Jeffrey LewisInternational Criminal Court

The Bush Administration announced a surprise push for a new Security Council Resolution by Friday that would extend by one year an exemption from prosecution by the International Criminal Court granted to U.S. personnel (including contractors).

“Given the recent revelations from Abu Ghraib prison, the U.S. government has picked one hell of a moment to ask for special treatment on war crimes,” said Richard Dicker of Human Rights Watch. The timing is, in fact, terrible: The Washington Post has obtained new photographs and sworn statements from some of the prisoners.

The worst part about the exemption is that it is unnecessary–the Rome Statute contains a number of safeguards that make it virtually impossible for U.S. personnel who commit war crimes to be tried anywhere but the United States. The Clinton Administration was extremely cautious in making sure that the Statute provided for:

1. Limitations on the court/’s jurisdiction to war crimes be committed “pursuant to or in furtherance of a State or organizational policy to commit such attack.” In other words, the torture has to have been part of a systematic policy–which Rumsfeld said it was not.

2. The right of the United States to reject the court/’s jurisdiction “on the ground that it is investigating or prosecuting the case”–which, of course, we are.

Donald Scheffer, Ambassador at Large for War Crimes Issues during the Clinton Administration, wrote a thoughtful analysis of the ICC for a law journal, concluding “it would take an unbelievable sequence of events for any U.S. personnel acting under the authority of the United States government in a foreign jurisdiction to find himself or herself standing before the bar of the ICC in the Hague.”

“It would take, I would argue, extreme acts of incompetence on the part of our government for that to happen,” Scheffer writes. “If the government is competent, it will never happen. If the government is almost intentionally incompetent, you could map out a complex hypothetical that could get you there.”

Then again, “competence” isn/’t the first word that comes to mind when I think “W & the Vulcans”. Maybe we do need that exemption, after all.