Kuala Lumpur, May 8, 2012 (TSR) – On Monday, the Kuala Lumpur War Crimes Tribunal commenced hearing the second charge of Crime of Torture and War Crimes against former U.S. President George W. Bush and his associates namely Richard Cheney, former U.S. Vice President, Donald 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, and John Choon Yoo, former Deputy Assistant Attorney-General. The charge reads as follows:
The Accused persons had committed the Crime of Torture and War Crimes, in that: The Accused persons had wilfully participated in the formulation of executive orders and directives to exclude the applicability of all 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 U.S. and others in Afghanistan (in 2001) and in Iraq (in March 2003); Additionally, and/or on the basis and in furtherance thereof, the Accused persons authorised, or connived in, the commission of acts of torture and cruel, degrading and inhuman treatment against victims in violation of international law, treaties and conventions including the Convention against Torture 1984 and the Geneva Conventions, including Geneva Convention III 1949.
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The Kuala Lumpur War Crimes Commission (KLWCC) following the due process of the law is bringing this charge against the accused. In 2009, the Commission, having received complaints from torture victims from Guantanamo and Iraq, proceeded to conduct a painstaking and an in-depth investigation for close to two years. Two charges on war crimes were drawn and filed against the accused persons.
The Kuala Lumpur War Crimes Tribunal had heard the first charge in November 2011 against the two accused, former U.S. President George W. Bush and former British Prime Minister Anthony L. Blair who were after a 4-day trial found guilty of Crimes Against Peace. These two former heads of state violated the United Nations Charter and international law when they planned, prepared and invaded the sovereign state Iraq on 19 March 2003 without just cause.
At the first hearing in November 2011, the Tribunal had permitted the prosecution’s application to hear only the first charge. The second charge will now be heard at the second Tribunal hearing from 7 – 12 May 2012.
The Kuala Lumpur War Crimes Tribunal is constituted of eminent persons with legal qualifications. The judges of the Tribunal, which is headed by retired Malaysian Federal Court judge Tan Sri Dato Lamin bin Haji Mohd Yunus, who also served as an ad litem judge at the International Criminal Tribunal for the former Republic of Yugoslavia, include other notable names such as Mr Alfred Lambremont Webre, a Yale graduate, who authored several books on politics, Tunku Sofiah Jewa, practising lawyer and author of numerous publications on International Law, Prof Salleh Buang, former Federal Counsel in the Attorney-General Chambers and retired Court of Appeal judge Datuk Mohd Sa’ari Yusof.
Point to note is that victims of torture will also be called give evidence before the Tribunal. The cries of these victims have thus far gone unheeded by the international community. The fundamental human right to be heard has been denied to them. These witnesses will testify on the torture they had endured during their incarceration. The accused will have a right to cross-examine them as in any open court hearing.
The Tribunal will adjudicate and evaluate the evidence presented as in any court of law. The judges of the Tribunal must be satisfied that the charges are proven beyond reasonable doubt and deliver a reasoned judgement.
In the event the tribunal convicts any of the accused, the only sanction is that the name of the guilty person will be entered in the Commission’s Register of War Criminals and publicised worldwide. The tribunal is a tribunal of conscience and a peoples’ initiative.
The prosecution for the trial will be lead by Prof Gurdial Singh Nijar, prominent law professor and author of several law publications and Prof Francis Boyle, leading American professor, practitioner and advocate of international law, and assisted by a team of lawyers.
MAY 7, 2012 CHRONICLE
Mr Jason Kay, Dr. Mohd Hisham, Dr. Abbas Hardani and Ms. Galoh Nursafinas had been appointed as Amicus Curiae (‘Defence’) under Article 15 of the Charter to act for the accused.
The Defence raised a preliminary objection that the Tribunal is established under the Kuala Lumpur Foundation to Criminalise War (Foundation) that was incorporated under the laws of Malaysia. As such only the written laws of Malaysia are applicable. Any other laws arising from treaties need to be ratified by the legislature. International treaties, such as the United Nations Convention against Torture and the Rome Statute have yet to be ratified. The Defence argued that as such the Prosecution could only rely on the laws of Malaysia and treaties that have been ratified.
