Not quite. As to (1), under Article 41 of the ICJ statute, yes, the court has power “to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.” The LaGrand case was not the first case in which they had issued a provisional order not to execute a convict whose trial was alleged to have been conducted in breach of international law, so it set no precedent in that regard.
As to (2), I do not think that the court could have reversed the conviction (and, it should be noted, it did not purport to do so). Even if it could, I doubt very much if it could have ordered a new trial.
The relief sought by Germany when the case was begun was (in brief) a declaration that
(1) the criminal liability imposed on the LaGrands was void;
(2) the US should make reparation, (in the form of compensation and satisfaction), for the execution of Karl LaGrand
(3) the US should restore the status quo ante in the case of Walter LaGrand (i.e. set aside his convicition); and
(4) the United States should provide Germany a guarantee of the non-repetition of the illegal acts.
That is, Germany sought a reversal of the conviction but not a retrial. If Walter LaGrand had not been executed and if the court had granted the relief requested, there would have been no order for the retrial of Walter LaGrand. Whether to retry him would have been a matter for the US.
Even if Germany had requested an order for a retrial, I doubt myself if the court would have granted it. I do not see that the obligations of the US towards Germany can extend to a positive obligation to try someone. At most, there can be merely a negative obligation not to try someone in a fashion which is in breach of the the obligations of the US towards Germany.
Well, I don’t think they made a big deal out of it. Lets look at what the actually did. They found that the US was in breach of its treaty obligations to Germany, but as this was common ground between the US and Germany it’s hardly surprising or controversial; it would have been a “big deal” to find otherwise. They were not invited to order LaGrand’s retrial, and didn’t. They were invited to nullify his conviction, but they didn’t. Nor did they order any kind of review of Lagrand’s conviction or sentence. They were invited to order the US to make reparation to Germany by way of compensation and satisfaction, but didn’t. They were invited to order the US to take steps to prevent a recurrence, but found that the steps which the US had already taken in this respect were sufficient and that no further order was needed.
The only order of substance which they made was that, if there was a recurrence, the US, by means of its own choosing, must allow review and reconsideration of conviction and sentence (and it is worth noting that the judge of US nationality concurred in this order). They did not order that the US must set aside either conviction or sentence in such cases.
In light of all this it seems likely that, had Walter LaGrand not been executed, the order which would have been made was for the US, by means of its own choosing, to allow the review and reconsideration of his conviction and sentence, taking account of the breach of the Vienna Convention. I see no reason to suppose that the ICJ would have purported to set aside the conviction itself. And, of course, it may well be that in the case of LaGrand the breach of the Vienna Convention had been raised in the LaGrand’s US trial and appeal, and that the US courts had found that the conviction and sentence should stand, on the grounds that respecting the Vienna Convention could not have altered the outcome. If so, and if an order for review of LaGrand’s conviction and sentence had been discussed in the ICJ proceedings, no doubt the US would have made this point and in that event the ICJ might well have found that the measures already taken by the US (i.e. addressing the breach of the Vienna Convention in the LaGrand’s US legal proceedings) were sufficient, and that no further order was necessary. In any event, it is certain that an order purporting to nullify the conviction would be inconsistent with the ICJ’s own statements about its role, and with the order which it did make in relation to future recurrences of this problem.
I think on reflection you will agree that it was explicitly not for the ICJ to find that the breach of the Vienna Convention was not sufficient to invalidate the conviction. Making that order would necessarily imply that it could have made the opposite order; in other words, that the ICJ was competent to determine the validity of LaGrand’s conviction. But that is a matter for the trial court and the appeal court, and the ICJ is neither.
In short, I see no inconsistency between the words of the ICJ and the orders which it made.
Do you think a strip-search of a suspected terrorist would satisfy this definition? Why or why not? What about a body-cavity search? What about transporting a suspected terrorist in shackles and a hood?
Let’s assume that (1) there is a bona fide armed conflict taking place; and (2) some of the suspected terrorists turn out to be innocent.
Although it is not clear from the extracts posted by Abe, satisfying the “elements” for a specific crime is not enough to constitute a crime which can be tried and punised by the ICC. The “elements of crimes” are, if you like, detailed regulations which flesh out the crimes specified in the Rome Statute. In order to prosecute and convict, as I understand it, both the requirements of the Rome Statute and the requirements of the Elements of Crimes document will have to be satisfied.
lucwarm invites us to conclude that there is a bona fide conflict taking place, and asks what happens if the authorities intimately search a suspected terrorist who turns out to be innocent. Could the officer concerned be convicted before the ICC?
