Heh heh, the age old paradox encountered by International Law.
International treaties and conventions are put forward to combat a problem caused by countries acting solely in their own interests, to the detriment of the common good (eg. chemical weapons, global warming, slavery etc.)
Then a given country refuses to sign up. “Why not?” asks almost the entire world.
“Because it’s not in our national interest.”
Heh heh.
Honest question here:
Why doesn’t the US sign the treaty?
It has been signed by 139 countries. So it seems to me that any efforts by the US to stop it will be futile. Furthermore, its attempts to coerce countries into not signing it look pretty bad, especially since they’ve been largely unsuccessful.
Does the whole US government think its a bad idea, or are there any divisions?
See the part of my post that mentions that in the US justice system, the executive has a check on an over-zealous court through the use of pardons.
This is true for tourists and business travelers, it is not necessarily true for government officials or members of the military.
The US negotiates status of forces agreements with other countries for military forces that often contain provisions that either share, waive, or delegate jurisdiction over certain laws. See for example that US soldiers do not need visas while they are in Germany (cite), or that it is US military courts that try soldiers when they commit crimes in South Korea, not the Korean courts.
And if you think that US troops have lost their right to due process under US military courts while they’re on patrol in Iraq, you’re in la-la land.
Quite relevant. Many Americans do not want to give their stamp of approval to a treaty that is inconsistant with what we believe to be an essential protection against overzealous prosecutors. It doesn’t matter if the Constitution has juridiction or not, it is the principle of double jeopardy that is the heart of the issue here.
Surely you do not believe that Saddam Hussein would have been tried by the ICC if it had been in existence in 1991. Or do you?
Emphasis mine.
The relevancy of location of the crime is a fundamental premise of practically all democratic justice systems.
They will, however, not be tried in a court until they DO enter the jurisdiction of a complaintant party. With the crime being committed in a party nation, and the accused being arrested in a party nation, the jurisdiction of the ICC applies by common standards of law and international relations. If France issues a pan-European warrant for your arrest for organized crime charges, you better not show up in a country that recognizes such a warrant or risk being shipped to France posthaste.
And given that the US is attempting to exert jurisdiction of not just a handful, but scores of individuals for ‘crimes’ which might, potentially, have had an impact on the US, even if indirectly (and might not have been crimes in the country of residence of those people), and try them in a fashion neither consistent with the Geneva Convention on POWs nor with that on the protection of civilians, which DO account for sabotage and espionage, I don’t think the ‘person didn’t enter jurisdiction’ argument really flies.
As for the ‘Private Jones vs. President Doe’ issue, the trials for Yugoslavia and elsewhere show that those responsible will be tried, regardless of their level. Presidents have been tried just the same as camp commanders and leaders of death squads.
Nope, the point of the ICC is to prosecute when local kangaroo courts refuse to do so. The ICC steps in only when local courts don’t, and the presumption of the judicial branch of a particular country trying such cases is the basic premise.
Practically all of the definitions in the Rome statute are taken directly from either the Geneva Conventions themselves, or from the additional protocols to it. As such, they should already be national law in any country that ratified those conventions and protocols. As such, any such country should try people for violation. The sad fact is that most don’t, and the point of the ICC is not just to take that out of the hand of local justice systems, but also to create additional pressure for local justice system to actually try such cases to avoid the ICC stepping in.
There really should be no discussion of the ‘crimes’ tried by the ICC. With the exception of the issue of aggression -which will not be tried by the ICC until there is an agreed-on definition- all are already now basic rules of conduct of international law, even with the additional protocols to the GCs not being ratified by each and every nation. The concepts aren’t new, and neither are they outrageous.
He’s perfectly right. It’s a very common clause in treaties including many nations. For instance, it exists also in the Kyoto protocol. The point is generally not to have to wait forever for each and every signatory to ratify the treaty they have signed.
You will note that it’s not nations who didn’t sign the treaty which are subjected to its terms, but nations which did sign it but didn’t ratify it.
Though there are some rare cases in international law when a country which never signed nor ratify a treaty is nevertheless bound by its term. When this treaty became a generally accepted norm amongst civilized nations. For instance, remembering a recent thread, a country which would never have signed the treaty banning “leters of marque” would most certainly being considered as nevertheless bound by this treaty.
You’re not understanding. They don’t claim juridiction over other nations who have not signed up. They just recognize the juridiction of the ICC. As soon as they do so, this court becomes part of their legal system.
