CHIEF PROSECUTOR OF KLWCC v GEORGE W. BUSH & 7 ORS
CASE NO. 2-CTH-2011
KLWCT 7-11 MAY 2012
Judge Lamin bin Hj Mohd Yunus (President)
Judge Alfred Lambremont Webre
Judge Tunku Sofiah Jewa
Judge Mohd Saari Yusuf
Judge Salleh Buang
Prof Gurdial Singh Nijar
Prof Francis Boyle
Miss Gan Pei Fern
Defence Team (Amicus Curiae):
Jason Kay Kit Leon
Asst Prof Dr Mohd Hisham bin Mohd Kamal
Dr Abbas Hardani
1. The Charge
1.1 The 8 accused were charged with the crime of torture and war crimes in that –
I. The Accused persons had wilfully participated in the formulation of executive orders and directives to exclude the applicability of international conventions and laws, namely the Convention against Torture 1984, Geneva Convention III 1949, Universal Declaration of Human Rights and the United Nations Charter in relation to the war launched by the US and others in Afghanistan (in 2001) and Iraq (in March 2003);
II. Additionally, and / or on the basis and in furtherance thereof, the Accused persons authorised, connived in, the commission of acts of torture and cruel, degrading and inhumane treatment against victims in violation of international law, treaties and aforesaid conventions
1.2 The indictment against the 8 Accused persons also sets out the particulars of the charge in paragraphs 1 to 22, of which paragraph 7 states that all the accused persons “are individually responsible for the crimes alleged against them” under the charge and that they “planned, ordered, committed, otherwise aided and abetted in the planning, preparation, or execution of these crimes”. None of the Accused persons personally participated in actual acts of torture or inhumane treatment of the victims but facilitated and directed the implementation of torture and inhumane treatment through the issuing of memorandums, legal opinions and directives to, among others, their subordinates. They also did not prevent the commission of these acts after knowing or being in a position to know of the perpetration of such acts and treatment.
1.3 In paragraph 5 of the particulars of the charge, it is stated that the United States is, and was at all material times, a party to the Torture Convention 1984 and the Geneva Conventions including Geneva Convention III 1949.
1.4 In paragraph 6 it is stated that the first accused, as Commander in Chief of the Armed Services, he exercised authority, direction and control over the entire Executive Branch.
1.5 In paragraph 7 it is stated that all the Accused persons are individually responsible for the crimes committed against them under this charge. The Accused persons planned, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of these crimes.
1.6 In paragraph 8 of the particulars of the charge, it is stated that the 4th to the 8th Accused persons were complicit in that they provided the legal opinions and justification for avoiding the obligations under the Convention against Torture 1984 and the Geneva Convention III of 1949, thereby facilitating the implementation of torture and inhuman conduct when it was plain that the advice they were giving was erroneous in law. They also knew that their advice, if accepted, would be acted upon.
1.7 In paragraph 9 it is stated that the first three named Accused persons were at all material times superiors and had authorised the commission of acts in violation of the aforesaid Conventions, and in any event they knew or had reason to know that their subordinates were about to commit such acts and had done so, and they had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.
1.8 Paragraph 10 sets out the authorizations issued by the first accused, with knowledge of the second accused. Paragraph 11 sets out the authorization issued by the third accused person. Paragraph 13 states that the first and second accused persons were aware of the memos, approvals and directives as aforesaid and that they would be, and were in fact, acted upon. They failed to intervene to prevent any illegal activity conducted under these memos and approvals.
1.9 In paragraph 13 it is stated that the legal opinions mentioned in paragraph 8 were relied upon by the first three named Accused Persons and then translated into memos and directives which they issued to persons in charge of dealing with detainees at prisons run by, or under the supervision of US and its officials.
1.10 In paragraph 14 of the particulars of the charge, it is stated that as a result and on the basis of these authorizations by the first to the third Accused Persons relied upon the legal opinions of the 4th to the 8th Accused Persons, war crimes (that is, acts of torture and brutal, barbaric, cruel and dehumanizing acts) were perpetrated against, amongst others, the following named victims (detainees) –
(a) Moazzam Begg of the United Kingdom (detained from January 2002 to January 2005);
(b) Rhuhel Ahmad of the United Kingdom (detained from end of 2001 to March 2004),
(c) Ali Sh. Abbas of Iraq (detained from October 2003 to March 2004);
(d) Abbas Abid of Iraq (detained from August 2005 until September 2006);
(e) Jameelah Abbas of Iraq (detained from January 2004 to June 2004).
1.11 In paragraph 15, it is stated that the detainees were subjected to a systematic pattern of abuse in the execution of these acts of torture in various detention centres. In paragraph 16, it is stated that the detainees were subjected to severe physical and mental pain, and cruel, inhuman and degrading treatment over long periods. These acts of torture etc. were designed to force the above detainees to confess to “crimes” they had no knowledge of, and / or were not involved in.
1.12 In paragraphs 18 and 19 of the charge, it is stated that these acts of torture are in contravention of the Universal Declaration of Human Rights and the Convention Against Torture 1984. These acts also constitute cruel, inhuman and degrading treatment in contravention of Geneva Convention III of 1949 on the treatment of combatants and civilians in any armed conflict and are applicable to interrogations.
1.13 In paragraphs 20 and 21 of the charge it is stated that the victims (detainees) were detained without just cause. No due process of the law was applied. They were not allowed access to justice including to legal counsel or courts of law. They were not charged in a court of law for any offence.
1.14 None of the 8 Accused persons was present at the trial although all of them had been duly notified of the charge against them in accordance with Chapter III Article 6(a) of Part 2 of the Rules of Procedure and Evidence of the Tribunal.
