Why is the US so opposed to the International Criminal Court?

[Abe]

Posted by Riboflavin
The noble goals of the ICC are, as I said at the top, irrelevant unless you can actually show that the ICC is actually capable of working towards those goals instead of hindering reaching them.

If you have any objections to the ICC’s role, objections of a substance greater than “the court refused to accept US immunity demands and therefore the ICC is responsible for jeopardizing global peacekeeping” then by all means post them. I can appreciate you may not find all the documents involved to be crystal-clear and beyond dispute, but that is hardly any basis for claiming that the ICC is completely unnecessary, as you did more than once before making the claim that no one has shown the ICC will be of any use. As a reminder of why the court is necessary, please refer to the ICC’s Web site. Summarized and condensed from there:

From http://www.un.org/law/icc/general/overview.htm
Why Do we Need an International Criminal Court?

… To achieve justice for all
… To end impunity
… To help end conflicts
… To remedy the deficiencies of ad hoc tribunals
… To take over when national criminal justice institutions are unwilling or unable to act
… To deter future war criminals

I don’t think the PTT is capable of tackling those goals.

You then complained about my statement that a body like the ICC will be important for democracy. According to you, the ICC represents a step back in democracy because each country has only one vote, and that leads me to think that you are, again, thinking of this court as a form of government. It isn’t. This court will be good for democracy because it intends to cut down on the crimes committed by rule of the powerful such as Pol Pot, Milosevic, the Taleban, and many, many, too many others (I mentioned that asshole Mugabe in a previous post). Such people hold their power by force thanks to the impunity with which they commit atrocities on their own populations. Reduce their incentive to commit atrocities by rendering them accountable for them, and you automatically give democracy a boost in every single country that ratifies the ICC. It’s the deterrent effect.

Whether they ‘feel justified’ or not, their baseless labeling of well-founded suspicion of an ill-concieved court as ‘paranoid’, absurd labeling of the US not acting as a puppet for them as ‘isolationist’, and seemingly at-random use of ‘deranged’ does nothing to convince anyone in the US to change their mind, it in fact urges quite a few of us towards real isolationism.

Here you almost persuade through assertive use if language (“well-founded”, “ill-conceived”, “puppet” and more all in the same breath), but I think you lack the arguments to support these assertions, which I have shown to be false. Unfortunately, and I completely agree that “paranoia” and “isolationalism” are words that no one likes to hear, these are real issues. Their unpleasantness should not result in withdrawal, but in the urge to address problems that are quite important and could become much worse.

Labeling valid objections to the absurdity that is the ICC as ‘smokescreen arguments’ is more of the same deranged (see, I can use the word too) behavior that is not going to convince anyone to change their mind.

Right, except that, since some of the objections previously mentioned by the government are simply not valid, my calling them smokescreens is not deranged behaviour. And step easily around those ad hominems before you fall into one. Mind you, I have temporarily recognized some of your objections, but many of them—in particular the schoolchildren committing war crimes by teasing—are simply not valid. Why did the US administration put such cagal out there? I know that, with some exceptions, these people aren’t stupid and no doubt they have some very able folks analyzing the problem. So I can only conclude that the false objections the government distributed were a smokescreen for something else; perhaps they sought to swing public opinion massively against the ICC, or they were playing for time, or they were saving face by raising a little hell for a treaty they plan to accept but had criticized for years.

And there’s an interesting bias pointed out in that document as a ‘protection’- the big ‘non-ratifiers’ (US, Russia, India, China) represent 1/3 of the world’s population, but would be forbidden from having more than 4/18 of the judges (and are unlikely to have that many, since they only have 4 votes between them).

But why should the system of ICC judge placement be a democratic affair and based on population? This is not the Electoral College. At that rate we may as well say that the most powerful countries ought to have more votes, or that the most technologically/morally/judicially advanced should be given the greater influence. These considerations were kept out of the matter precisely in order to treat every country fairly and equally.

[On my point about the lack of standards for superceding national courts]
The whole quote you provided simply fails to address the question. There are no objective standards for determining if a national court has failed to prosecute, again, as I said, leaving it up to the judges.

The answer to whether national courts have failed to prosecute is either yes or no. There is not much latitude here for anyone, even for the most vacillating of judges.

I don’t see jury trial, limits on search and seizure, or a substantive appeals process.

