The U.S. isn't likely to try Bush administration officials for war crimes--but it's likely that a European country will.
After a couple of false starts at the end of the Civil War and World War I, the idea of prosecuting prominent policymakers as war criminals was launched after World War II, when the historic tribunals convened in Nuremberg and Tokyo. Significantly, one of those cases involved lawyers whose crimes included the preparation of legal memoranda explaining how the leadership could dispense with the troublesome requirements of the Geneva and Hague Conventions in dealing with detainees. The Nuremberg proceedings inspired the special purpose tribunals created for Cambodia, Yugoslavia, and Rwanda, among others, and laid the groundwork for the International Criminal Court.
But the questions hanging over efforts to enforce the law of war with respect to political leaders remain. Only extremely unusual circumstances will lead a country to try one of its own leaders for war crimes. Curiously, the Bush administration is responsible for the most prominent recent case: the prosecution, before a U.S.-financed and -advised special court in Baghdad, of Saddam Hussein and a number of his senior lieutenants.
Is it likely that prosecutions will be brought overseas? Yes. It is reasonably likely. Sands's book contains an interview with an investigating magistrate in a European nation, which he describes as a NATO nation with a solidly pro-American orientation which supported U.S. engagement in Iraq with its own soldiers. The magistrate makes clear that he is already assembling a case, and is focused on American policymakers. I read these remarks and they seemed very familiar to me. In the past two years, I have spoken with two investigating magistrates in two different European nations, both pro-Iraq war NATO allies. Both were assembling war crimes charges against a small group of Bush administration officials. "You can rest assured that no charges will be brought before January 20, 2009," one told me. And after that? "It depends. We don't expect extradition. But if one of the targets lands on our territory or on the territory of one of our cooperating jurisdictions, then we'll be prepared to act."
Viewed in this light, the Bush Administration figures involved in the formation of torture policy face no immediate threat of prosecution for war crimes. But Colin Powell's chief of staff, Colonel Larry Wilkerson, nails it: "Haynes, Feith, Yoo, Bybee, Gonzales and--at the apex--Addington, should never travel outside the U.S., except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In the future, some government may build the case necessary to prosecute them in a foreign court, or in an international court." Augusto Pinochet made a trip to London, and his life was never the same afterwards.
The Bush administration officials who pushed torture will need to be careful about their travel plans.
I think once the criminals are ensconced in a heavily fortified compound in Paraguay they will be beyond the reach of all but Special Ops. Tom Clancy described exactly how to get 'em all with one round in Clear And Present Danger.