International Criminal Court

[sailor]

By the way, I want to repeat my question to those who oppose the USA becoming signatory to the ICC: If Saddam Hussein is found to be in a country which refuses to extradite him to the USA will you defend that country’s right to refuse the extradition?

[E-Sabbath]

Certainly.

However, under our own power, we may go ahead and take him anyhow. Because, uh, we can.

Not a big fan of that line of reasoning, just pointing out past US logic, in re Panama.

[Latro]

*Originally posted by sailor *
**By the way, I want to repeat my question to those who oppose the USA becoming signatory to the ICC: If Saddam Hussein is found to be in a country which refuses to extradite him to the USA will you defend that country’s right to refuse the extradition? **

How about Afghanistan not handing over OBL?

[clairobscur]

*Originally posted by sailor *
**
If Saddam Hussein is found to be in a country which refuses to extradite him to the USA will you defend that country’s right to refuse the extradition? **

That’s sort of a hijack, but on what basis exactly should Saddam Hussein be extradited to the US? There are possibly some reasons, but I can’t perceive any of them being really significant at first glance.
I can perfectly understand Saddam Hussein being extradited to Irak to be tried there for his crimes (once there will be some running Iraki government and courts) or even to Koweit or Iran for war crimes, but it seems to me that the US is really very low on the list of the countries which would have a good claim to try Saddam Hussein.

[sailor]

Rep. Moran of Virginia urges the Secretary of State to conclude an extradition treaty with El Salvador so a number of Salvadorans wanted for crimes in Virginia can be extradited. Which is ironic because the State of Virgina violated an international treaty when it suited them not so long ago. How can you demand cooperation from other countries while not cooperating yourself?

Senator Christopher Dodd’s Letter to Secretary of State Powell expressing his view that the USA should become a signatory to the ICC treaty:

I have not been deaf to the concerns that have been expressed about the Rome Statute. However, I have also been noted that throughout the negotiations over the Court, the United States has been successful in achieving the vast majority of its negotiating objectives. There is every reason to believe that US national interests - and the security of American servicemembers - will be best served by active US engagement with the Court. Even if one disagrees with the decision of the prior Administration to sign the Rome Treaty, it makes no sense to engage in unilateral diplomatic disarmament by throwing away the important negotiating rights to which the US is entitled as a signatory.

I wanted also to address your specific concern about the Rome Statute and the constitutional rights of Americans. The facts here are clear: the Rome Statute contains full due process protections for the rights of the accused. Nothing can or should infringe upon the constitutional rights of any American, and least of all an American servicemember sent into harm’s way at the request of his or her government. But the fact is that American negotiators were completely successful in insisting on full protections for the rights of defendants before the Court. That is why the American Bar Association endorses the Treaty and why former State Department Legal Advisor Monroe Leigh has written that the protections of the Rome Treaty are more detailed and comprehensive than the Bill of Rights. In fact, Monroe Leigh, who served under Secretary Kissinger, has written that he does not believe that there is a single constitutional protection available to American servicemembers that is not protected by the treaty. Recent events have surely made clear that both the Constitution and the Rome Treaty provide significantly more protection for the rights of American servicemembers, for instance, than our Status of Forces Agreements.

You should also consider that many, if not most, of the extradition treaties which the Senate has approved at the request of Republican and Democratic administrations alike do not guarantee prospective defendants a jury trial. Yet it has never to my knowledge been the position of any administration that the United States could not under the Constitution or would not as a matter of policy consent to either an extradition treaty or a status of forces agreement unless the accused would have a jury. Moreover, I do not believe that the Justice Department has taken the position that there is any constitutional bar to US participation in the International Criminal Court.

[sailor]

*Originally posted by clairobscur *
**That’s sort of a hijack, but on what basis exactly should Saddam Hussein be extradited to the US? There are possibly some reasons, but I can’t perceive any of them being really significant at first glance.
I can perfectly understand Saddam Hussein being extradited to Irak to be tried there for his crimes (once there will be some running Iraki government and courts) or even to Koweit or Iran for war crimes, but it seems to me that the US is really very low on the list of the countries which would have a good claim to try Saddam Hussein. **

What do you mean it is a hijack? It goes to the essence of this thread which is whether torture and crimes against humanity should or should not be Universal Jurisdiction crimes. As you say, the only claim the USA would have against Saddam Hussein would be by considering his crimes as of Universal Jurisdiction, but at the same time, the people who would defend that are the ones who would deny the concept in the first place.

