That is going to the extreme, must be that Independence day fervor bringing up a fear of taxation without representaion.
I’m not sure how helpful it is that the security council keeps everything in check based on the biases of one nation with a right to Veto.
Disasters like the massacre in Rowanda could have been averted had the Security council not been embroiled within its own petty politics and looked at issues on a humanitarian level as opposed to the members own national self interests.
Personally I hate the idea of a Veto, it always seems so Undemocratic when you give one person a right to overturn the majorities will.
UDS, you make very good points, much better than I could ever make them.
So, lucwarm, we have a treaty which has been ratified by Canada, UK, Australia, New Zealand, Denmark, Sweden, Netherlands, Belgium, France, Germany, Iceland, Spain, Italy, Portugal and other countries none of which is particularly antiAmerican and they all seem pretty comfortable with the idea. Practically no Arab or Asian countries have joined. China, Iraq and the USA have refused on the same grounds that it would infringe on their national sovereignty. I understand how China and Iraq may feel those Western countries might use this against some of its citizens who have committed certain acts but does the USA want to be in such company? Suppose some charges were brought just with political intent. First, the ICC would have to determine that there is enough evidence to support the accusation and that the US was unwilling or unable to prosecute. Is the USA afraid that all those countries are going to gang up against the US and let it go forward? Those countries are and have been the staunchest allies of the US and they are going to let something like that go forward? If that is not paranoia I don’t know what is. The US does not trust those countries and would rather camp with China and Iraq. Ok.
OK, UDS, I’m wondering about something. “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” How, exactly is this determined - is there an objective standard to determine the unwillingness or inability of the State to prosecute, or is it up to the whim of the judges currently on the court?
From the latter part of that post of yours, it appears to be up to the whim of the judges - I note that a state investigation can be declared invalid if "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. " This does not set an objective standard - it would be easy, would it not, to argue that any US proceeding is inconsistent with an intent to bring the person concerned to justice - after all, any US investigation for war crimes would involve capital crimes under US law, and [insert Sailor’s list of countries] all consider the death penalty not to be ‘justice’. For that matter, the impartiality of US judicial proceedings are reoutinely derided for not being independant and impartial.
It appears from what you have said that the terms under which the court can prosecute people are incredibly broad and subject to no oversight whatsoever. Contrary to what the crowd who’s mantra is ‘is the US planning on committing genocide’ appears to believe, the rules for the court don’t limit the court’s authority to ‘genocide’ (at least by the standard meaning of the term), but would allow the court to try US servicemen for ‘war crimes’ in the event of, for example, an accidental attack on a civilian target despite any investigation conducted by the US.
And, a more basic question, why have all of these countries which have signed on to the ICC also gotten immunity from it? It looks suspiciously like they’re expecting the US to prevent the ICC from lasting and setting themselves up so that they can say to have supported it without actually being subject to its provisions.
And sailor, please come up with a better argument those ‘guilt by association’ and ‘everyone else is doing it’ types; I’ll answer that last post with the old ‘if everyone jumped off a cliff, would you?’ Plus your argument is greatly weakened by the fact that the countries on your list don’t seem comfortable with the idea, since they’ve immunized themselves from being subject to the effects of ‘the idea’.
>> the countries on your list don’t seem comfortable with the idea, since they’ve immunized themselves from being subject to the effects of ‘the idea’.
um, no, they have not “immunized” themselves at all. Can you provide any proof of that? And “Fleisher said so” is not proof. Here is the text of the treaty. can you show me what article “immunizes” citizens of any country?
We should only join a planetwide confederation of justice with trans-national powers when we have giant army of super powerful police robots that will destroy us if we don’t toe the line. Without true power it will be a farce.
[QUOTE]
*Originally posted by sailor *
**>> the countries on your list don’t seem comfortable with the idea, since they’ve immunized themselves from being subject to the effects of ‘the idea’.
That’s not merely a denial of what I said, but an assertion in its own right. Can you provide any proof of that? Especially relevant is article 98.2 of the ICC treaty, which the link below explains. Unless article 98.2 does not behave as the site below asserts, your statement that they have not immunized themselves at all is patently false.
While the statement not proof, I’m certainly inclined to believe it in the absence of denials by any other country’s representatives - I’ve done a quick search but haven’t found any. While I can’t find any cites now and am soon going to bed (though I’ll try to turn them up later), I have read about immunity from prosecution for other countrie’s forces - some of it under 98.2, but ISTR other immunities being granted.
