CHIEF PROSECUTOR OF THE KUALA LUMPUR WAR CRIMES COMMISSION v. GEORGE W BUSH & ANTHONY L. BLAIR

Transcript of Judgement

CHIEF PROSECUTOR OF THE KUALA LUMPUR WAR CRIMES COMMISSION v. GEORGE W BUSH & ANTHONY L. BLAIR

Global Research has, from the outset, been involved in the Kuala Lumpur initiative to criminalise war launched by former Prime Minister Tun Dr. Mahathir Mohamad in December 2005.

The following judgement of the KL War Crimes Tribunal is the result of several years of work involving the collection of evidence and the hearing of witnessses.

This is historical decision which  sends a clear message to acting heads of State and heads of government of the member States of the Atlantic Alliance.

It points to the criminality of the preemptive war doctrine.  A war of aggression under a humanitarian pretext is a Crime against the Peace under international law.  

“The doctrine of pre-emptive strikes ‘is a doctrine without limits, without accountability to the UN or international law, without any dependence on a collective judgment of responsible governments and, what is worse, without any convincing demonstration of practical necessity’. It repudiates the core idea of the UN Charter that prohibits the use of force except for self-defense or pursuant to a decision of the Security Council.” 

Among the recommendations of the Tribunal:  

“The Commission must invoke the Nuremberg law to report Bush, Blair and their accomplices for crimes against peace, war crimes and crimes against humanity under Part VI
of the Charter of the Nuremberg Tribunal. 

Second, the Commission must file reports of genocide and crimes against humanity with the International Criminal Court (ICC). 

Third, the General Assembly of the United Nations must be approached to pass a resolution to end the American occupation of Iraq.

Fourth, the findings of this Tribunal must be communicated to all countries that have acceded to the Rome Statute and are possessed of universal jurisdiction. 

Fifth, the UN Security Council must reassert itself and ensure that true sovereignty is transferred to the Iraqi people as soon as possible with the assistance of a UN Peacekeeping
Force. The autonomy of the newly installed Iraqi government must be ensured.”

Michel Chossudovsky, Member of the Kuala Lumpur War Crimes Commission,  Director of Global Research 

Kuala Lumpur, 22 November 2011

CHIEF PROSECUTOR OF THE KUALA LUMPUR WAR CRIMES COMMISSION v.
GEORGE W BUSH & ANTHONY L. BLAIR
 

CRIMINAL PROCEEDING NO. 1-CP-2011
 

Kuala Lumpur War Crimes Tribunal, Kuala Lumpur, Malaysia
 

Corum: Judge Abdul Kadar Sulaiman, Judge Salleh Buang, Judge Tunku Sofiah Jewa, Judge Alfred L.
Webre, Judge Shad Saleem Faruqi.

Prosecution: Prof Gurdial Singh Nijar, Prof Francis A. Boyle, Avtaran Singh, Usha Kulasegaran, Gan
Pei Fern.

Amici Curiae: Jason Kay Kit Leong, Sook Kok Weng, Pan Shan Ping, Mohd Zharif Shafiq, Zyzan
Syaidi, Muhammad Khirul.
 

Registrar: Musa Ismail.
22 November 2011.
 

UNANIMOUS VIEWS AND FINDINGS
 

The two accused, George W Bush and Anthony L. Blair, at the material times the Heads of
Government of the United States of America and the United Kingdom respectively, have been charged
by the Chief Prosecutor of the Kuala Lumpur War Crimes Commission with having committed
CRIMES AGAINST PEACE, in that they have planned, prepared and invaded the sovereign state of
Iraq on 19 March 2003 in violation of the United Nations Charter and international law. The
Particulars of the Charge state, inter alia, that on 19 March 2003, the two accused launched a war
against Iraq without the sanction of the United Nations and without just cause whatsoever.
 

The two accused were not present at the proceedings though duly served. Nor were any attorneys or
counsel present in their behalf. Pursuant to Article 15 of the Charter of the Kuala Lumpur War Crimes
Commission & the Rulesof Procedure and Evidence of the Kuala Lumpur War Crimes Tribunal
(hereinafter referred to as “the Charter”), an Amicus Curiae was appointed by the Tribunal to assist the
Tribunal by presenting an unbiased assessment of the charge and evidence against the accused.
 