1.15 As provided for under Article 15 of Chapter V of the Charter, all the Accused persons were represented by amicus curiae.
2. Preliminary Objection
2.1 Before the prosecution began its opening statement, the amicus curiae filed a preliminary objection to the Tribunal’s jurisdiction to hear this case against all the accused persons.
2.2 The substance of the preliminary objection was that the Tribunal is a creature of a Malaysian statute and can only hear cases which are governed by Malaysian law or by treaties of which Malaysia is a signatory. The crimes of which the accused had been charged are not found in any Malaysian Law nor subject of any treaties of which Malaysia is a signatory.
2.3 In reply the prosecution submitted that the Kuala Lumpur War Crimes Tribunal is a tribunal of conscience exercising universal jurisdiction. Its jurisdiction to hear crimes against peace, war crimes and crimes against humanity are provided expressly in Article 7 of the Charter.
2.4 Article 4 of the Charter expressly states that the Tribunal has international legal personality and shall have such legal capacity as may be necessary for the exercise of their functions and the fulfilment of their purpose.
2.5 Having considered carefully arguments by both sides, the Tribunal ruled that it has jurisdiction to hear the charge against the accused and dismissed the preliminary objection.
3. Prosecution’s case
3.1 The prosecution made an opening statement indicating that he would call 3 witnesses who had formerly given testimony before the Kuala Lumpur War Crimes Commission and thereafter would submit statutory declarations of two witnesses who could not attend the hearing due to safety issues.
3.2 The prosecution’s first witness, Abbas Abid, a 48 year old engineer from Fallujah, Iraq, testified that he was abducted by a combined force of American forces and National Guard on August 28 2005 and then taken to the Al-Muthanna Brigade headquarters (where he was detained for 4 weeks) and later taken to the Al-Jadiria prison. On September 5, 2006, he was brought to a court where the Judge ruled that he should be set free for lack of evidence. He was subsequently released on October 2, 2006.
3.3 In his testimony, the witness said that he was tortured by his tormentors in various manner – such as being subjected to electric shocks in various parts of his body especially his genitals, hanging him from the wall with hanging weights from his genitals for long periods, threatening to sexually abuse his wife and mother after bringing them to prison, forcefully extracting his fingernails, handcuffing his hands to the back and then being hung from the wall for long hours until he fainted, etc. He also testified that a bag was placed over his head for over two months and that it was removed only when he was given food. He also testified that other detainees had similar bags over their heads for over 5 months. He also testified that no medical care was available to the detainees, and that some detainees were left to die from their injuries as a result of the torture done to them.
3.4 The prosecution’s second witness, Moazzam Begg, 41 year old British citizen, testified that he was abducted from his house in Islamabad, Pakistan, on January 31, 2002. A group of armed men in civilian clothes stormed into his house, shackled his hands behind his back, placed a hood over his head and took him to a waiting vehicle. He was then brought to a place where he was interrogated by Americans in civilian clothes. They questioned him why he was in Pakistan and Afghanistan. There were no specific allegations made against him. After being held captive in Pakistan for 3 weeks, he was moved to a US military airbase in Islamabad. The moment he was placed under US military custody, he was shackled, hooded, choked and thrown to the floor. He was carried on board a plane, strapped down over the ankles and thighs, punched and kicked, a knife pointed to his throat and threatened that his throat would be slit if he spoke out.
3.5 He was flown to Kandahar in Afghanistan, dragged out of the plane and thrown into the mud, kicked, punched and choked with his hood. He was taken to a processing area where he was continuously abused by soldiers. He was then taken to a tent where he was interrogated by two FBI officials. They asked him when was the last time he saw Osama bin Laden and Mullah Omar. The witness replied that he did not know them. He was detained in Kandahar for 6 weeks before he was moved to Bagram airbase, which was actually an airport warehouse. He was not allowed to talk, walk, stand or make any movement whatsoever.
3.6 The witness was detained in Bagram for 11 months, where he was intensely interrogated by the CIA, FBI and US military intelligence. His legs and arms were hog-tied, and was threatened that he would be sent to Egypt. Conditions in Bagram were extremely poor. Medical care was dependent upon the level of co-operation of the detainees.
3.7 In February 2003 the witness was taken to Guantanamo Bay. During the 20 hour journey from Bagram to Guantanamo Bay, the witness was shackled in a “three-piece suit” of chains. A face mask was placed on his face, together with blackened goggles and ear muffs. The journey was very painful and the witness pleaded for a sedative from the soldiers, which was given.
3.8 At Guantanamo Bay, the witness was taken to camp Echo, a maximum security detention centre, and placed in solitary confinement. He remained there for 20 months, during which time he was subjected to various forms of torture.
3.9 The same interrogators who had earlier threatened to send him to Egypt (when he was questioned by them in Bagram) later met him in his cell and threatened that if he did not sign a document which they had showed him, he would either face a summary trial which could result in execution, or he would remain in Guantanamo Bay for decades without access to anyone and without legal process. The witness said that he then signed the document, after which he was treated a little better but nevertheless remained in solitary confinement.
3.10 The witness stated that his mental state was severely affected as a result of the long periods of solitary confinement. He was given drugs to treat his depression, which he took but as a result he experienced hallucinations. In November 2004, he was removed from solitary confinement and placed in the other blocks with the other prisoners. Two months later he was released.
3.11 The prosecution’s third witness, Jameelah Abbas Hameedi, 57 year old woman, now living in Damascus, Syria, was the Head Chief of the Co-operation Unions in Kirkuk when she was abducted by American soldiers from her home on January 13, 2004. She was told that she had provided monetary assistance to the resistance.