Not unless he knew that the “suspect” was not in fact a terrorist. If he does not know, element 4 of the elements of crime listed by *Abe is not satisfied.
In your case, this is not established. If the treatment continued after their innocence was determined, you might have a case.
Element 5 might also cause problems (at least for this particular “crime”).
I’m still curious about my question above. Given the overall limits on jurisdiction, how many crimes will the ICC actually be able to prosecute?
Abe, I’m disappointed!
Don’t you understand that addressing the minutiae is a part of the issue? One of the assertions being made is that the terms of the Statute are vague enough to allow for politically motivated prosecution. I think it’s beneficial to come up with some test scenarios and run them through to see if they’ll pass muster (please note that I say this after finding one lacking above). We still have the issues of the lack (or not, depending on which side you’re arguing) of procedural controls, impartiality, judge selection, etc., but I think we’re big boys and girls and can handle dealing with a couple of different issues at the same time (as we’re already doing with the very interesting ICJ discussion).
Grem, please write 1000 times, “I will cut down on my use of parenthetical statements”
I think there is a genuine issue regarding the uncertain extent of war crimes, which is causing the US concern. The process of identifying and defining war crimes and other international crimes by treaty has been going on for over a century. The United States has been an enthusiastic and constructive participant in this process. But, as lawyers know, you can write all the treaties you like, and you can define crimes ever more specifically, but you won’t really know where the margins of a crime lie until you start applying the language of the treaties to actual facts, and this is always going to be done in courts and tribunals.
That particular process has been going on for almost sixty years and, again, the United States has been an enthusiastic participant. From the International Military Tribunals in Nuremburg and Tokyo in 1946 to the Yugoslavia and Rwanda Tribunals today, the United States has been involved both in mounting prosecutions and in nominating and voting for judges, and several US judges have served in these tribunals.
The US has not been deterred by the fact that many of these tribunals were trying and sentencing people for crimes that were considerably more loosely defined than the crimes set out in the Rome Statute, nor by the fact that none of these tribunals had an external appeal procedure, nor by the fact that none of them involved juries, nor by the fact that the voting procedures for the judges attach equal weight to the votes of all the participating countries. Nobody questions the valuable role these tribunals have played in helping to develop international criminal jurisprudence. So far as I know nobody seriously suggests that any of these tribunals has convicted someone who has not in fact committed the crimes alleged against them. I don’t pretend to have surveyed all the (voluminous) academic commentary on these tribunals, but I do not recall hearing of a significant claim that any of their decisions reflected an improper bias.
The primary difference between the ICC and the other tribunals is that the ICC is a standing tribunal, not a temporary one, and that its jurisdiction is not confined to events occuring within a specific time-frame and in a specific geographical area, but can extent to the territory of any ratifying state, and to acts occurring at any time into the future. These two factors together mean that there is a material possibility that US citizens, or even US soldiers, will find themselves before the ICC at some point. This was never very likely in the case of the tribunals and courts which have operated up to now.
But the US can hardly be seen to oppose the ICC on the grounds that its citizens should be somehow immune from the international criminal process. Similary it cannot object to the ICC on the grounds that it lacks a jury, or that its crimes are too loosely defined, or that each country has one vote in electing judges, or on many of the other grounds that have been raised in this discussion, again because it has happily participated in tribunals which suffered from these very defects in the past. Merely because US citizens may come before the ICC does not make these issues signficant if they were not previously signficant. The US cannot insist that its nationals are entitled to better treatment than it was happy to afford to the nationals of other states. From a legal point of view it is not a sound objection; no state is entitled to demand for its citizens a treatment which it does not afford to the citizens of others. And from a political point of view, it is obviously a complete non-starter. If the US articulates its concerns in this way, no other state will support it.
