International Criminal Court

[barbitu8]

Clinton has signed us up for the International Criminal Court. If the treaty is approved by Congress, we Americans can be deprived of our constitutional rights. Do you think that we should make that sacrifice?

[MEBuckner]

Exactly which constitutional rights would this treaty deprive us of?

[RoboDude]

Barbitu8, could you please explain exactly what this "International Criminal Court" is and how it works?

[barbitu8]

US citizens may be subject to trial before an international tribunal. It may arise that the trial is for political reasons. We have certain safeguards under our Constitution as to rights of defendants: 5th amendment, right to a trial by peers, due process, etc. In an international tribunal those rights may not be protected.

The idea of the tribunal is to try people who may be guilty of war crimes as they arise, similar to the Nuremberg trials, but proactive rather than reactive.

[MEBuckner]

Would this International Criminal Court try Americans for cases arising within the United States? I assume not, but I just want to verify that some guy can't haul the LAPD up before the ICC for police brutality.

That leaves Americans being tried before the ICC for actions that take place outside the U.S.; i.e., an American soldier is on trial for war crimes for something he did while serving with (let's say) the UN Peacekeeping Forces in the South of France. (The langue d'oïl "ethnically cleansing" the langue d'oc, or some damn thing.) I don't see why this would be a problem. If I, acting purely in a purely private and individual capacity, went over to France and committed rape and pillage, I'd be tried in a French court; the fact that French courts don't follow precisely the same rules regarding the "presumption of innocence" that American courts do would be just too bad. The American consulate would be as helpful as they could in making sure that my legal rights under French law were being respected, but no one would launch any air strikes on Marseilles or anything. Similarly, U.S. soldiers serving overseas who commit crimes against the local populace are tried in Japanese or Korean or German courts; I think we have bilaterally negotiated agreements in some cases as to exactly when U.S. servicemen will be turned over to local custody (after indictment or conviction or whatever).

I guess the biggest questions would be about the possibility of having, say, the President of the United States (or anyone in the U.S. chain of command) being extradited from this country to stand trial before the ICC because, without leaving the U.S., they allegedly gave orders for our boys on the Côte d'Azur to commit rape and pillage. The U.S. does extradite citizens to be tried by foreign countries, though, doesn't it? And that doesn't necessarily violate an American's constitutional rights. At any rate, I don't really see how we can get all high and mighty about Slobo and Saddam and all those other bad people and then turn around and exempt ourselves from the rules. We would hardly find it acceptable if Iraq said they were going to try Saddam Hussein before an Iraqi court for his war crimes in the invasion of Kuwait, since this would pretty much consist of Saddam saying "I find myself 'not guilty'. Next case!"

I realize that the American justice system isn't "morally equivalent" to that of a country like Iraq, and American courts might well actually find an American politician guilty. But we still can't make one set of rules for ourselves and another set for everyone else.

Of course, IANAL.

[SuaSponte]

Originally posted by barbitu8
Clinton has signed us up for the International Criminal Court. If the treaty is approved by Congress,
Not quite true. The signing was a tactical play. Under the treaty rules, non-signatories by X date had no say in modifications of the treaty. Clinton likes the idea, but doesn't like the treaty as it stands. So he signed. He is not sending it to the Senate for ratification, and has recommended Bush not do so either (Bush has agreed).

As for the court idea itself, I agree with MEBuckner

Sua

[Freedom]

I don't see how the court couldn't have jurisdiction over Americans in America. If they can't prosecute crimes committed in America, then where does a crime have to be committed?

Unless this only effects international waters, then it is a treaty that seems to overrule all national courts across the globe. This is much different than extradition. Extradition usually covers cases where a person was in a particular country and broke their laws and then left. When you walk into another country, you take the responsibility upon yourself to obey their laws. This court is going to set laws independent of countries and then overlay their law on the rest of the world.

My personal and well thought out opinion of this Court is that it sucks:)

[MEBuckner]

Well, would it have jurisdiction over crimes committed by Americans in America against other Americans?

Or would it only have jurisdiction:

a) over crimes committed by Americans, against foreigners, in other countries and

b) over conspiracies by Americans in America to commit crimes against foreigners in other countries (i.e., ordering our troops abroad to ethnically cleanse Belgium or something like that)?

