International Criminal Tribunals and Western States

One of the main points in any debate about the ICC has always been the “danger” that Western states could come under scrutiny by a “politicized” OTP. Of course, I would argue that this is not a danger, but a requirement, as it would show that international criminal trials are not about prosecuting only “the usual suspects”, but about actually giving teeth to human rights and international humanitarian law.

Anyway, it seems that Western states need fear no longer (or not as much): As recently reported by the Jus in Bello weblog, the ICC prosecutor has released a document explaining his decision not to open an investigation into allegations of core crimes committed by UK troops in Iraq. This document can be found here, a general update on communications received by the OTP here.
I will hopefully find the time to give a short summary and some comments on this important document soon, but to just sum it up in one sentence, its main point is: British soldiers in Iraq may well have committed war crimes (wilful killings and inhuman treatment), but the OTP will not initiate a prosecution because those crimes were not numerous and/or grave enough.

Meanwhile, the conduct of western troops may well come under scrutiny from a rather unexpected angle: German weekly “Der Spiegel” reports about the upcoming trial of Croatian former general Ante Gotovina, who is indicted before the ICTY for war crimes and crimes against humanity for his role in the 1995 “Storm” offensive in the Krajina. Gotovina’s defense team has recently been reinforced by an American lawyer, Greg Kehoe, apparently because it is feared that the US role in supporting the Croatian army during the offensive might also be scrutinized by the tribunal.
The Spiegel article is here, Kevin Jon Heller at Opinio Juris has more on this development.

This just to bring our readers up to speed on developments.
As already mentioned above, I find that the way in which international criminal tribunals deal with the involvement of Western nations in the situations they are concerned with (such as their involvement in the Yugoslav and the Bosnian civil war, aid granted to Saddam Hussein in the earlier stages of his reign, the NATO bombing of Yugoslavia, etc.) is one very important pointer in the debate about the legitimacy of such tribunals. I will hopefully have a longer, more in-depth post on this question in the future.

UPDATE: As reported on Jus in Bello, Saddam Hussein “could be executed within months if he is found guilty of ordering the massacre of 140 people from the town of Dujail.” According to Iraqi Special Tribunal's chief prosecutor Ja’afar Moussawi, Iraqi law requires that those sentenced to death must be executed within 30 days of their final appeal.
This would mean, of course, that the Tribunal could not concern itself with the most serious charges against Hussein, inter alia those concerning war crimes committed during the Iran-Iraq war or the poison gas attack on Halabja. In other words, precisely those acts in which Western involvement could potentially become relevant before the IST will not be scrutinized by that Tribunal (See an earlier news article on this issue).