Richard Clarke, the counter-terror czar during the early years of the Bush presidency who resigned after the Iraq invasion, made the accusation during an interview
with Democracy Now! that will air next week.
Host Amy Goodman asked: "Do you think President Bush should be brought up on war crimes [charges], and Vice President Cheney and [Defense Secretary] Donald Rumsfeld, for the attack on Iraq?"
"I think things that they authorized probably fall within the area of war crimes," replied Clarke. "Whether [prosecution] would be productive or not, I think, is a discussion we could all have."
Clarke continued: "We have established procedures now with the International Criminal Court (ICC) in The Hague, where people who take actions as sitting presidents or prime ministers of countries have been indicted and have been tried. So the precedent is out there to do that sort of thing."
"I think we need to ask ourselves whether or not it would be useful to do that in the case of members of the Bush administration. It's clear that the things the Bush administration did-- in my mind, at least, it's clear that some of the things they did were war crimes," Clarke added.
In Clarke's mind, and according to applicable international and domestic law, the actions of high-ranking Bush administration officials in regard to the Iraq invasion itself, as well as specific US actions therein, meet or exceed the definition of "war crimes."
"From our point of view and the UN Charter point of view, it was illegal," then-United Nations Secretary-General Kofi Annan said
of the US-led invasion on behalf of the United Nations Security Council in 2004.
The United Nations Charter, a binding treaty signed by the United States, prohibits "threat or use of force against the territorial integrity or political independence of any state." Without a Security Council mandate, the invasion, occupation and regime change in Iraq were illegal, as many world governments
, even those from nations participating in the war, realized at the time.
The International Military Tribunal at Nuremberg, established by the United States and its allies to deliver justice to Nazi war criminals after WWII, called such acts of aggression "an evil thing."
"To initiate a war of aggression... is not only an international crime, it is the supreme international crime, differing from other war crimes in that it contains within itself the accumulated evil of the whole," the tribunal declared.
In the case of Iraq, "the accumulated evil of the whole" included extrajudicial killings, illegal imprisonment (sometimes of innocent female relatives
of wanted insurgents), torture
-- both authorized
and otherwise-- and other violations of domestic and international law.
Among these laws are the War Crimes Act of 1996
(US), Torture Victim Protection Act of 1991
(US), Federal Anti-Torture Statute
(US), United Nations Convention Against Torture
and the Geneva Conventions
, which the Bush administration infamously said did not apply to individuals captured during the War on Terror because they were "enemy combatants" and not prisoners of war.
Benjamin B. Ferencz, one of the chief US prosecutors at Nuremberg, stated in 2006 that not only should Saddam Hussein be tried for war crimes, but also George W. Bush for waging war without the blessing of the UN Security Council.
"A prima facie case can be made that the United States is guilty of the supreme crime against humanity, that being an illegal war of aggression against a sovereign nation," said
Ferencz. He continued, rejecting the Bush doctrine of 'preventive war'
"The United Nations charter has a provision which was agreed to by the United States, formulated by the United States, in fact, after World War II. It says that from now on, no nation can use armed force without the permission of the UN Security Council. They can use force in connection with self-defense, but a country can't use force in anticipation of self-defense... The US was impatient, and decided to invade Iraq-- which was all pre-arranged, of course. So the United States went to war, in violation of the charter."
The Geneva-based International Commission of Jurists (ICJ) determined
that the Iraq invasion was neither an act of self-defense nor UN-sanctioned and therefore was "outright illegal" and "a war of aggression."
In an important story all but ignored by the US corporate mainstream media, Bush, Cheney, Rumsfeld and their legal advisers, former Attorney General Alberto Gonzalez, David Addington, William Haynes, Jay Bybee and John Yoo, who infamously asserted
that the president was legally allowed to massacre an entire village of innocent civilians, were tried in absentia and convicted
of war crimes by a Malaysian tribunal.
Similar efforts to bring Bush and other US and UK officials to trial for war crimes were launched in Canada, Switzerland, Germany and Spain, but US pressure
usually torpedoed such attempts.
Still, top Bush officials remain wary
of traveling to certain overseas destinations-- and at least one US municipality
-- out of fear they could be arrested to stand trial for their roles in war crimes relating to Iraq, extraordinary rendition
, secret imprisonment, torture and Guantánamo Bay.
Under domestic and international law, President Barack Obama is obligated
to prosecute all cases in which credible evidence of war crimes, specifically torture, have been found. But despite vowing
to investigate alleged Bush war crimes, Obama has protected
Bush officials from prosecution, stating he is "more interested in looking forwards... than backwards."
Meanwhile, individuals who expose US war crimes and other controversial actions, such as whistleblowers Edward Snowden
, Chelsea Manning
, Julian Assange
and John Kiriakou
, have been aggressively targeted by the Obama administration.
After resigning from the Bush administration, Clarke became a vocal critic of its policies and actions relating to counterterrorism and Iraq. Testifying before the 9/11 Commission in 2004, he apologized
to victims of the September 11, 2001 terrorist attacks and accused the Bush administration of being distracted from the looming threat of al-Qaeda attack by a preoccupation with Saddam Hussein and Iraq.
In the months leading up to 9/11, Clarke's urgent warnings
about the threat of imminent al-Qaeda attack went largely unheeded. In the wake of his damning 9/11 Commission testimony, the Bush administration and conservative allies, including Fox News
, aggressively attacked
Clarke's motives and credibility.