The Prosecution contended that the Foundation had envisioned the setting up of the Tribunal. Through the Charter of the Kuala Lumpur War Crimes Commission, Article 1 of the Charter states that a Commission, Tribunal and the Legal Team shall be established ‘whose functions and jurisdiction shall be governed by the provisions of this Charter’. And Article 2 states the Commission is ‘to receive and investigate complaints from victims of wars and armed conflicts in relation to crimes against peace, war crimes, crimes against humanity and other like offences as recognised under international law’.
The Charter is based on the peoples’ right, a Tribunal of conscience. This Tribunal is not enforcing Malaysian law. It is enforcing international law. In any event, war crimes are universal crimes based on jus cogens and customary international law, which predate the said written conventions.
After deliberating on the preliminary objection, the Tribunal after deliberating unanimously overruled the preliminary objection and ruled that war crimes have universal jurisdiction.?
The Prosecution proceeded with the first witness namely Abbas Abid of Iraq. He was the chief engineer in the Science and Technology Ministry at the time of his detention by American and Iraqi forces on 28 August 2005. Abbas with the assistance of a translator revealed that American and Iraqi soldiers forcefully entered the home of his relative with any just cause. After searching the home they detained him and took him away to a temporary detention at Al-Muthanna Brigade HQ where they demanded to know the names of “terrorists” in his neighbourhood. When he said that he did not know any terrorists he was beaten and electrocuted. After 4 weeks he was taken to Al-Jadiria prison.
He was detained for a period of 1 year 2 months, in which time he experienced torture that included:
a. Being hit with tools (thick cudgels, cables, metal pipes, metal ribbons);
b. Electric shocks in various parts of the body and especially the penis;
c. Forced to drink a lot of water mixed with a diuretic solution, and his penis tied with rubber band to prevent him from urinating;
d. Hanging him from the wall while hanging weights from his penis for long hours;
e. Frightening him by shooting a gun around, near and above his head and various parts of his body.
f. Threatened to bring his wife and mother to the prison and sexually abuse them;
g. Cut off all food or drinks (except the water he was forced to drink with the diuretic solution) during the investigation period;??
h. Forcefully extracting his finger nails;
i. Hanging him from the wall for long hours until he fainted – the hanging method is by handcuffing his hands to the back and then hanging him up from the handcuffed hands so that his shoulder got dislocated;
j. Hanging from the wall then hitting him with several tools of torture until the handcuffs breaks. This happened many times; The 48-year-old Iraqi revealed that he was forced to sign a statement without being allowed to read or knowing its contents because they had put a bag over his head. This, he revealed, was done to all prisoners.
He was moved to a small room (2.5m by 2.5m) together with 30 other detainees; later to another nearby room (7m by 3.5m) where 70 detainees were kept. The numbers were later increased to about 115 in that room.
A bag was placed over his head for over two months and only removed when he was given food. He revealed that some prisoners would have a bag over their head for over five months. There was not enough room for everybody, so the detainees were sitting and sleeping over each other and most of them suffered from burns and frictions and severe wounds, some of them were even infected with contagious diseases like TB and scabies.
He also revealed that all detainees had to urinate in plastic bottles placed near the door. Visits to the toilet were made once every 4 days. A detainee was allowed only one minute in the WC. He further revealed that detainees had to discharge their waste in the plastic bags given to them and in the presence of ever one present. These bags were used to bring food and were kept for this purpose. These toilet bags were placed near the plastic bottles at the door. Because it is so crowded, the bottles and bags get knocked over and the waste would be spread all over the room.
The bottles and bags were emptied once every four days when they went to the WC and on their return they would be beaten by the guards. No medical care was available and detainees were left to die from their injuries caused by torture.
After 13 months he was brought to a court and the court ruled that he was to be released, as there was no evidence of any wrong doing against him. He revealed that he had to pay USD10,000 to the prison authorities before he was released a month after the court ruling.