Yes, there is a degree of uncertainty in some areas about what precisely constitutes a crime which can be tried before the ICC. Some acts quite clearly crimes; others are not. And some lie in an area of uncertainty – an uncertainty which will only be resolved through cases. This is always going to be so. There is no legal code which is complete, comprehensive and devoid of all doubt when stated in the abstract. That is why, in all countries, all lawyers study the judgments of previous cases. Judgments in cases develop and clarify the law; they tell lawyers what the law is. And a legal system with relatively few judgments already made will have a correspondly large area of doubt or uncertainty to be resolved. And the only way to resolve it is to have cases.
If doubt about the scope of international criminal law is a valid ground for objecting to an international criminal court, then in principle there can never be an international criminal court. But this is not the stated position of the United States; nor is it the position which emerges from the practice of the US in the past.
The best that can be hope for is that an international criminal court will develop the law in a coherent and unbiassed fashion, making consistent decisions which are based on existing principles of humanitarian law and not on political considerations of the consequences for this state or that of their decision. That is why the possibility of bias on the part of the judges is, indeed, a very important issue. But nothing which has been said here persuades me that there is any reason to fear this. I have invited posters to point to examples of bias in the ICJ, where judges are selected in a similar way and the risk of anti-US bias is, if anything, greater than in the ICC. The LaGrand case has been mentioned and exhaustively discussed, but I see nothing suggestive of bias in either the statements or the actions of the ICJ in that case. Nobody has suggested any other example. Nobody has seriously attempted to support the argument that embarrassing the United States is going to be the primary motive for more than a handful of countries in their decisions about nominating or voting for judges, or that this has been so in ICJ elections. Nobody has named any judge of the ICJ or of its predecessor, the PCIA, who is said to be biassed.
Nevertheless I must concede that the possibility that judges may be biassed cannot be conclusively disproved, if only because it depends on events which have yet to happen and which could, therefore, happen differently from comparable events in the past. If the US administration feels that that is a degree of uncertainty which prevents them from subjecting their citizens to the ICC, so be it. That is their call; they are entitled to call it as they see fit. If they make that call, then they should not ratify the Rome Statute, and they should not send their soldiers or other agents to countries which have ratified it. That, obviously, will diminish the influence of the US both in terms of the continued development of international criminal law and in terms of the broader international sphere, but that is a price which the US may feel it right to pay.
Well, at a minimum it appears that the US feels the need to pick and choose the cases, or types of cases which it submits to the ICJ. In addition, I suspect that in more than one of the cases in which the US was respondent, we declined to participate in some or all of the proceedings.
**
You are forgetting that the ICJ DID attempt to stop the execution on a provisional basis. And they apparently relaxed their own procedural rules to do so. And, according to Judge Buergenthal’s dissent, they were aware that, at that time, the US did not consider the ICJ’s provisional orders to be binding.
Given that the ICJ tried to stop the execution on a provisional basis, it seems silly to argue that they would never have tried to do so on a permanent basis (absent some sort of additional procedural steps on the part of the American courts).
And keep in mind that given a finding that the US breached an obligation, there is no logical necessity that the defendant’s conviction be reversed (or re-examined).
So it seems to me that the ICJ did a lot more than find the US to be in violation of a treaty. All over a harmless and unintentional breach.
**
Abe tried to argue that the definitions in his link were clear. Here’s one of the things he said:
**
I disagree. But I do agree that, in principal, if the definitions incorporate other requirements by reference, and those requirements are clear, then there might not be a vagueness problem.
**
Honestly, I doubt it. Think about it - if what you’re saying were true, then nobody could ever be convicted of that crime.
But in any event, I chose that example to try to show the vagueness of the definition of ‘outrage on personal dignity’ or whatever. Perhaps it wasn’t the best example, but I think that any reasonable person would concede that the definition given in the Rome Statute is pretty vague.
Perhaps minutiae was the wrong word, but I was referring to Brutus and a couple others’ strategy of countering solid referenced arguments with imaginary complaints based on reading only one out of a set in the elements of a particular crime. Like I said earlier, the individual elements quoted earlier to prove that the ICC efforts are a farce may not stand on their own, and it is a mystery why anyone informed would choose to try pass them off as free-standing rules. And, as I also said, were we to counter each and every one of these silly baseless objections (which make their rounds quite vigorously outside of this more controlled forum) we could be here for a long time.