I don’t see a jury in the Supreme Court either, yet that court has quite a bit of public faith—and its judges serve pretty much until they want to retire or are kicked out, and are appointed by one man. As for limits on search and seizure, can you be more specific? And, finally, the ICC has its own Appeals Division (as well as Trial and Pre-trial Divisions), which I believe is more than the US Supreme Court enjoys in its extremely high-level operations.

Must go as I am once again completely out of time.

[Zakalwe]

Apologies to Abe for not reading his last two posts, but I wanted to reply to this:

<snip> the US is a very powerful and effective player in many of these, punching far beyond the weight that a single vote might suggest.

emphasis added

Not so much lately, hmmm? I’m not sure this relevant to the discussion at hand, but that was the first thing that came to mind when I saw the quote above.

[UDS]

Well, I won’t comment on whether the US has become less influential lately, but there is the potential for a vicious circle here. If the US feels that it’s unable to influence the course of events to the degree that it wants or needs and it feels it has to opt out as a result, thereafter it is unable to influence the course of events. And the more they do this in relation to any specific area, the more the cumulative effect is that the US is a less influential player on the world scene that it used to be. Of course, it will still have its economic and military might, but its political and diplomatic power will be reduced.

[Zakalwe]

UDS

I agree that it’s not a valid a reason for not ratifying the Statute. My thought was, is this a “chicken and egg” kind of thing? I.e., the US is losing influence because George and Co are arrogant and isolationist vs. George and Co appear arrogant and isolationist becuase they’re bad at influencing international politics.

[Zakalwe]

Okay, Abe, finally had time to read through your posts. I have one question:

…Pol Pot, Milosevic, the Taleban, and many, many, too many others (I mentioned that asshole Mugabe in a previous post)…

This is misleading. How many of these guys would be prosecuted by the ICC is they repeated their actions today? You have to assume that they (or their state) ratified the Statute! But these guys, by their nature, are unlikely to ratify or to rescind ratification when they come to power.
I have asked the question twice now and not received a reply. Given:

(b) It can only prosecute somebody who is a national of a State which has ratified the Rome Statute or has accepted the jurisdiction of the Court, or who is acccused in relation to acts committed on the territory of such a State.

I 'll restate:
Of the people prosecuted for war crimes in the past half-century, how many would have been subject to the ICC had it existed at the time of their crime? Is it possible that the ICC will have little to do?

BTW, thanks for clearing up the minutiae thing. I was hoping you meant something like that.

[Riboflavin]

*Originally posted by Abe *
Nice piece of self-validation there. Although I am beginning to suspect that you are relying on the technique of flooding the board with repetitive assertions to drown the other points,

So, first the complaint is that I’m not supporting my statements, then when I do you complain that I’m trying to flood the board? I’d take this discussion with you to the pit at this point, but I just don’t have enough interest in it so goodbye.

[Riboflavin]

*Originally posted by UDS *
You make a fair and important point here, Riboflavin, but it is one which may tell in favour of the US adhering to the Rome Statute. The Adoption of the Elements of Crimes document, and its continued amendment and refinement, will be matters for the Assembly of States Party to the Rome Statute and, if the US does not adhere to the Statute, it will be unable to participate in the process.

If the ICC is going to be fair and unbiased and the treaty and elements of crimes are clear, complete, and without the problems I’ve been discussing (as you have claimed), then the US has nothing to fear by not participating in the early adoption process since there’s no danger of the ICC becoming a kangaroo court and there is no reason to be troubled about the powers given to the court now. But if, as you are arguing above, the court will not be objective and unbiased if the US doesn’t join, then joining would be a dangerous thing (unless the US intended to simply ignore the treaty, which is not the way the US normally handles treaties), since joining subjects the US to the whims of the court.

It seems rather absurd to me to argue that ‘well, if the treaty is screwed up and will result in Bad Things as it is now, then you should agree to abide by it and hope you can fix it’. That doesn’t qualify as a reason to sign on in my book.

But it is a process which is going to happen anyway and, whether or not the US adheres to the Rome Statute, US citizens may come before the court. Hence the US has a strong interest in taking part in, and influencing the direction of, this process.

