Saleh v. Bush

Our Official Recommendations to the UN Human Rights Council

Just Atonement has succeeded in publishing a series of recommendations to the UN Human Rights Council, and we’re proud of this small victory and incremental step toward reducing immunity for high ranking government officials who commit war crimes, engage in acts of aggression, or test the boundaries of nascent international law related to the sanctity of human rights. Read the text of our paper here, and skim the question and answer session below.

Why do government leaders rarely face legal penalties after committing acts that violate human rights?

We are often asked why government leaders are rarely held accountable for war crimes and acts of international aggression, and why  these leaders are protected by domestic laws that separate personal accountability from “official actions”, or actions they engaged in for the presumed good of the nation while holding public office.

The answer is that many times these officials are presumed to be acting at the behest and in the best interest of their electorate, judges and courts oftentimes hold that government leaders are entitled to immunity, even when they  for example, commit acts of torture, aggression, or violations of international treaties and charters.

When do human rights violations become subject to trial and punishment?

According to international law, immunities of government leaders are weakened or removed after the perpetrator leaves office. At that point, an act of aggression may become subject to penalty depending on the motivation behind the act. For example, a government leader may be accused of acting in a personal, or non-official, capacity if he or she exploited a government resource to enrich a family business while in office. Any act that cannot be connected to the benefit of the state may—after the governing period ends—be considered a personal action.

Are there some real-life cases in which the boundaries between the personal and professional have been tested?

Yes! These cases and precedents are the subject of our short paper. In these four pages, one of the cases we summarize is the case of Saleh v. Bush, in which the plaintiff and litigant intended to hold individual members of the Bush administration accountable for the actions of the Iraq War.  

Why did we submit this paper?

Our paper presents a list of recommendations to the UN Human Right Council based on the implications of the cases we describe (Saleh v. Bush, Congo v. Belgium, the Pinochet Case). Just Atonement believes that government leaders must be subject, as individuals, to the statutes of international law forbidding war crimes and acts of aggression. Immunity from such crimes must be lifted in order to protect the rule of law and give merit to treaties and international charters forbidding these actions.


Saleh v. Bush at the UN!

We are so thrilled that the Saleh v. Bush case was explained and submitted in a written statement to the UN Human Rights Council in Geneva!

Saleh v. Bush was the case that was the genesis for Just Atonement Inc. ("JAI"), and in collaboration with Witness Iraq, we at JAI are dedicated to continuing the fight for accountability for those people who illegally invaded Iraq.

As part of those efforts, JAI was able to submit this written statement to the UN Human Rights Council, explaining the importance of the case, and urging the United Nations to take action.

Click here to read our submitted statement to the United Nations about the Saleh case.


Signifying Nothing

American Chief Prosecutor (and Supreme Court Justice) Robert Jackson presenting argument Nuremberg Tribunal. The Saleh v. Bush case casts grave doubts on the weight of the Nuremberg Tribunal and reawakens ghosts that the trials of the defeated Axis powers was nothing more than victor's justice.

American Chief Prosecutor (and Supreme Court Justice) Robert Jackson presenting argument Nuremberg Tribunal. The Saleh v. Bush case casts grave doubts on the weight of the Nuremberg Tribunal and reawakens ghosts that the trials of the defeated Axis powers was nothing more than victor's justice.

The Saleh v. Bush case, a four year lawsuit involving claims that senior Bush-era officials (including former President Bush, Vice President Richard Cheney, and other officials) committed the Nuremberg-era crime of aggression when they invaded Iraq, ended on February 10, 2017. In a 25 page opinion, the Ninth Circuit held that Bush-era officials were immune from further proceedings, even when the allegations of crimes involved the "supreme" international crime -- the crime of aggression. 

Despite allegations that members of the Bush Administration lied to the public, to Congress, and to the international community, and initial evidence supporting the notion that former Secretary of Defense Donald Rumsfeld and Undersecretary of Defense Paul Wolfowitz were committed to a military overthrow of Iraq as early as 1997, the Ninth Circuit held that former Administration officials were immune from civil proceedings under a 1988 law called the "Westfall Act." The Westfall Act provides an immunity to civil lawsuits to former government officials if they were acting under the scope of their authority. 

In ruling that the domestic Westfall Act provided a blanket immunity even for the crime of aggression, the Ninth Circuit effectively overruled the precedent set at the Nuremberg Tribunal, which had clearly stated that as a matter of international law, leaders of countries could not rely on domestic immunities to shield themselves from charges of aggression. Yet the Ninth Circuit held that domestic law, and specifically the Westfall Act, superseded any international treaties or rules of international law that had been had laid down at Nuremberg. Consequently, the judges ruled that Nuremberg's commands with respect to the crime of aggression would not find life under US law.

Since the Nuremberg trials took place in 1946, there has been rigorous scholastic debate regarding the "victor's justice" nature of the tribunal. The architects of the Nuremberg Tribunal were emphatic that the project to try Nazi war criminals would be a meaningful and lasting contribution to international law -- one so powerful, that even the US would be bound to the precedent. 

One of Prosecutor Jackson's most famous quotes from the Nuremberg trials is his reference to Macbeth, and specifically, his comment that the judgment at Nuremberg would be a "poisoned chalice" from which the victors of the war would also drink ("this even-handed justice Commends the ingredients of our poisoned chalice To our own lips"; Macbeth, Act 1, Scene 7).

His point was that far from being victor's justice, Nuremberg would herald a new era where leaders from all countries would be subject to law.

The conclusion to be drawn from the Saleh case, however, is entirely the opposite. The lesson of Nuremberg is not the "poisoned chalice;" instead, the lesson is Macbeth's soliloquy at the play, as his forces have been defeated and after he learns of the death of his wife, Lady Macbeth. He says:

Life's but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.

(Macbeth, Act V, Scene 5)

This is the real lesson of Nuremberg -- a trial full of sound and fury of the crimes of the Germans, but ultimately, signifying nothing.

The reason for this conclusion is simple:  the victors of that war are not willing to examine their own conduct under the lens of the very laws used to convict the Germans of their own aggressive actions. The high-minded rhetoric of that famous prosecution has shown its true colors: given a test before U.S. judges to determine its true nature, the precedent at Nuremberg collapses. Domestic immunity can, in fact, belay an international law, even for legal obligations that are considered absolutely binding by international law and non-derogable (so called jus cogens norms).

Since the September 11, 2001 terrorist attacks in New York, courts in the United States have looked the other way as the U.S. executive branch continues to expand its power. No matter the allegations -- torture, indefinite detention, summary execution, and the supreme crime of aggression -- and no matter which political party, U.S. judges have given significant deference to Presidential claims of power.

Today's U.S. executive branch, with its vast powers of surveillance and military might, is perhaps the most powerful executive office in history, wielding more power than any Roman emperor or English king. Only the rule of law will prevent the executive from subsuming democratic norms and installing the political architecture of naked dictatorship. 

"And all our yesterdays have lighted fools the way to dusty death." Macbeth, Act V, Scene 5.

Just Atonement is a non-partisan non-profit human rights law firm that provides analysis and commentary on legal precedents that address the scope of executive power. This analysis and commentary should not be construed as advocacy for or against any particular candidate for political office.