I can accept that some may find the statutes, elements, etc., a little vague, but their case will certainly not be advanced by polemical and incomplete quotations. In fact, this ICC matter has seen a volume of nonsense being spouted US officials being somewhat less than honest, and I think it is this behaviour that encourages people to focus on incomplete extracts of ICC documents and mistakenly attack the entire exercise as opposed to seeing it for what it really is and seeking to improve it with suggestions.
Interestingly, the US has just yielded more ground on the ICC problem, but not nearly enough according to the rest of the world:
By the way, thanks to all who assisted with my always short-of-time treatments, particularly UDS as regards the essential connections the Elements of Crime has to other documents (the Rome Statute, and through that the Geneva Convention), something I mistakenly considered obvious.
Since the ‘Elements of Crimes’ document is now making it’s way into the argument, I’d point out that the UN FAQ on the ICC web page “The Elements of Crimes are not in themselves binding, but have a ‘persuasive character’,” the text of Rome Treaty itself seems to limit them to that status, and AFAIK they haven’t actually been adopted by a 2/3 vote of the committee of ratifying states as required for them to be more than a draft document. However, I’m certainly willing to treat them as if they had been adopted and as if they had the force of law for the court, as long as the pro-ICC crowd will consistently do the same.
[QUOTE]
Now that the text
If you’re only going to address a one-sentence joke amongst two long posts filled with arguments and citations, at least read the whole sentance you’re making a long post to argue with. I said
“…a war crime as defined by the Rome treaty (8 2 b XXi),” and not 8 2 c ii as you posted from the ‘elements of crime’. If you’re going to be nitpicky and post large volumes of text in reponse to a single sentance, at least have the courtesy to address the statement actually made. (I’d also note that the ‘Elements of Crimes’ document includes specific commentary on 8.2.b.xxi, which you could have used instead).
Further, you quoted the text of 8.2.a in your response - 8.2.a is irrelevant to 8.2.b; it’s clear from reading section 8 that the limits in section a don’t apply to section b; an appropriate paraphrase is 8.2 - these acts are war crimes a. breaching the Geneva Convention, specifically by [subsections] and b. other acts which are violations of the rules of conflict, specifically [subsections, including 8.2.b.xxi], and c… This means that I wouldn’t need to show violation of the GC to claim that a war crime was committed.
Looking at the ‘Elements of Crimes’ document at the actually relevant section, the only objective criteria that aren’t met are 3 and 4, since this discussion isn’t associated with an international armed conflict. I was aware of that when I posted the joke you’ve latched onto, so it doesn’t really count as much of a relevation. Section 1 of the relevant ‘Elements of Crimes’ section is a no-brainer to apply (it merely requires that someone be humiliated, degraded, or otherwise have their dignity violated). Section 2 is one of those open-ended ‘whim of the judges’ criteria I complained about and which some people claim are covered by the ‘Elements of Crimes’ document, “The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.”
Even that little joke has reinforced my argument about the absurdly broad powers granted to the ICC.
Only because this isn’t part of an international armed conflict.
A lecture on ‘selective reading’ is really funny coming from someone who picked an obvious joke a single sentance long from two long posts of argument and citation of the treaties, and raw irony in someone who chose to cite elements of the crime described in 8.2.c.ii when discussing the problems with a claim under 8.2.b.xxi criticizing others about fair analysys of the texts involved speaks for itself.
As well as the misinformation pumped out by ICC supporters, which we can see here in the tricky switch from 8.2.b.xxi to 8.2.c.ii. Also, trying to dismiss two large posts (one of which was mostly specific rebuttals to your claims) as ‘silly’ and focusing in on a one-sentance joke from one of the paragraphs is not exactly going to convince anyone opposed to the ICC to change their mind (especially when you don’t even refute the joke)- damage in your book, a bonus in mine.
While reading through the UN FAQ on the ICC, I noticed a pretty interesting counter to claims that the ICC has only limited powers and that its only scope is dealing with war criminals, perpetrators of genocide, and others of that ilk (bolding mine).
Pretty damn chilling, if you ask me; I know I certainly don’t want the War on Some Drugs carried out by a court structured like the ICC. Especially after realizing that the ICC doesn’t have any restrictions on using evidence legally seized, and could certainly claim that a nation not using evidence that it possessed (even if said evidence was the fruit of an illegal search) was not properly prosecuting the case, and so take jurisdiction.
