International Criminal Court

[sailor]

[QUOTE]
*Originally posted by JonBodner *
**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.

[quote]
I find it hard to believe T=the president of the US would sign something which was clearly unconstitutional. All we have is your word. Can you find any cites of reputable jurists who support the same idea?

>> What the Supreme Court has said about illegal combatants is irrelevant. Mentioning it in this situation is just a smear.

No, it is not a smear. It is a clear indication that the SCOTUS, who is the last arbiter of what the Constitution means and says, can interpret it in ways which are not obvious to the lay person.

The Constitution says the US government cannot do certain things and yet the US government is doing those things in Guantanamo so clearly the US Constitution has limits. The US constitution says the US government cannot torture people and yet the US government has handed prisoners to countries where they would be tortured. If these things are compatible with the constitution I cannot imagine the ICC would not. As I say, show me reputable jurists who argue that.

>> 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?

Give me a break. You have just disqualified yourself. The USA has plenty of extradition treaties with plenty of other countries and it will extradite US citizens to be tried in countries which do not have trial by jury or other things required in the USA.

>> You cannot amend the Constitution via treaty.

As I have just shown, handing someone to be tried by another country or body does not require amending the constitution as is clearly demonstrated by extradition treaties.

[Age_Quod_Agis]

sailor:
It does? Can I have a cite proving what you say is true?

Ravenman:
Age Quod Agis: . . . 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.

Sorry. You are both right. My facts were alternately outdated and innacurate. My brief investigation has revealed the following:

The Tommy Franks (and Colin Powell and Dubya) suits were never handed over to the ICC. They were filed in Belgian courts, which apparently claimed “universal jurisdiction” over war crimes and other crimes against humanity. The Belgians have since given in to American objections (and threats to move NATO headquarters) and amended their “universal jurisdiction” laws. First, the Belgians agreed to allow transfer of such cases to the country most interested in the outcome of the case so long as that country had an adequate and impartial justice system (in this case, the Franks case would have been transferred to the US). After the US continued to object, the Belgians agreed that they would further amend their claim to universal jurisdiction so that they would only have jurisdiction over cases in which Belgium has a direct interest (for example, if the defendant or victim is a Belgian citizen).

So it certainly appears that neither the ICC nor Belgium are currently claiming jurisdiction over the Franks matter. However, some states still claim “universal jurisdiction” over war crimes and crimes against humanity, and some commentators continue to argue that the ICC (and nation-states like Belgium) should have universal jurisdiction.

My apologies. On the bright side, these boards have already fulfilled their mission insofar as they have combatted my own ignorance.

[JonBodner]

[QUOTE]
*Originally posted by sailor *

I find it hard to believe the president of the US would sign something which was clearly unconstitutional. All we have is your word. Can you find any cites of reputable jurists who support the same idea?

Clearly you never heard about President Nixon.

But presidents sign into law things that are unconstitutional all the time. Clinton’s line-item veto was ruled unconstitutional, for example. You can also look at many of Lincoln’s actions during the Civil War which were found unconstitutional, or FDR’s during the Great Depression.

No, it is not a smear. It is a clear indication that the SCOTUS, who is the last arbiter of what the Constitution means and says, can interpret it in ways which are not obvious to the lay person.

The Constitution says the US government cannot do certain things and yet the US government is doing those things in Guantanamo so clearly the US Constitution has limits. The US constitution says the US government cannot torture people and yet the US government has handed prisoners to countries where they would be tortured. If these things are compatible with the constitution I cannot imagine the ICC would not. As I say, show me reputable jurists who argue that.

I don’t know if the Supreme Court has ruled on any illegal combatants in the War on Terrorism yet. However, their decisions will be based on wartime rules. In emergencies, situations change, and in wartime, the Supreme Court tends to give the Commander-in-Chief a bit of leeway.

Treaties that take away US sovereignty are not emergencies.

As for what the “layman” would think, I think that anyone who is watching the Moussaoui trial will realize that trying to prosecute terrorists in normal courts is a bad idea. The man calls himself a soldier in bin Laden’s army and swears that he stands for the destruction of the US. Well, sane countries shoot people like that. You can’t try him before he does anything, you don’t wait until he’s just about to get in the act, and you don’t force yourself to give away vast amounts of intelligence data proving the conspiracy. Criminal courts just aren’t able to handle these things.

