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The Hague's International Criminal Court will not put Bush on trial
by Richard S. Ehrlich
May 10, 2009

BANGKOK, Thailand -- The International Criminal Court (ICC) in the Hague, Netherlands, expects U.S. President Barack Obama to allow it to put Americans on trial, but not prosecute former President George W. Bush or his officials for alleged torture or other war crimes.

During ICC President Sang-Huyun Song's visit to New York and Washington, starting on May 18, America's possible membership in the ICC will be discussed with Mr. Obama's top officials and others.

"These people, even during the Bush administration, expressed their support and their understanding about the ICC, and now all the more so with the advent of the Obama administration," Washington may decide to join, the ICC president said in an interview.

During his stopover in Bangkok on Monday (April 27), Mr. Song named several top U.S. officials he hoped to meet in America.

"Harold Koh is one, who [if confirmed] will be the top legal adviser of the State Department. And Ambassador Susan Rice, the U.S. Permanent Representative to the United Nations. I will meet them."

Former President Bill Clinton, during his administration, signed preliminary documents to join the ICC which prosecutes "genocide, crimes against humanity and war crimes," but Mr. Bush quickly "unsigned" the papers when he became president, Mr. Song said.

"Out of fear of a politically motivated investigation and prosecution, President Bush in particular was very critical of the ICC," which is a permanent court set up six years ago.

"That is a groundless fear from the beginning. We never touch upon a politically motivated decision."

Song was also told: "'The ICC has 18 judges who cannot be accounted for, they are not even elected officials, and what if our soldiers around the world are brought to the ICC every day, how could we, the U.S., cope with this situation?' This is what President Bush said. That is a very wrong understanding.

"All these cases, of little soldiers, are small fish stationed around the world. It has nothing to do with the ICC's investigation or prosecution.

"We don't deal with the small fish. We deal only with the top, top person. So, from the beginning, all these small fish are beyond our legal consideration."

If Mr. Obama's administration ratifies the Rome Statute which governs the ICC, any possible trials against Americans would probably only involve allegations of crimes committed from that date forward.

"Suppose the U.S. joined today, then all the crimes allegedly committed [by Americans] before this day, are not going to come under our jurisdiction."

As a result, torture and other acts covered by the ICC -- and allegedly committed or authorized by Americans before 2009 in Iraq, Guantanamo Bay, America's Airbase in Bagram, Afghanistan, or at so-called secret prisons in foreign countries such as Thailand -- would probably not be prosecuted by the ICC.

"In principal, it is not possible," because there is no "retro-activity" for crimes committed before a country ratifies the ICC's agreement, "unless your country would declare acceptance of jurisdiction even for all the past atrocities or ICC crimes," Mr. Song said.

"Your government has to clearly declare: 'We will accept ICC jurisdiction for all the crimes committed from day one, many years ago.'

"One country did it. The Ivory Coast."

The ICC's definition of torture, and similar legal terms, are copied from the Geneva Conventions.

"Our judge from Uganda was just at West Point Military Academy, which has opened its center for international law, and their opening session was about, 'What would the legal implications of U.S. accession to the Rome Statute be?'" said ICC Chief of Cabinet, Lousewies van der Laan, in an interview.

"It is a fascinating legal question, even more fascinating when top military brass lawyers are actually discussing that," she said.

"There are actually quite a number of [American] military people who think that the U.S. resistance to the Rome Statute creates the impression that they have something to hide."

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Richard S Ehrlich is a Bangkok-based journalist who has reported news from Asia since 1978. He is co-author of "Hello My Big Big Honey!", a non-fiction book of investigative journalism, and his web page is http://www.asia-correspondent.110mb.com

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