A Cunning Plan

Joining the ICC would trump Bush’s pardons for war crimes.

So their Cunning Plan is for Bush to pardon everybody in sight before handing over the White House keys and the TV remote. The pardon power looks absolute in US law, though its abuse could be impeachable. So pardons would pre-empt any proceedings other than impeachment for violations of US law.

I have an even more Cunning Plan. President Obama and the Senate ratify the Rome Statute of the International Criminal Court. The United States then invites the ICC prosecutor, Luis Moreno-Ocampo, to investigate possible war crimes falling under Bush’s pardons, under the international criminal law codified in the Statute. The case would be admissible under Article 17.1(a), since the USA would be

unable genuinely to carry out the investigation or prosecution.

(The French text is “dans l’incapacité de mener véritablement à bien l’enquête ou les poursuites“; the English adverb would better be properly.)

Have a look at Articles 27, 28, and 33: Presidents, Vice-Presidents, Chiefs of Staff, and subordinates “just obeying orders” are explicitly not exempt from prosecution. Under Article 54, the Prosecutor could investigate on US territory and seek the assistance of its authorities to question witnesses. If the Court issued an arrest warrant, the United States would be required under Article 59 to

immediately take steps to arrest the person in question.

It ain’t over till the fat lady sings.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web