For example, because the first World Trade Center bombing was treated as a criminal affair, Al Qaeda was able to learn in open court that the US had the ability to listen in on their satellite phone conversations. We had to tell them who our informants were, since they had a right to face their accusers. This helped out the terrorists, and arguably, led to thousands of deaths world-wide. It’s not a trade that I consider worth it. As Justice Jackson said, “The Bill of Rights is not a suicide pact.”

You have just disqualified yourself. The USA has plenty of extradition treaties with plenty of other countries and it will extradite US citizens to be tried in countries which do not have trial by jury or other things required in the USA.

As I have just shown, handing someone to be tried by another country or body does not require amending the constitution as is clearly demonstrated by extradition treaties.

In fact, I will now help you make your case against me:

http://www.usextradition.com/extraditionarticle.htm

The article is very detailed as to the Supreme Court cases that deal with extradition, and the history of the US and extradition treaties. You are correct; the Supreme Court has ruled that being a US citizen is no protection against extradition to another country. The US has sent its citizens off to other countries for trials repeatedly.

However, for this very reason, the US would be quite foolish to sign on to the ICC. If the US joined the treaty, it would be responsible for turning people over to a court that is very poorly designed (IMHO), with the only possible reprieve coming via the State Department. Rather than be bound by this, it’s better that the US stay out of the ICC. If a US soldier commits a crime, they’ll be tried either by US military courts or by the nation where the crime occurred. But for some anti-American bigot in the Hague to just make up a charge against Americans and then have the US be forced to send a citizen off to a kangaroo court? That will never, ever, never pass the Senate by a 2/3 majority.

[Ravenman]

[hijack]
Has the Supreme Court ever struck down a treaty as being unconstitutional? It is even possible to do so? Any responses without basis in fact and backed up citation will be subject to summary ridicule.
[/hijack]

[furt]

Originally posted by sqweels *
** The UN was founded in response to WWII. The ICC–one can presume–was partly inspired by the situations ion Bosnia and Rawanda.*

Partly, yes. And that part is well-intentioned, if futile.

The other reason is for the pursuit of politics by other means.

[Really_Not_All_That_Bright]

The Supreme Court can review a treaty- all here in that pesky Constitution we’ve been discussing-

Article III, Section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;…”

As to whether the Court has actually done so, I’m still looking for an example- I don’t believe one actually exists though.

Later in Section 2, we find, “to controversies to which the United States shall be a party”, still regarding the extent of the judicial power of the Supreme Court. This is why the ICC treaty cannot constitutionally be ratified- Section 2 would have to be amended to remove the jurisdiction of the Supreme Court over international incidents, regardless of whether the Constitution is reaching a bit by granting that power.

[Really_Not_All_That_Bright]

I have a confession to make. I didn’t really believe any of the stuff I said regarding the ICC itself- I was just trying to be an arse- although the constitutional stuff above is genuine. I think it is a noble undertaking and that the United States should be a signatory, even if a Constitutional amendment would be required. I think the principles of international law ought to be inviolate, and that every effort should be made to prosecute crimes against humanity.

However, there is one problem with the ICC I really do have.

Let us suppose that Mr. X is the lifetime president of a less than participatory democracy. He is evil and ruthless, and is indicted on one of the four charges the ICC is empowered to apply. Presumably he will have to commit one of these crimes on the soil, or at least against the citizens, of another state, because he will not have signed the treaty.

Now- who wants to go and arrest him?

The SAS did most of the arresting, or at least capturing, in Bosnia; the Green Berets or Delta Force do a lot of it. Occasionally, another European state, such as the Dutch, will chip in. And there’s the rub- naturally this doesn’t apply when governments refuse to harbor their indictees, but usually this is not the case. If the ICC is so determinedly international and representative, shouldn’t its enforcement be likewise?

[chula]

*Originally posted by dutchboy208 *
This is why the ICC treaty cannot constitutionally be ratified- Section 2 would have to be amended to remove the jurisdiction of the Supreme Court over international incidents, regardless of whether the Constitution is reaching a bit by granting that power.