[lucwarm]

*Originally posted by sailor *
**By the way, I want to repeat my question to those who oppose the USA becoming signatory to the ICC: If Saddam Hussein is found to be in a country which refuses to extradite him to the USA will you defend that country’s right to refuse the extradition? **

I’d have to think about your question, but I have a partial answer that I think you’ll find sufficiently responsive.

I support a double-standard. It’s far more ok for the US to impose its concept of justice on the leader of a third-world nation than for other countries to impose justice upon our leaders.

The simple reality is that the US has, perhaps, the best justice system in the world (even though it is not perfect). We are much better able to prosecute and punish our own soldiers than other countries would be. Many other countries (but not all other countries) are too corrupt to administer justice effectively.

Given that, it is better, IMHO, to rely on ad hoc tribunals.

[sailor]

lucwarm, that does not answer my question which is whether countries should or should not extradite individuals accused of torture and crimes against humanity. That is yes or no for everybody. It cannot be no for the USA and yes for the rest. If the USA is going to maintain the position that crimes against humanity are not of Universal Jurisdiction then it has no right to demand an extradition except on the basis of specific extradition treaties it may have with the nation holding the person they are seeking. The USA cannot have more rights than other nations.

And to those who just favor the use of force by the USA when it does not get its way, how is that different from justifying the use of force by the enemies of the USA?

The simple reality is that the US has, perhaps, the best justice system in the world (even though it is not perfect). We are much better able to prosecute and punish our own soldiers than other countries would be. Many other countries (but not all other countries) are too corrupt to administer justice effectively.

It is unfortunate that so many Americans hold such parochial views. You really think the American justice system is the best for everybody in the world? You do not think Europeans can sincerely dislike it? The notion that the American way is the only and the best for everybody around the world is frightening to many people in other countries who would like to be allowed to have their own opinions and not have the USA impose the American way on them.

[lucwarm]

*Originally posted by sailor *

---

That is yes or no for everybody. It cannot be no for the USA and yes for the rest. **

It can be if you believe in a double-standard.

**

The USA cannot have more rights than other nations.**

Why not? Perhaps certain other industrialized nations can lay claim to equal footing, but if you believe that the justice system of some third-world dictatorship should be on equal footing with that of the USA, well . . . we’ll just have to disagree.

**

You really think the American justice system is the best for everybody in the world? **

Just read what I said: The American justice system is, perhaps, the best in the world.

**

You do not think Europeans can sincerely dislike it?**

Maybe they should and maybe they shouldn’t, but there’s no need to debate the merits of American justice versus European justice. Because there are tons of third-world nations who have justice systems that are undeniably worse than that of the US.
**

The notion that the American way is the only and the best for everybody around the world is frightening to many people in other countries who would like to be allowed to have their own opinions and not have the USA impose the American way on them. **

It’s interesting you should say that because the main question here is whether others should impose their values upon us not vice versa. But for what it’s worth, I agree that the USA should not impose the “American way” – whatever that means – except in extreme circumstances.

[SentientMeat]

It can be if you believe in a double-standard.

Are you admitting to outright hypocrisy?

[sailor]

>> It’s interesting you should say that because the main question here is whether others should impose their values upon us not vice versa.

Nope, nobody is trying to impose anything on the USA. The USA has multiple international treaties it has joined voluntarily and the ICC would be one more. No one here has claimed the USA should be forced to join the ICC by the use of outside force. Not that I am aware of. At the same time some people do defend the use of force by the USA to get what they want.

Laws are for everybody and double standards are just a way of saying there are no laws. Civilized nations distinguish themselves by the rule of law, domestic and international. Barbaric nations do not respect the rule of law. The US should be on the side of promoting international cooperation and the rule of law. Anything else is barbaric and a justification for other barbaric acts including terrorism. if the USA is going to defend the position that the are no laws, only what you can get away with, why would that not apply to other countries as well?

