“Matt,” requests Steve Duncan, “play the devil’s advocate for a few minutes and present an argument Bush should NOT be charged with war crimes and tried before some sort of international tribunal.”
Done and done.
Here’s the thing. Suppose you’re someone like me — and, I take it, Steve Duncan — who wants to live in a world governed by fairly robust international law in which war criminals are punished for their crimes and, as a consequence, war crimes come to be relatively rare compared to what we see now. This is, I think, a noble vision. And not, I think, an utterly utopian one. One major problem with it, however, is that it tends to be espoused by utopian people who don’t think about nuts and bolts practicalities.
The beginning of practical thinking on the construction of a proper international war crimes regime is simply to note that we’re very far from having one. It’s exceedingly rare for war criminals to prosecuted and oftentimes when we do see prosecutions (as in the case of Saddam Hussein) it’s all badly mishandled and not done within an internationalist framework.
That said, there have been some promising developments over the past 10-15 years. Most notably, we’ve seen the creation of the International Criminal Court. The United States, however, is not a member of the ICC system and under the Bush administration we’ve been actively trying to destroy it. What one wants, as a short-term goal, is to reverse these Bushian efforts at wrecking and as a medium-term goal to actually get the United States to join. Realistically, that’s just not going to happen insofar as people believe that one consequence of American membership might be war crimes trials for the Bush administration’s various war criminals. Republicans, obviously, aren’t going to like that idea. Even Democratic national security elites, however, though much friendlier to international prosecution of foreign war criminals don’t really want to see American political leaders charged with their crimes, lest that constrain their own ability to do as they see fit.
Realistically, then, the best shot for getting America to join is to take prosecution of Bush administration officials off the table. Then, one could see a world in which sometime during the next 5-15 years we end up signing on.
Once we’re in, the situation changes, and maybe after we’ve been on the ICC for a while the political dynamic will make prosecuting Americans viable. Cheney and Rumsfeld will be dead by then. Bush, however, is only 60 years old and seems to be a fitness nut in good health. So there’s some chance he can be hauled to the Hague as an old man at some point in the future.