3.12 The witness said that she was dragged by her hair out of her house at 1 am, her hands tied behind her back with wires, wearing only her night clothes. It was then the height of winter. Her home and all its contents, including her car, were completely destroyed by the soldiers.
3.13 Her head covered with a hood, the witness was then pushed into a military vehicle, where again she was kicked and treated as an animal. Soon after, she was dragged out of the vehicle and placed in a detention centre – which she subsequently discovered was part of the Kirkuk military airport.
3.14 She was then interrogated by an American in civilian clothes who wanted to know about her relationship with the Baath party. She was accused of being part of the resistance, which the witness denied.
3.15 From her detention centre at the Kirkuk military airport, the witness was later taken to another detention centre which she later came to know as being the Baghdad Airport.
3.16 The witness testified that when she was interrogated by a black American female soldier, her clothes were removed and she was asked to sit on her knees and hands. Icy water was poured on her and she was asked to crawl from one side of the wall to the other. A plastic tube, with a piece of wood inserted into the tube, was used to beat her. When she dropped to the floor, she was kicked and she started bleeding on her shoulders, back, arms and legs. She was tortured in this fashion for many hours.
3.17 She was taken to her cell and was asked to stand straight. When she leaned on the wall, she was beaten. Her wounds were not attended to by the soldiers.
3.18 On another occasion, the witness was taken to a room where her nephew (then completely without clothes) was beaten by a black American soldier on his private parts whilst she herself was beaten by a black American female soldier. As a result of the beating, a broken piece of a plastic chair (used for beating) had embedded in her feet. She was told that they would continue to be beaten until she and her nephew confessed.
3.19 The witness said that her nephew was kept naked and later taken to Abu Gharib in the same condition. The witness also testified that she was later taken to Abu Gharib, where she was given a wrist band with a number. A hood was put on her head. She was later examined by a doctor who said that she was injured and needed urgent attention. However, her interrogators refused to give her the needed medical treatment.
3.20 She also testified that she was not given proper clothing, nor given medical treatment for her injured feet. She was in Abu Gharib prison for about 6 months. She was released on June 22, 2004.
3.21 The witness stated that as a result of the beatings and cruel treatment when she was detained, she is now unable to move her left leg freely; her left arm is also similarly affected. She is still unable to wear shoes because of her old injuries. She cannot endure cold climate. Her injuries to her lower back need further medical treatment but she is unable to afford the cost of surgery.
Two statutory declarations of absent witnesses
3.22 After the three witnesses had given their evidence, the prosecution tendered two statutory declarations – the first by Ali Sh. Abbas (45 years old, currently living in Jordan) and the second by Rhuhel Ahmed (27 years old, currently living in Sandwell, England).
3.23 Ali Sh. Abbas deposed in his statutory declaration that he was on his way to the mosque in Al-Amraya on October 13, 2003 when he was arrested by American soldiers. His hands were tied at the back and a hood was placed over his head and he was taken to a small prison in a US military camp in Al-Amraya. He was told by one Captain Philips that he had received orders to arrest him but he did now know the reasons for the arrest. Two days later, he was moved to Abu Gharib prison when he was interrogated and a most cruel and degrading treatment was meted out to him.
3.24 The deponent stated that his interrogators wore civilian clothes, whilst the translator, an Afro-American, wore American army uniform.
3.25 The deponent further stated that on one occasion, the interrogators forcibly placed him on top of a carton box containing canned food. They then connected electric wires to his fingers and ordered him to stretch out his hands horizontally; then they switched on the electric power. The deponent said that he was tortured in such manner on three separate sessions. Throughout this torture session, the interrogators took photographs.
3.26 The deponent said that he was released in early March 2004.
3.27 In the second statutory declaration, the deponent said that he was detained from the end of 2001 until March 2004. He was 18 years old when he was detained. He was detained and tortured in Kandahar and later Guantanamo Bay. He was shackled, placed in solitary confinement, forced to take injections every 6 months (resulting in hallucinations), hooded and handcuffed and subjected to intense interrogations for 5 months from the middle of 2003.
Cross-examination by Amicus Curiae
3.27 The prosecution’s three witnesses were cross-examined by the Amicus Curiae as provided for under Article 20 of Chapter V (Mode of Proceedings) of Part 2 (Rules of Procedure and Evidence of the Tribunal).
3.28 At the close of the cross-examination by the Amicus Curiae, the witnesses were re-examined by the Chief Prosecutor.
Submission on statutory declaration by absent witnesses
3.29 Both sides, the prosecution and Amicus Curiae on behalf of the 8 Accused persons, submitted that the statutory declarations by the two absent witnesses are admissible pursuant to Article 24 of Chapter V of Part 2 of the Charter but they leave it to the Tribunal to decide finally on the total weight of such evidence.
4. Summary of witness’s testimony
4.1 The prosecution submitted that the testimony of the three witnesses (corroborated by the statutory declaration of the two absent witnesses) clearly show a sustained and prolonged infliction of cruel and dehumanizing course of conduct on the part of those perpetrators. The evidence adduced before the Tribunal clearly establishes the fact that the victims were subjected to severe and mental pain as a result of extreme interrogating techniques that were applied to them cumulatively and over long periods.
4.2 The prosecution also submitted that the evidence clearly shows that the American military and other personnel were involved in the arrest, abduction and torture of these witnesses. The United States was at all material times the occupying belligerent power in Afghanistan and Iraq (where these atrocities on the witnesses were carried out) and they have an obligation under the Geneva Conventions to ensure that no such acts are inflicted on these persons who are under the law “protected persons”.
