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

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