War Crime Tribunals - A Primer
What a surprise, this week, to find Radovan Karadzic in custody, and the game still afoot.
(Mad Rad. A strange case. Surely nothing stranger than man walks the earth.)
One was then led to wonder about the likelihood that the likes of baby Bush, Cheney, Rumsfeld, Wolfowitz and Feith might someday be indicted by international authorities for crimes in Iraq, Egypt, Guantanamo Bay and who knows where else.
A friend who knows about these things explains the international legal framework:
1. The court where our friend Radovan is about to face justice at long last is the International Criminal for the Former Yugoslavia (ICTY). As its name implies, this court’s jurisdiction is limited to serious violations of international humanitarian law (war crimes, crimes against humanity, genocide) committed on the territory of the former Yugoslavia during the 1990s.
The time-frame of the ICTY’s jurisdiction starts in 1991 and effectively ends a decade later, when the ICTY was told by the UN Security Council to cease issuing new indictments and to wind up all cases and appeals by 2010.
The Russians and the Chinese were particularly insistent on this, but the other permanent members (US, France, UK) did not object too strongly. The only reason our friend Radovan is still eligible for trial is because he was indicted by the ICTY more than 13 years ago and has been on the lam ever since.
See here for details about the ICTY, and the reasons why it cannot charge or try Feith, Rumsfeld et al.
2. There is another famous UN court based in The Hague, the International Court of Justice (ICJ), also known as the World Court. Unlike the ICTY, the ICJ is a permanent court and won’t be told to shut down by the Security Council.
However, it has no jurisdiction to try any individuals. It’s strictly a legal venue where states can turn to resolve disputes about, e.g., the delineation of borders, observance of treaties etc. It’s essentially the large-scale equivalent of a civil court, where one can sue for damages and determinations of ownership and the like.
For more, see the ICJ’s website.
So Rumsfeld & co. aren’t eligible for prosecution in either of the above, simply because the ICTY and the ICJ lack jurisdiction.
3. But there’s also a third court in The Hague, so brand new that it’s still in rented space, awaiting construction of its permanent premises and has yet to bring its first case to trial. That new court is the International Criminal Court (ICC).
Unlike the other two Hague courts (ICJ and ICTY), the new International Criminal Court was not set up by the United Nations. The ICC is a treaty body, established by the Treaty of Rome, which came into effect on 1 July 2002, 60 days ater the 60th state had deposited its ratification of the Rome Treaty.
The ICC can prosecute individuals (not states) for serious violations of international humanitarian law specified in its statute. While it’s somewhat complicated (see the ICC’s FAQ page), the important catch for our purposes is that the U.S. is not a signatory to the Rome Treaty.
4. In short, it’s unlikely Rumsfeld et al. have reason to worry about facing prosecution by the ICC, or by any other international court at The Hague.
The eventuality that should give them reason to worry is cases brought in national jurisdictions — such as the UK court case that gave Pinochet the scare of his life back in 1999-2000, when the retired Chilean dictator came to London for a bit of quiet rest and relaxation and shopping and found himself under house arrest for 16 months, potentially facing trial for torture and other crimes against humanity.
For these reasons (again, the legal side is a bit complicated) the Bush administration’s torturers and enablers of torture, as well as certain Israeli and other officials with similarly murky pasts are well-advised these days to be consult a lawyer before they make their travel plans. See here for more on this heartening new trend.
ed says:
In the wake of Obama’s election, thoughts are stirring.
The weekend before the election, PBS broadcast its Frontline documentary on the Bush-Cheney torture program: Torturing Democracy.
The website for the film (see link above) includes a portion of the sizeable archive of Bush-Cheney documents that have been unearthed by various journalists documenting the regress of the torture program thru the administration’s bowels.
Is the archive the basis of criminal prosecution, perhaps, once the principals are out from behind the White House fence?
And much talk is in the air of shutting down the Guantanamo prison ASAP.
Obama of course is a lawyer, and taught some constitutional law. He may be concerned not only to set things aright, but to prevent his own administration from being tainted by the prison.
I’ve wondered elsewhere if Robert Gates may not be kept on at Defense — rumor has it he may — to oversee the “dirty work” of shutting the prison down and purging the Pentagon of those responsible for it.
I can’t think of anything Obama might do on Day One that would more effectively set the tone and set the country back on its course.
Gitmo Got to Go!
November 12th, 2008 at 2:40 am
ed says:
Bush is being petitioned by CIA et al to pardon people who committed torture in pursuit of Bush-Cheney truth, justice & american way.
November 15th, 2008 at 9:19 pm