And I in turn concede that my earlier statement was ambiguous.
To be completely frank, when I wrote it I was under the mistaken belief that the US had accepted compulsory jurisdiction under article 36(2). I’ve since discovered that the Senate voted to accept by the necessary two-thirds majority in 1946, but the instrument of ratification was never lodged. (I haven’t established why.)
There are over 300 international treaties which provide for various classes of dispute to be within the jurisdiction of the ICJ, and the US is party to a significant number of them. Many of them are in fact bilateral treaties between the US and one other state, so acceptance of jurisdiction is not something the US seems to be shy of as a matter of principle - it regularly includes it in treaties where it could certainly negotiate its way out of it, if it wished.
The US has been a party to more cases before the ICJ than any other state except Yugoslavia (and Yugoslavia only takes the lead because it launched identical cases against ten states arising out of the same facts in 1999). This reflects, of course, the range and scope of the foreign relations of the US, and the large number of states with which it comes into contact, and sometimes into conflict. But it also suggests that a signficant chunk of the international activities of the US is within the jurisdiction of the ICJ, and this can only be because the US has consented to it.
It’s also worth noting that the US is the applicant in ICJ cases about as often as it is the respondent, so it seems in general to be happy to invoke the jurisdiction of the ICJ, and accept the outcome.
None of this suggests that the US finds any kind of inbuilt bias in the ICJ (or, at any rate, any inbuilt bias adverse to the interests of the US).
Your straw man arguments are getting kinda old. There was a lot more at issue in the LaGrand case than whether the “the US had breached its obligations under an international treaty.” Why won’t you concede this obvious point?
Will you concede that the US’s breach, if any, was unintentional and harmless? Why do you think that the ICJ made such a big deal out of an unintentional and harmless breach of a treaty?
Or maybe you could share your opinion as to what should have happened in the LaGrand case. Should the defendant have been given a new trial after the ICJ ruling? Should he have been released?
Oh, lookie who’s talking of straw men. If you assert the ICJ was motivated by something else than impartially adjudicating the law, it is up to you to support that assertion. The fact is that they ruled the US had breached the treaty which the US had done. To impute ulterior motives with no proof when the ruling was correct is just childish. Sounds like someone got caught with their hand in the cookie jar and blames the techer for disliking him. I can understand why people like that would dislike courts and laws and treaties. people who break the law would prefer there were no laws.
What about the Miranda ruling? You know, lucwarm, procedure counts in a court of law. It’s there to protect us all from abuse by the legal machinery.
Does it matter if acceptable procedure is laid down by the Supreme court of Arkansas, the Supreme Court of the US or ICJ as long as it has been taken into legislative practice in a constitutional fashion? Well no, right?
So yes, they should have either gotten a new trial or been released due to the prosecution failing to assure the rights of the defendants and thereby to present its case in a correct fashion. That’s the price we have to pay to keep the public safe from abuse by the state, or if it would be the ICC by supra-national bodies.
That’s exactly what you express fear will happen with the ICC; that is to say that they will ignore due practice. You can’t have it both ways you know.
The ICJ argument does verge on being a strawman, but I would say that it stays within relevance by the skin of its teeth thanks to your persistent arguing the validity and reliability of international justice based on international treaties and the reliability of the signatories of such.
I apologize in advance for the incomplete nature of my research, but something is troubling about the definition of crimes under the Rome Statute (BTW, thanks for the links Abe, they were very helpful!).
As an example:
All well and good. The document is rife with definitions except one critical one (AFAIK - that’s the incomplete part of the research, I did not have time to read the whole thing, but I looked in the most likely places and found lots of definitions, but not this one). What is a civilation population? Using a liberal definition for civilian population, couldn’t the movement of the Taliban/Al-Queda to Gitmo be concerned a war-crime under the jurisdiction of the ICC? (Please note that I’m aware the “crime” took place before ratification and thus doesn’t actually fall under their jurisdiction, it’s an example)
BTW, kudos to many involved in this thread, it’s been a fascinating discussion to watch and has significantly influenced my personal feelings about the ICC. I started out against it. I have been slowly moving toward favoring it, but I still have some strong reservations.
Monty said that, more or less, the same governments would be choosing the judges et. all.