That’s an interesting point you make Riboflavin. After I read it, I realized that when I came up with my hypothetical question about strip searches, I had been thinking about a different “crime”:
Note that this provision would seem to apply to humiliation of combatants and noncombatants alike.
Although you’ve addressed luwarm’s post, why don’t we get back to 8.2.b.xxi? I don’t think anyone could seriously claim that I’m doing this just to keep bringing new examples up until people get tired of reading them - I mentioned this example repeatedly and specifically in my previous replies to UDS and Abe. 8.2.c.ii is not a really worrying one for the court to have, it’s limited both in the treaty and by the Elements document. 8.2.b.xxi is, however, very worrying -
Assume that an international armed conflict (like the war in Afghanistan) was taking place. Would US military police strip searching captured persons believed to be members of Al-Queda before placing them into detention qualify as a war crime? Would the US transporting them by making them wear orange jumpsuits, chains, and a hood?
And, since 8.2.b.xxi is so broad, here’s one that I consider pretty absurd but which seems to qualify. Would a US soldier writing ‘HIJACK THIS FAGS’ on the side of a bomb qualify as a war criminal" (Bear in mind that the person degraded does not need to be a party to the conflict, and the comments on that incident here, and from various gay groups at the time)?
The “Elements of Crimes” document states:
The relevant bits from the Rome Treaty (all from 8.2):
Which doesn’t seem to provide any more limit than the Elements.
Nice piece of self-validation there. Although I am beginning to suspect that you are relying on the technique of flooding the board with repetitive assertions to drown the other points, I am actually trying to catch up with your last few posts (to which I am replying as I may during short breaks in my busy day). What I (very clearly, I thought) addressed with the comment you criticized above is the very visible trend of selecting one small section of a bigger argument and attacking it as if it were a stand-alone item and representative of the larger whole, a dirty technique we have seen employed vigorously.
Secondly, several instances of outright falsehoods propagated by anti-ICC posters (and US officials) have been pointed out in the course of this thread; can you point out comparable falsehoods by ICC supporters? I think you will find that the magnitude of “misinformation” produced by ICC supporters (at least in this thread) is low enough to be classified as slight errors of comprehension in good faith.
Thirdly, the misinformation produced by any ICC supporters to date pales in comparison not simply to what has been asserted here by anti-ICC posters, but also to official statements coming from the US administration itself. Someone here (the US public) is being deliberately deceived, and reversing my words on to me is hardly going to address the issue or excuse the anti-ICC camp of having spread a lot of misinformation.
Fourthly, although I don’t actually understand what you are referring to with your several complaints about “jokes,” misquoting, “tricks,” etc., you ought to consider when you see a possible error that it was made in good faith, since I have been cutting and pasting quite a lot of articles and sections in their entirety (or as close as possible) for the benefit of readers who appreciate information as opposed to the ever-popular and easier obfuscation, and some material may have got mixed up in the process (particularly when quoting from multiple documents). Perhaps, instead of merely complaining and looking for openings to jab, you could post a correction or clarification or at least simply draw my attention to an error without too much melodrama, seeing as how the points I was making would not be changed substantially anyway.
This looks like a dishonest statement, and I think your constant characterizations of anti-ICC arguments as dishonest warrants pointing it out. According to that article, the countries who have stated that they have no interest in ratifying the Rome Treaty have not complained that the US has not yielded enough. Since the big 4 who have not ratified the treaty (US, Russia, China, India) compromise something like 1/3 of the world’s population by themselves, your statement about the ‘rest of the world’ would appear to be false on its face.
Good grief Riboflavin! Will the equivocation ever end? What you say could only be true if you make the assumption that “rest of the world” refers strictly speaking to population count, and not to the countries involved! Anyway, here is a bit of analysis on the US ceding ground on this matter:
Note that so far only India has supported Washington; my statement is therefore true even if you insist on using population count rather than number of countries (this is not about ratifying, this is about disagreement over US demands).
Still, I feel that you are attempting to pigeon-hole me into an anti-US position by any means possible, when in fact I can’t wait until the US is on board as a proper member state of a fair ICC, something you seem to feel is impossible at present.
**Riboflavin, I think you can only beleive that the Statute provides no more limits than the elments if you believe the words
“serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law,”
are not there, or if you believe that those words have no meaning, both of which beliefs are, frankly, irrational.