98.2 would certainly fit the bill, should the UN have arranged such protection for other countries and not want to arrange similar SOFA agreements for the US (plus, of course, such agreements don’t neccesarily enter into treaty). Like I said above I’m not going to research if this is the case, but I am going to look into it more later.
Also, if the usaforicc site is correct, it appears that what the US is arguing against is a change in the terms of ‘peacekeeping’ missions and not, as is asserted, asking for a new rule.
It’s certainly the case that the UK, France, and Germany entered into such an agreement with the government of Afghanistan before comitting troops there (link below), so I’m not sure why it would be suprising for the US to want a similar agreement for forces in Bosnia. http://news.bbc.co.uk/hi/english/world/americas/newsid_2056000/2056005.stm
And, I forgot to add, the agreements with Afghanistan by UK, France, and Germany would, AFAICT, render them immune to ICC prosecution for anything they do there, which seems a clear case of them getting immunity from the ICC.
Riboflavin, you didn’t read article 98.2, did you? OK, let’s read it together:
The page you linked to summarizes it like this:
Which I cannot interpret, for the life of me, as giving immunity to citizens of the ICC member countries. On the contrary, the article would apply to nationals of third states, not with nationals of signatory states. What I understand this means, for instance, is that if country A (e.g. UK) has a treaty with country B (e.g. US) to not extradite the citizens of country B to third countries, then that agreement takes precedence over the ICC treaty and citizens of country B shall not be surrendered to the ICC. I cannot see how this can be interpreted as any country giving immunity to their own people. On the contrary, the article deals with international obligations of states under other treaties. Can you explain to me how you interpret it to give immunity to the citizens of the signatory states while denying the same immunity to US citizens even if the US were to become signatory? I must be missing something here.
>> And, I forgot to add, the agreements with Afghanistan by UK, France, and Germany would, AFAICT, render them immune to ICC prosecution for anything they do there, which seems a clear case of them getting immunity from the ICC.
Can you provide any support for that? The countries which have peacekeeping forces in Afghanistan may have treaties with Afghanistan providing their soldiers are subject to the laws of their home country and immune from the laws of Afghanistan. This does not mean they are immune from ICC prosecution. If a soldier from the UK were to commit a war crime, he would be tried in the UK for that crime. IF the UK were unable or unwilling to prosecute and the soldier were in custody of the ICC, then the ICC would have jurisdiction. Or can you prove otherwise?
Not to mention that, were the US become signatory, then the US would have the same conditions, the same rights, as every other signatory. To say the other signatories have given themselves conditions which they would deny the US is just silly.
I agree that there is a downside to not entering the treaty. But all of the downsides you describe so far don’t outweigh (IMHO) the problem of frivolous prosecution we have been discussing.
I also point out that your argument cuts against having a Security Council for all purposes.
So, sailor, can you answer two simple questions for me?
There are absolutely no concerns that the U.S. has concerning the composition, charter, disposition and structure of the ICC that could be considered legitimate?
The ICC now has jurisdiction over the citizens of every single country in the world, whether those countries are signatories to Rome or not?
I looked at the list of signatories, it includes plenty of countries that . . . how to put this . . . I wouldn’t want taking part in a criminal prosecution of Americans.
The list includes Algeria, Albania, Angola, Antigua, Argentina, Armenia, the Bahamas, Bahrain, Barbados, Belize, Benin, Bolivia, Botswanna, Brazil, Bulgaria, Burkina Faso, and Burundi. And that’s only from the A’s and B’s.
In any event, I suspect that many of the countries in your list feel very differently about American militarism than America does.
Also, feel free to correct me, but I believe the ICC acts by majority vote of the judges.
Yes. Well, ultimately, I suppose, what you or I think about where the balance of advantage lies doesn’t really matter. It’s what the US administration thinks that matters.
Incidentally, I’ve haven’t actually argued in this thread that the US should ratify the treaty. I’ve argued that the reasons for not ratifying given by some of the posters in this thread are not valid reasons (and are not the reasons given by the US adminstration. I’ve suggested that this is a much more finely-balanced decision for the US than some of the posts (on either side) would seem to suggest, and that not ratifying is not a postion that the US is entirely happy with – from the administration’s point of view, it may be the lesser of two evils, but it’s still pretty evil.