He did not say: The UN chooses the judges.
He also did not say that every member of the UN would choose the judges. He wasn’t talking about rogue states in the UN specifically. If you look, he also included our (so-called) allies.
UDS’ post implies that Monty is saying the UN = Court. And implies that Monty’s concerns are taken care of because rogues states and Americas obvious enemies won’t be there.
In any event, I think the balances, jurisdiction, and supposed “crimes” are far, far to vague to justify joining.
Will it probably turn out bad? I hope not.
But hope is a very, very stupid basis for entering into important treaties.
And lets face it: there can be no higher law than Canstitution in the USA. If there ever were a conflict, no matter hw minor, we’d drop it in a heartbeat. We can have no loyalty to it.
Not the way you put it, since they were apprehended under the internationally accepted premise that they are combatants suspected of specifically the crimes that are laid down in amongst other places the Rome Treaty. However, the legality of the US actions re the Taliban and Al Qaeda combatants specifically as to their incarceration at Guantanamo has been challenged both inside the US and internationally on various other grounds. Had the ICC been in place this would have been the natural venue to bring them to justice at.
Without being too paranoid I’ll posit that at least a small part of the Bush administration’s resistance to the ICC could stem from that it would impede the US from carrying out such actions in the future. That is IMHO a lousy argument against the ICC, there are better ones, although I disagree with most of those as well. I guess that the obvious weakness and blatant disregard for the rest of the world community such an argument implies saves us from getting young Ari on the tube forwarding it (but this here that I just wrote is spin on the level of the reputed immunity of certain nations previously spewed into the ether by the same Ari, thought I’d mention it anyway).
Smiling Bandit, while completely disagreeing with almost every single word you wrote and detecting some parts were you have not been reading the thread and the cites properly, more than anything I didn’t understand that part of your post at all. That might be because I don’t have enough info on the great anti-US cabal that includes amongst others the EU, Norway and Israel or it could just be that I’m linguistically challenged, or maybe you weren’t making any sense? I think I’ll settle for the last.
Agree, but I would add that the purpose of procedure is also to achieve a just result. This means striking a balance between protecting defendants from abuse and making sure that the guilty get punished.
**
I’m not sure what you mean by “taken into legislative practice in a constitutional fashion,” but IMHO, the source of procedural rules is important.
American courts have struck a balance between the rights of criminal defendants and the other interests involved. For other courts to interfere with this balance and impose their own view of just procedure on our courts is troubling, IMHO.
**
I disagree - IMHO, in the case of an unintentional and harmless invasion of the defendant’s rights, where the defendant did not assert his rights properly, there does not necessarily need to be a new trial.
Feel free to disagree with me, but keep in mind that errors occur all the time in the criminal justice system. If errors all required a new trial, very few convictions would stand on appeal.
One of the first cases I worked on involved a criminal defendant who had moved to dismiss his indictment. His reason was that the court reporter at the grand jury proceedings was not certified in the State of New Jersey. However, he could point to no prejudice resulting from this failure. Motion denied.
**
The question is who should set the price.
**
That’s not exactly my concern, but in any event, it is a valid concern. And yes, I can have it both ways, since the question is about striking a balance between the rights of defendants and the rights of society, not about protecting defendants at all costs.
It may be as well to sort out one aspect of the LaGrand case.
An order not to execute Walter LaGrand was not part of the final judgment of the ICJ. No final order not to execute was ever sought and, in any event, both Karl and Walter LaGrand had been executed by the time final judgment was given.
An interim or provisional order not to execute Walter LaGrand was made in the following circumstances. Germany started the ICJ proceedings at 7:30 pm on 2 March 1999, which was after Karl LaGrand had been executed and just 27 hours before the scheduled execution of Walter LaGrand. The essence of the claim was that the US had conducted the trial of the LaGrands in breach of its treaty obligations to Germany, and that Germany was entitled to some form of reparation for that. (Specifically, Germany wanted the trial of Walter LaGrand nullified.)
