Riboflavin - Have you a cite for this? The crimes for which people can be prosecuted before the ICC are (a) listed and (b) exhaustively defined in the Rome Statute. There is provision for the list to be extended by a later amendment agreed between the states who are party to the Rome Statute.
It is simply not true to say that “the ICC is not limited to the crimes you list above, but to anything it wishes to call a ‘war crime’”, any more than to say that the US Federal Courts can call anything they wish a federal crime, and convict and sentence someone for it.
Again, this statement is untrue. The criteria against which a prior investigation or prosecution by a member state are to be assessed are set out in Article 17 of the Rome Statute, as you would know if you had troubled to read it. It is nonsense to suggest that the awpplication of these criteria is amounts to “the whim of the judges”, unless you consider that all judicial decisions represent the whims of judges. (And if that was your position, you’d presumably be arguing that the US and US citizens should not participate in any judicial proceedings, domestic or international.)
This is not the first time you have posted assertions about the ICC which are, basically, nonsense. My guess is that you’re getting these assertions from some polemical source which opposes the ICC and you’re accepting them uncritically. I cautiously suggest that, if so, the source may not be reliable, and it is probably unwise to repeat its arguments here. Putting forward arguments against the ICC which turn out to be nonsense, far from strengthening the case against the ICC, tends to give the impression that there are no sound arguments against it, which presumably is not the impression you wish to create.
Some people are just paranoid and others use paranoid arguments to support their agenda. It was not too long ago that in every country in Europe you could hear the anti-Eu crowd saying the EU would take away from us or most cherished traditions. In France they said unpasteurised cheese would be banned, in Spain bullfights would be illegal. in all co8untries the use of letters with tildes, accents, etc. A strict interpretation of treaty seemed to authorise all sorts of intrusions by the EU. Needless to say, it has not come to happen.
Sam your argument about the ICC having no physical power is specious. The SCOTUS has no phisical power and that is the whole point, the separation of powers. Everthing works so long as each Joe does his job. If the Executive refuses to abide by the rulings of the courts then you’ve got a serious problem and the solution is not to give the courts power over the executive.
Riboflavin, have you actually glanced through the Rome Statute, the Elements of Crime, and such articles pertaining to the ICC? Because a lot of what you are saying just seems like more of the false anti-ICC propaganda such as Bush’s “other nations have negotiated immunity”.
I’m working on a lengthy and citation-rich reply to your objections but I have to break for today. I’ll post it ASAP.
However I must say that, like UDS, I am a little concerned that after 3 pages of detailed discussion you should bring up these rather simple, old, and often untrue objections. Like I said earlier, most objections to the ICC we have seen thus far are simply not valid–they’re more of a smokescreen designed to confuse the issue for whatever reason. Either you are listening too closely to Bush’s words on this matter, or you are not reading the relevant messages on this board. Or I have missed the point somewhere, although for now I’ll consider that a minor possibility.
I think that other arguments have been put forward, although admittedly, the anti-US argument figures prominently. For what it’s worth, those other dangers include the possibility that a bias against the U.S.'s viewpoint could color the judge’s viewpoint. As I noted earlier, if I were defending an American soldier before the ICC, and I had a right of voir dire similar to that of an American court, I would try to excuse those judges who had strong feelings against American-style interventionism.
Another danger is that the ICC will be incompetent and corrupt. For example, bodies such as the International Olympic Committee, or the organization that’s responsible for judging figure-skating competitions might not be particularly biased against any particular country. But they still are not terribly trustworthy.
Thanks.
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IMHO, the fact that the U.S. actually signed the treaty is irrelevant. In essence you are claiming that the treaty is good because Bill Clinton says so.
As for the ‘other tribunals’ argument, it seems to me that a good example of ICJ bias has been brought up already. Do you have other tribunals in mind, or is the ICJ the only one you are thinking of?
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As I said before, the LaGrand case was (IMHO) motivated by a bias against capital punishment.
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Disagree. IIRC, the ICJ’s decision specifically mentioned the U.S. Supreme Court’s failure to grant a stay of execution in its opinion that the U.S. had not complied with its order.
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Ok, can you show me where the U.S. agreed that the ICJ’s orders would bind its executive branch (or for that matter, the executives of the State of Arizona)?
Time prevents me from dealing fully with all your points just now, but I will come back to them.