I don't know how it would play out if North Dakota tried to secede and the U.S. government responded by rounding up everyone in Bismarck and having them shot. If that could wind up in the ICC, then it's hard to say how we could guarantee that in theory no politically motivated cases would wind up there along the lines of "Leonard Peltier is a political prisoner" or "the LAPD is an imperialist occupation force", although in practice the ICC might just throw stuff like that out--it would depend on the make up the court and what rules it uses and so on. I still haven't seen any hard info on just what the ICC would have jurisdiction over.

Also--if I, acting in a purely private and individual capacity in my role as head of an international crime syndicate, ordering one of my boys to whack some guy in Marseilles, then of course the triggerman would be tried in a French court under French law, but could I, as a chocolate kingpin or whatever, be successfully extradited from the U.S. by French prosecutors to stand trial under French law?

[beergeek279]

The ICC is a significant threat to the basic constitutional protections that the Constitution and our common law system of jurisprudence provide. Some examples (taken from http://www.antiwar.com/justin/j010301.html)

"The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for:

The representation of the principal legal systems of the world;
Equitable geographical representation; and
A fair representation of female and male judges"

This includes Islamic law (and we all know how fair and equitable that can be) as well as the Chinese no-trial system..........not even mentioning the inherent political correctness there!


Part 5, Articles 58 and 59 of the Rome Statute authorize the ICC to seize anyone, anywhere, for any reason: they don't even have to be accused of war crimes – the ICC prosecutor is authorized to put out an arrest warrant "to ensure that the person does not obstruct or endanger the investigation or the court proceedings."

In other words.......no real evidence is required to detain someone.

Article 59 disposes of the outmoded concept of national sovereignty in its description of the conditions under which those arrested by the authority of the ICC might secure an interim release pending trial:

"In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfill its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b)"

........the procedures behind the issue of said warrant aren't open to question.



Article 8, section 2(f) brazenly extends the authority of the Court to include civil wars, as well as alleged crimes committed in the course of an international conflict

A clear infringment of national soverignity!!!!


A few others that are self-explanitory

Article 64, section 7 of the Rome Statute specifically authorizes secret trials in "special circumstances," which include protecting the "right" of "victims" not to undergo "mental harm" as well as the "national security" concerns of member states

Article 68, sections 1-6, also deal with the circumstances in which closed sessions of the Court may be held, evidence may be withheld from the defense, and the world may be kept in the dark as to what exactly is going on in The Hague's International Kangaroo Kourt

Article 72 provides the criteria by which member States may withhold information from being introduced in evidence, but gives the Court the final say – another unsubtle assault on the independence of member nations

Article 81, section 3[c], avers that the accused may be held in detention even if acquitted!

and perhaps the most frightening of all

In the same spirit, Article 92 introduces a whole new concept of law to Americans unfamiliar with police state methods: the idea of the "provisional arrest"! In other words: arrest them first, and think up some charges later.


Freedom........you are most certainly correct.......be afraid.......be VERY afraid!!!!!!

[Alessan]

The U.S. does extradite citizens to be tried by foreign countries, though, doesn't it?

No. The U.S. never extradites American citizens.

[MEBuckner]

If the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has been requested by that country if the other requirements of that treaty or convention are met. -- 18 USC Sec. 3196 ("Extradition of United States citizens") (http://www4.law.cornell.edu/uscode/18/3196.text.html)

And here all this time everyone was getting all worked up about Janet Reno, when it was Madeleine Albright who had the power to send you off to some foreign hoosegow.

[Odesio]

Originally posted by barbitu8
Clinton has signed us up for the International Criminal Court. If the treaty is approved by Congress, we Americans can be deprived of our constitutional rights. Do you think that we should make that sacrifice?

How can we be deprived of our constitutional rights? A treaty does not automatically become American law so far as I know.

Marc

[Danielinthewolvesden]

Rugbyman- that link doesn't. And, rather than actually quoeing the relevant sections, it sounds like a wierd right wing conspiracy/militia groups interpretation of those laws. Next, altho a RATIFIED treaty is the second highest law in the land, it cannot overide the US Constitution. Only a Constitutional admenment can do that. So, even if ratified- which is it not, and won't be- a treaty cannot override the US Constitution- in this nation. A treaty which is not ratified has some limited use- but only if on soft, absorbant paper.