At 9:00am on 3 March 1999 Germany requested a provisional order that the other brother be not executed pending the final decision in the ICJ proceedings. The argument, in essense, was that if Germany were to succeed in the ICJ proceedings one obvious form of reparation would be for the US to nullify the trial of Walter LaGrand. The US would be free to retry LaGrand, this time in compliance with its treaty obligations to Germany. If, in the meantime, LaGrand had been executed, this particular reparation could not be ordered. Conversely, if Germany did not succeed (or if it did succeed but the reparation did not include a nullification of the trial, or if a retrial was held and LaGrand was again convicted) LaGrand could still be executed.
The US did not have formal advance notice of Germany’s application, and at that stage there were only 13 hours to go before the scheduled execution. Plainly there was no time for the merits of the provisional order requested by Germany to be researched and argued. The court granted the provisional order. The judge of US nationality on the ICJ at the time – Judge Schwebel – did not oppose the substance of the provisional order, but was very critical of the circumstances in which Germany had brought the matter before the court at such short notice.
This seems right. Granting the order could not irreparably prejudice the United States’ position; refusing to grant it would irreparably prejudice Germany’s position. And, in the words of the ICJ judge of US nationality at the time the matter was reviewed when the final judgment was given (Judge Buergenthal), “the Court was presented by Germany with claims regarding a set of facts that called for immediate action to save the life of a human being who had allegedly been deprived of his rights under international law. In light of these circumstances, it is difficult to fault the Court for issuing the Order in the manner it did” (although Judge Buergenthal, like Judge Schwebel, was very critical of the fashion in which Germany presented the issue to the court).
In the event, the US did not comply with the provisional order and, by the time the ICJ issued its final judgment in 2001, both LaGrands were dead.
It is worth noting that the reliefs claimed by Germany when they issued their proceedings on 2 July 1999, when Walter LaGrand was still alive did not include a request for a permanent order that Walter LaGrand be not executed. Germany did not ask for an order permanently preventing execution because, presumably, there was no basis on which the court could grant one.
Finally, it is worth noting that, in its final judgment, the court ruled by 13 votes to 2 that the US was in breach of its obligations in failing to respect the provisional order. The judge of US nationality voted with the majority (i.e. against the US) on this point.
It seems to me impossible to argue that either the provisional order or the final judgment were to any extent motivated by anti-US bias (and, for the record, I do not suggest that lucwarm has argued that they were). Nor does it look to me as if they were motivated by “anti-death penalty bias”. The court’s provisional order which sought to restrain the execution of LaGrand expressly stated that “the issues before the Court in this case do not concern the entitlement of the federal states within the United States to resort to the death penalty for the most heinous crimes; and . . . the function of this Court is to resolve international legal disputes between States . . . and not to act as a court of criminal appeal”.
Nope, doesn’t work. Afghanistan would not have ratified (nor have they to date). Most of the Taliban’s offenses took place in Afghanistan. The ICC would not have had jurisdiction (or do I misunderstand your point?). From a UDS post on Page 1:
Now, one can make the point that some of the Taliban’s acts were committed on another country’s territory and that would make them eligible for prosecution, but it’s a much harder case.
It also removes a few issues from the argument here, US soldiers will not be subject to the Court unless the offense they commit takes place in a ratifying State. A US (not a ratifying country) soldier in Afghanistan (not a ratifying country) is not exposed to any risk from prosecution by the ICC even if he travels home through Germany (a ratifying country).
My question now becomes:
Of the people prosecuted for war crimes in the past half-century, how many would have been subject to the ICC had it existed at the time of their crime? Is it possible that the ICC will have little to do?
I have a few thoughts in response to this point, but just so we’re clear, are you saying that (1) the ICJ had the power to impose a provisional order delaying the LaGrand execution; and (2) the ICJ did not have the power (assuming that the issue had not become moot) to issue a final order reversing the LaGrand conviction and ordering a new trial?
**
As we used to say in Boston, ‘that and 85 cents will get you a ride on the MBTA.’ In other words, why should anyone accept the self-serving statements of the ICJ that the decision is not anti-death penalty and that they are not trying to act as a court of criminal appeal? Do you really expect them to say ‘the real reason we’re rendering this decision is out of our bias against capital punishment. In addition, we’re trying to grab power and increase the scope of our jurisdiction.’?
The main way detect bias is to infer it from the surrounding circumstances. Why do you think that the ICJ made such a big deal out of an unintentional and harmless treaty violation?