If you’re saying that it’s unconstitutional for the US to join treates that require it to allow international courts to decide international disputes, that’s clearly false. No one ever raised this objection to the ICJ or the WTO.

As to whether the Court has actually done so, I’m still looking for an example- I don’t believe one actually exists though.

I’m sure that the US Supreme Court has reviewed treaties, the question is whether it has ruled any unconstitutional, which would help up understand the constitutional limits of the treaty-making power. I can’t think of any examples.

[SentientMeat]

The US, like any other country, does what it thinks is in its national interest.

And yet, so many countries have signed up for the treaty in full knowledge that one day its own soldiers and commanders might be on trial. Why would they do something so obviously detrimental to their own national interest?

If your answer is that the ICC is in everyone else’s but the US national interest because the rest of the world desires to somehow rein in US power, might I suggest that as an extra precaution it might be wise to fashion some kind of aluminium helmet to prevent the UN reading one’s thoughts?

[furt]

*Originally posted by dutchboy208 *
I have a confession to make. I didn’t really believe any of the stuff I said regarding the ICC itself- I was just trying to be an arse

This is not something that most dopers look on with much amusement.

[Really_Not_All_That_Bright]

*Originally posted by chula *
**If you’re saying that it’s unconstitutional for the US to join treates that require it to allow international courts to decide international disputes, that’s clearly false. No one ever raised this objection to the ICJ or the WTO. **

The wording of the Constitution here is quite clear for once, regardless of whether or not the Court has chosen to defend its territory regarding the WTO and the ICJ.

The “I didn’t mean that stuff” bit was (I thought this was clear) a mocking statement of idealism, and not to be taken seriously.

[sailor]

Age Quod Agis, I want to commend you for your impartiality and for comming out and admitting your information was mistaken. I wish we had more posters like you because, unfortunately, the norm seems to be for posters to never admit their mistakes and just disappear from the thread or, if they return, totally ignore the posts which prove them wrong. Posts like yours help clarify the facts and help move the discussion forward.

Personally I believe the Universal Jurisdiction principle for crimes against humanity and torture is a good thing just like piracy and slavery have been considered crimes under universal jurisdiction for a long time now. Crimes against humanity should be under universal jurisdiction. The USA who is so quick to try to limit jurisdiction on crimes against humanity is very quick to extend its jurisdiction when it sees fit. A case in point is the Helms-Burton act which penalises individuals and businesses outside the USA who engage in trade with Cuba. So the USA wants to have jurisdiction over acts which took place in other countries and which are legal there but will not admit universal jurisdiction of other countries for the most heinous crimes against humanity. I find that the actions of a bully acting in self-interest, not of a disinterested country upholding noble moral principles. History is moving towards making crimes against humanity universal crimes and the USA is making a mistake and going against the tide of history.

The case you cited (which I had already cited before) of the Argentinian Cavallo is a good case to consider. He is accused of the most heinous attrocities but Argentina cannot or will not try him. Should his victims (I mean the ones who survived and the relatives of the ones who dies) be denied any recourse? I believe it is correct that any country should have jurisdiction over such abominable crimes. Note that many countries already accept the principle of Universal Jurisdiction for crimes against humanity. Mexico had no problem extraditing Cavallo and the UK almost extradited Pinochet a couple years ago.

Look at it from the other side: Suppose the USA finds out Saddam Hussein is being sheltered in some African country and requests his extradition based on an accusation of torture and crimes against humanity. Should the African country extradite him or not? I am afraid most of the people who deny the principle of Universal Jurisdiction would OTOH say Saddam Hussein sould be extradited to the USA which just shows these people are no defenders of any basic principles but just of the principle that the USA should get its way by any means and that is their only principle. I’d like to see those people defend Saddam’s right not to be extradited to the USA.

JonBodner, for the illustration of all, this quote is from the page you linked to:

A United States citizen is likely to assume that he cannot be arrested and sent away to stand trial in a foreign court. This is simply not so. United States citizenship does not bar extradition by the United States. Between ten and twenty percent of persons extradited to foreign countries are United States nationals. For them, such treasured birthrights as trial by jury, confrontation of accusers, and compulsory process may evaporate.