Or a strong interest in making it clear to other countries what the consequences of attempting to bring US citizens before the ICC are, which seems to have been done pretty well. No US participation in peacekeeping missions (which means no one to do the heavy lifting; all of the rest of NATO couldn’t even deal with something in their own backyard like former Yugoslavia), and a very negative response to anyone attempting to bring US citizens up before the court (the minor matter of a law authorizing the use of force against anyone holding a US citizen for the ICC).

And to forstall the cries of ‘bloodthirsty unilateralism’, I’d point out that neither one of these should worry anyone in the least.

If the US is going to commit actual war crimes and not investigate and prosecute them, then why would anyone want the the genocidal US participating in peacekeeping missions in the first place? She’s doing you a favor by staying out of conflicts! And, similarly, why would a country willfully committing real crimes against humanity surrender someone just because a piece of paper says so - you’d have to bring overwhelming force to bear in order to get them to surrender someone for trial (after all, their government refused to make a real effort to investigate the crime)?

And if the US isn’t going to commit actual war crimes, then the threat won’t ever come to pass according to your argument, since the court will only prosecute real war crimes and not provide show trials.

Let me forestall the obvious objection that, if the US adheres, it will still have only one vote among 65 or more. That is true, but it is equally true of all international organisations and international conferences, and the US is a very powerful and effective player in many of these, punching far beyond the weight that a single vote might suggest. The US is not without resources, influence and allies, and the issues which concern the US here should equally concern many other states. Hence the US has the potential to play quite a signficant role here.

It appears that you’re conceeding my point about the flawed voting process in the ICC - the same kind of process that lead to Syria being found suitable for the human rights council and the US not. If the voting for judges and for the full powers of the court is similar enough to the UN General Assembly councils for the US to wield the exact same influence, then the voting for judges and for the full powers of the court is similar enough to allow for such absurd actions.
(BTW, it is most definately not true of all international organizations, in fact it is not true to the biggest one of them all, the UN as a whole. Anything which comes through the Security Council is subject to a veto by the US, UK, France, Russia, or China, the SC doesn’t include one vote for each nation, and the SC gets to vote on the more substantive activities of the UN. Thus it is clearly not true that all international organizations are structured in that manner.)

Obviously the administration is aware of this, and has still concluded that their best interests lie in opting out of the process. My point is that even those concerned to advance the best interests of the US and its people could reasonably conclude that, on balance, they are served by ratifying the Rome Statute.

You haven’t made that point. If the Rome Treaty is not flawed, then the US will not be hurt by not waiting until later to sign on. If it is flawed, then it would not be in the best interest of the people or government of the US to be bound by it.

And I really don’t think that allowing the War on Some Drugs to be fought by a court with no consitutional limits (most notably, no limits on using illegally seized evidence to get a conviction) is in the interest of the people of the US. Since the UN’s web page for the ICC (which, AFAICS is the closest thing to an official homepage for the ICC) states that the ICC may decide to get into the WOSD in the future, I’d say that you have to address that issue before you can claim that ratifying the ICC is in the best interests of the people of the United States.

[Riboflavin]

*Originally posted by UDS *
Riboflavin, I think you can only beleive that the Statute provides no more limits than the elments if you believe the words
“serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law,”
are not there, or if you believe that those words have no meaning, both of which beliefs are, frankly, irrational.

I have addressed your “frankly, irrational” comment (which, not suprisingly, I disagree with) at the bottom of the post. For the sake of argument, I will presume that your interpretation of 8.2.b is correct - I don’t know which way it will be used in practice, but debating which way the court will use it is pointless.

If you believe that writing “hjack this fags” on the side of a bomb is a serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, please say why you believe this.

“Serious” is not objectively defined either in the Rome Treaty or Elements of crimes, so is simply up to the interpretation/whim of the judges, and thus has no real bearing on the applicability of the statute.

Is it a violation of the laws and customs applicable in an international armed conflict? I don’t know - I can’t find one under which the acts in 8.2.b.xxi would ever be a violation. This would not be a problem under my interpretation of 8.2.b, but since you challenged my interpretation of it as “frankly, irrational”, I’ll simply ask that you either state that 8.2.b.xxi could never be prosecuted as a crime by the ICC or tell me what treaty would apply so that I can find the wording. However, just to keep this going for a bit, the 1949 Geneva Convention states in section 3.1.c that “outrages upon personal dignity, in particular, humiliating and degrading treatment” are against the terms of the treaty, but 3.1.c only applies to “an armed conflict not of an international nature”. I will presume that there is a treaty banning humiliating and degrading treatment in an international armed conflict with identical wording to that banning it in the 1949 GC.

