“Inviting the Consideration of Circumstances” to Geneva Conventions

Administration Says Particulars May Trump Geneva Protections

By Joby Warrick
Washington Post Staff Writer
Sunday, April 27, 2008; A11
The Geneva Conventions’ ban on “outrages against personal dignity” does not automatically apply to terrorism suspects in the custody of U.S. intelligence agencies, the Justice Department has suggested to Congress in recent letters that lay out the Bush administration’s interpretation of the international treaty.
. . . “Some prohibitions . . . such as the prohibition on ‘outrages against personal dignity,’ do invite the consideration of the circumstances surrounding the action,” Brian A. Benczkowski, the principal deputy assistant attorney general, asserted in one of the letters.
No, Brian. That’s not the way law works. You get to be a principal deputy assistant attorney general for that kind of advice? That’s particularly not the way international treaties such as the Geneva Convention work.
Even principal deputy Barney Fife would know that.
Because of aberrations such as the Benczkowski Interpretation of international law, the International Criminal Court was created in 2002 in the Hague, Netherlands. It serves to prevent dictatorial governments and their sometimes vicious leaders from self-interpretation of circumstances surrounding actions.
In order to prevent this deliberative tribunal from becoming a kangaroo-court,

(Wikipedia) The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore reserved to individual states.

There could hardly be found a clearer case than the Bush torture regime, but then the United States (along with that bastion of civil liberty, China) refuses to sign on, even though it regularly cheers from the sidelines as one African politician after another is indicted.
Interestingly, this administration is not entirely beyond the long reach of the International Criminal Court.

(Wikipedia, again) Because the United States is not a state party, Americans cannot be prosecuted by the court (except for crimes that take place in the territory of a state that has accepted the court’s jurisdiction, or situations that are referred to the court by the United Nations Security Council).

Poland is a signatory to the ICC and allegations have been made of CIA rendition prisons in Poland.
The United States is quite rightly touchy about abrogating its national law to outside organizations, although it has done so in many respects by its membership in the UN (where it enjoys veto powers). In any case, signator or not, the U.S. is automatically protected from such interference by the stipulation that the ICC will enforce only when national courts are unwilling or unable to investigate or prosecute such crimes.
That used to be an ironclad safety-valve against entanglement with the court. The United States is a nation of law.
Or so it seemed, before we lost our way in the wake of 9-11.

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