Milossarian, as I said, I do not see any Constitutional problem (and naither does the US government it would seem since they have not raised it). The fact that a person may be extradited to another country does not in any way diminish the Supreme jurisdiction of the SCOTUS in the US. At least I do not see how it does.
>> 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.
I do not see how and in fact I would say joining the ICC imposes less obligation because, in effect, it only means the US acquires the international obligation of judging it’s own citizens who are suspected of crimes against humanity. As long as the US does this (and the US will do it anyway) it has no obligation to surrender anyone to the ICC.
I do not see how your example follows. A US soldier stationed in Japan rapes and kills a young girl on his free time and the US has no problem surrendering him to the Japanese authorities (as it should be) to be tried in their system. Nobody says it should not be so because the Japanese system is different from that of the US. And, if the US does not like the idea of US soldiers being tried in Japan, then the US can keep their soldiers in the US and that resolves the issue.
Now, suppose a US soldier, or several US soldiers, go on a raping and killing rampage in some place where they are part of a peace keeping force. Because of the Status of Forces agreement (SOFA), the US gets first dibs on trying him or them. In other words, the situation is more favorable to the US than when there is no SOFA. Only if the US will not try them, which is unthinkable, would the ICC assert jurisdiction.
The whole point of the ICC is to prevent situations where crimes against humanity go unpunished due to the inability of local authorities to act. Punishing crimes against humanity is so important that all countries should make their best efforts to make it happen. The US torpedoing a court set up to punish the horrors we have been seeing in the news because of concerns which are quite small compared with the evils we are trying to punish and prevent, that seems pretty egotistical to me.
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And who determines whether every country has made its “best efforts?” And of those making such a determination, have any shown an almost default position of opposing activities by America’s military, intelligence and law enforcement that our government has deemed necessary and appropriate? Have any given indications they would like nothing more than to diminish America’s power and influence?
Why, exactly, would my country want to go along with that?
You don’t have to search too far to find governments around the world who consider our incursion into Afghanistan as an unwarranted war of aggression.
Is it such a stretch to imagine people with such a looney opinion would not try to go after U.S. soldiers in the ICC for activities related to that mission? (Say, an accidental killing of civilians during a bombing mission or firefight.)
Our government would say they did nothing wrong. Opponents would say we didn’t adequately do our job (ala the scenario I made earlier with Saddam Hussein and the gassing of Kurds). Then what?
Until provisions are worked out that make it abundantly clear my scenario above could not and would not ever happen, there’s no way the U.S. government is going to sign on. That other people have difficulty understanding the reasons why is, frankly, puzzling to me.
Milossarian, we have come round full circle and if you are not convinced by now then I do not think I can say anything further. UDS has explained it better than I ever could. All I can say is that all the rest of the democratic and developed countries with which the US has an interest in having close ties, see it very differently and the USA has a view similar to that of China and Iraq. I do not think this is a good thing for the relations between the USA and its closest allies. It signals a distancing which is not positive. The USA is free to do whatever it wants but so are the other countries. The problem is that when the other countries exercise their sovereignty in a similar way, the US complains bitterly. Refusing to join the treaty does not grant immunity for US citizens (as has been pointed out) so, in fact, the US has less control by refusing to join, not more.
Quick question, sailor. When was the last time Britain, France, Canada, or any of the other democracies that you listed actually led a war against another country?
Do you have any reason to believe that most of the signatories will not ratify the treaty? If not, then your argument doesn’t make much sense.
In any event, here is a list of some of the countries that have ratified the treaty, and will therefore help select the judges that will determine guilt or innocence by majority vote:
As I understand things, the US has rescinded any support for the treaty. Feel free to correct me.
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They select the judges by majority vote; those judges convict or acquit by majority vote. Or am I missing something?
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But it also means that one or two fair judges cannot stem the tide of biased judges. Note that in criminal prosecutions in the United States, a conviction generally requires unanimity, or at least a super-majority of the fact-finders.
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Well, I think that you have the burden of proof here. Most of the world’s justice systems are fairly corrupt. I don’t see why we should assume that judges selected by the countries I listed above would be fair. And of course there is the example of the LaGrand case, of which I am sure you are aware.
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It’s close enough to cause a lot of concern. For example, if the ICC were biased against American Interventionism and Militarism, that could easily color its judgment in individual cases.