For the record, if I were the US administration, I think I would have found the balance of advantage lying in favour of ratifying. And, as a non-US citizen, I think the world as a whole would be better off if they did ratify. But these are not arguments which are likely to weigh with the US government and it’s their call, not mine.
Hmmm. I wouldn’t take the argument so far myself. I think there’s a line between the kind of political and diplomatic matters in which the Security Council mostly interests itself, and judicial matters. It may sometimes be a blurred line and its precise location may be hard to discern, but that doesn’t mean its not significant. And the arguments which I make about the rightness or wrongness of the Security Council influencing a judicial procedure do not necessarily apply to everything else that the security council concerns itself with.
Riboflavin – I’m open to correction, but I don’t think the site you reference bears out the claim that the personnel covered by a bilateral treaty are immune from prosecution before the ICC. Afghanistan is a bad example to use, because it has not ratified the Rome Statute so US personnel accused of war crimes in Afghanistan are already immune from prosecution. But let’s discuss the case as if Afghanistan had ratified the Rome Statute. Let’s also assume that (say) Australia has entered into a SOFA agreement with Afghanistan with an immunity clause.
The first point is that the US is free to enter into a similar agreement. (Indeed, for all I know, it may have done.) But park that point and look at the immunity which the SOFA agreement provides.
It gives Australia exclusive jurisdiction over the Australian troops in Afghanistan, to the exclusion of Afghan jurisdiction. This means that the Australian soldier cannot be tried by Afghanistan for the alleged war crime, and (as you point out) the ICC cannot require Afghanistan to extradite him for trial before the ICC.
As far as I can see, however, it can ask Australia to extradite him. Or it can ask the government of any third country which is a party to the Rome Statute and to which he may travel to extradite him. So he can avoid the ICC only by deserting from the Australian forces and spending the rest of his life in Afghanistan.
In summary, it doesn’t give that great a measure of protection, and to describe it as “immunity from prosecution before the ICC” is misleading. And, in any event, whatever level of it protection it provides is also available to US troops, if the US is prepared to negotiate similar Status of Forces Agreements with host countries.
>> So, sailor, can you answer two simple questions for me?
>> 1) There are absolutely no concerns that the U.S. has concerning the composition, charter, disposition and structure of the ICC that could be considered legitimate?
I did not say that. The US has, at least, the same legitimate concerns as the UK, Australia, NZ, Canada, and all the other signatories and maybe more. I am not denying legitimate concerns. That is why it is a treaty and not an imposition. But in my view the good that comes from developing the framework for an international order where crimes against humanity are punished, is well worth an extra effort in trying to work out an acceptable solution. Walking away, IMHO, is not an acceptable solution. The US should be at the forefront of defending human rights and condeming the abuse of human rights. Chastising China for human rights abuses while doing the same in Guantanamo and while not working constructively for the establishment of a court designed to punish such abuses is not the way to lead nations to build a better world.
>> 2) The ICC now has jurisdiction over the citizens of every single country in the world, whether those countries are signatories to Rome or not?
Yes, whether the US signs or not, US citizens in signatory countries will be subject to the ICC as it should be. The ones who want to be solely under the protection of US law will have to stay home just like aliens who do not want to come under US jurisdiction have to stay out of the US. I can’t see why that is a problem. The US government understand this very well and that is why they are threatening to withdraw their peace keeping forces from Bosnia.
lucwarm you are entitled to your opinion about Bulgaria, Argentina and those other “undesirable” countries and I understand your concern but I believe there are more than enough safeguards built into the system and the risk has been greatly exagerated while the upside has not been valued sufficiently. The US could join with an escape clause allowing it to withdraw if it deems it is being used for political purposes. I do not see this happening because, if it did, the whole ICC would collapse as all of the allies of the US would not stand for it.
Lucwarm, you’re quoting from the list of signatories. But the signatories are not a party to the treaty. Indeed, the US is on the list of signatories.
Less than half the countries you mention are party to the treaty.
And even the countries which are a party to the treaty do not “take part in” prosecutions. All that a state can do is refer a matter to the prosecutor, requesting him to investigate it. He investigates it, he decides whether to prosecute and he runs the prosecution. The prosecutor does not have to investigate matters referred to him by a state and, conversely, he can investigate a matter which comes to his attention even if no state has formally referred it.
