The
US's underminding of
international justice
By
Jonathan
Power
May 10, 2002
LONDON - Of all the many ironies in President George
Bush's decision to remove America from membership of the
treaty establishing an International Criminal Court - its
own adherence to the supremacy of law, its enthusiastic
initiating of the Universal Declaration of Human Rights
and its primary role in setting up the ad hoc
international court that is now trying Milosevic - none
is more to the fore than the swapping of roles between an
imperial Britain and an idealistic United States. In the
short space of fifty-eight years there has been a total
role reversal. Winston Churchill believed that there was
only one fit punishment for the Nazi war leaders: to
execute the top fifty the moment they were captured.
Anthony Eden his foreign secretary observed that the
"guilt of such individuals as Himmler is so black that
they fall outside and go beyond the scope of any judicial
process".
But the U.S. Secretary for War Henry Stimson felt very
differently. He wrote to Roosevelt "the very punishment
of these men in a dignified manner consistent with the
advance of civilization will have a greater effect on
posterity". Roosevelt himself seemed ambiguous but when
Truman took over the US presidency he made it clear he
wanted the Nuremberg court established quickly and agreed
with Supreme Court Justice Robert Jackson, whom he
nominated as chief prosecutor, that anything else than a
fair international trial "would not sit easily on the
American conscience or be remembered by our children with
pride."
No wonder that when the Bush administration announced
on Monday that it no longer saw itself bound by its
signature of the treaty establishing an International
Criminal Court, Kenneth Roth, executive director of Human
Rights Watch could observe, "The administration is
putting itself on the wrong side of history…. "
Yet it cannot be rational legal principles that have
turned Bush against the treaty so vehemently and led it
once again to cross swords with its faithful ally,
Britain. It is the reflex America-must-be-in-charge- or
-we-don't-do-it mentality of the neo-conservatives who
wield so much influence in Washington combined with the
anti-internationalism of the Christian right who give the
impression that they believe that the US is the sole
virtuous country in a very dark world. The truth is, in
the negotiations in Rome to write the treaty in 1998, the
US rammed through almost every change it wanted. Its
goal, it made clear, was to make more than doubly sure
that no American soldiers could ever come to trial before
the court.
So pleased is much of the world at having got the
treaty written and now recently winning the 60
ratifications necessary for the court to begin work -
which it will on July 1st - that it has tended to play
down just how much harm the American negotiators did to
the treaty in Rome. Most importantly, the U.S.
successfully wrote into the treaty provisions that in
effect mean that nobody occupying a position of current
political or military power in any state is likely to be
put on trial unless they invade another state and commit
war crimes on its territory. Thus, since also the court
cannot act retrospectively, it cannot seek to arrest
Saddam Hussein, as long as from now on he keeps his army
at home. As Geoffrey Robertson has written in his
masterful book "Crimes Against Humanity", "the class of
criminal most likely to be arraigned at The Hague
comprises persons who commit barbaric crimes in a cause
that has utterly failed, in a country which decides to
surrender them because it lacks the facilities to try
them itself. Otherwise the Court will become a kind of
"permanent ad hoc" tribunal dependent on references from
the Security Council to instigate countries like former
Yugoslavia and Rwanda where none of the combatants have
superpower support." Thus the chances of Ariel Sharon,
the prime minister of Israel ever being charged are zero
whatever he decides to do and however brutally he does it
- as long as Israel maintains U.S. political support.
The only silver lining on Monday's decision was the
announcement by Pierre-Richard Prosper, the U.S.
ambassador-at-large for war crimes, that contrary to what
had been feared, the US will not launch a campaign
against the treaty by penalising countries that had
signed up and, most important, that the US would be
willing to consider sending cases to the Court through
the UN's Security Council. (Perhaps Osama bin Laden,
following a future atrocity, a case that might be
considered too hot to handle for a U.S. court?)
This is just as well. Otherwise the U.S. would be in
danger of ending up behaving like Churchill wanted to:
putting against a wall those fifty it considers bad
enough to deserve having the trigger pulled. This would
be a different America from the one presided over by
Truman who, contemptuous of the British position, said
that he believed in the "beneficent power of law and the
wisdom of judges".
I can be reached by phone +44
7785 351172 and e-mail: JonatPower@aol.com
Copyright © 2002 By
JONATHAN POWER
Follow this
link to read about - and order - Jonathan Power's book
written for the
40th Anniversary of
Amnesty International
"Like
Water on Stone - The Story of Amnesty
International"
Tell a friend about this article
Send to:
From:
Message and your name
 
|