The Amicus Curiae entered a plea of not guilty on behalf of both the accused.
 

1. Recusal of Judges

At the commencement of the proceedings, the Tribunal had a full bench of 7 Judges. However, Judge
Prof Niloufer Bhagwat and Judge Dato‟ Dr Zakaria Yatim later recused themselves, and the Tribunal
proceeded to hear the case with a quorum of 5 Judges.
 

2. Preliminary Objection on Jurisdiction
 

Amicus Curiae Jason Kay Kit Leong raised a preliminary objection that the Tribunal has no
jurisdiction to hear the case. After listening to arguments by the Chief Prosecutor and the Amicus
Curiae, the Tribunal ruled that it has jurisdiction and the proceedings then continued.
Under Article 7 of Part I of the Charter, the Tribunal shall have jurisdiction not only in respect of
crimes against peace, but also in respect of crimes against humanity, crime of genocide and war
crimes.
 

3. Facts
 

It is the undisputed facts of the case that the first accused had contemplated invading Iraq as far back
as 15 September 2001 and had confided in the second accused of this intention. In 2002, the two
accused, without the sanction of the United Nations Security Council, had directed air strikes against
Iraq in order to degrade Iraq‟s air defences, in preparation for its invasion in 2003. A memorandum of
the UK cabinet dated July 23, 2002 (known as the “Downing Street Memo”) had recorded a meeting
between the second accused and his intelligence officials.
 

On November 8, 2002, the United Nations Security Council passed Resolution 1441. The text of this
Resolution clearly does not authorise the use of military action to compel its compliance. Both the
accused would have been fully aware of the limitations of this Resolution.
 

The second accused had admitted whilst giving his testimony at the Chilcot Inquiry on 14 January
2011 that his Attorney General, Peter Goldsmith, had advised that a second Security Council
Resolution is necessary under international law to authorise the use of military force against Iraq.
It is also an established fact that Iraq did not possess any weapons of mass destruction (WMD). The
two accused had over the years since the Iraq war admitted that they knew or believed the intelligence
reports on Iraq‟s WMD to be unreliable. Yet both accused proceeded to wage war on Iraq based on a
false and contrived basis.
 

More than 1.4 million Iraqis have been killed (and continue to die) as a direct and indirect
consequence of the war waged by both accused against Iraq.
 

4. THE INTERNATIONAL LAW OF WAR –

4.1 General Prohibition Against Force

The Charter of the United Nations contains a general prohibition against force as a means of
resolving disputes. The Charter insists that war can only be a last resort and that the decision
to unleash the horrors of war on innocent populations can only be taken according to the duly
established law itself. The Security Council and the General Assembly have consistently
affirmed this principle.

4.2 Where in Exceptional Circumstances Force is Allowed
 

Under the Charter as well as customary international law, there are some exceptions that make
the use of force lawful.
 

First, legitimate self-defense under Article 51 of the Charter.
 

Second, specific Security Council authorization of force as a last resort to maintain peace and
security under Chapter VII of the Charter.
 

Third, the Defence assertion that in customary international law there is a principle of preemptive
or anticipatory self-defense when a threat of attack is imminent.

Fourth, the Defence assertion that there is a principle of humanitarian intervention or a Right
to Protect”.
 

5. WAS THERE A PRIMA FACIE CASE?
 

At the close of the case for the prosecution, we listened to submissions by both sides. The
Tribunal came to the unanimous conclusion that a prima facie case exists. Defence was,
therefore, called.
 

6. THE CASE FOR THE DEFENCE
 

6.1. Nicaragua case –
 

The amicus curiae Jason Kay Kit Leon states that the prosecution has submitted two
contradicting points on humanitarian catastrophe. The defence states, “The rule of natural
justice requires the accused to know the charges against him clearly, to understand the
nature of the charges against him, so that he has a chance to defend himself.‟‟
 

Yet, the defence in objecting to the prosecution‟s submission of the Nicaragua case has
made a moot point. Both of prosecution counsels‟ interpretations of the Nicaragua case
would prohibit Bush and Blair‟s orders to wage aggressive war and invade Iraq.
 