However I will respond on this one, making two points. First, as far as the ICJ is concerned, the party before it is the United States, and the treaty obligations undertaken by the United States bind the United States. The ICJ is unconcerned with the separation of powers within the United States between executive, legislative and judicial organs. If the United States complies with its treaty obligations, it does not matter whether the obligation is performed by the executive, the legislature or the judiciary; similarly if the US is in breach of its treaty obligations. The same is true as between Federal and state organs; this division of powers is the business of the Unites States, but not of the ICJ.
So I think the question really should be “where did the US agree that the US would be bound by the ICJ’s orders?”
And the answer is, when the US ratified the Statute of the ICJ, which provides (in Article 59) that “The decision of the Court has no binding force except between the parties and in respect of that particular case”.
There is separate provision, in articles 65 to 68, for advisory opinions.
>> the LaGrand case was (IMHO) motivated by a bias against capital punishment.
No, the ICJ did not say “we do not like the death penalty”, rather, whet they said was “we do not like states breaching their international committments”. The ICJ is prejudiced against states who do not fulfill their obligations in the same sense American courts are “prejudiced” and “biased” against rapists and thieves.
>> can you show me where the U.S. agreed that the ICJ’s orders would bind its executive branch (or for that matter, the executives of the State of Arizona)?
I believe the Constitution says International Treaties are law of the land once ratified by the Senate. If that is so, and I believe it is, the answer would be found in the Constitution of the USA. Now show me the Executive Branch or the State of Arizona are not bound by the Constitution.
One day I would like to open a thread dealing with international affaires, economic or political, and not leave it with a depressing sense that my fellow Americans are not only utter know-nothings when it comes to the fine art of international relations, but also aggressively and utterly incompetent ignoramuses.
Well then, leaving aside the good and bad in regards to the ICC – and frankly I am not sure what conclusion to reach in regards to its substance – numerous arguments advanced here are inordinately uninformed.
First, in regards to signing versus ratification – rather than presuming one should inform oneself. In fact signing without ratification is quite common and ratification often comes years later if at all. Countries sign on to treaties for numerous reasons.
Firstly, of course, signatories frequently have rights in regards to the treaty, without obligations, e.g. in regards to influencing future discussions, amendments etc. Secondly, of course, few people bother to inform themselves of the difference between ratification and signing. As such, if there is popular political pressure in regards to the treaty (pro that is) signing (*) is often enough to alleviate it, allowing the government to pursue whatever policy it wants subsequently. For those wishing further information, you may simply go to the UN website and locate its current treaties page – the UN usually serves as a depot for treaties – where one can compare signature and ratification dates for numerous treaties. One will find that signature does not of necessity mean any intention to ratify in any near-term, above all outside of European nations as I recall the data, although my recollection is based on old data. However I doubt it has changed substantially in the past decade.
Further, as to simply citing the signatories with the implication that somehow Syria (et al) will be able to substantively influence the process including ‘attacking’ US troops via the ICC, and leaving aside for the moment the issue of signatory versus ratifier, is quite simply ignorant.
One might play the same game with WTO or numerous other international treaties such as Basel, Montreal. Simply citing the signatories, or even the ratifier tells us nothing, nothing and nothing. One has to look to the structure of the treaty, its characteristics and balances in regards to ‘application.’ Citing to members, ratifiers or signatories (the last being even more ignorant than the first) with the implication that this is indicative that such ratifiers (and worse yet signatories) is simply idiotic and either an act of pure unadulterated ignorance or an act of dishonest posturing.
I hope, although of course given the track record to date this is an exercise is the sheerest and most unadulterated if not naïve optimism, that the discussion might make some vague acquaintance with facts and actual operational knowledge as opposed to black helicopter know-nothingism and neo-paranoid speculation.
(*: of course as sadly numerous discussions have shown, even this supposedly well-informed community finds it difficult to conceive of and understand the difference, regardless of the number of times argued and pointed out.)
Now this piece of brilliance:
I would hope that someone advancing such arguments would bother to inform his or herself as to the differences between an ad hoc, unsupervised sporting entity and international treaty organizations insofar as despite both being international they are rather different beasts.
Bloody hell.
Treaties, once ratified, are the law of the land. This sort of know-nothingism is simply staggering.
You missed my point. In a country like the U.S., SCOTUS calls upon the power of other arms of government to enforce its rulings. These other arms consist of people duly elected. There are checks and balances. I don’t see much evidence of reasonable checks and balances in the ICC. Let me rephrase my question: What would happen if the ICC found an American guilty, and the Americans refused to turn the person over because they didn’t agree with the ruling?