Certainly if I were defending an American soldier before the ICC, and I were given a right of voir dire similar to that of American courts, I would try to ascertain how each judge felt about American interventionism and militarism, and I would move to excuse any judge who had strong feelings against it.
UDS, I’d still be interested in seeing the ‘procedural safeguards’ against politically-motivated prosecution. The only ‘safeguard’ I’ve seen is that judges have to be willing to say that the US dropped the ball in prosecuting something, which doesn’t qualify as a safeguard in my book. I asked about that very issue at some length, and you seemed to have missed it. Should I take that to mean that the only safeguard against the ICC acting as a kangaroo court to try US citizens for crimes for which they were cleared by the US to be the unwillingness of judges to state that the US investigation into a matter was not satisfactory?
With relevance to earlier posts and the ensuing GQ posted by Riboflavin I surfed over to the UN to get the dope on this ‘negotiated immunity’ that Ari Fleischer has been kind enough to proliferate in the media lately.
I think, all arguments have pretty much been made and there’s not much more we can add. But there seems to be some here who hold the position that the US should not care about anybody but the US and just do what it selfishly considers is in its own best interest. I hope those will recognise the right of other nations to do the same and to tell the US to get stuffed when the US needs some help. Why should other nations not provide secret bank accounts where terrorists and drug dealers can launder their money? After all, it is their business and why should they care about the US? And why should Europe become involved in the war between the US and BinLaden? Let them sort it out themselves. It is not Europe’s business. Right?
And for the umpteenth time I will repeat the Legrand case was NOT anyone trying to impose anything on the USA. It was the USA breaching a treaty it had freely endorsed. It was the USA not living up to it’s obligations under an international treaty. That is what it was. If another country did the same to the US the same Americans would be talking of invading and nuking them. The fact is the US signed a treaty saying it would do something and then didn’t do it and that, in my book, is nothing to be proud of.
I wouldn’t go that far, but I do think that we should count our interests for a lot. And note that one of the motivations for U.S. interventionism is to help others, even at the risk of our own people.
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That’s simply false. The ICJ tried to order around the American courts. Earlier, I quoted the relevant portion of the ICJ’s decision.
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False. The issue was what the consequences should be of the breach and who should decide what those consequences should be.
Nobody disputes that the LaGrands were not advised of their rights to consular aid and that pursuant to the Vienna Convention, they were entitled to such assistance.
The American courts decided that the LaGrands raised the issue too late. They also decided to ignore the “orders” of the ICJ. Those were the issues.
I’d really be interested in your answer to the following questions:
**Do you think that in case of any breach of any treaty, no matter how slight, and no matter how inconsequential, the ICJ should be able to impose whatever orders it sees fit on the countries involved?
lucwarm, don’t be so melodramatic. It’s not like the ICJ is going to invade the US any time soon (they’re scared of American lawyers and their bad-ass reputation). The fact is that the US breached its obligations under a treaty it voluntarily ratified and the ICJ ruled against the US. The US is free to breach treaties and ignore the rulings of the ICJ but it doesn’t make the US look good in the eyes of the rest of the world. A foreign policy based on “I do whatever I can get away with because I’m bigger than you are and I can get away with a lot” is not a good way for the US to make friends. And next time some American citizen is in trouble in another country think if you would like that country to respect their treaties with the US. How can the US go around the world preaching about the rule of law when it breaches the law whenever it is expeditive and convenient?
The point is that the LaGrand case is not just about the US breaching a treaty. It’s about the consequences of a breach. You can preach about honoring treaties all day long, but that’s simply not the issue, because in the LaGrand case, by the time the case got to the courts, there had (apparently) already been a breach. An unintentional and harmless breach.
I first mentioned the case as an example of the behaviour of the ICJ.
So please answer my questions:
Do you or do you not believe that the ICJ has the power to enjoin proceedings in American courts?
Do you think that in case of any breach of any treaty, no matter how slight, and no matter how inconsequential, the ICJ should be able to impose whatever orders it sees fit on the countries involved?
Do you think that the ICJ acted properly in the LaGrand case?
I’m not the person you addressed the question to, but apparently the ICJ thinks so. Me being a silly common sense sort of person thinks that perhaps the question should have wound its way through the US courts to see whether they agree or not.