From this point, as another poster already stated, it works like in any other situation. The fact you’re an american or not is irrelevant if you commit something which is considered a crime under french law. You’ll be tried by french courts under french law.
If you’re prosecuted by another country which has an extradition agreement with france, france will extradite you to this country to be tried. Once again, the fact you’re american, that the US signed or not an extradition agreement with this country, that what you commited is considered a crime or not under US law, is irrelevant. The only thing that matter in your situation is what french law says and what treaties France signed.
And exactly in the same way, if you’re prosecuted by the ICC and enters a country which recognize the juridiction of the ICC, then they’ll arrest you and will send you to the court. There’s absolutely no difference. Once the treaty is applicable in a country, any person entering this country is under the juridiction of the ICC, in the same way he’s under the juridiction of the local courts.
Absolutely not. Or else, it would be also a blatant attack on sovereignety if a spanish citizen is caught in the US smoking a joint and prosecuted under US law. As soon as you leave your country, you’re under the juridiction of any court that the country you’re entering in recognize.
That’s what happened. There were lenghty negociations (and which the US took part) and many countries decided to sign up. Including the clause stating that the treaty will be enforceable as soon as a given number of countries will have ratified it.
Indeed nobody needs the US permission to apply the treaty to US citizens. Nobody needs the US permission to apply any law they have on their books, or any treaty they have signed, to US citizens. And the US doesn’t need anybody’s permission to apply its laws to a foreign citizen, either, even if the particular law applying is a consequence of a treaty the US has signed and the country the foreign person comes from hasn’t signed said treaty.
>> The concepts aren’t new, and neither are they outrageous.
Not at all. The trend is to recognise universal jurisdiction for torture and crimes against humanity so, treaty or no treaty, some country could get ahold of the guy and judge him. Spain almost got hold of Pinochet a couple years ago. He had gone to the UK when he was surprised by a Spanish warrant which he narrowly escaped on a technicality.
Right now there are a cuple similar cases with both France and Spain having achieved extradition of a couple Argentinians who travelled outside Argentina and were extradited.
Basically, what this means, is that if some US citizen is accused of crimes against humanity and the USA refuses to indict him, then that person could risk being tried by another country if he ever leaves the US. Like Pinochet, he could go somewhere many years later on vacation or for any other reason, and find himself being extradited to a country which seeks his extradition accusing him of war crimes or crimes against humanity.
In fact, the language of the ICC treaty is more restrictive than what some countries are already applying. A US citizen might have more protection being tried by the ICC than by some individual country.
In any case, the trend is that torture and other crimes against humanity are begining to be recognised a being under universal jurisdiction and I, for one, am glad it is that way. No one should be immune.
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Which does not prevent abuses the least. Quite the contrary, it is an additional level at which abuses can happen, and I consider it a perversion of justice that in many cases, a pardon was used to release people who were actually innocent.
Not necessarily, but it is the default case.
That US soldiers need no visas is nothing unusual. Neither do German civilians need them in the US if they stay less than 6 months in the US. But they are nevertheless subject to German laws. That US military courts try soldiers when they commit crimes in South Korea does not impact on the ICC issue the least. The key point is that they are being tried because their acts constituted a crime in Korea. The ICC explicitly does not preclude the US from trying citizens that committed a crime elsewhere. In fact, it considers that the default case. It is when that does not happen, or if the investigation is believed to not have been serious when the ICC is supposed to step in. And given that the US has just admitted not to have investigated a serious incident in Iraq at all when it previously claimed it did so, that is of course a reason for concern. It would not, however, be one if the investigation had actually taken place.
Perhaps not tried, but most certainly indicted. Heck, Pinochet was almost tried by a national court.
Nope. It’s a response to a more and more widely held belief that the worst crimes should be punished, regardless where they’re committed, and if at all possible by a court that will be considered as legitimate by most countries and by the people of most countries (rather than, say, a court just made up on the spot by the victorious party in a war, or a court organizing a “fake trial” for one of its own citizen it actually doesn’t want to be found guilty).
By the way, if a criminal has been tried by an individual country’s court, and if the ICC considers the trial to have been fair, it won’t be prosecuted. The intend is to try criminal who aren’t prosecuted at all or who only got a “let’s pretend” trial.
Finally, the ICC seems to me to be a very popular concept, according to some pools I read about, organized in various countries (sorry, no cite…that would be in some newspaper I read long ago).
Whis is not necessarily a good thing. I seem to rememberr that some pardons granted by Clinton at the end of his presidency were rather …err…controversial.
