Crime Without Punishment

Boulder, Colorado

The risk, of course, is that the International Court of Criminal Justice might agree with United States Military investigators and decide to prosecute. That would be most unwelcome. It was all brought to mind again when the United States abstained from a vote on how to deal with events in Darfur. But first a bit of history.

One of the first things George Bush did when he was elevated to the White Palace, from which he now rules, was to remove the signature of the United States of America from a treaty. The treaty pertained to the International Court of Criminal Justice that was established through an agreement reached in Rome and signed by 78 nations. It was signed by Bill Clinton, Mr. Bush’s predecessor. With the affixing of the signature, the U.S. became a party to the treaty subject to its being ratified by the U.S. Senate.

Following his ascendancy, Mr. Bush said to his counselors, although not in these exact words: “Can no one rid me of this troublesome treaty?” Eager to please, John Bolton, newly designated U.S. Ambassador to the United Nations, but then undersecretary of state for arms control and international security (a title that subsequent events such as 9/11 suggested was more of a joke than a description of what he did) fetched an eraser and erased Mr. Clinton’s signature. He was later quoted as saying that erasing the signature was “the happiest moment in my government service.” (If wielding an eraser was the most fun thing he ever did while in government service one has to wonder whether he won’t find serving as a U.N. ambassador a bit of a let down.) Notwithstanding the erased signature, that was not the last Mr. Bush would see of the treaty and most recently it came back to haunt him during the dither over what to do about Darfur.

Darfur is the part of Sudan in which 2.4 million people have been displaced and more than 300,000 people killed during an internal conflict that is less than 3 years old. The United Nations has decided that something should be done and on March 31 voted to send those accused of war crimes there to the International Criminal Court in The Hague. The vote was 11 in favor and four abstentions among which was the United States. It had first been thought that the U.S. would veto the resolution since it doesn’t believe in magic or in the International Criminal Court. Following amendment of the resolution to provide that Americans would not be subject to the court’s jurisdiction, the United States agreed not to veto the measure.

Commenting on the United States’ action, Anne W. Patterson, the deputy U.S. ambassador to the U.N. said: “We have not dropped and indeed continue to maintain our longstanding and firm objections and concerns regarding the I.C.C.” Her principled statement may have been motivated in part by a bit of news that came out a week earlier that might have had implications for the United States were it a signatory to the treaty.

On March 25 recommendations made by army investigators looking into the deaths of three prisoners in Afghanistan and Iraq in 2003 and 2004 were made public. The Army Criminal Investigation Command concluded 17 soldiers should be charged with murder, conspiracy and negligent homicide. Among the deaths that were investigated was the death of an Iraqi colonel who was lifted from his feet by a baton pushed into his throat. Of all the methods of hoisting someone into the air this would seem like one of the least desirable and it proved so. The colonel sustained throat injuries that contributed to his death.

Not all the men that investigators thought should be charged got off scot-free. One of them received an official letter of reprimand and another was discharged. If the U.S. recognized the jurisdiction of the ICC, the court might agree with the Army Criminal Investigation Command and bring charges against the soldiers that the American commanders thought should be ignored. The men might even be found guilty of the charges that were recommended and end up going to prison. The unwillingness of their own commanders to prosecute them would not afford them any protection. They would find they were subject to the rule of law even though the people they killed and abused were foreigners. That would come as an unwelcome surprise to Mr. Bush. It would be a welcome surprise for the rest of the world.

There won’t be any surprises. Mr. Bush doesn’t believe in them.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu or through his website: http://hraos.com/











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