Did you happen to read the U.S. Supreme Court opinion that I cited earlier in this thread?
I’m sure they would, but they’d be pretty clearly wrong. As I’m sure you are aware, the LaGrands had been living in the United States since they were young children. And I don’t think anyone has seriously disputed that they received fair trials. (Feel free to research the case and correct me.)
No, I did not. I got the impression that an Arizona court and the governor just decided to ignore the ICJ. I’ll check out your cite tomorrow (or actually later today considering the time.)
>> Do you think that the ICJ acted properly in the LaGrand case?
Well, without going into the details it seems clear to me the defendant was denied certain protection and so the State was clearly in the wrong there so, in that part I agree with the ruling. I am not a lawyer so I am not qualified to discuss the ruling in its minute details which are probably “slight and inconsequential” <BG>
>> Do you or do you not believe that the ICJ has the power to enjoin proceedings in American courts?
I do not know whether the ICJ does, in fact, have that power. What do you take me for? A lawyer? Why do you expect me to have a definitive answer to that question of fact and why would my answer matter?
>> Do you think that in case of any breach of any treaty, no matter how slight, and no matter how inconsequential, the ICJ should be able to impose whatever orders it sees fit on the countries involved?
Matters of law and jurisdiction do not depend on how slight or inconsequential the matter being judged is. Cases are dismissed every day on small technical matters because in western countries it is considered the process has to adhere to the law. We do not follow the Chinese or South American (which includes Texas) system of “he needed killing”. Or do you think the courts should just forget all these slight technicalities and just use common sense? The fact is the SCOTUS ruled that you have to “Mirandanate” people for their declarations to be admissible in court. Some states may feel this is a trivial, slight, inconsequential, technicality and why should the rest of the US impose whatever orders it sees fit? The answer, of course is that the several states accepted the jurisdiction voluntarily and they are the better for it because it provides a common framework of cooperation.
I believe an International Court of Justice to whose jurisdiction all countries have voluntarily submitted would be a very good thing. It would provide a way of resolving disputes which I consider better than war or terrorism. By voluntarily accepting the jurisdiction of the ICJ the US would give an example to the world. By accepting the rulings of the ICJ the US can show its respect for the rest of the world. It takes a civilized country to say “we disagree with the ruling of the court but we will abide by it and respect the court because we are a civilized nation who believe in the rule of laws better than the rule of force”. But when the ICJ rules one way and the USA says “screw you, I will do as I see fit” it is not endearing itself to the rest of the world. Accepting the jurisdiction of the ICJ is not only the ethical thing to do, it is also practical in that it would be a great benefit for America’s foreign relations. When the US goes and mines a harbor of a foreign country “just because I can” and then ignores the ruling of the ICJ, it is setting itself up as a bully who has no law other than brute force and the rest of the world has good reason to be wary of countries like that. The US has a need for help and cooperation from other countries. It needs to get along with them and to get along you have to go along.
So, I am not denying the US the right to refuse to join any international treaties but I question whether that is in the long term best interests of the US.
Well, since you don’t know, I’ll tell you the answer. The ICJ was wrong on at least one critical issue: The ICJ does not have the power to overrule U.S. Courts, no matter how wrong they may be. The US never gave the ICJ that power. Moreover, it is doubtful that the US legislature even could give the ICJ that power, consistent with the Constitution.
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You asserted in an earlier post, in essence, that the only relevant issue in the LaGrand case was that the US had violated a treaty. If you lack the training to know for sure whether the LaGrand case poses other issues, that’s fine. Trust me, it does.
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Sometimes they do, and sometimes they don’t. In American courts, it is very very common that a defendant’s rights will be violated at trial, he will be convicted, and the appeals court will uphold the conviction, holding that the error was “harmless” or that the defendant’s attorney did not object at the proper time.
Now, you may think that defendants in such cases should always be entitled to a new trial. But the sad fact is that an error-free trial is basically impossible.
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And more frequently, cases continue despite technical violations.
I remember one of the first cases I worked on involved a defendant who had moved to dismiss his indictment. His reason? The court reporter present at his Grand Jury proceedings was not certified in the State of New Jersey. However, the defendant could not point to any prejudice he had suffered as a result. Motion denied.