An interesting document (PDF): Myths about United States Sovereignty and the International Criminal Court and [www.endgenocide.org/ceg-icc/factsheets/sovereigntymyths.pdf"]the same document in HTML](http://216.239.39.100/search?q=cache:xaEgPrnn6gQJ:[url).

[Ravenman]

*Originally posted by sailor *
**By the way, I want to repeat my question to those who oppose the USA becoming signatory to the ICC: If Saddam Hussein is found to be in a country which refuses to extradite him to the USA will you defend that country’s right to refuse the extradition? **

I think that is pretty much the situation that Iraq had been in for the last couple decades. Same goes for Myanmar, North Korea, and who knows how many other countries.

I take it that your general point is that countries should hand over war criminals to whomever seeks to put them on trial, even an international body. I think that such a statement must be qualified by stating, “so long as the country in question does not have a functioning, impartial judicial system.”

My primary concern is that I do not believe that the Rome Statute gives sufficient deference to functioning, impartial judicial systems, because the barriers to claiming ICC jurisdiction are there, but I believe fairly low, and are based primarily upon trust that the ICC prosecutors will ‘do the right thing.’

All in all, I think that is a recipe for an activist, interventionist ICC. Had the design of the ICC been less ambitious, I would be the first to say sign us up.

[sailor]

The summary of the document I mentioned is:

Myth 1: The ICC is merely another attempt by the UN to gain control over the US and create a world government
Myth 2: The ICC will be made up of countries hostile to the US that will use the Court for politically motivated attacks on US foreign policy
Myth 3: The ICC rests on the premise that its Statute is a higher legal authority than all other law, including the US Constitution
Myth 4: The ICC Statute purports to bind the US government before it has agreed to join the Court
Myth 5: Contrary to treaty law, the ICC claims the right to indict, seize, try, and imprison US citizens even though the US is not a party to the Court

Regarding the inconstitutionality of the ICC treaty it says:

Myth 3: The ICC rests on the premise that its Statute is a higher legal authority than all other law, including the US Constitution.

The ICC Statute is a treaty, which can only become national law in accordance with each state’s domestic ratification procedure. The US Constitution gives this power to the President, with the advice and consent of two-thirds of the Senate. The US Constitution also determines the precedence among laws from different sources in the United States. It provides that itself, federal, and treaty law are the supreme Law of the Land. In accordance with US constitutional law, if the US ratified the ICC Statute, it would become part of the federal law of the US, and thus superior to state laws, but not to the Constitution. If the US does not ratify the Statute, it will not become US law and will therefore have no authority whatsoever in this country.

It has been claimed that the Statute gives the ICC legal superiority over national law because it is an international court with the authority to investigate and try crimes that would otherwise be prosecuted domestically. However, this does not mean that the ICC has primacy over national courts. In fact, the ICC is complementary to national criminal jurisdiction, meaning that it cannot hear a case that is being investigated or prosecuted genuinely by an affected state. The ICC will not act except when a state is unable or does not wish to exercise its sovereignty. In fact its Statute encourages states to take the lead. The Court does not even have the authority even to initiate an investigation until the Prosecutor notifies the state of the accused, including a non-party state such as the US, which then can prevent an investigation merely by deciding in good faith that one is not necessary and so notifying the Court. Not only are the judgments of national prosecutors and judges generally binding on the ICC, some treaties between states take precedence over the ICC Statute. Thus, bilateral treaties governing the legal rights of US armed forces abroad (known as Status of Forces Agreements), extradition agreements, and international diplomatic obligations could have precedence in some situations over state party obligations to cooperate with the ICC. Similarly, both parties and non-parties have the final determination over whether national security information should be made available to the Court. Therefore, the ICC may not ask a state to surrender a suspect or for assistance with an investigation that would require that state to act inconsistently with its obligations to the US.

[sailor]

*Originally posted by Ravenman *
My primary concern is that I do not believe that the Rome Statute gives sufficient deference to functioning, impartial judicial systems, because the barriers to claiming ICC jurisdiction are there, but I believe fairly low, and are based primarily upon trust that the ICC prosecutors will ‘do the right thing.’

All in all, I think that is a recipe for an activist, interventionist ICC. Had the design of the ICC been less ambitious, I would be the first to say sign us up.