[RoboDude]

At least Bush will have some say in the fine-tuning of the treaty, so if what RugbyMan says is true, hopefully Bush can convince them to drop the scary parts.

[fatherjohn]

Originally posted by MGibson
Originally posted by barbitu8
Clinton has signed us up for the International Criminal Court.

How can we be deprived of our constitutional rights? A treaty does not automatically become American law so far as I know.

Marc



The U.S. Constitution does not necessarily apply to foreigners in foreign countries.

[Muffin]

US ratification the ICC statute is moot. Once sixty nations ratify it, as easily expected, it is binding on the USA anyway. Even if the USA were not to ratify, and to vigorously protest the statute, from an international perspective it would still be bound.

Is there a loss of soverign power by individual states? Of course there is to a limited degree, just as with all international law.

Is there anything new about the USA being subject to international law courts? Nope. The USA has been subject to the International Court of Justice for many years with no problems. Yes there are nuisance suits, such as Yugoslavia going after the allies, but these are dealt with to no great effect. On the plus side, the ICJ has helped deal with some otherwise nasty disputes.

So what is different about the International Criminal Court? It permits individuals to be prosecuted, not just states. The existing International Court of Justice is pretty much a state v. state court (although some ethnic minorities claiming national status are pushing for the ICJ to accept jurisdiction on their human rights claims). The proposed ICC will try individuals.

Will this affect individual's existing rights? Yes. Genocidal individuals who are not properly tried by their own states will risk being prosecuted before the ICC. In reality, this means that citizens of first world nations have nothing to fear, for their nations already have fully functioning legal systems. People in third world tin pot dictatorships will receive protection, for if their legal systems are not able to deal with dictators, war lords and drug lords who are committing genocide, then the ICC will assume jurisdiction. It will be easier for first world nations to go in and deal with genocidal individuals in juristic backwaters.

How is this different from previous international war crimes prosecutions? So far the courts have been convened on an ad hoc basis. What ratification of the statute will do is make the court permanent.

Does the USA have to worry about its leaders being hauled off to jail? Of course not. This is just plain silly. Although theoretically the possibility would exist, in reality it would not happen due to the stable US court system, and ultimately by the power of the USA. Do genocidal despots have to worry? Yup. That's what it is all about. It provides a legal basis for what the US and other first world nations have been doing for years.

[Muffin]

Here is the ICC statute:
http://www.un.org/law/icc/statute/contents.htm

I suggest that before posting opinions on it (and obviously we will have varying opinions), folks read it through carefully. It is not very long.

[Muffin]

Gotta love those French. Signed up with the reservation that it does not apply to them.

[Northern Piper]

No. The U.S. never extradites American citizens.

That's not my understanding. I am not an American lawyer, and so would defer to someone with knowledge in the area, but the following provision of the US Code doesn't seem to limit extradition to non-Americans.

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE


Sec. 3196. Extradition of United States citizens (http://www4.law.cornell.edu/uscode/18/3196.html)

If the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has been requested by that country if the other requirements of that treaty or convention are met.

I would read the section as saying that the U.S. can enter into treaties with other nations which authorise the extradition of U.S. citizens, and even if the U.S. has not agreed in the treaty with a particular country to extradite citizens, it can do so in specific cases.

I would imagine that the reason for this approach is that extradition treaties are normally based on reciprocity, with each country agreeing that they will extradite to each other on exactly the same rules. There are some countries with constitutional provisions barring the extradition of their citizens (I believe Germany is one such country), so I would imagine that the U.S. would make it a condition of the treaty with such countries that the U.S. is not required to extradite U.S. citizens.

However, §3196 appears to give the U.S. government the statutory authority to extradite a U.S. citizen even if not required to do so under the treaty. That gives the federal government discretion to do so on a case-by-case basis.

