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I don’t really think the United States is currently setting isolationism as a goal of their foreign policy. Isolationism seems to be the cry heard whenever the United States doesn’t do what other countries want them to do.
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I agree and I don’t see any evidence that we’ve withdrawn from the international scene.
Marc
Agree. There is a potential downside to the treaty, and we have been debating the significance of that downside. Feel free to argue that the positive aspects of the treaty outweigh any downside.
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Sure, and I am sure that there were many arguments made in the late 18th Century against union. From what I understand, Vermont wanted nothing to do with the USA.
But let me ask you this - would you support a world union analogous to the United States? Perhaps the UN could be the basis for World Government? Why not?
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I agree that this is a downside to staying out. I don’t think it’s very significant though.
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I don’t think that staying out of the ICC is the start of total isolationism on the part of the US. We don’t need to join every last international body to get trade with and support of other countries.
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Generally speaking, I agree that the US should honor its treaties.
But what should be done in the case of an unintentional and inconsequential violation? And who should decide?
Besides, we’re debating whether the US should have entered a particular treaty in the first instance, not whether the US should honor a treaty it has already signed.
>> we’re debating whether the US should enter treaty A. I point out a negative aspect of entering treaty B. The fact that we did in fact already enter treaty B is irrelevant.
lucwarm, treaties are signed voluntarily and in that treaty, in exchange for giving something, the US also got something. What part don’t you understand? Do you think it is right to sign a treaty expecting the other parties to abide by it and not intending to abide by it ourselves?
Do you think it would be best if all Americans stayed in the US and never left the country? Do you ever intend to travel abroad? If you have any problems abroad, would you like to have some rights to consular protection? I guess not.
Let me give you an example. Let’s imagine and imaginary country which we will call China. In that country, the people have few rights when it comes to criminal process. It so happens that many Americans travel to that imaginary country because that is where a lot of the shit Americans consume is manufactured and there’s a lot of business going on. There’s also tourists who go there. A few of those Americans will get into legal trouble there and they would have to deal with a system which gives them very few rights and guarantees for a fair process. It would be a huge help for these Americans if they could have the right to consular visits, communication, legal aid, etc. On the other hand, granting the same reciprocal right to Chinese citizens in the US is not such a big deal because the US system is already pretty open (not to mention that the US stands for certain premises like not restricting individual rights unnecessarily).
So, given that imaginary scenario, do you think it would be a good idea for the US to sign a treaty with that imaginary country giving their citizens reciprocal rights to consular protection? Or not?
The US is now complaining about things many other countries do in exercise of their own sovereignty and would like them to stop doing such things. If the US should not in any way agree to give anything in return for those countries agreeing to not do certain things, how do you propose the US conduct its foreign policy. Just bomb anyone who does not obey orders?
I’m not sure why you say this. How were the American courts involved here? If I understand the case correctly, it was the actions of the executive authorities which were challenged here, and I don’t think that the challenge was ever made in the US courts. (I’m open to correction.)
Well, for that matter, the fact that treaty B has negative aspects is also irrelevant. Treaty B has positive aspects also. Does this suggest the US should adhere to Treaty A? Treaty C has entirely positive aspects. Does this suggest the US should adhere to Treaty A?
Besides, I think you are mistaken in your identification of the “negative aspect”. You felt that the court was able to impose its values on the US. But they were not the court’s values; they were the US’s values, because they came from the US’s treaty. The court has no input into the content of the treaty, and no power to bring this or any other treaty into force. The obligation and the “value” imposed on the US in this case arose directly from the agreement of the US and from no other source.
That wasn’t my position. I was arguing that if Libya were biassed against the US - as they undoubtedly are - they couldn’t have the US prosecuted unless they could demonstrate (as opposed to merely alleging) that the US investigation was unsatisfactory.
I don’t think it’s at all persuasive and neither, as far as I can see, does the adminstration. In any event, I don’t think it’s a concern they’ve expressed. The states parties to the Rome Statute probably contain a smaller proportion of “anti-US” countries than the general assemply as a whole (since, for obvious reasons, the more democratic nations are more likely to be willing to accept the jurisdiction of the Rome Statute). And in the case of the ICJ, I await any evidence that the General Assembly has tended to vote for “anti-US” judges, and that this has been blocked by the failure of the same judges to secure a majority in the Security Council - or, indeed, that the Security Council hasn’t blocked it, and that the judgements of the ICJ have been affected as a result.