**Article 6 (b)
Genocide by causing serious bodily or mental harm
The perpetrator caused serious bodily or mental harm(emphasis mine) to one or more persons.**
So, if the US signed on, we can be brought to court for genocide, based on someone feeling ‘mentally harmed’?
I find it hilarious, and sad, that people defend the ICC, an supra-national, non-democratic organization, which has as its decrees such open-ended definitions (Take a few minutes and actually read the various definitions before you spout off some garbage to defend them). With such brilliant definitions of genocide (making a single person feel bad is now genocide, accordind to the ICC), how can anyone trust them to competently carry out any duties?
I am gratefull that we have a president with enough common-sense to not lead America into the ICC.
My question is: Now that we see some people getting all worked up about America’s snubbing of the ICC, does that qualify as causing them ‘serious mental harm’, and are we commiting genocide as we speak? Inquiring minds want to know!
My cite is the text of the Rome Treaty, which you might be familiar with. For example, Article 8 section 2 b has for subsection iv “Intentionally launching an attack in the
knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects… which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” and for subsection xi “Killing or wounding treacherously individuals belonging to the hostile nation or army”. So, as far as I can tell by simply reading the text of the treaty, the judges are allowed to rule on whether incidental damage to civilian objects (which always occurs in modern conflicts, since armies don’t stick to fortresses or field battles) was excessive and whether the killing or wounding of an enemy soldier was ‘treacherous’ based purely on their interpretation of the terms, since there are no explicit standards laid out in the law and no precedent for the new court to draw on.
It is simply true. The crimes covered by the Rome treaty are defined so broadly that you can cover damn near anything under them, and certainly can pin something on any military undertaking using them. How about the absurdly broad (8 2 b xxi) “Committing outrages upon personal dignity, in particular humiliating and degrading treatment”. Now, while defenders of the ICC would try to assure us that this only means the sort of gross assaults on a person that we’d be truly horrified by, this could easily cover forcing someone to go about in a bright orange jumpsuit while wearing chains - a somewhat common method for transporting prisoners. Or the normal propaganda leaflets telling the enemy that their cause is hopeless and that they are horribly outclassed. Or, really, just about any negative statement about a country or group fits the definition of a ‘war crime’ under the Rome Treaty.
When US federal courts get handed a law making something as absurdly vagure as “Committing outrages upon personal dignity, in particular humiliating and degrading treatment” punishable by life imprisonment, then they either can call pretty much anything they wish (like political cartoons, which are certainly humiliating and degrading treatment for a public figure) a Federal crime or rule that the law is bad (either too vague or unconstitutional) and strike it down. Given that the offenses the ICC is allowed to cover are defined in the charter creating it, I somewhat doubt that they’ll repeal sections of the Rome treaty as too vague, and that charter is the closest thing to a constitution possessed by the court so the text of the treaty couldn’t be said to contradict the treaty.
Apparently I must have missed something, since according to Article 17 sec 2 c, the judges merely have to decide that “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.” There’s no independent definition of how to determine impartiality or independence, so I don’t see how it falls up to anything but the whim of the judges.
No, it is nonsense to ignore the complete lack of checks and balances upon the ICC, the lack of an appeals process, the method of selecting said judges, and the broadness of crimes covered and lack of objective standards for the terms of such crimes. Most obviously, US courts start off with a jury (none in the ICC), have multiple levels of appeals courts subject to sanction, have limits on their powers by the executive and legislative branches, have a system of precedent which limits large variations in rulings in combination with the multiple appeal levels, and have judges either elected directly by or appointed and approved by officials elected by the immediate pool of people they will be judging. The ICC, meanwhile, has no juries, no substantive appeals process (appeals go to the ICC and the same set of judges), no ‘other branches’ to restrict them, no system of precedent, and the judges are elected by the same sort of process that cut the US out of the UN human rights council and left Syria in, and which gives heavy preference to the vote of small countries over large. (Note that about 1/3 of the world’s population is contained in the 4 non-ratifiers of the US, India, China, and Russia - are the four votes those that 1/3 of the earth get really comprable to the hundreds in the other 2/3s?). Further, many of the countries on the ratification list lack a tradition of fighting corruption amongst judges - while a judge taking bribes will make headlines and result in an arrest in the US, it’s simply a way of life in some of the ratifier’s countries, and there’s no restriction on judges from such a country going to the court.
