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The US system does have built in checks and balances. For example the head of the Executive branch can pardon individuals found guilty of crimes by the Judical branch. Will such a system of checks and balances be present in the ICC?
Marc
I concede that this addresses my concern in part, but I find the answer to be a little surprising. Can any state effectively immunize its soldiers by mounting a faux-investigation and concluding: “We have investigated the matter and find the charges to be without merit”?
Or, can the ICC decide to prosecute if it determines that the investigation was not bona fide?
Which is it? If a state can effectively veto the prosecution of its own soldiers, then the whole ICC concept is seriously weakened. If not, then concerns over politicization would seem valid.
Checks and balances
There are procedures for appeals against convictions, sentences and other decisions of the Court (the court includes both a Trial Division and an Appeal Division), and also for later review of decisions, convictions and/or sentences.
If convicted and sentenced to a term in prison, a defendant is handed over to a State which has declared itself willing to accept sentenced persons. In any case the court will choose which State, of those generally willing to accept sentenced persons, will take the defendant. The defendant is to be imprisoned on terms and conditions which are in accordance with international human rights treaties regarding the rights of prisoners, and which otherwise are neither more nor less favourable that those which the State concerned applies to persons convicted under its own system. The State concerned cannot release the prisoner before the expiry of his sentence without going back to the Court and having the sentence reviewed.
There is no equivalent of executive clemency; reviews of conviction or sentence take place in the court, in public and in accordance with the criteria laid down in the Statute.
Investigation by a State
If a crime has been investigated or prosecuted by a State which has jurisdiction over it it cannot be prosecuted in the ICC unless the State concerned “is unwilling or unable genuinely to carry out the investigation or prosecution”. And where the State has investigated and decided not to prosecute, the crime cannot be prosecuted in the ICC unless “decision resulted from the unwillingness or inability of the State genuinely to prosecute”.
Assuming a case is brought to the Court and the defence argues inadmissibility on the grounds of a state investigation or prosecution, and the prosecution counters that the State concerned is “unwilling or unable”, the Court will have to decide whether it is or not. The Statute requires the Court to have regard to the principles of due process as recognised by international law, and to consider whether any of the following conditions exist, as applicable.
(a) The State proceedings were undertaken, or the State decision was made, for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
© The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
(d) Due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
Significance of Signature by the US
Brutus suggests that “America is a signatory to the statute, but will not actually be a member state. I think that means ‘We agree in principal, but bugger off’.”
Not quite. When a State signs a treaty it means that it accepts the treaty and wish it to enter into force, but it cannot agree to be bound by it because its own internal law is not yet in compliance. The State accepts an obligation in good faith to bring its own internal law into line, and then ratify the treaty.
This is not a legally enforceable obligation. Nevertheless when a state announces that it will not, after all, ratify a treaty, this is inconsistent with an earlier signature. It is not the equivalent of a statement that “we agree in principle, but not in detail” but rather “we formerly thought this was a good idea, but now we don’t”. And it’s often (as in this case) explained by a change of government since the signature.
States which do this a lot tend to bring their signature of treaties into disrepute, and to damage their international standing generally, if only because this behaviour indicates a casual attitude on the part of the state concerned to its “good faith” obligations.
Ok, getting back to the recent incident in Afghanistan, let’s suppose that the Libyans view it as a war crime. Let’s further suppose that there is a US investigation which concludes that there was no war crime. It is very likely that the Libyans will decide that the investigation was not “genuine.”
So I think that the procedural protection you cite is not of much value. Certainly there is still a danger of politicization - if the decision of whether something is a war crime can be politicized, it follows that the decision of whether an investigation was “genuine” can be politicized.
Who decides who gets to be on the bench?
Tell that to Jose Padilla.
>> Tell that to Jose Padilla
I think his problem is that he has not been brought before the justice system. This is not the responsibility of the judiciary but of the executive. </sidenote>
Well, I’m not familiar with the Jose Padilla case, but let’s assume for the sake of argument that he’s someone who was abused and/or subjected to injustice by the American system.
See, you’ll have no problem getting me to concede that the American system regularly produces unjust results.
But I still maintain that America’s system is one of the best in the world. Many other places are worse, some, much worse IMHO.
The Jose Padilla who, as a juvenile, had a long rap sheet and was involved in a gang-related murder? (There’s supposedly other incidents, but his juvenile record is sealed) Or are you referring to the guy who got into a dispute with another driver, pulled a gun, and started firing it at the guy?
Please tell me which member of the judiciary you would hold accountable for his current situation.
No. I reject the thing because of the anti-US ganging up done so often in the General Assembly. Since the reps there are placed by the governments of the countries they’re representing, I believe it’s quite safe to say the countries (since there’s only this one planet inhabited by humanity) will be the same countries advancing candidates for judgeship on the ICC. I further believe it’s a safe bet the same ganging up would happen.
You analogy is invalid. In our system, we have judges appointed for life, and some jurisdictions have them appointed for fixed term. But, for the federal judges, Congress can impeach them.
True 'nuff. Though the idea that a citizen could be stripped of his rights, not receive due process, and completely circumvent the judicial system merely because the President said so is unarguably a frightening precedent.
“Yes, the US has the best judicial system in the world! …if you can ever reach it.”
What the Libyans think is irrelevant. Libya has neither signed not ratified the Rome Statute, for reasons which in on a moment’s reflection will be obvious. (As you can see the US is in good company in rejecting the ICC.)