Since the wording in 3.1.c just bans ‘humiliating and degrading treatment’, it’s clearly met - as was pointed out in

If, on the other hand, you do not believe this, please say why you think that the act you mention could be successfully prosecuted in the ICC.

Ahh, but I asked if it would “qualify as a war crime”. I’m not claiming that the painting incident would be successfully prosecuted, but that it would qualify as a war crime under the Rome Treaty. The issue I am raising is that the powers of the court are abusrdly broad and ill-defined, that virtually anything can qualify as a war crime under the terms of the RT and EoC. I am not concerned with whether this particular incident would manage to make it through a trial; what I am concerned with is the fact that this incident meets the objective standards for a war crime as set down in the RT/EoC.

If something like this, which we both agree would be absurd to call a war crime, meets the objective standards for a war crime in the ICC, then the objective standards for what consititutes a war crime amount to no standards whatsoever in practical terms. Handing a court broad laws which can cover virtually any act leaves the only defense against an illegitimate prosecution the discretion of the judges; thus my statement that what constitutes a war crime in the ICC is up to the whim of the judges.

It’s worth pointing out that “outrages upon personal dignity” have been banned for decades under the Geneva Conventions. The Rome Statute does not invent the concept; it merely provides a mechanism for prosecuting individuals accused of it.

I never claimed that it invented the concept. The ICC, as people keep mentioning, is a court of law - the Geneva conventions are not (or at least were not) a set of laws which people would be prosecuted under, but a set of agreements in a treaty. What is a reasonable standard in a treaty is not neccesarily a reasonable standard in a law.

I am not aware that any state has ever objected that writing obscenities on bombs or searching prisoners is a breach of the Geneva Conventions, despite the fact that these are routine occurrences.

There is no such requirement in the Rome Treaty or Elements of crimes, so any lack of objections is irrelevant.

On the frankly, irrational bit:

Let’s look at the full text, inlcuding the five words at the end that were missing from your qoute. 8.2.b “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:”

Now, my interpretation of that statement (and the way I’ve seen similar statements interpreted by courts in the past) is that it’s saying: “The court can prosecute serious violations of the laws and customs applicable in international armed conflict, and the specific acts which are crimes are:[list]”. Since there are similarly worded laws which are applied with an interpretation like mine, (I can look around and find some if you don’t believe me) it’s hardly ‘irrational’ for me to treat the text of the Rome convention that way.

Also, there appears to be no treaty forbiding ‘humiliating and degrading treatment’ except in an armed conflict not of an international nature (though that was just a quick search through the Avalon Project documents) - all of the Geneva Conventions have that limitation on it. Unless there is such a document that I missed (certainly possible), 8.2.b.xxi shouldn’t even be in the treaty since it would never apply - provisions in 8.2.b only apply to international conflicts, but the GC only forbids the act in 8.2.b.xxi in armed conflicts “not of an international nature”.

If 8.2.b was to be interpreted as a restriction by the court, I would expect that somewhere in the ‘elements of crimes’ document they would mention international treaties, which ones apply (since 8.2.b doesn’t mention any by name, unlike 8.2.a), and whether someone needs to be a party to the treaty in question to be subject to prosecution under the ICC.

Since similarly worded laws have been interpreted like I did, 8.2.b.xxi appears to not ever be enforceable as a crime if you interpret the statute as you did, and 8.2.b is missing information I would expect to be there if I interpred the statute as you did, I think that it is grossly unfair to characterize my interpretation of it as “frankly, irrational”.

[lucwarm]

*Originally posted by Riboflavin *
**

There is no such requirement in the Rome Treaty or Elements of crimes, so any lack of objections is irrelevant. **

Great post, Riboflavin. I would add that there has been much debate over the recent treatment of Al-Qaeda prisoners by the US. (hooding, shackling, sedation, shaving of beards, release of pictures to the press, etc.) It seems that one man’s reasonable precaution is another man’s breach of international standards.

Ironically, there has been talk that trial of Al-Qaeda prisoners without juries, etc., denies them fundamental due process rights.

namely, any of the following acts:"

Ouch.