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Some technicalities can be overlooked, some require dismissal of a case. It’s not all or nothing. (Although I have a feeling that you’re going to respond to this post as if I had said that all technicalities must be overlooked. :rolleyes: )
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I disagree, but that’s a topic for another debate. My points here are that (1) the US never agreed that its courts should be bound by ICJ decisions; (2) Nevertheless, the ICJ attempted to bind US courts; (3) the ICJ was pursuing its own agenda at the time; and (4) this illustrates the danger that the ICC will attempt to impose its own agenda on the US.
And I note that the issue you pose is probably moot. It is doubtful that Congress has the power to give the ICJ the sort of jurisdiction you seem to envision.
Questions about the procedures needed to get a ruling from the ICC that a prior US investigation or prosecution of a crime did or did not match the standards required by the Rome Statute are actually a bit of a red herring. As lucwarm has pointed out and as I have agreed, if the judges are biassed then fair procedures cannot be relied upon. But if the judges are biassed fair trials cannot be relied upon either, and of course there are not going to be fair trials cannot be relied upon neither the US nor any other state should never consider participating in the ICC, however strong its procedures. So it all comes back to bias on the part of the judges.
However, the only argument so far put forward for suggesting that the judges will biassed against the United States is that the procedures for selecting them involve states, some of whom have policies inimical to the United States. The thesis seems to me to be that these states are so hostile to the US that they will, if necessary, compromise or abandon any other policy goals they may have and nominate and vote for candidates who are biassed against the US in the hope that cases involving US citizens (or, better still, soldiers) will come before the court and they can take the opportunity to embarrass the US, and that there will be enough states so motivated to make a material difference to the make-up of the panel of judges and, ultimately, to the decisions of the court.
It’s not an unarguable case; indeed, lucwarm has argued it eloquently. But I’m still not convinced and neither, apparently, is the US government. If the argument holds good, it holds good for all the international tribunals in which the US participates, and especially for the ICJ, where many, many more “rogue states” participate in the selection of judges. Logically, then, the US should withdraw from all these tribunals, but this is not happening and it has not been suggested. Moreover if the argument were good the US should never have signed the treaty, and should not suggest that they might ratify the treaty if the Security Council could be given an enhanced role (as the enhanced role suggested would not protect the US from bias on the part of the judges).
Nor has anybody pointed to any anti-US bias in the ICJ. lucwarm has discussed the Lagrand case, but he doesn’t allege anti-US bias in that case. (My apologies to him if I’m misrepresenting him.) He argues that the ICJ is seeking improperly to extend its powers and jurisdiction over member states. The case in which they do this happens to involve the US, but the move is not directed particularly against the US, and lucwarm doesn’t suggest that it is motivated by anti-US feeling. (His argument is rather that we should fear that the ICC would be likely to try to do something similar.)
The US brings cases to the ICJ about as often as other states bring cases complaining about the US, so this doesn’t suggest that successive administrations have feared bias in its operations.
[Nitpicking hijack] One tiny point in relation to the LaGrand case; as I read it, the ICJ interim order sought to direct the US executive authorities not to execute the surviving LaGrand brother pending the resolution of the ICJ proceedings. It did not refer at all to the findings or orders of the US domestic courts and (unless the Supreme Court ruled that Arizona must execute LaGrand, which would suprise me) it was not overruling the Supreme Court. It seems to me a logically defensible position to say that US domestic law permits the execution of LaGrand but that the US’s international obligations do not. The ICJ is undoubtedly empowered (by the US) to rule on the international obligations of the US, and a ruling that those obligations forbid the execution, even if wrong, is not necessarily an attempt to override the order of the US courts. Of course, I must admit, I haven’t read the US Supreme Court judgment, and it may have expressly decided that, as a matter of public international law, the treaty obligations of the US did not prevent the US from executing LaGrand, in which case, yes, the ICJ was attempting to overrule it).
[/Nitpicking hijack]
For three pages now several people have been raising hell over the issue of the ICC being biased, following “its own agenda”, unfairly prosecuting Americans as a form of political pressure, and so forth. We’ve even had some comments about “world governments” and similar.
