Former US attorney general Ramsey Clark, one of Saddam's lawyers, said last month the former dictator could not receive a fair trial in Iraq unless his lawyers received US protection.
"It's impossible to have a fair trial when you don't protect all the participants in the trial -- protection that only the United States can provide under the circumstances," Clark told a news conference in Washington.
Clark said the lawyers should be given bodyguards and their families moved out of Iraq.
He said that without such protection, the former Iraqi leader would be subjected to "a show trial, a corruption of justice."
True.
This complaint is, however, Quixotic at best, and will garner virtually no press attention in the U.S. because the U.S. press does not understand nor, because of pure apathy, care what the ICC does or says. Why? Two fundamental reasons:
First, the U.S., thanks to President Bush's unsigning of President Clinton's December 2000 signing on to the ICC, is not a party to the "Rome Statute" that created the ICC. (Go to WhiteHouse.gov and search "International Criminal Court"; see example) The administration has been overtly hostile to the ICC because it goes to any length to veto anything before the UN Security Council without language in it that protects U.S. troops and personnel from the jurisdiction of the ICC.
Second, because the U.S. is not a party to the ICC, a complaint to the ICC about U.S. violations of the Geneva Convention is moot.
For what it is worth, the United States Code already criminalizes "war crimes" committed by our soldiers or personnel in 18 U.S.C. § 2441 which explicitly includes violations of the Geneva Convention. And, the U.S. is investigating and charging soldiers in the War in Iraq with war crimes.
So, will Secretary of Defense Rumsfeld be charged with war crimes on Hussein's allegations? Hardly, even though factually they are probably true. Sure, it is a show trial. War crimes in Iraq lie elsewhere.
War crimes charges, however, have to pass some transcendental line between bad acts and serious stuff. They are the stuff of "I know it when I see it" (Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring)) jurisprudence. A wanton murder is not a war crime. Many murders are. Who had knowledge? Who is responsible? Who did what? Who didn't do what? All difficult questions.