[Riboflavin]

To correct a cut and paste error in my last post; “Since the wording in 3.1.c just bans ‘humiliating and degrading treatment’, it’s clearly met - as was pointed out in” should have ended with "previous posts in this discussion on the similar wording in 8.2.b.xxi. You yourself seem to have conceeded that the painting would qualify as ‘humiliating and degrading’ by not contesting that it meets the standards of 8.2.b.xxi and by focusing on 8.2.b as the relevant limit on painting bad stuff as a war crime. "

*Originally posted by lucwarm *
Great post, Riboflavin. I would add that there has been much debate over the recent treatment of Al-Qaeda prisoners by the US. (hooding, shackling, sedation, shaving of beards, release of pictures to the press, etc.) It seems that one man’s reasonable precaution is another man’s breach of international standards.

There has been much hue and cry, but I’m not sure that any of it can be said to be a state objection. While the complaints help highlight how broad of a net 8.2.b.xxi casts, I’m not sure you could call any of them ‘state objections’. I’m not sure what has and hasn’t been an official government statement, and since ‘state objections’ isn’t a requirement of the Rome Teaty I have no idea what would qualify as one anyway.

[Abe]

*Originally posted by grem0517 *
How many of these guys would be prosecuted by the ICC is they repeated their actions today? You have to assume that they (or their state) ratified the Statute! But these guys, by their nature, are unlikely to ratify or to rescind ratification when they come to power.

Rather than take a short-term view, think years down the line, when the treaty is already ratified in a particular country and leaders are elected with the knowledge that they will be held accountable. Obviously a leader like Mugabe will not willingly sign and ratifiy the ICC, because his kind of government relies on torture, oppression, etc., in order to function. But look at the case of the former Yugoslavia: Bosnia-Herzegovina, Croatia, Slovenia, Macedonia, and Yugoslavia (Serbia + Montenegro) have all ratified the treaty. This former hotbed region of crimes against humanity, genocide, war crimes, etc., is now a region under the reach, should it become necessary, of the ICC. The leaders of these countries, unlike the past ones, are now accountable for their actions. That means future leaders as well as present ones.

I don’t know what the steps to rescind ratification are (there is enough of a problem rescinding a simple signature!), but any future criminal leader who attempts to do so will simply be inviting the worst kind of criticism, from his own population as well as from the rest of the world and the ICC itself. In other words in attempting to consolidate his own immunity this hypothetical leader will alert the entire planet before his plans even have a chance to kick in.

Of the people prosecuted for war crimes in the past half-century, how many would have been subject to the ICC had it existed at the time of their crime? Is it possible that the ICC will have little to do?

This is a confusing hypothetical question about the past, when the ICC was not even a glimmer in the milkman’s eye and therefore had no effect whatsoever (no deterrence either). The truth is that, since the ICC did not exist back in the day of Pol Pot and company, these fine individuals were not accountable to anyone but themselves for their atrocities. However when the next Pol Pot arises and starts killing, Cambodia, which has already ratified the treaty, will be able to hold Pol Pot II accountable not just to the nation itself, but also to the ICC.

Anyway, you can answer your question (“How many of these guys would be prosecuted by the ICC if they repeated their actions today?”) by making a list of candidates from, e.g., Hitler to Mugabe, assuming that they suddenly emerged tomorrow, and checking whether their respective countries have ratified the ICC. You can see the countries that have ratified and signed the treaty so far over here.

But more than just legislation, the ICC should be seen as a warning shot to any person in a position of power who thinks that genocide, war crimes, etc., are in his best interests; the goal is to make sure that not only are such crimes punished, but that they are in no one’s best interests to begin with. Presently the situation is far more ad hoc and not deterrent at all.

[UDS]

Hi Riboflavin

This is a fairly sprawling thread, and I tend to be fairly focussed in the points I pick up on and discuss. If I have challenged some of the points made but not others, you shouldn’t assume that I agree with the others.

I don’t intend to respond point by point to your latest post because I think it’s probably not a useful exercise in terms of shedding more light on the issues here. In my earlier posts I have already agreed that there is a margin of uncertainty about what will, and what will not, constitute a crime triable before the ICC. As it happens, I don’t this this uncertainty translates into a material possibility that a US soldier will be tried and convicted before the ICC for scrawling obscenities on the side of a missile. Unless the prosecutor and the judges wish to turn the court into an international laughing-stock, they are not going to entertain this idea for an instant.

