Is Condoleezza Rice a war criminal? There is plenty of evidence available. However, she has not yet been held accountable; so, for the time being, it is better to say that she is, to borrow a legal archaism, a prima facie (“at first glance”) war criminal. This qualification, however, means little to the victims of her policies.

How can Rice be held accountable? This extremely brief article will not consider the case against Rice, nor questions of political will, but various legal possibilities. We cannot go into technicalities or even a thorough overview; we simply mention some relevant legal issues.

This question does not arise out of spite or vengeance. Rather, when a grievous wrong is committed, society must find a way to deal with it, holding the perpetrators accountable, and seeking to build a better society in which such wrongs are rendered impossible. If we do not hold accountable the perpetrators of terrible crimes, we offer no deterrence to future crimes. If we tolerate the crimes of the present, we enable the crimes of the future.

Although on leave while serving in the Bush administration, Rice remains a tenured Stanford professor of political science and Hoover Institution fellow. Those of us who study at the same institution have a special responsibility to act; otherwise, we become associated with the crimes, ourselves.

Principal charges

There are two principal crimes against humanity for which a strong prima facie case can be made against Rice. First, for aiding and abetting aggressive war. Second, for torture, a crime against humanity prohibited under international and US laws.

Incredibly, although aggressive war is the “supreme international crime” (to quote the Nuremberg tribunal), it is not a crime in US law – and even the ICC has not yet settled on a precise definition. Therefore, any prosecution of Rice would likely focus on her involvement in torture.

Possible fora

Where might prosecutions be held? There are US domestic courts, the International Criminal Court (ICC), or foreign courts (e.g. in Germany).

However, prosecution at the Hague-based ICC will be difficult: the US is not party to the treaty; and a US law commonly known as the “Hague invasion act” authorizes “all means necessary and appropriate” to recover US officials facing trial at the ICC. No joke.

Foreign courts
Criminal trials are usually held where the crime happened. However, some crimes are arguably so outrageous that any court, anywhere, can prosecute them – applying universal jurisdiction. Several countries have laws on universal jurisdiction – and they have been used against the Bush administration.

Donald Rumsfeld, in particular, has twice seen criminal proceedings initiated in Germany for torture – although the Federal prosecutor declined to investigate – and has been forced to flee France as a fugitive.

So, concerned Stanford students might encourage Rice to attend conferences in France or Germany.

State immunities

Defendant Rice would no doubt argue she is immune from prosecution, invoking “State immunity” doctrine – derived from the medieval maxim that “the king can do no wrong” – which holds officials immune for acts of State.

But legal developments are promising. The most famous recent case involved Augusto Pinochet, the US-approved dictator of Chile. While Pinochet visited London, a Spanish magistrate sought his extradition. The UK's highest court held that, for the specific crime of torture, no immunity is available to former heads of state.

Whatever Pinochet's arguments as a former Head of State, Rice's arguments for immunity as a former state official, also accused of torture, can be no stronger.

Get out of jail free cards

Rice's main defense would presumably be the infamous “torture memos”, written by Justice Department lawyers to justify brutal interrogation techniques. Of course, that's why they were written: to get torturers out of jail.

There is another way to look at these memos. Producing fallacious legal documents, reinterpreting the law to justify conduct that was previously clearly torture, and doing so knowing that such conduct was likely to be carried out, has another name: aiding and abetting torture. From this perspective, the memos will get nobody out of jail, but might get some lawyers into jail.

This argument is by no means unprecedented. The Nuremberg “Justice Case” prosecuted administrators of laws which blatantly violated the Geneva Conventions. Several were convicted; the judges concluded that the “prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.”

The court of last resort?

We see that all legal options face obstacles, but not for lack of culpability: arcane immunity doctrine, subversion of the ICC, and the embryonic nature of international criminal law. This raises a serious question for the Stanford community – will Stanford become the forum of last resort?

One option is to hold faculty disciplinary hearings – Rice is faculty after all. But the Stanford Faculty Handbook is a rather curious document. Taken literally, it would allow Hitler to remain on faculty, provided he did not plagiarize or commit any offenses “in association with... academic duties and responsibilities”. Would faculty read it to imply respect for basic standards of human rights and international law? In the 1970's, another tenured professor, H. Bruce Franklin, was dismissed for encouraging students to engage in civil disobedience – activity which pales in comparison.

Another option is for the Stanford community to conduct its own public trial, with regular courtroom procedures but without coercive powers. One could even make the case for a standing “Hoover prosecution bureau”.

What the Stanford community does is up to the community itself.