Ignoring the lack of any significant checks on the whims of ICC judges, their built-in-bias against large countries like the US, and the wide-open definitions of ‘war crimes’ in the Rome treaty is simply absurd. And I certainly wouldn’t say that the US justice system is perfect - which is all the more reason to be skeptical of a system with fewer checks and balances, obvious motives for kangaroo court antics, and absurdly broad definitions of the crimes which it can prosecute.
Oh, bullshit. I’m getting these ‘assertions’ from reading the treaty (or, in some cases your own excerpts from it) without wearing rose-colored glasses, not from some polemical source. You can retreat behind simply calling my arguments nonsensical assertions without countering them, but I cautiously suggest that it is probably unwise to repeat that here. Calling arguments against the ICC which turn out to be valid ‘nonsense’, far from strengthening the case for the ICC, tends to give the impression that there are no sound arguments for it, which presumably is not the impression you wish to create.
I was humiliated by your calling my arguments “basically, nonsense” and your guess as to my source for them, so it looks like you’ve just committed a war crime as defined by the Rome treaty (8 2 b XXi).
But the point was that you haven’t shown that the ICC would actually do anything to address the atrocities. As I said before, simply pointing out that ICC claims to be for noble goals isn’t enough, you need to convince me that it will actually make progress towards those goals. The current track record of the ICC is not very good in that regard, since it’s ratification has prompted the US to back out of peacekeeping missions and the countries in favor of the ICC aren’t willing to do the dirty work themselves.
Saying 'X is bad, therefore we must do Y" is not a valid argument unless you can actually show that Y will do something about X. Replace ICC with PTT in the paragraph above, and it’s just as invalid. (PTT stands for ‘Pink Tutu Treaty’, the treaty I propose that would require everyone to wear a pink tutu on wednesdays.)
(I’m just ditching the bit on world government, since it’s not really relevant and will just result in distraction from what we’re really discussing. I’m also moving the human rights council bit to the front because Abe’s statment makes the a damn good case for the US staying out of the ICC).
The same ‘one country one vote’ process used to select concils is used to select judges, the judges on the ICC are not selected by a ‘judicial process’
And you wonder why the US doesn’t want to sign on to a court where judges are elected by the same process? Where is our assurance that some UN countries won’t decide to give us a similar ‘reminder’ when voting for judges on the ICC, leading to the absurd prosecutions that we fear? Maybe if the ROTW wasn’t so ready to try pushing the US around at the expense of any semblance of reason (did these countries really think that Syria was a better representative of human rights than the US) we wouldn’t worry about them doing the same thing with ICC judges.
Ahh, sorry, I thought you were using the standard meaning of ‘war crimes’ and not one that includes 8 II b xxi “Committing outrages upon personal dignity, in particular humiliating and degrading treatment;”, which is broad enough to include creating political cartoons as a war crime. Certainly, the ICC will only cover things defined as ‘war crimes’ by the Rome treaty, but I presumed that you meant things that are generally considered war crimes.
Even ignoring the fiasco of 8 II b xxi, the ‘war crimes’ specified in section 8 and the conditions for the court to take jurisdiction in section 17 lack objective standards as I’ve pointed out before; I can’t find anywhere in the treaty that spells out what 8 II b xi “Killing or wounding treacherously individuals belonging to the hostile nation or army” means (it’s certainly not killing a combatant who has surrendered, since that’s covered specifically in 8 II b vi), so as I’ve said before it’s simply up to the judges what that means. It’s NOT a specific act like killing someone who has surrendered, as listed in 8 II b vi, but is a vague catch-all law that can easily cover any killing or wounding of an enemy soldier by a soldier, and I could certainly see it covering an ambush or similar suprise attack.
Given the broadness of the definition of a ‘War Crime’ under the existing treaty text, I have no confidence in them using a specific definition for “aggression” when they put one in. Remember, the ‘War Crime’ definition includes ‘humiliating or degrading’ people and ‘treacherously’ killing enemy soldiers - hardly well-crafted, specific laws intended to go after specific crimes.