Yes, the ICC decisions are taken by a majority of the judges. Which means that one judge biassed against the US does not necessarily turn into convictions of US citizens who come before the court but who are in fact innocent of the crimes charged.
I think concerns about possibly judges being possibly biassed against the US would have to be taken more seriously if there was any evidence from the experience of the ICJ and its predecessor, the PCIA, over the last hundred years or so of judges elected by states many of whom were inimical to the United States being themselves biassed against the United States, and reflecting that bias in their judgments.
Is there any evidence of this? Obviously what we need is evidence of bias against the US rather than evidence of disagreement with the views preferred by the US, which is not the same thing at all.
**
I’m not sure if that is accurate, however, for exactly the kind of situation that seems to be troubling the Bush administration - soldiers acting under orders from the U.S. government, in a military operation.
Am I wrong? I wouldn’t even know where to look to find out.
Yes, a soldier (and, in some very limited cases, a diplomat) outside of U.S. territory and not acting in an official capacity can be arrested and tried for crimes. I’m not sure how it works when you are acting in an official capacity for your government.
UDS pointed out the checks put on the ICC. The key one addressing American concern seemed to be that the court will only kick in if a state declines to investigate, prosecute or make a determination not to prosecute.
But something is certainly missing here.
Otherwise, Iraq could sign on and say, “After review by our police and courts, we have determined that gassing of the Kurds did not occur,” or “It occurred, but was justified under legal authority.”
If I’m reading this supposed balance correctly, that would forestall the ICC from acting. If that’s not correct, and a panel can say, “You didn’t correctly investigate this case; we will now take jurisdiction,” then we are back exactly to what concerns the U.S.
Also, perhaps I’m being naive, but I’m sitting here reading the United States Constitution, and Article III states (all bolding mine):
You can read this as, “Congress has the capability of passing America’s power of the judicial branch on to an International Court, if it so votes.” I don’t see any way in hell, however, that you can say the U.S. could join the ICC without a vote of Congress. In other words, there is no way the U.S. could join this court simply by signing a treaty.
A strict constructionist could say, however, that nowhere in the framework of our judicial system is it expressly permissible to delegate that authority to another country, or countries - again, in the specific instance of “public ministers” acting abroad (which I would take to include U.S. soldiers carrying out a mission ordered by the president).
Indeed, it specifically states that the U.S. judicial system SHALL have the authority in cases arising out of American treaties, in all cases involving American ambassadors or “public ministers,” and “to controversies to which the United States shall be a party.”
So it isn’t a case of “the U.S. gets first crack; and then it can go to an ICC if some tribunal doesn’t think the U.S. did its job correctly.” The Constitution doesn’t say that.
At the most extremely loose interpretation of this, Congress will have to grant the authority to join (which I don’t think will ever happen). At its most strict, it is impossible for the United States to join.
Somewhere in the middle, joining the ICC would require an amendment to the Constitution. I won’t hold my breath.
Lucwarm, you’re quoting from the list of signatories. But the signatories are not a party to the treaty. Indeed, the US is on the list of signatories.
Less than half the countries you mention are party to the treaty.
And even the countries which are a party to the treaty do not “take part in” prosecutions. All that a state can do is refer a matter to the prosecutor, requesting him to investigate it. He investigates it, he decides whether to prosecute and he runs the prosecution. The prosecutor does not have to investigate matters referred to him by a state and, conversely, he can investigate a matter which comes to his attention even if no state has formally referred it.
Yes, the ICC decisions are taken by a majority of the judges. Which means that one judge biassed against the US does not necessarily turn into convictions of US citizens who come before the court but who are in fact innocent of the crimes charged.
I think concerns about possibly judges being possibly biassed against the US would have to be taken more seriously if there was any evidence from the experience of the ICJ and its predecessor, the PCIA, over the last hundred years or so of judges elected by states many of whom were inimical to the United States being themselves biassed against the United States, and reflecting that bias in their judgments.
Is there any evidence of this? Obviously what we need is evidence of bias against the US rather than evidence of disagreement with the views preferred by the US, which is not the same thing at all.
OK, guys - I learned so much English here, so I totally lost control.
The French guys, Voltaire and his fellows, came to the conclusion that there should be (1) a police (2) a procecutor and (3) a judge, so that we could get some kind of justice.
That was more than 200 years ago. (And we hardly got any).
So can we not build a system where there is a Sheriff-of-The World, a Prosecutor and a Judge.
