Yes, but your situation is a little more obscure. I think ‘country signs the treaty. Later, country attacks US, therefore US is now subject to the treaty despite not signing it’ is a bit better example of how the treaty attempts to apply to nonsigners - no one can say ‘ohh, but they have to petition for this’. If someone attacks the US after signing the treaty, then (unless the US just surrenders immediately) the ICC claims jurisdiction over the US, which is contrary to previous international law and, frankly, absurd.
Not at all, but I think they should be done on the Nuremburg model (a court with jurisdiction over a specific set of crimes occuring in a certain place during a certain time period and other limits), or the court needs to be set up in a much better manner than the ICC.
Can to give some examples? At Nuremburg, for example, the Nazi leadership was tried for violating treaties and laws which they (or Germany as a whole) had agreed to or passed and hadn’t repudiated.
>> 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.
No, it is not a given that the American justice system makes fewer mistakes so, yes, you will have to prove it to me. And when you talk of executions you are going to have it difficult proving the US executes fewer people by mistake for the simple reason that most other developed nations have no death penalty. I believe the ICC cannot impose the death penalty either. So when you go around throwing wild accusations like that, expect to be called on them.
At any rate, the Japanese can have a different opinion on what constitutes rape or whatever crime, and you would still be tried in a Japanese court according to what they think. Too bad the US cannot impose their laws over the rest of the world. Tough cookies.
>> I want to be judged by the rules of the US system. . . . Can you blame me?
No I can’t. And I would like to sleep with Sandra Bullock. Can you blame me? No you can’t. But we don’t always get what we want.
If the US wants to be part and participant of the international community it is going to have to play along. US foreign policy depends on many things, not just brute force. If the US expects to have the cooperation of other countries it will have to play along with those countries. And, the US has no choice but to go along.
In another thread we are discussing the US attacking Irak. It seems the US (or at least the President of the US) would like to attack Irak. What are the chances of pulling this off in the face of massive foreign opposition? The answer is zero. The US needs the support of a large part of the international community. So if the US decides to take an uncooperating and isolationist path, then it can expect little support from the rest of the world.
You might like it better if the US ruled the world on its own but that is not a fact now and will not be any time soon.
You’re right! That would be a better example if it was a valid scenario. The Statute doesn’t claim jurisdiction over the US at that point, only the attacking country.
From here (Question 12):
What part of this gives the ICC jurisdiction over the US under your scenario?
Japan’s not abridging anyone’s Constitutional rights. Quite the contrary, someone accused of violating Japanese law is afforded their Constitutional rights. It just so happens to be Japan’s Constitution that applies.
The way you word the post seems to have you saying that the United States is abridging the accused’s US Constitutional rights. That’s also incorrect. For the military members, the SOFA provides for military jurisdiction for offenses if the host country cedes jurisdiction. If the Japanese authorities cede jurisdiction (just like what happens when a military member commits a crime off base in the United States and the local authorities decide to let the military handle it), then the military member is afforded US Constitutional protections within the military justice system. The only difference is that in the US, the off-base authorities operate under the US Constitution.
Maybe this will clarify: The US government isn’t abridging anyone’s rights in the cases of military members who are accused of crimes off-base overseas. The US government isn’t a party to the prosecution unless and until the host country cedes jurisdiction to the US authorities. A further note is that both the civilian employees on base and the family members of military and civilians are under the purview of the host country’s laws both on and off base.
Heck, in some cases, it’s the the accused’s benefit for the host country to try the case!
But as soon as the US takes action against the attacking country, as allowed under international law, the ICC claims jurisdiction over the US. (The scenario in my last post is not very good because it doesn’t include this part).
So, say Canada suddenly starts lobbing missiles at the US (not something I expect to happen, but I don’t want to get into ‘who has signed and might attack the US’ discussions since it’s irrelevant here). What can the US do about it without subjecting US forces to the ICC? Although it would be legal for the US to send troops into Canada at that point to take control of the launch sites, the ICC would claim the ability to prosecute them for their actions despite the US not having signed the RT.
Okay, you’re right. That is an important point in an unimportant argument. Two things to consider:
[list=1]
[li]You would have to assume that the attacking country would not withdraw from the Statute, thus exposing themselves to risk of prosecution as well.[/li][li]You would have to assume that the US would commit offenses prosecutable under the Statute.[/li][li]You would have to assume that charges would be brought by the ICC.[/li][li]You would have to assume that the US would not prosecute the cases or:[/li][li]You would have to assume that the ICC is anti-US sentiment in the ICC would run so high that they would attempt to deny the US prosecution.[/li][/list=1]
None of which is really relevant to the argument at hand, since your scenario could occur whether or not the US ratifies! The ICC is in place. The question is whether the US should (or even can, I still think there are potential Constitutional issues) ratify the Rome Statute and participate in the process. This has the potential to make number 5 a little less likely. The trade-off is that we would then voluntarily allow jurisdiction when we were the aggressor, even if the “aggressee” (sorry) was not a Member State.
