The International Criminal Court - the facts

I've seen a few people complain the ICC is an encroachment on American sovereignty. They feel it is un-Constitutional to allow the ICC to try American soldiers without the option of having them tried under US law.

The Bush Administration fears that the ICC would be a platform for anti-American bias. This coming from the Commander-in-Chief of the US Armed Forces.

The reality is far more banal and less exciting than the beliefs pursuant to some ill-informed agendas. The ICC would not be able to try soldiers for anything less than war crimes (which are explicitly defined under the statute), genocide and torture and crimes against humanity (which, too, are explicitly defined). This means that yes, were another My Lai to happen, the ICC could try US soldiers, unless the US objected under Part 9 of the Statute and refused to comply. If the US refuses to comply, and assuming a thorough investigation had precended these events pursuant to Part 2 and Part 5 of the Rome Statute.

I support the ICC (surprise surprise), and think American objections are potentially valid but not enough to go to the extent they have. The principles of justice are universal and should any of the crimes be committed by anyone I, for one, fail to see what exempts Americans from punishment on a satisfactory scale. Remember, these are crimes committed in another country and are internationalist in scope. Why, therefore, not have an international, universal punishment? Futhermore, what have the US to hide?

You should consult the 1998 Rome Statute of the ICC first. What are your thoughts? Should the US be exempt from the court? Should there even be a court for these matters?

E_S

 

There's a lengthy thread here on the ICC question. I don't provide it as an alternative to your thread, but rather as supplemental reading, if you will

I don't have time to reply in length now, but a lot of your claims were addressed in that thread. Yeah, I'm taking the lazy way out

 

The court is a great idea. Bush's objections stem from nationalism. That's not necessarily a bad thing, but it's a solid step in the right direction, and without american backing, it will lose a lot of legitimacy.

Bush. What else can I say?

Peace,

V-03

 

Thanks StarFire. Consider this Version 2.0 then, because a lot has been said there that hasn't (surprisingly) made use of the actual statute. It's also fairly old, so this will probably attract some of the newer posters.

The problem there I saw was this assumption that the court would exist solely for the purpose of prosecuting (unfairly) American personnel. However, as someone noted, the US presence is Bosnia was directly in conjunction with the object and purpose of the Court. America is not going to be simply targeted, unfairly, by this court. The only times the US has been before the ICJ in matters that are broadly military is over the question of the US support for the Contras and the legality (or lack thereof) of these actions. That is, when the US does something that is percieved as wrong it is called to the ICJ. In this case, the US would HAVE to do something wrong under the Statute to be called up.

The ICC was established with the intent of seeing justice on some matters. We all take great satisfaction in the idea that Slobbydan is on trial for what he did, and that Saddam may one day be there. It's justice, but if Americans commit these crimes, the world misses out on the same sense of justice. You remember when the USMC Prowler sliced through the ski-lift cable in Italy? The Italian authorities had complained for some time about these low level flights, but the US Marines claimed their equipment was faulty. They were tried in the US, exonerated, and many reports from Europe indicate outrage at the whole "fiasco" (as they called it.) Now, acts like that aren't under ICC jurisdiction, but you get the point. People want to feel that ANYONE who commits a crime under ICC jurisdiction is duly and properly punished.

E_S

 

From what I read in the old thread, the judges would have a perfect opportunity to act out against the US. Truman did the right thing, and it was the will of the US people. We are good at trying our own soldiers, and I don't see the need for European judges to be able to be able to convict Colin Powell because they don't like the war on Iraq.

 

But that's an oversimplification. Colin Powell can't be tried; he no longer holds any military rank and the ICC can only try crimes after the date of the statute. US soldiers can only be tried if they commit war crimes. With a defence budget of $394bn and a military estimated at 70,000,000 people, you can perhaps understand why some may want assurances that the US is accountable for war crimes if they commit them. Remember the scope, now, of military operations, regardless of SC Resolution 1368, would perhaps, but probably not, warrant such a court having jurisdiction.

E_S

 

It's obvious that, even if the US were inclined to accept the ICC, we could not do so without at the very least a decade's worth of amendment work to our Constitution. I honestly think that's a very conservative estimate, and unrealistic.

That aside, there really is no reason for the US to join the ICC. We wouldn't gain a thing by it; we would in fact lose. It's a noble idea. A universal court to enforce universal laws. But the proposed laws are hardly universal. They're devised by men, and many of them are only ambiguously connected to any universal principles. As if this weren't enough, the ICC dictatorially proposes to make their jurisdiction universal (without regard to previous acceptance or rejection of the court by the offending party), which is a gross encroachment on the principles of freedom. It's unethical, and even immoral.

 

I wouldn't go that far. The State can refuse to hand over the alleged offender, or try them first under domestic law.

E_S

 

Ahem.

"Yo! France! We want the bald guy!"

"But ... but ... he iz not yurs to take!"

"Oh, that's ok, we'll wait till you're done with him."

We have no jurisdiction, obviously, and any claims to it are illegitimate. It's the same thing if the ICC claims jurisdiction over nations who haven't agreed to be judged by its standards. And now I have to go. But I'll be back soon, hopefully.