But this is irrelevant, because I concede that other, less dramatic risks are a real concern – areas where reasonable and honest people can genuinely differ as to whether the action complained of is contrary to the legislation, and to the intent behind it. There will, at least for some time, be uncertainty about what acts might lead to prosecution and conviction before the ICC, and what might not. And the US, as one of the countries most active militarily on the international scene, will suffer more from this uncertainty than other countries. But I believe that, however you constitute the court, and however you document the crimes which it can try, this will always be true.

Similarly, the US has a lot of enemies and there is a risk of politically-motivated accusations but, however you write the treaty and design the court, this again will always be true.

If these considerations, on their own, suggest that the US should not adhere to the ICC, they suggest that the US should not favour any treaty establishing an international criminal court, or support any attempts to establish one. But that is not the position of the US government, as appears from both its statements and its actions.

It seems to me that those who oppose the ICC could do so in one of two ways. They could argue that the US should oppose all attempts to establish a standing international court for trying war crimes and humanitarian crimes. They can argue that case strongly, for the reasons I have set out, but they need to accept that, in doing so, they are opposing not only all those countries who have adhered to the ICC or are contemplating doing so, but also the US government. They are arguing for a position that few states of any political complexion have been willing to adopt/

If they don’t take that position, they can take the (to my mind, stronger) position that this court or this treaty has particular problems which could and should be avoided by restructuring the court or amending the treaty. But since this too will always be true (the perfect court, and the perfect treaty, being unattainable) they need to go a little further and say that these problems are great enough to justify the US withdrawing from the court and the treatymaking process even though the court will be set up and the treaty will be reviewed and amended anyway, and disadvantage to the US could result.

In other words, the old status quo, where there is no court and no treaty, is not an option available to the US. The treaty is in force, and the court has been set up. The House Committee Resolution notwithstanding, military intervention to prevent other countries from operating the Rome Statute is not an option which any US administration is going to consider seriously. The only question facing the US is whether to participate or not, and from the point of view of the US there are pros and cons to either course of action. My feeling is that the case against the Rome Statute hasn’t really got the best airing it might have done in this thread. Many of the points put forward here (I’m not saying by you, Riboflavin) are not points on which the US government has chosen to rely, mostly for good reason.

Populist sound-bites aside, the US government’s concerns about the Rome Statute, and its attitude to the broader process of prosecuting international crimes are concisely but authoritatively set out here: http://www.state.gov/p/9949.htm.

If, after four pages, people feel that there is still milage in this discussion, I think a productive way forward might to to focus our discussion on the contents of that document.

[Zakalwe]

UDS said:

The treaty is in force, and the court has been set up.

It has!? Well then, just list the judges and prosecutors who have been elected in this first round and we’ll have the answers to some of the objections above regarding the “fixing” of the election to stack the Court with an anti-US bias.
On the other hand, we have this which says:

While the Group had been able to adopt most of the provisions in the form of a draft resolution to the Assembly, it was not able to complete the entire text. A consensus text on the election of judges during informal consultations on the matter had not been reached. At the present time, therefore, the Group did not have a proposed text for the election procedures for the judges. As the procedure was not yet completed, delegations would continue to consider proposals.

They don’t even know how to elect judges yet! (Which seems to mean that Article 36 is not the final answer on this question, not sure why) Further reading of the linked document shows that much of the detail of the Court has yet to be worked out. So far, they have a building and the “Advance Team” is working. I can’t seem to find any information on just what the Advance Team is doing.