4.3 The evidence also clearly shows that the witnesses in the instant case were taken prisoners in respect of the Afghanistan war as well as the Iraq war. They were held in prisons in Afghanistan (Bagram) as well as in Iraq (Baghdad International Airport and Abu Ghraib). Two witnesses in this case, Moazzam Begg and Rhuhel, were transported and detained in Guantanamo Bay.
5. Issues before the Tribunal
5.1 There are three issues for the determination of the Tribunal in the instant case –
(1) Whether the acts perpetrated against the witnesses amount to torture under the Torture Convention Act 1984;
(2) Whether the cruel, inhumane and degrading treatment meted out to the witnesses in their place of detention was in violation of Geneva Convention III and IV, 1949, and the Common Article III to the Geneva Conventions; and
(3) Who is liable for the acts of torture and the cruel, inhumane and degrading treatment meted out to the witnesses in this case?
5.2 Each of these issues is considered separately as stated below.
6. Whether the acts amounted to torture under the Torture Convention Act?
6.1 “Torture” is defined in the Torture Convention as “the intentional infliction of severe pain or suffering, whether physical or mental, by or with the consent or acquiescence of a public official”. The term “public official” includes the Head of a State.
6.2 In the Pinochet case (No. 3)  2 WLR 827, at p. 886D, the House of Lords held that the prohibition against torture is absolute. There can be no derogation from this rule, which has been long accepted as jus cogens – a peremptory norm of international law from which states cannot derogate.
6.3 Under Article 3 of the UN Declaration on the Protection of All Persons from being subjected to Torture and other Cruel, Inhumane and Degrading Treatment or Punishment of December 9, 1975, it is stated that not even exceptional circumstances can excuse torture – such as war on terror or public emergency.
6.4 The Torture Convention has been subscribed by 133 states. The United States is a party to the Convention, having implemented it through the passage of a domestic law, namely sections 2240-2340A of Title 18 of the United States Code.
6.5 In the aforesaid Pinochet case, the House of Lords said that the Torture Convention was agreed not to create an international crime which had not previously existed but “to provide an international system under which the international criminal – the torturer – would find no safe haven”.
6.6 Unlike the crime against humanity, which requires the act as part of a widespread or systematic attack against civilians as a measure of state policy, even a single act of official torture is a crime under the Torture Convention.
6.7 According to the UN Committee against Torture, which is the UN body of independent experts that implements the Convention Against Torture, the following interrogation techniques constitute torture – namely, restraining in very painful conditions, hooding under special conditions, sounding of loud music for prolonged periods, sleep deprivation for long periods, threats including death threats, violent shaking and extreme temperatures. The Committee therefore has clearly shown that the interrogation techniques authorised by the Department of Defence (as had been meted out to the witnesses in the instant case) amount to “torture” within the meaning of Article 1 of the Torture Convention.
6.8 The same UN Committee had also declared that the use of techniques such as shackling, the use of dogs and internal examinations constitute torture or cruel, inhumane or degrading treatment.
6.9 The International Committee of the Red Cross (ICRC), in its Report of February 2004 stated that the construction of the Guantanamo system, whose objective is to extract intelligence information “cannot be considered other than an international system of cruel, unusual and degrading treatment and a form of torture”.
7. Whether the acts were in violation of the Geneva Conventions?
7.1 The four Geneva Conventions were created in 1949 after World War II, setting out minimum standards that everyone must comply. Each of these 4 Conventions has three common articles, namely –
Article 1 – respect for the Convention “in all circumstances”;
Article 2 – applying the Convention not only to declared wars but also to “any other armed conflict”;
Article 3 – prescribes a minimum of humane treatment in “armed conflict not of an international character” to all civilians and non-combatants.
7.2 These three Common Articles reflect international customary law. In Hamdan v Rumsfeld (2006) 548 US 557, the United States Supreme Court had clearly stated that the Common Articles must be interpreted “as widely as possible”. Consequently the court held that the three Common Articles apply to the detainees at Guantanamo Bay.
7.3 Geneva Convention III protects all persons, whether they are captured or they surrendered, whether they are in uniform or not, and even if they do not take any part in the hostilities. In the instant case, the witnesses (victims) were abducted from the battlefields in Afghanistan and Iraq, as well as from other places (Pakistan) and then handed to the authorities in Afghanistan and Iraq.
7.4 Even if there is any doubt as to the status of any person detained, Article 5 of Geneva Convention III provides that such person “shall enjoy the protection of the Convention until such time” as the person’s status has been determined by a competent tribunal.
7.5 The evidence in this case clearly shows that the legal opinions and the advice given by the 4th to the 8th Accused persons to the first, second and third Accused persons (in that the Geneva Conventions were “obsolete”, they can be ignored, that Taliban militia are not protected, Articles 3 and 5 of Geneva Convention III may be violated) were, as submitted by the prosecution, “legally flawed”.
7.6 It is significant here to note that some years later, after the occurrence of these events inflicted on the witnesses, in January 2009 President Barack Obama had issued an Executive Order 13491 directing that when conducting investigations, no government official, employee or agent can rely any more on “any interpretation of the law governing interrogations” issued by the Department of Justice under the Bush administration.
8. Who is liable for the acts of torture, cruel, inhumane and degrading treatment?
8.1 If it is proven that an act of torture or cruel, inhumane and degrading treatment had been perpetrated against a victim by a particular individual, then that individual is personally liable under the Torture Convention and the Geneva Conventions as well.
8.2 In the case before the Tribunal, the 8 Accused persons are not the individuals who
actually committed these tortures or inflicted the cruel, inhumane and degrading treatment against the witnesses (victims) but their superiors. The question for the Tribunal to decide is therefore whether the 8 Accused persons can be made liable for the acts of their subordinates?
