I went and cobbled together this thread’s original post from a variety of utterly unrelated sources, now I read this. Maybe it’s something in the air.
[quote=“The Economist: Pulling back the blanket”][color=green]“THERE is no longer any doubt as to whether the current [Bush] administration has committed war crimes,” Antonio Taguba, a retired American general who conducted the first investigation into prisoner abuse at Abu Ghraib, declares in a new report on the maltreatment of detainees: “The only question that remains is…whether those who ordered the use of torture will be held to account.”[/color]
As George Bush’s presidency draws to a close, many others in his administration, including Mr Bush himself, may be asking the same. Like all heads of state and government, along with many of their senior officials, the American president enjoys wide immunity from both criminal prosecution and civil lawsuits, at home and abroad, while he remains in office. But once he goes, so does much of his protection. And though nobody expects Mr Bush to face legal problems at home, it is just possible that in some other country, a prosecutor (or a private citizen initiating a civil suit) will try to hold him to account for America’s record in Iraq and elsewhere.
[…]
Traditionally, government leaders have enjoyed two types of legal protection when abroad: functional immunity, shielding them for life from prosecution in the domestic courts of other countries for acts carried out as part of their official duties; and personal immunity, protecting them from prosecution in foreign courts for all acts while in office—“irrespective of their gravity”, as the International Court of Justice (ICJ) ruled in 2002—but only for as long as they stay in power.
But a growing school of thought is challenging the idea that important folk should be deemed “more equal than others” before the law. The argument that some crimes merit no immunity is almost a century old. Provision was made in the 1919 Versailles Treaty for the defeated German emperor to be tried for “a supreme offence against international morality”. In 1945 the Nuremberg tribunals likewise refused to absolve Nazi leaders of responsibility for war crimes and other atrocities.
[…]
But the ICC, set up under the 1998 Rome Statute, does not have unlimited jurisdiction. It can only prosecute international crimes involving at least one country that has signed up to the court. Although 106 countries have joined that list, America has not; nor has Zimbabwe. This means that Mr Mugabe could not be prosecuted by the ICC unless there was a referral to the court by the Security Council, as happened with Sudan, which is not a party either. It is not clear that recent events in Zimbabwe, however awful, amount to a “crime against humanity”, defined by the ICC’s statute as a “widespread or systematic attack” on civilians. But if the court did take up the case, Mr Mugabe would be equally vulnerable, in or out of office, given the lack of immunity for such crimes.
[color=blue]There is no technical reason why the ICC should not try to go after Mr Bush, in the unlikely event that it found America was guilty of atrocities in Afghanistan (which is a party to the court, while Iraq is not.)[/color][Afghanistan signed up 10 Feb 2003.]
However, there is another way that the leaders of countries that have stayed out of the ICC could be prosecuted, despite their head-of-state immunity. That is by means of the principle known as universal jurisdiction. This allows states to prosecute international crimes such as genocide, torture and crimes against humanity in their own domestic courts, even when they have no link with the perpetrator, victims or site of the crime.
[…]
The once-cosy blanket of immunity is starting to look rather threadbare.[/quote]
That bit in blue got me wondering why Iraq isn’t a party to the ICC. The original vote on the ICC was held in 1998, while Saddam was still running the show, and I can see why he wouldn’t have supported it.
[quote=“Wikipedia”]
Following years of negotiations, the General Assembly convened a conference in Rome in June 1998, with the aim of finalising a treaty. On July 17, 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, the People’s Republic of China, Qatar, the United States, and Yemen.
[/quote]But why hasn’t the new Iraqi government joined the ICC?
It almost did.
[quote=“Radio Free Europe Radio Liberty: 2 March 2005”]Iraq Pulls Out Of International Criminal Court
Iraq’s interim government has revoked its decision to adhere to the International Criminal Court, which it had announced just two weeks ago.
State television says that Iraq pulled back from the court today. It offered no explanation.[/quote]Too bad, because if the Iraqis hadn’t suddenly changed reversed course, they’d be a party to the court, and the court would acquire jurisdiction over crimes committed in the country.
In fact, a number of complaints have been lodged with the prosecutor of the ICC in connection with the latest war in Iraq, but in connection to the acts of personnel whose countries are signatories. If Iraq joined, personnel from all states acting in country would be at risk (of being held to account… kind of a strange phrase, imho).
In case this sounds like a bunch of silly, unfounded spin, the possible consequences have obviously been considered at the highest level of the government.
Gee, look at these dates. What a coincidence.[quote=“Commondreams.org: 23 June 2004”]Faced with the prospect of a humiliating defeat, the United States abandoned its proposal to seek Security Council exemption for U.S. soldiers from possible war crime charges in future U.N. peacekeeping operations overseas.
Unable to muster the necessary nine votes in the 15-member Security Council, Washington jettisoned the draft resolution Wednesday following widespread opposition from an overwhelming majority of member states.
”We were told that 11 out of 15 countries had threatened to abstain on the vote,” Bill Pace, convenor of the Coalition for the International Criminal Court (CICC), told IPS.
[…]
[U.N. Secretary-General Kofi Annan] told reporters last week that he had ”quite strongly” spoken against the exemption, ”and I think it would be unfortunate for one to press for such an exemption, given the prisoner abuse in Iraq.”
”I think in this circumstance it would be unwise to press for an exemption, and it would be even more unwise on the part of the Security Council to grant it. It would discredit the Council and the United Nations that stands for rule of law and the primacy of rule of law,” he added. [/quote][quote=“Washington Post: 24 June 2004”] The Bush administration has decided to take the unusual step of bestowing on its own troops and personnel immunity from prosecution by Iraqi courts for killing Iraqis or destroying local property after the occupation ends and political power is transferred to an interim Iraqi government, U.S. officials said.
The administration plans to accomplish that step – which would bypass the most contentious remaining issue before the transfer of power – by extending an order that has been in place during the year-long occupation of Iraq. Order 17 gives all foreign personnel in the U.S.-led Coalition Provisional Authority immunity from “local criminal, civil and administrative jurisdiction and from any form of arrest or detention other than by persons acting on behalf of their parent states.”
U.S. administrator L. Paul Bremer is expected to extend Order 17 as one of his last acts before shutting down the occupation next week, U.S. officials said. The order is expected to last an additional six or seven months, until the first national elections are held. [/quote]
Yeah, I think the proposition that Bush will face prosecution for war crimes will make a pretty good long bet. Of course, he didn’t even have a passport before being elected to the Oval Office, and may never again travel outside the country… adding a layer of safety. And however much public opinion and the political environment change, it’s unlikely that he’ll face charges for war crimes in the US, so maybe I should expand the scope of the wager to include the impeachment option (possible even after he’s out of office).