My apologies. At this stage of my last post I was going on to discuss more general issues, rather than to respond to specific points raised by you. I didn’t intend to attribute that argument to you.
To be frank, I’m not convinced that the involvement of the Security Council would reduce anti-US bias. At least one permanent member of the Security Council - China - has a position which is fundamentally at variance with the position of the US as regards human rights and the investigation and punishment of international crimes and, at any time, many of the other non-permanent ten members could as well. Whereas, for the reason already mentioned, the list of States Parties to the Rome Statute is likely to include significantly less anti-US bias than the membership of the General Assembly, from which the rotating members of the Security Council are drawn.
Again, I apologise. I didn’t mean to imply that you were in a huff, and I had no basis for doing so.
I think the Security Council, and the permanent members, and the veto, are acceptable in the context of political and diplomatic action. I don’t think the administration of justice should be a politicised process and, while complete de-politicisation is probably unavoidable, involving the Security Council is probably a retrograde step.
In particular I would have a concer about involving the Security Council in the affairs of the ICC. It cannot be right that countries which haven’t even signed the Rome Statute or accepted the principles on which it is based should have a privileged position in regard to its implementation and enforcement. (I’m thinking of China here.)
Perhaps a workable compromise would be a role for a committee consisting of those members of the Security Council who were also States Parties to the Rome Statute. The precise role would need careful thought - perhaps some general oversight of the office of the Prosecutor, and perhaps a right to be consulted in relation to specific cases but not to prevent investigation or prosecution?
Again, I agree that generally speaking, the US should honor its treaties. Sometimes treaties can have (or threaten to have) negative consequences. The propect of negative consequences is an argument against entering similar treaties.
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That’s the best straw-man argument I’ve seen all week. I point out a negative aspect of a treaty and you take that to mean I’m an isolationist, against all treaties, etc. Whatever.
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I think it would be a good idea. However, I don’t think it would be a good idea to have an “International Court” with authority to enjoin proceedings in the United States and/or China. Do you think that there should be such a court?
Arguments about national sovereignty don’t fly very well with me because they have mostly been used to justify bad things. When the Chinese government says its treatment of its people is an internal affair and none of the business of the US I do not buy it and neither does the US.
Note that US citizens will be subject to the ICC whether the US joins or not. The only way to stay out of the jurisdiction is for Americans to never leave the US. Just like an alien who steps on US soil is under US jurisdiction, Americans who go to other places are under foreign jurisdiction. The only way the US could prevent this would be by brute force which brings the scenario of the US invading the Netherlands to destroy the ICC.
Would anyone here side with DeLay in using force to prevent any American from being brought before the court? I just can’t take it seriously.
Pretty much all western and developed countries have joined this treaty and the US stands alone with China and Iraq and most arab countries countries in opposing it. That is not the kind of countries the US should be associated with when it comes to human rights issues.
Rome Statute Signature and Ratification Chart
I think we may have been talking at cross-purposes here. The treaty which was in issue in the LaGrand case was the Vienna Convention, which gives nationals of one country who are imprisoned in another country the right of access to consular assistance. I don’t think lucwarm has a principled objection to this treaty.
The Statute of the ICJ is an entirely different treaty. It is that treaty which establishes the ICJ and allows states to bring disputes before it. These can include disputes about whether another treaty has been properly respected, which was the issue here. I think it is this treaty which lucwarm thinks that the US should consider not participating in.
The downside for the US of withdrawing from the ICJ statute would be
(a) It would have no forum to which to take complaints when it felt that other states were in breach of their treaty obligations to the US. The US brings claims to the ICJ about as often as it responds to claims brought by other countries.
(b) It would effectively be demanding the right to decide unilaterally whether it was in breach of its obligations to other states, and this would call into question its genuineness in accepting the obligations in the first place. “We accept these obligations, but nobody else can decide if we are performing them or not.” In what sense, then, are they accepting any obligations at all? This would tend to devalue the adherence of the US to treaties, and its acceptance of other obligations.
