The Empire Wants War, Not Justice

Among all the words the Bush administration has used to describe theSeptember 11 terrorist attacks -- "atrocity", "outrage","act of evil" -- one phrase has been conspicuously missing:"crime against humanity".

It's an odd absence. International law defines a crime against humanity as anact committed as part of a "widespread or systematic attack against anycivilian population, with knowledge of the attack".

That would certainly seem to cover terrorists flying civilian aircraft intocrowded office buildings in order to kill thousands of innocent people.

Perhaps its absence in official lingo is down to the Bush administration'sdesire to avoid treating the terrorist attacks as "crimes" and ratherto treat them as "acts of war".

If someone has committed a crime, evidence is collected and presented -- butmuch of the "evidence" against Osama Bin Laden hasn't been made publicand what has been seems highly circumstantial.

If someone has committed a crime, they're arrested -- the cities andcountries that they live in aren't (usually) bombed and Special Forcesassassinations squad aren't sent out after them.

If someone has committed a crime, they're brought to trial -- they're notdeclared "Wanted: Dead or Alive'', as Bush has declared Bin Laden, with aheavy and obvious lean towards "dead'' being the preferred option.

But if they're acts of war, then the normal rules and procedures don't applyand far wider agendas than "bringing the perpetrators to justice" canbe pursued -- which is exactly what the US war machine is doing right now in theMiddle East.

But perhaps the US administration's motivation for not calling the terroristoutrages "crimes against humanity" extends beyond simply wantingbroader operational parameters for this present war.

Because the United States has sought to frustrate and sabotage internationalefforts to create the very machinery which could prosecute and try such crimes.

That machinery is the International Criminal Court, long a goal ofinternational jurists and human rights lawyers and now almost a reality -- butfacing the very real prospect of being demolished by the US administration.

The statutes of the International Criminal Court were established by theTreaty of Rome, negotiated by a July 1998 conference attended by officials from140 countries.

The treaty specifies that the court would be an independent judicial body toprosecute the gravest crimes under international law: genocide, war crimes andcrimes against humanity.

Under the rule of "complementarity", the ICC would only try caseswhen national courts were unable or unwilling to do so -- such as might occur ifthe accused was a high-ranking member of a country's government.

Up until now, there have been international tribunals to hear such cases --such as the present trials of accused Balkan war criminals in the Hague or thetrials of those accused of the Rwanda genocide. But these have been ad hoc, setup by the United Nations for a specific purpose only.

There is also an International Court of Justice, but it can only try casesbetween two countries.

The ICC, in contrast, would be permanent and would try individuals.

Cases could still be referred to it by the UN Security Council, as with theexisting tribunal system. But investigations could also be instigated on theapplication of a state party to the treaty or by the ICC Prosecutor, meaningthat it wouldn't necessarily be constrained to investigating what the majorpowers told it to investigate.

As a treaty-based organisation, the ICC would not be beholden to the UnitedNations or any other international body, although it would only be able toinvestigate crimes in countries which aren't signatories to the Treaty of Romeif asked to do so by the UN Security Council.

The court itself would be made up of 18 judges, elected to non-renewablenine-year terms by a two-thirds majority of treaty parties; no two judges can befrom the same country. The Prosecutor would be elected in similar fashion.

Like the International Court of Justice and the Balkans tribunal, the ICCwould be based in the Dutch capital, the Hague.

To come into force, the treaty needs 60 countries to ratify it. At present,it has 139 signatories (signing a treaty is the intermediate step beforeratifying it) and 43 ratifications.

But while human rights lawyers are hopeful that the 60 ratifications willcome soon, an International Criminal Court may prove to be still-born if theBush administration has its way.

The United States backed the establishment of the Balkans and Rwandan warcrimes tribunals -- but a permanent body is something different entirely.

Successive administrations have stridently opposed any form of internationaljustice system which might, even conceivably, challenge US"sovereignty", US primacy or US capacity to act as it alone sees fit.

A permanent International Criminal Court might not simply be "victor'sjustice", as ad hoc, Security Council-established tribunals will almostinvariably be.

Even more worryingly for the world's last remaining superpower, the ICC mightconceivably launch what the US ambassador for war crimes calls "rogueprosecutions": that is, prosecutions of pro-Western war criminals (Pinochet)or US soldiers who commit war crimes (Calley at My Lai) or even senior USofficials (Kissinger).

Then US president Bill Clinton opposed the Treaty of Rome when it was firstnegotiated. The United States was one of only seven nations to vote against thetreaty at the end of 1998 Rome conference, as against 120 nations in favour.

In his last few days in office, however, Clinton changed his mind and signedit -- officially because he believed the chances of influencing the finaloutcome were greater if the US was a signatory, but reportedly only in order toleave a diplomatic headache for his successor.

The chances of the treaty winning the current president's endorsement ortwo-thirds Senate support required to ratify it are exceedingly narrow, however.

George Bush has sent his lawyers out to find ways to "unsign" thetreaty -- so far without success: there are mechanisms to pull out but they'reonly open to countries which have ratified. The administration is alsoconsidering a global "un-ratification" campaign.

The US, as a matter of course, generally refuses to ratify internationaltreaties of any type, seeing them as a potential threat to its"sovereignty", and will usually only become signatories to them.

Many international treaties work without US ratification, however, becausethe White House signals that it will cooperate with the treaty's enforcement.

That is unlikely to be the case with the ICC.

On the very eve of the terrorist attacks, September 10, the Senate passed anamendment to the Commerce, Justice, State and Judiciary Appropriations Billwhich bars any further US participation in negotiations about the court andobstructs government cooperation with it. Earlier legislation bans any USfunding for the court.

Potentially even more damaging to the ICC are attempts by the Republicanfar-right, led by veteran Senator Jesse Helms, to pass legislation, the AmericanServicemembers Protection Act, which would direct the President to refuse tocooperate with the ICC in any way.

Helms' attempts to have the bill passed as amendments to a September 10 voteon US payment of its UN dues and to a September 26 bill on defense departmentappropriations both failed. But backers of the bill are vowing to reintroduce itat the earliest opportunity and say they have the President's backing.

The bill would ban US troops from serving on UN peacekeeping missions unlessgiven immunity from ICC jurisdiction, would prevent any US government agencyfrom helping the court in any way and would block military aid to any non-NATOstate which ratifies the treaty.

The ASPA even goes so far as to authorise the President to send in themarines to free any American soldier or official taken into ICC custody --leading international jurists to dub it the "Hague Invasion Act".

Now the reason why bin Laden is not going to be brought before aninternational court for "crimes against humanity" becomes somewhatclearer.

The Empire wants to reserve the right to commit such crimes of its own in thefuture (against Afghanistan certainly, but even conceivably against theNetherlands) and won't brook interference.