The Nicaragua case, by the interpretation of prosecution lead counsel Gurdial Singh Nijar,
prohibits the invasion of Iraq by Bush and Blair because that invasion was not in
furtherance of “preventing an overwhelming humanitarian catastrophe for which Saddam
could be held responsible.” No such catastrophe had been established in Iraq through well
documented evidence. There were many other means – including a second Resolution at
the United Nations – available to prevent the use of force. The measures taken by Bush
and Blair‟s aggressive war against Iraq were disproportionate.

The Nicaragua case, by the interpretation of prosecution co-counsel Prof. Frances Boyle,
places an absolute bar upon any intervention by force for humanitarian reasons.
 

6.2. Responsibility to Protect
 

Similarly defence argues that responsibility to protect is a doctrine that justifies an
intervention by force on humanitarian grounds, and that the doctrine of responsibility to
protect provides a legal rationale for the aggressive war by Bush and Blair against Iraq.
Defense cites the 1999 NATO intervention in Serbia as precedent. Yet as prosecution cocounsel
Frances Boyle noted, U.S. President Bill Clinton had no authority from the U.S.
 

Congress to invade Serbia and the UN resolutions cited by the defence were after the fact
of the illegal invasion by way of an attempt by the UN to control a U.S. President. The
1999 invasion of Serbia was illegal under the Nicaragua case as was the 2003 invasion of
Iraq by the two accused.
 

6.3. Use of U.S. government documents and statements of the accused

In arguing that the situation in Iraq justified Humanitarian intervention, the defence has
submitted official documents predominately from one agency of the U.S. government, the
U.S. Agency for International Development. These documents are biased presentations
and unreliable, as they are prepared subsequent to the invasion for purposes of justifying
the invasion of Iraq. Moreover, as the prosecution demonstrated, the director of USAID
himself admitted his agency was filled with U.S. under-cover intelligence agents and
propagandists.
 

6.4. 9/11 & the invasion of Iraq
 

The defence has interjected the events of September 11, 2001 into these proceedings in a
number of ways.
 

A. 9/11 & the invasion of Iraq –The defence has introduced no evidence that establishes a
planning or operational connection between Saddam Hussein and 9/11 event. The
prosecution established that Bush may have used 9/11 as a pretext for the invasion of Iraq.
9/11 & the Project for A New American Century – The prosecution introduced evidence
demonstrating that key principals in the cabinet of the first accused Bush were planning an
invasion of Iraq as early as February, 1998 under the umbrella of the Project for a New
American Century which at the same time was preparing public opinion for „‟a new Pearl
Harbor‟‟, an event that materialized on 9/11.
 

B. 9/11 „‟Grotian moment‟‟ – The defence cites authority contending that „‟September 11
attacks on the United States demonstrate a change in the nature of the threats confronting
the international community, thereby paving the way for rapid development of new rules
of customary international law‟‟ that would presumably authorize the invasion of Iraq.
Yet it is still unsettled, what the events of September 11, 2001 are all about.

6.5 Saddam Hussein & acts of 1988-1991
 

The defence introduced evidence of Saddam Hussein‟s ethnic cleansing and chemical
weapons use against the Kurds and the Anfal campaign in 1988, as well as the killing of
Shiites and Marsh Arabs in 1991. Yet the defence failed to explain why U.S. President
Ronald Reagan and George HW Bush (Senior) through agent Donald H. Rumsfeld sold
Iraq chemical weapons and permitted their use and why President George HW Bush
(Senior) incited the Marsh Arabs to revolt in 1991 only to abandon them knowing they
would face Iraqi government reprisals.
 

6.6. United States Joint Forces Command
 

The defence introduced a document prepared by the Joint Center for Operation Analyses
under official contract with the U.S. Department of Defense as justification for
relationships between Saddam Hussein and international terrorism. The prosecution
established the bias of this document as that produced by the invading party after the
invasion.
 

6.7. Anticipatory self-defence
 

The defence raised the doctrine of anticipatory self-defence under Article 51 of the UN
Charter as a justification for the invasion of Iraq by the two accused Bush and Blair. The
prosecution noted that the clause „‟if an armed attack occurs‟‟ in Article 51 precludes its
application to the case of Iraq. The prosecution also noted that the 1981 attack by Israel
on Iraq, cited by counsel for the defence as a justification for the invasion of Iraq by the
accused, was condemned by the UN Security Counsel and had been ordered by Israeli
Prime Minister Begin to improve his standing in the election polls in Israel in 1981.
 