© It would be almost unique in the international community in withdrawing from the ICJ. That really would be an isolationist step. The message is that “those states who have legal disputes with us can resolve them by the use of political, economic or even military force, but not by a legal procedure.” This would be a very odd message to send. It would also be seen as a frankly abusive position for the greatest political, economic and military power in the world to adopt, and it would reflect no credit on the United States.
Incidentally, lucwarm, neither the ICJ nor the ICC has the power to enjoing domestic legal proceedings in the participating states. The question which you raise in your last paragraph, therefore, while valid, is not relevant to the question of whether the US should participate in the ICJ or the ICC.
Check out Federal Republic of Germany v. United States, 119 S. Ct. 1016 (1999).
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Sure, why not? But, assuming that we signed a bad treaty, the fact that we signed it doesn’t make it good. Similarly, if we refuse to sign a good treaty, the fact that we refused doesn’t make it bad.
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I highly doubt that the US agreed to allow the ICJ the power to enjoin proceedings in our courts. In fact, I doubt that the US legislature has the ability to give anyone that power without amending the Constitution.
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So your position is that it’s impossible for the US to enter a treaty that undermines our values?
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Here’s what you said:
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It seems pretty clear to me that you were arguing that the procedural issue - genuineness of investigation - would protect innocent defendants from a biased ICC.
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Let’s face reality: It will be political either way.
lucwarm, I must be missing something. In the case of the German brothers there is no doubt they were denied their right to consular protection in the US. Are you saying the US should not have such a treaty with other countries? From what you post I do not think that is what you are saying. I think you also agree the US should honor its treaties, which it did not do in this case. So why do you have a problem with an international court calling the US on this breach? The US did breach its obligations. Germany complained. I do not now think of Germany as an enemy of the US. The fact is Germany and the US had a dispute and an international court seems like a good place to resolve it. Or do we just go to war every time anyone has a dispute with Germany?
>> I highly doubt that the US agreed to allow the ICJ the power to enjoin proceedings in our courts. In fact, I doubt that the US legislature has the ability to give anyone that power without amending the Constitution.
International treaties are contemplated in the Constitution. One treaty signed by the USA and ratified by the Senate stipulates German citizens have a right to consular visits if they are imprisoned and subject to criminal proceedings. Having been ratified by the Senate it becomes law of the land. In the case of the two German brothers the USA breached its obligations under this treaty which it had signed voluntarily and which is the law of the land, having been ratified by the US Senate. Subsequently Germany feels it has been wronged and they present a complaint against the US before the ICJ which rules in favor of Germany. (BTW, did I mention international treaties have to be ratified by the US Senate?) What part of that do you not understand?
In short, the US Senate, in fact, made it a law that German nationals in the US are entitled to consular visits and when this law was not respected and Germany felt wronged, Germany brought suit and got a favorable ruling from the ICJ.
Is there a better way of resolving such issues? Or should we just start a war every time two countries have a dispute?
Not at all. I’m using one consequence of the ICJ treaty to illustrate my objection to the ICC treaty.
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Well, the ICJ would seem to disagree with you:
from the ICJ web-site (emphasis mine).
Hi lucwarm
We’re leap-frogging one another here.
LaGrand case
I stand corrected in relation to the LaGrand case. I haven’t read the US report you cite and don’t have access to it, but do I understand that you’re saying that the judgment of the ICJ enjoins the domestic US proceedings taking by Germany? In other words, Germany having failed to get the order it wanted in the domestic proceedings, sought an interim order in the international proceedings in order to pre-empt the (in its eyes) unsatisfactory order emerging from the US proceedings (which, I’m guessing, was an order that Arizona could execute LaGrand notwithstanding the pending substantive proceedings before the ICJ).
Have I got that right?
Treaty A –v- Treaty B
I must admit I’m getting a bit confused here, but I think we’re probably in close agreement. Treaty A does not become good because the US has adhered to it or bad because the US rejects it; rather the US should adhere to it or reject it because they judge it to be already good or bad. They may make a mistake, and regret the decision they made, and wish to reverse it, in which case they should adhere to the procedures which they have already accepted for withdrawing from a treaty . Whether the US should adhere or continue to adhere to Treaty A depends on the merits and demerits of Treaty A. The merits and demerits of Treaty B are irrelevant, except in so far as the two treaties are similar and experience with Treaty B helps to highlight the merits and demerits of Treaty A when considering to adhere to Treaty A. Is that a fair summary?