With all of that said, I tend to agree with you that it might be better to focus on the specific objections of the current US administration as listed here (corrected link). Here are the objections as summarized by Marc Grossman:
[list=1]
[li]We believe the ICC undermines the role of the United Nations Security Council in maintaining international peace and security.[/li][li]We believe in checks and balances. The Rome Statute creates a prosecutorial system that is an unchecked power.[/li][li]We believe that in order to be bound by a treaty, a state must be party to that treaty. The ICC asserts jurisdiction over citizens of states that have not ratified the treaty. This threatens US sovereignty.[/li][li]We believe that the ICC is built on a flawed foundation. These flaws leave it open for exploitation and politically motivated prosecutions.[/li][/list=1]

Objection 1 seems somewhat valid to me, although certain parts of the stated objection do not. Regarding the definition and prosecution of “aggression”, the committees involved seem to recognize the exclusive competence of the Security Council in defining the specific act of any country as being an “act of agression.” See the FAQ of the ICC (question 6). Contrasting this is the reaction of certain States (Canada, Brazil, New Zealand and South Africa) to the recent resolution passed by the Security Council (1422) requesting the ICC per Article 16 of the Rome Statute itself to refrain from prosecuting members of the Peace Mission to Bosnia-Herzegovina. The member states objected to the “Council’s arrogating to itself the right to interpret and change the meaning of treaties” (quote from the press release not the letter itself). This in spite of the fact that the SC referenced specific language within the Statute that gives them this ability. They also claimed that the resolution “is damaging international efforts to combat impunity, the system of international justice, and the collective ability to use these systems in the pursuit of international peace and security”. Sounds to me like at least some States absolutely wish to restrain the power of the SC.

Objection 2 is probably the most debatable and has already been the subject of much discussion here.

Objection 3 quite honestly confuses me. As we have discussed, being present in a country indicates acceptance of jurisdiction under the laws of that country. I don’t quite understand how this would be different from what goes on now. The Statute doesn’t bind US citizens for actions on US soil. As noted repeatedly during this discussion, where’s the threat to sovereignty? US citizens give up sovereignty every time they leave the US.

Objection 4 appears to be a catch-all and isn’t ever specifcally discussed except in relation to the other three.

[UDS]

Thank you, grem0517, for correcting my link. And you are quite right to correct me about the establishment of the course. I guess my point is that the process is under way and it does not need the consent of the US to proceed.

In relation to objection 2, it’s worth noting that it’s the prosecutor, not the judges, about which the US is concerned.

[Zakalwe]

UDS

Thanks!
BTW, after further research, I have read through the reports of the “Group” I mentioned and their discussion seems to be procedural in detail. I haven’t noticed anything that substatively changes Articles 36 and 42. Seems this was a bit of a straw man on my part. Mea Culpa.
I agree that it is the Office of the Prosecutor that most concerns the US, but I would imagine Article 119 Para 1 also gives some people pause. As noted several times above, the basics of it seem to be that if you disagree with the Court, the Court decides if it was right or not. Oddly enough, other disputes may be settled through the ICJ.

[UDS]

*Originally posted by grem0517 *
**UDS

I agree that it is the Office of the Prosecutor that most concerns the US, but I would imagine Article 119 Para 1 also gives some people pause. As noted several times above, the basics of it seem to be that if you disagree with the Court, the Court decides if it was right or not. Oddly enough, other disputes may be settled through the ICJ. **

Interesting. I hadn’t spotted that, and I’m not sure why its been written that way. A couple of thoughts occur to me.

The ICJ only deals with disputes between states (and article 119(2) only provides for disputes between states to be referred to the ICJ). But a dispute about the judicial function of the court is likely to be a dispute between an individual defendant or defendants and the prosecutor.

The ICJ may be reluctant to act as a court of appeal, which is what it would be doing if it dealt with disputes about the judicial function.

The ICJ may have been unacceptable as a court of appeal to the states negotiating the treaty, or to some of them. Perhaps, ironically, it would have been unacceptable to the United States?

There may have been a consensus among the states negotiating the treaty that the appeal would be to the appeal chamber, and that there should be no appeal beyond that.

These are all just guesses, I hasten to add.

[lucwarm]

I’m not sure if this is addressed only to Riboflavin, but what the heck, I’ll respond.

*Originally posted by UDS *
**If I have challenged some of the points made but not others, you shouldn’t assume that I agree with the others. **

I can tell you that I won’t make that assumption. On the other hand, if a poster makes a decent argument to you, and you don’t respond, well, readers can draw their own conclusions.

Similarly, the US has a lot of enemies and there is a risk of politically-motivated accusations but, however you write the treaty and design the court, this again will always be true.

I disagree. For example, you gave the US veto power over indictments, possibly through the UN Security Council, that would pretty much solve the problem of politically-motivated accusations against Americans.