9. Finding a prima facie case
9.1. At the close of its case, the prosecution submitted that it has “proved beyond reasonable doubt” (sic) that all the 8 Accused persons were instrumental in inflicting torture and cruel, inhumane and degrading treatment against the witnesses (victims) that violated the Torture Convention as well as Geneva Convention III. The prosecution further submitted that the 4th to 8th Accused persons, as legal counsel advising the administration, had played a decisive role in subverting the system of international rules that should have protected all the detainees.
9.2.. In response, the Amicus Curiae for the 8 Accused persons submitted that the torture of Abbas Abid (the first witness) has not been proven to be linked to the Americans in any way by the prosecution.
9.3 In regard to the second witness (Moazzam Begg), the Amicus Curiae said that during cross-examination, it was discovered that Moazzam owned a bookstore, and had spent time at a training camp in Afghanistan. Why were these facts not disclosed in his statutory declaration?
9.4 In regard to the third witness (Jameelah), the Amicus Curiae submitted that “We have no proof that she was detained at an American facility”. He further submitted that her identification of her torturers as Americans “is also based on conjecture” from the assumption that since she was in the American part of Iraq, she was therefore assaulted by American nationals. This remains merely an assumption, and there is no actual identification, he submitted.
9.5. Turning his attention to points of law, the Amicus Curiae said that “customary international law and jus cogens are like the snake-oil of international law”. He submitted that “international law really boils down to treaties”, so forget jus cogens, and forget customary international law. States are only bound by treaties which they have signed or ratified.
9.6 The Amicus Curiae further submitted that “War is like a black hole”. After 9/11, after the war on terror, under the international law now, “Torture is OK”, because the world has changed, international law has changed.
9.7 Proving a prima facie case, compels the conclusion sought to be proven, unless evidence sufficient to rebut the conclusion is produced. The Amicus Curiae made no attempt to do so. This is clearly fatal omission on his part. In a case of trial by Jury, the burden falls on the Jurors to then decide whether the case against the accused has been proven beyond reasonable doubt see Commonwealth v. Pauley, 368 Mass. at 291-292, 331 N.E.2d at 904-906; Commonwealth v. Crosscup, 369 Mass. 228, 239-240, 339 N.E.2d 731, 738-739 (1975) Commonwealth v. Leinbach, 29 Mass. App. Ct. 943, 944, 558 N.E.2d 1003 (1990). In our present case, however, we have sufficient judicial precedents to conclude that an unrebutted finding of prima facie case amounts to proof beyond reasonable doubt see PP v. Sidek [Criminal Trial no: 47-5-1999] 31 January 2005.
9.8 In its rebuttal of the submission by the Amicus Curiae, the prosecution said that the reasoning by the Amicus is “so faulty at its core” that it should be rejected. In any case, the prosecution pointed out that the United States is a party to the Torture Convention as well as to the Geneva Conventions.
9.9 The prosecution then submitted that in presenting its case to the Tribunal it had described specific acts of breaching the Geneva Convention committed by the 8 Accused Persons but the defence had not responded to them. Neither had the defence responded to many other matters raised in the prosecution’s case.
9.10 Rebutting the Amicus Curiae’s contention that after 9/11 “Torture is OK”, the prosecution reiterated that even after 9/11 “the prohibition of torture remains absolute”. The prosecution stated that the defence can mock international customary law, but that is not the way the United States Supreme Court sees it. In the Hamdan case, the court held that the Common Article 3 of the Geneva Convention apply to Taliban and Al-Qaeda.
9.11 The prosecution also submitted in rebuttal that the stand taken by the Pentagon is that the laws of war “have not changed” since 9/11. The Pentagon has been consistent in its stand in this matter.
9.12 Having considered all the evidence adduced by the prosecution and the submissions put forward by both the prosecution and the defence, the Tribunal unanimously finds that a prima facie case has been proved and the Amicus Curiae is invited to present its case for the 8 Accused persons.
10. The defence case
10.1 Upon being invited by the Tribunal to present the defence’s case after its finding that a prima facie case has been made out by the prosecution, the Amicus Curiae informed the Tribunal that he has no more submission to make. His early submission in response to the prosecution’s case was his “final submission” on the matter.
10.2 The prosecution likewise informs the Tribunal that it has no intention to make any further submission, in the light of the stand taken by the Amicus Curiae. In the light of these statements by both the prosecution and the defence, the Tribunal adjourns the hearing, reserving its verdict – to be delivered on the following day (on 11 May, 2012).
11. Torture and War Crimes
11.1 After considering the defence case, the Tribunal finds that the prosecution established beyond a reasonable doubt that the Accused persons:
U.S. President George W. Bush and his co-conspirators
Richard B. Cheney, former U.S. Vice President
Donald H. Rumsfeld, former Defence Secretary
Alberto Gonzales, then Counsel to President Bush
David Addington, then General Counsel to the Vice-President
William Haynes II, then General Counsel to Secretary of Defense
Jay Bybee, then Assistant Attorney-General
John Choon Yoo, former Deputy Assistant Attorney-General
engaged in a web of instructions, memos, directives, legal advice and action that established a common plan and purpose, joint enterprise and/or conspiracy to commit the crimes of Torture and War Crimes, including and not limited to a common plan
and purpose to commit the following crimes in relation to the “War on Terror” and the wars launched by the U.S. and others in Afghanistan and Iraq:
(b) Creating, authorizing and implementing a regime of Cruel, Inhumane, and
(c) Violating Customary International Law;
(d) Violating the Convention Against Torture 1984;
(e) Violating the Geneva Convention III and IV 1949;
(f) Violating the Common Article 3 of the Geneva Convention of 1949.