Sorry, that was a little unclear. The “two things to consider” were the list of assumptions and the relevance argument. I really can count, I promise. It’s just too early and I haven’t had much coffee yet.
I’ve been away from the thread for a day, so I’ve only seen your post of 17 July just now. Hope you didn’t think I was ignoring you.
I should also say that the “populist soundbites” crack was not aimed at you, and I apologise if you thought it was. I was seeking to contrast the guff which the US administration seems happy to serve up to the American people through the media with the rather more measured and thoughtful statements they make when speaking to an audience who can actually be expected to know somehing about the subject.
No, other countries can (and will) also try to use their influence. My point was that the US has more influence than other countries, and can (and generally does) affect the outcome of any treaty-making process far more than might be supposed by simply looking at the fact that it has only one vote, like any other country. The US has more resources, allies and economic, military and diplomatic muscle than any other country, by a very long shot. They don’t always get things to turn out the way they want, but they get them to turn out the way the want far more often than most other countries do.
No, it really was for the reason stated. Consider; even if I could demonstrate to your satisfaction that writing an obscenity on a missile was not a war crime prosecutable before the ICC, would you than advocate that the US should ratify the treaty? No, because the “obscenity-on-a-bomb” issue is not the extent of your concern. It is merely illustrative of your broader concern, which is that the Rome Statute is written too loosely or too broadly, and the scope of potential prosecutable crimes is therefore excessive.
And, of course, I have already agreed that there is a problem for the US here. Once I have conceded this, the issue of whether “obscenity-on-a-bomb” might be a war crime ceases to be all that relevant. That (and pressure of time) really is the reason why I decided not to address it.
Well, since you ask, and if you think it would be enlightening and relevant to the broader point . . .
You rightly point out that I omitted the words “namely, any of the following acts” in what I quoted from the treaty. As will appear, I don’t think they change my interpretation (which is why I omitted them), but it is fair to say that I omitted them.
Our starting point in examining the jurisdiction of the court is Article 5 of the Rome Statute. I’m omitting some text here, but I’ll indicate the omissions with dots, thus . . .
** The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: . . .
** For the purpose of this Statute, “war crimes” means: . . .
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: . . . [Follows a list of specific acts] . . .
(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: . . . [Follows a list of specific acts, including] . . .
(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; . . .**
Then we come to Article 9, which provides as follows.
**1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties . . .
The Elements of Crimes and amendments thereto shall be consistent with this Statute.**
Finally we turn to the draft “Elements of Crimes” document which, it should be noted, has not yet been formally adopted. Let’s assume, however, that it is going to be adopted in its current terms.
**Article 8 (2) (b) (xxi)
War crime of outrages upon personal dignity
Elements
The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.
The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.
The conduct took place in the context of and was associated with an international armed conflict.
The perpetrator was aware of factual circumstances that established the existence of an armed conflict.**
And there is a footnote to paragraph 1
** For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.**
So how do we draw all this together?
A couple of (fairly obvious) principles apply. Lawyers will recognise them readily enough. First,the treaty (and the elements of crime document) are to be read as a whole. Interpretations of one part of the text which are consistent with other parts of the text are to be preferred over those which are not. Interpretations which make sense are to be preferred over those which do not. The treaty is the primary document; the elements of crime document must be consistent with it, not the other way around.
Secondly, all of the language has some meaning, and is presumed to have been included in order to express the drafter’s intention. Thus an interpretation which suggests that some of the language is of no effect is not preferred.
Thirdly, the treaty does not exist in a vacuum. Not only does it make explicit reference to certain treaties, but much of its language which it uses is drawn from other treaties not explicitly mentioned. The interpretation and application of those treaties is going to be relevant to the interpretation and application of this treaty.
Turning to specifics, the words of paragraph (xxi) of article 8(2)(b) “Committing outrages upon personal dignity, in particular humiliating and degrading treatment” do not stand on their own. They are qualified by the introductory words of Article 8(2)(b), “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”. These words do not mean that all of the listed acts, including the acts mentioned in paragraph (xxi) are automatically “serious violations . . .” etc and can therefore be prosecuted. If that were the case, the list of items could stand on its own as a list of prosecutable crimes, and the introductory language referring to “serious violations . . .” would be of no effect, and might just as well have been left out. In point of fact it was not left out; it was included, and the states are presumed to have had a reason for including it. It must affect the interpretation of the list of items which follows. And the only reading which I can make of it that seems to make any sense is that the listed acts are prosecutable crimes to the extent that they are serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law”.