Or, prehaps, you may as well put actual checks and balances on the judicial system, phrase the laws so as to specifically include only certain acts, and allow for substantive appeals (appealing back to the ICC judges doesn’t qualify as substantive in my book)?
Specific crimes like treacherously (undefined in the statute, so entirely up to the judges) killing an enemy soldier, bombing a civilian structure if it would be clearly excessive (undefined in the statute, so entirely up to the judges) for the military gain or like humiliating or degrading people (like is done with typical propaganda broadcasts)? The requirements of the treaty are so broad that they’re easy to fill, and most of the ‘hard stuff’ is left entirely up to the judges - a perfect setup for politically motivated show trials.
What are these safeguards? A voting process for electing the judges pretty much like the one that produced the Human Rights Council fiasco in the UN, and censure of the judges provided by the judges themselves?
Rigidity such as a definition of ‘war crime’ that includes political cartoons and kids teasing each other as war crimes? Accountability such as no appeals court, no juries, and any censure being done by the ICC judges themselves?
Impeaching the president over lying under oath, if you read the charges, and that’s all I’m going to argue on the Clinton-Lewinsky bit. I certainly don’t agree with your description of that event (or with the common ‘alternate description’, for that matter), but I think it’s pretty absurd and possibly dishonest to state something that sparks debates of its own as a given fact in an argument.
Yes, I think that people would be stupid enough to do that. In fact, the main thurst of my argument against the ICC is that people have done just that, and that the US should not get stuck in the mess. Do you want a list of large-scale stupid things that people have done to show that it’s possible for people to be stupid?
Quote me specifically what they are, then. All I see is Article 17 sec 2 c, which states that judges merely have to decide that “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.” There’s no independent definition of how to determine impartiality or independence, so I fail to see any objective standard - again, it’s simply up to the judges.
Or perhaps skepticism over the objectivity of a court with glaring flaws like the ICC? Simply labeling well-founded distrust of big government, especially a world wide court with virtually no oversight and incredibly broad powers based on vaguely worded crimes as ‘paranoia’ doesn’t make those objections baseless.
[QUOTE]
and isolationalism (or at least unilateralism)
Isolationaism and unilateralism? The US, Russia, China, and India have all registered disagreements with the treaty. Between them they represent over 1/3 of the world’s population. I can hardly see that as some sort of isolated and unilateral move. What people are calling ‘unilateralism’ is the US refusing to do the dirty work in peacekeeping operations unless the states that have signed on to the ICC agree not to hold her to a treaty she hasn’t signed. If the ROTW isn’t willing to take on the dirty work the US does, then perhaps they should stop calling the US refusing to be their puppet ‘isolationism (or at least unilateralism)’.
The noble goals of the ICC are, as I said at the top, irrelevant unless you can actually show that the ICC is actually capable of working towards those goals instead of hindering reaching them.
Democratic? 4 votes for 1/3 of the population, some 60 (at last count) for the other 2/3?
And again, you haven’t shown that the ICC has any more relevance to fulfilling that plan than the PTT.
Whether they ‘feel justified’ or not, their baseless labeling of well-founded suspicion of an ill-concieved court as ‘paranoid’, absurd labeling of the US not acting as a puppet for them as ‘isolationist’, and seemingly at-random use of ‘deranged’ does nothing to convince anyone in the US to change their mind, it in fact urges quite a few of us towards real isolationism.
Labeling valid objections to the absurdity that is the ICC as ‘smokescreen arguments’ is more of the same deranged (see, I can use the word too) behavior that is not going to convince anyone to change their mind. And while the US government’s decisions are ‘politically motivated’ in the sense that they want to get elected, you might want to look for ‘the will of the people’ in our constitution, declaration of independance, and other significant documents.
[On what the actual safeguards in the court are]
Let’s see -
“Judges must possess the highest professional competence and must be chosen from among persons of high moral character, impartiality and integrity” Hmmm - how, exactly is this done? Do they have a moral character measure hidden away in secret UN fortress, or are they just going to be voted in by the same style of process that led to the Human Rights Council Fiasco?
It’s an especially relevant question since that clause directly contradicts the next part of the sentance"who possess the qualifications required in their respective States for appointment to the highest judicial offices." Do you really want me to go back through the list of ratifiers of the ICC and point out those who have judicial systems based on bribery and partiality?