 

States who aren't parties can still surrender people to the ICC under Part 2 of the Statute. Furthermore, if a State doesn't surrender the criminal then they are subject to penalties as outlined in the Statute.
The US could enter a reservation over some clauses to guarantee the court works to it's favour, as it has done with many arms treaties (eg. landmines).

E_S

 

I'm sorry, but what does that have to do with the ICC's illegitimate jurisdiction?

 

Well, sorry to answer a question with a question, but what do you mean by "illegitimate jurisdiction"? If you're referring to the US constitution, isn't that a bit culturally imperialist? 191 UN Members, 1 of which is the USA...

But here's the jurisdiction:
Article 11
Jurisdiction ratione temporis

1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.

2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.


Article 12
Preconditions to the exercise of jurisdiction

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.


Article 13
Exercise of jurisdiction

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.



The crimes are all customary international law principles and are above sovereign law. ; Article 10: Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

This is a common law issue for the US lawyers to talk about and I'm not schooled in US law, but I'd guess because it exists outside the realm and jurisdiction of the US Constitution it can claim jurisdiction over US Citizens.

E_S

 

I'm not sure what you're getting at. My point is that nowhere that I see is the ICC's jurisdiction limited to states that have agreed to accept its jurisdiction and abide by its standards.

 

"With a defence budget of $394bn and a military estimated at 70,000,000 people"


Uhhhh....I think you've just inflated our army by a factor of 100.

As far as jurisdiction...no, culturally imperialist is *not* how I would classify it. The US position on the court is admittedly a strange one...on one hand, advancing the cause of justice and accountability is in US national interest. However, it is problematic for practical and legal reasons...the practical because our military and foreign affairs and station in the world WILL make us a target for prosecution, the legal in that the only legitimate judiciary is one directly accountable to its citizenry, and the proposed ICC does not have this mandate. In America, there is already too much complaint about political bias in judges...are we to expect those chosen by international horse-trading to be *less* biased and more judicious??


Excellent Analysis

But this (multilateral) approach is under challenge ? or at least in doubt. America under both Bill Clinton and George Bush has shunned a new international criminal court, the treaty for which has been ratified by 70 other countries, and the Bush administration has pulled out of efforts to agree on a verification protocol for the Biological Weapons Convention. It also rejected the 1997 Kyoto Protocol on climate change, though it was really just belatedly confirming a pre-emptive rejection by the Senate that was made in July 1997. Perhaps most alarming, however, has been its recent disregard for the Geneva conventions on prisoners of war in determining the legal status of people it has captured in Afghanistan and taken to Guantanamo Bay for questioning.

Why the challenge to the multilateral approach? There is an ideological answer and a practical one?which in turn explains why the ideological answer is now carrying such force. Start, then, with the practical one: terrorism and the menace of weapons of mass destruction. During the late 1980s and 1990s, the Bush (elder) and Clinton administrations tried to treat terrorism as a law-enforcement issue. Terrorists would be pursued and brought to justice, proving the awesome determination of American law. Thus, once two Libyans had been accused of planting the bomb that destroyed Pan Am flight 103 over Lockerbie in 1988, killing 270 people, the response was not military action against Libya but a trial under Scottish law in a court in the Netherlands. That approach was seen by many as slow, weak and not necessarily even just.

The scale of the outrage on September 11th made it inevitable that this would be seen as an act of war rather than mere criminality, and that the response would prove the awesome determination of the American armed forces. Moreover, even before September 11th, there was a strong view in the Bush administration that the treaties and conventions governing the proliferation of weapons of mass destruction had failed. If you needed proof of that, look at Iraq. That view became even more prominent after al-Qaeda's attacks. These norms of good behaviour had to be enforced with the threat of military power and even, if necessary, the use of it. Treaties, after all, are not legal documents but political ones; they register commitments made by governments but threaten no sanctions if those commitments are broken or abrogated, apart from disapproval. On this view, the punishment has to be meted out by the American sheriff.

That, however, does not make treaties a waste of paper. The NPT probably has discouraged some countries from trying to develop nuclear weapons, by helping them gain confidence that their neighbours are not doing so, either. What anti-treaty Americans dislike most?and this is nothing new?is when a proposed treaty threatens to restrain America itself from doing something it might like to do. This is the issue with the Comprehensive Test Ban Treaty, which was rejected by the Senate in 1999. President Bush says he will not re-submit the bi

 

sorry, that post was for something else....

 

I think the International court is a good idea, but I can also see where the Americans may not like it. They are the ones the world turns to when we need to deploy troops for peacekeeping. They are the ones that have half the world gunning for them at the moment. I think it could be abused by nations that want to get at the American military.

 

StarFire, not so. States can apply to have war criminals tried under the ICC even if they're not members. Let's say the Iraqi opposition (we'll make believe here ) has Saddam in their custody, but Iraq's not a party to the ICC. The new regime can apply to have Saddam tried.

Red-Seven, that's the figures listed in the 2001 CIA World Factbook. Strangely it's missing in the 2002 Factbook. ? I'll get a hold of the hard copy in my office and get back to you on that number. However, of a population of 300,000,000 (approx) it does seem high...