Let’s stop with the alarmist conspiracy theory worst case scenarios for a moment and ask ourselves this: is not the goal of the ICC a worthy one? Is the problem here that the principle is being implemented poorly, or is the very principle itself a problem? Is not the ICC desperately needed, especially in the light of the atrocities committed in Rwanda, Afghanistan, Yugoslavia, and countless others?
Remember, we’re not talking about an uber-UN or world government or any of the other idiocies the scare-mongerers keep trying to prop up every time someone with a modicum of information slams them down; the issue is dealing with crimes against humanity and war crimes: the slaughter of non-combatants, the wholesale oppression of ethnic groups, forced relocation, the murder or torture of prisoners, and so forth. The Security Council refers a case to the Court, the prosecutor examines the validity of the case (is it politically motivated or genuine atrocity?) and if the case is deemed valid the trial starts. That is the mandate of the court, but only in those situations when the country involved is unable or unwilling to address the problem in a satisfactory manner.
How this translates as the evil nations of the world (all of them, according to some US rhetoric) ganging up and going after the US seems to be the product of deranged imaginations, misinformation pumped out by certain fools in the government, and too many conspiracy theories before breakfast. Consider that this is not even a political forum, such as the UN, but a court of law.
The objections the US has put forward thus far are not even valid, as discussed. Now the White House has to resort to blatant lies (about the other nations “negotiating immunity”) just to avoid looking stupid–and that’s not going too well either since the US is now in the fine position of having to prove a point by using no arguments. Should any of these doom and gloom persecution scenarios ever come to pass, the US will lodge a complaint, prepare supporting evidence of unfair treatment, and then take it from there. There won’t be lobbying (unlike the UN councils, which being political forums rely on lobbying and shared interests), just a review of the information and a trial according to the established laws.
I find it incredible that the first reaction an effort of this scope and purpose should elicit is paranoia. Finally, here is a mechanism that could prevent future atrocities and therefore reduce the need of US military involvement in places like Somalia or Afghanistan, and the US not only rejects it, but tries to spit in its eye in a manner that could be described by opponents of the US as a unilateral statement along the lines of “we reserve the right to commit crimes against humanity with impunity in the future”. It’s not a terribly smart move from any point of view.
My objections (and I think the U.S.'s objection) to the ICC was expressed well by George Will - the ICC is a pre-modern institution. If we have learned anything about good governance, it’s that government works best when it is constantly held accountable to the people. Rule should only be by the consent of the governed. And government is better when the connection between it and the governed is a close one. disconnected, distant bodies are not particularly good and just way of running a society.
The ICC is largely an unaccountable, extra-governmental organization. And because it is of global reach and the creation of a consortium of countries, it will be hard for the citizens of any individual country to find redress for grievances against the court.
The other argument is that the U.S. government has a responsibility to its military people. They live by the Uniform Code of Military Justice. They EXPECT protection from the capricious laws of other countries, and they expect that their elected government will ultimately be their controlling authority.
I think this is a much bigger deal to the U.S. than to European countries, simply because Europeans are used to having to deal with each other constinuously. The U.S. is used to standing alone.
I happen to think the ICC is a bad idea for another reason - not having police and a military of its own, it ultimately depends on the strength of countries to enforce its decisions. To me, this means that the first time a powerful country comes into its crosshairs, the rules will change. What if the ICC decides that an investigation in Russia against a Russian wasn’t thorough, and demands that the Russian be remanded to them for investigation - and Russia refuses?
I also think the ICC will wind up like the U.N. Human Rights Commission - it will become a propaganda tool, and the members of it with less than stellar records will use it to constantly accuse countries like the U.S., Britain, France, and Russia of various war crimes in order to mask their own abysmal records.
The road to Hell is paved with good intentions; in many cases, atrocities of the very sort the ICC alleges to address have been committed with good intentions. Simply going on about noble goals isn’t enough, though it seems to be a major point of ICC advocates.
No, the ICC is not desperately needed.
Just wondering, what exactly is a court with worldwide jurisdiction and no accountability to due process guarantees in national constitutions other than a step toward world government? Of course, most arguments against the ICC don’t have anything to do with it being a world governemt, though that is another reason to oppose it.