And this is not a wild-eyed hypothetical scenario. There have been rumblings in other countries that people like Henry Kissinger should be charged for war crimes. Now, maybe he’s guilty of them, and maybe he’s not. But do you honestly believe the U.S. would ever go along with a trial of Kissinger?
This happens quite a lot with international treaties - they sound good on the surface, and it can be fairly easy to get people to sign on to them, especially if there is political pressure to do so from home. But once the treaty requires you to do something extremely difficult, you run into problems. For example, look at Kyoto. The U.S. signed up in a heartbeat, but when it came time to actually ratify it, you couldn’t muster ten votes to do so. The house voted 99-0 not to bring a ratification bill up for a vote.
I have faith in the judicial process in Canada. I have faith in the judicial process of the United States. I do NOT have faith in the judicial process of a world body made up of members of various countries with various legal systems, which has a role that is ill-defined and will be given wide lattitude in jurisprudence.
Besides that, I don’t see where the ICC is necessary. Yes, there are war crimes around the world. There have been war crimes since the concept was invented. They have been dealt with before, without the ICC. Nuremberg, the trial of Milosevic, etc. I would rather see the convening of ad-hoc bodies to deal with specific crimes than the creation of a world ‘court’ that is constantly overseeing our actions.
It’s interesting to note that there is one set of judicial decisions in the United States that most definitely not represent the “whims” of judges.
Generally speaking, persons accused of crimes in the United States are entitled to have the decision of conviction or acquital made by a group of people from the community. Further, that decision must be either unanimous or by a super-majority of the group. At the risk of sounding condescending, this “jury system” is a very important principal in American criminal law, a procedural safeguard with real teeth, and is absent from the ICC.
I’m not saying you’re wrong, but you haven’t convinced me.
The binding force is limited to situations where the ICJ has jurisdiction. (Note that the provision you cited contains the phrase “that particular case”) The ICJ’s jurisdiction is set forth in Article 36, which provides, in pertinent part, as follows:
On the ICJ’s web site, there is a list of countries that have accepted the compulsory jurisdiction of the ICJ:
Note that the United States does not appear on this list. Now, it is certainly possible that the United States has accepted the ICJ’s jurisdiction and agreed to be bound by its decisions since 1996. But you need to show me to convince me. And you haven’t done that yet.
Are you saying that if the ICJ were biased, it would have made an announcement to that effect?
By the way, can I take it that you now concede that there was more at issue in the LaGrand case than whether the U.S. had violated a treaty?
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First you need to point to an international treaty, signed and ratified by the United States, that says the executive branch is bound by decisions of the ICJ.
I’m not saying that there isn’t one, but nobody here has pointed to one yet.
Note also that there are Constitutional limitations on the extent that a treaty can bind the State of Arizona, either indirectly or directly.
UDS already made this distinction, and I responded, among other things, by providing a list of ratifiers whom I wouldn’t want taking part in the process. So the issue is moot. And the fact remains that many (some?) of the other signers can and will ratify the treaty.
And let’s face reality: you’re nitpicking.
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There’s been plenty of discussion in this thread about how the member States nominate and select judges. Did you miss it?
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IMHO, there is one important similarity: Certain other cultures have a much more tolerant attitude about corruption than that of the United States.
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Like I said to Sailor, you need to point to an actual treaty, (rather than simply waving your hands around the Constitution.)
I’m not saying that there isn’t one, but nobody’s pointed one out to me yet.
Rather, let’s face reality. You have a poor to non-existent grasp of international institutions.
(a) Any motherfucking multilateral organization is going to have less than savory members to it, that’s the motherfucking point.
(b) What counts is the institutional safeguards and structures within the same. I refer those who are not reading impaired or congenitally paranoid in re the outside world and those scary strange furriners to my references to organizations such as WTO, Basel, Montreal etc.
No, I regard the discussion to date as inadequate.
In re sporting institutions:
Yes, and a goodly number that have a much less tolerant attitude for I am sure the less irredemiably provincial among us have noted that the US is not the top scorer on Transparency International and related corruption watchdogs.
The only important similarity is in the word international and an evident paranoia in regards to the same.
I rather took the point not to be in re ICJ but the underlying treaty obligations which the ICJ pronounced its opinion on.
Of course we can run around and preach about ‘respect for law’ and all that, and then do what we want. But there is a word for this. It starts with H.
