could be forgiven for thinking that this tribunal ranks alongside the Khmer Rouge Tribunal in Cambodia or similar international courts established to try those responsible for tragedies in Rwanda, Lebanon and the former Yugoslavia.

Indeed, the coverage has been unquestioning and has found friends elsewhere. The Tehran Times, for example, trumpeted the Malaysian verdict as: “It’s official – George W. Bush is a war criminal.”

It was a second KLWCT conviction for Bush. He and former British Prime Minister Tony Blair were last November found guilty in absentia of committing “crimes against peace” during the Iraq war after a four day hearing. It then said: “Unlawful use of force threatens the world to return to a state of lawlessness. The acts of the accused were unlawful.”

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Mahathir stepped down in 2003 after 22 years in power and after limiting his country’s involvement in global attempts to track down and weed out Islamic terrorists in the aftermath of the September 11, 2001 attacks on New York and Washington.

He branded Bush and Blair as “child killers.” Then, in 2007, he announced plans to establish the KLWCT and the Kuala Lumpur Foundation to Criminalize War (KLFCW) with about as much gusto as he had mustered when announcing Malaysia’s sponsorship of Formula One racing in the mid-1990s.

Both organizations fall under the Kuala Lumpur War Crimes Commission (KLWCC). Following the latest verdicts, Mahathir derided his fellow Malaysians in business and politics saying he was shocked that “war criminals” had been invited to visit the country and apparently – unsure of his own legal ground – asked whether local police had the power to arrest such people for war crimes.

The police and most other people of legal and political clout are doing their best to ignore Mahathir’s efforts to create a ceremony upon which to stand. Blair’s “conviction” didn’t stop David Cameron from becoming the first British Prime Minister in 20 years to visit Malaysia, in March. Nor has it stopped Najib from forging closer ties with the West, and that includes broadly backing Washington and its stance over Iran’s nuclear program.

The findings of the tribunal will be submitted to the International Criminal Court, the United Nations and the Security Council and Mahathir is hoping the names of the accused will be entered into the Register of War Criminals and thus legitimize his homespun legal system and backyard court.

“In a way, of course those who attended these proceedings can learn a lot about international law and the laws of the United States,” he was quoted as saying by the local press, adding the panel had listened carefully to both the defense and the prosecution.

Malaysia has, though, had issues with Mahathir’s comprehension of the separation of powers. It was a point of contention with the Malaysian Bar Council for most his tenure as the country’s leader.

War crimes tribunals are a complex affair. They take years not days and are also transparent – this includes budgets, funding, mandates, the legal brinkmanship and often the excessive bickering and politicking that inevitably accompanies such trials, whether at Nuremburg after World War II or the tribunals currently underway in Cambodia or The Hague.

Old habits die hard in Malaysia. The spokesman for the KLWCC also happens to be prosecutor Aravant Singh who would only say that the tribunal receives funds from the public. A tribunal source added that this included corporate donations. The list of donors was not made public.

Asked who had mandated the tribunal, he said in a statement: “The tribunal is set up under the KL War Crimes Charter. It is a people’s initiative – a tribunal of conscience. As such the issue of jurisdiction is universal in the sense that peoples initiatives are across borders as regards war crimes.”

He said the tribunal also followed a failure by international institutions in handling the U.S. and U.K. with regards to the “unlawful invasion of Iraq on unjustified and unsupported claims of Weapons of Mass Destruction after more than 240 complaints were filed with the International Criminal Court (ICC).

“The U.S. war on terror and the invasion of Afghanistan and Iraq resulted in massive deaths and unlawful detentions and torture. But there has been no international sanction,” he says.

Mahathir’s antics and the unconventional tactics of the KLWCT simply detract from tribunals where very serious issues are being dealt with, such as the genocides in Cambodia and Rwanda. Despite their flaws (and there are many) they hold a recognition backed by a U.N. mandate that legitimizes their investigations, prosecutions and findings among the public and victims they serve.

The Kuala Lumpur tribunal holds none of these characteristics. Mahathir is an old political stager and may have had his day in court, which should delight him. But to be clear in regards to Bush, Blair and the War on Terror, no one else has legitimately had theirs.

The author has written extensively on war crimes tribunals.