6.8. Memoirs of the accused Bush and Blair
 

Both the defence and the prosecution introduced relevant segments of the Memoirs of the
accused Bush and Blair as evidence in this case.
 

7. TRIBUNAL’S FINDINGS ON FACTS AND LAW
 

7.1 Right of Self-Defense Under the UN Charter
 

Article 51 of the UN Charter permits member states to defend their sovereignty and to
exercise the “inherent right of individual or collective self-defense if an armed attack occurs”.

However, the unilateral use of retaliatory force is subject to a number of limitations.

First, the right persists only till “the Security Council has taken measures necessary to
maintain peace and security”. Once the Council formally determines that there exists a threat
to international peace and security, individual states may no longer exercise the right of selfdefense
without the Council‟s express prior approval.

Sometime after the Allied invasion, the Security Council deliberated on the Iraq war. It did
not expressly validate the invasion. Yet we all know that the military occupation of Iraq by
the Allies continues till today.
 

Second, Article 51 applies only in the event of an actual armed attack. Iraq had not attacked
the USA or the UK. In fact, since 1991, it had not attacked any country whatsoever.
Despite Defence submissions, there is no credible evidence that Iraq had any connections with
September 11, 2001 or with Al-Qaeda. Nor is there any evidence of Iraqi preparation to
invade or attack or threaten any nation.
 

If by some stretch of imagination, there was such a threat, it was not imminent and it was
entirely avoidable. The argument about self-defense is, therefore, not credible.
 

Third, the International Court of Justice has affirmed in the Nuclear Weapons Case that
lawful defense must be both “proportional to the armed attack and necessary to respond to it”.
[Nicaragua, ICJ Reports (1986) at 14, 94 and 103; Legality of the Threat Or Use of Nuclear
Weapons, ICJ Reports (1996) at para. 41].
 

As there was no armed attack from Iraq, there was, therefore, no justification for the US or
UK to invoke the Article 51 doctrine of self-defense to attack, invade and conquer Iraq. The
justification, if any, must lie in the Defence Counsel‟s disputed doctrine of anticipatory or
preemptive self-defense under customary international law which we shall deal with below.
 

7.2 Security Council Authorization
 

Except for the narrow exception of unilateral self-defense under Article 51, the Security
Council of the United Nations is the only authority empowered by Chapter VII, Articles 39 to
42 to use force by air, sea or land against a nation that is guilty of a “threat to the peace,
breach of the peace, or act of aggression”. This exceptional power is subject to a number of
limitations.
 

First, military action is permitted for maintaining or restoring international peace and security.
However, on the basis of the Nicaragua decision, regime change is not a valid international
law objective. We are of the firm view that the exceptional powers of Chapter VII cannot be
employed to declare war and resort to military action against a sovereign nation solely for the
purpose of “regime change” or the removal of a dictatorial or unelected leader, no matter how
unlikable he may be.
 

Second, military action under Article 42 must be resorted to as a matter of last resort. The
Council must first attempt peaceful measures like sanctions under Article 41 of the Charter.
Article 41 authorises “complete or partial interruption of economic relations and of rail, sea,
air, postal, telegraphic, radio, and other means of communication, and the severance of
diplomatic relations”.

Force can be authorized only after the Council determines that peaceful measures “would be
inadequate or have proved to be inadequate” (Article 42). The Council has an obligation to
exhaust all peaceful avenues before authorizing war (Article 39).
 

Except for the USA and the UK, the other permanent members of the Security Council were
of the view that UN inspections were working and that Iraq was complying with the order to
disarm. On the orders of the UN inspectors the Saddam regime had destroyed some
proscribed weapons. Hans Blix, chief United Nations weapons inspector requested four
months to complete his job and the majority of the members of the Council seemed agreeable
to granting this time. But the US and the UK were not supportive of any extension of time.
 

