I tried to read the entire thread but it made my puny brain hurt, so I apologize for rudely jumping to the end to ask a question:
As a US Service member, could the ICC supercede my rights as set forth under the US Constitution?
I’m looking for a “yes” or “no” here (If it requires three paragraphs of explanation, that’s a “yes”.)
I just got back from a 60-day deployment in Saudi Arabia. It’s tough enough being shipped to work in a hostile environment where we were under attack from terrorists (and a country where we enjoy no Status Of Forces Agreement to boot) I would rather people would not ask me to risk my life defending your rights and freedoms while abdicating some of my own.
This will sound condescending, but your question is pretty facile. Given your conditions, the answer is yes. Of course, the answer is also “yes” for the Homeland Security Bill, HIPAA, the UCMJ, and just about every other piece of major legislation or treaty. It’s just not that simple.
BTW, as a veteran, I can tell you right now, you’ve already signed away a signifcant number of your freedoms. You’ll get them back when you leave the military. Also (as a vet), I didn’t ask you to defend my freedoms, you volunteered to do it (just as I did when I signed on and defended your freedom). Do it or don’t do it, but don’t do it and then whine about it, big guy.
grem: You’re incorrect. A member of the US Armed Forces doesn’t sign away his Constitutional rights. The idea that (s)he does is what I refer to as a Military Myth. Let me know if you’d like the link to the UCMJ. Calling his (her) posting a troll, btw, wasn’t all that cool, now was it, especially when your response to said posting was to post misinformation?
The US already has extradition treaties with many countries so a US citizen can be extradited to another country where judicial process is different from the US. I can’t see the big deal about having one more such treaty with the ICC.
In fact, President Bush has made it a poit in his War on Terror to expand extradition treaties substantially. If the US wants other countries to extradite with fewer restrictions it is going to have to go along the same lines. Or does anyone think the US can have anyone it wants and not reciprocate?
You made an argument based on the US using the same sort of political influence to steer the process of drafting the ICC as it does in other General Assembly proceedings. If, as you were asserting, it is possible for the US to use political influence on the process, then you either need to conceede that other countries can use the same sort of GA politicing against the US (similar to the Human Rights Council fiasco), or explain why only US influence would occur. Otherwise, you’re implicitly conceeding my point, regardless of whether you wish to or not, or whether you openly state it or not.
I think it’s because you’re no longer getting easy serves, but having to deal with the direct text of the treaty, which is a lot easier than dismissing vague assertions. I also think it’s an interesting coincidence that you tell me that I’m being ‘frankly, irrational’, then suddenly decide not to respond ‘point by point’ to the post where I point out that you ommitted a cruicial piece of text to make the ‘frankly, irrational’ assertion, offer to provide evidence in the form of similarly worded (including the cut words, mind you) laws which are interpreted in a manner like I did, and ask you for an explanation of how your interpretation fits in with other ICC documents.
There is not just a ‘margin of uncertainty’, the entire page is uncertainty. As I demonstrated, and you have yet to refute, either a US soldier scrawling ‘HIJACK THIS FAGS’ on a bomb meets the objective standards for a war crime under the Rome Treaty and Elements of Crimes, or a huge chunk of the crimes listed in the treaty are not prosecuteable due to not actually being against any preexisting treaty, if your interpretation (which BTW relies on cutting a few words from the text) is true.
That is simply a strawman argument. I never claimed that a US soldier would be tried and convicted for scrawling obscenities, in fact I explicitly told you that in the post you don’t wish to respond point to point to. Perhaps it slipped away like the last part of 8.2.b, here it is again:
It will not always be true that any court formed to prosecute war crimes will have writing ‘HIJACK THIS FAGS’ on a bomb qualify as a war crime.
I’ve put forth specific arguments which you’re now simply ignoring. Blather on about ‘populist sound bites’, and what arguments must be made, but I think readers can draw their own conclusions from the fact that not only you have failed to address the points I’ve raised, you seem to forget explicit statements that I made, and the fact that you have to keep resorting to declarations of how many ways someone can argue instead of simply addressing the arguments actually put forth.
At first, I relied on secondhand information and got burned when a major point turned out to be a fabrication. Now, however, I’m simply using the ICC’s own documents (and occasionally the text of other treaties), and they’re a whole lot scarier than any ‘populist soundbite’ or ‘polemical source’ that you like to imagine I’m getting them from.