If it is, and if we accept that the ICJ is, in effect, overruling US domestic courts, notwithstanding the similarity between the ICJ and ICC treaties in other respects, they are not similar in this respect. A genuine investigation or prosecution by a state precludes an investigation or prosecution by the ICC. I do not think there is any similar rule in regard to the ICJ. I take your point about possible bias in the assessment of genuineness, but the two cases are still not parallel. The ICJ, apparently, can overrule a genuine ruling of the US courts without any bias at all; the ICC would have to be biassed (or, at the very least, seriously misled by the evidence) to do so. Hence the issue comes back to bias.
Incidentally, in answer to the question you raised, it’s perfectly possible that the US might (presumably mistakenly) enter into a treaty that undermines its pre-existing values. It would still not be true to say that the ICJ, in enforcing that treaty, would be imposing its values on the US. It would be imposing the values embedded in the treaty voluntarily, if mistakenly, adopted by the US. Whoever is to blame for the US adopting the treaty, it is not the ICJ.
Protection from bias
I’ve reread what I wrote, and it seems clear to me that what I was arguing was that the ICC procedure would serve to protect the US from bias on the part of Libya. I can’t see that I discusssed bias on the part of the ICC at all.
If it’s any help, I am happy to state the blindingly obvious. If a court is biassed, then no procedure operated by the biassed court itself can serve fully to protect a defendant from that bias (although it may help to expose the court’s bias, and/or make it more difficult for the court to give effect to its bias).
Politicisation of the process
Yes, it will be to some extent political either way. My point is twofold. First, it will be more political, not less political, if the Security Council is involved; hence it is not logical to call for the procedure to be depoliciticised and for the Security Council to be involved. Secondly, the involvement of the Security Council does not tend to reduce or eliminate political bias, and promote a more neutral, objective system. It just tends to ensure that the political bias will be in favour of the US (and certain other states) rather than against it.
Leapfrogging is a good term, yes _
Just to clarify, the ICJ hears suits between states, it does not judge individuals, while the new ICC would judge only individuals and has no capacity to judge states.
Also, if two countries enter into an agreement, it would seem normal, almost indispensable, to provide for some form of impartial resolution of conflicts that may arise from that treaty.
If the US signs a treaty with Germany about tradeit would seem any dispute should be resolved to some international authority (WTO?). You cannot seriously expect international treaties to provide for the SCOTUS to be the final arbiter any more than you would accept the SC of Germany to have the final word. The US accepts the authority of many international organisms and it uses them to advantage when it has problems with other countries.
Sorry I may be idealistic or naive on this but isn’t this the logical, yet belated, next step from Nuremburg. If this court deals exclusively with International human rights violations as well as Crimes against humanity then where is the real problem? I mean aren’t human rights more important than the sovereignty of the State? Surely a nation which goes out of its way proclaiming its protection of the rights of the individual over the power of the state would embrace such an idea. As I say I may be naïve.
Besides, as I read it every nation will retain its sovereignty except when that exercise of sovereignty violates either of those two fields or is used to protect someone who breaks these laws. Yes, certain groups may try to trump up cases against the United States for Political purposes but if the United States violates no law there isn’t a problem.
Now I have heard that one of the major Sticking points was that the US wants the right to have a veto on decisions. Personally I think the Veto is a bad idea. It would only nullify the courts authority in the same way it has crippled the U.N. from doing any action of real note.
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Only if the ICC has enough power to enforce their rulings.
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We’re not talking about some tourist who steps into France and breaks a French law. We’re talking about someone who is accused of war crimes and is most likely a high ranking political figure or an officer/enlisted man in the armed forces. How is the ICC going to get their hands on Capt. Hazlewood of the United States Navy if the United States refuses to give him up?
Can you imagine a scenario where the Netherlands invade the United States to enforce the will of the ICC?
Marc
Of course nobody ing to try to invade the US to bring anyone before the ICC just like the US is not going to invade the Netherlands to stop the court from prosecuting an American.
Things that can happen are that the ICC issues a warrant and the US refuses to surrender someone. Well, it would not make the US look good in the eyes of the world if the ICC has shown a track of impartiality.