And really, that whole ‘assurance’ is just absurd. I’m not interested in hearing a declaration of how the judges will have high moral character and integrity, I’m interested in whether there is a structure to remedy any instance where they are not and punish them if they are. I treat that statement of ‘high moral caliber’ with as much respect as I do the pronouncement often handed down by courts in the USSR that ‘the defendant confessed of his own free will’ (that is, not at all).
And there’s an interesting bias pointed out in that document as a ‘protection’- the big ‘non-ratifiers’ (US, Russia, India, China) represent 1/3 of the world’s population, but would be forbidden from having more than 4/18 of the judges (and are unlikely to have that many, since they only have 4 votes between them).
While it also says “A judge may be removed from office if he or she is found to have committed serious misconduct or a serious breach of his or her duties.”, it doesn’t mention that his removal from office is by the ICC judges, which hardly fills me with confidence.
[On my point about the lack of standards for superceding national courts]
The whole quote you provided simply fails to address the question. There are no objective standards for determining if a national court has failed to prosecute, again, as I said, leaving it up to the judges.
How can you even say that with a straight face. Where, exactly, does the treaty define “There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice” in some objective manner? Oh, it’s just up to the judges, who have no precedent to follow and face censure only from the other judges.
I don’t see jury trial, limits on search and seizure, or a substantive appeals process.
Simply asserting ‘it would be bad if these protections exist, therefore they must exist’ is not going to convince anyone of anything. You summarized quite well in your discussion of the UN Human Rights Council how someone just wanted to teach the US a lesson - perhaps they’d like to be able to play the same games for higher stakes?
Asserting it doesn’t make it so.
As I’ve said before, I don’t care about the point of it, I care about where it’s going to point when it’s let loose.
And I sincerely expect that, were the US foolish enough to sign on to the ICC, political motivations would see judges elected who are all too ready to prosecute the US under the absurdly broad powers granted the ICC under the Rome Treaty.
How is the voting for judges significantly different?
This is getting silly. Some of the comments made in the last few posts aren’t going to go anywhere, are not informative in spite of the self-confident glibness they may be expressed with, and will no doubt derail the discussion into addressing minutiae in order to distract from the bigger issue.
Brutus quoted only a small section from the Elements of Crime pertaining to genocide, possibly because he did not realize that there is more to recognizing genocide, and hopefully not because he wanted to use selectivity to cloud the matter the same way the “sensible” George and Ari have been trying to. Others here have made similar objections, mostly still not valid, but if every single instance of selective reading has to be countered we could be here for a while.
Let’s take a good look (in full this time) at the relevant section of the Elements of Crime again:
Brutus quoted only element 1. If you think that the unrestricted “mental harm” phrase constitutes a war crime according to Article 6 b you are seriously deluded. Article 6 b is longer than just point number one, as shown immediately above, and if you quote only snippets of elements then according to the text you could accuse someone of genocide because the victim “belonged to a particular national, ethnical, racial or religious group” (and who doesn’t?). Actually, I’m surprised you didn’t quote element 2 as well, it would have looked more legitimate than just element 1 on its lonesome.
But the truth is that elements 3 and 4 (and 1 and 2) are all important, and between them these four points build up a system whereby genocide crimes may be clearly identified. The sum is greater than the parts, and the parts may not stand alone. That I have to point this out on the fourth page of this debate is a bit sad.
I wasn’t the source of the humiliation, however I would like to point out that before you go crying “war crime!” you would have to build a larger framework for your case (unless your objective is the entertainment of the court!). From the Rome Statute:
Now that the text is clearly presented and we know what we are talking about, let’s leave the Rome Statute and refer to the Elements of Crime, which has a section outlining outrages upon personal dignity; the people who drafted (and agreed to) these documents are not as stupid as some here would like to think:
I think these elements are sufficiently specific to rule out completely any claim you may wish to make regarding humiliation suffered here as a war crime according to ICC statutes. That goes for a number of other posters’ comments to date, a couple of which suggest that some in this debate could be relying a little too heavily on selective reading/broadcast and too lightly on fair analyses of the texts involved. But then again, there was a lot of misinformation pumped out by Fleischer and friends, and that kind of activity–particularly when it’s coming from the government–always causes damage.