(g) Violating the Universal Declaration of Human Rights and the United Nations
12. Joint and Individual Criminal Liability
12.1 The Tribunal finds that the prosecution has established beyond a reasonable doubt that the Accused persons are individually and jointly liable for all crimes committed in pursuit of their common plan and purpose under principles established by Article 6 of the Charter of the International Military Tribunal (the Nuremberg Charter), which states, inter alia, “Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit war crimes are responsible for all acts performed by any person in execution of such plan.” The Principles of the Nuremberg Charter and the Nuremberg Decision have been adopted as customary international law by the United Nations. The government of the United States is subject to customary international law and to the Principles of the Nuremburg Charter and the Nuremburg Decision.
13. Complainant War Crime Victims
13.1 The Tribunal finds that the prosecution has established beyond a reasonable doubt that the Accused persons have committed the crimes set out in paragraph 9 hereof, including but not limited to Torture and Cruel, Inhumane, and Degrading Treatment, against the following Complainant War Crime Victims who appeared before this Tribunal by statutory declaration and/or in person under oath:
(a) Abbas Abid;
(b) Moazzam Begg;
(c ) Jameelah Abbas Hameedi;
(d) Ali Sh. Abbas (Alias Ali Shalal);
(e) Rhuhel Ahmed.
Each of these Complainant War Crime Victims is a civilian, who was released without charge after extended periods of time, after being subjected to Torture and Cruel, Inhumane, and Degrading Treatment for which the Accused persons are criminally liable.
14. Irreparable harm and injury, pain and suffering
14.1 The Tribunal finds that the prosecution has established beyond a reasonable doubt that each of the Complainant War Crime Victims has suffered irreparable harm and injury, and pain and suffering due to the criminal acts of the Accused persons, as set out in their respective sworn testimony and statutory declarations presented at the Trial.
15. Absolute prohibition on Torture and Cruel, Inhumane and Degrading Treatment
15.1 The Tribunal finds there is an absolute prohibition on Torture and on Cruel, Inhumane and Degrading Treatment in international law and in the relevant laws and regulations of the United States of America and of the U.S. Army (including Army Field Manual 2710), all of which were violated by the Accused persons. As stated by Prof. Jordan J. Paust in “The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions,” Valparaiso Law Review, Vol. 43, Number 4, Summer 2009, “Torture is a form of treatment of human beings that is absolutely prohibited under various forms of customary and treaty-based international law in all social contexts. Other forms of treatment that are absolutely prohibited and often proscribed in the same international instruments that outlaw torture include prohibitions of cruel, inhuman, and degrading treatment.”
15.2 The Tribunal finds that the prosecution has marshalled a substantive and powerful array of international and United States legal precedents to support this view. By contrast, counsel for the Accused, as Amicus Curiae, has tendered no legal authority to support his view that “After 9/11, torture is OK”. Nor has the amicus curiae offered any substantial legal precedent supporting the views taken by the Accused persons in their respective memoranda, executive orders, and directives, and legal opinions giving rise to their crimes of Torture and Cruel, Inhumane, and Degrading Treatment.
15.3 The prosecution has noted that in Ex parte Pinochet (No 3)  2 WLR 827 at p. 886 D, English House of Lords, “the prohibition of torture is absolute, jus cogens, and is a peremptory norm of international law from which states cannot derogate.” In that case, Lord Hope states that torture by public officials is “without doubt…regarded by customary international law as an international crime.” Exceptional circumstances such as war, instability, public emergency, cannot excuse torture. Article 3, UN Declaration on the Protection of All Persons from being subjected to Torture and other Cruel, Inhumane, and Degrading Treatment or Punishment.
16. 1984 International Convention of the Law of Torture (the “Torture Convention”)
16.1 The United States is party to the Torture Convention (2340-2340A Title 18 USC). As the prosecution has pointed out, the Torture Convention defines ‘torture’ as ‘the intentional infliction of severe pain or suffering, whether physical or mental, by or with the consent or acquiescence of a public official.’ As established in Ex parte Pinochet, “The definition [of Torture in Article 1 of the Torture Convention] is so wide that any act of official torture, so long as it involved severe pain or suffering, would be covered by it.”
16.2 Exculpatory reasons – The prosecution has established that the exculpatory reasons by which the Accused persons attempted to shield themselves from criminal liability for their acts under the Torture Convention are not valid. A party to the Torture Convention may not unilaterally redefine what torture means, nor limit its meaning to a specific physiological outcome such as failure of an organ. The prosecution has established that “the acts of the Accused persons are so grave as to constitute Torture under the Torture Convention”. The prosecution clearly established that the Memorandum by the Attorney General’s office dated Aug. 1, 2002 was legally flawed in advising that the United States had an “understanding” that torture was limited to “extreme forms of cruel and inhuman treatment”. The prosecution notes that “reservations to the Convention under Articles 28 and 30 do not extend to the right to redefine torture’.
17. Violations of the Geneva Conventions
17.1 The prosecution has established that the Accused persons have violated Common Article 3 of the Geneva Conventions with respect to the Complainant War Crimes Victims. The U.S. War Crimes Act (18 U.S.C. 2441) criminalizes acts outlawed by Common Article 3 in the United States. The U.S. Supreme Court in Hamdan v. Rumsfeld (2006) 548 US 557 applied the protections of Common Article 3 to detainees held at the U.S. base at Guantanamo, Cuba. Relevant parts of Common Article 3 bind the United States against “(a) cruel treatment and torture” and “(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment”. “A regularly constituted court affording all the judicial guarantees which are recognized indispensable by civilized peoples” must precede any sentences. “The wounded and sick shall be cared for.”