If you believe that writing “hjack this fags” on the side of a bomb is a serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, please say why you believe this. If, on the other hand, you do not believe this, please say why you think that the act you mention could be successfully prosecuted in the ICC.
I could pose the same question in relation to the searching of prisoners.
It’s worth pointing out that “outrages upon personal dignity” have been banned for decades under the Geneva Conventions. The Rome Statute does not invent the concept; it merely provides a mechanism for prosecuting individuals accused of it. I am not aware that any state has ever objected that writing obscenities on bombs or searching prisoners is a breach of the Geneva Conventions, despite the fact that these are routine occurrences. I cannot see how it can possibly be argued that these are serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.
There are grounds for concern about the operation of the Rome Statute but, quite frankly, this is not one of them.
You make a fair and important point here, Riboflavin, but it is one which may tell in favour of the US adhering to the Rome Statute. The Adoption of the Elements of Crimes document, and its continued amendment and refinement, will be matters for the Assembly of States Party to the Rome Statute and, if the US does not adhere to the Statute, it will be unable to participate in the process.
But it is a process which is going to happen anyway and, whether or not the US adheres to the Rome Statute, US citizens may come before the court. Hence the US has a strong interest in taking part in, and influencing the direction of, this process.
Let me forestall the obvious objection that, if the US adheres, it will still have only one vote among 65 or more. That is true, but it is equally true of all international organisations and international conferences, and the US is a very powerful and effective player in many of these, punching far beyond the weight that a single vote might suggest. The US is not without resources, influence and allies, and the issues which concern the US here should equally concern many other states. Hence the US has the potential to play quite a signficant role here.
Obviously the administration is aware of this, and has still concluded that their best interests lie in opting out of the process. My point is that even those concerned to advance the best interests of the US and its people could reasonably conclude that, on balance, they are served by ratifying the Rome Statute.
Here is the reply that has been taking me so long. Unfortunately this is a busy time for me and I can only snatch a few minutes at a time to work on this sort of thing.
I did not “simply” point out that this is about noble goals, but that was part of my argument, the part where I repeated why the ICC is seen as essential (to reduce the occurrence of atrocities). Here are the official reasons. Are you saying that this court will be unable to accomplish anything, even if the US refuses to join? (something I think is highly unlikely, in fact I’m pretty sure they will join before the end of the year at the latest).
Not an honest interpretation, not the least reason being that the ICC is hardly an operational entity yet! Despite your assertion regarding “countries in favour of the ICC [who] aren’t willing to do the dirty work themselves,” there are actually many countries that contribute to global peacekeeping efforts, not just the US; and if the US backs out of the ICC commitment, how is that a failing of the ICC? In this case the US has thrown sand in the machinery, and that is why it has been soundly criticized by so many other nations—not because those slavering dogs eagerly await their chance to tear into the noble beast, as some would think.
Here is a chart that lists contributions to peacekeeping operations in 2001; you will note that the US, in spite of being the world’s leading military and economic superpower, is hardly the leader in troop contributions. Other countries are also willing to do the dirty work, and do so regularly.
I think the answer to this objection was there last time I addressed the matter. I said: The ICC aims to change the situation dramatically by instilling accountability in roles of leadership, accountability that is largely absent today.” Added emphasis. Your example of the Pink Tutu Treaty might be amusing if it had relevance, but I can’t see any.
Never said they were. What I said is that they are not operating in a political forum that requires lobbying and alignment of interests such as the UN Human Rights Council; the ICC, as mentioned earlier, is a court of law, not a political forum.
The case for “absurd prosecutions” would be a valid and worrying concern if the Rome Statute, Elements of Crime, and Rules of Procedure and Evidence were sloppy documents that permitted the abuse of any one nation by others; and also if the ICC were to function as a political tool, which it is certainly not intended as (it is independent). I can understand asking for minor revisions to perceived problems in the existing text, but 1) now that about 80 countries have already ratified it seems a little bit late, and 2) minor revisions is not what has been asked, instead major revisions, e.g. asking for unfair exceptions, have been demanded.
Anyway, any objections to these documents will be better handled by the universal law of internationalism: inclusion is better than exclusion. Once the US is in, I am sure that problem areas will be much easier to address and correct. Being left out of the ICC would simply mean having no say in the matter.