No, that is not the issue, for all of the talk ICC supporters expend on it. The issue is that the ICC is not limited to the crimes you list above, but to anything it wishes to call a ‘war crime’. Can you show me something in the treaty that limits ‘war crimes’ to what you’ve listed above? Considering how often various foreign groups call a completely justified war such as the one in Afghanistan ‘a war of aggression’, or unfortunate accidents like the wedding bombing ‘war crimes’, it’s rather hard to take seriously the oft-repeated but unsupported assertion that the ICC would be limited to atrocities such as you list above.
Of course, there’s no actual standard for distinguishing a ‘genuine atrocity’ from a ‘politically motivated’ charge, is there? Are we simply supposed to believe that no prosecutor would ever prosecute a case for political motives? It shouldn’t be too hard to find examples of a prosecutor prosecuting for political reasons in any of the countries that have signed the treaty.
Where are the objective standards for a country to ‘address the problem in a satisfactory manner’? There aren’t, or at least UDS and the other supporters of the court haven’t been able to show them to me. It’s simply up to the whim of whichever judges get elected to the court, not to some objective standard, and there is no higher court to appeal the verdict to (yes, you can appeal right back into the ICC - which is no protection at all against bias).
Or, perhaps, by the weakness of the arguments put forth by ICC supporters. Those arguments tend to center around painting those who oppose the ICC as “paranoid”, “isolationist”, “deranged”, and other negatives, repeating ad nauseum how many countries have signed on to the treaty, asserting or implying that anyone opposed to the ICC supports genocide, and going on about the noble goals of the ICC. None of those are real arguments; they don’t address any issues, and aren’t going to convince anyone to change their mind, and probably will cause ICC opponents to feel defensive and stop listening to arguments.
I also see supporters insisting that there are protections against bogus politically-motivated charges being brought, and other similar protections. Addressing the concerns that ICC opponents have is quite valid, and could certainly convince me to change my mind. However, despite all of UDS’s (for example) efforts, he hasn’t shown that those protections actually exist. While the text does say, for example, that the ICC can only step in if a country’s judicial system fails to investigate, there are no objective standards for what constitutes such a failure, leaving it up to the honesty and mood of the judges. While the text does say that only war crimes (and some other categories) can be prosecuted, there are no objective standards for what is a war crime - again, leaving it up purely to the honesty and mood of the judges. While supporters who attempt to offer assurances against the actual concerns of the opposition have a much better chance of convincing someone to change their mind than those who simply slap around disparaging labels, their arguments fail to address the lack of actual protections and objective standards.
A court of law with judges elected by a process pretty similar to that used within the UN - and I think that all of us remember just how well the UN’s voting worked on the Human Rights council, right? And while you can state that it is a court of law and not a political forum, that doesn’t offer any assurance that it won’t actually become a political forum. And, of course, it’s a court of law without the sort of due process protections a US citizen is guaranteed by the US constitution.
Simply tossing around words like ‘paranoid’ does not show that the objections are invalid. Can you address the actual issues that have been raised?
That does annoy me, more because I got caught by it than anything else. OTOH, other nations have negotiated what I’d have to call resistance (it’s certainly not immunity as was said and I thought) - note that by the treaties Britain, France, and others have entered into, their soldiers will not be arrested and shipped off to the ICC by the country where they’re stationed, any process will have to go through their government. I’m not really clear on what good the ICC does with that protection in place - if a given state is not willing to prosecute someone for genocide, are they going to worry that much about turning them over to the ICC? It’s certainly a suspicious arrangement, though also clearly not immunity.
Umm… there are plenty of arguments against the ICC, many of which have not been addressed and are simply being ignored by ICC supporters.
These ‘doom and gloom’ scenarious are a simple extrapolation from the public statements routinely made about Americans and our conduct in wars and ‘peacekeeping’ operations and the lack of substantive protections in the structure of the ICC. One big reason the US hasn’t signed on to the treaty is those unaddressed “doom and gloom persecution scenarious” (another is simply that the US probably cannot sign onto said treaty without a constitutional amendment).
How can you assert that with a straight face? The judges are elected by a vote of signatory countries and, since countries can swap votes that looks like a good place for shared interests to work their way in, and I’m really unclear as to how lobbying is not going to happen to an elected body, especially one like this.
What established laws? You mean the vague terms in the Rome Treaty that pretty much amount to ‘prosecute anything if you can call it a war crime and claim the original country didn’t investigate properly with a straight face’?