17.2 The prosecution has demonstrated beyond a reasonable doubt that “the US Executive branch, as represented by the President, the Vice-President, and the Defense Secretary [and their respective Accused counsel], intended by a conscious and wilful act not to treat the prisoners [including the Complainant War Crime Victims] in accordance with the Geneva Conventions.”
18. Breaches of the Geneva Conventions
18.1 The prosecution has established beyond a reasonable doubt that the acts of the Accused persons against the Complainant War Crime Victims constitute breaches of the Geneva Conventions, including but not limited to the following, as set out by the prosecution and not refuted by the amicus curiae:
(a) Infliction of cruel treatment in violation of Article 3, Geneva Convention III, including sleep deprivation;
(b) Outrages against personal dignity in violation of Article 3, Geneva Convention III, such as enforced nudity for up to 2 weeks;
(c) Torture in violation of Article 3, Geneva Convention III;
(d) Failure to protect prisoners from intimidation in violation of Article 13, Geneva Convention III;
(e) Use of weapons against prisoners in violation of Article 42, Geneva Convention III;
(f) Close confinement in violation of Article 21, Geneva Convention III;
(g) Inadequate heating and lighting in violation of Article 25, Geneva Convention III, including severely chilled interrogation rooms, 24 hour lighting, dark prisons;
(h) Habitual diet ignored in violation of Article 26, Geneva Convention III, including forced eating of food against religious norms;
(i) Causing death of prisoners in violation of Article 3; Geneva Convention III;
(j) Mutilation of prisoners in violation of Article 3; Geneva Convention III;
(k) Reckless endangerment of health of prisoners in violation of Article 13, Geneva Convention III, including suggesting suicide to a prisoner;
(l) Denial of medical care in violation of Article 15, Geneva Convention III;
(m) Inadequate nutrition in violation of Article 26, Geneva Convention III;
(n) Inadequate recreational opportunities in violation of Article 38, Geneva Convention III;
(o) Transfer of prisoners to countries practicing torture in violation of Article 20, Geneva Convention III;
(p) Failure to notify prisoners in advance of transfer in violation of Article 48, Geneva Convention III;
(q) Failure to allow prisoners to complain about captivity conditions in violation of Article 78, Geneva Convention III;
(r) Confinement without daylight in violation of Article 48, Geneva Convention III;
(s) Punishment exceeding 30 days in violation of Article 90, Geneva Convention III;
(t) Disciplinary punishment without information regarding the offence in violation of Article 96, Geneva Convention III;
(u) Failure to try prisoners in a regularly constituted court in violation of Article 3, Geneva Convention III;
(v) Failure to publicly state and inform how prisoners are to be treated in violation of Article 63, Geneva Convention III;
(w) Failure to transmit legal documents from or to prisoners and denial of visits by lawyers to prisoners in violation of Article 77, Geneva Convention III;
(x) Failure to put prisoners on trial in impartial tribunals and pronouncing guilt before a trial, leading to the resignation in protest by eight U.S. military attorneys;
(y) Imposing moral or physical coercion to induce admissions of guilt in violation of Article 99, Geneva Convention III, including informing a Complainant War Crime Victim her daughter would be raped and her son imprisoned if she did not confess, and being falsely told her daughter has been shot;
(z) Failure to provide speedy trials in violation of Article 30, Geneva Convention III;
(aa) Gross denial of due process in violation of Article 103, Geneva Convention III;
(bb) Absolving liability for redress of grave breaches under Article 130 in violation of Article 131, Geneva Convention III;
(cc) Failure to allow prisoners to complain to the United Nations in violation of Article 78, Geneva Convention III;
(dd) Carrying out experiments to test the level of stress of human beings in violation of Article 13, Geneva Convention III;
19. Accused U.S. President George W. Bush
19.1 The prosecution has proved beyond a reasonable doubt that the Accused U.S. President George W. Bush is guilty of war crimes, as Mr. Bush:
“(a) Issued orders [such as a memorandum dated February 7, 2002 declaring al-Qaeda prisoners were outside the protection of the Geneva Conventions] authorizing treatment that would constitute a war crime;
“(b) Intended these orders be acted upon;
“(c) Had knowledge these orders were indeed acted upon;
“(d) Knew that the US was violating the Torture Convention and the Geneva Conventions and failed to intervene to prevent these violations.” See also Rasul v. Bush 2004 No. 03-334 S.C. US, January 14, 2004; Hamdan v. Rumsfeld (2006) 548 U.S. 557; Boumediane v. Bush 553 US 723 (2008).
20. Accused Richard B. Cheney, former U.S. Vice President
20.1 The prosecution has proved beyond a reasonable doubt that Accused Richard B. Cheney, former U.S. Vice President, “had knowledge of what was going on and in particular that the orders issued by Mr. Bush and Mr. Rumsfeld were issued and acted upon. [Mr. Cheney] was part of the policy makers in this regard. He plainly knew that there were violations of the Torture Convention and/or the Geneva Convention III and failed to intervene to prevent such activity.”
21. Accused Donald H. Rumsfeld, former Defence Secretary
21.1 The prosecution has established beyond a reasonable doubt that Accused Donald H. Rumsfeld, former Defence Secretary has issued Memoranda and Action Memoranda that were central to the common plan and purpose, joint enterprise and/or conspiracy of the Accused persons to commit the crimes Torture and War Crimes. These include, and are not limited to, a Memorandum for the Joint Chiefs of Staff dated 19 January 2002 “approving the ‘advice’ given to him by legal counsel Accused John Yoo and Robert Delabunty dated 9 January 2002 that CIA was free to ignore the Geneva Conventions as they did not apply to suspected al Qaeda and Taliban detainees.” The prosecution also has established beyond a reasonable doubt that Mr. Rumsfeld was “directly and personally” involved in the development of 18 techniques of enhanced interrogation that are tantamount to torture, and used at Guantanamo, Iraq, and Afghanistan. See also Rasul v. Bush 2004 No. 03-334 S.C. US, January 14, 2004; Hamdan v. Rumsfeld (2006) 548 U.S. 557; Boumediane v. Bush 553 US 723 (2008).