Did the US accept the jurisdiction of the courts of Nazi Germany and Imperial Japan during WW2? How about the courts of Vietnam or North Korea? Or Libya during that bombing in the 80s? The difference from how things are now is that you can subject a country who is not a party to the Rome Treaty to the ICC by attacking them, which is not how other treaties work. Military action in self-defense is explicitly allowed under the terms of the UN and the various treaties in force, and when engaging in such military action against country B, the soldiers of country A are not considered subject to the laws of country B or to any treaties country B has signed but A has not.
Really? Freedom of speech is as protected for members of the Armed Forces as it is for civilians? Things have sure changed since I got out…
As for the troll comment, it was somewhat toungue-in-cheek, but what else to you call when someone jumps into a 5-page thread, says “I didn’t read it, but…”, makes inflammatory statements without contributing to the debate, and demands a yes or no answer to a complex question. Perhaps his offense was not posting his question to GQ and maybe suggesting trollish behavior was a little harsh, but the behavior isn’t cricket. IMHO. YMMV. Taxes not included.
Riboflavin Ummm…thanks? I already posted an addition to this showing a situation where Objection3 becomes a reality(bottom of Page 4). Yes, it took me a while, but it’s a long treaty and I only have so much time to read it.
Given your feelings though, are you against any trial for war crimes? It is almost always the case that soldiers are tried under laws not in force in their country at the time they committed the crime. Note: This is not intended to be inflammatory, I’m really asking the question.
grem is right, I read most of the post, but should have read each entry before I chimed in. It was aa poor way to make a point. Sorry.
I am in the military to defend your freedoms, and that of my friends and family. Call me naive, but I believe all that stuff I was told about honor and selflessness. It’s part of my beliefs (for that matter it’s part of my religion). I do think it contributes to the debate as a service member to say I would rater my fellow Americans not get together and make my job any more perilous or difficult than it already is. Some people really do this for love of country. I’m in the reserves, and loose money every time I’m on duty (I make good money at me civ job). In essence I PAY to be in the military, so I think I have the right to this opinion, right or wrong. "Do it or don’t, but don’t whine about it”? Are you fucking kidding me? Ok, lets pass a law abdicating your right to free speech. “Live here or not, but don’t live here and then whine about it.” That’s being inflammatory, not contributing to the debate “big guy”
Sgt. J, maybe your post would have been more appropriate as a start of a separate thread but anyway, as a member of the US armed forces, if you are accused of committing a crime when stationed abroad the US can hand you over to foreign authorities to be tried and, in fact, have already agreed to do so with many nations and would have the obligation to do it. The US may have an interest in protecting its citizens (military or not) but it has an interest also in punishing crimes if it wants to be part of the international community. If you commit rape, murder and mayhem the US should not be helping you avoid punishment for the crimes. Whether they hand you over to the government of Japan, Germany, or other country or to an international tribunal composed by those and other countries is up to the US. But you can already find yourself in front of a foreign court if you are accused of committing a crime abroad. So let’s not make it sound like it’s the end of the world. The change is not huge except in that the ICC is an international body.
Y’all may be veterans; however, I’m a veteran and worked in the Personnel field to boot. Part of my duties was court-recorder. There’s a huge difference between what folks want to believe about their organization (“Military Myths”) and the way justice is actually administered in Article 15 and court-martial proceedings. Next thing, y’all will be telling me that Service Members are government property and that a self-inflicted injury is “damage to government property.”
Now explain to me why when a military member is placed in military apprehension (the military version of “under arrest”), the apprehending authority is required to advise the member of his constitutional rights. That’s rhetorical–I already know the answer.
Sgt. J
Thanks for the initial comment and apologies for my overreacting, especially for the troll comment. The specific sentence in your original post that set me off was “I would rather people would not ask me to risk my life defending your rights and freedoms while abdicating some of my own.” It struck me as similar to Col. Jessup’s diatribe in "A Few Good Men (going from memory “I’m not inclined to explain myself to a man who rises and sleeps under the blanket of the very security I provide and then questions the manner in which I provide it”). In reading your second post, it looks like this was not your intention and I’m sorry I misinterpreted your intent. Obviously you do a job that needs doing and many of us have done it (or continue to do it).
It seems to me that a better contribution would have been to acknowledge that you are at some risk of having your US Constitutional rights abridged (case in Japan, anyone?) already and offer up specific examples from the Rome Statute that cause you to be concerned that you would be at greater risk than you already are. Monty, you seem focused on constitutional rights as they relate to someone accused of a crime. For the sake of dropping a hijack, I stipulate. You still didn’t answer my question about 1st Amendment rights (the 1st is a part of the constitution too). In the interest of staying on-topic though, I suggest we drop it or move it to a different though (although honestly it’s not something I’m that interested in following up on). I find your comment about self-inflicted injury interesting though, since it’s mentioned not once, but twice in the UCMJ (although obviously not under the heading of “damage to government property”).