The Prosecution also called British citizen Moazzam Begg to the witness stand to testify his ordeal as a detainee in various prisons.
The 43-year-old Begg, who read out his testimony from the witness stand, said that was handed over to United States military custody and was immediately shackled, hooded and choked and thrown to the floor.
He said, “A knife was put to my throat and I was threatened that my throat would be slit if I spoke.”
He was then flown to Kandahar in Afghanistan and dragged out of the plane, thrown into the mud and was kicked, punched, choked with a hood and constantly sworn at.
They brought dogs that were barking very close to his face. He also suffered racial, ethnic and religious abuses were hurled at him. He was interrogated by two FBI interrogators who wore FBI caps asking him when was the last time he saw Osama bin Laden and Mullah Omar. He responded in English and said, “I don’t know anything about Mullah Omar or Osama bin Laden”.
He revealed that the interrogation was done with him on his knees and hands tied behind my back, which could last from a few minutes to 24 hours. He was in Kandahar for 6 weeks where the British intelligence came to question him on 2 occasions. He was asked about the list of Imams in Britain and others. He felt he was profiled and discriminated based on his ethnicity and religion.??He informed the tribunal that he was moved to Bagram airbase detention facility for 11 months where he was intensely interrogated for a month in solitary confinement by the CIA, FBI and US military intelligence and also by British intelligence. His legs and arms were hog–tied. He was threatened to be sent to Egypt. He was told that there was another man who did not cooperate and who was put in a box and sent to Egypt where he confessed. This was part of the rendering of detainees across countries that the US and British had engaged in for numerous prisoners.
He further informed the tribunal that he was led to believe that his wife was being tortured in the next room. They forced me to agree to a witness for anything they wanted. While in Bagram he saw two persons who were severely beaten by American soldiers. Later, he revealed, it was confirmed to him by the Americans in Guantanamo Bay that these 2 persons had died from the beatings. In Bagram prison, there was no fresh food and no warm food. Food and water was limited and no tea or fruits. Medical care was dependent upon the level of cooperation of the prisoners. Each cell was communal with about 10 prisoners and we shared a bucket as a toilet.
In February 2003, he was taken to Guantanamo Bay and the journey was about 20 hours or so and he was shackled in a ‘three piece suit’ of chains. A facemask was placed on his face; blackened goggles covered his eyes and earmuffs placed over his ears. All of these appendages were very tight fitting and caused pain.
At Guantanamo Bay he was placed in Camp Echo, which was maximum security and he was placed in solitary confinement. He remained there for about 20 months. The cell was 8 by 6 feet; there was no natural light, no windows and no contact with any other prisoners. Although physical abuse was lessened the conditions were still very brutal.
He revealed that he was forced to sign a confession that he was a member of al-Qaeda and was engaged in the war against the United States and if he did not, he would face a summary trial, which could result in execution and that execution chambers had been built in Guantanamo Bay. Or that he would remain for decades in Guantanamo Bay without access to anyone and without any legal process.
His mental state was affected due to being placed in solitary confinement and experienced several anxiety attacks. He told the tribunal that a female physiatrist once suggested a method of suicide, and asked if he had ever considered removing his trousers and threading it with the bed sheet to make a noose and tie it around his neck and tying the other end to the top corner of the cell. In November 2004, Begg said that he was removed from solitary confinement and placed in the blocks with other prisoners. And 2 months later he was released.
He never understood the brutality or its justification of being in an environment where he had to prove his innocence. He said, “I believe that it was by design to break my spirit by torturing other people in front of me, which was worse than being tortured myself. The absence of due process became worse then the physical torture.”
The day concluded with Begg’s testimony and the tribunal will hear the testimony of the third witness on Tuesday.
The trial will continue holding the public hearing in an open court from 7-12 May 2012 at the premises of the Kuala Lumpur Foundation to Criminalise War (KLFCW) at 88, Jalan Perdana, Kuala Lumpur.