I summon Collounsbury to explain kindly the HRC matter, and in particular the level of lobbying that takes place, and what happens when US unilateralist measures disappoint its allies, who then limit their pro-US lobbying to a minimum, reminding the US that the world is not a place for unilateralism. Now, I completely agree that the thought of member states ganging up on the US in the ICC selection of judges is not a savoury concept; but, seeing how the language of the court explicitly states that judges are to be selected according to qualifications, experience, knowledge, adequate linguistic abilities, moral character, impartiality, integrity, as well as representing adequately males and females, geographical distribution, and the principal legal systems of the world, I think there may be little to worry about. Again, the crucial difference here is between a judicial and a political forum. Besides, ICC judges will be elected by secret ballot to serve for a single term of nine years; I doubt very much that the majority of the ICC would compromise such a system by subverting it for political means, assuming they could (would they want to be stuck with a schemer for 9 years?). And even if they could, since judges are supposed to be independent when something suspicious comes up the independence of a particular judge could easily be called into question.
If by any chance a judge is acting suspicious, that judge may be excused or disqualified. Here is the relevant part of the Rome Statute:
By the way, the preceding article specifies the required independence of the judges.
My first thought is that it means exactly what it says, that is killing or wounding in violation of faith or trust, or by betrayal, individuals belonging to the hostile nation or army. “Treachery” doesn’t mean “anything at all,” and while this particular line may give judges a little bit more room in their decisions (than, for example, 8.ii.b.vi) it certainly does not leave the matter up to their whims as you repeatedly suggest.
What checks and balances are missing in your opinion? The laws do seem to be more or less adequately phrased (with possibly a couple of exceptions). And, since the ICC will have a special Appeals Division, I see nothing wrong with the system. Isn’t that quite similar to that used by the US Supreme Court? The main differences in structure that leap to mind are that the judges on the ICC are not serving indefinite terms, and there are 18 of them as opposed to 9 (making it a little easier to establish majority).
I think we’ve discussed a number of these already, and the explanation was that some of these elements require the presence of other elements before they can qualify as specific crimes; also, reference to the Geneva Convention helps (and is required in fact) to clarify many of the offences, as UDS explained.
I quoted earlier the relevant article on excusing or dismissing judges that may be “compromised”. Once again, it must be stressed that an ICC judge is NOT the equivalent of a state on a UN council. An ICC judge is not there to represent the official interests of his/her country either, as judges are required to be independent. Note that the prosecutor and the person under investigation both may nominate that a judge be disqualified. Judges may also request the court presidency for disqualification of another judge. It is not just up to the judges themselves, and there is more than just censure involved.
The whole political cartoons and kids teasing each other stuff was obfuscatory nonsense, as demonstrated more than once (although every time I refer to discredited claims you say something like “asserting it is false doesn’t make it so”!). The US Supreme Court doesn’t have a jury either, but it still works (it is, I have to admit, sometimes steeped in controversy, but it does work). As already mentioned the ICC will have an Appeals Chamber. And censure may come from parties other than the ICC judges themselves.
Your points about Clinton-Lewinsky are well taken, but I have to remind you of what you were talking about: politically motivated abuse of the system. If you claim that the sex scandals episodes in Clinton’s presidency were not politically motivated (and funded), I must question your awareness.
My understanding is that, should the need arise, judges resort to debate when interpreting the law. “Impartiality” and “independence” are fairly clear words, one meaning “treating all sides in a dispute fairly, equally, without prejudice,” and the other “not depending on authority or control; self-governing; not belonging to or supported by a party”. Putting in those definitions certainly wouldn’t hurt, I agree, but not all legal systems are as draconian, rigorous, or litigious as US or British law!
I must note that I have done a lot more than just assigning labels to make objections baseless—and the paranoia comment was an honest one, whether or not you wish to refer to it as “well-founded distrust” (of most things not American, and not well-founded, if you wish to be fair).
Demanding special immunity for US actions, flying in the face of the concepts of equality and justice, that may well be called unilateralism. Issue of population already addressed.
I think my earlier cite should have taken care of this concept of “dirty work” in peacekeeping you keep bringing up. But obviously the world does look to the US for a measure of leadership in military matters. To claim that the rest of the world sees the US as a puppet is simply untrue (although quite a few feel that the US holds far too many strings). Open another thread if you want to debate this point, but it really does not belong here.