Will Bush Invade Cambridgeshire

The Telegraph ^ | 0-5-2002 | Joshua Rozenberg

[blam]

Will Bush invade Cambridgeshire?

(Filed: 05/09/2002)

The American president can now send troops to free US citizens imprisoned in Britain by the International Criminal Court. Joshua Rozenberg, Legal Editor, reports.

If President George W Bush decides not to invade Iraq, he could usefully spend some time planning an attack on Whitemoor prison in Cambridgeshire.

Last month, the president signed legislation that authorises him to "use all means necessary and appropriate to bring about the release of any person . . . being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court".(AMEN!)

Britain, for its part, has volunteered to house prisoners convicted by the new court and Whitemoor is one of the high security prisons where they could be held.

Therefore, the president could - theoretically, at least - authorise military action under the American Servicemembers' Protection Act of 2002, which covers troops, politicians and officials working for the US or its allies.

This became known as the "Hague Invasion Act" because it enables US troops to enter the Dutch capital and free individuals awaiting trial at the new court. That prospect may seem fanciful, but the US embassy in the Netherlands moved to issue what reassurance it could in June. "We cannot envisage circumstances under which the United States would need to resort to military action against the Netherlands or another ally," it said, in what was hardly a denial.

Ironically, the nations that created the International Criminal Court are meeting this week in the country that is doing the most to undermine it. Delegates from 78 countries gathered in New York on Tuesday for the first meeting of the Assembly of States Parties, the body that will fund and run the ICC. These states have all ratified the Rome Statute of 1998, setting up the first permanent court to try individuals accused of war crimes, crimes against humanity and genocide.

The most interesting problem facing the member states this week involves election of the court's judges. The vote will not take place before the beginning of next year, but the weighting processes under consideration this week will be crucial in deciding how representative the court will be.

Cherie Booth, QC, said in June that the under-representation of women among the international judiciary threatened to undermine the authority of the ICC "from day one". She welcomed the provision in the Rome Statute that states should take into account the need for "a fair representation of female and male judges".

Even so, she cannot have been very surprised that her husband's government nominated a man, Adrian Fulford, QC, as Britain's candidate for one of the 18 seats on the ICC. Many women with a family might baulk at the disruption involved in moving to a full-time, nine-year job in The Hague. So, too, would men with family responsibilities: Mr Fulford is unmarried.

There had been hopes that the Government might have persuaded an existing member of the judiciary to stand for election: Britain's judges at Strasbourg, Luxembourg and the UN tribunal for Yugoslavia also hold domestic judicial posts. But since each of the 78 states could put up a candidate, success is hardly a foregone conclusion.

Mr Fulford, 49, would be a good catch for the new court. Lord Irvine described him as an outstanding candidate. "He is an eminent and highly respected criminal advocate, and he combines this with being one of Britain's foremost legal authorities on human rights case law."

This sort of hyperbole is part of the lobbying we can expect in the months leading up to the voting process, but those who know Mr Fulford are equally complimentary.

"He's a real find - a star as an advocate," says Bruce Houlder, QC, a former chairman of the Criminal Bar Association. "He has an exceedingly likeable manner. He is hardworking, thorough and immensely fair."

Mr Fulford, from Michael Mansfield's chambers, specialises in criminal defence work. "He has a skilful way of making a bad case attractive by force of personality," Mr Houlder adds. "He has the temperament to make an extremely good judge."

In a statement following his nomination, Mr Fulford said it was critical that the ICC judges should demonstrate that "the valuable institution will deliver fair and impartial justice without prejudicial delay". While "honoured to have been selected as the United Kingdom's candidate for this exciting project", he is unwilling to give media interviews in advance of the election.

The competition could be pretty fierce. Few other countries have yet named their nominees but Canada is expected to put up Philippe Kirsch, currently its ambassador to Sweden. As legal adviser to the Canadian Ministry of Foreign Affairs, he chaired the Rome conference that set up the ICC in 1998 and has been involved in the subsequent preparations.

At the election next year, member states are instructed by the Rome Statute to select judges from a broad spread reflecting the world's principal legal systems. There will be an "A" list of criminal specialists and a "B" list of experts in human rights or international humanitarian law. At least five, but no more than nine, judges must come from the "B" list.

At first, the court will be based in a modern office block in a light industrial zone to the south of The Hague, formerly occupied by the debt-ridden Dutch telecoms group KPN. By 2008, a permanent court should be built near the northern edge of the city on a site occupied by the Dutch army.

As the building plans proceed, the US is seeking to negotiate "Article 98 agreements" with all states that support the court, including Britain and its EU partners. That section of the Rome Statute provides that suspects must not be handed over to the court if that would amount to a breach of the holding state's international obligations, though delegates who signed the treaty recall that Article 98 was never intended to cover new agreements.

"I see these as illegal contracts," says Richard Dicker, from the campaign group Human Rights Watch. "They would compel states to violate their obligations to co-operate with the ICC."

There are safeguards to ensure that US troops and officials are unlikely ever to appear before the new court, not least because the ICC will step in only when national courts are unwilling or unable to act. This "complementarity" principle, as it is called, is fundamental: a case must be declared inadmissible if a state that has jurisdiction over it is "genuinely" investigating or prosecuting it, or has done so already.

EU foreign ministers, meeting in Denmark last weekend, were concerned about Washington's threat to veto UN peacekeeping operations in the Balkans unless its citizens won immunity from the ICC.

In New York, however, states refused to be deterred. Hans Corell, the UN official who opened the meeting, said those who committed the most heinous crimes would now be less likely to escape justice.

He added: "We genuinely hope that the International Criminal Court will help spare future generations from the sufferings experienced by so many in the past."

[DAnconia55]

When he's right, he's right.

Too bad Bush won't defend the Constitution and freedom like this on every subject....

[dodger]

HAIL BRITANNIA.

En Garde!

[Yardstick]

In New York, however, states refused to be deterred.

Didn't these "states" used to be called "nations"?

[serinde]

At least five, but no more than nine, judges must come from the "B" list.

And you can bet that the judges chosen will come from those nations currently sitting on the U.N. Human Rights Committee. Real good experts on that subject there. /sarcasm