I see the problem when we do not know who is who.
So, if two of these guys would always have a veto against the third guy, I think that it would be very hard to have faul play.
The trigger-happy guy, the A4-loving guy and the Gavel-rapping guy should have some kind of consensus?
Or how?
These are fictonary examples. Totally fictonary.
But think if one guy is bull-dozering (the tower of Pisa) and the other guy thinks it would be a good Golf-site and the third guy would think that Golf is the corner-stone of the western culture?
Very hard to say if we should put the whole bunch somewhere and throw the key away.
Or one guy goes and freeds a whole nation, even if they got so freed that even their souls are vaporisized.
Would it not be easiest if all actions that are taken place across a border, should be made by UN?
Just to keep the national armies inside the borders of each nation - othervise, yes otherwise the bad UN, with barets, turbans, helmets etc. would come and put the agressor (= who stepped over the border) back to stone age.
If US feels that UN is not a good army, put half of Your army there and You have an absolute majority. The others could also escalate, sending half of theirs, but who the f* would like to do anything against international rules???**
All that takes the power illegally by force => to the court.
All that would not have free elections => International boycott => to the court.
We need a court anyhow, and less wars.
(This is half a joke, but just think about if we would all have an International Army? Who would stick up after that?)
Milossarian - I know next to nothing about US constitutional law, and it may well be that joining the ICC would require a constitutional amendment. (It did for us in Ireland.)
But it seems to me that the arguments which suggest so apply at least in part to all the other international courts to which the United States has subjected itself - most obviously the ICJ, but also the more specialist tribunals which deal with disputes arising under other multilateral conventions in which the US participates. Are these not also improper transfers of judicial power?
I appreciate that the ICC involves a jurisdiction over US citizens, which raises additional issues, but still, if the issue arises at all it must have been considered by now.
Also I would think it odd that, if there is a constitutional issue, the administration hasn’t raised it. It would give them the perfect excuse for not ratifying, and would involve them in much less odium than they have in fact incurred.
UDS, good call on the list of signatory countries which has slipped past by me and good analysis on how cases would be prosecuted.
Milossarian, whether the ICC does or does not have jurisdiction over US citizens is going to be a practical matter. If the US citizen suspected or accused of having committed crimes against humanity is in the custody of the ICC then the ICC is going to assert jurisdiction and the US, as a practical matter, is not going to invade the Netherlands (as DeLay proposed) to stop the trial. In that sense the ICC does have jurisdiction over US citizens no matter whether they were in the military or other government service. On the other hand, if the US refuses to surrender the person, then, for all practical purposes, the US citizen is immune (sdo long as he stays in the US).
I do not see the Constitutional obstacle at all. As UDS says, it would have been brought up already. And the US is party to treaties, like the WTO, which provide for international arbitration or adjudication. Besides, surrendering a US citizen to another country does not mean the US puts any other court over its own SCOTUS. It just recognises the jurisdiction of the foreign court over the person being extradited. The USA can extradite a person accused of a crime in another country to that country to be tried. I cannot see what is the big deal with doing the same with an international court composed of several countries.
I am not saying the US does not have its reasons but to put it in perspective, this is how I see it: Pretty much the entirety of the western, advanced, democratic, countries have come together with aproject for a court which would punish crimes against humanity, which is a worthwhile goal, if you ask me. All those nations have similar concerns and have managed to work out a solution that may not be perfect but it is a viable start. The US has an interest in maintaining good relations with those countries. It has an interest (I want to assume) in justice being done to those accused of crimes against humanity. Given all this, it would serve the US betetr to try to go along and participate and influence the ICC for the better. Rather than that, the US is behaving like a spoiled bully who has to have his way all the time and is not willing to compromise at all. I think it is a mistake and will only serve to isolate the US and distance it from its allies whom it needs to be close to.
sailor (and UDC, but the quote I’m using is sailor’s):
**
I can only go by what I read. There is the revelant portion, cited above in its entirety.
I would appreciate it if you can, using the above wording, point out to me how there is “no Constitutional obstacle at all.”
**
The big deal is, this will almost inevitably involve U.S. soldiers, CIA agents and officers of America’s foreign stations, doing their work under the color of U.S. governmental authority, orders and instructions. That is extremely different from, say, an American solder stationed in Japan who breaks one of the laws of Japan while acting as an individual, outside the scope of some military mission.