The document I linked to addresses that point as well. I have no dobt the ICC is not perfect but the perfect is the enemy of the good. Demanding perfection is a sure way to do nothing and have chaos. The ICC treaty need not be perfect for the USA to join, it just needs to be better than the alternative (no ICC treaty) and I believe it is. The same can be said about any system of laws. Furthermore, by being a part of the ICC the USA could make it better.

[lucwarm]

*Originally posted by SentientMeat *
**Are you admitting to outright hypocrisy? **

Not by the usual definition of “hypocrisy,” which means failing to follow the beliefs one professes. How do you define hypocrisy?

[lucwarm]

*Originally posted by sailor *
**

Nope, nobody is trying to impose anything on the USA. **

Look, if the ICC prosecutes American soldiers for conduct deemed acceptible by our own government, I would consider this an imposition of foreign values upon the USA.

I don’t see how anyone can legitimately disagree.

**

No one here has claimed the USA should be forced to join the ICC by the use of outside force. **

And, as far as I know, nobody here is claiming that anyone has put forward such a position.

**

Laws are for everybody and double standards are just a way of saying there are no laws. Civilized nations distinguish themselves by the rule of law, domestic and international. Barbaric nations do not respect the rule of law. The US should be on the side of promoting international cooperation and the rule of law. Anything else is barbaric and a justification for other barbaric acts including terrorism. **

Ok, so I gather you are opposed to the concept of a UN Security Council?

[ChaosGod]

I guess this debates can be summed up as follows:

a) The US has become so powerfull, it can already can act as jury, judge and executioner, with almost global jurisdiction.

b) ICC would (in principle) treat all countries as equals. Why would the US want THAT? When it’s obvious the US is NOT the same as rest of the world?

Or, as brutus put it so eloquently, “What’s in it for us?”
Slippery slope, …IMO.

[JonBodner]

*Originally posted by sailor *
JonBodner, for the illustration of all, this quote is from the page you linked to: >> 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.

You are not quite correct. My fear (and it’s a widespread fear in the US) is that the ICC will be misused and turned into a political arena. I thought it was unconstitutional and I was wrong. However, that fear is the main reason that I oppose the US signing the ICC treaty. The fact that I thought it was unconstitutional was a secondary support that turns out to be incorrect (have I stated that I was wrong enough times?).

As for people whose opinions you might respect, read:

http://usinfo.state.gov/topical/rights/law/rl31437.pdf

This document is heavily footnoted (276 of them), and works as a nice FAQ on the ICC, how the US feels about the ICC, and what implications the ICC has on the US. Some of the footnotes point to papers that might meet your criteria.

[X_Slayer_ALE]

*Originally posted by clairobscur *
**I didn’t say it was in the best interest of the US. Actually, it isn’t, as long as the US can get away with crimes it would commit and has enough reach to punish countries which commits similar crimes on its citizens. In the same sense, it’s not in my best interest to have any court around if i’m currently the mafia boss in the district.

It’s in the best interest of the world community at large to have such a court, IMO.
Now, as long as the US not signing doesn’t make its citizens immune from prosecution, I don’t have much issue with them not signing. I’ve an issue with a lot of other countries entering in bilateral treaties with the US to protect US citizens from prosecution. That’s a shame. **

Thats one way of putting it, I suppose. Since we agree that it is not in the US’ best interest to enter into the ICC, another way of putting it is that the US doesnt feel it is in its best interest to expose our nuts for every Bin Laden, Hussien and Chirac to have a free kick anytime they damn well feel like it and the US’ only recourse is to grin and bear it in the interest of the world community; and people here wonder why the US doesnt sign this treaty…

the ICC presents the US with a legal liability problem. In order to counter that, it is in the US’ best interest to have anyone who wants our military help to sign a non-prosecution agreement. The alternative is that the countries who do not sign bilateral treaties with the US, can have France come in and save the day when push comes to shove. I dont see whats the shame in that. You want the US to help you militarily, dont be squeamish about how the US does it. You dont have to have US military help. Nobody appointed the US as world police. At best the US is a professional security guard. You want US military help you need to sign the contract and read the fine print carefully.

[chula]

*Originally posted by dutchboy208 *
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.

Can you find anyone who supports your interpretation of Article III? Even those who claim the ICC would conflict with the Constitution are not making arguments as expansive as the ones you are making here.