The concept of pardon by the head of the executive seems to me to be a mere remain of the good old time when the justice was in last resort in the hand of the kind. But that’s another debate, actually.
As you point out yourself, these are exception, and not norm. And these exceptions are created by…treaties. As for whether the agreement, say, Germany, signed with the US about the status of US troops on her territory being superceded or not by the treaty creating the ICC, I wouldn’t know. It’s dependant on German constitution, laws and court’s decisions. There’s no general rule stating that a soldier stationned in another country is immune from prosecution in said country. It’s up to the country where it’s stationned to decide. Now, of course, the soldier’s country can decide to withdraw its troops.
Tried, I don’t know, since I don’t know if there are provisions for an “in abstentia” trial in the ICC status , and since I don’t think Saddam ever left the Iraki territory since.
Also, to be tried, he would have to commit war crimes or genocide on citizens of a signatory country (Is Koweit a signatory?)I wouldn’t work for crimes commited on Iraki citizens.
How did I end up in the Pit?
For the record, Sua and Ravenman are right – international treaties are only binding on their signatories. It’s also true that American citizens located in a foreign country are generally subject to the foreign country’s laws. I don’t think anybody’s contended otherwise.
But I think the Tommy Franks example is illustrative of the point Sua and others are making. Tommy Franks is an American soldier accused of committing war crimes in Iraq. Neither the US nor Iraq are signatories to the ICC. Yet the ICC apparently believes it has jurisdiction to hear the case. This, it seems to me, is evidence of the universal assertion of jurisdiction that Sua and others were talking about.
It does? Can I have a cite proving what you say is true?
What exactly was ignorant or bigoted about Brutus’ comments? They are exactly right. The US, like any other country, does what it thinks is in its national interest. The US coerces, either with force or with money. The US chases the people it wants to chase (witness the attack in Yemen with a Predator, or Clinton’s cruise missile attacks after the embassy bombings). You might not like these things, but pointing them out isn’t bigoted.
If you think that the only reason that the US should sign on to the ICC is so that the rest of the world will like the US more, that’s fine. But ask most Americans, and I don’t think they honestly care what other countries think of the US. It’d be nice to be liked, but most Americans aren’t going to do something that will place soldiers at the mercy of a poltical court overseas just so that the US is liked.
Right now, the US is cutting off military aid to countries that have signed the ICC treaty and won’t sign a separate treaty with the US, exempting US soldiers from being tried by the ICC when on that country’s soil. It has nothing to do with the US attacking those countries. It has to do with Tommy Franks being indicted by the ICC (just you wait for that to happen), and for him to be nabbed while visiting a hypothetical nation.
What the ICC is is a court without the other two recognized branches of government: legistlative and executive. There is no constitution to fall back on (or be amended) which defines the limits of this court’s power. There is no body of law to define how the court should rule (for example, “agression” is a crime the ICC claims jurisdiction over, but the term isn’t defined). There is no democratic process determining how these judges are picked (either direct election of judges or appointment and confirmation by democratically elected officials). There is no mechanism to ensure that cases chosen for prosecution are fair or that the prosecutors aren’t overzealous. There is double jeopardy, which means that an overzealous prosecutor can keep trying and trying until he gets the verdict he wants. I don’t know if there are any laws covering bribery of ICC judges or prosecutors, but even if they were, who would enforce them? To any American who is familiar with American forms of government, the ICC isn’t a court in any meaningful sense of the word.
While the ICC doesn’t resemble anything that I’d consider a democratic court, it does sound like is a great system for political attacks. And that’s why the ICC treaty will never be ratified by the US (you need 2/3 of the Senate to vote in favor to get treaty ratification, no matter what the president signs). It’s a fact that countries are trying to restrain American power by tying the US up in various international treaties that limit what the US can do without the say-so of other nations. When the US doesn’t fall for it, it’s the US’ fault. This I don’t understand.
Whenever someone references the US Constitution in discussing international politics, there’s always a poster ready to jump down their throat and point out that the US Constitution has no international bearing. Generally, the responder comments on how Americans always think the world is beholden to them, etc, etc, etc.
They’re misreading the fucking argument.
What smiling bandit meant was that the US Constitution forbids the US to enter into any such treaty. That is, the Constitution governs the behavior of the US government. Nobody is claiming that the Constitution has any international validity, and obviously it does not. They are simply pointing out that for the US to enter into such a treaty would be violating said Constitution. Sheesh.