If Libya had signed and ratified the Rome Statute, they could bring a complaint to the ICC about the Afghanistan incident (assuming it happened after the Rome Statute entered into force). And they could maintain - indeed, to have any chance of a a successful prosecution they would have to maintain - that the US investigation was not genuine. But maintaining this is not enough. They would have to produce evidence on the point sufficient to allow the ICC to satisfy itself that the investigation was not genuine. And, frankly, it’s hard to see how Libya would be positioned to do that.
Any participating state can nominate a candidate (and not, Monty, any member of the UN - countries with a shady human rights record will tend not to ratify this treaty, and so will not be able to nominate or vote for judges). A candidate needs to be either an experienced practising criminal lawyer, or an experienced practising international lawyer with a specialism in human rights law, humanitarian law or another relevant field. A state can nominate only one candidate. The judges are then elected from among those nominated by a secret ballot of the participating states. No two judges can be nationals of the same state.
Judges hold office for a term of nine years. A serving judge can be disqualified (by the other judges) from acting in relation to a particular case if his impartiality might reasonably be doubted.
A judge can be removed for serious misconduct, or if he is unable to carry out his duties (e.g. through incapacity). The procedure requires a recommendation for removal by two-thirds of the other judges, followed by a vote to remove by two-thirds of the participating states. A judge who is the subject of this procedure has the right to present and receive evidence and make submissions, but not to participate in the decision.
It is worth noting that broadly similar procedures for selecting judges have been used by International Courts since at least 1899, and the United States has participated (and continues to participate) in those courts. The most prominent such court is the International Court of Justice. The “ganging up” which Monty fears has not prevented the election of a US judge or of judges from states aligned with the US (the UK, Germany, Japan, the Netherlands and other NATO members), all of whom are currently included in the fifteen judges of the ICJ .
Yes, the nomination and election of judges can be a fairly political procedure (as can the nomination and ratification of judges in the US domestic system). But a state which desires to have its candidate elected needs to nominate a credible, reputable, respected lawyer; it is very difficult to secure sufficient support otherwise. And where obvious political nominees do make it to the bench, they find it hard to get support from the other judges for the rulings they might like to make. They tend to find themselves in the minority. There seems no reason to suppose that the experience of the ICC would be different.
I’m open to correction, but I don’t think that the US has expressed any objection to the method for selecting judges in the ICC, or has expressed any doubts about the independence and impartiality of judges.
Not exactly what I meant (though 'twas an informative post)… what I mean is, what body is in charge of making sure that the ICC doesn’t overstep its bounds? What recourse can a people take if they believe it has done so? Who would the ICC be answerable to?
Anyone dissatisfied with a decision of the ICC can use the appeal and review procedures of the court itself, but no external body can overrule its decisions. I don’t think it’s any different from existing international courts in this regard.
There will be an “Assembly of States Parties” in which each participating state has one vote. It has no right to change the decisions of the Court, but it would provide a forum in which concerns about the Court’s direction and activities could be raised, and any necessary revisions to the Rome Statute discussed and agreed.
The Assembly of States Parties can remove a judge (by a two-thirds majority, on the recommendation of two-thrids of the other judges) or a prosecutor (by a simple majority, without any recommendation from the judges) for “misconduct”. Misconduct would, I imagine, include overstepping the boundaries of the authrority of the Court or of a prosecutor, as the case may be.
In addition, any State which has ratified the Rome Statute can subsequently withdraw from it, and its citizens can no longer be brought before the ICC (except in respect of acts committed in the territory of a a State which continues to participate). This would not, of course, affect the validity of anything done prior to withdrawal.
Where the fuck did I say “any member of the UN.” Answer honestly.
Here’s what I posted:
There’s a decided difference between what I wrote and what you’re pretending what I wrote. The biggest difference is that what I wrote doesn’t make your case.
That’s what you said earlier.
Perhaps I misunderstood you and, if so, I apologise. What I understood was as follows.
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The members of the General Assembly (i.e. all members of the UN) frequently gang up on the US.
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The same group of states (i.e. all members of the General Assembly, all members of the UN) will be choosing the ICC judges.
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Therefore we can expect the same ganging up to happen.
I have to say I still think that that’s a reasonable reading of what you wrote. And I still think the argument is wrong because
(a) the ICC judges will be selected by a much smaller group of states, from which the more egregious human rights offenders will have excluded themselves, and
(b) the experience in the ICJ, whose judges are elected by pretty well the same group of states as is represented in the General Assembly, doesn’t seem to bear out the “ganging up” theory.
I’m happy to accept that I’ve misunderstood your argument, and that the argument which I’m rebutting here is not the one you put forward. But I have to admit that, if this is not your argument, I still don’t quite grasp the argument which you are putting forward. What connection do you see between the behaviour of the General Assembly and the selection process for ICC judges?
It could be pointed out that the USA only has jurisdiction on US territory and that if US nationals want to avoid being subject to other jurisdictions the best thing to do is to stay home. Another good way to avoid being prosecuted for crimes is to avoid committing them.
To disqualify the court beforehand on grounds that it will be corrupt is just ludicrous. So what is good enough for the rest of the democratic world is not good enough for the US? American courts also reach conclusions some may not like but that does not mean we would be better off without them. They provide a valuable way of resolving issues and International courts will do the same even if they are not perfect.