An international extradition treaty obligates the United States to surrender to a foreign country a person charged with or convicted of an offense in that country. Because many foreign criminal justice systems lack the substantive rights and procedural safeguards embodied in American law, a tension exists between the treaty obligation and the rights of the individual facing extradition. In Charlton v. Kelly, the Supreme Court held that no principle of international law and no constitutional provision exempts United States citizens from extradition unless there is a provision to that effect in the applicable treaty.

>> You are correct; the Supreme Court has ruled that being a US citizen is no protection against extradition to another country. The US has sent its citizens off to other countries for trials repeatedly.

Good. At least we agree that it not unconstitutional to extradite individuals accused of crimes whether they be US citizens or not. That is the way it should be. A country should not be a safe haven for criminals, much less for crimes which are universally considered as such.

>> However, for this very reason, the US would be quite foolish to sign on to the ICC. If the US joined the treaty, it would be responsible for turning people over to a court that is very poorly designed (IMHO)

You keep changing your arguments around all the time. You have reached a conclusion and you keep throwing arguments around which support that conclusion. Now we have to take your word that the ICC “is very poorly designed”. I am not even going to bother asking you why because your opinion does not carry much weight with me but maybe you have some cites of reputed jurists who say the ICC “is very poorly designed” and that would be a reason to stay out of it rather than work on its improvement?

Please prove with quotes from reputed jurists that the ICC treaty is worse than all the dozens of extradition treaties the USA has already signed and that it is so flawed that it is better to not join rather than to work on improving it.

[sailor]

*Originally posted by dutchboy208 *
**I have a confession to make. I didn’t really believe any of the stuff I said regarding the ICC itself- I was just trying to be an arse-

That’s trolling and will get you banned pretty fast if you are not careful.

In any case you have shown zero understanding of what the Constitution means.

Later in Section 2, we find, “to controversies to which the United States shall be a party”, still regarding the extent of the judicial power of the Supreme Court. This is why the ICC treaty cannot constitutionally be ratified- Section 2 would have to be amended to remove the jurisdiction of the Supreme Court over international incidents, regardless of whether the Constitution is reaching a bit by granting that power.

The fact that is has jurisdiction does not mean it has sole jurisdiction. As has been pointed out, the USA already subscribes to multiple treaties which recognise the jurisdiction of foreign and/or international courts. Reality proves you are wrong in your interpretation.

[Really_Not_All_That_Bright]

“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”

Explain, please, how one can take “extend to all cases” to mean “not extend to all cases”? The text of the Constitution clearly states that the Court has “sole” jurisdiction.

Further, as far as the US already having subscribed to treaties with similar provisions, I submit that they are unconstitutional. None have yet been challenged because due process is denied to those undergoing extradition from the US- including appellate review.

The Court cannot simply choose to strike down a law; it must be challenged. Nobody has challenged extradition treaties (although nine cases challenging extradition on other grounds have reached the SC), so they remain. Doesn’t make them constitutional.

[Really_Not_All_That_Bright]

and sailor… regarding the trolling, scroll up a couple posts.

[lucwarm]

*Originally posted by SentientMeat *
**And yet, so many countries have signed up for the treaty in full knowledge that one day its own soldiers and commanders might be on trial. Why would they do something so obviously detrimental to their own national interest?

If your answer is that the ICC is in everyone else’s but the US national interest because the rest of the world desires to somehow rein in US power, might I suggest that as an extra precaution it might be wise to fashion some kind of aluminium helmet to prevent the UN reading one’s thoughts? **

IMHO, your question has an easy answer: The US is far more interventionist and unpopular than most other countries.