You may be thinking of § 3181(b) (http://www4.law.cornell.edu/uscode/18/3181.html), which provides:

3181 - Scope and limitation of chapter

(a) The provisions of this chapter relating to the surrender of persons who have committed crimes in foreign countries shall continue in force only during the existence of any treaty of extradition with such foreign government.

(b) The provisions of this chapter shall be construed to permit, in the exercise of comity, the surrender of persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries without regard to the existence of any treaty of extradition with such foreign government if the Attorney General certifies, in writing, that -

(1) evidence has been presented by the foreign government that indicates that had the offenses been committed in the United States, they would constitute crimes of violence as defined under section 16 of this title; and

(2) the offenses charged are not of a political nature.

§ 3181 seems to authorise the U.S. to extradite nationals of another country who are in the U.S., even if there is no extradition treaty with the requesting nation, if the foreign nationals are charged with violence against U.S. nationals in that foreign country. However, U.S. nationals cannot be extradited on this basis - there must be a treaty in place for U.S. nationals to be extradited.

[Muffin]

So if the US were not to ratify, and then later the security council were to vote to refer a US person for prosecution, would the US security council veto be valid, or would it be conflicted out? Also, seeing as such a matter most probably would only come about if the US judicial system had collapsed, for example under a coup, could the seat at the security counsel itself be ordered vacated by the UN?

[Muffin]

I get a kick out of Americans talking about whether or not they can be extradited (which, by the way, they can to a number of countries under various treaties), for the US snatches people from other nations without any due process what so ever in those nations, even despite extradition treaties with nations specifying such process. This has always left open the possibility that US citizens could be snatched out of the US on what might best be called a tit for tat basis.

I'm not sure how the ICC would handle such a matter, but my best guess based on it's proposed procedure is that it would not accept jurisdication if the snatching nation were a party to the statute and refered the matter to them.

[Danielinthewolvesden]

Originally posted by Muffin
US ratification the ICC statute is moot. Once sixty nations ratify it, as easily expected, it is binding on the USA anyway. Even if the USA were not to ratify, and to vigorously protest the statute, from an international perspective it would still be bound.


1. Even if every other nation in the entire world had every single citizen sign the treaty with blood- unless the US Senate ratifies the treaty we are not in any way 'bound" by it. Even if they THOUGHT that their 'treaty" would bind us- who the hell is gonna make the USA do anything it doesn't want to? Crikies- the entire freaken UN can't even make the USA pay its UN "dues". How many Nuclear Aircraft carriers does Uganda have, anyway?

2. Even if the Senate ratifies the Treaty- the US Constitution is STILL the "higher law'- a treaty cannot abrogate a single clause of the Constitution. Ferkrisake- didn't anyone of you folks even take 5th grade civics?

[Muffin]

Originally posted by Danielinthewolvesden
Originally posted by Muffin
US ratification the ICC statute is moot. Once sixty nations ratify it, as easily expected, it is binding on the USA anyway. Even if the USA were not to ratify, and to vigorously protest the statute, from an international perspective it would still be bound.


1. Even if every other nation in the entire world had every single citizen sign the treaty with blood- unless the US Senate ratifies the treaty we are not in any way 'bound" by it. Even if they THOUGHT that their 'treaty" would bind us- who the hell is gonna make the USA do anything it doesn't want to? Crikies- the entire freaken UN can't even make the USA pay its UN "dues". How many Nuclear Aircraft carriers does Uganda have, anyway?

2. Even if the Senate ratifies the Treaty- the US Constitution is STILL the "higher law'- a treaty cannot abrogate a single clause of the Constitution. Ferkrisake- didn't anyone of you folks even take 5th grade civics?

Taken grade 5 civics? No. I am not American and have never lived in the USA. International Public Law? Yes, although I must admit that it was not during grade 5.

I am aware of the US position that its own sovereignty, including its constitution, is inalienable, however, the US position not legally relevant to international public law. A practical reality, yes, but legally relevant, no.

Obviously in the real world no one can make the US do something it does not want to do, treaty or not, and in juris or ex, for major economic or military sanctions would be disastrous for any state imposing them against the US. At best, other nations can use moral persuasion or minor economic sanctions to encouage the US to stand by it's treaties or abide by international tribunal decisions. So far this has worked very well in support of long established forums such as the IJC, and more recently the ICJ.