So, in brief, writing obscenities on the side of a bomb does not qualify as a war crime prosecutable before the ICC unless it is a serious violation of the laws and customs applicable in international armed conflict, within the established framework of international law. And I don’t believe it is. And I certainly don’t think that anyone can claim that it is prosecutable unless they can establish that it is a serious violation etc.
Incidentally, it’s also worth noting that the language of paragraph (xxi), “committing outrages upon personal dignity” and “humiliating and degrading treatment” is not new. Either or both of these phrases appear in other treaties, such as the Geneva Conventions and the European Convention on Human Rights. The language appears in the “Draft Code of Crimes against the Peace and Security of Mankind” which was prepared by the International Law Commission in 1996. It also turns up in the domestic law of several countries, including the United Kingdom and, yes, the United States (it’s in the Military Code). So there will be case law from courts such as the European Court of Human Rights as well as domestic courts exploring this language, and what it covers and doesn’t cover, as well as scholarly and academic commentary. The language is used in the reports of such bodies as the International Committee of the Red Cross and, indeed, the US State Department. It’s not a phrase that the judges will be interpreting and applying in a vacuum.
Even today the US is actively co-operating with prosecutions of individuals before the International Criminal Tribunals for Yugoslavia for “committing outrages upon personal dignity”, which doesn’t really suggest that the US considers that it is too vague to be a prosecutable offence.
Not really, if the US ratifies then the US is saying ‘this is a legitimate court’. If the US doesn’t ratify, then the ICC can make whatever statements they want but the US is not going to treat anything it does with any more respect than the bogus courts set up by ‘soverign citizens’ groups. Remember, Congress has already passed a resolution authorizing the use of force against any country or group holding a US citizen or servicemember for the ICC - you can declare that your treaty applies to some other country, but unless you can actually make them follow it then it’s no more ‘in place’ than my declaration that my apartment is now the Republic of Ribonia.
I’m not saying the US system makes fewer mistakes. On the contrary, I think it makes LOTS of mistakes. I’m saying that this adds one more level of judicial bureaucracy for things to go wrong. To be prosecuted by the ICC I have to have already been either prosecuted and found innocent (or not guilty enough, ha ha) or found not to have to stand trial for whatever reason in at least my home country, and possibly the host country as well. THEN I can be subject to prosecution by yet ANOTHER system. Not only does that put service members under the threat of Double Jeopardy which other citizen are protected against, it adds another level where mistakes can happen. I think OUR system makes TOO MANY mistakes as it is without having to be subjected to that judicial gauntlet and then ANOTHER.
Posted by sailor
Absolutly right, and if this was the “Why do men watch Sandra Bullock movies?” thread that would be a perfectly reasonable addition to the discussion. Since it’s the “Why is the US so opposed to the ICC?” Thread… “I want to be judged by the rules of the US system” is as good a reason as any, and goes to the heart of the question at hand (even if it is infantile in it’s oversimplification).
Does the Republic of Ribonia have “under God” in it’s Pledge?
(I’m sorry, I just couldn’t resist it!)
I concede your point with regard to the ICC’s lack of power to enforce it’s will. I’d like you to concede that the use of force by the US against an another democratic country for holding someone for the ICC is unlikely in the extreme. DeLay may not have felt that a concern about invading the Netherlands was a serious question when he was asked it on the floor of the House, but that’s exactly what it would take. Are you willing to go that far?
Just thought I’d pipe in a few comments to some of the various trains of thought chugging around this thread.
First, (and slightly off-topic), sailor mentions the proposed war in Iraq, and states that without the support of a large part of the world community, such action would be impossible. With all due respect, that’s bull. We could do it easily with the support of only a couple of the nations surrounding Iraq (which we have). Honestly, we could do it without their support, too, but we probably wouldn’t, as it would involve too many US casualties. England’s support would also be nice, and fortunately, we have that too. Aside from them, who else is going to help us? The French? Yeah, they’re great in a war. The only thing the rest of Europe could do would be to frown thoughtfully at us (which they will), but they don’t have the will to actively stop us. They need our money too much to piss us off too badly (who do you think funds the UN, and all those humanitarian missions?)
Second, grem asks if we would be willing to invade a country who was holding a US citizen under ICC rules in order to retrieve him. While I highly doubt this would be necessary (I think that pressure applied in the right locations will be enough to get back any citizens from those nations likely to hold him under ICC jurisdiction), if it came down to that, I would certainly be willing to invade said country. It’s a matter of asserting our soveriegnty, and protecting our people. If the US were to become a police state, and a loved one were arrested for, say, practicing a forbidden religion, or criticizing the government, and you had the power to go in and rescue them forcefully, would you? I sure would.