[Eolbo]

The following is the full text of my own nation’s declaration on ratification:

"The Government of Australia, having considered the Statute, now hereby ratifies the same, for and on behalf of Australia, with the following declaration, the terms of which have full effect in Australian law, and which is not a reservation:

Australia notes that a case will be inadmissible before the International Criminal Court (the Court) where it is being investigated or prosecuted by a State. Australia reaffirms the primacy of its criminal jurisdiction in relation to crimes within the jurisdiction of the Court. To enable Australia to exercise its jurisdiction effectively, and fully adhering to its obligations under the Statute of the Court, no person will be surrendered to the Court by Australia until it has had the full opportunity to investigate or prosecute any alleged crimes. For this purpose, the procedure under Australian law implementing the Statute of the Court provides that no person can be surrendered to the Court unless the Australian Attorney-General issues a certificate allowing surrender. Australian law also provides that no person can be arrested pursuant to an arrest warrant issued by the Court without a certificate from the Attorney-General.

Australia further declares its understanding that the offences in Article 6, 7 and 8 will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law."

Declarations and Reservations

Let’s see:

No citizen to be handed over without prior opportunity for investigation by Australian authorities

No citizen to be handed over if charge is being investigated or a case is proceeding in Australia

No citizen to be handed over or arrested without approval from the Australian Attorney General

Many signatories have similar declarations. Its… just not that scary. Honestly what is the big deal? The ICC doesnt replace national courts or their jurisdiction, it’s a court of last resort. Signatory states are expected to police their own.

[Really_Not_All_That_Bright]

It isn’t scary at all- the OP asked why Americans don’t like the idea, not why they are scared of it.

We’re all saying why we don’t like it (or do) but the reasons Americans in general don’t like it are:
-the President doesn’t so it must be fishy
-they don’t understand its jurisdiction
-they are overattached to the principle of American sovereignty although quite willing to waive it in, say, Iraq.

[SentientMeat]

answer: The US is far more interventionist and unpopular than most other countries.

Interventionist? Hardly. Britain intervened in Kosovo, Sierra Leone, Afghanistan and Iraq and still signed up. Australia sent troops to Iraq and still signed up. France intervened in the Ivory Coast and still signed up. Why did these countries sign up? Are they mad, or is it that they believe that the common good is served by putting aside their immediate national interests?

Unpopular?: Let me list some states which I would describe as “unpopular”: Burma, for crimes against humanity. North Korea, for crimes against humanity. Saddam’s Iraq, for crimes against humanity. Pinochet’s Chile, for crimes against humanity. To place the US in this list would be paranoid in the extreme.

To contend that the ICC would be after Tony Blair (or whoever) for every single civilian death, even in an illegal war, is simply absurd. While those with a strong anti-Western agenda might lobby the ICC to haul Western leaders up in court, war cirimes or crimes against humanity simply do not describe such, and the ICC would not waste time pursuing a prosecution which could so obviously not yield a conviction.

The only Western action I can think of in my lifetime which might have been pursued in the ICC was the My Lai massacre, and as others have said, that would only be the case if America refused to carry out its own investigation.

[sailor]

*Originally posted by dutchboy208 *
Explain, please, how one can take “extend to all cases” to mean “not extend to all cases”? The text of the Constitution clearly states that the Court has “sole” jurisdiction.

No it doesn’t. You just invented the word “sole” which is not in the original text. The Constitution also says the Federal laws and government have jurisdiction over the entire USA and yet that does not deny the fact that the several states also have concurrent jurisdiction. Or are you telling me the laws of the several states are also unconstitutional? Don’t be silly.

Further, as far as the US already having subscribed to treaties with similar provisions, I submit that they are unconstitutional. None have yet been challenged because due process is denied to those undergoing extradition from the US- including appellate review.

The Court cannot simply choose to strike down a law; it must be challenged. Nobody has challenged extradition treaties (although nine cases challenging extradition on other grounds have reached the SC), so they remain. Doesn’t make them constitutional.

So you are telling me that of the thousands and thousands of cases involving extradition treaties, not one person has chosen to challenge their extradition on grounds that the treate violates their constitutional rights? Don’t be silly. Or that when someone has argued that point, as I am sure they have, and the courts have ruled against them, the courts are wrong and you are right? I am sure there are plenty of court rulings upholding the validity of extradition treaties. In the USA it is the courts and not you who decide what the law is. you don’t have a leg to stand on. Your interpretation of the law is totally at odds with the rest of the world. And you don’t think you might be wrong?