US. Supreme Court, International Law, and Crimes Against Humanity

Interview with Professor Boyle was conducted Friday 12 January 2006

Shahram Vahdany – I know your time is limited so I’ll go directly to these questions, why not Alito? What’s the difference between him and other conservative justices?

Francis A. Boyle – Well, he is a right wing extremist. He’s just like Scalia, Thomas, Roberts; all four are members of the Federalist’s society, which is right wing, bigoted, racist, reactionary, war mongering and totalitarian. These people want to return the united States Supreme Court back to before the days of Franklin Roosevelt and the new deal to the Supreme Court of Herbert Hoover. That’s how extreme they are.

SV – If Alito gets confirmed, what would be the shape of the Supreme Court in respect to what it is at this moment?

FB – Under the current court, large numbers of extremely important decisions were decided by a five to four majority. That fifth vote to constitute the majority provided by Justice O’Connor, she was the swing vote on many important decisions and what will happen now, with Alito is that the Supreme Court will swing in the other direction and indeed they might proceed to revisit many of the five/four votes that had come down with O’Connor on the court. So, those votes could easily start to slip the other way, even in cases that have already been presented. Well, not the cases themselves but on different issues.

SV – The American Bar Association, which many believe it is a liberal association, has endorsed Alito’s nomination. What is your take on that?

FB – Well, I’ve been a member of the American Bar Association since I was first licensed to practice law in January 10th, 1977. That’s twenty-nine years ago and the American Bar Association is a very conservative organization and not liberal at all. I guess compared to the Federalist’s Society you might say it’s somewhat moderate, but I would not characterize it as liberal and I’ve been a member since 1977. It’s a very conservative organization, indeed, because of my support of the Palestinians, I was pretty much black-balled out of their international law section, so, I wouldn’t say they’re conservative and basically it’s almost routine for them to endorse a sitting federal judge. So, I don’t think anything comes of it one way or the other.

SV – What is your prediction of the outcome of Alito’s confirmation hearing?

FB – Well, I’ve organized a campaign to try to find one United States senator to launch a filibuster of Alito. All we need is one senator willing to get up there in the Senate and start the filibuster. That would bring everything to a halt and it would then require a vote of cloture – sixty votes – to stop the filibuster. So right now that’s what I’m trying to do.

SV – Could you name the senators?

FB – I’m asking people to contact their senators. I have senators here in Illinois, there’s Senator Durbin, Senator Obama, yesterday I was speaking in California, I asked people there to contact their senators, Senators Boxer, Feinstein, I was speaking in Wisconsin there you have Senators Herb Kohl, and Russell Feingold, so, we’ll do the best we can. We just need one, is basically where we stand. We need one senator with courage, integrity, principles and a safe seat to launch the filibuster.

SV – Do you think Ted Kennedy might go for that?

FB- I don’t know. I can’t say.

SV – The second part of my question is actually not related to this issue. I’ve read some your articles; you wrote to the UN Human Rights Commission about crimes against humanity.

FB – It was about ‘Extraordinary Rendition’ The point was the UN Commission on Human Rights against the US over the CIA’s Extraordinary Renditions.

SV – What is your view of immunity of sitting heads of state who cannot be prosecuted for crimes against humanity?

FB – The reason I filed that complaint, of course, was to stop the CIA Extraordinary Rendition practice. That’s why I filed it. But as to your second question, under certain circumstances heads of state can be prosecuted. For example, right there up in Canada, Lawyers Against War are going after Bush under the torture convention. The same was done in London for Pinochet, although he was no longer head of state at that time. Milosevic, I convinced Carla del Ponte, the prosecutor for the International Criminal Tribunal for the former Yugoslavia to indict Milosevic for every crime in the book for what he did in Bosnia. He’s now on trial in the Hague. This is a new area of human rights law, attempting to hold heads of state accountable. It really goes back to the Nuremberg Charter Judgment and principles that says that heads of state have no immunity for the commission of international crimes. So the law has been very clear since 1945. what we’re trying to do now is apply that law to some sitting heads of state or heads of state who have stepped down.

SV – What about the US which has withdrawn it’s signature from the International Criminal Court and does not recognize its authority.

FB – Well that is correct, that’s unfortunate, and the reason, you’ll note, President Clinton did sign and then as soon as Bush came to office he withdrew the signature and the reason was they fully intended to go to war against Iraq. So of course if you’re going to commit aggression and war crimes, you don’t want an International Criminal Court with jurisdiction to prosecute you. However, that being said, first, if Bush or any of these others in US Government leave the US they could end up in states that are parties to the International Criminal Court or have domestic statutes that would permit them to be prosecuted. Second, as for the ICC, Britain is a party and right now, today, I’ve been working with some British lawyers on preparation of a complaint against Tony Blair and some of the other British leaders to file them with the ICC. I have recommended that they add, as aiders and abettors, Bush et. all. This can be done. So long as the ICC has jurisdiction with respect to Blair, Bush and the rest of them could be added on and, I think, should be added on. that’s being done – I’m not doing the work – it requires British lawyers to do it – but I have advised them I think that that’s the way they should proceed and my understanding is that they are. So, we’ll see what happens.

SV – Does the ICC have the jurisdiction to prosecute anyone as long as they are in those countries that recognize and are signatories to ICC?

FB – Either they recognize it or commit crimes in states that are parties. In this case, the ICC has jurisdiction to prosecute British nationals such as Tony Blair, Jack Straw and the rest of them. What I’m recognizing however is that Bush et. all be added on as aiders and abettors. Because the ICC statute also permits the prosecution of aiders and abettors to individuals that it already have jurisdiction to prosecute.

SV – Thanks for clearing that up. Some believe that citizens of those countries, which do not recognize the ICC, cannot be subject to prosecution by them.

FB – You cannot file a complaint directly against Bush et. all as principles in the first degree to crimes. You can only proceed after them as aiders and abettors to principles in the first degree where the ICC would have jurisdiction to prosecute the principles in the first degree, but if they have jurisdiction to prosecute the principles in the first degree, my reading of the statute is they would also have jurisdiction to prosecute aiders and abettors.

SV – What about in Canada, with the charges that LAW filed against Bush?

FB – Well, Gail Davidson, as you know, is trying to get Bush on the torture convention. I worked a few years ago with people up in Canada to try to get Henry Kissinger prosecuted. You’ll probably remember that. Kissinger was going to show up in Canada and they called me and said, “Okay, what would be the best charges to proceed against Kissinger, under international law, among all the charges?” I gave them some advice, they put together legal documents and they tried to do it, but, for whatever reason that was rejected up there in Canada. But, you know, who knows we could try again.

SV – Are you a member of LAW.

FB – Yes, they asked me to join and I’m an affiliate of Lawyers Against War, and happy to be so. Michael Mandel and Gail Davidson. I think they do outstanding work.

SV – Thanks for your time professor.