Another thing that can happen is that the ICC gets their hands on someone by any other means. He could travel to another country years later (Pinochet anyone?) or could be caught prisoner during war operations. In that case he would be tried by the ICC and the US is definitely not going to invade Amsterdam to stop it. By being a part of the ICC the US would have more say and influence than by staying out.
Well, not exactly. But the bottom line is pretty clear: the ICJ attempted to interfere with US judicial proceedings and appears to have taken the position that its orders bind the U.S. Supreme Court.
IMHO, that’s freakin’ outrageous.
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Yes.
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The ICJ overstepped its bounds and tried to meddle in US judicial proceedings. If given the opportunity, I would not be surprised if they had overturned LaGrand’s conviction, even though (1) he received a fair trial and was found guilty; (2) he moved the United States as a young child; and (3) he didn’t raise the Vienna Convention until it was way too late.
In short, the ICJ likely would have invalidated US Judicial proceedings to further its own agenda.
Similarly, I would not be surprised if the ICC were to invalidate a US investigation to further its agenda.
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Of course there was bias. They’re against capital punishment. And by the way, American courts have (properly) rejected the ICJ’s attempts at meddling.
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You’re splitting hairs here. The US is pro-death penalty. The ICJ is anti-death penalty. The ICJ tried to push its agenda on the US. If you give another organization power over you, and that organization then tries to undermine you, it’s simply inaccurate to say that you’re undermining yourself.
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I think that that was not your earlier position, but since you agree with me on this point, I won’t push it.
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IMHO, bias towards a more American point of view is a Good Thing. It’s true that the US is very militaristic, interventionist, etc. But (most of) the rest of the world is so much more corrupt than us.
If the ICC doesn’t try to expand its own jurisdiction, and if it carries out its duties fairly and with restraint, then there’s no problem.
But “if” is a mighty big word to be so small. Based on my knowledge of human nature; my knowledge of other countries in the world; and the experience of the ICJ, I think that yeah, your viewpoint is a little naive.
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If the ICC acts fairly and with restraint, then there’s no problem. If the ICC acts in bad faith or with bias, then there is a problem, even if the US (and its agents) violate no law.
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Do you want a strong UN that is unchecked by the Security Council? Maybe with the power to tax?
Sure, and as you said earlier, the “question is not whether accepting the jurisdiction of the court is a perfect thing but rather whether it is better to join or not to join. That is the question.”
In some cases, such as with trade agreements, it makes a lot of sense to have an arbitral body in place. (Note that the US is free to reject the decisions of the arbitrators and drop out of the treaty).
In other cases, signing the treaty would clearly be a disaster. For example, signing a treaty that gave the UN General Assembly the power to tax and legislate.
In the present case, in deciding whether to sign the treaty, we need to keep in mind the real possibility that our soldiers and civilian leaders could face frivolous prosecutions.
From the point of view of the US a pro-American bias is indeed a Good Thing, but this is not an argument which is likely to commend itself to many other states. And, if the US wants the treaty revised, they need to get support from other states. This, I think, is the administration’s dilemma.
What would concern me is that the US obviously failed to secure the support of such dependable allies as the UK and Australia, who should not only understand the fears of the US on this point but should, logically, share those fears. Obviously I don’t know what passed between the US and its allies on this matter or why these states could not, in the end, line up. But it does seem to me that the US finds itself in a position which is more isolated thatn they might have hoped or wanted, and that at this stage they are not well positioned to secure the changes to the treaty which they obviously feel are needed.
The problem for the US is this. The treaty has already entered into force. US citizens operating in treaty contries are within the jurisdiction of the ICC and the US cannot protect them. (Using military force to “rescue” them from the ICC is obviously a non-runner. Nor is it in the interests of the US to apply economic or political sanctions to those of its allies who adhere to the treaty.) The US can, and quite possibly will, respond by declining to deploy its troops in operations in treaty countries, but this will (a) force the US into a more isolationist position, which it doesn’t really want to be forced into, and (b) cause the US a problem in cases where it wants, in order to advance its own ends, to deploy troops in a treaty country. Is the US happy to withdraw its troops from Germany? I think not. But as long as they are in Germany, what they do there is within the jurisdiction of the ICC. Plainly, their activities in Germany are unlikely to bring them to the attention of the ICC, but you take my point.