Why does this have to be a death-knell for the USA? I, too, understand the objections - heck, IMHO it's more about President = CIC than anything else which is just as valid. But the ICJ is fairly conservative anyways and I can't see the ICC falling for that anti-American crap. Furthermore, the US has gotten out of legal issues in the ICJ before where it was perhaps guilty, like the Paramilitary Activities in and Against Nicaragua (Nicaragua vs USA, 1986) case where the US got off on techinical arguements. You're assuming that once indicted it signals doom for the US. Not always so.

E_S

 

StarFire, not so. States can apply to have war criminals tried under the ICC even if they're not members. Let's say the Iraqi opposition (we'll make believe here ) has Saddam in their custody, but Iraq's not a party to the ICC. The new regime can apply to have Saddam tried.

I don't think we're on the same page here. I'm talking about soldiers of nations who don't accept the ICC's jurisdiction being tried without their nation's consent, ie, the ICC taking a mass-murderer (for instance) and convicting him with laws that he never agreed to abide by.

 

But this individual would be acting as a representative of the state the second he dons his uniform, and all these laws are jus cogens so he can't be a citizen of a state that opts out of them. Genocide is an international crime and no state can get away with it. If the US government starts a genocide that it passes a law approving then it breaks international legal principles and thus enters the (theoretical) jurisdiction of the court.
You see what I mean? These are principles that are legal above the state.

E_S

 

It would be nice, but not yet. The world isn't ready.

Wait a century.

I say Okay let's start a ICC and put it in the center of the world: Dallas, Texas.

 

You see what I mean? These are principles that are legal above the state.

We both agree that there are certain universal principles. One entity dictatorially commanding another without that other's consent (ie, slavery) is contrary to these principles. Yet ironically, the ICC would assume dictate in the name of those same universal principles. How screwed up is that?

 

It's not screwed up at all. These are principles that, under customary international law, are universal and thus the protection of peoples depends on the jurisdition being universal. If you apply your standards to a domestic case, then you're questioning the jurisdiction of the court to punish you for any federal violations committed at a state level. As part of the international community and with it's consensus, the crimes of genocide, torture, war crimes and crimes against humanity are deemed universal and thus the world's problem, so why not place the authority to investigate and punish in the hands of the ICC?

E_S

 

"so why not place the authority to investigate and punish in the hands of the ICC?"

I agree. And the first one to prosecute should be Saddam Hussein.

Wait a minute, don't we already have a World Court in The Hague? They sentence war criminals all the time. Why would we need another court?

 

Let's start at the very beginning.

I'm a citizen of the United States of America. By living in the United States (much less being a citizen), I submit myself to the jurisdiction of the United States. But the United States has no jurisdiction over Canadians, even though they're right next door.

Jurisdiction in a free society can only exist by the consent of the governed.

If Made Up Country #1 does not accept the International Criminal Court's jurisdiction, then their soldiers should not be tried by the ICC's standards (because the ICC does not have jurisdiction). Their soldiers shouldn't be tried in any kind of court of law at all, in fact. It's a question of maintaining universal principles.

So what do we do with SOBs who don't accept any kind of international jurisdiction but do commit grave crimes? Whatever the hell we want. There are no rules, because we negotiated none. We can throw them in jail, we can chop their heads off, we can let them go, we can make them work off the damage they caused, whatever. We can take the high road or the low road.

 

Wait a minute, don't we already have a World Court in The Hague? They sentence war criminals all the time. Why would we need another court?

The International Court of Justice (ICJ) is what you're referring to. This deals with every violation of international law - from conflict to trade disputes. The idea is that the ICC would function as a sitting court charged with dealing with the specific crimes of genocide, crime of aggression, crimes against humanity and war crimes, all of which are specifically described in the 1998 Rome Statute of the Court. You may have heard of the tribunals established after the Rwandan Genocide or Bosnian Genocide etc? This would essentially be a permant court rather than a series of tribunals with the power to also investigate.

Jurisdiction in a free society can only exist by the consent of the governed.


Right, and you consent to a government ruling you in exchange for A,B,C under the "social contract". At the international level, the state submits to the same relationship with international law, mainly through the United Nations. Normally, individuals cannot be tried under international law, it's the law of states. They are tried as representatives of that state, but only in certain circumstances like the in ICC.

If Made Up Country #1 does not accept the International Criminal Court's jurisdiction, then their soldiers should not be tried by the ICC's standards

Unless MUC applies to have soldiers tried under the ICC pursuant to Part 2, Article 12 (3):
3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

If not, they're tried under the ICJ for violations of the aforementioned jus cogens principles. Otherwise, we couldn't stop people like Slobodan Milosevic under any laws.

I noticed something; Part 2, Article 7(2), subsection (f):
"Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

Does anyone else think that relates to soldiers committing rape? If so, could that be a reason the US kept out of it, as GI's have been known to perpetrate that crime in Turkey, South Korea, Japan etc? I'm not US-bashing, I'm asking seriously as that could be one reason why the US Government is staying out - corruption of the court to persectue American soldiers on that grounds.

E_S