inside the glass house

Bypassing international law
NEW YORK - The Bush administration's contempt for international rules of war - laid down by the Geneva Conventions - was best exemplified by a joke currently circulating in Washington.

Asked to defend the behaviour of US troops, one official had jokingly remarked: "Why should we conform to the Geneva Conventions. We are not in Switzerland. We are in Iraq."

A high-powered team of lawyers from the Bush administration had concluded as early as March last year that the US was not bound by any international treaty prohibiting torture.

The memo, which hit the front pages of American newspapers last week, said the US military would be immune from domestic and international prohibitions against torture - particularly if troops were taking orders from their superiors.

The US has also refused to be a party to the Rome Statute creating an International Criminal Court (ICC), which is mandated to punish those accused of war crimes and genocide.

And in July 2000, the US succeeded in strong-arming the UN Security Council to obtain immunity to US peacekeepers, if and when they serve in UN peacekeeping operations overseas. The resolution was renewed last year and remains valid until the end of June. So the Bush administration has now started lobbying the Security Council once again to seek a second renewal of the resolution, which is due to come up for a vote before July 1.

"Given the recent revelations from Abu Ghraib prison (in Baghdad)," says Richard Dicker of Human Rights Watch (HRW), "the US government has picked one hell of a moment to ask for special treatment on war crimes."

"The Security Council should not grant special favours to any country, including the United States," said Dicker, director of the International Justice programme at HRW.

Using its political and economic clout, the Bush administration is expected to pressure the Council for adoption of the new resolution. Last year, three states, namely France, Germany and Syria, abstained on the resolution. This year, that number is expected to grow.

Although France and China may express their reservations or abstain on the vote, it is very unlikely that the resolution will be vetoed out of the Council. If it doesn't get vetoed, it only proves the political power that could, and is, being wielded by the world's only superpower.

The campaign for special treatment of US soldiers also comes at a time when even the acting UN High Commissioner for Human Rights has complained about the killings of civilians in Iraq.

The torture and humiliation of Iraqi prisoners are being clearly viewed as not only a violation of the Geneva Conventions but also possible war crimes. The military atrocities committed by US soldiers warrant war crimes prosecutions, according to constitutional lawyers. The Clinton administration signed the Rome Statute in December 2000. But in an unprecedented reversal, the Bush administration said it has no intention of ratifying the ICC treaty releasing the US from the obligation of not doing anything contrary to the object and purposes of the Statute.

Following this, the US has also concluded a series of bilateral treaties, including with parties to the ICC, obliging them not to hand over US personnel to the world court.

Sri Lanka is one of some 75 countries pressured by the US to sign these bilateral treaties last year. In doing so, Sri Lanka has signed off on international law when we may ourselves need its protection.

But, according to the UN treaty section website, none of the bilaterals have been registered with the world body. "It is a mandatory obligation imposed on all member states by the UN Charter that all treaties and agreements concluded by them be registered," says Palitha Kohona, head of the UN Treaty Section.

There are no exceptions to this requirement envisaged under the Charter, he said, because article 102 seeks to ensure transparency with regard to all legally binding agreements concluded by member states.

The fact that none has been registered so far seems to give rise to interesting legal implications. One speculation, according to a UN lawyer, is that the bilateral compacts are not being registered because the parties that signed with Washington do not consider them to be treaties. If that were the case, there would be doubts about their legally binding nature and their enforceability.

"Of course a superpower could enforce bilateral obligations other than through legally available means. The tendency to resort to extra-legal means is something that the international community should be concerned with," he added.

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