First of all, it would be better if an international tribunal did not have to be convened at all. If national courts can resolve the matter, then national courts should be used. Only if national courts are unable or unwilling to prosecute the accused should an international tribunal be convened. For example, if Bush, on his way out of office, were to issue blanket pardons for himself and his aides so that they could not be prosecuted under the War Crimes Act of 1996, then an international tribunal should be convened.
Second, by
The Hague Tribunal I assume you mean the International Criminal Court. The US does not recognize the ICC or the
Rome Statute, but that would not be a serious obstacle to prosecuting Bush and his aides for war crimes if the world at large really has the will to go forward with such a plan. Every rogue leader -- Saddam, Milosevic, Bush -- has thought himself above the law and didn't think international law could touch them. Such people are not about to sign on to an agreement like the Rome Statute. There are two ways around this.
The first way around the fact that the war crimes suspects do not recognize the authority of the ICC is to convene a special tribunal to try the specific offenses. Two such tribunals are still operating: one for crimes in the Balkans and one for the Genocide in Rwanda. The Rome Statute took effect on July 1, 2002, and, under it provisions, has no jurisdiction for crimes that took place before that date, such as the ethnic cleansing in the Balkans and the Genocide in Rwanda. Many of Mr. Bush's questionable acts took place or were established before that date (for example, the establishment of a semi-secret Gulag for detaining "illegal combatants" without rights in violation of the Third and Fourth Geneva Conventions was part of a series of executive orders signed in October 2001). That could make the special tribunal route the better one.
The second point is that one does not have to recognize the Rome Statute in order to be tried by it. The ICC was established to save start up costs of international tribunals. The ICC is simply a permanent tribunal ready to take on the most heinous crimes. Since tyrants aren't expected to recognize any authority beyond themselves, the Rome Statute provide ways under which those acting for non-member states may be tried. These are outlined in Articles 12 through 15 of the Rome Statute.
Bear in mind that most of the crimes over which the Rome Statute has jurisdiction were long part of existing international law before its adoption. The reader is referred to Articles 5 through 8. Were Bush and his aides to be charged under the Rome Statute, the fact that the US has not ratified it would be a lame defense. The Rome Statute incorporates that which Bush and his aides would be charged: the Third Geneva Convention (violation of the rights of prisoners of war), the Fourth Geneva convention (violation of the rights of combat detainees not entitled to rights under the Third Geneva Convention and violation of the rights of protected persons in occupied territory), the Convention against Torture (use of torture as a means of interrogation) and the UN Charter (waging an illegal war of aggression against Iraq).
The Rome Statute does not cover the last point very well. It leaves the crime of aggression to be defined at a future date. Nevertheless, any act justified with nothing more than Bush's policy of
preemption, which is actually a policy reserving the right of the US to wage a
preventive war, would be a war of aggression.