They lobbied hard to obtain a new Council Resolution to authorize immediate military
operations against Iraq. The US forged documents to accuse Iraq of trying to purchase raw
materials for WMD on the international market. The UK, on its part, lacking any substantial
evidence against Iraq, plagiarized from a student thesis and tried to pass off an out-of-date
student essay as an authoritative intelligence report!
 

US and UK attempts to force a new resolution ultimately failed France, Germany, Russia and
China wished to give to the inspectors the time they requested to complete their inspections.
Having failed to push a resolution through the Security Council, the US and the UK changed
their tune and argued that no new resolution was needed to authorize military strikes as earlier
resolutions were sufficient to allow any Council member to unilaterally use force in the event
that Iraq was in material breach of its obligations.
 

This is the “revival argument” put forward by the Defence. Examination of some of the
UNSC resolutions on Iraq between 2 August 1990 and 8 November 2002 will show that the
US-UK argument of unilateral authority to invade Iraq suffers from several fatal flaws.
7.3 Pre-emptive or Anticipatory Self-defense in Customary International Law
 

The UN Charter nowhere permits the declaration of war on a perceived threat of imminent
attack. Some scholars argue that the Charter intended to abolish the pre-Charter customary
right of pre-emptive self-defense. Despite this doubt it does appear that under customary
international law the doctrine of pre-emptive self-defense does exist. “According to the
seminal Caroline case the legitimate exercise of this right requires “a necessity of selfdefense,
instant, overwhelming, leaving no choice of means, and no moment for deliberation”.
 

The idea that the security of US & UK was threatened by Iraq‟s alleged possession of
weapons of mass destruction (WMD) was preposterous and is even more so today. Despite
years of extremely intrusive intelligence gathering from the air and more than 550 inspections
on the ground by UN inspectors in the last four months before the invasion, no credible
evidence of WMD had surfaced. Some US documents alleging Iraq‟s attempt to purchase
proscribed weapons turned out to be crude forgeries. The UN Inspectors found no such
weapons nor any long-range delivery system.

In these circumstances, the assertion by the Defence of a right to engage in unilateral and
“pre-emptive attacks” on Iraq was a blatant violation of international law. Their argument
sought to give to powerful states the right to use military force against other states that are
seen as hostile or that make moves to acquire weapons of mass destruction whether nuclear,
biological or chemical.
 

It is our view that the doctrine of pre-emptive strikes “is a doctrine without limits, without
accountability to the UN or international law, without any dependence on a collective
judgment of responsible governments and, what is worse, without any convincing
demonstration of practical necessity”. It repudiates the core idea of the UN Charter that
prohibits the use of force except for self-defense or pursuant to a decision of the Security
Council.
 

7.4 Humanitarian Intervention or the Right to Protect Victims of Human Rights
Abuses
 

The Defence gave convincing evidence of serious human rights violations by Saddam
Hussain. However, they adroitly avoided admitting that both the US and UK were complicit
in most of these offence.
 

In the light of Saddam‟s brutal record, the Defence argued that the international community
has the right and the duty to use military force for humanitarian purposes and for redressing
gross abuses of human rights. As there was credible evidence that the unelected Saddam
regime was guilty of serious human rights breaches, it was argued that military force could be
used to bring about a regime change in Iraq.
 

We acknowledge that international law is not static. Eloquent arguments by the Defence of
“Grotiun moments” in international law are taken note of. However, growth and change have
to be within the four corners of the UN Charter and not outside it.
 

The danger of the `humanitarian intervention‟ argument is that it enables member states to
circumvent well-established principles and procedures of the UN Charter on use of legitimate
force. Decision-making on issues of peace and war is unlawfully transferred from multilateral
UN mechanisms to individual states. Relying on this argument member states may transgress
legal limits on use of this exceptional power and not be accountable to anyone. There is no
safeguard to prevent states from manipulating this argument to serve narrow political or
strategic interests.
 

It must also be remembered that the UN is already empowered, under Chapter VII, to respond
with force if necessary to uphold the UN‟s fundamental purposes, which, in Article 1 include
“encouraging respect for human rights and fundamental freedoms”.
 