[UDS]

Hi lucwarm

*Originally posted by lucwarm *
I’m not sure if this is addressed only to Riboflavin, but what the heck, I’ll respond . . . I can tell you that I won’t make that assumption [that I concede all points which I do not explicitly dispute].

It was aimed at Riboflavin who, in the post to which I was replying, said “It appears that you’re conceeding my point about the flawed voting process in the ICC”, when it had not been my intention to concede anything of the kind.

*Originally posted by lucwarm *
**On the other hand, if a poster makes a decent argument to you, and you don’t respond, well, readers can draw their own conclusions. **

I take your point. In an ideal world I would reply to every point. On the other hand, as I said, it’s a sprawling thread already and I am trying to limit my discussion to points where I think more discussion will actually cast some light. I could reply to other points saying, in effect, “I don’t accept what you say but I’m not going to say why”, but I don’t think that would be useful.

People will draw what conclusions they want from my failure to address a point but when the actually say that they’re taking me as having conceded, I feel I should demur.

*Originally posted by lucwarm *
**For example, you gave the US veto power over indictments, possibly through the UN Security Council, that would pretty much solve the problem of politically-motivated accusations against Americans. **

I take your point; a Security Council veto would solve that problem. But it could also prevent investigations and prosecutions arising from perfectly proper complaints against US nationals, as well as investigations and prosecutions, whether or not politically-motivated, arising out of complaints against nationals of China, France, the UK and Russia, and quite possibly of nationals of the client states and allies of any of the permanent members of the Security Council. It is obvious why this solution does not commend itself to the international community. You can see, also, that as a general solution to a perceived problem of political invervention into investigation and prosecution decisions it is positively counter-productive.

I guess what I should have said is that I haven’t seen a way of filtering out politically motivated accusations which doesn’t create the reverse problem of enabling proper accusations to be suppressed for political motives.

[lucwarm]

*Originally posted by UDS *
**

I take your point; a Security Council veto would solve that problem. But it could also prevent investigations and prosecutions arising from perfectly proper complaints against US nationals, as well as investigations and prosecutions, whether or not politically-motivated, arising out of complaints against nationals of China, France, the UK and Russia, and quite possibly of nationals of the client states and allies of any of the permanent members of the Security Council. It is obvious why this solution does not commend itself to the international community.
**

Maybe so, but here’s what you said previously:

**

If these considerations, on their own, suggest that the US should not adhere to the ICC, they suggest that the US should not favour any treaty establishing an international criminal court, or support any attempts to establish one.**

And keep in mind the title of this thread.

[Zakalwe]

Riboflavin

In a very real sense, the SC does have veto power. Article 16 expressly provides it and the SC has shown that it’s willing to use it to ensure broad particpation in peacekeeping missions. The “undermines the SC” argument doesn’t seem to hold water.

However, during my research, I just figured something out (forgive my slowness):

Article 11 Jurisdiction ratione temporis
[list=1]
[li]The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.[/li][li]If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.[/li][/list=1]
Article 12 Preconditions to the exercise of jurisdiction
[list=1]
[li]A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. [/li][li]In the case of article 13, paragraph (a) or ©, the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:[/li]a. The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
b. The State of which the person accused of the crime is a national.
[li]If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.[/li][/list=1]

This is a beauty of a loophole, don’t you think? As an example:
[list=1]
[li]The US is not a Member state, neither is Afghanistan.[/li][li]The recent bombing incident took place after the ICC went into force.[/li][li]Afghanistan could become a Member State, but the bombing would be excluded (per Article 11.2) as it took place before Afghanistan became a member.[/li][li]THE LOOPHOLE: Under Article 12.2 and 12.3, Afghanistan can declare that it is willing to accept the jurisdiction of the ICC and immediately request an investigation by the Office of the Prosecutor even though the bombing took place before this declaration because Article 11.2 allows these states to request investigation and prosecution of prior offenses![/li][/list=1]

Now I begin to see a problem! Do I misunderstand these two Articles and how they work together? I am not an expert in reading/interpreting international treaties, nor am I trained in law.

On a more personal note, I’d like to second the comment made at the top of the page. Well-reasoned, (mostly) polite discussion on a fascinating issue! I know that while I remain undecided overall, this thread has forced me to examine the issue and my feelings about in detail. Ignorance has been fought (at least for me).