Thirdly, a lot of people seem to be mistakenly assuming that the only people likely to hold US citizens for fabricated or dubious “war crimes” would be third-world dictatorships that aren’t likely to sign the treaty, anyway. I don’t think this is the case. I think we’re just as likely to see France or Germany try to force an ICC trial on US citizens as anyone. France in particular legitimately despises the US (this isn’t to say every French citizen does, but the government and the intelligentsia certainly do). Given a chance to knock us down a peg or two, they’d gladly step up to the plate. People in Europe are already screaming “war crime” over the accidental bombing of that Afghan wedding. I can certainly see something like that resulting in an ICC trial were we to ratify that treaty.
No, although the ‘one kitchen, under Ribo’ clause gives some people pause, it’s merely describing the physical relationship between my bedroom and kitchen and not asserting that I hold divine power over kitchens.
I’d say that it’s pretty damn unlikely, in part because of that resolution from congress. I don’t think anyone is going to be foolish enough to try to hold US citizens for the ICC, though I do expect some show trials after Iraq. Regardless of what the dread Luxembourg-Lichtenstein voting block thinks of the ICC, elected officials in the US government can be sure that most of the people who vote for them don’t see the ICC as legitimate, and would likely have a hard time holding office if they failed to do something about potential ICC shenanigans.
I don’t even see why it needs to be asked. I would go out and cheer an invasion of any country kidnapping a US citizen or servicemember for the ICC, since it’s the job of the US government to protect US citizens. Frankly, the fact that our ‘allies’ in NATO would consider kidnapping US soldiers for an illegitimate ICC trial, and apparently expect to (from the comments they’ve made about the Netherlands) makes me wonder if that alliance is worth anything to the US in this day and age.
Which is, of course, why the US got kicked off of the human rights committee when Syria, China, etc. stayed on. In other words, as I’ve said before, the process for voting for judges is flawed, being similar to the HRC voting process.
Well, there you go. The court’s powers are too broad, as you’ve conceeded, so that’s another reason for the US to stay away from the ICC. I don’t see any point in further discussion; I’ve pointed out multiple major reasons for the US to be opposed to the ICC, using only the text of the ICC documents and not ‘populist sound bites’.
I’m not going to bother addressing your ‘obscenities on a bomb’ bit again - you’re simply making the same argument which I refuted before, just refer to my previous posts on the topic if you want. You’ve even made the same mistake of talking about whether it “isn’t prosecutable” when I’ve pointed out to you that I haven’t claimed that it could be successfully prosecuted, once in the text and once by quoting my previous text in case you missed it.
I’ve already pointed out that the ICC is a very different beast than ad-hoc tribunals, so all that it ‘suggests’ is that the US doesn’t think the language is appropriate for the ICC.
The ICC is a court with no substantive checks and balances (most notably, the only appeals court is the ICC itself), with broad powers limited only by the whims of the judges (as the bomb example illustrates), with a demonstrateably flawed process for selecting judges (need I bring up the Human Rights fiasco again?), lacking the limited time and scope of traditional war crimes tribunals, and other problems which I don’t feel like going back through my old posts to mention again. These are very good reasons for the US to oppose the ICC, and they simply haven’t been addressed.
As a lawyer, I recognize the principles you cite, and I will quote to you something my corporate tax professor said to me years ago:
I’d make that argument for an hourly fee, but I wouldn’t make it on contingency.
. . .
There’s too great a chance that a court would interpret the word “namely” to mean exactly what it means.
In any event, the limiting clause in the statute is pretty vague too, so it’s not giving you too much mileage.
And note that unless you can present a rock-solid argument that the statute is clear (which you haven’t - at best you’ve presented a colorable, i.e. non-frivolous, argument), there is a vagueness problem.
And you seem to agree that there is a vagueness problem, so perhaps this argument over statutory interpretation is academic.
I can’t believe I’m jumping in here so late in the game. I’ve done my best to read everything. What caught my attention was this peculiar interest in the LaGrand case. UDS pretty much covered the relevant points, but I feel the need to add my two cents since I know something about international law. What was your purpose in bringing it up, lucwarm? Considering the United States agreed that it violated international law, it’s hardly a good example of the ICJ overstepping its bounds. All the decision said was that in the future, US courts need to provide some mechanisms for reviewing whether defendants rights were violated under international law. The ICJ would not order a reversal, a retrial, or anything along those lines. In the end, the only outcome was that the US government apologized and printed up some brochures.
While there is no reason whatsoever to think that the ICJ was influenced by the anti-death penalty cause, the German government probably was. Governments influenced by politics? What a shocker!
Why should a country that has refused to ratify most of the human rights treaties be guaranteed a spot? Syria and China have ratified more human rights treaties than the U.S. Other governments got sick of our self-righteous and hypocritical attitude.