We hold that when a country takes it upon itself to displace by force of arms a government or
administration that it disapproves of, this is naked aggression and an international crime.
Despite some scholarly dispute which we recognize,we hold that the principle of humanitarian
intervention has dubious basis. International vigilantism has no legal validity. Even if it did, it
should be applied subject to the preconditions outlined by the Prosecution. None of the
conditions were satisfied in this tragic situation.

7.5 Possession of WMD
 

An attack on Iraq because of its alleged possession of weapons of mass destruction (WMD)
had no legitimacy in international law. First of all, claims regarding Iraq‟s pursuit or actual
possession of weapons of mass destruction (WMD) were always highly suspect.

Secondly, enforcement of UN resolutions against Iraq‟s alleged possession of WMD should
have been undertaken in accordance with international law and not in blatant disregard of it.
Thirdly, the US lacked clean hands on the issue of Iraq‟s possession of WMD because along
with Britain and 150 or so Western companies (listed in Iraq‟s Report to the UN Inspectors),
the US facilitated Iraq‟s acquisition and use of WMD in the 1980s
 

7.6 Was there pre-planning and preparation to mount the military operation?
 

The Prosecution has given us convincing evidence that the drums of war were being beaten
long before the invasion. Facts were fixed to support the policy.
 

Regrettably the Defence rebuttal was based on highly dubious US Government or US Military
evidence that is not credible. US laws or Congressional Resolutions are also not acceptable as
the US, with all its might has no right to change international law.
 

Further many statements in the books authored by the two accused implicate them in the
diabolical plan. The memoirs of the two accused do not provide justification for the war of
aggression against Iraq.
 

8. VERDICT
 

“The essence of legality is the principled, predictable, and consistent application of a single
standard for the strong and the weak alike. Selective manipulation of international law by
powerful states undermines its legitimacy.”
 

The 2003 invasion of Iraq was an unlawful act of aggression and an international crime. It
“cannot be justified under any reasonable interpretation of international law”. It violates “the
outer limits of laws regulating the use of force”. It amounts to mass murder. Unlawful use of
force in Iraq “threatens to return us to a world in which the law of the jungle prevails over the
rule of law, with potentially disastrous consequences for the human rights not only of the
Iraqis but of people throughout the region and the world”.

The future of the UN and of the international law of war is also at stake. The unauthorized
military action in Iraq undermines the system of collective security embedded in the UN
Charter in order to protect humanity from a recurrence of the carnage of World War II.
The two accused took the law into their own hands. They acted with deceit and with
falsehood. They acted in flagrant violation of international law of war and peace. In the
absence of any convincing evidence, defence assertions lack credibility. They appear to be
fig leaves for hiding naked economic and political ambitions.
 

We therefore find that the charge against the two accused is proved beyond reasonable doubt.
The two accused are, therefore, found guilty as charged and the two accused are accordingly
convicted on the charge.
 

9. ORDERS
 

1. The Tribunal in accordance with Article 31 of our Charter, recommends to the
Commission to file reports with the International Criminal Court against the two
accused.
 

2. The Tribunal in accordance with Article 32 recommends to the Commission that the
name of the two convicted criminals be included in the Commission‟s Register of War
Criminals and publicized accordingly.
 

10. RECOMMENDATIONS
 

First, the Commission must invoke the Nuremberg law to report Bush, Blair and their
accomplices for crimes against peace, war crimes and crimes against humanity under Part VI
of the Charter of the Nuremberg Tribunal.
 

Second, the Commission must file reports of genocide and crimes against humanity with the
International Criminal Court (ICC).
 

Third, the General Assembly of the United Nations must be approached to pass a resolution to
end the American occupation of Iraq.
 

Fourth, the findings of this Tribunal must be communicated to all countries that have acceded
to the Rome Statute and are possessed of universal jurisdiction.
 

Fifth, the UN Security Council must reassert itself and ensure that true sovereignty is
transferred to the Iraqi people as soon as possible with the assistance of a UN Peacekeeping
Force. The autonomy of the newly installed Iraqi government must be ensured.

President- Judge Abdul Kadir Sulaiman
 

Judge Salleh Buang,

Judge Tunku Sofiah Jewa,

Judge Alfred L. Webre

Judge Shad Saleem Faruqi
 

Dated: Twenty second day of November 2011 at Kuala Lumpur, Malaysia.

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