As a result of the wars in Iraq and Afghanistan, the atrocities at Abu Ghraib and Guantanamo, and the horrific loss of life associated with the past eight years of the United States' rampaging about the world, there have been countless calls for George W. Bush, Dick Cheney, Donald Rumsfeld, and assorted others associated with the Bush "administration" to stand trial in The Hague for war crimes and crimes against humanity. Like many, I always assumed The Hague was a type of court in which law-breaking national leaders, both past and present, could be tried and sentenced before the world in a process similar to the Nuremberg Trials. But I was surprised to find that it's not that simple. In fact, my research shows that not only are Bush et al not even eligible to stand trial in The Hague, they may manage to escape any accountability for their actions.
The Hague is a city in the Netherlands with a long history of serving as a center for administration and law. Over 150 international organizations concerned with peacekeeping, justice, human rights, and international legal tribunals are currently based in The Hague. Each organization has its own structure, group of members, charter, and conventions. To "stand trial in The Hague," therefore, can mean a number of things depending on the organization overseeing the trial. The organizations comprise the following branches: Judicial, Legislative, Executive, Academic, and NGO. The branch concerned with trying humanitarian crimes, Judicial, consists of the following groups: International Court of Justice (ICJ), International Criminal Court (ICC), International Criminal Tribunal for the former Yugoslavia, Iran-United States Claims Tribunal, Permanent Court of Arbitration (PCA), Special Court for Sierra Leone, and Special Tribunal for Lebanon.
Of these, the only entities that could appropriately be concerned with the question at hand are the ICJ, the PCA, and the ICC. The ICJ, as the judicial arm of the United Nations, settles issues of international law between states and rendering legal advice, so that wouldn't be applicable. The PCA settles disputes between states, or between states and international organizations, so that wouldn't be applicable, either. The ICC is the global forum for trying and prosecuting individuals, as opposed to states, accused of crimes against humanity. Bingo.
Some countries have had their own war crime courts set up by the UN Security Council, such as the International Criminal Tribunal for the former Yugoslavia, which was established in 1991. The ICC, however, is the product of an international treaty among its member nations, known as the States Parties to the Rome Statute. Upon forming the ICC in 1998, the member nations worked out, over a course of four years, the Rome Statute, a charter for establishing the legal foundation of the court and determining definitions of war crimes, genocide, crimes against humanity, and crimes of aggression. The member nations ratified the Rome Statute on July 1, 2002, meaning that they agreed to abide by the rules they had created and to hold other member nations responsible for abiding by the rules.
According to the ICC:
As of 1st June 2008, 108 countries are States Parties to the Rome Statute of the International Criminal Court. Out of them 30 are African States, 14 are Asian States, 16 are from Eastern Europe, 23 are from Latin American and Caribbean States, and 25 are from Western European and other States.Among the nations absent from the list are India, Indonesia, Iran, Iraq, Israel, North Korea, Kuwait, Libya, Nicaragua, Oman, Pakistan, Palestinian National Authority, Philippines, Qatar, Russia, Saudi Arabia, Sri Lanka, Sudan, Syria, Turkey, and the United States.
The Court is intended to be a resource of last resort, called upon only when a nation is itself "unable or unwilling" to investigate, try, and/or prosecute. The ICC recognizes national courts' jurisdiction over cases involving war crimes, genocide, aggression, and crimes against humanity, and it will not intervene unless a nation is genuinely unwilling or unable to proceed, defined as follows:
A country may be determined to be "unwilling" if it is clearly shielding someone from responsibility for ICC crimes. A country may be "unable" when its legal system has collapsed.These standards apply only to member nations. If a nation has not ratified the Rome Statute, it is effectively rejecting the conventions of the ICC and is not considered a member with the rights, privileges, and responsibilities appertaining thereto. The U.S., not having ratified the Rome Statute, is not a member. Therefore, the U.S., as well as any other country that does not participate, is not eligible for scrutiny under the ICC. Likewise, individuals who are citizens of non-member states may not be brought to trial before the ICC, and states that are not members cannot bring charges against other non-member states. And, maddeningly, that means that Bush, Cheney, Rumsfeld, and their ilk are not eligible to stand trial at the International Criminal Court in The Hague.
And, boy, did Bush and Co. work overtime to ensure this. From the moment he "took" office, George Bush wasted no time reversing Bill Clinton's signing of the Rome Statute. The now-infamous Torture Memos, some of which date from 2002, document the Justice Department's claim that the U.S. not only is not bound by the jurisdiction of the ICC, but terrorist suspects are also not entitled to protection under the Geneva Conventions. The timing of these activities was no accident, as they occurred right around the time of the ratification of the Rome Statute. The Bush administration systematically built the documentation infrastructure to support its intention to do whatever it pleased to whomever and whatever country it pleased, in utter contempt for the rules of international law and human rights.
In a piece in Monday's New York Times, the question of whether a national truth commission should be set up to address the crimes of the Bush administration was put to several experts in criminal justice, international law, and constitutional law. Readers' comments ranged from "Frog-march Bush to the ICC" to "Just let it go already and let's move on--we have enough problems today without going back to the past." As I attempt to show in this diary and in my comment there, the former is not possible; the latter. . .well, we've all read stories about people who are still rooting out elderly members of Hitler's SS, so do we as a nation really believe that the appropriate response to the horrors inflicted both on and by us is merely to shrug our collective shoulders and "move on" because it's too much trouble to go back to the past--a "past" we can plausibly measure not in generations, but in weeks and months?
As deeply as more and more Americans, and much of the world, may yearn for the Bush administration to face its fate in an international court of law, the only hope for justice lies within our own nation's borders. If we ourselves don't insist and see to it that George W. Bush, Dick Cheney, Donald Rumsfeld, and everyone else with a hand in the putrid mire of death known as the Bush Doctrine are brought to justice in the United States, they will not be brought to justice. Period.