Well, we can leave that for another day.
This is a black-or-white statement that simply disregards major exceptions that are well-established by law and precident. I quote from Article 7 of the NATO Status of Forces Agreement, signed in 1951:
“The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offenses, including offenses relating to its security, punishable by the law of the sending State, but not by the law of the receiving State.”
To be fair, the agreement then goes on to describe cases where the law of the receiving State shall be applied.
Agreed, the ICC gives preference to national courts. That is a good thing. But you mentioned - I think it was in a previous post - that one of the compelling reasons for an ICC is to provide a court of last resort to avoid clearly slanted aquittals made by kangaroo courts.
I honestly think that that goal is laudible and worthy of pursuit. My issue is that what constitutes a “kangaroo court” is pretty vague. The Rome Statute reads:
“No person who has been tried by another court… shall be tried by the Court with respect to the same conduct unless the proceedings in the other court… Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”
That’s a good-faith effort to define kangaroo court, but I do not think this is a sufficient barrier to frivilous charges made by those who have an axe to grind against the US. Let’s say that some radical Serb wants to accuse Wes Clark or Bill Clinton of genocide because of the war in Kosovo, and US courts find that charge without basis, I do not believe that this – and other relevant sections of the ICC treaty – are strong enough to discourage those who are inclined to file rediculous charges.
In my mind, there ought to be a more substantial barrier - such as that the burden should be on the accuser to first demonstrate substantial evidence that justice was not pursued, before the ICC could even consider whether to disregard the actions of national courts. As it is written, it appears that the ICC Prosecutor - and justices, presumably - would be charged with evaluating the fairness of the previous trial. There is no disincentive in this section for politically motiviated charges of war crimes.
Age Quod Agis: Thanks for the backup on how treaties become binding, but you’re off a bit on Tommy Franks. It is not, at this point, a matter for the ICC. The charges were apparently filed in a Belgian court, and the person who made the charges would, in any case, lack standing before the ICC to file the charges.
I find this an interesting argument. Can you explain more in detail why the Constitution would prevent the USA from signing the ICC treaty? I find this argument surprising for several reasons:
Do you or don’t you want there to be?
Cite? That’s paranoia borne of arrogance. The UN was founded in response to WWII. The ICC–one can presume–was partly inspired by the situations ion Bosnia and Rawanda.
So there is no movement to make the World a better place, only to trick the US? So attempting to establish international norms is unfair to a nation which reoutinely uses it’s power to coerce other nations?
I’m remided of that cartoon where Wile E. Coyote placed a wildcat in a cage right next to the sheepdog and then went far away over a hill before releasing it and instead of attacking the sheepdog the wildcat went straight back over the hill and attacked the coyote.
The trouble is when you are setting up a court like the ICC, you have to make a choice. Either the defendant’s country has the power to veto prosecutions or it does not. If the defendant’s country has such power – by conducting a sham trial, for example – then the ICC loses its effectiveness, because countries can shield their offenders. On the other hand, if the defendant’s country lacks such power, then the door is open for political prosecutions.
IMHO, many people underestimate the danger of such prosecutions. The reality is that there is a lot of corruption and anti-American sentiment out there.
For a cite, here is a quote from Mexico’s former foreign minister:
(source: http://www.benadorassociates.com/article/271)
I’m pretty sure I’ve read a line from Chirac saying something similar, but I can’t track it down right now.
Whether or not people are trying to use the ICC as an instrument to make the world a better place is irrelevant. Other people have said that they want to tie down the US with international agreements to control US behavior through institutions like the ICC. Why would the US agree to this?
Just because you want to do good doesn’t mean the end result of your actions are good. I remember some saying about the path to hell and good intentions…
This is false. The US never intended to ratify the ICC and then backed away. Clinton signed the treaty with serious reservations as he was leaving office. It was never sent to the Senate, which is actually responsible for ratifying treaties. The president can sign any damn fool thing he wants. Until 2/3 of the Senate ratifies it, it means nothing. Bush has taken back Clinton’s signature, which didn’t mean anything, anyway.
What the Supreme Court has said about illegal combatants is irrelevant. Mentioning it in this situation is just a smear.
I don’t know of any international treaties the US is party to which would involve turning US citizens over for trial in a different country. Can you name these treaties?
You cannot amend the Constitution via treaty. For example, I am quite certain that it would not be Constitutional for the Senate to ratify a treaty that would make the US part of another country, for example. Submitting to the ICC would veer dangerously close to this area.