I haven't read the treaty, but a couple of general comments occur to me. First, if the court doesn't exist yet, it can't try anyone. When it exists, its jurisdiction may or may not be retrospective. I can't see why the US signing or not is crucial, if it has jurisdiction. The fact that some of the acts involved in 9/11 occurred on US soil isn't obviously crucial. Apparently there's a consensus that the Hague has jurisdiction over acts committed in Rwanda and Bosnia and Kosovo. As to the "state actors" question, even if the ICC has jurisdiction over state actors, the Taliban are state actors,even if they are unrecognized; I don't believe anyone had a better claim to be the govt of Afghanistan through fairly recently. One might argue too that the US has conceded the state action question by treating 9/11 as an act of war, and treating the T and al Qaida as pretty much interchangeable. All that said, if the US gets hold of OBL or any other principals, its is unlikely to relinquish theem to anyone else. The US surely has jurisdiction over criminal acts committed on its territory, btw. jks
>Financial Times, Dec 20, 2001
>LETTERS TO THE EDITOR: Doubts over International Criminal Court
>
>By CHARLES TANNOCK
>
> > From Mr Charles Tannock MEP.
>
>Sir, Judy Dempsey ("Europeans dismayed by US go-it-alone approach to
>justice", December 14) makes the unsubstantiated allegation that "legal
>experts" claim that the correct venue for trying international terrorists
>would be the as yet not operational International Criminal Court. This
>Court, envisaged to sit in The Hague, is not currently empowered as only
>47 countries have ratified its founding Rome Treaty (with a stipulated
>minimum of 60 being required) and the only global military superpower, the
>US, has yet not joined up.
>
>I have only seen a number of politicians (particularly those opposed to
>the US-led Afghan offensive and critics of US emergency military
>tribunals) make the claim for ICC jurisdiction over the perpetrators of
>the September 11 atrocities. Many of us with an interest in this area
>believe that the treaty, as it is currently worded, does not apply to
>Osama bin Laden, since the statute applies only to "state actors".
>
>Indeed, the exclusion of terrorists from its provisions, who some claim
>are better classified as illegal combatants in Geneva Convention terms (as
>they wear no uniforms, conceal their weapons and act on behalf of no
>recognised sovereign state), and the asymmetry that this creates was one
>of the major criticisms levelled at the final draft by the US. Thus,
>although President Bill Clinton signed the treaty, the US Senate is
>refusing ratification fearing the singling-out of US servicemen for
>specific targeted indictments by its enemies.
>
>The treaty's very wide definitions of war crimes and crimes against
>humanity, which include not only rape but also the bombing of an art
>gallery, coupled with the concept of "command responsibility", create
>special problems. For instance, some military leaders whose conduct might
>otherwise be restrained by the existence of the court may conclude that in
>the event of losing a war they would be found guilty of some excess
>committed further down the chain of command, thus depriving the court of
>much of its deterrent power.
>
>It is also debatable whether Taliban leaders, such as Mullah Mohamed Omar,
>could be tried by this court as the UN only recognises the Northern
>Alliance/ United Front government of President Rabbani, presumably
>excluding Talibs as "state actors". Besides, Afghanistan would have to
>ratify the treaty first and it is not retrospective in application.
>
>It is a bad treaty - as currently drafted - and Senator Jesse Helms'
>qualms about US participation are, in my view, fully justified.
>
>Charles Tannock, European Parliament, Brussels, Belgium
>
>Copyright: The Financial Times Limited 1995-1998
>
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