It’s funny to hear that from a guy whom I’m educating about the distinction between the source of the ICJ’s jurisdiction and the substantive treaties that it purports to interpret.
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Feel free to describe the membership, jurisdiction, and operation of those organizations and argue that they are analogous to the ICC.
Your conclusory hand-waving is not very persuasive (to me, anyway).
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Well, at least you now concede it exists.
In any event, I disagree - certainly UDS and others gave a very good description of the manner in which judges are selected and vote. Would you care to specify what important facts were missing? Or are you content to engage in more conclusory hand-waving, perhaps throwing in a few curse words for good measure?
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Maybe so, but will you concede the (obvious) point that many of the countries in question, in particular many of those that I listed previously, are much more corrupt than the United States?
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If you agree that many of the countries involved in both are, generally speaking, more corrupt than the United States (and I don’t see how you can honestly disagree), then we have another important similarity.
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Oh quit weasling. What I said was clearly in reference to the powers of the ICJ. Here’s what you quoted me as saying:
Riboflavin, here is the previously-mentioned reply. IANAL, however the matter seems straightforward enough.
But the point was that the atrocities need to be addressed, not glossed over. You disagree flatly when I state that the ICC is desperately needed, but I don’t think that’s fair in the least given the level of barbarism committed in the 20th century—is this something that the international community will keep fixing with an insufficient number of ad hoc tribunals? That solution seems more like putting out the fires that make the most smoke rather than trying to prevent such a high incidence of conflagrations in the first place. Right now no head of state is answerable for his actions (look at petty Mugabe’s defiance, for example, although whether his incitements constitute ICC crimes is of course not up to me to decide). The ICC aims to change the situation dramatically by instilling accountability in roles of leadership, accountability that is largely absent today.
Firstly, why do you say there is no accountability when by definition each nation that ratifies the treaty (Assembly of States Parties) commands accountability for the court? Secondly, the Rome Statute contains extensive lists of due process guarantees, possibly even more than are built in US law. Thirdly, this is not anywhere near world government, it’s a last-resort tribunal to prosecute specific crimes by individuals (not states!) rather than let them go unpunished. Fourthly, the ICC will have “worldwide jurisdiction” but only pursuant to specific guidelines and in a matrix of operation that includes Assembly of State Parties (accountability), the Security Council, etc. –all the more reason why the US ought to be a member!
The nature of the crimes to be prosecuted is defined very clearly: the ICC will prosecute individuals accused of genocide, war crimes, and crimes against humanity, all very clearly defined in the court’s paperwork. You can take a look at the precise nature of the crimes to be prosecuted at this link: Finalized draft text of the Elements of Crimes. Very specific guidelines there.
The point about labelling any old move “aggression” is a good one, but the ICC also plans to have adequate provisions for that. Its goal is to migrate towards prosecuting acts of aggression, but it does not claim the right to do so at the moment, because of the difficulties involved in defining aggression accurately. Check out this quote, from the ICC Web site:
In which case you may as well throw all Law out the window completely! This objection, unless I misunderstand it, has no substance. The Rome Statute and the Elements of Crime set out the specific crimes to be investigated; if the charges do not meet the requirements of the legislation, then the charge is nil, whether it is politically motivated or not (but there are safeguards to weed out political motivation). Obviously no one can read minds to tell whether someone’s motivation is political, but that will be less of a problem in a system with accountability and rigidity such as the ICC. After the very lengthy politically motivated farce Clinton had to endure in court I can understand the nervousness of Americans on this point; but every nation has the same concerns—and no other nation I know of has taken things to such extremes as impeaching a president over an office slut.
Wrong, unless you think that anyone would be stupid enough to set up such a court without error-correcting measures—that would indeed be a black hole of an organization, but such is not the case. And I don’t understand your question when you say, “Where are the objective standards for a country to ‘address the problem in a satisfactory manner’”. I’ve already linked to the Elements of Crime, where the objective standards are laid out in high detail, in case that is what you were asking for.
Paranoia and isolationalism (or at least unilateralism) are almost certainly factors in this matter, although not the only ones. Derangement, well, let’s not be so harsh, after all only some politicians are deranged. I agree that repeating that X number of countries have ratified/signed the treaty is not much of an argument (indeed, that is the well-known fallacy of large numbers) and that is why I haven’t thrown those figures around myself. I also have not stated that anyone opposed to the ICC supports genocide, although that charge could be made indirectly (rejection of the measures being taken to curb genocide, i.e. automatic rejection of the ICC). The noble goals of the ICC are, whether one appreciates them or not, of the highest importance from a humanistic and even democratic point of view. Not to mention the economic and military benefits—after all, the plan is to reduce the need for intervention, meaning reduced involvement and lower military expenses.