I am under the impression that the ICC would supercede the current Status Of Forces Agreement that we have with many countries where US troops are stationed. If that is the case, for instance:
If ACCUSED (because we all know innocent people are from time to time arrested, sentenced, executed, etc.) of a crime in [wherever] my commanding officer/ JAG corps would not have the right to hold me in US custody or act on my behalf. I’d have none of the (albeit limited) rights of an American Citizen that the UCMJ and SOFA’s currently afford me.
>> we all know innocent people are from time to time arrested, sentenced, executed, etc.
Could you be more specific? How many innocent American citizens have been “arrested, sentenced, executed, etc.” by foreign governments (please provide examples) and how many Americans and non Americans have been “arrested, sentenced, executed, etc.” by the US? This makes for an interesting discussion as the US is quite alone among developed nations in executing people, innocent or not.
But to get back to the substance of this thread, the ICC would be judging individuals who are accused of having committed crimes against humanity and not been judged by their own countries. If you are ever accused of committing crimes agains humanity I hope the US will give you a fair trial which would be the end of the matter. If the US does not do this (which I cannot imagine) I hope the international community gets their hands on you and tries you. We have had enough crimes against humanity already.
I’m a little confused at your question. Your commanding office/JAG officer has the right to hold you in US custody now. The UCMJ covers that and as Monty points out the UCMJ follows the Constitution pretty damn closely with regard to criminal prosecution.
If your question is whether the US would be required to hold you for the ICC, the answer is maybe. If you assume the US is a Member State of the ICC, then yes. BUT, the ICC provides the US the first opportunity to try you under its own laws and procedures. Thus, your rights would be protected. Only if the ICC decided that this prosecution was faulty or solely for the purpose of protecting you would the US be required to hand you over. The nature of the ICC deciding that your prior prosecution is invalid somehow is at the heart of this debate.
You should probably take a look at this. Questions 12-14 seem to be relevant to the question you’re asking.
On this subject though, assuming the Supreme’s find the US trial to have been valid (and it resulted in exoneration), how do you square a potential second (ICC) trial with the double jeopardy clause of Amendment V? Or, since the ICC can not impose the death penalty, does the restriction to “jeopardy of life or limb” make this a moot question?
Hmm…I wasn’t aware that the Japanese government was required to follow the United States Constitution. OTOH, they are required, and do, follow the Japanese Constitution.
This is at the heart of the debate we’re having. The “end of the matter” assumes that the ICC accepts the US trial as valid under the Rome Statute. The point many people here have been trying to make is that this may not be a given due to political influences on the ICC.
Jeez, Monty what the hell is your problem with me? Stop putting word in my mouth and read my post:
emphasis added
Unless the Constitutions of every single country in which Sgt. J might be posted provide the same level of protection as the US Constitution and as long as it a policy of the US Gov. to hand soldiers over to local authority for local crimes (as in the semi-recent case in Japan, get it?), then he (she?) is at risk of having US Constitutional rights abridged.
And exactly where did I put words in your mouth? You brought up “case in Japan.” One is not entitled to US constitutional protections from foreign governments when one is located in said foreign government’s territory.
My problem with you is that you’re expounding erroneously.
Are you actually arguing that I have to PROVE that no criminal justice system is perfect and PROVE that mistakes happen? I thought that would be a given. Hell, I’m trying to remember the name of the CJ Prof. that’s made a career out of it…
The ICC could have a difference of opinion with the US Justice System on what constitutes a Crime Against Humanity. The US Court may investigate a situation where a C-130 gunship crew attacks what they perceive to be a threat and end up killing innocent civilians and decide it was poor judgment coupled with combatants hiding among the civilian population for cover. The ICC could look at the same situation and decide it was a premeditated slaughter and a CAH. ** That’s a judgment call on some level **. I want to be judged by the rules of the US system, not the US System and then an International System if they don’t think the first trial was good enough. Can you blame me?
Which was exactly my point! If you read the post, you’ll see that I was making the assertion that a member of the US Military is already placed in positions where the US Constitution does not apply. You seem to agree with me on this, so I’ll ask you to clarify where I’m “expounding erroneously”.