This is why I suggest that it would be a good thing if the US were to ratify the statute, for it would legitimize attempts by nations such as the US to go after genocidal maniacs throughout the world, but otherwise would have no practical negative effect on the US other than some nuisance cases, which the US would either win in short order, or ignore the verdict.

[barbitu8]

An admittedly cursory reading of this "Statute of Rome" indicates that all the rights we have under our Const. are protected: 5th amendment right, etc.

The only provision which I may have some problems with is the following:

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

Now, what's to stop Iraq from claiming that some of our men (including our President) intentionally attacked a baby food factory? There are safeguards in the Statute to prevent spurious claims. Nonetheless, there is the possibility.

The totality of the document satisfies my worries about our constitutional rights. I can think of none which is not protected in the statute.

[nebuli]

Even if every other nation in the entire world had every single citizen sign the treaty with blood- unless the US Senate ratifies the treaty we are not in any way 'bound" by it. Even if they THOUGHT that their 'treaty" would bind us- who the hell is gonna make the USA do anything it doesn't want to?True, but there is a possibility that if the Court wanted a US national it could issue a secret indictment, put his/her name on a watch list for officials in signatory countries, and have him/her nabbed the first time they unsuspectingly leave the US on business or for a vacation.

Now, the chances of this scenario happening in the current international climate are extremely remote- but what guarantees are there that this climate will continue forever?

[Muffin]

Originally posted by nebuli
Even if every other nation in the entire world had every single citizen sign the treaty with blood- unless the US Senate ratifies the treaty we are not in any way 'bound" by it. Even if they THOUGHT that their 'treaty" would bind us- who the hell is gonna make the USA do anything it doesn't want to?True, but there is a possibility that if the Court wanted a US national it could issue a secret indictment, put his/her name on a watch list for officials in signatory countries, and have him/her nabbed the first time they unsuspectingly leave the US on business or for a vacation.

Now, the chances of this scenario happening in the current international climate are extremely remote- but what guarantees are there that this climate will continue forever?

I agree that there is no guarantee that the existing climate will continue forever, but at the same time, I believe that the possibility of the ICC setting up a sting or a snatch through signatory nations is moot, for it is already possible for any nation to do this on its own or in conunction with its allies.

As far as secret indictments go, my opinion is that Article 21 would protect against them.

[Freedom]

Now, what's to stop Iraq from claiming that some of our men (including our President) intentionally attacked a baby food factory?

The thought of Clinton being tried for bombing that aspirin factory in an effort to take his name out of the news during impeachment makes wonder if this court might be a good idea.....

...naaahhh......


Even that wouldn't make this court worth it:)



Screw globalism, support self-determination.


Maybe we need a thread debating the most efficient country size. I wonder if there is a "perfect" number somewhere between total anarchy and one world government. At what population size does a government do the best job of protecting it's citizens AND still preserve the freedom of self-determination?

[The Ryan]

Originally posted by Muffin
US ratification the ICC statute is moot. Once sixty nations ratify it, as easily expected, it is binding on the USA anyway. Even if the USA were not to ratify, and to vigorously protest the statute, from an international perspective it would still be bound.
Applying a treaty to a country without its consent is an act of war. I can only hope that if such an event occurs, American leaders will have the courage to treat it as such.

[Ptahlis]

Originally posted by Muffin
I get a kick out of Americans talking about whether or not they can be extradited (which, by the way, they can to a number of countries under various treaties), for the US snatches people from other nations without any due process what so ever in those nations, even despite extradition treaties with nations specifying such process. This has always left open the possibility that US citizens could be snatched out of the US on what might best be called a tit for tat basis.


Haven't the Israelis been doing the same thing for years when hunting former Nazis? I think there was one case where they snatched someone in the US, but I could be mistaken. In any case, they certainly have nabbed former Nazis from other countries.

[Alessan]

Originally posted by barbitu8

The only provision which I may have some problems with is the following:

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

Now, what's to stop Iraq from claiming that some of our men (including our President) intentionally attacked a baby food factory? There are safeguards in the Statute to prevent spurious claims. Nonetheless, there is the possibility.



[Emphasis mine]

Define "clearly".