22. Accused persons Alberto Gonzales, then Counsel to President Bush; David Addington, then General Counsel to the Vice-President; William Haynes II, then General Counsel to Secretary of Defense; Jay Bybee, then Assistant Attorney General; John Choon Yoo, former Deputy Assistant Attorney-General
22.1 The prosecution has established beyond a reasonable doubt that the above Accused persons, all lawyers, gave ‘advice’ that “the Geneva Conventions did not apply [to suspected al Qaeda and Taliban detainees]; that there was no torture occurring within the meaning of the Torture Convention, and that enhanced interrogations techniques, [constituting cruel, inhumane, and degrading treatment,] were permissible.” This advice was “flawed legal advice” as determined by Alberto J. Mora, General Counsel to the U.S. Navy. See also Hamdan v. Rumsfeld (2006) 548 U.S. 557.
22.2 The prosecution has established beyond a reasonable doubt that the Accused lawyers “knew full well their advice was being sought to be acted upon, and in fact was acted upon, and such advice paved the way for violations of international law, the Geneva Conventions and the Torture Convention.” The Accused lawyers’ advice was binding on the Accused Bush, Rumsfeld and Cheney, each of whom relied on the Accused lawyers’ advice. Others, such as CIA Director George Tenet and Diane Beaver, officer in charge at Guantanamo, relied on the Accused lawyers’ advice. The Accused lawyers came to the U.S. base at Guantanamo, Cuba before the list of enhanced interrogation techniques was compiled.
22.3 The prosecution had established beyond a reasonable doubt that the Accused lawyers are criminally liable for their acts, and for participating in a joint criminal enterprise. “Legal advisors who prepare legal advice that is so erroneous as to give rise to an international crime are themselves subject to the rules of international criminality.” See Alstotter case; Prosecutor v Tadic, Case No. IT-94-1-A Appeal Judgment, 15 July 1999 [Tadic Appeal Judgment]; Prosecutor v. Krnolejac, Trial Chamber, March 15, 2002.
23. The verdict
23.1 After considering the evidence adduced by the prosecution and submissions by both the prosecution and the Amicus Curiae on behalf of the 8 Accused persons, the Tribunal is satisfied, beyond reasonable doubt, that all the 8 Accused persons are guilty as charged.
23.2 The Tribunal finds the Accused persons:
U.S. President George W. Bush and his co-conspirators
Richard B. Cheney, former U.S. Vice President
Donald H. Rumsfeld, former Defence Secretary
Alberto Gonzales, then Counsel to President Bush
David Addington, then General Counsel to the Vice-President
William Haynes II, then General Counsel to Secretary of Defense
Jay Bybee, then Assistant Attorney General
John Choon Yoo, former Deputy Assistant Attorney-General
Guilty as charged and convicted as war criminals for Torture and Cruel, Inhumane and Degrading Treatment of the Complainant War Crime Victims.
23.3. Reparations – The Tribunal orders that reparations commensurate with the irreparable harm and injury, pain and suffering undergone by the Complainant War Crime Victims be paid to the Complainant War Crime Victims. While it is constantly mindful of its stature as merely a tribunal of conscience with no real power of enforcement, this Tribunal finds that the witnesses in this case (being victims placed in detention illegally by the 8 convicted persons) are entitled ex justitia to the payment of reparations by the 8 convicted persons and their government. It is the Tribunal’s hope that armed with the Findings of this Tribunal, the witnesses (victims in this case) will, in the near future, find a state or an international judicial entity able and willing to exercise jurisdiction and to enforce the verdict of this Tribunal against the 8 convicted persons and their government. The Tribunal’s award of reparations shall be submitted to the War Crimes Commission to facilitate the determination and collection of reparations by the Complainant War Crime Victims.
23.4 International Criminal Court, United Nations, Security Council – As a tribunal of conscience, the Tribunal is fully aware that its verdict is merely declaratory in nature. We have no power of enforcement, no power to impose any custodial sentence on any one or more of the 8 convicted persons. What we can do, under Article 31 of Chapter VI of Part 2 of the Charter is to recommend to the Kuala Lumpur War Crimes Commission, which we HEREBY DO, to submit this finding of conviction by the Tribunal, together with a record of these proceedings, to the Chief Prosecutor of the International Criminal Court, as well as the United Nations and the Security Council.
23.5 Commission’s Register of War Criminals – Further, under Article 32 of the same Chapter, this Tribunal recommends to the Kuala Lumpur War Crimes Commission that the names of all the 8 convicted persons herein be entered and included in the Commission’s Register of War Criminals and be publicized accordingly.
23.6 The Tribunal recommends to the War Crimes Commission to give the widest international publicity to this conviction and grant of reparations, as these are universal crimes for which there is a responsibility upon nations to institute prosecutions if any of these Accused persons may enter their jurisdictions.
23.7 Before we end these proceedings, the Tribunal wishes to place on record its appreciation to counsel in both the prosecution team and the defence team for their diligence and dedication in the conduct of this most difficult case in the realm of public international law.
Dated this 11th day of May 2012, at Kuala Lumpur Malaysia.
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President- Judge Lamin bin Hj Mohd Yunus Judge Alfred Lambremont Webre
Judge Tunku Sofiah Jewa Judge Mohd Saari Yusuf