BY SEAN HEALY
Among all the words the United States government has used to describe the September 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 an act committed as part of a "widespread or systematic attack against any civilian population, with knowledge of the attack". That would certainly seem to cover terrorists flying civilian aircraft into crowded office buildings in order to kill thousands of innocent people.
Perhaps its absence in official lingo is down to the Bush administration's desire to avoid treating the terrorist attacks as "crimes" and rather to treat them as "acts of war".
If someone has committed a crime, evidence is collected and presented — but much of the "evidence" against Osama bin Laden hasn't been made public and what has been seems highly circumstantial.
If someone has committed a crime, they're arrested — the cities and countries that they live in aren't (usually) bombed and special forces assassination squads aren't sent out after them.
If someone has committed a crime, they're brought to trial — they're not declared "Wanted: dead or alive", as George Bush has declared of Osama bin Laden, with "dead" being the implied preference.
But if they're acts of war, then the normal rules and procedures don't apply and far wider agendas than "bringing the perpetrators to justice" can be pursued — which is exactly what the US war machine is doing right now in Afghanistan.
But perhaps the Bush administration's motivation for not calling the terrorist outrages "crimes against humanity" extends beyond simply wanting broader operational parameters for this present war. How else to account for the fact that the US government has sought to frustrate and sabotage international efforts to create the very machinery which could prosecute and try such crimes.
That machinery is an International Criminal Court long a goal of international jurists and human rights lawyers and now almost a reality — but facing the very real prospect of being demolished by the Bush administration.
The statutes of the International Criminal Court were established by the Treaty of Rome, negotiated by a July 1998 conference attended by officials from 140 countries. The treaty specifies that the court would be an independent judicial body to prosecute the gravest crimes under international law: genocide, war crimes and crimes against humanity.
Under the rule of "complementarity", the ICC would only try cases when national courts were unable or unwilling to do so — such as might occur if the 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 the trials of those accused of the Rwanda genocide. But these have been ad hoc, set up by the United Nations Security Council for a specific purpose only. There is also an International Court of Justice, but it can only try cases between 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 the existing tribunal system. But investigations could also be instigated on the application of a state party to the treaty or by the ICC prosecutor, meaning that it wouldn't necessarily be constrained to investigating what the major powers told it to investigate.
As a treaty-based organisation, the ICC would not be beholden to the UN Security Council or any other international body, although it would only be able to investigate crimes in countries which aren't signatories to the Treaty of Rome if asked to do so by the UN Security Council.
The court itself would be made up of 18 judges, elected to non-renewable nine-year terms by a two-thirds majority of treaty parties; no two judges can be from the same country. The prosecutor would be elected in similar fashion.
Like the International Court of Justice and the Balkans tribunal, the ICC would be based in the Dutch city of 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 before ratifying it) and 43 ratifications.
But while human rights lawyers are hopeful that the 60 ratifications will come soon, an International Criminal Court may prove to be still-born if the Bush administration has its way.
The US backed the establishment of the Balkans and Rwandan war crimes tribunals — but successive US administrations have stridently opposed any form of international justice system.
A permanent International Criminal Court might not simply be "victor's justice", as ad hoc, Security Council-established tribunals will almost invariably be.
Even more worryingly for the world's only imperialist superpower, the ICC might conceivably launch what the US ambassador for war crimes calls "rogue prosecutions": that is, prosecutions of pro-Western war criminals (such as Chilean dictator Augusto Pinochet) or US soldiers who commit war crimes (such as Lt William Calley at My Lai) or even senior US officials (Henry Kissinger).
The Clinton administration opposed the Treaty of Rome when it was first negotiated. The US was one of only seven countries to vote against the treaty at the end of the 1998 Rome conference, as against 120 countries in favour.
In his last few days in office, however, Bill Clinton changed his mind and signed it — officially because he believed the chances of influencing the final outcome were greater if the US was a signatory, but reportedly only in order to leave a diplomatic headache for his Republican successor.
The chances of the treaty winning the current president's endorsement or two-thirds Senate support required to ratify it are exceedingly narrow, however. Bush has sent his lawyers out to find ways to "unsign" the treaty — so far without success: there are mechanisms to pull out but they're only open to countries which have ratified. The administration is also considering a global "un-ratification" campaign.
The US, as a matter of course, generally refuses to ratify international treaties 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, because the 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, on September 10, the US Senate passed an amendment to the Commerce, Justice, State and Judiciary Appropriations Bill which bars any further US participation in negotiations about the court and obstructs government cooperation with it. Earlier legislation bans any US funding for the court.
Potentially even more damaging to the ICC are attempts by the Republican far-right, led by veteran Senator Jesse Helms, to pass legislation, the American Servicemembers Protection Act (APSA), which would direct the president to refuse to cooperate with the ICC in any way.
Helms' attempts to have the bill passed as amendments to a September 10 vote on US payment of its UN dues and to a September 26 bill on defence department appropriations both failed. But backers of the bill are vowing to reintroduce it at the earliest opportunity and say they have the White House's backing.
The bill would ban US troops from serving on UN peacekeeping missions unless given immunity from ICC jurisdiction, would prevent any US government agency from helping the court in any way and would block military aid to any non-NATO state which ratifies the treaty.
The ASPA even goes so far as to authorise the US president to send in the marines to free any US soldier or official taken into ICC custody — leading international jurists to dub it the "Hague Invasion Act".
Now the reason why accused terrorist "mastermind" Osama bin Laden is not going to be brought before an international court for "crimes against humanity" becomes somewhat clearer: The Empire wants to reserve the right to commit such crimes of its own in the future (against Afghanistan certainly, but even conceivably against the Netherlands) and won't brook any interference.