I agree, up to a point. By the same token, however, the populations of many member states feel justified in labeling the rejections of the US as “paranoid”, “isolationalist”, “deranged”, or whatever else applies to a rejection based largely on invalid smokescreen arguments (frankly, the rejection by the US seems more politically motivated than anything that could get by the Tribunal).
Summarized here:
Another summary:
Among the safeguards are (taken directly from the Rome Statute):
Elements of Crime and the Rome Statute seem like pretty concrete and objective standards, although if I recall correctly this objection was some of the smoke generated by Bush et al, so to be adopted and repeated with caution.
It worked passably well, considering that, as I said earlier, UN councils work by lobbying and alignment of interests rather than judicial process. The US didn’t make it on the Human Rights Council not because there was an unfair vote, but because the UN countries that normally support the US in that particular forum felt that a withdrawal of support was in order; it was a reminder that international affairs are by necessity a multilateral concern. At any rate, now that Collounsbury is present he can explain this particular matter in far greater detail.
There are, as mentioned earlier, comparable (if not better) guarantees of due process in the ICC statutes than are afforded to US citizens by US law. Why do you claim that these articles do not exist? And, again, there are safeguards in place to prevent the degeneration of this tribunal into a political forum—the architects would have to be pretty silly not to protect the court against this possibility.
I confess I do not fully understand what is going on there or what the specific facts of this point are, so I will leave that to someone better informed, or until I can do a bit of reading on the matter.
I disagree. I haven’t seen very much that was asked and that UDS or others did not address in this particular forum, and in the public arena the popular objections to the ICC are of a much more knee-jerk or protectionist nature (not to mention often false).
Well, the phrase “lack of substantive protections in the nature of the ICC” is a falsehood, as we have seen; if you think that any nation will be able to snap at the US’s heels successfully simply thanks to this tribunal you have missed the point of it. I don’t deny that there will be accusations such as you mention (and some of them could be valid), but I sincerely doubt that, given the structure of the ICC, political motivations will have enough clout to pervert the entire court beyond error-correction or prevention. There is simply no reason to think that, and, again, this is not anything like the UN Human Rights Council (which operates on the basis already discussed). And I hope to goodness that those drawing, incredibly, on comparisons with sports institutions come to their senses at the earliest chance!
I said above that “The ICC aims to change the situation dramatically by instilling accountability in roles of leadership, accountability that is largely absent today.” Of course I did not mean to suggest that the ICC is concerned solely with heads of state, although the language and emphasis I used may have given that impression.
All this establishes, lucwarm, is that jurisdiction does not arise in this case under the provisions of paragraph 2 whereby states accept the compulsory jurisdiction of the court in general terms.
Paragraph 1 provides an independent source out of which jurisdiction can arise. Paragraph 1 provides the that the jurisdiction of the court extends to “all matters . . . specially provided for in treaties and conventions in force”.
In the LaGrand case the Vienna Convention on Consular Relations was a treaty in force between the US and Germany, and the substance of the claim was a breach of that treaty. The Vienna Convention has an Optional Protocol which states may or may not ratify, Article 1 of which provides that “disputes arising out of the interpretation or application of the Convention
shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.”
The United States ratified the Optional Protocol on 24 November 1969.
As a result, jurisdiction over the US arose in this case under Article 36(1) of the Statute of the ICJ because the US had ratified a treaty explicitly providing for the ICJ to have jurisdiction over disuputes arising out of the Vienna Convention.
UDS, yet another commendable, well researched and worthwhile post, but give the honorable member a link so that the member in question may, at long last stop flogging this horse that is now so dead that it has gone from rigor mortis to decomposition.
I concede that the ICJ has jurisdiction over the US in specific instances, but here’s what you said previously:
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I understood this to mean you were asserting that the ICJ has general jurisdiction to determine the international obligations of the US. Admittedly, the statement is somewhat ambiguous.
(And it’s certainly possible that it is true. But the answer is not obvious.)
In any event, I appreciate that you actually tried to back up your claim rather than making vague statements about the Constitution.
